Bonness v. Armitage, 942 N.W.2d 238

Plaintiff Richard Bonness (patient) alleged Dr. Joel Armitage failed to timely detect prostate cancer and filed suit (initial complaint June 20, 2017; operative second amended complaint filed after discovery).
Bonness had a family history of prostate cancer and had previously taken dutasteride (Avodart), which suppresses PSA readings; he alleged his 2010 PSA of 3.0 ng/mL should have been interpreted as ~6.0 ng/mL and warranted urology referral.
Bonness alleges Armitage declined or delayed PSA testing in 2010, 2011, and 2013, later ordered testing in 2014–15 that produced elevated results, leading to biopsy and diagnosis in January 2015 and radical prostatectomy in March 2015. He was told he was cancer free post-op, but cancer recurred in June 2016.
Armitage asserted the 2-year professional negligence statute of limitations as an affirmative defense in his answer to the first amended complaint and later moved to dismiss the second amended complaint under Neb. Ct. R. Pldg. § 6-1112(b)(6) as time-barred.
The district court dismissed the case as barred, holding Bonness discovered his claim no later than January 2015 (date of diagnosis). Bonness appealed, arguing (1) waiver of the statute of limitations defense and (2) that discovery occurred only upon recurrence in June 2016.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of statute of limitations defense	Armitage engaged in months of discovery after the first amended complaint instead of immediately moving to dismiss, which led Bonness to believe the defense was waived	Armitage pleaded the defense in his answer to the first amended complaint and later moved to dismiss the operative complaint; pleading rules preserve the defense through trial	No waiver; under Nebraska pleading rules a statute-of-limitations/ failure-to-state-a-claim defense is preserved and need not be immediately moved on
Timeliness / discovery date for § 25-222	Bonness argues each alleged omission (2010, 2011, 2013) triggered separate limitation periods but he did not discover his claims until cancer recurrence (June 24, 2016), so his June 2017 suit is timely under the discovery toll	Armitage contends discovery occurred by diagnosis in January 2015 (and under continuing-treatment doctrine accrual may be Jan 2015), so the action was not timely	Held that, as alleged in the complaint, Bonness had knowledge in Jan 2015 of facts putting a reasonable person on inquiry; discovery occurred by Jan 2015 and the suit is time-barred

SFI Ltd. Partnership v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014) (waiver-of-pleading-issue law reviewed de novo)
Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006) (statute-of-limitations challenge as failure to state a claim)
Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019) (standards for dismissals on pleadings reviewed de novo)
Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013) (discovery rule principles in professional negligence cases)
Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013) (complaint must disclose bar on its face to permit dismissal)
Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d 821 (2018) (dismissal proper where complaint shows time bar and plaintiff alleges no facts to avoid it)
McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642 (2015) (failure to plead statute of limitations can effect waiver)
Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98 (2018) (waiver/estoppel requires clear, unequivocal act)
Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002) (discovery-extension interplay with accrual and discovery timing)
Gering–Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897 (2000) (discovery of injury does not require knowledge of extent of damages)