In the Iowa Supreme Court
No. 24–0205
Submitted February 19, 2025—Filed March 21, 2025
Jahn Patric Kirlin and Sara Louise Kirlin,
Appellants,
vs.
Barclay A. Monaster, Christian William Jones, and Physicians Clinic Inc. d/b/a Methodist Physicians Clinic – Council Bluffs,
Appellees.
Appeal from the Iowa District Court for Pottawattamie County, Michael D.
Hooper, judge.
The plaintiffs in a medical malpractice action appeal the summary
judgment granted to the defendants based on a failure to timely certify experts.
Reversed and Remanded.
Mansfield, J., delivered the opinion of the court, in which all justices
joined.
Kelly N. Wyman of Wyman Law, Council Bluffs, and Dean T. Jennings of
Jennings Law Firm, Council Bluffs, for appellants.
Robert A. Mooney and Kalli P. Gloudemans of Mooney, Lenagham
Westberg Dorn, LLC, Omaha, Nebraska, for appellees Christian Williams Jones
and Physicians Clinic Inc.
Frederick T. Harris, Theodore T. Appel (until withdrawal), and Georgia R.
Rice of Lamson Dugan & Murray LLP, West Des Moines, for appellee Barclay A.
Monaster. 2
Mansfield, Justice.
This is the second time this medical malpractice case has been before us.
Unfortunately, we must reverse and remand once again. The question before us
is what happens to a section 668.11 expert certification deadline when the
deadline lapses while a case is on appeal. If there is a reversal and remand, does
the old deadline spring back in place minus a tolling period? Or if the trial
scheduling discovery plan contains an alternative default deadline, does that
deadline now control?
We conclude that we need not answer the question today. Both positions
are plausible. We conclude that the district court abused its discretion in not
finding “good cause” for the plaintiffs to make expert certifications that adhered
to the second deadline but not the first. Not only was there uncertainty about
which deadline applied but the record also reveals a lack of prejudice to the
defendants, the plaintiffs making good-faith efforts to litigate the case, and the
defendants’ prior communication of a different position to the plaintiffs.
Together, these considerations add up to an abuse of discretion in denying the
plaintiffs their day in court. Accordingly, we reverse the judgment of the district
court dismissing this case and remand for further proceedings.
I. Background Facts and Procedural History.
A. The Alleged Malpractice. We recite the facts as alleged by the
plaintiffs. Jahn Kirlin is a thirty-seven-year-old man. Beginning on April 1, 2019,
Kirlin experienced a sudden and continuous significant right-side neck pain,
intense headaches, and pressure behind his right eye. Dr. Christian William
Jones, a family physician with Methodist Physicians Clinic (MPC), began treating
Kirlin for these symptoms on April 4. Dr. Jones recommended some pain 3
management medications and a pain management referral. He suggested an MRI
would be necessary if symptoms did not improve.
On April 12, Dr. Jones was notified that the head and neck pain were
continuing with no relief. The office stated that it was too late in the day on a
Friday to order the MRI and that it would be ordered on Monday, April 15.
On Monday, Dr. Barclay Monaster—another family physician—took
charge of Kirlin’s care, having returned from a leave of absence after undergoing
treatment for alcohol abuse. Dr. Monaster refused to order an MRI before seeing
Kirlin in person. Kirlin scheduled an appointment for 1:30 p.m. At that time,
Dr. Monaster refused to order the MRI, emphasized a $3,000 test was not
necessary, ordered a prescription for steroids, and suggested Kirlin could
continue his chiropractic care and follow up at the end of the week.
On the next day, April 16, Kirlin was receiving treatment from his
chiropractor and immediately experienced stroke symptoms after an adjustment
of his neck. Kirlin was transported by ambulance to Jennie Edmundson Hospital
and eventually to the University of Nebraska Medical Center. It was confirmed
that Kirlin suffered bilateral distal cervical vertebral artery dissections with
high-grade stenoses and small thrombus in the proximal basilar artery, with
permanent and irreversible damage.
