Wachtel By and Through Wachtel v. Beer

• Decision Date: 05 August 1988
• Docket Number: No. 86-1026,86-1026
• Citation: 427 N.W.2d 56,229 Neb. 392
• Parties: Bonnie Kay WACHTEL, By and Through her Mother and Next Friend, Brenda WACHTEL, Appellant, v. Robert A. BEER, M.D., et al., Appellees.
• Court: Nebraska Supreme Court

Page 56

427 N.W.2d 56

229 Neb. 392

Bonnie Kay WACHTEL, By and Through her Mother and Next Friend, Brenda WACHTEL, Appellant, v. Robert A. BEER, M.D., et al., Appellees.

No. 86-1026.

Supreme Court of Nebraska.

Aug. 5, 1988.

Syllabus by the Court

1. Summary Judgment. As a procedural equivalent to a trial, a summary judgment is an extreme remedy because a summary judgment may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed.

2. Summary Judgment. The purpose of Neb.Rev.Stat. § 25-1335 (Reissue 1985) is to provide an additional safeguard against an improvident or premature grant of summary judgment.

3. Summary Judgment: Affidavits. A Neb.Rev.Stat. § 25-1335 (Reissue 1985) affidavit need not contain evidence going to the merits of the case; rather, a § 25-1335 affidavit must contain a reasonable excuse or good cause, explaining why a party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment.

4. Summary Judgment: Affidavits. Neb.Rev.Stat. § 25-1335 (Reissue 1985) should be applied with the spirit of liberality.

5. Summary Judgment: Affidavits. A party's access to witnesses or material is an important consideration for the court in the application of Neb.Rev.Stat. § 25-1335 (Reissue 1985).

6. Summary Judgment: Affidavits. A party filing an affidavit under Neb.Rev.Stat. § 25-1335 (Reissue 1985) must show how additional time will enable the party to rebut a summary judgment movant's allegations that no genuine issue of material fact exists for disposition by trial.

7. Summary Judgment: Affidavits. Refusal to apply Neb.Rev.Stat. § 25-1335 (Reissue 1985) is disfavored when the party opposing summary judgment makes a timely application by an affidavit which specifically identifies the relevant information and indicates some basis for the conclusion that the sought information actually exists.

8. Summary Judgment: Motions for Continuance: Appeal and Error. A continuance and other judicial action authorized by Neb.Rev.Stat. § 25-1335 (Reissue 1985) are within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.

9. Trial: Appeal and Error. A judicial abuse of discretion does not denote or imply improper motive, bad faith, or intentional wrong by a judge, but requires the reasons or rulings of a trial judge to be clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition through a judicial system.

Stephen L. Gerdes and Peter J. Hoagland, and Vard Johnson, of Broom & Johnson, Omaha, for appellant.

James A. Snowden, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellees Beer et al.

Robert T. Grimit, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Kathryn Scheer.

Before HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and WARREN, District Judge.

SHANAHAN, Justice.

On October 25, 1985, Brenda Wachtel, mother and next friend of Bonnie Kay Wachtel, filed a negligence action against Robert A. Beer and Dean R. Thomson, physicians and partners in the Nebraska City Family Medical Clinic, and against St. Mary's Hospital of Nebraska City and Kathryn Scheer, a nurse-anesthetist. On account of the defendants' alleged negligence at the time of Bonnie Kay's birth, Brenda Wachtel sought damages for permanent injury to Bonnie Kay and medical expenses, past and future, which were assigned to Bonnie Kay for inclusion in the litigation.

Brenda Wachtel received prenatal care from Drs. Beer and Thomson for her pregnancy with Bonnie Kay. In labor late during her pregnancy, Brenda entered St. Mary's Hospital, where, in the early morning of October 30, 1983, there were signs of fetal distress in Bonnie Kay, who was delivered by cesarean section around 3:30 p.m. on October 30. Attending Bonnie Kay's birth were Drs. Beer and Thomson and nurse-anesthetist Scheer. Bonnie Kay was born with brain damage and an eyesight disorder, which are permanent. Alleged as negligence are several items, including the physicians' misuse of the drug Nubain administered to Brenda, whose baby was in fetal distress; failure to promptly perform a cesarean section; failure to refer Brenda to an obstetrician to handle problems with a high-risk baby; failure to properly resuscitate Bonnie Kay after her birth; and failure to properly monitor Bonnie Kay's condition. Denying negligence in their answers, Drs. Beer and Thomson answered on November 27, 1985, and Scheer answered on December 4.

