Ricker v. Nebraska Methodist Health Sys.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
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.
___ N.W.3d ___
Filed August 8, 2025. 	No. S-23-339.
1. Pretrial Procedure: Appeal and Error. Generally, the control of dis-
covery is a matter for judicial discretion, and decisions regarding discov-
ery will be upheld on appeal in the absence of an abuse of discretion.
2. Appeal and Error. Appellate review of a district court’s use of inherent
power is for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
5. ____: ____. An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
6. Courts: Expert Witnesses. When a district court relies on its inherent
authority to enforce its progression orders by excluding a late-disclosed
expert, it is not required to consider the factors in Norquay v. Union
Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987), because a dif-
ferent analytical framework applies.
7. Courts. Nebraska courts, through their inherent judicial power, have
the authority to do all things necessary for the proper administration of
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:03 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
justice. This inherent authority necessarily includes the power to enter,
and to enforce, progression orders.
8. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact or
as to the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
9. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
the movant would be entitled to judgment if the evidence were uncon-
troverted at trial. If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law.
Petition for further review from the Court of Appeals,
Moore, Arterburn, and Welch, Judges, on appeal thereto
from the District Court for Douglas County, Jeffrey J. Lux,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Justin W. Pritchett, Michael F. Coyle, Jordan W. Adam,
and Karson S. Kampfe, of Fraser Stryker, P.C., L.L.O., for
appellant.
Julie M. Ryan and Robert M. Schartz, of Abrahams, Kaslow
& Cassman, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Kimberly Ricker, individually and as special administra-
tor of her late husband’s estate, brought this wrongful death/
medical malpractice action against a hospital and an emergency
room physician, alleging her husband died because of their
negligence. Over the next several years, the parties engaged
in fact discovery, and the district court entered several pro-
gression orders, which included deadlines to designate expert
witnesses. Ricker did not disclose a medical expert in her

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
discovery responses, nor did she designate such an expert by
the deadlines established in the court’s progression orders.
Eventually, the defendants moved for summary judgment,
arguing that without a medical expert, Ricker could not prove
her malpractice claim and the defendants were entitled to judg-
ment as a matter of law. Approximately 1 week before the sum-
mary judgment hearing, Ricker disclosed a recently retained
medical expert who opined that the defendants breached the
applicable standard of care in treating Ricker’s husband. The
trial court sustained the defendants’ objection to the opinion
of Ricker’s new expert, reasoning, in the alternative, that
exclusion was appropriate as a discovery sanction and as an
exercise of the court’s inherent authority to enforce its pro-
gression orders. Because Ricker had no other expert testimony
to support her malpractice claim, the court granted summary
judgment in favor of the defendants and dismissed the action
with prejudice.
Ricker 	appealed, 	and 	in 	a 	memorandum 	opinion, 1 the
Nebraska 	Court 	of 	Appeals 	reversed 	the 	judgment 	and
remanded the cause for further proceedings, reasoning in part
that the trial court abused its discretion in excluding the
expert’s affidavit. On further review, we see no abuse of dis-
cretion in the district court’s decision to exclude the expert’s
opinion. We therefore reverse the decision of the Court of
Appeals and remand the cause to that court with directions to
affirm the district court’s judgment.
I. BACKGROUND
On February 11, 2018, Robert Ricker (Robert) was struck
in the head with a blunt object. He went to the emergency
room at Nebraska Methodist Health System, Inc. (Nebraska
Methodist), complaining of pain in the left side of his head
and neck pain extending into his left arm. Robert was treated
by emergency physician Dale W. Orton, who diagnosed Robert
1 Ricker v. Nebraska Methodist Health System, No. A-23-339, 2024 WL
1515950 (Neb. App. Apr. 9, 2024) (selected for posting to court website).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
with abrasions, contusions, and a closed head injury. No car-
diac tests were ordered, and Robert was discharged. That night,
Robert died in his sleep from an apparent heart attack.
1. Complaint
On March 25, 2019, after being appointed special adminis-
trator of Robert’s estate, Ricker filed this wrongful death/med-
ical malpractice action against Orton and Nebraska Methodist
in the district court for Douglas County. Ricker’s complaint
alleged that Orton was negligent in failing to properly diag-
nose and treat Robert during his visit to the emergency room
on February 11, 2018, and that as a result, Robert experienced
a heart attack and died. The complaint alleged that Orton’s
negligence should be imputed to Nebraska Methodist under
the doctrine of respondent superior.
