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Natasha Carrizales, individually and on behalf of 

Nina Carrizales, a minor, as her guardian and next 

friend, and Nina Carrizales, by and through her 

mother, guardian, and next friend, Natasha 

Carrizales, appellants, v. Creighton Saint 

Joseph Regional Healthcare System, 

LLC, et al., appellees.

___ N.W.2d ___

Filed August 26, 2022. No. S-21-150.

1. Judgments: Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a 

conclusion independent of the trial court; however, findings of the lower 

court as to underlying factual disputes, if any, in regard to the jurisdictional issue will be upheld unless they are clearly erroneous.

2. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. 

§ 25-217 (Reissue 2016) is self-executing, so that an action is dismissed 

by operation of law, without any action by either the defendant or the 

court, as to any defendant who is named in the action and not served 

with process within the time set forth in the statute.

3. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After 

dismissal of an action by operation of law under Neb. Rev. Stat. 

§ 25-217 (Reissue 2016), there is no longer an action pending and the 

district court has no jurisdiction to make any further orders except to 

formalize the dismissal.

4. 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.

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

power is for an abuse of discretion.

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

a trial court’s decision is based upon reasons that are untenable or 

Nebraska Supreme Court Online Library

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

10/28/2022 12:05 AM CDT
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unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

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

the authority to do all things necessary for the proper administration 

of justice.

8. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

9. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

10. Summary Judgment: Malpractice: Physicians and Surgeons: 

Affidavits: Proof. At the summary judgment stage, it is well settled that 

a physician’s self-supporting affidavit suffices to make a prima facie 

case that the physician did not commit medical malpractice.

11. Expert Witnesses. A court should not admit expert testimony if it 

appears the witness does not possess facts that will enable him or her 

to express an accurate conclusion, as distinguished from a mere guess 

or conjecture.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Affirmed.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellants.

Joseph S. Daly and Mary M. Schott, of Evans & Dixon, 

L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Natasha Carrizales, individually and on behalf of her 

minor daughter, Nina Carrizales (individually and collectively 

Carrizales), brought a medical malpractice action alleging negligence during Nina’s birth. The district court found that one 
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defendant was dismissed by operation of law as a result of 

Carrizales’ failure to timely serve it. The district court granted 

summary judgment in favor of the remaining defendants after 

granting a motion to strike Carrizales’ expert witness. Carrizales 

appeals these rulings. Finding no error, we affirm.

I. BACKGROUND

Carrizales filed her lawsuit on October 30, 2013. In her 

complaint, Carrizales alleged that on October 30, 2011, she 

was admitted to an Omaha, Nebraska, hospital and that she 

gave birth to her daughter that day. Carrizales also alleged 

that various doctors responsible for her and her daughter’s 

care negligently failed to respond to signs of fetal distress and 

that, as a result, her daughter was born with severe disabilities, 

which will reduce her life expectancy and require extended 

medical attention throughout the course of her life.

Among the defendants named in the lawsuit were Creighton 

University Medical Center-Saint Joseph Hospital (Creighton 

University Medical Center) and Creighton University. Carrizales 

alleged that Creighton University Medical Center operated 

the hospital at which the birth took place and that Creighton 

University employed or granted privileges to practice medicine 

at the hospital to several individual defendants. The individuals named as defendants included three doctors: Caron J. 

Gray, Nicholas L. Wulf, and Richard G. Arms III (collectively 

the doctors). Carrizales alleged that the doctors provided care 

and treatment to Carrizales and her daughter during the course 

of Carrizales’ hospital stay.

At issue in this appeal is the district court’s disposition of 

Carrizales’ claims against Creighton University and the doctors. Carrizales filed a motion for default judgment against 

Creighton University, alleging that it had failed to respond to the 

complaint. The district court concluded, however, that because 

Carrizales failed to serve Creighton University within the deadline provided at the time in Neb. Rev. Stat. § 25-217 (Reissue 

2016), Creighton University was dismissed by operation of 
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law. The district court granted summary judgment in favor of 

the doctors after entering an order striking Carrizales’ expert 

witness. The district court also denied Carrizales’ motion to 

alter or amend. Additional background regarding these issues 

is provided in the analysis section below.

