Misty M. WHITLEY, Appellant, v. C.R. PHARMACY SERVICE, INC. d/b/a Fifth Avenue Pharmacy, and Fifth Avenue Compounding, Appellees.
No. 10-0843
Supreme Court of Iowa.
June 29, 2012.
818 N.W.2d 378
Christopher L. Bruns and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellees.
CADY, Chief Justice.
In this case, we must decide whether the district court erred in admitting exhibits directed to the issue of fault in a pharmacy malpractice action that were not disclosed during the pretrial discovery. The court of appeals found the district court abused its discretion by not excluding the evidence as a sanction for violating both the pretrial order of the district court to disclose all exhibits prior to trial and the spirit and purpose of our discovery rules. On our review, we vacate the decision of the court of appeals and affirm the district court.
I. Background Facts and Proceedings.
Like many people, Misty Whitley had nearsighted vision. She sought the services of Dr. Lee Birchansky, an ophthalmologist at the Fox Eye Clinic in Cedar Rapids, to correct her vision. After consulting with Dr. Birchansky, she decided to undergo Epithelial Laser Assisted In Situ Keratomileusis (Epi-LASIK) eye surgery, a procedure commonly used to correct nearsightedness, farsightedness, or to reduce astigmatism. The surgery requires the skin of the cornea to be removed to enable a laser to sculpt the underlying surface of the cornea. A thin contact lens is placed on the cornea while a new layer of skin grows over the cornea. The new corneal skin typically takes three to five days to regenerate.
On November 3, 2005, Whitley underwent Epi-LASIK surgery. Dr. Birchansky performed the procedure. Immediately following the surgery, Whitley’s vision improved to 20/20. By March 2006, however, Whitley’s vision had deteriorated. She returned to Fox Eye Clinic on March 7. Dr. Birchansky diagnosed her with postoperative corneal scarring in both eyes, a common risk associated with Epi-LASIK surgery. He recommended Whitley undergo a corneal scraping procedure followed by application of a drug known as mitomycin-C (MMC) to help treat her blurry vision and prevent scarring. Whitley’s surgery was scheduled for March 9. Dr. Birchansky notified staff to order MMC at 0.02% concentration from C.R. Pharmacy in Cedar Rapids to use for the surgery.
C.R. Pharmacy received and processed the prescription order on March 7. Pharmacist Jodie Smith entered the medication into the computer system at the pharmacy. She compounded the MMC at a separate facility across the street. Smith took the product label, containers, and the supplies necessary to complete the product to the facility. The pharmacy’s records show the compounding was performed the morning of March 9, and the medication was placed in a bottle.
On March 13, Whitley returned to the clinic because her eyesight had deteriorated and she had severe headaches. Dr. Birchansky found the skin over her cornea was not healing. Ultimately, Whitley’s eyes began to show signs of cataracts and glaucoma. Dr. Birchansky referred Whitley to the University of Iowa Hospitals and Clinics for further testing and treatment. The physician who examined Whitley concluded her condition was likely caused by the application of MMC in excess of 0.02% concentration. Dr. Birchansky then sent what purportedly was the remainder of the substance in the bottle for testing. The results of the testing revealed no trace of MMC in the bottle.
Whitley subsequently underwent corneal transplant surgery on both eyes. Soon after, an accident caused Whitley to have her left eye surgically removed. She now wears a prosthetic eye.
On November 16, 2007, Whitley filed a lawsuit against Dr. Birchansky and Fox Eye Clinic alleging negligence and res ipsa loquitur. On February 14, 2008, the petition was amended to add a claim against C.R. Pharmacy alleging it supplied a defective product for her surgery.
Whitley dismissed Dr. Birchansky and his office from the lawsuit on January 12, 2009, and continued to pursue the claims against C.R. Pharmacy. A discovery deadline was set for July 10, 2009, and the trial date was later continued to March 1, 2010, to allow both parties additional time for investigation and discovery.
