Jahn Patric Kirlin and Sara Louise Kirlin, Appellants, vs. Barclay A. Monaster, Christian William Jones, and Physicians Clinic Inc. d/b/a Methodist Physicians Clinic – Council Bluffs, Appellees.
No. 24–0205
In the Iowa Supreme Court
March 21, 2025
Amended May 29, 2025
Submitted February 19, 2025
The plaintiffs in a medical malpractice action appeal the summary judgment granted to the defendants based on a failure to timely certify experts. Reversed and Remanded.
Mansfield, J., delivered the opinion of the court, in which all justices joined.
Kelly N. Wyman of Wyman Law, Council Bluffs, and Dean T. Jennings of Jennings Law Firm, Council Bluffs, for appellants.
Robert A. Mooney and Kalli P. Gloudemans of Mooney, Lenagham Westberg Dorn, LLC, Omaha, Nebraska, for appellees Christian William Jones and Physicians Clinic Inc.
Frederick T. Harris, Theodore T. Appel (until withdrawal), and Georgia R. Rice of Lamson Dugan & Murray LLP, West Des Moines, for appellee Barclay A. Monaster.
This is the second time this medical malpractice case has been before us. Unfortunately, we must reverse and remand once again. The question before us is what happens to a
We conclude that we need not answer the question today. Both positions are plausible. We conclude that the district court abused its discretion in not finding “good cause” for the plaintiffs to make expert certifications that adhered to the second deadline but not the first. Not only was there uncertainty about which deadline applied but the record also reveals a lack of prejudice to the defendants, the plaintiffs making good-faith efforts to litigate the case, and the defendants’ prior communication of a different position to the plaintiffs. Together, these considerations add up to an abuse of discretion in denying the plaintiffs their day in court. Accordingly, we reverse the judgment of the district court dismissing this case and remand for further proceedings.
I. Background Facts and Procedural History.
A. The Alleged Malpractice. We recite the facts as alleged by the plaintiffs. Jahn Kirlin is a thirty-seven-year-old man. Beginning on April 1, 2019, Kirlin experienced a sudden and continuous significant right-side neck pain, intense headaches, and pressure behind his right eye. Dr. Christian William Jones, a family physician with Methodist Physicians Clinic (MPC), began treating Kirlin for these symptoms on April 4. Dr. Jones recommended some pain
On April 12, Dr. Jones was notified that the head and neck pain were continuing with no relief. The office stated that it was too late in the day on a Friday to order the MRI and that it would be ordered on Monday, April 15.
On Monday, Dr. Barclay Monaster—another family physician—took charge of Kirlin‘s care, having returned from a leave of absence after undergoing treatment for alcohol abuse. Dr. Monaster refused to order an MRI before seeing Kirlin in person. Kirlin scheduled an appointment for 1:30 p.m. At that time, Dr. Monaster refused to order the MRI, emphasized a $3,000 test was not necessary, ordered a prescription for steroids, and suggested Kirlin could continue his chiropractic care and follow up at the end of the week.
On the next day, April 16, Kirlin was receiving treatment from his chiropractor and immediately experienced stroke symptoms after an adjustment of his neck. Kirlin was transported by ambulance to Jennie Edmundson Hospital and eventually to the University of Nebraska Medical Center. It was confirmed that Kirlin suffered bilateral distal cervical vertebral artery dissections with high-grade stenoses and small thrombus in the proximal basilar artery, with permanent and irreversible damage.
The plaintiffs allege that some combination of MPC, Dr. Jones, and Dr. Monaster changed, altered, or made deliberate omissions on Kirlin‘s medical records; the medical records do not reflect an appointment for Kirlin on April 15. The plaintiffs further allege that Dr. Monaster was intoxicated at the time of the appointment with Kirlin on April 15. They allege that Dr. Monaster was arrested and later pleaded guilty to operating a motor vehicle while intoxicated, second offense, on April 16. Shortly thereafter, according to the plaintiffs, Dr. Monaster
B. Litigation Leading Up to the Prior Appeal. On September 11, 2020, Jahn and Sara Kirlin sued MPC, Dr. Jones, and Dr. Monaster in the Pottawattamie County District Court. We described the ensuing events in our previous appellate opinion:
The Kirlins timely filed a
section 147.140 certificate of merit affidavit on October 2, signed by Dr. David Segal, a board-certified neurosurgeon. The Defendants challenged the certificate on the basis that Dr. Monaster is a family physician and Dr. Segal was not board-certified in family medicine. SeeIowa Code §§ 147.139(1) (requiring the affiant to be “licensed to practice in the same or a substantially similar field as the defendant“),.139(3) (“If the defendant is board-certified in a specialty, the [affiant must be] certified in the same or a substantially similar specialty . . . .“),.140(1)(a) (requiring that the expert affiant “meet the qualifying standards of section 147.139“). Before the district court could issue a ruling on those motions, however, the Kirlins voluntarily dismissed their petition without prejudice underIowa Rule of Civil Procedure 1.943 .The Kirlins refiled their petition on April 14, 2021, and provided a new certificate of merit signed by Dr. Brian Smith—board-certified in family medicine—who opined that each defendant in the second case breached the standard of care.
