Podraza v. New Century Physicians of Neb.

estate, we cannot say that the county court’s decision to
deny the application was arbitrary, capricious, or unreasonable.
Gregory’s assignment of error is without merit.
ConClusion
The county court did not err in finding that a special admin-
istrator was not necessary to protect Fauniel’s estate. Therefore,
the county court’s judgment is affirmed.
A ffirmed.
KAthryn PodrAzA And terrAnce PodrAzA, APPellAnts
And cross -APPellees , v. new century P hysiciAns of
nebrAsKA, llc, APPellee And cross -APPellAnt.
789 n.W.2d 260
Filed october 15, 2010. 	no. s-09-990.
1. Summary Judgment. in appellate review of a summary judgment, the court
views the evidence in a light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reasonable inferences
deducible from the evidence.
2. Parol Evidence: Appeal and Error. The applicability of the parol evidence rule
is a matter of law, for which an appellate court has an obligation to reach a con-
clusion independent of the lower court’s decision.
3. Evidence: Appeal and Error. 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.
4. Parol Evidence: Contracts: Intent. The parol evidence rule gives legal effect to
the contracting parties’ intention to make their writing a complete expression of
the agreement that they reached, to the exclusion of all prior or contemporane-
ous negotiations.
5. Contracts: Parties: Intent. in order for those not named as parties to recover
under a contract as third-party beneficiaries, it must appear by express stipulation
or by reasonable intendment that the rights and interest of such unnamed parties
were contemplated and that provision was being made for them.
6. Contracts: Parties: Intent: Proof. one suing as a third-party beneficiary has
the burden of showing that the provision was for his or her direct benefit. unless
one can sustain this burden, a purported third-party beneficiary will be deemed
merely incidentally benefited and will not be permitted to recover on or enforce
the agreement.
7. Contracts: Parties: Intent. General release language is an insufficient expres-
sion of an intent to grant rights under a contract to persons who were neither
678 	280 nebraska reporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

named parties nor privies to named parties to the contract, and the parties’ actual
intent controls.
8. ____: ____: ____. under the intent rule, general releases which fail to specifi-
cally designate who is discharged either by name or by some other specific iden-
tifying terminology are inherently ambiguous, and the actual intent of the parties
will govern.
9. ____: ____: ____. under the intent rule, the element of specific identification
is only met when the reference in the release is so particular that a stranger can
readily identify the released party and his or her identity is not in doubt.
appeal from the District Court for Douglas County: leigh
A nn retelsdorf, Judge. affirmed in part, and in part reversed
and remanded.
steven H. Howard, of Dowd, Howard & Corrigan, l.l.C.,
for appellants.
patrick G. Vipond and John M. Walker, of lamson, Dugan
& Murray, l.l.p., for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stePhAn,
mccormAcK, and miller-lermAn, JJ.
mccormAcK, J.
i. naTure oF Case
kathryn podraza and her husband, Terrance podraza, brought
suit against new Century physicians of nebraska, llC (new
Century), to recover for injuries allegedly sustained after new
Century’s physicians failed to timely discover her appendicitis
during two visits to the emergency room at lakeside Hospital
in omaha, nebraska. lakeside Hospital is owned by alegent
Health (alegent), but its emergency rooms and urgent care
centers are staffed by physicians employed by new Century.
The podrazas settled their claims with alegent. The principal
issue in this case is whether the release agreement between the
podrazas and alegent operates to bar the current suit against
new Century.
ii. baCkGrounD
on December 11, 2005, kathryn visited the emergency
room at lakeside Hospital, complaining of severe abdominal
pain. according to kathryn, she told the emergency room
poDraza v. neW CenTury pHysiCians oF neb. 	679
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physician that the pain radiated through her entire abdominal
area. a noncontrast CT scan performed during her visit was
considered generally “unremarkable,” but a report on the scan
indicated calcification in the region of the appendix, which
could be “highly suspicious” if “the patient hurts in the region
of the appendix or is symptomatic for appendicitis.”
