                   IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2105
                                  Filed May 3, 2017


TAMARA STELLMACH and JOHN STELLMACH,
    Plaintiffs-Appellants,

vs.

STATE OF IOWA d/b/a UNIVERSITY OF IOWA HOSPITALS AND CLINICS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Marsha A.

Bergan, Judge.



      Tamara and John Stellmach appeal from the jury’s adverse verdict in their

action for medical malpractice. AFFIRMED.




      James K. Weston II of Tom Riley Law Firm, Iowa City, for appellants.

      Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant

Attorney General, for appellee.

      Pope S. Yamada and Richard M. Tucker of Phelan, Tucker, Mullen,

Walker, Tucker & Gelman, L.L.P., Iowa City, for appellee.



      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
                                           2


DANILSON, Chief Judge.

       Tamara and John Stellmach seek a new trial in this medical malpractice

action, contending the district court erred in it rulings concerning the admissibility

of certain testimony by Dr. Bruce Gantz and Dr. Paul Towner.

       Because the jury did not reach the issue of causation, the failure to admit

or exclude evidence as to causation is without prejudice to the Stellmachs. The

trial court did not abuse its discretion in denying their motion for new trial.

I. Background Facts and Proceedings.

       On February 22, 2008, Tamara underwent procedures for a voluntary

research project at the University of Iowa Hospitals and Clinics (UIHC) Center for

Digestive Diseases.      The project included a biofeedback study employing

transcranial magnetic stimulation (TMS).           The consent form for the study

described TMS as follows: “Magnetic stimulation uses very short single pulses of

magnetic energy to stimulate areas of the brain through the scalp.” With respect

to the potential risks, the consent form states:

              The most significant, although very rare, risk when using
       transcranial magnetic stimulation is the induction of seizures.
       People who have had seizures, major head trauma or a history of
       epilepsy with no known cause, presence of metal in the skull or
       under the skull, presence of metal in the back or hips, a cardiac
       pacemaker, an implanted defibrillator or a medication pump cannot
       take part in this study. If any of these conditions applies to you, it is
       VERY IMPORTANT that you share this with the research team and
       you should not take part in this study.

       The next day, February 23, Tamara presented to the UIHC emergency

room (ER), reporting “left facial droop and numbness.” Tamara reported “the left

side [of her face] does feel differently than right, less sensation.” The following

are included in the ER notes of Dr. Tara Cook:
                                             3


       IMPRESSION
              A 40-year old lady with a family history of Bell’s Palsy who
       recently has had a bacterial ear infection, who presents with left
       facial weakness including both upper and lower weakness, likely
       representing a post-infectious Bell’s Palsy. Given her lack of other
       focal findings, unlikely representing stroke or hypertensive
       emergency in the setting of her elevated blood pressure this
       morning. - TC/kms

       PLAN
             Recommend follow up with her primary care physician. No
       need to treat with steroids at this time, given the lack of supporting
       evidence in the literature.

       Dr. Thomas Wernimont noted an impression of “left face weakness,

probable Bell’s Palsy,” indicated the neurology department was contacted for a

consult, and concluded “Patient’s diagnosis of Bell’s Palsy[1] agree with by

neurology.” Tamara was prescribed anti-viral medication and discharged.

       Tamara’s facial condition did not improve. On March 5, Tamara presented

herself to Dr. Bruce Gantz, a neuro-otologist and the head of the UIHC

Department of Otolaryngology—Head and Neck Surgery. Dr. Gantz performed

facial nerve decompression surgery that day. Tamara’s medical summary after

surgery performed by Dr. Gantz indicates Tamara presented with “active

problems,” including hypertension and “Bell[’]s Pals[]y due to transcranial magnet

treatment,” and that Tamara’s “left cranial nerve #4 entrapment was freed up.”

        On December 3, 2010, the Stellmachs filed suit against UIHC contending

it had failed to obtain a proper informed consent before performing the TMS

procedure on Tamara and it negligently performed TMS and failed to properly

diagnose and treat conditions proximately resulting from TMS.


