IN THE COURT OF APPEALS OF IOWA
No. 21-0303 Filed May 25, 2022
JENA REYES and RICARDO REYES, Plaintiffs-Appellants,
vs.
ADAM SMITH, M.D., ADAM SMITH, M.D., P.C., TRI-STATE SPECIALISTS, L.L.P., PIERCE STREET SAME DAY SURGERY, L.C., UNITYPOINT HEALTH, and NORTHWEST IOWA HOSPITAL CORPORATION, d/b/a ST. LUKE'S REGIONAL MEDICAL CENTER OF SIOUX CITY, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Zachary
Hindman, Judge.
Jena and Ricardo Reyes appeal the denial of their motion for additional time
to designate an expert witness and the grant of summary judgment in favor of the
defendants on their medical-malpractice claim. AFFIRMED.
Jon Specht of Trial Lawyers for Justice, Decorah, for appellants.
John C. Gray and Jeff W. Wright of Heidman Law Firm, P.L.L.C., Sioux City,
for appellees Adam Smith, M.D., Adam Smith, M.D., P.C., and Tri-State
Specialists, LLP.
Erik Bergeland and Joseph F. Moser of Finley Law Firm, P.C., Des Moines,
for appellees UnityPoint Health and Northwest Iowa Hospital Corporation d/b/a St.
Luke’s Regional Medical Center of Sioux City. 2
Considered by Vaitheswaran, P.J., May, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 3
VOGEL, Senior Judge.
In July 2019, Jena and Ricardo Reyes (collectively “Reyes”) filed suit
against Adam Smith, M.D.; Adam Smith, M.D., P.C.; Tri-State Specialists, L.L.P.;
Pierce Street Same Day Surgery, L.C.; Unitypoint Health; and Northwest Iowa
Hospital Corporation d/b/a St. Luke’s Regional Medical Center of Sioux City
(collectively “Smith”). The suit alleged, among other things, Dr. Smith committed
medical malpractice in his care and treatment of Jena. In February 2020, Reyes
filed an amended petition. On February 6, Smith filed an answer. On February
24, Reyes filed a certificate of merit under Iowa Code section 147.140 (2019),
which provided the opinion of Dr. Richard Marfuggi that Dr. Smith breached the
standard of care.
On March 4, 2020, Reyes filed a trial scheduling and discovery plan (Plan).
Among other provisions, the Plan stated Reyes would designate their expert
witnesses by July 7, 2020, “[p]er Iowa Code section 668.11.” On October 5, Smith
filed their designation of expert witnesses before Reyes did so. On October 6,
Smith filed a motion for summary judgment based on Reyes’s failure to designate
their expert witnesses as of that date. On October 9, Reyes filed an expert witness
disclosure naming Dr. Marfuggi as their expert. On October 22, Reyes filed a
motion for additional time to designate expert witnesses, asserting substantial
compliance and they had good cause for missing the expert-designation deadline
due to the COVID-19 pandemic and other factors. Following a hearing on both
outstanding motions, the district court denied Reyes’s request for additional time
to designate their expert witness and granted Smith’s motion for summary
judgment. Reyes appeals, contending the district court abused its discretion in 4
denying their motion for additional time and thus erred in granting Smith’s motion
for summary judgment.
I. Standard of Review
We review the denial of additional time to designate expert witnesses for
abuse of discretion. Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct. App. 1998).
“Trial courts have broad discretion in ruling on whether to extend the time allowed
for parties to designate expert witnesses under [section] 668.11, and the exercise
of that discretion will not be disturbed unless it was exercised on clearly untenable
grounds or to an extent clearly unreasonable.” Id. at 54–55.
We review the grant of summary judgement for correction of errors at law.
Kunde v. Est. of Bowman, 920 N.W.2d 803, 806 (Iowa 2018). We view the record
“in the light most favorable to the party opposing summary judgment.” Id.
II. Analysis
A. Motion for Enlargement of Time to Designate Expert Witnesses
A plaintiff alleging medical malpractice must designate their “expert’s name,
qualifications and the purpose for calling the expert . . . 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)(a). Failure to timely
designate an expert generally bars the expert from testifying in the action. Id.
§ 668.11(2). The legislative intent behind this 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).
