Lombardo v. Sedlacek
299 Neb. 400
| Neb. | 2018Background
- Lombardo sued his former psychiatrist, Sedlacek, for medical malpractice alleging failure to diagnose and treat, seeking damages.
- Sedlacek moved for summary judgment, submitting a May 2, 2016 affidavit stating he met the applicable standard of care and that he had produced all records in his possession.
- Lombardo (pro se) claimed incomplete/altered records, sought more discovery and to depose Sedlacek, and requested continuances to obtain an expert; court granted a 90-day continuance to designate an expert and stayed other discovery unless an expert showed it was needed.
- Lombardo served multiple requests for admission; court refused to admit his proffered exhibit of requests/responses because many responses were objections and other discovery was stayed.
- Lombardo failed to designate an expert by the deadline; the district court granted summary judgment for Sedlacek, denied Lombardo’s postjudgment motions, and Lombardo appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by relying on Sedlacek’s affidavit that Lombardo says was not in evidence? | Lombardo: affidavit wasn’t properly in evidence and thus could not support summary judgment. | Sedlacek: affidavit was part of exhibit 23 admitted by Lombardo at the June hearing. | Held: affidavit was admitted as part of exhibit 23 and properly considered. |
| Was the limited 90-day continuance and stay of discovery an abuse of discretion under § 25-1335? | Lombardo: needed more time and depositions to obtain evidence and rebut defendant without an expert. | Sedlacek: physician affidavit created prima facie case shifting burden to plaintiff to present expert evidence; limited continuance to obtain expert was appropriate. | Held: no abuse of discretion; limited continuance to obtain an expert was reasonable because expert testimony was necessary to create a material factual dispute. |
| Should requests for admission (exhibit 35) have been deemed admitted and admitted into evidence? | Lombardo: many requests were unanswered and thus deemed admitted under Neb. Ct. R. Disc. § 6-336, creating material facts. | Sedlacek: objections were timely and substantive; unanswered requests were objected to as vague or compound. | Held: objections in the record prevented deeming the requests admitted; admitting exhibit 35 would not have produced matters admitted under § 6-336. |
| Did denial of a HIPAA protective order prejudice Lombardo’s ability to oppose summary judgment? | Lombardo: lack of protective order prevented use of medical records at hearing. | Sedlacek: no statutory basis shown for protective order; records would not create material factual dispute without expert opinion. | Held: denial was not prejudicial; records would not have defeated summary judgment without expert evidence. |
Key Cases Cited
- Putnam v. Scherbring, 297 Neb. 868 (discovery and continuance standards / appellate review of discretion)
- Wachtel v. Beer, 229 Neb. 392 (application of Neb. Rev. Stat. § 25-1335 and continuance principles)
- Thone v. Regional West Med. Ctr., 275 Neb. 238 (physician self‑supporting affidavit suffices to make prima facie case)
- Simon v. Drake, 285 Neb. 784 (expert testimony normally required to establish standard of care and causation in malpractice)
- Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (tolling and timing of appeal when motion to alter or amend is filed)