II. ASSIGNMENTS OF ERROR

Carrizales assigns, condensed and restated, that the district court erred (1) in finding that Creighton University was 

dismissed by operation of law under § 25-217, (2) in failing 

to grant her motion for default judgment against Creighton 

University, (3) in striking her expert witness, (4) in granting 

the doctors’ motion for summary judgment, and (5) in denying 

her motion to alter or amend.

III. ANALYSIS

1. Dismissal of Creighton University

(a) Background

As noted above, Carrizales filed her lawsuit on October 30, 

2013. On October 31, Carrizales filed a praecipe for a summons to be served on Creighton University, in care of its registered agent, James S. Jansen, by certified mail. The clerk of 

the district court issued the summons the same day consistent 

with the instructions of the praecipe. The summons was No. 

226226. There is no dispute that Carrizales did not immediately serve this summons.

Months later, on April 16, 2014, Carrizales filed a second praecipe to issue a summons. Like the October 2013 

praecipe, it requested a summons to be served on Creighton 

University, in care of its registered agent, Jansen, by certified 

mail. Later the same day, the clerk of the court issued a summons. The summons, however, listed the party to be served as 

Creighton University Medical Center. This second summons 

was No. 255379.

Carrizales filed a service return in the district court on April 

28, 2014. The service return listed the No. 226226 summons 
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in the upper right-hand corner. It indicated that copies of the 

summons were sent by certified mail to “Creighton University 

Medical Center” care of “James S. Jansen, RA” on April 17. 

An accompanying return receipt showed the certified mail was 

received April 21.

Over 4 years later, in July 2018, Carrizales filed a motion 

asking the district court to enter a default judgment against 

Creighton University. It alleged that Creighton University had 

been served with the summons, but had not responded to the 

complaint. At the hearing on Carrizales’ motion for default 

judgment, Creighton University argued that a default judgment 

should not be entered against it, because it was not obligated to 

respond to Carrizales’ complaint. Creighton University argued 

that it was not obligated to respond because Carrizales either 

served the wrong party or served the October 2013 summons 

after it expired.

In support of the motion for default judgment, Carrizales 

offered an affidavit signed by her counsel. That affidavit stated 

that Carrizales “filed a Praecipe for issuance of Summons and 

Complaint upon Creighton University” on April 14, 2014. 

It also stated that “[w]ithin ten days of the issuance of the 

Summons by the Clerk, [Carrizales] caused a Summons to 

be issued and said Summons was served via certified mail 

. . . . A copy of the Summons and Complaint are attached as 

Exhibit 2.” The attached exhibit 2 was a copy of summons 

No. 255379, dated April 16, 2014. The affidavit also stated 

that “[s]ervice was accomplished upon Creighton University 

by delivery of a Summons and Complaint upon its registered 

agent . . . on or about April 21, 2014, as reflected in the return 

of service, a copy of which is attached hereto as Exhibit 6.” 

The attached exhibit 6 is a copy of the service return that was 

filed with the district court, which lists No. 226226 in the 

upper right-hand corner.

The district court entered a written order in December 

2020, addressing Carrizales’ motion for default judgment. In 

the order, the district court observed that the service return 
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Carrizales filed listed the document number associated with 

the summons issued in October 2013. The district court found 

that the October 2013 summons was not delivered until April 

2014 and was thus not sent within 10 days of issuance as 

required by Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue 2016). 

Based on this determination, the district court concluded 

that Carrizales failed to serve Creighton University within 6 

months of the filing of her lawsuit and that, under § 25-217, 

the action against Creighton University was thus dismissed 

without prejudice by operation of law.

