Amended August 23, 2016 Estate of Paul Dedrick Gray by Brenna Marie Gray, Administrator of the Estate, and Brenna Marie Gray, Individually and on Behalf of O.D.G., Minor Child of Paul Dedrick Gray and Brenna Marie Gray Vs. Daniel J. Baldi Daniel J. Baldi, D.O., P.C. United Anesthesia & Pain Control, P.C. Central Iowa Hospital Corporation Iowa Health Pain Management Clinic Iowa Health System

IN THE SUPREME COURT OF IOWA
No. 14–1547

Filed May 6, 2016

Amended August 23, 2016

ESTATE OF PAUL DEDRICK GRAY by BRENNA MARIE GRAY,
Administrator of the Estate, and BRENNA MARIE GRAY, Individually
and on Behalf of O.D.G., Minor Child of Paul Dedrick Gray and Brenna
Marie Gray,

Appellants,

vs.

DANIEL J. BALDI; DANIEL J. BALDI, D.O., P.C.; UNITED
ANESTHESIA & PAIN CONTROL, P.C.; CENTRAL IOWA HOSPITAL
CORPORATION; IOWA HEALTH PAIN MANAGEMENT CLINIC; IOWA
HEALTH SYSTEM; UNITYPOINT HEALTH; BROADLAWNS MEDICAL
CENTER FOUNDATION; and BROADLAWNS MEDICAL CENTER,

Appellees.

Appeal from the Iowa District Court for Polk County, Dennis J.

Stovall, Judge.

Plaintiffs appeal from a district court decision granting summary
judgment to defendant medical providers, contending the district court

erred in concluding the plaintiffs’ wrongful-death and loss-of-consortium

claims are time-barred. AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

Bruce H. Stoltze of Stoltze & Updegraff, P.L.C., Des Moines, for

appellants.
 2

Eric G. Hoch, Connie L. Diekema, and Erik P. Bergeland of Finley,

Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for

appellees Daniel J. Baldi; Daniel J. Baldi, D.O., P.C.; United Anesthesia

& Pain Control, P.C.; Broadlawns Medical Center Foundation; and

Broadlawns Medical Center.

Barry G. Vermeer, Loree A. Nelson, and Sarah K. Grotha of

Gislason & Hunter LLP, Des Moines, for appellees Central Iowa Hospital

Corporation, Iowa Health System, and UnityPoint Health.
 3

HECHT, Justice.

In this wrongful-death case, Paul Gray’s surviving spouse and

daughter allege Dr. Daniel Baldi and several Iowa healthcare providers

negligently treated Paul during his struggle with substance abuse. The

district court concluded the plaintiffs brought suit after the applicable

statutes of limitations expired and granted summary judgment in favor of

the defendants. On appeal, we conclude the district court’s ruling was

partially erroneous. We hold a child conceived but not yet born at the

time of their parent’s death can bring a parental consortium claim after

the child is born. However, we do not decide whether the discovery rule

can extend the time to file wrongful-death claims under Iowa Code

section 614.1(9)(a) (2009), because we conclude even if it can, the

wrongful-death and spousal consortium claims were untimely under the

circumstances presented here. Accordingly, we affirm the district court’s

summary judgment ruling in part, reverse it in part, and remand for

further proceedings.

I. Background Facts and Proceedings.

In December 2005, Paul Gray began receiving care from Dr. Baldi,

an addiction medicine and pain management specialist. Dr. Baldi knew

Paul struggled with substance abuse, and his treatment of Paul involved

examinations, diagnoses, and prescriptions of various medications.

Paul’s wife, Brenna Gray, often attended appointments with Paul and

communicated with Dr. Baldi regarding his treatment.

On May 24, 2010, Paul passed away. For purposes of this appeal,

the parties agree Paul died from an overdose or lethal combination of

medications. However, the record does not reveal specifically which

medication or medications caused or contributed to the death, nor does
 4

it establish whether Dr. Baldi prescribed them. 1 Brenna was pregnant at

the time of Paul’s death and gave birth to a daughter, O.D.G., several

months later. Brenna was subsequently appointed administrator of

Paul’s estate.

On February 14, 2014, Brenna filed a wrongful-death lawsuit

against Dr. Baldi, United Anesthesia and Pain Control, Central Iowa

Hospital Corporation, Iowa Health Pain Management Clinic, Iowa Health

System, UnityPoint Health, Broadlawns Medical Center, and Broadlawns

Medical Center Foundation (collectively Baldi). The petition alleged Baldi

breached the standard of care in prescribing, managing, and dispensing

medications for Paul, and negligently failed to supervise or monitor

Paul’s progress. The petition listed three plaintiffs asserting three

different claims: Paul’s estate asserting wrongful death, Brenna asserting

a loss of spousal consortium, and O.D.G. asserting a loss of parental

consortium (collectively Gray).

Baldi filed an answer and a simultaneous motion for summary

judgment, contending each of Gray’s claims was time-barred. The

wrongful-death and spousal consortium claims, Baldi asserted, were filed

more than two years after May 24, 2010—the date “on which the

claimant knew, or through the use of reasonable diligence should have

known” of Paul’s death. Iowa Code § 614.1(9)(a); see Schultze v.

