Moreno v. City of Gering

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Rosa Moreno, appellee, v. City of Gering
and Scotts Bluff County, political
subdivisions, appellants.
878 N.W.2d 529
Filed April 15, 2016. 	No. S-15-216.
1. Judgments: Jurisdiction. When a jurisdictional question does not
involve a factual dispute, the issue is a matter of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
3. Pretrial Procedure: Appeal and Error. Decisions regarding discovery
are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
4. Pretrial Procedure: Proof: Appeal and Error. The party asserting
error in a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion.
5. Motions for Continuance: Appeal and Error. An appellate court
reviews a judge’s ruling on a motion to continue for an abuse
of discretion.
6. Political Subdivisions Tort Claims Act: Judgments: Appeal and
Error. In actions brought under the Political Subdivisions Tort Claims
Act, an appellate court will not disturb the factual findings of the trial
court unless they are clearly wrong. And in such actions, when deter-
mining the sufficiency of the evidence to sustain the trial court’s judg-
ment, it must be considered in the light most favorable to the successful
party; every controverted fact must be resolved in favor of such party,
and it is entitled to the benefit of every inference that can reasonably be
deduced from the evidence.
7. Mandamus. Mandamus lies only to enforce the performance of a
mandatory ministerial act or duty and is not available to control judi-
cial discretion.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
a substantial right of the complaining party. The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence is admit-
ted without objection. In particular, where the information contained in
an exhibit is, for the most part, already in evidence from the testimony
of witnesses, the exclusion of the exhibit is not prejudicial.
9. Trial: Witnesses. In a bench trial of an action at law, the trial court is
the sole judge of the credibility of the witnesses and the weight to be
given their testimony.
Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
Charles W. Campbell, of Angle, Murphy & Campbell, P.C.,
L.L.O., and Howard P. Olsen, Jr., of Simmons Olsen Law Firm,
P.C., for appellants.
Michael W. Meister for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Miller-Lerman, J.
NATURE OF CASE
After being injured in a motor vehicle accident, Rosa
Moreno filed this negligence action against the City of Gering,
Nebraska (the City), and Scotts Bluff County, Nebraska (the
County). The district court for Scotts Bluff County entered
judgment in Moreno’s favor. The City and the County appeal.
The City and the County claim, inter alia, that the court erred
when it overruled their motion to compel discovery of informa-
tion regarding other surgeries performed by a doctor who they
contend performed an unnecessary surgery on Moreno, the cost
of which should not be their responsibility. We affirm the judg-
ment of the district court.
STATEMENT OF FACTS
On January 12, 2011, Moreno was a passenger in a handi-
bus operated by the County when the handibus was hit by a
van operated by the City’s volunteer fire department. Moreno

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Cite as 293 Neb. 320
was ejected from the handibus and landed on the street pave-
ment. Moreno was transported by ambulance to Regional West
Medical Center.
Moreno brought this personal injury action against the City
and the County under the Political Subdivisions Tort Claims
Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012). Both the
City and the County admitted liability, and therefore, Moreno’s
claim for damages was the only matter at issue in the bench
trial held in the district court.
A major contested issue regarding damages was whether a
cervical fusion surgery performed in June 2011 by Dr. Omar
Jimenez, a neurosurgeon, was necessary to treat Moreno for
an injury caused by the accident. A few months before the
trial was set to begin, the City and the County learned of pub-
lished news reports which indicated that in 2011 and 2012,
Dr. Jimenez had performed an unusually high number of
spinal fusion surgeries similar to the surgery performed on
Moreno. The reports indicated that there existed a debate over
whether some surgeons were performing spinal fusions that
were unnecessary and potentially dangerous. The reports also
stated that malpractice claims had been brought against Dr.
Jimenez and that his medical privileges had been suspended
by a network of hospitals in Georgia. The news reports cited
and quoted a medical expert who contended that surgeons who
performed high numbers of spinal fusions “should be looked at
closely and asked to explain themselves.”
After learning of the news reports, the City and the County
issued medical records subpoenas to Regional West Physicians
Clinic and Regional West Medical Center (collectively Regional
West). They sought records that documented, inter alia, infor-
mation regarding similar surgeries performed by Dr. Jimenez,
including the number and types of surgeries performed by Dr.
Jimenez, discussions among Regional West staff and adminis-
trators regarding the surgeries performed by Dr. Jimenez, and
communications to Dr. Jimenez regarding surgeries he per-
formed at Regional West.