In April 2019, Orton and Nebraska Methodist (collectively
the defendants) filed an answer denying negligence and alleg-
ing several affirmative defenses. Over the next several years,
the parties engaged in fact discovery. Several issues on appeal
pertain to discovery disputes and other delays in case progres-
sion, so we summarize that history for context.
2. Discovery
Early in the case, the district court entered a progres-
sion order directing the parties to complete fact discovery by
November 29, 2019. In an amended progression order, the
court continued the discovery deadline to March 30, 2020.
In June 2019, the defendants served written interrogato-
ries on Ricker, asking, among other things, for the identity of
Ricker’s medical experts and the nature of and grounds for
their opinions. Ricker responded to this interrogatory in August
2019 by stating, “Discovery ongoing; this [a]nswer will be
supplemented.”
In August 2019, Ricker served the defendants with interrog-
atories and requests for production. The defendants answered
this written discovery in December 2019, but none of the
discovery asked about medical experts.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
In February 2020, Ricker filed motions to compel, seek-
ing more complete answers to her discovery requests and
specifically seeking to compel production of Robert’s medi-
cal 	records. 	The 	defendants 	filed 	supplemental 	discovery
responses on March 12 and produced more than 2,000 pages
of “Bates stamped” medical records relating to Robert’s care
at Nebraska Methodist over the years, up to and including his
treatment in the emergency department on February 11, 2018.
Beginning in March 2020, the district court entered several
COVID-19-related administrative orders, but none affected
discovery or altered the deadlines of the progression order.
The parties continued conducting fact discovery beyond the
March 2020 deadline in the amended progression order, and
in July 2020, they submitted a stipulated second amended pro-
gression order, which the court accepted and entered.
The July 2020 order remained the operative progression
order for the remainder of the case, and it directed the par-
ties to complete fact discovery by September 7, 2020. Ricker
was required to designate her expert witnesses (including the
subject matter on which they were expected to testify) no later
than September 28, and discovery regarding any such experts
was to be completed no later than November 6. The defendants
then had until December 4 to designate their expert witnesses,
and discovery regarding any such experts was to be completed
no later than February 4, 2021. The parties were ordered to
be ready for trial no later than April 15, and all dispositive
motions were to be filed at least 4 weeks before trial.
The defendants took Ricker’s discovery deposition in May
2021, and in July, Ricker took Orton’s discovery deposition.
Orton’s discovery deposition spawned an ongoing discovery
dispute, which the Court of Appeals’ opinion describes in some
detail. Because we do not ultimately reach those discovery
issues or rulings on further review, we do not comment on
them further.
No party designated an expert witness by the deadlines in
the operative progression order, and all parties continued to

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
engage in fact discovery beyond the September 2020 deadline.
From August through November 2020, the defendants served
various subpoenas seeking to obtain Robert’s medical, employ-
ment, and pharmacy records. The defendants also served a sec-
ond set of interrogatories on Ricker. At about the same time,
Ricker supplemented her previous interrogatory answer to
identify an economist who was expected to testify as an expert
at trial, but Ricker did not identify any medical expert.
3. Defendants File Motion
for Summary Judgment
In August 2021, the court set a tentative summary judgment
hearing for November 16 and later rescheduled the summary
judgment hearing for December 14. At Ricker’s request, the
summary judgment hearing was rescheduled again to January
25, 2022. The defendants were directed to file, no later than
20 days before the rescheduled hearing, their motion for sum-
mary judgment, evidence index, and annotated statement of
undisputed facts. Ricker was directed to file, no later than 10
days before the hearing, her evidence index and annotated
statement of disputed facts, and a briefing schedule was estab-
lished for both parties.
