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EWERS v. SAUNDERS COUNTY

Cite as 298 Neb. 944

T. Louise Ewers, personally and as Personal

Representative of the Estate of Mickley

(Michael) Lynn Ellis, appellant, v. 

Saunders County, Nebraska, a political

subdivision, et al., appellees.

___ N.W.2d ___

Filed February 9, 2018. No. S-17-251.

1. Pretrial Procedure: Appeal and Error. Decisions regarding discovery 

are directed to the discretion of the trial court, and will be upheld in the 

absence of an abuse of discretion.

2. Pretrial Procedure: Proof: Appeal and Error. The party asserting 

error in a discovery ruling bears the burden of showing that the ruling 

was an abuse of discretion.

3. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted and 

gives that party the benefit of all reasonable inferences deducible from 

the evidence.

4. Pretrial Procedure: Evidence. A party’s failure to make a timely 

and appropriate response to a request for admission constitutes an 

admission of the subject matter of the request, which matter is conclusively established unless, on motion, the court permits withdrawal of 

the admission.

5. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. 

§ 6-336 is self-enforcing, without the necessity of judicial action to 

effect an admission which results from a party’s failure to answer or 

object to a request for admission.

6. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof. 

Neb. Ct. R. Disc. § 6-336 is not self-executing. Thus, a party that seeks 

to claim another party’s admission, as a result of that party’s failure 

to respond properly to a request for admission, must prove service 

of the request for admission and the served party’s failure to answer 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/04/2018 12:10 AM CDT
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or object to the request and must also offer the request for admission 

as evidence.

7. Rules of the Supreme Court: Pretrial Procedure. If the necessary 

foundational requirements are met and no motion is sustained to withdraw an admission, a trial court is obligated to give effect to the provisions of Neb. Ct. R. Disc. § 6-336 which require that the matter be 

deemed admitted.

8. Malpractice: Physician and Patient: Proof: Proximate Cause. In 

a malpractice action involving professional negligence, the burden of 

proof is upon the plaintiff to demonstrate the generally recognized 

medical standard of care, that there was a deviation from that standard 

by the defendant, and that the deviation was a proximate cause of the 

plaintiff’s alleged injuries.

9. Malpractice: Physicians and Surgeons: Proximate Cause: Damages. 

In the medical malpractice context, the element of proximate causation 

requires proof that the physician’s deviation from the standard of care 

caused or contributed to the injury or damage to the plaintiff.

10. Negligence: Proximate Cause. A defendant’s negligence is not actionable unless it is a proximate cause of the plaintiff’s injuries or is a cause 

that proximately contributed to them.

11. Negligence: Proximate Cause: Words and Phrases. A proximate cause 

is a cause that produces a result in a natural and continuous sequence 

and without which the result would not have occurred.

12. Proximate Cause: Words and Phrases. A defendant’s conduct is a 

proximate cause of an event if the event would not have occurred but 

for that conduct, but it is not a proximate cause if the event would have 

occurred without that conduct.

13. Expert Witnesses: Proximate Cause. Expert testimony is almost 

always required to prove proximate causation.

Appeal from the District Court for Saunders County: James

C. Stecker, Judge. Affirmed.

Larry R. Demerath, of Demerath Law Office, and Justin B. 

Demerath, of O’Hanlon, McCollom & Demerath Law Firm, 

for appellant.

Joseph S. Daly and Mary M. Schott, of Sodoro, Daly, 

Shomaker & Selde, P.C., L.L.O., and J. Scott Paul, of McGrath, 

North, Mullin & Kratz, P.C., L.L.O., for appellees Advanced 

Correctional Health Care, Inc., et al.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Kelch, J.

INTRODUCTION

This appeal arises from the in-custody death of Mickley 

(Michael) Lynn Ellis. T. Louise Ewers, personally and as personal representative of Ellis’ estate, brought a wrongful death 

action alleging medical malpractice by Advanced Correctional 

Healthcare, Inc. (ACH), and its agents in their individual and 

official capacities (collectively Appellees). Ewers also filed 

suit against Saunders County, the Saunders County sheriff’s office, Saunders County Corrections, Saunders Medical 

Center, and Dan Scott, but those causes of action are not 

relevant to this appeal. Ewers now appeals from the orders 

of the district court for Saunders County that denied her discovery motions and granted Appellees’ motion for summary 

judgment. We conclude that the district court did not err, and 

we affirm.

