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299 Nebraska Report

LOMBARDO v. SEDLACEK

Cite as 299 Neb. 400

Marc A. Lombardo, appellant and cross-

v. Michael J. Sedlacek, M.D.

and cross-appel

___ N.W.2d ___

Filed March 23, 2018. No. S-17-146.

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. Judgments: Motions for Continuance: Appeal and Error. A court’s 

grant or denial of a continuance and other judicial action authorized by 

Neb. Rev. Stat. § 25-1335 (Reissue 2016) are within the discretion of the 

trial court, whose ruling will not be disturbed on appeal in the absence 

of an abuse of discretion.

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

judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

6. Judgments: Pleadings: Appeal and Error. A motion to alter or amend 

a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed.

8. Statutes: Jurisdiction: Legislature: Courts: Appeal and Error. To 

say that jurisdiction may be lodged in the Nebraska Supreme Court in 

any other manner than that provided by the plain words of the statute 

amounts to judicial legislation.

Nebraska Supreme Court Online Library

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

06/01/2018 09:08 AM CDT
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9. Legislature: Intent. The intent of the Legislature is generally expressed 

by omission as well as by inclusion.

10. Statutes: Appeal and Error. An appellate court is not at liberty to add 

language to the plain terms of a statute to restrict its meaning.

11. Pleadings: Notice. The statutory description of the motion to alter or 

amend does not include any requirement that the motion be accompanied simultaneously by a notice of hearing before the district court.

12. Summary Judgment: Motions for Continuance: Affidavits. The purpose of Neb. Rev. Stat. § 25-1335 (Reissue 2016) is to provide a safeguard against an improvident or premature grant of summary judgment.

13. ____: ____: ____. The affidavit in support of relief under Neb. Rev. 

Stat. § 25-1335 (Reissue 2016) need not contain evidence going to 

the merits of the case, but it must contain a reasonable excuse or good 

cause, explaining why a party is presently unable to offer evidence 

essential to justify opposition to the motion for summary judgment.

14. 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.

15. Malpractice: Physicians and Surgeons: Expert Witnesses: 

Presumptions. There are only very limited exceptions to the requirement of expert testimony to rebut a prima facie case by a physician stating that he or she met the standard of care, where the alleged negligence 

and the causal link to the plaintiff’s injuries are presumed to be within 

the comprehension of laymen.

16. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

Appeal from the District Court for Douglas County: Horac

J. Wheelock, Judge. Affirme

Christian T. Williams, of Domina Law Group, P.C., L.L.O., 

for appellant.

Marc A. Lombardo, pro se.

Mary M. Schott and Thomas J. Shomaker, of Sodoro, Daly, 

Shomaker & Selde, P.C., L.L.O., for appellee.

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

Funke, JJ
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Heavican, C

I. NATURE OF CASE

A former patient sued a psychiatrist for medical malpractice. The psychiatrist moved for summary judgment. The psychiatrist averred that he had met the applicable standard of 

care and that he had given to the patient all materials in his 

possession pertaining to the patient’s care. The court granted 

the patient a 90-day continuance of the summary judgment 

hearing, in order to find an expert witness. The court stayed 

all discovery and pending motions until the summary judgment hearing or an expert witness indicated the need for more 

discovery. The patient failed to designate an expert within 90 

days, and the court granted summary judgment in favor of the 

psychiatrist. The patient appeals, arguing that the court abused 

its discretion in staying discovery contingent upon his designation of an expert witness, in refusing to admit into evidence 

at the summary judgment hearing his first set of requests for 

admission and the psychiatrist’s responses, and in erroneously 

relying on the psychiatrist’s affidavit that allegedly was not 

in evidence.

II. BACKGROUND

1. Complai

Marc A. Lombardo, pro se, sued his former psychiatrist, 

Michael J. Sedlacek, for medical malpractice. Lombardo 

alleged that Sedlacek was negligent in failing to properly 

diagnose and treat Lombardo and that as a proximate result, 

Lombardo suffered permanent personal injuries and damages, including but not limited to, loss of income, medical 

expenses, impairment of earning capacity, and mental pain 

and suffering. In Sedlacek’s answer to the amended complaint, 

he admitted that he provided medical care to Lombardo, but 

denied the remaining allegations. Sedlacek moved for summary judgment.
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2. Protective Ord

The motion for summary judgment was originally set for 

hearing on June 1, 2016. At a hearing held on April 28, the 

court heard several motions.