(b) Standard of Review

[1] By finding that Carrizales’ claims against Creighton 

University were dismissed by operation of law, the district 

court concluded it lacked subject matter jurisdiction over those 

claims. See, Stone Land & Livestock Co. v. HBE, 309 Neb. 

970, 962 N.W.2d 903 (2021); Kovar v. Habrock, 261 Neb. 

337, 622 N.W.2d 688 (2001). The question of jurisdiction is a 

question of law, upon which an appellate court reaches a conclusion independent of the trial court; however, findings of the 

lower court as to underlying factual disputes, if any, in regard 

to the jurisdictional issue will be upheld unless they are clearly 

erroneous. Walksalong v. Mackey, 250 Neb. 202, 549 N.W.2d 

384 (1996).

(c) Analysis

Carrizales argues that rather than finding that Creighton 

University was dismissed by operation of law, the district 

court should have entered a default judgment against it. We 

focus our attention on the district court’s determination that 

Creighton University was dismissed by operation of law. If that 

determination is correct, the district court obviously did not 

err by declining to enter a default judgment against Creighton 

University.

Carrizales makes both factual and legal arguments in contending that the district court erred by finding that Creighton 

University was dismissed by operation of law pursuant to 
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§ 25-217. She argues that the district court erred by making 

the factual finding that the summons that Carrizales served in 

April 2014 was the summons that was issued in October 2013. 

Alternatively, she argues that even if she served the summons 

issued in October 2013 in April 2014, the district court erred 

by finding as a matter of law that § 25-217 applied.

We will address Carrizales’ factual argument first. Carrizales 

argues that her counsel’s affidavit established that the summons served in April 2014 was the summons issued earlier 

that month and that there is no evidence to the contrary. We 

disagree with Carrizales that her counsel’s affidavit conclusively established that the summons served in April 2014 was 

the summons issued that month. Carrizales’ counsel clearly 

averred that he served “a Summons” in April 2014, but it is 

not clear to us from the face of the affidavit that he was averring that he served the summons the clerk had issued earlier 

that month. Furthermore, as noted above, Carrizales’ counsel 

averred in the affidavit that service of “a Summons” was 

accomplished in April 2014 “as reflected in the return of service.” The service return, however, listed the document number 

corresponding to the summons issued in October 2013. We 

also note that while counsel for Carrizales expressed a belief at 

oral argument that the summons served in April 2014 was the 

summons issued in April 2014, he also acknowledged “some 

chance” that it was actually the summons issued in October 

2013 that was served in April 2014. Given the evidence before 

the district court, we do not find that its determination that 

Carrizales served the summons issued in October 2013 was 

clearly erroneous.

Having found no grounds to reverse the district court’s decision based on its factual determination, we turn to Carrizales’ 

legal argument. Here, Carrizales argues that even if the summons served on Creighton University was not served within 

10 days of issuance as required by § 25-505.01(1)(c), she 

nonetheless “served” Creighton University within the deadline 

set by § 25-217. She also argues that if Creighton University 
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had some objection to the summons or service of process, 

it was obligated to file a motion under Neb. Ct. R. Pldg. 

§ 6-1112(b)(4) or (5). By not filing such a motion, she argues, 

Creighton University waived any objection to the service it 

received.

At the time Carrizales filed her complaint, § 25-217 provided that an action “shall stand dismissed without prejudice 

as to any defendant not served within six months from the 

date the complaint was filed.” Carrizales’ argument requires 

us to determine what a plaintiff must do in order for a defendant to be “served” for purposes of the version of § 25-217 in 

effect at the time the complaint was filed in this case. On this 

point, Carrizales suggested at oral argument that a defendant 

is “served” for purposes of § 25-217 when it actually receives 

a copy of the summons and complaint pursuant to a method 

of service authorized by statute. In Carrizales’ view then, 

Creighton University was “served” because service by certified 

mail is authorized by statute and it actually received a copy of 

the complaint with a summons, albeit an expired one. We are 

not persuaded by this argument.

