Mengwasser v. Comito

Decision Date04 March 2022
Docket Number19-1983
Citation970 N.W.2d 875
Parties Robyn MENGWASSER, Appellant, v. Joseph COMITO and Capital City Fruit Co., Appellees.
CourtIowa Supreme Court

Bruce H. Stoltze and John Q. Stoltze of Stoltze & Stoltze, PLC, Des Moines, and Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for appellant.

Jeffrey D. Ewoldt and Jessica A. Eglseder of Hopkins & Huebner, P.C., Des Moines, for appellees.

Mansfield, J., delivered the opinion of the court, in which all justices joined.


I. Introduction.

This case, like our recently decided case of McGrew v. Otoadese , 969 N.W.2d 311 (Iowa 2022), requires us to consider the parties’ expert disclosure obligations in civil litigation. Those duties changed somewhat in 2014 when we adopted amendments to the Iowa Rules of Civil Procedure, inspired by prior changes to the federal rules. Here, the district court misapplied the new rules when it excluded certain expert opinions of the plaintiff's treating chiropractor. The district court reasoned that the chiropractor had not formed those opinions during treatment and the plaintiff had not submitted a timely rule 1.500(2)(b ) expert report. But the 2014 rule changes allow parties to submit more limited rule 1.500(2)(c ) disclosures for experts who have not been retained for purposes of litigation, regardless of when the expert forms the opinion. The plaintiff had provided such a disclosure for her treating chiropractor. Because the district court abused its discretion in its evidentiary ruling, and the ruling may have affected the outcome of trial, we reverse the judgment of the district court, vacate the court of appeals decision affirming the district court, and remand for a new trial.

II. Background Facts and Proceedings.

On September 28, 2015, Robyn Mengwasser was stopped at an intersection when Joseph Comito, an officer of Capital City Fruit Company, driving a company vehicle, rear-ended her. Comito estimates his speed was five miles per hour at the time of impact. Vehicle damage was minor. The airbags did not deploy. Mengwasser and Comito pulled into a nearby parking lot to discuss the accident and exchange contact and insurance information. Both then went on their way. Neither party reported injuries or contacted police or paramedics.

Mengwasser experienced neck pain later that night and sought treatment at an emergency room. Pain medication was prescribed, and she was advised to follow up with her regular doctor.

A week later, Mengwasser visited her chiropractor, Dr. Randy Dierenfield. She had seen Dr. Dierenfield occasionally since 2006. In notes from the first visit, Dr. Dierenfield recorded that Mengwasser said she had injured her neck in a car accident. He also noted literature that indicated Mengwasser may have been at greater risk for injury because she was unaware of the impending collision and was struck from behind while wearing a seat belt. In his objective findings, he diagnosed her with subluxations of the C3 vertebra and muscle spasms of the right trapezius and left levator scapulae. Dr. Dierenfield provided treatment consisting of chiropractic adjustments, acupuncture, and trigger point therapy.

Mengwasser visited Dr. Dierenfield for treatment more than a dozen times in the months of October and November 2015. Later, her visits became more sporadic. According to Dr. Dierenfield, Mengwasser reached maximum medical improvement in May of 2018, but "there [was] still some injury evident." At the time of trial, Mengwasser had continued to see Dr. Dierenfield on an "as-needed" basis. Dr. Dierenfield testified that he expected to treat Mengwasser in the future "on an as-needed basis for flare-ups."

Mengwasser filed a petition in Polk County District Court on September 27, 2017, naming Comito and Capitol City Fruit as defendants. She alleged Comito had caused his vehicle to negligently collide with hers, resulting in a neck injury. She sought damages for medical expenses, pain and suffering, lost wages, and loss of full mind and body. Past and future damages were sought for each category.

Mengwasser filed her expert designations on November 26, 2018. She disclosed one retained expert, Dr. Jacqueline Stoken. She also disclosed that her treating physicians identified in discovery would potentially offer expert testimony:

These witness experts will testify regarding all aspects of Plaintiff's care including, but not limited to treatment, diagnosis, prognosis, mechanism of injury, and causation for injuries sustained due to the actions of Defendant. These experts will also testify as to the standard, customary and reasonable value of all medical expenses, past and future.

According to the scheduling order, Mengwasser's rule 1.500(2)(b ) written expert reports were due by December 26. Mengwasser provided an expert report for Dr. Stoken but not for her treating chiropractor, Dr. Dierenfield.

