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In Shaw v. Nebraska Med. Ctr., No. A-17-507, (Neb. Ct. App. May 8, 2018), the Court answered this question.

On September 20, 2012, Joslen Shaw (“Joslen”) was admitted to Nebraska Medical Center (“NMC”) with various serious ailments. This was Joslen’s fourth admission to NMC in 3 months for various medical problems, including problems related to her heart and liver. Upon Joslen’s September 20 readmission to the hospital, a chest x ray was completed. This x ray revealed that Joslen had fluid in her lungs. One possible explanation for such fluid was pneumonia. Joslen’s doctors treated Joslen for her presumed pneumonia with various antibiotics. On September 25, Joslen was released from the hospital to a skilled nursing facility. Although she had not completed her course of antibiotics, no prescription for antibiotics was provided to the skilled nursing facility. As a result, Joslen received no further antibiotics after September 25. On September 30, 2012, Joslen was again readmitted to NMC. At that time, she had shortness of breath and a deficiency in the amount of oxygen reaching the blood tissue. The estate contends that Joslen also suffered from sepsis. Joslen’s condition deteriorated, and on October 6, Joslen died.

The estate (the Plaintiff here) failed to comply with pre-trial orders. On February 20, 2015, a proposed scheduling order was filed. The order was signed by counsel for all of the parties and by the district court judge presiding over the case. Among other things, the order directed the estate to designate its expert witnesses by May 1. Additionally, the order indicated that trial was to be held no later than November 2. Seven months later, on September 23, 2015, a first amended proposed scheduling order was filed. Again, the order was signed by counsel for all of the parties and by the district court judge presiding over the case. The amended order directed the estate to designate its expert witnesses by October 1. The order indicated that trial was to be held no later than April 1, 2016. On October 30, 2015, a second amended proposed scheduling order was filed. The second amended order was signed by counsel for all of the parties and by the district court judge presiding over the case. It extended the time for the estate to designate its expert witnesses to November 1. However, it indicated that trial was still to be held no later than April 1, 2016. According to counsel for NMC, neither NMC nor the Board of Regents received any information about the estate’s expert witnesses by November 1, 2015.

Counsel for NMC emailed Plaintiff multiple times asking about expert witnesses but received no response. While motions requesting further extensions were pending, NMC and the Board of Regents each filed a motion for summary judgment.

At the summary judgment hearing, the estate attempted to offer an affidavit of an expert witness regarding the cause of Joslen’s death. However, pursuant to the district court’s ruling, the court did not allow the affidavit to be admitted into evidence. The estate also offered into evidence affidavits from Zach, Joslen’s son, and Juanita Johnson (Juanita), Joslen’s mother. Both affidavits indicate that Zach and Juanita attended a meeting with NMC officials after Joslen’s death. At this meeting, they allege that they were told that Joslen died “as a result of a clerical error by NMC.” Specifically, Joslen died because her “pneumonia/ infection . . . was not treated with antibiotics” and, as a result, her condition worsened causing sepsis and organ failure.

After the hearing, the district court entered an order granting NMC’s motions for summary judgment and denying the estate’s motion for partial summary judgment. In the order, the court found that NMC had submitted sufficient evidence that they were not negligent and did not breach the standard of care. The estate appealed.

In reviewing a summary judgment, the Court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. The estate argued that the lower Court erred in granting NMC’s motions and prohibiting it from calling any expert medical witness to testify at trial. The estate asserts that constituted a discovery sanction and that there was no basis for such a harsh sanction as the estate only missed “a single deadline” and failed to attend one hearing. The estate further asserts that the district court did not warn it about the possible consequences of violating the scheduling order, nor did it consider a less drastic sanction.

The Court found that the lower Court’s decision to grant NMC’s’ motions did not constitute a discovery sanction, but instead, was the district court’s enforcement of its previous scheduling orders. The Court did not find that the lower Court abused its discretion in granting NMC’s motions and in excluding the estate’s expert medical testimony. There is nothing in the record which would indicate that the district court based its decision to exclude the expert witness testimony for any reasons that were untenable or unreasonable. Therefore, the decision is affirmed.

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