IN THE SUPREME COURT OF IOWA
No. 12–1192
Filed February 7, 2014
DENNIS H. HAGENOW and ROSALEE A. HAGENOW,
Appellants,
vs.
BETTY L. SCHMIDT,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
David F. Staudt, Judge.
Plaintiffs appeal from judgment on defense verdict in rear-end
collision. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
James W. Carney and George W. Appleby V of Carney & Appleby,
P.L.C., Des Moines, for appellants.
Samuel C. Anderson of Swisher & Cohrt, P.L.C., Waterloo, for
appellee.
2
WATERMAN, Justice.
In this appeal, we revisit the doctrine of legal excuse and the
sudden emergency defense, as applied to a rear-end collision the jury
could have found was caused by defendant’s stroke and resulting partial
loss of vision. Plaintiffs’ truck was stopped at a red light in good weather
when it was struck by defendant’s car. Defendant saw the red light but
denied seeing plaintiffs’ vehicle. At the emergency room she noticed she
could not see to her left. Testing confirmed she had suffered a stroke
that caused a partial loss of vision. Defendant’s treating neurologist
initially noted that it was unclear whether the stroke occurred before or
after the accident. Two months before trial, defendant disclosed the
neurologist would testify the stroke preceded the accident.
Over plaintiffs’ objections, the district court allowed defendant’s
neurologist to testify and submitted the defense of sudden emergency.
The jury found the defendant was not negligent. The court of appeals
concluded the evidence supported a defense of legal excuse, but reversed
the judgment and remanded the case for a new trial based on erroneous
wording in the sudden emergency instruction. We granted defendant’s
application for further review and ordered supplemental briefing on the
applicability of the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm, sections 9, 11, and 15—which address sudden
emergency, physical incapacitation, and legal excuse—and on whether
the jury instructions given were consistent with those provisions.
For the reasons that follow, we conclude that the district court
acted within its discretion in allowing the defendant’s expert medical
testimony and that the evidence was sufficient to submit a legal-excuse
defense based on defendant’s sudden medical emergency. We further
conclude any error in the wording of the instruction was harmless. We
3
therefore defer to future cases our consideration of the foregoing
provisions of the Restatement (Third). We vacate the decision of the
court of appeals and affirm the district court judgment for defendant.
I. Background Facts and Proceedings.
We view the evidence in the light most favorable to the jury verdict.
Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa
1999). On November 10, 2008, Betty Schmidt, then age seventy-five,
was in her first car accident, which ended her driving career. Schmidt
was returning home alone from grocery shopping, driving her 1999 Buick
LeSabre east on University Avenue in Cedar Falls at about 1:30 p.m.
The weather was clear and the roads were dry. Schmidt, who wore
trifocals, had perceived no problem with her vision or health that would
impair her driving. She was feeling fine and had no trouble shopping or
driving before she reached the intersection with Cedar Heights Drive.
She planned to turn right there and saw the traffic light was red. But,
she did not see the pickup truck stopped in the right turn lane, Dennis
Hagenow’s 2008 GMC Sierra. Schmidt drove into the rear of Hagenow’s
truck, lodging her vehicle under his. The impact deployed Schmidt’s
airbags. Both vehicles suffered disabling damage—Hagenow’s truck was
later deemed totaled—and were towed from the scene. A responding
police officer asked Schmidt at the scene if she had been drinking, and
she answered “no.” She submitted to a Breathalyzer test, which detected
no alcohol. The officer cited Schmidt for failing to stop in an assured
clear distance.
Schmidt was taken by ambulance to the Sartori Hospital
Emergency Room. An hour after arriving, while lying on an emergency
room cart, Schmidt realized she was unable to see someone who was
speaking to her. She alerted medical staff that she could not see to her
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left side. After a CT scan at 3:15 p.m. and an MRI at 4:44 p.m.,
Dr. Daniel Miller diagnosed Schmidt’s condition as left homonymous
hemianopsia, which is the absence of vision in the left side of each eye.
This condition is a result of an injury to the brain that affects how a
person processes visual information. Dr. Miller referred Schmidt to a
neurologist, Dr. Ivo Bekavac, who concluded Schmidt suffered an acute
ischemic infarct, commonly referred to as a stroke, in the right occipital
lobe of her brain and that this stroke caused Schmidt’s vision loss.
Dr. Bekavac noted in Schmidt’s chart, “It is not clear whether [the stroke]
happened before or after the accident.” Schmidt had never previously
suffered a stroke.
Schmidt remained at Sartori Hospital until November 18, when she
was transferred to Covenant Hospital for stroke rehabilitation services.
That day, her rehabilitation doctor, Dr. Barbara Malicka-Rozek, noted in
Schmidt’s file, “It was believed she probably had [a transient ischemic
attack] versus [a] stroke during driving, and this is how she lost control
of her vehicle.” Dr. Malicka-Rozek also commented, “Betty was admitted
. . . following a motor vehicle accident that likely occurred following a
[transient ischemic attack] or a stroke.” Schmidt was discharged from
Covenant on November 26. Because of her vision loss, she was no longer
able to drive.
Dennis and his wife, Rosalee Hagenow, filed a personal injury
action against Schmidt on November 1, 2010. On February 9, 2011,
Schmidt filed an answer denying negligence and pleading these
affirmative defenses:
1. Defendant was confronted by a sudden medical
emergency, not of her own making, providing her with
a legal excuse for any failure to observe the
5
requirements of any statute, ordinances, or common
law duties concerning the operation of her vehicle.
2. The sole cause of the accident was an act of God in the
form of an unexpected medical emergency.
