Putnam v. Scherbring, S-15-610.
| Decision Date | 29 September 2017 |
| Docket Number | No. S-15-610.,S-15-610. |
| Citation | 902 N.W.2d 140,297 Neb. 868 |
| Parties | Mark A. PUTNAM, appellant, v. Keri G. SCHERBRING et al., appellees. |
| Court | Nebraska Supreme Court |
Herbert J. Friedman, of Friedman Law Offices, P.C., L.L.O., and Paul Galter, of Butler, Galter & O'Brien, Lincoln, for appellant.
Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser Stryker, P.C., L.L.O., Omaha, for appellees.
Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., Omaha, for amicus curiae Nebraska Defense Counsel Association.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In order to enforce progression orders in an automobile negligence case, the district court excluded untimely disclosed expert opinions regarding medical bills. Relying upon our decision regarding a discovery sanction,1 a divided panel of the Nebraska Court of Appeals decided that the district court had abused its discretion.2 We granted further review and now reverse.
The district court excluded untimely disclosed expert opinion testimony which was necessary to lay the foundation for past medical bills presented as damages. The chronology of the case is particularly important, as it drove the district court's decision.
In December 2008, Mark A. Putnam's motor vehicle collided with the motor vehicle driven by Keri G. Scherbring but owned by her parents, Dale J. Scherbring and Janet K. Scherbring.
In April 2012, approximately 40 months after his cause of action arose, Putnam filed suit against the Scherbrings alleging that he sustained injuries and damages as a result of Keri's negligent driving. He sought general and special damages, including resulting medical expenses incurred since the collision.
The Scherbrings admitted that Keri's negligence proximately caused the accident but denied that it proximately caused injury to Putnam. Thus, Putnam had to prove the extent of his resulting damages and that such damages were proximately caused by the accident.
On August 28, 2013, the district court sent notice to the parties' counsel that unless further action was taken, the case would be dismissed for lack of prosecution pursuant to the Rules of Dist. Ct. of Fourth Jud. Dist. 4-10 (rev. 2010). The parties did not follow the procedure or take any action to avoid dismissal.
On October 1, 2013, the district court dismissed Putnam's action for lack of prosecution. Upon Putnam's motion to reinstate, the district court vacated the order of dismissal and reinstated the case.
On October 16, 2013, the court entered the first scheduling order in this case. The order adopted the parties' stipulated proposed order and set forth the following deadlines:
• January 15, 2014—Putnam's deadline to designate expert witnesses;
• March 31, 2014—deadline to complete fact discovery; and
• May 15, 2014—ready for trial date. Trial was set for July 23, 2014.
Putnam apparently missed the deadline to designate his experts and belatedly supplied incomplete disclosures. When it became clear that the remaining deadlines could not be met after this delay, Putnam moved for a new scheduling order. The parties then stipulated to a new scheduling order. The new scheduling order set September 15, 2014, as the deadline for all expert disclosures and discovery, and to be prepared for trial.
The trial was continued to December 17, 2014. As a result of this continuance, the scheduled trial date was over a year after the district court's standard for disposition of 98 percent of its civil jury cases.3
On November 21, 2014, 26 days before trial was scheduled to begin and 10 weeks after the deadline to be prepared for trial, Putnam moved to continue the trial. The affidavit accompanying the motion stated that Putnam's counsel had been hospitalized after a scheduled heart surgery and "ha[d] not been able to prepare for trial." It appears that the district court was not aware of counsel's health situation until the motion was filed.
The trial was continued to February 18, 2015. The new trial date would have been 16 months after the standard for disposition of 98 percent of its civil jury cases.4
On January 9, 2015, 40 days before the scheduled trial, Putnam filed a second motion to continue. In this motion, his original counsel recited several continuing health concerns that required addition of new lead counsel. However, the new lead counsel had sustained an injury and could not be ready for trial as scheduled.
