In the Iowa Supreme Court
No. 23–0509
Submitted March 26, 2025—Filed May 23, 2025
Douglas Wilson and Jane Wilson,
Appellees,
vs.
Shenandoah Medical Center,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Page County, Margaret Reyes,
judge.
A hospital seeks further review of a court of appeals decision affirming a
district court ruling that good cause supported relief from the expert certification
deadline under Iowa Code section 668.11. Decision of Court of Appeals
Vacated; District Court Judgment Reversed and Case Remanded with
Instructions.
Waterman, J., delivered the opinion of the court, in which Oxley,
McDermott, and May, JJ., joined. Mansfield, J., filed a dissenting opinion, in
which Christensen, C.J., and McDonald, J., joined.
Nancy J. Penner (argued), Jennifer E. Rinden, and Vincent S. Geis of
Shuttleworth & Ingersoll, PLC, Cedar Rapids, for appellant.
Jessica A. Zupp (argued) of Zupp and Zupp Law Firm, Denison; Gary T.
Gee of GaryGee Law Office, Shenandoah; and Andrew D. Sibbernsen of
Sibbernsen Law Firm, PC, Omaha, Nebraska, for appellees. 2
Waterman, Justice.
Are defense attorneys their “brother’s keeper,” obligated to remind
opposing counsel of expert disclosure deadlines? This medical malpractice case
requires us to revisit Iowa Code section 668.11 (2021), which in professional
liability cases, prohibits the testimony of experts not timely certified unless good
cause is shown for missing the deadline.
In this case, the plaintiff underwent hip joint replacement surgery and was
injured in a fall while convalescing at the defendant hospital. He and his spouse
sued the hospital, alleging professional negligence in his postoperative care. The
plaintiffs identified a nursing expert in a certificate of merit affidavit and an
interrogatory answer. But the plaintiffs, without explanation, did not certify their
nursing expert under section 668.11 until the defendant moved for summary
judgment three months after the agreed-upon deadline expired. The plaintiffs
resisted, arguing that expert testimony was not required to avoid summary
judgment and blaming defense counsel’s silence for missing the plaintiffs’ expert
deadline. The district court found good cause excused the delay, relying on
defense counsel’s silence about that deadline while scheduling other matters.
The court did not decide whether expert testimony was required. We granted the
hospital’s application for interlocutory appeal and transferred the case to the
court of appeals, where a three-judge panel affirmed over a dissent. We granted
the hospital’s application for further review.
On our review, we conclude that the district court abused its discretion in
ruling that good cause excused the plaintiffs’ three-month delay in certifying
their expert under section 668.11. Defense counsel is not their brother’s keeper.
We hold that defense counsel has no duty to remind opposing counsel of the
expert certification deadline, and an adversary’s silence cannot excuse missing
the statutory deadline by three months. The defendant’s relative lack of prejudice 3
alone is insufficient to establish good cause. The plaintiffs’ expert is prohibited
from testifying. For the reasons explained below, we vacate the court of appeals
decision and reverse the district court ruling. We remand the case for the district
court to determine in the first instance whether these plaintiffs’ claims require
expert testimony to avoid summary judgment.
I. Background Facts and Proceedings.
On December 30, 2019, Douglas Wilson underwent a total right hip
replacement surgery at the Shenandoah Medical Center (SMC). Wilson was
transferred to the postanesthesia care unit in stable condition. But nurses noted
that “pain control has been very difficult for this patient.” Nurses also noted that
Wilson had attempted to get out of his bed and walk on his own. To ensure
Wilson did not get out of bed without assistance, a bed alarm was ordered and
a family member was asked to spend the night with him. Over the next two days,
Wilson remained at SMC with ongoing evaluations by the nursing staff. They
observed that Wilson exhibited signs of confusion and memory loss. As the
nurses described it, Wilson experienced “episodes of coherence, but they [were]
intermittent.”
On January 3, 2020, the nursing staff noted that Wilson “was more awake
and alert” and his episodes of confusion were briefer and less frequent. Wilson
again attempted to get out of bed and walk, this time with the assistance of his
wife Jane, to the bathroom but he fell to the floor. In response, the nursing staff
indicated that Wilson would be maintained “1:1” and that Wilson would “have a
dedicated staff member overnight.” The next day, Wilson’s confusion persisted
and he yet again attempted to leave his bed unassisted. Late in the day, Wilson
stood up without assistance to use the bathroom. He fell to the floor, striking his
head and landing on his right hip, the one with the new prosthetic joint. 4
The Wilsons filed this medical malpractice action against SMC on
December 27, 2021. They alleged that SMC’s nurses were negligent in their
postoperative care. SMC filed its answer on January 20, 2022. Shortly thereafter,
the Wilsons filed a certificate of merit affidavit under Iowa Code section 147.140.
