“The Nebraska Discovery Rules provide for, among other things, discoveryof expert witnesses and their expected testimony. In addition, under the rulesof discovery, there is a continuing duty to supplement prior responses tointerrogatories regarding expert witnesses.” (See Brown v. Hansen (1993)1 Neb. App. 962, 968.)
Purpose and Significance of a Motion to Compel Disclosures of Expert Opinion
“An important aspect of each party's trial preparation is thediscovery of the opinions that the opposing party's expert witness willstate at trial. Pretrial discovery enables litigants to prepare for trialwithout the element of an opponent's tactical surprise.”(See Carson v. Steinke (2023) 314 Neb. 140, 160; Paulk v. Central Lab. Assocs.(2001) 262 Neb. 838, 636 N.W.2d 170; Norquay v. Union Pacific Railroad (1987)225 Neb. 527, 407 N.W.2d 146.)
“The Nebraska Court Rules of Discovery in Civil Cases allow a party todiscover facts known and opinions held by opposing experts. A party may,through interrogatories, require the other party to identify each personintended to be called as an expert witness, disclose the subject matter onwhich the expert is expected to testify, and state the substance of the factsand opinions to which the expert is expected to testify.” (SeeFacilities Cost Mgmt. Grp., LLC v. Otoe Cnty. Sch. Dist. 66-0111 (2018) 298Neb. 777, 793-94.)
“Generally, a party who has responded to a discovery request with aresponse that was complete when made is under no duty to supplement theresponse. However, a party has a duty to seasonably supplement its discoveryresponse with respect to any question directly addressed to the identity ofexperts expected to be called at trial, the subject matter on which the expertis expected to testify, and the substance of the expert's testimony.”(See id.)
“Neb. Ct. R. Disc. § 6-337 allows a party to apply for an ordercompelling discovery and allows a trial court to impose discovery sanctionsif a party has failed to comply with a court order to provide or permitdiscovery.And in Norquay v. Union Pacific Railroad, we held that a trial court mayappropriately exclude all or part of an expert's testimony at trial as asanction for noncompliance with the discovery rules requiringsupplementation.” (See id; Norquay v. Union Pacific Railroad (1987) 225Neb. 527, 407 N.W.2d 146.)
Rules for Filing a Motion to Compel Disclosures of Expert Opinion
“[T]he liberal discovery of potential testimony of an expert witnessis not merely for convenience of the court and litigants, but exists to makethe task of the trier of fact more manageable by means of an orderlypresentation of complex issues of fact.”(See Norquay v. Union Pacific Railroad (1987) 225 Neb. 527.)
“Under § 6-326(e)(1)(B), a party is under a duty seasonably tosupplement a response to a request for discovery directed toward the identityof each person expected to be called as an expert witness at trial, thesubject matter on which the expert is expected to testify, and the substanceof the expert’s testimony.” (See Eddy v. Builders Supply Co.(2020) 304 Neb. 804, 816; Facilities Cost Mgmt. Grp., LLC v. Otoe Cnty. Sch.Dist. 66-0111 (2918) 298 Neb. 777, 793-94; Larkin v. Ethicon, Inc. (1996) 251Neb. 169, 556 N.W.2d 44; Norquay v. Union Pacific Railroad (1987) 225 Neb.527, 407 N.W.2d 146.)
“A party has a right to have interrogatories answered, and the duty tosupplement answers previously given in response to an adversary’sinterrogatories is a continuing duty.” (See id.)
Discretion of the Court in Deciding a Motion to Compel Disclosures of ExpertOpinion
“A trial court has broad discretion to make discovery and evidentiaryrulings conducive to the conduct of a fair and orderly trial.”(See DeGeorge v. DiGiorgio's Sportswear, Inc., No. A-20-266, at *8 (Neb. Ct.App. Jan. 12, 2021); Beran v. Nebraska Ortho. & Sports Medicine (2020) 28Neb. App. 686, 948 N.W.2d 796; Putnam v. Scherbring (2017) 297 Neb. 868, 878,902 N.W.2d 140, 147.)
“On appellate review, decisions regarding discovery are generallyreviewed under an abuse of discretion standard.” (See Liljestrand v.Dell Enters., No. A-20-695, at *7 (Neb. Ct. App. May 25, 2021); State v. Soto(2003) 11 Neb. App. 667, 659 N.W.2d 1.)
“A judicial abuse of discretion exists when a judge, within theeffective limits of authorized judicial power, elects to act or refrains fromacting, and the selected option results in a decision which is untenable andunfairly deprives a litigant of a substantial right or a just result inmatters submitted for disposition through a judicial system.” (See id.)
Additionally, “an appellate court reviews a trial court's decision toadmit or exclude expert testimony for an abuse of discretion.” (SeePres. the Sandhills, LLC v. Cherry Cnty. (2023) 313 Neb. 590, 595.)
“In determining whether to exclude testimony of an expert witnesscalled by a party who has failed to comply with a request for discovery, thetrial court should consider the explanation, if any, for the party's failureto respond, or respond properly, to a request for discovery concerning anexpert witness; importance of the expert witness' testimony; surprise to theparty seeking preclusion of the expert's testimony; needed time to prepareto meet the testimony from the expert; and the possibility of acontinuance.”(See Norquay v. Union Pacific Railroad (1987) 225 Neb. 527.)
Notable Decisions Discussing a Motion to Compel Disclosures of Expert Opinion
“Inasmuch as the Nebraska Court Rules of Discovery in Civil Cases aregenerally and substantially patterned after the corresponding discovery rulesin the Federal Rules of Civil Procedure, Nebraska courts will look to federaldecisions interpreting corresponding federal rules for guidance in construingsimilar Nebraska rules.” (See Eddy v. Builders Supply Co. (2020) 304Neb. 804, 818-19.)
“Fed.R.Civ.P. 26(b)(4)(A)(i) requires an expert witness to answerinterrogatories and reveal the substance of the facts underlying his or heropinion in order to allow the opposing party to prepare an effectivecross-examination.” (See id.)
“In Uresil Corp. v. Cook Group, Inc., the court found that under Fed.R.Civ.P.26(b)(4)(A)(i) ... when answering interrogatories directed at expert testimonyone must precisely state the subject matter upon which the answer is based,explain the terms used in the answer, and disclose potential theories of theexpert testimony.” (See id; Uresil Corp. v. Cook Group, Inc. (1991) 135F.R.D. 168, 171-72.)
“In Williams v. McNamara, the court found answers to the interrogatoriesas inadequate when they did not inform the defendants of what the testimony ofthe expert will be at trial so that the defendants can gather evidence torebut the expert’s opinions. The Williams court viewed as essential thatthe ‘substance of the opinions’ be stated in a manner that wouldinform the interrogating party of the reasons or bases for the opinions.Otherwise, the answers are in large measure useless ....” (See id;Williams v. McNamara (1988) 118 F.R.D. 294, 296.)
“If the parties fall short of their discovery obligations, § 6-337allows the court to sanction them. When a party fails to obey an order toprovide or permit discovery, a court in which the action is pending may makesuch orders in regard to the failure as are just. This includes [a]n orderstriking out pleadings . . . or dismissing the action or proceeding or anypart thereof, or rendering a judgment by default against the disobedientparty.” (See Chelli v. Baca, No. A-20-892, at *13 (Neb. Ct. App. Jan.25, 2022); Hill v. Tevogt (2016) 293 Neb. 429, 879 N.W.2d 369; Neb. Ct. R.Disc. § 6-337(b)(2).)