BACKGROUND

Ellis was incarcerated in the Saunders County jail on May 

27, 2010. During the morning of June 22, he spoke with 

Mallory Reeves, a licensed practical nurse employed by ACH, 

the medical contractor hired by Saunders County. In her notes, 

Reeves stated that Ellis wanted to talk to a counselor about 

nightmares he was having and that she told him to fill out a 

“sick call,” which is how an inmate reports medical issues.

Instead of filling out a “sick call,” Ellis filled out a “kite” 

form, which is how an inmate relays reports or requests to 

jail personnel. In the form, he requested help with his nightmares. He mentioned that he was having chest pain and “hard” 

breathing when he awoke from the nightmares and that he was 

waiting to find the right medication to help him. Ellis had a 

history of chest pain and shortness of breath after nightmares 

and, about 3 weeks prior, had been taken to a hospital for mental health issues.
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After receiving the “kite” form, jail personnel completed 

an incident narrative. According to the incident narrative, jail 

personnel informed Reeves of the physical complaints Ellis 

described on the “kite” form, and she responded that it was not 

a medical issue, as Ellis was requesting to speak with someone, and that there was not anything she could do for him. 

At her deposition, Reeves did not recall that conversation but 

admitted that chest pain was a serious complaint that could be 

life-threatening. As a result of the “kite” form, an appointment 

was made for Ellis to speak with a pastor.

Ellis made no further complaints until 3:40 a.m. on June 

25, 2010. He told jail personnel that he was having trouble 

breathing and that his back hurt. At 4 a.m., jail personnel 

contacted Mary Scherling, a nurse practitioner employed by 

ACH. She suggested that Ellis breathe into a bag, believing 

he was having a panic attack. At 4:08 a.m., jail personnel 

called Scherling back and reported that breathing into the bag 

was not helping and that Ellis was now complaining of chest 

pain. Scherling instructed jail personnel to take Ellis to the 

hospital. At the Saunders Medical Center, Ellis was treated 

for a heart attack, but he died at 6:20 a.m. from a bilateral 

pulmonary embolism.

Ewers, who is Ellis’ sister, filed suit, alleging that Ellis’ 

death and associated damages resulted from the negligence of 

Reeves and Scherling. Ewers sought damages from Reeves and 

Scherling in their individual capacities and from ACH. In part, 

Ewers specifically averred that as a result of the negligence of 

Appellees, Ellis experienced damages and injuries, including 

chest pain, trouble breathing, and nightmares.

Summary Judgment

On January 6, 2017, Appellees filed a motion for summary 

judgment. The district court conducted a hearing and received 

evidence. For purposes of the appeal of the summary judgment, 

only the evidence relating to Reeves’ conduct is relevant.

Victoria Halstead, a registered nurse, reviewed the autopsy 

report and medical records for Ellis and depositions by Reeves, 
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Scherling, the sheriff, and jail personnel. She explained in 

a deposition that any person who complains of chest pain 

or shortness of breath requires a face-to-face assessment. 

Therefore, she opined that Reeves should have conducted an 

in-person assessment of Ellis’ condition on June 22, 2010. 

Further, in Halstead’s opinion, Ellis should have been taken to 

a hospital to be examined by a physician that day.

Halstead conceded that other than the “kite” form that Ellis 

filled out on June 22, 2010, he made no further reports of chest 

pain, shortness of breath, or other issues on June 22, 23, or 24. 

She stated that she could not predict whether the results of a 

complete medical assessment on June 22 would have yielded 

normal or abnormal results, but she suspected that the results 

would have been abnormal. But she testified that she did not 

have an opinion as to what a medical “workup” on June 22 

would have shown.

The district court received the deposition testimony of Joyce 

Black, a registered nurse with a Ph.D. in nursing who both parties used as an expert witness. Ewers’ counsel conducted direct 

examination for Black’s deposition, and Appellees’ counsel 

cross-examined her.

