Connolly v. Foudree

141 F.R.D. 124, 1992 U.S. Dist. LEXIS 2199, 1992 WL 30200
CourtDistrict Court, S.D. Iowa
DecidedFebruary 7, 1992
DocketNo. 4-91-CV-10168
StatusPublished
Cited by13 cases

This text of 141 F.R.D. 124 (Connolly v. Foudree) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connolly v. Foudree, 141 F.R.D. 124, 1992 U.S. Dist. LEXIS 2199, 1992 WL 30200 (S.D. Iowa 1992).

Opinion

ORDER

CELESTE F. BREMER, United States Magistrate Judge.

The defendants move to preclude the testimony of plaintiff’s expert witness based on a state statute requiring early disclosure of expert witnesses in professional liability cases. See Iowa Code § 668.11 (1991). This court must determine whether the state statute applies in federal court.

FACTS

The plaintiff, Richard E. Connolly Jr., originally filed this lawsuit in the Iowa District Court for Polk County on September 28, 1990. He asserted negligence and breach of fiduciary duty claims against attorneys Bruce W. Foudree, Guy E. Snyder, Carl A. Neuman, and the law partnership of Keck, Mahin & Cate, all of Illinois. The defendants removed the action to this court based on diversity of citizenship. The defendants filed their answer to plaintiff’s petition on April 1, 1991.

On October 8, 1991, the Clerk of Court notified the parties that the action would be dismissed within twenty days for failure to file the scheduling report required by the Federal Rules of Civil Procedure and [126]*126this court’s local rules. See Fed.R.Civ.P. 16(b); N. & S.D.Iowa Civ.R. 16(a)(1); 19(b)(1)(D) (requiring a scheduling report within 120 days of the filing of the complaint). On October 29, 1991 (396 days after the complaint was filed and 211 days after the answer was filed), the parties submitted a scheduling report which stated the following with regard to expert witnesses:

a. Plaintiffs propose that all parties disclose all expert witnesses by April 1, 1992.

b. Defendants assert that the parties are bound by section 668.11, Code of Iowa (1991) which applies to this state claim for professional responsibility.

Thereafter, on November 6, 1991, this court1 entered a scheduling order which states: “The parties are bound by section 668.11 Code of Iowa (1991) which applies to this state claim for professional responsibility.”

Iowa Code section 668.11 provides:

1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert's name, qualifications and the purpose for calling the expert within the following time period:

a. The plaintiff within one hundred eighty days of the defendant’s answer unless the court for good cause not ex parte extends the time of disclosure.

b. The defendant within ninety days of plaintiff’s certification.

2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert’s testimony is given by the court for good cause shown.

3. This section does not apply to court appointed experts or to rebuttal experts called with the approval of the court.

The 180-day deadline established by the statute passed on September 29, 1991. On November 19,1991, the plaintiff designated an expert witness. The defendants move to preclude plaintiff’s expert testimony based on Iowa Code section 668.11(2). The plaintiff resists and, in the alternative, moves for leave to file a tardy expert designation.

DISCUSSION

The Rules of Decision Act provides that “[t]he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” 28 U.S.C. § 1652 (1988). The Supreme Court has stated the principles to be applied in determining whether to apply a particular rule of state law in an action brought in federal court under diversity of citizenship jurisdiction. First, in the absence of a conflicting state procedure, an applicable federal rule plainly controls. Walker v. Armco Steel Corp., 446 U.S. 740, 747, 100 S.Ct. 1978, 1983, 64 L.Ed.2d 659 (1980); Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 1140, 14 L.Ed.2d 8 (1965). Second, where a “direct collision” between a federal rule and the state practice occurs, the federal rule applies if it is within the scope of the Rules Enabling Act, 28 U.S.C. § 2072, and the Constitution. Walker, 446 U.S. at 748-50, 100 S.Ct. at 1983-85; Hanna, 380 U.S. at 470-72, 85 S.Ct. at 1142-45. Under this analysis, the first question is “whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the court.” Walker, 446 U.S. at 749-50,100 S.Ct. at 1984-85.

Third, in the absence of a federal rule directly on point, the conflicting state practice controls if it is “bound up” with the rights and obligations created by state law “in such a way that its application in the federal court is required.” Byrd v. [127]*127Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 535, 78 S.Ct. 893, 899, 2 L.Ed.2d 953 (1958). See also Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 108-09, 65 S.Ct. 1464, 1469-70, 89 L.Ed. 2079 (1945). Under this analysis, the court must make “the typical, relatively unguided Erie choice” in light of “the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws.” Hanna, 380 U.S. at 468, 471, 85 S.Ct. at 1142, 1143. See also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74-78, 58 S.Ct. 817, 820-822, 82 L.Ed. 1188 (1938).

No direct conflict exists between the federal rules and the state law at issue here. Under the federal rules, a party may through interrogatories require another party to identify expert witnesses and to state the subject matter, facts, opinions, and grounds for each opinion to which the expert is expected to testify. Fed.R.Civ.P. 26(b)(4)(A)(i). See also Iowa R.Civ.P. 125 (discovery of experts). The state statute goes beyond Rule 26 and its analogous state rule to require a plaintiff in a professional liability ease to certify to the court and all other parties the expert’s name, qualifications and the purpose for calling the expert within 180 days of the defendant’s answer. Iowa Code § 668.11(l)(a).

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Cite This Page — Counsel Stack

Bluebook (online)
141 F.R.D. 124, 1992 U.S. Dist. LEXIS 2199, 1992 WL 30200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connolly-v-foudree-iasd-1992.