The certificate was signed by registered nurse Jenny Beerman, who stated, “It is
my opinion that nurses, agents and employees, working at [SMC] breached the
standard of care in caring for and treating Douglas Wilson . . . .”
Iowa Code section 668.11 governs disclosure of expert witnesses in
professional liability cases. That section requires a party “who intends to call an
expert witness” to “certify to the court and all other parties the expert’s name,
qualifications and the purpose for calling the expert” within certain deadlines.
Id. § 668.11(1). The plaintiff must make this disclosure “within one hundred
eighty days of the defendant’s answer,”1 while the defendant must make this
disclosure “within ninety days of plaintiff’s certification.” Id. Any party who fails
to comply with these disclosure deadlines is prohibited from offering expert
testimony unless “good cause [is] shown.” Id. § 668.11(2). Based on this statute,
the Wilsons’ original section 668.11 deadline was July 27. Also relevant is Iowa
Rule of Civil Procedure 1.500(2)(d), which requires expert disclosures to occur
“at the times and in the sequence set forth in the court’s trial scheduling order.”
The parties conferred and created a trial scheduling plan that imposed a
number of additional deadlines. SMC suggested pushing the deadline to certify
experts to early 2023. The Wilsons’ counsel pushed back and wrote in an email,
“While I have no problem pushing out the deadline for expert disclosure, I don’t
want to wait until January of next year. I propose a September 1st deadline for
Plaintiffs’ experts and December 1st for Defendant experts. Let me know your
1The statute also permits the court to extend this deadline based on a showing of “good
cause.” Iowa Code § 668.11(1)(a). 5
thoughts?” SMC agreed to these dates. Accordingly, the trial scheduling plan
read as follows:
A party who intends to call an expert witness, including rebuttal expert witnesses, shall certify to the court and all other parties the expert’s name, subject matter of expertise, and qualifications, within the following time period, unless the Iowa Code requires an earlier designation date (see, e.g., Iowa Code section 668.11):
(1) Plaintiff: 210 days before trial or by September 1, 2022.
(2) Defendant/Third Party Plaintiff: 150 days before trial or by December 1, 2022.
(Emphasis added.) The parties filed the plan with the district court on March 1.
Our civil case processing standards generally require scheduling trial in
complex civil actions within twenty-four months, which was December 27, 2023.
See Iowa Ct. R. 23.2(1). This timeline can be extended by an additional twelve
months “[i]f a party shows good cause.” Id. r. 23.2(2). Due to a backlog of trials
resulting from delays caused by the COVID-19 pandemic, SMC’s counsel was
not available for trial until mid-2024. Accordingly, on March 8, 2022, SMC filed
a motion for a trial date exceeding the usual time standards and proposed a trial
date of July 23, 2024. The Wilsons opposed the motion but indicated that they
were available for trial on the suggested date. The court granted SMC’s motion
and trial was scheduled for July 23, 2024.
Over the next several months, both parties actively participated in
discovery. The Wilsons served their initial disclosures on March 31, 2022, and
SMC served its initial disclosures the next day. SMC answered interrogatories
on June 8. An interrogatory propounded by SMC asked the Wilsons for “the
name . . . of each person you expect to call as an expert witness . . . at trial.” On
July 13, the Wilsons served an answer to the interrogatory naming Beerman,
who had executed the Wilsons’ certificate of merit affidavit, and stated, 6
Ms. Beerman is a Registered Nurse, with a Bachelors of Arts, Masters of Nursing, and [is] a Clinical Assistant Professor of Nursing, familiar with the standard of care required of registered nurses working in a post operative setting. A copy of her curriculum vitae is attached hereto. Based upon her education, training, experience, knowledge, and review of the medical records, it is anticipated that Ms. Beerman will testify, generally, that the nurses, agents and employees, working at [SMC] breached the standard of care in caring for and treating Douglas Wilson following his December 30, 2019, right hip replacement procedure. Also attached hereto, please find a copy of Ms. Beerman’s Certificate of Merit Affidavit, filed on February 1, 2022.
This interrogatory answer did not mention that Beerman would testify on the
issues of causation or damages.
The agreed September 1 deadline for the Wilsons to certify their experts
under section 668.11 came and went without the Wilsons certifying any experts.
When the Wilsons reached out to SMC’s counsel in September to schedule fact
witness depositions, defense counsel’s response made no reference to the missed
deadline.
On November 30, SMC certified two experts. SMC simultaneously moved
for summary judgment, arguing that the Wilsons’ failure to certify any expert
witnesses by the September 1 deadline precluded the plaintiffs from offering
expert testimony at trial. Without expert testimony, SMC argued that the Wilsons
could not avoid summary judgment. On December 2, three months after their
deadline, the Wilsons certified Beerman as their expert witness. In their
section 668.11 certification, the Wilsons stated that Beerman would testify to
“[the] standard of care, causation, and damages.”