Black testified that she instructs graduate students on the 

subject of pulmonary embolism. To prepare for her testimony, Black reviewed records from the Saunders County jail; 

records of Ellis’ emergency room visits, autopsy and forensic 

toxicology report, and death certificate; narratives of events 

from jail personnel; and the Nebraska State Patrol investigative report.

Black explained that a blood clot, or embolus, can form, 

perhaps in the leg, and that a piece of the clot can break 

off and travel through the body until it becomes lodged in a 

lung (a pulmonary embolism). As a result, the clot will then 

block the flow of blood and oxygen to the tissue beyond 

the clot, and that tissue stops functioning. She testified that 

“[e]arly diagnosis is better in all cases because you want to 

stop the extension and additional clots from forming, and 

you do that with anti-coagulation.” But Black also stated 
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that even with early treatment, not all pulmonary embolisms 

are survivable.

Black further explained that the body mounts an inflammatory response to a pulmonary embolism. According to Black, 

the pain is “exquisite” or “excruciating” and does not go away. 

Black testified that the pain continues during the entire inflammatory response, which lasts about 72 hours. Black testified 

that in addition to excruciating pain, someone dying of a pulmonary embolism would experience the sensation of difficulty 

breathing and possibly the feeling of impending doom. She 

testified that once blood flow is completely blocked, a patient 

would remain conscious for less than 1 minute.

Black testified that surgeons would remove saddle emboli, 

the type that Ellis suffered, only when such emboli are positioned a certain way and that even then, there was a risk 

that the clot would break during surgery and kill the patient. 

She described having a patient’s family say goodbye prior to 

surgery because “that’s how uniformly fatal that particular 

embolus is.”

Based on Ellis’ history; his complaint on June 22, 2010; 

and the absence of additional complaints until June 25, Black 

offered her opinion that there was no pulmonary embolus on 

June 22. Black testified with “reasonable medical certainty” 

that an examination on June 22 would not have shown that 

Ellis was having a medical issue or a pulmonary embolism. 

She stated that if Ellis had experienced a pulmonary embolism on June 22, his condition would have worsened on June 

22, 23, and 24. According to Black, based on Ellis’ history of 

anxiety, it was not problematic for Reeves not to examine him 

on June 22.

Upon examination by Ewers’ counsel, Black agreed that if, 

hypothetically, Ellis had a pulmonary embolism on June 22, 

2010, then Reeves, hypothetically, should have examined him. 

She also agreed that if Ellis had a pulmonary embolism on 

June 22 and had been treated for it, his chances of recovery 

would have been higher. Black emphasized, however, that in 
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her opinion, Ellis did not suffer a pulmonary embolism on 

June 22.

The district court granted the motion for summary judgment, finding no material issue of fact as to causation. It 

found that there was no expert testimony establishing a causal 

link between the acts of Reeves and Scherling and injuries or 

damages suffered by Ellis or Ewers. Specifically, the district 

court discerned no evidence that Ellis suffered a pulmonary 

embolism on June 22, 2010, or that an examination of Ellis 

on June 22 would have identified the presence of a pulmonary 

embolism on that date. It expressly rejected Ewers’ argument 

that Black’s response to a hypothetical question, that early 

detection of a pulmonary embolism on June 22 could have 

helped Ellis if he suffered from such condition on that day, 

was sufficient to show causation, because Black did not subscribe to the version of the facts presented in the hypothetical question.

Ewers now appeals the order granting summary judgment.

Discovery

In addition to challenging the summary judgment, Ewers 

assigns errors pertaining to the discovery process and Appellees’ 

alleged failure to timely and properly respond to requests for 

admission, requests for production, and interrogatories.

On April 8, 2014, Ewers filed a motion to compel discovery, 

which alleged that Appellees had provided “[i]mproper and/

or inadequate” responses to certain requests for admission, 

requests for production, and interrogatories, purportedly “Sent 

11-20-13.”

On April 21, 2014, the district court sustained the motion 

and gave Appellees another opportunity to answer Ewers’ “11-

20-13” discovery. Ewers claims that the district court allowed 

Appellees 2 weeks to provide its answers.

