IN THE COURT OF APPEALS OF IOWA
No. 3-1101 / 13-0353
Filed July 30, 2014
DOUGLAS C. LANE, Individually
and as Executor of the ESTATE OF
ROBERT L. LANE,
Plaintiff-Appellant,
vs.
EMERITUS CORPORATION d/b/a
SILVER PINES,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Sean W. McPartland,
Judge.
Douglas C. Lane appeals the jury verdict in favor of the defendant
Emeritus Corporation, doing business as Silver Pines, in a wrongful death and
professional negligence suit. AFFIRMED.
Pressley Henningsen and Emily Anderson of Riccolo, Semelroth &
Henningsen, P.C., Cedar Rapids, for appellant.
Kendall R. Watkins of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, and Donna J. Fudge and Tara A. Zimmerman of Fudge & McArthur,
P.A., St. Petersburg, Florida, for appellee.
Heard by Danilson, C.J., and Potterfield and Bower, JJ.
2
BOWER, J.
Douglas C. Lane (Lane) appeals the jury verdict in favor of the defendant
Emeritus Corporation, doing business as Silver Pines (Silver Pines), in a
wrongful death and professional negligence suit. Lane claims the district court
erred in failing to direct a verdict in his favor. He also contends the district court
should have granted a new trial due to numerous irregularities, which led to an
unfair result. We find the jury verdict is supported by substantial evidence, and
the district court did not abuse its discretion in declining to grant a new trial. We
affirm.
I. Background Facts and Proceedings
Lane filed this action individually and as administrator of the estate of his
father, Robert Lane (Robert). Lane contends Silver Pines, a residential care
facility (RCF) where Robert once resided, was professionally negligent by failing
to adequately document Robert’s condition, failing to contact Lane when Robert’s
physical condition worsened, and continuing to care for Robert after his condition
had deteriorated to a point where Silver Pines was no longer legally capable of
caring for him.
Following the death of his wife, Robert moved into Silver Pines. Starting
in August 2005, while under the care of Silver Pines, Robert lost a significant
amount of weight. Lane, who lives in California, came to Silver Pines to visit his
father on April 6, 2006. Immediately upon arrival, Lane found his father to be in a
significantly deteriorated state; Robert had lost a great deal of weight, had sores
on his legs, and Lane contends Robert was suffering from a lack of personal
3
hygiene. On April 6, 2006, Lane took Robert to Mercy Medical Center in Cedar
Rapids where he was admitted. During the hospitalization, it was discovered that
Robert was suffering from low-grade lymphoma. Also, an endoscopy was
performed and ulcers were found in Robert’s stomach. Following an eleven-day
stay, Robert was released to Heritage Nursing Home; however, he was
readmitted to Mercy on April 26 due to breathing difficulties. He died of
pneumonia the next day.
Lane filed this suit on October 30, 2007. The petition named a number of
defendants including Silver Pines and Dr. Daniel A. Trautman, Robert’s treating
physician during his time at Silver Pines.1 Due to a number of discovery
disputes, the case proceeded slowly. The final pre-trial conference was held on
December 13, 2012, and trial was set for December 17, 2012.
Due to the upcoming national holiday, the trial judge informed the parties
the case must be submitted to the jury and a verdict returned by the end of the
week or a mistrial would be declared. The night before trial, Lane filed a motion
for sanctions, seeking to play the videotaped depositions of several witnesses.2
The first day scheduled for trial was consumed with discussing the motion and
selecting a jury. The district court ultimately decided to admit the depositions as
a sanction against Silver Pines; however, the court also concluded it would have
to rule on each of a large number of objections raised by Silver Pines to portions
of the depositions. Lane withdrew his request to use the depositions, deciding
1
Dr. Trautman is no longer a party to this suit.
2
Lane also requested a jury instruction informing the jury of Silver Pines’s discovery
abuses and asked the judge to establish negligence as a matter of law.