The court overruled Lombardo’s motion to strike Sedlacek’s 

answer on the ground that it was too general.

The court also overruled a motion by Lombardo for a temporary protective order from Sedlacek’s discovery requests, 

pursuant to the federal Health Insurance Portability and 

Accountability Act of 1996 (HIPAA). The motion had requested 

“the entry of a Protective Order for the purpose of preventing 

the disclosure and use of Confidential Information by any party 

or non-party other than as allowed by the order.”

The court granted a motion by Sedlacek for a protective 

order requiring Lombardo to communicate with Sedlacek’s 

attorney, and not with Sedlacek directly.

The court granted Lombardo a 1-month continuance for 

Lombardo to respond to Sedlacek’s discovery requests.

On May 28, 2016, Lombardo sent Sedlacek his first set of 

requests for admission.

3. Continuance of Summary Judgment 

Stay of Motions and Disc

and Sedlacek’s Aff

On June 6, 2016, Lombardo filed a motion to compel Sedlacek 

to produce certain documents responsive to Lombardo’s first 

set of requests for production, which had been served on April 

7. In the motion, Lombardo alleged that Sedlacek had not 

produced all the documents in his possession and that he had 

obscured or cropped portions of the documents provided. On 

June 9, Lombardo filed a motion to continue the hearing on 

the motion for summary judgment, pursuant to Neb. Rev. Stat. 

§ 25-1335 (Reissue 2016).

The court conducted a hearing on June 13, 2016. The court 

introduced the hearing as a hearing on summary judgment. At 

that point, Lombardo interjected that he had filed a motion to 
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continue the summary judgment hearing. Sedlacek responded 

that he had objected to the continuance.

Lombardo offered into evidence exhibit 23 in support of his 

motion to continue. The court entered exhibit 23 into evidence 

without limitation. Exhibit 23 consists of Lombardo’s affidavit 

and several attachments.

In his affidavit, Lombardo averred that he did not have all 

the medical records that Sedlacek was supposed to produce, 

that certain records appeared to contain misrepresentations or 

fabrications of facts, and that portions of the records were illegible. Lombardo further stated in the affidavit that he needed to 

depose Sedlacek “in order to understand more about why the 

records contain the false information.” Lombardo requested a 

continuance of the summary judgment hearing for at least 9 

months, after all records were produced, in order for Lombardo 

to name an expert.

Also contained within exhibit 23 is an affidavit by Sedlacek, 

dated May 2, 2016. In the May 2 affidavit, Sedlacek averred 

that he had met or exceeded the applicable standard of care 

required of him under the circumstances in his treatment of 

Lombardo.

Lombardo’s affidavit, to which Sedlacek’s affidavit was 

attached, did not call into question the authenticity of Sedlacek’s 

May 2, 2016, affidavit. Instead, Lombardo “responded” to 

Sedlacek’s affidavit, stating that he could not opine on the accuracy of Sedlacek’s averments and that he disagreed Sedlacek 

had met the applicable standard of care.

In response to Lombardo’s affidavit claiming he had not 

received all his medical records, Sedlacek entered into evidence exhibit 22. Exhibit 22 is Sedlacek’s affidavit, dated 

June 9, 2016, averring that he had provided all “materials 

pertaining to . . . Lombardo that I believe are my [sic] possession or the possession of my office staff to my attorneys” 

and that “[i]t is my understanding that all of the records that 

I provided to my attorneys were produced to . . . Lombardo 

in response to his Requests for Production of Documents.” 
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Lombardo confirmed at the hearing that on May 11, he 

had received 484 pages of documents from the offices of 

Sedlacek’s attorneys.

Given the fairly recent receipt of his medical records, the 

court ultimately granted Lombardo a 90-day continuance of 

the summary judgment hearing, in order to find an expert. The 

court told Lombardo that he would not be allowed to designate 

an expert after September 13, 2016. The summary judgment 

hearing was continued to September 15.

The court did not rule upon Lombardo’s motion to compel, 

but instead continued the hearing on any pending motions 

until September 15, 2016. The court specifically stated that 

Lombardo was not allowed to depose Sedlacek “until and after 

such time [Lombardo] has identified his expert or experts, and 

said expert or experts’ opinions.” The court explained that 

Lombardo needed to designate an expert “before we do anything else.”

4. Denial of Motion 

or Amend and St

Motions and Disc

The orders from the April 28 and June 13, 2016, hearings were file stamped on June 13, 2016. And, on June 23, 

Lombardo filed a “Motion to Alter or Amend” the June 13 

order relating to the continuance of pending motions and the 

requirement that Lombardo designate an expert witness.

