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297 Nebraska Report

PUTNAM v. SCHERBRING

Cite as 297 Neb. 868

Mark A. Putnam, appellant

Keri G. Scherbring et al., appel

___ N.W.2d ___

Filed September 29, 2017. No. S-15-610.

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. Rules of the Supreme Court: Trial: Time. Under case progression 

standards adopted by the Nebraska Supreme Court, civil jury cases are 

to be disposed of within 1 year to 18 months of filing, absent extraordinary circumstances.

5. Rules of the Supreme Court: Judges: Motions for Continuance. Trial 

judges are encouraged to implement firm, consistent procedures for 

minimizing continuances to meet the case progression standards of the 

Nebraska Supreme Court.

6. Rules of the Supreme Court: Attorneys at Law: Courts. Each member of the bar shall cooperate with the judiciary in meeting the case 

progression standards of the Nebraska Supreme Court.

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

the authority to do all things necessary for the proper administration 

of justice.

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

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

Petition for further review from the Court of Appeals, 

Inbody, Riedmann, and Bishop, Judges, on appeal thereto

Nebraska Supreme Court Online Library

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

10/20/2017 09:12 AM CDT
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Cite as 297 Neb. 868

the District Court for Douglas County, Thomas A. Otepk

Judge. Judgment of Court of Appeals reversed, and cause 

remanded with directions.

Herbert J. Friedman, of Friedman Law Offices, P.C., L.L.O., 

and Paul Galter, of Butler, Galter & O’Brien, for appellant.

Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser 

Stryker, P.C., L.L.O., for appellees.

Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., 

for amicus curiae Nebraska Defense Counsel Association.

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

Kelch, and Funke, 

Cassel, J.

I. INTRODUCTION

In order to enforce progression orders in an automobile 

negligence case, the district court excluded untimely disclosed 

expert opinions regarding medical bills. Relying upon our 

decision regarding a discovery sanction,1 a divided panel of 

the Nebraska Court of Appeals decided that the district court 

had abused its discretion.2 We granted further review and 

now reverse.

II. BACKGROUND

The district court excluded untimely disclosed expert opinion testimony which was necessary to lay the foundation 

for past medical bills presented as damages. The chronology 

of the case is particularly important, as it drove the district 

court’s decision.

1 Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 

(1987).

2 Putnam v. Scherbring, No. A-15-610, 2017 WL 163796 (Neb. App. Jan. 

17, 2017) (selected for posting to court website).
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Cite as 297 Neb. 868

1. Cause of Action and P

In December 2008, Mark A. Putnam’s motor vehicle collided with the motor vehicle driven by Keri G. Scherbring 

but owned by her parents, Dale J. Scherbring and Janet K. 

Scherbring.

In April 2012, approximately 40 months after his cause 

of action arose, Putnam filed suit against the Scherbrings 

alleging that he sustained injuries and damages as a result 

of Keri’s negligent driving. He sought general and special 

damages, including resulting medical expenses incurred since 

the collision.

The Scherbrings admitted that Keri’s negligence proximately 

caused the accident but denied that it proximately caused 

injury to Putnam. Thus, Putnam had to prove the extent of his 

resulting damages and that such damages were proximately 

caused by the accident.

2. Case Progress

(a) Dismissed for Lack 

of Prosecution

On August 28, 2013, the district court sent notice to the 

parties’ counsel that unless further action was taken, the case 

would be dismissed for lack of prosecution pursuant to the 

Rules of Dist. Ct. of Fourth Jud. Dist. 4-10 (rev. 2010). The 

parties did not follow the procedure or take any action to 

avoid dismissal.

On October 1, 2013, the district court dismissed Putnam’s 

action for lack of prosecution. Upon Putnam’s motion to reinstate, the district court vacated the order of dismissal and reinstated the case.

(b) Initial Scheduling Order

On October 16, 2013, the court entered the first scheduling 

order in this case. The order adopted the parties’ stipulated proposed order and set forth the following deadlines:
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• January 15, 2014—Putnam’s deadline to designate expert 

witnesses;

• March 31, 2014—deadline to complete fact discovery; and

• May 15, 2014—ready for trial date.

