from the District Court for Scotts Bluff County: RANDALL L.
W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O.,
and Howard P. Olsen, Jr., of Simmons Olsen Law Firm, P.C.,
W. Meister for appellee.
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.
Neb. 321] Miller-Lerman, J.
being injured in a motor vehicle accident, Rosa Moreno filed
this negligence action against the City of Gering, Nebraska
(the City), and Scotts Bluff County, Nebraska (the County).
The district court for Scotts Bluff County entered judgment
in Moreno's favor. The City and the County appeal. The
City and the County claim, inter alia, that the court erred
when it overruled their motion to compel discovery of
information regarding other surgeries performed by a doctor
who they contend performed an unnecessary surgery on Moreno,
the cost of which should not be their responsibility. We
affirm the judgment of the district court.
January 12, 2011, Moreno was a passenger in a handibus
operated by the County when the handibus was hit by a van
operated by the City's volunteer fire department. Moreno
[293 Neb. 322] was ejected from the handibus and landed on
the street pavement. Moreno was transported by ambulance to
Regional West Medical Center.
brought this personal injury action against the City and the
County under the Political Subdivisions Tort Claims Act, Neb.
Rev. Stat. § 13-901 et seq. (Reissue 2012). Both the
City and the County admitted liability, and therefore,
Moreno's claim for damages was the only matter at issue
in the bench trial held in the district court.
contested issue regarding damages was whether a cervical
fusion surgery performed in June 2011 by Dr. Omar Jimenez, a
neurosurgeon, was necessary to treat Moreno for an injury
caused by the accident. A few months before the trial was set
to begin, the City and the County learned of published news
reports which indicated that in 2011 and 2012, Dr. Jimenez
had performed an unusually high number of spinal fusion
surgeries similar to the surgery performed on Moreno. The
reports indicated that there existed a debate over whether
some surgeons were performing spinal fusions that were
unnecessary and potentially dangerous. The reports also
stated that malpractice claims had been brought against Dr.
Jimenez and that his medical privileges had been suspended by
a network of hospitals in Georgia. The news reports cited and
quoted a medical expert who contended that surgeons who
performed high numbers of spinal fusions " should be
looked at closely and asked to explain themselves."
learning of the news reports, the City and the County issued
medical records subpoenas to Regional West Physicians Clinic
and Regional West Medical Center (collectively Regional
West). They sought records that documented, inter alia,
information regarding similar surgeries performed by Dr.
Jimenez, including the number and types of surgeries
performed by Dr. Jimenez, discussions among Regional West
staff and administrators regarding the surgeries performed by
Dr. Jimenez, and communications to Dr. Jimenez regarding
surgeries he performed at Regional West.
Neb. 323] Although Moreno did not object, Regional West
objected to the subpoenas. The City and the County filed a
motion to compel Regional West to produce the records. They
also filed a motion to continue the trial in order to allow
them time to conduct discovery of the requested information
and to perform any followup discovery after reviewing the
information. At a hearing on the motion to compel, Regional
West objected to certain exhibits offered by the City and the
County in support of the motion. In its order ruling on the
motion, the court first sustained Regional West's hearsay
objection to portions of the exhibits, including the news
reports regarding the number of spinal fusions performed by
Dr. Jimenez and the controversy regarding such surgeries. The
court overruled other objections raised by Regional West.
the hearing, the court overruled the motion to compel. The
court reasoned that the records were not relevant to this
case, because they related to nonparty patients and were to
be used only as character evidence regarding Dr. Jimenez and
his alleged propensity to perform unnecessary surgeries. The
court noted that such nonparty records would not normally be
admissible under Neb. Rev. Stat. § 27-404 (Cum. Supp.
2014), regarding character evidence, and Neb. Rev. Stat.
§ 27-403 (Reissue 2008), regarding the probative value
of evidence. The court acknowledged that the " concept
of relevancy is broader in the discovery context than in the
trial context" and that a " party may discover
relevant evidence that would be inadmissible at trial, so
long as it may lead to the discovery of admissible
evidence." However, the court reasoned that even without
such nonparty records, the City and the County would still be
able to introduce direct evidence regarding whether the
surgery performed on Moreno was necessary. The court
therefore concluded that the motion to compel discovery
should be overruled.
court also overruled the City and the County's motion to
continue the trial. The court noted that Moreno served tort
claim notices on the City and the County in May 2011, that
[293 Neb. 324] she filed her complaint in November 2012, and
that in March 2014, trial had been set for August. The court
reasoned that efforts by the City and the County to discover
information regarding Dr. Jimenez' treatment of other
patients " did not have to wait for" the news
reports of which the City and the County learned in April or
trial on damages, Moreno presented evidence regarding
expenses she incurred for medical treatment following the
accident. Such evidence included testimony by various medical
professionals who treated her, including Dr. Jimenez, who
began his testimony by reviewing his qualifications and
experience. He then testified regarding his treatment of
Moreno. Dr. Jimenez opined that Moreno suffered an injury in
the accident that aggravated a preexisting condition and
caused compression of the nerves in her spinal cord. He
further opined that the cervical fusion surgery was necessary
to treat the condition. The City and the County
cross-examined Dr. Jimenez at length. The cross-examination
made reference to medical records and reports by other
medical professionals for the purpose of undermining Dr.
their defense, the City and the County presented the video
deposition of Dr. Charles Taylon generally for the purpose of
showing that the cervical fusion surgery was unnecessary. Dr.
Taylon stated that he was a neurosurgeon, and he testified
regarding his training and experience, which included being
educated in medicine at Creighton University in Omaha,
Nebraska, and at the University of Wisconsin in Madison,
Wisconsin, and being a professor of neurosurgery at the
Medical College of Wisconsin in Milwaukee, Wisconsin. Dr.
Taylon had reviewed Moreno's medical records and other
information in order to offer opinions regarding the cervical
fusion surgery performed on Moreno. Dr. Taylon opined that
the surgery was unnecessary, that it was unrelated to the
accident, and that the accident had not aggravated a
preexisting cervical problem. During cross-examination by
Moreno, Dr. Taylon testified that Dr. Jimenez' treatment
of Moreno was [293 Neb. 325] " worse than
malpractice," that Dr. Jimenez was " a
criminal," and that the cervical fusion surgery was
" unnecessary" and an " assault."
trial, the court entered judgment in favor of Moreno in the
amount of $575,203.62. The court found, inter alia, that the
accident aggravated Moreno's preexisting medical
condition and that medical treatment, including the surgery
performed by Dr. Jimenez, was necessary and was proximately
caused by the accident. In its written memorandum order and
judgment, the court reviewed the testimonies of both Dr.
Jimenez and Dr. Taylon and concluded that it generally
accepted the testimony of Dr. Jimenez where it was in
conflict with the testimony of Dr. Taylon. The court noted
that " Dr. Taylon's testimony took a very unusual
turn" when on cross-examination he " became overly
adversarial, argumentative, and confrontational." The
court specifically noted, among other examples, that Dr.
Taylon had called Dr. Jimenez a " criminal" and
accused him of assaulting Moreno. The court stated that such
behavior " goes to bias and ...