On September 17, 2009, Whitley filed a motion to amend her petition to assert an additional claim of negligence. She alleged the prescription delivered to Dr. Birchansky was not the MMC ordered, but was another substance that C.R. Pharmacy improperly represented as MMC. In particular, the amended petition alleged:
That the Defendant C.R. Pharmacy Service, Inc. ... was negligent in the compounding of the solution delivered to Dr. Birchansky ... in one or more of the following ways:
A. In failing to deliver mitomycin-C to Dr. Birchansky;
B. In delivering a solution to Dr. Birchansky in a bottle with a label indicating the content was mitomycin-C when the bottle did not contain mitomycin-C;
C. In delivering to Dr. Birchansky a solution of an unknown chemical and strength in a bottle labeled mitomycin-C;
D. In failing to warn Dr. Birchansky that the prescription did not contain a solution of mitomycin-C;
E. In failing to warn Dr. Birchansky that the prescription contained a solution other than the requested mitomycin-C;
F. In failing to properly compound the requested solution of mitomycin-C.
The amended pleadings were filed after the July deadline established in the pretrial order for amending pleadings and completing discovery. Consequently, C.R. Pharmacy claimed the pleadings were untimely. Before the district court ruled on Whitley’s motion to amend, Whitley served nine supplemental interrogatories on C.R. Pharmacy. C.R. Pharmacy responded to the additional interrogatories in October
Defendant objects to this Request as calling for attorney work product. Without waiving this objection Defendant states it contends Dr. Birchansky’s office applied a substance other than the original MMC prescription to Plaintiff’s eyes and later substituted another substance for the original prescription before sending the bottle for testing.
On November 16, 2009, the district court granted Whitley’s motion to amend her petition to add the specific claims of negligence by C.R. Pharmacy. The court directed the defendant to file a motion for a continuance if it needed more time to prepare for trial in light of the amended petition. The discovery deadline from the court’s initial scheduling order was not altered to extend discovery.1
On November 23, 2009, C.R. Pharmacy submitted a supplemental response to the interrogatories asserting an additional objection that the interrogatories were untimely because the discovery deadline of July 2009 had passed. Neither party requested a continuance of the trial, and the objections were not submitted to the district court for a ruling or were not otherwise resolved by the parties.
A final pretrial conference was held on February 12, 2010. C.R. Pharmacy filed its notice of exhibits listing fifteen documents, including a handwritten note memorializing the order for MMC from Dr. Birchansky’s office, a prescription delivery log, and a receipt from March 9, 2006.2 Essentially, the pharmacy maintained it delivered the correct prescription and Dr. Birchansky mistakenly applied the wrong substance. Whitley asserted the pharmacy compounded and delivered the wrong prescription, which Dr. Birchansky applied to her eyes. The final pretrial order by the district court stated, “Any exhibit not identified will not be admitted at trial unless this order is modified by the court, for good cause shown, by any party wishing to offer such exhibit.” The prior pretrial order that set the trial date and pretrial conference provided that “[t]he only exhibits exempted are those which will be used for impeachment purposes only or those exhibits which are too difficult to transport because of size or weight.”
A few days following the February 12 pretrial conference, the pharmacy manager, Robert Keane, discovered new documents indicating the prescription in dispute was never delivered to Dr. Birchansky’s office, but instead was picked up by Dr. Birchansky’s office manager on March 9, 2006, at 1:39 p.m. The pharmacy manager discovered the documents when he was preparing for trial. The pick-up time recorded on these documents was after the time the records from Dr. Birchansky’s office indicated Whitley’s surgery was completed. The new documents consisted of a pick-up log from the pharmacy, which purportedly showed “J. Hazzard” picked up the MMC prescription from the pharmacy, and a cash register receipt from the pharmacy indicating an in-store pick up of an MMC prescription on March 9 at 1:39 p.m. The pharmacy manager who discovered these documents promptly re-
Counsel for the pharmacy did not notify counsel for Whitley of the discovery. They concluded they had no obligation to disclose the documents under the pretrial order or the rules of discovery.
