IN THE COURT OF APPEALS OF IOWA
No. 22-0850
Filed July 13, 2023
ALLAN KAMMEYER,
Plaintiff-Appellant,
vs.
CEDAR VALLEY PODIATRY, P.C. d/b/a CEDAR VALLEY PODIATRY FOOT &
ANKLE CENTER and NICHOLAS SCHMERBACH, D.P.M.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
A plaintiff appeals following a defense verdict in his medical negligence suit.
AFFIRMED.
James H. Cook of Dutton, Daniels, Hines, Kalkhoff, Cook & Swanson,
P.L.C., Waterloo, for appellant.
Martha L. Shaff and Amanda M. Richards of Betty, Neuman & McMahon,
P.L.C., Davenport, and Robert L. Goldstucker of Nall & Miller, L.L.P., Atlanta,
Georgia, for appellees.
Considered by Bower, C.J., and Badding and Buller, JJ.
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BADDING, Judge.
After suffering from foot pain for thirty years, Allan Kammeyer sought
treatment at Cedar Valley Podiatry in July 2018, where he saw podiatrist
Dr. Nicholas Schmerbach. Dr. Schmerbach diagnosed Kammeyer with chronic
plantar fasciitis and used conservative care to treat his symptoms before
recommending surgery in November. Unhappy with the results of the surgery,
Kammeyer sued Dr. Schmerbach and his employer, alleging that they were
“negligent by failing to exhaust conservative care prior to surgery.” The jury
returned a verdict for the defense.
Kammeyer appeals, claiming the court erred in (1) allowing expert testimony
on the standard of care by Dr. Schmerbach absent expert certification and
disclosure under Iowa Code section 668.11 (2020) and Iowa Rule of Civil
Procedure 1.500(2); and (2) instructing the jury on alternative medical treatments
when those were not at issue.
I. Expert Testimony
At the end of direct examination by defense counsel, Dr. Schmerbach was
asked: “And in your view, did you treat this patient appropriately consistent with
the standard of care in all respects?” Kammeyer’s attorney objected, arguing that
Dr. Schmerbach was not “designated to render a standard-of-care opinion.” The
district court overruled the objection, and Dr. Schmerbach answered yes.
We review decisions to admit expert testimony for an abuse of discretion.
See Ranes v. Adams Lab’ys, Inc., 778 N.W.2d 677, 685 (Iowa 2010). Though
Kammeyer correctly recites that standard of review, he does not specify how the
court abused its discretion in allowing the challenged testimony. Instead,
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Kammeyer makes the limited claim that Dr. Schmerbach’s testimony on the
standard of care, “in the absence of required expert disclosures by [the
defendants,] was prejudicial error.”
We first observe, as the defense points out on appeal, that our supreme
court has stated it “do[es] not read the proscription of Iowa Code section 668.11 to
extend to testimony elicited from defendant parties who are also experts.” Oswald
v. LeGrand, 453 N.W.2d 634, 640 (Iowa 1990); accord Hill v. McCartney, 590
N.W.2d 52, 57 (Iowa Ct. App. 1998) (“The proscription of Iowa Code section
668.11 does not extend to testimony elicited from defendant parties who are also
experts.”). Kammeyer cites no contrary authority. Nor does he dispute that
Dr. Schmerbach meets the standards for an expert witness. Cf. Iowa Code
§ 147.139; Iowa R. Evid. 5.702.
Furthermore, reversal is required only if Kammeyer’s substantial rights were
affected. See McGrew v. Otoadese, 969 N.W.2d 311, 325 (Iowa 2022).
Kammeyer argues he was prejudiced by “the lack of opportunity for [his] counsel
to conduct discovery of Dr. Schmerbach’s standard of care opinions and prepare
his case accordingly.” The record affirmatively establishes otherwise. See
McGrew, 969 N.W.2d at 325 (“We presume prejudice and reverse unless the
record affirmatively establishes otherwise.”).
