Estate of David Spieker, by its Administrator, Diana Spieker, and Diana Spieker, individually v. Catholic Health Initiatives - Iowa Corp d/b/a Mercyone Des Moines Surgical Group and Dennis Witmer, D.O.

• Court: Court of Appeals of Iowa
• Decided: October 15, 2025
• Docket: 24-1599
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1599 Filed October 15, 2025

ESTATE OF DAVID SPIEKER, by its Administrator, Diana Spieker, and DIANA SPIEKER, individually, Plaintiffs-Appellants,

vs.

CATHOLIC HEALTH INITIATIVES – IOWA, CORP. d/b/a MERCYONE DES MOINES SURGICAL GROUP and DENNIS WITMER, D.O., Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister,

Judge.

An estate appeals the district court’s ruling on summary judgment.

AFFIRMED.

Brian Patrick Galligan (argued) and Amber J. Haberl of Galligan Law, P.C.,

Clive, for appellant.

John A. Maschman (argued), Frederick T. Harris, and Sarah E. Schleisman

and of Lamson Dugan & Murray LLP, West Des Moines, for appellants.

Heard at oral argument by Ahlers, P.J., and Chicchelly and Sandy, JJ. 2

CHICCHELLY, Judge.

An estate appeals from the district court’s grant of summary judgment

dismissing its wrongful-death action against Catholic Health Initiatives and

Dr. Dennis Witmer. It alleges (1) the defendants waived their right to challenge the

certificate of merit by engaging in substantial litigation, (2) their certificate of merit

substantially complied with Iowa Code section 147.140 (2021), (3) the expert

certification requirements of Iowa Code section 668.11 are the applicable

standards, and (4) Iowa Code section 147.140 is unconstitutionally vague. Upon

our review, we affirm.

I. Background Facts and Proceedings

The estate of David Spieker brought this action against the defendants in

January 2021 after Spieker died of sepsis one day after a laparoscopic

cholecystectomy. In its petition, the estate alleges the defendants negligently

caused Spieker’s death and loss of spousal consortium. The estate filed its

certificate of merit signed by their expert in March 2021. The certificate did not

include language that it was sworn “under penalty of perjury,” and the estate’s

expert was not under oath at the time of signing. The parties engaged in discovery

ahead of the October 2024 trial date.

While the case was pending, the supreme court decided Miller v. Catholic

Health Initiatives-Iowa, Corp., 7 N.W.3d 367 (Iowa 2024). In Miller, our supreme

court ordered dismissal of a medical malpractice action because it concluded the

plaintiff’s certificate of merit did not comply with Iowa Code section 147.140

because it was unsworn and did not substantially comply with the statute’s

unambiguous affidavit requirement. Id. at 374–75. 3

On July 18, 2024—over three years after certificate was filed—the

defendants moved for summary judgment asserting the estate’s certificate of merit

did not substantially comply with section 147.140. The district court granted the

motion and dismissed the action. The estate appeals.

II. Standard of Review

The court reviews rulings on motions for summary judgment for correction

of errors at law. Id. at 373. The court also reviews the district court’s rulings on

statutory interpretation for correction of errors at law. Id. at 372. And the court

reviews constitutional issues de novo. State v. Geddes, 998 N.W.2d 166, 171

(Iowa 2023).

III. Discussion

a. Waiver and Estoppel

First, the estate argues the defendants waived their right to challenge the

certificate of merit by waiting nearly three years and engaging in substantial

litigation. The defendants respond that section 147.140 has no deadline for

challenging certificates of merit, and their challenge came before the district court’s

deadline for summary judgment.

The estate points the court to a four-justice1 concurring opinion in S.K. v.

Obstetric & Gynecologic Associates of Iowa City & Coralville, P.C. 13 N.W.3d 546,

569 (Iowa 2024) (Waterman, J., concurring). There, the defendant never raised

the issue before the district court and raised the certificate of merit issue for the

1 The majority opinion was written by Justice May. Justice Waterman concurred on this issue joined by Chief Justice Christensen, and Justices McDonald and McDermott. 4

first time in a motion to reverse. The supreme court held error was not preserved.