As ordered, the defendants filed their motion for summary
judgment on January 5, 2022, along with an evidence index
and an annotated statement of undisputed facts. Among the
exhibits to be offered was an affidavit from Orton averring
that he met the applicable standard of care for emergency
room physicians when treating Robert. In their statement of
undisputed facts, the defendants recited that although the
amended stipulated progression order required Ricker to des-
ignate experts by September 20, 2020, she had failed to iden-
tify or designate “any expert witness in this matter regarding
standard of care, deviation of standard of care, and causa-
tion.” In their accompanying brief, the defendants argued that
because Ricker had no medical expert witness, she could not
prove the material elements of her malpractice claim and the
defendants were entitled to judgment as a matter of law.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
On January 10, 2022, after the defendants filed their sum-
mary judgment materials, Ricker again moved to continue the
summary judgment hearing, arguing in part that summary judg-
ment was premature because the discovery disputes involving
Orton’s deposition had not yet been resolved. Ricker also filed
a statement of disputed facts, which lacked any annotation to
the record, and an evidence index that did not list any medical
expert or opinion.
The appellate record suggests that Ricker’s request for a
continuance was impliedly granted because the summary judg-
ment hearing was subsequently rescheduled to occur on April
21, 2022. But the summary judgment motion was not actually
taken up at the hearing on April 21 due to a series of events
that we describe next. And based on those events, it appears
the parties and the court treated Ricker’s January 10 motion
to continue the summary judgment hearing as pending but
unresolved.
Counsel for the defendants appeared at the summary judg-
ment hearing on April 21, 2022, but no one appeared on behalf
of Ricker. The court entered an order noting that the failure to
appear was “most likely due to the recent death of [Ricker’s]
attorney,” Ronald J. Palagi. Given the circumstances, the court
set a status hearing for June 29 and ordered Ricker to person-
ally appear for the status hearing and to obtain replacement
counsel. The order for status hearing was mailed to Ricker’s
address, and it is undisputed that she received it.
It is also undisputed that Palagi was a solo practitioner
and did not have a succession plan in place at the time of his
death, so a trustee was appointed to facilitate the transition
of Palagi’s cases to new attorneys. The trustee requested and
was granted a continuance of the status hearing, and it was
rescheduled for September 23, 2022.
Counsel for the defendants appeared for the rescheduled
status hearing on September 23, 2022, but neither Ricker nor
the trustee appeared. The court rescheduled the status hear-
ing for November 2, but the trustee subsequently asked to

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
continue the hearing again. The defendants did not oppose that
request, and the court rescheduled the status hearing again,
this time to December 19.
Counsel for the defendants appeared for the rescheduled
status hearing on December 19, 2022, but neither Ricker nor
anyone on her behalf appeared. The court then continued the
status hearing “one last time” to January 20, 2023.
On January 19, 2023, new counsel entered an appearance
for Ricker. The following day, all parties appeared through
counsel for the rescheduled status hearing. During that hear-
ing, the court informed Ricker’s new counsel that due to
the length of time the case had been pending, he would be
“picking up the baton from prior counsel rather than starting
over.” The court set the pending summary judgment motion
for hearing on March 22. In a separate order entered February
6, the court resolved all discovery disputes involving Orton’s
discovery deposition.
Nine days before the March 22, 2023, summary judgment
hearing, Ricker’s new counsel filed a supplemental evidence
index that included an affidavit from a previously undis-
closed medical expert opining that Orton breached the appli-
cable standard of care when treating Robert in the emergency
room. Two days later, Ricker supplemented her answers to the
defendants’ interrogatories to identify the new medical expert
and summarize his opinion.
4. March 2023 Summary Judgment
Hearing and Ruling
The summary judgment hearing occurred as scheduled on
March 22, 2023, and all parties appeared through counsel. At
the start of the hearing, the court took up Ricker’s pending
request to continue the summary judgment hearing, which was
filed by Palagi in January 2022. In support of that request,
Ricker’s new counsel argued, in part, that he had just retained
a medical expert and that additional time was needed to con-
duct discovery. The defendants opposed another continuance,

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
arguing that the summary judgment motion had been pend-
ing for more than a year and was rescheduled several times,
and that Ricker’s deadline for disclosing medical experts had
expired several years earlier in September 2020. The court
took the motion to continue under advisement and proceeded
to receive evidence and hear argument on the summary judg-
ment motion.
Ricker and the defendants each objected to the affidavits of
the medical expert being offered by the other. The defendants
objected to the affidavit of Ricker’s new expert on two related
grounds: (1) that Ricker had failed to seasonably supplement
her discovery responses to identify the expert or provide the
substance of the expert’s anticipated opinion as required by
the discovery rules and (2) that the court should use its inher-
ent authority to enforce the progression order deadline to
designate expert witnesses, which expired more than 2 years
before Ricker disclosed her new expert.
