Frederick Duitsman, Jr. and Diana Duitsman v. Ashar Afzal, M.D., and Cedar Valley Medical Specialists, P.C.

IN THE COURT OF APPEALS OF IOWA
No. 19-1942
Filed June 16, 2021
FREDERICK DUITSMAN, JR. and DIANA DUITSMAN,
Plaintiffs-Appellees,
vs.
ASHAR AFZAL, M.D., and CEDAR VALLEY MEDICAL SPECIALISTS, P.C.,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Defendants appeal the district court’s denial of their motion for a new trial in
a medical malpractice action. AFFIRMED.
George L. Weilein and Timothy C. Boller of Weilein & Boller, P.C., Cedar
Falls, and Nancy J. Penner of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for
appellants.
Pressley Henningsen, Farl Greene, Benjamin P. Long, and Laura Schultes
of RSH Legal, P.C., Cedar Rapids, for appellees.
Heard by Mullins, P.J., and May and Schumacher, JJ.
2
SCHUMACHER, Judge.
Defendants appeal the district court’s denial of their motion for a new trial in
a medical malpractice action. Defendants raise claims concerning the jury
instructions, expert witness testimony, and statements made during closing
arguments. We conclude the district court did not abuse its discretion by denying
the motion for new trial. We affirm the jury’s decision.
I. Background Facts & Proceedings
Dr. Ashar Afzal is a medical doctor who works at Cedar Valley Medical
Specialists, P.C. Frederick Duitsman, Jr. received treatment from Dr. Afzal for
neck pain. On December 30, 2014, Dr. Afzal performed a radiofrequency ablation
(RFA) procedure, which involved placing a needle into Duitsman’s neck at the C5-6
level under x-ray guidance. The RFA procedure uses sound waves to burn specific
nerves, which gives pain relief for about six months. Dr. Afzal injected a numbing
agent mixed with Depo-Medrol at the site to reduce post-procedure discomfort.
Duitsman had no immediate complications and returned home after the
procedure. The next day, Duitsman experienced sensory deficits. He was
diagnosed with a spinal cord lesion at the C5-6 level. Duitsman does not have any
feeling from the waist down.1 He has problems walking because he cannot feel
his legs. Duitsman’s condition has continued to deteriorate, and he is expected to
use a wheelchair in the future.
On December 2, 2016, Duitsman and his wife, Diana Duitsman, filed an
action against Dr. Afzal and Cedar Valley Medical Specialists, P.C., alleging Dr.
1When Duitsman first woke up on December 31, he had no feeling from the neck
down. This resolved itself, but he continues to have no feeling below the waist.
3
Afzal engaged in medical malpractice during the RFA procedure.2 The Duitsmans
claimed Dr. Afzal injected Depo-Medrol into an artery, causing a blood clot, which
caused a spinal stroke. They claimed Dr. Afzal was negligent because he did not
use a contrast dye at the time of the injection to make sure he was not injecting
the steroid into an artery. Additionally, they claimed Dr. Afzal was negligent
because he used Depo-Medrol, a particulate steroid that could cause clots, rather
than a non-particulate steroid.
One of the Duitsmans’ experts, Dr. Donald Lussky, provided trial testimony
by an evidentiary deposition. Prior to trial, Dr. Afzal filed a motion in limine,
claiming Dr. Lussky’s testimony should be limited because his deposition
testimony differed from his expert’s report and a discovery deposition. The
Duitsmans resisted Dr. Afzal’s motion. The district court sustained the objections
to certain parts of the evidentiary deposition and ruled those parts of the deposition
would be stricken. The remainder of the evidentiary deposition was presented to
the jury.
The court gave the parties proposed jury instructions. Dr. Afzal objected to
the first specification of negligence in the marshalling instruction on the ground that
it was not supported by the evidence. The district court overruled his objections
and instructed the jury. Instruction No. 12 stated:
The Plaintiffs must prove all of the following propositions:
1. Dr. Afzal was negligent by failing to meet the standard of
care as explained in Instruction No. 14[3] in one or more of the
following ways:
2 We will refer to Dr. Afzal and Cedar Valley Medical Specialists together as Dr.
Afzal.