1The record does not include a copy of Paul’s medical records, death certificate,
or autopsy report. The record also does not include any information about the scene of
Paul’s death. Because Paul was a member of the band Slipknot, his death received
considerable media attention. Thus, additional information about his death may
appear in news reports. However, such reports are outside the record and we therefore
cannot consider them. Graham v. Kuker, 246 N.W.2d 290, 292 (Iowa 1976)
(disregarding “statements of purported fact . . . which are outside the record”); Barnes v.
Century Sav. Bank, 149 Iowa 367, 381, 128 N.W. 541, 547 (1910) (declining to consider
asserted facts “which may be true . . . , but which do not appear in the printed record”).
 5

Landmark Hotel Corp., 463 N.W.2d 47, 49 (Iowa 1990) (“[M]alpractice

actions for wrongful death must be brought within two years after the

claimant knew of the death.”). Furthermore, Baldi asserted O.D.G.’s

parental consortium claim was untimely because it too was filed more

than two years after Paul’s death and O.D.G. was ineligible for the tolling

provision in Iowa Code section 614.1(9)(b). See Iowa Code § 614.1(9)(b)

(providing actions arising out of medical care and “brought on behalf of a

minor who was under the age of eight years when the act, omission, or

occurrence alleged in the action occurred shall be commenced no later

than the minor’s tenth birthday”). Baldi contended O.D.G. was not a

“minor” at the time of Paul’s death, and she was therefore ineligible for

protection under the statute.

In resisting Baldi’s motion for summary judgment, Gray asserted

our decision in Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008),

significantly changed the analytical framework of the discovery rule

under section 614.1(9). In Rathje, we concluded “our legislature

intended the medical malpractice statute of limitations to commence

upon actual or imputed knowledge of both the injury and its cause in

fact.” Id. at 461 (emphasis added). Gray supported the resistance to the

motion with Brenna’s affidavit stating that to the best of her “knowledge,

recollection, understanding[,] and belief,” she did not discover Baldi

might have caused or contributed to Paul’s death until less than two

years before the petition was filed. Gray contended summary judgment

was therefore inappropriate because the claims for wrongful death and

loss of spousal consortium were timely under the discovery rule

explicated in Rathje.

Baldi presented a twofold response. First, he asserted the holding

in Rathje controls the discovery rule analysis in injury—but not death—
 6

cases. This distinction is significant, Baldi contended, because this court

previously noted differences between wrongful-death claims and claims

for nonfatal injuries. See Schultze, 463 N.W.2d at 50 (“[T]he fact that a

death has occurred provides the plaintiff with the starting point to

determine whether a valid cause of action for wrongful death exists.”).

Second, Baldi asserted, even if the discovery rule announced in Rathje is

applied in this wrongful-death case, summary judgment should be

granted because as a matter of law Gray knew or should have known of a

causal connection between Paul’s death and Baldi’s care before

February 14, 2012. Cf. Swartzendruber v. Schimmel, 613 N.W.2d 646,

651 (Iowa 2000) (applying the discovery rule in a workers’ compensation

case but nonetheless finding the claim untimely as a matter of law).

Specifically, Baldi (the collective defendants) contended Brenna’s sworn

deposition and trial testimony during a criminal prosecution the state

filed against Dr. Baldi (the individual) established two propositions

justifying summary judgment: first, Brenna harbored concerns about

Paul’s consumption of prescription medications and Baldi’s treatment

even before the date of Paul’s death; and second, Brenna knew in

January 2012 that Baldi’s treatment may have been connected with

Paul’s death because she met at that time with a state investigator

developing an administrative case against Dr. Baldi.

The district court granted the motion for summary judgment in its

entirety. Gray appealed the summary judgment ruling and we retained

the appeal.

II. Scope of Review.

“We review a district court ruling granting a motion for summary

judgment for correction of errors at law.” Rathje, 745 N.W.2d at 447.

“We . . . view the record in the light most favorable to the nonmoving
 7

party and will grant that party all reasonable inferences that can be

drawn from the record.” Cawthorn v. Catholic Health Initiatives Iowa

Corp., 806 N.W.2d 282, 286 (Iowa 2011).

III. The Parties’ Positions.

A. Gray. Gray acknowledges our decision in Schultze is a major

obstacle for the wrongful-death and spousal consortium claims. See

Schultze, 463 N.W.2d at 49 (concluding section 614.1(9) “communicates

that malpractice actions for wrongful death must be brought within two

years after the claimant knew of the death”). However, Gray points out

our intervening decision in Rathje “departs from the direction we have

taken in our prior cases” concerning nonfatal medical injuries and

applies the discovery rule to toll the limitations period until the plaintiff

knows or should know the physical harm and its factual cause. Rathje,

745 N.W.2d at 463. Therefore, according to Gray, our analysis in

Schultze has been undermined and we should apply the Rathje rationale

uniformly to both wrongful-death claims and nonfatal injuries. If we do

not, Gray contends, the disparate treatment of wrongful-death and

nonfatal injury claims violates equal protection.