Ricker objected to Orton’s affidavit on a single ground: that
the defendants had not disclosed Orton as an expert witness
by the progression order deadline. Ricker argued that if the
court decided to exclude Ricker’s expert affidavit as untimely,
it should exclude Orton’s affidavit on the same basis. In
response, the defendants argued that Orton was a party and
not an expert witness, and that under Nebraska case law, a
defendant physician does not need to designate himself or
herself as an expert witness to be able to offer an affidavit in
support of summary judgment. 2 Alternatively, the defendants
argued the operative progression order was structured such
that the defense did not need to designate a medical expert
until after Ricker designated a medical expert and disclosed
the substance of the expert’s opinions. The court deferred rul-
ing on the evidentiary objections and took the matter under
advisement.
2 See Carrizales v. Creighton St. Joseph, 312 Neb. 296, 979 N.W.2d 81
(2022).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
In a single written order entered April 11, 2023, the court
overruled Ricker’s motion to continue the summary judgment
hearing, ruled on the evidentiary objections to the summary
judgment exhibits, entered summary judgment in favor of the
defendants and dismissed Ricker’s complaint with prejudice,
and overruled all remaining motions. We summarize each rul-
ing in turn.
(a) Ruling on Motion to Continue
In overruling Ricker’s motion to continue the hearing, the
court noted the motion for summary judgment was filed in
January 2022 when Palagi was still representing Ricker and
the motion remained pending for more than a year before it
was finally heard. The court recited the long procedural his-
tory of the case, emphasized the many continuances already
requested by and granted to Palagi, and ultimately concluded
that Ricker had been given ample time and opportunity to pre-
pare for the summary judgment hearing. The court expressly
found that under the circumstances and despite Palagi’s death,
no good cause had been shown to continue the hearing again.
And the court considered it significant that due to the many
continuances and delays, the case had already been pending
for a length of time that exceeded the civil case progression
standards by more than 29 months. 3
(b) Rulings on Objections
The district court sustained the defendants’ objections to
Ricker’s expert affidavit but overruled Ricker’s objection to
Orton’s affidavit. It explained its reasoning in detail.
In sustaining the defendants’ objections to the affidavit
of Ricker’s new medical expert, the court found exclusion
was warranted on both grounds advanced by the defense.
Addressing the first ground, the court ruled that the expert’s
opinion should be excluded as a discovery sanction under
3 See Neb. Ct. R. § 6-101(A) (rev. 2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
Neb. Ct. R. Disc. § 6-337 (rev. 2025) (Rule 37) because
Ricker failed to seasonably supplement her 2019 answer to
the defendants’ interrogatory requesting the identity of any
expert witness and the substance of the expert’s opinion. 4
Addressing the second ground, the court found it was appro-
priate to exercise its inherent authority to enforce the expert
designation deadlines in the operative progression order, and
it excluded the affidavit on that basis too, noting that Ricker
designated her only medical expert 896 days after the deadline
expired. The court considered the impact of COVID-19 on the
progression of this case generally and on Ricker’s expert wit-
ness disclosures in particular, and it expressly found that the
extraordinary delay in designating an expert was attributable
to Palagi’s lack of preparation in prosecuting the case and not
to COVID-19.
In overruling Ricker’s objection to Orton’s affidavit, the
court noted that Ricker had not served discovery requests
regarding the defendants’ experts, so there was no basis to
exclude the affidavit as a discovery sanction. The court also
found that because Orton was a defendant physician in a medi-
cal malpractice action, he did not need to designate himself as
an expert witness before offering his own affidavit averring
that he met the standard of care. 5 The court also found per-
suasive the defendants’ argument that unless and until Ricker
designated a medical expert and disclosed his or her opinions,
it was “difficult and unfair” to require the defense to designate
an expert in a vacuum.
4 See Neb. Ct. R. Disc. § 6-326(e)(1)(B) (rev. 2025) (party is under duty to
seasonably supplement discovery request addressed to identity of expert
witnesses and subject matter of expected testimony). See, also, Norquay v.
Union Pacific Railroad, 225 Neb. 527, 540, 407 N.W.2d 146, 155 (1987)
(“[a]s a sanction for noncompliance with . . . the duty to supplement
required by Rule 26(e)(1)(B), preclusion of an expert witness’ testimony
. . . may be an appropriate sanction under Rule 37(d)”).
