Malchow v. Doyle

530 	275 Nebraska reports
to convict Welch of motor vehicle homicide on the basis of
such alleged unlawful act. However, as noted above, there was
sufficient evidence from which the jury could have found that
Welch failed to exercise due care with a pedestrian as instructed
in instruction No. 6(b), and she may be retried on such basis.
Further, Welch made no argument on appeal that the evidence
was insufficient to support the instructions on careless driving
in instruction No. 4 and on failure to yield the right of way in
instruction No. 5, and we have not analyzed these instructions
and corresponding evidence. therefore, on remand, Welch may
be tried on these bases without violating double jeopardy.
CoNCLUsIoN
We conclude that the evidence did not support instruction
No. 6(C) regarding failure to exercise proper precaution with an
obviously confused or incapacitated person. the county court
therefore erred in giving the instruction, and the instruction
was prejudicial to Welch. the district court erred in affirming
Welch’s conviction. We remand the cause to the district court
with directions to reverse Welch’s conviction and to remand the
matter to the county court for a new trial in accordance with
this opinion.
R eveRsed and Remanded with diRections .
nelvadene malchow , appellant and cRoss - appellee , v .
dean l. doyle , d.d.s., appellee and cRoss - appellant .
748 N.W.2d 28
Filed april 24, 2008. 	No. s-06-219.
1. Trial: Appeal and Error. a trial judge has broad discretion over the general con-
duct of a trial; therefore, an appellate court reviews complaints about trial conduct
for abuse of discretion.
2. Motions for Mistrial: Appeal and Error. a motion for mistrial is directed to the
discretion of the trial court, and its ruling will not be disturbed on appeal absent
a showing of abuse of that discretion.
3. Appeal and Error. to be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

4. Motions for Mistrial. a mistrial is appropriate when an event occurs during the
course of a trial which is of such a nature that its damaging effects would prevent
a fair trial.
5. Jury Instructions: Appeal and Error. Jury instructions do not constitute preju-
dicial error if, taken as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and evidence.
6. Pretrial Procedure: Appeal and Error. on appellate review, decisions regarding
discovery are generally reviewed under an abuse of discretion standard.
7. Trial: Appeal and Error. the standard of review of a trial court’s determination
of a request for sanctions is whether the trial court abused its discretion.
8. Judges: Words and Phrases. 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 untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through the judicial system.
appeal from the District Court for Gage County: paul w.
K oRslund, Judge. affirmed as modified.
Vincent M. powers, of Vincent M. powers & associates, and,
on brief, alan L. plessman for appellant.
patrick G. Vipond, kyle Wallor, and John M. Walker, of
Lamson, Dugan & Murray, L.L.p., for appellee.
heavican , c.J., wRight , geRRaRd , stephan , mccoRmacK, and
milleR-leRman , JJ.
peR cuRiam .
NatUre oF Case
Nelvadene Malchow brought this professional negligence
action against Dean L. Doyle, D.D.s., alleging that she sus-
tained injuries as the result of Doyle’s insertion and later
removal of a dental implant. a jury returned a verdict for Doyle,
and the district court overruled Malchow’s motion for judgment
notwithstanding the verdict or for new trial and Doyle’s motion
for reconsideration. Malchow appeals, and Doyle has filed
a cross-appeal.
FaCts
Doyle was Malchow’s dentist, and in July 1997, he placed
a metal device in Malchow’s mouth that would allow the per-
manent implant of prosthetic teeth. the device was embedded
MaLCHoW v. DoyLe 	531
Cite as 275 Neb. 530

532 	275 Nebraska reports
underneath the gum tissue into and along her lower jaw. Malchow
suffered from swelling, pain, and repeated infections for several
years because Doyle allegedly improperly inserted the device.
on February 26, 2002, during removal of part of the dental
implant, Doyle fractured the right side of Malchow’s man-
dible. He referred Malchow to the University of Nebraska
College of Dentistry in Lincoln, Nebraska, for further dental
and medical care. she underwent emergency surgery and was
then referred to the University of Nebraska Medical Center in
omaha, Nebraska. there, she underwent additional surgeries to
repair the fracture and reconstruct the mandible.
