              OPINION OF THE SUPREME COURT OF NEBRASKA


NOTICE: DUE TO UNFORESEEN CIRCUMSTANCES, THIS OPINION IS BEING POSTED
  TEMPORARILY IN “SLIP” OPINION FORM. IT WILL BE REPLACED AT A LATER
   DATE WITH AN “ADVANCE” OPINION, WHICH WILL INCLUDE A CITATION.




                                     Case Title

                             ROSA MORENO, APPELLEE,
                                       V.
                    CITY OF GERING AND SCOTTS BLUFF COUNTY,
                       POLITICAL SUBDIVISIONS, APPELLANTS.




                                    Case Caption

                            MORENO V. CITY OF GERING




                        Filed April 15, 2016.   No. S-15-216.




       Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU,
Judge. Affirmed.

      Charles W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O., and
Howard P. Olsen, Jr., of Simmons Olsen Law Firm, P.C., for appellants.

      Michael W. Meister for appellee.
MORENO v. CITY OF GERING

Filed April 15, 2016.   No. S-15-216.


1. Judgments: Jurisdiction. When a jurisdictional question does not involve a factual dispute,
the issue is a matter of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of law independently of
the lower court’s conclusion.
3. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are directed to the
discretion of the trial court, and will be upheld in the absence of an abuse of discretion.
4. Pretrial Procedure: Proof: Appeal and Error. The party asserting error in a discovery
ruling bears the burden of showing that the ruling was an abuse of discretion.
5. Motions for Continuance: Appeal and Error. An appellate court reviews a judge’s ruling on
a motion to continue for an abuse of discretion.
6. Political Subdivisions Tort Claims Act: Judgments: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not disturb the factual
findings of the trial court unless they are clearly wrong. And in such actions, when determining
the sufficiency of the evidence to sustain the trial court’s judgment, it must be considered in the
light most favorable to the successful party; every controverted fact must be resolved in favor of
such party, and it is entitled to the benefit of every inference that can reasonably be deduced
from the evidence.
7. Mandamus. Mandamus lies only to enforce the performance of a mandatory ministerial act or
duty and is not available to control judicial discretion.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial right of the complaining party. The
exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is
admitted without objection. In particular, where the information contained in an exhibit is, for
the most part, already in evidence from the testimony of witnesses, the exclusion of the exhibit is
not prejudicial.
9. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.




                                               -2-
       HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.
       MILLER-LERMAN, J.
                                      NATURE OF CASE
        After being injured in a motor vehicle accident, Rosa Moreno filed this negligence action
against the City of Gering, Nebraska (the City), and Scotts Bluff County, Nebraska (the County).
The district court for Scotts Bluff County entered judgment in Moreno’s favor. The City and the
County appeal. The City and the County claim, inter alia, that the court erred when it overruled
their motion to compel discovery of information regarding other surgeries performed by a doctor
who they contend performed an unnecessary surgery on Moreno, the cost of which should not be
their responsibility. We affirm the judgment of the district court.
                                   STATEMENT OF FACTS
        On January 12, 2011, Moreno was a passenger in a handibus operated by the County
when the handibus was hit by a van operated by the City’s volunteer fire department. Moreno
was ejected from the handibus and landed on the street pavement. Moreno was transported by
ambulance to Regional West Medical Center.
        Moreno brought this personal injury action against the City and the County under the
Political Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012). Both the
City and the County admitted liability, and therefore, Moreno’s claim for damages was the only
matter at issue in the bench trial held in the district court.
        A major contested issue regarding damages was whether a cervical fusion surgery
performed in June 2011 by Dr. Omar Jimenez, a neurosurgeon, was necessary to treat Moreno
for an injury caused by the accident. A few months before the trial was set to begin, the City and
the County learned of published news reports which indicated that in 2011 and 2012,
Dr. Jimenez had performed an unusually high number of spinal fusion surgeries similar to the
surgery performed on Moreno. The reports indicated that there existed a debate over whether
some surgeons were performing spinal fusions that were unnecessary and potentially dangerous.
The reports also stated that malpractice claims had been brought against Dr. Jimenez and that his
medical privileges had been suspended by a network of hospitals in Georgia. The news reports
cited and quoted a medical expert who contended that surgeons who performed high numbers of
spinal fusions “should be looked at closely and asked to explain themselves.”
        After learning of the news reports, the City and the County issued medical records
subpoenas to Regional West Physicians Clinic and Regional West Medical Center (collectively
Regional West). They sought records that documented, inter alia, information regarding similar
surgeries performed by Dr. Jimenez, including the number and types of surgeries performed by
Dr. Jimenez, discussions among Regional West staff and administrators regarding the surgeries
performed by Dr. Jimenez, and communications to Dr. Jimenez regarding surgeries he performed
at Regional West.
        Although Moreno did not object, Regional West objected to the subpoenas. The City and
the County filed a motion to compel Regional West to produce the records. They also filed a
motion to continue the trial in order to allow them time to conduct discovery of the requested
information and to perform any followup discovery after reviewing the information. At a hearing