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
Although Moreno did not object, Regional West objected
to the subpoenas. The City and the County filed a motion to
compel Regional West to produce the records. They also filed
a motion to continue the trial in order to allow them time to
conduct discovery of the requested information and to perform
any followup discovery after reviewing the information. At a
hearing on the motion to compel, Regional West objected to
certain exhibits offered by the City and the County in support
of the motion. In its order ruling on the motion, the court first
sustained Regional West’s hearsay objection to portions of the
exhibits, including the news reports regarding the number of
spinal fusions performed by Dr. Jimenez and the controversy
regarding such surgeries. The court overruled other objections
raised by Regional West.
After the hearing, the court overruled the motion to compel.
The court reasoned that the records were not relevant to this
case, because they related to nonparty patients and were to
be used only as character evidence regarding Dr. Jimenez and
his alleged propensity to perform unnecessary surgeries. The
court noted that such nonparty records would not normally be
admissible under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014),
regarding character evidence, and Neb. Rev. Stat. § 27-403
(Reissue 2008), regarding the probative value of evidence.
The court acknowledged that the “concept of relevancy is
broader in the discovery context than in the trial context” and
that a “party may discover relevant evidence that would be
inadmissible at trial, so long as it may lead to the discovery of
admissible evidence.” However, the court reasoned that even
without such nonparty records, the City and the County would
still be able to introduce direct evidence regarding whether the
surgery performed on Moreno was necessary. The court there-
fore concluded that the motion to compel discovery should
be overruled.
The court also overruled the City and the County’s motion
to continue the trial. The court noted that Moreno served tort
claim notices on the City and the County in May 2011, that

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
she filed her complaint in November 2012, and that in March
2014, trial had been set for August. The court reasoned that
efforts by the City and the County to discover information
regarding Dr. Jimenez’ treatment of other patients “did not
have to wait for” the news reports of which the City and the
County learned in April or May 2014.
At the trial on damages, Moreno presented evidence regard-
ing expenses she incurred for medical treatment following the
accident. Such evidence included testimony by various medi-
cal professionals who treated her, including Dr. Jimenez, who
began his testimony by reviewing his qualifications and experi-
ence. He then testified regarding his treatment of Moreno. Dr.
Jimenez opined that Moreno suffered an injury in the accident
that aggravated a preexisting condition and caused compres-
sion of the nerves in her spinal cord. He further opined that the
cervical fusion surgery was necessary to treat the condition.
The City and the County cross-examined Dr. Jimenez at length.
The cross-examination made reference to medical records and
reports by other medical professionals for the purpose of
undermining Dr. Jimenez’ opinions.
In their defense, the City and the County presented the
video deposition of Dr. Charles Taylon generally for the pur-
pose of showing that the cervical fusion surgery was unnec-
essary. Dr. Taylon stated that he was a neurosurgeon, and
he 	testified 	regarding 	his 	training 	and 	experience, 	which
included being educated in medicine at Creighton University
in Omaha, Nebraska, and at the University of Wisconsin in
Madison, Wisconsin, and being a professor of neurosurgery at
the Medical College of Wisconsin in Milwaukee, Wisconsin.
Dr. Taylon had reviewed Moreno’s medical records and other
information in order to offer opinions regarding the cervical
fusion surgery performed on Moreno. Dr. Taylon opined that
the surgery was unnecessary, that it was unrelated to the acci-
dent, and that the accident had not aggravated a preexisting
cervical problem. During cross-examination by Moreno, Dr.
Taylon testified that Dr. Jimenez’ treatment of Moreno was

