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Can the Court Exclude Testimony and Records as a Discovery Sanction?

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Attorney Tom MetierThe Nebraska Court of Appeals faced this question in Putnam v. Sherbring, A-15-610 (Neb. Ct. App. 2017)

Mark Putnam (“Putnam”) filed a negligence claim against Keri, Dale, and Janet Scherbring, alleging he was injured in a collision between the car he was driving and one driven by Keri but owned by her parents, Dale and Janet. The Scherbrings admitted that Keri’s negligence caused the collision but denied that the collision proximately caused Putnam’s injuries, which allegedly resulted in over $100,000 in medical bills. Prior to trial, the district court granted the Scherbrings’ motion in limine to exclude from evidence most of Putnam’s medical bills, as well as testimony from one of Putnam’s expert witnesses that the medical bills were reasonable and necessary. At trial, Putnam presented evidence of the nature and extent of his injuries and medical treatment but, due to the court’s ruling on the motion in limine, was not able to present any evidence of his medical bills. A jury returned a verdict in favor of the Scherbrings, and Putnam appealed.

On appeal Putnam claimed that the district court erred in excluding his medical bills from evidence in excluding a doctor’s expert opinion that Putnam’s medical bills were reasonable and necessary, in excluding another witnesses’ testimony, and in denying Putnam’s motion for a directed verdict.

The Court of Appeals looked at whether the district court abused its discretion in excluding so many medical bills and the doctor’s expert opinion on the validity and reasonableness of those bills. Putnam failed to timely disclose the medical bills and the content of the doctor’s expert opinion during discovery. However, excluding these things as a discovery sanction was an abuse of discretion on the part of the district court. Putnam also claimed the district court erred in not allowing the testimony of a former co-worker. The Court of Appeals disagreed and affirmed that decision by the district court as well as the denial of a directed verdict. However, it reversed the motion by the Sherbrings and held that the district court abused its discretion in the exclusion of medical records and certain expert testimony. The case was remanded for a new trial.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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