Putnam v. Scherbring, 297 Neb. 868

Background

In April 2012 Putnam sued the Scherbrings for injuries from a December 2008 car accident; the defendants admitted negligence but contested causation and damages.
The court adopted progression orders setting expert-disclosure and discovery deadlines; Putnam missed initial expert-deadlines and the parties agreed to amended scheduling orders and multiple continuances.
Trial was continued three times; Putnam’s counsel experienced health problems and the replacement counsel sought additional discovery months after discovery had closed.
Shortly before the June 2015 trial, Putnam produced a supplemental expert report (dated March 30, 2015) asserting a traumatic brain injury and opining that numerous medical bills were fair, reasonable, and necessary; disclosure occurred 22 days before trial.
The district court, invoking its inherent authority to enforce progression orders, excluded the untimely expert opinions and, because admissibility of medical bills depended on that foundation, excluded most medical bills; the jury returned a defense verdict.
The Court of Appeals reversed, applying Norquay discovery-sanction factors; the Nebraska Supreme Court granted review and reversed the Court of Appeals, upholding the district court’s exclusion as a valid enforcement of progression orders.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Norquay factors governing discovery sanctions under Neb. Ct. R. should control exclusion of untimely expert opinion disclosed after progression deadlines	Putnam: Exclusion was an improper discovery sanction; Norquay factors should govern	Scherbrings: District court enforced progression order via inherent power; Norquay analysis inapplicable	Court: Norquay inapplicable because exclusion enforced progression order under inherent authority, not a §6-337 sanction
Whether district court abused discretion by excluding expert opinion disclosed over a year after expert-deadline and 22 days before trial	Putnam: Exclusion was unreasonable and prejudicial; trial delays due to counsel illness justified late disclosure	Scherbrings: Court had repeatedly accommodated delays; further late disclosure would prejudice scheduling and efficient administration	Court: No abuse of discretion; exclusion reasonable to enforce scheduling and preserve orderly trial
Whether exclusion of expert opinion required exclusion of related medical bills for lack of foundation	Putnam: Medical bills were admissible despite expert exclusion	Scherbrings: Bills inadmissible without expert foundation on reasonableness/necessity	Court: Bills properly excluded because admissibility depended on expert foundation
Proper standard of review for district court’s enforcement action	Putnam: Appellate review should require Norquay-factor analysis for discovery sanctions	Scherbrings: Review is abuse-of-discretion of inherent power; deferential standard	Court: Review for abuse of discretion; upheld district court’s exercise of inherent authority

Key Cases Cited

Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (discussion of preclusion as a discovery sanction and factors to consider)
State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (definition of abuse of discretion)
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (discovery-control principles; judicial discretion)
Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (review of exercise of inherent power is for abuse of discretion)
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (trial court discretion over evidentiary rulings)
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (medical expense admissibility requires proof of reasonable value)