Despite the court’s order staying discovery, Lombardo sent 

Sedlacek a second set of requests for admission on July 14, 

2016. In response, on July 19, Sedlacek also moved for a stay 

of all discovery until September 15, unless Lombardo could 

show that the discovery was requested by a potential expert. 

Sedlacek also moved for a stay of all hearings on all motions 

filed by Lombardo that did not relate to his ability or duty to 

designate an expert until September 15.

At a hearing on July 25, 2016, Lombardo again argued 

that Sedlacek had not provided all records in his possession. 
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Lombardo claimed he had proof in the form of a letter he 

received from Sedlacek, a copy of which was not in the records 

disclosed. Counsel for Sedlacek responded that they had 

scanned approximately 500 pages of records and had sent them 

to Lombardo and that those were all the pertinent records in 

Sedlacek’s possession.

The court made a specific finding that all discovery had 

been complied with up to the date of the hearing.

The court again stayed all discovery until Lombardo designated an expert. The court stated that if Lombardo timely found 

an expert, and such expert indicated more discovery was necessary, the court would reopen discovery. The court explained 

that Sedlacek’s averment that he had met the standard of care 

created a prima facie case for summary judgment and that the 

burden had shifted to Lombardo to present expert testimony 

showing a material issue of fact.

The court denied Lombardo’s motion to alter or amend. The 

court’s order was file stamped on July 26, 2016.

5. Lombardo’s Objectio

Interlocutory 

On August 5, 2016, Lombardo served upon Sedlacek a third 

set of requests for admission. And on August 8, Lombardo filed 

an “Objection and Motion.” Lombardo stated in the August 8 

motion that he objected to the court’s order of July 26, because 

he had not received timely notice of Sedlacek’s July 19 motion 

for a stay of discovery. Lombardo stated, further, that Sedlacek 

had omitted 38 of 52 requests for admission, which were served 

on Sedlacek on May 28, 2016, before any stay of discovery. 

Lombardo asked the court to set aside its order on Sedlacek’s 

July 19 motion or to amend the order so as to remove the stay 

on discovery.

On August 11, 2016, Lombardo filed a notice of appeal 

from the court’s orders of June 13 and July 26. In an order 

on August 22, the district court stated that it was retaining 

jurisdiction while the appeal was pending, on the ground that 
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Lombardo had appealed from nonfinal orders. On September 

19, 2016, in case No. A-16-776, the August 11 appeal was 

summarily dismissed for lack of jurisdiction by the Nebraska 

Court of Appeals.

6. Hearing and Order Reg

Summary Judgme

On September 12, 2016, Lombardo filed a motion to stay the 

summary judgment hearing, as well as a jury demand. In the 

motion to stay, Lombardo asserted that his August 11 notice of 

appeal deprived the court of jurisdiction.

At a hearing on September 15, 2016, the court denied the 

motion to stay and proceeded with the motion for summary 

judgment. Lombardo conceded at the hearing that he had not 

designated an expert. Lombardo explained that he had spoken 

with a medical doctor, but had not hired the doctor or obtained 

an affidavit from the doctor expressing any opinion.

Lombardo entered into evidence exhibit 34, entitled 

“Objection.” In the objection, Lombardo asserted, among other 

things, that Sedlacek’s May 2, 2016, affidavit was inadmissible, because Sedlacek made statements that were not based 

on personal knowledge and because Sedlacek relied on hearsay 

statements in the medical records. However, Lombardo did not 

object to the use of the May 2 affidavit on the grounds that it 

had allegedly been admitted for a limited purpose, that it had 

been admitted into evidence at a prior hearing, that Lombardo 

lacked notice it would be relied on in determining the motion 

for summary judgment, or that the affidavit was submitted by 

Lombardo rather than by Sedlacek.

Lombardo also offered into evidence exhibit 35, containing 

Lombardo’s first set of requests for admission and Sedlacek’s 

responses. In an affidavit within exhibit 35, Lombardo averred 

that he mailed a copy of the requests to Sedlacek’s attorney 

on May 28, 2016, and mailed a notice of service on June 1. 

He further stated that he believed requests Nos. 3, 5 to 11, 13, 

14, 16 to 18, 20, 21, 25, 27, and 31 to 52 should be deemed 
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admitted pursuant to Neb. Ct. R. Disc. § 6-336, because they 

were not responded to.