The Wilsons resisted SMC’s motion for summary judgment. The Wilsons
primarily argued that they did not need expert testimony because SMC violated
its own standard of care by failing to provide “1:1” patient care as promised, and
laypersons could readily understand the obvious risk of harm from a fall. In the 7
alternative, the Wilsons argued they had good cause for a late disclosure of their
expert under section 668.11. The Wilsons admitted that they had missed the
certification deadline by three months and offered no explanation beyond stating
that SMC “sat silent about the deadline.” The Wilsons explained that SMC
“seemingly indicat[ed] that [it] was not treating the already-late-disclosure as
fatal to Plaintiffs’ claims” and that SMC failed to “offer any evidence to suggest
that it was affirmatively concerned about the expert [certification].” The Wilsons
asserted that SMC should have answered discovery emails differently to
demonstrate its concern.
The district court denied SMC’s motion for summary judgment. The
district court acknowledged that “Iowa courts have found a 3-month delay in
filing an expert designation, as in the present matter, to be a serious deviation.
See Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998) [(per curiam)] (affirming
the rejection of an expert designation filed three months late).” The district court
nevertheless ruled that the Wilsons had shown good cause under section 668.11
because “SMC acquiesced to the delayed disclosures by engaging in extensive
scheduling negotiations to conduct depositions both before and after the
Wilson’s September 1, 2022 deadline.” Additionally, the district court relied on
the fact that “scheduling was delayed by the unavailability of SMC’s counsel and
SMC continued working on the case even without the Wilson’s expert
designation.” The district court did not reach the Wilsons’ argument that expert
testimony was not required to get their claims to the jury.
SMC applied for interlocutory appeal. We granted SMC’s application and
transferred the case to the court of appeals where a divided three-judge panel
affirmed the district court’s ruling. The majority agreed with the district court
that the Wilsons’ section 668.11 certification three months after the deadline
was “a serious deviation.” Additionally, the majority observed that a late filing 8
deprives a defendant of the advantage created by section 668.11, of being
apprised of whom the plaintiff intends to call as experts before deciding whom to
call as defense experts. However, the majority concluded that the district court
had not abused its discretion in finding good cause. The majority reasoned:
[T]he legislative intent behind the Iowa Code section 668.11 requirement “was to provide certainty about the identity of experts and prevent last minute dismissals when an expert cannot be found.” Hantsbarger[ v. Coffin], 501 N.W.2d [501,] 504 [(Iowa 1993) (en banc)]. This is not a situation in which the court’s exercise of discretion defeats the purpose or intent of section 668.11. Nor is this a situation in which the Wilsons have “shown little more than want of ordinary care or attention in missing the expert-designation deadline.” Cf. Reyes[ v. Smith, No. 21–0303], 2022 WL 1656238, at *2 [(Iowa Ct. App. May 25, 2022)]. Because the decision to not bar the Wilsons from designating an expert witness was within the district court’s discretion, the court did not err in denying SMC’s motion for summary judgment.
(Citation omitted.)
The dissent concluded that the Wilsons had not shown good cause. The
dissent noted that “[t]he Wilsons offered no reason for their failure to comply
with the statute . . . aside from blaming SMC.” According to the dissent, SMC’s
silence as to the deadlines did not establish good cause because “counsel were
under no duty to preview their forthcoming summary-judgment motion to the
other side—indeed, doing so at the expense of their client’s possible ground for
dismissing the case might well have breached their ethical duties.”
We granted SMC’s application for further review.
II. Standard of Review.
“We review a district court’s interpretation of Iowa Code section 668.11 for
errors at law.” Kirlin v. Monaster, 19 N.W.3d 108, 113 (Iowa 2025). We review a
district court’s good cause determination under Iowa Code section 668.11 for
abuse of discretion. Hantsbarger, 501 N.W.2d at 505. “A trial court has broad
discretion in ruling on such matters, and the exercise of that discretion will 9
ordinarily not be disturbed unless it was exercised on clearly untenable grounds
or to an extent clearly unreasonable.” Kirlin, 19 N.W.3d at 113 (quoting
Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989)). But “[w]hen a discretionary
decision by a trial court involves an erroneous interpretation of law, our review
is for legal error.” Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 n.6
(Iowa 2012).