4
the presentation of live witnesses would make it more likely the trial could be
concluded before the holiday. Later, the court denied Silver Pines’s motion for
mistrial and claim it was being denied a fair trial due to the court’s timeline. The
case was submitted to the jury at 2:00 p.m. on Friday, December 21, 2006. The
jury returned a verdict in favor of Silver Pines later that afternoon.
II. Standard of Review
We review the district court’s ruling on a motion for a directed verdict for
errors at law. Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d
293, 299–300 (Iowa 2013). Evidence is viewed in the light most favorable to the
non-moving party. Id. at 300. The question is “whether the trial court correctly
determined there was sufficient evidence to submit the issue to the jury.” Id.
On the motion for new trial, our scope of our review “depends on the
grounds raised in the motion.” Pavone v. Kirke, 801 N.W.2d 477, 496 (Iowa
2011). To the extent the ruling was based upon discretionary grounds, we
review for an abuse of discretion. Id. Legal questions are reviewed for errors of
law. Id.
III. Discussion
A. Motion for Directed Verdict
Lane claims the district court should have granted a directed verdict in his
favor. First, he contends the only conclusion the jury could have reached, based
upon two jury instructions, was that Silver Pines was negligent per se. He also
claims the district court should have sanctioned Silver Pines for discovery abuses
by finding negligence as a matter of law.
5
1. Jury Instructions
Lane argues, based upon two jury instructions and the Restatement
(Third) of Torts § 14, at 154 (2010), the jury could only have found Silver Pines
negligent.
Jury Instruction No. 12 informed the jury Silver Pines could be negligent in
any of seven different ways. Included were a failure to abide by all relevant state
regulations and administrative codes and a failure to document any interventions
that addressed Robert’s weight loss. See Iowa Admin. Code r. 481-57.16(1)(n).
Instruction No. 13 set out the applicable regulations and portions of the
administrative code, including regulations that require the transfer of a patient
when the patient’s needs exceed the capabilities of a RCF. See Iowa Admin.
Code r. 481–57.13(a). Also included were regulations that require changes to
the patient’s service plan or conditions be communicated to the patient’s family
members or a responsible party within five working days. See Iowa Admin. Code
r. 871–57.22(3).
Lane asks us to adopt section 14 of the Restatement (Third) of Torts,
which states: “An actor is negligent if, without excuse, the actor violates a statute
that is designed to protect against the type of accident the actor’s conduct
causes, and if the accident victim is within the class of persons the statute is
designed to protect.” Though it has not yet had an opportunity to address section
14 of the Restatement (Third) of Torts, our supreme court has approved
application of other sections of the Restatement (Third). See Thompson v.
Kaczinski, 774 N.W.2d 829, 836–39 (Iowa 2009) (considering the law of
6
causation in a negligence action). Application of the Restatement (Third) has
been extended to professional negligence cases as well. See Asher v. OB-Gyn
Specialists, P.C., 846 N.W.2d 492, 498–99 (Iowa 2014) (ruling trial court erred in
failing to instruct the jury on causation using the factual cause and scope of
liability approach of the Restatement (Third) of Torts).
In light of Thompson and Asher, we find no reason to believe our supreme
court would decline to apply section 14 of the Restatement (Third). The district
court apparently agreed, as instruction thirteen essentially incorporates section
14 of the Restatement (Third). As a result, the jury was asked to apply section
14 during deliberations. However, Lane’s request goes further than merely
applying section 14. He asks us, based upon the administrative citations found
in the record, to remove from the jury the question of whether section 14 was
violated.3 No case law is cited supporting the proposition an administrative
citation establishes negligence per se and removes the question of the regulatory
violation from the province of the jury.4 Finding no such authority in Iowa, we
decline to do so. The citations can be evidence of a regulatory violation, but do
not establish a per se breach of duty for purposes of tort liability.
3
Lane also relies upon citations issued by the Iowa Department of Inspections and
Appeals (IDIA) which faulted Silver Pines for several violations of the administrative
code. One citation specifically found Silver Pines had retained Robert under their care
after he had progressed to a level where he needed greater services than a RCF could
provide, and another found Silver Pines had failed to adequately document changes in
Robert’s conditions.