kathryn was discharged without a clear diagnosis and told to
return if her condition worsened. on December 15, 2005, she
returned to the emergency room, reporting severe abdominal
pain, vomiting, diarrhea, and small amounts of blood in the
urine. a different attending physician diagnosed her with cysti-
tis and gastritis, and she was again sent home.
kathryn’s condition continued to deteriorate, and she reported
to the emergency room for a final time on December 20, 2005.
she was diagnosed with a ruptured appendix and admitted to
the hospital for surgery. kathryn experienced a lengthy recov-
ery, and she alleges that the delay in her diagnosis caused
unnecessary pain and suffering, medical bills, lost income,
scarring and disfigurement, loss of bodily function, and other
damages. Terrance alleges loss of consortium.
1. relAtionshiP between A legent And new century
shortly after kathryn’s recovery, the podrazas entered into
discussions with alegent concerning compensation for her
injuries. The podrazas stated they were surprised to learn at
that time that the emergency room physicians at lakeside
Hospital were not employed by alegent, but were provided
through an independent contractor agreement with premier
Health Care services, inc. (premier Health), the parent com-
pany of new Century.
alegent contracted for premier Health to provide quali-
fied physicians to work at alegent’s hospital departments of
emergency medicine and alegent’s express care locations and
to provide medical directors responsible for coordinating and
overseeing the quality, availability, safety, and appropriateness
of those physicians’ services. under the agreement, the physi-
cians were directed to work alongside alegent’s nonphysician
personnel, including nurses and technical and paramedical
personnel. Dr. Jeff snyder, the regional medical director for
680 	280 nebraska reporTs

premier Health, explained that new Century physicians work-
ing at the alegent-owned emergency rooms and urgent care
centers were “seamlessly integrated into the alegent healthcare
system” and that “[b]y all outward appearances premier Health
and new Century physicians are alegent physicians, right
down to the employee identification tags provided by alegent.”
alegent was responsible for providing the equipment, supplies,
and ordinary utilities and services.
The agreement between alegent and premier Health pro-
vided that none of its provisions were intended to create any
relationship between the parties other than that of “indepen-
dent entities contracting with each other solely for the purpose
of effecting the provisions of this agreement.” Furthermore,
“[n]either of the parties . . . shall have the authority to bind
the other or shall be deemed or construed to be the agent,
employee or representative of the other” except as specifically
provided in the agreement.
2. releAse Agreement
neither premier Health nor new Century participated in the
settlement negotiations between the podrazas and alegent, and
it is unclear whether they were aware the negotiations were
taking place. While disclaiming liability for what it considered
a “doubtful and disputed claim,” alegent agreed to forgive the
podrazas’ copay liability for their hospital bills, which totaled
$1,765.33, and to pay an additional $11,234.67 in cash, for a
total settlement of $13,000.
The release signed by the podrazas and alegent stated in
pertinent part that in consideration for $13,000, the podrazas
agreed to “release, acquit and forever discharge the said
Released Parties, and all others directly or indirectly liable
or claimed to be liable, if any, from any and all claims and
demands, actions and causes of action, damages, [and] claims
for injuries,” which were
in any way growing out of any and all care received
by kathryn podraza at alegent Health, alegent Health
- lakeside Hospital, their staff, employees, designees or
representatives, successors and assigns and any officers,
directors, or any corporation, organization, affiliate, or
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subsidiary of alegent Health, as a result of medical serv-
ices received, or the alleged lack thereof, performed at
alegent Health - lakeside Hospital during the period
of December 11, 2005 through and including December
29, 2005.
The “released parties” were defined as “alegent Health and/
or alegent Health - lakeside Hospital, any person employed
by or entity owned by or affiliated with alegent Health, any
subsidiary or affiliated corporation, their directors, officers or
others on their behalf.” premier Health and new Century were
not specifically named. They were not signatories to the release
agreement and did not contribute to the settlement payment.