                                              -3-
on the motion to compel, Regional West objected to certain exhibits offered by the City and the
County in support of the motion. In its order ruling on the motion, the court first sustained
Regional West’s hearsay objection to portions of the exhibits, including the news reports
regarding the number of spinal fusions performed by Dr. Jimenez and the controversy regarding
such surgeries. The court overruled other objections raised by Regional West.
        After the hearing, the court overruled the motion to compel. The court reasoned that the
records were not relevant to this case, because they related to nonparty patients and were to be
used only as character evidence regarding Dr. Jimenez and his alleged propensity to perform
unnecessary surgeries. The court noted that such nonparty records would not normally be
admissible under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), regarding character evidence, and
Neb. Rev. Stat. § 27-403 (Reissue 2008), regarding the probative value of evidence. The court
acknowledged that the “concept of relevancy is broader in the discovery context than in the trial
context” and that a “party may discover relevant evidence that would be inadmissible at trial, so
long as it may lead to the discovery of admissible evidence.” However, the court reasoned that
even without such nonparty records, the City and the County would still be able to introduce
direct evidence regarding whether the surgery performed on Moreno was necessary. The court
therefore concluded that the motion to compel discovery should be overruled.
        The court also overruled the City and the County’s motion to continue the trial. The court
noted that Moreno served tort claim notices on the City and the County in May 2011, that she
filed her complaint in November 2012, and that in March 2014, trial had been set for August.
The court reasoned that efforts by the City and the County to discover information regarding
Dr. Jimenez’ treatment of other patients “did not have to wait for” the news reports of which the
City and the County learned in April or May 2014.
        At the trial on damages, Moreno presented evidence regarding expenses she incurred for
medical treatment following the accident. Such evidence included testimony by various medical
professionals who treated her, including Dr. Jimenez, who began his testimony by reviewing his
qualifications and experience. He then testified regarding his treatment of Moreno. Dr. Jimenez
opined that Moreno suffered an injury in the accident that aggravated a preexisting condition and
caused compression of the nerves in her spinal cord. He further opined that the cervical fusion
surgery was necessary to treat the condition. The City and the County cross-examined
Dr. Jimenez at length. The cross-examination made reference to medical records and reports by
other medical professionals for the purpose of undermining Dr. Jimenez’ opinions.
        In their defense, the City and the County presented the video deposition of Dr. Charles
Taylon generally for the purpose of showing that the cervical fusion surgery was unnecessary.
Dr. Taylon stated that he was a neurosurgeon, and he testified regarding his training and
experience, which included being educated in medicine at Creighton University in Omaha,
Nebraska, and at the University of Wisconsin in Madison, Wisconsin, and being a professor of
neurosurgery at the Medical College of Wisconsin in Milwaukee, Wisconsin. Dr. Taylon had
reviewed Moreno’s medical records and other information in order to offer opinions regarding
the cervical fusion surgery performed on Moreno. Dr. Taylon opined that the surgery was
unnecessary, that it was unrelated to the accident, and that the accident had not aggravated a
preexisting cervical problem. During cross-examination by Moreno, Dr. Taylon testified that



