S.K., a legally incapacitated Minor by and through his Conservator, Thomas T. Tarbox v. Obstetric & Gynecologic Associates of Iowa City and Coralville, P.C., and Mercy Hospital Iowa City and Jill Christine Goodman

• Court: Supreme Court of Iowa
• Decided: November 8, 2024
• Docket: 22-1317
• Status: Published

Opinion

In the Iowa Supreme Court

No. 22–1317

Submitted September 11, 2024—Filed November 8, 2024

S.K., a legally incapacitated minor by and through his conservator, Thomas T. Tarbox,

Appellee,

vs.

Obstetric & Gynecologic Associates of Iowa City and Coralville, P.C.,

Appellant.

Appeal from the Iowa District Court for Johnson County, Kevin McKeever,

judge.

An obstetrics clinic appeals an adverse judgment in a medical malpractice

case. Reversed and Remanded.

May, J., delivered the opinion of the court, in which all participating

justices joined. Christensen, C.J., filed a concurring opinion, in which

Waterman, J., joined. Waterman, J., filed a concurring opinion, in which

Christensen, C.J., and McDonald and McDermott, JJ., joined. Oxley, J., took no

part in the consideration or decision of the case.

Troy L. Booher (argued) and Beth E. Kennedy of Zimmerman Booher, Salt

Lake City, Utah, and Jennifer E. Rinden, Robert D. Houghton, Vincent S. Gies,

and Nancy J. Penner of Shuttleworth & Ingersoll, PLC, Cedar Rapids, until

withdrawal, for appellant.

Ryan G. Koopmans (argued) of Koopmans Law Group, LLC, Des Moines,

for appellee. 2

May, Justice.

A baby was injured during labor, delivery, or both. The baby’s

conservator—the plaintiff here—alleges that the baby was injured because of

negligence by the delivering doctor. Among other things, the plaintiff alleges that

the doctor was negligent in using a Mityvac obstetrical vacuum delivery system

(vacuum) to deliver the baby and that this negligence caused brain damage to

the baby. The plaintiff also alleges that the doctor’s employer, a clinic, should be

liable for damages caused by the doctor’s negligence.

A jury found in favor of the plaintiff and awarded substantial damages. In

this appeal, the clinic argues that a new trial is required. Among other things,

the clinic argues that the district court erred by admitting a package insert that

came with the vacuum. The insert contains statements by the vacuum’s

manufacturer about when the vacuum should not be used. The insert also

contains statements about harms that could result from using the vacuum. The

clinic argues that Iowa’s hearsay rule required exclusion of the insert.

We agree. The insert contains hearsay, and it does not fit one of our

recognized exceptions. So admission of the insert violated our hearsay rule. And

under our precedents, we presume that the erroneous admission of hearsay was

prejudicial to the objecting party, the clinic. The plaintiff has not rebutted that

presumption. Moreover, even if there were no presumption, we would still

conclude that admission of the insert deprived the clinic of a fair trial. So we

must reverse and remand for a new trial.

I. Factual and Procedural Background.

A. The Birth. S.K.’s mom (mom) became pregnant with her third child,

S.K. Throughout her pregnancy, mom received prenatal care from Dr. Jill

Goodman, M.D. (Dr. Goodman). Dr. Goodman was employed by a clinic called

Obstetric & Gynecologic Associates of Iowa City and Coralville, P.C. (clinic). 3

On August 11, 2018, mom was admitted to Mercy Hospital, Iowa City

(Mercy) with painful contractions. By August 11, her pregnancy had reached

approximately thirty-nine and four-sevenths weeks gestation, or full term. And

it is undisputed that prior to August 11, S.K.’s condition was unremarkable.

Mom’s admission occurred at about 1 p.m. One of Mercy’s registered

nurses was assigned as mom’s primary labor nurse. Dr. Goodman cared for mom

while also caring for two other laboring mothers who were in other rooms.

At 3:50 p.m., mom’s nurse called for Dr. Goodman. Dr. Goodman came to

mom’s bedside. Dr. Goodman made two attempts to deliver S.K. using forceps.

Neither attempt was successful. Dr. Goodman then used a vacuum. After one

pull of the vacuum, S.K. was delivered at 4:09 p.m.

During the process of labor and delivery, S.K.’s skull was fractured and

S.K. suffered brain injury. S.K. spent the next forty-six days at the neonatal

intensive care unit at the University of Iowa Stead Family Children’s Hospital.

S.K. continues to experience repercussions of his birth injuries—although, as

will be explained, both the nature and cause of those injuries are hotly contested.

B. This Lawsuit. In 2019, S.K.’s conservator and parents filed this lawsuit

against Mercy, the clinic, and Dr. Goodman. Prior to trial, S.K.’s parents’ claims

were dismissed. So we refer to S.K.’s conservator as the plaintiff.

Also prior to trial, the plaintiff dismissed the claims against Dr. Goodman.

The case then proceeded to trial against Mercy and the clinic. The clinic’s

liability, if any, would be vicarious liability for Dr. Goodman’s alleged negligence.

The trial was largely a battle of experts. The plaintiff’s experts testified that

negligence by Mercy and Dr. Goodman caused S.K. to suffer two kinds of brain

damage. First, they opined, S.K. suffered hypoxic ischemic encephalopathy (HIE)

prior to delivery. HIE is a kind of brain damage caused by a lack of blood and

oxygen. According to the plaintiff’s experts, S.K. suffered HIE because of failure 4

to address mom’s low blood pressure as well as failure to deliver S.K. much

earlier via cesarean section.

S.K. also suffered traumatic brain injury, the plaintiff’s experts testified.

This traumatic injury was caused in two ways. First, misuse of the forceps led to

a fracture of S.K.’s skull and damage to S.K.’s brain. Then additional traumatic

injury was caused by application of the vacuum.

As for S.K.’s future, the plaintiff’s experts testified that S.K. is permanently

disabled, both cognitively and physically. S.K. will require twenty-four-hour

custodial care for the rest of his life. The plaintiff’s experts calculated that S.K.

would incur over $42 million in medical and custodial care expenses.

The defendants’ case was almost the mirror image of the plaintiff’s. Like

the plaintiff, the defendants called several experts. But the defendants’ experts

expressed views that were largely the opposite of the plaintiff’s experts’. For

starters, the defendants’ experts testified that S.K. suffered no HIE during labor

or delivery. They also testified that Dr. Goodman’s use of the forceps and vacuum

was appropriate, not negligent. And they explained that S.K.’s skull fracture and

hemorrhages were the result of maternal forces of labor, a natural occurrence.

As for S.K.’s future, the defendants’ pediatric neurologist, Dr. Epstein,

testified that S.K. would not need any custodial care. Dr. Epstein went on to

predict that S.K. would walk independently, participate in activities like golf, and

obtain “normal employment based on a normal education through college or

beyond if need be.” Indeed, Dr. Epstein believed S.K. could “go to graduate

school” and then “do a job just like basically anybody else in this courtroom”—

including Dr. Epstein’s.

C. The Verdict. The jury found in the plaintiff’s favor. The jury concluded

that the clinic and Mercy were both negligent and that each defendant’s

negligence was a “cause of any item of damage” to the plaintiff. The jury also 5

found that 50% of the defendants’ “combined negligence” should be assigned to

each defendant. And the jury found that the following damages were “sustained

by the Plaintiff” and “caused by a defendant’s fault”:

“Future medical and/or custodial care expenses” $42,203,818

“Loss of future earning capacity” $11,698,731

“Past loss of function of the mind and/or body” $1,050,000

“Future loss of function of the mind and/or body” $20,700,000

“Past pain and suffering” $1,050,000

“Future pain and suffering” $20,700,000

Total $97,402,549

The district court entered judgment accordingly. The clinic filed motions

for new trial or remittitur, but the court denied them. This appeal followed.

II. The Issues on Appeal.

Now the clinic asks us to reverse the judgment and remand for new trial.

The clinic argues that a new trial is required for several reasons, namely, (1) the

district court erred in submitting specifications of negligence that lacked

evidentiary support; (2) the district court abused its discretion through its

wording of specifications of negligence; (3) the district court erred by admitting

hearsay—the package insert that came with the vacuum used in S.K.’s delivery;

(4) alternatively, the district court abused its discretion by admitting the package

insert despite its unfairly prejudicial character; (5) the district court abused its

discretion by failing to grant a mistrial in response to misconduct by the

plaintiff’s lead trial attorney, Geoffrey N. Fieger; and (6) the district court abused

its discretion by failing to grant a new trial because the verdict was excessive.

Alternatively, the clinic argues that if we decline to order a new trial, we should

reduce the judgment against the clinic because of a settlement that was reached

between the plaintiff and Mercy. See generally Iowa Code §§ 668.4–.7 (2018). 6

As mentioned, we conclude that the erroneous admission of the vacuum

insert requires us to grant a new trial. So we need not address the other issues

raised in the clinic’s appellate brief. Rather, our discussion of the merits focuses

on the vacuum insert.

III. Motion to Reverse.

Before turning to the merits, however, we mention a procedural issue that

the clinic raised by filing a motion to reverse with our court shortly before oral

argument.

