Putnam v. Scherbring
297 Neb. 868
Neb.2017Background
- In April 2012 Putnam sued the Scherbrings for injuries and medical expenses from a December 2008 automobile collision; the Scherbrings admitted negligence but disputed injury and damages.
- The district court entered a progression/scheduling order (expert disclosures and discovery deadlines) after initial dismissal and reinstatement; deadlines were extended and trial continued multiple times at Putnam’s request.
- Putnam missed initial expert-disclosure deadlines, sought additional continuances and to reopen discovery after repeated extensions; the court twice granted continuances but ultimately denied motions to reopen discovery months before trial.
- On March 30, 2015, Putnam obtained a supplemental expert report (new opinions and opinions that multiple medical bills were fair, reasonable, and necessary) but did not disclose it to defendants until June 2, 2015—22 days before trial and after discovery had closed.
- The district court, invoking its inherent authority to enforce progression orders, excluded the untimely expert opinion testimony (and, consequently, most medical bills that lacked the expert foundation); the jury returned a defense verdict.
- The Court of Appeals reversed, applying Norquay discovery-sanction factors; the Nebraska Supreme Court granted further review and reversed the Court of Appeals, upholding the exclusion as a proper exercise of inherent power.
Issues
| Issue | Putnam's Argument | Scherbrings' Argument | Held |
|---|---|---|---|
| Whether Norquay factors for discovery sanctions governed exclusion of untimely expert opinion and medical-bill evidence | Exclusion was an abuse of discretion because the district court failed to apply Norquay factors before excluding evidence | The court enforced its progression order via inherent power; Norquay (a Rule 37 sanction framework) did not apply | Norquay factors did not apply; exclusion was proper exercise of inherent authority and not an abuse of discretion |
| Whether the district court abused discretion in excluding untimely expert opinion disclosed after discovery closed and long after deadlines | Late disclosure was justified by counsel’s health/need for additional discovery; exclusion prejudiced Putnam | Late disclosure would further delay case and flout progression orders; prejudice to defendants and court efficiency justified exclusion | No abuse of discretion: court reasonably enforced scheduling orders and exclusion prevented unfair surprise and delay |
| Whether exclusion of expert opinion required exclusion of associated medical bills | Expert could lay foundation for bills; excluding the expert meant most bills lacked foundation | Admissibility depends on foundational expert testimony; bills without foundation properly excluded | Exclusion of expert opinion supported exclusion of most medical bills for lack of foundation |
| Proper standard of review for trial court’s action | (Implicit) Review under abuse-of-discretion; Norquay should control sanctions analysis | District court’s inherent power reviewed for abuse of discretion; deferential review | Applied abuse-of-discretion standard and found no abuse by trial court |
Key Cases Cited
- Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (Neb. 1987) (formulated factors for preclusion as a Rule 37 discovery sanction)
- State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (Neb. 2017) (abuse-of-discretion standard; guidance on sanctions analysis)
- Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (Neb. 2000) (appellate review of exercise of inherent judicial power is for abuse of discretion)