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
“worse than malpractice,” that Dr. Jimenez was “a criminal,”
and that the cervical fusion surgery was “unnecessary” and
an “assault.”
Following trial, the court entered judgment in favor of
Moreno in the amount of $575,203.62. The court found, inter
alia, that the accident aggravated Moreno’s preexisting medi-
cal condition and that medical treatment, including the surgery
performed by Dr. Jimenez, was necessary and was proximately
caused by the accident. In its written memorandum order
and judgment, the court reviewed the testimonies of both
Dr. Jimenez and Dr. Taylon and concluded that it generally
accepted the testimony of Dr. Jimenez where it was in conflict
with the testimony of Dr. Taylon. The court noted that “Dr.
Taylon’s testimony took a very unusual turn” when on cross-
examination he “became overly adversarial, argumentative, and
confrontational.” The court specifically noted, among other
examples, that Dr. Taylon had called Dr. Jimenez a “criminal”
and accused him of assaulting Moreno. The court stated that
such behavior “goes to bias and the weight to be given to
the witness[’] testimony,” and the court further observed that
“[t]hroughout his testimony, Dr. Taylon was as much an advo-
cate as an unbiased, impartial expert witness.”
The City and the County appeal from the judgment of the
district court.
ASSIGNMENTS OF ERROR
The City and the County claim that the district court
erred when it (1) overruled their motion to compel discovery
of information from Regional West, (2) sustained Regional
West’s hearsay objection to evidence offered in support of
the motion to compel discovery, (3) overruled the motion to
continue the trial, (4) found that the surgery performed by
Dr. Jimenez and related medical care were necessary to treat
an injury Moreno suffered in the accident, and (5) awarded
Moreno damages based on the surgery and related medi-
cal care.

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
STANDARDS OF REVIEW
[1,2] When a jurisdictional question does not involve a fac-
tual dispute, the issue is a matter of law. Kelliher v. Soundy,
288 Neb. 898, 852 N.W.2d 718 (2014). An appellate court
reviews questions of law independently of the lower court’s
conclusion. Id.
[3,4] Decisions regarding discovery are directed to the dis-
cretion of the trial court, and will be upheld in the absence of
an abuse of discretion. Breci v. St. Paul Mercury Ins. Co., 288
Neb. 626, 849 N.W.2d 523 (2014). The party asserting error in
a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion. Id.
[5] An appellate court reviews a judge’s ruling on a motion
to continue for an abuse of discretion. See Adrian v. Adrian,
249 Neb. 53, 541 N.W.2d 388 (1995).
[6] In actions brought under the Political Subdivisions Tort
Claims Act, an appellate court will not disturb the factual find-
ings of the trial court unless they are clearly wrong. Williams
v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015). And
in such actions, when determining the sufficiency of the evi-
dence to sustain the trial court’s judgment, it must be consid-
ered in the light most favorable to the successful party; every
controverted fact must be resolved in favor of such party, and
it is entitled to the benefit of every inference that can reason-
ably be deduced from the evidence. See id.
ANALYSIS
The City and the County Were Not Required
to Seek Immediate Review After the District
Court Overruled Their Motion to Compel
Discovery; Issues Related to the Motion
Are Reviewable in This Appeal.
We note as an initial matter that Moreno contends in her
brief that the City and the County waived issues relating to
the motion to compel discovery because they failed to utilize
what she asserts was the proper procedure to preserve such

