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V.P. v. Calderwood

Court of Appeals of Iowa

October 11, 2017

V.P., a minor, by DHIREN PATEL and SHITAL PATEL, his parents and next friends, Plaintiff-Appellant,
v.
DR. GREGG CALDERWOOD and GREAT RIVER WOMEN'S HEALTH CORPORATION, Defendants-Appellees.

         Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.

         A minor by his parents and next friends appeals the district court's rulings regarding rebuttal evidence and refusal to grant a new trial.

          Steven J. Crowley and Edward Prill of Crowley, Bünger & Prill, Burlington, for appellant.

          Christine L. Conover and Carrie L. Thompson of Simmons Perrine Moyer Bergman, P.L.C., Cedar Rapids, for appellees.

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

          BOWER, Judge.

         A minor (V.P.) by his parents and next friends appeals the district court's rulings regarding rebuttal evidence and refusal to grant a new trial. We find the district court did not abuse its discretion by refusing to allow rebuttal evidence. We also find the plaintiff did not preserve error on his motion for new trial. We affirm the district court.

         I. Background Facts and Proceedings

         V.P was born on March 2010 after a four and a half hour second stage labor. V.P. was barely alive and required intensive resuscitation efforts. He was quickly transferred to the University of Iowa Hospitals and Clinics. V.P. was oxygen deprived and had some level of acidosis.[1] V.P. now suffers from severe and permanent brain damage and cerebral palsy.

         The plaintiff filed suit against Dr. Gregg W. Calderwood, Great River Women's Health (Great River), and Great River Medical Center, though Great River Medical Center was subsequently dismissed form the case. The plaintiff claims Dr. Calderwood and Great River failed to properly diagnose oxygen deprivation during labor, and, as a result, failed to perform a cesarean section before V.P.'s injuries became severe and permanent.

         Trial began on March 1, 2016, and lasted thirteen days. During the trial, both sides presented a number of witnesses, including medical experts. Much of the testimony focused on a fetal heart rate tracing generated by a Phillips Model 500X Fetal Heart Monitor. The plaintiff attempted to introduce an expert to provide rebuttal testimony, but the district court found the testimony was

not proper rebuttal . . . because a significant part of the evidence is cumulative . . . some of the proffered testimony is an effort to introduce Exhibit 145 . . . when the plaintiff was unable to do so during the case in chief . . . [and] the testimony of [the expert] injects one or more new issues or sub-issues into this trial.

         The jury found Dr. Calderwood was not negligent. The plaintiff moved for a new trial based on Dr. Calderwood's statements during his testimony that the trial was "pretty much torture" and if he felt he was at fault he would have told his malpractice insurer "just pay and let me get on with my life." The motion was denied.

         The plaintiff now appeals claiming the district court erred by excluding rebuttal evidence and by failing to grant a new trial.

         II. Standard of Review

         Trial courts are given broad discretion to admit rebuttal evidence, and the court's decision will only be disturbed if a clear abuse of discretion is shown. Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). "An abuse of discretion is shown only where such discretion was exercised by the court on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id. A trial court's hearsay ruling is reviewed for correction of errors at law. State v. Huser, 894 N.W.2d 472, 495 (Iowa 2017).

         III. Rebuttal Evidence

         The plaintiff claims the district court erred by excluding the evidence offered as rebuttal. The district court found the offered evidence was in part cumulative, an attempt to introduce evidence the plaintiff had been unable to enter during the case in chief, and to add new issues to the trial. "Rebuttal evidence is that which explains, repels, controverts, or disproves evidence produced by the opposing party." Carolan, 553 N.W.2d at 889. "Evidence that has no direct tendency to do this is inadmissible on rebuttal." Id.

         The plaintiff attempted to introduce the expert testimony of Dr. Barry Schifrin, concerning: (1) the tracings clearly showed a confusion of maternal and fetal heart rate by mid-morning; (2) the fetal heart monitor frequently confused the heart rate of the fetus and the mother; (3) the strip could not have been tracing V.P.'s heart rate near the time of birth, as V.P. was born severely stressed and compromised and the tracing did not indicate this; (4) the tracings of the heart rate the machine produces cannot be relied on to differentiate the maternal and fetal heart rate without some other indicia; (5) Dr. Schifrin consulting on the technical aspects of the machine and the development of the technology to monitor fetal heart rate; (6) echocardiograms are more accurate to monitor the mother's heart rate than pulse oximeters; and (7) exhibit 145 was the proper manual for the fetal heart monitor used by Dr. Calderwood and the manual contained information regarding the proper standard of care, including using a separate heart monitor to warn of confusion between the fetal and maternal heart rate.

         a. ...


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