4
Lane cites to several cases, but in each case, breach is not a contested issue. Lane
seeks to use the IDIA citations as proof of breach. The authorities cited are thus not on
point.
7
The record contains conflicting evidence. Lane contends he was not
notified of Robert’s change in condition as required by law, and offered expert
testimony on the issue. Silver Pines also offered expert testimony, as well as
fact witnesses, who testified Silver Pines properly documented changes in
Robert’s conditions and made decisions intended to improve his deteriorating
state. They also testified Silver Pines was qualified, under the administrative
rules, to treat Robert’s leg sores. The issue was essentially reduced to one of
assessing witness credibility. We agree the record establishes Lane was not
contacted by Silver Pine regarding his father’s condition; however, based upon
the testimony, it does not automatically follow that no other family member or
legal representative was given notice of Robert’s condition. A jury could
conclude, based upon all the evidence presented, that Silver Pines complied with
the administrative rules and accordingly did not perform negligently.
2. Sanctions
Lane also claims the district court should have established negligence as
a matter of law as a discovery sanction against Silver Pines. The history of
discovery disputes in this case is lengthy.
Lane presents us with a detailed list of discovery delays and abuses
committed by Silver Pines. There are four disputes that are important for
purposes of this appeal. The first concerns Silver Pines’s failure to provide full
and complete responses to Lane’s initial written discovery requests. In an order
dated February 5, 2009, the district court indicated sanctions would be imposed if
Silver Pines did not comply with the request within fourteen days. Silver Pines
8
responded on the fourteenth day, but took nearly three years to fully supplement
the responses. Lane argues this was prejudicial and a violation of the district
court order. Second, on January 14, 2011, Silver Pines was ordered to produce
the names of certain employee witnesses or Lane would be granted some or all
of his requested relief, including the establishment of negligence as a matter of
law.5 The witnesses’ names were provided to Lane, but only after the deadline
imposed by the order. Third, on October 31, 2012, Silver Pines was ordered to
produce documents in response to Lane’s rule 1.707(5) deposition notice and in
response to a request for production of documents. In the order, the district court
expressed concern Silver Pines was not taking Lane’s discovery requests
seriously. The court declined to establish negligence as a matter of law, but left
the possibility open if Silver Pines failed to comply with Lane’s discovery requests
in the future. Fourth, Lane claims Silver Pines failed to produce requested tax
returns until the trial had begun, and Silver Pines never provided corporate
designees as witnesses who were knowledgeable about relevant subject
matters.
At trial, the district court imposed sanctions on Silver Pines for its
continued failure to fully comply with Lane’s discovery requests. Lane was
granted the opportunity to play videotaped depositions rather than being required
to call witnesses for live testimony. Upon reviewing the contents of those
depositions, and in response to objections by Silver Pines, the district court
decided it would rule on objections to the deposition testimony before the video
5
The order also noted Lane’s own failure to comply with discovery rules.
9
could be played to the jury. The district court declined to establish negligence as
a matter of law. Due to the time limits imposed upon the trial, Lane chose to
forego taking advantage of the sanction and called the witnesses for live
testimony.
We will not disturb a district court order on sanctions unless the court
abused its discretion. In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa
1999). The district court abuses its discretion when the grounds relied upon are
clearly untenable or unreasonable. Id. Rule 1.507 allows the court to establish
certain designated facts as a matter of law as a discovery sanction. Iowa R. Civ.