Trial commenced on March 1. In its opening statement, C.R. Pharmacy stated that it could not be at fault because it did not deliver the prescription to Fox Eye Clinic before Whitley’s surgery took place. As the pharmacy’s counsel elaborated:
If, as the pharmacy now believes, an employee from Dr. Birchansky’s office signed for the prescription, we know when they signed because when you go to the pharmacy, like most of us, and you go and sign, they run you through the cash register and the cash register receipt has a date and time stamp on it. The time stamp for that signature is 1339 hours, or 1:39 p.m., well after Dr. Birchansky’s procedure is over.
On March 2, the second day of trial, C.R. Pharmacy disclosed both of the newly discovered documents during the cross-examination of Dr. Birchansky. It presented him with Exhibit NN, the pick-up log from the pharmacy purportedly showing “J. Hazzard,” Dr. Birchansky’s office manager, had picked up the MMC prescription from the pharmacy and Exhibit OO, the cash register receipt showing that the prescription was paid for at the pharmacy on March 9, 2006, at 1:39 p.m. Neither document was admitted into evidence at that point. The district court sustained, based on the lack of foundation, Whitley’s objection to Exhibit NN. Exhibit OO was not offered at that time.
At the end of the day on March 3, as Whitley was nearing the end of her case in chief, she raised an objection to Exhibit NN on the ground that she had not received notice of the document before trial. She asked that the document be excluded and for permission to take a discovery deposition of Keane and anyone else the pharmacy intended to present testimony about the document. The pharmacy resisted the request for exclusion, explaining that the documents had been discovered after the pretrial order and denying that Whitley had served a discovery request that required it to disclose the documents. The district court said it would review the matter overnight. It did order that Whitley could take Keane’s deposition.3
The next morning, March 4, Whitley expanded her objection to include Exhibit OO. Whitley urged both exhibits should have been disclosed in response to her Interrogatories 7 and 8. C.R. Pharmacy argued that the documents were not discovered until after the pretrial order and that they were only being used for impeachment. It also asserted that objections had been raised to Interrogatories 7 and 8. The district court commented, “I don’t like it either way,” but decided not to exclude Exhibits NN and OO. Whitley then reiterated her request for a discovery deposition of Keane before his testimony, and the district court granted Whitley’s request.
At mid-morning, the jury was excused. During a recess, Whitley deposed Keane and two other pharmacy personnel. Before trial resumed in the afternoon, the parties had a conference with the court. Based on the depositions, Whitley raised
Whitley sought no further relief, such as a continuance to attempt to locate Judy Hazzard. On March 5, the case went to the jury, which returned a verdict for the pharmacy.
Whitley moved for a new trial on the grounds that C.R. Pharmacy had failed to comply with
Whitley appealed. She claimed the district court erred at trial by admitting into evidence the cash register receipt and the pharmacy log that purported to show the medication provided to Dr. Birchansky by the pharmacy was obtained by Dr. Birchansky’s office employee after the doctor performed the surgery. She argued the district court erred by failing to exclude the exhibits as a sanction against the pharmacy for failing to disclose the exhibits in advance of trial in violation of the rules of discovery and the pretrial order. She also argued the district court erred in failing to exclude testimony from witnesses about the meaning of the exhibits as too speculative.
We transferred the case to the court of appeals. It held the district court abused its discretion by failing to exclude the exhibits from trial as a sanction against the pharmacy for failing to disclose the exhibits to Whitley in advance of trial. It found the surprise Whitley encountered in the middle of trial was too prejudicial for the trial court to refuse to exclude the evidence. As a result, the court of appeals reversed the judgment and granted a new trial. We granted further review.