On April 6, Schmidt served answers to the Hagenows’ interrogatories that
described her limited recollection of the accident. She answered the
“expert” interrogatory by stating, “We have not retained any expert
witnesses for purposes of testifying at the time of trial. We do expect the
need to call as an expert witness my treating physicians who will testify
to my medical condition at the time of the accident.” She named
Dr. Bekavac as one of her physicians. Meanwhile, the district court
entered a scheduling order that set the jury trial for May 1, 2012. The
order required the plaintiffs to disclose experts no later than 210 days
before trial and defendant to do so 150 days before trial.
On November 29, 2011, Schmidt served a “Designation of experts”
that stated her intent to call as an expert at the time of trial, “[t]reating
physician, Dr. Ivo Bekavac.” The designation also stated she “reserve[d]
the right to call [her] other treating physicians and elicit expert testimony
from them . . . at trial.”
The Hagenows received Dr. Bekavac’s medical records that
autumn. The Hagenows’ counsel wrote to Schmidt’s counsel asserting
Dr. Bekavac’s comment, “It is not clear whether [the stroke] happened
before or after the accident,” established Schmidt would be unable to
prove her stroke occurred prior to the accident. Schmidt’s counsel
responded on February 21, 2012, explaining:
When I asked Dr. Bekavac about this statement, he said he
made it because there is no way to know with 100%
certainty as to when on November 10, 2008 the actual stroke
occurred. However, he told me it is his belief that the stroke
most likely preceded the accident.
6
On February 24, Schmidt filed a motion for summary judgment
with an affidavit attached from Dr. Bekavac. The affidavit acknowledged
his previous notation regarding the uncertainty as to the sequence of
Schmidt’s stroke and accident, but clarified:
[I]t is my belief, from the information available to me, that
the stroke most likely preceded the accident. The reason for
my belief is that the medical evidence does not indicate that
the automobile accident was a precipitating cause of
Ms. Schmidt’s stroke. There is no sign of head trauma
caused by the accident. It is significant that Ms. Schmidt
reported that she did not lose consciousness but did not see
the vehicle ahead of her. If, in approaching the intersection,
Ms. Schmidt looked to her right in preparation of a right
turn at the intersection, everything straight ahead of her in
the left part of her visual field would have disappeared and
Ms. Schmidt would not necessarily have perceived her
sudden loss of this half of her vision field. The fact that she
did not lose consciousness but did not see the vehicle ahead
of her would be consistent with her having a stroke in
advance of the accident. The fact that Ms. Schmidt first
reported the loss of vision after she was in the emergency
room for a period of time would make sense and would not
change my opinion. The stroke happens quickly and can
happen painlessly and she would not likely have known she
was having a stroke or that she had lost part of her vision as
the stroke occurred because she would still have had
binocular vision through the right half of her visual field.
Immediately after the accident, during the stress of the
event, it would not be surprising that she would not notice
she had lost the left side of her vision. It makes sense that
following the accident, after the stress of the accident starts
to die off and she is stationary in an emergency room,
looking about the room, that she would begin noticing her
loss of vision.
In conclusion, it is my professional opinion to a
reasonable degree of medical certainty that Ms. Schmidt
suffered an acute right occipital infarct on November 10,
2008 and that it is more probable than not that the stroke
occurred immediately preceding the automobile accident.
On March 5, the Hagenows designated a rebuttal expert, Dr. David
Friedgood. The same day, the Hagenows filed a resistance to Schmidt’s
motion for summary judgment and cross-motion for partial summary
judgment on liability, and a motion to exclude Dr. Bekavac’s testimony
7
on grounds of late disclosure. The court held an unreported hearing on
March 21. At that hearing, the court orally advised counsel it would
allow Dr. Bekavac to testify and directed the parties to cooperate in
scheduling depositions of Drs. Bekavac and Friedgood before trial. On
March 29, the Hagenows filed a motion to reconsider and, on April 16,
filed a motion in limine seeking the exclusion of Dr. Bekavac’s testimony.
Attached to this motion was an affidavit from Dr. Friedgood, which
opined that Schmidt suffered her stroke one hour after the accident,
while she was in the emergency room.
On April 17, the district court filed written orders denying the
Hagenows’ motions to exclude Dr. Bekavac’s testimony. The court
stated:
This is not a case where the plaintiffs were unaware of the
existence of an expert. This is also not a case in which the
plaintiffs were unaware the treating physician had a
professional medical opinion. This is merely a case in which
the treating physician, for whatever reason, now has a
different opinion than the opinion he expressed earlier.
The district court acknowledged the timing was “unfortunate,” but
pointed out that Schmidt had informed the Hagenows of Dr. Bekavac’s
changed opinion more than thirty days prior to trial, as required by Iowa
Rule of Civil Procedure 1.508(3). The district court offered the Hagenows’
counsel a continuance “should he determine he is unable to adequately
prepare and obtain the necessary expert opinion prior to trial in May.”
Dr. Bekavac was deposed on April 9, and Dr. Friedgood was deposed on
April 25.
On April 26, the district court denied both parties’ motions for
summary judgment. The district court noted that Dr. Bekavac and
Dr. Friedgood presented conflicting opinions regarding the timing of
8
Schmidt’s stroke, and therefore, the court found Schmidt’s sudden
emergency defense presented a genuine issue of material fact.
The Hagenows did not request a continuance, and trial began
May 1, as scheduled. Schmidt testified that she was living independently
at the time of the accident and drove nearly every day. She believed she
was in fine health on the day of the accident and had no reason to know
she would suffer a stroke that day. Her memory of the accident and
subsequent events was incomplete. Though she did not remember her
speed, she testified that she had a practice of driving a little under the
speed limit. She recalled approaching the red light and preparing to
signal a right-hand turn. The last thing she remembered “was seeing the
red light at the intersection and thinking I needed to stop.” She testified
she did not remember seeing the Hagenows’ truck stopped in front of her
at the intersection, nor did she remember the impact or her airbags going
off. She did, however, recall speaking with the police officer at the scene.
