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Putnam v. Scherbring

Supreme Court of Nebraska

September 29, 2017

Mark A. Putnam, appellant,
v.
Keri G. Scherbring et al., appellees.

         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 from [297 Neb. 869] the District Court for Douglas County, Thomas A. Otepka, 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 Gaiter, of Butler, Gaiter & 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, Stacy, Kelch, and Funke, JJ.

          CASSEL, JUDGE.

         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.

         [297 Neb. 870] 1. Cause of Action and Pleadings

         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 Progression
(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 ...


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