III. Analysis.
Most medical malpractice actions arising from the patient’s fall while
convalescing in the hospital require expert testimony to get past a motion for
summary judgment. See Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d
533, 543–44 (Iowa 2022). “The early identification of experts by a plaintiff in a
medical malpractice case is mandated by Iowa Code section 668.11.” Donovan,
445 N.W.2d at 765. 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.
(Emphasis added.) Unlike many discovery deadlines, which are calculated
backwards from the trial date, Iowa Code section 668.11 looks forward from the
beginning of the case and fixes the expert certification deadline at 180 days from
the date the answer is filed. 10
The objectives of section 668.11 “include providing certainty about the
identity of experts and preventing last minute dismissals when an expert cannot
be found.” Nedved, 585 N.W.2d at 240. “The statute is designed to require
plaintiffs to have their proof prepared at an early stage in the litigation in order
to protect professionals from having to defend against frivolous suits.” Id. “Early
disposition of potential nuisance[] cases, and those which must ultimately be
dismissed for lack of expert testimony, would presumably have a positive impact
on the cost and availability of medical services.” Hantsbarger, 501 N.W.2d at 504
(quoting Thomas v. Fellows, 456 N.W.2d 170, 173 (Iowa 1990)).2
It is undisputed that the Wilsons did not “certify to the court and all other
parties [Beerman’s] name, qualifications and the purpose for calling
[her] . . . within one hundred eighty days of the defendant’s answer” or by the
parties’ agreed-upon deadline of September 1, 2022. Iowa Code § 668.11(1)(a).
The Wilsons did not certify their expert until December 2—three months after
the deadline.
The Wilsons have the burden to demonstrate good cause for their delayed
certification. See Nedved, 585 N.W.2d at 240. We have defined “good cause” for
purposes of section 668.11 as a
sound, effective, truthful reason, something more than an excuse, a plea, apology, extenuation, or some justification for the resulting effect. The movant must show his failure . . . was not due to his negligence or want of ordinary care or attention, or to his carelessness or inattention. He must show affirmatively he did intend to defend and took steps to do so, but because of some
2Our colleagues in the dissent erroneously equate the “good cause” to exceed the time
standards for setting a trial date under Iowa Court Rule 23.2(2) with the “good cause” required under Iowa Code section 668.11 to extend the statutory expert disclosure deadline. That is comparing apples to oranges. The legislature made the policy choice to mandate early disclosure of experts in medical malpractice actions, even though the trial itself may be several years away. This is because expert testimony typically is required in malpractice actions, and early disclosure facilitates quicker dismissal of actions lacking the requisite expert testimony, thereby reducing the expense of prolonged litigation. Trial court discretion to postpone the trial date is not cabined by section 668.11’s early disclosure deadline. 11
misunderstanding, accident, mistake or excusable neglect failed to do so.
Donovan, 445 N.W.2d at 766 (quoting Dealers Warehouse Co. v. Wahl & Assocs.,
216 N.W.2d 391, 394–95 (Iowa 1974)). The Wilsons have offered no such valid
reason for their three-month delay. Rather, the Wilsons contend, and the district
court found, that good cause was shown by defense counsel’s silence about the
deadline while discussing other scheduling matters and conducting fact witness
discovery. That reason is insufficient to establish good cause. See, e.g., Thomas,
456 N.W.2d at 171–72 (counsel’s ignorance of section 668.11’s deadline does not
constitute good cause); Nedved, 585 N.W.2d at 240–41 (determining that
scheduling problems and changing lawyers are insufficient reasons); Donovan,
445 N.W.2d at 766 (counsel’s inexperience in medical malpractice cases was not
good cause); Stanton v. Knoxville Comm. Hosp., Inc., No. 19–1277, 2020
WL 4498884, at *4 (Iowa Ct. App. Aug. 5, 2020) (counsel truly but erroneously
believed the section 668.11 deadline was in June rather than January; reversing
the district court’s denial of summary judgment because counsel’s reason was
not “a ‘sound, effective, truthful reason’ of the kind envisioned by Donovan”); cf.
Mokhtarian v. GTE Midwest Inc., 578 N.W.2d 666, 669 (Iowa 1998) (affirming
dismissal for untimely service of original notice, because “Mokhtarian has
provided no explanation for the delay in proper service”).
Even if the Wilsons had provided a valid reason, the district court would
still have to consider several factors in determining whether good cause exists to
excuse the delay. First, we consider “the seriousness of the deviation.”
Hantsbarger, 501 N.W.2d at 505. Second, we consider the “defendant’s prejudice
or lack thereof.” Id. Third, we consider “the actions of the defense counsel” but
“emphasize[] that defense counsel are not their ‘brother’s keeper.’ ” Kirlin, 19 12
N.W.3d at 117–18 (quoting Hantsbarger, 501 N.W.2d at 505). Finally, we may
also consider “diligence by the plaintiffs in pursuing their case.” Id. at 115.