The clinic’s motion is based on Iowa Code section 147.140. When a

medical malpractice claim requires expert testimony to establish the standard of

care or a breach, section 147.140 requires the plaintiff to serve a “certificate of

merit affidavit” no later than “sixty days” after the filing of “the defendant’s

answer.” Id. § 147.140(1)(a). In the certificate of merit affidavit, a qualified expert

must certify “under . . . oath” that he or she is familiar with “the applicable

standard of care” and that “the standard of care was breached by the health care

provider named in the petition.” Id. § 147.140(1)(b)(1)–(2). Subsection 147.140(6)

states that “[f]ailure to substantially comply with” these requirements “shall

result, upon motion, in dismissal with prejudice of each cause of action as to

which expert witness testimony is necessary to establish a prima facie case.” Id.

§ 147.140(6).

We have interpreted section 147.140 on several occasions. One of our most

recent efforts, Miller v. Catholic Health Initiatives-Iowa, Corp., is relevant here.

7 N.W.3d 367 (Iowa 2024). In Miller, the defendant-medical providers moved for

dismissal of a medical malpractice case because the plaintiff’s certificate of merit

affidavit was not signed under oath. Id. at 371–72. The district court denied their

motions but we granted interlocutory review. Id. at 372. Ultimately, we held that

an expert’s unsworn letter did not substantially comply with section 147.140’s 7

requirement of a “certificate of merit affidavit” that is signed “under . . . oath.”

Id. at 373–77 (emphasis omitted) (quoting Iowa Code § 147.140). So we reversed

the district court’s denial of the medical providers’ dispositive motions, and we

remanded for dismissal of the plaintiff’s claims. Id. at 377.

The clinic asks us to order a similar remand here. The clinic contends that

although the plaintiff served certificate of merit affidavits during the district court

case, and although they were signed by an expert, Dr. Brickner, those signatures

were unsworn. And so, the clinic argues, just as in Miller, we should reverse and

remand for dismissal of the plaintiff’s claims.

The court unanimously rejects this argument. And the court unanimously

concludes that the clinic’s motion to reverse should be denied.

The court is divided, however, as to the correct basis for denying the

clinic’s motion. Four members of the court conclude that the clinic’s motion

should be denied based on waiver through litigation conduct. Their reasoning is

explained in Justice Waterman’s concurring opinion, which is joined by Chief

Justice Christensen as well as Justices McDonald and McDermott.

Two members of the court—Justices Mansfield and May—conclude that

the clinic’s motion should be denied on error preservation grounds and without

reaching the issue of waiver. They reason that Miller should be distinguished

because, in that case, the medical providers challenged the certificate of merit

affidavit in the district court by filing dispositive motions in that court. Then the

district court ruled upon those challenges through an order denying the motions.

Thus, in Miller, there was no doubt that error was preserved. See, e.g., Tetzlaff v.

Camp, 715 N.W.2d 256, 258 (Iowa 2006) (“Because this argument was both

raised and ruled upon by the district court, we find the issue was preserved for

our review.”). 8

This case is different. In this case, the clinic did not challenge the plaintiff’s

certificate of merit affidavit in the district court. As a result, the district court

never ruled on any such challenge. Therefore, error was not preserved. And it is

not our role to consider unpreserved issues for the first time on appeal. Iowa

Const. art. V, § 4 (“The supreme court . . . shall constitute a court for the

correction of errors at law . . . .”); Iowa Code § 602.4102(1) (same); State v. Gomez

Medina, 7 N.W.3d 350, 355 (Iowa 2024) (“If an issue was never presented to the

district court to rule on, and if the district court did not in fact rule on it, we lack

any ‘error’ to correct.”); Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393,

413 (Iowa 2017) (“A supreme court is ‘a court of review, not of first view.’ ”

(quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005))); State v. Holbrook,

261 N.W.2d 480, 482 (Iowa 1978) (en banc) (“We are a court of review, not a nisi

prius court. We cannot ‘review’ an issue unless it was raised in the trial court.”);

Harvey v. Miller, 25 Iowa 219, 220–21 (1868) (“This court, in a law case, sits as

a court for the correction of errors at law, and not to decide cases agreed or

otherwise, as on original hearing.”).

IV. Merits.

We now turn to the clinic’s argument that the district court erred by

admitting hearsay, namely, written statements in the package insert for the

vacuum. Although we usually review evidentiary rulings for abuse of discretion,

State v. Canady, 4 N.W.3d 661, 668 (Iowa 2024), we review rulings on hearsay

objections for correction of errors at law, State v. Flores, 2 N.W.3d 287, 292 (Iowa

2024).

Note: Although the court is divided as to the proper basis for denying the

clinic’s motion to reverse (see part III, above), the court is united in our approach

to the merits of the clinic’s appeal. All six participating court members agree with

the discussion presented here in part IV. 9

A. Hearsay Generally. Generally speaking, a statement is hearsay if two

criteria are met: (1) the statement is made out of court, that is, outside of the

“trial or hearing” at which the statement is offered, and (2) the statement is

offered “into evidence to prove the truth of the matter asserted in the statement.”

Iowa R. Evid. 5.801(c); accord Thomas A. Mauet, Warren D. Wolfson & Jason

Kreag, Trial Evidence § 6.3(2), at 133 (8th ed. 2024) (“Hearsay is an out-of-court

statement that is offered for its truth. When an out-of-court statement is offered

for any relevant purpose other than proving its truth, it is not hearsay.”); see

also Iowa R. Evid. 5.801(d) (removing some statements from the definition of

hearsay).

The general rule is that “[h]earsay is not admissible.” Iowa R. Evid. 5.802.

But hearsay can be admitted if it “falls within one of the numerous exceptions to

the hearsay rule.” State v. Veverka, 938 N.W.2d 197, 199 (Iowa 2020).

Importantly, though, the hearsay’s proponent—the party who wants the hearsay

to be admitted—bears the burden of showing that an exception applies. State v.

Smith, 876 N.W.2d 180,189 (Iowa 2016).

B. The Insert Contains Hearsay. Applying these principles here, we start

by asking whether the package insert contains hearsay. The clinic points to this

“contraindications” language in the insert, which the plaintiff emphasized in

closing argument:

CONTRAINDICATIONS

Do not initiate vacuum if any of the following conditions exist:

• Non-vertex positions (breech or transverse lie/position) or face or brow presentation

• Suspected cephalopelvic disproportion

• Previous scalp sampling

• Suspected macrosomia, or risk of shoulder dystocia 10

• Failed vacuum or forceps attempt

• Less than 34 weeks gestation

• Unengaged vertex

• Incompletely dilated cervix

• Need for active device rotation

• Suspected fetal bleeding abnormalities

The clinic also mentions this “adverse events” language in the insert,

which identified various possible “fetal injuries” associated with use of the

vacuum, and which the plaintiff also emphasized in closing argument:

ADVERSE EVENTS

Fetal Injuries: Head trauma, bruises, contusions, lacerations, scalp edema, skull fracture, cephalhematoma, subgaleal hematoma, subdural hemorrhage, parenchymal hemorrhage, intracranial hemorrhage, retinal hemorrhage.

We agree that this language is hearsay. It is the manufacturer’s written

statements about when the vacuum should not be used (“contraindications”) and

what harms could result from its use (“adverse events”). Those written

statements were made outside of the “trial or hearing” at which they were offered.

Iowa R. Evid. 5.801(c)(1). And those statements were offered by the plaintiff “to

prove the truth of the matter asserted” in the statements. Id. r. 5.801(c)(2). They

were offered to prove that the vacuum should not be used when any of the listed

“contraindications” are present, particularly a “[f]ailed . . . forceps attempt,”

which allegedly happened here. And they were offered to prove that using the

vacuum could cause the “adverse events” listed on the insert, several of which

match up with injuries that S.K. allegedly suffered. So those statements fall

within the definition of hearsay. See Arnold v. Lee, No. 05–0651, 2006

WL 1410161, at *1, *8 (Iowa Ct. App. May 24, 2006) (affirming district court’s

refusal to admit package insert as hearsay); see also In re Richardson–Merrell, 11

Inc. “Bendectin” Prods. Liab. Litig., 624 F. Supp. 1212, 1232 (S.D. Ohio 1985)

(“The [drug] warnings [on labels] are out-of-court statements offered to prove the

truth of the matters asserted. . . . The warnings are in fact inadmissible

hearsay.”), aff’d in part and vacated in part sub nom. Hoffman v. Merrell Dow

Pharms., Inc. (In re Bendectin Litig.), 857 F.2d 290 (6th Cir. 1988); Drs. Co. v.

Plummer, 210 So. 3d 711, 718–19 (Fla. Dist. Ct. App. 2017) (holding the trial

court erred by admitting a package insert for Levaquin and explaining that

although statements in learned treatises, pamphlets, or other writings can be

used “in cross-examination of an expert witness,” they cannot be used “as

substantive evidence” because “otherwise, an opposing party would be deprived

of the opportunity to cross-examine or impeach the source of the statement”);

Zweig v. E.R. Squibb & Sons, Inc., 536 A.2d 1280, 1282 (N.J. Super. Ct. App. Div.

1988) (package insert for Delalutin was properly excluded as hearsay); Saccone

v. Gross, 84 A.D.3d 1208, 1209 (N.Y. App. Div. 2011) (“The plaintiff was properly

precluded from offering the Physicians’ Desk Reference . . . into evidence

because the proffered evidence constituted inadmissible hearsay.”).

Because the package insert contained hearsay, it should not have been

admitted unless it fit within a recognized exception. The plaintiff argues that the

insert fits within two of those exceptions: (1) the residual exception and (2) the

market reports exception. We address each in turn.

1. The residual exception. We start with the residual exception because it

is the ground on which the district court admitted the insert. The residual

exception appears in Iowa Rule of Evidence 5.807. The rule states in pertinent

part:

Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under [any other] hearsay exception [recognized in our rules]: 12

(1) The statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Id. r. 5.807(a).