A comparison of the requests and the responses found in 

Lombardo’s offer of proof indicates that, with the exception of 

request No. 38, the requests specified by Lombardo were not 

individually responded to. However, Sedlacek’s response to the 

first set of requests for admission stated with regard to these 

unanswered requests that they were “vague, unclear as to time 

and place, [sought] conclusions of law, [sought] conclusions 

as to the impressions of others, [were] unintelligible, and/or 

contain[ed] compound questions.”

Sedlacek’s attorney objected to the admission of exhibit 35. 

She asserted that a general denial to a number of requests does 

not waive or permit those requests to be deemed admitted. 

The court sustained counsel’s objection and refused to enter 

exhibit 35 into evidence for purposes of the summary judgment hearing.

Lombardo also offered into evidence exhibits 36 and 37, 

which consisted of Lombardo’s second and third sets of 

requests for admission, along with Lombardo’s affidavits stating their dates of service and that Sedlacek had not responded 

to the requests. The court sustained Sedlacek’s objections to 

the exhibits on the ground that they were subject to the court’s 

stay of discovery.

On September 20, 2016, the court granted summary judgment to Sedlacek. The court ruled that all other pending 

motions were denied as moot and explicitly stated that the 

court did not retain any motions for future disposition.

7. Motion to Alter or

On September 26, 2016, Lombardo filed a motion to alter 

or amend, asking the court to vacate its order of summary 

judgment. The motion was served upon Sedlacek, but did not 

contain a notice of hearing at the time of its filing. A notice 

of hearing was later filed on December 14, setting the hearing 

on the motion to alter or amend for December 30. The hearing 
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was rescheduled for January 13, 2017. Prior to the hearing, 

Lombardo filed an “Amended Motion to Alter or Amend 

Judgment,” as well as a motion to stay the hearing on his 

motion to alter or amend.

At the hearing on January 13, 2017, Sedlacek objected to 

Lombardo’s motion to alter or amend on the ground that the 

district court lacked “jurisdiction” to hear the motion, because 

Lombardo had failed to comply with Rules of Dist. Ct. of 

Fourth Jud. Dist. 4-2(B)(1) (rev. 2005). That rule states in relevant part:

Unless otherwise ordered by the court, all pretrial and 

posttrial motions or similar filings such as special appearances which require a hearing shall be filed in the case 

prior to the scheduled hearing. At the time of making said 

filing, the party shall obtain a date for hearing thereon 

from the judge in charge of the case or, in the absence of 

the judge or at the judge’s direction, from a member of the 

judge’s office staff.

(Emphasis supplied.)

Sedlacek acknowledged receipt of notice of the hearing, 

but argued that Lombardo should have obtained the notice 

of hearing before the motion was filed. The court overruled 

Sedlacek’s jurisdictional objection and considered the merits of 

Lombardo’s motion to alter or amend.

During the hearing on Lombardo’s motion to alter or amend, 

one of the attorneys from the firm representing Sedlacek 

stated that as far as she could tell, Sedlacek’s affidavit stating 

he met the applicable standard of care had not been offered 

into evidence. The court disagreed. The judge stated that he 

recalled seeing the affidavit and that it had been “attached to 

something that was submitted.”

In an order dated January 17, 2017, the court denied 

Lombardo’s motion to stay, his motion to alter or amend, and 

his amended motion to alter or amend. The court denied all 

other pending motions.
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On February 6, 2017, Lombardo filed his notice of appeal 

and deposited his docket fee in the office of the clerk of the 

district court. That is the appeal presently before us.

III. ASSIGNMENTS OF ERROR

Lombardo assigns that the district court erred when it (1) 

granted summary judgment without an affidavit in support 

of the motion before it, (2) did not hear and did not grant 

Lombardo’s motion to compel discovery, (3) did not grant 

Lombardo’s motion for additional time in discovery, (4) did not 

hear and did not grant Lombardo’s motions for protection from 

discovery, (5) determined that Sedlacek had made a prima facie 

case on the basis of facts not in evidence, (6) relied on facts 

not in evidence, and (7) denied Lombardo’s offer of evidence 

in opposition to summary judgment.

On cross-appeal, Sedlacek assigns that the district court 

should have sustained his objection to Lombardo’s motion to 

alter or amend and “acknowledged the case stood dismissed 

when no appeal was taken within 30 days of the Order granting 

Summary Judgment.”

