Marc A. Lombardo, appellant and cross-appellee.
Michael J. Sedlacek, M.D., appellee AND CROSS-APPELLANT.
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.
Appeal and Error. Appellate review of a district court's
use of inherent power is for an abuse of discretion.
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.
Judgments: Motions for Continuance: Appeal and Error. A
court's grant or denial of a continuance and other
judicial action authorized by Neb. Rev. Stat. § 25-1335
(Reissue 2016) are within the discretion of the trial court,
whose ruling will not be disturbed on appeal in the absence
of an abuse of discretion.
Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in a light
most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
Judgments: Pleadings: Appeal and Error. A motion to alter or
amend a judgment is addressed to the discretion of the trial
court, whose decision will be upheld in the absence of an
abuse of that discretion.
Statutes: Jurisdiction. Jurisdictional statutes must be
Statutes: Jurisdiction: Legislature: Courts: Appeal and
Error. To say that jurisdiction may be lodged in the Nebraska
Supreme Court in any other manner than that provided by the
plain words of the statute amounts to judicial legislation.
Neb. 401] 9. Legislature: Intent. The intent of the
Legislature is generally expressed by omission as well as by
Statutes: Appeal and Error. An appellate court is not at
liberty to add language to the plain terms of a statute to
restrict its meaning.
Pleadings: Notice. The statutory description of the motion to
alter or amend does not include any requirement that the
motion be accompanied simultaneously by a notice of hearing
before the district court.
Summary Judgment: Motions for Continuance: Affidavits. The
purpose of Neb. Rev. Stat. § 25-1335 (Reissue 2016) is
to provide a safeguard against an improvident or premature
grant of summary judgment.
__: __ . The affidavit in support of relief under Neb. Rev.
Stat. § 25-1335 (Reissue 2016) need not contain evidence
going to the merits of the case, but it must contain a
reasonable excuse or good cause, explaining why a party is
presently unable to offer evidence essential to justify
opposition to the motion for summary judgment.
Summary Judgment: Malpractice: Physicians and Surgeons:
Affidavits: Proof. At the summary judgment stage, it is well
settled that a physician's self-supporting affidavit
suffices to make a prima facie case that the physician did
not commit medical malpractice.
Malpractice: Physicians and Surgeons: Expert Witnesses:
Presumptions. There are only very limited exceptions to the
requirement of expert testimony to rebut a prima facie case
by a physician stating that he or she met the standard of
care, where the alleged negligence and the causal link to the
plaintiff's injuries are presumed to be within the
comprehension of laymen.
Trial: Evidence: Appeal and Error. In a civil case, the
admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the
from the District Court for Douglas County: Horacio J.
Wheelock, Judge. Affirmed.
Christian T. Williams, of Domina Law Group, PC, L.L.O., for
A. Lombardo, pro se.
M. Schott and Thomas J. Shomaker, of Sodoro, Daly, Shomaker
& Selde, PC, L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.
Neb. 402] Heavican, C.J.
NATURE OF CASE
former patient sued a psychiatrist for medical malpractice.
The psychiatrist moved for summary judgment. The psychiatrist
averred that he had met the applicable standard of care and
that he had given to the patient all materials in his
possession pertaining to the patient's care. The court
granted the patient a 90-day continuance of the summary
judgment hearing, in order to find an expert witness. The
court stayed all discovery and pending motions until the
summary judgment hearing or an expert witness indicated the
need for more discovery. The patient failed to designate an
expert within 90 days, and the court granted summary judgment
in favor of the psychiatrist. The patient appeals, arguing
that the court abused its discretion in staying discovery
contingent upon his designation of an expert witness, in
refusing to admit into evidence at the summary judgment
hearing his first set of requests for admission and the
psychiatrist's responses, and in erroneously relying on
the psychiatrist's affidavit that allegedly was not in
Lombardo, pro se, sued his former psychiatrist, Michael J.
Sedlacek, for medical malpractice. Lombardo alleged that
Sedlacek was negligent in failing to properly diagnose and
treat Lombardo and that as a proximate result, Lombardo
suffered permanent personal injuries and damages, including
but not limited to, loss of income, medical expenses,
impairment of earning capacity, and mental pain and
suffering. In Sedlacek's answer to the amended complaint,
he admitted that he provided medical care to Lombardo, but
denied the remaining allegations. Sedlacek moved for summary
Neb. 403] 2. Protective Orders
motion for summary judgment was originally set for hearing on
June 1, 2016. At a hearing held on April 28, the court heard
court overruled Lombardo's motion to strike
Sedlacek's answer on the ground that it was too general.
court also overruled a motion by Lombardo for a temporary
protective order from Sedlacek's discovery requests,
pursuant to the federal Health Insurance Portability and
Accountability Act of 1996 (HIPAA). The motion had requested
"the entry of a Protective Order for the purpose of
preventing the disclosure and use of Confidential Information
by any party or non-party other than as allowed by the
court granted a motion by Sedlacek for a protective order
requiring Lombardo to communicate with Sedlacek's
attorney, and not with Sedlacek directly.
court granted Lombardo a 1-month continuance for Lombardo to
respond to Sedlacek's discovery requests.