Malchow brought this action, alleging that Doyle was negli-
gent in failing to use the ordinary and reasonable care, skill, and
knowledge ordinarily possessed and used under like circum-
stances by members of his profession; that Doyle should have
advised her that she was not a proper candidate for the dental
implant; and that he failed to inform her of the risks associ-
ated with the implantation. she also claimed that Doyle failed
to exercise reasonable care and skill in removing the implant,
causing further injury, including the fracture of Malchow’s
mandible. In her amended complaint, Malchow sought recov-
ery for hospital, medical, and dental costs and services that
exceeded $145,000.
In his answer to Malchow’s amended complaint, Doyle
asserted that Malchow’s claims were barred by the statute of
limitations, that the complaint failed to state a claim upon
which relief could be granted, and that he had met the appli-
cable standard of care in the treatment rendered to Malchow.
after a 5-day trial, the jury returned a verdict in favor of
Doyle, finding that Malchow had not met her burden of proof.
Malchow moved for new trial and judgment notwithstanding
the verdict, and Doyle filed a motion for reconsideration. the
district court overruled the motions. Malchow appeals, and
Doyle cross-appeals.
assIGNMeNts oF error
Malchow assigns the following errors: the district court
abused its discretion (1) in sustaining Doyle’s renewed motion
to continue the trial on september 26, 2005; (2) in “the number

of hours during which the court was in session, conducting the
trial”; (3) in overruling the motions for mistrial made by Malchow
during the trial; (4) in refusing to assemble the jury during the
hearing on the motion for new trial in order to investigate claims
of juror misconduct; and (5) in overruling Malchow’s motion for
judgment notwithstanding the verdict or for new trial.
on cross-appeal, Doyle claims the district court erred (1) in
ordering Doyle to pay for the time two of Malchow’s experts
spent preparing for depositions and (2) in ordering Doyle to pay
sanctions with respect to the failure to produce certain models
of Malchow’s dental implant that were in Doyle’s possession.
staNDarD oF reVIeW
[1] a trial judge has broad discretion over the general conduct
of a trial; therefore, an appellate court reviews complaints about
trial conduct for abuse of discretion. see Eicher v. Mid America
Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005).
[2] a motion for mistrial is directed to the discretion of the
trial court, and its ruling will not be disturbed on appeal absent
a showing of abuse of that discretion. Genthon v. Kratville, 270
Neb. 74, 701 N.W.2d 334 (2005).
[3] to be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error. Olivotto v. DeMarco
Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).
aNaLysIs
conduct of tRial
Malchow argues that the district court imposed “an unneces-
sary, unreasonably ambitious and daunting time table [sic] for
the trial,” which denied her a fair trial, and that the parties,
the jury, and counsel “became prisoners to the trial court’s
unreasonable trial schedule.” see brief for appellant at 22-23.
Malchow contends that the trial schedule prejudiced the jury
against her.
It is helpful in this case to review the pretrial history.
Malchow’s original complaint was filed on august 19, 2003.
after many disputes regarding discovery, the district court
scheduled a pretrial conference for august 15, 2005, and the
MaLCHoW v. DoyLe 	533
Cite as 275 Neb. 530

534 	275 Nebraska reports
trial was originally scheduled for september 26 to october 3.
Malchow’s pretrial memorandum listed 40 witnesses and 123
exhibits. Doyle’s pretrial memorandum listed 10 witnesses and
128 exhibits. on september 6, the court, on its own motion, set
a cutoff date of september 9 for further pretrial motions.
on september 9, 2005, Doyle moved to continue the trial,
claiming that Malchow was scheduled for additional surgery on
september 13 and that the surgery could affect her appearance
and her speech at trial, which would unfairly prejudice Doyle.
the district court denied Doyle’s motion to continue the trial,
as well as his pending request for a separate trial on the statute
of limitations issue.
on september 20, 2005, Doyle filed another motion to con-
tinue the trial based on issues related to his health. Doyle had
previously suffered a heart attack and had recently been experi-
encing chest and back pain. a heart catheter procedure revealed
a blockage in his heart, and his cardiologist recommended that
Doyle have stents inserted to correct the blockage. the proce-
dure was scheduled for september 21, and Doyle claimed that
his cardiologist ordered him not be placed under the stress of
trial for at least 2 weeks following that date.
the district court initially denied Doyle’s motions for con-
tinuance, but after receiving testimony from Doyle’s cardi-
ologist, the court granted the motion because of serious health
risks to Doyle. the court then set the trial to begin on Monday,
october 24, 2005. the court allotted 1 week for trial, with jury
selection scheduled for october 18.
