Morgan v. Mysore

We agree. When a consumer uses a credit card, the consumer is
deferring payment and the issuer pays for the purchases on the
consumer’s behalf. In return, the consumer is obligated to repay
the money loaned and may have to pay interest. When a bank
makes a loan, it uses funds deposited by other customers. When
the Bank initially pays for the consumer’s credit card purchases,
it is not lending its credit. Rather, the Bank is extending credit
using money deposited by its customers. Eldridge’s assignment
of error lacks merit.
CONCLUSION
We conclude that the district court did not err in affirming the
county court’s judgment in favor of the Bank and in finding no
error in the county court’s denial of Eldridge’s motion to alter
or vacate.
A ffirmed .
WilliAm e. morgAn , J r ., A minor , by And through his
pArent And next friend , WilliAm e. morgAn , sr .,
And WilliAm e. morgAn , sr ., individuAlly ,
AppellAnts , v . mohAn mysore , m.d.,
And C hildren ’ s memoriAl hospitAl ,
A nebrAskA CorporAtion , Appellees .
756 N.W.2d 290
Filed September 2, 2008. 	No. A-06-1326.
1. Pretrial Procedure. Generally, the control of discovery is a matter for judi-
cial discretion.
2. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s failure to give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3) the appellant was
prejudiced by the court’s failure to give the requested instruction.
3. Rebuttal Evidence. It is within the trial court’s discretion whether to allow rebut-
tal evidence.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant
of a substantial right and a just result.
5. Trial: Witnesses: Evidence. The holding in Momsen v. Nebraska Methodist
Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981), regarding a party’s changing his
mORGAN v. mySORE 	17
Cite as 17 Neb. App. 17
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

or her testimony concerning the material facts on a vital issue applies only when
there are two versions of the pertinent story told under oath.
6. Trial: Rebuttal Evidence. The general rule is that rebuttal evidence should be
confined to that which explains, disproves, or counteracts evidence introduced by
the adverse party; it is within the discretion of the trial court to allow the introduc-
tion of evidence in rebuttal which would have been proper evidence upon the case
in chief or should have been introduced during the case in chief.
Appeal from the District Court for Douglas County: J oseph s.
troiA, Judge. Affirmed.
Joseph B. muller, of Law Offices of Ronald J. Palagi, P.C.,
L.L.O., for appellants.
Patrick G. Vipond and Denise m. Destache, of Lamson,
Dugan & murray, L.L.P., for appellees.
inbody, Chief Judge, and irWin and CArlson, Judges.
CArlson, Judge.
INTRODUCTION
William E. morgan, Sr., individually and as the parent and
next friend of William E. morgan, Jr. (Billy), brought a medical
malpractice action against mohan mysore, m.D., and Children’s
memorial Hospital (CmH) arising out of the care and treatment
Billy received during his hospitalization at CmH on and after
July 5, 2002. A jury returned a verdict in favor of mysore and
CmH. Based on the analysis that follows, we affirm.
BACKGROUND
On July 5, 2002, Billy, who was 17 years of age at the time,
was admitted to the intensive care unit at CmH at around 10
a.m. Billy had been transferred to CmH from the emergency
department of another hospital where he was seen earlier that
morning for vomiting and decreased level of consciousness.
Billy’s blood glucose level in the emergency room was over
1,400, with the normal range being 70 to 110. Billy had been an
insulin-dependent diabetic since age 7. He had previously been
hospitalized twice as a result of his diabetes, once at the time of
diagnosis and once several years before his admission to CmH
for reeducation.
18 	17 NEBRASKA APPELLATE REPORTS

