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Moreno v. City of Gering & Scotts Bluff Cnty.

Supreme Court of Nebraska

April 15, 2016

ROSA MORENO, APPELLEE,
v.
CITY OF GERING AND SCOTTS BLUFF COUNTY, POLITICAL SUBDIVISIONS, APPELLANTS

          Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.

         Charles W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O., and Howard P. Olsen, Jr., of Simmons Olsen Law Firm, P.C., for appellants.

         Michael W. Meister for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.

          OPINION

          [293 Neb. 321] Miller-Lerman, J.

         NATURE OF CASE

         After 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.

         STATEMENT OF FACTS

         On 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.

         Moreno 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.

         A major 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."

         After 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.

          [293 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.

         After 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.

         The 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 May 2014.

         At the 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. Jimenez' opinions.

         In 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."

         Following 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 ...


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