When jury selection began, the district court informed the
prospective jurors that the trial would begin on Monday, october
24, 2005, at 8 a.m. the court stated: “We’re starting somewhat
early in an effort to get the case done in a week. this case is
going to take some time, and hopefully, it will be done within
next week.” after the jury had been selected, the court and
counsel discussed the trial schedule. the court stated that it was
“going to push this case along,” beginning at 8 a.m. and run-
ning until 6 p.m. if necessary. Malchow had previously told the
court that her case in chief would be concluded on Wednesday,
october 26, but Malchow’s counsel asked whether she would
be able to call one of her expert witnesses the following week.

the expert would not be present until Monday, october 31. the
court stated that although it was willing to consider going into
the next week, it was reluctant to do so.
trial began at 8:05 a.m. on Monday, october 24, 2005, and
continued until 8:58 p.m. on tuesday, proceedings began at
8:19 a.m. and continued until 6:16 p.m. the trial resumed at
8:08 a.m. on Wednesday and continued until 10:05 p.m. on
thursday, trial began at 8:33 a.m. and adjourned at 8:45 p.m.
Friday’s session began at 8:01 a.m. and lasted until 9:48 p.m.
thus, the district court allotted approximately 62 hours for the
trial, including recesses, over a 5-day period.
In its posttrial order, the district court noted that the time
allotted for trial had been discussed extensively at a hearing on
the day of jury selection, october 18, 2005.
[I]t is obvious from those proceedings that previous dis-
cussions had occurred. It is clear from that transcription,
that [Malchow] had represented that her case in chief
would be concluded on Wednesday. [Malchow’s] counsel
inquired about the possibility of going into the following
week, and the Court did not foreclose that possibility, but
made it clear that it was very reluctant to go into the fol-
lowing week, and the parties should expect to conclude
within the week. the Court indicated that trial days would
start earlier and go later than usual, if necessary, and that
[Malchow] should plan on having rebuttal witnesses avail-
able Friday afternoon. . . .
[Malchow] took far longer in presenting her case in chief
than what had been represented to the Court. although
there were numerous bench conferences, the court report-
er’s affidavit shows that they were quite short. throughout
the trial, the Court inquired how long proceedings would
take, and the time estimates given by [Malchow’s] coun-
sel in response varied substantially, without any apparent
reason, from time actually consumed. the direct exami-
nation by [Malchow] of Dr. Doyle was very slow-paced
and repetitive. the Court made every reasonable effort to
give [Malchow] the same amount of time which had been
allocated prior to the continuance, and [Malchow] in fact
was able to use far more time than was estimated.
MaLCHoW v. DoyLe 	535
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536 	275 Nebraska reports
Malchow does not offer any precedent to support her claim
that the district court imposed a daunting trial schedule on
the parties. she cites only this court’s definition of a judicial
abuse of discretion. We have held that a trial judge has broad
discretion over the general conduct of a trial. see Eicher v. Mid
America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792
(2005). We therefore review Malchow’s claims for an abuse
of discretion. the record does not establish that the district
court abused its discretion by depriving Malchow of a fair trial
through the scheduling of the proceedings, unless it can be
shown that the jury was prejudiced because the trial days were
longer than usual.
We note that on the fourth day of trial, the district court
expressed its frustration at the time the trial was taking and
stated it was concerned that the time estimates given by
Malchow had been incorrect. Doyle moved for a mistrial,
noting that there was insufficient time left for two expert wit-
nesses he had expected to call that day. Doyle’s counsel stated
that Malchow had taken “inordinate amounts of time with
everything . . . to slow this case down,” delay Doyle’s experts,
and extend the trial into the following week to allow one of
Malchow’s experts to testify.
Malchow’s counsel responded:
that isn’t true any longer, your Honor. . . . the motivation
is incorrect. At one time it was, but it’s not the motivation
for us trying this case at the pace we are, and we don’t
have any intention of delaying anything for any purpose at
all except to make sure the evidence gets in that we want
to present . . . .
(emphasis supplied.)
the above statement implied that Malchow’s counsel had pre-
viously attempted to extend the time of trial in order to call an
expert witness who was not available until the following week.
the district court allowed more time for Malchow’s case in chief
than had originally been discussed among the parties. Under the
circumstances presented in this case, Malchow was responsible
for the extra time that was required of the jury. We conclude that
the court did not abuse its discretion in extending the length of
the trial days. this assignment of error has no merit.

