Beran v. Neb. Orthopaedic & Sports Med., P.C.

• Decision Date: 04 August 2020
• Docket Number: No. A-19-783.,A-19-783.
• Citation: 948 N.W.2d 796,28 Neb.App. 686
• Parties: James BERAN, appellant, v. NEBRASKA ORTHOPAEDIC AND SPORTS MEDICINE, P.C., appellee.
• Court: Nebraska Court of Appeals

28 Neb.App. 686

948 N.W.2d 796

James BERAN, appellant,

v.NEBRASKA ORTHOPAEDIC AND SPORTS MEDICINE, P.C., appellee.

No. A-19-783.

Court of Appeals of Nebraska.

Filed August 4, 2020.

Greg Garland, of Garland MedMal Law, L.L.C., Jerry Fichter, of Fichter Law Office, Lincoln, and Kathy Pate Knickrehm, Lincoln, for appellant.

William R. Settles, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.

Moore, Chief Judge, and Riedmann and Arterburn, Judges.

Riedmann, Judge.

INTRODUCTION

James Beran appeals the decision of the district court for Lancaster County which excluded expert testimony on the grounds that Beran failed to disclose the opinion to Nebraska Orthopaedic and Sports Medicine, P.C. (Nebraska Orthopaedic), prior to the witness’ trial deposition. We find the district court's decision was not an abuse of discretion and therefore affirm.

BACKGROUND

Beran sustained an injury to his left shoulder in April 2015. In May, Dr. Ronald Schwab, an orthopedic surgeon employed by Nebraska Orthopaedic, performed rotator cuff repair

surgery on Beran's shoulder. After the surgery, Beran developed complications that he later claimed were caused by a postoperative infection of the shoulder joint. Schwab performed a second surgery on Beran's shoulder in July, but Beran continued to experience symptoms and pain. Schwab then referred Beran to a different orthopedic surgeon, Dr. Kirk Hutton, who performed a third surgery on Beran's shoulder in February 2016.

In April 2017, Beran sued Schwab and Nebraska Orthopaedic, alleging that Schwab was negligent in his treatment of Beran because he failed to timely diagnose and appropriately treat the infection in Beran's shoulder after the initial surgery. Schwab was not timely served with process and was ultimately dismissed as a defendant, leaving Nebraska Orthopaedic as the sole defendant at trial.

On December 11, 2017, the district court entered a progression order. Therein, the court ordered the disclosure of expert witnesses to be completed at least 90 days prior to the pretrial conference scheduled for August 17, 2018, with trial scheduled to begin on September 4. The order required the disclosure of information regarding each expert witness and a complete statement of the opinion to be rendered and the basis therefor; it further stated, "Expert testimony will not be permitted at trial unless it is contained in the disclosure."

The progression order was modified in June 2018 and modified again in August due to continuances of the trial date. The progression order was modified a final time in February 2019, and trial was set for July. Pursuant to this final progression order, a pretrial conference was scheduled for June 21; thus, expert witness disclosures were to be completed 90 days prior to that date.

Beran was deposed in February 2018. At that time, he testified that at his first appointment with Hutton in December 2015, Hutton told him that the infection that Schwab let go on too long ruined the soft tissue in his shoulder.

Nebraska Orthopaedic originally planned to depose Hutton but changed its mind in April 2018 due to the expense. At that time, Nebraska Orthopaedic was unwilling to waive Hutton's unavailability for trial; thus, in December 2018, Beran sent a letter to Hutton, notifying him that his live testimony would be required at trial. The letter informed Hutton that his testimony would not involve any standard of care opinions, but would be limited to his initial impressions and etiology of Beran's condition, his treatment of Beran, and Beran's limitations and future medical needs. Despite this, Beran attached to the letter a photograph of his shoulder taken a few days after his initial surgery and a report from Dr. Stephen Felts, an infectious disease doctor. Nebraska Orthopaedic was unaware of this letter.

Although a bit unclear from the record, the parties later agreed to take a trial deposition of Hutton, rather than require his in-person testimony at trial, so in February 2019, Beran deposed Hutton. Hutton explained that Beran was referred to him in December 2015 for a second opinion on his shoulder after he continued to have complications following two surgeries by Schwab. After reviewing Beran's history and performing a physical examination, Hutton believed that Beran had a recurrent rotator cuff tear

with significant retraction and severe muscle atrophy, and he thought there was the possibility of a low-grade infection in Beran's shoulder based on his history of redness, inflammation, and drainage after the original surgery. However, Schwab had previously obtained cultures from Beran's shoulder that were negative for infection. Hutton took additional blood from Beran to determine if there was an ongoing infection, but his bloodwork was negative for markers of infection. Hutton explained that although he believed there was the possibility of infection, he had no documentation that showed that Beran's shoulder was infected.