Our precedents say that the residual exception is to “be used very rarely.”

Veverka, 938 N.W.2d at 199 (quoting State v. Brown, 341 N.W.2d 10, 14 (Iowa

1983) (en banc)). It can apply only in “exceptional circumstances.” Id. (quoting

Brown, 341 N.W.2d at 14).

More particularly, our precedents permit the exception to apply only if the

district court makes “five findings concerning the nature of the evidence:

(1) trustworthiness; (2) materiality; (3) necessity; (4) notice; and (5) service of the

interests of justice.” Id. at 200 (quoting State v. Weaver, 554 N.W.2d 240, 247

(Iowa 1996), overruled on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa

1998), vacated, 527 U.S. 1001 (mem.) (1999)). And these five criteria “are not

factors to be weighed” or balanced. State v. Skahill, 966 N.W.2d 1, 10 (Iowa

2021). Rather, they are five independent requirements, “set forth in the

conjunctive.” Veverka, 938 N.W.2d at 200 (quoting Weaver, 554 N.W.2d at 247).

They are “designed to limit the exception and protect the overarching rule against

hearsay.” Skahill, 966 N.W.2d at 11. All five “must be satisfied.” Id. at 10. If the

proponent fails to satisfy any one of the five requirements, the exception does

not apply. Id.

In this case, the clinic claims that the plaintiff has not satisfied the

necessity requirement. Iowa courts have addressed this requirement on several

occasions. See Skahill, 966 N.W.2d at 10–15; Veverka, 938 N.W.2d at 204 (citing

cases). We have clarified that “necessity” is not meant in some “absolute sense.” 13

Skahill, 966 N.W.2d at 11. Rather, consistent with the text of Iowa Rule of

Evidence 5.807(a)(2), the necessity requirement is met if the hearsay evidence is

“more probative on the point for which it is offered than any other evidence that

the proponent can obtain through reasonable efforts.” Put another way, the

necessity element “requires the hearsay evidence to be superior to other available

evidence.” Skahill, 966 N.W.2d at 13 (emphasis added). So if the hearsay is not

“the best available evidence,” the necessity requirement is not met. Larez v. City

of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991) (applying identically worded

federal rule) (“By requiring that ‘the statement [be] more probative on the point

for which it is offered than any other evidence which the proponent can procure

through reasonable efforts,’ . . . [the necessity requirement in the identically

worded federal rule] essentially creates a ‘best evidence’ requirement.” (first

alteration in original)).

We conclude that the necessity requirement is not met as to the package

insert. The package insert itself says that its instructions are just “general

guidelines” for using the vacuum. The package insert says nothing about the

specific facts of this case. And so the insert was not superior to the testimony of

the plaintiff’s actual experts, who addressed the same general topics as the

insert, but who provided superior evidence because (1) they could address the

specific facts of S.K.’s birth and (2) they were subject to cross-examination. See

Skahill, 966 N.W.2d at 13–14 (“[W]hen the same evidence is available through

in-court testimony, hearsay statements are generally not necessary under the

residual exception.”); see also Cisson v. C.R. Bard, Inc. (In re C.R. Bard, Inc., MDL.

No. 2187, Pelvic Repair Sys. Prods. Liab. Litig.), 810 F.3d 913, 925 (4th Cir. 2016)

(applying the residual hearsay exception and concluding that a manufacturer’s

material safety data sheet was “hardly the best evidence available that

polypropylene was potentially dangerous for human implantation” because that 14

issue “received substantial attention from both parties’ experts who themselves

relied on studies, reports, empirical evidence, and tissue sample slides

evidencing [the plaintiff’s] particular pathology”).

Moreover, we are not convinced that the package insert is superior to other

evidence that the plaintiff could have obtained “through reasonable efforts,” as

the rule requires. Iowa R. Evid. 5.807(a)(2). On this point, we find useful

guidance in the Iowa Court of Appeals opinion in Arnold v. Lee. 2006 WL

1410161. There, as here, a medical negligence plaintiff sought to introduce a

manufacturer’s package insert under the residual exception. See id. at *1, *4–5.

The district court found the insert was inadmissible and the court of appeals

agreed. Id. at *4–5. Specifically, the court of appeals found that while the insert

“may provide probative information,” the plaintiff had “not shown the insert itself

is necessary to her case.” Id. at *4. For one thing, the court observed, a doctor

had “testified to substantially the same information as was contained in the

insert.” Id. “Further,” the court noted, the plaintiff “could have called a

representative of the manufacturer to testify to its own cautions and concerns.”

Id. Likewise, we think the plaintiff here could have called a representative of the

vacuum manufacturer to cover everything the insert addressed. And the live

representative would have been superior to the insert because—unlike the

insert—the representative could have been cross-examined. Cf. Skahill, 966

N.W.2d at 15 (child’s recorded forensic interview was not superior to trial

testimony where the child “could be (and was) cross-examined”).

We acknowledge the plaintiff’s argument that “it is not reasonable” to call

a manufacturer’s representative. But it is the plaintiff’s burden to establish that

the insert was the best evidence available “through reasonable efforts.” Iowa R.

Evid. 5.807(a)(2); see also Smith, 876 N.W.2d at 189 (burden). And the record

does not show that a manufacturer’s representative could not have been 15

available through reasonable efforts. For example, we find nothing in the record

that shows unsuccessful efforts to obtain the testimony of a manufacturer’s

representative.

We also acknowledge the plaintiff’s arguments that a medical device

manufacturer’s instructions are especially trustworthy because they must be

submitted to the U.S. Food and Drug Administration (FDA). But the record does

not show that the FDA ever approved of the insert or the vacuum. Nor does the

record show any specifics about the actual FDA clearance process for this

vacuum or its insert, such as what “class” the vacuum falls into for purposes of

FDA regulation or whether the vacuum was considered substantially equivalent

to a predicate device. See 21 U.S.C. § 360c (classification of devices); Stamps v.

Collagen Corp., 984 F.2d 1416, 1418–19 (5th Cir. 1993) (discussing the FDA’s

classification of medical devices and different requirements for each), abrogated

in part by Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); How to Find and Effectively

Use Predicate Devices, U.S. Food & Drug Admin. (Sept. 4, 2018),

https://www.fda.gov/medical-devices/premarket-notification-510k/how-find-

and-effectively-use-predicate-devices (discussing FDA approval process of a

medical device using predicate devices).

More importantly, although trustworthiness is part of our residual-

exception analysis, it is not the only part. Rather, as noted, trustworthiness is

only one of five requirements, “each of which must be met separately.” Skahill,

966 N.W.2d at 13. Trustworthiness alone does not satisfy the necessity

requirement. Id. (“Yet, trustworthiness should not be equated with necessity.”).

Finally, we acknowledge the plaintiff’s point that some states view device

manufacturer’s directions as admissible evidence of the standard of care. But

the cases cited by the plaintiff don’t confront the hearsay issues that face us

here. See Thone v. Reg’l W. Med. Ctr., 745 N.W.2d 898 (Neb. 2008) (no discussion 16

of hearsay); Mueller v. Mueller, 221 N.W.2d 39 (S.D. 1974) (same);1 Richardson v.

Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000) (same). And although the cases cited

by the plaintiff also collect a number of other cases, those collected cases

generally don’t discuss hearsay, either.2 See, e.g., Haught v. Maceluch, 681 F.2d

291 (5th Cir. 1982) (no relevant discussion of hearsay); Rodriguez v. Jackson,

574 P.2d 481 (Ariz. Ct. App. 1977) (same); Salgo v. Leland Stanford, Jr. Univ. Bd.

of Trs., 317 P.2d 170 (Cal. Ct. App. 1957) (same); Bowman v. Songer, 820 P.2d

1110 (Colo. 1991) (en banc) (same); Craft v. Peebles, 893 P.2d 138 (Haw. 1995)

(same); Ohligschlager v. Proctor Cmty. Hosp., 303 N.E.2d 392 (Ill. 1973) (same);

Terrebonne v. Floyd, 767 So. 2d 758 (La. Ct. App. 2000) (same); Nolan v. Dillon,

276 A.2d 36 (Md. 1971) (same); Mulder v. Parke Davis & Co., 181 N.W.2d 882

(Minn. 1970) (same); Bissett v. Renna, 710 A.2d 404 (N.H. 1998) (same);

1Mueller v. Mueller was decided in 1974, before South Dakota adopted codified rules of

evidence. Compare 221 N.W.2d 39, with 1979 S.D. Sess. Laws ch. 358 (originally codified at S.D. Codified Laws §§ 19-16-1 to -27 (1980), now codified at S.D. Codified Laws §§ 19-19-801 to -803 (2024)). Although Mueller mentions a common law prohibition on admitting “medical books or treatises . . . to prove the truth of statements therein contained,” it does not address any modern hearsay rules or any relevant exceptions within those rules. 221 N.W.2d at 42. 2There are exceptions. One of the collected cases, Spensieri v. Lasky, categorized a physician’s desk reference (PDR) as hearsay, and held that it could not, “by itself, establish the applicable standard of care for physicians who prescribe medications for their patients.” 723 N.E.2d 544, 545, 547–49 (N.Y. 1999). In another collected case, Garvey v. O’Donoghue, the court concluded that a PDR was not admissible for the truth of the matters asserted because it did not fit within the market reports exception. 530 A.2d 1141, 1145 (D.C. 1987). Even so, the court held that a PDR and a package insert were admissible for standard of care issues as well as physicians’ notice of those documents’ contents. Id. at 1146. It appears the court viewed these as nonhearsay uses. See id. Conversely, another collected case, Thompson v. Carter, held that a PDR was admissible because it met Mississippi’s version of the market reports exception. 518 So. 2d 609, 611–12 (Miss. 1987) (en banc). As we discuss in part IV.B.2 of this opinion, however, Iowa’s market reports exception is limited to compilations of objective factual material. It does not apply to evaluative conclusions, such as a manufacturer’s warnings. As we read the Thompson decision, Mississippi’s market reports exception is not similarly limited. See id. Finally, we mention Morlino v. Medical Center of Ocean County. 706 A.2d 721 (N.J. 1998). Although it does not appear that Morlino involved a hearsay objection, the court drew a comparison between PDRs and the treatises described in the learned treatise exception. Id. at 730. In the case before us, though, the learned treatise exception has not been raised. This makes sense because although that exception allows learned treatises to be “read into evidence,” they may not be “received as . . . exhibit[s].” Iowa R. Evid. 5.803(18). So that exception could not justify admission of the insert as an exhibit. 17