3 Instruction No. 14 stated:
4
a. In failing to properly place the cannula needle during
the radiofrequency ablation procedure on Plaintiff Fredrick
Duitsman, Jr.; or
b. In choosing to inject a particulate steroid during the
radiofrequency ablation procedure without utilizing injection of
dye under live fluoroscopy or digital subtraction angiography
....
2. The negligence was a cause of the damage to the
Plaintiffs.
3. The amount of damage.
During closing arguments, plaintiffs’ counsel stated, “There’s a falseness in
a defense that throws a bunch of stuff up there that really doesn’t relate to what
we’re dealing with.” Plaintiffs’ counsel also stated the defense was like a whack-
a-mole game and involved “games of distraction, smoke and mirrors.” He asked
the jurors to “stand up and stand out and do the right thing.” Although informed
consent and spoliation of evidence were not issues in this case, plaintiffs’ counsel
talked about consent and Dr. Afzal’s failure to keep images from the procedure.
The defense asked for a mistrial based on the statements during closing
arguments. The court denied the motion.
The jury found Dr. Afzal was negligent and his negligence caused harm to
the Duitsmans. The jury awarded the Duitsmans a total of $7,360,000 in damages.
Dr. Afzal filed a motion for a new trial, claiming (1) the court submitted a
specification of negligence for which there was insufficient evidence; (2) the
evidentiary deposition of Dr. Lussky should not have been admitted to the extent
his opinions exceeded those in his report; and (3) a mistrial should have been
Physicians who hold themselves out as specialists must use
the degree of skill, care and learning ordinarily possessed and
exercised by specialists in similar circumstances, not merely the
average skill and care of a general practitioner.
A violation of this duty is negligence.
5
granted based on plaintiffs’ counsel’s improper closing argument. The Duitsmans
resisted the motion for a new trial. The district court denied the motion. Dr. Afzal
now appeals.
II. Specification of Negligence
Dr. Afzal contends the district court erred by submitting a specification of
negligence that was not supported by the evidence. He states the instructions
permitted the jury to find him negligent for failing to properly place the needle during
the RFA procedure on Duitsman. He states there was no evidence the harm to
Duitsman was caused by the placement of the needle alone. Dr. Afzal asserts that
the Duitsmans’ experts—Dr. Fred Dery, Dr. Allen Elster, and Dr. Lussky—stated
the spinal lesion was caused by the injection of a particulate steroid into an artery.4
“We review alleged errors in jury instructions for the correction of errors at
law.” Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 570 (Iowa
2017) (quoting Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009)). “Any
4 The jury instruction proposed by the plaintiffs originally had nine elements of
negligence. The district court removed seven. Regarding the remaining two
elements, the defense argued there was one opinion on the standard of care and
such was that the defendant injected Depo-Medrol into the radicular artery
because the defendant did not use contrast dye with live fluoroscopy or digital
subtraction angiography. Defense counsel stated:
That’s his own opinion and testimony. So now to break it down, no
one’s claiming that Dr. Afzal was in the foramen, so if he says, yeah,
he breached the standard of care to put it there, that’s not the
Duitsman case. So I think if their own expert concedes on cross-
examination he’s got one opinion and that’s it, they don’t get two
specifications saying basically the same thing.
The plaintiffs responded that the witness,
specifically said that he went too deep. I had him explain what he
meant. He was in the wrong location. He was in the foramen area.
. . . and as you know, Your Honor, with every other expert, we
confirmed that that would be a breach of the standard of care.
6
error in the instructions given ‘does not merit reversal unless it results in
prejudice.’” Deboom, 772 N.W.2d at 5 (Iowa 2009) (quoting Wells v. Enter. Rent-
A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004)). There is prejudicial error when
the instructions materially misstate the law. Id.“Jury instructions should be formulated so as to require the jury to focus on
each specification of negligence that finds support in the evidence.” Eisenhauer
ex rel. T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 10 (Iowa 2019) (quoting
Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000)). A legal theory should be
submitted to the jury if it is supported by substantial evidence. Id. “Iowa law
requires a court give a requested instruction as long as the instruction is a correct
statement of law, is applicable to the case, and is not otherwise embodied
elsewhere in the instructions.” Id. The instructions should not “provide undue
emphasis to any particular aspect of the case,” or “duplicate specifications
adequately encompassed elsewhere in the instructions.” Id. (citations omitted).