The plaintiffs allege that some combination of MPC, Dr. Jones, and
Dr. Monaster changed, altered, or made deliberate omissions on Kirlin’s medical
records; the medical records do not reflect an appointment for Kirlin on April 15.
The plaintiffs further allege that Dr. Monaster was intoxicated at the time of the
appointment with Kirlin on April 15. They allege that Dr. Monaster was arrested
and later pleaded guilty to operating a motor vehicle while intoxicated, second
offense, on April 16. Shortly thereafter, according to the plaintiffs, Dr. Monaster 4
reentered inpatient treatment for alcohol abuse. Kirlin is no longer able to work
his previous job as a sheriff’s deputy and has retired.
B. Litigation Leading Up to the Prior Appeal. On September 11, 2020,
Jahn and Sara Kirlin sued MPC, Dr. Jones, and Dr. Monaster in the
Pottawattamie County District Court. We described the ensuing events in our
previous appellate opinion:
The Kirlins timely filed a section 147.140 certificate of merit affidavit on October 2, signed by Dr. David Segal, a board-certified neurosurgeon. The Defendants challenged the certificate on the basis that Dr. Monaster is a family physician and Dr. Segal was not board-certified in family medicine. See Iowa Code §§ 147.139(1) (requiring the affiant to be “licensed to practice in the same or a substantially similar field as the defendant”), .139(3) (“If the defendant is board-certified in a specialty, the [affiant must be] certified in the same or a substantially similar specialty . . . .”), .140(1)(a) (requiring that the expert affiant “meet the qualifying standards of section 147.139”). Before the district court could issue a ruling on those motions, however, the Kirlins voluntarily dismissed their petition without prejudice under Iowa Rule of Civil Procedure 1.943.
The Kirlins refiled their petition on April 14, 2021, and provided a new certificate of merit signed by Dr. Brian Smith—board-certified in family medicine—who opined that each defendant in the second case breached the standard of care.
Kirlin v. Monaster, 984 N.W.2d 412, 414 (Iowa 2023) (alteration and omission in
original) (footnote omitted).
At this point, the defendants sought dismissal of the refiled action. They
maintained that the Kirlins’ voluntary dismissal of their initial lawsuit and
subsequent refiling could not overcome the fatal defect in their initial
section 147.140 certificate of merit. The district court agreed with the defendants
and entered summary judgment in the refiled action.
C. Our Prior Decision Reversing Dismissal and Remanding. On appeal,
we reversed and remanded. See id. at 413. We recognized the plaintiffs’ “absolute 5
right” to voluntarily dismiss their petition pursuant to Iowa Rule of Civil
Procedure 1.943. See id. at 416. We then concluded,
When the Kirlins . . . refiled their suit, section 147.140 applied anew, and the Kirlins could not have relied on a certificate of merit from a previously filed and dismissed case to satisfy the statute any more than the Defendants may now rely on such a certificate to defeat the refiled petition. The district court erred as a matter of law when it granted summary judgment based only on the certificate of merit affidavit signed by Dr. Segal and provided in the dismissed case.
Id. at 417.
D. Activities in the District Court Following Remand. Our procedendo
issued on February 20, 2023. On February 21 and again on March 7, the Kirlins’
counsel emailed proposed trial scheduling and discovery plans (TSDP) to counsel
for the defendants. They did not receive a response. Meanwhile, a notice came
from the district court advising the parties that a civil trial setting conference
with court administration would occur on March 30. The notice also required
the parties to file a TSDP before the conference.
Apparently, the conference took place on March 30. However, there was
no agreement then as to trial date because the defendants contended that the
trial would now require two weeks rather than one week as had been previously
ordered before the appeal. The parties also could not reach an agreement on a
new TSDP. In addition, both sides indicated they favored setting “dates certain”
for expert disclosures, although no dates were agreed upon. Therefore, a hearing
before the district court was set for April 4.