On March 4, 2019, Mengwasser produced a letter written by Dr. Dierenfield. The letter, which had been prepared approximately a week earlier, detailed the chiropractor's opinions on causation and the permanency of Mengwasser's injury:

I have made the following conclusions as Robyn Mengwasser's chiropractor, and as part of my routine diagnosis and treatment duties. I began treating Robyn in October of 2015 due to injuries she sustained in a motor vehicle collision. Robyn initially complained of neck pain due to a rear end collision in which she was an unaware belted passenger of the vehicle impacted.
My initial diagnosis was a cervical strain /sprain. Robyn reported that her time working on a computer as a duty under duress. Robyn continued to receive chiropractic treatment at my office for these injuries throughout the rest of 2015, 2016, 2017, 2018 and up until the date of this report.
Although Robyn's condition did improve during the course of her treatment, she ultimately reached maximum chiropractic improvement. In other words, Robyn's condition can be prevented from worsening with chiropractic treatment as needed, but she will never fully recover from her injuries....
I have concluded at this time that Robyn's pain and functional limitations with respect to her cervical injury are more likely than not the result of the September 2015 motor vehicle collision. Further, I have concluded that her diminished functionality has impacted her ability to perform her work since she is unable to sit for long periods of time.

On March 12, the defendants offered to confess judgment for the sum of $25,000.

On May 29, the defendants moved to strike Dr. Dierenfield's opinions on causation and permanency of injury.1 They argued that rule 1.500(2)(b ) required Mengwasser to file a written expert report for Dr. Dierenfield, and the deadline for such reports had passed. The defendants took the position that Dr. Dierenfield's expert testimony must be limited to opinions he developed during treatment as evidenced in Mengwasser's medical records.

Mengwasser resisted this motion, arguing that Dr. Dierenfield had formed his opinions during the course of treatment. A hearing on the motion to strike was held.

On June 16, the district court granted the motion to strike Dr. Dierenfield's causation and permanency opinions. The court reasoned:

Dierenfield's opinions (as to causation and loss of function and its impact on plaintiff's ability to perform her work) ... were not formed or stated during the course of [his] treatment of plaintiff and certainly were not disclosed or even revealed in [his] medical records as of plaintiff's December 26, 2018 deadline for making expert disclosures. Therefore, defendantsmotion to strike is GRANTED as to those specific opinions. However, it should be noted that the foregoing ruling does not prohibit ... testimony regarding [his] actual medical treatment of plaintiff ....

Having been alerted that Mengwasser would be undergoing additional diagnosis and treatment in late May and early June, the defendants also filed a motion on June 17 to exclude evidence of new medical treatment produced "at the eleventh hour before trial."

Just before trial, Mengwasser turned over a May 29 treatment report and a June 7 MRI to the defendants. These were excluded by the district court as untimely.

Jury trial began on June 24. On the second day of trial, Mengwasser made an offer of proof concerning Dr. Dierenfield's anticipated expert testimony. Dr. Dierenfield testified therein as follows:

Q. Have you formed any conclusions with respect to Robyn Mengwasser's ability to perform her work duties?
A. Yes.
Q. ... What are those conclusions, Doctor?
A. I have concluded at this time that Robyn's pain and functional limitations with respect to her cervical injury are more likely than not to be the result of this accident we're talking about.
Further, I have concluded that her diminished functionality has impacted her ability to perform her work since she is unable to sit for long periods of time.
Q. When did you come to those conclusions, Doctor?
A. Those conclusions had been formed during the last end of the treatments. When I started seeing things stabilizing down and still noticing, after I released her from MMI, that she still had problems, and, like, sitting problems, things like that, would flare her condition up.
Q. So those opinions were formed during the course of your treatment of Robyn Mengwasser?
A. Toward the end of the treatment, yes.
Q. ... Was that part of your assessment of the patient?
A. Correct.
Q. And did that assist you in determining the course of your treatment?
A. Yes.

In addition to making the offer of proof, Mengwasser's attorney argued as follows:

[W]e don't believe this is a witness that is required to issue a report pursuant to Iowa Rule of Civil Procedure 1.500. Instead, we think this is testimony -- it relates to the scope of testimony of experts under Iowa Rule of Civil Procedure 1.508(4).

The court declined to change its ruling. Nevertheless, Dr. Dierenfield was allowed to...

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