Woodward v. Saint Francis Med. Ctr.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
Jillyn M. Woodward, individually and as
Special Administrator of the Estate of Brian
K. Woodward, deceased, appellant, v. Saint
Francis Medical Center, doing business as
CHI Health St. Francis, et al., appellees.
___ N.W.3d ___
Filed May 31, 2024. 	No. S-23-324.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Witnesses: Testimony. Where a nonparty witness testifies contrary to
deposition testimony, any change in testimony is an issue of credibility
for a fact finder to make, and that later testimony will normally not be
struck by the trial court.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Reversed and remanded for further proceedings.
Thomas E. Johnson and Adam P. Johnson, of Johnson, Tabor
& Johnson Law, L.L.C., for appellant.
Cathy S. Trent-Vilim and Patrick G. Vipond, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:45 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
Heavican, C.J.
INTRODUCTION
Brian K. Woodward and his wife, Jillyn M. Woodward (Jill),
filed suit against Babak Favivar, Donald Kropf, Saint Francis
Medical Center (Saint Francis), and The Physicians Network
for injuries Brian allegedly sustained while he was receiving
care at Saint Francis in Grand Island, Nebraska. The district
court granted the doctors’ and Saint Francis’ motions for sum-
mary judgment. Jill appeals. We reverse, and remand for fur-
ther proceedings.
BACKGROUND
Brian’s Angioedema.
Brian was brought to the emergency room (E.R.) at Saint
Francis at approximately 5:30 a.m. on June 30, 2019. Brian,
aged 52 years, complained that his tongue was swollen and that
he was having difficulty swallowing.
Upon arrival at the E.R., Brian was evaluated. According to
the deposition of his treating nurse, Brian was alert, oriented,
able to sit up, and breathing normally, though his tongue and
throat were exhibiting significant swelling. Defendant Favivar
was the sole E.R. doctor on duty and was Brian’s attending
physician. Favivar concurs that Brian was alert and oriented
upon his arrival at the E.R.
Brian 	was 	treated 	for 	angioedema, 	which 	is 	abnormal
swelling of the tongue, mouth, and airway. Generally, there
are 	two 	types 	of 	angioedema: 	bradykinin-mediated 	and
histamine-mediated. Each is distinct and responds differently
to medications.
Initially, Brian was given a regimen of epinephrine, ste-
roids, and Benadryl, which is often successful in treating
histamine-mediated angioedema. Brian did not respond to
the regimen given. Angioedema can progress quickly, and in
Brian’s case, it became more and more difficult for him to
breathe. The record shows that Favivar was aware from the
outset of Brian’s treatment that it might become necessary

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
to intubate or establish a surgical airway. That time came at
approximately 6:15 a.m., when Favivar directed that the on-
call anesthesiologist, Kropf, be notified that he was needed for
an emergency intubation.
Kropf arrived at the hospital at 6:30 a.m. According to
Brian’s nurse, Brian was still alert, responsive, conversant,
and breathing on his own when Kropf arrived. At 6:32 a.m.,
Brian was administered neuromuscular drugs paralyzing him
in advance of the intubation. Kropf then attempted to intubate
Brian but was unsuccessful due to the severity of the swell-
ing. Kropf was unable to identify any anatomical landmarks
and, even with the assistance of an endoscope, could see
nothing beyond Brian’s tongue. This attempt having failed,
Favivar directed that an ear, nose, and throat physician (ENT)
be called to establish a surgical airway (via either a tracheos-
tomy or a cricothyrotomy).
While waiting for the ENT, Kropf made at least one addi-
tional unsuccessful attempt to intubate. It is not clear whether
Favivar ever made his own attempt at intubation—his notes
and the statement of a respiratory therapist who was present
indicate he did, but Favivar testified via deposition that he
did not.
The ENT arrived and, at about 6:55 a.m., administered lido-
caine in preparation for the establishment of a surgical airway.
Just after the arrival of the ENT, the medical director of the
E.R., Dr. Matthew Treaster, also arrived. Treaster attempted
and successfully completed intubation between 6:55 and 7
a.m. Brian was later life-flighted and admitted to a hospital in
Omaha, Nebraska.