IV. STANDARD OF REVIEW

[1,2] 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.1

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

power is for an abuse of discretion.2

[3] 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.3

[4] A court’s grant or denial of a continuance and other judicial action authorized by § 25-1335 are within the discretion 

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

2 Id.

3 Id.
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of the trial court, whose ruling will not be disturbed on appeal 

in the absence of an abuse of discretion.4

[5] In reviewing a summary judgment, an appellate court 

views the evidence in a light most favorable to the party 

against whom the judgment is granted and gives such party 

the benefit of all reasonable inferences deducible from 

the evidence.5

[6] A motion to alter or amend a judgment is addressed to 

the discretion of the trial court, whose decision will be upheld 

in the absence of an abuse of that discretion.6

V. ANALYSIS

1. Jurisdicti

We first address Sedlacek’s cross-appeal. Sedlacek asserts 

that we lack jurisdiction because Lombardo’s motion to alter 

or amend was defective and thus failed to toll the 30-day statutory period for perfecting his appeal to this court. Sedlacek 

contends that Lombardo’s motion was fatally defective because 

Lombardo failed to comply with local district court rule 

4-2(B)(1), which requires parties to obtain a date for hearing 

simultaneously to the filing of any motion.

[7-10] An appellate court acquires no jurisdiction unless 

the appellant has satisfied the requirements for appellate jurisdiction.7

 Jurisdictional statutes must be strictly construed.8 To 

say that jurisdiction may be lodged in our appellate court in 

any other manner than that provided by the plain words of 

the statute amounts to judicial legislation.9 The intent of the 

4 See, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Wachtel v. 

Beer, 229 Neb. 392, 427 N.W.2d 56 (1988).

5 Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008).

6 Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).

7 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).

8 State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).

9 See id.
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Legislature is generally expressed by omission as well as by 

inclusion.10 We are not at liberty to add language to the plain 

terms of a statute to restrict its meaning.11

Neb. Rev. Stat. § 25-1912(1) (Reissue 2016) provides that 

an appeal is perfected and the appellate court has jurisdiction 

when a notice of appeal is properly filed within 30 days of the 

entry of the judgment, decree, or final order. Subsection (4) of 

§ 25-1912 states:

Except as otherwise provided in subsection (3) of this 

section . . . an appeal shall be deemed perfected and the 

appellate court shall have jurisdiction of the cause when 

such notice of appeal has been filed and such docket fee 

deposited in the office of the clerk of the district court, 

and after being perfected no appeal shall be dismissed 

without notice, and no step other than the filing of such 

notice of appeal and the depositing of such docket fee 

shall be deemed jurisdictional.

(Emphasis supplied.)

Section 25-1912(3) provides for termination of the 30-day 

period through a timely motion to alter or amend. It states in 

this regard:

The running of the time for filing a notice of appeal shall 

be terminated as to all parties . . . (b) by a timely motion 

to alter or amend a judgment under section 25-1329, . . . 

and the full time for appeal fixed in subsection (1) of this 

section commences to run from the entry of the order ruling upon the motion filed pursuant to subdivision (a), (b), 

or (c) of this subsection.

(Emphasis supplied.) Thus, under § 25-1912(3), the time to 

appeal to this court begins anew after the motion to alter or 

amend is disposed of.12

10 State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015).

11 Id.

12 See, Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017); Gebhardt v. Gebhardt, 16 Neb. App. 565, 746 N.W.2d 707 (2008).
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The only express limitation to this exception within our 

statutes governing appellate jurisdiction is that the motion to 

alter or amend be as described by Neb. Rev. Stat. § 25-1329 

(Reissue 2016). Section 25-1329 states in full:

A motion to alter or amend a judgment shall be filed 

no later than ten days after the entry of the judgment. 

A motion to alter or amend a judgment filed after the 

announcement of a verdict or decision but before the 

entry of judgment shall be treated as filed after the entry 

of judgment and on the day thereof.

[11] This statutory description of the motion to alter or 

amend does not include any requirement that the motion be 

accompanied simultaneously by a notice of hearing before 

the district court. Under the plain language of our jurisdictional statutes, to terminate the 30-day period for filing a 

notice of appeal, the motion to alter or amend needs to be filed 

within 10 days after the entry of the judgment. In this case, 

it was.

And the district court accepted Lombardo’s motion to alter 

or amend as filed—despite Lombardo’s failure to timely set a 

hearing date under local district court rule 4-2(B)(1). The court 

specifically rejected Sedlacek’s contention that the motion 

was fatally defective and should not be recognized as filed, 

for the reason that Lombardo had not simultaneously obtained 

a date for its hearing.