                                              -4-
Dr. Jimenez’ treatment of Moreno was “worse than malpractice,” that Dr. Jimenez was “a
criminal,” and that the cervical fusion surgery was “unnecessary” and an “assault.”
        Following trial, the court entered judgment in favor of Moreno in the amount of
$575,203.62. The court found, inter alia, that the accident aggravated Moreno’s preexisting
medical condition and that medical treatment, including the surgery performed by Dr. Jimenez,
was necessary and was proximately caused by the accident. In its written memorandum order
and judgment, the court reviewed the testimonies of both Dr. Jimenez and Dr. Taylon and
concluded that it generally accepted the testimony of Dr. Jimenez where it was in conflict with
the testimony of Dr. Taylon. The court noted that “Dr. Taylon’s testimony took a very unusual
turn” when on cross-examination he “became overly adversarial, argumentative, and
confrontational.” The court specifically noted, among other examples, that Dr. Taylon had called
Dr. Jimenez a “criminal” and accused him of assaulting Moreno. The court stated that such
behavior “goes to bias and the weight to be given to the witness[’] testimony,” and the court
further observed that “[t]hroughout his testimony, Dr. Taylon was as much an advocate as an
unbiased, impartial expert witness.”
        The City and the County appeal from the judgment of the district court.
                                 ASSIGNMENTS OF ERROR
       The City and the County claim that the district court erred when it (1) overruled their
motion to compel discovery of information from Regional West, (2) sustained Regional West’s
hearsay objection to evidence offered in support of the motion to compel discovery, (3)
overruled the motion to continue the trial, (4) found that the surgery performed by Dr. Jimenez
and related medical care were necessary to treat an injury Moreno suffered in the accident, and
(5) awarded Moreno damages based on the surgery and related medical care.
                                  STANDARDS OF REVIEW
        [1,2] When a jurisdictional question does not involve a factual dispute, the issue is a
matter of law. Kelliher v. Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014). An appellate court
reviews questions of law independently of the lower court’s conclusion. Id.
        [3,4] Decisions regarding discovery are directed to the discretion of the trial court, and
will be upheld in the absence of an abuse of discretion. Breci v. St. Paul Mercury Ins. Co., 288
Neb. 626, 849 N.W.2d 523 (2014). The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion. Id.
        [5] An appellate court reviews a judge’s ruling on a motion to continue for an abuse of
discretion. See Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995).
        [6] In actions brought under the Political Subdivisions Tort Claims Act, an appellate
court will not disturb the factual findings of the trial court unless they are clearly wrong.
Williams v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015). And in such actions, when
determining the sufficiency of the evidence to sustain the trial court’s judgment, it must be
considered in the light most favorable to the successful party; every controverted fact must be
resolved in favor of such party, and it is entitled to the benefit of every inference that can
reasonably be deduced from the evidence. See id.