A similar question was at issue in State Farm Mut. Auto 

Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 

(2004). There, we had to determine when service for purposes of § 25-217 occurred in a situation in which a plaintiff 

attempted to serve a defendant by publication. We considered § 25-217 in pari materia with Neb. Rev. Stat. § 25-519 

(Reissue 2016), the statute directing how service by publication is to be accomplished, and concluded that the defendant 

was not served under § 25-217 until the publication had been 

printed in a newspaper in 3 successive weeks, as required by 

§ 25-519.

In line with State Farm Mut. Auto Ins. Co., supra, we 

believe it appropriate in this case to consider § 25-217 in pari 

materia with § 25-505.01(1)(c). The latter statute directs how 

service by certified mail is to be accomplished—by sending the summons to the defendant by certified mail “within 
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ten days of issuance.” Id. In this case, however, the district 

court found that Carrizales failed to send a summons to 

Creighton University within 10 days of its issuance, and, as we 

have stated, that finding was not clearly erroneous. Because 

Carrizales failed to follow the statute that directs how certified mail service is to be accomplished, we find that Creighton 

University was not served for purposes of § 25-217.

[2,3] We likewise find no merit to Carrizales’ argument 

that without a motion from Creighton University under 

§ 6-1112(b)(4) or (5) of the rules of pleading, the district court 

could not find that the claim against Creighton University was 

dismissed by operation of law pursuant to § 25-217. As we 

have explained on many occasions, § 25-217 is self-executing, 

so that an action is dismissed by operation of law, without any 

action by either the defendant or the court, as to any defendant who is named in the action and not served with process 

within the time set forth in the statute. See Davis v. Choctaw 

Constr., 280 Neb. 714, 789 N.W.2d 698 (2010). After dismissal 

of an action by operation of law under § 25-217, there is no 

longer an action pending and the district court has no jurisdiction to make any further orders except to formalize the dismissal. Davis, supra. That is what the district court did here 

with respect to Creighton University, and for reasons we have 

explained, we find that was not erroneous.

2. Striking of Expert Witness

(a) Background

In September 2017, after this case had been pending for 

nearly 4 years, the doctors filed a motion requesting that 

the district court enter an order striking Dr. Fred Duboe as 

an expert witness for Carrizales. In the motion to strike, the 

doctors asserted that after Carrizales designated Duboe, a 

physician based in Illinois, as an expert witness in August 

2015, their counsel contacted counsel for Carrizales on several 

occasions between March 2016 and August 2017. The motion 

claimed that the doctors’ counsel asked that Carrizales’ counsel 
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provide dates on which Duboe could be deposed, but that no 

deposition was ever scheduled.

In response to the doctors’ September 2017 motion to strike, 

the district court issued an order on February 22, 2018. The 

order did not grant the motion to strike, but directed that 

Carrizales “shall within 14 days from the date hereof find 

and determine dates upon which [Duboe] can be available for 

deposition, which dates must be reasonably agreeable to [the 

doctors].” It also provided that “[s]aid deposition must be taken 

and concluded within two months from the date hereof.” The 

order expressly warned that if “said deposition is not completed within two months from the date hereof, the Court will 

strike [Duboe] as an expert witness.”

On May 3, 2018, the doctors filed another motion to strike 

Duboe as an expert witness, asserting that Duboe’s deposition had not been taken and dates had not been identified for 

such a deposition. At the hearing on this motion to strike, 

the doctors offered and the district court received copies 

of correspondence exchanged by counsel for the doctors, 

Carrizales, and Creighton University Medical Center after the 

district court’s order on the initial motion to strike. The correspondence included a letter from counsel for the doctors dated 