On the second issue, Gray asserts O.D.G.’s loss-of-consortium

claim was timely filed because a fetus in utero is under the age of eight

and the principle limiting the universe of persons protected under section

614.1(9)(b) is simply that a fetus must have been conceived before their

parent’s death and eventually be born. A contrary interpretation, Gray

asserts, denies equal protection of law because it would permit a child

who was just seconds old at the time of their parent’s death to sue, yet

prevent the same suit from a child who was born a second after their

parent passed away.
 8

B. Baldi. Baldi urges us to follow Schultze and maintain a strict

two-year limitations period that commences without exception on the

date of death for wrongful-death claims arising out of patient care. In

Baldi’s view, Rathje limits the benefit of the discovery rule to cases

asserting nonfatal injuries and is therefore of no aid to Gray in this

wrongful-death case. 2

Baldi further contends the district court correctly granted

summary judgment in the defendants’ favor on O.D.G.’s claim because

the time for filing children’s consortium claims is extended under section

614.1(9)(b) only for children who are born before the wrongful death of,

or the nonfatal injury sustained by, their parent. Because O.D.G. was in

utero when Paul died, Baldi insists she was not a “minor” protected by

the statute and her claim is time-barred. But in any event, Baldi asserts,

O.D.G.’s claim fails because until O.D.G. was born, she had no

cognizable consortium interest with Paul to lose. See Doe v. Cherwitz,

518 N.W.2d 362, 365 (Iowa 1994) (concluding children neither born nor

conceived at the time their parent was allegedly injured have no

cognizable parental consortium claim).

IV. Analysis.

The district court granted summary judgment in Baldi’s favor on

each of Gray’s claims. The respective claims involve different limitations

2Baldi also emphasizes that in Lightfoot v. Catholic Health Initiatives, we denied

further review after the court of appeals addressed a similar statute-of-limitations
question in a wrongful-death case and considered Schultze controlling even after Rathje.
See Lightfoot v. Catholic Health Initiatives, No. 12–0319, 2013 WL 1452932, at *2 (Iowa
Ct. App. Apr. 10, 2013). Emphasis on the denial of further review in Lightfoot is
misplaced. Denials of further review are analogous to Supreme Court denials of
certiorari, and it is well beyond dispute that “denial of a writ of certiorari imports no
expression of opinion upon the merits of the case, as the bar has been told many
times.” United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182, 67 L. Ed. 361,
364 (1923).
 9

periods. The timeliness of the wrongful-death and spousal consortium

claims turns on section 614.1(9)(a), which governs actions “founded on

injuries to the person or wrongful death . . . arising out of patient care.”

Iowa Code § 614.1(9)(a). The statute provides that a person asserting

this type of claim must file it “within two years after the date on which

the claimant knew, or through the use of reasonable diligence should

have known, or received notice in writing of the existence of, the injury or

death.” Id.

By contrast, an action otherwise brought under section 614.1(9)(a),

but that is “brought on behalf of a minor who was under the age of eight

years when the act, omission, or occurrence alleged in the action

occurred” must be filed “no later than the minor’s tenth birthday or as

provided in paragraph ‘a’, whichever is later.” Id. § 614.1(9)(b). This

statute governs O.D.G.’s parental consortium claim. See Christy v.

Miulli, 692 N.W.2d 694, 704–05 (Iowa 2005).

A. Section 614.1(9)(b) and Unborn Children. We first address

O.D.G.’s parental consortium claim. Baldi asserts the plain language of

section 614.1(9)(b) forecloses O.D.G.’s claim because O.D.G. is not “a

minor who was under the age of eight years when the act, omission, or

occurrence alleged in the action occurred.” Iowa Code § 614.1(9)(b).

Baldi insists a fetus is not a “minor” for purposes of the statute because

the word “minor” includes only living persons and an unborn child is not

yet living. This question “whether a . . . fetus on the date of the accident

is a child for purposes of asserting a parental consortium claim” has

been presented to our court before. Roquet v. Jervis B. Webb Co., 436

N.W.2d 46, 47 (Iowa 1989). However, we did not answer the question in

Roquet because we resolved that case on another ground. See id. at 49.
 10

Addressing the merits of the question today, we conclude the

statutory language is not as plain as Baldi asserts. In fact, “[t]he

semantic argument whether an unborn child is a ‘person in being’ [is]

beside the point.” Smith v. Brennan, 157 A.2d 497, 503 (N.J. 1960).

Section 614.1(9)(b) addresses “[a]n action subject to paragraph ‘a’ ”—that

is, an action arising out of patient care—“and brought on behalf of a

minor.” Iowa Code § 614.1(9)(b). The phrase “brought on behalf of a

minor” modifies “an action” and clearly addresses the child’s age at the

time the case is commenced. See id. In other words, the statute’s initial

focus is in the present tense on the filing of the action, not on whether

the minor child on whose behalf the claim is brought was alive at some

prior time. Gray filed the petition when O.D.G. was less than four years

old. Thus, the action was clearly “brought on behalf of a minor.” See id.