II. Standard of Review.
We normally review decisions on sanctions for violation of discovery for an abuse of discretion. Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010). To the extent we review the basis of the decision of the court for an erroneous interpretation of the law, however, our review is for legal error. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994). Under either standard, we will not reverse the court’s decision to admit evidence unless the record shows prejudice to the complaining party. Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 636-37 (Iowa 1997).
III. Analysis of Claims.
A. Overview.
At the outset, it is important to frame the issues presented in this appeal. While Whitley sought a new trial before the district court based on the surprise she was dealt at trial, the claim she raised on appeal is the district court erred in failing to exclude the evidence as a sanction for failing to supplement discovery and comply with the pretrial order. She does not separately raise, as a claim in this appeal, the failure of the district court to grant a new trial on account of the
B. Violation of Discovery Rules.
Whitley claims C.R. Pharmacy committed a sanctionable discovery violation by failing to update its answers to Interrogatories 7 and 8 after it became aware of the pick-up log and the receipt showing a 1:39 p.m. pick up. C.R. Pharmacy responds that Whitley is to blame for not having served a specific, timely discovery request that required disclosure of the documents at issue. Thus, we first consider the legal responsibility of the pharmacy to disclose the disputed information.
Our rules of discovery exist to avoid the type of surprise that occurred in this case. See White v. Citizens Nat‘l Bank of Boone, 262 N.W.2d 812, 816 (Iowa 1978). A trial should be a search for the truth, and our rules of discovery are an avenue to achieving that goal. The discovery process seeks to make a trial into “a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Comes v. Microsoft Corp., 775 N.W.2d 302, 311 (Iowa 2009) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682-83, 78 S. Ct. 983, 986-87, 2 L. Ed. 2d 1077, 1082 (1958)).
Generally, discovery following the filing of a lawsuit involves any information that is “relevant” and “not privileged.”
Rule 1.509 provides that “[e]ach interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated in lieu of an answer.”
The comparable Federal Rule of Civil Procedure is Rule 33. See
We need not decide whether the same result follows under rule 1.509. A party that provides an answer to an interrogatory should be required to supplement whatever answer it has provided. Even a partial answer is not exempt from the obligation to supplement discovery under rule 1.503(4). A contrary approach would be inconsistent with the goal of discovery to disclose the facts to the “fullest practicable extent.” Comes, 775 N.W.2d at 311 (citation omitted).
Accordingly, the attorney-work-product objection lodged in this case accompanied by an answer was an answer subject to the duty to supplement like any other answer.4 Similarly, the subsequent objection lodged by the pharmacy that the interrogatories were untimely under the terms of the pretrial order simply stood alongside the previous answer and, as with the work-product objection, did not alter the duty to supplement the answer given.
Notwithstanding, the pharmacy argues Whitley was foreclosed from any relief in the form of sanctions because she failed to make a good-faith effort to compel more complete discovery in response to its original objection and answer. The pharmacy points out that the original answer it provided was incomplete and merely reiterated its general assertion that Dr. Birchansky must have applied a substance to Whitley’s eyes other than the MMC prescription it filled and then substituted another substance for the prescription filled by the pharmacy before submitting it for testing.
Interrogatory No. 8 did ask for detailed information from the pharmacy. It requested information including the identity
Under our rules of civil procedure, parties seeking discovery should normally be justified in believing they have received substantially all the information requested. Our rules specifically require answers to interrogatories must be “fully” answered.
Interrogatories 7 and 8 focused directly on the pharmacy’s defense that the injury to Whitley was caused by Dr. Birchansky or his office. The pharmacy had a continuing duty to supplement its answer. Once the pharmacy acquired documentation supporting its claim that Dr. Birchansky’s office caused the injury, it had a duty to supplement its response under
IV. Failure to Exclude Evidence.
Whitley asserted on appeal that the disputed evidence was inadmissible as a sanction because of the failure to supplement discovery and because it was too speculative. We will address each claim separately.
