Opinion
No. 4-779 / 04-0378
Filed December 22, 2004
Appeal from the Iowa District Court for Franklin County, Paul Riffell, Judge.
Plaintiff appeals the district court's grant of summary judgment to Kent Rynders based on plaintiff's failure to timely designate an expert in this medical malpractice action. AFFIRMED.
Larry Cohrt of L.J. Cohrt Law Firm, Waterloo, for appellant.
Thomas Finley and Brian Stowe of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., Des Moines, for appellee.
John Grier of Cartwright, Druker Ryden, Marshalltown, for defendant.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
I. Background Facts Proceedings
Susanne Bolt is the executrix of the estate of Gary Jacobs. On April 21, 2003, Bolt sued Dr. Kent Rynders and ABCM Corp., doing business as Hampton Health Care Center, for medical malpractice. Rynders answered on May 30, 2003, denying Bolt's allegations.
This appeal involves only plaintiff's claims against Dr. Rynders.
On December 8, 2003, Rynders filed a motion for summary judgment, citing Bolt's failure to timely designate an expert witness supporting her malpractice claim. Rynders argued Bolt's malpractice claim failed as a matter of law in the absence of supporting expert testimony. In her reply, Bolt acknowledged her failure to timely designate an expert and requested additional time to do so. Bolt stated she was unable to comply with the statutory designation requirements because her expert, Dr. Verdyne, was diagnosed with Alzheimer's disease shortly before the expiration of the statutory deadline. She also stated the difficulty of her situation was compounded by her attorney's unavailability and resulting difficulty in securing another expert.
The district court denied Bolt's request for additional time to designate another expert. The court found Bolt failed to show good cause for failing to timely designate an expert, noting Bolt made no attempt to do so prior to expiration of the statutory deadline. The court similarly found that Bolt's counsel was aware of the circumstances necessitating his absence as well as Dr. Verdyne's circumstances well before the statutory deadline expired. The court concluded that Bolt's medical malpractice claim therefore failed as a matter of law. Rynder's motion for summary judgment was granted, and Bolt's malpractice action was dismissed. Bolt appeals.
II. Extension of Time
Bolt contends the district court abused its discretion in denying her request for an extension of time to designate an expert witness. Iowa Code section 668.11(1)(a) (2003) provides that a plaintiff should designate an expert witness "within one hundred eighty days of the defendant's answer unless the court for good cause not ex parte extends the time of disclosure." Bolt claims she had good cause for not designating an expert within 180 days as required by the statute because she could not have predicted Dr. Verdyne's medical problems.
We review a district court's ruling denying an extension of time to designate an expert for an abuse of discretion. Nedved v. Welch, 585 N.W.2d 238, 239 (Iowa 1998). The court's exercise of discretion will not be disturbed unless it was exercised on clearly untenable grounds or to an extent clearly unreasonable. Id. at 239-40.
In considering whether a plaintiff has shown good cause for an extension, we look to three factors: (1) the seriousness of the deviation; (2) the prejudice to the defendant; and (3) defendant's counsel's actions. Hantsbarger v. Coffin, 501 N.W.2d 501, 505-06 (Iowa 1993). First, we find the deviation in this case was serious because even by the time the district court ruled on the motion for summary judgment, on February 9, 2004, Bolt was still not ready to name an expert. See Hill v. McCartney, 590 N.W.2d 52, 55 (Iowa Ct.App. 1998) (finding deviation was serious when plaintiff not only needed additional time to designate an expert, but to locate one as well).
Second, Rynders suffered "the prejudice which might be presumed to occur when experts are not designated by the statutory deadline." Nedved, 585 N.W.2d at 241. The purpose of section 668.11 is to provide certainty about the identity of experts and to prevent last minute dismissals when an expert cannot be found. Cox v. Jones, 470 N.W.2d 23, 25-26 (Iowa 1991). "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." Hantsbarger, 501 N.W.2d at 504.
Finally, in this case defense counsel did not "silently wait for the time period to pass and then use plaintiffs' deficient designation to seek a prohibition of plaintiffs' experts and a dismissal of their claims." See id. at 505. Defendant made discovery requests regarding plaintiff's designation of an expert. Considering all these factors, we conclude the district court did not abuse its discretion in denying Bolt's request for an extension of time to designate an expert.
III. Summary Judgment
We review a district court's ruling on a motion for summary judgment for correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank Trust, 588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). In reviewing a motion for summary judgment, we consider the evidence in a light most favorable to the party opposing the motion. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
On appeal, Bolt does not contend that it is unnecessary for her to present the testimony of an expert in order to establish her claim of medical malpractice. Thus, by finding the district court did not abuse its discretion in denying her motion for an extension of time, we also find summary judgment was appropriate. See Nedved, 585 N.W.2d at 241. We affirm the decision of the district court granting summary judgment to Rynders.