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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

James Beran, appellant, v. Nebraska Orthopaedic 

and Sports Medicine, P.C., appellee.

___ N.W.2d ___

Filed August 4, 2020. No. A-19-783.

1. Evidence: Appeal and Error. Generally, the control of discovery is a 

matter for judicial discretion, and decisions regarding discovery will be 

upheld on appeal in the absence of an abuse of discretion.

2. Appeal and Error. Appellate review of a district court’s use of inherent 

power is for an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. Courts. Nebraska courts, through their inherent judicial power, have 

the authority to do all things necessary for the proper administration of 

justice.

5. Trial: Courts. A trial court has broad discretion to make discovery and 

evidentiary rulings conducive to the conduct of a fair and orderly trial.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.

Greg Garland, of Garland MedMal Law, L.L.C., Jerry 

Fichter, of Fichter Law Office, and Kathy Pate Knickrehm for 

appellant.

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

appellee.

Moore, Chief Judge, and Riedmann and Arterburn, 

Judges.

Nebraska Supreme Court Online Library

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

08/11/2020 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

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.”
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

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 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

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 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

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 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

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 

did not have a deep-seated infection of the shoulder joint. He 

explained that a superficial infection can progress to a deeper 

joint infection, which would then typically require additional 

and more intensive treatment such as intravenous antibiotics. 

If a patient with a deep joint infection does not get the necessary treatment, the infection will generally progress resulting in 

symptoms such as more inflammation and more joint destruction, as well as symptoms such as fever, chills, and potentially 

sepsis, hypotension, and acidosis; however, Beran showed none 

of those symptoms.

After hearing all of the evidence, the jury found that Beran 

had not met his burden of proof and entered a verdict in favor 

of Nebraska Orthopaedic. Beran appeals.
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

ASSIGNMENT OF ERROR

Beran assigns that the district court abused its discretion in 

excluding Hutton’s opinion testimony.

STANDARD OF REVIEW

[1-3] Generally, the control of discovery is a matter for 

judicial discretion, and decisions regarding discovery will be 

upheld on appeal in the absence of an abuse of discretion. 

Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017). 

Similarly, appellate review of a district court’s use of inherent 

power is for an abuse of discretion. Id. An abuse of discretion 

occurs when a trial court’s decision is based upon reasons that 

are untenable or unreasonable or if its action is clearly against 

justice or conscience, reason, and evidence. Id.

ANALYSIS

Beran argues that the district court abused its discretion 

in excluding the opinion testimony of Hutton that Beran had 

an infection in his shoulder following his initial surgery. He 

relies on the factors elicited in Norquay v. Union Pacific 

Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987), and on 

In-Line Suspension v. Weinberg & Weinberg, 12 Neb. App. 908, 

687 N.W.2d 418 (2004), which applies the Norquay factors. 

Nebraska Orthopaedic argues that Norquay does not apply, citing Putnam v. Scherbring, supra.

In Putnam v. Scherbring, supra, the Nebraska Supreme 

Court recognized that its analysis in Norquay v. Union Pacific 

Railroad, supra, was directed to a trial court’s authority to preclude testimony as a discovery sanction and that in Norquay, 

a party failed to comply with a request for discovery and 

additionally failed to seasonally supplement its answer to an 

interrogatory. In Norquay, there was no progression order and 

the trial court did not find that the testimony in question was 

untimely disclosed; therefore, the trial court’s authority to preclude testimony was premised solely upon its power to issue a 

discovery sanction under rule 37 of the Nebraska Court Rules 

of Discovery, now codified as Neb. Ct. R. Disc. § 6-337. To 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

ensure a balanced approach to punish those whose conduct 

warrants a § 6-337 sanction and to deter those who may be 

inclined or tempted to frustrate the discovery process, the court 

in Norquay outlined several factors a court should consider 

before imposing a sanction.

[4] The Supreme Court found that the facts in Putnam v. 

Scherbring, supra, however, established that the trial court’s 

exclusion of evidence was not a discovery sanction like in 

Norquay; rather, it was the court’s enforcement of its previous 

orders which had extended discovery deadlines and continued 

trial dates. The Supreme Court observed that

the parties stipulated to a proposed progression order 

with a discovery deadline and the district court adopted 

and entered the progression order. The court was initially 

flexible and amended the order and continued trial three 

times to accommodate Putnam. But, it ultimately elected 

to enforce its progression order when, shortly before 

trial, Putnam attempted to disclose new expert opinions 

and evidence which would undoubtedly cause further 

delay. This was fundamentally different from imposing 

a sanction for a party’s attempt to abuse the discovery process.

Putnam v. Scherbring, 297 Neb. at 877, 902 N.W.2d at 146. 

The Supreme Court reiterated that Nebraska courts, through 

their inherent judicial power, have the authority to do all things 

necessary for the proper administration of justice and found it 

apparent that the trial court relied on this authority and not its 

authority to issue a discovery sanction. Putnam v. Scherbring, 

297 Neb. 868, 902 N.W.2d 140 (2017). Therefore, the court 

concluded that the correct analytical framework did not require 

the trial court to consider the Norquay factors. Putnam v. 