1
 An idiopathic form (i.e., of unknown origin) of facial paralysis resulting from dysfunction
of a cranial nerve causing an inability to control facial muscles on the affected side.
                                         4


       Dr. Gantz was deposed in 2011, at which time he opined:
               Q. Do you have any opinion as to whether the [TMS] Ms.
       Stellmach received—whether that had any possible part in the
       facial paralysis? A. It could have, and I’ll explain why my thought
       process is there.
               Q. Sure. A. When she—When I saw her, and she told me
       about the transcranial stimulation, she told me it caused a severe
       pounding in her head, and it caused her head to move. And I was
       wondering—I don’t know for certain—if that had anything to do with
       reactivation of a herpes simplex virus just like happens in trauma or
       that we see with lifting up the brain at times.
               I have no way of knowing whether that is possible or it—I
       don’t know the levels. I just know that she told me that there was a
       severe pounding, and it was really impressed upon her that it was
       extremely uncomfortable, what she had done.
               Q. Do you have any opinion as to whether it would be—you
       would be comfortable with Ms. Stellmach receiving further
       transcranial magnetic stimulation? A. That’s up to her. I mean, I
       have no opinion. You know, I mean, we don’t know if that caused
       it. It may have contributed to it. I don’t know.

       UIHC later moved for summary judgment, asserting that, on February 23,

2008, Tamara was seen at the UIHC emergency department for a left-sided

facial paralysis and was examined by ER physician Dr. Dana Collaguazo and

neurologist Dr. Tara Cook. Tamara was diagnosed with post-infectious Bell’s

Palsy and was treated with the anti-viral drug Acyclovir, given an eye patch and

rewetting drops to protect her left eye, and was instructed to follow up with her

primary physician. UIHC alleged there was no evidence it had violated a medical

standard of care by only prescribing an anti-viral drug to treat Tamara’s facial

paralysis, and Dr. Gantz did not provide testimony that UIHC violated the

standard of care by failing to properly treat Tamara’s facial paralysis, but rather

Dr. Gantz testified that he, as a neurologist, would have treated Tamara with an

anti-viral drug and a steroid. Dr. Gantz did not testify that treatment with both an
                                          5


anti-viral drug and steroid was the accepted general medical practice for treating

this type of facial paralysis.

       In resistance, the Stellmachs asserted the TMS procedure caused a

pounding and pain in Tamara’s head.             Tamara informed the provider of the

pounding and pain, yet the procedure was not stopped. The Stellmachs argued:

       Tamara Stellmach was not told of the risks she was facing by
       undergoing [TMS]. She testified that, had she been told, she would
       not have undergone the procedure, which was part of a study, not
       vital to her wellbeing. As a result of undergoing TMS, Tamara
       Stellmach suffers from permanent facial paralysis, a significant
       injury. . . . Tamara Stellmach testified that Dr. Gantz told her TMS
       caused her facial paralysis. Dr. Gantz is an employee and agent of
       Defendant, and therefore the statement is an admission of a party
       opponent. Furthermore, Dr. Gantz testified that TMS could have
       caused the facial paralysis, and explained how the trauma Ms.
       Stellmach endured during TMS caused inflammation of the facial
       nerve. Tamara Stellmach testified she had no facial paralysis prior
       to undergoing TMS. The probability of causation can be shown by
       joining expert testimony that causation is possible with non-expert
       testimony that the condition did not exist prior to the event.

       The court concluded there were genuine issues of fact precluding

summary judgment.

       The Stellmachs’ amended designation of expert witnesses named Dr.

Gantz, who was to “testify in conformity with his deposition regarding issues of

informed consent, standard of care, causation, and damages”; “any of her

treating health care providers who may or will testify regarding issues of informed

consent, standard of care, causation and damages including, but not limited to,

staff at [UIHC]”; “admissions made by [UIHC]’s agents and employees”; and

reserved the right “to utilize as expert witnesses those individuals designated by

Defendant in its Certification to the Court.”
                                          6


       At trial, over UIHC’s objections, the Stellmachs were allowed to present

testimony about Dr. Gantz’s statements to them. Tamara testified she saw Dr.

Gantz on March 5 and he believed she had a compressed facial nerve and

recommended immediate surgery. She asked him if the TMS study could have

caused the condition, and “[h]e responded with it’s possible that it could have

unless I had a head trauma.” Tamara also testified that, when she went to a

postoperative appointment, Dr. Gantz “felt that the research study from the

banging on the head is what caused the nerve to be trapped in my skull.”