Trial was set for July 23, 2014.

(c) New Scheduling Order

Putnam apparently missed the deadline to designate his 

experts and belatedly supplied incomplete disclosures. When 

it became clear that the remaining deadlines could not be met 

after this delay, Putnam moved for a new scheduling order. 

The parties then stipulated to a new scheduling order. The 

new scheduling order set September 15, 2014, as the deadline 

for all expert disclosures and discovery, and to be prepared 

for trial.

The trial was continued to December 17, 2014. As a result 

of this continuance, the scheduled trial date was over a year 

after the district court’s standard for disposition of 98 percent 

of its civil jury cases.3

(d) Putnam’s First 

Motion to Continue

On November 21, 2014, 26 days before trial was scheduled to begin and 10 weeks after the deadline to be prepared 

for trial, Putnam moved to continue the trial. The affidavit 

accompanying the motion stated that Putnam’s counsel had 

been hospitalized after a scheduled heart surgery and “ha[d] 

not been able to prepare for trial.” It appears that the district 

court was not aware of counsel’s health situation until the 

motion was filed.

The trial was continued to February 18, 2015. The new trial 

date would have been 16 months after the standard for disposition of 98 percent of its civil jury cases.4

3 See Neb. Ct. R. § 6-101(A) (rev. 2013).

4 Id.
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(e) Putnam’s Second 

Motion to Continue

On January 9, 2015, 40 days before the scheduled trial, 

Putnam filed a second motion to continue. In this motion, his 

original counsel recited several continuing health concerns 

that required addition of new lead counsel. However, the new 

lead counsel had sustained an injury and could not be ready 

for trial as scheduled.

A hearing was held, and Putnam’s counsel offered an affidavit in support of the motion. In it he explained, for the first 

time, that he had health problems for the duration of 2014 and 

“was not able to properly prepare for trial.” Putnam’s new lead 

counsel also offered an affidavit explaining “it appears that 

most likely [Putnam] will need to conduct limited additional 

discovery and the witness and exhibit list may need to be 

edited relative to medical issues.”

The court sustained the motion, without mentioning in its 

order the oblique request for additional discovery, and continued the trial to June 24, 2015. The new trial date was 11 

months after the original trial date and over 20 months after 

the court’s standard for disposition of 98 percent of its civil 

jury cases.5

(f) Motions to Reopen Discovery

On February 18, 2015, Putnam’s new counsel filed a motion 

to reopen discovery for the purpose of serving requests for 

admission regarding the fairness, reasonableness, and necessity of Putnam’s medical expenses. He also filed a supplemental motion on March 26 to add four additional expert 

witnesses and for additional limited discovery. These requests 

were nearly 3 years after Putnam filed suit, 1 year after his 

extended expert opinion disclosure deadline, and approximately 8 months after the original trial date.

5 Id.
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After a hearing, the district court overruled these motions. 

In reaching its decision, the court noted that the case was 18 

months past the case progression standards target disposition date, that the pending trial date was the fourth date set, 

that the trial had been continued three times to accommodate 

Putnam, and that the Scherbrings had been able to timely identify their experts.

(g) Amended Motion in Limine

Because the parties did not stipulate before trial to the fairness and reasonableness of the medical bills, Putnam needed 

to present expert testimony to lay this foundation.6 But Putnam 

failed to timely disclose such an expert opinion.

To remedy this situation, Putnam acquired a supplemental 

report from one of his doctors who had been previously identified as an expert witness. The report, dated March 30, 2015, 

apparently disclosed a new expert opinion that Putnam had 

suffered a traumatic brain injury. It also reported that the medical bills incurred from treatment by the expert witness, as well 

as the bills from several other treating physicians, were fair, 

reasonable, and necessary.

Though the report was dated March 30, 2015, it was not 

disclosed to the Scherbrings until June 2—22 days before 

trial. And because discovery was closed, the Scherbrings were 

unable to follow up on the new opinions or depose the expert 

witness again before trial. Moreover, the disclosure introduced 

new material that would significantly change the nature of 

Putnam’s claimed injuries.