5 See Carrizales, supra note 2.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
(c) Ruling on Summary Judgment
and Remaining Motions
The court concluded the defendants were entitled to sum-
mary judgment as a matter of law, reasoning that a prima facie
case was established through Orton’s affidavit and that Ricker
had failed to show a genuine factual dispute because she had
no admissible medical evidence to support her allegation that
Orton violated the standard of care. The court’s order therefore
granted summary judgment in favor of the defendants and dis-
missed Ricker’s claims with prejudice. In the same order, the
court denied all remaining motions. Ricker filed a timely notice
of appeal.
5. Court of Appeals
Before the Court of Appeals, Ricker assigned and argued
multiple errors, some of which related to the trial court’s rul-
ings on the various discovery disputes spawned by Orton’s
deposition and some of which related to the trial court’s rul-
ings on summary judgment. Because we conclude the summary
judgment rulings are ultimately dispositive of the issues on
further review, we limit our discussion of the Court of Appeals’
opinion accordingly.
Regarding the summary judgment rulings, Ricker assigned
error to (1) overruling her objection to Orton’s affidavit, (2)
sustaining the defendants’ objections to the affidavit of Ricker’s
new expert, (3) sustaining the defendants’ motion for summary
judgment, and (4) overruling her motion to continue the sum-
mary judgment hearing.
The Court of Appeals found no merit to Ricker’s assign-
ment challenging the admission of Orton’s affidavit. It rea-
soned that at the summary judgment stage, “a physician’s
self-supporting affidavit suffices to make a prima facie case
that the physician did not commit medical malpractice” 6 and
6 Ricker, supra note 1, 2024 WL 1515950 at *10. See Lombardo v. Sedlacek,
299 Neb. 400, 908 N.W.2d 630 (2018).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
that “for purposes of summary judgment, an expert designa-
tion of a defendant doctor is not required as a prerequisite to
allow the admission of the doctor’s self-supporting affidavit.” 7
But the Court of Appeals found merit to Ricker’s argument
that it was an abuse of discretion to exclude the affidavit of
Ricker’s medical expert. In its reasoning, the Court of Appeals
focused on the trial court’s decision to exclude the affidavit “as
a discovery sanction.” 8 It did not expressly address the alter-
native ground relied upon by the district court—its inherent
authority to enforce its progression orders by excluding expert
opinions that have not been timely disclosed. 9
In analyzing whether the new expert’s affidavit was properly
excluded as a discovery sanction under Rule 37, the Court
of Appeals recited and applied the five factors discussed in
Norquay v. Union Pacific Railroad 10: (1) the explanation for
the party’s failure to respond, (2) the importance of the expert
witness’ testimony, (3) the surprise to the party seeking preclu-
sion of the expert’s testimony, (4) the time needed to prepare
to meet the testimony from the expert, and (5) the possibility
of a continuance.
Addressing the Norquay factors, the Court of Appeals ulti-
mately concluded the district court abused its discretion in
excluding the opinion of Ricker’s new expert as a discovery
sanction. Regarding the first factor, it noted that due to the
death of Palagi, there was no “clear explanation for the failure
7 Ricker, supra note 1, 2024 WL 1515950 at *10. See Carrizales, supra
note 2.
8 Ricker, supra note 1, 2024 WL 1515950 at *12.
9 See, Carrizales, supra note 2 (recognizing that in addition to discovery
sanctions, courts have inherent judicial power to enforce deadlines in
progression orders); Putnam v. Scherbring, 297 Neb. 868, 877, 902
N.W.2d 140, 146 (2017) (observing that court’s inherent authority to
enforce progression order by excluding late-disclosed expert opinion is
“fundamentally different” from imposing discovery sanction).
10 Norquay, supra note 4. See, also, Eddy v. Builders Supply Co., 304 Neb.
804, 937 N.W.2d 198 (2020).

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RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
to identify her expert witness earlier in the case.” 11 Regarding
the second factor, it concluded the expert’s affidavit was essen-
tial to Ricker’s case because without an expert, she “could
not prove that a genuine issue of material fact existed.” 12 And
regarding the remaining factors, it acknowledged that the late
disclosure came as a surprise to the defendants and that a
continuance would be necessary to permit the defense to “pre-
pare to meet” the new expert’s testimony. 13 Nevertheless, it
ultimately concluded that the Norquay factors did not support
excluding the affidavit as a discovery sanction.
