Provenzano v. Wetrich, McKeown & Haas, P.C.

481 N.W.2d 536, 1991 Iowa App. LEXIS 379, 1991 WL 323173
CourtCourt of Appeals of Iowa
DecidedDecember 31, 1991
DocketNo. 90-979
StatusPublished
Cited by2 cases

This text of 481 N.W.2d 536 (Provenzano v. Wetrich, McKeown & Haas, P.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provenzano v. Wetrich, McKeown & Haas, P.C., 481 N.W.2d 536, 1991 Iowa App. LEXIS 379, 1991 WL 323173 (iowactapp 1991).

Opinion

DONIELSON, Presiding Judge.

The parents of Christopher Provenzano brought this medical malpractice action against Dr. David W. Wetrich, an obstetrician, and his professional corporation, alleging that Dr. Wetrich was negligent in managing the twin pregnancy of Twila Pro-venzano. When Twila gave birth to her twins, one was stillborn; the other, Christopher, was born with a significant brain injury. Plaintiffs alleged that Dr. Wetrich was negligent in failing to properly monitor the pregnancy. They allege that Dr. Wet-rich did not conduct proper testing to determine whether the stillborn twin, Jesse, had experienced complications and had died in útero. The plaintiffs assert that due to this failure in testing, the necessary steps to immediately deliver the surviving twin were not taken. As a result, Christopher developed a brain injury caused, in útero, by disseminated intravascular coagulation (DIC). DIC is the phenomenon of small blood clots flowing into the living twin’s blood stream from the deceased twin.

The defendants contend Dr. Wetrich was not negligent. They assert that the plaintiffs’ opinions on causation are unsupported by clinical facts, poorly understood, without support in the literature, and presented by witnesses with insufficient experience.

The action was filed on July 20, 1987. Pursuant to Iowa Code section 668.11 (1989), the plaintiffs filed a Designation of Expert Witnesses on January 21, 1988, listing one obstetrical expert, Dr. Darryl [538]*538Townsend. Iowa Code section 668.11 provides that the plaintiff will make such a designation within 180 days of the date of the defendant’s answer. It further provides that the defendant has 90 days after the plaintiffs designation to designate his or her own experts. The defendant filed his original designation of experts in a timely manner. The designation included Dr. Harry Farb, a perinatologist; Dr. Grant Paulsen, an obstetrician; and Dr. James Kelso, another obstetrician.

Following their discovery deposition of the defendant, the plaintiffs conducted additional medical research. Based on their findings, the plaintiffs requested that defendant’s counsel, at that time Attorney Tom Finley, allow them to designate another obstetrical expert. The plaintiffs explained that they would file a motion to add additional experts if the parties were unable to agree. However, the parties did come to an agreement. Counsel stipulated that both parties could add one additional expert.

The plaintiffs designated another obstetrical expert, Dr. Stanley Warner. On the 24th and 25th of January 1989, the defendant deposed the plaintiffs’ two experts. It was not until September 8,1989, that the defendant supplemented his designation of experts to include two more witnesses. The defendant designated Dr. Lawrence Brown, a pediatric neurologist; and Dr. Terrance Briggs, an obstetrician. Despite the original agreement between counsel limiting the parties to one additional expert each, the plaintiffs did not challenge the defendant’s designation of two additional experts.

However, Attorney Jack Hilmes replaced Tom Finley as defendant’s counsel, and sixty-two days before trial, the defendant filed answers to interrogatories informing the plaintiffs regarding the subject matter of the defense experts’ expected testimony. In those answers, the defendant had also designated seven new experts. The plaintiffs expressed that no objection would be made to three of these seven additional experts; Dr. David Wetrich, Dr. Marc Hines, and Dr. Jay Heitsman. These three had all been integrally involved in the care of Twila and Christopher Provenzano, and their depositions had already been taken. Nevertheless, of the seven additional experts, four had never before been mentioned; Dr. Joanne Benda, an obstetrician and pathologist; Dr. C. Maureen Sander, a pathologist; Dr. Carl Weiner, an obstetrician; and Thomas Falhaber, a structured annuity specialist. Accordingly, the plaintiffs filed a motion to exclude, requesting that these four experts be excluded.

Following a phone hearing on March 5, 1990, twenty-two days before trial, Judge Collett ruled on the plaintiffs’ motion. The court granted the plaintiffs’ motion to exclude Doctors Benda, Sander, and Weiner based on their untimely designation as experts under Iowa Code section 668.11. However, the court concluded that Thomas Falhaber, the structured annuity specialist, fell outside the scope of section 668.11 and, therefore, he would be allowed to testify.

On March 26, 1990, the day before trial, counsel for the parties appeared before the trial court, Judge Jenkins, to address certain pretrial matters. Counsel for both parties informed the court of what had occurred during preparation of the claim for trial. A portion of that discussion occurred as follows:

MR. HILMES [Defendant’s Counsel]: Then as I’ve explained to Marc [Humphrey] and explained to Judge Collett when I got the file from [Tom] Finley on a lateral, I not only noticed there were two people that had been involved in this case who hadn’t been named as experts that I immediately named, but noticed that other areas of expertise should be brought to this case, and particularly I think it turned out to be pathology expertise.
There was some time delay in getting some slides and such, which got me up until, what, December or January before I told Marc who these experts were. And one of the reasons I told him who they were is because he filed an interrogatory at that point asking me who they are. Judge Collett struck those on the cases of Rule 668.11.
[539]*539That takes me back to my original premises. If you wanted to be real comfortable with the enforcement of 668.11, you would say, “Lawyers, you can’t make side agreements.” On the other hand, the lawyers have made a side agreement, and I think we’re willing to stick with it.
THE COURT: Are you willing to stick with Collett’s restriction of your experts?
MR. HILMES: Well, there’s nothing I can do about it at this point.
THE COURT: Yeah, you can. Yeah, you can. Because I can change it. If you’re uncomfortable with it, and if I’m uncomfortable with it, you bet I can. I can and I will. Because it seems to me that you can’t require a literal interpretation of Section 668.11 on the one hand and keep the defendant from bringing in three experts, and completely ignore it on the other hand to allow the plaintiff to bring in experts that were not designated. That’s the point of my discomforture [sic].
Now, if you, as counsel for the defendant, are not uncomfortable with Col-lett’s ruling, then we can go ahead with it.
MR. HILMES: Well—
THE COURT: Because you know a lot more about it than I do.
MR. HILMES: I would have liked to have had a pathologist involved in this case, and that’s why I designated two.... However, because of Judge Collett’s ruling, to be quite frank, and because of the lack of qualification of the experts on the other side to deal with that area, I’ve prepared myself and my case to go forward with what it has.
THE COURT: All right. That’s—
MR. HILMES: I’m not saying I agree with Collett’s ruling, mind you. I would like to have them. But I guess I understand that I’ve got some statutory obligation.

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481 N.W.2d 536, 1991 Iowa App. LEXIS 379, 1991 WL 323173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provenzano-v-wetrich-mckeown-haas-pc-iowactapp-1991.