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Lombardo v. Sedlacek

Supreme Court of Nebraska

March 23, 2018

Marc A. Lombardo, appellant and cross-appellee.
Michael J. Sedlacek, M.D., appellee AND CROSS-APPELLANT.

          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. 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.

         5. 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.

         6. 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.

         7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed.

         8. 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.

         [299 Neb. 401] 9. Legislature: Intent. The intent of the Legislature is generally expressed by omission as well as by inclusion.

         10. 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.

         11. 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.

         12. 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.

         13. __: __: __ . 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.

         14. 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.

         15. 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.

         16. 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 complaining party.

          Appeal from the District Court for Douglas County: Horacio J. Wheelock, Judge. Affirmed.

          Christian T. Williams, of Domina Law Group, PC, L.L.O., for appellant.

          Marc A. Lombardo, pro se.

          Mary 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.

         [299 Neb. 402] Heavican, C.J.

         I. NATURE OF CASE

         A 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 evidence.


         1. Complaint Marc

         A. 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 judgment.

         [299 Neb. 403] 2. Protective Orders

         The motion for summary judgment was originally set for hearing on June 1, 2016. At a hearing held on April 28, the court heard several motions.

         The court overruled Lombardo's motion to strike Sedlacek's answer on the ground that it was too general.

         The 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 order.''

         The court granted a motion by Sedlacek for a protective order requiring Lombardo to communicate with Sedlacek's attorney, and not with Sedlacek directly.

         The court granted Lombardo a 1-month continuance for Lombardo to respond to Sedlacek's discovery requests.

         On May 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

         On June 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).

         The 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.

         Lombardo 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.

         In his 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.

         Also 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 Lombardo.

         Lombardo's 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.

         In 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 attorneys.

         Given 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.

         The 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.''

         4. Denial of Motion to Alter or Amend and Stay of Motions and Discovery

         The 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.

         Despite 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.

         At a 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.

         The court made a specific finding that all discovery had been complied with up to the date of the hearing.

         The 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.

         The court denied Lombardo's motion to alter or amend. The court's order ...

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