                                              -5-
                                          ANALYSIS
The City and the County Were Not Required to Seek Immediate Review After the
District Court Overruled Their Motion to Compel Discovery; Issues Related
to the Motion Are Reviewable in This Appeal.
        We note as an initial matter that Moreno contends in her brief that the City and the
County waived issues relating to the motion to compel discovery because they failed to utilize
what she asserts was the proper procedure to preserve such issues for appellate review. She
specifically contends that the appropriate procedure to gain review of such issues is to file a
petition for a writ of mandamus after the district court overrules the motion to compel discovery,
but she also suggests that an immediate appeal may be appropriate. Moreno basically argues that
in this case, we lack jurisdiction to review the district court’s ruling on the motion to compel
discovery because the City and the County did not file for review of the ruling earlier. We reject
Moreno’s argument, and instead, we conclude that the order overruling the motion to compel
discovery and issues related thereto are reviewable in this appeal from the final judgment.
        Moreno does not cite direct precedent for her assertion that appellate review of the
discovery ruling should have been invoked by a petition for a writ of mandamus. Instead, she
relies heavily on Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 160, 794 N.W.2d
685, 693 (2011), and specifically to the portion of our decision in which we held that “an order
granting discovery from a nonparty in an ancillary proceeding is not a final, appealable order”
but noted that “some federal courts have recognized a limited exception . . . and permitted appeal
by a party under the collateral order doctrine from an order denying discovery from a nonparty in
an ancillary proceeding.” This portion of Schropp Indus. refers to taking an appeal rather than
petitioning for mandamus. So, we do not believe it supports Moreno’s claim that the City and the
County should have sought mandamus.
        [7] To the extent Moreno argues that the City and the County should have petitioned for a
writ of mandamus, we note that in civil cases, we have stated that decisions regarding discovery
are directed to the discretion of the trial court and will be upheld in the absence of an abuse of
discretion. Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). As we
stated in Schropp Indus., supra, and elsewhere, this court will issue a writ of mandamus upon a
proper showing by a relator; however, mandamus lies only to enforce the performance of a
mandatory ministerial act or duty and is not available to control judicial discretion. Because the
decision whether to compel discovery was directed to the district court’s discretion, mandamus
would not have been a proper vehicle for the City and the County to challenge the overruling of
their motion. Cf. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632 (2009) (regarding
availability of mandamus to limit discovery when privilege applies).
        To the extent Moreno’s argument is that, rather than filing a petition for a writ of
mandamus, the City and the County should have immediately appealed from the order overruling
their motion to compel discovery, Moreno’s reliance on Schropp Indus. is not helpful. Schropp
Indus. involved “an order of the Washington County District Court entered in an ancillary
discovery proceeding enforcing compliance with a subpoena issued on behalf of a Douglas
County court.” 281 Neb. at 154, 794 N.W.2d at 689. In contrast, the present case involves a
discovery ruling made in the district court for Scotts Bluff County, which is the same court in



                                              -6-
which the action was proceeding. Thus, the present case involves a significantly different context
than the sort of ancillary proceeding at issue in Schropp Indus. and the federal cases referenced
therein.
         We stated in Schropp Indus. that it was “not disputed that, had this discovery dispute
been litigated in Douglas County, the [Douglas County] district court’s order would be neither
final nor appealable,” and we noted that if the discovery order at issue in that case had been
entered in the Douglas County District Court, it could have been adequately reviewed on appeal
from a final judgment and, thus, the discovery order would not have been appealable at the time
of its issuance. 281 Neb. at 157, 794 N.W.2d at 691. The discovery ruling in this case, made by
the same court in which the action was proceeding, can be adequately reviewed on appeal from
the final judgment, and therefore, there was no basis for the order to have been immediately
appealable.
         We conclude that the City and the County were not required to seek immediate review of
the overruling of the motion to compel discovery and that therefore, issues related to the motion
were not waived and are reviewable in this appeal from the final judgment.
The District Court Did Not Err When It Sustained Objections to Evidence Offered in
Support of the Motion to Compel Discovery, When It Overruled the Motion to
Compel Discovery, or When It Denied the Motion to Continue the Trial.
        The City and the County raise various issues relating to their motion to compel Regional
West to provide records regarding Dr. Jimenez and surgeries he performed on other patients.
They claim that the court erred when it (1) sustained Regional West’s hearsay objection to
certain evidence they offered in support of the motion, (2) overruled the motion, and (3)
overruled their motion to continue the trial in order to allow them to complete the requested
discovery. We conclude that the district court did not err in any of these respects.
Evidentiary Ruling.
        At the hearing on the City and the County’s motion to compel discovery, Regional West
objected to certain exhibits offered by the City and the County in support of the motion.
Specifically, Regional West objected to a portion of the affidavit of the County’s attorney in
which he referred to news reports about Dr. Jimenez, and to the news reports themselves, which
were attached to the affidavit. The court took the objections under advisement, and in its order
ruling on the motion, the court sustained Regional West’s hearsay objection. The court went on
to consider the merits of the motion to compel discovery, and it overruled the motion.
        The City and the County contend that the evidence was not hearsay, because it was not
offered to prove the truth of the matters asserted but was offered to show the relevance of the
materials sought to be discovered, to show why discovery had not been sought earlier than the
publication of the news reports in May and April 2014, and to show why the trial should be
continued to allow discovery. They argue that the truth of the news reports was not at issue in the
hearing and that the relevance of the news reports was to explain and justify the need for
discovery.
        [8] We determine that whether or not the evidence was inadmissible hearsay, the court’s
sustaining Regional West’s objection was not reversible error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the