       Tamara’s mother-in-law was allowed to testify that, after Tamara’s

operation, she heard Dr. Gantz say “the research study caused the problem.”

Tamara’s father-in-law also testified:

       Since we were standing right beside John, we did overhear what
       Doctor Gantz said, and one of the first things that he told John was
       and he seemed to be—he seemed to be rather upset, was that
       this—some study she had volunteered to do had damaged her by
       causing a muscle in her face to jump over a nerve that ran along
       the side of her face and caused a paralysis.

       John testified that he had the following conversation with Dr. Gantz

immediately after the surgery:

               I was like do you have any idea what caused this, could that
       transcranial magnetic stimulation have something to do with it, you
       know, what—I didn’t understand exactly, you know, what the—how
       it worked with the nerve and stuff like that, and he was very upset
       and he said that he thought that the research study because he
       knew what it was, he knew what the TMS was and everything, and
       he said that, you know, that impact of the coil, it’s not an impact like
       you’re hitting somebody on the head but it’s a magnetic pulse, there
       is an impact to it, I think I remember him saying, you know, they
       use it for bipolar and depression and such. It’s kind of a unique
       tool, it can—if you put it on different places, you make different
       things happen. If you put it in one specific area, they can make
       somebody’s arm move.
                                         7


             Q. Did Doctor Gantz in that conversation, I think you
      mentioned that you had asked him if the TMS had anything to do
      with her condition, did he respond to that? A. Yes, he said yes, he
      thought it did.

      In addition, Dr. Gantz’s deposition testimony was allowed to be read into

the record over UIHC’s objection.

      Dr. Gantz was then called as a witness by UIHC and testified:

               Well, when Mrs. Stellmach came to see me, she had a facial
      paralysis on the left side. She couldn’t move. I asked her a
      number of questions about what had gone on because this is the
      first time I had seen her, and she had told me that she had woke[n]
      up after having the morning after a transcranial magnetic
      stimulation procedure and her face was completely paralyzed on
      that side.
               And when we talked about that I asked her about the
      transcranial magnetic stimulation and she told me that she had a
      very strong reaction to it, and I may have misinterpreted what she
      said. She said it was a very violent reaction. I think she had
      pounding in her head, movement of her head, and sort of a shaking
      of her head with that stimulation, and she came to me with a
      diagnosis of Bell’s Palsy and it was my initial interpretation that this
      was probably a Bell’s Palsy; but that was the—she emphasized
      how strong this electro—or transcranial magnetic stimulation was
      on her, so that was my first discussion with her about this.
               Q. And at the time that you had this conversation with Miss
      Stellmach, were you familiar with the way in which TMS was used
      in Dr. Rao’s study? A. No.
               Q. At the time you [had] this conversation with Miss
      Stellmach were you aware she had an ear infection and reported a
      metallic taste in her mouth on February 14th, 2008? A. No. That
      was not in the records that we had at the time.
               Q. Did you tell Tamara Stellmach anything about transcranial
      magnetic stimulation, her report of head shaking, Bell’s Palsy? A.
      Well, what I said was you know, if this was a violent head shaking,
      we had seen on occasion people that have had head trauma like in
      a car accident or concussive injury that came in a few days after
      that with a facial paresis or paralysis and I was wondering at the
      time and when this occurs we sometimes think it’s a stimulus to
      reactivate virus in the nerve which a lot of people think is the cause
      of Bell’s Palsy, that you can reactivate a nerve from an infection like
      ear infection or fever. . . . And so I didn’t know at the time that she
      had had an ear infection and described a metallic taste in her
      mouth and ear pain, and that metallic taste in the mouth is usually
                                         8


       prodome to a facial nerve involvement of some sort, and so that
       comes sometimes with Bell’s Palsy, because the chorda tympani
       nerve, the nerve that travels with the facial nerve gives taste to the
       anterior two-thirds of the tongue and so if you have some
       involvement of the facial nerve of any type of possibly some
       swelling or whatever of that facial nerve then you can get this
       metallic taste, so I wasn’t aware of that at the time when I first saw
       her.