While the defense did not identify Dr. Schmerbach as an expert witness in
their section 668.11 disclosure, they reserved the right to call “any treating health
care professionals and experts designated by any party.” Kammeyer did the same
in his expert witness designation: “Plaintiff reserves the right to call any health care
providers listed in the medical records for purposes of having them testify as to
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opinions formulated on any issue of this case based upon that person’s personal
knowledge, education, experience, and review of the records or other pertinent
documents.” And according to a notice filed in July 2021, Kammeyer also deposed
Dr. Schmerbach before trial.1
Against this backdrop, it cannot be said that Dr. Schmerbach answering
“yes” to whether his treatment was consistent with the standard of care surprised
Kammeyer at trial. That passive testimonial opinion “was brief and paled in
significance compared to the balance of the record,” which included extensive
testimony from other experts on the standard of care. State v. Wise, 697 N.W.2d
489, 492 (Iowa Ct. App. 2005) (finding no prejudice on ineffective-assistance claim
of evidentiary error where testimony was brief and insignificant); cf. Est. of
Anderson v. Prasad, No. 22-0479, 2023 WL 3092578, at *9 (Iowa Ct. App. Apr. 26,
2023) (finding no prejudice in admission of defendant physician’s testimony that
he performed the surgery “appropriately” where defense expert “had already given
the same testimony without objection”). This lack of prejudice also defeats
Kammeyer’s claim that the testimony was received despite the lack of disclosure
under Iowa Rule of Civil Procedure 1.500(2). See McGrew, 969 N.W.2d at 325
1 The parties included Dr. Schmerbach’s deposition and the defense’s initial
disclosures in the appendix and referred to both in their appellate briefs. It does
not appear either was part of the record made before the district court. Because
our review is confined to that record, we have not considered these materials. See
Iowa Rs. App. P. 6.801 (“Only the original documents and exhibits filed in the
district court case from which the appeal is taken, the transcript of proceedings, if
any, and a certified copy of the related docket and court calendar entries prepared
by the clerk of the district court constitute the record on appeal.”), 6.905(1)(b)
(restricting contents of appendix to “parts of the district court record”); In re
Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“We are limited to
the record before us and any matters outside the record on appeal are
disregarded.”).
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(applying harmless-error analysis to expert-disclosure requirements under rule
1.500(2)). We accordingly affirm on this issue.
II. Jury Instruction
At trial, Kammeyer’s theory of the case was that Dr. Schmerbach did not
exhaust conservative, non-operational treatments before proceeding to surgery.2
Kammeyer’s expert, Dr. Steven Sharlin, testified that Dr. Schmerbach’s care “was
insufficient in the amount of nonoperative treatments that could have been
provided” before surgery. In Dr. Sharlin’s opinion, “the standard of care for treating
someone with plantar fasciitis or plantar fasciosis would require exhausting all
forms of nonoperative care for a period of six months.” Dr. Sharlin agreed
Dr. Schmerbach did use some conservative care with Kammeyer, but he testified
that Dr. Schmerbach should have done serial steroid injections, used custom
orthotics, and kept Kammeyer on the controlled-ankle-movement walker longer.
On cross-examination, however, Dr. Sharlin agreed that podiatrists can provide
varying and differing methods of treatment.
Consistent with that concession by Dr. Sharlin, defense expert
Dr. Allan Jacobs testified the standard of care when it comes to conservative care
depends on the particular patient—“you have to look at each individual patient and
see what you’re dealing with” and “for any given problem,” there are “multiple ways
you can treat it that are acceptable.” In assessing a care plan for a patient, Dr.
Jacobs testified a podiatrist has to look at the duration and severity of their
2As Kammeyer’s counsel agreed in response to the defense’s motion for directed
verdict, Kammeyer did not present expert testimony on whether Dr. Schmerbach
was negligent in performing the surgery.
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symptoms, as well as the success of prior efforts to alleviate those symptoms: “If
someone has been doing things and they haven’t worked, then I’m not going to
repeat it. I mean, there’s no point and we know it doesn’t work.” Kammeyer had
thirty years of trying a number of conservative treatments before going to see
Dr. Schmerbach. Dr. Jacobs also noted that Kammeyer suffered from a very tight
calf muscle, which was a cause of his issues and put him in the category of people
for whom conservative care normally isn’t successful. Based on Kammeyer’s
overall circumstances, Dr. Jacobs opined “this guy’s not gonna do well with
conservative care. He’s gonna end up either having to live with this or have
surgery. There’s just not going to be any in between.”