Section 614.1(9)(b) also includes a past-tense component, as it

pivots to consider whether the minor was under the age of eight at the

time of the occurrence for which the action is brought Id. Our

precedents have never addressed the precise factual scenario presented

here, where a child’s parent died after the child was conceived and still in

utero, but the child born later manifested no physical injury arising from

the tortfeasor’s acts or omissions. Instead, our cases have only

addressed factual scenarios in which tortfeasors caused physical harm to

fetuses in utero. See Dunn v. Rose Way, Inc., 333 N.W.2d 830, 833 (Iowa

1983) (recognizing a parent’s claim for loss of consortium with an unborn

child because the category of minor children “certainly includes unborn

persons”); McKillip v. Zimmerman, 191 N.W.2d 706, 709 (Iowa 1971)

(concluding a stillborn fetus has no cause of action for wrongful death

because “ ‘person’ as used in [the survival statute] means only those

born alive”). We conclude the distinction between Dunn and McKillip is a
 11

sound one. There is a difference between asking whether a fetus can “be

the subject of a wrongful death action” and asking whether “a fetus at the

time of the wrongful death of its father but a born, living minor child at

the time the action is brought” comes within the provisions of a

protective statute. Ellis v. Humana of Fla., Inc., 569 So. 2d 827, 828 (Fla.

Dist. Ct. App. 1990).

The nature of the consortium claim asserted in this case on behalf

of O.D.G. addresses that distinction and renders irrelevant Baldi’s

contention that “under the age of eight” does not include “negative age.”

See Iowa Code § 614.1(9)(b). For unborn children, the deprivation of

consortium does not occur immediately upon the parent’s death.

Crumpton v. Gates, 947 F.2d 1418, 1422 (9th Cir. 1991). Instead, the

deprivation occurs when the child is later born. See Lopez v. Md. State

Highway Admin., 610 A.2d 778, 780 (Md. 1992) (“It was only after he was

born that Lopez suffered injury from the loss of his father’s pecuniary

support, and the paternal affection and guidance attending the [parental]

relationship.”); see also Crumpton, 947 F.2d at 1422 (holding although a

parent died when their child “was in utero, the injury or suffering which

flowed from [the death] occurred postnatally”). Thus, the consortium

injury—the loss of Paul’s support, companionship, aid, affection,

comfort, and guidance, see Gail v. Clark, 410 N.W.2d 662, 668 (Iowa

1987)—for which suit was brought in this case on O.D.G.’s behalf arose

upon O.D.G.’s birth, not before. Accordingly, we conclude it does not

matter whether a fetus is “under the age of eight” within the meaning of

section 614.1(9)(b); a newborn assuredly is. O.D.G.’s parental

consortium claim is timely under section 614.1(9)(b).

We acknowledge that in Doe, we held children who were neither

born nor conceived at the time their parent suffered a compensable
 12

personal injury have no cognizable claim for loss of consortium due to

the parent’s injury. See Doe, 518 N.W.2d at 365. However, because

O.D.G. was already in utero when Paul passed away, no part of today’s

holding is inconsistent with Doe. See Angelini v. OMD Corp., 575 N.E.2d

41, 45–46 (Mass. 1991) (“[I]f an individual conceives a child, and the

child is born after the individual’s wrongful death, the child will be

allowed to recover . . . .”); Le Fevre v. Schrieber, 482 N.W.2d 904, 907

(Wis. 1992) (concluding a posthumous child can bring a wrongful-death

claim for the death of his parent if conceived before the death). The

distinction between Doe and this case is important because, as we

established in Dunn, parents enjoy a protected consortium interest in

their relationship with their conceived-but-not-yet-born children. Dunn,

333 N.W.2d at 833. Our holding today simply recognizes that the

protected relationship recognized in Dunn is reciprocal insofar as it

recognizes a child’s claim arising at birth for the loss of consortium with

a parent whose wrongful death occurred after the child was conceived

but before the child’s birth. Whatever deprivation of consortium O.D.G.

is currently experiencing is no less real just because she did not

experience it while in utero. See Weitl v. Moes, 311 N.W.2d 259, 269

(Iowa 1981) (“[I]n any disruption of the parent-child relationship, it is

probably the child who suffers most.”), overruled on other grounds by

Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 152

(Iowa 1983); cf. Dunn, 333 N.W.2d at 833 (“[P]arents’ loss certainly does

not vanish because the deprivation occurred prior to birth. To the

deprived parent the loss is real either way.”).

We emphasize that in deciding whether O.D.G. has a cognizable

claim and whether it was filed within the applicable limitations period,

“we can and do set completely aside all the philosophical arguments
 13

about the status of the unborn. Those arguments are not at issue here.”

Dunn, 333 N.W.2d at 833; see also McKillip, 191 N.W.2d at 709 (“We

express no opinion as to the existence of the fetus as a person in either

the philosophical or actual sense.”). Any reader who scours this

opinion’s interstices for implied sentiments about any context beyond the

narrow parental consortium question presented undertakes a fool’s

errand.

O.D.G. qualifies for protection under section 614.1(9)(b) because

she was a minor under the age of eight at the time the action was filed

and because her alleged loss of consortium—the injury or occurrence for

which she is seeking to recover—arose when she was born. Iowa Code

§ 614.1(9)(b). The district court therefore erred in granting summary

judgment on O.D.G.’s parental consortium claim.

