Jackson v. Catholic Health Initiatives

IN THE COURT OF APPEALS OF IOWA
No. 22-1911
Filed August 30, 2023
SHAR’ON DENISE JACKSON, Individually and as Administrator of the Estate
of HEZEKIAH JOSIAH SMITH,
Plaintiff-Appellant,
vs.
CATHOLIC HEALTH INITIATIVES, INC., d/b/a MERCY MEDICAL CENTER,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
A plaintiff appeals an adverse grant of summary judgment in her medical
malpractice action. AFFIRMED.
Jim Quilty of Quilty Law Firm, Des Moines, for appellant.
Connie L. Diekema and Jacob T. Wassenaar of Finley Law Firm, PC, Des
Moines, for appellee.
Considered by Ahlers, P.J., Badding, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
BADDING, Judge.
Shar’on Jackson’s son committed suicide the same day he was discharged
from Mercy Medical Center. Close to two years later, Jackson brought a wrongful
death action against Mercy,1 alleging negligent care. Although Jackson filed the
certificate of merit required by Iowa Code section 147.140 (2021) and provided
Mercy with initial disclosures under Iowa Rule of Civil Procedure 1.500(1), she did
not disclose an expert witness under section 668.11. The district court granted
summary judgment in Mercy’s favor because of that failure. Jackson appeals,
claiming either (1) she substantially complied with section 668.11 or (2) good
cause existed to extend the time for compliance. We affirm.
I. Substantial Compliance
Mercy answered Jackson’s petition on October 20, 2021. Just over thirty
days later, Jackson timely filed a certificate of merit affidavit signed by Dr. Kevin
Cowperthwaite. See Iowa Code § 147.140(1)(a). In that affidavit,
Dr. Cowperthwaite stated he was “familiar with the applicable standard of care in
this case,” which he summarily said was breached by two physicians employed by
Mercy. See id. § 147.140(1)(b). His curriculum vitae was the only information
attached to the certificate of merit.
The parties agree that Jackson’s expert witness disclosure under Iowa
Code section 668.11 was due on April 18, 2022—180 days after Mercy filed its
answer. It was never filed. In August 2022, Mercy moved for summary judgment
1 The petition named Catholic Health Initiatives, Inc. as a defendant, which does
business as Mercy Medical Center, along with three physicians. Jackson later
amended the petition to remove two of the physicians and voluntarily dismissed
the third.
3
because of Jackson’s failure to timely file the expert witness disclosure. See
Struck v. Mercy Health Servs.–Iowa Corp., 973 N.W.2d 533, 539 (Iowa 2022) (“It
is well settled that expert testimony is required to prove professional negligence
claims against healthcare providers.”).2
Jackson resisted, arguing that she substantially complied with section
668.11 because her “Certificate of Merit and Initial Disclosure . . . identify
Dr. Cowperthwaite within the time required by § 668.11.” The initial disclosures,
which Jackson said were served on Mercy in February 2023, were attached to her
resistance. Dr. Cowperthwaite was listed as an “individual likely to have
discoverable information,” with a note directing Mercy to “[s]ee prior records for
contact information.” Jackson alternatively argued that “the court should find good
cause to extend the time for filing to allow [her] to correct any deficiency” because
her “filings meet the spirit of substantial compliance with [section] 668.11.”
The district court granted summary judgment in Mercy’s favor, finding
Jackson did not substantially comply with section 668.11 by filing the certificate of
merit under section 147.140.3 We find no error of law in this ruling. See Venckus
2 Jackson does not dispute that she must present expert testimony on her medical
malpractice claim to survive summary judgment. Cf. Struck, 973 N.W.2d at 539
n.4 (noting two exceptions to the expert witness requirement).
3 The court did not mention Jackson’s initial disclosures in examining the
substantial-compliance issue. See Ronnfeldt v. Shelby Cnty. Chris A. Myrtue
Mem’l Hosp., 984 N.W.2d 418, 421 (Iowa 2023) (“Generally, we will only review
an issue raised on appeal if it was first presented to and ruled on by the district
court.” (emphasis added) (citation omitted)). We elect to bypass any error-
preservation concerns with this aspect of Jackson’s argument given our resolution
on the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing
error-preservation concern and proceeding to the merits).
4
v. City of Iowa City, 990 N.W.2d 800, 807 (Iowa 2023) (“We review a district court
ruling on summary judgment for correction of errors at law.”).
Section 668.11(1) requires a party to timely “certify to the court and all other
parties the expert’s name, qualifications and the purpose for calling the expert.” A
plaintiff must do so “within one hundred eighty days of the defendant’s answer
unless the court for good cause not ex parte extends the time of disclosure.” Iowa
Code § 668.11(1)(a). “If a party fails to disclose an expert pursuant to subsection 1
or does not make the expert available for discovery, the expert shall be prohibited
from testifying in the action unless leave for the expert’s testimony is given by the
court for good cause shown.” Id. § 668.11(2).
Because section 668.11 is a “procedural or remedial” statute, it is subject to
liberal interpretation. Hantsbarger v. Coffin, 501 N.W.2d 501, 505 (Iowa 1993).