We find no error in the court’s ruling. Indeed, local district 

court rule 4-2(B)(1) does not by its plain language purport to 

set forth the requirements of a motion itself. Rather, the rule 

requires that the party filing a motion obtain a date for hearing 

on the motion when the motion is filed. It states in relevant 

part that “[a]t the time of making said filing, the party shall 

obtain a date for hearing thereon . . . .”

Sedlacek points to no rule stating the consequences of failing to abide by local district court rule 4-2(B)(1). Moreover, 

district courts have discretion to excuse procedural court 
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rules.13 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.14 We find no reason to conclude that the district 

court abused its discretion in accepting Lombardo’s motion to 

alter or amend as properly filed and under the court’s consideration until its ruling on January 17, 2017.

Sedlacek’s reliance on Neb. Rev. Stat. § 25-910 (Reissue 

2016) does not alter our analysis. Section 25-910 merely 

outlines the required written content of a notice of a motion 

“[w]here notice of a motion is required . . . .” It does not state 

that the motion must be filed simultaneously with a notice of 

hearing. Moreover, § 25-910 is not cross-referenced by our 

statutes governing appellate jurisdiction.

The 30-day period for filing a notice of appeal was terminated until Lombardo’s motion to alter or amend (filed with 

the district court within 10 days of the judgment as required 

by § 25-1329) was disposed of. Then, a new 30-day period 

began. Lombardo filed his notice of appeal within 30 days 

of the January 17, 2017, order denying his motion to alter or 

amend. Therefore, the current appeal is timely and we have 

jurisdiction to consider the merits of Lombardo’s assignments 

of error.

2. Summary Judgme

While Lombardo’s pro se brief touches upon many topics, we consider only arguments that were both specifically 

assigned and specifically argued in the appellate brief.15

Broadly, Lombardo presents three assertions of error that 

were both assigned and argued. First, he asserts that the district court erroneously relied on an affidavit not in evidence 

in its various rulings, including granting summary judgment 

13 See Houser v. American Paving Asphalt, ante p. 1, 907 N.W.2d 16 (2018).

14 Putnam v. Scherbring, supra note 1.

15 See Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
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in Sedlacek’s favor. Second, Lombardo argues that he was 

unfairly hampered in the amount of discovery permitted before 

the court ruled on the summary judgment motion, by limiting its continuance to finding an expert and refusing to grant 

Lombardo’s motion to compel discovery. Third, Lombardo 

asserts that he was prejudiced at the summary judgment hearing by the district court’s allegedly erroneous ruling on his 

offer of exhibit 35, and its failure to grant his motion for a 

protective order under HIPAA.

(a) Affidavit “Not in Evidence”

We find no merit to Lombardo’s contention that Sedlacek’s 

affidavit, stating he met the applicable standard of care, was 

not in evidence. It is true, as Lombardo points out, that unless 

the affidavit is marked, offered, and accepted, it does not 

become part of the record and cannot be considered by the trial 

court as evidence.16 But, fortunately for Sedlacek, the May 2, 

2016, affidavit, in which Sedlacek averred he met the applicable standard of care, was offered into evidence by Lombardo 

as part of exhibit 23. Lombardo’s affidavit did not purport 

to attach Sedlacek’s affidavit for a limited purpose. And the 

district court admitted exhibit 23 into evidence without any 

restriction on its use. Lombardo’s “Objection,” at exhibit 34, 

to the affidavit, on the ground that it was vague and relied on 

hearsay, was untimely.

Accordingly, Sedlacek’s May 2, 2016, affidavit was part of 

the record and was properly considered by the district court 

as evidence. Most importantly, the court properly relied upon 

Sedlacek’s affidavit, which was submitted during the June 13 

summary judgment hearing, in granting summary judgment in 

favor of Sedlacek.

(b) Limited Continuance

We equally find no merit to Lombardo’s claim that the court 

erred in deciding Sedlacek’s motion for summary judgment 

16 Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002).
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without allowing Lombardo adequate time for discovery to 

rebut Sedlacek’s prima facie case.