Id. at 553–54. In a concurring opinion, the court reasoned the defendant “impliedly

waived its right to dismissal under section 147.140(6) by failing to raise the issue

before final judgment, by the dispositive motion deadline, or indeed at any time

during nearly four and a half years of litigation until its appellate motion to reverse.”

Id. at 569 (Waterman, J., concurring).

But our supreme court recently decided the waiver issue in Banwart v.

Neurosurgery of North Iowa, P.C. 18 N.W.3d 267, 276–78 (Iowa 2025). In

Banwart, the defendants “moved for summary judgment under section 147.140(6)

over a year before the district court’s dispositive motion deadline and trial.” Id. at

276–77. The supreme court decided the dispositive motion deadline entered by

the district was controlling for the purposes of waiver. Id. (“Using the dispositive

motion deadline as a bright line for determining waiver avoids a fact-intensive

inquiry into how much discovery is too much.”).

In addition to claiming the defendants’ conduct of engaging in substantial

litigation for nearly three years waived their right to challenge the certificate of

merit, the estate contends the same conduct estops them from making the

challenge. While the issue of estoppel was not raised in Banwart, we find that the

rationale used by the supreme court to reject the waiver argument would similarly

apply to the estate’s estoppel argument. In Banwart, the supreme court opted for

a bright-line rule setting the dispositive-motion deadline as the deadline for raising

challenges to the certificate of merit, noting that doing so “avoids a fact-intensive

inquiry into how much discovery is too much.” 18 N.W.3d at 277. While that 5

passage applies to a waiver claim, the same reasoning applies to estoppel

challenges, and we reject the estate’s challenge accordingly.

Because Banwart controls and the motion for summary judgment was filed

before the dispositive motion deadline in district court, we find the defendants did

not waive their right to challenge the certificate of merit nor were they estopped

from doing so.

b. Substantial Compliance

Second, the estate asserts their certificate of merit substantially complied

with section 147.140. The estate raises several arguments in favor of substantial

compliance. We apply Miller and Banwart and hold that the estate did not comply

with section 147.140 because their experts did not sign the certificate of merit

under oath or under penalty of perjury. See Miller, 7 N.W.3d at 374; Banwart, 18

N.W.3d at 272–73. At the outset, the supreme court had made it clear that the

expert’s signed but unsworn certificate without reference to “under penalty of

perjury” failed to substantially comply with section 147.140. Miller, 7 N.W.3d at

375–77. The same is true here.

Next, we address the other arguments made by the estate supporting their

substantial compliance argument. The estate argues substantial compliance

because their expert “affirmed” their statements. But as the supreme court has

made clear “counsel must ensure that a timely certificate of merit is signed by the

expert under oath or under penalty of perjury.” Banwart, 18 N.W.3d at 274

(emphasis added). Affirming is insufficient. Miller, 7 N.W.3d at 375. Then the

estate claims experts cannot be subject to perjury for opinion testimony. The

supreme court in Banwart addressed that very issue by stating: 6

We disagree with that premise. What if the expert lies about his or her qualifications? See, e.g., State v. Wolfrum, 175 P.3d 206, 207 (Idaho Ct. App. 2007) (affirming the perjury conviction of an expert witness who lied about his credentials); State v. Sullivan, 130 A.2d 610, 615–16 (1957) (affirming the perjury conviction of a medical doctor and rejecting his argument that he could not be criminally liable for giving medical opinions). Or what if the medical expert falsely testifies to holding opinions he or she in fact disbelieves? See State v. Hawkins, 620 N.W.2d 256, 262–63 (Iowa 2000) (en banc) (affirming the defendant’s perjury conviction for false opinion testimony and collecting cases upholding perjury convictions when the witness in fact had no such belief or opinion). Experts, like other humans, have been known to lie. Experts and lay witnesses alike must raise their right hand at trial.