On April 4, the district court ordered a seven-day jury trial to commence
on March 18, 2024. The court did not enter a new TSDP or new dates for expert
disclosures. 6
E. The Defendants’ Motions for Summary Judgment Based on
Plaintiffs’ Asserted Noncompliance with Iowa Code Section 668.11. On
July 31, 2023, the defendants moved for summary judgment again. The theory
behind these motions was that the Kirlins had missed the deadline for certifying
their experts under section 668.11 and without expert testimony, their case was
fatally deficient. The defendants argued that when the district court granted the
defendants’ earlier motion for summary judgment on January 18, 2022,
twenty-nine days remained until the Kirlins’ deadline for expert certifications.
The original TSDP called for the plaintiffs’ expert disclosures to occur
210 days before trial “unless the Iowa Code requires an earlier designation date
(see, e.g., Iowa Code section 668.11).” Section 668.11(1) requires the plaintiff in
a professional liability case to certify their experts “within one hundred eighty
days of the defendant’s answer unless the court for good cause not ex parte
extends the time of disclosure.” Iowa Code § 668.11(1) (2020). Thus, the
plaintiffs’ original expert certification deadline fell on February 16, 2022, or
twenty-nine days after the court granted the defendants’ first motion for
summary judgment.
According to the defendants, this meant that when the case returned to
district court following procedendo, the Kirlins had twenty-nine days left, or until
March 21, 2023, to certify their experts—a deadline that the Kirlins had missed.
In the defendants’ view, the failure of the court to enter a new TSDP meant that
the old one was still in effect.
After receiving the defendants’ summary judgment motions, the Kirlins
promptly submitted their expert disclosures and also resisted the motions. They
argued that in light of the earlier summary judgment, the appeal, and our
reinstatement of the case, the section 668.11 deadline no longer governed. In 7
their view, the section 668.11 deadline had come and gone while the case was
on appeal, during which time the district court lacked jurisdiction. The Kirlins
pointed out that they could not have filed section 668.11 certifications in a case
pending on appeal. Therefore, the Kirlins insisted, the default deadline for expert
disclosures under the original TSDP applied. That default deadline was 210 days
before trial, or August 21, 2023—a deadline the Kirlins had met.
Alternatively, the Kirlins argued that they had good cause for not meeting
the section 668.11 deadline. They maintained that such cause existed based on
confusion as to what the deadlines were and whether the section 668.11 deadline
still applied after remand, lack of prejudice to the defendants, and the Kirlins’
continued efforts to prosecute the case. As they put it, “At worst, this is a good
faith misunderstanding, accident, mistake or excusable neglect because no clear
deadline applied after remand was ordered.”
The defendants provided their own expert certifications and disclosures on
August 14. Then, on November 17, the district court granted summary judgment
in the defendants’ favor. The district court agreed with the defendants that the
situation should be treated as if the prior summary judgment had never been
granted and the appeal had never occurred. See Taylor v. Burgus, 262 N.W. 808,
810 (Iowa 1935); Sleeper v. Killion, 164 N.W. 241, 245 (Iowa 1917). This meant
that the Kirlins had only twenty-nine days to provide expert certifications when
the case returned to district court via procedendo. The court also rejected the
Kirlins’ good cause argument:
Having considered the factors, the Court finds Plaintiffs’ disclosure is well beyond the deadline, has limited Defendants in their consultation and preparation with expert witnesses, and there is no evidence that the misunderstanding of the law is due to the conduct of defense counsel. As such, the Court finds that good cause to extend the time for disclosure does not exist in this case. Plaintiffs’ position is unsupported by law, and rather than seek clarification 8
as to whether the section 668.11 deadline continued to apply, they simply ignored it.
This appeal followed.
II. Standard of Review.
We review a district court’s interpretation of Iowa Code section 668.11 for
errors at law. Jorgensen v. Smith, 2 N.W.3d 868, 873 (Iowa 2024). We review a
district court’s refusal to grant a party’s requested departure from
section 668.11’s requirements for abuse of discretion. Hantsbarger v. Coffin,
501 N.W.2d 501, 505 (Iowa 1993) (en banc). “A trial court has broad discretion
in ruling on such matters, and the exercise of that discretion will ordinarily not
be disturbed unless it was exercised on clearly untenable grounds or to an extent
clearly unreasonable.” Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989).