motions foR mistRial
[4] Malchow’s argument concerning the conduct of the trial
is also expressed in her assignment of error claiming that the
district court abused its discretion in overruling each of the
several motions for mistrial made during the trial. a motion
for mistrial is directed to the discretion of the trial court, and
its ruling will not be disturbed on appeal absent a showing of
abuse of that discretion. Genthon v. Kratville, 270 Neb. 74, 701
N.W.2d 334 (2005). a mistrial is appropriate when an event
occurs during the course of a trial which is of such a nature that
its damaging effects would prevent a fair trial. Id. events which
may require the granting of a mistrial may include egregiously
prejudicial statements of counsel, the improper admission of
prejudicial evidence, and the introduction to the jury of incom-
petent matters. see id.
Malchow argues that the length of the trial days was so
daunting that the jurors were prejudiced against her. We have
noted that the length of the trial days was related to Malchow’s
presentation of the evidence. some of Malchow’s motions for
mistrial, however, did not specifically relate to the length of
the trial days or the timing of the trial. the first motion, made
on the third day of trial, was based on the district court’s “pre-
venting [Malchow] from putting on evidence to impeach . . .
Doyle’s evidence and from putting on evidence concerning the
facts in this case that occurred on the date of the severe injury
to . . . Malchow.” on the fourth day, Malchow moved for mis-
trial because she felt that due to the time constrictions imposed
by the court, she had not been able to present the evidence that
she needed to fully meet her burden of proof.
Malchow offers no authority to support her contention that
the trial schedule prevented her from having a fair trial. as
noted earlier, a trial judge has broad discretion over the general
conduct of a trial, and we review complaints about the conduct
of a trial for abuse of discretion. see Eicher v. Mid America
Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005).
this court has previously addressed the imposition of time
limits on a trial in Robison v. Madsen, 246 Neb. 22, 516 N.W.2d
594 (1994), in which the trial court used stopwatches to keep
track of the time allotted for the parties to present their case,
MaLCHoW v. DoyLe 	537
Cite as 275 Neb. 530

538 	275 Nebraska reports
including cross-examination and arguments on objections. each
had been given 101⁄2 hours. although the issue was not raised
by the parties, we noted that a trial judge has broad discretion
over the conduct of a trial. We cautioned trial courts against
the use of stopwatches or other similar limitations on time.
“such methods of controlling the course of trial might well
overly restrict the presentation of evidence and could prejudice
a party’s right to fully present that party’s case.” Id. at 30, 516
N.W.2d at 599. the Nebraska Court of appeals has also stated,
“arbitrary time limits can easily become the enemy of justice
in our adversarial system.” Gohl v. Gohl, 13 Neb. app. 685,
702, 700 N.W.2d 625, 638 (2005).
In the case at bar, the trial was conducted over a 5-day
period and 62 hours were devoted to the trial. the record does
not show that either party was restricted in the presentation of
its evidence. Malchow has not demonstrated that she was preju-
diced in presenting her case based on the length of each trial
day, and she is not entitled to an inference that the jury resented
her because of the length of the trial. We conclude that the dis-
trict court did not arbitrarily place time limits on either party
or restrict the presentation of evidence. thus, the court did not
abuse its discretion in overruling any motions for mistrial on
the basis of the conduct of the trial.
J uRoR misconduct
Malchow claims the district court abused its discretion in
refusing to assemble the jury to investigate claims of juror mis-
conduct. at the hearing on the motion for new trial, Malchow
offered into evidence the affidavits of three jurors, and Doyle
objected based upon Neb. rev. stat. § 27-606 (reissue 1995),
which generally precludes a juror from testifying as to any
matter or statement occurring during the course of the jury’s
deliberations. the court sustained Doyle’s objection and refused
to receive the evidence.
We note that Malchow did not assign as error the court’s
refusal to receive the affidavits. errors argued but not assigned
will not be considered on appeal. County of Sarpy v. City of
Gretna, 273 Neb. 92, 727 N.W.2d 690 (2007). thus, we do not
consider the ruling on the affidavits.