The release recited that it contained the entire agreement
between the parties and that there were “no agreements or
understandings between the parties hereto, other than those
expressed or referred to herein.” The podrazas also affirmed,
through the agreement, that they had read the release and
understood its contents. The podrazas were not represented by
an attorney.
3. suit AgAinst new century
after their settlement with alegent, the podrazas began
discussions with representatives of the two emergency room
physicians and new Century. no agreement could be reached,
and the podrazas brought this suit. new Century initially
answered with only a general denial of any negligence on the
part of its physicians and a denial of proximate causation and
the nature and extent of the podrazas’ injuries. but several
months later, new Century was allowed to amend its answer to
plead accord and satisfaction based upon the release agreement
with alegent. it then moved for summary judgment based upon
that release.
The podrazas responded by presenting deposition and affida-
vit testimony that the parties to the release agreement did not
intend for the agreed-upon amount to fully compensate them
for their loss, nor did they intend for the agreement to release
new Century. rather, the podrazas testified that alegent had
specifically told them the release would not apply to any sub-
sequent action against the emergency room physicians and that
682 	280 nebraska reporTs

alegent had encouraged them to pursue the physicians, new
Century, and the physicians’ medical malpractice insurance
provider, even giving them their contact information.
The parties stipulated that lakeside Hospital would submit
evidence rebutting any claim that alegent had made represen-
tations to the podrazas regarding their ability to pursue new
Century after the release. The trial court concluded there was
an issue of fact as to the parties’ actual intent concerning who
was released by the agreement. but the issue was whether
the parties’ actual intent could be considered at all, because
new Century claimed that the parol evidence rule barred con-
sideration of anything other than the plain terms of the writ-
ten agreement.
The trial court initially denied new Century’s motion for
summary judgment, concluding that regardless of the language
of the written release, parol evidence was admissible to ascer-
tain the parties’ intent as concerned persons or entities not par-
ties to the agreement. The trial judge issuing this determination
retired, and new Century filed a renewed motion for summary
judgment and/or motion to reconsider before a different district
court judge. The podrazas, in turn, moved for partial summary
judgment, alleging that the terms of the release unambiguously
excluded new Century because it was undisputed that new
Century was not an “affiliate” of alegent.
The new trial judge denied both new Century’s renewed
motion for summary judgment and the podrazas’ motion for
partial summary judgment. The court concluded that new
Century was “‘affiliated with’” alegent, but determined that
parol 	evidence 	could 	nevertheless 	be 	considered 	to 	show
whether the parties actually intended new Century to benefit
from the release.
after new Century filed a motion for clarification, the trial
court reversed its determination as to the applicability of the
parol evidence rule and found that summary judgment in favor
of new Century should be granted. The court reasoned that
new Century should be considered a party to the agreement
and that, thus, the podrazas could not vary the written terms of
the release. The podrazas appealed the trial court’s judgment,
and new Century cross-appealed.
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iii. assiGnMenTs oF error
The podrazas assert that the trial court erred in (1) grant-
ing summary judgment on the basis that the release barred
the podrazas’ action against new Century, (2) receiving into
evidence on the matter of summary judgment snyder’s affida-
vit and its attachments, (3) denying the podrazas’ motion for
partial summary judgment on the matter of the release, and (4)
ordering that the podrazas were not entitled to discovery of all
e-mail communications between new Century’s attorneys and
its expert witness.
in its cross-appeal, new Century asserts that the trial court
erred in admitting the podrazas’ affidavits insofar as they
sought to vary the terms of the written agreement.