Grayson v. State, 838 P.2d 546 (Okla. Civ. App. 1992) (same); Ramon v. Farr, 770

P.2d 131 (Utah 1989) (same), overruled in part on other grounds by Miller v. Utah

Dep’t of Transp., 285 P.3d 1208 (Utah 2012). More importantly, none of these

cases address Iowa’s residual exception, its necessity requirement, or an

equivalent requirement in another state’s rules. So we do not find them especially

relevant here.

Because the plaintiff has not shown that the necessity requirement is

fulfilled, the plaintiff has not shown that the residual exception applies. The

district court erred in admitting the insert on this basis.

2. The market reports exception. The plaintiff argues that even if the

residual exception does not apply, we can still affirm the admission of the insert

on alternative grounds. Specifically, the plaintiff suggests that we should affirm

because the insert falls within the market reports exception. We disagree.

Iowa’s market reports exception appears in Iowa Rule of Evidence

5.803(17). It permits the admission of these kinds of hearsay: “Market

quotations, lists, directories, or other compilations that are generally relied on

by the public or by persons in particular occupations.” Id. The federal market

reports exception is worded identically. See Fed. R. Evid. 803(17). Some other

states also have identically worded exceptions. See, e.g., Fedij v. State, 186

N.E.3d 696, 701 (Ind. Ct. App. 2022) (discussing Indiana Evidence Rule 803(17));

Lee v. Holoubek, No. 06–15–00041–CV, 2016 WL 2609294, at *4–5 (Tex. App.

May 6, 2016) (discussing Texas Rule of Evidence 803(17)).

Consistent with its wording, the market reports exception applies to

documents that “recite established factual information” of the same sort as

“market quotations,” “lists,” and “directories.” Cisson, 810 F.3d at 924 (“The

narrower terms listed by the rule—‘market quotations, lists, directories’—are

items that recite established factual information.”). As one court put it, the 18

documents that fall within the exception are those that recite “relatively

straightforward objective facts.” White Indus., Inc. v. Cessna Aircraft Co., 611

F. Supp. 1049, 1069 (W.D. Mo. 1985). For instance, in State v. Heuser, we held

that the label on certain Energizer batteries could be admitted to prove the

objective fact that they were indeed “AA lithium batter[ies],” as the label

proclaimed, and that the labels on certain over-the-counter cold medication

could be admitted to prove the objective fact that the medication contained

“pseudoephedrine hydrochloride,” as the label proclaimed. 661 N.W.2d 157,

163–65 (Iowa 2003) (alteration in original); accord Reemer v. State, 835 N.E.2d

1005, 1008–09 (Ind. 2005) (citing Heuser and concluding that “labels of

commercially marketed drugs are properly admitted into evidence under the

exception provided by [Indiana] Evidence Rule 803(17) to prove the composition

of the drug” (emphasis added)). Similarly, other courts have held that the

exception allows admission of various compilations of objective facts such as

“price lists, stock market and futures market quotations (published in

newspapers of general circulation or specialty journals), . . . city and phone

directories, mortality tables, registers of such things as animals and ships, and

compilations of estimated value of commonly traded items like used cars, comic

books, postage stamps, and similar items.” 4 Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence § 8:101, Westlaw (4th ed. Aug. 2023 database

update) [hereinafter Mueller & Kirkpatrick, Federal Evidence] (footnotes omitted)

(collecting cases).

But the exception does not apply to statements that go beyond the

recitation of “relatively straightforward objective facts.” 2 Broun et al., McCormick

on Evidence § 321, at 587 (Robert P. Mosteller ed., 8th ed. 2020) [hereinafter

McCormick on Evidence]. The exception does not apply to documents that

“present evaluative conclusions.” 4 Mueller & Kirkpatrick, Federal Evidence § 19

8:101. The exception does not apply to conclusions reached through analysis.

See City of Huntington v. AmerisourceBergen Drug Corp., Nos. 3:17–01362, 3:17–

01665, 2021 WL 1382379, at *4 (S.D. W. Va. Apr. 12, 2021). The exception

applies to “compilations of data, not to narrative and potentially subjective

assessments.” Bianco v. Globus Med., Inc., No. 2:12–CV–00147, 2014 WL

119285, at *1 (E.D. Tex. Jan. 12, 2014) (collecting cases). The exception applies

to “readily verifiable information such as telephone directories, price lists and

the like,” not to “statements that correctly can be classified as directions,

opinions, suggestions, and recommendations.” Garvey v. O’Donoghue, 530 A.2d

1141, 1145 (D.C. 1987); accord Triple Crown Am., Inc. v. Biosynth AG, No. CIV.

A. 96–7476, 1999 WL 305342, at *2 (E.D. Pa. May 14, 1999) (“[The exception] is

limited to a published tabulation, compilation or collection of objective factual

data . . . .”); Go–Video, Inc. v. Matsushita Elec. Indus. Co. (In re Dual–Deck Video

Cassette Recorder Antitrust Litig. (No. MDL–765)), No. CIV 87–987 PHX, 1990 WL

126500, at *4 (D. Ariz. July 25, 1990) (“The type of publications contemplated

by Rule 803(17) are those which deal with compilations of objective facts not

requiring for their statement, a subjective analysis of other facts.”).

The Fourth Circuit’s opinion in Cisson v. C.R. Bard, Inc. provides a useful

example. 810 F.3d 913. A plaintiff suffered harm after being implanted with a

medical device developed and marketed by the defendant. Id. at 917–18. The

device included a material called polypropylene. Id. at 917. An expert testified

that the plaintiff was harmed when her body attacked the polypropylene. Id. at

918–19. The trial court admitted a material safety data sheet (MSDS) that had

been composed by the manufacturer of the polypropylene. Id. The MSDS

included the manufacturer’s “explicit warning that polypropylene should not be

used in short- or long-term human implantations.” Id. at 919. The trial court 20

ruled that although the MSDS was hearsay, it was admissible under the market

reports exception. Id. at 923.

The Fourth Circuit disagreed. The court noted that as a textual matter, the

exception is limited to “items that recite established factual information.” Id. at

924. And while an MSDS “might contain similarly factual information,” the

plaintiff had sought to use “a portion of the MSDS that was not factual but rather

operated as a warning and disclaimer of liability for the self-interested issuing

party.” Id. That warning “was an opinion” that the manufacturer “issued within

the MSDS for self-interested reasons”—such as avoiding liability—“and it

therefore bears no resemblance to the factual, list-type documents enumerated

in Rule 803(17).” Id.

The same is true of the vacuum insert here. While the insert contains some

established factual information, that is not why it was admitted. Rather, the

insert was admitted for the warnings included in the insert by the vacuum’s

manufacturer—the “contraindications” and “adverse events.” Like the warnings

in an MSDS, those warnings in the insert are based on the manufacturer’s

evaluation process which—naturally—may include its desire to avoid liability.

See Arnold, 2006 WL 1410161, at *4 (“[T]he manufacturer has its own reasons

for the information contained in the package inserts.”); see also Francisco v.

Affiliated Urologists, Ltd., 553 P.3d 867, 875–76 (Ariz. 2024) (noting various

limitations with respect to package inserts, including that manufacturers write

them to attempt to limit liability, that language in inserts is not intended to

preclude physicians from using their best judgment in patient care, and that the

language is written for the medical profession, not laypeople).

In any event, those warnings aren’t the sort of “relatively straightforward

objective facts” that would fall within the exception. 2 McCormick on Evidence

§ 321, at 587; accord Garvey, 530 A.2d at 1145 (holding that pages of a PDR 21

were not admissible under Federal Rule of Evidence 803(17) because, although

the PDR includes factual statements, “interwoven among its factual statements

are statements that correctly can be classified as directions, opinions,

suggestions, and recommendations”). Contra Thompson v. Carter, 518 So. 2d

609, 611–12 (Miss. 1987) (en banc); Daniels v. Northcoast Anesthesia Providers,

Inc., 120 N.E.3d 52, 60 (Ohio Ct. App. 2018) (en banc) (concluding PDR was

admissible under Ohio’s version of Rule 803(17) but conceding that “[s]everal

courts have refused to admit the PDR and similar materials into evidence under”

similar rules and citing Garvey, 530 A.2d 1141, Kahanek v. Rogers, 12 S.W.3d

501, 504 (Tex. App. 1999), and In re Richardson–Merrell, 624 F. Supp. at 1232).