Kirlin v. Monaster, 984 N.W.2d 412, 414 (Iowa 2023) (alteration and omission in original) (footnote omitted).
At this point, the defendants sought dismissal of the refiled action. They maintained that the Kirlins’ voluntary dismissal of their initial lawsuit and subsequent refiling could not overcome the fatal defect in their initial
C. Our Prior Decision Reversing Dismissal and Remanding. On appeal, we reversed and remanded. See id. at 413. We recognized the plaintiffs’ “absolute
When the Kirlins . . . refiled their suit,
section 147.140 applied anew, and the Kirlins could not have relied on a certificate of merit from a previously filed and dismissed case to satisfy the statute any more than the Defendants may now rely on such a certificate to defeat the refiled petition. The district court erred as a matter of law when it granted summary judgment based only on the certificate of merit affidavit signed by Dr. Segal and provided in the dismissed case.
D. Activities in the District Court Following Remand. Our procedendo issued on February 20, 2023. On February 21 and again on March 7, the Kirlins’ counsel emailed proposed trial scheduling and discovery plans (TSDP) to counsel for the defendants. They did not receive a response. Meanwhile, a notice came from the district court advising the parties that a civil trial setting conference with court administration would occur on March 30. The notice also required the parties to file a TSDP before the conference.
Apparently, the conference took place on March 30. However, there was no agreement then as to trial date because the defendants contended that the trial would now require two weeks rather than one week as had been previously ordered before the appeal. The parties also could not reach an agreement on a new TSDP. In addition, both sides indicated they favored setting “dates certain” for expert disclosures, although no dates were agreed upon. Therefore, a hearing before the district court was set for April 4.
On April 4, the district court ordered a seven-day jury trial to commence on March 18, 2024. The court did not enter a new TSDP or new dates for expert disclosures.
E. The Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Asserted Noncompliance with Iowa Code Section 668.11. On July 31, 2023, the defendants moved for summary judgment again. The theory behind these motions was that the Kirlins had missed the deadline for certifying their experts under
The original TSDP called for the plaintiffs’ expert disclosures to occur 210 days before trial “unless the
According to the defendants, this meant that when the case returned to district court following procedendo, the Kirlins had twenty-nine days left, or until March 21, 2023, to certify their experts—a deadline that the Kirlins had missed. In the defendants’ view, the failure of the court to enter a new TSDP meant that the old one was still in effect.
After receiving the defendants’ summary judgment motions, the Kirlins promptly submitted their expert disclosures and also resisted the motions. They argued that in light of the earlier summary judgment, the appeal, and our reinstatement of the case, the
Alternatively, the Kirlins argued that they had good cause for not meeting the
The defendants provided their own expert certifications and disclosures on August 14. Then, on November 17, the district court granted summary judgment in the defendants’ favor. The district court agreed with the defendants that the situation should be treated as if the prior summary judgment had never been granted and the appeal had never occurred. See Taylor v. Burgus, 262 N.W. 808, 810 (Iowa 1935); Sleeper v. Killion, 164 N.W. 241, 245 (Iowa 1917). This meant that the Kirlins had only twenty-nine days to provide expert certifications when the case returned to district court via procedendo. The court also rejected the Kirlins’ good cause argument:
Having considered the factors, the Court finds Plaintiffs’ disclosure is well beyond the deadline, has limited Defendants in their consultation and preparation with expert witnesses, and there is no evidence that the misunderstanding of the law is due to the conduct of defense counsel. As such, the Court finds that good cause to extend the time for disclosure does not exist in this case. Plaintiffs’ position is unsupported by law, and rather than seek clarification
as to whether the section 668.11 deadline continued to apply, they simply ignored it.