B. Wrongful Death and the Discovery Rule. We now turn to the

wrongful-death and spousal consortium claims. In Schultze, we

concluded the limitations period for wrongful-death actions arising out of

patient care “commences on the date the death is discovered.” Schultze,

463 N.W.2d at 48. Since Schultze, we have not had occasion to consider

any wrongful-death cases involving the discovery rule and what is now

section 614.1(9)(a). 3 Thus, in cases apart from Schultze, our

consideration of the discovery rule in medical negligence cases has

occurred exclusively with respect to nonfatal injuries. Most recently, in

3Although we have considered other wrongful-death cases arising out of patient
care since Schultze, those cases did not involve the discovery rule. See Estate of
Anderson v. Iowa Dermatology Clinic, P.C., 819 N.W.2d 408, 419 (Iowa 2012)
(concluding a plaintiff filed an action beyond the statute of repose); Christy, 692 N.W.2d
at 703–04 (concluding the doctrine of fraudulent concealment estopped a defendant
from asserting a statute-of-limitations defense, but noting the discovery rule is a
separate question from fraudulent concealment).
 14

Rathje, we concluded the limitations period under section 614.1(9)(a)

commences “upon actual or imputed knowledge of both the injury and its

cause in fact.” Rathje, 745 N.W.2d at 461.

Our research reveals some disagreement among courts considering

whether statutory language measuring the limitations period from death

permits application of the discovery rule. Compare, e.g., Collins v. Sotka,

692 N.E.2d 581, 585 (Ohio 1998), and Bradshaw v. Soulsby, 558 S.E.2d

681, 688–89 (W. Va. 2001), with, e.g., Moon v. Rhode, 34 N.E.3d 1052,

1056 (Ill. App. Ct. 2015), and Corkill v. Knowles, 955 P.2d 438, 443 (Wyo.

1998). However, we do not join either side of that debate today. We need

not decide whether the Rathje rationale is also compelling in death cases

because we conclude even if the discovery rule applies, Brenna knew or

should have known of a possible causal connection between Baldi’s

medical care and Paul’s death more than two years before she filed the

petition in this case. See LaFage v. Jani, 766 A.2d 1066, 1070 (N.J.

2001) (“Because we agree . . . that even if she could invoke the discovery

rule Mrs. LaFage’s wrongful death claim was untimely, we decline to

address the broader question whether the discovery rule generally should

be applicable . . . .”).

1. Brenna’s prior testimony. In the criminal case against Dr. Baldi,

Brenna testified that before Paul’s death, she expressed concern to

Dr. Baldi about his treatment of Paul, shared with Dr. Baldi her desire

for Paul to stop taking one medication Dr. Baldi had prescribed, and

became frustrated because she perceived that Dr. Baldi either ignored

her complaints or did not take them seriously:

Q: Did you inquire about whether Paul should go to
substance abuse treatment? A: I did.

Q: And what was Dr. Baldi’s response to that?
A: Again, it just—it—to me, it seemed like it was a question
 15
with a question. I never got an answer. I was asking the
same questions for years and—well, for a period of time with
no outcome.

Q: And during the course of the time that you were in
Iowa, did Paul ever go to substance abuse treatment? A: He
did not.

Q: At some point did you have a conversation with [Dr.
Baldi] about how to record or document the concerns that
you were having? A: I did. There was this one time Paul was
just not in his right mind, not very coherent, and I dragged
him in the office and I said, Okay, here you go. What do I
do? . . . Dr. Baldi said, Just document it, take photos, write
things down. So I started snapping pictures of him when he
would be passed out or I would find pill bottles that he had
just gotten that were empty that had disappeared, you know,
and I would give them to him.

....

Q: Were [the photos] taken—why were they taken? A: I
was explaining that there were problems going on with this
medication, and it was disappearing, and he was passing out
in random places. . . . So when I was told to document, I
figured, Well, okay, here it is. And I took them. Knowing
that that is not how a medication bottle should be. And
there shouldn’t be white substances crushed into it. So I
took them, hoping, Hey, we can get him off this. This is a
problem. He can’t—he doesn’t do well with it.

....

Q: When you said you were in the office three days to a
week before his death, who was “we?” A: Myself and Paul.

Q: And did you see [Dr. Baldi] on that occasion? A: I
did.

Q: And what did you talk to [Dr. Baldi] about? A: The
first time I had saw a needle in my house was the week
before Paul had passed. The first time I had seen one in
years. When I had moved in, I had thrown away needles. So
that was the prior time I had seen them in our house. I had
told him, you know, I think he’s using needles. The doctor.
I had told the doctor. He checked Paul’s hands, where he
frequently had used intravenous drugs and had track
marks. So his hands were scarred up. And he checked his
arms, and he had not checked his feet.

Q: Did you suggest that to the doctor, that he should
check his feet? A: I did. I also was told that he passed his
 16
drug test, which he was—he had to, mandatory, take a drug
test every time he went to a doctor’s appointment. I was told
that it was negative. And I didn’t find out it was positive
until after Paul had passed away. . . .

....

Q: Did you share [a] desire with [Dr. Baldi]? The
desire for Paul to be off . . . Xanax so you could get
pregnant? A: Yes. Multiple times.