                                                -7-
complaining party. Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015).
The exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is
admitted without objection. Id. In particular, where the information contained in an exhibit is, for
the most part, already in evidence from the testimony of witnesses, the exclusion of the exhibit is
not prejudicial. Id.
         In the present case, it is clear from the court’s order overruling the motion to compel
discovery that the court understood what records the City and the County sought to discover, the
nature of what they expected the records to show, and the purpose for which they wished to use
the information. Portions of the evidence which were admitted, as well as the motion to compel
itself, referred to the news reports and indicated the nature of the reports. The court had a full
understanding of the discovery issue without the excluded material. We see nothing that would
suggest that if the court had admitted the evidence to which Regional West objected, the court
would have reached a different conclusion as to whether it should compel discovery of the
records. Therefore, sustaining the objection did not unfairly prejudice a substantial right of the
City and the County. We therefore reject this assignment of error.
Overruling Motion to Compel Discovery.
        Regarding the merits of the motion to compel discovery, the district court determined that
the requested records were not relevant to this case, because they related to nonparty patients and
were to be used only as character evidence regarding Dr. Jimenez. The court stated that such
nonparty records would not normally be admissible. Although it acknowledged that the “concept
of relevancy is broader in the discovery context than in the trial context” and that a “party may
discover relevant evidence that would be inadmissible at trial, so long as it may lead to the
discovery of admissible evidence,” the court reasoned that even without such nonparty records,
the City and the County would still be able to introduce direct evidence regarding whether the
surgery performed on Moreno was necessary. The court therefore overruled the motion to
compel discovery.
        The City and the County contend that Dr. Jimenez’ credibility was the central issue in
this case and that discovery of the records was necessary to allow them to effectively
cross-examine Dr. Jimenez. They argue that the district court erroneously focused on whether the
records would be admissible at trial rather than applying the proper standard for discovery under
Neb. Ct. R. Disc. § 6-326.
        The City and the County refer to Stetson v. Silverman, 278 Neb. 389, 403, 770 N.W.2d
632, 644 (2009), in which discovery of other incidents involving a doctor was permitted, wherein
we stated that
        under [Neb. Ct. R. Disc. § 6-326(b)(1)], information sought through discovery must also
        be “relevant to the subject matter involved in the pending action.” This requirement
        differs significantly from the relevancy test for admission of evidence at trial: having a
        tendency to make the existence of any fact at issue more or less probable. Moreover,
        under [§ 6-326(b)(1)], the inadmissibility of the information at trial is not ground for
        objection if the information “appears reasonably calculated to lead to the discovery of
        admissible evidence.”