“[W]hether a jury instruction sufficiently encompasses each specification of
negligence alleged by a plaintiff is determined by the facts of the particular case.”
Id.In the ruling on Dr. Afzal’s motion for a new trial, the district court stated:
In this matter, the proper placement of the cannula needle was
discussed extensively by almost all the relevant expert witnesses,
including Dr. Afzal. Dr. Afzal himself was asked whether it would be
a breach of the standard of care to put the needle in the wrong place
during the [RFA] procedure and he acknowledged it would be a
breach of the standard of care. This admission, together with the
extensive discussions on the subject of the needle placement with
the other experts, including without limitation Dr. Dery and Dr.
7
Glaser,[5] provided a clear evidentiary basis in the record for the first
specification of negligence in Jury Instruction No. 12.
Dr. Dery testified that the needle went too deep during Mr.
Duitsman’s procedure and the artery was pierced and the steroid
was at least partially injected into the artery causing the spinal cord
lesion/stroke. Dr. Glaser acknowledged during cross-examination
that if the needle was pushed into the foramen, that would be the
wrong spot. Dr. Glaser further acknowledged that if Dr. Afzal stuck
his needle in the foramen and caused an infarct, that this would be a
major mistake. Dr. Glaser also acknowledged the blood supply to
the spinal cord would not be injured if the [RFA] procedure is done
appropriately and being in the wrong spot can result in injury to an
artery.
The court concluded there was substantial evidence in the record to show the
injury to Duitsman would not have occurred if the needle was in the proper location
when Dr. Afzal injected the particulate steroid.
We conclude there is substantial evidence in the record to support the
instruction stating Dr. Afzal could be found negligent for failing to properly place
the needle during the RFA procedure on Duitsman. There was evidence to show
the procedure would not have resulted in harm to Duitsman if the needle had been
in the correct location when Dr. Afzal injected a particulate steroid. We find no
error in Instruction No. 12.
III. Expert Witness
Dr. Afzal asserts the district court improperly permitted the evidentiary
deposition of Dr. Lussky to be presented to the jury. Dr. Afzal claims the
evidentiary deposition contains expert opinions that were not disclosed in the
expert witness report, made pursuant to Iowa Rule of Civil Procedure 1.508. Dr.
Lussky’s report, which was dated May 17, 2018, noted, “On December 30, 2014,
5 Dr. Scott Glaser was an expert witness for Dr. Afzal.
8
Dr. Ashal Afzal performed bilateral [RFAs] and particulate steroid injections at C5-6
and C6-7 levels of Frederick Duitsman’s cervical spine,” and stated, “It is my
medical opinion that Mr. Duitsman’s spinal cord injury was caused by the
December 30, 2014 procedures.” Dr. Lussky’s report gave opinions about
Duitsman’s medical condition resulting from the spinal cord lesion.
In Dr. Lussky’s videotaped evidentiary deposition, taken on July 1, 2019, he
stated:
Q. Doctor, I want to talk to you about what caused Fred’s
spinal cord injury. Have you reached a conclusion about what
caused the spinal cord injury to the dorsal columns of Fred’s neck at
the C5-6 level? A. I have.
Q. And what is your conclusion? A. Conclusion is arterial
damage from a particulate material injection into radicular artery,
damaging the posterial aspect of the spinal cord.
....
Q. And what do you base that opinion on, Doctor? A. Based
on reviewing all the medical records, the procedure, and just
common sense that that’s what caused this injury to the spinal cord.
The needle was in close proximity to the radicular artery, and the
radicular artery supplies the spinal cord, and particulate matter
was—radicular artery had particulate matter entered in, and then that
particulate matter embolized or went to the spinal cord and caused
an infarct to his stroke of the spinal cord.