....

Q: Now, this intervention that you described, that was
not successful for Paul, was it? A: No. Nobody else believed
me, as far—even the doctor.

Q: Ma’am, you never told Dr. Baldi about the
intervention. A: Throughout the—because—it happened on
Saturday. But I was going to the appointments, and I was
documenting, and I was letting him know, He can’t be on
this. This is worrisome, throughout the years. So, therefore,
Saturday had come, and I had found these needles. What
difference did it make? I wasn’t getting help from him. So
what difference does it make? I don’t understand about—if
he knew about the intervention or not. He was dead 24
hours later.

Brenna also gave a March 2014 deposition in the criminal case

against Dr. Baldi. In that sworn testimony, she stated that in late

January 2012, she had a few conversations about Dr. Baldi’s treatment

of Paul with a state investigator from the Iowa Department of Inspections
and Appeals:

Q: What about investigators, have you talked to any
. . . investigators? A: An investigator came to me. His name
was Troy Wolff, DIA, I believe.

Q: When did you and Mr. Wolff first have contact?
A: Oh, boy. He showed up at my house. I was still residing
in Johnston in Paul and I’s home, two years ago, a year and
a half ago maybe. I really couldn’t—two years ago, I would
say, a little over two years.

Q: And you said he showed up. He didn’t call before
he—? A: I pulled in my house, and there was a car there,
and that’s how he showed up.
 17
Q: And what did he say to you when he was sitting
there at your house? A: He wanted some—just if I had any
information about my husband’s treatment with his pain
doctor and just some information about my husband and
life, you know, just general things.

....

Q: And when Investigator Wolff showed up at your
house in Johnston, do you have a date for that or
approximate date? A: It was winter. I—I don’t.

....

Q: If I said January 30th of 2012, would that seem
about right? A: Yes. It was winter. I just—yeah.

Q: How many visits had you had with Troy Wolff in
person? A: Three or four maybe.

Q: And where did those visits take place? A: My home
in Johnston at the time and his office downtown.

Q: And to the best of your memory those visits, three
or four of those? A: I think so, yes.

Q: And you had contact with him by e-mail as well
as— A: And phone.

Q: —phone. And what did Mr. Wolff tell [you] this
criminal case was all about? A: Doctor Baldi, and he was
there to speak to me about my husband’s care with Doctor
Baldi.

Baldi presented these transcript excerpts to the district court in support

of the motion for summary judgment in this case.

In LaFage, the plaintiff consulted an attorney and a medical expert

less than a month after the decedent’s death in March 1995—and in fact,

the medical expert opined “he believed . . . [the plaintiff] had an

overwhelming case of malpractice against all of the health care

providers.” LaFage, 766 A.2d at 1068. However, the plaintiff did not file

a lawsuit until April 1997. Id. The New Jersey Supreme Court

concluded even if the discovery rule applied, the plaintiff’s claim was

time-barred because she filed it more than two years after “she knew she
 18

had a basis for a wrongful death—medical malpractice claim.” LaFage,

766 A.2d at 1070.

Similarly, in a West Virginia case, the plaintiff “believed that the

[h]ospital was negligent in its treatment” even before the decedent’s

death. Mack-Evans v. Hilltop Healthcare Ctr., Inc., 700 S.E.2d 317, 323

(W. Va. 2010). The plaintiff’s deposition testimony further established

her knowledge at the time the decedent died “that conduct by the

[h]ospital may have caused [the] death.” Id. at 324. The deposition

testimony was an important factor in the court’s conclusion that the

discovery rule did not extend the time to file more than two years past

the date of death and that “the trial court was correct in granting

summary judgment to the [h]ospital.” Id.

Here, Brenna’s testimony in the criminal case against Dr. Baldi

establishes she had been frustrated and dissatisfied with Baldi’s medical

care even before Paul’s death. Although her frustration and

dissatisfaction with Dr. Baldi’s medical care provided before Paul’s death

do not conclusively establish Brenna’s knowledge of a causal connection

between the medical care and Paul’s subsequent death, after Brenna met

with Investigator Wolff in January 2012, she knew or should have known

Dr. Baldi’s care of Paul and others had prompted the state to investigate

Dr. Baldi. In other words, Brenna knew or had reason to know by

January 30, 2012, that the state was investigating whether Dr. Baldi’s

conduct in treating several patients was substandard. We conclude the

discovery rule, even if applied here, would not save the estate’s wrongful-

death claim or Brenna’s consortium claim because the record establishes

as a matter of law that Brenna knew or should have known of a possible

connection between Paul’s death and Baldi’s medical care more than two

years before this action was filed on February 14, 2014.
 19

2. Brenna’s affidavit does not engender a material fact issue. The

excerpts from Brenna’s testimony in the criminal case against Dr. Baldi

are not the only evidence in the summary judgment record addressing

the factual question of when Brenna knew or should have known the

causal connection between Baldi’s care and Paul’s death. In resisting

Baldi’s motion for summary judgment, Brenna filed an affidavit stating

that to the best of her “knowledge, recollection, understanding[,] and

belief,” she did not discover Baldi might have caused or contributed to

Paul’s death until less than two years before the petition was filed.