Banwart, 18 N.W.3d at 274–275. Finally, throughout its argument, the estate

expresses its disagreement with Miller. As an intermediate appellate court, we are

not free to overrule supreme court precedent. See State v. Beck, 854 N.W.2d 56,

64 (Iowa Ct. App. 2014). We find the estate failed to substantially comply with

section 147.140.

c. Section 668.112

Third, the estate argues the defendants forfeited their right to challenge the

certificate of merit when it did not move to dismiss prior to expert certification

governed by Iowa Code section 668.11. The legislature did not include a deadline

within section 147.140(6) to challenge a certificate of merit. Defendants do not

waive their right to do so by engaging in discovery. See Banwart, 18 N.W.3d at

277; see also McHugh v. Smith, 966 N.W.2d 285, 291 (Iowa Ct. App. 2021).

“Section 147.140(3) incorporates by reference, and works in tandem with, the

2 The district court did not analyze section 668.11 as a bar to the defendants’

motion but stated “to the extent that Plaintiffs have raised additional arguments against the dismissal of this action, the Court has considered but denies all such claims.” Therefore, we treat it as though preserved and proceed to the merits. 7

expert disclosure requirements in Iowa Code section 668.11 (requiring disclosure

of expert witnesses in professional liability cases ‘within one hundred eighty days

of the defendant’s answer’).” Struck v. Mercy Health Servs.–Iowa Corp., 973

N.W.2d 533, 541 (Iowa 2022). And as the supreme court held in Banwart,

“defendants may control the timing of their motions for summary judgment, subject

to the district court’s dispositive motion deadline, without waving their rights under

section 147.140.” 18 N.W.3d at 278. So, we find the defendants have not forfeited

their right by moving for summary judgment after expert certification.

d. Constitutional Challenges3

Fourth, the estate argues section 147.140 is unconstitutionally vague and

cannot be applied retroactively. In Banwart, the supreme court rejected a void for

vagueness challenge to this statute. Id. at 275–276. The court found the statute

is unambiguous. Id. at 275; see also Miller, 7 N.W.3d at 374; Shontz v. Mercy

Med. Ctr.–Clinton, Inc., No. 23-0719, 2024 WL 2868931, at *1 (Iowa June 7, 2024)

(per curiam). Because the statute is unambiguous, the void-for-vagueness

challenge fails. Banwart, 18 N.W.3d at 276 (“The Banwarts cannot even show

section 147.140 is ambiguous, and they fall well short of demonstrating that this

civil statute is so vague as to be unconstitutional.”).

The estate also argues Miller should not apply retrospectively to this case

because it was already pending when Miller was decided. But “[a] judicial

3 When raising this constitutional challenge, the estate failed to comply with rule 6.901(3), which requires a party challenging the constitutionality of a statute to “provide the attorney general with written notice containing the supreme court case number, a reference to rule 6.901(3) identifying the act called into question, and the contact information of the attorney(s) of record.” Despite this, we reach and reject the estate’s constitutional challenge. 8

construction of a statute is an authoritative statement of what the statute meant

before as well as after the decision of the case giving rise to that construction.”

State ex rel. Miller v. Pace, 677 N.W.2d 761, 772 (Iowa 2004) (quoting Rivers v.

Roadway Exp., Inc., 511 U.S. 298, 311–12 (1994)). We hold Miller is a controlling

interpretation of section 147.140 that applies to this case. So, we find

section 147.140 is constitutional.

IV. Conclusion

Because we find the estate’s challenges are foreclosed by Miller and

Banwart, we affirm

Ahlers, P.J., concurs; Sandy, J., dissents. 9

SANDY, Judge (dissenting).