She also remembered speaking with a medical responder, though she did
not remember her resulting trip to the emergency room in an ambulance.
Despite her spotty memory, Schmidt denied that she lost consciousness.
Drs. Bekavac and Friedgood testified by deposition. They
disagreed whether Schmidt’s stroke occurred before or after the accident.
Dr. Bekavac testified that Schmidt’s stroke preceded the accident, while
Dr. Friedgood testified the stroke occurred in the emergency room at the
time Schmidt noted her vision loss. But, the experts agreed on a number
of issues. Both experts agreed Schmidt suffered a stroke on
November 10, 2008. Both experts agreed the right occipital lobe
processes the information from one’s left visual field. Both agreed that,
because of the stroke, Schmidt suffered homonymous hemianopsia and
9
lost half of her visual field. Both agreed Schmidt would not have been
able to drive her car successfully with that condition.
Moreover, both agreed that what Schmidt could see depended on
how she had her head or eyes turned. Dr. Bekavac explained that, if
Schmidt was looking at his face and he held his hand to her left side, she
would be unable to see his hand. Dr. Friedgood stated that, if Schmidt
was looking straight forward, she would only “see” from her nose over to
her right. Dr. Bekavac noted that, due to this phenomenon, Schmidt
would be unable to see a car directly ahead of her if she were looking
even three-quarters to her right. Schmidt herself gave examples to
illustrate the extent of her vision loss, noting she has difficulty reading
because she can see only the right half of the page of a book when
viewing it straight ahead. She explained that she can only see half of a
dinner plate on a table while eating and noted that she had knocked over
her drink several times lately because it was placed to the left side of her
plate. Nevertheless, Schmidt does not “see blackness” in the left half of
her vision. As Dr. Friedgood explained, no one can see 360°. Yet, a
person does not see blackness for the 180°; they simply do not “see”
anything.
Schmidt proposed jury instructions regarding sudden emergency
and legal excuse. The Hagenows objected to submission of the sudden
emergency defense, arguing no factual foundation existed for the
instructions because no expert testified to a reasonable degree of medical
certainty that Schmidt suffered a stroke that rendered her incapable of
operating a vehicle. The Hagenows also argued that, if a sudden
emergency instruction was provided, “there should be a specific
requirement that the jury find [the stroke caused the] impairment to
Betty Schmidt to the extent that she could not operate her motor
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vehicle.” The district court overruled the Hagenows’ objections and
declined their request to provide causation language within the sudden
emergency instruction.1
At Schmidt’s request, the district court submitted an instruction
modeled after Iowa Civil Jury Instruction 600.75.2 This instruction,
No. 19, stated:
A sudden emergency is an unforeseen combination of
circumstances that calls for immediate action or a sudden or
unexpected occasion for action. A driver of a vehicle who,
through no fault of her own, is placed in a sudden
emergency, is not chargeable with negligence if the driver
exercises that degree of care which a reasonably careful
person would have exercised under the same or similar
circumstances.
For Instruction No. 20, the district court submitted an instruction based
upon Iowa Civil Jury Instruction 600.74,3 as proposed by Schmidt. This
instruction stated:
1The Hagenows do not appeal the district court’s refusal to include their
requested causation language within the instruction.
2Uniform instruction 600.75, captioned “Sudden Emergency,” states:
A sudden emergency is an unforeseen combination of circumstances that
calls for immediate action or a sudden or unexpected occasion for action.
A driver of a vehicle who, through no fault of [his] [her] own, is placed in
a sudden emergency, is not chargeable with negligence if the driver
exercises that degree of care which a reasonably careful person would
have exercised under the same or similar circumstances.
Iowa State Bar Ass’n, Iowa Civil Jury Instructions 600.75 (2012).
3Uniform instruction 600.74, captioned “Legal Excuse,” states:
(Name) claims that if you find that [he] [she] violated the law in the
operation of [his] [her] vehicle, [he] [she] had a legal excuse for doing so
because (excuse) and, therefore, is not negligent. “Legal excuse” means
that someone seeks to avoid the consequences of [his] [her] conduct by
justifying acts which would otherwise be considered negligent. The
burden is upon (name) to establish as a legal excuse:
1. Anything that would make complying with the law impossible.
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Betty Schmidt claims that if you find that she violated
the law in the operation of her vehicle, she had a legal
excuse for doing so because of a sudden medical emergency
and, therefore, is not negligent. “Legal excuse” means that
someone seeks to avoid the consequences of his or her
conduct by justifying acts which would otherwise be
considered negligent. The burden is upon Betty Schmidt to
establish as a legal excuse:
1. That Betty Schmidt had no control over the sudden
medical emergency she alleges occurred which placed her
vehicle in a position contrary to the law.
2. That her failure to obey the law when she was
confronted with a sudden medical emergency was not a
circumstance of her own making.
If you find that Betty Schmidt has violated the law as
submitted to you in other instructions and that she has
established a legal excuse for doing so under either of the
two definitions set forth above, then you should find that
Betty Schmidt was not negligent for violating the particular
law involved.
On May 7, 2012, the jury returned a verdict in favor of Schmidt,
answering “no” to the first question, “Was the defendant, Betty Schmidt,
at fault?”
The Hagenows moved for a judgment notwithstanding the verdict
or new trial, arguing Schmidt “failed to prove there was a stroke that
transpired prior to the collision in question and most importantly that
the stroke in any manner impaired Mrs. Schmidt in the operation of her
______________________
2. Anything over which the driver has no control which places
[his] [her] vehicle in a position contrary to the law.
3. Failure to obey the law when the driver is confronted with
sudden emergency not of [his] [her] own making.
