Duncan v. City of Cedar Rapids, 95-1392

• Decision Date: 22 January 1997
• Docket Number: No. 95-1392,95-1392
• Citation: 560 N.W.2d 320
• Parties: Preston DUNCAN, as Administrator of the Estate of Duane Duncan, Deceased, Appellant, v. The CITY OF CEDAR RAPIDS, Iowa, and Kim William Klima, Appellees.
• Court: Iowa Supreme Court

Page 320

560 N.W.2d 320

Preston DUNCAN, as Administrator of the Estate of Duane Duncan, Deceased, Appellant, v. The CITY OF CEDAR RAPIDS, Iowa, and Kim William Klima, Appellees.

No. 95-1392.

Supreme Court of Iowa.

Jan. 22, 1997.

As Amended on Denial of Rehearing March 26, 1997.

Gerald J. Kucera of the Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.

William G. Nicholson and Crystal L. Usher of White & Johnson, P.C., Cedar Rapids, for appellees.

Considered en banc.

TERNUS, Justice.

Duane Duncan was severely injured after being hit by a bus owned by appellee, City of Cedar Rapids, and driven by appellee, Kim Klima. Duncan's conservator filed this action against the City and Klima, seeking damages for Duncan's injuries. After Duncan died, the administrator of his estate was substituted as plaintiff. The jury returned a verdict finding Klima not at fault and the district court entered judgment against the estate. The estate appeals, claiming the district court erred in admitting certain items of evidence and in refusing the estate's requested jury instructions. We affirm.

I. Background Facts and Proceedings.

By all accounts, Duane Duncan's adult life was troubled. Duncan was an alcoholic who was arrested on numerous occasions for drunk and disorderly behavior. His abuse of alcohol generated a lengthy history of injuries for which he sought emergency medical treatment some 108 times between May 1988, and March 1992. Duncan also suffered from epileptic seizures and took Dilantin and Phenobarbital for their control.

On March 3, 1992, Duncan was on the sidewalk abutting 12th Avenue in Cedar Rapids, when a city bus, driven by Kim Klima, passed. As the bus swung wide to turn right onto 3rd Street S.E., Duncan went into the street. Klima continued to drive the bus around the corner and as the bus entered the curb lane on 3rd Street S.E., it struck Duncan just in front of the right rear tires. The parties disputed whether Duncan was struck when attempting to flag down the bus or whether he fell into the bus due to drunkenness or a seizure.

Duncan was severely injured. During emergency treatment at a local hospital, the hospital staff took blood samples which were later tested for the presence of alcohol and drugs. This testing showed a blood-alcohol content of .185 and sub-therapeutic levels of Dilantin and Phenobarbital. Duncan was paralyzed after the accident and required constant nursing care.

This action was then filed, alleging Klima was negligent in his operation of the city bus. Over the estate's objections at trial, the blood test results and the testimony and medical records showing Duncan's history of abusing alcohol and his seizure condition were admitted. The estate requested instructions defining the duty of care as that owed by a common carrier to a passenger and an instruction defining a standard of care based on the City's training manuals and timetables. The court refused to give the requested instructions.

The jury returned a verdict finding, in response to a special interrogatory, that Klima was not negligent in his operation of the bus. The district court entered judgment in favor of the City and Klima. We refer to these defendants jointly as "the City" in the remainder of this opinion, unless the context indicates otherwise.

Following unsuccessful post-trial motions, the estate filed this appeal. On appeal, the estate complains of the court's admission of the tests showing the levels of alcohol, Dilantin and Phenobarbital in Duncan's blood at the time of the accident because the foundation for this evidence was deficient. The estate also claims the court erred in admitting evidence of Duncan's history of alcohol use and seizures on the basis this evidence was irrelevant to any issue in the case or, alternatively, that any relevancy was outweighed by unfair prejudice. Finally, the estate argues the trial court erred in failing to give its requested instructions based on Duncan's status as a passenger and based on standards of care contained in the City's bus training manuals and timetables.

II. Admission of Blood Tests.

A party seeking the admission of blood test results must lay a proper foundation by showing (1) the specimen was taken by an authorized person, (2) that person used sterile equipment, (3) the specimen was properly labeled and preserved, (4) the specimen was properly transported and stored, and (5) the identity of the persons processing the blood sample. Sechler v. State, 340 N.W.2d 759, 764 (Iowa 1983). The first four categories of information ensure that the results of the test are reliable. See Henkel v. Heri, 274 N.W.2d 317, 321-22 (Iowa 1979); 11 Patrick D. Kelly, Blashfield Automobile Law & Practice §§ 432.1, .2, at 696-97, 698-99 (1977). The identity of the persons processing the specimen are required so the opposing party has the opportunity to cross-examine the witnesses with respect to the care and procedure used in the testing of the sample. Sechler, 340 N.W.2d at 764.