“Late have I loved you, Beauty so ancient and so new, late have I loved

you!”4 Catholic Health Initiatives and Dr. Dennis Witmer (together, “CHI”) waited

over three years before filing their motion to dismiss for the estate of David

Spieker’s non-compliance with the certificate of merit. I respectfully dissent from

the majority opinion because I believe the relief CHI seeks should be barred by

estoppel by acquiescence.5

“[E]stoppel by acquiescence occurs when a person knows or ought to know

of an entitlement to enforce a right and neglects to do so for such time as would

imply an intention to waive or abandon the right.” Garrett v. Huster, 684

N.W.2d 250, 255 (Iowa 2004) (alteration in original) (citation omitted). Both the

majority and the district court, while seemingly struggling with the concept, likewise

gave it short thrift. The district court reasoned:

Finally, the Court must acknowledge and address case law from New Jersey that supports Plaintiffs equitable estoppel argument. In Knorr v. Smeal, the Supreme Court of New Jersey held that a medical malpractice defendant’s late-filed motion to dismiss based on plaintiff’s failure to timely file an affidavit of merit was barred

4 Saint Augustine, Confessions bk. X, ch. 27, at 201 (Henry Chadwick trans., Oxford Univ. Press 1991). 5 Although not directly applicable to the basis for my dissent, Banwart v.

Neurosurgey of North Iowa, P.C. dealt in part with waiver in relation to the timing of a substanative motion to dismiss for lack of compliance with the certificate of merit. 18 N.W.3d 267 (Iowa 2025). However, unrelated to the timing of a motion to dismiss, is whether a preserved objection to the certificate of merit was made— no different than an objection we otherwise deem not properly preserved in other civil litigation certification contexts such as interrogatories, requests for production of documents, and requests to admit/deny. See Iowa R. Civ. P. 1.503(7) and (2). I would distinguish between the timeliness of a dispositve motion to dismiss and the preservation of an objection pursuant to Iowa Rule of Civil Procedure 1.503(2). Regardless, that differentiation is for the supreme court to chart as they decide post-Banwart appeals. 10

by the doctrine of equitable estoppel and laches. See, Knorr v. Smeal, 836 A.2d 794 ([N.J.] 2003). Of course, Knorr is not binding authority on this Court. Nor does this Court find Knorr to be persuasive authority because it is factually distinguishable. What particularly distinguishes the case at bar from Knorr is that the defendant in Knorr waited to file its motion to dismiss challenging plaintiff’s certificate of merit until four months after the court imposed dispositive motions deadline had expired. Id. at 797. Not surprisingly, given that fact, the New Jersey court found equitable estoppel applied to foreclose a late-filed challenge. This Court would reach the same result had Defendants not timely filed their motion.

In my opinion, the flaw in the district court’s reasoning is its failure to

recognize that estoppel by acquiescence does not require a showing of detrimental

reliance or prejudice. Huster, 684 N.W.2d at 255. Rather, “[e]stoppel by

acquiescence applies when (1) a party ‘has full knowledge of his rights and the

material facts’; (2) ‘remains inactive for a considerable time’; and (3) acts in a

manner that ‘leads the other party to believe the act [now complained of] has been

approved.’” Markey v. Carney, 705 N.W.2d 13, 21 (Iowa 2005) (second alteration

in original) (citation omitted). Thus, whether the motion to dismiss was filed before

or after the dispositive motion deadline is irrelevant. What is relevant is whether

the party “remains inactive for a considerable time.” Id. (citation omitted). That

analysis does not hinge on an arbitrarily6 set dispositive motion deadline but—like

most equitable estoppel theories—on the unique facts and circumstances of the

case.7

6 I use the word “arbitrarily” because it is often the parties themselves that set such

deadline based upon counsel’s own schedules and the nature of the case. 7 Banwart’s edict that “[u]sing the dispositive motion deadline as a bright line for

determining waiver avoids a fact-intensive inquiry into how much discovery is too much” applies to waiver not estoppel by acquiescence. Banwart v. Neurosurgery of N. Iowa, P.C., 18 N.W.3d 267, 277 (Iowa 2025) (emphasis added). That is so because unlike waiver, theories of equitable estoppel are always fact-intensive. 11

