                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1277
                              Filed August 5, 2020


DARREL K. STANTON,
    Plaintiff-Appellee,

vs.

KNOXVILLE COMMUNITY HOSPITAL, INC. d/b/a KNOXVILLE HOSPITALS &
CLINICS and STEPHEN R. ECKSTAT,
      Defendants-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Gregory A. Hulse,

Judge.

      A hospital and doctor seek interlocutory review of an order denying their

motions for summary judgment. REVERSED AND REMANDED.



      Frederick T. Harris, Jeffrey R. Kappelman, and Andrew M. Stanley (until

withdrawal) of Finley Law Firm, P.C., Des Moines, and Jennifer Rinden and Nancy

J. Penner of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellants.

      Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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MAY, Judge.

      Darrel Stanton brought this medical negligence case against defendants

Knoxville Hospitals & Clinics (Knoxville) and Dr. Stephen Eckstat (Eckstat).

Stanton failed to timely designate an expert witness. About three months after

Stanton’s deadline passed, defendants moved for summary judgment. About a

month later, Stanton designated an expert. The district court denied the motions

for summary judgment. Our supreme court granted interlocutory review. We

reverse and remand.

      I. Factual Background

      In September 2017, Stanton filed his petition alleging medical negligence

against Knoxville and Eckstat. In October, both defendants answered.

      In January 2018, the parties filed a stipulated Trial Scheduling and

Discovery   Plan   (Plan).     As   to   Stanton’s   expert,   the   Plan   stated:




      Attachment “A” stated:
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      The record is clear that, in January, Stanton’s counsel expressly agreed to

the deadlines stated in Attachment “A.” One of the defense lawyers had circulated

an email proposing those dates, to wit:




      In a responsive email, Stanton’s counsel said: “That’s fine with me.”

      Also during the winter of 2017–18, both defendants served written discovery

requests on Stanton. Both defendants asked Stanton for information about his

experts.

      Stanton did not answer in a timely manner.         On several occasions,

defendants’ counsel reached out to inquire about the status of Stanton’s

responses. For example, on April 26, 2018, Knoxville’s counsel sent this email,

which expressly asked about Stanton’s “experts”:




      On August 2, Stanton provided his discovery responses. They included no

specifics about Stanton’s retained experts, if any.      For example, Eckstat’s

interrogatory number 8 requested information about “each person whom you have

consulted and/or whom you expect to call as an expert witness at trial.”       In

response, Stanton stated:
                                          4




       Stanton did not designate experts on or before his January 12, 2019

deadline. Stanton did not produce expert reports on or before his February 12

deadline.

       Eckstat and Knoxville complied with their expert deadlines by designating

experts on April 1 and 9, respectively.

       On April 2, Stanton’s lawyer’s office began making inquiries into potential

experts.

       On April 11, defendants filed their motions for summary judgment and

supporting documents. Defendants argued that, because Stanton had failed to

timely designate an expert, Iowa Code section 668.11 (2017) precluded Stanton

from presenting expert testimony at trial. And so Stanton would be unable to prove

medical negligence under Iowa law.

       On April 24, Stanton filed his resistance. He contended his deadline for

designation was June 18, 2019. In the alternative, he argued there was good

cause for him to designate experts by June 18.

       On May 22, Stanton filed a designation of expert witness. On June 13,

Stanton filed his expert’s report.

       On July 2, the district court entered an order on defendants’ motions for

summary judgment. The court agreed Stanton had failed to comply with his expert

deadlines. But the court found there was good cause for Stanton’s failures. And

so the court denied summary judgment.
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       Defendants sought interlocutory review. The supreme court granted their

request and then transferred the case to us. We now proceed to the merits.