Malchow’s assignment of error claims that the district court
abused its discretion in refusing to have the jurors return after
trial to be examined for possible juror misconduct. the motion
for new trial submitted by Malchow did not request such a
hearing, but during the hearing on the motion for new trial,
Malchow asked the court to gather the jurors to question them
about the verdict. this assignment of error appears to be based
on Malchow’s claim that the jurors were unduly influenced
by the jury foreperson, who allegedly repeatedly told the jury
that the proof had to be beyond a reasonable doubt to find in
Malchow’s favor.
section 27-606(2) precludes a juror testifying “as to any
matter or statement occurring during the course of the jury’s
deliberations . . . except that a juror may testify on the ques-
tion whether extraneous prejudicial information was improperly
brought to the jury’s attention.” Malchow claims that the jury
foreperson’s incorrect statement concerning the burden of proof
was extraneous information and did not relate to any statement
made during the jury’s deliberations. therefore, Malchow asserts
that the jurors should have been able to testify about it.
In Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999),
the appellant claimed juror misconduct because one of the
jurors, an attorney, had allegedly intimidated the other jurors
concerning the definition of proximate cause. the appellant
alleged that the attorney-juror’s legal knowledge constituted
extraneous 	prejudicial 	information 	within 	the 	meaning 	of
§ 27-606. Conflicting affidavits were offered. We held that the
juror’s general legal knowledge was personal knowledge not
directly related to the litigation and was not extraneous infor-
mation within the meaning of § 27-606.
[5] Here, it is alleged that the foreperson incorrectly stated
the burden of proof. a juror’s knowledge about the burden of
proof is personal knowledge that is not directly related to the
litigation at issue and is not extraneous information. the jury
was instructed by the court that Malchow’s burden of proof
was to show, by the greater weight of the evidence, that Doyle
was negligent. Jury instructions do not constitute prejudicial
error if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by
MaLCHoW v. DoyLe 	539
Cite as 275 Neb. 530

540 	275 Nebraska reports
the pleadings and evidence. Domjan v. Faith Regional Health
Servs., 273 Neb. 877, 735 N.W.2d 355 (2007). the jury instruc-
tions were correct, and there is no prejudicial error evident with
regard to the instructions to the jury.
Malchow was not entitled to an evidentiary hearing to inves-
tigate the allegations of juror misconduct. the jurors’ affidavits
were not admissible, and Malchow’s claims of misconduct were
unsupported by any evidence. see Leavitt v. Magid, supra. the
district court did not abuse its discretion in failing to conduct
a hearing to question the jurors about their verdict, and this
assignment of error has no merit.
reMaINING assIGNMeNts oF error
Malchow assigns as error the district court’s sustaining
Doyle’s renewed motion to continue the trial on september
26, 2005, and its overruling Malchow’s motion for judgment
notwithstanding the verdict or for new trial. However, Malchow
does not argue these assignments of error. to be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732
N.W.2d 354 (2007).
Cross-appeaL
on cross-appeal, Doyle asserts that the district court erred
(1) in ordering Doyle to pay for the deposition preparation time
of two of Malchow’s experts, Drs. richard burton and Michael
Miloro, and (2) in ordering Doyle to pay sanctions with respect
to the failure to produce certain models of Malchow’s dental
implant that were in Doyle’s possession.
standaRd of R eview
[6,7] on appellate review, decisions regarding discovery are
generally reviewed under an abuse of discretion standard. In re
Guardianship & Conservatorship of Borowiak, 10 Neb. app.
22, 624 N.W.2d 72 (2001). see, also, In re Estate of Jeffrey B.,
268 Neb. 761, 688 N.W.2d 135 (2004). the standard of review
of a trial court’s determination of a request for sanctions is

whether the trial court abused its discretion. Holste v. Burlington
Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999).
deposition expenses
on February 17, 2005, Malchow moved to compel Doyle
to pay the fees for certain expert witnesses to prepare their
responses to Doyle’s discovery pursuant to Neb. Ct. r. of
Discovery 37 (rev. 2000). the district court had previously
overruled Malchow’s objections to several interrogatories sub-
mitted by Doyle to Malchow’s expert witnesses. However, the
court had ordered Doyle to pay Malchow’s expert witnesses
to respond to said discovery if, after being informed of the
estimated charges, Doyle still wished to obtain the responses.
Malchow provided the required estimation of charges, but
received no response from Doyle.