The district court reviewed Dr. Lussky’s expert report and his evidentiary
deposition. The court struck some instances of Dr. Lussky’s opinions concerning
causation and standard of care, as well as some gratuitous comments. The
statements noted above were not excluded by the court’s ruling. The evidentiary
deposition, absent the parts excluded by the court’s ruling, was presented to the
jury.
We review the district court’s evidentiary rulings for an abuse of discretion.
Homeland Energy Sols., LLC v. Retterath, 938 N.W.2d 664, 684 (Iowa 2020).
9
There is an abuse of discretion when the court’s ruling is based on grounds that
are unreasonable or untenable. Andersen v. Khanna, 913 N.W.2d 526, 536 (Iowa
2018). “A ground is unreasonable or untenable when it is ‘based on an erroneous
application of the law.’” Id. (quoting Giza v. BNSF Ry., 843 N.W.2d 713, 718 (Iowa
2014)).
Iowa Rule of Civil Procedure 1.508(4) provides, “The expert’s direct
testimony at trial may not be inconsistent with or go beyond the fair scope of the
expert’s disclosures, report, deposition testimony, or supplement thereto.” In Millis
v. Hute, the plaintiff claimed a defense expert’s “evidentiary deposition testimony
went beyond the fair scope of the opinions expressed in his written report to their
surprise and prejudice.” 587 N.W.2d 625, 628 (Iowa Ct. App. 1998). We found
the purpose of the rule was “to avoid surprise to litigants and to allow the parties
to formulate their positions on such evidence as is available.” Id. Because the
evidentiary deposition was taken several months before the trial date, we found
the plaintiffs “had sufficient opportunity to seek further testimony on the disputed
issues from their own experts but chose not [to] do so.” Id. We also concluded
the plaintiffs were not prejudiced by the admission of the evidentiary deposition
because they presented the testimony of their own experts to counter the
testimony of the defendant’s expert. Id. We determined the district court did not
err by admitting the evidentiary deposition of the defendant’s expert. Id.An expert’s testimony may not go beyond the “fair scope” of the report.
Studer v. DHL Express (USA), Inc., No. 07-1810, 2009 WL 775437, at *2 (Iowa Ct.
App. Mar. 26, 2009) (citing Iowa R. Civ. P. 1.508(4)). We determine Dr. Afzal had
adequate notice from the report of the “fair scope” of Dr. Lussky’s opinions. See
10
W. Realty, Inc. v. Fox, No. 08-0922, 2009 WL 1676155, at *3 (Iowa Ct. App. June
17, 2009). The report stated Duitsman’s spinal cord injury was caused by the RFA
procedure. Furthermore, if Dr. Lussky’s evidentiary deposition was not exactly the
same as his report, he could be impeached by this difference. See Fox v.
Rechkemmer, No. 16-0849, 2017 WL 4315037, at *6 (Iowa Ct. App. Sept. 27,
2017).
We conclude the district court did not abuse its discretion by denying Dr.
Afzal’s request to exclude Dr. Lussky’s evidentiary deposition.
IV. Closing Arguments
Dr. Afzal contends the district court should have granted his motion for a
mistrial or his motion for a new trial because plaintiffs’ counsel made improper
closing arguments. He states plaintiffs’ counsel made inflammatory and
derogatory characterizations of the defense. Dr. Afzal also states that plaintiffs’
counsel made statements referring to informed consent and spoliation of evidence,
which were not issues in this case.
“We review a district court’s denial of a mistrial for an abuse of discretion.”
Kinseth v. Weil-McLain, 913 N.W.2d 55, 66 (Iowa 2018). The court has broad
discretion in ruling on a mistrial motion. Fry v. Blauvelt, 818 N.W.2d 123, 132 (Iowa
2012). “[T]he trial court has before it the whole scene, the action and incidents of
the trial as they occur, and is in a much better position to judge whether the
defendant has been prejudiced by misconduct of opposing counsel, if there is
such.” Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992)
(alteration in original) (quoting Baysinger v. Haney, 155 N.W.2d 496, 499 (Iowa
1968)).