[12] Lombardo asserts that pursuant to § 25-1335, the 

court should have refused Sedlacek’s motion for summary 

judgment or granted Lombardo a continuance on the hearing 

of the motion, in order to permit affidavits to be obtained, 

depositions to be taken, or discovery to be had. The purpose 

of § 25-1335 is to provide a safeguard against an improvident 

or premature grant of summary judgment.17 Section 25-1335 

provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present 

by affidavit facts essential to justify his opposition, the 

court may refuse the application for judgment or may 

order a continuance to permit affidavits to be obtained 

or depositions to be taken or discovery to be had or may 

make such other order as is just.

[13] We have said that the affidavit in support of relief 

under § 25-1335 need not contain evidence going to the 

merits of the case,18 but it must contain a reasonable excuse 

or good cause, explaining why a party is presently unable to 

offer evidence essential to justify opposition to the motion 

for summary judgment.19 We have cited with approval case 

law holding that the affidavit must show how additional time 

will enable the party to rebut a summary judgment movant’s 

allegation that no genuine issue of material fact exists for 

disposition by trial.20 The affidavit should specifically identify 

the relevant information that will be obtained with additional 

17 Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4.

18 See, Gaytan v. Wal-Mart, supra note 4; Dresser v. Union Pacific RR. Co., 

282 Neb. 537, 809 N.W.2d 713 (2011); Wachtel v. Beer, supra note 4.

19 Id.

20 See Wachtel v. Beer, supra note 4, citing Patty Precision v. Brown & 

Sharpe Mfg. Co., 742 F.2d 1260 (10th Cir. 1984).
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time and indicate some basis for the conclusion that the sought 

information actually exists.21

Generally, the control of discovery is a matter for judicial 

discretion.22 A court’s grant or denial of a continuance and 

other judicial action authorized by § 25-1335 is likewise within 

the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.23

We first note that the court did, in fact, grant Lombardo 

relief under § 25-1335 in the form of a 90-day continuance for Lombardo to find an expert witness. Nevertheless, 

Lombardo argues that the court abused its discretion in so 

limiting the relief and in not allowing Lombardo more time for 

discovery without a designated expert. In particular, Lombardo 

argues he should have been allowed more time in order to 

depose Sedlacek.

In his affidavit in support of relief under § 25-1335, 

Lombardo claimed he did not have all the medical records, 

certain records appeared to contain misrepresentations or fabrications of facts, and portions of the records were illegible. 

He averred that he needed to depose Sedlacek “in order to 

understand more about why the records contain the false 

information.”

But none of the allegations in Lombardo’s affidavit presented a likelihood that additional time for discovery, without designating an expert, would allow Lombardo to rebut 

Sedlacek’s prima facie case for summary judgment. As the 

district court repeatedly explained, Lombardo needed an expert 

witness in order to do that.

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

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

21 See id., citing VISA Intern. Service v. Bankcard Holders, 784 F.2d 1472 

(9th Cir. 1986).

22 See, Putnam v. Scherbring, supra note 1; Gallner v. Hoffman, 264 Neb. 

995, 653 N.W.2d 838 (2002).

23 See, Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4.
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a prima facie case that the physician did not commit medical 

malpractice.24 Sedlacek’s affidavit thus shifted the burden to 

Lombardo to produce admissible contradictory evidence raising a genuine issue of material fact.25

And, in medical malpractice cases, expert testimony by 

a medical professional is normally required to establish the 

standard of care and causation under the circumstances.26

Therefore, once the defendant physician in a malpractice case 

states that he or she has met the standard of care, the plaintiff 

must normally present expert testimony to show that a material 

issue of fact exists preventing summary judgment.27

[15] There are only very limited exceptions to the requirement of expert testimony to rebut a prima facie case by a 

physician stating that he or she met the standard of care, 

where the alleged negligence and the causal link to the plaintiff’s injuries are presumed to be within the comprehension of 

laymen.28 Lombardo does not argue, however, that any such 

exception to the need for expert testimony applies to the facts 

of his case.

Lombardo’s argument instead is that Sedlacek’s own 

statements might have created a material issue of fact, had 

Lombardo been given additional time to depose him. While a 

defendant physician’s own statements can be used to create a 

material issue of fact in a medical malpractice case,29 speculation that such statements might be obtained is a poor indication that the sought information actually exists. Furthermore, 

24 See Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 

(2008).

25 See id.

26 Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).

27 See Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005). See, also, 

e.g., Wagner v. Pope, 247 Neb. 951, 531 N.W.2d 234 (1995).

28 See Thone v. Regional West Med. Ctr., supra note 24.

29 See, Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000); 

Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).
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Lombardo’s affidavit failed to present good cause as to why he 

had not deposed Sedlacek before the June 13, 2016, hearing, at 

which discovery was stayed.