In her motion to compel, Malchow claimed that defense
counsel then served notices of deposition on two of Malchow’s
expert witnesses, burton and Dr. J. bruce bavitz, seeking the
same information as had previously been sought through the
written interrogatories. Malchow claimed that by deposing such
witnesses, Doyle was attempting to obtain the same information
by deposition that he had previously sought through written
discovery. burton’s deposition was held on December 28, 2004,
and bavitz’ deposition was held on January 12, 2005.
burton sent Doyle a bill of $3,000 for his deposition and
his preparation time, including his time to compile answers
to a list of questions that were asked of him in the notice of
deposition. Doyle’s attorney paid $2,000 but refused to pay the
other $1,000, which was based on burton’s charge for 4 hours
at $250 per hour to review all materials, answer the interroga-
tories, and conduct other research in preparation for the deposi-
tion. Doyle argued he should not be required to pay for the trial
preparation of Malchow’s expert.
Malchow alleged that Doyle was attempting to circumvent
the district court’s prior order by restating the same questions in
a notice of deposition to the expert witness rather than by sub-
mitting written interrogatories to Malchow. In addition, because
the issue had previously been ruled on in the court’s order of
MaLCHoW v. DoyLe 	541
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542 	275 Nebraska reports
December 12, 2003, Malchow claimed that Doyle should be
ordered to pay Malchow’s attorney fees incurred in filing the
motion to compel.
the district court ordered Doyle to pay the entire amount
billed by burton, which included his preparation time for
answering the interrogatories and participating in the deposi-
tion. the court overruled Malchow’s request for attorney fees.
Under the circumstances presented, we conclude the court
did not abuse its discretion in ordering Doyle to pay burton’s
charges of $3,000.
each party moved for a protective order regarding the fees
charged by Miloro. Doyle had been advised that several of
Malchow’s expert witnesses required a fee of $1,000 to $1,500
at least 1 week in advance of the deposition, based on a rate of
$500 to $750 per hour. Miloro’s deposition was scheduled for 2
hours on august 29, 2005, but Miloro canceled it when Doyle
did not pay $1,500 at least 1 week in advance. Doyle alleged
that Miloro’s charges were unreasonable.
subsequent to the cancellation of his deposition, Miloro
demanded a total of $7,500. In addition to $1,500 for the
deposition, Miloro claimed he had incurred 12 hours of prepa-
ration between august 27 and 28 reviewing records, and he
charged $500 per hour for preparation. Miloro stated that on
Friday, august 26, 2005, his office left a voicemail message for
Malchow’s counsel that the $1,500 advance fee had not been
received. In spite of not being paid, Miloro said he felt it neces-
sary to review the records in the event that all parties appeared
for the deposition. Miloro claimed he had spent 12 hours over
the weekend reviewing the records. the district court ordered
that Doyle was responsible for Miloro’s “time for the deposi-
tion to be taken the morning of august 29,” but which did not
occur because of nonpayment by Doyle. the court also over-
ruled Doyle’s motion for a protective order.
Doyle subsequently filed an application for leave to file an
original action in this court seeking a writ of mandamus relating
in part to the $6,000 charge for Miloro’s deposition preparation
time. We denied Doyle’s application to file an original action.
on september 23, 2005, Malchow again brought the issue of
Miloro’s $7,500 charge before the district court. the court then

inquired of Malchow’s counsel whether there would be a prob-
lem with Miloro’s appearing for trial because he had not been
paid. Counsel responded that Miloro would not appear until
the bill was paid. “We’ve paid him a lot of money in the past.
He’s been paid for every minute that we’ve seen him before.”
Cocounsel then added, “We’ve paid him in advance for his trial
appearance, but he hasn’t [been] paid the $7[,]500.” Miloro
was scheduled to appear on the third day of the trial. Counsel
stated that Miloro would fill up his calendar if he was not paid
the $7,500 immediately and that he would not testify at trial,
which was scheduled at that time to begin the following week.
the court ordered Doyle to pay $7,500 to Miloro no later than
5 p.m. on Monday, september 26.
the record indicates that Miloro had spent considerable time
with Malchow’s lawyers prior to trial and that he had been paid
for his time, which according to counsel was “a lot of money.”