On July 16, 2014, Ewers filed a motion to deem requests for 

admission admitted and to dismiss Appellees’ answer, regarding “11-20-13” discovery. Ewers contended that Appellees 

had not provided the answers required by the district court’s 
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previous order. On August 18, 2014, the district court ordered 

that supplemental answers and admissions be provided by 

August 25 or be deemed admitted.

On September 16, 2014, Ewers filed an amended motion 

to deem requests for admission admitted and to dismiss 

Appellees’ answers, regarding the discovery for ACH, Reeves, 

and Scherling on November 13, 2013, and March 27 and April 

9, 2014. She alleged that Appellees failed to comply with the 

district court’s previous order because they had not submitted 

their responses to the requests for admission by August 25, 

2014, and alleged such responses were improper. Further, she 

alleged that Appellees had provided untimely and insufficient 

responses to other requests for admission and no response to 

her other requests for documents and interrogatories. Following 

a hearing on September 16, 2014, the district court found that 

there was not sufficient evidence to ascertain the degree to 

which the requests were incomplete or had been or not been 

complied with. Given this, the district court made no ruling on 

the timeliness of the admissions.

On September 25, 2014, Ewers filed a motion to deem 

requests for admission admitted and to dismiss Appellees’ 

answer, regarding the same discovery as the previous motion. 

Following a hearing, Ewers filed an “Explanation of Discovery 

Responses From Defendants,” which alleged that Appellees 

had failed to comply with previous court orders to provide 

discovery responses and Black’s expert report, or allow Ewers 

to depose Jessica Young, an attorney for ACH. On October 27, 

the district court’s pretrial order stated, “Rule 37 request to be 

responded to within 30 days. Court will address the issue of 

imposition of costs as the result of the delay in discovery at 

time of trial.”

On December 5, 2014, Ewers filed a motion to deem 

requests for admission admitted and to dismiss defendant’s 

answer, again regarding the same discovery as the previous 

motion. On December 17, the district court noted that the 

record had become “voluminous and confusing” and that “it 

is difficult, if not impossible for the court to ascertain what 
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has and has not been requested and what has and what has not 

been appropriately answered.” It ordered the parties to submit 

all discovery disputes to the district court in a specific outline 

format and to meet and discuss the outline in advance of the 

next hearing. The district court attached an outline form for 

the parties to fill in and provided explicit instructions on how 

to do so.

On February 11, 2015, Ewers filed a motion to compel “B” 

discovery or, in the alternative, dismissal of Appellees’ answer, 

which concerned Appellees’ responses to requests for admission and interrogatories. A hearing was held on February 23. 

Ewers used a paragraph format to summarize the litigation and 

did not comply with the outline format required by the district 

court’s previous order, claiming at the hearing that the issues 

were too complex for an outline format. On February 25, the 

district court ruled that all discovery matters not presented in 

the format it had ordered were waived. However, the district 

court did order that all interrogatories must be signed under 

oath within 10 days.

Appellees subsequently submitted responses to interrogatories signed under oath by Sherri Miller, not Young, who had 

previously signed the responses, but not under oath.

On April 3, 2015, Ewers filed an “Amended Motion to 

Compel ‘B’ Discovery or . . . Dismissal of Defendants’ 

Answers and/or . . . Hold Defendants in Contempt and/or . . . 

Disqualify Defendants’ Counsel for a Conflict of Interests.” 

The motion stated that Appellees’ counsel had committed 

repeated and intentional violations of court and ethical rules. 

On April 14, the district court denied all relief requested by 

Ewers’ motion.

On November 30, 2016, following the sua sponte recusal of 

the initial judge, Ewers filed a motion to dismiss Appellees’ 

answers or, in the alternative, to deem requests for admission 

admitted. The motion alleged that Appellees had repeatedly 

refused to answer discovery requests, comply with orders of 

the court regarding discovery, and timely answer requests for 

admission. On December 30, with a new judge presiding, the 
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district court overruled the motion, finding the district court’s 

previous orders were the law of the case. Regarding discovery 

documents now addressed on appeal, it observed that Ewers 

had refused to use the outline format ordered by the previous 

judge. The district court further noted that all prior motions to 

deem requests for admission admitted or dismiss Appellees’ 

answers were denied by the district court and that Ewers 

had failed to show a fundamental change or that the earlier 

orders were erroneous. In addition to denying Ewers’ latest 

motion, the district court ruled that it was frivolous and granted 

Appellees attorney fees of $500.