iV. sTanDarD oF reVieW
[1] in appellate review of a summary judgment, the court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.1
[2] The applicability of the parol evidence rule is a matter
of law, for which we have an obligation to reach a conclusion
independent of the lower court’s decision.2
[3] 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.3
V. analysis
1. releAse
on its face, the agreement between alegent and the podrazas
purports to release the “released parties” and “all others
directly or indirectly liable or claimed to be liable, if any,
1 Marksmeier v. McGregor Corp., 272 neb. 401, 722 n.W.2d 65 (2006).
2 see, In re Estate of Hockemeier, ante p. 420, 786 n.W.2d 680 (2010);
Zender v. Vlasic Foods, Inc., no. 94-56499, 1996 Wl 406145 (Cal. app.
aug. 29, 1996) (unpublished disposition listed in table of “Decisions
Without published opinions” at 91 F.3d 158 (9th Cir. 1996)).
3 see, Sturzenegger v. Father Flanagan’s Boys’ Home, 276 neb. 327, 754
n.W.2d 406 (2008); In re Estate of Jeffrey B., 268 neb. 761, 688 n.W.2d
135 (2004).
684 	280 nebraska reporTs

from any and all claims and demands, actions and causes of
action, damages, [and] claims for injuries.” The “released
parties” were defined as “alegent Health and/or alegent Health
- lakeside Hospital, any person employed by or entity owned
by or affiliated with alegent Health, any subsidiary or affili-
ated corporation, their directors, officers or others on their
behalf.” The parties dispute whether new Century is “affili-
ated with” alegent. but the threshold question is whether the
podrazas’ intent must be construed solely from the four corners
of this agreement.
[4] The parol evidence rule states that if negotiations between
the parties result in an integrated agreement which is reduced
to writing, then, in the absence of fraud, mistake, or ambi-
guity, the written agreement is the only competent evidence of
the contract between them.4 This rule gives legal effect to the
contracting parties’ intention to make their writing a complete
expression of the agreement that they reached, to the exclusion
of all prior or contemporaneous negotiations.5
Different rules apply, however, when it is not a contract-
ing party who seeks to rely on the legal presumption that the
writing is a complete integration. We have held that the parol
evidence rule cannot be invoked by a stranger to the agreement
to prevent a party to the writing from adducing extraneous evi-
dence as to its terms, even if that evidence varies or contradicts
the written agreement.6 stated otherwise, we have said that
the parol evidence rule operates only between parties to such
instrument and those claiming under them.7
[5] new Century effectively asserts that because it is encom-
passed by the plain language of the agreement, it is not a
stranger to it. instead, it claims under the agreement to be a
third-party beneficiary, and thus evokes the parol evidence
4 see Sack Bros. v. Great Plains Co-op, 260 neb. 292, 616 n.W.2d 796
(2000).
5 see 2 e. allan Farnsworth, Farnsworth on Contracts § 7.2 (3d ed. 2004).
6 see, Grover, Inc. v. Papio-Missouri Riv. Nat. Res. Dist., 247 neb. 975, 531
n.W.2d 531 (1995); State Bank of Beaver Crossing v. Mackley, 121 neb.
28, 236 n.W. 165 (1931).
7 State Bank of Beaver Crossing v. Mackley, supra note 6.
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rule.8 as a matter of general contract law, we have strictly con-
strued who has the right to enforce a contract as a third-party
beneficiary. in order for those not named as parties to recover
under a contract as third-party beneficiaries, it must appear by
express stipulation or by reasonable intendment that the rights
and interest of such unnamed parties were contemplated and
that provision was being made for them.9 The right of a third
party benefited by a contract to sue thereon must affirmatively
appear from the language of the instrument when properly
interpreted or construed.10
[6] authorities are in accord that one suing as a third-party
beneficiary has the burden of showing that the provision was
for his or her direct benefit.11 unless one can sustain this bur-
den, a purported third-party beneficiary will be deemed merely
incidentally benefited and will not be permitted to recover on
or enforce the agreement.12
(a) “all others liable” language
[7] More particular rules have emerged for persons claim-
ing to be third-party beneficiaries to release agreements.13 We
have held that general release language, such as the podrazas’
release of “all others directly or indirectly liable or claimed to
be liable,” is an insufficient expression of an intent to grant
rights under a contract to persons who were neither named par-
ties nor privies to named parties to the contract, and the parties’
actual intent controls.