4. An excuse or exception provided by the law.
If you find that (name) has violated the law as submitted to you in
other instructions, and that [he] [she] has established a legal excuse for
doing so under any one of the four definitions set forth above, then you
should find that (name) was not negligent for violating the particular law
involved.
Iowa State Bar Ass’n, Iowa Civil Jury Instructions 600.74.
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vehicle.” The district court denied this motion. The Hagenows appealed,
arguing the district court erred in failing to exclude Dr. Bekavac’s
testimony and in instructing the jury on sudden medical emergency. We
transferred the case to the court of appeals. In its opinion, the court of
appeals stated:
Because there was testimony, albeit disputed testimony, that
Schmidt experienced a stroke depriving her of her left visual
field before the accident, we believe an instruction as to legal
excuse was warranted by the evidence—if Schmidt was
unable to see Hagenow’s vehicle, it would have been
impossible or beyond her control to have stopped behind
him.
(Emphasis added.) But, the court of appeals further concluded “the type
of legal excuse warranted by the evidence was not included in the
instructions given.” Focusing on the language in the sudden emergency
instruction that “calls for immediate action or a sudden or unexpected
occasion for action,” the court of appeals queried, “if Schmidt did not
know she had a stroke or lost a portion of her visual field, what action
was called for under the circumstances?” Based on this perceived
disconnect between the language of the instruction and the facts, the
court of appeals held the sudden emergency instruction was “neither
applicable nor supported by the evidence.” The court of appeals
therefore reversed the judgment in favor of Schmidt and ordered a new
trial. Because the court of appeals found the jury instruction issue
dispositive, it did not decide whether the district court abused its
discretion by allowing Dr. Bekavac to testify.
We granted Schmidt’s application for further review.
II. Scope of Review.
We review for abuse of discretion discovery rulings on whether to
exclude evidence as a sanction for untimely disclosure. Whitley v. C.R.
13
Pharmacy Serv., Inc., 816 N.W.2d 378, 385 (Iowa 2012). “[W]e will not
reverse the court’s decision to admit evidence unless the record shows
prejudice to the complaining party.” Id. We likewise review for abuse of
discretion rulings allowing or disallowing expert testimony challenged as
untimely and “accord the trial court broad discretion.” Klein v. Chi. Cent.
& Pac. R.R., 596 N.W.2d 58, 60–61 (Iowa 1999) (affirming district court’s
exclusion of opinion testimony of company physician due to late
disclosure). “An abuse of discretion consists of a ruling which rests upon
clearly untenable or unreasonable grounds.” Lawson v. Kurtzhals, 792
N.W.2d 251, 258 (Iowa 2010).
“We review a claim that the district court gave an instruction not
supported by the evidence for correction of errors at law.” Pavone v.
Kirke, 801 N.W.2d 477, 494 (Iowa 2011). “We review the related claim
that the trial court should have given [a party’s] requested instructions
for an abuse of discretion.” Crawford v. Yotty, 828 N.W.2d 295, 298
(Iowa 2013) (internal quotation marks omitted). “We evaluate the alleged
instructional error from the perspective that a trial court is generally
required to give a requested instruction ‘when it states a correct rule of
law having application to the facts of the case.’ ” Pexa v. Auto Owners
Ins. Co., 686 N.W.2d 150, 160 (Iowa 2004) (quoting Stover v. Lakeland
Square Owners Ass’n, 434 N.W.2d 866, 868 (Iowa 1989)).
We will affirm the submission of an instruction if substantial
evidence supports it. See Jones v. Blair, 387 N.W.2d 349, 352 (Iowa
1986). “Substantial evidence is that which a reasonable person would
find adequate to reach a conclusion.” Greenwood v. Mitchell, 621 N.W.2d
200, 204 (Iowa 2001) (internal quotation marks omitted). In reviewing
whether a sudden emergency instruction was properly submitted, we
view the evidence in the light most favorable to the party asserting the
14
defense. Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993); see also Blair,
387 N.W.2d at 352. “Error in giving or refusing to give a jury instruction
does not warrant reversal unless it results in prejudice to the
complaining party.” Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009)
(internal quotation marks omitted). “Instructions must be considered as
a whole, and if the jury has not been misled there is no reversible error.”
Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999).
III. Whether the District Court Abused Its Discretion by
Allowing Dr. Bekavac to Testify on Causation.
The Hagenows argue the district court erred in allowing
Dr. Bekavac’s expert opinion testimony—disclosed sixty-seven days
before trial—that Schmidt’s stroke occurred before the accident. They
argue Schmidt failed to timely supplement her discovery responses on
expert testimony as required by Iowa Rule of Civil Procedure 1.508(3).4
We conclude the district court did not abuse its discretion by allowing
Dr. Bekavac’s expert medical opinion because Schmidt disclosed his
opinion more than two months before trial and the Hagenows suffered no
unfair prejudice. Specifically, the Hagenows declined a continuance and
4A treating physician may become subject to expert disclosure requirements
when his trial testimony is based on “factual knowledge, mental impressions and
opinions . . . ‘acquired or developed in anticipation of litigation or for trial.’ ” Day v.
McIlrath, 469 N.W.2d 676, 677 (Iowa 1991). Moreover, if a “treating physician assumes
a role in litigation analogous to the role of a retained expert, supplemental discovery . . .
could become obligatory.” Id. Dr. Bekavac testified on causation, specifically, that
Schmidt’s stroke preceded the accident and explains her failure to see the Hagenow
vehicle. His 2012 trial testimony thereby went beyond his diagnosis and treatment of
her stroke in 2008. We conclude Dr. Bekavac’s opinion on causation was subject to the
disclosure and supplementation requirements of Iowa Rule of Civil Procedure 1.508
governing experts. Cf. Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 484 (Iowa
2004) (holding physician “was not within the ambit of [Iowa Code] section 668.11,”
which governs expert disclosures in professional malpractice cases, when his opinion
on causation was formed treating the plaintiff). Schmidt indeed formally designated
Dr. Bekavac as an expert witness on November 29, 2011, complying with the deadline
to disclose defense experts 150 days before the trial set for May 1, 2012.