This appeal followed.
II. Standard of Review.
We review a district court‘s interpretation of
III. Legal Analysis.
The district court ruled that the effect of our reversal of its dismissal order was to leave the pre-dismissal expert deadlines in place, after deducting the time that had elapsed between its dismissal order and our procedendo. While this was a plausible way to reconcile
A. Iowa Code Section 668.11(2) and the Good Cause Exception.
We have applied this code provision before. In Hantsbarger v. Coffin, we said, “In determining whether good cause exists for granting plaintiffs’ request to be excused from complying with the
In Hantsbarger, we decided that the district court had abused its discretion in excluding certain expert witnesses from a medical malpractice case. Id. at 503. The plaintiffs—while timely disclosing the experts’ names—had not disclosed their qualifications and the purposes for calling them. Id.; see
By contrast, we found no abuse of discretion when the district court refused to allow late expert disclosures in Nedved v. Welch, 585 N.W.2d 238, 239 (Iowa 1998) (per curiam). There, the plaintiffs did not file any sort of designation until three months after the
We also upheld a district court‘s refusal to allow an untimely certification in Donovan v. State, 445 N.W.2d at 767. The plaintiffs’
And in Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct. App. 1998), the court of appeals held that the district court did not abuse its discretion in denying a motion to extend the expert deadline in a dental malpractice case. The plaintiff filed her motion long after the deadline and one month before trial. Id. As the court of appeals observed, “In determining whether good cause exists for granting plaintiff‘s request to be excused from complying with the
Guided by this caselaw, we turn to the present case. We believe the relevant factors show that the district court abused its discretion in not allowing the Kirlins’ expert certifications. We consider the following: (1) the existence of uncertainty and confusion as to the proper deadline after appeal and remand, (2) the lack of prejudice to the defendants, (3) diligence by the plaintiffs in pursuing their case, and (4) defense counsel‘s actions.
B. Uncertainty and Confusion as to the Expert Disclosure Deadline Following Appeal and Remand. As we have already noted, in determining whether good cause exists for a failure to comply with the
At the beginning of this case, the expert certification deadline was clear.
Still, why did the clock stop on January 18? On February 1, the Kirlins filed a motion for reconsideration under
The point we are making is this: the defendants’ position requires an adjustment based on a judgment call. The defendants do not contend that the original February 16, 2022 deadline should be applied, nor do they contend that the only time to be excluded in calculating a revised deadline should be the time when the district court lacked jurisdiction over the case. But if adjustments are to be made, why isn‘t the Kirlins’ approach a sensible one? In the absence of a new TSDP, and given that the
One analogy to consider is speedy trial. If there is an appeal in a criminal case leading to a remand for a trial, we don‘t say that the state has to bring the defendant to trial within whatever remained of the 90-day deadline at the time the appeal was taken. State v. Hamilton, 309 N.W.2d 471, 475 (Iowa 1981) (“When a case on appeal is remanded, absent waiver of the right to a speedy trial, the period during which the defendant must be tried commences on the date procedendo issues.“).
The following is the paragraph from the June 23, 2021 TSDP setting the original deadlines for expert disclosure:
According to the affidavits submitted by plaintiffs’ counsel, they “believed
The defendants do not cite a single case where we have adopted a tolling rule when a fixed deadline for disclosure—not tied to the trial date—expired while a matter was on appeal. Usually, we assume that new deadlines will be established following remand. The defendants’ tolling rule raises several practical concerns. What if only a few days remain under the tolling rule when the remand occurs? Should we expect parties with dismissed cases on appeal to
A relevant precedent is Connolly v. Foudree, 141 F.R.D. 124 (S.D. Iowa 1992). In that case, the plaintiff filed a professional malpractice case in Polk County District Court, which the defendants removed to the United States District Court for the Southern District of Iowa. Id. at 125. The plaintiff missed the
C. Lack of Prejudice to the Defendants. We are unable to detect any actual prejudice suffered by the defendants. Dr. Jones and MPC offer general arguments that late disclosure “impacts ongoing discovery, strategy, and motion practice” and that “Defendants’ ability to work with experts of their own is prejudiced, as without specific, timely opinions from Plaintiffs’ expert witnesses, [Defendants] are left to guess what Plaintiffs’ experts’ theories of [Defendants‘] specific negligence might be.” This argument doesn‘t add up here. Under the
Dr. Monaster, represented separately, offers only a “presumed prejudice” argument. “Presumed prejudice” is not the same as real prejudice.