Two days later, Brian was extubated and weaned off seda-
tives and paralytics. At this time, it was noted that Brian was
suffering from apparently new-onset, right-side semiparesis,
including weakness and partial paralysis. Over the next few
days, Brian was noted to have various “deficits,” includ-
ing cognitive issues, hemiparesis, and memory and language

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
issues. Brian returned to Saint Francis for both inpatient and
outpatient rehabilitation treatment.
According to the record, Brian was in a wheelchair follow-
ing these events until his death in April 2022. Brian did not
return to work and was dependent on Jill for daily activities
such as toileting, dressing, bathing, and eating, and he suffered
from memory and speech issues, mobility limitations, and
emotional issues. Jill does not claim that Brian’s death was a
result of the alleged medical malpractice.
Litigation.
Brian and Jill, and later Jill individually and in her capac-
ity as the special administrator of Brian’s estate, allege that
Favivar and Kropf were negligent in their treatment of Brian
by failing to appropriately manage his airways, causing a per-
manent anoxic brain injury, and further that Favivar and Kropf
were agents of Saint Francis and that thus, Saint Francis was
liable for Favivar’s and Kropf’s malpractice. In support of her
claim of medical malpractice, Jill offered depositions from
three experts: Adam Barkin, emergency room doctor (taken
October 9, 2021); Morgan LaHolt, rehabilitation doctor spe-
cializing in brain injuries (taken February 23, 2022); and John
Lundell, anesthesiologist (taken August 11, 2022).
The doctors and Saint Francis sought summary judgment
on February 15, 2023. On February 28 and March 6, affida-
vits from LaHolt and Barkin were served on the defendants.
The defendants subsequently filed motions to strike these
affidavits.
Following a hearing held on the motions to strike and for
summary judgment, the district court struck the affidavits,
relying on Momsen v. Nebraska Methodist Hospital, 1 noting
that the affidavits included “information that is materially dif-
ferent from the deposition each affiant provided. There is no
1 Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208
(1981).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
sufficient explanation for the change in testimony by either
. . . Barkin or . . . LaHolt other than to meet the exigencies
of litigation.” The district court then granted the defendants’
motions for summary judgment.
ASSIGNMENTS OF ERROR
Jill assigns that the district court erred in (1) striking the
supplemental affidavits of LaHolt and Barkin, (2) ruling that
there was no genuine issue of material fact as to the proxi-
mate cause of Brian’s injuries, (3) determining as a matter
of law that Favivar and Kropf were independent contractors
and not ostensible agents or common-law employees of Saint
Francis, and (4) finding no issues of material fact and that
Saint Francis was entitled to judgment as a matter of law.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 2 An appellate court reviews the district court’s grant
of summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 3
ANALYSIS
Striking of Affidavits Under Momsen.
On appeal, Jill assigns that the district court erred in strik-
ing LaHolt’s and Barkin’s affidavits based on Momsen. 4 We
agree.
In Momsen, this court affirmed the striking of the defend-
ant doctor’s testimony at trial, where that testimony was
2 Griffith v. LG Chem America, 315 Neb. 892, 1 N.W.3d 899 (2024).
3 Id.
4 Momsen, supra note 1.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
contrary to earlier deposition testimony. In so doing, we
concluded that the change in testimony was made to meet the
exigencies of the pending litigation.
[3] But since our decision in Momsen, we have been
unwilling to extend that holding to situations involving the
testimony of nonparty witnesses. 5 In the instance of a non-
party witness, rather than striking that testimony, this court
has held that any change in testimony is an issue of credibility
for a fact finder to make.
The defendants suggest that the refusal to extend Momsen
to nonparty witnesses would be “understandable” in a trial
setting: “the case is already being tried to a factfinder, whose
duties include making credibility determinations, and the
conflicting testimony can be used to impeach the witness
and place the witness’s credibility directly at issue for the
factfinder to resolve.” 6 However, the defendants argue that
“rationale . . . does not apply to summary judgments pro-
ceedings [like this one], where credibility determinations are
prohibited.” 7
As we determined in Choice Homes v. Donner 8 —also an
appeal following a grant of summary judgment—we decline
the invitation to extend Momsen to apply to nonparty witness
testimony. Accordingly, we reverse the district court’s granting
of the defendants’ motion to strike.