At one juncture in UIHC’s direct examination of Dr. Ganz, a question was asked if

he had a changed opinion, to which he responded,

               Well, I have since found out that the transcranial magnetic
       stimulation really doesn’t have the capacity or intensity to cause a
       head shake. This device has about a one Tesla magnetic pull to it.
       That’s the way we measure magnetic force, and so when you put a
       device like that on the scalp, it has an intense 1.5 or so magnetic
       pull at the skin but as you go deeper into the skull and into the
       brain, the power of that or the intensity of that magnetic pull
       decreases at a factor of four for every millimeter or two you go in it
       decreases in intensity. It’s really not possible that transcranial
       magnetic stimulation could induce such a strong stimuli to stimulate
       the motor cortex of the brain which is what I thought possibly was
       going on at the time, but I didn’t know much about transcranial
       magnetic stimulation because I didn’t use it. I read about it
       because in the past some people tried to use it as a mechanism to
       diagnose the facial nerve injury and how severe it was, because we
       can’t get to the area that’s involved because it’s in the ear bone
       way in deep, so we try to measure the traffic through where that
       injured area to see how much injury there was, but transmagnetic
       cranial stimulation [sic] never panned out. People tried to get a
       retrograde stimulus, measure the response in the brain, it never
       worked out. People that used that to stimulate the facial nerve and
       I also did a literature search and I didn’t find any evidence that
       transmagnetic cranial stimulation [sic] can induce a Bell’s Palsy or
       facial paralysis—let’s not say Bell’s Palsy but a facial paralysis.

Ultimately, Dr. Ganz testified that he thought Stellmach had Bell’s Palsy and “it

was just circumstantial that she developed the paralysis following the procedure.”

       One of the highly disputed issues then arose during cross-examination

when plaintiffs’ counsel explored when Dr. Gantz had learned of Tamara’s ear

infection. Dr. Gantz replied,
                                           9


         When I looked at the records about a month or so ago. . . .
                 Q. Have you ever had any conversations or discussions
         other than scheduling with any of the attorneys for the defense?
                 MR. YAMADA [DEFENSE COUNSEL]: Objection, calls for
         privileged information.
                 MR. WESTON [PLAINTIFF’S COUNSEL]: I’m asking about
         the existence of the conversations, not the content at this point.
                 THE COURT: Then the witness may answer the question.
                 A. I’ve had conversations with Mr. Yamada about this case.
                 Q. About the substance of the case?
                 MR. YAMADA: Same objection, calls for privileged
         information.
                 THE COURT: Sustained.

A lengthy discussion was then held outside the presence of the jury.             After

hearing extensive arguments of counsel, the court persisted in sustaining the

objection.

         After the conclusion of all live witnesses, plaintiffs’ counsel asked to make

a further argument in respect to Dr. Gantz’s testimony. The plaintiffs argued Dr.

Gantz’s testimony concerning his changed opinion should be stricken as a

sanction for UIHC’s failure to provide notice under Iowa Code section 622.10

(2009). UIHC argued section 622.10 was not applicable, noting Dr. Gantz was a

client and the court had allowed the Stellmachs to testify about conversations

with Dr. Gantz as non-hearsay because they argued he was a party-opponent.

The court ruled “there is an attorney/client privilege and I sustained the objection

[to the substance of discussions between Dr. Gantz and defense counsel], and I

don’t have any basis to sanction [defense counsel], I don’t think under 622.10,

subsection three, subsection ‘e’.”

         UIHC also objected to any testimony by Tamara’s personal physician, Dr.

