Justin Loper v. Bark Chiropractic & Rehab Clinic, LLC. and Bradley Bark

• Court: Court of Appeals of Iowa
• Decided: August 21, 2024
• Docket: 23-1809
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1809 Filed August 21, 2024

JUSTIN LOPER, Plaintiff-Appellant,

vs.

BARK CHIROPRACTIC & REHAB CLINIC, LLC and BRADLEY BARK, D.C., Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Tamra Roberts,

Judge.

Plaintiff appeals from a jury verdict and district court judgment to the same

finding the appellees not liable for alleged injuries and damages incurred by the

plaintiff. AFFIRMED.

James H. Cook of Daniels, Hines, Kalkhoff, Cook & Swanson, P.L.C., Cedar

Falls, for appellant.

Mark A. Schultheis of Schultheis White, PLC, Des Moines, for appellees.

Considered by Badding, P.J., and Langholz and Sandy, JJ. 2

SANDY, Judge.

Justin Loper appeals from a jury verdict and district court judgment to the

same finding the appellees, Bradley Bark, D.C. and Bark Chiropractic & Rehab

Clinic, LLC, not liable for alleged injuries and damages sustained by Loper. Loper

argues the district court erred in permitting cross-examination of an expert witness

concerning prior allegations made by the Iowa Board of Medicine against the

expert witness. Finding that Loper has failed to preserve error on his statutory

argument, we affirm the district court’s judgment.

I. Background Facts and Proceedings

Loper filed an action for chiropractic malpractice resulting in bodily injury,

naming Bradley Bark, D.C.; Austin Porter, D.C.; and Bark Chiropractic & Rehab

Clinic, LLC as defendants. Porter was later dismissed as a party by Loper. The

case was tried before a jury.

Loper designated Dr. David Segal as an expert witness at trial to offer

testimony about his independent medical examination of Loper, the opinions he

formed concerning the nature of Loper’s injury based on that examination, and the

causal relationship between that injury and the chiropractic treatment provided by

defendants. Dr. Segal did not testify to the element of fault. Prior to the second

day of trial, Loper moved in limine to exclude any evidence of Dr. Segal’s

disciplinary issues with the Iowa Board of Medicine. Loper argued that those

disciplinary issues were irrelevant to Dr. Segal’s testimony and that, even if

relevant, the disciplinary record would be unduly prejudicial to Loper because of a

lack of connection to Loper’s case. The defendants argued that the disciplinary

issues involved alleged lapses in honesty and care issues, which directly relate to 3

Dr. Segal’s credibility as a witness. The district court agreed with the defendants

and permitted all evidence relating to the board of medicine’s discipline history of

Dr. Segal insofar as no private or identifying patient information was disclosed.

During his direct examination, Loper questioned Dr. Segal about the disciplinary

investigation, and the defendants cross-examined him on the issues.

The case was submitted to the jury, and the jury returned a verdict for the

defendants, finding that Bark was not at fault. Loper now appeals.

II. Standard of Review

We review evidentiary rulings for an abuse of discretion. Selden v. Des

Moines Area Cmty. Coll., 2 N.W.3d 437, 443 (Iowa 2024). “A party may claim error

in a ruling to admit or exclude evidence only if the error affects a substantial right

of the party.” Iowa. R. Evid. 5.103(a). “While a presumption of prejudice arises

when the trial court has received inadmissible evidence over proper objection, that

presumption will not suffice if the record demonstrates a lack of prejudice.”

Shawhan v. Polk Cnty., 420 N.W.2d 808, 810 (Iowa 1988).

III. Error Preservation

“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “[I]t is

fundamentally unfair to fault the trial court for failing to rule correctly on an issue it

was never given the opportunity to consider.” Otterberg v. Farm Bureau Mut. Ins.

Co., 696 N.W.2d 24, 28 (Iowa 2005) (alteration in original) (citation omitted).

“Ordinarily, error claimed in a court’s ruling on a motion in limine is waived

unless a timely objection is made when the evidence is offered at trial.” State v. 4

Daly, 623 N.W.2d 799, 800 (Iowa 2001) (citation omitted). But when the motion

“is resolved in such a way it is beyond question whether or not the challenged

evidence will be admitted during trial, there is no reason to voice objection at such

time during trial.” Id. (citation omitted); accord State v. Thoren, 970 N.W.2d 611,

621 (Iowa 2022) (“If the ruling on the motion in limine reaches the ultimate issue

and declares the evidence admissible or inadmissible, it is ordinarily a final ruling

and need not be questioned again during trial.” (cleaned up) (citation omitted)).

The appellees argue that Loper did not preserve error on his appeal

because Loper did not object to the introduction of the evidence of the Iowa Board

of Medicine’s allegations and it was Loper himself who introduced the evidence.

But we conclude error was not preserved for a different reason: he raises a

different claim on appeal than he raised below. See State v. Rutledge, 600 N.W.2d

324, 325 (Iowa 1999) (“Nothing is more basic in the law of appeal and error than

the axiom that a party cannot sing a song to us that was not first sung in trial

court.”).

Below, the district court made clear it was rejecting a claim under Iowa

Rules of Evidence 5.402 and 5.403. For the first time on appeal, Loper contends

that admission of the evidence of the Board’s investigation is prejudicial because

it “was prohibited by Iowa Code section 272C.6(4)(a) [(2020)].” Loper raised no

statutory argument in his original oral motion in limine, and the district court never

had the opportunity to consider that argument in its ruling. The entirety of Loper’s

prejudice argument on appeal assumes the alleged violation of

section 272C.6(4)(a), as interpreted through a ruling by our supreme court. See

Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 908 (Iowa 2021). And to the 5

extent that Loper argues prejudice unrelated to section 272C.6(4)(a), he did not

make such arguments until his reply brief. “Parties cannot assert an issue for the

first time in a reply brief. When they do, this court will not consider the issue.” Sun

Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996) (internal

citation omitted). Because Loper has failed to preserve error on the statutory

argument he advances on appeal, we affirm the district court’s ruling.

AFFIRMED.