15
had time to depose Dr. Bekavac and obtain a rebuttal expert,
Dr. Friedgood, before trial.
Rule 1.508 governs “Discovery of experts.” Rule 1.508(1)(a)
provides:
A party may through interrogatories require any other party
. . . to state, with reasonable particularity, all of the
following:
(1) The subject matter on which the expert is expected
to testify.
(2) The designated person’s qualifications to testify as
an expert on such subject.
(3) The mental impressions and opinions held by the
expert and the facts known to the expert (regardless of when
the factual information was acquired) which relate to, or
form the basis of, the mental impressions and opinions held
by the expert.
Iowa R. Civ. P. 1.508(1)(a).
Rule 1.508(3) addresses when supplemental discovery is required,
and provides in full:
If a party expects to call an expert witness . . . when the
substance of an expert’s testimony has been updated, revised
or changed since the response, such response must be
supplemented to include the information described in rule
1.508(1)(a)(1) to (3), as soon as practicable, but in no event
less than 30 days prior to the beginning of trial except on
leave of court. If the identity of an expert witness and the
information described in rule 1.508(1)(a)(1) to (3) are not
disclosed or supplemented in compliance with this rule, the
court in its discretion may exclude or limit the testimony of
such expert, or make such orders in regard to the
nondisclosure as are just.
Id. r. 1.508(3) (emphasis added). This rule required Schmidt to
supplement her discovery responses to disclose Dr. Bekavac’s opinion
that the stroke preceded the accident.
Compliance with both the “as soon as practicable” and the “thirty
day” requirements is necessary, as “the two requirements are cumulative
16
so that violation of either amounts to noncompliance.” Stephenson v.
Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa 1994). “Consistent with the
discovery rules in general, the duty to supplement seeks to clarify issues
prior to trial, avoid surprise to parties, and allow a complete opportunity
to prepare for trial.” Whitley, 816 N.W.2d at 386 (noting “parties seeking
discovery should normally be justified in believing they have received
substantially all the information requested”).
As rule 1.508(3) provides, the district court may order sanctions
for violations. See Whitley, 816 N.W.2d at 388. This decision “rests with
the sound discretion of the trial court,” id., and “[w]e have been slow to
find an abuse of discretion,” Sullivan v. Chi. & Nw. Transp. Co., 326
N.W.2d 320, 324 (1982) (finding no abuse of discretion in trial court’s
exclusion of testimony based on discovery violation); see also, e.g.,
Whitley, 816 N.W.2d at 388–89 (affirming district court’s decision to
grant a continuance rather than exclude evidence); Lawson, 792 N.W.2d
at 260 (affirming district court’s limitation of evidence based on late
supplementation that “came days before trial and after one
continuance”). In reviewing a district court’s ruling in a discovery
matter, we remain mindful that
[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.
Whitley, 816 N.W.2d at 386 (internal quotation marks omitted).
We must determine whether the district court appropriately
considered the available options. In Whitley, we reiterated that the
district court should consider the following factors:
“1. the parties’ reasons for not providing the challenged
evidence during discovery;
17
2. the importance of the evidence;
3. the time needed for the other side to prepare to meet the
evidence; and
4. the propriety of granting a continuance.”
Id. at 388 (quoting Lawson, 792 N.W.2d at 259). “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.
Exclusion of an expert is an extreme sanction and “is justified only when
prejudice would [otherwise] result.” Lambert v. Sisters of Mercy Health
Corp., 369 N.W.2d 417, 422 (Iowa 1985) (internal quotation marks
omitted).
Schmidt informed the Hagenows of Dr. Bekavac’s revised opinion
sixty-seven days before trial, well before the requirement in rule 1.508(3)
to supplement responses at least thirty days before trial.5 The Hagenows
do not claim that Schmidt knew of Dr. Bekavac’s revised opinion earlier
and thereby failed to disclose it “as soon as practicable” under that rule.
Significantly, the Hagenows have not shown they were prejudiced
by the disclosure of Dr. Bekavac’s revised opinion just over two months
before trial. The Hagenows were able to retain a rebuttal expert ten days
later, with trial still seven weeks away. The parties deposed both experts
before trial. The district court offered the Hagenows’ counsel a
continuance, which he declined. We hold the district court acted within
5Plaintiffs’ experienced trial counsel was on notice since Schmidt’s answer filed
on February 9, 2011, that defendant claimed a sudden medical emergency caused the
accident. Discovery responses, served April 6, stated defense counsel may call treating
physicians to give opinion testimony at trial, including Dr. Bekavac. The records of
Schmidt’s rehabilitation physician, Dr. Malicka-Rozek, indicated the stroke preceded
and caused the accident. Her records were produced to the Hagenows’ counsel by
autumn 2011. Schmidt’s formal designation of Dr. Bekavac as a testifying expert on
November 29 reserved her right to elicit opinion testimony at trial from other treating
physicians. For these reasons, disclosure of Dr. Bekavac’s causation opinion on
February 24, 2012, may not have been a complete surprise to the Hagenows.
18
its discretion by allowing Dr. Bekavac’s expert opinion testimony. We
therefore affirm the rulings denying Hagenows’ motions to exclude
Dr. Bekavac’s testimony at trial. Accordingly, his testimony may be
considered in deciding the next issue—whether the evidence was
sufficient to submit a defense based on legal excuse or sudden
emergency.
