316 Neb. 737
Neb.2024Background
- Brian Woodward presented to Saint Francis Medical Center ER in 2019 with severe tongue and airway swelling (angioedema) and was attended by Dr. Favivar (ER doctor) and Dr. Kropf (anesthesiologist).
- After attempted medical management failed, multiple intubation attempts were made, culminating in successful intubation by another physician, but Brian suffered a severe anoxic brain injury.
- Brian’s wife, Jillyn (Jill) Woodward, alleged that negligent airway management led to permanent injury and brought suit against the doctors and hospital, both individually and as administrator of Brian’s estate.
- The trial court struck affidavits from plaintiff’s expert witnesses, concluding they were inconsistent with prior depositions and granted summary judgment for the defendants.
- On appeal, Jill contested the striking of her expert affidavits and the entry of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Striking of Expert Affidavits | Momsen does not apply to nonparty witnesses | Affidavits conflicted with depositions, should be stricken under Momsen | Momsen does not apply to nonparty witnesses; affidavits should not be stricken on that basis |
| Summary Judgment on Causation | Genuine factual issue on causation remains | No expert evidence if affidavits are stricken | Not reached; causation must be reconsidered in light of affidavits |
| Agency/Employment Status | Hospital is liable based on ostensible agency | Doctors are independent contractors | Record unclear; district court's grant of summary judgment reversed on this issue |
| Progression/Discovery Violations | Affidavits are proper, no violation | Affidavits should be stricken for violations | Not decided; remanded for district court consideration |
Key Cases Cited
- Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (affidavit or testimony conflicting with earlier deposition can be stricken, but only for parties)
- Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (changes in nonparty testimony present fact issues, not grounds to strike)
- Choice Homes v. Donner, 311 Neb. 835, 976 N.W.2d 187 (Momsen not extended to nonparty witness affidavits in summary judgment)