6 See, generally, Connelly v. City of Omaha, 284 Neb. 131, 146, 816 

N.W.2d 742, 756 (2012) (“[a] person who suffers injury as a result of 

the negligence of another ‘is entitled to recover for the reasonable value 

of medical care and expenses incurred for the treatment of injuries’”) 

(emphasis supplied) (citing Steinauer v. Sarpy County, 217 Neb. 830, 

353 N.W.2d 715 (1984)); Oliverius v. Wicks, 107 Neb. 821, 187 N.W. 73 

(1922) (no recovery for medical and hospital expenses where no evidence 

of reasonable value thereof).
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Following this disclosure, the Scherbrings filed an amended 

motion in limine to exclude evidence that was not disclosed 

during discovery, including expert reports and opinions concerning medical bills, as well as medical bills not disclosed 

during discovery. The record does not include the hearing on 

the amended motion in limine, or a written order disposing of 

the motion, but it is clear from the court’s trial docket entry 

and the bill of exceptions that the relevant parts of the motion 

were sustained.

3. Tria

The scope of the sustained amended motion in limine was 

addressed on the first day of trial, outside the presence of the 

jury. At this time, the court acknowledged the strangeness of 

the situation by noting parties typically stipulate to fairness and 

reasonableness of medical bills and then the plaintiff offers evidence to prove necessity. However, the court noted that even 

in the absence of a stipulation, it “[did]n’t see the prejudice 

in terms of some unfair surprise to the defendant to allow [the 

previously disclosed expert] to testify about the reasonableness 

and necessity for [the expert’s] bills up to the date of the deposition.” Therefore, the court ruled that the expert could testify 

to the reasonableness and necessity of those bills. It further 

clarified that any testimony as to the fairness and reasonableness of all other medical bills was to be excluded.

As a result, Putnam was not permitted to introduce the vast 

majority of his medical bills at trial. For strategic purposes, 

Putnam decided not to offer the previously disclosed expert’s 

bills in light of the exclusion of the others. However, Putnam 

testified to the extent of his injuries after the accident and 

the treatment he received. Other previously disclosed medical 

providers were also allowed to testify to the treatment they 

provided Putnam for his injuries.

On this evidence, the jury returned a verdict in favor of the 

Scherbrings. The district court entered a judgment on the jury 

verdict, and Putnam timely appealed.
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4. Court of Appeals’ Dec

On appeal, the Court of Appeals, in a split decision, relied 

on our decision in Norquay v. Union Pacific Railroad7 to conclude that “the district court abused its discretion in excluding, as a discovery sanction, nearly all of Putnam’s medical 

bills, as well as testimony from Putnam’s expert witness that 

the bills were reasonable and necessary.”8 In reaching this 

decision, the majority opinion emphasized that “the district 

court abused its discretion by not considering the Norquay

factors at all.”9 Finding error, the court reversed the judgment 

and remanded the matter to the district court for a new trial. 

The Court of Appeals rejected Putnam’s other assignments 

of error.

We granted the Scherbrings’ petition for further review.

III. ASSIGNMENT OF ERROR

The Scherbrings assign that the Court of Appeals erred in 

finding that the district court abused its discretion when it 

excluded evidence and expert opinion testimony which were 

disclosed months after the discovery deadline and after the 

court had previously continued the trial three times. Putnam 

did not seek further review of the Court of Appeals’ rejection 

of his other assignments of error.

IV. 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.10

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

power is for an abuse of discretion.11 An abuse of discretion 

7 Norquay v. Union Pacific Railroad, supra note 1.

8 Putnam v. Scherbring, supra note 2, 2017 WL 163796 at *1.

9 Id. at *10.

10 Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015).

11 Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000).
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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.12

V. ANALYSIS

The Scherbrings and amicus curiae assert that the Court 

of Appeals applied the wrong analysis and erred in finding 

an abuse of discretion. They argue that the district court was 

enforcing its previous orders (which had extended discovery 

deadlines and continued trial dates) when it excluded the evidence in question. And, they maintain that the court did not 

need to apply the factors set forth in Norquay v. Union Pacific 

Railroad13 to exercise this power. For the reasons set forth 

below, we agree.