C. Prejudice. Because the insert contains hearsay, and because no

exception applies, we must conclude that its admission was erroneous. The next

question is whether its erroneous admission was prejudicial. If so, we must grant

a new trial. See, e.g., State v. Jackson, 4 N.W.3d 298, 312–13 (Iowa 2024);

Hawkins v. Grinnell Reg’l Med. Ctr., 929 N.W.2d 261, 265–67 (Iowa 2019).

Importantly, our precedents hold that when hearsay is improperly

admitted, we must presume that the error was prejudicial. See Hawkins, 929

N.W.2d at 266. This presumption can be overcome if “the contrary is affirmatively

established.” Id. (quoting State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984) (en

banc)). “The contrary is affirmatively established if the record shows the hearsay

evidence did not affect the jury’s finding[s in its verdict].” Id. (alteration in

original) (quoting State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011)).

The plaintiff argues that the presumption is overcome for three related

reasons: (1) the insert was merely cumulative, (2) the insert was effectively

irrelevant, and (3) the plaintiff’s evidence was overwhelming. We address each

contention in turn. We also address the clinic’s arguments that—even placing 22

aside the presumption of prejudice—the record affirmatively establishes that the

erroneous admission was prejudicial.

1. Cumulative evidence. We begin with the plaintiff’s contention that the

insert is merely cumulative of testimony provided by experts. As the plaintiff

notes, there was testimony that sequential use of a vacuum extractor and forceps

increases risk to the child. As support for this view, experts quoted or

paraphrased certain published medical sources: a practice bulletin from the

American College of Obstetrics and Gynecology, a study in the New England

Journal of Medicine, and articles in the American Journal of Obstetrics and

Gynecology and the European Journal of Obstetrics and Gynecology. “With the

introduction of these medical journals,” the plaintiff argues, “it is hard to see

how the [clinic] was prejudiced by the introduction of the package-insert

warning.”

We disagree. To begin with, the content of this journal testimony was not

the same as the insert’s content. The journal testimony merely told the jury that

the sequential use of forceps and a vacuum created increased risks. But the

journal testimony did not convey to the jury that there was any absolute

prohibition against sequential use. Conversely, the insert did convey an absolute

prohibition. The insert said “[d]o not” use the vacuum if there has been a prior

failed forceps attempt. The plaintiff emphasized this point in closing argument.

Moreover, no medical journals were introduced in the same way that the

insert was. The journals were only discussed. No journal was admitted into

evidence as a physical exhibit. No journal went back with the jury. The insert,

however, was admitted as a physical exhibit. It actually went back to the jury

room with the jury—another point that the plaintiff emphasized in closing

argument. So the insert was a qualitatively different—and, arguably, a more

powerful—kind of evidence. Cf. Skahill, 966 N.W.2d at 16 (“Forensic interviews 23

can be different from and, sometimes, more powerful than trial testimony.”). And

so, even if the content of the journal testimony had matched the insert’s content,

we would still hesitate to conclude that the insert’s admission made no

difference.

2. Irrelevance. Next the plaintiff raises two kinds of relevance arguments.

First, the plaintiff suggests that because Dr. Goodman claims she did not

actually “use the forceps because they did not lock,” there was no “failed forceps

attempt,” and so “the literal terms of the package-insert warning did not apply.”

Therefore, the plaintiff implies, the insert was irrelevant to the jury’s

deliberations.

We disagree. The plaintiff offered extensive argument and evidence that

Dr. Goodman attempted to use the forceps twice. Indeed, according to the

plaintiff, one of those attempts fractured S.K.’s skull. But neither forceps attempt

resulted in S.K.’s delivery. A jury could surely infer that—in the words of the

insert—there had indeed been a “[f]ailed vacuum or forceps attempt.” And so the

jury could infer that the insert’s prohibition was directly relevant.

The plaintiff also suggests that the jury’s large award of damages for

lifelong attendant care is a signal that the jury believed S.K. suffered severe

cognitive damages from HIE “before Dr. Goodman even reached for the vacuum

or the forceps.” It follows, the plaintiff says, that the vacuum simply wasn’t

relevant.

We cannot agree. The verdict form did not separate damages caused by

HIE from damages caused by traumatic injury, i.e., the kind of injury allegedly

caused by the vacuum.

The plaintiff’s evidence did not separate them either. Although the plaintiff

admitted detailed calculations of S.K.’s future medical expenses and lost income, 24

neither calculation shows what damages were caused by HIE and what damages

were caused by traumatic injury.

Nor does the plaintiff’s medical evidence help us to draw clear lines.

Consider the testimony of Dr. Gabriel, the plaintiff’s pediatric neurologist expert.

Dr. Gabriel testified that although HIE was a very important cause of S.K.’s

anticipated cognitive disabilities, the “great deal of hemorrhaging and

mechanical trauma” that S.K.’s brain experienced “is also a contributory factor

to [S.K.’s] significant delay in intelligence” and “his behavior.” “So it’s not possible

to discern completely between the mechanical trauma and the ischemia in this

regard.” And, as explained, the vacuum was among the alleged causes of S.K.’s

traumatic brain injury. So we cannot say that the vacuum played no role in the

jury’s damage award.

3. Overwhelming evidence. The plaintiff also points to cases in which we

have found that hearsay wasn’t prejudicial because other evidence was

“overwhelming.” The plaintiff says that this principle applies because “the

evidence that S.K. suffered HIE was overwhelming.”

We disagree for two reasons. First, our “overwhelming evidence” rule

means that the presumption of prejudice can be overcome by a showing that

“there was overwhelming evidence on the issue for which the hearsay was

introduced, making the prejudicial impact of the hearsay evidence insignificant.”

Hawkins, 929 N.W.2d at 266–67. But the hearsay at issue here—the vacuum

insert—wasn’t introduced to show that S.K. suffered HIE. Rather, it was

introduced to show that he suffered traumatic injury via the vacuum.

Second, and in any event, while the plaintiff’s case was strong, we cannot

say that the plaintiff’s HIE evidence was overwhelming. As mentioned, the whole

trial was a battle of experts—and the defendants’ experts certainly battled

against the plaintiff’s HIE theories. Dr. Friedrich “completely disagree[d]” with 25

the plaintiff’s assertion that S.K. “experienced intrapartum hypoxia or oxygen

deprivation during labor leading to HIE.” And Dr. Epstein testified that S.K. “did

not” experience HIE “during the labor and delivery process,” as did Dr. Boyle.

Similarly, Dr. Meyer testified that S.K.’s injury was “traumatic” and there “was

no evidence of any hypoxic ischemic brain injury.”

4. Additional concerns. For the reasons just explained, we conclude that

the plaintiff has not rebutted the presumption of prejudice. Even if there were

no presumption, though, we would still conclude that admission of the insert

was prejudicial. Here are four reasons why.

First, as explained, this trial involved a strenuous contest about whether

the vacuum should have been used and whether it caused harm to S.K. The

insert was directly relevant to those questions. And “[w]hen inadmissible hearsay

evidence directly addresses a hotly contested central dispute of the parties, it is

harder for us to find the evidence nonprejudicial.” Skahill, 966 N.W.2d at 16

(quoting Hawkins, 929 N.W.2d at 267).

Second, we agree with the clinic that the origin of the insert is significant.

The insert was written by the manufacturer of the vacuum. Admission of the

insert allowed the plaintiff to suggest that the manufacturer—a presumably

neutral party—would not have approved of Dr. Goodman’s use of the vacuum.

This could well have led the jury to give substantial weight to the insert. See

Mark Herrmann & Pearson Bownas, Keeping the Label Out of the Case, 103

Nw. U. L. Rev. Colloquy 477, 487–88 (2009) (“[P]ublic misconception and distrust

about off-label use is common and deep-seated.”).

Third, although the record did not establish that the FDA actually

approved the insert, the jury heard suggestions—both in the plaintiff’s opening

statement and through comments by the plaintiff’s experts—that the FDA had

blessed the insert in some fashion. And courts have long recognized the danger 26

that juries will be unfairly influenced by findings of “purportedly unbiased”

agencies, like the FDA, who are “cloaked” with a presumption of “governmental

objectivity and expertise.” State v. Huston, 825 N.W.2d 531, 537–38 (Iowa 2013)

(quoting EMK, Inc. v. Fed. Pac. Elec. Co., 677 F. Supp. 2d 334, 338 (D. Me. 2010));

accord Gehl v. Soo Line R.R., 967 F.2d 1204, 1207–208 (8th Cir. 1992); Vaughan

v. Must, Inc., 542 N.W.2d 533, 542 (Iowa 1996).

Finally, closing arguments often help us decide whether evidence was

prejudicial. See, e.g., Skahill, 966 N.W.2d at 17. In the closing argument here,

the plaintiff put substantial emphasis on the insert, its presence among the

physical exhibits (“Read it.”), its categorical prohibitions (“Don’t do it.”), and the

adverse events that the vacuum might cause. Here’s an excerpt from the

plaintiff’s closing argument:

The vacuum [insert] that says don’t use it if there’s a failed forceps delivery. Why? Because you may have injured the baby’s skull and you will pull the blood into the brain and you will kill brain cells and you will cause a subgaleal hemorrhage, you’ll cause a subdural hemorrhage, you’ll cause -- let’s look at the hemorrhages.

Subarachnoid hemorrhage. Fracture of the parietal bone. Let me see some more hemorrhages here. Subgaleal hemorrhage. Subarachnoid hemorrhage. Facial nerve palsy. You got them all. They -- they literally, literally, in terms of the Mityvac -- where’s the Mityvac?