8 see 11 samuel Williston, a Treatise on the law of Contracts § 33:11
(richard a. lord ed., 4th ed. 1999) (third-party beneficiaries are persons
claiming under contract for purpose of stranger-to-the-agreement excep-
tion to parol evidence rule).
9 see Molina v. American Alternative Ins. Corp., 270 neb. 218, 699 n.W.2d
415 (2005).
10 see Haakinson & Beaty Co. v. Inland Ins. Co., 216 neb. 426, 344 n.W.2d
454 (1984).
11 13 samuel Williston, a Treatise on the law of Contracts § 37:8 (richard
a. lord ed., 4th ed. 2000 & supp. 2010).
12 Id.
13 see annot., 13 a.l.r.3d 313 (1967).
686 	280 nebraska reporTs

in Scheideler v. Elias,14 for example, we considered whether
a general release of all persons liable, signed as part of a settle-
ment with a tort-feasor, could be enforced by physicians later
sued for negligent treatment of the victim’s injuries. We found
the general release language to be inconclusive in light of the
circumstances under which the contract was created, and we
held that parol evidence should be considered to determine the
parties’ actual intent.15 To view the contract any other way, we
explained, would strangle justice, not serve it, as unwary lay-
men would often accept less reparation from one tort-feasor,
intending to pursue others, “‘“‘only to find later they have
walked into a trap.’”’”16 not considering the parties’ actual
intent would give nonparty tort-feasors “‘“‘an advantage wholly
inconsistent with the nature of their liability.’”’”17
our holding in Scheideler was limited to the discharge of
successive tort-feasors, and we have not squarely addressed
these releases under current joint tort-feasor liability. but we
have consistently looked to actual intent as concerns unnamed
parties encompassed by broadly termed release agreements.
Thus, under our prior common-law concept of unity of dis-
charge for joint tort-feasors, we held that settlement with one
of several joint wrongdoers is not a defense to an action against
another unless it was agreed between the parties to the settle-
ment that such payment was in full of all damages suffered.18
and we held that parol evidence is always admissible to deter-
mine the parties’ true intent under such circumstances, even
when the terms of the release explicitly state that the victim
acknowledges receipt of full payment and satisfaction for his
or her injuries.19
14 Scheideler v. Elias, 209 neb. 601, 309 n.W.2d 67 (1981).
15 Id.
16 Id. at 612, 309 n.W.2d at 73.
17 Id.
18 Menking v. Larson, 112 neb. 479, 199 n.W. 823 (1924). see, also,
Scheideler v. Elias, supra note 14; Holland v. Mayfield, 826 so. 2d 664
(Miss. 1999).
19 see, Menking v. Larson, supra note 18; Fitzgerald v. Union Stock Yards
Co., 89 neb. 393, 131 n.W. 612 (1911).
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(b) intent rule
That joint and several liability for noneconomic damages
has since been abrogated20 only strengthens the principle that
broad or universal language is not enough to release nonparty
joint tort-feasors without consideration of the parties’ actual
intent.21 neb. rev. stat. § 25-21,185.11 (reissue 2008) is con-
sistent with this when it states: “a release, covenant not to sue,
or similar agreement entered into by a claimant and a person
liable shall discharge that person from all liability to the claim-
ant but shall not discharge any other persons liable upon the
same claim unless it so provides.”
other courts have relied on this language, derived from the
uniform Contribution among Tortfeasors act,22 in adopting the
so-called specific-identity rule for persons who are not parties
to release agreements. under the specific-identity rule, it is
conclusively presumed that the liability of a party not named
or otherwise specifically identified by the terms of the release
is not discharged.23
[8] but many courts, under the same statutory language, have
adopted a less stringent intent rule for interpreting releases as
to nonparty tort-feasors. under the intent rule, general releases
which fail to specifically designate who is discharged either
by name or by some other specific identifying terminology are
inherently ambiguous, and the actual intent of the parties will
govern.24 some of these courts create a rebuttable presumption,
consistent with comparative fault principles, that a release bene-
fits only those persons specifically designated.25
20 neb. rev. stat. § 25-21,185.10 (reissue 2008).