III. Legal Analysis.
The district court ruled that the effect of our reversal of its dismissal order
was to leave the pre-dismissal expert deadlines in place, after deducting the time
that had elapsed between its dismissal order and our procedendo. While this was
a plausible way to reconcile Iowa Code section 668.11 with the events of this
case, it was not the only way. We bypass the question of whether the Kirlins’
expert disclosures complied with section 668.11 and the original TSDP. Instead,
we conclude that the district court abused its discretion in not finding good
cause for the Kirlins to make their expert certifications and disclosures on
August 8, 2023—223 days before the trial of this case.
A. Iowa Code Section 668.11(2) and the Good Cause Exception. Iowa
Code section 668.11(2) provides, “If a party fails to disclose an expert pursuant
to subsection 1 . . . , 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.” 9
We have applied this code provision before. In Hantsbarger v. Coffin, we
said, “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 properly considered the seriousness of the deviation
and defendant’s prejudice or lack thereof.” 501 N.W.2d at 505. We also made the
following observation: “While we do not suggest that opposing counsel must act
as his or her ‘brother’s keeper,’ we believe it is appropriate to consider
defendant’s counsel’s actions, or lack thereof, in determining good cause for
granting plaintiffs’ request for relief.” Id. at 505–506.
In Hantsbarger, we decided that the district court had abused its
discretion in excluding certain expert witnesses from a medical malpractice case.
Id. at 503. The plaintiffs—while timely disclosing the experts’ names—had not
disclosed their qualifications and the purposes for calling them. Id.; see Iowa
Code § 668.11(1) (requiring this information). Once the defendant moved to bar
their testimony, the plaintiffs provided this information. Hantsbarger,
501 N.W.2d at 503. We also noted that “[d]efendant was not prejudiced, plaintiffs
were ready with their experts, and [plaintiffs] had a good record of complying
with discovery in this case.” Id. at 506.
By contrast, we found no abuse of discretion when the district court
refused to allow late expert disclosures in Nedved v. Welch, 585 N.W.2d 238, 239
(Iowa 1998) (per curiam). There, the plaintiffs did not file any sort of designation
until three months after the section 668.11 deadline had run. Id. at 240. The
plaintiffs offered a “questionable reason” for the delay, which was “contradicted
and without any evidentiary support.” Id. at 240–41. Lack of prejudice was the
only consideration in the plaintiffs’ favor, and we held that it was not enough by
itself. Id. at 241. 10
We also upheld a district court’s refusal to allow an untimely certification
in Donovan v. State, 445 N.W.2d at 767. The plaintiffs’ section 668.11(1)
certification had been due in mid-May. Id. at 765. In June, the defendant filed a
motion to compel answers to expert interrogatories. Id. The motion pointed out
that the plaintiffs had not yet identified an expert despite the expiration of the
180-day deadline in section 668.11. Id. Even then, the plaintiffs did not submit
a certification. Id. Finally, after the defendant filed a motion for summary
judgment in mid-August, the plaintiffs designated two experts a month later. Id.
at 765–66. The court found that this was untimely and sustained the motion for
summary judgment. Id. at 765. We concluded that there was no abuse of
discretion, noting that the excuse offered by plaintiffs’ counsel was that he had
been attempting to get the assistance of more experienced counsel, although at
this time, the section 668.11 deadline “had run several months previously.” Id.
at 766.
And in Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct. App. 1998), the
court of appeals held that the district court did not abuse its discretion in
denying a motion to extend the expert deadline in a dental malpractice case. The
plaintiff filed her motion long after the deadline and one month before trial. Id.