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
issues for appellate review. She specifically contends that the
appropriate procedure to gain review of such issues is to file
a petition for a writ of mandamus after the district court over-
rules the motion to compel discovery, but she also suggests
that an immediate appeal may be appropriate. Moreno basi-
cally argues that in this case, we lack jurisdiction to review
the district court’s ruling on the motion to compel discovery
because the City and the County did not file for review of the
ruling earlier. We reject Moreno’s argument, and instead, we
conclude that the order overruling the motion to compel dis-
covery and issues related thereto are reviewable in this appeal
from the final judgment.
Moreno does not cite direct precedent for her assertion that
appellate review of the discovery ruling should have been
invoked by a petition for a writ of mandamus. Instead, she
relies heavily on Schropp Indus. v. Washington Cty. Atty.’s
Ofc., 281 Neb. 152, 160, 794 N.W.2d 685, 693 (2011), and
specifically to the portion of our decision in which we held
that “an order granting discovery from a nonparty in an ancil-
lary proceeding is not a final, appealable order” but noted that
“some federal courts have recognized a limited exception . . .
and permitted appeal by a party under the collateral order doc-
trine from an order denying discovery from a nonparty in an
ancillary proceeding.” This portion of Schropp Indus. refers to
taking an appeal rather than petitioning for mandamus. So, we
do not believe it supports Moreno’s claim that the City and the
County should have sought mandamus.
[7] To the extent Moreno argues that the City and the
County should have petitioned for a writ of mandamus, we
note that in civil cases, we have stated that decisions regarding
discovery are directed to the discretion of the trial court and
will be upheld in the absence of an abuse of discretion. Breci
v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523
(2014). As we stated in Schropp Indus., supra, and elsewhere,
this court will issue a writ of mandamus upon a proper show-
ing by a relator; however, mandamus lies only to enforce the

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
performance of a mandatory ministerial act or duty and is not
available to control judicial discretion. Because the decision
whether to compel discovery was directed to the district court’s
discretion, mandamus would not have been a proper vehicle
for the City and the County to challenge the overruling of their
motion. Cf. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d
632 (2009) (regarding availability of mandamus to limit dis-
covery when privilege applies).
To the extent Moreno’s argument is that, rather than filing
a petition for a writ of mandamus, the City and the County
should have immediately appealed from the order overrul-
ing their motion to compel discovery, Moreno’s reliance on
Schropp Indus. is not helpful. Schropp Indus. involved “an
order of the Washington County District Court entered in an
ancillary discovery proceeding enforcing compliance with
a subpoena issued on behalf of a Douglas County court.”
281 Neb. at 154, 794 N.W.2d at 689. In contrast, the present
case involves a discovery ruling made in the district court
for Scotts Bluff County, which is the same court in which
the action was proceeding. Thus, the present case involves
a significantly different context than the sort of ancillary
proceeding at issue in Schropp Indus. and the federal cases
referenced therein.
We stated in Schropp Indus. that it was “not disputed that,
had this discovery dispute been litigated in Douglas County,
the [Douglas County] district court’s order would be neither
final nor appealable,” and we noted that if the discovery order
at issue in that case had been entered in the Douglas County
District Court, it could have been adequately reviewed on
appeal from a final judgment and, thus, the discovery order
would not have been appealable at the time of its issuance. 281
Neb. at 157, 794 N.W.2d at 691. The discovery ruling in this
case, made by the same court in which the action was proceed-
ing, can be adequately reviewed on appeal from the final judg-
ment, and therefore, there was no basis for the order to have
been immediately appealable.

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
We conclude that the City and the County were not required
to seek immediate review of the overruling of the motion
to compel discovery and that therefore, issues related to the
motion were not waived and are reviewable in this appeal from
the final judgment.
The District Court Did Not Err When It Sustained
Objections to Evidence Offered in Support of the
Motion to Compel Discovery, When It Overruled
the Motion to Compel Discovery, or When It
Denied the Motion to Continue the Trial.
The City and the County raise various issues relating to their
motion to compel Regional West to provide records regarding
Dr. Jimenez and surgeries he performed on other patients. They
claim that the court erred when it (1) sustained Regional West’s
hearsay objection to certain evidence they offered in support of
the motion, (2) overruled the motion, and (3) overruled their
motion to continue the trial in order to allow them to complete
the requested discovery. We conclude that the district court did
not err in any of these respects.
Evidentiary Ruling.
At the hearing on the City and the County’s motion to
compel discovery, Regional West objected to certain exhibits
offered by the City and the County in support of the motion.
Specifically, Regional West objected to a portion of the affi-
davit of the County’s attorney in which he referred to news
reports about Dr. Jimenez, and to the news reports themselves,
which were attached to the affidavit. The court took the objec-
tions under advisement, and in its order ruling on the motion,
the court sustained Regional West’s hearsay objection. The
court went on to consider the merits of the motion to compel
discovery, and it overruled the motion.
The City and the County contend that the evidence was not
hearsay, because it was not offered to prove the truth of the
matters asserted but was offered to show the relevance of the
materials sought to be discovered, to show why discovery had