A. Sanction.
We first consider the decision by the district court to deny Whitley’s request to exclude the evidence as a sanction for the failure to supplement discovery. Generally, noncompliance with discovery is not tolerated. Lawson, 792 N.W.2d at 258. Nevertheless, the sanction to result from noncompliance rests with the sound discretion of the trial court. Id. While the sanction for the failure to supplement discovery can include exclusion of the evidence at trial, the trial court can also deny a request to exclude evidence. Id. at 258-59. The factors used to consider sanctions include:
- the parties’ reasons for not providing the challenged evidence during discovery;
- the importance of the evidence;
- the time needed for the other side to prepare to meet the evidence; and
- the propriety of granting a continuance.
When the pharmacy disclosed the newly discovered documents at trial and its new defense theory became apparent, Whitley requested the evidence be excluded as a sanction for the failure to timely disclose it prior to trial. She also requested a continuance of the trial in the event the court did not exclude the documents from evidence. She indicated the continuance would be necessary to take depositions of the witnesses the pharmacy intended to call at trial to testify about the documents. The court granted the request for a continuance and then later denied the request to exclude the newly discovered evidence. Thus, we must consider if the trial court abused its discretion in making this decision.6
A trial court abuses its discretion when it acts “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008) (quoting Maghee, 573 N.W.2d at 5). We cannot conclude the decision by the trial court to deny the request to exclude the evidence after a continuance had been granted constituted an abuse of discretion. The continuance offered Whitley the opportunity to overcome the surprise she confronted at trial. It was a traditional remedy used by courts when evidence is not disclosed until trial. See Lawson, 792 N.W.2d at 258-59 (recognizing the propriety of granting a continuance and determining the appropriate sanction for failing to supplement discovery). Whitley used the opportunity to take three depositions. Moreover, she did not object prior to the resumption of trial that the continuance granted by the trial court had been insufficient for her to adequately confront the new evidence once the trial was to resume. Instead, Whitley switched gears just prior to the resumption of trial and argued that the pharmacy’s new claim was too speculative. Whitley then waited until filing a motion for new trial following the jury verdict to finally inform the court that the continuance did not provide her adequate time to investigate the new evidence and rebut the allegations.
The district court did not abuse its discretion when it made its decision to grant a continuance and deny the request to exclude the evidence. Based on
B. Speculation.
Whitley also claims the court abused its discretion by allowing the pharmacy manager, Robert Keane, to testify to his conclusion about the meaning of the line through the name of Dr. Birchansky’s receptionist that was written on the delivery log. Prior to Keane’s testimony, counsel for Whitley objected to any interpretation of the mark on the delivery log as too speculative because the individual who would have personal knowledge of it was not testifying. The pharmacy asserted Keane would limit his testimony about the exhibits to his conclusion that the prescription was likely picked up, not delivered, based on his knowledge of what a mark on delivery logs typically meant in his experience with the pharmacy’s delivery system. The pharmacy also pointed out that Keane was available for cross-examination by opposing counsel to explore the likelihood this case conformed to his experiences in the past. The district court overruled Whitley’s objection and found the proposed testimony was fair circumstantial evidence.
The rules of evidence do not specifically recognize an objection that a question calls for speculation. Nevertheless,
Essentially, Whitley’s argument is that the court allowed a lay witness to improperly opine about an ultimate issue at trial. Lay witnesses may testify to their opinions or inferences if the testimony is rationally based on the witness’s perceptions and it is helpful to giving the jury a clear understanding of either the witness’s testimony or a determination of a fact at issue in the case. 7 Doré § 5.701:1, at 628-31. To properly admit a lay witness’s testimony, a sufficient factual foundation must be established showing the witness’s opinion is based on firsthand knowledge and “personal knowledge of facts to which the observed facts are being compared.”
V. Conclusion.
We have considered all issues raised on appeal. We reverse the decision of the court of appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.