Miloro had been paid by Malchow for his trial appearance. the
remaining question is whether Doyle should have been required
to pay Miloro for 12 hours of preparation for a 2-hour deposi-
tion that was requested by Doyle but was never taken because
Miloro was not paid in advance.
this court has not previously addressed the question of
payment of an expert witness for time spent in preparation
for a deposition. the Nebraska discovery rules for civil cases
are, with some modification, based on the federal rules of
discovery. see, Neb. Ct. r. of Discovery 26(b)(4) (rev. 2001);
Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553,
501 N.W.2d 281 (1993).
Doyle relies on Rhee v. Witco Chemical Corp., 126 F.r.D.
45 (N.D. Ill. 1989), which held that a deposing party need
not compensate the opposing party’s expert for time spent
preparing for a deposition. the court noted that the prepara-
tion time included not only the expert’s review of his or her
conclusions and the basis for the opinion, but also consultation
between counsel and the expert to prepare the expert for testify-
ing. “an expert’s deposition is in part a dress rehearsal for his
testimony at trial and thus his preparation is part of trial prepa-
ration. one party need not pay for the other’s trial preparation.”
Id. at 47.
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544 	275 Nebraska reports
Malchow relies on Hose v. Chicago and North Western
Transp. Co., 154 F.r.D. 222 (s.D. Iowa 1994), in which the
railroad objected to the plaintiff’s expert witness’ charging the
railroad for time spent reviewing medical records in preparation
for a deposition. the court distinguished Rhee, in part, because
the expert in Hose was the plaintiff’s treating neurologist and
was not retained specifically for the litigation. In addition, the
expert was not seeking compensation for any time spent in
conference with plaintiff’s counsel, but merely for time spent
reviewing the plaintiff’s medical records. the court noted that
compensating the expert for time spent reviewing medical
records would speed along the deposition process and would
save costs over having the expert refresh his memory during the
deposition using the medical records.
other cases represent a split of authority regarding pay-
ment of an expert’s time in preparing for a deposition. In M. T.
McBrian, Inc. v. Liebert Corp., 173 F.r.D. 491 (N.D. Ill. 1997),
the court stated that as a general rule, Fed. r. Civ. p. 26(b)(4)(C)
does not require the deposing party to bear the expense of the
expert’s deposition preparation time. M. T. McBrian, Inc. was a
simple contract case between two parties, and the court stated
that without more compelling circumstances, time spent prepar-
ing for a deposition should fall on the party responding to a
discovery request. see, also, Benjamin v. Gloz, 130 F.r.D. 455
(D. Colo. 1990) (compensation denied for time spent by expert
preparing for deposition).
there are exceptions where the case is complex or where
there has been a considerable lapse of time between an expert’s
work on a case and the date of the actual deposition. In S.A.
Healy Co. v. Milwaukee Metro. Sewerage Dist., 154 F.r.D. 212
(e.D. Wis. 1994), the court found that the issues were com-
plex and that the deposition would occur 4 to 5 months after
the expert prepared his report. It ordered the party responding
to the discovery to pay for 5 hours of the expert’s deposition
preparation time. see, also, E.E.O.C. v. Sears, Roebuck and
Co., 138 F.r.D. 523 (N.D. Ill. 1991) (cost of time spent for
experts to review voluminous documents may be recovered in
complex case, but range of activities performed by experts for
which party can be reimbursed is very narrow).

[8] the question of whether time spent by Miloro in respond-
ing to discovery should include his time preparing for a deposi-
tion is left to the discretion of the trial court. the control of dis-
covery is a matter for judicial discretion. In re Estate of Jeffrey
B., 268 Neb. 761, 688 N.W.2d 135 (2004). 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 untenable
and unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through the judicial
system. Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007).
In this case, Doyle did not pay certain specified fees to Miloro
in advance as agreed upon, which resulted in the deposition’s
being canceled.
We conclude that the district court abused its discretion in
ordering Doyle to pay the $6,000 charged by Miloro as compen-
sation for time he spent preparing for the deposition. the facts
herein are similar to those in Rhee v. Witco Chemical Corp.,
126 F.r.D. 45 (N.D. Ill. 1989). Miloro was Malchow’s witness,
and he was scheduled to testify on the third day of the trial.