P. 1.507(2)(b)(1).
Lane claims establishing negligence as a matter of law is akin to an order
dismissing a plaintiff’s petition. Our supreme court has said that because such
an order precludes a trial on the merits, the district court has very narrow
discretion to impose this type of sanction. Williams, 595 N.W.2d at 129. This
extreme sanction can only be imposed where the noncompliance was willful, a
matter of fault, or a matter of bad faith. Id. A complete failure to comply with
discovery requests can be evidence a party willfully refused to comply with the
court’s order. See Aquadrill Inc. v. Envtl. Compliance Consulting Servs., Inc.,
558 N.W.2d 391, 396 (Iowa 1997).
Trial courts are to consider four factors when determining whether a
sanction is appropriate. Lawson v. Kurtzhals, 792 N.W.2d 251, 259 (Iowa 2010).
The district court is to examine: (1) the party’s reasons for noncompliance, (2) the
importance of the requested evidence, (3) the time needed for the opposing party
10
to prepare to meet the evidence, and (4) whether a continuance should be
granted. Id.
Silver Pines provided no compelling reason for its noncompliance, and the
fact tax returns were located and provided in a very short period of time during
trial indicates its failure to do the same over the previous number of years was a
willful violation of the district court’s order. We agree with Lane that the
evidence, particularly as to the corporate designees, was important to the case,
though it remains unclear whether better-prepared witnesses could have been
named. The essence of Lane’s request is an effort to remedy an on-going
frustration with years of discovery delays and abuses by Silver Pines because of
what he believes to be insufficient sanctions. We too find this case comes very
close to necessitating the removal of certain decisions from the jury. We cannot
say, however, the district court’s decision to decline the most extreme sanction
available was an abuse of discretion. The district court expressed significant
frustration with the conduct of both parties in terms of trial preparation.
Considering the fact Silver Pines did eventually, if belatedly, comply with Lane’s
discovery requests, we find the district court did not rely on clearly untenable or
unreasonable grounds in declining to establish negligence as a matter of law.
B. Motion for New Trial
Lane claims he should have been granted a new trial on several grounds.
He contends multiple irregularities and Silver Pines’s trial conduct denied him a
fair trial. He also contends the verdict was not supported by substantial
11
evidence, and the district court committed errors in issuing certain instructions
and excluding certain evidence.
1. Trial Irregularities and Silver Pines’s Conduct
Lane claims Sliver Pines’s conduct during trial created an unfair result.
Specifically, Lane contends Silver Pines engaged in delay tactics intended to run
out the short clock established for trial. Lane blames Silver Pines for his inability
to rest by Wednesday of the trial week. We find Lane agreed to a shortened trial
that was to be concluded within one week. Though we understand Lane’s
concern with further delaying a trial more than five years in the making, we agree
Lane had a choice in whether to proceed with the time-limited trial or continue the
trial to a later, less-restricted date. It was unreasonable for Lane to assume the
shortened trial week would remove Silver Pines’s right to present defenses and
engage in expected trial conduct.6 We find the district court did not abuse its
discretion in declining to grant a new trial on this issue.
2. Substantial Evidence
Lane claims the district court should have granted him a new trial,
challenging the court’s discretionary finding on “whether substantial evidence
supported the verdict.” The claim also mirrors the same positions offered on the
motion for directed verdict. For reasons previously stated, we find the district
court did not abuse its discretion in declining to grant a new trial on this issue.
6
Lane is particularly concerned Silver Pines presented previously undisclosed defenses
during trial. Silver Pines argues the basis for each defense was contained in previous
discovery and that Lane misconstrues several of the defenses. We do not agree with
Lane that he was surprised by previously undisclosed defenses at trial.
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3. District Court Errors
Lane claims the district court committed two legal errors necessitating a
new trial. First, he claims the court gave several improper jury instructions.
Second, he claims the district court improperly excluded evidence of Silver
Pines’s past administrative code violations.
a. Jury Instructions
Lane contends Silver Pines should not have been allowed to submit
instructions to the jury on comparative fault, failure to mitigate, and superseding
cause because of its earlier discovery errors.7 The district court found sufficient
evidence to submit the comparative fault instruction to the jury and determined a
subsequent illness could have been a superseding cause.