As the court of appeals observed, “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.” Id. at
55. Although the delay was severe, there was no indication the plaintiff was
unaware of or confused about the deadline. Id. Instead, she argued that “the fact
she has been unable to locate an expert to assist her [gave] her good cause to
have the deadline extended,” and she sought “additional time not only to 11
designate an expert, but to locate one as well.” Id. As the court of appeals put it,
“For nearly four months [the plaintiff] knew she did not have an expert to assist
her and she did nothing.” Id. Furthermore: “Defense counsel specifically inquired
whether Hill intended to call an expert witness at trial.” Id.
Guided by this caselaw, we turn to the present case. We believe the
relevant factors show that the district court abused its discretion in not allowing
the Kirlins’ expert certifications. We consider the following: (1) the existence of
uncertainty and confusion as to the proper deadline after appeal and remand,
(2) the lack of prejudice to the defendants, (3) diligence by the plaintiffs in
pursuing their case, and (4) defense counsel’s actions.
B. Uncertainty and Confusion as to the Expert Disclosure Deadline
Following Appeal and Remand. As we have already noted, in determining
whether good cause exists for a failure to comply with the section 668.11(1)
deadline, the district court may properly consider “the seriousness of the
deviation.” Hantsbarger, 501 N.W.2d at 505. The defendants treat
“the seriousness of the deviation” as a simple question of how much time lapsed
after the section 668.11(1) deadline before the plaintiffs certified their experts.
We think this reads “deviation” too narrowly. Missing a clear deadline is different
from missing an ambiguous one while adhering to the deadline that you thought
applied.
At the beginning of this case, the expert certification deadline was clear.
Section 668.11(1) applied and the Kirlins had 180 days from when the
defendants answered—or until February 16, 2022—to provide their
certifications. See Iowa Code 668.11(1)(a). But then there was a grant of
summary judgment and an appeal. The defendants acknowledge that after
January 18 of that year, the Kirlins could be excused for not filing those 12
certifications because the district court had granted summary judgment to the
defendants.
Still, why did the clock stop on January 18? On February 1, the Kirlins
filed a motion for reconsideration under Iowa Rule of Civil Procedure 1.904(2).
The case was still ongoing, and the district court still had jurisdiction. The
district court didn’t deny the motion for reconsideration until February 23, at
which point the original section 668.11 deadline had passed. Technically,
therefore, the Kirlins could have made the expert certifications by the original
February 16 deadline before appealing. The district court still had jurisdiction
over the case, and there was the possibility that it would reconsider its ruling.
The point we are making is this: the defendants’ position requires an
adjustment based on a judgment call. The defendants do not contend that the
original February 16, 2022 deadline should be applied, nor do they contend that
the only time to be excluded in calculating a revised deadline should be the time
when the district court lacked jurisdiction over the case. But if adjustments are
to be made, why isn’t the Kirlins’ approach a sensible one? In the absence of a
new TSDP, and given that the section 668.11 deadline had passed, why wouldn’t
the default deadline of 210 days before trial from the existing TSDP apply here?
One analogy to consider is speedy trial. If there is an appeal in a criminal
case leading to a remand for a trial, we don’t say that the state has to bring the
defendant to trial within whatever remained of the 90-day deadline at the time
the appeal was taken. State v. Hamilton, 309 N.W.2d 471, 475 (Iowa 1981)
(“When a case on appeal is remanded, absent waiver of the right to a speedy trial,
the period during which the defendant must be tried commences on the date
procedendo issues.”). 13
The following is the paragraph from the June 23, 2021 TSDP setting the
original deadlines for expert disclosure:
According to the affidavits submitted by plaintiffs’ counsel, they “believed
§ 668.11 was no longer applicable in this case” after the appeal and return of the
case to district court. And no new TSDP had been entered. Thus, under the
extant TSDP, in the view of plaintiffs’ counsel, the deadline defaulted to 210 days
before trial under paragraph 8(B). This may have been incorrect, but it wasn’t
plainly unreasonable.