IV. Whether the District Court Committed Reversible Error in
Submitting the Sudden Emergency Instruction.
The Hagenows had the burden to prove Schmidt’s negligence.
Crashing into a pickup truck stopped at a red light ordinarily would
constitute negligence per se. But, what if the reason Schmidt failed to
see the Hagenows’ vehicle stopped in front of her is that her unforeseen
stroke caused a sudden loss of vision? How did she fail to exercise
reasonable care if she was unaware of her loss of vision before the crash?
We must determine whether the district court committed reversible error
in instructing the jury on Schmidt’s sudden medical emergency under
these circumstances. We review the evidence in the light most favorable
to Schmidt as the party asserting the defense. See Weiss, 501 N.W.2d at
481. We begin our analysis with a look at the law of legal excuse and
sudden emergency.
“The doctrine of legal excuse permits the jury to excuse a
defendant’s failure to obey statutory law when confronted with an
emergency not of his or her own making.” Id. at 480. We have identified
four categories of legal excuse:
(1) anything that would make it impossible to comply with
the statute or ordinance;
(2) anything over which the driver has no control which
places the driver’s motor vehicle in a position contrary to the
provisions of the statute or ordinance;
19
(3) where the driver of the motor vehicle is confronted by an
emergency not of the driver’s own making, and by reason of
such an emergency, the driver fails to obey the statute; and
(4) where a statute specifically provides an excuse or
exception.
Rowling v. Sims, 732 N.W.2d 882, 885 (Iowa 2007) (internal quotation
marks omitted). “A jury should only be instructed on the category of
legal excuse supported by the evidence.” Id.6
“Unlike the doctrine of legal excuse—which exonerates a party
from liability for negligence per se—the sudden emergency doctrine is
merely an expression of the reasonably prudent person standard of
care.”7 Weiss, 501 N.W.2d at 481. “It expresses the notion that the law
6On appeal, the Hagenows argue the sudden emergency instruction was
inappropriate because “[i]t is impossible for [Schmidt] to offer competent medical
evidence that her knowledge of pre-existing medical conditions did not impair her
ability to drive with due care.” In a conclusory fashion, they list ailments from
Schmidt’s medical history, including headaches and sleep apnea, to allege she
“contributed to the creation of the emergency.” The Hagenows did not make this
specific objection to the sudden emergency instruction at trial, and in any event, it
lacks merit. Schmidt’s own testimony refutes the Hagenows’ argument, showing she
was able to drive without incident up until the time of her stroke. We conclude her
medical history did not rise to a level that, as a matter of law, she should have
anticipated her stroke and refrained from driving. Her defense was for the jury. This is
not a case in which a driver was beginning to experience symptoms and could have
pulled over before the accident, nor is it a case in which a medical emergency resulted
from the driver’s careless failure to take medications.
7In Weiss, we declined the opportunity to abandon the sudden emergency
instruction, despite our recognition “that the doctrine of sudden emergency has come
under increasing attack in recent years.” 501 N.W.2d at 480. We did so after an
analysis of conflicting authorities led us to the conclusion that “a jury may be aided by
a succinct and narrowly drafted instruction that tells it the actor is held only to the
standard of reasonable care under the circumstances posed by the emergency.” Id. at
481.
The Colorado Supreme Court is the latest to abolish the sudden emergency
doctrine. Bedor v. Johnson, 292 P.3d 924, 927–31 (Colo. 2013) (collecting cases). Two
dissenting justices favored retaining the sudden emergency defense. Justice Boatwright
relied on stare decisis:
The majority abolishes the sudden emergency instruction in
Colorado negligence law because it states that this legal principle’s
potential to mislead the jury greatly outweighs its minimal utility. Our
earlier precedent rejected this view because we determined this doctrine
20
requires no more from an actor than is reasonable to expect in the event
of an emergency.” Id. We have repeatedly defined “sudden emergency”
as
“(1) an unforeseen combination of circumstances which calls
for immediate action; (2) a perplexing contingency or
complication of circumstances; [or] (3) a sudden or
unexpected occasion for action, exigency, pressing
necessity.”
Vasconez v. Mills, 651 N.W.2d 48, 54 (Iowa 2002) (quoting Foster v.
Ankrum, 636 N.W.2d 104, 106 (Iowa 2001)).
In the case before us, Instruction No. 19 defined “sudden
emergency” as “an unforeseen combination of circumstances that calls
for immediate action or a sudden or unexpected occasion for action.” It
also reflected a reasonable person standard, stating:
A driver of a vehicle who, through no fault of her own, is
placed in a sudden emergency, is not chargeable with
negligence if the driver exercises that degree of care which a
reasonably careful person would have exercised under the
same or similar circumstances.
We have held a sudden emergency instruction is inappropriate if
the “emergency” is of the type that a reasonably prudent person should
be prepared for or if the circumstances allowed a defendant time to
assess the situation. See id. at 54–55 (holding sudden emergency
instruction was inappropriate when driver failed to see biker riding on
the side of the road); Foster, 636 N.W.2d at 107 (rejecting sudden
______________________
was helpful to the jury. Nothing has changed since we reached this
conclusion and stare decisis dictates that we continue to give effect to
our earlier pronouncements.
Id. at 932 (Boatwright, J., dissenting); see also Moran v. Atha Trucking, Inc., 540 S.E.2d
903, 913 (W. Va. 1997) (retaining sudden emergency defense with comparative fault
system after thorough review of criticism and conflicting authorities in other
jurisdictions). No party in this case has asked us to abandon the sudden emergency
doctrine.