mysore was the doctor or intensivist on duty in the intensive
care unit at CmH when Billy was admitted, and he assumed
responsibility for Billy’s care. After examining Billy, mysore
concluded that Billy was suffering from diabetic ketoacidosis
(DKA) and began treating him for his symptoms. DKA is a
potentially life-threatening complication of insulin-dependent
diabetes where the person becomes progressively dehydrated,
has low insulin levels, and develops high blood glucose levels.
DKA can affect multiple organs of the body. mysore attributed
the cause of Billy’s DKA to Billy’s noncompliance with his
insulin regimen. There are three other recognized causes of
DKA in diabetics in addition to poor insulin management, one
of which is infection.
As the day progressed, Billy’s glucose levels decreased, indi-
cating that the DKA was being appropriately treated. At around
8 p.m., Billy’s nurse noted that Billy appeared to be weak in
his lower extremities. At around 10 p.m., the nurse noted that
she could not detect any movement in Billy’s lower extremi-
ties. The nurse’s notes indicate that she reported her finding to
mysore and a resident physician working with mysore, who
then examined Billy. At 10 p.m., Billy’s condition significantly
deteriorated. His mental condition was such that he was unable
to communicate and unable to cooperate with an examination.
His heart rate increased, his blood pressure decreased, and he
developed a high fever. He also had massive abdominal disten-
sion. mysore and the staff at CmH spent the next several hours
trying to stabilize Billy’s critical condition.
By 6 a.m. on July 6, 2002, Billy’s mental alertness had
improved. He was able to follow commands and cooperate with
those examining him. It was confirmed at that time that Billy
had lost movement and sensation in his lower extremities. A
pediatric neurology consult was obtained and mRI’s of his brain
and spine were performed, at which time it was discovered that a
spinal epidural abscess was compressing the spinal cord. A spi-
nal epidural abscess is an infectious process that occurs in and
around the spinal column. Billy was taken to surgery later that
day for spinal cord exploration and decompression. However,
Billy has never regained use of his legs and is paralyzed from
the chest down.
mORGAN v. mySORE 	19
Cite as 17 Neb. App. 17

On November 8, 2002, morgan filed an action against mysore
and CmH (collectively appellees) alleging that they were “neg-
ligent in failing to follow standard protocol, policies and pro-
cedures for assessment and treatment of Billy’s condition.” In
January 2003, morgan served interrogatories and requests for
production of documents on appellees. In February, appellees
provided morgan with answers to interrogatories and responses
to requests for production of documents. morgan’s counsel
took mysore’s deposition on April 7, 2003. In December 2003
or January 2004, mysore prepared a narrative summary of the
events that transpired on July 5 and 6, 2002.
In February 2005, morgan requested copies of all documents
reviewed by appellees’ experts. A few days later, appellees
notified morgan that they would send copies of the docu-
ments reviewed by their experts. Subsequently, the issue was
addressed by letters between the parties dated march 16, 2005,
July 6, 2005, August 24, 2005, and September 27, 2005. On
October 3, in anticipation of morgan’s taking the deposition of
one of appellees’ expert witnesses, appellees provided morgan
with a list of documents the expert reviewed. The list included
“Narrative of Dr. mysore.” On October 24, morgan requested
copies of documents reviewed by appellees’ experts that had
not yet been turned over to morgan, including mysore’s nar-
rative. On November 4, morgan received a copy of mysore’s
narrative. At no time did appellees provide any supplemen-
tal responses to morgan’s original request for production of
documents, nor did they provide any supplemental responses to
morgan’s interrogatories.
On November 10, 2005, morgan filed a motion for sanctions
alleging that mysore’s narrative contained information that was
inconsistent with that contained in CmH’s medical records and
mysore’s deposition testimony. The motion alleged that as a
result of the inconsistent information in mysore’s narrative,
morgan may need to provide the narrative to his experts to see
if it changes the experts’ opinions, redepose mysore regard-
ing the narrative, and depose additional witnesses. The motion
stated that the above actions would not be necessary but for
appellees’ failure to timely comply with morgan’s requests for
documents, including mysore’s narrative, and appellees’ failure
20 	17 NEBRASKA APPELLATE REPORTS

