Robyn Mengwasser v. Joseph Comito and Capital City Fruit Company ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 19–1983
Submitted December 15, 2021—Filed March 4, 2022
ROBYN MENGWASSER,
Appellant,
vs.
JOSEPH COMITO and CAPITAL CITY FRUIT CO.,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
The plaintiff in a negligence case seeks further review of a court of appeals
decision that affirmed the district court’s denial of a partial new trial, contending
that the opinions of her treating chiropractor should not have been excluded.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
Mansfield, J., delivered the opinion of the court, in which all justices
joined.
2
Bruce H. Stoltze and John Q. Stoltze of Stoltze & Stoltze, PLC, Des Moines,
and Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des
Moines, for appellant.
Jeffrey D. Ewoldt and Jessica A. Eglseder of Hopkins & Huebner, P.C., Des
Moines, for appellees.
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MANSFIELD, Justice.
I. Introduction.
This case, like our recently decided case of McGrew v. Otoadese, 969
N.W.2d 311 (Iowa 2022), requires us to consider the parties’ expert disclosure
obligations in civil litigation. Those duties changed somewhat in 2014 when we
adopted amendments to the Iowa Rules of Civil Procedure, inspired by prior
changes to the federal rules. Here, the district court misapplied the new rules
when it excluded certain expert opinions of the plaintiff’s treating chiropractor.
The district court reasoned that the chiropractor had not formed those opinions
during treatment and the plaintiff had not submitted a timely rule 1.500(2)(b)
expert report. But the 2014 rule changes allow parties to submit more limited
rule 1.500(2)(c) disclosures for experts who have not been retained for purposes
of litigation, regardless of when the expert forms the opinion. The plaintiff had
provided such a disclosure for her treating chiropractor. Because the district
court abused its discretion in its evidentiary ruling, and the ruling may have
affected the outcome of trial, we reverse the judgment of the district court, vacate
the court of appeals decision affirming the district court, and remand for a new
trial.
II. Background Facts and Proceedings.
On September 28, 2015, Robyn Mengwasser was stopped at an
intersection when Joseph Comito, an officer of Capital City Fruit Company,
driving a company vehicle, rear-ended her. Comito estimates his speed was five
miles per hour at the time of impact. Vehicle damage was minor. The airbags did
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not deploy. Mengwasser and Comito pulled into a nearby parking lot to discuss
the accident and exchange contact and insurance information. Both then went
on their way. Neither party reported injuries or contacted police or paramedics.
Mengwasser experienced neck pain later that night and sought treatment
at an emergency room. Pain medication was prescribed, and she was advised to
follow up with her regular doctor.
A week later, Mengwasser visited her chiropractor, Dr. Randy Dierenfield.
She had seen Dr. Dierenfield occasionally since 2006. In notes from the first
visit, Dr. Dierenfield recorded that Mengwasser said she had injured her neck in
a car accident. He also noted literature that indicated Mengwasser may have
been at greater risk for injury because she was unaware of the impending
collision and was struck from behind while wearing a seat belt. In his objective
findings, he diagnosed her with subluxations of the C3 vertebra and muscle
spasms of the right trapezius and left levator scapulae. Dr. Dierenfield provided
treatment consisting of chiropractic adjustments, acupuncture, and trigger point
therapy.
Mengwasser visited Dr. Dierenfield for treatment more than a dozen times
in the months of October and November 2015. Later, her visits became more
sporadic. According to Dr. Dierenfield, Mengwasser reached maximum medical
improvement in May of 2018, but “there [was] still some injury evident.” At the
time of trial, Mengwasser had continued to see Dr. Dierenfield on an “as-needed”
basis. Dr. Dierenfield testified that he expected to treat Mengwasser in the future
“on an as-needed basis for flare-ups.”
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Mengwasser filed a petition in Polk County District Court on September
27, 2017, naming Comito and Capitol City Fruit as defendants. She alleged
Comito had caused his vehicle to negligently collide with hers, resulting in a neck
injury. She sought damages for medical expenses, pain and suffering, lost wages,
and loss of full mind and body. Past and future damages were sought for each
category.
Mengwasser filed her expert designations on November 26, 2018. She
disclosed one retained expert, Dr. Jacqueline Stoken. She also disclosed that her
treating physicians identified in discovery would potentially offer expert
testimony:
These witness experts will testify regarding all aspects of Plaintiff’s
care including, but not limited to treatment, diagnosis, prognosis,
mechanism of injury, and causation for injuries sustained due to
the actions of Defendant. These experts will also testify as to the
standard, customary and reasonable value of all medical expenses,
past and future.