21
emergency instruction when defendant had ten to fifteen seconds to
deliberate); Weiss, 501 N.W.2d at 482 (denying instruction when “[t]he
facts reveal no more than the everyday hazard of driving through a
school parking lot and the not uncommon appearance of pedestrians
crossing the traveled way to reach their parked cars”). Whether a
sudden emergency occurred is typically a fact question entrusted to the
jury. See Weiss, 501 N.W.2d at 481. The burden is on the party
asserting the defense. Blair, 387 N.W.2d at 352. “[I]f there is substantial
evidence that an emergency had developed, the jury should be instructed
thereon.” Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970).
A. The Evidence Was Sufficient to Submit a Defense Based on
Sudden Emergency or Legal Excuse. The Hagenows argue a sudden
emergency instruction was inappropriate because the evidence was
insufficient to prove that Schmidt suffered a stroke prior to the accident
or that her stroke caused the accident. They assert Schmidt’s testimony
that she was able to see the red light as she approached the intersection
and that she did not lose consciousness proves she did not suffer her
stroke before the accident. They argue “there simply is no competent
medical evidence to support such a finding despite [Dr. Bekavac’s
testimony]” and describe Schmidt’s evidence as “speculative at best.”
The Hagenows point to the fact that Schmidt did not report her vision
loss until over an hour after arriving at the hospital as evidence the
stroke occurred after the accident. They also contend that, even
assuming Schmidt’s stroke occurred prior to the accident, this would not
establish a sudden emergency defense because her vision loss occurred
only in the left half of both of her eyes and would not have prevented her
from viewing the Hagenows’ vehicle directly in front of her.
22
We disagree. The Hagenows’ insufficiency argument collapses
upon our determination that Dr. Bekavac’s testimony was properly
admitted. Reviewing all the evidence—including Dr. Bekavac’s
testimony—in the light most favorable to Schmidt and “taking into
consideration all reasonable inferences that could be fairly made by the
jury,” Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004), we hold the
evidentiary record supports submission of a legal-excuse defense based
on Schmidt’s sudden medical emergency.
Drs. Friedgood and Bekavac agreed Schmidt suffered a stroke on
the afternoon of November 10, 2008, that caused permanent loss of the
left half of her vision in both eyes. Though Dr. Bekavac conceded he
could not definitively determine when the stroke occurred, medical
evidence supported his opinion that the stroke most likely preceded the
accident. Dr. Bekavac explained there was no evidence that Schmidt
suffered head trauma during the accident that would have precipitated
the stroke. Dr. Bekavac found it significant that Schmidt did not report
losing consciousness before or after the accident, but rather reported
confusion. Dr. Friedgood confirmed that “[c]onfusion can be a symptom
of a stroke.”
Both experts testified Schmidt could have lost half of her vision
before the accident and yet failed to notice it until later at the hospital.
Dr. Bekavac noted that a stroke happens quickly and often painlessly,
and he was unsurprised Schmidt failed to realize she had suffered one.
Dr. Friedgood agreed that when a person loses only half of his or her
normal field of vision, that person could initially be unaware of the loss.
This is because the left half of a person’s vision does not “go black” upon
suffering a stroke. Rather, a person would simply be unable to perceive
the left half of his or her range of vision, in the same way that people are
23
unable to perceive what is behind them but do not “see” blackness.
Dr. Friedgood commented, “Eventually they become aware of it reflexively
and then they deal with it, but initially they may not be aware, and that’s
why they bump into things and get into trouble.”
Finally, because of the nature of her vision loss, it was possible
Schmidt could have observed the red light and yet failed to perceive the
Hagenows’ vehicle. Both experts discussed how the loss of vision in the
left half of both of her eyes would have negatively affected Schmidt’s
ability to drive. Dr. Friedgood noted that Schmidt’s ability to perceive
objects in front of her would depend upon how she moved her head and
eyes: if her eyes or head turned to the right, she would be unable to see
objects directly in front of her because they would be on the left side of
her field of vision. As Dr. Bekavac testified, if Schmidt looked to her right
in preparation of a right turn at the intersection, everything straight
ahead of her, now in the left part of her visual field, would have
disappeared.
Based on this evidence, a reasonable juror could find that Schmidt
rear-ended the Hagenows’ vehicle because of her stroke and loss of
vision. We conclude the evidence was sufficient to submit the defense.
B. Any Error in the Wording of the Sudden Emergency
Instruction Was Harmless. The Hagenows next argue the wording of
the sudden emergency instruction did not fit the facts. Instruction 19
required the jury to find the emergency was an “unforeseen combination
of circumstances that calls for immediate action or a sudden or
unexpected occasion for action.” Schmidt, however, was unaware of her
vision loss and thus had no sudden choice or action to take. The court
of appeals reversed on that basis. Our court has never squarely
24
addressed the applicability of the sudden emergency defense under these
circumstances.
In Weiss, we listed “a sudden heart attack” as an example of a
situation that could warrant a sudden emergency instruction. 501
N.W.2d at 482; see also Fitas v. Estate of Baldridge, 657 N.E.2d 323,
326–27 (Ohio Ct. App. 1995) (finding heart attack suffered by driver of
automobile created sudden emergency that precluded liability of driver or
his wife); Diaz v. Sopade, 893 N.Y.S.2d 164, 165 (App. Div. 2010)
(concluding sudden emergency defense applied to motorist who, after
being assaulted by his passenger and rendered unconscious, struck a
bicyclist). Quoting section 13 of the American Jurisprudence Proof of
Facts Third, our court of appeals in this case concluded a sudden
emergency instruction is intended only for circumstances in which a
defendant “has acted in response to a perceived peril and has made a
choice which in hindsight may be regarded as unwise or ill-considered,
but which was not unreasonable or imprudent under the stress of
surrounding circumstances.” 8 Am. Jur. Proof of Facts 3d § 13, at 424
(1990 & Supp. 2013) (emphasis added); see also Bardwell v. McLaughlin,
520 S.W.2d 277, 278–79 (Ark. 1975) (holding sudden emergency
instruction inappropriate when “it was physically impossible for appellee
to make a decisional act”); Hancock-Underwood v. Knight, 670 S.E.2d
720, 726 (Va. 2009) (holding driver who suffered acute medical crisis and
lost consciousness was not entitled to sudden emergency instruction
because “[t]here was no action he could take or did take”). Under this
view, “[w]here the actor has not made a decisional act in response to
peril, either because he was unaware of the peril, or where he perceived
the peril but did not have time to react to it, the doctrine logically has no
application.” 8 Am. Jur. Proof of Facts 3d § 13, at 424.