On January 27, 2017, the district court made a journal entry 

memorializing that Ewers had been given 10 days to pay 

the $500 attorney fees pursuant to the December 30, 2016, 

order.

Ewers now appeals the order dated December 30, 2016, and 

the journal entry dated January 27, 2017.

ASSIGNMENTS OF ERROR

Ewers assigns, renumbered and restated, that the district 

court erred in (1) failing to correctly apply the law by not 

deeming the request for admission as admitted, failing to 

impose Neb. Ct. R. Disc. § 6-337 sanctions on Appellees for 

failure to follow Nebraska Court Rules of Discovery in Civil 

Cases, such as dismissing the answer of Appellees; (2) failing 

to find there is a genuine issue of material fact in this case 

and granting Appellees’ motion for summary judgment; and 

(3) failing to find that Reeves was also the proximate cause of 

Ellis’ pain and suffering.

STANDARD OF REVIEW

[1,2] Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of 

an abuse of discretion. Moreno v. City of Gering, 293 Neb. 

320, 878 N.W.2d 529 (2016). The party asserting error in a 

discovery ruling bears the burden of showing that the ruling 

was an abuse of discretion. Id.
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[3] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. White v. Busboom, 297 Neb. 717, 901 N.W.2d 

294 (2017).

ANALYSIS

Discovery

Over the course of the litigation, Ewers filed several 

motions to compel discovery, to impose sanctions, to deem 

her requests for admission admitted, and to dismiss Appellees’ 

answers, all of which the district court denied. Now on appeal, 

Ewers claims that the district court erroneously applied the 

law by not deeming her requests for admission admitted 

and by declining to impose § 6-337 sanctions on Appellees 

for failure to follow Nebraska Court Rules of Discovery in 

Civil Cases.

[4,5] Ewers correctly notes that the Nebraska Supreme 

Court rules relating to discovery provide that a party may 

serve on another party written requests for admission and that 

unless answered, objected to within 30 days after service, or 

requested to be withdrawn, the requests are deemed admitted. 

See Neb. Ct. R. Disc. § 6-336. We have held that a party’s 

failure to make a timely and appropriate response to a request 

for admission constitutes an admission of the subject matter of the request, which matter is conclusively established 

unless, on motion, the court permits withdrawal of the admission. Tymar v. Two Men and a Truck, 282 Neb. 692, 805 

N.W.2d 648 (2011). We have recognized that § 6-336 is selfenforcing, without the necessity of judicial action to effect an 

admission which results from a party’s failure to answer or 

object to a request for admission. Tymar v. Two Men and a 

Truck, supra.

[6,7] We have noted, however, that § 6-336 is not selfexecuting. Tymar v. Two Men and a Truck, supra. Thus, a party 
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that seeks to claim another party’s admission, as a result of 

that party’s failure to respond properly to a request for admission, must prove service of the request for admission and the 

served party’s failure to answer or object to the request and 

must also offer the request for admission as evidence. Id. If the 

necessary foundational requirements are met and no motion is 

sustained to withdraw an admission, a trial court is obligated 

to give effect to the provisions of § 6-336 which require that 

the matter be deemed admitted. Tymar v. Two Men and a 

Truck, supra.

In her reply brief, Ewers points to several exhibits and 

argues that the record reflects compliance with the prerequisites to deem requests for admission admitted pursuant to 

§ 6-336. One exhibit cited is an affidavit from counsel for 

Ewers verifying the accuracy of several exhibits and purporting to verify delivery of discovery. The affidavit states in part, 

“Exhibit 73, Delivery to ACH, 11/20/13.” Exhibit 73 itself 

was not attached to the affidavit. Exhibit 73, along with other 

exhibits in the record referenced by Ewers, contains the front 

page of Ewers’ request for admission and the responses from 

ACH. These exhibits do not contain, as required, a complete 

copy of the request for admission or a copy of any certificate 

of service (notice of service) that would have been completed 

in conjunction with the admissions. As the district court specifically pointed out, this lack of evidence prevented it from 

ruling on Ewers’ motions, and it ultimately resulted in the 

district court’s requesting that Ewers set forth her requested 

discovery and any alleged failure to respond in a format that 

the district court could use in its determination. Ewers, however, failed to comply with the order. Consequently, we find no 

abuse of discretion by the district court in declining to impose 

sanctions or to deem Ewers’ requests for admission admitted 

by Appellees.

