T. Louise Ewers, personally and as Personal Representative of the Estate of Mickley (Michael) Lynn Ellis, appellant,
Saunders County, Nebraska, a political subdivision, et al., appellees.
Pretrial Procedure: Appeal and Error.
Decisions regarding discovery are directed to the discretion
of the trial court, and will be upheld in the absence of an
abuse of discretion.
Pretrial Procedure: Proof: Appeal and Error.
The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion.
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the
benefit of all reasonable inferences deducible from the
Pretrial Procedure: Evidence. A party's
failure to make a timely and appropriate response to a
request for admission constitutes an admission of the subject
matter of the request, which matter is conclusively
established unless, on motion, the court permits withdrawal
of the admission.
Rules of the Supreme Court: Pretrial
Procedure. Neb. Ct. R. Disc. § 6-336 is
self-enforcing, without the necessity of judicial action to
effect an admission which results from a party's failure
to answer or object to a request for admission.
Rules of the Supreme Court: Pretrial Procedure: Evidence:
Proof. Neb. Ct. R. Disc. § 6-336 is not
self-executing. Thus, a party that seeks to claim another
party's admission, as a result of that party's
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 [298 Neb. 945] or object to the
request and must also offer the request for admission as
Rules of the Supreme Court: Pretrial
Procedure. If the necessary foundational
requirements are met and no motion is sustained to withdraw
an admission, a trial court is obligated to give effect to
the provisions of Neb. Ct. R. Disc. § 6-336 which
require that the matter be deemed admitted.
Malpractice: Physician and Patient: Proof: Proximate
Cause. In a malpractice action involving
professional negligence, the burden of proof is upon the
plaintiff to demonstrate the generally recognized medical
standard of care, that there was a deviation from that
standard by the defendant, and that the deviation was a
proximate cause of the plaintiff's alleged injuries.
Malpractice: Physicians and Surgeons: Proximate
Cause: Damages. In the medical malpractice context,
the element of proximate causation requires proof that the
physician's deviation from the standard of care caused or
contributed to the injury or damage to the plaintiff.
Negligence: Proximate Cause. A
defendant's negligence is not actionable unless it is a
proximate cause of the plaintiff's injuries or is a cause
that proximately contributed to them.
Negligence: Proximate Cause: Words and
Phrases. A proximate cause is a cause that produces
a result in a natural and continuous sequence and without
which the result would not have occurred.
Proximate Cause: Words and Phrases. A
defendant's conduct is a proximate cause of an event if
the event would not have occurred but for that conduct, but
it is not a proximate cause if the event would have occurred
without that conduct.
Expert Witnesses: Proximate Cause. Expert
testimony is almost always required to prove proximate
from the District Court for Saunders County: James C.
Stecker, Judge. Affirmed.
R. Demerath, of Demerath Law Office, and Justin B. Demerath,
of O'Hanlon, McCollom & Demerath Law Firm, for
S. Daly and Mary M. Schott, of Sodoro, Daly. Shomaker &
Selde, PC, L.L.O., and J. Scott Paul, of McGrath, North,
Mullin & Kratz, PC, L.L.O., for appellees Advanced
Correctional Health Care, Inc., et al.
Neb. 946] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Kelch, and Funke, JJ.
appeal arises from the in-custody death of Mickley (Michael)
Lynn Ellis. T. Louise Ewers, personally and as personal
representative of Ellis' estate, brought a wrongful death
action alleging medical malpractice by Advanced Correctional
Healthcare, Inc. (ACH), and its agents in their individual
and official capacities (collectively Appellees). Ewers also
filed suit against Saunders County, the Saunders County
sheriff's office, Saunders County Corrections, Saunders
Medical Center, and Dan Scott, but those causes of action are
not relevant to this appeal. Ewers now appeals from the
orders of the district court for Saunders County that denied
her discovery motions and granted Appellees' motion for
summary judgment. We conclude that the district court did not
err, and we affirm.
was incarcerated in the Saunders County jail on May 27, 2010.
During the morning of June 22, he spoke with Mallory Reeves,
a licensed practical nurse employed by ACH, the medical
contractor hired by Saunders County. In her notes, Reeves
stated that Ellis wanted to talk to a counselor about
nightmares he was having and that she told him to fill out a
"sick call, " which is how an inmate reports
of filling out a "sick call, " Ellis filled out a
"kite" form, which is how an inmate relays reports
or requests to jail personnel. In the form, he requested help
with his nightmares. He mentioned that he was having chest
pain and "hard" breathing when he awoke from the
nightmares and that he was waiting to find the right
medication to help him. Ellis had a history of chest pain and
shortness of breath after nightmares and, about 3 weeks
prior, had been taken to a hospital for mental health issues.
Neb. 947] After receiving the "kite" form, jail
personnel completed an incident narrative. According to the
incident narrative, jail personnel informed Reeves of the
physical complaints Ellis described on the "kite"
form, and she responded that it was not a medical issue, as
Ellis was requesting to speak with someone, and that there
was not anything she could do for him. At her deposition,
Reeves did not recall that conversation but admitted that
chest pain was a serious complaint that could ...