According to the scheduling order, Mengwasser’s rule 1.500(2)(b) written
expert reports were due by December 26. Mengwasser provided an expert report
for Dr. Stoken but not for her treating chiropractor, Dr. Dierenfield.
On March 4, 2019, Mengwasser produced a letter written by
Dr. Dierenfield. The letter, which had been prepared approximately a week
earlier, detailed the chiropractor’s opinions on causation and the permanency of
Mengwasser’s injury:
I have made the following conclusions as Robyn Mengwasser’s
chiropractor, and as part of my routine diagnosis and treatment
duties. I began treating Robyn in October of 2015 due to injuries she
sustained in a motor vehicle collision. Robyn initially complained of
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neck pain due to a rear end collision in which she was an unaware
belted passenger of the vehicle impacted.
My initial diagnosis was a cervical strain/sprain. Robyn
reported that her time working on a computer as a duty under
duress. Robyn continued to receive chiropractic treatment at my
office for these injuries throughout the rest of 2015, 2016, 2017,
2018 and up until the date of this report.
Although Robyn’s condition did improve during the course of
her treatment, she ultimately reached maximum chiropractic
improvement. In other words, Robyn’s condition can be prevented
from worsening with chiropractic treatment as needed, but she will
never fully recover from her injuries. . . .
I have concluded at this time that Robyn’s pain and functional
limitations with respect to her cervical injury are more likely than
not the result of the September 2015 motor vehicle collision.
Further, I have concluded that her diminished functionality has
impacted her ability to perform her work since she is unable to sit
for long periods of time.
On March 12, the defendants offered to confess judgment for the sum of
$25,000.
On May 29, the defendants moved to strike Dr. Dierenfield’s opinions on
causation and permanency of injury.1 They argued that rule 1.500(2)(b) required
Mengwasser to file a written expert report for Dr. Dierenfield, and the deadline
for such reports had passed. The defendants took the position that
Dr. Dierenfield’s expert testimony must be limited to opinions he developed
during treatment as evidenced in Mengwasser’s medical records.
1The defendants also moved to strike the expert opinions of a physician’s assistant who
had treated Mengwasser. That ruling is not a subject of appeal.
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Mengwasser resisted this motion, arguing that Dr. Dierenfield had formed
his opinions during the course of treatment. A hearing on the motion to strike
was held.
On June 16, the district court granted the motion to strike Dr. Dierenfield’s
causation and permanency opinions. The court reasoned:
Dierenfield’s opinions (as to causation and loss of function and its
impact on plaintiff’s ability to perform her work) . . . were not formed
or stated during the course of [his] treatment of plaintiff and
certainly were not disclosed or even revealed in [his] medical records
as of plaintiff’s December 26, 2018 deadline for making expert
disclosures. Therefore, defendants’ motion to strike is GRANTED as
to those specific opinions. However, it should be noted that the
foregoing ruling does not prohibit . . . testimony regarding [his]
actual medical treatment of plaintiff . . . .
Having been alerted that Mengwasser would be undergoing additional
diagnosis and treatment in late May and early June, the defendants also filed a
motion on June 17 to exclude evidence of new medical treatment produced “at
the eleventh hour before trial.”
Just before trial, Mengwasser turned over a May 29 treatment report and
a June 7 MRI to the defendants. These were excluded by the district court as
untimely.
Jury trial began on June 24. On the second day of trial, Mengwasser made
an offer of proof concerning Dr. Dierenfield’s anticipated expert testimony.
Dr. Dierenfield testified therein as follows:
Q. Have you formed any conclusions with respect to
Robyn Mengwasser’s ability to perform her work duties?
A. Yes.
....
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Q. . . . What are those conclusions, Doctor?
A. I have concluded at this time that Robyn’s pain and
functional limitations with respect to her cervical injury are more
likely than not to be the result of this accident we’re talking about.
Further, I have concluded that her diminished functionality
has impacted her ability to perform her work since she is unable to
sit for long periods of time.
Q. When did you come to those conclusions, Doctor?
A. Those conclusions had been formed during the last end of
the treatments. When I started seeing things stabilizing down and
still noticing, after I released her from MMI, that she still had
problems, and, like, sitting problems, things like that, would flare
her condition up.
Q. So those opinions were formed during the course of your
treatment of Robyn Mengwasser?