Based on Beran's history, Hutton's examination, and the bloodwork results, Hutton believed he could safely proceed with surgery without concern that there was an ongoing active infection. When he performed the surgery on Beran's shoulder, he could not confirm whether there had been an infection in the past. He admitted that it was possible that there was a prior infection, but he was not able to confirm it based on what he saw.

Hutton stated that because he did not find an active infection when he operated on Beran's shoulder, he could not say with a degree of medical certainty whether Beran ever had an infection in his shoulder. He acknowledged that he would be concerned that there was an infection from the history of redness and drainage, but he had no clinical proof that there was one. He ultimately testified, "I guess knowing what was going on, I would have an opinion that there was some type of lowgrade infection going on at that point." Nebraska Orthopaedic objected at that time on the ground of the testimony being an undisclosed expert opinion and indicated an objection to the testimony on the parties’ joint exhibit list filed as an attachment to the joint pretrial conference order in June 2019. In an order ruling on the objection in July, the district court sustained the objection.

Beran moved for reconsideration of the court's decision, and a hearing was held the morning before trial began. At the hearing, Beran offered several exhibits into evidence, including the December 2018 letter to Hutton in which he provided Beran's postoperative picture and Felts’ report. Beran argued that the case is about whether there was an existing infection in his shoulder joint or not and that Hutton was the only one to see it. Beran argued that he needed the jury to hear that part of Hutton's testimony and that there was no way for him to disclose this opinion to Nebraska Orthopaedic because Hutton was not a retained expert witness, so Beran had no contact with him and did not know what his opinion would be.

Nebraska Orthopaedic asserted that it was previously unaware of the December 2018 letter to Hutton. It submitted that based on that additional information, Hutton's comment that "knowing what was going on" he would have an opinion, evinces that Hutton's opinion was not based on his treatment of Beran; rather, it was based upon "what was going on" during Schwab's treatment of him. The district court agreed, noting that Hutton was a treating doctor, but that his opinion did not arise from his treatment.

The court questioned Beran's comment that he did not know what Hutton's opinion would be, asking him to confirm that it was Hutton who initially told him that his shoulder problems originated with an infection that resulted from Schwab's care. Based on Beran's confirmation, the district court recognized that it "was early on" that Beran knew Hutton at least suspected that Beran had an infection in his shoulder after the initial surgery. Ultimately, the court declined to reverse its previous decision to exclude Hutton's opinion.

Trial proceeded. Beran testified regarding his injury and the progression of his treatment thereafter. He also presented the testimony of Felts and an orthopedic surgeon from Missouri, both of whom opined that Beran had an infection in his shoulder after the initial surgery and that Schwab breached the standard of care when he failed to diagnose and treat the infection. Hutton's deposition, as described above, was also played for the jury at trial. The video was redacted to remove the opinion testimony that the district court excluded.

Nebraska Orthopaedic called Schwab, who rendered his opinion that Beran never had an infection in his shoulder joint; he said there may have been a small superficial infection on the skin, which responded very well to oral antibiotics, but the cultures were negative and he was not able to identify any bacteria present to demonstrate a deep infection in the shoulder joint. Thus, in his opinion, neither of the re-tears of Beran's rotator cuff, preceding Beran's second and third surgeries, was caused by infection.

Another orthopedic surgeon from Omaha, Nebraska, testified similarly, explaining his opinion that Schwab's postoperative care of Beran met the standard of care. Like Schwab, he testified that it was possible that Beran had a superficial infection in the incision and the skin around it, but that it was properly treated with antibiotics and resolved. He noted that Schwab obtained deep cultures during the second surgery in July 2015, which were negative for the presence of bacteria. He opined that Beran never had an infection in his shoulder joint.

Nebraska Orthopaedic also presented the deposition testimony of a Nebraska physician specializing in infectious diseases. The specialist opined that Schwab acted appropriately in his treatment of Beran's postoperative complaints. He said with the benefit of hindsight and knowledge of the overall progression of the case, the evidence would suggest that Beran...