A party is entitled to submit an instruction to the jury when the instruction
embodies a correct statement of the law and is applicable to the case. Wolbers
v. The Finley Hosp., 673 N.W.2d 728, 731–32 (Iowa 2003). To be applicable in a
medical malpractice case, the patient’s negligence “must have been an active
and efficient contributing cause of the injury, must have cooperated with the
negligence of the malpractitioner, [and] must have been an element in the
transaction on which the malpractice is based.” Id. at 732. Lane reads Wolbers
as prohibiting the comparative fault instruction in this case. We disagree. There
is record evidence indicating Robert participated in the course of events that
7
Lane makes no specific argument and cites no authority on the mitigation or
superseding cause instructions, despite naming each as a source of error in his
appellate brief. He appears to believe the instructions should have been excluded as a
discovery sanction. For reasons stated earlier, we find the district court did not abuse its
discretion in denying the requested sanctions.
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caused his condition to worsen by refusing to participate in treatment. Moreover,
this is not a situation where a plaintiff’s negligent conduct gave rise to the need
for medical care. Rather, Robert participated in the allegedly negligent treatment
by taking affirmative actions to his own detriment during the course of the
medical treatment. We find the district court properly applied the law and the
comparative fault instruction was appropriately given. We also find there was
sufficient evidence to support a theory that Robert’s subsequent illness,
pneumonia, was a superseding cause of his death.8
Lane also contends the court erred in offering an instruction that stated,
“The mere fact that a party was injured does not mean any party was negligent.”
He admits the instruction is a correct statement of the law, but points out our
supreme court has stated the instruction can constitute reversible error when it
would distract the jury or overemphasize a particular theory of the case. See
Smith v. Koslow, 757 N.W.2d 677, 681 (Iowa 2008). In Koslow, the fact-of-injury
instruction was properly submitted where it was meant to prevent the jury from
finding negligence merely because of the unfortunate result of a medical
procedure. We find the instruction was properly given in this case for similar
reasons.
b. Exhibits 22 and 33
Lane unsuccessfully offered Exhibit 22, consisting of copies of the IDIA
reports showing Silver Pines’s regulatory violations from 2001 to 2010. The
8
At trial, Lane objected to the superseding cause instruction on the basis that there was
no evidence “that there was a cause subsequent to the suffering and death of Robert
Lane.”
14
district court also declined to allow Exhibit 33, a memorandum to Silver Pines’s
employees informing the employees some residents were not being cleaned
properly. Again, Lane cites no authority to support his position the exhibits
should have been allowed.
We find the district court did not abuse its discretion in excluding both
exhibits as unfairly prejudicial or irrelevant. Evidence is generally relevant where
it tends to make some pertinent fact more or less probable. Iowa R. Evid. 5.401.
Relevant evidence is generally admissible unless otherwise excluded by rule,
statute, or constitution. Iowa R. Evid. 5.402. Otherwise relevant evidence may
be excluded when the value of the evidence is outweighed by the likelihood of
prejudice. Iowa R. Evid. 5.403. Unfair prejudice is found where the evidence
prompts the jury to reach a conclusion based upon some improper basis, such as
emotion. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 159 (Iowa 2004).
When examining whether evidence should have been admitted or excluded on
these grounds, we must answer two questions: (1) is this relevant evidence; and
(2) if it is relevant, is the value of the evidence substantially outweighed by the
danger of unfair prejudice. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa
2000).
With regard to exhibit 22, we find no abuse of discretion in the district
court’s finding the evidence was relevant and unfairly prejudicial. The evidence
was intended to prompt the jury into finding Silver Pines negligent because they
have generally conducted themselves as a bad actor. The evidence attempts to
paint Silver Pines as a RCF that always retains residents beyond a point where
15
Silver Pines is able to provide appropriate care, implying the same happened in
this instance.
Regarding exhibit 33, we agree with the district court that the evidence is
irrelevant. The memorandum is directed to the staff of a separate business unit,
none of whom participated in the care of Robert. The district court did not abuse
its discretion in declining to admit either exhibit.
AFFIRMED.