Paul Towner, about whether TMS caused her facial paralysis. The trial court

ruled:
                                          10


               So after giving consideration to your arguments yesterday,
       it’s the court’s ruling that with regard to Doctor Towner’s deposition,
       the defendant’s objections are all overruled except the court
       sustains the objection with regard to the testimony on page 100,
       beginning at line 2, and all the way to page 103, at line 11, and I
       guess I will just address that ruling now.
               What that does is that prohibits Doctor Towner from
       testifying about the TMS procedures causing the facial paralysis,
       and the court gave consideration to this and, you know, first of all, I
       acknowledge that the testimony is relevant under [rule of evidence
       5.]403 but I think that there is a potential that it would cause
       confusion for the jury because it invites the jury to give weight to
       this testimony from an expert.
               Doctor Towner is an expert. He is a treating physician but
       he would be seen as an expert. By his own admissions the court
       finds that Doctor Towner lacks the scientific technical other
       knowledge for an expert to testify under [rule 5.]702.[2] I guess
       specifically he indicates that in his testimony on page 101 that he
       has never seen transcranial magnetic stimulation. In addition, on
       page 102 he indicates that he doesn’t know anything about the
       level of magnetic force that was involved in the procedure, and also
       on that page he states I don’t even know what units are used to
       measure it and then on page 102 and 103, especially 103 he uses
       the word imagine and in that he would imagine certain things, and
       the court finds that it’s just—it would go too far to let the court allow
       a medical doctor with Doctor Towner’s scientific technical
       specialized knowledge testify about the TMS and I think he
       basically—being a cause of the facial paralysis. He basically
       admits himself.

       The district court granted a directed verdict for UIHC on the claim of

negligent failure to obtain informed consent, stating:

       So the reason that I don’t think we have a jury issue on that is that
       the plaintiffs simply did not provide anything close to substantial
       evidence that the performance of TMS would cause Bell’s Palsy. In
       fact, I’ve heard overwhelming evidence to the contrary; and so the
       court doesn’t find that that was something that the defendant
       needed to warn the plaintiff of in an informed consent document
       before performing TMS.
               I also find that the plaintiffs did not produce sufficient
       evidence to let this informed consent issue go to the jury because


2
   Dr. Towner was asked, “Do you know anything about transcranial magnetic
stimulation?” His response was “No.”
                                        11


       TMS—she should have been warned that it would cause pain or
       that it could cause trauma to the 7th cranial nerve.

       The trial court, however, denied directed verdicts on two questions:

whether there was negligence in the TMS performed upon Tamara on February

22, 2008, and in regard to the claim that UIHC committed negligence on

February 23 when Tamara received medical care and treatment at the UIHC ER.

       The jury found no fault attributable to UIHC. The Stellmachs now appeal,

claiming the court erred in not sanctioning UIHC by striking Dr. Gantz’s changed

opinion testimony and abused its discretion in excluding Dr. Towner’s opinion

testimony.

II. Scope and Standards of Review.

       To the extent that we are required to interpret Iowa Code section 622.10,

our review is for correction of errors at law. See State v. Olutunde, 878 N.W.2d

264, 266 (Iowa 2016) (noting we review rulings of statutory interpretation for

correction of errors at law). On the question of whether the district court properly

exercised its discretion in excluding testimony of Drs. Gantz and Towner, our

review is for abuse of discretion. See Hansen v. Cent. Iowa Hosp. Corp., 686

N.W.2d 476, 479-80 (Iowa 2004).

III. Discussion.

       A. Causation Testimony by Dr. Towner. We first address the trial court’s

decision to exclude deposition testimony by Dr. Towner, during which he opined

that, based on the timing of the TMS and Tamara’s Bell’s Palsy, “I do believe that

the forces involved in the magnetic treatment could cause swelling in the nerve.”
                                          12


       The rules of evidence allow testimony by “a witness qualified as an expert

by knowledge, skill, experience, training or education” if the expert’s “specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue.” Iowa R. Evid. 5.702. As noted by the Stellmachs, Iowa courts

are “committed to liberal rule [that] allows opinion testimony if it is of a nature

which will aid the jury and is based on special training, experience, or knowledge

[as] to the issue in question.” Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762,

774 (Iowa 2006) (alterations in the original) (citation omitted).

       Here, Dr. Towner testified he had “never seen” TMS, did not know what

area of Tamara’s head the magnetic coil was near, did not know anything about

the level of the magnetic force, and, in fact, did “not even know how they even

measure magnetic force and what units they would use.” The trial court did not

abuse its discretion in determining Dr. Towner’s opinion testimony that TMS

could cause nerve swelling should not be allowed because Dr. Towner had no

expertise of relevance. See id. (“The facts must be sufficient to allow the expert

to reach a conclusion that is ‘more than mere conjecture or speculation.’” (citation

omitted)).