Summary Judgment

Ewers assigns that the district court erred in granting 

Appellees’ motion for summary judgment. As the parties 
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moving for summary judgment, Appellees had the burden 

to show that no genuine issue of material fact exists and to 

produce sufficient evidence to demonstrate that they were 

entitled to judgment as a matter of law. See Barnes v. American 

Standard Ins. Co. of Wis., 297 Neb. 331, 900 N.W.2d 22 

(2017). In reviewing a summary judgment, we view the evidence in the light most favorable to the party against whom 

the judgment was granted and give that party the benefit of all 

reasonable inferences deducible from the evidence. White v. 

Busboom, 297 Neb. 717, 901 N.W.2d 294 (2017).

[8,9] Here, the substantive issue is whether there is a 

genuine issue of material fact that Appellees committed medical malpractice when treating Ellis at the jail. Currently, in 

Nebraska, in a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate 

the generally recognized medical standard of care, that there 

was a deviation from that standard by the defendant, and that 

the deviation was a proximate cause of the plaintiff’s alleged 

injuries. Cohan v. Medical Imaging Consultants, 297 Neb. 111, 

900 N.W.2d 732 (2017). In the medical malpractice context, 

the element of proximate causation requires proof that the 

physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff. Id.

Ewers claims that Halstead’s expert opinion, that a medical examination should occur when someone is complaining 

of chest pain or shortness of breath, is sufficient proof of 

the standard of care. Therefore, Ewers contends that Reeves 

should have examined Ellis in person on June 22, 2010, and 

that without such an examination or admission to the hospital 

on June 22, a breach of the standard of care occurred. On our 

review, we give Ewers the benefit of this inference that the 

standard of care had been breached by Appellees. See White v. 

Busboom, supra.

[10-12] However, a defendant’s negligence is not actionable unless it is a proximate cause of the plaintiff’s injuries 

or is a cause that proximately contributed to them. Hamilton 
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v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004). A proximate 

cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have 

occurred. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 

17 (2010). A defendant’s conduct is a proximate cause of an 

event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have 

occurred without that conduct. Worth v. Kolbeck, 273 Neb. 

163, 728 N.W.2d 282 (2007). Appellees assert that there was 

no expert testimony in this record, from anyone qualified to 

render a medical opinion, that the breach of the standard of 

care by Reeves on June 22, 2010, was causally connected to 

the fatal pulmonary embolism suffered by Ellis on June 25. 

We agree.

To support her position, Ewers points to Halstead’s testimony. Although Halstead opined that Reeves breached the 

standard of care, she did not causally connect Reeves’ failure to examine Ellis in person on June 22, 2010, to his fatal 

pulmonary embolism on June 25, nor did she opine that 

such an examination would have resulted in a different outcome. In other words, Halstead offered no testimony showing causation.

Ewers also relies on Black’s statement that “[e]arly diagnosis is better in all cases because you want to stop the extension and additional clots from forming, and you do that with 

anti-coagulation.” She argues that this evidence translates into 

causation pursuant to Richardson v. Children’s Hosp., 280 Neb. 

396, 787 N.W.2d 235 (2010). In Richardson, we held that an 

expert’s opinion that the outcome would have been different 

had a patient, who died of necrotizing hemorrhagic pancreatitis, earlier received intravenous fluids was sufficiently akin to 

a degree of medical certainty and was sufficient to establish 

causation for purposes of a medical malpractice case. In so 

holding, we reiterated the principle that expert opinion is to be 

judged in view of the entirety of the expert’s opinion and is not 

validated or invalidated solely on the basis of the presence or 
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lack of the magic words “‘reasonable medical certainty.’” Id.

at 405, 787 N.W.2d at 243.