And while the district court was correct that New Jersey Supreme Court

precedent is not binding authority, it was authority that our own supreme court

repeatedly relied on in analyzing this issue. See Banwart, 18 N.W.3d at 275; Miller

v. Catholic Health Initiatives-Inc., 7 N.W.3d 367, 376 (Iowa 2024). Thus, the district

court was right to flag and focus on Knorr. The New Jersey Supreme Court’s

decision in Knorr is directly on point, particularly after Banwart. To start, it is

important to clarify what Banwart did not do. Banwart did not address estoppel by

acquiescence—only waiver. And it is worth clarifying that waiver and estoppel are

distinct legal doctrines.8 They share some similarities, but they are not to be

conflated. Although waiver belongs to the family of estoppel, “they are

nevertheless distinguishable terms.” Collins v. Iowa Mfrs.’ Ins. Co., 169 N.W. 199,

201 (Iowa 1918).

The court in Knorr did not rely on (or even mention) the dispositive motion

deadline in its estoppel analysis. Nor should we. The court’s substantive analysis

of estoppel centered on the pragmatic reality that a defendant who participates in

discovery on the merits for an extended period of time “induce[s] plaintiffs to

believe that the case was on course.” Knorr, 836 A.2d at 800. This observation

applies with equal, if not greater, force in this case because expensive, expansive,

and intensive discovery occurred for three years, not fourteen months.9

8 Equitable exceptions to limiting statutes—including estoppel—are not uncommon

in Iowa. Rivas v. Brownell, 18 N.W.3d 211, 220 (Iowa 2025). 9 Ironically, a dispositive motion deadline occurs only after the close of discovery

has occurred. Thus, various motions—including a motion for summary judgment— make sense in this context. However, a motion addressing the insufficiency of a certificate of merit (which must be filed sixty days after the commencement of suit) filed three years after the deadline for the certificate of merit does not “identify and weed out non-meritorious malpractice claims from the judicial system efficiently 12

Similar to Banwart, Knorr held the defendant did not waive its right to

dismissal because New Jersey’s “Affidavit of Merit statute places no obligation on

a defendant to file a dismissal motion within a set timeframe.” Id. The New Jersey

Supreme Court nevertheless held the doctrine of equitable estoppel applied. The

same is true here.

All three elements of estoppel by acquiescence are met in the current case.

To the first element, if a plaintiff is expected to know the meaning of “under the

oath of the expert” and related requirements of jurat at the time the expert signs a

certificate of merit, then certainly a defendant is expected to know that as well,

meaning that the defendants in this case had full knowledge of their rights, fulfilling

element number one. See Markey, 705 N.W.2d at 21.

As to the latter two elements, Spieker served Dr. Aach’s certificate of merit

on March 2, 2021, three months prior to the expiration of the statute of limitations

and more than three years before CHI filed their motion for summary judgment.

This is “considerable time.” See id. The plain language of section 147.140(1)

(2021) requires compliance “prior to the commencement of discovery.” By its

terms, the statute creates a discovery moratorium and vests the defendant with

the power of an objection to any discovery on the merits until the defendant is

satisfied the plaintiff’s certificate of merit substantially complies with the statute.

Yet, in the ensuing three years, CHI never challenged the sufficiency of the

certificate of merit. In fact, CHI instead proceeded to spend significant time,

money, and resources in defending this claim, including subjecting Dr. Witmer and

and promptly.” Struck v. Mercy Health Services-Iowa Corp., 973 N.W.2d 533, 542 (Iowa 2022). 13

other defendants to depositions. The estate relied on CHI’s conduct in this regard

and continued to prosecute the matter and engage in substantial discovery at

significant time and expense. In other words, they acted in a manner that “le[d]

the other party to believe the act [now complained of] has been approved.” Id.

(second alteration in original) (citation omitted).

For these reasons, I respectfully dissent and would reverse the district

court’s dismissal and remand for further proceedings.