The Court of Appeals then reversed the summary judg-
ment ruling, reasoning that “[b]ecause we have ruled that this
sanction was an abuse of discretion, summary judgment was
improper.” 14 The Court of Appeals did not address Ricker’s
assignment that it was an abuse of discretion to deny her
request to continue, deeming that issue “essentially moot.” 15
In remanding the cause for further proceedings, the Court of
Appeals directed the district court to “receive [the expert’s]
affidavit and ultimately determine whether it satisfies [Ricker’s]
burden to show that a material issue of fact exists.” 16
The defendants filed a timely petition for further review,
which we granted.
II. ASSIGNMENTS OF ERROR
On further review, the defendants assign multiple errors,
some of which relate to the Court of Appeals’ rulings on the
various discovery disputes arising from Orton’s deposition,
and some of which relate to its rulings on summary judgment.
Because we find the assigned errors regarding the Court of
11 Ricker, supra note 1, 2024 WL 1515950 at *11.
12 Id. at *12.
13 Id.
14 Id. at *13.
15 Id.
16 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
Appeals’ summary judgment rulings are dispositive, we con-
fine our review to only those assignments. 17 Our disposition
makes it unnecessary to reach the assignments of error regard-
ing the Court of Appeals’ discovery analysis, and we express
no opinion in that regard.
Regarding summary judgment, the defendants assign that
the Court of Appeals erred in (1) finding it was an abuse of
discretion to exclude the affidavit of Ricker’s new medical
expert and (2) reversing the entry of summary judgment and
remanding the cause for further proceedings.
III. STANDARD OF REVIEW
[1] Generally, the control of discovery is a matter for judicial
discretion, and decisions regarding discovery will be upheld on
appeal in the absence of an abuse of discretion. 18
[2,3] Appellate review of a district court’s use of inherent
power is for an abuse of discretion. 19 An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. 20
[4,5] An appellate court reviews the district court’s grant
of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor. 21 An appellate
court will affirm a lower court’s grant of summary judgment
if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate
17 See Ronnfeldt Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024)
(appellate court need not engage in analysis of issue unnecessary to
adjudicate case before it).
18 Konsul v. Asensio, 316 Neb. 874, 7 N.W.3d 619 (2024).
19 Putnam, supra note 9.
20 Konsul, supra note 18.
21 Continental Resources v. Fair, 317 Neb. 391, 10 N.W.3d 510 (2024).

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Nebraska Supreme Court Advance Sheets
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RICKER v. NEBRASKA METHODIST HEALTH SYS.
Cite as 319 Neb. 628
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. 22
IV. ANALYSIS
1. Affidavit of Ricker’s
New Medical Expert
As stated, the district court excluded the affidavit of Ricker’s
late-disclosed medical expert on two separate grounds: (1) as
a discovery sanction authorized by Rule 37 of the Nebraska
discovery rules 23 and (2) pursuant to its inherent power to
enforce its progression order. 24
[6] We have explained that when a district court relies on
Rule 37 to exclude a late-disclosed expert as a discovery sanc-
tion, it should consider the Norquay factors. 25 But when a
district court relies on its inherent authority to enforce its pro-
gression orders by excluding a late-disclosed expert, it is not
required to consider the Norquay factors because a different
analytical framework applies. 26
Although the Court of Appeals limited its analysis to whether
exclusion was an appropriate discovery sanction under Rule
37, we focus our further review on whether exclusion was
appropriate under the court’s inherent authority. And because
we ultimately conclude it was not an abuse of discretion for the
court to exclude Ricker’s expert affidavit pursuant to its inher-
ent authority, we do not address the Court of Appeals’ reason-
ing as it regards Rule 37 discovery sanctions.
22 Id.
23 See § 6-337(d).
24 See Putnam, supra note 9. See, also, Carrizales, supra note 2.
25 See id.
26 See id. See, also, Beran v. Nebraska Ortho. & Sports Medicine, 28 Neb.
App. 686, 948 N.W.2d 796 (2020) (noting factors in Norquay, supra note
4, need not be considered when court exercises its inherent power to
enforce progression order by excluding late-disclosed expert opinion).