21 see Hansen v. Ford Motor Co., 120 n.M. 203, 900 p.2d 952 (1995).
22 unif. Contribution among Tortfeasors act §§ 1 to 6, 12 u.l.a. 201
(2008).
23 see, e.g., Duncan v. Cessna Aircraft Co., 665 s.W.2d 414 (Tex. 1984);
Young v. State, 455 p.2d 889 (alaska 1969).
24 see, e.g., Luther v. Danner, 268 kan. 343, 995 p.2d 865 (2000); Hansen
v. Ford Motor Co., supra note 21. see, also, 13 a.l.r.3d 320, supra note
13.
25 Luther v. Danner, supra note 24; Hansen v. Ford Motor Co., supra note
21.
688 	280 nebraska reporTs

We view the intent rule as consistent with our case law
governing third-party beneficiaries and the release of nonparty
joint tort-feasors as discussed above, and we hereby adopt it.
We also adopt a rebuttable presumption that a release bene-
fits only those specifically designated and that in accordance
with general principles for third-party beneficiaries, it is the
unnamed party claiming under the release who has the burden
to show an actual intent to benefit him or her. The intent rule,
like our holding in Scheideler and under our unity of discharge
case law, considers broad releases to be inherently ambiguous
as to unnamed parties. since we have traditionally considered
the parties’ actual intent in such circumstances, we reject the
specific-identity rule, which conclusively presumes any party
not named or otherwise sufficiently specified was not intended
to be released.
accordingly, the broad description of “released parties” in
the agreement between the podrazas and alegent is not conclu-
sive of whether those parties actually intended to confer a bene-
fit upon new Century. The question next becomes whether the
definition of “released parties” in the agreement, as including
entities “affiliated with” alegent, is a sufficiently specific des-
ignation such that inquiry into the parties’ actual intent is no
longer warranted by the intent rule.
(c) “entity affiliated With” language
[9] under the intent rule, actual intent governs as to everyone
except those discharged by name “‘or by some other specific
identifying terminology.’”26 However, this element of specific
identification is only met when the reference in the release is
so particular that a stranger can readily identify the released
party and his or her identity is not in doubt.27 The intent to
release a person who did not participate in the agreement or
pay consideration must be clearly manifest.28
26 Luther v. Danner, supra note 24, 268 kan. at 349, 995 p.2d at 870, quoting
Hansen v. Ford Motor Co., supra note 21.
27 see Duncan v. Cessna Aircraft Co., supra note 23. see, also, e.g., Country
Club of Jackson, Miss. v. Saucier, 498 so. 2d 337 (Miss. 1986).
28 see, Smith v. Falke, 474 so. 2d 1044 (Miss. 1985); restatement (second)
of Torts § 885(1) (1979).
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The relevant language of the agreement defines the “released
parties” as “alegent Health and/or alegent Health - lakeside
Hospital, any person employed by or entity owned by or affili-
ated with alegent Health, any subsidiary or affiliated corpora-
tion, their directors, officers or others on their behalf.” The par-
ties dedicate most of their briefs to their opposite conclusions as
to what “affiliated with” means. The podrazas view the phrase
narrowly to include only those entities either owned by or con-
trolled by alegent, and not independent contractors bound only
by contract to perform in a designated manner. new Century
states that while the podrazas might be correct for “affiliate” as
a noun, as an adjective, “affiliated with” broadly includes any
form of close association or allegiance.
suffice it to say that under the circumstances presented
here, “affiliated with” does not satisfy the level of specificity
required for a third-party beneficiary to be able to rely solely
on the four corners of the agreement. even if we were to
accept new Century’s definition, it presents too broad a cat-
egory for a stranger to be able to easily identify to whom it
refers. Moreover, to determine whether any given entity falls
under this definition, an intricate knowledge of all contract-
ing entities and their relationship with new Century would be
necessary. This likewise does not make those persons read-
ily identifiable.