February 23, 2018, identifying several dates in March and 

April on which he would not be available for a deposition; a 

copy of an email dated March 8, 2018, from Carrizales’ counsel 

in which he asked the other attorneys if they would be available on April 23 to 25 for a deposition of Duboe and advised 

that there were limited days on which both he and counsel 

for the doctors were available; an email dated March 9, 2018, 

from Carrizales’ counsel stating that he was also available for 

a deposition of Duboe on April 11; an email dated March 9, 

2018, from counsel for the doctors saying that he would be 

available on April 23 and 24, but not April 11; and an email 

dated March 13, 2018, from counsel for Creighton University 

Medical Center stating that she was available for a deposition 

on April 23 and 24.
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The district court also received at the hearing an affidavit 

from Carrizales’ counsel. In the affidavit, he stated that by the 

time April 23 and 24, 2018, were identified as feasible dates 

for defense counsel, Duboe advised counsel for Carrizales 

that he was no longer available on those dates. Counsel for 

Carrizales also stated in his affidavit that while the first motion 

to strike, filed in September 2017, was pending, he sent an 

email to defense counsel indicating that Duboe would be available for a deposition on October 10, but that counsel for the 

doctors replied that he wanted to “wait and see what happens” 

at the hearing on the motion to strike.

The district court entered an order granting the motion to 

strike Duboe as an expert witness.

(b) Standard of Review

[4-6] 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.

(c) Analysis

Carrizales contends that the district court erred by striking 

Duboe as an expert witness. She first argues that the district 

court could not strike Duboe’s testimony because the doctors 

never served a notice of deposition or subpoena upon him. 

Alternatively, she argues that the district court’s order striking 

Duboe was unduly harsh.

We begin by addressing Carrizales’ argument that the district court could not strike Duboe’s testimony because the 

doctors did not serve a notice of deposition or subpoena 

upon him. In support of this argument, Carrizales points to 
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decisions in which courts have held that sanctions cannot 

be imposed under provisions analogous to Neb. Ct. R. Disc. 

§ 6-337 (Rule 37) for a deponent’s nonappearance at a deposition if the deponent was not compelled to appear by a proper 

subpoena. See, e.g., Laws v. Louisville Ladder, Inc., 146 So. 

3d 380 (Miss. App. 2014). We find those cases inapposite, 

because, as we will explain, we disagree that the district 

court order striking Duboe’s testimony was issued as a Rule 

37 sanction.

[7] Rule 37 provides “a range of sanctions” that a court may 

impose for specific violations of discovery rules. See John P. 

Lenich, Nebraska Civil Procedure, § 28:2 at 1199 (2022). In 

this case, Carrizales does not appear to have committed any 

of those violations. But Rule 37 sanctions are not the only 

tool trial courts have to manage discovery. Nebraska courts, 

through their inherent judicial power, have the authority to do 

all things necessary for the proper administration of justice. 

Putnam, supra. We have recognized that this inherent power 

authorizes trial courts to issue and enforce progression orders 

related to discovery. See id. Indeed, we have noted that trial 

courts are encouraged to issue and enforce such orders in order 

to meet case progression standards adopted by this court and 

that members of the bar are responsible for cooperating with 

the judiciary in attempting to meet these standards. See id., citing Neb. Ct. R. § 6-101(B)(5) and (C) (rev. 2013).

We understand the district court’s February 22, 2018, order 

to have been a type of progression order—it ordered deadlines 

by which the parties were to identify dates for Duboe’s deposition and by which the deposition was to be completed. It also 

specified that if the deposition was not completed by the deadline, Duboe would not be permitted to testify. We understand 

the district court to have enforced that order when it issued its 

subsequent order striking Duboe’s testimony.

The fact that the district court’s orders concerning Duboe’s 

deposition were issued pursuant to its inherent power does 

not shield them from all review. A trial court’s exercise of its 
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inherent power is reviewed for an abuse of discretion. See 

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

We have emphasized, however, that this is “a fairly deferential 

standard” and that a court abuses its discretion “when its decision is based upon reasons that are untenable or unreasonable

or if its action is clearly against justice or conscience, reason, 

and evidence.” Id. at 878, 902 N.W.2d at 146 (emphasis in 

original). We have also recognized that a trial court has broad 

discretion to make discovery and evidentiary rulings conducive to the conduct of a fair trial. Id. We find that neither the 

district court’s February 22, 2018, order nor its subsequent 

order striking Duboe as an expert witness was an abuse of this 

broad discretion.