       B. Testimony by Dr. Gantz. At trial, the Stellmachs introduced Dr. Gantz’s

deposition testimony and were allowed to offer several witnesses who testified as

to statements they heard made by Dr. Gantz.           The defense then called Dr.

Gantz. In his direct testimony for the defense, Dr. Gantz testified he no longer
                                               13


believed Bell’s Palsy could have been caused by TMS. The trial court denied the

Stellmachs’ motion to strike Dr. Gantz’s changed opinion testimony.3

          On appeal, the Stellmachs argue the trial court erred in refusing to instruct

the jury to disregard Dr. Gantz’s changed opinion testimony as a sanction for the

defense’s failure to notify the plaintiffs pursuant to Iowa Code section

622.10(3)(e). They also assert UIHC should have been sanctioned for failure to

supplement discovery pursuant to Iowa Rule of Civil Procedure 1.508(3).

                  1. Section 622.10. During cross-examination, and relying on Keefe

v. Bernard, 774 N.W.2d 663 (Iowa 2009), plaintiffs’ counsel sought to strike Dr.

Gantz’s live testimony as a sanction for the defense’s failure to comply with Iowa

Code section 622.10, which they argued “requires that if the defense meets with

a treating physician, they’re required to provide notice to the plaintiff’s to allow

them to be present for the meeting as well.”

          Section 622.10 deals with the doctor-patient privilege and prohibits a

physician from disclosing any confidential communication unless “the person in

whose favor the prohibition is made waives the rights conferred.” Iowa Code

§ 622.10(1), (2).       However, the “prohibition does not apply to physicians or

surgeons . . . in a civil action in which the condition of the person in whose favor

the prohibition is made is an element or factor of the claim or defense of the

3
    Plaintiff’s counsel characterized Dr. Gantz’s change of opinion as follows:
                   MR. WESTON: Briefly, Your Honor, with regard to the question in
           Doctor Gantz’s change in opinion, page 35, line 16 in his deposition, he
           was asked: Do you have any opinion as to whether the TMS Mrs.
           Stellmach received, whether that had any possible part in the facial
           paralysis? Answer: It could and I’ll explain why my thought process is
           there. And went on to explain that.
                   Today his testimony was completely different, that he believed
           that TMS could not have caused [Ms.] Stellmach’s facial paralysis. So
           there is a substantial significant change in Doctor Gantz’s testimony . . . .
                                        14

person.” Id. § 622.10(2). Under paragraph “3,” which deals with a “civil action in

which the condition of the plaintiff in whose favor the prohibition is made is an

element or factor of the claim or defense of the adverse party,” the defendant’s

counsel is required to “provide written notice to plaintiff’s attorney in a manner

consistent with the Iowa rules of civil procedure providing for notice of deposition

at least ten days prior to any meeting with plaintiff’s physician or surgeon.” Id.

§ 622.10(3)(e). Moreover, a plaintiff’s attorney “has the right to be present at all

such meetings.” Id.

       This is the section upon which the Stellmachs sought to sanction the

defendant, claiming the meeting between Dr. Gantz and the UIHC attorney

violated the provision because no notice was sent to them. The difficulty here is

that Dr. Gantz is an employee of UIHC, although that does not necessitate the

conclusion that all of his communications with the UIHC attorney were privileged.

       In Keefe, our supreme court discussed the tensions between the attorney-

client privilege, attorney work product, and the notice provision of section 622.10.

774 N.W.2d at 667-75. As relevant here, we quote:

                We agree with the United States Supreme Court that the
       corporate attorney-client privilege should not be limited to those in
       the “control group.” Instead, the test must focus on the substance
       and purpose of the communication. If an employee of a corporation
       or entity discusses his or her own actions relating to potential
       liability of the corporation, such communications are protected by
       the attorney-client privilege. See Samaritan Found. [v. Goodfarb],
       862 P.2d [870,] 876 [(Ariz. 1993)] (“It is universally accepted that
       communications directly initiated by an employee to corporate
       counsel seeking legal advice on behalf of the corporation are
       privileged.”). If, on the other hand, a corporate employee is
       interviewed as a “witness” to the actions of others, the
       communication should not be protected by the corporation's
       attorney-client privilege.
                                        15


             Here, to the extent Dr. Sneller discussed his own actions
      and McFarland Clinic’s potential liability for his actions with
      McFarland Clinic’s attorney, Rouwenhorst, such communications
      are protected by McFarland Clinic’s attorney-client privilege.
      However, to the extent Dr. Sneller discussed his observations as a
      witness to or expert on the effects of Dr. Bernard’s treatment of the
      patient, his communications are not protected by McFarland Clinic’s
      attorney-client privilege.