Reyes contends they substantially complied with the requirements of Iowa
Code section 668.11. See id. (‘[S]ection 668.11 requires substantial compliance. 5
Substantial compliance is ‘compliance in respect to essential matters necessary to
assure the reasonable objectives of the statute.’” (quoting Superior/Ideal, Inc. v.
Bd. of Rev., 419 N.W.2d 405, 407 (Iowa 1988))). Reyes asserts they substantially
complied with section 668.11 by arranging for Dr. Marfuggi as their expert before
Smith’s answer and then disclosing Dr. Marfuggi’s name, qualifications, and
opinion in the certificate of merit. However, nothing in the certificate of merit shows
Reyes intended to use the same professional as their expert witness.
Furthermore, the certificate-of-merit statute explicitly states the plaintiff “shall
comply with the requirements of section 668.11 and all other applicable law
governing certification and disclosure of expert witnesses.” Iowa Code
§ 147.140(3). The certificate of merit “works in tandem” with the expert
designation, and the two requirements serve different purposes. Struck v. Mercy
Health Servs.-Iowa Corp., ___ N.W.2d ___, ___, 2022 WL 1194011, at * 5 (Iowa
2022); accord McHugh v. Smith, 966 N.W.2d 285, 288–92 (Iowa Ct. App. 2021)
(discussing the distinct purposes of Iowa Code sections 147.140 and 668.11).
Thus, Reyes did not substantially comply with section 668.11 by simply filing their
certificate of merit.
Reyes also contends they have good cause for an extension of the expert-
designation deadline. For purposes of section 668.11, “good cause”
is 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 to defend 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 [act] and took steps to do so, but because of some misunderstanding, accident, mistake or excusable neglect failed to do so. Defaults will not be vacated where the movant has ignored plain mandates in the rules with ample opportunity to abide by them.” 6
Nedved v.
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IN THE COURT OF APPEALS OF IOWA
No. 21-0303 Filed May 25, 2022
JENA REYES and RICARDO REYES, Plaintiffs-Appellants,
vs.
ADAM SMITH, M.D., ADAM SMITH, M.D., P.C., TRI-STATE SPECIALISTS, L.L.P., PIERCE STREET SAME DAY SURGERY, L.C., UNITYPOINT HEALTH, and NORTHWEST IOWA HOSPITAL CORPORATION, d/b/a ST. LUKE'S REGIONAL MEDICAL CENTER OF SIOUX CITY, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Zachary
Hindman, Judge.
Jena and Ricardo Reyes appeal the denial of their motion for additional time
to designate an expert witness and the grant of summary judgment in favor of the
defendants on their medical-malpractice claim. AFFIRMED.
Jon Specht of Trial Lawyers for Justice, Decorah, for appellants.
John C. Gray and Jeff W. Wright of Heidman Law Firm, P.L.L.C., Sioux City,
for appellees Adam Smith, M.D., Adam Smith, M.D., P.C., and Tri-State
Specialists, LLP.
Erik Bergeland and Joseph F. Moser of Finley Law Firm, P.C., Des Moines,
for appellees UnityPoint Health and Northwest Iowa Hospital Corporation d/b/a St.
Luke’s Regional Medical Center of Sioux City. 2
Considered by Vaitheswaran, P.J., May, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 3
VOGEL, Senior Judge.
In July 2019, Jena and Ricardo Reyes (collectively “Reyes”) filed suit
against Adam Smith, M.D.; Adam Smith, M.D., P.C.; Tri-State Specialists, L.L.P.;
Pierce Street Same Day Surgery, L.C.; Unitypoint Health; and Northwest Iowa
Hospital Corporation d/b/a St. Luke’s Regional Medical Center of Sioux City
(collectively “Smith”). The suit alleged, among other things, Dr. Smith committed
medical malpractice in his care and treatment of Jena. In February 2020, Reyes
filed an amended petition. On February 6, Smith filed an answer. On February
24, Reyes filed a certificate of merit under Iowa Code section 147.140 (2019),
which provided the opinion of Dr. Richard Marfuggi that Dr. Smith breached the
standard of care.
On March 4, 2020, Reyes filed a trial scheduling and discovery plan (Plan).