A. Toward the end of the treatment, yes.
Q. . . . Was that part of your assessment of the
patient?
A. Correct.
Q. And did that assist you in determining the course
of your treatment?
A. Yes.
In addition to making the offer of proof, Mengwasser’s attorney argued as
follows:
[W]e don’t believe this is a witness that is required to issue a report
pursuant to Iowa Rule of Civil Procedure 1.500. Instead, we think
this is testimony -- it relates to the scope of testimony of
experts under Iowa Rule of Civil Procedure 1.508(4).
The court declined to change its ruling. Nevertheless, Dr. Dierenfield was allowed
to testify before the jury that Mengwasser continued to suffer from the effects of
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her September 28, 2015 injury, that he didn’t think she could improve, and that
he expected treatment would be necessary for flare-ups.
Dr. Stoken, Mengwasser’s retained medical expert, testified that estimated
future medical care would include “physician visits, medication, and physical
therapy or other injections” and would cost between $2,000 and $5,000 per year.
The jury instructions allowed the jury to award damages to the extent a
previous physical ailment of Mengwasser had been “aggravated” by the accident.
However, Mengwasser also requested an “eggshell plaintiff” instruction as
follows:
If Robyn Mengwasser had a neck injury making her more
susceptible to injury than a person in normal health, then the
defendant is responsible for all injuries and damages which are
experienced by Robyn Mengwasser that are caused by defendant’s
actions, even though the injuries claimed produce a greater injury
than those which might have been experienced by a normal person
under the same circumstances.
Mengwasser pointed to evidence that she suffered previously from degenerative
disk disease that had been aggravated by the accident. The district court
declined the instructional request, noting a lack of evidence that Mengwasser
was “more susceptible to the injuries that she allegedly suffered.”
The jury returned a verdict on July 1 finding Comito’s fault caused
Mengwasser damages. The jury awarded Mengwasser $10,950 in damages for
past pain and suffering and $1,755 in damages for past loss of function for a
total of $12,705. The jury awarded no damages for future pain and suffering,
future loss of function, future medical expenses, or future loss of earning
capacity.
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After the trial, the defendants moved to tax over $17,000 in costs against
Mengwasser because the verdict had been less than the defendants’ $25,000
offer to confess judgment. Mengwasser resisted the motion to tax costs.
Mengwasser also moved for a partial trial on future damages, arguing:
(1) Dr. Dierenfield should have been allowed to testify as an expert on causation
and loss of function; (2) the jury returned a logically inconsistent verdict when it
failed to award any future damages; (3) the requested “eggshell plaintiff”
instruction should have been given; and (4) it was error to withhold evidence of
current treatment from the jury. The district court denied the motion for new
trial and awarded the defendants $5,358.30 in costs.
Following the entry of judgment, Mengwasser appealed. We transferred the
case to the court of appeals.
The court of appeals affirmed the district court on all issues. In regard to
Dr. Dierenfield, the court of appeals held that he could not offer expert opinions
that were not developed during treatment unless those opinions were disclosed
in a rule 1.500(2)(b) written report. Dr. Dierenfield had not submitted such a
report, and the court of appeals concluded that his actual medical records did
“not directly tie his treatment to any particular cause or tie Mengwasser’s loss of
function to the 2015 car accident.” In addition, the court of appeals found that
the letter disclosing Dr. Dierenfield’s opinions “came late” because it was not
provided before the scheduling order’s December 26, 2018 deadline for
disclosure of rule 1.500(2)(b) reports.
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The court of appeals also found no inconsistency in the jury verdicts. In
the court of appeals’ view, the record contained substantial evidence that
Mengwasser had recovered by the time of trial from whatever injuries she had
suffered in the car accident. This would have justified an award of no future
damages.
The court of appeals further found no error in the district court’s refusal
to give an eggshell-plaintiff jury instruction. The court of appeals agreed with the
district court that Mengwasser’s proof she had aggravated a previous injury was
not the same as proof she had a greater susceptibility to injury. Absent proof of
the latter, the district court did not err in declining to give the eggshell-plaintiff
instruction.
The court of appeals likewise affirmed the district court’s exclusion of the
medical records for Mengwasser’s treatment immediately preceding trial, citing
the district court’s discretion to exclude untimely evidence. And it affirmed the
district court’s decision to tax videographer and videoconferencing fees for
depositions used at trial, as well as its decision to tax the statutory expert fees
for two experts whose depositions were used at trial. See Iowa Code § 622.72(2017).