       II. Standard of Review

       “We review the district court’s summary judgment ruling to correct errors at

law.” Vossoughi v. Polaschek, 859 N.W.2d 643, 649 (Iowa 2015). When reviewing

“good cause” determinations under Iowa Code section 668.11, however, “[t]he

scope of our review is for abuse of discretion.” Hantsbarger v. Coffin, 501 N.W.2d

501, 505 (Iowa 1993). The district court “has broad discretion in ruling on such

matters, and the exercise of that discretion will ordinarily not be disturbed unless it

was exercised on clearly untenable grounds or to an extent clearly unreasonable.”

Id. (citation omitted).

       III. Analysis

       Like most medical-negligence plaintiffs, Stanton could not proceed to trial

without an expert.1 Iowa Code section 668.11 governs Stanton’s obligation to

timely disclose his expert. It provides in pertinent part:

               1. A party in a professional liability case brought against a
       licensed professional pursuant to this chapter who intends to call an
       expert witness of their own selection, shall certify to the court and all
       other parties the expert’s name, qualifications and the purpose for
       calling the expert within the following time period:



1As the court explained in Donovan v. State:
      If a doctor operates on the wrong patient or amputates the wrong
      limb, a plaintiff would not have to introduce expert testimony to
      establish that the doctor was negligent. On the other hand, highly
      technical questions of diagnoses and causation which lie beyond the
      understanding of a layperson require introduction of expert
      testimony.
445 N.W.2d 763, 766 (Iowa 1989). The parties agree this case falls in the latter
category.
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              a. The plaintiff within one hundred eighty days of the
       defendant’s answer unless the court for good cause not ex parte
       extends the time of disclosure.
              b. The defendant within ninety days of plaintiff’s certification.
              2. 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.

Iowa Code § 668.11.

       As with all statutes, we find the meaning of section 668.11 “in the ‘text of

the statute,’ the ‘words chosen by the legislature.’” See Fishel v. Redenbaugh,

939 N.W.2d 660, 663 (Iowa Ct. App. 2019) (citation omitted); see Doe v. State,

943 N.W.2d 608, 610 (Iowa 2020) (noting “in questions of statutory interpretation,

‘[w]e do not inquire what the legislature meant; we ask only what the statute

means.’ This is necessarily a textual inquiry as only the text of a piece of legislation

is enacted into law” (alteration in original) (internal citation omitted)).

       Like the district court, we conclude Stanton “did not abide by the required

timeline in disclosing [his] expert.” The parties had all agreed to the deadlines in

Attachment A. It plainly stated Stanton’s deadline for designating experts was

January 12, 2019. Even so, he did not designate until months later, on May 22.

       Because Stanton failed to timely designate his expert, subsection (2) of

section 668.11 “prohibit[s]” Stanton’s expert “from testifying . . . unless leave for

the expert’s testimony is given by the court for good cause shown.” (Emphasis

added.) The central question, then, is whether or not Stanton has shown “good

cause” for his delay.

       Our case law fleshes out the meaning of “good cause.” In Donovan, our

supreme court suggested “good cause” in section 668.11 could be compared with
                                          7


“good cause” in the context of a motion to set aside a default judgment. 445

N.W.2d at 766. There it means

       [a] sound, effective, truthful reason, something more than an excuse,
       a plea, apology, extenuation, or some justification for the resulting
       effect. The movant must show his [or her] failure to defend was not
       due to his [or her] negligence or want of ordinary care or attention, or
       to his [or her] carelessness or inattention. He [or she] must show
       affirmatively he [or she] did intend to defend and took steps to do so,
       but because of some misunderstanding, accident, mistake or
       excusable neglect failed to do so. Defaults will not be vacated where
       the movant has ignored plain mandates in the rules with ample
       opportunity to abide by them.

Id. (emphasis added) (citation omitted); see Nedved v. Welch, 585 N.W.2d 238,

240 (Iowa 1998) (quoting Donovan and noting that “[i]n interpreting the term ‘good

cause’ in section 668.11, we have relied on the definition of good cause for setting

aside a default judgment”); see also Bulmer v. UnityPoint Health, No. 17-2084,

2019 WL 2144627, at *2 (Iowa Ct. App. May 15, 2019) (“Our supreme court has

applied the good-cause definition for setting aside a default judgment to section

668.11.”).