By February 22, 2018, the lawsuit had been pending for 

over 4 years and Carrizales’ expert witness had not yet been 

deposed. Case progression standards adopted by this court 

provide that 98 percent of civil jury cases are to be disposed of 

within 18 months of filing. See § 6-101(A). It appears that the 

district court could have and should have done more at earlier 

stages in this case to expedite its completion. But even if the 

district court’s initial case management efforts were wanting, 

we do not believe that precluded the district court from eventually taking steps to hasten the resolution of a case that had 

been pending for over twice as long as our case progression 

standards state the vast majority of cases of this type should. 

Specifically, we do not find it unreasonable that the district 

court imposed a relatively short deadline by which the parties 

were required to identify dates when Duboe could be deposed 

and to complete the deposition. We reach this conclusion even 

assuming Carrizales was not solely to blame for the fact that 

Duboe had not yet been deposed or for the overall delay in 

bringing this case to completion.

As for the district court’s order striking Duboe as an expert 

witness, we cannot, under the circumstances, say that was an 

abuse of discretion either. The district court’s February 22, 

2018, order required Carrizales to, within 14 days from the 
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date of the order, identify dates within the next 2 months in 

which both Duboe and the defendants’ counsel were available for Duboe’s deposition to be taken. The evidence in our 

record demonstrates that Carrizales did not comply with this 

portion of the order. The evidence shows that the only dates 

Carrizales’ counsel identified on which both he and defense 

counsel would be available were April 23 and 24, 2018. 

Setting aside the fact that April 23 and 24 were just outside 

the district court’s 2-month deadline, counsel for Carrizales 

stated in his affidavit that by the time both defense counsel 

confirmed they would be available on those dates, counsel for 

Carrizales learned Duboe was no longer available.

We would perhaps have a different case before us if, after 

failing to identify dates in which Duboe and the necessary 

lawyers were available for Duboe to be deposed, counsel for 

Carrizales had promptly alerted the district court of the difficulty of complying with its order. There is nothing in our 

record, however, showing that counsel for Carrizales did anything to bring the issue to the attention of the district court 

until the doctors filed a motion to strike in May 2018. By that 

time, more than 2 months had passed and Duboe still had not 

been deposed. Only then did the district court do what it said it 

would do in its February 22, 2018, order and strike Duboe as 

an expert witness.

Under these circumstances, we do not believe that the 

district court’s decision to strike Duboe as an expert witness 

was based on reasons that were untenable or unreasonable. 

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

(2017). Neither can we find that the district court’s action was 

clearly against justice or conscience, reason, and evidence. 

See id. Rather, it appears that the district court concluded that 

Carrizales had not complied with its earlier order and had not 

offered a compelling reason for noncompliance, and therefore, 

it enforced the order in the manner it said that it would. We 

find no abuse of discretion.
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3. Summary Judgment

(a) Factual Background

Shortly after the district court issued its order striking Duboe 

as an expert witness, Creighton University Medical Center 

and the doctors filed motions for summary judgment. Prior to 

the hearing on the motion for summary judgment, Carrizales 

voluntarily dismissed her case against Creighton University 

Medical Center.

At the hearing on the doctors’ motion for summary judgment, they offered, among other things, an affidavit of Gray. 

Gray’s affidavit stated that she, Wulf, and Arms provided 

medical care to Carrizales in connection with the birth of 

Carrizales’ daughter; that Gray was familiar with the allegations in Carrizales’ complaint; that she was familiar with the 

standard of care required of physicians monitoring the labor of 

patients and the delivery of children; and that based upon her 

review of the medical records, her personal knowledge, and 

her training, education, and experience, she, Wulf, and Arms 

met the applicable standard of care in treating Carrizales and 

Carrizales’ daughter.

