Tips from the Tribunal: Nebraska Workers' Compensation Judge Hoffert Addresses the Numerosity Defense to Multi-part Interrogatories

Two rulings handed down by Workers’ Compensation Judge John R. Hoffert in January provide some guidance to practitioners working through interrogatories that may or could exceed the 50-question limit set forth in Neb. Ct. R. Disc. § 6- 333(a)(1). Although at first glance the rulings appear to be inapposite, it’s the complexity of the underlying actions that leads to the differing results. These cases provide an opportunity for practitioners to improve the impact of their interrogatories without running afoul of the rule.

Both cases were before the court on motions to compel filed by the aggrieved party. In Anderson v. American Tire Distributors, Inc., handed down on January 17, 2025, the defendant filed the motion after plaintiff refused to answer interrogatories ten through twenty-nine, arguing that the first nine multi-part interrogatories bumped up against the limit.

Judge Hoffert first set out the text of the rule, which states as follows:

Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 50 written interrogatories, including all discrete subparts. The court may grant leave to serve additional interrogatories for good cause shown.

The fighting question was whether the multi-part questions were more properly discrete sub-parts or separate questions which should have been numbered as such. Judge Hoffert noted the struggle tribunals across various jurisdictions have had with this issue, but relied on language in the Comments to § 6- 333 that “subparts are logically or factually subsumed within and necessarily related to the primary question.”

Judge Hoffert admitted this “related questions” analysis required the court to make a judgment call as to which subparts were “discrete,” which he noted was by its very nature fallible. Ultimately, after analyzing the 29 propounded interrogatories individually, he concluded that the 50-interrogatory limit was reached after question 21. He ordered the plaintiff to provide responses to only those questions.

The rule does allow for more than 50 interrogatories with leave of court, which the defendant in Anderson requested as an alternative means of relief. Judge Hoffert noted there was nothing in the filings to suggest this was anything other than a “fairly routine” matter and denied the request.

In Werner v. Nebraska Medical System, handed down January 27, 2025, the court was faced with a similar issue, although this time it was the plaintiff’s motion to compel the defendant to answer interrogatories, among other things. Specifically, the defense raised a numerosity objection, and again, Judge Hoffert went through a detailed legal analysis utilizing the same language he set out in Anderson. In Werner, however, the Court skipped the “related questions” analysis and immediately granted leave to exceed the limit set forth in the rule. Notably, Werner is a COVID-19 case, and it’s clear from the other issues raised in the decision it was not a “fairly routine” case. This is evident from the judge’s ultimate holding: “Given the nature of the questions posed, along with the obvious complexity associated with the plaintiff’s claim, the Court overrules the defendant’s numerosity objections to Interrogatories 23 – 32.”

From a practical standpoint, attorneys propounding standard interrogatories should review those to make sure sub-parts accurately ask “related questions.” To be safe, the most important questions should be listed first, as Judge Hoffert’s remedy is to cut off questioning after the limit is reached. If an attorney still feels the need to exceed the limit, the complexity of the case should be prominent in the pleadings and the discovery requests.

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