       Later, we interpreted Hantsbarger, 501 N.W.2d at 505–06, to mean that,

“[i]n determining whether good cause exists” for purposes of section 668.11, courts

should consider “three factors: (1) the seriousness of the deviation; (2) the

prejudice to the defendant; and (3) defendant’s counsel’s actions.”               Hill v.

McCartney, 590 N.W.2d 52, 55 (Iowa Ct. App. 1998); see, e.g., Sadler v. Primus,

No. 18-1198, 2019 WL 4302125, at *3 (Iowa Ct. App. Sept. 11, 2019) (applying

three-factor analysis).

       Applying these principles to the record here, we find many circumstances

that weigh against a finding of good cause. They include the following:
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       (1)    Stanton’s deadline was clear.

       (2)    Stanton had ample opportunity to comply with the deadline. He filed

              this suit in September 2017, well over a year before his January 2019

              expert deadline.

       (3)    Like the district court, we find Stanton “seriously deviated” from the

              deadlines. He did not designate until May 22, 2019, more than four

              months after his January 12 deadline.

       (4)    Stanton did not start looking for an expert until April 2, 2019—a year

              and a half after he filed this lawsuit in September 2017, and almost

              three months after his expert-designation deadline had already

              passed.

       (5)    Defendants suffered at least some prejudice.              Because the

              defendants complied with their deadlines but Stanton did not, the

              defendants ended up designating experts before Stanton.            As a

              result,   Stanton    gained—and      defendants    lost—the    strategic

              advantage of seeing his opponent’s expert materials before he had

              to designate. That is the opposite of what the parties had agreed to.

              It is also the opposite of the legislature’s plan as reflected in Section

              668.11(1)(b).    It plainly anticipates defendants will not have to

              designate until after plaintiffs.2




2We recognize that prejudice in this case is not as great as in some cases. As the
district court properly noted, trial was still six months away when the court denied
summary judgment. Even if no prejudice had occurred, however, that would not
“excuse” Stanton’s “late designation.” See Nedved, 585 N.W.2d at 241.
                                          9


       (6)    Defendants’ counsel made multiple efforts—both through discovery

              requests and follow-up emails—to obtain from Stanton information

              about his experts.

       Despite these many concerning facts, we are mindful that “[t]he scope of

our review is for abuse of discretion.” Hantsbarger, 501 N.W.2d at 505. Even so,

we conclude reversal is appropriate. We believe this outcome is supported by the

circumstances listed above.        And we emphasize two particular concerns:

(1) Stanton has not shown a valid reason for his failure to timely designate his

expert; and (2) the district court erroneously concluded defendants’ counsel’s

actions supported a finding of good cause.

       As for the reason for Stanton’s delay, we defer to the district court’s finding

that Stanton was “truthful” about the reason for missing the January deadline,

namely, that counsel actually believed the deadline was in June. Even so, we

cannot conclude Stanton’s reason was a “sound, effective, truthful reason” of the

kind envisioned by Donovan. See 445 N.W.2d at 766 (emphasis added) (citation

omitted). As the district court correctly found, the filings that established Stanton’s

January 12 deadline—the Plan and Attachment “A”—were not vague. They were

clear. Moreover, as emails between the lawyers show, Stanton’s counsel was

actually aware of his January 12 deadline. He agreed to it. And, as noted above,

Stanton had “ample opportunity”—well over a year—to designate an expert before

his January deadline. See id. (“Defaults will not be vacated where the movant has

ignored plain mandates in the rules with ample opportunity to abide by them.”

(emphasis added) (citation omitted)).      Given these circumstances, we cannot

conclude Stanton has “show[n]” that his failure to timely designate arose from a
                                          10

valid reason. See id. (“The movant must show his [or her] failure to defend was

not due to his [or her] negligence or want of ordinary care or attention, or to his [or

her] carelessness or inattention.” (emphasis added) (citation omitted)).