25
The Restatement (Third) of Torts: Liability for Physical and
Emotional Harm includes a separate section for disability—which does
not require advanced awareness or a rapid response. We have not
previously considered adopting the provisions of the Restatement (Third)
relevant to a sudden medical emergency. Section 11(b) on sudden
incapacitation best fits the facts of this case.8 Cf. Weiss, 501 N.W.2d at
8Section 11(b) of the Restatement, entitled “Disability,” provides:
The conduct of an actor during a period of sudden incapacitation or loss
of consciousness resulting from physical illness is negligent only if the
sudden incapacitation or loss of consciousness was reasonably
foreseeable to the actor.
Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 11(b), at 130
(2005). Comment d to section 11 explains, “[s]udden incapacitation can be caused by a
heart attack, a stroke, an epileptic seizure, diabetes, or other medical conditions.” Id.
§ 11 cmt. d, at 131 (emphasis added). Significantly, section 11(b) does not require the
driver’s contemporaneous awareness of his medical emergency, nor a rapid decision or
action to be taken, as that would be impossible for a person who is unconscious or
incapacitated. Comment d elaborates:
A typical case is sudden incapacitation that causes a driver to lose
control of the car. This is distinctly dangerous and substandard driving
which, absent the incapacitation, would easily merit a finding of
negligence. Even so, when the incapacitation is itself unforeseeable, it
follows that no reasonable precautions were available to the driver that
could have avoided the risk of harm.
Id. Relatedly, section 15 of the Restatement (Third), entitled “Excused Violations,”
states that a statutory violation is excused if “the violation is reasonable in light of the
actor’s childhood, physical disability, or physical incapacitation.” Id. § 15(a), at 168.
Unlike section 11(b), the Restatement’s “emergency” provision, section 9,
requires a rapid response. This provision provides: “If an actor is confronted with an
unexpected emergency requiring rapid response, this is a circumstance to be taken into
account in determining whether the actor’s resulting conduct is that of the reasonably
careful person.” Id. § 9, at 111. The Restatement (Third) defines “emergency” as
the kind of event that prevents reasonable persons from exercising the
kind of good judgment that such persons ordinarily exercise. An
emergency is an event that requires a decision within an extremely short
duration and that is sufficiently unusual so that the actor cannot draw
on a ready body of personal experience or general community knowledge
as to which choice of conduct is best.
Id. § 9 cmt. b, at 112.
26
482 (recognizing “a sudden heart attack” may support a sudden
emergency defense). The evidence supported a finding that Schmidt
suffered a stroke that caused her to lose vision, resulting in the rear-end
collision when she failed to see the Hagenow vehicle. She had no
forewarning of the stroke. But, neither the parties nor the district court
raised the provisions of the Restatement (Third) when instructing the
jury in this case. We defer for another day our consideration of these
provisions of the Restatement (Third) because we hold the submission of
the instruction did not prejudice the Hagenows, and we affirm the
judgment for Schmidt without a retrial. Cf. Thompson v. Kaczinski, 774
N.W.2d 829, 839–40 (2009) (reversing summary judgment for defendant
and remanding for trial under scope of liability provisions of the
Restatement (Third) adopted in that opinion).
Any error in the wording of the sudden emergency instruction
given was harmless. See Koenig, 766 N.W.2d at 637 (noting only
prejudicial error requires reversal). The alleged erroneous wording in the
instruction made it more difficult for Schmidt to prove her sudden
emergency defense. That wording defined emergency as an “unforeseen
combination of circumstances that calls for immediate action or a
sudden or unexpected occasion for action.” The Hagenows thereby
benefited from any error in the wording of the sudden emergency
instruction, such that the alleged error was nonprejudicial to them. See
Wells v. Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 38 (Iowa 2004)
(holding a challenged special interrogatory “treated [appellants] more
favorably than the facts warranted [and,] [c]onsequently, there was no
prejudice in submitting [the special interrogatory] to the jury”); Sheets v.
Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 607 (Iowa 1998) (holding
instructional error was harmless because “[appellant] is unable to show
27
how her chance of recovery would have actually improved under the
instructions she requested”).
In order to return a defense verdict in this rear-end collision case,
the jury must have found that Schmidt’s stroke caused the accident. As
the court of appeals and district court concluded, Schmidt was entitled
under the evidence to an instruction on legal excuse. The Hagenows fail
to show the alleged instructional error was prejudicial because they offer
no reason that omission of the challenged wording would have led to a
different verdict. See Sheets, 581 N.W.2d at 607 (rejecting challenge to
jury instructions when appellant was “unable to establish that the jury
might have reacted differently under her proposed instructions”). “Given
the clear focus of the experts’ disagreement, we do not see how the jury
could have been misled by the court’s instruction.” Estate of Hagedorn
ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 90 (Iowa 2004).
Accordingly, we conclude the district court correctly denied the
Hagenows’ motion for new trial.
V. Disposition.
For the foregoing reasons, we vacate the decision of the court of
appeals and affirm the district court’s judgment in favor of Schmidt.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.