Brian C. Buescher
How Judge Buescher decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
On summary judgment he is reluctant to take fact-laden tort questions from the jury. In a Nebraska strict-products-liability case he held that whether the product was 'unreasonably dangerous' and whether the plaintiff was a 'sophisticated user' were jury questions, denying the defendant's MSJ. If your opposition raises a genuine factual dispute on a state-law tort element, expect denial.
“The question of whether wet concrete is 'unreasonably dangerous' under a strict liability theory is a question of fact for the jury to decide.”
He polices issue preclusion strictly: a prior judgment forecloses an issue only if it was 'actually litigated' and necessarily decided. A state-court ruling that resolved ownership did not preclude a separate special-benefits-offset issue. Do not overclaim the preclusive reach of a prior judgment.
“That issue was not actually litigated, directly addressed, or necessarily included in the special assessment lawsuit.”
Procedural preferences
Applies Daubert's 'fit' requirement rigorously and will exclude an otherwise-credentialed expert whose expertise does not match the specific subject matter at issue, even cutting against the party that offered them. Make sure your expert's demonstrated area of competence squarely covers the opinions offered.
“Simon has failed to establish that Daily possesses sufficient specialized knowledge to qualify as an expert on the issues he seeks to opine about in this case.”
On a Sec. 1983 claim against a supervisor he requires allegations of the official's own personal involvement (Iqbal), and he applies Cummings/Barnes to bar emotional-distress damages under the ADA and Rehabilitation Act. Plead individual conduct for each defendant, and do not seek emotional-distress damages under those statutes.
“a plaintiff must plead that each Government-official defendant [including supervisors], through the official's own individual actions, has violated the Constitution.”
Cautions
He notices and remarks on sloppy or mislabeled filings and repeated meritless motion practice. A defendant's 'undivided fee' summary-judgment argument drew the label 'meritless,' and a 'Partial Motion' caption drew a footnote rebuke. File clean, properly captioned, non-repetitive motions.
“The 'undivided fee' argument SID 596 presents in support of its summary judgment motion is meritless.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Summary judgment N = 3 |
Denied: 3 | counts only |
| Motion in limine N = 2 |
Granted: 2 | counts only |
| Motions to dismiss N = 1 |
Granted: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“Plaintiffs' motion to exclude the testimony of Jay Daily, Filing 52, is granted;”
“Defendant's motion to exclude the testimony of Dr. Nathan Mayercsik, Filing 54, is granted; and”
“Defendant's Motion for Summary Judgment, Filing 50, is denied.”
“Rock Place's Motion for Partial Summary Judgment, Filing 136, is denied; and”
“SID 596's Motion for Summary Judgment, Filing 139, is denied.”
“IT IS ORDERED that the September 6, 2022, Partial Motion [sic] to Dismiss Second Amended Complaint by Defendants in Case No. 4:21cv3315, Filing 40, is granted.”