In countering, Appellees note that Black’s statement that 

“[e]arly diagnosis is better in all cases . . .” does not prove 

causation because it was a general medical opinion taken out 

of context. Appellees further assert that Ewers is misguided 

in relying on Black’s hypothetical opinion that if Ellis had 

been examined on June 22, 2010, and if a nonfatal pulmonary embolus had been discovered on that date, his chances 

of recovery would have been higher. As Black emphasized in 

her testimony, the facts in Ellis’ case were different from the 

facts posed in the hypothetical question. In addition, Black 

opined that Ellis did not experience a pulmonary embolus on 

June 22, because he did not complain of any pain from June 

22 to 25 and had himself advised medical staff of his history 

of anxiety-related chest pain. Black stated that if Ewers had 

actually suffered a pulmonary embolus on June 22, his condition would have worsened from that point forward to June 

25. And the facts here show that after reporting his symptoms on June 22, Ellis did not complain of pain again until 

June 25.

[13] Expert testimony is almost always required to prove 

proximate causation. Thone v. Regional West Med. Ctr., 275 

Neb. 238, 745 N.W.2d 898 (2008). In the absence of expert 

testimony on causation, the finder of fact would be left to 

resort to guess, speculation, or conjecture as to the issue. See 

Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 

N.W.2d 782 (2000) (burden of proving cause of action is not 

sustained by evidence from which jury can arrive at its conclusions only by guess, speculation, conjecture, or choice of possibilities; there must be something more which would lead a 

reasoning mind to one conclusion rather than to another). Our 

previous cases discussing the sufficiency of expert opinions 

in a medical malpractice case have held that expert medical 

testimony based on “could,” “may,” or “possibly” lacks the 

definiteness required to meet the claimant’s burden to prove 
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causation. See, e.g., Paulsen v. State, 249 Neb. 112, 541 

N.W.2d 636 (1996). As we have observed:

Our well-known preference for the use of the phrases 

“reasonable degree of medical certainty” or “reasonable 

degree of probability” is an indication to courts and parties of the necessity that the medical expert opinion must 

be stated in terms that the trier of fact is not required to 

guess or speculate at the cause of the injury.

Id. at 121, 541 N.W.2d at 643. Here, Black’s answer to a 

hypothetical question assuming facts not present does not rise 

to the level of certainty required and would invite the trier of 

fact to speculate. Therefore, Black’s testimony on early diagnosis being beneficial did not establish causation as argued by 

Ewers. But whether Black, a registered nurse, could render an 

opinion on medical causation was not raised as an issue in this 

case, and we make no comment thereon.

Ewers further claims that Appellees withheld an email from 

Black which may have affected her opinions. However, Ewers 

took Black’s deposition, apparently did not provide her the 

email during the deposition, but ultimately named Black as her 

expert even though Black had not seen the email. Under these 

circumstances, Ewers had the opportunity to question Black 

about the email and could have supplemented her deposition or 

other discovery. Therefore, this argument has no merit.

In sum, even giving Ewers the benefit of every reasonable inference, without any expert testimony showing that 

Appellees’ actions were the proximate cause of the fatal pulmonary embolism suffered by Ellis on June 25, 2010, or were 

a cause that proximately contributed to it, the district court 

correctly found that there was no genuine issue of material fact 

as to causation and that Appellees were entitled to judgment as 

a matter of law.

Lastly, Ewers claims that the district court erred in failing 

to find that Reeves was also the proximate cause of Ellis’ 

pain and suffering. Ewers argues that Black’s description of 

the pain inflicted by an embolus traveling through a patient’s 
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298 Nebraska Reports

EWERS v. SAUNDERS COUNTY

Cite as 298 Neb. 944

lung established proximate cause. However, this argument 

also fails due to the absence of expert testimony establishing a 

causal connection between Reeve’s conduct on June 22, 2010, 

and the pulmonary emboli on June 25. Evidence of the pain 

Ellis suffered on June 25 would apply to damages, not causation. Therefore, this assignment of error is without merit.

CONCLUSION

For the reasons stated above, we conclude that the district 

court did not abuse its discretion in declining to deem Ewers’ 

requests for admission admitted, to dismiss Appellees’ answers 

to discovery, and to sanction Appellees. Further, finding no 

genuine issue of material fact as to causation, we conclude that 

the district court did not err in granting Appellees’ motion for 

summary judgment. We affirm.

Affirmed.

Wright, J., not participating.