       As for defense counsel’s actions, the district court was correct in noting that,

under Hantsbarger, “it is appropriate to consider defendant’s counsel’s actions, or

lack thereof, in determining good cause for granting plaintiffs’ request for relief.”

501 N.W.2d at 505–06. But we agree with defendants that the district court

misapplied this factor by determining defense counsel’s actions weighed in favor

of a finding of good cause.

       The district court noted that defense counsel “waited for the time period [for

designating experts] to pass and then used [p]laintiff’s late designation as a means

to seek summary judgment.”3 We take this to mean the district court believed the

defendants should have waited longer before filing their motions for summary

judgment. But our supreme court has said this about section 668.11:

       We have previously stated that the legislative intent for establishing
       deadlines in professional liability actions was to provide certainty


3 Stanton places great reliance on an email in which the defendants’ lawyers
agreed to wait and “see if the plaintiff’s lawyer blows his expert deadline” before
moving for summary judgment. Stanton characterizes the defendants’ approach
as “inappropriate,” “troublesome,” and “unprecedented.”            We reject these
characterizations. As explained, defense counsel gave Stanton ample opportunity
to comply with his obligations before they finally moved for summary judgment.
They had no duty to wait longer or offer additional help to their adversary.
Stanton’s contrary view would turn defense counsel into their “brother’s keeper.”
See Hantsbarger, 501 N.W.2d at 505. The Hantsbarger court expressly rejected
that view. Id. (noting “we do not suggest that opposing counsel must act as his or
her ‘brother’s keeper’”); see also Gregory Titelman, America’s Popular Sayings 11
(2nd ed. 2000) (explaining the phrase “Am I my brother’s keeper?” means “Am I
responsible for my brother’s deeds?”; further explaining that “[a]ccording to the Old
Testament, Cain murdered his brother Abel and when asked by God where his
brother was, said that he was not his brother’s keeper”).
                                            11

       about the identity of experts and prevent last minute dismissals when
       an expert cannot be found. We have also stated:
              Early disposition of potential nuisances 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.
       Section 668.11 is designed 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. at 504 (emphasis added) (internal citations omitted).

       In light of these principles, we believe defense lawyers are fully justified in

moving forward with motions for summary judgment where, as here, (1) the

plaintiff’s case cannot proceed without a retained expert; (2) the plaintiff’s deadline

to designate an expert is clear; (3) more than three months have already passed

since plaintiff’s deadline; (4) even so, the plaintiff has still failed to timely designate

an expert; and (5) the plaintiff has not otherwise disclosed an expert by, for

example (a) providing information about an expert through discovery responses,

as was the case in Hantsbarger,4 or (b) filing at least a partial expert designation,

as was the case in Hantsbarger.5 Given these circumstances, we see no reason

for defense counsel to have waited until, say, the dispositive-motion deadline

before requesting a “last minute dismissal” of plaintiff’s case. See id. That sort of




4  In Hantsbarger, “plaintiffs argue[d] that there was ‘good cause’ to allow their
experts to testify because defendant was served with discovery materials which
provided information about their experts.” 501 N.W.2d at 505. In concluding the
district court should have found “good cause,” the Hantsbarger court noted inter
alia that “[p]laintiffs complied with discovery” and “had their experts in hand.” Id.
5 In Hantsbarger, plantiffs filed a timely designation, but it only included the names

of plaintiff’s experts. 501 N.W.2d at 503. It omitted the “qualifications and the
purpose for calling the expert[s].” Id. (quoting Iowa Code § 668.11(1)).
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delay would have only increased the “time, effort[,] and expense” of litigation—the

very burdens section 668.11 was designed to reduce. See id.

       Defense counsel’s actions do not support a finding of “good cause.” We

disagree with the district court’s contrary view.

       IV. Conclusion

       The record does not support a finding of “good cause” for purposes of

section 668.11. We reverse the district court’s order denying defendants’ motions

for summary judgment. We remand for entry of summary judgment in favor of

defendants.

       REVERSED AND REMANDED.
