Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.
The opinion of the court was delivered by: Danilson, J.
Dennis and Rosalee Hagenow appeal from a judgment entered in favor of the defendant, Betty Schmidt, in this personal injury action. REVERSED AND REMANDED.
Heard by Doyle, P.J., and Danilson and Mullins, JJ.
Dennis and Rosalee Hagenow appeal from a judgment entered in favor of the defendant, Betty Schmidt, in this personal injury action arising from a vehicle collision. The Hagenows contend the district court abused its discretion in failing to exclude Schmidt's treating physician's opinion testimony. They also argue the trial court included a jury instruction on sudden emergency that was not warranted by the evidence. We reverse and remand for a new trial because there was no basis to instruct the jury on the sudden medical emergency defense.
I. Background Facts and Proceedings.
On November 10, 2008, a vehicle driven by Betty Schmidt ran into the rear of Dennis Hagenow's vehicle as he was stopped at an intersection for a red light.
Dr. Ivo Bekavac examined Schmidt on November 11, 2008, one day after the collision. In his report to the referring physician, Dr. Daniel Miller, Dr. Bekavac reported that it was his impression that Ms. Schmidt had experienced an "[a]cute right occipital infarct, etiology is either large vessel intracranial ischemic disease versus embotic event." As a result of the infarct, or stroke, Schmidt does not see anything in what would normally be the left half of her visual field: this medical phenomenon is termed homonymous hemianopia. Bekavac stated in 2008, "It is not clear whether this event happened before or after the accident."
The Hagenows filed a personal injury action against Schmidt on November 1, 2010, alleging Schmidt was negligent in the operation of her vehicle and her negligence caused damage to the Hagenows. In her answer, Schmidt denied she was negligent and asserted she had experienced a sudden medical emergency providing legal excuse for the collision.
The district court entered a scheduling order requiring that all written discovery should be served no later than ninety days before the May 1, 2012 trial and all depositions completed no later than sixty days before trial. The scheduling order also imposed deadlines on expert designations requiring the plaintiffs to have their designations on file 210 days before the trial, and the defendant to have her designations on file 150 days before trial. Trial was set for May 22, 2012.*fn1
On February 14, 2011, the Hagenows served on Schmidt expert witness interrogatories and a request for production of documents. Schmidt served her answers to the discovery requests on April 6, stating she expected to call as an expert witness, her treating physician, Dr. Ivo Bekavac. Schmidt indicated there were no expert reports at that time, and the response would be supplemented if and when reports were obtained.
On February 1, 2012, Schmidt filed a motion for summary judgment, attached to which was an affidavit by Dr. Bekavac. The affidavit reads as follows:
I, Ivo Bekavac, M.D., Ph.D., being first duly sworn on oath do depose and state that I am a medical doctor licensed to practice medicine in the State of Iowa. I am a board certified neurologist who has practiced with Cedar Valley Medical Specialists, P.C. since August of 1998. A true and accurate copy of my Curriculum Vitae is attached hereto and marked Exhibit A.
I was the neurologist who treated Betty L. Schmidt following a November 10, 2008 automobile accident she was involved in at the intersection of Cedar Heights Drive and University Avenue in Cedar Falls, Iowa. According to the ambulance records, the accident was called in at 1:30 p.m., the ambulance arrived at the scene at 1:38 p.m., left the scene at 1:48 p.m. and arrived at Sartori Hospital Emergency Room at 1:54 p.m. Ms. Schmidt was admitted to the Sartori Hospital Emergency Room at 1:58 p.m. See ambulance records attached hereto and marked Exhibit B and the Sartori Hospital Emergency Room records attached hereto and marked Exhibit C.
According to the emergency room records, as Ms. Schmidt was lying on a cart in the emergency room at 3:07 p.m., she reported having lost the left half of her vision out of both eyes. She had a CT-scan of her head, without contrast, at 3:15 p.m. at which time she reported feeling dizzy. At 4:10 p.m. she reported having a "hum dinger of a headache" to nurses. An MRI of her head, without contrast, was performed at 4:44 p.m. See Sartori Emergency Room records attached hereto and marked Exhibit C. The radiologist interpreting the CT-scan and MRI was somewhat equivocal as to whether or not Ms. Schmidt had suffered a stroke. I later personally interpreted both the CT-scan and the MRI and it is my professional medical opinion, made to a reasonable degree of medical certainty, that from reviewing the MRI and CT-scan, that Ms. Schmidt had suffered an acute right occipital ischemic infarct. An ischemic infarct is the type of stroke where blood does not get to an area of the brain. The occipital region of the brain has a lot to with one's vision. A stroke in this area would explain the loss of vision complained of by Ms. Schmidt.
The loss of vision suffered by Ms. Schmidt from the middle of her eye to the left was diagnosed by ophthalmologist, Dr. Daniel
M. Miller, M.D. the following day as left homonymous hemianopia. This refers to an absence of vision on one side of the visual world in each eye. This is a problem caused by the brain and not the eye. See Dr. Miller's records dated 11/11/08 attached hereto and marked Exhibit D. This is a condition most commonly caused by infarct (stroke) in the occipital region of one's brain. It is ...