First, the district court and court of appeals alike determined this was a
serious deviation. We agree. While short delays of only a week are not serious
deviations, see Hantsbarger, 501 N.W.2d at 505, we have repeatedly held that
delays of several months are considered serious deviations, see, e.g., Nedved,
585 N.W.2d at 241 (holding that a three-month delay was a serious deviation);
Donovan, 445 N.W.2d at 765–66 (acknowledging that a three-month delay is a
serious deviation); see also Stanton, 2020 WL 4498884, at *1–2 (three-month
delay when defendant moved for summary judgment); Hill v. McCartney, 590
N.W.2d 52, 55 (Iowa Ct. App. 1998) (holding that a four-month delay was a
serious deviation). Here, the Wilsons were required to make their expert
designation by September 1. They did not make this designation until
December 2, three months late, and then only after prompting by the defendant’s
own designation of experts and motion for summary judgment. Following our
precedents, we hold that the Wilsons’ three-month delay in certifying their expert
under section 668.11 was a serious deviation. This factor cuts strongly against
finding good cause, especially when, as here, the Wilsons offered no valid reason
for that delay.
Our colleagues in the dissent mistakenly conclude that “the deviation was
not serious” here because merely counting the days after the deadline “reads
‘deviation’ too narrowly” as they quote Kirlin v. Monaster. But the next sentence
in Kirlin provides the context the dissent omits: “Missing a clear deadline is
different from missing an ambiguous one while adhering to the deadline that you
thought applied.” 19 N.W.3d at 115. In a prior appeal to Kirlin, we had reversed
the district court’s grant of summary judgment for the defendants based on a
certificate-of-merit issue, reinstated the Kirlins’ medical malpractice action, and 13
remanded the case for further proceedings. Kirlin v. Monaster, 984 N.W.2d 412,
414, 417 (Iowa 2023). When the district court granted summary judgment prior
to the first appeal, the plaintiffs still had twenty-nine days to certify their experts
under section 668.11. Kirlin, 19 N.W.3d at 112. On remand of the reinstated
proceedings, the parties disagreed as to the effect of the intervening appeal on
the Kirlins’ expert certification deadline. Id. at 115. Despite the resulting
ambiguity as to that deadline, the district court ruled that the Kirlins’ expert
designation was untimely and without good cause, and it again granted
summary judgment for the defendants. Id. at 113. We reversed, holding that the
district court abused its discretion by failing to find good cause given the
uncertain deadline. Id. at 119. By contrast, the Wilsons missed a clear deadline,
without a valid excuse.
The Wilsons rely heavily on Preferred Marketing Associates Co. v. Hawkeye
National Life Insurance, 452 N.W.2d 389 (Iowa 1990). In Preferred Marketing, the
plaintiff disclosed its expert for calculating damages a week before trial after the
case had been pending two years. Id. at 392. The late disclosure violated the
parties’ agreed-upon discovery plan. Id. The district court, exercising its
discretion, permitted the expert to testify and we affirmed. Id. at 391–92.
According to the Wilsons, “if a two-year delay combined with a new expert the
week of trial was not reversible in the [Preferred Marketing] case, then it is not
reversible error here.” But Preferred Marketing was not a professional malpractice
action governed by section 668.11, and it did not apply a good cause standard.
See id. By relying on Preferred Marketing, the Wilsons improperly conflate general
discovery rules governing expert disclosures with the more specific statutory
requirement in section 668.11 governing disclosure of experts in professional
malpractice actions. Doing so nullifies the general assembly’s special rules 14
specific to professional malpractice claims. Preferred Marketing is simply
inapplicable.
Second, we consider the “defendant’s prejudice or lack thereof.”
Hantsbarger, 501 N.W.2d at 505. SMC argues with some force that it lost “the
strategic advantage of seeing [its] opponent’s expert materials before [it] had to
designate.” (Quoting Stanton, 2020 WL 4498884, at *3.) SMC emphasizes the
“uncertainty as to Plaintiffs’ intent and plans to continue the case with experts.”
The Wilsons argue that SMC was not prejudiced because their expert, Beerman,
was identified as their standard of care expert in their interrogatory answer on
July 13, before the September 1 deadline under section 668.11. But as SMC’s
counsel pointedly counters, interrogatory answers do not provide the certainty
the statute requires. That is because interrogatory answers can be easily
supplemented. Indeed, the Wilsons’ interrogatory answer ended with the caveat:
“Discovery is ongoing and Plaintiff reserves the right to supplement his Answer
to this Interrogatory at a later time, well in advance of trial.” By contrast, leave
of court for good cause shown is required to supplement a section 668.11
designation to add a new expert. Id.; see also Smith v. Billsby, No. 02–1863, 2003
WL 22828295, at *2 (Iowa Ct. App. Nov. 26, 2003) (affirming ruling excluding
expert’s new causation opinion against another defendant disclosed in untimely
amendment to section 668.11 designation). In any event, lack of prejudice is not
dispositive under Iowa Code section 668.11. See, e.g., Nedved, 585 N.W.2d at
241 (“Lack of prejudice, by itself, does not excuse the [plaintiffs’] late
designation.”); cf. Mokhtarian, 578 N.W.2d at 669 (rejecting lack of prejudice to
the defendant as a justification for a delay in serving the original notice).