A hearing was held, and Putnam's counsel offered an affidavit in support of the motion. In it he explained, for the first time, that he had health problems for the duration of 2014 and "was not able to properly prepare for trial." Putnam's new lead counsel also offered an affidavit explaining "it appears that most likely [Putnam] will need to conduct limited additional discovery and the witness and exhibit list may need to be edited relative to medical issues."
The court sustained the motion, without mentioning in its order the oblique request for additional discovery, and continued the trial to June 24, 2015. The new trial date was 11 months after the original trial date and over 20 months after the court's standard for disposition of 98 percent of its civil jury cases.5
On February 18, 2015, Putnam's new counsel filed a motion to reopen discovery for the purpose of serving requests for admission regarding the fairness, reasonableness, and necessity of Putnam's medical expenses. He also filed a supplemental motion on March 26 to add four additional expert witnesses and for additional limited discovery. These requests were nearly 3 years after Putnam filed suit, 1 year after his extended expert opinion disclosure deadline, and approximately 8 months after the original trial date.
After a hearing, the district court overruled these motions. In reaching its decision, the court noted that the case was 18 months past the case progression standards target disposition date, that the pending trial date was the fourth date set, that the trial had been continued three times to accommodate Putnam, and that the Scherbrings had been able to timely identify their experts.
Because the parties did not stipulate before trial to the fairness and reasonableness of the medical bills, Putnam needed to present expert testimony to lay this foundation.6 But Putnam failed to timely disclose such an expert opinion.
To remedy this situation, Putnam acquired a supplemental report from one of his doctors who had been previously identified as an expert witness. The report, dated March 30, 2015, apparently disclosed a new expert opinion that Putnam had suffered a traumatic brain injury. It also reported that the medical bills incurred from treatment by the expert witness, as well as the bills from several other treating physicians, were fair, reasonable, and necessary.
Though the report was dated March 30, 2015, it was not disclosed to the Scherbrings until June 2—22 days before trial. And because discovery was closed, the Scherbrings were unable to follow up on the new opinions or depose the expert witness again before trial. Moreover, the disclosure introduced new material that would significantly change the nature of Putnam's claimed injuries.
Following this disclosure, the Scherbrings filed an amended motion in limine to exclude evidence that was not disclosed during discovery, including expert reports and opinions concerning medical bills, as well as medical bills not disclosed during discovery. The record does not include the hearing on the amended motion in limine, or a written order disposing of the motion, but it is clear from the court's trial docket entry and the bill of exceptions that the relevant parts of the motion were sustained.
The scope of the sustained amended motion in limine was addressed on the first day of trial, outside the presence of the jury. At this time, the court acknowledged the strangeness of the situation by noting parties typically stipulate to fairness and reasonableness of medical bills and then the plaintiff offers evidence to prove necessity. However, the court noted that even in the absence of a stipulation, it "[did]n't see the prejudice in terms of some unfair surprise to the defendant to allow [the previously disclosed expert] to testify about the reasonableness and necessity for [the expert's] bills up to the date of the deposition." Therefore, the court ruled that the expert could testify to the reasonableness and necessity of those bills. It further clarified that any testimony as to the fairness and reasonableness of all other medical bills was to be excluded.
As a result, Putnam was not permitted to introduce the vast majority of his medical bills at trial. For strategic purposes, Putnam decided not to offer the previously disclosed expert's bills in light of the exclusion of the others. However, Putnam testified to the extent of his injuries after the accident and the treatment he received. Other previously disclosed medical providers were also allowed to testify to the treatment they provided Putnam for his injuries.
On this evidence, the jury returned a verdict in favor of the Scherbrings. The district court entered a judgment on the jury verdict, and Putnam timely appealed.
On appeal, the Court of Appeals, in a split decision, relied on our decision in Norquay v. Union Pacific Railroad7 to conclude that "the district court abused its discretion in excluding, as a discovery sanction, nearly all of Putnam's medical bills, as well as testimony from Putnam's expert witness that the bills were reasonable and necessary."8 In reaching this decision, the majority opinion emphasized that "the district court abused its discretion by not...
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