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IN THE COURT OF APPEALS OF IOWA No. 2-388 / 11-0991 Filed June 27, 2012

TERI LEE NIE and ALLAN JOSEPH NIE, Plaintiffs, vs. SARTORI MEMORIAL HOSPITAL, INC., COVENANT MEDICAL CENTER, INC., WHEATON FRANCISCAN HEALTHCARE-IOWA, INC., JOHN MATTHEW GLASCOCK, M.D., and MIDWEST INSTITUTE OF ADVANCED LAPAROSCOPIC SURGERY, Defendants-Appellees, JUDITH O'DONOHOE, Appellant. ________________________________________________________________ Certiorari to the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

An attorney challenges a district court order imposing sanctions against her for violating Iowa Rule of Civil Procedure 1.413(1). WRIT ANNULLED.

Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, L.L.P., Charles City, pro se. George Weilein of Gallagher, Langlas & Gallagher, P.C., Waterloo, for appellees.

Heard by Vogel, P.J., and Vaitheswaran and Doyle, JJ.

2 DOYLE, J. Judith O'Donohoe filed a notice of appeal from a district court order imposing sanctions against her for violating Iowa Rule of Civil Procedure 1.413(1) by requesting sanctions against opposing counsel. We treat

O'Donohoe's challenge to the sanctions as a petition for writ of certiorari, grant the writ, and finding no merit to the challenge, annul the writ. I. Background Facts and Prior Proceedings. In late May 2010, Teri Nie contacted Judith O'Donohoe's office regarding a potential medical malpractice claim concerning a gastric bypass surgery performed by Dr. John Glascock. After reviewing some of the available medical records, O'Donohoe filed a medical negligence petition on behalf of Teri and her husband, Allan, on the last day before the statute of limitations ran on the claim -- June 2, 2010. The last defendant was served on June 18. The defendants promptly filed an answer on June 21, generally denying the allegations and raising several affirmative defenses. On the same date, they served the plaintiffs with several sets of interrogatories, as well as requests for production of documents and requests for admissions. The plaintiffs responded to the requests for admissions on July 20. They admitted to having filed the case without first consulting an expert witness. And in response to requests regarding whether a "qualified medical expert has provided the opinion to Plaintiffs . . . that [the defendants] breached the standard of care," the plaintiffs stated they were "unable to answer this request as they are still awaiting input from medical expert and the medical expert will not be able to give a definitive opinion until depositions have been taken in the case." The

3 remaining discovery went unanswered. On August 31, counsel for the

defendants sent O'Donohoe a letter asking that she provide responses to the discovery requests by September 16. On September 3, the defendants filed a motion for summary judgment, arguing that because "Plaintiffs have no experts, Plaintiffs cannot, as a matter of law, establish a prima facie case. . . . Therefore, Defendants are entitled to summary judgment." The plaintiffs filed their amended responses to the requests for admissions on September 17, stating they "have now received an o pinion from a medical expert that the treatment provided to Teri Nie during the gastric bypass surgery fell below the standard of care." They did not, however, name or provide any further information about that expert. The plaintiffs requested additional time to resist the summary judgment motion. The defendants resisted. On

September 23, the plaintiffs served their response to the defendants' resistance as follows: At the time of filing the Petition, the Plaintiffs had some but not all of their medical records. The undersigned had to thereafter obtain the remaining medical records in order to present them to a possible expert for review. . . . The records, which totaled over 400 pages, were received and sent to the Plaintiff's expert on or about July 15, 2010. . . . It was not until the first part of September, 2010 that the undersigned received a verbal opinion from the expert that he believed malpractice may have occurred during the treatment provided by the Defendants. . . . Plaintiffs need additional time to resist the motion for summary judgment in order to obtain a written opinion from their expert so that they may produce it as part of the resistance.

4 After reviewing these filings, the district court entered an order granting the plaintiffs' request for additional time given the early stages of the litigation.1 On September 17, due to the plaintiffs' failure to respond to the interrogatories and requests for production of documents, the defendants filed a motion to dismiss, or in the alternative, a motion to compel discovery from plaintiffs. A hearing on the motion was held on October 20, following which the district court entered an order denying the dismissal request, granting the motion to compel, and ordering the plaintiffs to respond to all outstanding discovery within twenty days. After that hearing, O'Donohoe advised the defendants' attorney that she "had an expert report coming." The defendants' attorney informed her that upon receipt of the report, he would most likely withdraw the summary judgment motion. O'Donohoe provided the expert's report to the defendants' attorney,

along with responses to the defendants' discovery requests, on November 8. The expert's report was dated September 20. Three days after responding to the defendants' discovery requests, the plaintiffs served a resistance to the summary judgment motion that included a request for sanctions under Iowa Rule of Civil Procedure 1.413(1) and Iowa Code section 619.19 (2009). The plaintiffs argued the defendants' September 3 summary judgment motion was "not well grounded in law or fact." Asserting they were not required to disclose expert witnesses until December 2010 under Iowa Code section 668.11, the plaintiffs contended their failure to answer an expert

1

A trial scheduling order entered around the same time set the trial for July 17,

2012.

5 interrogatory by September 3, 2010, did not provide a foundation for granting summary judgment. Further, the plaintiffs argued the trial scheduling order set a May 2012 discovery deadline and they had until thirty days before the July trial date to supplement an expert witness interrogatory.2 The defendants filed a reply to the plaintiffs' resistance, asserting: When Plaintiffs ultimately filed their Resistance to Defendants' Motion for Summary Judgment on November 15, 2010, all of it was based upon information which Plaintiffs were for the first time producing more than two months after the filing of Defendants' Motion for Summary Judgment. Moreover, all of Plaintiffs' Resistance, with the possible exception of the Interrogatory answer by their retained expert, was based on information that Plaintiffs possessed but had not produced to Defendants before Defendants filed their Motion for Summary Judgment on September 3, 2010. . . Yet, despite all of these arrearages, failures, and clandestine actions by Plaintiffs, which necessitated the filing of Defendants' Motion for Summary Judgment and Defendants' Motion to Dismiss/ First Motion to Compel, Plaintiffs' lawyer now has the audacity to request sanctions against Defendants. That Request is patently frivolous; and is itself sanctionable. The district court agreed. Following a hearing on the summary judgment motion and requests for sanctions, the court found as follows: This Motion for Summary Judgment would have been dismissed by the defendants had not the plaintiffs' counsel sought sanctions. Plaintiffs' counsel's request for sanctions is truly frivolous based on the progress of this case and information that she had both before and after the filing for Motion for Summary Judgment, which she refused to disclose until some two-plus months after the filing of the Motion for Summary Judgment. But for the unprofessional conduct of plaintiffs' counsel which caused the matter of this Motion for Summary Judgment to drag on, the Motion for Summary Judgment would have been
The trial scheduling order provided that all discovery be completed by May 1, 2012. It says nothing about supplementing discovery thirty days before trial. The order also required the plaintiffs to disclose expert witnesses at least 210 days before trial (December 20, 2011), unless an earlier designation was required by statute. See e.g., Iowa Code

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