The trial judge decides whether an adequate foundation has been laid. Id. at 765. In considering this question, the court's focus is on the reliability of the procedures. Henkel, 274 N.W.2d at 321. The court must consider the circumstances surrounding the custody of the specimen and the likelihood that someone would tamper or contaminate the specimen. Sechler, 340 N.W.2d at 765. An adequate foundation is laid when the proponent of the evidence shows it is reasonably probable no tampering, contamination or substitution occurred. Id. It is not necessary to negate any possibility of such an occurrence. Id.

The estate challenges the foundation made by the City here for three reasons: (1) the doctor who took the blood sample had no present recollection of doing so; (2) the City did not disclose the identity of the persons processing the blood in a timely manner; and (3) the personnel who took the vials of blood from the emergency room to the lab were not identified and did not testify. The estate argues these deficiencies in foundation undermined the accuracy of the tests and therefore, the test results should not have been admitted. We review the court's decision to admit this evidence for a clear abuse of discretion. Id. at 764.

A. Recollection of physician drawing blood sample. Dr. Robert Handler testified that he was working in the hospital's trauma center on the morning of Duncan's accident. Handler had no independent recollection of drawing blood from Duncan at that time. The medical records, however, contained nursing notes specifically stating Handler drew blood from the femoral artery. Handler testified only physicians could draw femoral blood in the trauma center and he was the only physician in the trauma center when Duncan was treated there. Handler concluded from the records and the hospital's customary practice that he took the blood sample. This evidence is sufficient to show an authorized person drew the blood, thereby satisfying the first foundational requirement for admission of the test results.

B. Disclosure of witnesses. Less than thirty days before trial, the City amended its witness list to disclose two new witnesses, Jim Rogers and Christine Voges, medical technologists in the hospital where Duncan's blood was tested. The City indicated in its amendment that these witnesses would testify to the foundation for the blood test results. The estate complains that this disclosure did not comply with Iowa Rule of Civil Procedure 125(c) which requires disclosure of expert witness information "as soon as practicable, but in no event less than thirty days prior to the beginning of trial."

The estate's argument is unfounded because rule 125(c) does not apply to these witnesses. Rule 125 applies to the discovery of facts known and mental impressions and opinions held by an expert and "acquired or developed in anticipation of litigation or for trial." Iowa R. Civ. P. 125(a). We held in Day v. McIlrath, 469 N.W.2d 676 (Iowa 1991), that the disclosure procedures of rule 125 did not apply to a treating physician with the possible exception of a treating physician who assumes a role in the litigation analogous to a retained expert. Day, 469 N.W.2d at 677; see Cox v. Jones, 470 N.W.2d 23, 25 (Iowa 1991) (treating physician who will give testimony on standards of care and causation is an expert subject to disclosure under rule 125). The witnesses here were medical technologists employed by the hospital at which Duncan was treated. They were being called to testify to the procedures employed by the hospital generally in the testing of blood, and to the specific testing for alcohol done in this case. This knowledge was not "acquired or developed in anticipation of litigation or for trial." Therefore, rule 125 does not apply.

The estate points out, however, that a third witness, Marg Cutshall, was not identified until after trial had commenced. It argues her testimony should not have been allowed because Iowa Rule of Civil Procedure 122(d) requires a party to supplement its interrogatory answers with the identity of any person having knowledge of discoverable matters or expected to be called as a witness at trial. The purpose of this rule is to avoid surprise and to ensure that the issues are defined before trial. White v. Citizens Nat'l Bank, 262 N.W.2d 812, 816 (Iowa 1978). In this way, the parties can prepare for the actual issues they will confront at trial. Id.

Cutshall was the medical technologist who performed tests for the presence of therapeutic drugs in Duncan's blood. The trial court allowed her testimony because, as a person involved in Duncan's care and treatment, Cutshall's identity was probably more accessible to the estate than to the City. Moreover, because the estate planned to challenge the foundation for the blood tests, the court believed the estate could not close its eyes to relevant information accessible to it and then claim surprise when the City...