# Larry D. Eisenhauer v. The Henry County Health Center, James Widmer, and Family Medicine of Mt. Pleasant, P.C

> Supreme Court of Iowa · October 25, 2019

URL: https://www.frixlaw.com/law-library/cases/4450175

## Case

- **Court:** Supreme Court of Iowa
- **Decided:** October 25, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4450175

## How later opinions describe it (automated extraction)

- reasoning a district court’s discretion provided by the rules of criminal procedure is “much the same in civil cases”
- holding the district court did not abuse its discretion in granting jury’s request to view crime scene video without limitation

## Opinion text

IN THE SUPREME COURT OF IOWA
No. 17–1971

Filed October 25, 2019

LARRY D. EISENHAUER, Conservator, ex rel. CONSERVATORSHIP OF
T.D.,

Appellant,

vs.

THE HENRY COUNTY HEALTH CENTER, JAMES WIDMER, and
FAMILY MEDICINE OF MT. PLEASANT, P.C.,

Appellees.

Appeal from the Iowa District Court for Henry County, Mark Kruse,

Judge.

Plaintiff appeals district court’s entry of the jury verdict dismissing

a medical malpractice case. AFFIRMED.

Jeffrey L. Goodman, Nicole L. Keller, and Daniel Peacock (until

withdrawal) of Goodman Law, P.C., West Des Moines, and Michael J.
Moreland of Harrison, Moreland, Webber & Simplot, P.C., Ottumwa, for

appellant.

Jennifer E. Rinden, Robert D. Houghton, and Nancy J. Penner of

Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee Henry County

Health Center.
2

Robert V.P. Waterman Jr., Mikkie R. Schiltz, and Alexander C.

Barnett of Lane & Waterman, LLP, Davenport, for appellees James Widmer

and Family Medicine of Mt. Pleasant, P.C.
3

CHRISTENSEN, Justice.

This medical malpractice case concerns plaintiff’s suit against

defendants for negligent acts or omissions during plaintiff’s birth.

Defendants encountered the medical emergency of shoulder dystocia after

plaintiff’s shoulder became stuck on his mother’s pelvis. Defendants

performed maneuvers to resolve the stuck shoulder, but plaintiff was born

with a permanent injury to his left arm preventing normal use and

function. The jury returned a defense verdict and the district court

dismissed plaintiff’s claims. On direct appeal, we first consider whether

the district court committed reversible error in the specifications of

negligence it submitted to the jury. We also consider whether the district

court abused its discretion when it prohibited plaintiff from offering

evidence of defendants’ continuing medical education credits. Next, we

are asked to determine whether the district court properly admitted expert

opinion testimony. Lastly, we determine whether limiting the jury’s access

to evidence during deliberations was within the district court’s discretion.

For reasons expressed below, we conclude the plaintiff’s proffered

instructions were sufficiently encompassed by the instructions submitted

or, in the alternative, were not supported by substantial evidence. We

further conclude the district court did not abuse its discretion in

prohibiting the plaintiff from introducing continuing medical education

records to show a breach in the standard of care. However, although it

was an abuse of discretion for the district court to prohibit the use of

continuing medical education records as impeachment evidence, the error

was harmless. Next, we determine defendants’ expert opinion testimony

was properly disclosed and did not reflect an opinion in anticipation of

litigation. We further determine the district court did not abuse its
4

discretion in limiting the jury’s access to video evidence during

deliberation; it was a judgment call for the district court to make.

I. Background Facts and Proceedings.

T.D. was born on August 31, 2007, at the Henry County Health

Center (HCHC). Dr. Widmer, employed by Family Medicine of Mt.

Pleasant, P.C., 1 was the physician in charge of T.D.’s prenatal care and

delivery. Many of the facts surrounding T.D.’s birth are not disputed.

During the delivery, T.D.’s head delivered but his left shoulder became

stuck on his mother’s pelvis. This situation, a shoulder dystocia, is a

medical emergency because the infant’s delay in birth may cause severe

brain damage or death if not resolved in six minutes or less. Dr. Widmer

and the nurses performed maneuvers that resolved the shoulder dystocia

in one minute and ten seconds. However, T.D. was born with a permanent

injury to his left brachial plexus preventing normal use and function of his

arm. T.D.’s delivery was captured on a twenty-one minute birth video

recorded by T.D.’s aunt.