Read it. Go back in the jury room. He has every hemorrhage they warn about. Do not initiate the vacuum. These words are pretty clear. You don’t have to be a doctor to know what they say, you can be a nurse. Failed vacuum or forceps attempt, don’t do it. Don’t do it. Don’t do it. If you do it, here’s what will happen and that’s what happened.

Given these comments, as well as the other circumstances we’ve

discussed, we cannot say that the vacuum insert had no impact on the verdict.

V. Disposition.

The court unanimously concludes that the clinic’s motion to reverse

should be denied. The court is divided on its reasoning for this denial. Four 27

members of the court conclude that the clinic’s motion should be denied based

on waiver through litigation conduct. Their reasoning is explained in Justice

Waterman’s concurring opinion, which is joined by Chief Justice Christensen

and Justices McDonald and McDermott. Two members of the court, Justices

Mansfield and May, conclude that the clinic’s motion should be denied on error

preservation grounds without reaching the issue of waiver, as explained in part

III of this opinion.

As to the merits, the court unanimously agrees that a new trial is required

for the reasons explained in part IV of this opinion. We reverse and remand on

that basis.

Reversed and Remanded.

All justices concur except Oxley, J., who takes no part. Christensen, C.J.,

files a concurring opinion, in which Waterman, J., joins. Waterman, J., files a

concurring opinion, in which Christensen, C.J., and McDonald and McDermott,

JJ., join. 28

#22–1317, S.K. v. OB–GYN Associates Christensen, Chief Justice (concurring).

I join the majority decision in full but write separately to address the

misconduct committed by the plaintiff’s counsel, Geoffrey Fieger, throughout

trial, which prompted at least seven motions for a mistrial. Although the district

court did not pronounce a mistrial based on Fieger’s actions, his conduct was

both uncivil and disrespectful to his opposing counsel and the presiding judge.

Attorneys should treat opposing counsel and judges with basic decency while

operating within the Iowa Rules of Professional Conduct. Fieger failed to

accomplish either of these things during trial.

I. Fieger’s Behavior.

Though the record is replete with examples, I will focus on what I consider

to be the most egregious instances from closing argument only. I do so not to

examine the merits of whether the district court should have granted the motions

for mistrial but to denounce this type of behavior. As I have stressed before,

attorneys who engage in uncivil and unprofessional behavior lower the bar for

our profession. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 953 N.W.2d

156, 173–74 (Iowa 2021) (Christensen, C.J., concurring specially). That’s what

happened here.

In this case, the district court properly instructed the jury to reach a

verdict based only on the evidence presented during trial, the law reflected in the

jury instructions, and the jury’s reason and common sense. The jurors were also

instructed to not allow personal sympathy, bias, prejudice, or emotion to

influence their decision-making.

A proper closing argument will aid a jury in fulfilling these duties. “The

single purpose of closing argument is to assist the jury in analyzing, evaluating

and applying the evidence.” State v. Melk, 543 N.W.2d 297, 301 (Iowa Ct. App. 29

1995). Closing arguments should focus on the law in the provided instructions,

properly admitted evidence, and “permissible inferences which may reasonably

flow from the record.” State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975). Improper

statements during closing argument may encourage the jury to stray from its

task and “look beyond the facts and law to resolve the case.” Kinseth v. Weil-

McLain, 913 N.W.2d 55, 73 (Iowa 2018). Fieger’s misconduct during closing

argument may have encouraged the jury to do just that.

A. Improper Vouching for Evidence. Fieger improperly vouched for

evidence throughout his closing argument. In general, “[c]ounsel has no right to

create evidence by his or her arguments, nor may counsel interject personal

beliefs into argument.” Rosenberger Enters., Inc. v. Ins. Serv. of Iowa, 541 N.W.2d

904, 908 (Iowa Ct. App. 1995). “[C]ounsel may not during closing argument

vouch for a witness’s credibility based on personal belief, counsel’s experience in

similar cases, or any other ground outside the evidence at trial.” Buboltz v.

Birusingh, 962 N.W.2d 747, 759 (Iowa 2021) (citing State v. Williams, 334 N.W.2d

742, 744 (Iowa 1983)). Our Rules of Professional Conduct make this clear:

A lawyer shall not:

....

. . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused . . . .

Iowa R. of Prof’l Conduct 32:3.4(e). In comparison, an attorney may “argue the

reasonable inferences and conclusions to be drawn from the evidence.” State v.

Graves, 668 N.W.2d 860, 874 (Iowa 2003) (citing Phillips, 226 N.W.2d at 19).

Fieger committed several instances of misconduct during closing

argument that broke this basic rule: 30

• “And I can guarantee there’s an absolute requirement that the records have to be truthful, and the records are.”

• “And now, despite an avalanche of facts and proof -- and this is all I do. And I don’t know how many more years I got in me. I’ve been doing this for nearly half a century. I’m in my seventh decade of life. But I think that -- I have not personally seen every case in the world, but this is certainly an interesting case in which the facts seem so unequivocal, so unanimous, the record is so voluminous.”

• “[Dr. Goodman] just stood up here two minutes ago and said the heart rate was always fine. They’ll say anything. They’ll literally come up here, they’ve got a script . . . .”

Our court of appeals correctly held that similar improper vouching by

counsel during closing argument required a new trial in Bronner v. Reicks Farms,

Inc., No. 17–0137, 2018 WL 2731618, at *1–2, *8 (Iowa Ct. App. June 6, 2018).

When counsel engages in this kind of conduct during closing argument, it once

again taints the jury’s ability to do its job. In spite of Fieger’s blatant attempt to

do so, the jury cannot consider his personal opinions about the evidence or his

past experience as an attorney when making its decision. The presentation of

this information as evidence may distract the jury from the evidence and facts

they should be considering. It is also unfair to opposing counsel, who rightfully

did not make these arguments, as the jurors may believe opposing counsel lacks

the same experience or belief in the evidence.

B. Disparaging the Defense. Fieger made several remarks throughout his

closing argument that disparaged the defense and their arguments. “It is not the

function of closing argument ‘to debase, degrade or impugn the veracity of a

litigant’ or opposing counsel. Our system instead proceeds on the premise that

counsel generally should focus on the merits of the case at hand, and that they

can disagree about those merits without being disagreeable.” See Whittenburg v.

Werner Enters. Inc., 561 F.3d 1122, 1130 (10th Cir. 2009) (citation omitted). For 31

example, we have held that a defense counsel’s argument should not be referred

to as a “smoke screen.” Graves, 668 N.W.2d at 879.

Fieger made several comments during closing argument that disparaged

the defense’s remarks and insinuated that the arguments made were completely

unfounded:

• “I told you the evidence that you heard and I kept my promise. And I kept my promise. And on the other side I got the most fantastical story that anybody could ever hear that in real life not one single doctor or hospital accepts as true.”

• “By coming up with such preposterous defenses. It reveals, really, the total lack of a defense in this case, and the total lack -- an admission, really, of how bad it really is.”

• “Now in real life, in real life here, here in this -- [S.K.’s] case, no one in real life, in realtime who has ever seen [S.K.] in life has ever accepted this nonsensical defense that’s been offered in this case.”

• “I don’t like to give it lip service because when you start repeating a falsehood enough times, some people start to believe it. It’s a method of propaganda, by the way.”

• “And if you believe that, then I’ve got a bridge to sell you in Brooklyn.”

Again, our court of appeals correctly concluded that similar remarks

during closing argument disparaging defense counsel and witnesses warranted

a new trial in Bronner, 2018 WL 2731618, at *1–2, *8. The examples above are

just a sample of the disparaging remarks Fieger made about the defense’s case.

He routinely offered his personal opinions on the defense’s arguments and

mocked the idea that a jury could possibly find the defense truthful. This kind

of rhetoric paints attorneys in a poor light. Attorneys may be zealous advocates

while at the same time being respectful of the other side. Fieger’s statements in

his closing argument undermined the role of the defense in this trial and

disrespected the counsel making the arguments. 32

C. Punishment Arguments. Lastly, perhaps the most egregious conduct

occurred during closing argument when Fieger also improperly encouraged the

jury to punish the defendants for failing to take responsibility for S.K.’s injuries.

This court has held: “It is facially improper to suggest that a jury use a

compensatory damages award, which is designed to recompense the plaintiff for

actual harms suffered, to punish the defendant.” Kinseth, 913 N.W.2d at 71. A

closing argument should not be used to argue that the defendant “has chosen to

spend exorbitant sums of money defending . . . actions instead of compensating

innocent victims, and this case is an opportunity to tell them what you, the jury,

think of that choice.” Id. at 73.

“[T]he right to present a defense is materially identical to the right to

pursue a lawsuit . . . .” See Whittenburg, 561 F.3d at 1129–30. “To imply or argue

that the mere act of defending oneself . . . is reprehensible serves no proper

purpose, and for time out of mind it has been the basis for appellate courts

ordering new trials.” Id. at 1130 (citing N.Y. Cent. R. v. Johnson, 279 U.S. 310,

318 (1929) (“Such a bitter and passionate attack on petitioner’s conduct of the

case, under circumstances tending to stir the resentment and arouse the

prejudice of the jury, should have been promptly suppressed.”)). Once again,

these arguments improperly invite jurors to make decisions based on their biases

or feelings, not the laws and facts.