Among other provisions, the Plan stated Reyes would designate their expert
witnesses by July 7, 2020, “[p]er Iowa Code section 668.11.” On October 5, Smith
filed their designation of expert witnesses before Reyes did so. On October 6,
Smith filed a motion for summary judgment based on Reyes’s failure to designate
their expert witnesses as of that date. On October 9, Reyes filed an expert witness
disclosure naming Dr. Marfuggi as their expert. On October 22, Reyes filed a
motion for additional time to designate expert witnesses, asserting substantial
compliance and they had good cause for missing the expert-designation deadline
due to the COVID-19 pandemic and other factors. Following a hearing on both
outstanding motions, the district court denied Reyes’s request for additional time
to designate their expert witness and granted Smith’s motion for summary
judgment. Reyes appeals, contending the district court abused its discretion in 4
denying their motion for additional time and thus erred in granting Smith’s motion
for summary judgment.
I. Standard of Review
We review the denial of additional time to designate expert witnesses for
abuse of discretion. Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct. App. 1998).
“Trial courts have broad discretion in ruling on whether to extend the time allowed
for parties to designate expert witnesses under [section] 668.11, and the exercise
of that discretion will not be disturbed unless it was exercised on clearly untenable
grounds or to an extent clearly unreasonable.” Id. at 54–55.
We review the grant of summary judgement for correction of errors at law.
Kunde v. Est. of Bowman, 920 N.W.2d 803, 806 (Iowa 2018). We view the record
“in the light most favorable to the party opposing summary judgment.” Id.
II. Analysis
A. Motion for Enlargement of Time to Designate Expert Witnesses
A plaintiff alleging medical malpractice must designate their “expert’s name,
qualifications and the purpose for calling the expert . . . 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)(a). Failure to timely
designate an expert generally bars the expert from testifying in the action. Id.
§ 668.11(2). The legislative intent behind this 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).
Reyes contends they substantially complied with the requirements of Iowa
Code section 668.11. See id. (‘[S]ection 668.11 requires substantial compliance. 5
Substantial compliance is ‘compliance in respect to essential matters necessary to
assure the reasonable objectives of the statute.’” (quoting Superior/Ideal, Inc. v.
Bd. of Rev., 419 N.W.2d 405, 407 (Iowa 1988))). Reyes asserts they substantially
complied with section 668.11 by arranging for Dr. Marfuggi as their expert before
Smith’s answer and then disclosing Dr. Marfuggi’s name, qualifications, and
opinion in the certificate of merit. However, nothing in the certificate of merit shows
Reyes intended to use the same professional as their expert witness.
Furthermore, the certificate-of-merit statute explicitly states the plaintiff “shall
comply with the requirements of section 668.11 and all other applicable law
governing certification and disclosure of expert witnesses.” Iowa Code
§ 147.140(3). The certificate of merit “works in tandem” with the expert
designation, and the two requirements serve different purposes. Struck v. Mercy
Health Servs.-Iowa Corp., ___ N.W.2d ___, ___, 2022 WL 1194011, at * 5 (Iowa
2022); accord McHugh v. Smith, 966 N.W.2d 285, 288–92 (Iowa Ct. App. 2021)
(discussing the distinct purposes of Iowa Code sections 147.140 and 668.11).
Thus, Reyes did not substantially comply with section 668.11 by simply filing their
certificate of merit.
Reyes also contends they have good cause for an extension of the expert-
designation deadline. For purposes of section 668.11, “good cause”
is 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 to defend 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 [act] and took steps to do so, but because of some misunderstanding, accident, mistake or excusable neglect failed to do so. Defaults will not be vacated where the movant has ignored plain mandates in the rules with ample opportunity to abide by them.” 6
Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998) (quoting Donovan v. State,
445 N.W.2d 763, 766 (Iowa 1989)). “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.” Hill, 590
N.W.2d at 55.
Taking the factors in reverse order, Reyes asserts Smith’s counsel
remained silent as Reyes missed the expert-designation deadline here and has
cooperated in other cases, but they do not claim Smith’s counsel’s actions
contribute to finding good cause here. See Hantsbarger, 501 N.W.2d at 505
(rejecting a suggestion “that opposing counsel must act as his or her ‘brother’s
keeper’”).