to supplement their responses to morgan’s discovery requests,
which the motion alleged are violations of Nebraska’s discov-
ery rules. See Neb. Ct. R. Disc. § 6-326(e)(2)(B). Following a
hearing on morgan’s motion for sanctions, the court overruled
the motion, finding that mysore did not change his testimony in
his narrative, but, rather, explained his actions, which were not
asked for by morgan’s counsel at mysore’s deposition. morgan
filed a motion to continue the trial date to allow him time to
conduct further discovery. The trial court granted the motion.
Appellees filed a motion to limit further discovery, and a
hearing was held on the motion. Following the hearing, the
trial court entered an order setting forth specific restrictions and
deadlines for additional discovery. The order allowed morgan to
redepose mysore and allowed morgan to submit the narrative
and redeposition to his experts to supplement their opinions in
response to additional information obtained through mysore’s
narrative, redeposition, and other additional discovery. The order
also allowed morgan to designate additional fact witnesses.
Another hearing was subsequently held pursuant to a motion
by appellees to limit the scope of mysore’s second deposition.
morgan presented a list of 10 areas he wanted to explore during
mysore’s second deposition. The trial court denied some of the
requested areas of inquiry and allowed others. The second depo-
sition of mysore was taken on April 6, 2006.
Trial was held from July 12 to 24, 2006. morgan tried to
prove that appellees were negligent in failing to timely diagnose
and treat Billy’s spinal epidural abscess, which led to paralysis
in Billy’s lower extremities. Appellees tried to show that Billy
was irreversibly paralyzed by 10 p.m. on July 5, 2002, giving
them only 12 hours to diagnose and treat a rare condition, when
Billy’s signs and symptoms were reasonably explained by his
DKA. Appellees contended that during these 12 hours, Billy was
critically ill and medically unstable and appellees were trying to
stabilize Billy’s condition and save his life. Following trial, the
jury returned a verdict in favor of appellees.
ASSIGNmENTS OF ERROR
morgan assigns, restated, that the trial court erred in (1) fail-
ing to apply and enforce the Nebraska discovery rules, (2) failing
mORGAN v. mySORE 	21
Cite as 17 Neb. App. 17

to instruct the jury that portions of mysore’s testimony should be
disregarded as a matter of law, (3) failing to give two other jury
instructions that morgan proffered, and (4) not allowing him to
present rebuttal evidence.
STANDARD OF REVIEW
[1] Generally, the control of discovery is a matter for judicial
discretion. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838
(2002); State ex rel. Acme Rug Cleaner v. Likes, 256 Neb. 34,
588 N.W.2d 783 (1999).
[2] To establish reversible error from a court’s failure to give
a requested jury instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction was warranted by the evidence, and
(3) the appellant was prejudiced by the court’s failure to give the
requested instruction. Higginbotham v. Sukup, 15 Neb. App. 821,
737 N.W.2d 910 (2007).
[3,4] It is within the trial court’s discretion whether to allow
rebuttal evidence. See Westgate Rec. Assn. v. Papio-Missouri
River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996). A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and a just result. Id.
ANALySIS
Trial Court’s Rulings Regarding Discovery.
morgan first argues that the trial court failed to apply and
enforce the discovery rules, thereby denying morgan a fair trial.
morgan alleges that the trial court abused its discretion by over-
ruling the motion for sanctions and in limiting further discovery
when appellees failed to comply with the rules of discovery by
not disclosing the narrative earlier than they did.
morgan contends that throughout the discovery process,
morgan requested information from appellees regarding the
medical records; copies of all records prepared by appellees,
including mysore; and all documents provided to their experts.
morgan further contends that after all discovery had been com-
pleted, and only 3 weeks before the case was to go to trial,
appellees provided morgan with a copy of mysore’s narrative.
morgan contends that appellees’ failure to disclose the narrative
22 	17 NEBRASKA APPELLATE REPORTS

and provide him with a copy at an earlier date was a violation of
appellees’ duty to supplement their discovery responses pursu-
ant to § 6-326(e)(2)(B) and a violation of § 6-326(b)(4)(A)(i),
which requires a party to divulge the facts upon which an expert
is expected to testify and the grounds for his opinions. Based on
appellees’ actions during the discovery process, morgan argues
that the trial court should have granted the motion for sanc-
tions and should not have limited further discovery, specifically
mysore’s second deposition, to the extent it did.
Although the trial court overruled morgan’s motion for sanc-
tions, the trial court subsequently granted morgan’s motion
for a continuance, allowing morgan additional time to conduct
discovery. The trial court allowed morgan to redepose mysore,
which he did; allowed morgan to submit mysore’s narrative and
redeposition to morgan’s experts for review and analysis; and
allowed him to designate additional factual witnesses. Therefore,
morgan was able to question mysore about alleged inconsist-
encies in his narrative and submit this information to his experts
to see if it changed their opinions. In addition, the fact that the
narrative existed had been disclosed to morgan prior to morgan’s
taking the depositions of appellees’ expert witnesses in a list set-
ting forth the material that the experts had reviewed.
In regard to the court’s limits on further discovery, the trial
court did not allow morgan to explore all the areas he requested
in his redeposing of mysore, but it did grant some of his requests.
The court’s order discussed each area requested by morgan and
explained why it was or was not allowing morgan to explore
each area. One of the main areas of alleged inconsistency in
mysore’s narrative was mysore’s account of his actions between
8 and 10 p.m. on July 5, 2002. The court allowed morgan to
explore this area, specifically ordering that morgan “may inquire
of . . . mysore as to what [he] was told by the nurse(s) at 8:00
p.m. on July 5, 2002, and what his activities were and where he
was from that time until approximately 2:00 a.m. July 6, 2002.”
Assuming without deciding that appellees violated the discov-
ery rules, morgan was able to prepare for trial without surprise.
He was allowed to clear up inconsistencies before trial, and he
was allowed time before trial to find out if any of his experts’
opinions changed as a result of the information in mysore’s
mORGAN v. mySORE 	23
Cite as 17 Neb. App. 17

