Ricker v. Neb. Methodist Health Sys.

1

Kimberly Ricker, individually and as Special Administrator of the Estate of Robert Ricker, deceased, appellant, v. Nebraska Methodist Health System, Inc., and Dale W. Orton, appellees.

No. A-23-339

Court of Appeals of Nebraska

April 9, 2024

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: Jeffrey J. Lux Judge.

Justin W. Pritchett, Michael F. Coyle, Jordan W. Adam, and Karson S Kampfe, of Fraser Stryker P.C., L.L.O., for appellant.

Robert M. Schartz and Julie M. Ryan, of Abrahams, Kaslow &amp Cassman, L.L.P., for appellees.

Moore Arterburn, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Arterburn, Judge.

I. INTRODUCTION

Kimberly Ricker, individually and as the special administrator of her late husband Robert Ricker's estate, brought a medical malpractice action alleging negligence on the part of Nebraska Methodist Health System, Inc. and Dale W. Orton, M.D. (collectively "appellees"), arising from Robert's visit to the emergency room. During the discovery phase, the case experienced several delays, some of which were outside the control of either party. Due in part to these delays, the Douglas County District Court granted appellees' motion to terminate Orton's deposition and denied Kimberly's motion to compel documents Orton reviewed prior to his deposition. After also declining to receive an affidavit from Kimberly's medical expert, the court sustained appellees' motion for summary judgment. Upon our review, we affirm in part, and in part reverse and remand the cause for further proceedings.

II. BACKGROUND

As a preliminary matter, we note that the procedural history in this case spans over 4 years. Although our record is expansive, there are filings and events that occurred in this case that are not included in or detailed by the record. In each of the two district court orders that are the subject of this appeal, the court provides a comprehensive timeline of the case. The following factual background is based on our record as supplemented by the district court's timeline when necessary. Additional facts will be discussed, as necessary, in the analysis section.

1. Factual Background

On February 11, 2018, Robert, Kimberly's husband, visited the emergency room at Methodist Hospital in Omaha. Robert was experiencing pain in his left arm and on the left side of his head and neck. Robert had a history of coronary artery disease, having been previously treated with a cardiac stent placement in 2005 and coronary bypass surgery in 2006. Both procedures were performed at Methodist Hospital.

At the emergency room, Robert was treated by Orton. According to Robert's medical forms, Robert presented with a head injury caused by a heavy bar striking his face while at work. A CT scan of Robert's head was administered. Ultimately, he was diagnosed with abrasions, contusions, and a closed head injury. He was given home care instructions and discharged. The next morning, Kimberly discovered that Robert had passed away. An autopsy revealed that Robert died from coronary artery disease.

2. Procedural History With Kimberly's Prior Counsel

On March 25, 2019, Kimberly filed a complaint against appellees alleging medical malpractice. The complaint's allegations of negligence are broad, alleging only a general violation of the required standard of care. After filing their answer, appellees served their first set of discovery requests in June 2019. Kimberly served her answers in August 2019.

In August 2019, a scheduling order was entered requiring that factual discovery be completed by November 2019. That same month, Kimberly served appellees with her first set of discovery requests. In December 2019, appellees served their answers. That same month, an amended scheduling order was filed extending the factual discovery deadline to March 2020. Our record reveals no objections to the entry of the extended deadlines. In February 2020, Kimberly filed two motions to compel discovery responses from each appellee, specifically requesting supplemental information to certain interrogatories. In March 2020, appellees served their supplemental discovery responses to Kimberly, which included Robert's medical records. The hearings on Kimberly's motions to compel were continued.

Throughout March and April 2020, the chief judge of the Douglas County District Court issued three consecutive orders continuing all jury trials due to the COVID-19 pandemic. The last order continued jury trials through June 2020. The record indicates that neither party pursued further discovery during this time. Pursuant to an order of the chief judge entered May 14, 2021, traditional scheduling of civil jury trials did not resume until July 6, 2021.