Fieger engaged in several instances of misconduct during closing

argument that violated this rule as well:

• “And I don’t get to come up here anymore and I’m going to give his case to you and it’s got to stop. This has got to stop now, what they’ve done, what they’ve put this family through for three and a half years by saying that black is white, up is down, day is night, all the doctors are wrong. It’s time to take -- just responsibility. It’s not so bad. Just take responsibility. They didn’t. Now take responsibility.” 33

• “And the only reason for that is if -- because if it is what they say, it’s absolute negligence. It’s indefensible. So they came up in a court of law in America in Iowa City in the year 2022, in March, with a fantastical explanation for the indefensible actions that they did.”

• “And it’s because the dollar is more important than admitting mistakes, admitting a violation of the standard of care, and doing what’s right and taking responsibility for what you’ve done.”

• “Dr. Goodman sat in this courtroom for three and a half weeks, but she, my estimation of the facts in this case, didn’t have time to do what was correct under the standard of care . . . . But she’s got all sorts of time to sit in here, because the only thing we’re doing here is money. Money.”

These statements encourage the jury to act outside their proscribed duties

and punish the defendant. That is not at all the role of a juror. The role of a juror

is to consider the law and facts of the case and, if applicable, award damages

when a party has been legally harmed. A defendant is absolutely entitled to

present a defense and aid the jury in reaching its decision. Fieger overstepped

the bounds of a zealous advocate and asked the jurors to punish the defendant.

II. Conclusion.

Fieger’s conduct throughout trial was unacceptable. He was admonished

repeatedly by the judge for his statements. In spite of those admonishments and

a long history of similar conduct in other states,3 he continued to violate basic

rules of professionalism and civility. His apologies ring hollow when he made no

adjustments to his outlandish behavior.

3Fieger has a long history of misconduct. His home state’s supreme court reversed a $21 million verdict based on his conduct and concluded, “Overreaching, prejudice-baiting rhetoric appears to be a calculated, routine feature of [Fieger’s] trial strategy.” Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 406 (Mich. 2004) (reversing judgment on a jury verdict based on Fieger’s misconduct and collecting examples of his misconduct in other cases). The Ohio Supreme Court affirmed an order vacating a $30 million verdict in a medical malpractice trial based on Fieger’s misconduct. Harris v. Mt. Sinai Med. Ctr., 876 N.E.2d 1201, 1207–08 (Ohio 2007). Fieger’s admission pro hac vice has been revoked in several jurisdictions based on his pattern of misconduct and disciplinary history. See Davis v. Marcotte, 951 N.E.2d 117, 121–24 (Ohio Ct. App. 2011) (affirming revocation and collecting cases). 34

As I have noted, incivility and disrespect have damaging consequences for

the attorney’s reputation and the reputation of our court system. See Rhinehart,

953 N.W.2d at 173–74 (Christensen, C.J., concurring specially). It can also be

costly, which is evident here based on the time and resources the parties have

spent to litigate Fieger’s conduct through numerous motions for mistrial in the

district court and now on appeal, all the while risking a new trial and

jeopardizing a substantial jury award for his own client. Fieger should consider

himself lucky that our court need not reach a determination regarding his

conduct because we are reversing this case on other grounds.

I’ve said it before and I will say it again: Our court should not be forced

into the role of “ ‘kindergarten cop’ and [referee] a dispute between attorneys

caused by one who either never learned or has forgotten the basic good manners

others learned before first grade.” Id. at 172 (quoting Saldana v. Kmart Corp., 84

F. Supp. 2d 629, 640 (D.V.I. 1999), aff’d in part, rev’d in part, 260 F.3d 228 (3d

Cir. 2001)). This case should serve as a reminder to attorneys that their “conduct

should be characterized at all times by personal courtesy and professional

integrity in the fullest sense of those terms.” Iowa Ct. R. 33.1(1).

Waterman, J., joins this concurrence. 35

#22–1317, S.K. v. OB–GYN Associates Waterman, Justice (concurring).

I join the court’s opinion in full. I write separately to address an issue

certain to arise on remand: the clinic’s renewed effort to dismiss this case with

prejudice under Iowa Code section 147.140(6) (2018) based on S.K.’s expert’s

unsworn signature on certificate of merit affidavits served over four and a half

years ago. As our court explains above, the clinic never raised this issue in

district court and for that reason, failed to preserve error for this appeal. Our

court therefore denied the clinic’s appellate motion to reverse the judgment

without reaching the merits of the section 147.140(6) issue. Because the clinic

has made clear it will seek dismissal under that statute on remand, we should

resolve the issue now. See Jones v. Glenwood Golf Corp., 956 N.W.2d 138, 143

(Iowa 2021) (explaining why the court elected to decide an unpreserved,

potentially dispositive issue that was certain to arise on remand).

In my view, the clinic 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. See, e.g., LaLonde v.

Gosnell, 593 S.W.3d 212, 218–29 (Tex. 2019) (holding litigation conduct waived

rights under a certificate of merit statute); Mod. Piping, Inc. v. Blackhawk

Automatic Sprinklers, Inc., 581 N.W.2d 616, 620–22 (Iowa 1998) (holding

litigation conduct waived arbitration rights under Iowa Code section 679A.2),

overruled on other grounds by Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc.,

594 N.W.2d 22 (Iowa 1999). Our court does not decide today the precise point at

which a motion challenging a certificate of merit affidavit becomes untimely, but

we have no trouble saying that it is too late once the district court issues its final

judgment. 36

Iowa Code section 147.140(1)(a) requires the plaintiff to serve a certificate

of merit affidavit “within sixty days of the defendant’s answer.” In Miller v.

Catholic Health Initiatives-Iowa, Corp., we applied the plain language of the

statute to hold that the expert’s unsworn signature on the certificate of merit

affidavit did not substantially comply with Iowa Code section 147.140, which

unambiguously requires the expert to sign “under oath.” 7 N.W.3d 367, 374–75

(Iowa 2024). The purpose of the statute is to “enable[] healthcare providers to

quickly dismiss professional negligence claims that are not supported by the

requisite expert testimony.” Id. at 374 (emphasis added) (quoting Struck v. Mercy

Health Servs.-Iowa Corp., 973 N.W.2d 533, 541 (Iowa 2022)). “Early disposition

of potential nuisance[] cases, and those which must ultimately be dismissed for

lack of expert testimony, would presumably have a positive impact on the cost

and availability of medical services.” Struck, 973 N.W.2d at 541 (alteration in

original) (quoting Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993)

(en banc)). That cost-avoidance purpose is thwarted when the defendant

healthcare clinic waits until after the jury trial to challenge an unsworn

signature.

Iowa Code section 147.140(6) allows dismissal only “upon motion” and is

neither jurisdictional nor self-executing. The timeline in this case shows the

clinic waited far too long to file a motion under section 147.140(6):

• July 1, 2017. Iowa Code section 147.140 became effective. See 2017 Iowa Acts ch. 107, § 5.

• August 11, 2018. S.K. was injured at birth allegedly due to the negligence of Dr. Goodman.

• November 22, 2019. This medical malpractice action was filed with three unsworn certificate of merit affidavits signed by Dr. Brickner.

• December 18, 2019. The clinic and Dr. Goodman filed their answer. 37

• February 17, 2020. The sixty-day deadline for a sworn certificate of merit affidavit expired without an agreed extension or order allowing additional time. The clinic did not file a motion under Iowa Code section 147.140(6) or otherwise challenge the unsworn signatures.

• August 11, 2020. Iowa Code section 614.1(9)(a)’s two-year statute of limitations expired for claims by S.K.’s parents brought under Iowa Rule of Civil Procedure 1.206.4

• December 31, 2021. The dispositive motion deadline expired without any motion by the clinic under Iowa Code section 147.140(6) for dismissal with prejudice.

• March 2022. The case was tried to a jury for three weeks, with S.K.’s experts testifying under oath that Dr. Goodman breached the standard of care. The clinic never raised the certificate of merit affidavit issue before, during, or after trial.

• August 5, 2022. The clinic appealed after the district court denied the final posttrial motion.

• May 2023. The clinic filed its final briefs without raising the certificate of merit affidavit issue.

• July 31, 2024. The clinic filed a motion to reverse the judgment, raising for the first time its argument that it is entitled to dismissal with prejudice under Iowa Code section 147.140(6) because S.K. did not serve a sworn certificate of merit affidavit by the statutory deadline of February 17, 2020.

The clinic argues it is entitled to summary reversal under Miller as a

controlling and “indistinguishable recently published decision” of our court. See

Iowa R. App. P. 6.1006(3). Miller, however, is easily distinguished from this case.

In Miller, the defendants filed dispositive motions within three months of the

deadline for the certificate of merit affidavits that were not signed under oath or

penalty of perjury. See 7 N.W.3d at 371; see also Shontz v. Mercy Med.

Ctr.-Clinton, Inc., No. 23–0719, 2024 WL 2868931, at *1–2 (Iowa June 7, 2024)

(per curiam) (applying Miller and remanding for dismissal when defendants filed

4The conservator’s claims on behalf of the minor S.K. could have been filed as late as his

tenth birthday, August 11, 2028. See Iowa Code § 614.1(9)(b). 38

their dispositive motion under section 147.140(6) within thirty days after

plaintiffs served unsworn certificate of merit affidavits). By contrast, here the

clinic waited over four years and well after trial to challenge the unsworn

signatures. Miller did not change the law on this issue. No Iowa appellate decision

had previously held an expert’s certificate of merit neither sworn nor signed

under penalty of perjury substantially complied with the oath and affidavit

requirements of section 147.140.5 Nor had any Iowa appellate court allowed a

medical defendant to raise the issue for the first time after trial or after the

pretrial dispositive motion deadline.