narrative. morgan suffered no prejudice as a result of the court’s
rulings. Generally, the control of discovery is a matter for judi-
cial discretion. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d
838 (2002); State ex rel. Acme Rug Cleaner v. Likes, 256 Neb.
34, 588 N.W.2d 783 (1999). We determine that the trial court did
not abuse its discretion in overruling morgan’s motion for sanc-
tions or in the limits it placed on further discovery.
momsen Instruction.
As previously discussed, morgan contends that mysore’s
narrative contains testimony that is inconsistent with that given
in his initial deposition. He therefore argues that the trial court
erred in failing to instruct the jury that parts of mysore’s testi-
mony were discredited as a matter of law. Specifically, morgan
contends that any information within the narrative that relates to
the timeframe between 8 and 10 p.m. was a significant, material
change from mysore’s deposition. morgan proposed such an
instruction to the trial court, which provided:
The Court has determined that . . . mysore’s testimony
regarding whether he was notified by [the nurse] of the
change in [Billy’s] neurological status at 8:00 p.m., and
whether he was in [Billy’s] room between 8:00 p.m. and
10:00 p.m., is discredited as a matter of law.
Therefore, you must accept as true . . . mysore’s original
deposition testimony that he does not recall whether the
[n]urse told him about her finding, at 8:00 p.m., that Billy
. . . had leg weakness, and that [Billy’s] temperature had
gone up. you must also accept as true . . . mysore’s original
deposition testimony that he did not see Billy . . . at 8:00
p.m., and that he did not see Billy . . . until called into the
room at 10:00 p.m.
The trial court refused to give the instruction.
[5] morgan relies on Momsen v. Nebraska Methodist Hospital,
210 Neb. 45, 313 N.W.2d 208 (1981), which held that where a
party, without reasonable explanation, changes his testimony
concerning the material facts on a vital issue, such change
clearly being made to meet the exigencies of pending litigation,
the testimony is discredited as a matter of law and should be dis-
regarded. In Momsen, the change in testimony occurred during
24 	17 NEBRASKA APPELLATE REPORTS

the time between a defendant’s deposition and his testimony at
trial, which were obviously both done under oath. In the present
case, mysore’s narrative was not given under oath and does not
constitute testimony. Momsen is clear that the doctrine applies
when there are two versions of the pertinent story told under
oath. That is not the case here. As a result, Momsen is inappli-
cable to the facts of this case and the trial court did not err in
refusing to give a Momsen instruction.
Other Jury Instructions.
morgan also assigns that the trial court erred in failing to
give two other jury instructions that he proffered. The first jury
instruction morgan proposed that the trial court refused to give
explained the concept of a reliable “differential diagnosis.”
morgan contends that the jury was presented with testimony
regarding the concept of differential diagnosis and with whether
mysore conducted a proper differential diagnosis when treating
Billy. morgan’s proposed instruction cites Epp v. Lauby, 271
Neb. 640, 715 N.W.2d 501 (2006), and Carlson v. Okerstrom,
267 Neb. 397, 675 N.W.2d 89 (2004), as the sources of his
instruction. These cases involved a Daubert hearing that took
place before trial to determine whether a medical expert’s
opinion regarding the cause of a party’s condition or injuries
was relevant and reliable and thus, admissible. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). Under the Daubert framework,
for an expert’s opinion to be admissible, the expert must have
conducted a reliable differential diagnosis, which involves com-
piling a list of potential causes of a patient’s symptoms and then
eliminating potential causes based on a continuing examination
of the evidence to reach the most likely cause of the patient’s
condition. morgan’s instruction sets forth how a differential
diagnosis must be conducted to be considered reliable for pur-
poses of a Daubert hearing. The instant case does not involve
a Daubert analysis, and therefore, the instruction relates to a
differential diagnosis process that is not relevant to this case.
We conclude that the instruction proposed by morgan is inap-
plicable and that the trial court did not err in refusing to give
such instruction.
mORGAN v. mySORE 	25
Cite as 17 Neb. App. 17