We granted Mengwasser’s application for further review.
III. Standard of Review.
“We review whether a district court properly admitted expert testimony for
abuse of discretion.” Eisenhauer ex rel. T.D. v. Henry Cnty. Health Ctr., 935
N.W.2d 1, 9 (Iowa 2019). But when the question is one of interpretation of a rule
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of civil procedure, such as rule 1.500(2), we review for errors at law. Jack v. P &
A Farms, Ltd., 822 N.W.2d 511, 515 (Iowa 2012) (“[W]e review the interpretation
of our rules of civil procedure for correction of errors at law.”).
IV. Analysis.
A. Adequacy of the Expert Disclosure for Dr. Dierenfield. We begin with
the expert disclosure issue. In a case we recently decided, McGrew v. Otoadese,
we discuss the importance of distinguishing among three different disclosure
obligations relating to experts: (1) the certification requirement of Iowa Code
section 668.11, (2) the report requirement of Iowa Rule of Civil Procedure
1.500(2)(b), and (3) the disclosure requirement of rule 1.500(2)(c). 969 N.W.2d at
319–24.2
As we discuss in McGrew, rule 1.500(2)(b) requires an expert report only
“if the witness is one retained or specially employed to provide expert testimony
in the case or one whose duties as the party’s employee regularly involve giving
expert testimony.” Iowa R. Civ. P. 1.500(2)(b). It is a rule focused on how the
expert came to be involved, not when the expert developed their opinions. See
McGrew, 969 N.W.2d at 321–23.
Rule 1.500(2)(c), in turn, fills the disclosure gap as to experts who do not
have to provide rule 1.500(2)(b) reports. These experts must provide, among
other things, a “summary of the facts and opinions to which the witness is
expected to testify.” Iowa R. Civ. P. 1.500(2)(c)(2).
2In addition, expert discovery is available under rule 1.508.
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We conclude that both the district court and the court of appeals erred in
their application of these requirements. Dr. Dierenfield was Mengwasser’s
treating chiropractor; he had not been retained for litigation purposes. Therefore,
he did not have to provide a rule 1.500(2)(b) report, although he did have to
provide a rule 1.500(2)(c) disclosure.
Dr. Dierenfield’s March 4, 2019 letter complied in substance with the latter
rule because it contained adequate summaries of his opinions. On causation,
Dr. Dierenfield wrote, “I have concluded at this time that Robyn’s pain and
functional limitations with respect to her cervical injury are more likely than not
the result of the September 2015 motor vehicle collision.” On the permanency of
Mengwasser’s condition, Dr. Dierenfield commented, “Robyn’s condition can be
prevented from worsening with chiropractic treatment as needed, but she will
never fully recover from her injuries.” Dr. Dierenfield also stated, “I have
concluded that her diminished functionality has impacted her ability to perform
her work since she is unable to sit for long periods of time.”
This March 4, 2019 disclosure was also timely. The scheduling order
established a December 26, 2018 deadline for rule 1.500(2)(b) expert reports, but
it was silent on subsection (c) disclosures. According to rule 1.500(2)(d): “If not
otherwise ordered, expert disclosures shall be due . . . [n]o later than 90 days
before the date set for trial . . . .” Id. r. 1.500(2)(d)(1). March 4 was more than
ninety days before the June 24 start of trial; therefore, Mengwasser’s disclosure
of Dr. Dierenfield’s expert testimony met the relevant deadline.
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For these reasons, the district court abused its discretion when it excluded
Dr. Dierenfield’s opinions on causation and permanency to the extent they had
been disclosed in the March 4, 2019 letter.
B. Harmless Error. Unlike in McGrew, the defendants do not contend here
that any error would have been harmless. Furthermore, on our independent
review, we do not believe the error was harmless.
Future damages were clearly a bone of contention at trial. And the
testimony varied. The defense’s expert, Dr. Todd Harbach, testified that
Mengwasser had a small percentage of permanent impairment but “at least 50
percent of it has to be related to her work and degenerative conditions that
preexisted this accident.”
Dr. Stoken—Mengwasser’s retained expert—testified that Mengwasser
would have thousands of dollars annually in future medical expenses. But she
was a retained expert, like Dr. Adams in McGrew. See 969 N.W.2d at 317, 326.
Mengwasser’s husband, while not an expert, testified that Mengwasser’s
injury was still affecting her at the time of trial. He also mentioned that future
treatment was being pursued and such treatment might include injections. But
of course, he was Mengwasser’s spouse.