Carrizales objected to the receipt of Gray’s affidavit, arguing that the doctors failed to designate her as an expert witness 

and that her testimony lacked foundation. In opposition to 

the motion for summary judgment, Carrizales offered, among 

other things, various discovery responses of the doctors, portions of a deposition of Gray, portions of a deposition of a 

midwife who provided care to Carrizales during the labor and 

delivery, and an affidavit of Carrizales. Carrizales also offered 

an affidavit of Duboe in which Duboe averred that the doctors 

breached the standard of care during the labor and delivery 

process. The district court sustained the doctors’ objection to 

Duboe’s affidavit, referring to its earlier ruling striking Duboe 

as an expert witness.

The district court issued an order granting the doctors’ 

motion for summary judgment. The district court concluded 

that Gray’s affidavit could be considered for purposes of the 
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CARRIZALES V. CREIGHTON ST. JOSEPH

Cite as 312 Neb. 296

doctors’ summary judgment motion and that it was sufficient 

to make a prima facie case that each of the doctors met the 

applicable standard of care. The district court then found that 

Carrizales failed to create a genuine issue of material fact as to 

whether the doctors met the standard of care. It explained that 

in order to create a genuine issue of material fact as to whether 

the doctors breached the standard of care, Carrizales was 

required to provide expert testimony contradicting Gray’s testimony that the doctors had met the standard of care. The district 

court stated that it had stricken Duboe as an expert witness and 

that Carrizales had failed to provide other expert testimony that 

would create a genuine issue of material fact.

(b) Standard of Review

[8] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as to 

the ultimate inferences that may be drawn from the facts and 

that the moving party is entitled to judgment as a matter of law. 

Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).

[9] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id.

(c) Analysis

Carrizales argues on appeal that the district court erred both 

by finding that Gray’s affidavit established a prima facie case 

that the doctors met the standard of care and by finding that 

Carrizales failed to present evidence showing the existence of 

a genuine issue of material fact. We address each of these arguments below.

[10] At the summary judgment stage, it is well settled that 

a physician’s self-supporting affidavit suffices to make a prima 

facie case that the physician did not commit medical malpractice. Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CARRIZALES V. CREIGHTON ST. JOSEPH

Cite as 312 Neb. 296

(2018). Carrizales contends that because of certain discovery 

responses provided by the doctors and certain testimony in 

Gray’s deposition, however, the district court should not have 

found that Gray’s affidavit made such a prima facie case here. 

As we will explain, we disagree.

Carrizales first argues that the doctors should not have been 

permitted to rely on Gray’s affidavit because they failed to 

designate her as an expert witness. In support of this argument, Carrizales argues that if the doctors desired to rely on 

an affidavit from Gray in support of their motion for summary 

judgment, they were obligated to disclose their intention to 

do so in discovery. Specifically, Carrizales argues that the 

doctors did not disclose their intention to rely on Gray as an 

expert in their expert witness designation, in response to various requests for production of documents, and in response to 

interrogatories.

We are not persuaded that the doctors were required to disclose an intention to rely on Gray for purposes of summary 

judgment. The interrogatories Carrizales relies on sought the 

identity of persons the doctors expected or intended to call 

“at the trial.” The doctors’ expert witness designation likewise 

identified those experts “who will be called to testify on behalf 

of [the doctors] at a trial of this case.” The doctors did not 

seek to call Gray as a witness at trial; they offered her affidavit 

in support of their motion for summary judgment. As for the 

doctors’ responses to Carrizales’ requests for production, the 

requests for production at issue sought reports of or communications with experts the doctors either “retained” or “commissioned.” Carrizales has not directed us to anything in our 

record suggesting that Gray, a party to the case, was retained 

or commissioned as an expert witness, and even assuming she 

was, Carrizales has not shown that the doctors failed to produce documents responsive to these requests.