The second instruction morgan contends the trial court erred
in failing to give is a nondelegable duty instruction, which stated
in part:
An intensivist, working in a pediatric intensive care unit,
has the duty to be aware of all reasonably available medical
information significant to the health of his patient during
the time that he is providing medical care to his patient.
This is a non-delegable duty. That means that the inten-
sivist, by assigning to another the duty to read such medi-
cal information, is not relieved from liability arising from
this duty if it is negligently performed.
No one disputes that mysore was the doctor or intensivist in
charge of Billy’s care on July 5, 2002. Based on the record
before us, morgan did not present evidence that mysore dele-
gated or assigned duties in regard to Billy’s available medical
information and appellees did not contend that mysore was not
required to be aware of all the medical information. We conclude
that the tendered instruction was not warranted by the evidence
and that the trial court did not err in failing to give morgan’s
nondelegable duty instruction.
Rebuttal Evidence.
Finally, morgan contends that the trial court erred in not
allowing him to present rebuttal evidence. morgan sought to
offer the testimony of Dr. Theresa Hatcher on rebuttal. Appellees
objected on the basis of improper rebuttal evidence, and the
trial court sustained the objection. Hatcher stated, in an offer
of proof, that she had reviewed two entries in CmH’s medi-
cal records written by a pediatric surgeon who examined Billy
around 11 or 11:30 p.m. on July 5, 2002. According to Hatcher,
the pediatric surgeon’s notes indicate that he performed a rectal
examination on Billy and the result was normal. If allowed to
testify, Hatcher would have stated that she would not expect
a patient with paralysis below his diaphragm to have a rectal
examination with normal results and that she would be able to
note the paralysis upon doing the rectal examination.
morgan contends that the time that Billy became paralyzed
was an important issue in this case and that Hatcher’s testimony
would have proved that Billy’s paralysis had not occurred by
26 	17 NEBRASKA APPELLATE REPORTS

10 p.m. on July 5, 2002, as appellees tried to prove in their case
in chief. morgan also believes that the testimony of Hatcher
should have been allowed to refute mysore’s testimony that he
did not know whether the result of a rectal examination of Billy
in his current state of paralysis would be abnormal.
[6] The general rule is that rebuttal evidence should be con-
fined to that which explains, disproves, or counteracts evidence
introduced by the adverse party; it is within the discretion of
the trial court to allow the introduction of evidence in rebut-
tal which would have been proper evidence upon the case in
chief or should have been introduced during the case in chief.
Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10,
547 N.W.2d 484 (1996).
Hatcher’s testimony does not explain, disprove, or counteract
evidence introduced by appellees. Appellees did not introduce
evidence regarding the significance of a rectal examination in a
patient such as Billy. The result of the rectal examination per-
formed by the pediatric surgeon was not evidence introduced by
appellees. The pediatric surgeon’s notes from his examination
of Billy were part of Billy’s medical records from CmH, which
morgan had before trial. If morgan wanted to point out that a
rectal examination with normal results in a patient indicates no
paralysis, he could have called Hatcher for that very reason in
his case in chief.
Further, mysore’s testimony that he did not know whether a
rectal examination of Billy in his current state of paralysis would
be abnormal was not introduced by appellees—rather, it was
brought out by morgan on cross-examination of mysore.
Hatcher’s testimony would have been proper evidence for
morgan’s case in chief because it related directly to morgan’s
principal allegation that the failure of appellees to timely diag-
nose and treat a spinal epidural abscess in Billy caused him to
suffer permanent paralysis. Thus, morgan sought to adduce evi-
dence on rebuttal that simply reinforced the theory of the case
he advanced in his case in chief. It is within the discretion of the
trial court to allow the introduction of evidence in rebuttal which
would have been proper evidence upon the case in chief or
should have been introduced during the case in chief. Westgate
Rec. Assn., supra. We conclude that the trial court did not abuse
mORGAN v. mySORE 	27
Cite as 17 Neb. App. 17

its discretion in not allowing Hatcher’s testimony to be used as
rebuttal evidence. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we find no error in the proceed-
ings before the district court and therefore affirm its judgment
in favor of appellees.
A ffirmed .
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