In the limited forward-looking testimony he was allowed to give to the jury,
Dr. Dierenfield said only that Mengwasser had reached maximum medical
improvement with “[h]er pain tenderness still about . . . 2 out of a 10” and
lingering “muscle spasms in the trapezius.” While she had “stabilized,” he
expected she would continue to need treatment for “flare-ups.”
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We cannot say that more expansive and on point testimony from
Dr. Dierenfield, whose care for Mengwasser predated and postdated the
September 28, 2015 accident, would not have made a difference. “We presume
prejudice and reverse unless the record affirmatively establishes otherwise.”
Eisenhauer, 935 N.W.2d at 19 (quoting State v. Russell, 893 N.W.2d 307, 314
(Iowa 2017)). Accordingly, a new trial is warranted.
C. Scope of the New Trial. We must now address the scope of the new
trial. Mengwasser seeks a new trial on future damages only; the defendants
argue that any new trial must cover all issues.
“The general rule is that when a new trial is granted, all issues must be
retried.” McElroy v. State, 703 N.W.2d 385, 389 (Iowa 2005). “As a condition to
the granting of a partial new trial, it should appear that the issue to be tried is
distinct and separable from the other issues, and that the new trial can be had
without danger of complications with other matters.” Id. (quoting Larimer v.
Platte, 53 N.W.2d 262, 267–68 (Iowa 1952)). However, we have said with respect
to personal injury cases, “If there is no evidence in the record that the jury’s
determination of fault was compromised or affected by the evidence of damages,
the issue of liability should not be resubmitted on remand.” Thompson v. Allen,
503 N.W.2d 400, 401 (Iowa 1993).
Our most recent case on this subject is Bryant v. Parr, 872 N.W.2d 366(Iowa 2015). The plaintiff had been a passenger in a vehicle involved in a motor
vehicle accident. Id. at 369. The jury initially awarded nearly $17,000 in past
medical expenses and approximately $1,500 for lost past earnings, but nothing
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for past pain and suffering and nothing for future damages. Id. at 373. All parties
agreed at the time that the verdict was inconsistent in awarding $17,000 for past
medical expenses but nothing for past pain and suffering, and the jury was told
to resume deliberations to resolve the inconsistency. Id. The jury then awarded
only one dollar for past pain and suffering. Id. On the plaintiff’s appeal, we found
the nominal past pain-and-suffering verdict to be inconsistent with the
substantial award of damages for past medical expenses. Id. at 379–80.
We ordered a new trial on all categories of damages. Id. at 382. No one had
argued liability should be retried. Id. at 380. As we noted, “No party contends
the liability findings are tainted by the jury’s determination of damages or that
the jury compromised on liability.” Id. at 381. Turning to future damages, we
acknowledged there was “no indication that the jury’s rejection of [the plaintiff’s]
claims for future damages resulted from a compromise trading off amounts
awarded for past damages.” Id. at 382. And of course, the inconsistency involved
past damages only. Id. Despite this, we ordered a new trial on damages as a
whole. Id.Here, we believe a new trial on all issues is in order. A new trial on future
damages alone would not be right, because Dr. Dierenfield’s excluded opinions
also pertained to past damages. Moreover, liability and damages were
intertwined. The liability verdict form read, “Was the fault of Defendant Joseph
Comito a cause of any item of damage to the Plaintiff Robyn Mengwasser?” The
jury answered, “Yes.” Immediately beneath that, there were various damage
categories as to which the jury answered “0” except for modest awards for past
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loss of function and past pain and suffering. The defendants argued in closing
that the jury should answer “No” to the first question, not because Comito had
been without fault, but because the accident was a mere “bumper-tap” that
caused no damages at all to Mengwasser.3 So this was one of those cases where
skepticism about damages would have justified a no-liability finding. Given the
low total award, the ultimate verdict may have been a compromise: some jurors
may have initially believed there had been no damages (and therefore no liability)
under the controlling instructions and verdict form. These considerations favor
granting a new trial on all issues. It also appears that much of the same evidence
would have to come in, whether the retrial related to all issues or just damages.
Because we are ordering a new trial in toto, we need not reach the
remaining issues.
V. Conclusion.
For the foregoing reasons, we vacate the decision of the court of appeals,
reverse the district court judgment, and remand for a new trial.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
3Mengwasser never repaired the minor damage to her back bumper that occurred, and
made no claim at trial for damage to her vehicle.