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Does a Trial Court Have the Authority to Preclude Testimony as a Discovery Sanction?

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The Nebraska Supreme Court sorts out this question in Putnam v. Sherbring et al., (297 Neb. 868). To enforce progression orders in an automobile negligence case, the district court excluded untimely disclosed expert opinions about medical bills. Relying upon our decision regarding a discovery sanction, a divided panel of the Nebraska Court of Appeals decided that the district court had abused its discretion. The Supreme Court granted further review.

In December 2008, Mark A. Putnam’s (“Putnam”) motor vehicle crashed with the vehicle driven by Keri Scherbring, but owned by her parents, Dale Scherbring and Janet Scherbring. Approximately 40 months after his cause of action arose, Putnam filed suit against the Scherbrings saying that he sustained injuries and damages because of Keri’s negligent driving. He asked for general and special damages, including medical expenses incurred since the collision. The Scherbrings admitted that Keri’s negligence caused the accident but denied that it proximately caused injury to Putnam. Putnam had to prove the extent of his damages and that such damages were proximately caused by the accident.

On October 1, 2013, the district court dismissed Putnam’s action for lack of prosecution. Upon Putnam’s motion to reinstate, the district court vacated the order of dismissal and reinstated the case. The court then gave March 31, 2014—deadline to complete fact discovery.

Putnam missed the deadline to name his experts and supplied incomplete disclosures. So Putnam moved for a new scheduling order. The parties agreed to a new scheduling order of September 15, 2014 for the deadline for all expert disclosures and discovery, and to be prepared for trial. The trial was continued to December 17, 2014.

On November 21, 2014, 26 days before trial was scheduled to begin, Putnam moved to continue the trial. The trial was continued to February of 2015. On January 9, 2015, 40 days before the scheduled trial, Putnam filed a second motion to continue. The trial was continued to June 24, 2015.

At trial, the Court said the situation was strange—saying most parties stipulate to fairness and reasonableness of medical bills. These parties did not. Because of that, Putnam had to show the necessity of the medical care.  Therefore, the Court ruled that the expert could testify. The Court said any testimony as to the fairness and reasonableness of all other medical bills was to be excluded. As a result, Putnam was not permitted to introduce the majority of his medical bills at trial.

The Court of Appeals reversed the judgment and remanded the matter to the district court for a new trial. The Scherbrings appealed. The Supreme Court looked at the progression of the case and to see if the district court erred. Under standards adopted by this Court, civil jury cases should be disposed of within 1 year to 18 months of filing, unless there are extraordinary circumstances. When they examined the potential abuse of discretion, the Court found there was no evidence that the court based its decision to exclude untimely evidence for reasons that were unreasonable. In fact, the record reflects that the court carefully considered its decision and sought to achieve a balanced outcome for both parties. For the same reasons, we cannot find that the court’s action was clearly against justice or conscience, reason, and evidence.

Because the district court exercised its inherent authority to enforce its order, the Court determined it was not an abuse of discretion to exclude evidence disclosed over 1 year after the discovery deadline imposed by the court’s progression order. Accordingly, the Court reversed the decision of the Court of Appeals and remands the case with directions to affirm the district court’s judgment.

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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