Third, we consider the actions of defense counsel. Kirlin, 19 N.W.3d at
117–18; Hantsbarger, 501 N.W.2d at 505–06. This factor is the heart of the
Wilsons’ position on good cause. Specifically, the Wilsons argue: 15
While, to be sure, defense counsel is not required to be his brother’s keeper, courts also do not condone misusing good faith discovery extensions in order to lull the other party into a false sense of security over the agreed-upon delay. In re Marriage of Hutchinson, 974 N.W.2d 466, 476–77 (Iowa 2022) (describing bribes, dishonesty, and false promises as extrinsically fraudulent). The rules are supposed to be construed and applied to encourage good faith and fair dealing, not baits and switches. Had defense counsel simply picked up the phone and asked about experts, like the rules require, all of this delay could have been avoided.
The Wilsons essentially fault SMC’s silence about the section 668.11 deadline
while the parties scheduled depositions and other deadlines and postponed the
trial date. The Wilsons argue, and the district court found, that SMC’s silence
about the deadline justified a good cause finding excusing the Wilsons’ untimely
disclosure. We disagree. SMC’s counsel had no duty to remind the Wilsons’
counsel of the statutory deadline. The Wilsons’ suggestion that the defense
counsel had an obligation under the rules to “pick[] up the phone” refers to
counsels’ obligation to meet and confer before seeking judicial intervention with
respect to discovery disputes. See Iowa R. Civ. P. 1.501(3) (“Any discovery motion
presented to the court must include a certification that the movant has in good
faith personally spoken with or attempted to speak with other affected parties in
an effort to resolve the dispute without court action.”). At issue here is section
668.11’s statutory disclosure requirement, not a motion to compel discovery.
Nor did defense counsel say or do anything to signal an agreed extension
of the Wilsons’ section 668.11 deadline. The phone works both ways. It is the
Wilsons who should have confirmed any extension of their own September 1
deadline with opposing counsel. See Kirlin, 19 N.W.3d at 119 (stating “a prudent
counsel should confirm all deadlines” under section 668.11). Indeed, in Kirlin,
defense counsel had “offered the view that the expert deadline was an open
question to be determined.” Id. at 118. Not so here. 16
We hold that defense counsel’s silence about section 668.11’s certification
deadline does not justify a finding of good cause. A contrary holding would
undermine the statutory deadlines and rewrite section 668.11 to require
reminders by opposing counsel. See Goche v. WMG, L.C., 970 N.W.2d 860, 866
(Iowa 2022) (“[I]t is not our role to rewrite the Iowa statute in the guise of
interpretation.”). We decline to make opposing counsel his “brother’s keeper.”
See Kirlin, 19 N.W.3d at 114; Stanton, 2020 WL 4498884, at *4 n.3. Lawyers
need not serve as a tickler system for their adversary’s expert deadlines. To the
contrary, “[a]n attorney is an advocate whose duty is to zealously represent his
client to the best of his ability. An attorney’s duties are to his client not to the
adverse party.” Halberstam v. Cokeley, 872 P.2d 109, 112 (Wyo. 1994) (citation
omitted) (holding opposing counsel’s failure to notify counsel of service of process
was not good cause for setting aside default judgment); cf. Sharp v. Broadway
Nat. Bank, 784 S.W.2d 669, 671–72 (Tex. 1990) (per curiam) (“[A] party has no
duty to remind another party to abide by the Rules of Civil Procedure.”).
The district court misinterpreted section 668.11 in its conclusion that
SMC’s silence excused the Wilsons’ three-month deviation from the statutory
expert certification deadline. The district court’s error of law constitutes an abuse
of discretion. See Whitley, 816 N.W.2d at 389 n.6. The Wilsons failed to establish
good cause for their delay, and Beerman is therefore prohibited from testifying.3
SMC is entitled to summary judgment if expert testimony is required. See Struck,
973 N.W.2d at 543–44. The district court did not reach that issue, and we decline
to decide it in the first instance on appeal. See Plowman v. Fort Madison Cmty.
Hosp., 896 N.W.2d 393, 413 (Iowa 2017) (“A supreme court is ‘a court of review,
3Because we resolve this appeal under Iowa Code section 668.11, we need not consider
whether the Wilsons’ expert should be barred from testifying for noncompliance with Iowa Rule of Civil Procedure 1.500(2). 17
not of first view.’ ” (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005))).