1. Applicability

Norquay Factor

Our analysis in Norquay v. Union Pacific Railroad was 

directed to a trial court’s authority to preclude testimony as 

a discovery sanction. In that case, a party failed to comply 

with a request for discovery and additionally failed to seasonally supplement its answer to an interrogatory. There was 

no progression order, and the trial court did not find that the 

testimony in question was untimely disclosed. Therefore, the 

court’s authority to preclude testimony was premised solely 

upon its power to issue a sanction under rule 37 of the 

Nebraska Court Rules of Discovery (now codified as Neb. 

Ct. R. Disc. § 6-337). To 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, we outlined several factors a court should 

consider before imposing a sanction.

12 State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).

13 Norquay v. Union Pacific Railroad, supra note 1.
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In light of our summary of the tortured progression of 

the case before us, it is clear that Norquay v. Union Pacific 

Railroad does not apply. Indeed, at oral argument, Putnam 

acknowledged the difficulty of arguing otherwise. Here, 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.

[4-6] Under case progression standards adopted by this 

Court, civil jury cases are to be disposed of within 1 year to 

18 months of filing, absent extraordinary circumstances.14 Trial 

judges are encouraged to implement firm, consistent procedures for minimizing continuances to meet these standards.15

And our standards make it clear that the responsibility for 

compliance does not rest solely on the judiciary. “Each member of the bar shall cooperate with the judiciary in meeting 

these standards.”16

[7] Nebraska courts, through their inherent judicial power, 

have the authority to do all things necessary for the proper 

administration of justice.17 It is apparent that the district court 

relied on this authority and not its authority under § 6-337 to 

issue a discovery sanction. Therefore, the correct analytical 

framework did not require the district court to consider the 

Norquay factors.

14 See § 6-101(A).

15 See § 6-101(B)(5).

16 § 6-101(C).

17 See In re Interest of Zachary D. & Alexander D., 289 Neb. 763, 857 

N.W.2d 323 (2015).
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2. Abuse of Discr

Having concluded that the district court was not required to 

consider the Norquay factors, we review its exercise of inherent power for an abuse of discretion.18 We are not unsympathetic to the serious illness of Putnam’s original lead counsel 

and the unfortunate injury to his successor lead counsel. And it 

is clear that the district court, through repeated extensions and 

continuances, gave these matters due consideration. Moreover, 

the Scherbrings repeatedly agreed to (if not initiated) delays 

and accommodations to opposing counsel.

[8] We have explained 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.19 This is a fairly deferential 

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

discovery and evidentiary rulings conducive to the conduct of 

a fair and orderly trial.20 Given this standard of review and the 

breadth of the trial court’s discretion, we are unable to find an 

abuse of that discretion.

There is no evidence that the court based its decision to 

exclude untimely evidence for any reasons that were untenable 

or unreasonable. In fact, the record reflects that the court carefully considered its decision and sought to achieve a balanced 

outcome for both parties. For the same reasons, we cannot find 

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

reason, and evidence. As the trial judge said, “proposed scheduling orders have to mean something.” Accordingly, we conclude that the district court did not abuse its discretion in 

excluding the untimely disclosed expert opinion.

The admissibility of the medical bills was dependent upon 

the admissibility of the expert opinion that they were fair, 

18 See Tyler v. Heywood, supra note 11.

19 See State v. Chauncey, supra note 12.

20 See State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
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reasonable, and necessary.21 Therefore, it necessarily follows 

that the district court did not abuse its discretion in excluding 

the majority of medical bills for this lack of foundation.

VI. CONCLUSION

Because the district court exercised its inherent authority to 

enforce its progression order, we conclude that the analysis set 

forth in Norquay v. Union Pacific Railroad did not apply. We 

also conclude that it was not an abuse of discretion to exclude 

evidence disclosed over 1 year after the discovery deadline 

imposed by the court’s progression order. Accordingly, we 

reverse the decision of the Court of Appeals and remand the 

cause to the Court of Appeals with directions to affirm the 

district court’s judgment.

Reversed and remanded with direc

21 See cases cited supra note 6 and accompanying text.