11
“To warrant a new trial based on attorney misconduct, the complained of
misconduct ‘must have been prejudicial to the interest of the complaining party.’”
Kinseth, 913 N.W.2d at 66 (quoting Mays, 490 N.W.2d at 803). “[U]nless a different
result would have been probable in the absence of misconduct, a new trial is not
warranted.” Id. (alteration in original) (quoting Loehr v. Mettille, 806 N.W.2d 270,
277 (Iowa 2011)). We consider “the severity and pervasiveness of the misconduct,
the significance of the misconduct to the central issues in the case, the strength of
the State’s evidence, the use of cautionary instructions or other curative measures,
and the extent to which the defense invited the improper conduct.” Kipp v.
Stanford, No. 18-2232, 2020 WL 3264319, at *8 (Iowa Ct. App. June 17, 2020)
(citation omitted).
During closing argument, plaintiffs’ counsel stated:
There’s a falseness in a defense that throws a bunch of stuff up there
that really doesn’t relate to what we’re dealing with and it’s here in
this courtroom right now and it’s no longer talking to me, it’s daring
you. Can you guys take it on? It sits here in this courtroom right
now.
Also,
There was a lot of mud thrown up against the wall. A lot of issues
came in here where I wanted to stand up and say, why are we talking
about this? Why does this matter? Because that’s what you’ve got
to tell me. You’ve got to tell me why this matters. You don’t just get
to throw stuff. . . . The defense in this case is like that whack-a-mole
game. . . . And no matter how good you are, how fast you are, how
determined you are, eventually you cannot whack all those moles.
But that’s a carnival game. It’s a game of distraction. It’s a game
you choose to play even though you know you’re gonna lose. And
sometimes it works in settings like this. Sometimes we can play
games of distraction, smoke and mirrors, but it’s not the true story.
We have previously stated:
12
The single purpose of closing argument is to assist the jury in
analyzing, evaluating, and applying the evidence. Thus, when
exercising its discretion in determining the proper scope of closing
argument, the trial court should give counsel the latitude to make
comments and arguments within the framework of the legal issues
and evidence introduced at trial. This latitude is compatible with
effective advocacy.
Lane v. Coe Coll., 581 N.W.2d 214, 218 (Iowa Ct. App. 1998) (citations omitted).
“Counsel may draw conclusions and argue permissible inferences which
reasonably flow from the evidence presented. However, counsel has no right to
create evidence or to misstate the facts.” State v. Coleman, 907 N.W.2d 124, 145
(Iowa 2018).
In the ruling on the motion for a new trial, the district court stated:
The Court, in viewing the Defendants’ allegations of misconduct,
does not find these went beyond the latitude appropriate for the
arguments being made in the context they were made. The Court
does not find Plaintiffs’ counsel to have improperly vouched
personally for or against the veracity and/or credibility of a witness.
The Court finds the arguments of Plaintiffs’ counsel concerning the
merits and justness of the cause to have been reasonably based on
the evidence presented at trial and not improper personal opinions.
Also, the court found plaintiffs’ counsel did not make improper arguments
concerning informed consent or spoliation of evidence, stating
The Court finds the argument by Plaintiffs’ counsel relating to those
issues was proper in light of the evidence introduced, some by the
Defendants, on the issue of the risks of the procedure and the
presence or absence of evidence material to the case, specifically
the imaging performed during the procedure.
The court determined plaintiffs’ counsel’s arguments went to the weight of the
evidence, which was a proper matter to discuss in the closing arguments.
We find the statements of plaintiffs’ counsel came within the wide latitude
given to parties during closing arguments. See Lane, 581 N.W.2d at 218. The
13
arguments did not concern matters outside the scope of the evidence introduced
during the trial. See id. The argument concerning informed consent and spoliation
of evidence went to the weight of the evidence in the case. Furthermore, the
complained of misconduct was not prejudicial to Dr. Afzal. See Kinseth, 913
N.W.2d at 66.
We conclude the district court did not abuse its discretion in denying Dr.
Afzal’s motion for mistrial and motion for new trial based on the closing arguments.
We affirm the decision of the district court.
AFFIRMED.