D. Plaintiffs’ Diligence in Pursuing the Litigation. We also find that plaintiffs’ counsel pursued the litigation with diligence. Following a successful appeal to our court, they wrote the defendants’ counsel the day after procedendo issued, sending a proposed new TSDP. Receiving no response, they wrote the defendants’ counsel again. Within a few weeks, a new trial date was set, but there was no agreement establishing a new TSDP. When the defendants moved for summary judgment on July 31, 2023, claiming the deadline for expert certifications had passed, plaintiffs’ counsel filed their expert disclosures within eight days—or thirteen days ahead of the deadline that plaintiffs’ counsel had computed. The disclosures showed that the plaintiffs had retained not only the family physician expert whose disclosure had long ago been provided under
The district court faulted the plaintiffs for not “seek[ing] clarification as to whether the
E. The Actions of Defense Counsel. Lastly, we turn to the actions of the defense counsel. In Hantsbarger, we took note that “defendant‘s counsel silently waited for the time period to pass and then used plaintiffs’ deficient designation to seek a prohibition of plaintiffs’ experts and a dismissal of their claims.” Id. at 505. Yet, we emphasized that defense counsel are not their “brother‘s keeper.” Id.
This case involves more than mere silence on the part of defense counsel. Notwithstanding their undisclosed position that the deadline had passed on March 21, 2023, defense counsel participated in a scheduling conference with the court on March 30 without raising the point. Then, after the conference, counsel for Dr. Monaster emailed counsel for the Kirlins and for the other defendants and stated, “It is my preference to have a date certain for experts.” About twenty minutes later, counsel for Dr. Jones and MPC wrote, “I‘m for dates certain too.” In short, the email trail indicates that defense counsel were not relying on the March 21 date they later invoked as a deadline. Instead, they offered the view that the expert deadline was an open question to be determined.
At the very least, defense counsel‘s course of conduct does not support the district court‘s ruling.
F. Iowa Caselaw Cited by the District Court and the Parties. Finally, we find the principal case cited by the district court and the defendants to be distinguishable. The district court and the defendants quote Sleeper v. Killion for the following proposition: “The rule has been stated to be in such cases that a general and unqualified reversal of a judgment or decree, without other order or
But what does Sleeper actually stand for? In the original appeal in Sleeper, we had reversed a foreclosure decree, holding that the rights of a protected person had been wrongfully terminated due to improper notice to the guardian. See id. at 242–43. Then, on remand, the parties who lost on appeal raised a different theory: that they were entitled to two-thirds of the property claimed by the protected person anyway. Id. at 244–45. We held that they could raise this new theory because it wasn‘t precluded by the terms of our reversal and remand. Id. at 245.
In short, Sleeper was a decision about the substantive effects of a reversal and remand. It does not support the proposition that a reversal and a remand operate as a procedural time machine, sending everyone back magically to the precise moment of the district court‘s erroneous ruling. Sleeper is not relevant here.
The district court (but not the defendants) also cited Taylor v. Burgus, 262 N.W. 808. It is distinguishable for similar reasons. In Taylor, we held that the defendant‘s motion for directed verdict should have been granted, which under our then-existing practice meant that a new trial would be ordered. Id. at 810. But the defendant didn‘t want a new trial under any circumstances, so we affirmed the judgment below. Id. at 811. In the course of our opinion, we said, “It is fundamental that a general order of reversal cancels the district court judgment and sends the case back for a full retrial of the entire case. Under such circumstances [the] case stands for retrial the same as though there has been no former trial.” Id. at 810 (citations omitted).
Taylor thus deals with the separate question of whether you reverse for a new trial or reverse for entry of judgment in the moving party‘s favor when the appellate court concludes that a motion for directed verdict was erroneously denied. Not only would we answer the question differently today than in the time of Taylor, see, e.g., Selden v. Des Moines Area Cmty. Coll., 2 N.W.3d 437, 448–49 (Iowa 2024), but it‘s a question that has nothing to do with the present case.
In determining that the district court abused its discretion in not finding good cause for allowing the Kirlins’
IV. Conclusion.
For the foregoing reasons, we reverse the summary judgment entered by the district court and remand for further proceedings consistent with this opinion.
Reversed and Remanded.