Id. at 672 (emphasis added) (footnote omitted). In Keefe, the supreme court

determined a memorandum prepared by the defense attorney concerning a

meeting with Dr. Sneller was not protected by the attorney-client privilege and,

thus, “not shielded from the notice provision” of section 622.10(3)(e). Id. at 672-

73. However, the court did find that certain statements in the memorandum were

protected by the work-product doctrine and were shielded from the notice

requirement. Id. at 675-76.

      The problem presented to us, however, is that we have no record of what

was discussed between Dr. Gantz and defense counsel. We do not know if Dr.

Gantz discussed his own actions or his observations as a witness to or expert on

the effects of the TMS. Here there was apparently no in camera record made,

and plaintiffs made no offer of proof. We acknowledge that the burden of proof to

establish the attorney-client privilege applies is upon UIHC.       See State v.

Tensley, 249 N.W.2d 659, 661 (Iowa 1977). However, “[t]he general rule is that

failure to offer proof of excluded testimony leaves nothing for review.”      In re

Estate of Herm, 284 N.W.2d 191, 197 (Iowa 1979). The only exception to the

rule is if “the whole record makes apparent what is sought to be proven.” Id.

Under these facts we are unable to conclude the exception applies, and we are

unable to determine whether section 622.10 shielded the communication from
                                          16


the notice provision. Accordingly, we are unable to say the district court abused

its discretion in sustaining the objection.

              2. Rule 1.508. The Stellmachs also argue the trial court erred in

failing to find the defendant failed to disclose or supplement Dr. Gantz’s opinion

testimony.   The Stellmachs served interrogatories requiring disclosure of the

substance of the testimony of witnesses intended to be called by UIHC. They

note that, in UIHC’s response to their interrogatories about trial witnesses, UIHC

“did not provide any information regarding Dr. Gantz.” They contend the defense

had a duty to disclose Dr. Gantz’s “new opinions at least thirty days prior to trial”

under rule 1.508(3).

       Dr. Gantz was a treating physician and was identified as the Stellmachs’

expert but he was also identified as a witness for UIHC in response to

interrogatories served by the Stellmachs.       He would have fallen within the

designation of “any and all witnesses identified at any time by Plaintiffs,” and he

was named as a possible rebuttal witness.

       We are guided in part by rule 1.508, which provides in pertinent part:

               (1) Expert who is expected to be called as a witness. In
       addition to the disclosures and discovery provided pursuant to rules
       1.500(2) and 1.516, discovery of facts known, mental impressions,
       and opinions held by an expert whom the other party expects to call
       as a witness at trial, otherwise discoverable under the provisions of
       rule 1.503(1) and acquired or developed in anticipation of litigation
       or for trial, may be obtained as follows:
               a. Deposition of an expert who may testify. A party may
       depose any person who has been identified as an expert whose
       opinions may be presented at trial. If rule 1.500(2)(b) requires a
       report from the expert, the deposition may be conducted only after
       the report is provided.
               ....
               (3) Duty to supplement discovery as to experts. For an
       expert whose report must be disclosed under rule 1.500(2)(b), the
                                          17


       party’s duty to supplement extends both to information included in
       the report and to information given during the expert’s deposition.
       Any additions or changes to this information must be disclosed no
       later than 30 days before trial. Failure to disclose or supplement
       the identity of an expert witness or the information described in rule
       1.500(2) is subject to sanctions under rule 1.517(3)(a).

(Emphasis added.)

       Rule 1.508(3) imposes the duty to supplement upon the party who has

designated an expert “whose report must be disclosed under rule 1.500(2)(b).”

(Emphasis added.) Rule 1.500(2)(b) applies to a witness who is “retained or

specially employed to provide expert testimony in the case or whose duties as

the party’s employee regularly involve giving expert testimony.” See Whitley v.