The defendants do not cite a single case where we have adopted a tolling
rule when a fixed deadline for disclosure—not tied to the trial date—expired while
a matter was on appeal. Usually, we assume that new deadlines will be
established following remand. The defendants’ tolling rule raises several
practical concerns. What if only a few days remain under the tolling rule when
the remand occurs? Should we expect parties with dismissed cases on appeal to 14
spend time and money preparing those cases for trial? The present case is not a
situation where the deadline had lapsed before a dismissal order that was then
appealed and reversed. Cf. Douglas v. Burley, 134 So. 3d 692, 694–95, 699–700
(Miss. 2012) (en banc) (finding that a trial court abused its discretion when it
allowed the plaintiffs to add an expert following remand where the expert
designation and disclosure deadline had expired long before the reversed
dismissal order).
A relevant precedent is Connolly v. Foudree, 141 F.R.D. 124 (S.D. Iowa
1992). In that case, the plaintiff filed a professional malpractice case in Polk
County District Court, which the defendants removed to the United States
District Court for the Southern District of Iowa. Id. at 125. The plaintiff missed
the section 668.11 deadline for certification of expert witnesses. Id. at 126. Yet
the plaintiff furnished his designation of expert witness promptly once the federal
court made it clear that the statute applied even in federal court. Id. at 129.
Weighing these circumstances, the court found good cause to excuse the
plaintiff’s noncompliance with the statute. Id. at 130. The court acknowledged
that it had been “unclear” whether the statute applied in federal court and “[t]he
defendants did not raise the issue until well after the 180-day deadline had
passed.” Id. Similar circumstances are present here.
C. Lack of Prejudice to the Defendants. We are unable to detect any
actual prejudice suffered by the defendants. Dr. Jones and MPC offer general
arguments that late disclosure “impacts ongoing discovery, strategy, and motion
practice” and that “Defendants’ ability to work with experts of their own is
prejudiced, as without specific, timely opinions from Plaintiffs’ expert witnesses,
[Defendants] are left to guess what Plaintiffs’ experts’ theories of [Defendants’]
specific negligence might be.” This argument doesn’t add up here. Under the 15
original, pre-appeal TSDP, the Kirlins’ expert disclosures were due February 16,
2022. Trial was originally scheduled for July 17, just 146 days later. Following
our reversal and remand, the plaintiffs understood their expert disclosures were
due 210 days before trial and actually provided those disclosures 223 days before
trial. So, Dr. Jones and MPC’s arguments about being squeezed by the timing of
the Kirlins’ disclosures don’t wash. The defendants received those disclosures
223 days before trial; if the lawsuit had gone forward according to the original
schedule, they would have received them 146 days before trial.
Dr. Monaster, represented separately, offers only a “presumed prejudice”
argument. “Presumed prejudice” is not the same as real prejudice.
D. Plaintiffs’ Diligence in Pursuing the Litigation. We also find that
plaintiffs’ counsel pursued the litigation with diligence. Following a successful
appeal to our court, they wrote the defendants’ counsel the day after procedendo
issued, sending a proposed new TSDP. Receiving no response, they wrote the
defendants’ counsel again. Within a few weeks, a new trial date was set, but
there was no agreement establishing a new TSDP. When the defendants moved
for summary judgment on July 31, 2023, claiming the deadline for expert
certifications had passed, plaintiffs’ counsel filed their expert disclosures within
eight days—or thirteen days ahead of the deadline that plaintiffs’ counsel had
computed. The disclosures showed that the plaintiffs had retained not only the
family physician expert whose disclosure had long ago been provided under Iowa
Code section 147.140, but also a neurosurgeon and an economist.
The district court faulted the plaintiffs for not “seek[ing] clarification as to
whether the section 668.11 deadline continued to apply” but instead “simply
ignor[ing] it.” We agree with the district court to some extent. Before turning to
a default deadline, plaintiffs’ counsel should have sought clarification. Still, 16
plaintiffs’ counsel didn’t simply ignore the section 668.11 deadline; they
reasoned that it no longer applied. Ultimately, an error of judgment in not
seeking clarification is not the same as a lack of diligence.
E. The Actions of Defense Counsel. Lastly, we turn to the actions of the
defense counsel. In Hantsbarger, we took note that “defendant’s counsel silently
waited for the time period to pass and then used plaintiffs’ deficient designation
to seek a prohibition of plaintiffs’ experts and a dismissal of their claims.”