SMC agrees the issue is not before us. On remand, the district court should
decide in further proceedings whether the Wilsons’ claims fail as a matter of law
without expert testimony.
IV. Disposition.
For the foregoing reasons, we vacate the decision of the court of appeals
and reverse the judgment of the district court denying summary judgment. We
remand the case for the district court to determine whether the Wilsons need
expert testimony to survive summary judgment.
Decision of Court of Appeals Vacated; District Court Judgment
Reversed and Case Remanded with Instructions.
Oxley, McDermott, and May, JJ., join this opinion. Mansfield, J., files a
dissenting opinion, in which Christensen, C.J., and McDonald, J., join. 18
#23–0509, Wilson v. Shenandoah Medical Center
Mansfield, Justice (dissenting).
I respectfully dissent and would affirm the district court’s well-reasoned
order.
In my view, the district court acted within its “broad discretion,” Kirlin v.
Monaster, 19 N.W.3d 108, 113 (Iowa 2025) (quoting Donovan v. State, 445
N.W.2d 763, 766 (Iowa 1989)), when it gave the plaintiffs additional time to file
an Iowa Code section 668.11 (2021) designation for their expert. Notably, this
was the same expert whom the plaintiffs had timely and appropriately disclosed
in their section 147.140 certificate of merit affidavit and their Iowa Rule of Civil
Procedure 1.508 expert interrogatory answers. As a sanction for failing to
duplicate information that they had already provided, the majority reverses the
court of appeals and the district court and dismisses the plaintiffs’ case. So much
for disposing of cases on the merits. See Hantsbarger v. Coffin, 501 N.W.2d 501,
504 (Iowa 1993) (en banc) (“[O]ur objective is to dispose of cases on the merits.”).
I. Facts and Procedural Background.
The Wilsons filed this action on December 27, 2021, over a fall suffered by
Douglas Wilson at the Shenandoah Medical Center (SMC) on December 30, 2019.
SMC answered the petition on January 20, 2022. On February 1, the Wilsons
filed a section 147.140 certificate of merit affidavit. The certificate of merit
affidavit was executed under oath by registered nurse Jenny Beerman, who
opined that SMC had breached the standard of care.
On March 1, the parties filed their stipulated trial scheduling order and
discovery plan. As noted by the majority, the Wilsons proposed a September 1
deadline for their expert disclosures, which was reflected in the trial scheduling
order and discovery plan. 19
However, the parties could not reach agreement on the trial date itself. On
March 8, SMC filed a resisted motion to postpone the trial until July 23–29,
2024—i.e., over two years away. SMC’s request had to be supported by good
cause. See Iowa Court Rule 23.2(2) (requiring a showing of “good cause” to exceed
the time standards in rule 23.2(1)). SMC represented as follows:
Defense counsels’ trial calendars do not permit an earlier trial date. As the Court is aware, the COVID-19 pandemic caused numerous trials originally scheduled in 2020 and 2021 to be continued. As a result, trial dates for the court and counsel are at a premium, as cases from approximately 9 months are being reset (and new cases continue to be filed). The courts and counsel are endeavoring to process cases in the most efficient and timely manner as is possible. In addition, this is a medical malpractice case. There will be a number of experts designated by the parties. Completing discovery, including expert designations and expert discovery, will require a substantial amount of time, which further supports a trial date within the extension timeline of a complex civil case under Rule 23.2(2).
(Footnote omitted.)
Several things about this paragraph should be noted. First, SMC
apparently wanted a date that would work for more than one defense counsel on
its team, i.e., “counsels” and “calendars.” Second, contrary to the majority’s
assertion, SMC didn’t blame a backlog caused by the COVID-19 pandemic except
in a general sense, claiming that “trial dates for the court and counsel are at a
premium.” Lastly, and most importantly, SMC represented that completing
discovery, “including expert designations,” would “require a substantial amount
of time.” (Emphasis added.) This, in turn, according to SMC, would “support[] a
trial date within the extension timeline of a complex civil case under Rule
23.2(2).”
On March 29, the district court found good cause and granted SMC’s
request for a July 2024 trial date. 20
On June 13, the Wilsons served interrogatory answers indicating that
Beerman would also be their testifying expert. However, as the majority points
out, September 1 came and went, and the Wilsons neglected to file a section
668.11 expert designation stating the same thing.
On November 30, SMC filed a summary judgment motion asking for the
case to be dismissed because the Wilsons had not made a timely section 668.11
designation. Two days later, with the trial date still over a year and a half away,
the Wilsons filed a section 668.11 designation of Beerman as their testifying
expert.
II. The Majority’s Analytical Errors.
As I noted earlier, our objective is to dispose of cases on the merits.
Reading the majority opinion, though, one might think that our aim is to clear
out the docket and hold as few trials as possible.
