Not Thy Brother’s Keeper

The Iowa Supreme Court has remanded a medical malpractice case based on its conclusion that the lower court erred in imposing obligations on defense counsel

Are defense attorneys their “brother’s keeper,” obligated to remind opposing counsel of expert disclosure deadlines? This medical malpractice case requires us to revisit Iowa Code section 668.11 (2021), which in professional liability cases, prohibits the testimony of experts not timely certified unless good cause is shown for missing the deadline.

In this case, the plaintiff underwent hip joint replacement surgery and was injured in a fall while convalescing at the defendant hospital. He and his spouse sued the hospital, alleging professional negligence in his postoperative care. The plaintiffs identified a nursing expert in a certificate of merit affidavit and an interrogatory answer. But the plaintiffs, without explanation, did not certify their nursing expert under section 668.11 until the defendant moved for summary judgment three months after the agreed-upon deadline expired. The plaintiffs resisted, arguing that expert testimony was not required to avoid summary judgment and blaming defense counsel’s silence for missing the plaintiffs’ expert deadline. The district court found good cause excused the delay, relying on defense counsel’s silence about that deadline while scheduling other matters. The court did not decide whether expert testimony was required. We granted the hospital’s application for interlocutory appeal and transferred the case to the court of appeals, where a three-judge panel affirmed over a dissent. We granted the hospital’s application for further review.

On our review, we conclude that the district court abused its discretion in ruling that good cause excused the plaintiffs’ three-month delay in certifying their expert under section 668.11. Defense counsel is not their brother’s keeper. We hold that defense counsel has no duty to remind opposing counsel of the expert certification deadline, and an adversary’s silence cannot excuse missing the statutory deadline by three months. The defendant’s relative lack of prejudice  alone is insufficient to establish good cause. The plaintiffs’ expert is prohibited from testifying. For the reasons explained below, we vacate the court of appeals decision and reverse the district court ruling. We remand the case for the district court to determine in the first instance whether these plaintiffs’ claims require expert testimony to avoid summary judgment.

Mansfield, Justice (dissenting).

I respectfully dissent and would affirm the district court’s well-reasoned order. In my view, the district court acted within its “broad discretion,” Kirlin v. Monaster, 19 N.W.3d 108, 113 (Iowa 2025) (quoting Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989)), when it gave the plaintiffs additional time to file an Iowa Code section 668.11 (2021) designation for their expert. Notably, this was the same expert whom the plaintiffs had timely and appropriately disclosed in their section 147.140 certificate of merit affidavit and their Iowa Rule of Civil Procedure 1.508 expert interrogatory answers. As a sanction for failing to duplicate information that they had already provided, the majority reverses the court of appeals and the district court and dismisses the plaintiffs’ case. So much for disposing of cases on the merits. See Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993) (en banc) (“[O]ur objective is to dispose of cases on the merits.”)…

Christensen, C.J., and McDonald, J., join this dissent.

(Mike Frisch)