Malchow’s counsel stated that he had spent considerable time
with Miloro and that Miloro had been paid for every minute of
his time. Whether Miloro needed to spend 12 additional hours
to prepare for a 2-hour discovery deposition by Doyle is not the
question, but, rather, whether Doyle should have been ordered
to pay such charges. We conclude that the district court’s
order on this issue was in error. We therefore modify that por-
tion of the judgment in order to tax $6,000 as additional costs
to Malchow.
sanctions
on December 15, 2003, Malchow issued Doyle a notice for
deposition and a subpoena duces tecum, asking Doyle to provide
the following materials: “[a]ll records, documents, billings, and
other tangible things in your possession or control” pertaining to
Malchow, including but not limited to x rays.
as Doyle’s deposition began on December 19, 2003, he was
asked whether he brought those items requested in the subpoena
duces tecum. Doyle stated that he had brought all documents
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546 	275 Nebraska reports
pertaining to Malchow, x rays, and the instruments used for the
surgery. Later in the deposition, Doyle mentioned that models
of Malchow’s jawbone had been made between the first and
second surgeries. When a second deposition of Doyle was
taken on april 8, 2005, he was asked if he was in possession of
any models, and he indicated he would have to check. Dental
impressions were eventually provided to Malchow’s counsel
on april 13.
In Malchow’s motion for sanctions under rule 37, she alleged
that she had learned on January 24, 2005, that an exhibit con-
tained the “right strut of the Malchow subperiosteal implant,”
which had never before been produced by Doyle or properly
made a part of the contents of the exhibit. Malchow claimed that
the strut was added to the exhibit while it was in the possession
of Doyle or his counsel. Malchow claimed that at Doyle’s sec-
ond deposition on april 8, the right strut of Malchow’s implant
was produced. and at a third deposition on June 13, models of
Malchow’s jaw and implant device were produced.
In her motion for sanctions, Malchow asked the district
court to find that Doyle and his counsel were in contempt
and to order that they purge themselves of contempt by either
(1) paying Malchow’s counsel full compensation for the time
expended as a result of taking Doyle’s deposition on three
occasions, (2) forfeiting the right to refer to or use the strut or
models as evidence at trial, or (3) admonishing and instruct-
ing Doyle’s expert witnesses that their opinions should not be
based on the strut or models.
In the alternative, Malchow sought payment for the time
expended in revisiting all of Malchow’s expert witnesses to
allow them to review the strut and models; payment for the
time spent taking the depositions of bavitz and burton, who
were not allowed to view the strut and models prior to their
depositions; and forfeiture of Doyle’s right to use the depo-
sitions of bavitz and burton as substantive evidence or as
impeachment at trial.
the district court found that Doyle was negligent in fail-
ing to produce the strut and models related to his treatment of
Malchow at either of his depositions. pursuant to the subpoena
duces tecum, Doyle was required to bring all “tangible things”

to the deposition. the court found it would be an extreme
remedy to exclude the models from use but found it appropriate
to impose sanctions in the amount of one-half of the costs of the
subsequent depositions and Malchow’s attorneys’ preparation
time for those depositions. Doyle was ordered to pay $7,717.50
in attorney fees and $685.58 in expenses to Malchow’s counsel
as sanctions by august 31, 2005.
after the trial, Doyle moved the district court to reconsider
its sanctions. He argued there was no testimony that the models
changed the opinion of any expert or that any expert spent a
great deal of time looking at the models to reevaluate his opin-
ion. Doyle claimed the sanctions were excessive and asked that
they be set aside because there was no prejudice to Malchow.
the court overruled this motion for reconsideration.
Doyle argues that the district court abused its discretion. He
claims that there was no prejudice to Malchow because the
expert witnesses testified that their opinions did not change
after they saw the models. burton stated in a second deposition
that none of his opinions had changed following his review of
the models and implant. bavitz stated at trial that he had not
changed his opinions based on his review of the models.
the subpoena duces tecum directed Doyle to bring with
him “[a]ll records, documents, billings, and other tangible
things in your possession or control” pertaining to Malchow,
including but not limited to x rays. (emphasis supplied.) the
models would certainly fall within the definition of “other
tangible things.” thus, the district court did not abuse its
discretion in sanctioning Doyle for the failure to provide the
models until 16 months after the subpoena duces tecum was
issued. this assignment of error has no merit.
CoNCLUsIoN
the judgment of the district court is affirmed as modified in
accordance with this opinion.
affiRmed as modified .
connolly, J., participating on briefs.
MaLCHoW v. DoyLe 	547
Cite as 275 Neb. 530