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
not been sought earlier than the publication of the news reports
in May and April 2014, and to show why the trial should be
continued to allow discovery. They argue that the truth of the
news reports was not at issue in the hearing and that the rel-
evance of the news reports was to explain and justify the need
for discovery.
[8] We determine that whether or not the evidence was
inadmissible hearsay, the court’s sustaining Regional West’s
objection was not reversible error. In a civil case, the admis-
sion or exclusion of evidence is not reversible error unless
it unfairly prejudiced a substantial right of the complaining
party. Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857
N.W.2d 816 (2015). The exclusion of evidence is ordinarily
not prejudicial where substantially similar evidence is admitted
without objection. Id. In particular, where the information con-
tained in an exhibit is, for the most part, already in evidence
from the testimony of witnesses, the exclusion of the exhibit is
not prejudicial. Id.
In the present case, it is clear from the court’s order overrul-
ing the motion to compel discovery that the court understood
what records the City and the County sought to discover, the
nature of what they expected the records to show, and the pur-
pose for which they wished to use the information. Portions
of the evidence which were admitted, as well as the motion
to compel itself, referred to the news reports and indicated the
nature of the reports. The court had a full understanding of the
discovery issue without the excluded material. We see noth-
ing that would suggest that if the court had admitted the evi-
dence to which Regional West objected, the court would have
reached a different conclusion as to whether it should compel
discovery of the records. Therefore, sustaining the objection
did not unfairly prejudice a substantial right of the City and the
County. We therefore reject this assignment of error.
Overruling Motion to Compel Discovery.
Regarding the merits of the motion to compel discovery, the
district court determined that the requested records were not

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Cite as 293 Neb. 320
relevant to this case, because they related to nonparty patients
and were to be used only as character evidence regarding Dr.
Jimenez. The court stated that such nonparty records would
not normally be admissible. Although it acknowledged that
the “concept of relevancy is broader in the discovery context
than in the trial context” and that a “party may discover rel-
evant evidence that would be inadmissible at trial, so long
as it may lead to the discovery of admissible evidence,” the
court reasoned that even without such nonparty records, the
City and the County would still be able to introduce direct
evidence regarding whether the surgery performed on Moreno
was necessary. The court therefore overruled the motion to
compel discovery.
The City and the County contend that Dr. Jimenez’ cred-
ibility was the central issue in this case and that discovery of
the records was necessary to allow them to effectively cross-
examine Dr. Jimenez. They argue that the district court erro-
neously focused on whether the records would be admissible
at trial rather than applying the proper standard for discovery
under Neb. Ct. R. Disc. § 6-326.
The City and the County refer to Stetson v. Silverman, 278
Neb. 389, 403, 770 N.W.2d 632, 644 (2009), in which dis-
covery of other incidents involving a doctor was permitted,
wherein we stated that
under [Neb. Ct. R. Disc. § 6-326(b)(1)], information
sought through discovery must also be “relevant to the
subject matter involved in the pending action.” This
requirement differs significantly from the relevancy test
for admission of evidence at trial: having a tendency to
make the existence of any fact at issue more or less prob-
able. Moreover, under [§ 6-326(b)(1)], the inadmissibility
of the information at trial is not ground for objection if
the information “appears reasonably calculated to lead to
the discovery of admissible evidence.”
In Stetson, we rejected a request for a writ of mandamus to
quash a discovery order permitting discovery of information