The clinic could have filed its motion for dismissal with prejudice under

Iowa Code section 147.140(6) challenging the unsworn certificate of merit

affidavits in February of 2020 but waited over four years to raise the issue.

During those years, the parties incurred significant litigation expenses, tried the

case to verdict, and fully briefed all the other issues for the appeal. Under the

reasoning of LaLonde v. Gosnell and Modern Piping, Inc. v. Blackhawk Automatic

Sprinklers, Inc., the clinic waived any challenge to the unsworn certificate of merit

affidavits.

5Miller simply enforced the statutory requirement that had been in effect since section 147.140’s enactment in 2017. See 7 N.W.3d at 375 (“We are not at liberty to eliminate the requirement that the expert sign the certificate of merit under oath when the governing statute uses the term ‘affidavit’ six times. A contrary holding would undermine many Iowa statutes requiring sworn statements or verifications.”). Prior to Miller, we noted section 147.140 “unambiguously requires that the expert witness personally sign the certificate of merit under oath within sixty days of the defendants’ answer.” Est. of Fahrmann v. ABCM Corp., 999 N.W.2d 283, 287–88 (Iowa 2023) (holding counsel’s signature on initial disclosures identifying the expert did not substantially comply with section 147.140). In Jorgensen v. Smith, we reiterated that the certificate of merit affidavit “must be signed under oath by an expert witness.” 2 N.W.3d 868, 872 (Iowa 2024). In Jorgensen, the defendants challenged only the lack of any certificate of merit affidavit addressing the negligent retention claim against the physician’s employer, see id., and our holding addressed only that narrow issue, see id. at 877 (“[S]ection 147.140 does not apply to the Jorgensens’ negligent retention claim”). The defendants’ interlocutory appeal in Jorgensen did not challenge the sufficiency of the certificate of merit affidavit signed by the plaintiffs’ expert supporting the malpractice claims against the physician himself. The statement in the opinion that this “affidavit was signed under oath” was unnecessary to our holding and was dictum. See id. at 872. 39

In LaLonde, homeowners hired engineers to evaluate and stabilize their

home’s foundation and alleged that the work of the engineers “exacerbated the

foundation problems, causing significant damage to their home.” 593 S.W.3d

at 216–17. A Texas statute “requires that a sworn ‘certificate of merit’ accompany

any lawsuit complaining about a licensed professional engineer’s services.” Id.

at 216. “Failure to contemporaneously file an affidavit from a similarly licensed

professional attesting to the lawsuit’s merits requires dismissal of the suit.” Id.

The purpose of the statute is to help “ensure frivolous claims are expeditiously

discharged.” Id. The plaintiffs failed to file a certificate of merit, but the

defendants waited over three years to raise the issue shortly before trial, after

discovery and a failed mediation. Id. at 217. The trial court dismissed the action,

but the court of appeals reversed, holding that the engineer defendants waived

the certificate of merit requirement. Id. The Texas Supreme Court, applying a

totality-of-the-circumstances test, held that waiver was established:

No certificate of merit has ever been filed in this lawsuit, as required, but the defendant engineers did not seek dismissal until the eve of trial—1,219 days after suit was filed, nearly two years after the engineers answered, and long after the limitations periods had expired on the plaintiffs’ claims. In the interim, the engineers participated in discovery until all discovery deadlines had expired, filed motions seeking to shift responsibility to third parties, and— rather than invoking the absolute statutory right to dismissal— chose to participate in alternative methods for terminating the lawsuit. As we affirmed in Crosstex Energy Services, L.P. v. Pro Plus, Inc., [430 S.W.3d 384, 386, 393–95 (Tex. 2014)], a defendant can waive Chapter 150’s certificate-of-merit requirement by litigating inconsistently with claiming the right to dismissal. Considering the totality of the circumstances, we agree with the court of appeals that the defendant engineers’ engagement of the judicial process implies they intended to waive the statute’s requirements.

Id. at 216 (footnote omitted).

The LaLonde court pointedly observed, “By enabling defendants to quickly

jettison meritless lawsuits, the certificate-of-merit requirement saves parties the 40

expense of protracted litigation.” Id. at 220. And in applying its waiver analysis,

the court recognized that “when defendants have so engaged the judicial process

that a certificate of merit ceases to serve its intended function, the requirement

of its filing is waived.” Id. at 229. The same conclusion is inescapable here. The

objective of Iowa’s certificate of merit statute—early dismissal and resulting cost

avoidance—is thwarted when the defendant waits until close to or after trial to

seek dismissal.

The Texas statute has no deadline for filing a motion to dismiss. Id. at 220–

21. The LaLonde court nevertheless held that the absence of a statutory deadline

does not preclude an implied waiver by conduct. Id. at 221 (“Our precedents

affirm that the absence of a deadline for asserting a right . . . does not preclude

implied waiver by conduct inconsistent with claiming the right.”). The clinic

argues that the absence of a deadline in Iowa Code section 147.140(6) precludes

a finding of waiver by litigation conduct. The clinic’s no-deadline argument fails

under LaLonde.

LaLonde aligns with Iowa precedent holding that parties can waive a right

to arbitration under Iowa Code section 679A.2. See Mod. Piping, 581 N.W.2d at

619–20. In Modern Piping, we held that the defendant in that case waived its

right to arbitrate a contract dispute by litigating in district court for eighteen

months before moving to compel arbitration five days before trial. Id. at 621–22.

Like the LaLonde court, we held that the defendant waived its right to arbitration

despite the absence of any deadline in the arbitration statute. See id. at 619–22

(quoting Iowa Code section 679A.2). We concluded, “Conduct which allows an

action to proceed to a point where the purpose of arbitration—to obtain a speedy,

inexpensive and final resolution of disputes—is frustrated is conduct that estops

a party from claiming a right to a stay of the proceedings and referral for

contractual arbitration.” Id. at 621–22 (quoting Meyer v. Classified Ins. of Wis., 41

507 N.W.2d 149, 155 (Wis. Ct. App. 1993)). Similarly, the clinic’s multi-year

delay in asserting its rights under Iowa Code section 147.140 defeated the cost-

saving goal of that statute.

Whether a party has waived its statutory right by its inconsistent litigation

conduct can be a question of law “for the court to decide.” Mod. Piping, 581

N.W.2d at 620 (quoting Tjeerdsma v. Glob. Steel Bldgs., Inc., 466 N.W.2d 643,

645 (S.D. 1991)). On this record, the clinic through its prolonged litigation

conduct waived its right to dismissal under Iowa Code section 147.140(6) as a

matter of law.

The clinic relies in part on a nonwaiver holding in McHugh v. Smith, 966

N.W.2d 285, 291 (Iowa Ct. App. 2021). That case is easily distinguished. In

McHugh, the plaintiff missed the deadline to serve a certificate of merit affidavit

and the defendants, within several months, filed a motion to dismiss under

section 147.140(6). Id. at 287. The plaintiff resisted, arguing that the defendants

had “constructively waived” the requirement by serving written discovery and

granting a one-month extension for discovery responses. Id. at 291. The court of

appeals correctly rejected the waiver argument and affirmed the district court’s

dismissal under section 147.140(6). Id. Unlike the defendants in McHugh, the

clinic litigated S.K.’s case through trial and appellate briefing before filing a

motion under section 147.140(6) nearly four and a half years after the deadline

for a sworn certificate of merit affidavit.

It is true that the defendant healthcare clinic need not show prejudice

resulting from the plaintiff’s delay in serving a properly sworn certificate of merit

affidavit after the statutory deadline. See Miller, 7 N.W.3d at 377. But in Miller,

the defendants filed their dispositive motions under section 147.140(6) within

three months of the missed deadline, so there was no ground to assert any

implied waiver by the defendants’ litigation conduct and delay. See id. at 371– 42

72. Our chapter 679A cases consider whether the nonmoving party was

prejudiced by the moving party’s delay in seeking arbitration, and consider the

added costs of litigation as prejudicial. See Mod. Piping, 581 N.W.2d at 621.

Another form of prejudice to the nonmoving party is an intervening

expiration of the statute of limitations. S.K.’s claims as a minor will not be

time-barred until 2028. But other medical malpractice plaintiffs would be prejudiced by the defendant’s delay in seeking dismissal under

section 147.140(6) if the statute of limitations expires in the interim. This is because we have recognized the plaintiff’s right to voluntarily dismiss without

prejudice and refile within the statute of limitations to restart the clock for serving a properly sworn certificate of merit affidavit. See Miller, 7 N.W.3d at 377

n. 5; Ronnfeldt v. Shelby Cnty. Chris A. Myrtue Mem’l Hosp., 984 N.W.2d 418,

429 (Iowa 2023). The LaLonde court considered the fact that the statute of limitations had expired in holding that the defendant waived the certificate of

merit issue. 593 S.W.3d at 229 (“Though defendants are not expected to bend over backwards to save the plaintiffs’ claims, allowing limitations to expire before

asserting a right that significantly pre-existed the time bar provides some indication they intended to waive the pleading defect and the remedy.”).

The clinic had a right to seek a dismissal under section 147.140(6) as of February 17, 2020. The clinic waived that right by waiting until July 31, 2024, well after trial and final judgment, to raise the unsworn certificate of merit

affidavit issue for the first time on appeal. A renewed motion by the clinic under section 147.140(6) in this case on remand must be denied on that ground.

With the foregoing additional explanation, I join the court’s opinion in full. Christensen, C.J., and McDonald and McDermott, JJ., join this

concurrence.