Certainly, the podrazas stated that they did not suspect new
Century was in any way being described in the release. in light
of the language of the release, the fact that new Century did
not participate in the settlement, and the alleged assurances by
alegent that the podrazas could still pursue new Century, such
a viewpoint was not unreasonable. as we stated in Scheideler,
we look to actual intent in order to protect the unwary layman
from overly broad release agreements that would give nonparty
tort-feasors advantages wholly inconsistent with the nature of
their liability.29 We conclude that the actual intent of the con-
tracting parties in this case must be determined by the trier of
fact, and it is new Century’s burden to prove it was specifi-
cally intended to be benefited by the agreement. We therefore
29 Scheideler v. Elias, supra note 14.
690 	280 nebraska reporTs

reverse the trial court’s grant of summary judgment, and we
remand the cause for further proceedings.
We accordingly find no merit to new Century’s cross-
appeal. nor do we find merit to the podrazas’ argument that
we may conclude as a matter of law that new Century was
not an intended beneficiary of the release. We find no need to
determine the podrazas’ second assignment of error concern-
ing conclusions in snyder’s affidavit that new Century may
be deemed “affiliated with” alegent, as that question is inex-
tricably tied to the trier of fact’s determination of the parties’
actual intent to benefit new Century. We will, however, next
address the podrazas’ assignment of error concerning certain
paralegal-expert witness e-mail correspondence, because, if the
trier of fact finds new Century was not intended to be released
by the agreement, this discovery question will remain an issue
on remand.
2. Attorney-exPert communicAtions
The podrazas’ fourth assignment of error relates to their
efforts, during discovery, to obtain correspondence between
new Century’s attorneys and its expert witness. new Century
objected to the request, but the parties eventually reached an
out-of-court understanding as to most matters. in particular,
with regard to proposed expert witness Dr. edward Mlinek,
new Century had produced everything agreed upon, but the
parties could not agree whether certain e-mail correspondence
from the paralegal for new Century’s attorneys to Mlinek
was discoverable. The correspondence contained discussions
about whether Mlinek could recommend a radiologist for new
Century to employ in order to obtain a second opinion as to the
interpretation of kathryn’s CT scan.
The podrazas became aware of this specific correspondence
because new Century inadvertently sent it to them, and new
Century sought a protection order for the correspondence,
claiming it contained privileged work product. The podrazas
argued that the correspondence was not privileged and that it
was relevant to show Mlinek’s bias, because the paralegal stated
in the e-mail: “you [Mlinek] suggested we should have a radi-
ologist interpret the CT scan and hopefully confirm that there
is no calcification within the appendix.” The podrazas argued
poDraza v. neW CenTury pHysiCians oF neb. 	691
Cite as 280 neb. 678

that the word “hopefully” indicated Mlinek’s biased interest
in seeing a certain outcome from the radiologist’s report. The
trial court granted new Century’s motion for a protective order
on the basis that the e-mail contained inadvertently disclosed
work product, and the podrazas were prohibited from using
or further disclosing the correspondence and were ordered to
destroy all copies.