On August 16, 1986, Drs. Beer and Thomson moved for summary judgment. Scheer moved for summary judgment on September 9. At the hearing on the defendants' motions, held on October 3, each defendant introduced an affidavit, which very generally alleged that management of Brenda Wachtel's pregnancy and delivery of Bonnie Kay conformed with accepted standards and denied any negligence regarding Brenda Wachtel or Bonnie Kay. In addition to their affidavits, the defendants introduced "Plaintiff's Answers to Interrogatories," served on the defendants in December 1985, which stated that the plaintiff had not made a final determination concerning any expert witness who would testify for the plaintiff at trial.

At the October 3, hearing, plaintiff attempted to introduce exhibit 5, an affidavit signed by plaintiff's lawyer on October 3, which recited that the lawyer, at an unspecified time, had contacted a board-certified obstetrician and gynecologist, whom the affidavit did not identify but who was in Washington, D.C., and who, after reviewing records for Bonnie Kay, had concluded that "there is evidence that the defendants in the above-captioned case did not meet the appropriate standard of care for Nebraska City, Nebraska." The affidavit further stated:

Affiant has recently retained Dr. Roger K. Freeman to testify on behalf of plaintiff. Dr. Freeman is Medical Director of the Women's Hospital, Memorial Hospital Medical Center of Long Beach, California. Dr. Freeman is a Professor in the Department of Obstetrics and Gynecology at the University of California at Irvine. Dr. Freeman has not yet had time to prepare a formal report.

Exhibit 5 did not disclose when plaintiff's lawyer had retained Dr. Freeman and did not supply an anticipated date for Dr. Freeman's report. Objecting to exhibit 5, defendants asserted that the lawyer's affidavit did not contain a medically expressed opinion or facts indicating that the defendants were negligent. In response, plaintiff's lawyer informed the court:

We've not taken depositions on the case and so it's even a little difficult for the expert that I have retained to come in and render an opinion until after I have deposed the defendant doctors [because] you can't make a determination just on the bare records as to what happened in a delivery room. And so I think the affidavit becomes very relevant because it indicates to the Court that the plaintiff now does have an expert, and an expert who, when the appropriate discovery has been done, will render an opinion and will be subject to being deposed by defense counsel as to that opinion.

To the court's inquiry about a particular physician's affidavit for the plaintiff, the plaintiff's lawyer remarked:

But the problem that I have is that I have been in the process of trying to get the expert. I just got the expert. He is not in a position yet to render an opinion. I'm on my way down to Kansas City to meet with another expert to review over the records. We've talked about it on the phone, but he hasn't had a chance to see the monitor strip so he can't give you an opinion....

And I would also indicate to the Court that prior to filing this case, I had discussed the matter with several doctors, obstetricians and gynecologists in the area, and they have given me the opinion that there are serious problems with the standard of care. But because of the obvious problem of doctors wanting to testify against a fellow doctor, I've honored their request and kept their names confidential.

When the court sustained the defendants' objection to exhibit 5, plaintiff's lawyer requested additional time to obtain affidavits from plaintiff's medical experts to counteract the defendants' affidavits offered for the summary judgment. After denying plaintiff's oral request for a continuance to obtain an additional affidavit from a physician, the court granted the attorneys time to file briefs regarding the issues raised at the October 3 hearing and took defendants' motions for summary judgment under advisement.

On October 10, 1986, plaintiff filed a "Motion to Conduct Second Hearing on Motion for Summary Judgment or to Receive Additional Evidence," which was heard on November 7, 1986. At that hearing, plaintiff offered the affidavit by plaintiff's lawyer, exhibit 5, which had been excluded from evidence at the October 3 hearing on defendants' motions for summary judgment. Regarding exhibit 5, counsel for Drs. Beer and Thomson stated to the court: "[I]f that affidavit is being offered to show some excuse for not offering evidence at the time of the first hearing, I think it ought to be received." Scheer's counsel agreed with that statement concerning exhibit 5. Referring to defendants' stated position relative to introduction of exhibit 5, the court responded: "I think so too. I think it ought to be received for that purpose. That's in conjunction with 1335."

Neb.Rev.Stat. § 25-1335 (Reissue 1985) states:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is...