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regarding professional discipline against a doctor who was
one of the defendants in the underlying action. Although we
declined to comment on whether the information to be dis-
covered would be admissible at trial, we concluded that we
could not say that “at the discovery stage [the plaintiff] could
not obtain further information that would be relevant to [the
defendant-doctor’s] credibility or a misleading characterization
of him at trial” and that we could not “rule out [the plaintiff’s]
obtaining information that would be relevant to showing [the
defendant-doctor’s] medical judgment was impaired at the
time he treated [the plaintiff].” Stetson, 278 Neb. at 405, 770
N.W.2d at 645.
The City and the County argue that the information they
sought to discover was relevant to Dr. Jimenez’ credibility in
the same way that the information for which discovery was
allowed in Stetson, supra, was relevant to the credibility of the
doctor in that case and that therefore, the ruling in the present
case was erroneous. The cases are dissimilar, and we do not
agree with the argument asserted by the City and the County.
Decisions regarding discovery are directed to the discretion of
the trial court and will be upheld in the absence of an abuse of
discretion; the party asserting error in a discovery ruling bears
the burden of showing that the ruling was an abuse of discre-
tion. Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849
N.W.2d 523 (2014). In the present case, we cannot say that
the district court abused its discretion when it overruled the
City and the County’s motion to compel discovery of records
regarding Dr. Jimenez’ treatment of other patients.
At issue in this case was the testimony of Dr. Jimenez, a
nonparty, relating to whether the specific surgery performed
on Moreno was necessary and caused by the accident. In con-
trast, Stetson was a medical malpractice action in which the
plaintiff was allowed discovery of information regarding a
disciplinary action against the doctor who was the defendant
in the case. We believe information regarding other incidents
involving the doctor-defendant in a medical malpractice case

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are more probative of the underlying action than information
regarding other surgeries performed by a nonparty witness in
a personal injury action. As the district court in this case rea-
soned, even without records regarding surgeries performed on
other patients by Dr. Jimenez, the City and the County would
still be able to introduce direct evidence regarding the central
issue in the case, i.e., Moreno’s entitlement to damages and
whether the surgery performed on Moreno was necessary as an
element of damages.
With respect to Dr. Jimenez’ credibility, it is clear from
the record that in addition to cross-examining Dr. Jimenez
regarding the necessity of the surgery performed on Moreno,
the City and the County were permitted to question Dr.
Jimenez regarding his reputation for performing unnecessary
surgeries. We believe that had the City and the County been
permitted to discover additional information regarding the
other surgeries, additional questioning of Dr. Jimenez regard-
ing surgeries performed on other patients would likely have
been inadmissible as extrinsic evidence of specific conduct
under Neb. Rev. Stat. § 27-608(2) (Reissue 2008). Although
the anticipated inadmissibility of information at trial is not
a reason to deny discovery of such information, it is still
necessary that discovery “‘appears reasonably calculated to
lead to the discovery of admissible evidence.’” Stetson v.
Silverman, 278 Neb. 389, 403, 770 N.W.2d 632, 644 (2009).
The City and the County have not shown how discovery of
the requested records would have led to the discovery of
admissible evidence.
Therefore, we cannot say that the district court abused its
discretion when it overruled the motion to compel discovery.
We reject this assignment of error.
Overruling Motion to Continue Trial.
The City and the County claim that the district court should
have sustained their motion to continue the trial in order to
allow them to conduct the requested discovery and to follow

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Cite as 293 Neb. 320
up on any new information they learned from such discovery.
Because we determine that the district court did not abuse its
discretion when it overruled the motion to compel discovery,
we further determine that there was no need to continue the
trial in order to allow the City and the County to conduct and
develop such requested discovery. We therefore conclude that
the district court did not abuse its discretion when it overruled
the motion to continue the trial.
The District Court Was Not Clearly Wrong When It
Found That the Surgery Performed by Dr. Jimenez
Was Necessary and Proximately Caused by the
Accident, and the Court Did Not Err When It
Awarded Damages Related to Such Surgery.
The City and the County claim that the district court erred
when it found that the surgery performed by Dr. Jimenez was
necessary and was proximately caused by the accident. The
City and the County specifically contend that the district court
was clearly wrong when it found that the accident caused an
aggravation of preexisting conditions, including significant cer-
vical stenosis, which made the surgery performed on Moreno
by Dr. Jimenez necessary, and they therefore claim that the
court erred when it awarded damages related to such surgery.
We conclude that the district court’s factual findings were not
clearly wrong and that the court’s judgment awarding damages
was supported by sufficient evidence.
In actions brought under the Political Subdivisions Tort
Claims Act, an appellate court will not disturb the factual find-
ings of the trial court unless they are clearly wrong. Williams v.
City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015). And in
such actions, when determining the sufficiency of the evidence
to sustain the trial court’s judgment, it must be considered in
the light most favorable to the successful party; every contro-
verted fact must be resolved in favor of such party, and it is
entitled to the benefit of every inference that can reasonably be
deduced from the evidence. See id.