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.30 We have also
more specifically stated that a trial court has discretion in the
matter of discovery where material is sought for impeachment
purposes.31 a judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects
to act or refrain from action, but the selected option results in a
decision which is clearly untenable and unfairly deprives a liti-
gant of a substantial right or a just result in matters submitted
for disposition through the judicial system.32 The party assert-
ing error in a discovery ruling bears the burden of showing that
the ruling was an abuse of discretion.33
neb. Ct. r. Disc. § 6-326(b)(3) describes the circumstances
under which a party may obtain work product. it states in part:
Trial preparation: Materials. subject to the provisions
of subdivision (b)(4) of this rule, a party may obtain
discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative
(including his or her attorney, consultant, surety, indemni-
tor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials
in the preparation of his or her case and that he or she is
unable without undue hardship to obtain the substantial
30 see, Sturzenegger v. Father Flanagan’s Boys’ Home, supra note 3; In re
Estate of Jeffrey B., supra note 3.
31 State v. Cisneros, 248 neb. 372, 535 n.W.2d 703 (1995).
32 Bondi v. Bondi, 255 neb. 319, 586 n.W.2d 145 (1998).
33 Kocontes v. McQuaid, 279 neb. 335, 778 n.W.2d 410 (2010).
692 	280 nebraska reporTs

equivalent of the materials by other means. in ordering
discovery of such materials when the required showing
has been made, the court shall protect against disclosure
of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party
concerning the litigation.
subsection 	(b)(4), 	in 	turn, 	specifically 	relates 	to 	expert
witnesses:
Trial preparation: experts. Discovery of facts known and
opinions held by experts otherwise discoverable under the
provisions of subdivision (b)(1) of this rule and acquired
or developed in anticipation of litigation or for trial may
be obtained only as follows:
(a)(i) a party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the grounds for each opinion.
(ii) upon motion, the court may order further discovery
by other means, subject to such restrictions as to scope
and such provisions, pursuant to subdivisions (b)(4)(C) of
this rule, concerning fees and expenses as the court may
deem appropriate.
(b) a party may discover facts known or opinions held
by an expert who has been retained or specially employed
by another party in anticipation of litigation or prepara-
tion for trial and who is not expected to be called as a
witness at trial, only as provided in rule 35(b) or upon
a showing of exceptional circumstances under which it
is impracticable for the party seeking discovery to obtain
facts or opinions on the same subject by other means.
(emphasis supplied.)
The e-mails contain private discussions between the para-
legal for new Century’s attorneys and its retained expert, and
the podrazas do not claim that the paralegal should not be
considered new Century’s representative. They argue instead
that the e-mails represent the expert’s thoughts, and not those
poDraza v. neW CenTury pHysiCians oF neb. 	693
Cite as 280 neb. 678

of the attorneys’ office, and that this is somehow determina-
tive. but whether considered attorney work product or the
expert’s opinions, it is clear from the rules above that, at the
very least, the podrazas had to demonstrate a substantial need
for the materials.
There is no such substantial need to use at trial for impeach-
ment purposes someone else’s characterization that the retained
expert had indicated that an unbiased radiologist would “hope-
fully” have a favorable reading of the CT scan. This is not a
case, such as those relied upon by the podrazas, where the
podrazas are seeking information necessary to understand the
basis for the expert’s opinion. indeed, the correspondence
in question relates more to administrative matters within the
attorneys’ office than to the formation and basis of any expert’s
testimony. nor do we find merit to the podrazas’ contention
that the inadvertent disclosure waived the protections afforded
by the discovery rules. The trial court did not abuse its discre-
tion in granting a protection order in favor of new Century for
the e-mail communications.
Vi. ConClusion
We reverse the trial court’s order of summary judgment in
favor of new Century, but affirm its grant of a protection order
for e-mail correspondence between new Century’s attorneys’
office and its expert witness. We affirm the trial court’s denial
of the podrazas’ partial motion for summary judgment.
A ffirmed in PArt, And in PArt
reversed And remAnded.
JAmes m. scott, APPellee , v. county
of richArdson, APPellAnt.
789 n.W.2d 44
Filed october 15, 2010. 	no. s-10-039.
1. Administrative Law: Appeal and Error. in reviewing an administrative agency
decision on a petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted within its jurisdiction
and whether sufficient, relevant evidence supports the decision of the agency.
694 	280 nebraska reporTs