C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa 2012) (concluding our

discovery rules exist to avoid surprise and that the duty to supplement responses

is intended “to clarify issues prior to trial, avoid surprise to parties, and allow a

complete opportunity to prepare for trial”).

       UIHC argued the rule did not apply to it and Dr. Gantz. After lengthy

discussion, outside the presence of the jury, the trial court ruled:

               THE COURT: All right. I’m going to deny your motion to
       strike the testimony of Doctor Gantz and your request to instruct the
       jury to disregard his testimony this morning, and I recall when you
       sought to have his statements in a deposition about TMS
       introduced, the defense objected to that and the court granted your
       request to have that testimony come in, so it did come in; but the
       defense asked at that point but the question would we be able to
       call Doctor Gantz to testify here in person and the court said yes,
       would be able to do that.
               I think certainly implied in the court’s ruling if I was going to
       let in this testimony, that certainly when Doctor Gantz came in, the
       State was going to be able to ask him questions that were relevant
       to the case, and to the opinions that are shown in the deposition.
               I don’t think this is the kind of case where that it would be fair
       to say the plaintiffs would be surprised. All of the information that I
       have heard about that Doctor Gantz based his testimony on today
                                         18


        was available to the plaintiffs had you wanted to check to make
        sure that his gut reaction if when he was forming some opinions
        based solely on what looked like the statements he had heard from
        Mrs. Stellmach, if you had wanted to check and see if since that
        time he had learned anything more, you would have been able to
        do that, and so I can’t find, you know, without—I can’t find that you
        would be unduly prejudiced because I can’t—I don’t—I think that
        the plaintiffs wanted Doctor Gantz’s testimony to remain fixed and
        it’s, I think, you might have had—I think you had some good
        reasons to believe it might not have remained fixed if it was based
        solely on what Mrs. Stellmach told Doctor Gantz.

        UIHC also argues it was exempt from the supplementation requirement of

rule 1.508(3) because Dr. Gantz was not an expert retained in anticipation of

litigation.   However, when a treating physician “assumes a role in litigation

analogous to the role of a retained expert,” supplemental discovery may become

obligatory. Day v. McIlrath, 469 N.W.2d 676, 677 (Iowa 1991); see also Carson

v. Webb, 486 N.W.2d 278, 280-81 (Iowa 1992). Here, UIHC used Dr. Gantz and

his newly-formed opinions on causation in a manner analogous to a retained

expert—without identifying him as its expert and without supplementing its

responses to interrogatories. We do not agree with UIHC that it is excused from

an obligation to supplement its responses to interrogatories because Dr. Gantz

was the Stellmachs’ named expert under these circumstances. Dr. Gantz formed

his new opinion well after he was no longer treating Tamara Stellmach. It is also

not disputed that UIHC counsel were aware of Dr. Gantz’s changed opinion on

the material issue of causation prior to trial. The fact that the Stellmachs could

have re-deposed Dr. Gantz prior to trial or contacted him to see if he had a

changed opinion is not of consequence in determining if UIHC complied with its

duties to supplement discovery responses. See Hoekstra v. Farm Bureau Mut.
                                          19

Ins. Co., 382 N.W.2d 100, 109 (Iowa 1986) (finding lack of pretrial preparation

does not excuse the opposing party’s duty to supplement discovery).

       Although we believe the trial court was within its authority to impose

sanctions during the trial, we find the remedy of the exclusion of Dr. Gantz’s

testimony of his newly-determined opinion on causation is no longer material or

timely to the relief sought on appeal. The Stellmachs seek a new trial. We

premise our conclusion on the fact the jury did not reach the issue of causation—

finding no fault—and, thus, the failure to impose a sanction excluding Dr. Gantz’s

testimony on causation was not prejudicial. The Stellmachs received a trial on

the merits on the issue of fault and cannot complain about the failure to exclude

evidence having no relevance to that issue. We affirm.

IV. Conclusion.

       Because the jury did not reach the issue of causation, the failure to admit

or exclude evidence as to causation is without prejudice to the Stellmachs. The

trial court did not abuse its discretion in denying their motion for new trial.

       AFFIRMED.