Reyes also asserts the prejudice to Smith due to the missed deadline is
minimal, but “[l]ack of prejudice, by itself, does not excuse the [plaintiffs’] late
designation.” Nedved, 585 N.W.2d at 241. As noted above, Smith filed their expert
designation on October 5, 2020, long after Reyes’s time to do so had passed.
Thus, Reyes’s late filing deprived Smith of their strategic advantage under section
668.11 of knowing the plaintiffs’ expert evidence before designating their own
experts. See Stanton v. Knoxville Cmty. Hosp., Inc., No. 19-1277, 2020 WL
4498884, at *3 (Iowa Ct. App. Aug. 5, 2020).
Reyes leans heavily on the first factor, seriousness of the deviation,
asserting the deviation was not serious because they only missed the deadline by 7
sixty-six days1 and the extraordinary COVID-19 pandemic led to their calendar
error that caused them to miss the expert-designation deadline. However, a delay
of sixty-six days is substantial. See Hill, 590 N.W.2d at 55 (affirming the rejection
of an expert designation filed four months late); Nedved, 585 N.W.2d at 240
(affirming the rejection of an expert designation filed three months late).
Additionally, their attempt to attribute the delay to the pandemic is unpersuasive.
Reyes has the burden to show good cause exists. See Nedved, 585 N.W.2d at
240. Yet, Reyes did not submit affidavits or present witnesses to provide
evidentiary support for their general claims. Even accepting their arguments as
factually true, they never explain exactly how the pandemic interfered with
counsels’ work or their ability to timely file an expert designation beyond attributing
the late filing to their error in calendaring the deadline. Furthermore, Reyes filed
their Plan describing the expert-designation deadline on March 4, 2020; Iowa’s
governor issued her first disaster proclamation in response to the pandemic on
March 9,2 and the Iowa Supreme Court issued its first order for preparations in
response to the pandemic on March 12,3 giving Reyes sufficient time to properly
1 The parties disagree about the date Reyes’s expert designation was originally due. Smith asserts the due date is the date listed in the Plan: July 7, 2020. Reyes asserts July 7 was an error on their part, and the correct due date should have been 180 days after Smith’s answer—August 4—as described in Iowa Code section 668.11(1)(a). We need not decide the issue because even if we accept Reyes’s contention that the due date was August 4 and their expert designation was sixty-six days late, we would still find no abuse of discretion in denying an extension. 2 State of Iowa Exec. Dep’t, Proclamation of Disaster Emergency (Mar. 9, 2020);
see also Riley Drive Ent. I, Inc. v. Reynolds, 970 N.W.2d 289, 292 (Iowa 2022) (discussing the governor’s response to the pandemic in March 2020, including statewide restrictions imposed on March 17). 3 Iowa Supreme Ct. Supervisory Order, In the Matter of Preparation for
Coronavirus/COVID-19 Impact on Court Services (Mar. 12, 2020); see also In re 8
calendar the expert-designation deadline before the impact of the pandemic.
Reyes has shown little more than want of ordinary care or attention in missing the
expert-designation deadline, and the district court did not abuse its discretion in
denying their motion for additional time to designate an expert witness.
B. Motion for Summary Judgment
Reyes does not dispute that they must present expert testimony for their
medical malpractice claims to survive summary judgment. See Kennis v. Mercy
Hosp. Med. Ctr., 491 N.W.2d 161, 167 (Iowa 1992) (finding that expert testimony
is necessary in a medical malpractice action to establish the defendant’s
negligence). Instead, Reyes’s argument is summary judgment was improper
because the court improperly denied their motion for additional time as discussed
above. Without Dr. Marfuggi, Reyes has no expert testimony to support their
claims. Because the denial of the motion for additional time was within the district
court’s discretion, the district court did not err in granting summary judgment in
favor of Smith.
III. Conclusion
The district court did not abuse its discretion in denying Reyes’s motion for
additional time to designate an expert witness. Because Reyes lacked an expert
witness, the court did not err in granting summary judgment in favor of Smith.
AFFIRMED.
A.H., 950 N.W.2d 27, 34 (Iowa Ct. App. 2020) (discussing the Iowa judiciary’s response to the pandemic in March 2020, including an order continuing most proceedings dated March 14).