Ricker v. Nebraska Methodist Health System, Inc.
Affirming Courts’ Inherent Authority to Enforce Progression Orders by Excluding Late-Disclosed Expert Testimony

1. Introduction

The Supreme Court of Nebraska, in Ricker v. Nebraska Methodist Health Sys., 319 Neb. 628 (Aug. 8, 2025), confronted a familiar tension in civil litigation: the need for flexibility during discovery versus the judiciary’s obligation to keep cases moving and to prevent prejudice arising from last-minute evidentiary surprises.

Kimberly Ricker sued Nebraska Methodist Health System, Inc. and emergency-room physician Dale W. Orton after her husband, Robert, died of an apparent heart attack shortly after being discharged from the hospital. The central dispute on appeal was whether the district court properly excluded the affidavit of Ricker’s medical expert—disclosed 896 days after the expert-designation deadline and only nine days before a long-scheduled summary-judgment hearing—and, if so, whether summary judgment for the defendants was correct.

The Supreme Court reversed the Court of Appeals, holding that:

1. District courts possess inherent judicial power to enforce their progression orders by excluding untimely expert testimony without applying the five-factor Norquay test used for discovery sanctions under Rule 37; and
2. Excluding Ricker’s late-disclosed expert was not an abuse of discretion; therefore, summary judgment for the defendants was appropriate.

2. Summary of the Judgment

• Expert Exclusion: The trial court excluded Ricker’s newly disclosed medical expert on two grounds—Rule 37 discovery sanctions and its inherent authority to enforce progression orders. The Supreme Court focused on the latter and found no abuse of discretion.
• No Genuine Issue of Fact: With the expert testimony excluded, Ricker lacked evidence of breach of the standard of care, an essential element of medical malpractice. Orton’s self-supporting affidavit established a prima facie defense. Summary judgment was therefore proper.
• Reversal of Court of Appeals: The Court of Appeals had reinstated the expert’s affidavit by applying the Norquay factors. The Supreme Court held that framework inapplicable where the trial court invoked its inherent power to enforce deadlines.

3. Detailed Analysis

3.1 Precedents Cited

1. Putnam v. Scherbring, 297 Neb. 868 (2017)
   • Established that courts may enforce progression orders via inherent authority distinct from Rule 37 sanctions.
   • Clarified that Norquay factors are not required in this context.
2. Norquay v. Union Pacific R.R., 225 Neb. 527 (1987)
   • Provides a five-factor balancing test for exclusion of evidence as a discovery sanction. Important for contrast: the Supreme Court explains why it is not controlling when inherent power, rather than Rule 37, is invoked.
3. Carrizales v. Creighton St. Joseph, 312 Neb. 296 (2022)
   • Reaffirmed that a defendant-physician may offer a self-supporting affidavit at summary judgment without prior expert designation.
4. Beran v. Nebraska Ortho. & Sports Med., 28 Neb. App. 686 (2020)
   • Echoed Putnam in holding that inherent-power analysis differs from Rule 37 sanctions.
5. Lombardo v. Sedlacek, 299 Neb. 400 (2018) & Carson v. Steinke, 314 Neb. 140 (2023)
   • Both confirm the necessity of expert testimony to establish breach in malpractice suits.

3.2 The Court’s Legal Reasoning

Step 1 – Identifying the Source of Authority.
The district court relied in the alternative on Rule 37 and on its inherent authority. The Supreme Court chose the inherent-authority route, noting that enforcing a progression order is about case management, not punishing discovery abuse.

Step 2 – Scope and Purpose of Inherent Power.
Drawing on Putnam, the Court reiterated that inherent power allows judges to do “all things necessary for the proper administration of justice,” explicitly including enforcement of case-management deadlines. This power is essential to meeting the Nebraska Case Progression Standards (Neb. Ct. R. § 6-101).

Step 3 – Applying Discretion to the Facts.

• Ricker’s expert-designation deadline: 28 Sept 2020
• Actual disclosure: 13 Mar 2023 (896 days late)
• Multiple continuances already granted; case exceeded progression standards by 29.5 months.
• Defendants’ summary-judgment motion pending since Jan 2022.

Given the chronic delays, the Court found exclusion reasonable and within the lower court’s discretion; continuance would undermine docket control and prejudice the defendants.

Step 4 – Summary Judgment Analysis.
Having excluded Ricker’s only medical expert, the Court applied standard summary-judgment methodology:

1. Defendants made a prima facie case through Orton’s affidavit.
2. Burden shifted to Ricker to show a genuine issue; she failed.
3. Therefore, judgment as a matter of law for defendants.

3.3 Impact of the Decision

• Clarifies Procedural Path: Litigants cannot assume late expert disclosures will survive simply by arguing the Norquay factors; if a court invokes its inherent power, the analysis changes.
• Promotes Firm Deadlines: Trial courts may confidently deny continuances and exclude evidence to enforce progression orders, fostering timely resolution of cases.
• Heightened Diligence for Plaintiffs: Especially in professional-negligence cases where expert testimony is indispensable, plaintiffs must calendar and comply with disclosure deadlines or risk dismissal.
• Streamlined Appeals: Appellate courts will review inherent-power decisions for abuse of discretion, not under the stricter Norquay framework, reducing reversals due to procedural misapplication.
• COVID-19 Context: The Court signaled that pandemic-related delays have limits; counsel must still prosecute cases with reasonable diligence.

4. Complex Concepts Simplified

Progression Order

A court-issued scheduling roadmap setting deadlines for discovery, expert designations, motions, and trial.

Inherent Authority

Power that courts possess by virtue of being courts—to control their docket, punish contempt, and ensure orderly proceedings—independent of statutes or rules.

Rule 37 Sanction

Penalties under Nebraska’s discovery rules for failing to comply with discovery obligations (e.g., suppressing evidence, attorney’s fees).

Norquay Factors

Five considerations (reason for failure, importance, surprise, time to respond, possibility of continuance) guiding whether to exclude evidence as a discovery sanction.

Prima Facie Case (at Summary Judgment)

Enough evidence that, if unopposed, would entitle the moving party to judgment.

Self-Supporting Affidavit

Sworn statement by a defendant-physician attesting that care met the applicable standard, which can satisfy the movant’s burden at summary judgment.

5. Conclusion

Ricker v. Nebraska Methodist reaffirms a critical procedural principle: Nebraska trial courts may enforce their scheduling orders with real consequences—including exclusion of pivotal expert testimony—without resorting to, or being constrained by, the Norquay balancing test. The decision underscores the judiciary’s commitment to timely case resolution and provides a clear signal to litigants: meet your deadlines or risk losing your case, no matter how meritorious the underlying claim might be.

Going forward, counsel in all civil matters—particularly those requiring expert proof, such as medical malpractice—must treat progression-order deadlines as hard lines, not soft targets. The Nebraska Supreme Court has now elevated these deadlines from managerial suggestions to enforceable edicts backed by the courts’ inherent power.