501 N.W.2d at 505. Yet, we emphasized that defense counsel are not their
“brother’s keeper.” Id.
This case involves more than mere silence on the part of defense counsel.
Notwithstanding their undisclosed position that the deadline had passed on
March 21, 2023, defense counsel participated in a scheduling conference with
the court on March 30 without raising the point. Then, after the conference,
counsel for Dr. Monaster emailed counsel for the Kirlins and for the other
defendants and stated, “It is my preference to have a date certain for experts.”
About twenty minutes later, counsel for Dr. Jones and MPC wrote, “I’m for dates
certain too.” In short, the email trail indicates that defense counsel were not
relying on the March 21 date they later invoked as a deadline. Instead, they
offered the view that the expert deadline was an open question to be determined.
At the very least, defense counsel’s course of conduct does not support the
district court’s ruling.
F. Iowa Caselaw Cited by the District Court and the Parties. Finally,
we find the principal case cited by the district court and the defendants to be
distinguishable. The district court and the defendants quote Sleeper v. Killion for
the following proposition: “The rule has been stated to be in such cases that a
general and unqualified reversal of a judgment or decree, without other order or 17
direction, is to nullify it completely, and to leave the case standing as if such
judgment or decree had never been entered.” 164 N.W. at 245.
But what does Sleeper actually stand for? In the original appeal in Sleeper,
we had reversed a foreclosure decree, holding that the rights of a protected
person had been wrongfully terminated due to improper notice to the guardian.
See id. at 242–43. Then, on remand, the parties who lost on appeal raised a
different theory: that they were entitled to two-thirds of the property claimed by
the protected person anyway. Id. at 244–45. We held that they could raise this
new theory because it wasn’t precluded by the terms of our reversal and remand.
Id. at 245.
In short, Sleeper was a decision about the substantive effects of a reversal
and remand. It does not support the proposition that a reversal and a remand
operate as a procedural time machine, sending everyone back magically to the
precise moment of the district court’s erroneous ruling. Sleeper is not relevant
here.
The district court (but not the defendants) also cited Taylor v. Burgus,
262 N.W. 808. It is distinguishable for similar reasons. In Taylor, we held that
the defendant’s motion for directed verdict should have been granted, which
under our then-existing practice meant that a new trial would be ordered. Id. at
810. But the defendant didn’t want a new trial under any circumstances, so we
affirmed the judgment below. Id. at 811. In the course of our opinion, we said,
“It is fundamental that a general order of reversal cancels the district court
judgment and sends the case back for a full retrial of the entire case. Under such
circumstances [the] case stands for retrial the same as though there has been
no former trial.” Id. at 810 (citations omitted). 18
Taylor thus deals with the separate question of whether you reverse for a
new trial or reverse for entry of judgment in the moving party’s favor when the
appellate court concludes that a motion for directed verdict was erroneously
denied. Not only would we answer the question differently today than in the time
of Taylor, see, e.g., Selden v. Des Moines Area Cmty. Coll., 2 N.W.3d 437, 448–49
(Iowa 2024), but it’s a question that has nothing to do with the present case.
In determining that the district court abused its discretion in not finding
good cause for allowing the Kirlins’ section 688.11 expert certification, we do not
mean to suggest that the Kirlins’ counsel are blameless. As we have already
observed, when a case is remanded after an appeal, a prudent counsel should
confirm all deadlines. Still, at the end of the day, we need to take into account
(1) the confusion as to expert deadlines and the plausibility of the plaintiffs’ view
as to the correct deadline, (2) the lack of prejudice to the defendants, (3) the zeal
with which the plaintiffs were pursuing their case, and (4) the behavior of defense
counsel. When we do, we conclude that the district abused its discretion and
that reversal and remand are warranted.
IV. Conclusion.
For the foregoing reasons, we reverse the summary judgment entered by
the district court and remand for further proceedings consistent with this
opinion.