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RICKER v. NEBRASKA METHODIST HEALTH SYS.
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[7] In Putnam v. Scherbring, 27 we recognized that Nebraska
courts, through their inherent judicial power, have the author-
ity to do all things necessary for the proper administration of
justice. 28 This inherent authority necessarily includes the power
to enter, and to enforce, progression orders. 29
This court has adopted case progression standards 30 and has
encouraged trial judges to “implement firm, consistent proce-
dures for minimizing continuances to meet these standards.” 31
Appropriate procedures include, but are not limited to, estab-
lishing “[t]imeframes for the completion of critical steps in
the litigation process, including discovery,” 32 and “[u]tilizing
early progression orders and mandatory disclosures to shorten
the discovery phase and minimize discovery disputes.” 33 Our
case progression standards expressly state that “[e]ach mem-
ber of the bar shall cooperate with the judiciary in meeting
these standards.” 34
The trial court here entered an early progression order set-
ting mandatory deadlines governing fact discovery, expert
witness disclosures, dispositive and nondispositive motions,
and a tentative trial date. It subsequently amended the progres-
sion order twice to accommodate the parties, and thereafter
it entered orders continuing multiple hearings primarily to
accommodate Palagi and, later, to allow Ricker a meaningful
opportunity to retain new counsel. The trial court was mindful
of the impact of these continuances and delays on the pro-
gression of this case, noting that by the time Ricker disclosed
her medical expert on March 13, 2023, the case had been
27 Putnam, supra note 9.
28 Id.
29 See id. See, also, Carrizales, supra note 2.
30 See § 6-101(A).
31 Putnam, supra note 9, 297 Neb. at 877, 902 N.W.2d at 146.
32 § 6-101(B)(2).
33 § 6-101(B)(4).
34 § 6-101(C).

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pending for nearly 4 years and had already exceeded the case
progression standards “by 29.5 months.” The court was also
concerned that its operative progression order required Ricker
to designate her expert witnesses and provide the substance of
their opinions by September 2020, yet she did not do so until
March 13, 2023, even though the defendants’ motion for sum-
mary judgment was set for hearing as early as November 2021
and had been pending since January 5, 2022.
We 	considered 	similar 	circumstances 	in 	Putnam. 35 The
plaintiff in that case filed a negligence action to recover for
injuries sustained in an automobile collision. The complaint
was filed in April 2012, and in October 2013, the court entered
a progression order that set a trial date and included deadlines
for discovery and expert witness disclosures. The court there-
after granted several continuances of trial and the related dead-
lines, all at the plaintiff’s request. Several of the continuances
were related to health concerns of the plaintiff’s counsel, and
eventually, new counsel took over. Twenty-two days before
trial, the plaintiff’s counsel disclosed a new expert opinion
that addressed the fairness and reasonableness of certain medi-
cal bills and opined that the plaintiff had suffered a traumatic
brain injury.
The defendant in Putnam successfully moved to exclude
the new expert opinion, arguing it introduced new material
that would significantly change the nature of the plaintiff’s
claim, and it did so after the discovery deadline and the expert
disclosure deadline in the operative progression order had
passed. The jury returned a defense verdict, and the plaintiff
appealed. The Court of Appeals reversed, reasoning that the
trial court had abused its discretion in excluding the new
expert opinion as a discovery sanction without considering the
Norquay factors. On further review, we disagreed.
We recognized in Putnam that the district court had the
inherent authority to enforce its progression order deadlines
35 See Putnam, supra note 9.

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by excluding the late-disclosed expert opinion and that doing
so was “fundamentally different from imposing a sanction
for a party’s attempt to abuse the discovery process.” 36 We
therefore held that when an untimely expert opinion is being
excluded pursuant to the court’s inherent authority to enforce
its own progression order, “the correct analytical framework
did not require the district court to consider the Norquay
factors.” 37 Instead, we reviewed the trial court’s exercise of its
inherent authority for an abuse of discretion, and found none,
reasoning:
[T]he parties stipulated to a proposed progression order
with a discovery deadline and the district court adopted
and entered the progression order. The court was initially
flexible and amended the order and continued trial three
times to accommodate [the plaintiff]. But, it ultimately
elected to enforce its progression order when, shortly
before trial, [the plaintiff] attempted to disclose new
expert opinions and evidence which would undoubtedly
cause further delay. 38
We agreed with the trial court’s observation that “‘scheduling
orders have to mean something,’” 39 and we concluded it was
not an abuse of discretion to exclude expert evidence that was
first disclosed more than 1 year after the deadline in the pro-
gression order and shortly before trial. We thus reversed the
decision of the Court of Appeals and remanded the cause with
directions to affirm the district court’s judgment.