For starters, one might ask, “Has this court ever reversed a trial court for
granting additional time under section 668.11?” The answer would be, “Until
today, never.”
Our caselaw has repeatedly stressed that several factors enter into the
good cause analysis. We reviewed these factors earlier this year in Kirlin. See 19
N.W.3d at 114–15. These factors include the plaintiff’s diligence and explanation
for the delay, the seriousness of the deviation, prejudice to the defendant, and
defense counsel’s actions. Id. In Kirlin, we went through the prior caselaw
carefully to demonstrate that it supported that multi-factor analysis. Id. at 114;
see also, e.g., Nedved v. Welch, 585 N.W.2d 238, 240–41 (Iowa 1998) (per curiam)
(identifying “the questionable reason given for the delay” and “lack of prejudice”
as factors to consider); Hantsbarger, 501 N.W.2d at 505 (“In determining whether
good cause exists for granting plaintiffs’ request to be excused from complying
with the section 668.11 time limit, we believe the district court could have 21
properly considered the seriousness of the deviation and defendant’s prejudice
or lack thereof.”); Hill v. McCartney, 590 N.W.2d 52, 55 (Iowa Ct. App. 1998) (“In
determining whether good cause exists for granting plaintiff’s request to be
excused from complying with the section 668.11 time limit, the court considers
three factors: (1) the seriousness of the deviation; (2) the prejudice to the
defendant; and (3) defendant’s counsel’s actions.”).
While we have upheld a trial court’s discretion to deny additional time
when the plaintiff didn’t give a convincing explanation for the delay, see Nedved,
585 N.W.2d at 240–41; Donovan, 445 N.W.2d at 766, we have never held that
such an explanation is a precondition to granting additional time.
This makes sense given the elasticity of the good cause standard. Good
cause requires “more than an excuse” or “negligence,” but “excusable neglect” is
enough. Nedved, 585 N.W.2d at 240 (quoting Donovan, 445 N.W.2d at 766). A
“misunderstanding” is also enough. Id. (quoting Donovan, 445 N.W.2d at 766).
Applying the factors that we recently reiterated in Kirlin, I would find good
cause here. First, the representation made by SMC’s counsel that completing
expert designations will require “a substantial amount of time” when it sought a
trial date more than two years away gave the Wilsons’ counsel some justification
to conclude that SMC wasn’t going to insist on the September 1 deadline. This
was, to put it simply, a misunderstanding.
Second, the deviation was not serious. The majority performs a simplistic
counting of the days elapsed after the September 1 deadline. But earlier this
year, we said that such an approach “reads ‘deviation’ too narrowly.” Kirlin, 19
N.W.3d at 115. Section 668.11 requires only “substantial compliance, which is
compliance in respect to essential matters necessary to assure the reasonable
objectives of the statute.” Nedved, 585 N.W.2d at 240; see also Hantsbarger, 501
N.W.2d at 504. So we should consider the overall extent of the deviation, not just 22
the days. In this regard, it bears emphasis that the Wilsons provided everything
required for an expert designation prior to September 1; they just didn’t call it
that.
In any event, three months is not much of a deviation in a case that wasn’t
going to trial for over a year and a half.
Third, there was no prejudice to SMC. The majority dances around this
issue. In effect, the majority concedes that SMC wasn’t really prejudiced, but
they argue that SMC could have been prejudiced if the Wilsons had amended
their interrogatory answer to add another expert. That approach changes our
law because we consider actual prejudice, not the mere potential for prejudice.
See Kirlin, 19 N.W.3d at 117 (“We are unable to detect any actual prejudice
suffered by the defendants . . . . ‘Presumed prejudice’ is not the same as real
prejudice.”).
Fourth, as already noted, there was more than silence from SMC’s counsel.
Among other things, SMC’s counsel represented that extensive time would be
required for discovery, “including expert designations.”
Finally, there is no question that the Wilsons were diligently pursuing the
case.
Thus, on the whole, the district court acted well within its discretion.
Unlike the majority, it faithfully applied the multi-factor approach reflected in
our precedents such as Kirlin, Nedved, Hantsbarger v. Coffin, and Hill v.
McCartney. This does not mean that it would have been an abuse of discretion
for the district court to deny the additional time; only that no abuse occurred
when it granted it. See, e.g., State v. Williams, 929 N.W.2d 621, 633 (Iowa 2019)
(finding no abuse of discretion in declining to give a requested jury instruction
while adding that “[t]his does not mean, of course, that it would have been an
abuse of discretion to use [the instruction]”); Walker v. Scofield, 39 Iowa 666, 23
668 (1874) (finding no abuse of discretion in denying a continuance even though
“we might have granted it, if we had originally passed upon the application”).
For the reasons stated, I would affirm.
Christensen, C.J., and McDonald, J., join this dissent.