                                               -8-
        In Stetson, we rejected a request for a writ of mandamus to quash a discovery order
permitting discovery of information regarding professional discipline against a doctor who was
one of the defendants in the underlying action. Although we declined to comment on whether the
information to be discovered would be admissible at trial, we concluded that we could not say
that “at the discovery stage [the plaintiff] could not obtain further information that would be
relevant to [the defendant-doctor’s] credibility or a misleading characterization of him at trial”
and that we could not “rule out [the plaintiff’s] obtaining information that would be relevant to
showing [the defendant-doctor’s] medical judgment was impaired at the time he treated [the
plaintiff].” Stetson, 278 Neb. at 405, 770 N.W.2d at 645.
        The City and the County argue that the information they sought to discover was relevant
to Dr. Jimenez’ credibility in the same way that the information for which discovery was allowed
in Stetson, supra, was relevant to the credibility of the doctor in that case and that therefore, the
ruling in the present case was erroneous. The cases are dissimilar, and we do not agree with the
argument asserted by the City and the County. Decisions regarding discovery are directed to the
discretion of the trial court and will be upheld in the absence of an abuse of discretion; the party
asserting error in a discovery ruling bears the burden of showing that the ruling was an abuse of
discretion. Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). In the
present case, we cannot say that the district court abused its discretion when it overruled the City
and the County’s motion to compel discovery of records regarding Dr. Jimenez’ treatment of
other patients.
        At issue in this case was the testimony of Dr. Jimenez, a nonparty, relating to whether the
specific surgery performed on Moreno was necessary and caused by the accident. In contrast,
Stetson was a medical malpractice action in which the plaintiff was allowed discovery of
information regarding a disciplinary action against the doctor who was the defendant in the case.
We believe information regarding other incidents involving the doctor-defendant in a medical
malpractice case are more probative of the underlying action than information regarding other
surgeries performed by a nonparty witness in a personal injury action. As the district court in this
case reasoned, even without records regarding surgeries performed on other patients by
Dr. Jimenez, the City and the County would still be able to introduce direct evidence regarding
the central issue in the case, i.e., Moreno’s entitlement to damages and whether the surgery
performed on Moreno was necessary as an element of damages.
        With respect to Dr. Jimenez’ credibility, it is clear from the record that in addition to
cross-examining Dr. Jimenez regarding the necessity of the surgery performed on Moreno, the
City and the County were permitted to question Dr. Jimenez regarding his reputation for
performing unnecessary surgeries. We believe that had the City and the County been permitted
to discover additional information regarding the other surgeries, additional questioning of
Dr. Jimenez regarding surgeries performed on other patients would likely have been inadmissible
as extrinsic evidence of specific conduct under Neb. Rev. Stat. § 27-608(2) (Reissue 2008).
Although the anticipated inadmissibility of information at trial is not a reason to deny discovery
of such information, it is still necessary that discovery “‘appears reasonably calculated to lead to
the discovery of admissible evidence.’” Stetson v. Silverman, 278 Neb. 389, 403, 770 N.W.2d
632, 644 (2009). The City and the County have not shown how discovery of the requested
records would have led to the discovery of admissible evidence.