28, 2016, Lombardo sent Sedlacek his first set of requests
for admission. 3. Continuance of Summary Judgment Hearing,
Stay of Motions and Discovery, and Sedlacek's Affidavits
6, 2016, Lombardo filed a motion to compel Sedlacek to
produce certain documents responsive to Lombardo's first
set of requests for production, which had been served on
April 7. In the motion, Lombardo alleged that Sedlacek had
not produced all the documents in his possession and that he
had obscured or cropped portions of the documents provided.
On June 9, Lombardo filed a motion to continue the hearing on
the motion for summary judgment, pursuant to Neb. Rev. Stat.
§ 25-1335 (Reissue 2016).
court conducted a hearing on June 13, 2016. The court
introduced the hearing as a hearing on summary judgment. At
that point, Lombardo interjected that he had filed a motion
to [299 Neb. 404] continue the summary judgment hearing.
Sedlacek responded that he had objected to the continuance.
offered into evidence exhibit 23 in support of his motion to
continue. The court entered exhibit 23 into evidence without
limitation. Exhibit 23 consists of Lombardo's affidavit
and several attachments.
affidavit, Lombardo averred that he did not have all the
medical records that Sedlacek was supposed to produce, that
certain records appeared to contain misrepresentations or
fabrications of facts, and that portions of the records were
illegible. Lombardo further stated in the affidavit that he
needed to depose Sedlacek "in order to understand more
about why the records contain the false information."
Lombardo requested a continuance of the summary judgment
hearing for at least 9 months, after all records were
produced, in order for Lombardo to name an expert.
contained within exhibit 23 is an affidavit by Sedlacek,
dated May 2, 2016. In the May 2 affidavit, Sedlacek averred
that he had met or exceeded the applicable standard of care
required of him under the circumstances in his treatment of
affidavit, to which Sedlacek's affidavit was attached,
did not call into question the authenticity of Sedlacek's
May 2, 2016, affidavit. Instead, Lombardo
"responded" to Sedlacek's affidavit, stating
that he could not opine on the accuracy of Sedlacek's
averments and that he disagreed Sedlacek had met the
applicable standard of care.
response to Lombardo's affidavit claiming he had not
received all his medical records, Sedlacek entered into
evidence exhibit 22. Exhibit 22 is Sedlacek's affidavit,
dated June 9, 2016, averring that he had provided all
"materials pertaining to . . . Lombardo that I believe
are my [sic] possession or the possession of my office staff
to my attorneys" and that "[i]t is my understanding
that all of the records that I provided to my attorneys were
produced to . . . Lombardo in response to his Requests for
Production of Documents." [299 Neb. 405] Lombardo
confirmed at the hearing that on May 11, he had received 484
pages of documents from the offices of Sedlacek's
the fairly recent receipt of his medical records, the court
ultimately granted Lombardo a 90-day continuance of the
summary judgment hearing, in order to find an expert. The
court told Lombardo that he would not be allowed to designate
an expert after September 13, 2016. The summary judgment
hearing was continued to September 15.
court did not rule upon Lombardo's motion to compel, but
instead continued the hearing on any pending motions until
September 15, 2016. The court specifically stated that
Lombardo was not allowed to depose Sedlacek "until and
after such time [Lombardo] has identified his expert or
experts, and said expert or experts' opinions." The
court explained that Lombardo needed to designate an expert
"before we do anything else.''
Denial of Motion to Alter or Amend and Stay of Motions and
orders from the April 28 and June 13, 2016, hearings were
file stamped on June 13, 2016. And, on June 23, Lombardo
filed a "Motion to Alter or Amend" the June 13
order relating to the continuance of pending motions and the
requirement that Lombardo designate an expert witness.
the court's order staying discovery, Lombardo sent
Sedlacek a second set of requests for admission on July 14,
2016. In response, on July 19, Sedlacek also moved for a stay
of all discovery until September 15, unless Lombardo could
show that the discovery was requested by a potential expert.
Sedlacek also moved for a stay of all hearings on all motions
filed by Lombardo that did not relate to his ability or duty
to designate an expert until September 15.
hearing on July 25, 2016, Lombardo again argued that Sedlacek
had not provided all records in his possession. [299 Neb.
406] Lombardo claimed he had proof in the form of a letter he
received from Sedlacek, a copy of which was not in the
records disclosed. Counsel for Sedlacek responded that they
had scanned approximately 500 pages of records and had sent
them to Lombardo and that those were all the pertinent
records in Sedlacek's possession.
court made a specific finding that all discovery had been
complied with up to the date of the hearing.
court again stayed all discovery until Lombardo designated an
expert. The court stated that if Lombardo timely found an
expert, and such expert indicated more discovery was
necessary, the court would reopen discovery. The court
explained that Sedlacek's averment that he had met the
standard of care created a prima facie case for summary
judgment and that the burden had shifted to Lombardo to
present expert testimony showing a material issue of fact.
court denied Lombardo's motion to alter or amend. The
court's order ...