316 Neb. 874
Neb.2024Background
- Ivan J. Konsul brought a medical malpractice claim against Dr. Juan Antonio Asensio, alleging negligent placement and management of an IVC filter following a motor vehicle accident.
- Konsul alleged that Asensio failed to meet the applicable standard of care by placing the filter unnecessarily, not planning for its removal, and inadequately informing Konsul of risks and needed follow-up.
- Asensio moved for summary judgment, supporting his compliance with the standard of care in Omaha.
- During discovery, Konsul sought both to elicit testimony from Asensio about other providers and to present Dr. David Dreyfuss as an expert on the standard of care.
- Dreyfuss was excluded as an expert after being found insufficiently familiar with Omaha's standard of care or those of sufficiently similar communities under the local standard-of-care rule.
- The trial court granted a directed verdict for Asensio due to Konsul’s lack of admissible expert evidence on standard of care; Konsul appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Deposition Questions to Asensio | District court wrongly barred Asensio from answering questions re: standard of care of other providers, misapplying privilege under § 27-706 | Proper to refuse; § 27-706 requires consent of witness for expert opinion; not obligated to be expert for Konsul | Court erred in finding such a privilege, but error was harmless; exclusion did not matter |
| Admissibility of Expert Testimony on Standard of Care | Dreyfuss was qualified to testify to national and Omaha standard of care based on practice in similar communities | Dreyfuss lacked necessary foundation; unfamiliar with Omaha community as required by Nebraska law | Properly excluded; insufficient foundation of familiarity with Omaha or similar locality |
| Directed Verdict Due to Lack of Expert Testimony | Directed verdict was improper; Dreyfuss should have been allowed or, alternatively, Asensio's deposition responses could supply this evidence | No admissible evidence on standard of care post-exclusion; elements of malpractice claim unmet | Affirmed directed verdict—no standard of care evidence for prima facie case |
| Impact of Deposition Error on Case Outcome | If Asensio had answered, those answers or their use by Dreyfuss could have satisfied expert evidence requirement | Questions only concerned other providers; no basis for standard of care related to Asensio's conduct | Answers would not have provided necessary expert evidence; error was harmless |
Key Cases Cited
- Carson v. Steinke, 314 Neb. 140 (Neb. 2023) (affirmed the locality rule and set standards for admissibility of expert testimony on medical standard of care)
- Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302 (Neb. 2023) (judicial discretion and appellate review standards for discovery decisions)
- Eddy v. Builders Supply Co., 304 Neb. 804 (Neb. 2020) (use of federal law to guide interpretation of Nebraska’s procedural rules)