We observe that several other arguments were made by the
defendants in support of striking the affidavits, including a
contention that the striking of the affidavits was permissible
either due to Jill’s failure to abide by the progression order 9
5 See, Choice Homes v. Donner, 311 Neb. 835, 976 N.W.2d 187 (2022);
Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003).
6 Brief for appellees at 22.
7 Id. at 23.
8 Donner, supra note 5.
9 Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
or as a sanction for a discovery violation. 10 Because the dis-
trict court did not make any determinations based on those
other grounds, and these other grounds require the district
court to exercise its discretion, we reverse the district court’s
determination that the affidavits should be stricken under
Momsen, and we remand the cause for further proceedings
and to consider the alternate grounds raised. We therefore find
merit to Jill’s first assignment of error.
Remaining Assignments of Error.
Because we conclude that the district court erred in strik-
ing Barkin’s and LaHolt’s affidavits, we do not reach Jill’s
assertion—raised in her second assignment of error—that sum-
mary judgment should have been denied based on causation.
Causation cannot be considered until the district court has con-
sidered the other grounds for striking these affidavits.
Likewise, we do not reach Jill’s assignment of error relating
to Saint Francis’ liability. In her complaint, Jill asserted that
Favivar and Kropf were ostensible or common-law agents of
Saint Francis and that Saint Francis was liable for their mal-
practice under an agency theory. Apparent or ostensible author-
ity “‘may be conferred if the alleged principal affirmatively,
intentionally, or by lack of ordinary care causes third persons
to act upon the apparent authority.’” 11
Saint 	Francis 	moved 	for 	summary 	judgment, 	asserting
that Favivar and Kropf were not employed by Saint Francis
but were instead independent contractors employed by The
Physicians Network and asserting that Favivar’s and Kropf’s
actions were not the cause of Brian’s alleged injuries. Saint
Francis further argued that there was no other allegation or
10 Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146
(1987).
11 Double K, Inc. v. Scottsdale Ins. Co., 245 Neb. 712, 719, 515 N.W.2d 416,
421 (1994).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
evidence supporting any allegations of malpractice against
any Saint Francis employees.
We do not reach Jill’s assignment of error relating to
agency, because the basis of the district court’s granting of
summary judgment in Saint Francis’ favor is not totally clear
from the record. The court’s order finds no genuine issue of
material fact as to the agency question, but also states that
“[e]ven if a genuine issue of material fact was created by
the allegations of [Jill] of ostensible or apparent[] agency of
emergency room doctors . . . as addressed below, the ultimate
result [of] this case would be the same regarding these com-
bined motions for summary judgment.”
To the extent the district court concluded that there was
an issue of material fact, the court found that its decision on
causation was dispositive. But we have since reversed that
decision on causation and remanded the cause for further pro-
ceedings. Thus, to the extent there was an issue of material
fact, remand is likewise appropriate.
To the extent the district court found no genuine issue of
material fact, we observe that it is not entirely clear from the
record what evidence the district court considered in reaching
that conclusion. We note the presence of a document entitled
“Conditions of Admissions” in which Jill consented to Brian’s
treatment. While that form indicated that “not all” doctors pro-
viding treatment “are employees or agents of the [h]ospital,”
such language suggests that some of the doctors are employees
or agents of the hospital. It equally provides that the admitting
and treating physician “may or may not be employed by the
[h]ospital.” On its own, this document does not show that there
is no genuine issue as to whether the doctors had apparent or
ostensible authority from Saint Francis.
As such, we also reverse that portion of the district court’s
order that could be read as granting Saint Francis’ motion for
summary judgment on the issue of agency, and remand the
cause for further proceedings.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
WOODWARD v. SAINT FRANCIS MED. CTR.
Cite as 316 Neb. 737
CONCLUSION
The decision of the district court is reversed, and the cause
is remanded for further proceedings.
Reversed and remanded for
further proceedings.
Funke, J., not participating.