T.D., through a conservator, 2 filed a medical malpractice action on

March 10, 2016, in Henry County alleging defendants were negligent

during labor and delivery, causing injury. Nearly a year and a half later,
T.D. filed a motion for leave to amend and substitute his original petition.

Defendants resisted, citing concerns that T.D. was raising new claims of

negligent training and credentialing for the first time less than sixty days

before trial. On October 13, 2017, after an evidentiary hearing, the district

1We will refer to HCHC, Dr. Widmer, and Family Medicine of Mt. Pleasant, P.C.

jointly as “defendants.”
2T.D.’s mother, Lisa Hirschy, individually and as next friend of T.D., filed the

original petition against the defendants. The original petition was later amended and
substituted Hirschy with plaintiff “Larry Eisenhauer, Conservator, ex. rel.
Conservatorship of [T.D.]” We will refer to the plaintiff simply as T.D.
5

court determined T.D.’s proposed amendment “that adds a new claim of

negligent training does ‘substantially change the issues or defenses of the

case.’ Allowing the amendment would prejudice the defense in this case.”

It ruled,

The primary issues in this case remain as to what the
applicable standard of care was on the date in question and
whether there was a violation of this standard with a causal
relationship to the injury.

....

To the extent there may be any reference in the
[a]mended [p]etition that relates to a theory of recovery based
on negligent training or credentialing, the amendment is
denied.

The district court later granted defendants’ motion in limine relating to,

among other things, any reference to either HCHC’s training and

credentialing process or Dr. Widmer’s training as a family practice

physician, including his Continuing Medical Education (CME) records.

Trial commenced on November 7, 2017, and concluded on November

17. Both parties offered expert testimony to support their respective

positions. T.D. offered the birth video into evidence without objection. At

the close of his case-in-chief, T.D. sought to admit Dr. Widmer’s CME

records and made on offer of proof. The district court affirmed its prior

ruling and prohibited T.D. from offering evidence of the CME records.

During direct examination by defendants, Dr. Widmer testified:
Q. Do you have an opinion as to whether the
maneuvers you used were in conformity with the standard of
care?

MR. GOODMAN: Undisclosed opinion.

THE COURT: Overruled.

A. I believe I did.
6

On the sixth day of trial, during redirect examination, Dr. Widmer

referred to a single page of handwritten notes. He testified to creating the

notes when he reviewed the birth video and stated his notes would assist

in recalling the times he heard fetal heart rates without the need to watch

the entire birth video. Defendants later moved to admit the notes as

demonstrative evidence.

During deliberations, the jury asked to view the birth video, which

was not submitted to the jury for deliberations. The district court complied

with the request and played the video for the jury once in its entirety. Over

plaintiff’s objections, the birth video was not sent back to the jury room

during deliberations but could be viewed an additional time upon request

by the jury. Such a request was made and the video was again played in

its entirety. Subsequently, the jury returned a verdict for defendants,

finding neither HCHC’s nurses nor Dr. Widmer were negligent.

Consequently, the jury did not reach the question of causation or

damages.

The district court, based upon the jury’s verdict, entered an order

dismissing T.D.’s claims. T.D. appealed the district court order, and we

retained the appeal.

II. Standard of Review.

The standard of review for jury instructions is for prejudicial error

by the district court. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999)

(en banc). Therefore, a district court’s refusal to give a requested jury

instruction is reviewed for correction of errors at law. See Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). “Instructions must be

considered as a whole, and if the jury has not been misled there is no

reversible error.” Thavenet, 589 N.W.2d at 236. “In considering whether

the instruction is supported by substantial evidence, we give the evidence
7

the most favorable construction it will bear in favor of supporting the

instruction.” Asher v. OB–Gyn Specialists, P.C., 846 N.W.2d 492, 496–97

(Iowa 2014), overruled by Alcala, 880 N.W.2d at 707–08, 708 n.3.