Scherbring, supra.

Likewise, in the present case, the district court entered an 

initial progression order in December 2017, requiring the parties to disclose information regarding their expert witnesses at 

least 90 days prior to August 17, 2018. The order specifically 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

informed the parties that expert testimony would not be permitted at trial if it was not disclosed to the opposing party. At that 

time, trial was scheduled to begin in September. The progression order was modified several times, pursuant to the court’s 

granting several continuances of the trial date.

Hutton’s trial deposition occurred on February 20, 2019. At 

that time, the operative progression order mandated that expert 

witness disclosures occur 90 days prior to the pretrial conference scheduled for February 22. Thus, Nebraska Orthopaedic 

objected to the opinion testimony Hutton offered regarding the 

existence of an infection in Beran’s shoulder after the initial 

surgery on the ground that it had not been disclosed, and the 

objection was later sustained by the court as an undisclosed 

opinion. Nebraska Orthopaedic does not contend that Beran 

failed to comply with a discovery request or failed to seasonally supplement interrogatory answers; rather, it complains that 

Hutton’s opinion was not disclosed until his deposition was 

being taken for trial purposes. Therefore, similar to Putnam 

v. Scherbring, supra, we find that the district court’s decision 

to exclude Hutton’s opinion testimony was not a discovery 

sanction, but instead, was the court’s enforcement of its progression orders which imposed a deadline by which the parties were required to disclose their expert witnesses and the 

contents of their testimony. Accordingly, the Norquay factors 

are not applicable here. (We note that on February 25, which 

was 5 days after Hutton’s deposition, the district court entered 

an amended progression order but this does not affect our 

analysis because the deposition was taken for the use at trial; 

hence, Hutton would not be available for additional examination at trial.)

[5] Based upon its conclusion that the trial court was not 

required to consider the Norquay factors, the Supreme Court 

in Putnam v. Scherbring, supra, reviewed the trial court’s 

exercise of inherent power for an abuse of discretion. The 

Supreme Court emphasized that a court abuses its discretion 

when its decision is based upon reasons that are untenable 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

or unreasonable or if its action is clearly against justice or 

conscience, reason, or evidence. Id. This is a fairly deferential 

standard. Id. Moreover, a trial court has broad discretion to 

make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial. Id.

In finding no abuse of discretion in that case, the Supreme 

Court in Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 

(2017), emphasized that there was no evidence that the trial 

court based its decision to exclude untimely evidence for any 

reasons that were untenable or unreasonable. It noted that in 

fact, the record reflected that the court carefully considered its 

decision and sought to achieve a balanced outcome for both 

parties. For those reasons, the Supreme Court could not find 

that the court’s action was clearly against justice or conscience, 

reason, and evidence and quoted the trial judge’s comment that 

“‘proposed scheduling orders have to mean something.’” Id. at 

878, 902 N.W.2d at 147.

Similarly, here, the record and the district court’s comments 

establish that its decision was not untenable or unreasonable. 

The initial progression order was extended several times as 

the trial date was repeatedly continued. The initial progression order warned the parties that failure to disclose information about an expert witness would result in the exclusion of 

that witness’ testimony. And given the number of times the 

progression order was amended, Beran had ample time to 

disclose Hutton’s opinion. Hutton’s request for “thousands of 

dollars to do anything” does not excuse Beran from making the 

required disclosures.

The fact that Hutton, one of Beran’s treating physicians, 

would testify as a witness was not a surprise to either party. 

In fact, Nebraska Orthopaedic included Hutton as a defense 

witness on its mandatory disclosures, indicating that “Hutton 

would possess information regarding his treatment, surgical 

care and prognosis for [Beran] subsequent to his treatment 

and surgeries at [Nebraska Orthopaedic].” However, Nebraska 

Orthopaedic had no notice prior to Hutton’s trial deposition 
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BERAN v. NEBRASKA ORTHO. & SPORTS MEDICINE

Cite as 28 Neb. App. 686

that Beran was going to ask him for an expert opinion based 

on facts beyond his personal treatment of Beran.

Beran argues that he had no way of knowing what Hutton’s 

opinion would be until Hutton’s deposition. However, Beran 

testified at his deposition in February 2018 that it was Hutton 

who told him an infection was responsible for ruining the soft 

tissue in his shoulder. And the additional information Beran 

attached to the December 2018 letter to Hutton indicates that he 

anticipated eliciting information from him beyond that which 

Hutton observed through his treatment of Beran.

At the hearing on Beran’s motion to reconsider the exclusion of Hutton’s opinion, Beran admitted that it was Hutton 

who initially told him that his shoulder problems originated 

with an infection that happened from Schwab’s care. Based on 

this, 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. Thus, given that 

the progression order was extended several times, Beran had 

knowledge early on of Hutton’s opinion regarding an infection, and the evidence that Beran contemplated asking Hutton 

for an opinion based on facts beyond his personal knowledge, 

we conclude that the district court did not abuse its discretion 

in enforcing its progression order and excluding the opinion 

testimony of Hutton.

CONCLUSION

For the foregoing reasons, we affirm the order of the district court.

Affirmed.