However, we conclude the affidavit does not engender a genuine issue of

material fact and does not preclude summary judgment because it

contradicts her earlier sworn testimony.

Summary judgment serves an important purpose:

Every trial court has on its docket some pleaded claims and
defenses which are actually without substance and exist
only on paper. To obviate the labor and expense of trial to
expose those empty vessels, summary judgment procedure
was conceived. By proper motion, a party can compel his
adversary to come forth with specific facts which constitute
competent evidence showing a prima facie claim or defense.
Paper cases and defenses can thus be weeded out to make
way for litigation which does have something to it.

Gruener v. City of Cedar Falls, 189 N.W.2d 577, 580 (Iowa 1971).

“Frequently the question on motions for summary judgment is whether

the showing in resistance to the motion is adequate.” Sherwood v.

Nissen, 179 N.W.2d 336, 338 (Iowa 1970). Here, the showing in

resistance to the motion was inadequate because it contradicted

Brenna’s earlier sworn testimony without any explanation for the

discrepancy.

Some courts apply a rule providing a party opposing summary

judgment may not manufacture a material fact issue simply by filing an
 20

affidavit that directly contradicts prior testimony. See Camfield Tires,

Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365–66 (8th Cir. 1983)

(setting forth the rule in the United States Court of Appeals for the

Eighth Circuit that an affidavit creating only “a sham issue of fact

instead of a genuine” one does not preclude summary judgment); see

also Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005) (declining to decide

whether Iowa should follow a similar rule because it was inapplicable to

the circumstances then before the court). Most courts refer to this rule

as the “sham affidavit” rule or doctrine, and although we have not

explored it in detail, “most states that have addressed the issue” and

most federal circuit courts of appeals apply some version of it. David F.

Johnson & Joseph P. Regan, The Competency of the Sham Affidavit as

Summary Judgment Proof in Texas, 40 St. Mary’s L.J. 205, 208–11 &

nn.11–14 (2008).

“The rule is . . . rooted in the very mission of the summary

judgment procedure[.]” Yahnke v. Carson, 613 N.W.2d 102, 107 (Wis.

2000). It “calls for the rejection of the affidavit where the contradiction is

unexplained and unqualified by the affiant.” Shelcusky v. Garjulio, 797

A.2d 138, 144 (N.J. 2002). An unpublished court of appeals decision

addressing a substantive inconsistency between a party’s deposition

testimony and his affidavit supporting a resistance to a motion for

summary judgment succinctly demonstrates the rule’s application:

In his affidavit attached to Anita Dairy’s resistance to the
motion for summary judgment, Mr. Kragelund asserted that
Anita Dairy relied “exclusively on [Midwest Dairy] to provide
an upgraded milking system.” We conclude the affidavit is
insufficient, when taken together with the other information
before the district court, to prevent summary judgment. A
party resisting summary judgment “cannot create sham
issues of fact in an effort to defeat summary judgment.”
Mr. Kragelund’s affidavit is inconsistent with the substance
of his deposition testimony . . . . In particular, the
 21
depositions clearly establish that the Kragelunds did not
exclusively rely on Peterson and Midwest Dairy . . . either to
remove the old stalls and install the new ones or to perform
the electrical work on the project. Accordingly, we conclude
Mr. Kragelund’s affidavit did not suffice to engender a
genuine issue of fact.

Anita Dairy, L.C. v. Kooiman, No. 03–0966, 2005 WL 67126, at *3 (Iowa

Ct. App. Jan. 13, 2005) (quoting Am. Airlines, Inc. v. KLM Royal Dutch

Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997)). We reach a similar

conclusion today as we determine Brenna’s affidavit was insufficient to

engender a fact question on the issue of whether she knew or should

have known of a causal connection between Baldi’s medical care and

Paul’s death more than two years prior to filing this action. However, in

doing so, we emphasize several important caveats.

First, the rule we adopt today is not limited to affidavits

characterized by fraud or malfeasance. Thus, we prefer the moniker

“contradictory affidavit rule” rather than “sham affidavit rule.” Second,

the contradictory affidavit rule “is subject to . . . important exceptions”

that render the rule inapplicable if the affiant offers a reasonable

explanation for any apparent contradiction between their affidavit and

other sworn testimony. Yahnke, 613 N.W.2d at 108. A reasonable

explanation might be, for example, that an affidavit clarifies ambiguous

or confusing earlier testimony or reacts to newly discovered evidence.

Id.; see also Shelcusky, 797 A.2d at 150 (concluding an affidavit offered

to resist summary judgment engendered a material fact issue because it

merely “sought to clarify [the plaintiff’s] previous representations”). Third

(and relatedly), to invoke the rule, “the inconsistency between a party’s

deposition testimony and subsequent affidavit must be clear and

unambiguous.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th

Cir. 2009); cf. Lales v. Wholesale Motors Co., 328 P.3d 341, 360 (Haw.
 22

2014) (concluding the contradictory affidavit rule was not applicable

“because [the] declaration was not clearly and unambiguously

inconsistent with [the] prior deposition”).

We conclude Brenna’s affidavit clearly and unambiguously

contradicts her earlier sworn testimony in the criminal case against Dr.