Carrizales also argues that even if Gray’s affidavit could 

shift the burden to Carrizales as to the claim against Gray, it 

could not do so with respect to the claims against the other 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CARRIZALES V. CREIGHTON ST. JOSEPH

Cite as 312 Neb. 296

doctors. On this point, however, Carrizales argues only that the 

other doctors also did not identify Gray in response to interrogatories seeking the identity of persons the other doctors 

expected or intended to call at trial. As mentioned above, Gray 

was not called as a witness at trial.

Carrizales next contends that Gray’s affidavit testimony 

lacked adequate foundation. In support of this argument, 

Carrizales relies primarily on portions of Gray’s deposition 

testimony. Gray stated in that deposition that she lacked an 

independent recollection of Carrizales’ labor apart from her 

medical records. She also stated that she had not reviewed the 

medical records of Carrizales’ daughter and did not have an 

opinion as to whether Carrizales’ daughter suffered an injury 

on the day she was born. Counsel for the doctors also stated 

during the deposition that Gray would not be expressing an 

opinion as to what caused Carrizales’ daughter’s current condition. Carrizales argues that these statements showed Gray 

lacked adequate foundation to provide an opinion that she and 

the other doctors met the standard of care. We disagree.

[11] A court should not admit expert testimony if it appears 

the witness does not possess facts that will enable him or her 

to express an accurate conclusion, as distinguished from a mere 

guess or conjecture. Orchard Hill Neighborhood v. Orchard 

Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007). Gray 

may have needed to rely on medical records to assess the care 

provided by the doctors, and she may not have formed opinions 

as to whether Carrizales’ daughter was injured or the causation 

thereof, but we do not believe any of this would preclude her 

from offering an accurate conclusion as to whether the doctors 

met the standard of care.

Finally, Carrizales contends that the district court should not 

have granted summary judgment to the doctors because she 

offered evidence that created a genuine issue of material fact. 

Gray’s affidavit shifted the burden to Carrizales to produce 

admissible evidence that would create a genuine issue of material fact as to whether the doctors complied with the standard 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CARRIZALES V. CREIGHTON ST. JOSEPH

Cite as 312 Neb. 296

of care. See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 

630 (2018). Generally, expert testimony from a medical professional is required to establish the standard of care in a medical 

malpractice action. See id. The only expert opinion Carrizales 

offered that contradicted Gray’s standard of care opinion was 

expressed by Duboe. As we have already concluded, however, 

the district court acted within its discretion when it precluded 

Carrizales from relying on Duboe as an expert.

There is an exception to the general rule requiring expert 

testimony as to the medical standard of care. Under the common knowledge exception, expert testimony is not required 

where a layperson with common knowledge can infer negligence. See, e.g., Green v. Box Butte General Hosp., 284 

Neb. 243, 818 N.W.2d 589 (2012). Although Carrizales does 

not rely expressly on this exception, she claims that other 

evidence in the summary judgment record besides Duboe’s 

affidavit created a genuine issue of material fact. She points 

to statements in her own affidavit that she was told during 

her labor she would undergo a cesarean section but that the 

procedure was never performed. She also directs us to deposition testimony of a midwife involved in Carrizales’ labor 

and delivery who disagreed with Gray’s deposition testimony 

that Gray was merely a consulting physician. The midwife 

testified to her belief that Gray was supervising the midwife. 

None of this evidence, however, can create a genuine issue 

of material fact as to whether the doctors complied with the 

standard of care. There is no expert testimony contradicting 

Gray’s opinion that the doctors met the standard of care, and 

we do not believe a layperson could infer negligence under 

these circumstances.

We find no merit to Carrizales’ arguments that the district 

court erred by granting summary judgment to the doctors.

4. Motion to Alter or Amend

Carrizales also argues that the district court erred by denying her motion to alter or amend. In support of her contention 
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CARRIZALES V. CREIGHTON ST. JOSEPH

Cite as 312 Neb. 296

that the district court should have granted her motion to alter 

or amend, Carrizales merely repeats the arguments we have 

already rejected above. We find no error in the district court’s 

denial of the motion to alter or amend.

IV. CONCLUSION

Because we find no error on the part of the district court, 

we affirm.

Affirmed.