As for the specifics of the care that Dr. Schmerbach provided to Kammeyer,
Dr. Jacobs testified that, like Dr. Schmerbach, he would not have given Kammeyer
serial steroid injections as recommended by Dr. Sharlin. Dr. Jacobs noted that
Kammeyer had injections before that were painful and provided only temporary
relief. He also had risk factors for adverse effects from the injections. With the
custom orthotics, Dr. Jacobs noted Kammeyer’s physical therapist tried that but,
because his foot was in such bad shape, it could not be molded. In any event,
Dr. Jacobs testified patients can achieve the same result from over-the-counter
orthotics as they can from custom orthotics. Kammeyer used the former for many
years with no relief. In the end, Dr. Jacobs testified that he would not have done
anything differently for Kammeyer:
I don’t know what else you could do. I mean, he’s doing
everything that you could possibly do for this. He’s icing it, he’s
stretching it, he’s got a night splint. He’s going to physical therapy,
they’re stretching it . . . . He’s got orthotics, he’s got premade
orthotics, he’s got shoe changes. I mean, really, he’s had injections,
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he’s had pills, and he’s been hurting for 20 to 30 years. I don’t know
exactly what else there would be to do . . . .
With this expert testimony having come in, the defense requested an
“alternate method of treatment instruction,” arguing the evidence showed “there
were two alternative treatment routes that could have been done that would have
constituted reasonable care.” Over Kammeyer’s objection, the court gave the
following instruction:
Podiatrists may disagree in good faith upon what would be the
proper treatment or diagnosis of a medical condition in a given
situation. It is for the podiatrist to use his professional judgment to
select which recognized method of treatment to use in a given
situation. If you determine that there were two or more recognized
alternative courses of action which have been recognized by the
medical profession as proper methods of treatment and
Dr. Schmerbach, in the exercise of his best judgment, if in
compliance with the applicable standard of care, elected one of these
proper alternatives, then Dr. Schmerbach was not negligent.
Accord Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 823 (Iowa 1992);
see also Peters v. Vander Kooi, 494 N.W.2d 708, 713 (Iowa 1993) (setting out the
elements that must be shown by substantial evidence to give the instruction).
On appeal, Kammeyer claims the court erred in giving this instruction
because “alternative treatments were not at issue.” According to him, the only
issue was whether a singular treatment—conservative care—was adequately
performed before resorting to surgery. We find no prejudicial error in the court’s
submission of this instruction. See Eisenhauer ex rel. T.D. v. Henry Cnty. Health
Ctr., 935 N.W.2d 1, 9 (Iowa 2019).
Kammeyer likens this case to Peters, where there was a consensus among
the experts “that on all Pitocin-induced deliveries cesarean section availability is
essential.” 494 N.W.2d at 708. Because all the specifications of negligence
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concerned the doctor’s failure to arrange for the availability of a cesarean section,
there were not two acceptable courses of treatment for the doctor to choose from,
so inclusion of the instruction was error. Id. Here, however, substantial evidence
showed there were two acceptable routes for Dr. Schmerbach to take before
proceeding to surgery. See Vachon, 490 N.W.2d at 823 (defining treatment
broadly to cover “all the steps taken to effect a cure of an injury or disease”).
The specification of negligence identified in the instructions was that
Dr. Schmerbach “was negligent by failing to meet the standard of care by failing to
exhaust conservative, non-surgical medical treatment options prior to proceeding
with surgery.” While Dr. Sharlin testified the standard of care was six months of
conservative care, Dr. Jacobs disagreed. He testified that Dr. Schmerbach could
have continued with conservative care but, given Kammeyer’s history and lack of
relief from conservative care, proceeding to surgery was acceptable. And Dr.
Schmerbach testified that he considered both routes—continuing with
conservative care or proceeding to surgery—before discussing surgery with
Kammeyer. See Peters, 494 N.W.2d at 713.
The alternative-methods-of-treatment instruction
embodies the notion that differing doctors may disagree in good faith
upon what would encompass the proper treatment . . . of a medical
problem in a given situation. Medicine is not a field of absolutes.
There is not ordinarily only one correct route to be followed at any
given time.
Est. of Smith v. Lerner, 387 N.W.2d 576, 581 (Iowa 1986) (citation omitted).
Because substantial evidence showed there was more than one acceptable
method of treatment and “the alternatives were discussed, the benefits and
drawbacks weighed, and choices made based on . . . best professional judgment,”
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we find no error in giving this instruction to the jury. See Brooks v. State,
No. 16-0710, 2017 WL 2461504, at *5 (Iowa Ct. App. June 7, 2017).
AFFIRMED.