Here, like in Putnam, the district court was initially flex-
ible and accommodated requests to amend the progression
order and to grant repeated continuances that delayed the
case progression. Ultimately, however, it exercised its inherent
36 Putnam, supra note 9, 297 Neb. at 877, 902 N.W.2d at 146.
37 Id.
38 Id.
39 Id. at 878, 902 N.W.2d at 147.

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authority to enforce the progression order, and we see nothing
untenable or unreasonable in its reasoning.
This medical malpractice action was filed in March 2019,
and Ricker’s counsel was well aware that he would need tes-
timony from a medical expert to establish a prima facie case
at trial 40 and to survive a motion for summary judgment. 41
The operative progression order required Ricker to designate
expert witnesses and disclose the substance of their opinions
by September 28, 2020, but she did not designate a medical
expert until March 2023. This disclosure came 896 days after
the progression order deadline had expired and just 9 days
before the rescheduled summary judgment hearing, which was
initially set for November 2021 and was continued at least four
times at Ricker’s request.
In summary, the district court carefully considered all the
factors that may have influenced Ricker’s late disclosure under
the operative progression order, and it articulated sound rea-
sons for concluding that it was appropriate to enforce the pro-
gression order and exclude the expert’s late-disclosed opinion,
rather than continue the case again when it was already well
beyond the case progression standards. This reasoning was
neither untenable nor unreasonable, and it was not clearly
against justice or conscience, reason, or evidence. To the
extent the Court of Appeals found an abuse of discretion on
this record, it erred. We therefore reverse the Court of Appeals’
decision in that regard.
40 See, e.g., Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004)
(recognizing general rule that in medical malpractice case, plaintiff must
prove physician’s negligence by expert testimony).
41 See, e.g., Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023)
(finding because plaintiff in medical malpractice action failed to present
expert testimony, directed verdict in favor of defendant was proper);
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008)
(holding defendants entitled to summary judgment on medical malpractice
claim because plaintiffs failed to present requisite expert testimony).

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RICKER v. NEBRASKA METHODIST HEALTH SYS.
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Having determined there was no abuse of discretion in
excluding the affidavit of Ricker’s only medical expert, we
turn our attention to the defendants’ assignment that the Court
of Appeals erred in reversing the district court’s summary judg-
ment ruling.
2. Summary Judgment
[8,9] Summary judgment is proper only when the plead-
ings, depositions, admissions, stipulations, and affidavits in
the record disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. 42 The party moving for summary
judgment must make a prima facie case by producing enough
evidence to show the movant would be entitled to judgment
if the evidence were uncontroverted at trial. 43 If the moving
party makes a prima facie case, the burden shifts to the non-
movant to produce evidence showing the existence of a mate-
rial issue of fact that prevents judgment as a matter of law. 44
Here, the evidence offered by the defendants in support of
the motion for summary judgment, including Orton’s affidavit
that he did not violate the standard of care, was sufficient,
if uncontroverted, to entitle them to judgment as a matter of
law. 45 The burden thus shifted to Ricker to produce evidence
showing the existence of a material issue of fact prevent-
ing summary judgment. 46 Without the late-disclosed medial
expert, Ricker failed to meet her burden, and the district
court properly granted summary judgment in favor of the
defendants and dismissed Ricker’s claims with prejudice. The
Court of Appeals erred in concluding to the contrary, and its
42 Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).
43 Id.
44 Id.
45 See id.
46 See id.

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decision must be reversed. Because of our disposition on fur-
ther review, it is unnecessary to address any other aspect of
the Court of Appeals’ opinion.
V. CONCLUSION
For the foregoing reasons, we reverse the decision of the
Court of Appeals and remand the cause to that court with direc-
tions to affirm the judgment of the district court.
Reversed and remanded with directions.
Heavican, C.J., not participating in the decision.