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Jon Faris and Rebecca Faris, Individually and As Next Friend To Nathan Faris v. City of Iowa Falls

March 13, 2013

JON FARIS AND REBECCA FARIS, INDIVIDUALLY AND AS NEXT FRIEND TO NATHAN FARIS, PLAINTIFFS-APPELLANTS,
v.
CITY OF IOWA FALLS, DEFENDANT-APPELLEE.
FARM BUREAU MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
SHERRI BALL, DEFENDANT.



Appeal from the Iowa District Court for Hardin County, Timothy J. Finn (sanction order), and Dale E. Ruigh (summary judgment), Judges.

The opinion of the court was delivered by: Tabor, J.

Jon and Rebecca Faris challenge the district court order excluding expert witness testimony on their behalf as a sanction for alleged discovery violations. REVERSED AND REMANDED.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

Jon and Rebecca Faris sued the City of Iowa Falls on behalf of their minor son, Nathan, who was profoundly injured as a result of being struck by a minivan while walking along a city street. The suit alleged the city was negligent in constructing and maintaining the street. The city repeatedly moved to compel discovery over the course of the three-and-one-half year litigation. In response to the city's motion for sanctions, the district court barred the plaintiffs from calling expert witnesses. Without expert testimony, the plaintiffs' case could not withstand the city's motion for summary judgment.

On appeal, the plaintiffs allege the court abused its discretion by excluding their expert witness testimony. Because the plaintiffs complied with the court's April 11, 2011 order by producing discovery responses for their designated expert witness, civil engineer Joseph Filippino, we find the sanction excluding that witness to be unreasonable. Accordingly, we reverse and remand for further proceedings.

I. Background Facts and Proceedings

At 6:20 p.m. on September 14, 2007, twelve-year-old Nathan Faris was walking with a friend along the north side of Pierce Street between Oak and Elizabeth Streets in Iowa Falls. The boys were headed east. Sherri Ball struck Nathan with her mini-van as she drove west. Ball said the glare of the setting sun prevented her from seeing Nathan.

On September 14, 2009, Nathan's parents, Jon and Rebecca Faris (the plaintiffs), filed an action against Ball, which they subsequently assigned to their underinsured motorist carrier as the real party in interest. They also filed an action against Iowa Falls, alleging the city was negligent in the design, construction, and maintenance of the roadway. The city filed a cross-petition against Ball, alleging she proximately caused the accident and Nathan's injuries. The court consolidated the claims against Ball and the city into one action.

On November 24, 2009, the city propounded interrogatories and requests for production of documents upon the plaintiffs. The city sought, among other things, to discover information about the plaintiffs' expert witnesses.

On January 20, 2010, the city's attorney sent the plaintiffs' attorney a letter stating that to move the case forward for trial the city needed the discovery responses, "particularly those related to [Nathan]'s injuries and your expert witnesses." The letter asked for the responses to be provided by January 29, 2010. On March 10, 2010, the city's attorney sent another letter to the plaintiffs' counsel regarding their failure to provide the requested discovery. The city's letter stated that if the plaintiffs failed to provide full and complete answers by March 18, 2010, the city would file a motion to compel discovery. The plaintiffs failed to provide the requested discovery.

On March 18, 2010, the city filed its motion to compel. The district court entered an order granting the motion on March 23, 2010. The court ordered the plaintiffs to file answers or good-faith objections to the discovery requests by April 15, 2010. The court also ordered the plaintiffs to pay costs and $150 in attorney fees as a sanction.

The plaintiffs served the city with discovery responses on April 15, 2010 deadline. In response to interrogatories and requests for production of documents regarding expert witnesses, the plaintiffs responded that they would decide their experts at a later date and supplement the answer with the requested information.

A June 24, 2010 scheduling order set trial for April 19, 2011. The plaintiffs were to certify their expert witnesses no later than 210 days before trial-which was September 21, 2010. The city then had until 150 days before trial, November 20, 2010, to certify its expert witnesses. The plaintiffs served their designation of expert witnesses on the September 21, 2010 deadline. They identified eleven expert witnesses, including Nathan's medical care providers, accident reconstruction experts, a civil/highway engineer, and vocational specialists.

On September 28, 2010, the city's attorney wrote to plaintiffs' counsel asking the plaintiffs to supplement their discovery responses. The letter noted the plaintiffs had not yet provided the city with any reports from expert witnesses. The letter requested the substance of the experts' expected testimony and production of the materials used in preparing their reports. The letter emphasized these materials were needed by October 15, 2010, so the city could determine its own experts by the November 20 deadline. The ...


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