Baldi. Although Brenna did not expressly testify in the criminal case

that she knew or should have known of the causal connection between

Baldi’s care and Paul’s death more than two years prior to filing this

action, the conflict between her sworn (deposition and trial) testimony in

the criminal case and her subsequent affidavit in this civil case is

inescapable. Before Paul’s death, Brenna concluded Paul was struggling

with the dosages Baldi prescribed, requested (unsuccessfully) that Baldi

prescribe different or fewer medications, and became frustrated when, in

her view, Baldi didn’t do enough to treat Paul’s obvious addictions. By at

least January 30, 2012, Brenna knew the state was investigating Dr.

Baldi’s medical care of Paul and other patients. Her affidavit stating she

did not know or have reason to know of a possible causal connection

between Baldi’s medical care and Paul’s death until at least a month

later provides no clarification or explanation as to why her earlier

testimony in the criminal case was ambiguous, mistaken, or incomplete.

Furthermore, “the more important the fact contradicted by the

affidavit is to the outcome of the litigation, the more likely a [trial] court

will be justified in refusing to consider the [conflicting] affidavit.”

McMaster v. Dewitt, 767 S.E.2d 451, 457 (S.C. Ct. App. 2014). In

McMaster, the court applied this principle when the key dispute in the

affidavit resisting summary judgment was about “a fact . . . pivotal to

whether the statute of limitations bars [the] claim.” Id. We apply the

principle here.
 23

Most courts applying the contradictory affidavit rule do so when

the plaintiff provides deposition testimony and a contradictory affidavit in

the same case. See, e.g., Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir.

2012); Hanover Ins. Co. v. Leeds, 674 N.E.2d 1091, 1094–95 (Mass. App.

Ct. 1997); Hanna v. Cloud 9, Inc., 889 P.2d 529, 533–34 (Wyo. 1995). We

conclude the rule can also apply when, as in this case, the previous

testimony was presented at trial in a different proceeding. See Cothran v.

Brown, 592 S.E.2d 629, 633 n.3 (S.C. 2004) (discussing the rule in a civil

wrongful-death action in which a party submitted an affidavit conflicting

with prior trial testimony). The rule can apply if the two proceedings

feature a common factual nucleus and the same person provides both

the earlier testimony and the later conflicting affidavit. See Doe v. Swift,

570 So. 2d 1209, 1213–14 (Ala. 1990) (applying the contradictory

affidavit rule when the plaintiff’s affidavit opposing summary judgment

contradicted her own testimony in a previous federal civil trial arising out

of the same facts); Luttgen v. Fischer, 107 P.3d 1152, 1156 (Colo. App.

2005) (disregarding the plaintiff’s affidavit offered in opposition to a

motion for summary judgment in a legal malpractice case because it

contradicted her deposition in that case and her testimony in the trial

giving rise to the malpractice claim).

Applying the contradictory affidavit rule within the parameters we

have established, we disregard Brenna’s affidavit in support of her

resistance to Baldi’s motion for summary judgment on the estate’s

wrongful-death claim and Brenna’s consortium claim. The other

evidence in the summary judgment record tends to establish the estate’s

wrongful-death claim and the spousal consortium claim were untimely

as a matter of law. The district court did not err in granting summary

judgment as to those claims under the circumstances presented here.
 24

We add a few final observations. First, our decision today does not

undercut or call into question the maxim that “negligence cases do not

ordinarily lend themselves to summary adjudication.” Virden v. Betts &

Beer Constr. Co., 656 N.W.2d 805, 807 (Iowa 2003). This summary

adjudication rests not on the ultimate question whether Baldi was

negligent, but on the threshold question whether Gray timely filed a

petition. See Daboll v. Hoden, 222 N.W.2d 727, 733–34 (Iowa 1974)

(acknowledging it is “rare” that summary judgment is proper in a

negligence case, but concluding summary judgment on a limitations

ground does not address the question of negligence). Second, our

resolution of the issues on appeal makes it unnecessary for us to address

Gray’s constitutional arguments. Finally, O.D.G.’s parental consortium

claim may proceed even though the wrongful-death and spousal

consortium claims may not. See Christy, 692 N.W.2d at 706

(acknowledging a child’s claim can be “prosecuted independently if the

wrongful death claim is already barred under paragraph (a) of section

614.1(9)”).

V. Conclusion.

The district court erred in granting summary judgment on O.D.G.’s

parental consortium claim because O.D.G. was a minor at the time the

action was filed and because she was under the age of eight at the time

of the occurrence for which she is seeking to recover. Iowa Code

§ 614.1(9)(b). We reverse that part of the district court’s summary

judgment ruling. The district court did not err, however, in granting

summary judgment on the estate’s wrongful-death claim and Brenna’s

spousal consortium claim. We do not revisit today whether the discovery

rule applies after Rathje to wrongful-death claims arising from negligent

medical care because even if the rule were to be applied, the estate’s
 25

wrongful-death claim and Brenna’s spousal consortium claim were

untimely as a matter of law under the circumstances presented here. We

therefore affirm in part, reverse in part, and remand for further

proceedings on the parental consortium claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Appel, J., who takes no part.