Putnam v. Scherbring, 297 Neb. 868

Background

In April 2012 Putnam sued the Scherbrings for injuries and medical expenses from a December 2008 automobile collision; defendants admitted negligence but disputed injury and damages.
The district court adopted progression orders setting expert-disclosure and discovery deadlines and then granted multiple continuances at Putnam's request; trial was ultimately continued three times and discovery reopened deadlines were missed.
Putnam belatedly supplemented an identified treating physician’s report (dated March 30, 2015) that opined a traumatic brain injury and that numerous medical bills were fair, reasonable, and necessary; the report was disclosed to defendants 22 days before trial and after discovery had closed.
The Scherbrings moved in limine to exclude undisclosed expert opinions and undisclosed medical bills; the district court enforced its progression order and excluded expert opinion testimony as to the fairness/reasonableness of most medical bills and, therefore, excluded most bills for lack of foundation.
The jury returned a verdict for the Scherbrings; Putnam appealed and a divided Nebraska Court of Appeals reversed, relying on Norquay factors for discovery sanctions. The Nebraska Supreme Court granted further review.

Issues

Issue	Putnam's Argument	Scherbrings' Argument	Held
Whether Norquay’s factors for discovery sanctions applied before excluding untimely expert opinion and medical bills	Exclusion was an abuse of discretion; Norquay factors should govern limits on preclusion as a discovery sanction	District court enforced its progression order under its inherent authority, not a §6-337 sanction; Norquay inapplicable	Norquay not applicable because court acted under inherent power to enforce progression orders, not as a rule 37 sanction
Whether exclusion of the untimely expert opinion (and dependent medical bills) was an abuse of discretion	Exclusion was disproportionate and prejudicial; defendants could have deposed expert if allowed	Exclusion was reasonable to prevent further delay after multiple continuances and late disclosure	No abuse of discretion: court reasonably enforced scheduling and excluded untimely evidence; exclusion of bills followed because foundation was excluded
Whether a trial court may use inherent power to enforce case progression standards and limit continuances	Progression standards and inherent authority should yield to rule-based sanction analysis	Courts have inherent authority to manage dockets and enforce progression standards without applying Norquay factors	Court has broad inherent power to enforce progression orders and minimize continuances; use of that power was proper
Standard of appellate review for exclusion under inherent authority	Abuse-of-discretion review	Same	Affirmed: exclusion reviewed for abuse of discretion and none found

Key Cases Cited

Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (Neb. 1987) (framework for preclusion as a discovery sanction)
State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (Neb. 2017) (abuse-of-discretion standard explained)
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (Neb. 2013) (trial court’s broad discretion over discovery and evidentiary rulings)