Only substantial, rather than strict, compliance is required. Id. “Substantial
compliance is ‘compliance in respect to essential matters necessary to assure the
reasonable objectives of the statute.’” Id. (citation omitted). The purpose of
section 668.11 is “to require a plaintiff to have his or her proof prepared at an early
stage in the litigation in order that the professional does not have to spend time,
effort and expense in defending a frivolous action.” Id.This case, as the district court found, is similar to our recent decision in
Reyes v. Smith, in which the plaintiffs’ certificate of merit “provided the opinion of
Dr. Richard Marfuggi that [the defendant] breached the standard of care.”
No. 21-0303, 2022 WL 1656238, at *1 (Iowa Ct. App. May 25, 2022), further review
denied (July 22, 2022). After the plaintiffs missed their expert witness deadline
under section 668.11 by about three months, the defendants moved for summary
5
judgment. Id. The plaintiffs then “filed an expert witness disclosure naming
Dr. Marfuggi as their expert,” along with “a motion for additional time to designate
expert witnesses, asserting substantial compliance and they had good cause for
missing the expert-designation deadline.” Id. The district court denied the motion
for additional time and granted summary judgment to the defendants. Id.On appeal, we rejected the plaintiffs’ claim of substantial compliance,
concluding their disclosure of “Dr. Marfuggi’s name, qualifications and opinion in
the certificate of merit” under section 147.140 was not sufficient to meet the
requirements of section 668.11. Id. at *2. We explained that “nothing in the
certificate of merit shows [the plaintiffs] intended to use the same professional as
their expert witness” and “the certificate-of-merit statute explicitly states the plaintiff
‘shall comply with the requirements of section 668.11 and all other applicable law
governing certification and disclosure of expert witnesses.’” Id. (quoting Iowa Code
§ 147.140(3)); accord McHugh v. Smith, 966 N.W.2d 285, 290 (Iowa Ct. App.
2021) (“By enacting section 147.140, layered over the existing mandates of section
668.11, the legislature placed higher demands on medical malpractice plaintiffs.”).
So we found the plaintiffs “did not substantially comply with section 668.11 by
simply filing their certificate of merit.” Reyes, 2022 WL 1656238, at *2 (“The
certificate of merit ‘works in tandem’ with the expert designation, and the two
requirements serve different purposes.” (quoting Struck, 973 N.W.2d at 541)).
Jackson argues Reyes is distinguishable because she made Mercy “aware
of her intent to call Dr. Cowperthwaite as her expert witness by way of the initial
disclosure filed before any [section] 668.11 designation was required.” True, there
were no initial disclosures filed in Reyes. Id. at *1. But the initial disclosures filed
6
here don’t get Jackson far. That’s because they only listed Dr. Cowperthwaite as
an “individual likely to have discoverable information . . . that the disclosing party
may use to support its claims or defenses.” See Iowa R. Civ. P. 1.500(1)(a)(1).
He was not identified in the initial disclosures as a witness at all—expert or
otherwise. Cf. Iowa R. Civ. P. 1.500(2) (“In addition to the disclosures required by
rule 1.500(1), a party must disclose to the other parties the identity of any witness
the party may use at trial to present evidence under Iowa Rules of Evidence 5.702,
5.703, and 5.705.”); McHugh, 966 N.W.2d at 290 (finding no substantial
compliance with section 147.140 where the plaintiff’s “initial disclosures did not
sufficiently identify the expert witness who would certify that her claim had
colorable merit”).
So, contrary to Jackson’s sole argument on appeal, this case is not
distinguishable from Reyes. In both cases, the plaintiffs failed to provide the
defendants with notice of an intention to use the professional listed in the certificate
of merit as the expert witness at trial. See Reyes, 2022 WL 1656238, at *2. We
accordingly affirm the district court’s conclusion that Jackson did not substantially
comply with section 668.11.
II. Good Cause
The district court also denied Jackson’s alternative argument—that she had
good cause “to extend the time for filing to allow [her] to correct any deficiency.”
Jackson’s good-cause argument on appeal, like in district court, is limited to her
assertion that she substantially complied with the requirements of section 668.11. 4
4 Jackson did not offer any reason why she failed to meet the deadline or why she
did not file an expert witness disclosure in the two months between Mercy’s motion
7
Having rejected that argument above, we likewise reject this repackaged claim and
find no abuse of discretion in the court’s ruling on good cause. See
Hantsbarger, 501 N.W.2d at 505.
We affirm the district court’s summary judgment ruling for Mercy.
AFFIRMED.
for summary judgment and the court’s ruling, and she did not address any good-
cause factors. See Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998) (stating
“good cause” in section 668.11 “is a ‘sound, effective, truthful reason, something
more than an excuse, a plea, apology, extenuation, or some justification for the
resulting effect’” (citation omitted)); see also Hantsbarger, 501 N.W.2d at 505–06
(considering the seriousness of the deviation, the prejudice to the defendant, and
defendant’s counsel’s actions in determining good cause under section 668.11).
Nor does she dispute that the six-month delay was substantial—the primary factor
the district court relied on. See Reyes, 2022 WL 1656238, at *2 (“[A] delay of sixty-
six days is substantial.”).