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MORENO v. CITY OF GERING
Cite as 293 Neb. 320
[9] In its order, the district court found, inter alia, that the
accident aggravated Moreno’s preexisting medical condition
and that medical treatment, including the surgery performed by
Dr. Jimenez, was necessary and was proximately caused by the
accident. The court’s findings in this regard depended in large
part on its assessment of the credibility of the testimony of Dr.
Jimenez and the credibility of the testimony of the City and the
County’s witness, Dr. Taylon, who opined that the surgery was
unnecessary, that it was unrelated to the accident, and that the
accident had not aggravated a preexisting cervical problem. In
its written order setting forth its findings, the court specifically
stated that it generally accepted the testimony of Dr. Jimenez
where it was in conflict with the testimony of Dr. Taylon.
Beyond simply stating that it found Dr. Jimenez’ testimony
more credible, the court set forth specific reasons it found
Dr. Taylon’s testimony less credible and it gave examples of
portions of Dr. Taylon’s testimony which led to its credibility
determination. The court stated that Dr. Taylon “became overly
adversarial, argumentative, and confrontational,” calling Dr.
Jimenez a “criminal” and accusing him of assaulting Moreno.
The court stated that such behavior factored into its assess-
ment of the witness’ “bias and the weight to be given to the
witness[’] testimony” and gave the court the impression that
“Dr. Taylon was as much an advocate as an unbiased, impar-
tial expert witness.” In a bench trial of an action at law, the
trial court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Elting v. Elting,
288 Neb. 404, 849 N.W.2d 444 (2014). To the extent that the
district court made credibility determinations regarding Dr.
Jimenez’ and Dr. Taylon’s conflicting testimony, we defer to
those determinations.
We also reject the City and the County’s arguments that
Dr. Jimenez’ testimony did not support the district court’s
findings. In this connection, the City and the County assert
that the necessity of the surgery was not established, because
they contend there was a lack of evidence in the record that

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293 Nebraska Reports
MORENO v. CITY OF GERING
Cite as 293 Neb. 320
Moreno reported neck pain prior to the surgery. However, Dr.
Jimenez addressed the absence of reports of neck pain when
he testified that Moreno reported thoracic, shoulder, and arm
pain, which he determined were radicular symptoms caused by
cervical stenosis, and that surgery was the proper treatment for
the cause of that pain. In sum, if Dr. Jimenez’ testimony was
credible, which the district court clearly found it to be, then
there was sufficient evidence to support the court’s findings
regarding the necessity of the surgery and its connection to
the accident.
The foregoing contentions of the City and the County are
all in service of its larger argument that the district court erred
when it awarded damages related to the surgery performed
by Dr. Jimenez. Their arguments in this respect are based on
their contention that the district court was clearly wrong when
it found that the surgery was necessary and was connected to
the accident. Because we determine that such findings were
not clearly wrong, it follows that the court did not err when it
awarded damages related to the surgery. We reject this assign-
ment of error.
CONCLUSION
We conclude that issues related to the motion to compel dis-
covery are reviewable in this appeal from the final judgment.
We further conclude that the district court did not err when it
sustained hearsay objections to evidence offered in support of
the motion to compel, when it overruled the motion to com-
pel discovery, and when it overruled the motion to continue
the trial in order to allow discovery. We finally conclude that
the district court was not clearly wrong in its findings that
Moreno’s condition was caused by the accident and that the
surgery performed by Dr. Jimenez was necessary. Finally, we
determine that the district court did not err when it awarded
damages related to the challenged surgery. We affirm the judg-
ment of the district court.
Affirmed.