In July 2020, a second amended scheduling order was entered extending the factual discovery deadline to September 7, 2020. This order set the plaintiff expert designation deadline on September 28, 2020, and the defendant expert designation deadline on December 4, 2020. No objection appears in our record to the second amended scheduling order. Despite the scheduling order deadlines, both parties continued to conduct discovery through July 2021 without objection. After the September deadline had passed, both parties served supplemental responses to discovery requests and filed notices of intent to serve subpoenas to various medical facilities and other organizations. Kimberly identified a financial expert witness in July 2021. The parties also conducted depositions after the deadlines had passed. Kimberly's deposition was taken in May 2021, and Orton's deposition was taken in July 2021. Counsel for Kimberly was not personally present for Orton's deposition. Instead, he appeared by video conference. An employee of Kimberly's counsel was personally present. This person provided exhibits to Orton.

During Orton's deposition, Kimberly's counsel asked Orton what documents he had reviewed in preparation for the deposition. Orton stated he had reviewed the medical records from Robert's emergency room visit and his past heart related procedures along with Kimberly's deposition. Kimberly's counsel then requested the production of all of the specific documents that Orton had reviewed prior to his deposition. Appellees' counsel refused this request, reasoning that the medical records reviewed had been previously produced in a discovery response and that since the specific copies of the documents reviewed by Orton had been written on by counsel and Orton, they were protected by attorney-client privilege and the work-product doctrine. Without receiving the documents, Kimberly's counsel continued with the deposition. As the deposition approached the 3-hour mark, counsel began arguing over the documents again, and the deposition was suspended.

In September 2021, Kimberly filed a motion to compel Orton to produce all documents he reviewed in preparation for his deposition. Appellees resisted the motion, requested a protective order, and filed a motion to terminate Orton's deposition. A hearing on these matters was initially scheduled for October 2021, but this hearing did not occur. In September 2021, a new judge was assigned to this case, and on its own motion, the court continued the pending motions.

In August 2021, the district court scheduled a hearing on appellees' motion for summary judgment in November 2021. Curiously, our record indicates that appellees did not file a summary judgment motion until January 2022. Nevertheless, this hearing was rescheduled five times. The first continuance rescheduled the motion for December 2021 and is attributable to the transition of judges in the case. The other continuances were requested by Kimberly's counsel and were granted by the court without objection from appellees. The last continuance in April 2022 was granted because Kimberly's counsel was in the hospital.

On April 21, 2022, a hearing on the motion for summary judgment was held. Unfortunately, Kimberly's counsel had passed away 2 weeks prior, and no one appeared for Kimberly. The court was aware of counsel's death and scheduled a status hearing in June 2022. Kimberly or any new counsel were ordered to attend. The court mailed a copy of this order to Kimberly's personal address, and she later acknowledged that she received this order in April 2022.

Kimberly's prior counsel was a solo practitioner who did not have a succession plan in place in the event of his death. The Nebraska Supreme Court appointed a trustee to prior counsel's law practice and instructed the trustee to facilitate the transition of cases to new attorneys. In June 2022, the trustee was still searching for a new attorney to represent Kimberly and filed a motion to continue the status hearing. The court granted the motion and continued the hearing to September 2022.

Unbeknownst to the district court at the time, the trustee turned over Kimberly's case file to her soon-to-be new counsel in September 2022. The trustee believed that his duties were completed upon delivering the file. However, new counsel had not yet entered an appearance. Thus, at the September hearing, no one appeared on behalf of Kimberly. On the court's own motion, the status hearing was continued to November. In November, the trustee reappeared in the case and requested another continuance, which the court granted. The November hearing was continued to December. At the December hearing, Kimberly's soon-to-be new counsel appeared, but not on Kimberly's behalf. Counsel requested additional time to further consider whether his firm would accept the case. Kimberly was not present at this hearing. The court, on its own motion, continued the...