                                                -9-
       Therefore, we cannot say that the district court abused its discretion when it overruled the
motion to compel discovery. We reject this assignment of error.
Overruling Motion to Continue Trial.
        The City and the County claim that the district court should have sustained their motion
to continue the trial in order to allow them to conduct the requested discovery and to follow up
on any new information they learned from such discovery. Because we determine that the district
court did not abuse its discretion when it overruled the motion to compel discovery, we further
determine that there was no need to continue the trial in order to allow the City and the County to
conduct and develop such requested discovery. We therefore conclude that the district court did
not abuse its discretion when it overruled the motion to continue the trial.
The District Court Was Not Clearly Wrong When It Found That the Surgery Performed by
Dr. Jimenez Was Necessary and Proximately Caused by the Accident, and the Court
Did Not Err When It Awarded Damages Related to Such Surgery.
        The City and the County claim that the district court erred when it found that the surgery
performed by Dr. Jimenez was necessary and was proximately caused by the accident. The City
and the County specifically contend that the district court was clearly wrong when it found that
the accident caused an aggravation of preexisting conditions, including significant cervical
stenosis, which made the surgery performed on Moreno by Dr. Jimenez necessary, and they
therefore claim that the court erred when it awarded damages related to such surgery. We
conclude that the district court’s factual findings were not clearly wrong and that the court’s
judgment awarding damages was supported by sufficient evidence.
        In actions brought under the Political Subdivisions Tort Claims Act, an appellate court
will not disturb the factual findings of the trial court unless they are clearly wrong. Williams v.
City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015). And in such actions, when determining
the sufficiency of the evidence to sustain the trial court’s judgment, it must be considered in the
light most favorable to the successful party; every controverted fact must be resolved in favor of
such party, and it is entitled to the benefit of every inference that can reasonably be deduced
from the evidence. See id.
        [9] In its order, the district court found, inter alia, that the accident aggravated Moreno’s
preexisting medical condition and that medical treatment, including the surgery performed by
Dr. Jimenez, was necessary and was proximately caused by the accident. The court’s findings in
this regard depended in large part on its assessment of the credibility of the testimony of Dr.
Jimenez and the credibility of the testimony of the City and the County’s witness, Dr. Taylon,
who opined that the surgery was unnecessary, that it was unrelated to the accident, and that the
accident had not aggravated a preexisting cervical problem. In its written order setting forth its
findings, the court specifically stated that it generally accepted the testimony of Dr. Jimenez
where it was in conflict with the testimony of Dr. Taylon. Beyond simply stating that it found
Dr. Jimenez’ testimony more credible, the court set forth specific reasons it found Dr. Taylon’s
testimony less credible and it gave examples of portions of Dr. Taylon’s testimony which led to
its credibility determination. The court stated that Dr. Taylon “became overly adversarial,
argumentative, and confrontational,” calling Dr. Jimenez a “criminal” and accusing him of
assaulting Moreno. The court stated that such behavior factored into its assessment of the


                                               - 10 -
witness’ “bias and the weight to be given to the witness[’] testimony” and gave the court the
impression that “Dr. Taylon was as much an advocate as an unbiased, impartial expert witness.”
In a bench trial of an action at law, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Elting v. Elting, 288 Neb. 404, 849 N.W.2d
444 (2014). To the extent that the district court made credibility determinations regarding
Dr. Jimenez’ and Dr. Taylon’s conflicting testimony, we defer to those determinations.
        We also reject the City and the County’s arguments that Dr. Jimenez’ testimony did not
support the district court’s findings. In this connection, the City and the County assert that the
necessity of the surgery was not established, because they contend there was a lack of evidence
in the record that Moreno reported neck pain prior to the surgery. However, Dr. Jimenez
addressed the absence of reports of neck pain when he testified that Moreno reported thoracic,
shoulder, and arm pain, which he determined were radicular symptoms caused by cervical
stenosis, and that surgery was the proper treatment for the cause of that pain. In sum, if
Dr. Jimenez’ testimony was credible, which the district court clearly found it to be, then there
was sufficient evidence to support the court’s findings regarding the necessity of the surgery and
its connection to the accident.
        The foregoing contentions of the City and the County are all in service of its larger
argument that the district court erred when it awarded damages related to the surgery performed
by Dr. Jimenez. Their arguments in this respect are based on their contention that the district
court was clearly wrong when it found that the surgery was necessary and was connected to the
accident. Because we determine that such findings were not clearly wrong, it follows that the
court did not err when it awarded damages related to the surgery. We reject this assignment of
error.
                                        CONCLUSION
        We conclude that issues related to the motion to compel discovery are reviewable in this
appeal from the final judgment. We further conclude that the district court did not err when it
sustained hearsay objections to evidence offered in support of the motion to compel, when it
overruled the motion to compel discovery, and when it overruled the motion to continue the trial
in order to allow discovery. We finally conclude that the district court was not clearly wrong in
its findings that Moreno’s condition was caused by the accident and that the surgery performed
by Dr. Jimenez was necessary. Finally, we determine that the district court did not err when it
awarded damages related to the challenged surgery. We affirm the judgment of the district court.
                                                                                       AFFIRMED.




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