from the Iowa District Court for Fayette County, John C.
dentist appeals post-trial rulings following a jury verdict
for his patient in a malpractice action. REVERSED AND
F. Ochs and Raymond R. Stefani II of Gray, Stefani &
Mitvalsky, P.L.C., Cedar Rapids, for appellants.
Jeffrey R. Tronvold of Eells & Tronvold Law Offices,
P.L.C., Cedar Rapids, for appellee.
by Tabor, P.J., and Mullins and May, JJ.
Franzen brought a malpractice suit against Dr. Alan Kruger
and his practice, West Union Dental Associates. A jury found
Dr. Kruger breached the standard of care while extracting
Franzen's tooth, causing Franzen to aspirate a surgical
bur and eventually lose part of his lung. The damage award
totaled $400, 000. Dr. Kruger challenges rulings on several
appeal, we focus on the admission of hearsay evidence during
the testimony of Franzen's expert witness. Because the
district court did not require Franzen to lay a proper
foundation for offering survey responses used to bolster his
expert's standard-of-care opinion, we reverse and remand
for a new trial.
Facts and Prior Proceedings
raises cattle and corn on his family's farm in Fayette
County. In 2014, Franzen experienced pain from an abscessed
tooth. Because his previous dentist had retired and West
Union was close to his farm, Franzen called Dr. Kruger's
office for an appointment.
taking x-rays, Dr. Kruger discovered Franzen had a cracked
molar.The dentist believed the best option was
extraction. Because the molar sat close to Franzen's
sinuses, the dentist used a resection method. That method
required Dr. Kruger to chop the tooth into three parts for
removal by operating a drill-like handpiece. Before starting
the resection, the dentist inserted a surgical bur into the
handpiece. The bur-like a drill bit-spins to function as a
rotary cutting instrument. During the third step of the
resection, Franzen felt something hit the back of his throat.
He started to cough and gag. Dr. Kruger stopped the handpiece
and looked for the bur. He couldn't find it.
finishing the tooth extraction, Dr. Kruger recommended
Franzen have his lungs checked in case the missing surgical
bur had lodged there. Two x-rays and a CT scan later, doctors
confirmed a two-and-one-half centimeter metallic foreign
object had drifted deep into the right lower lobe of
surgeon advised Franzen of the risks of leaving the bur in
his lung. Those risks included progressing disease, recurrent
infections, pneumonia, and lung collapse. Franzen decided to
have the surgery after harvest season. Surgeons removed the
right lower lobe of his lung. As it turned out, the bur was
not in that lobe. But surgeons used a bronchoscope to remove
the bur from its migrated location further inside the lung.
recovered from the surgery in about a month. But he testified
his work as a farmer is now harder. For example, he
"runs out of wind" when trying to catch calves to
vaccinate them. He has to slow down and take more breaks to
catch his breath when doing chores or hunting. And he cannot
hold a note as long when singing in his church choir. His
lung capacity measured on "the low side of normal."
2016, Franzen sued Dr. Kruger and West Union Dental
Associates for malpractice. After a six-day trial, a jury
found Dr. Kruger was negligent and his negligence harmed
Franzen. The jury awarded $400, 000 in damages, including
$320, 000 in future damages.
the jury returned this verdict, Dr. Kruger moved for a new
trial and for judgment notwithstanding the verdict (JNOV). He
also argued the verdict was excessive and asked for a new
trial conditioned on Franzen accepting a remittitur of the
amount of future damages. The district court denied those
post-verdict motions. Dr. Kruger now appeals.
appeal he raises four issues:
(1) The district court should have granted a new trial based
on the improper testimony of Franzen's expert, dentist
Cheri Lewis, on the standard of care. Dr. Kruger complains
that Dr. Lewis relied on impermissible hearsay when she
testified she conducted a survey of oral-surgery program
directors about the use of "bite blocks" and gauze
"throat packs" to protect patients during
(2) The district court should have granted a new trial
because the damages were excessive and without support in the
(3) The district court should have granted JNOV because Dr.
Lewis did not properly define the standard of care or show
that Dr. Kruger breached the standard.
(4) The district court abused its discretion in denying Dr.
Kruger's alternative motion for a conditional new trial.
we find the first issue dispositive, we need not address his
Scope and ...