The district court did not abuse its discretion in granting 

only limited relief under § 25-1335, in the form of a 90-day 

continuance of the summary judgment hearing in order for 

Lombardo to obtain an expert witness.

Relatedly, the district court did not err in refusing to entertain Lombardo’s motion to compel discovery until the summary judgment hearing, unless Lombardo designated an expert 

witness stating the need for further discovery.

Nor did the court err in ultimately denying Lombardo’s 

motion to compel when Lombardo failed to designate an expert 

witness by September 13, 2016.

(c) Evidence Not Admitted at 

Summary Judgment Hearing

Lastly, Lombardo argues that he was prejudiced in his ability to present a material issue of fact at the summary judgment 

hearing by virtue of the court’s refusal to enter exhibit 35 into 

evidence and its denial of Lombardo’s motion for a protective order.

Lombardo argues that exhibit 35, containing Sedlacek’s 

responses to Lombardo’s first set of requests for admission, 

would have created a material issue of fact if the court had 

admitted it into evidence. Specifically, he asserts that the court 

should have recognized as admitted, under § 6-336, several 

“unanswered” requests for admission. These allegedly admitted 

allegations would, according to Lombardo, have established 

that Sedlacek breached his “duty as physician to establish a 

thorough and accurate medical history.”30

Section 6-336 states in relevant part, “The matter is admitted unless, within thirty days after service of the request, or 

within such shorter or longer time as the court may allow, 

30 Brief for appellant at 31.
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the party to whom the request is directed serves upon the 

party requesting the admission a written answer or objection

addressed to the matter . . . .” (Emphasis supplied.) Matters 

admitted pursuant to § 6-336 are a proper basis for a summary judgment.31

Section 6-336 is self-enforcing but not self-executing.32 It 

requires that a party, claiming another party’s admission by 

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 subsequently offer the request for admission as evidence.33 If the 

necessary foundational requirements are met and no motion is 

sustained to withdraw an admission, the trial court is obligated 

to give effect to the provisions of § 6-336.34

While Lombardo’s affidavit in exhibit 35 proved service, 

he did not demonstrate Sedlacek’s failure to object to the 

request. Exhibit 35 demonstrated that Sedlacek had objected 

to the unanswered requests as vague, unclear as to time and 

place, sought conclusions of law, sought conclusions as to the 

impressions of others, were unintelligible, and/or contained 

compound questions. Lombardo did not take issue below with 

the fact that the objections referred to several requests simultaneously, nor did he take issue with the form of the objections 

in his appellate brief.

[16] In a civil case, the admission or exclusion of evidence 

is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.35 We conclude that even 

31 Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993).

32 See, U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460 

(2012); Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d 648 

(2011); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988).

33 Id.

34 U.S. Bank Nat. Assn. v. Peterson, supra note 32; Conley v. Brazer, 278 

Neb. 508, 772 N.W.2d 545 (2009).

35 In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
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had the court admitted exhibit 35 into evidence, there would 

not have been matters admitted under § 6-336. Moreover, 

Lombardo fails to explain how the requests for admission, 

which were largely in hypothetical form, would have created 

a material issue of fact even if deemed admitted. We find no 

prejudicial error in the court’s ruling on exhibit 35.

Lombardo also claims that he was prejudiced by the court’s 

refusal to grant his motion for a protective order under HIPAA. 

He claims that he could not offer his medical records as evidence at the summary judgment hearing, because they were 

not properly protected.

Lombardo fails to point to what provision of HIPAA requires 

such a protective order or to any case law supporting his right 

to a protective order. And even if Lombardo had entered his 

medical records into evidence, they would not have created 

a material issue of fact. We agree with the district court that 

in order to create a material issue of fact, Lombardo needed 

to submit an expert’s opinion that Sedlacek had breached the 

applicable standard of care. Thus, again, we find no prejudicial error in the court’s order denying Lombardo’s motion for 

a protective order.

VI. CONCLUSION

The district court did not err in continuing the summary 

judgment hearing for only the limited purpose of giving 

Lombardo more time to hire an expert witness. The court did 

not err in relying on Sedlacek’s affidavit in which he averred 

that he had met the applicable standard of care. And Lombardo 

was not prejudiced by the court’s refusal to enter exhibit 35 

into evidence at the summary judgment hearing or by its denial 

of Lombardo’s motion for a protective order under HIPAA.

Affirm

Wright and Kelch, JJ., not participati