A district court’s decision to admit relevant evidence is reviewed for

an abuse of discretion. See Mohammed v. Otoadese, 738 N.W.2d 628, 631

(Iowa 2007). “An abuse of discretion occurs when ‘the court exercise[s]

[its] discretion on grounds or for reasons clearly untenable or to an extent

clearly unreasonable.’ ” Graber v. City of Ankeny, 616 N.W.2d 633, 638

(Iowa 2000) (en banc) (alteration in original) (quoting Waits v. United Fire

& Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997)). Grounds or reasons are

clearly untenable if they are not supported by substantial evidence or if

they are based on an erroneous application of law. Id. “A party may claim

error in a ruling to admit or exclude evidence only if the error affects a

substantial right of the party . . . .” Iowa R. Evid. 5.103(a).

We review whether a district court properly admitted expert

testimony for abuse of discretion. See Hansen v. Cent. Iowa Hosp. Corp.,

686 N.W.2d 476, 479 (Iowa 2004).

Similarly, “[s]ubmission of exhibits to the jury is a matter resting in

[the] trial court’s discretion.” Brooks v. Holtz, 661 N.W.2d 526, 532 (Iowa

2003) (alteration in original) (quoting Heth v. Iowa City, 206 N.W.2d 299,

303 (Iowa 1973)).

III. Analysis.

A. Specifications of Negligence. We first consider whether there

was reversible error in the district court’s specifications of negligence. In

a medical malpractice action, “a plaintiff must produce evidence that (1)

establishes the applicable standard of care, (2) demonstrates a violation of

this standard, and (3) develops a causal relationship between the violation

and the injury sustained.” Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa
8

1990). The questions respecting the violation of a standard of care and

the causal relationship are ordinarily for the trier of fact. See Speed v.

State, 240 N.W.2d 901, 904 (Iowa 1976).

A plaintiff is required to identify the specific acts or omissions relied

upon to generate questions for the trier of fact. See Herbst v. State, 616

N.W.2d 582, 585 (2000) (en banc). As we explained in Herbst, “Jury

instructions should be formulated so as to require the jury to focus on

each specification of negligence that finds support in the evidence.” Id.

(quoting Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995)). Put another

way, a party is entitled to have its legal theory submitted to the jury if that

theory is supported by substantial evidence. See Ludman v. Davenport

Assumption High Sch., 895 N.W.2d 902, 919–20 (Iowa 2017).

Of course, whether a jury instruction sufficiently encompasses each

specification of negligence alleged by a plaintiff is determined by the facts

of the particular case. See Herbst, 616 N.W.2d at 586. Iowa law requires

a court give a requested instruction as long as the instruction is a correct

statement of law, is applicable to the case, and is not otherwise embodied

elsewhere in the instructions. See Ludman, 895 N.W.2d at 919; Porter v.

Iowa Power & Light Co., 217 N.W.2d 221, 234 (Iowa 1974). This principle,

however, does not require a court give instructions that provide undue

emphasis to any particular aspect of the case, Burkhalter v. Burkhalter,

841 N.W.2d 93, 106 (Iowa 2013), or that duplicate specifications

adequately encompassed elsewhere in the instructions, Porter, 217 N.W.2d

at 233–34.

T.D. challenges the manner in which the district court instructed

the jury on his specific claims of negligence. Regarding Dr. Widmer, T.D.

proposed the following instruction with six subparts:
9
Dr. Widmer was negligent by failing to meet the standard of
care in the following way:

a. Repeatedly directing [mother] to push after shoulder
dystocia was identified and traction failed to deliver
the stuck shoulder;

or

b. Applying improper traction to [T.D.]’s head or neck
during the delivery;

or

c. Failing to properly and effectively supervise, direct,
or coordinate the efforts of the delivery team;

or

d. Mistakenly concluding that [T.D.] was experiencing
bradycardia and as a result, delivering [T.D.] hastily
and without due care;

or

e. Failing to follow the HCHC policy on Shoulder
Dystocia, or Vacuum Extraction, or Pitocin;

or

f. Failing to properly and effectively use maternal and
fetal maneuvers to safely deliver [T.D.] after shoulder
dystocia occurred, including, but not limited to:
McRoberts maneuver, suprapubic pressure, Wood’s
screw, reverse Wood[’s] screw (Rubin’s), delivering
the posterior arm, and Gaskin’s maneuver;
The district court whittled down T.D.’s proposed specifications about
Dr. Widmer and instructed the jury on the following specifications of

negligence:
Dr. Widmer was negligent by failing to meet the standard of
care in one or more of the following ways:

(a) in failing to direct or coordinate proper maneuvers
to deliver the baby after the recognition of shoulder
dystocia;
10
(b) by applying excessive or improper traction in an
effort to deliver him after the recognition of shoulder
dystocia;

Regarding the nurses, T.D. proposed the following instruction with

five subparts:
Either nurse or both Rebecca Fraise, R.N. and Yvonne
Sloan, R.N. were negligent by failing to meet the standard
of care in the following way:

a. Repeatedly directing [mother] to push after shoulder
dystocia was identified and traction failed to deliver
the stuck shoulder;

or

b. Failing to follow the HCHC policy on Shoulder
Dystocia or Pitocin;

or

c. Failing to properly and effectively perform the
McRoberts maneuver and suprapubic pressure, to
safely deliver [T.D.] after shoulder dystocia
occurred[;]

or

d. Acting without due care in delivering [T.D.];

or

e. Failing to call for help;

The district court whittled down T.D.’s proposed specifications about the

nurses and instructed the jury on the following specifications of
negligence:

That either of the nurses was negligent by failing to meet the
standard of care in the following way:

(a) in the performance of the McRobert[s] maneuver
and/or the application of suprapubic pressure.

T.D. asserts the districts court’s instructions failed to instruct the

jury on certain acts or omissions in which defendants violated the
11

standard of care. Specifically, T.D. claims the district court failed to

incorporate the following specifications of negligence against Dr. Widmer:

(1) directing to push after shoulder dystocia was identified, (2) failing to

properly and effectively direct the delivery team as well as failing to

properly and effectively use maternal and fetal maneuvers, and

(3) mistakenly concluding T.D. was experiencing bradycardia. With

respect to the HCHC nurses, T.D. claims the district court failed to

incorporate two specifications of negligence: (1) directing to push after

shoulder dystocia was identified, and (2) failing to properly and effectively

perform maternal maneuvers.

Defendants argue that T.D.’s proffered specifications of negligence

were adequately embodied in the court’s final jury instructions, and

because the more general language allowed T.D. to emphasize his proffered

specifications of negligence throughout his trial presentation, the district

court’s refusal to provide instructions on specific acts or omissions was

not prejudicial.

T.D.’s proposed instructions indicated Dr. Widmer and the HCHC

nurses failed to meet the standard of care by “[r]epeatedly directing

[mother] to push after shoulder dystocia was identified and traction failed

to deliver the stuck shoulder.” This theory found support in the testimony

of each party’s expert, which revealed all commands to push and tractional

efforts should cease when shoulder dystocia is first recognized. The

experts also agreed maternal maneuvers, such as the McRoberts

maneuver, 3 should be executed to relieve shoulder dystocia. Once the

McRoberts maneuver is implemented, pushing and tractional forces are

allowed to resume. Arguably, a breach of the standard of care could occur

3The McRoberts maneuver is a nurse performed maneuver that raises the
mother’s legs to her chest in order to resolve shoulder dystocia.
12

if commands to push and tractional efforts occurred after dystocia was

recognized but before the McRoberts maneuver was implemented.

We think the specific act or omission of repeatedly directing to push

was adequately encompassed in the district court’s instructions. The

district court’s specifications stated Dr. Widmer was negligent by “failing

to direct or coordinate proper maneuvers” and “applying excessive or

improper traction . . . after the recognition of shoulder dystocia.” These

instructions are directly related to the concept of “directing to push.” The

record indicates it was Dr. Widmer’s responsibility to communicate with

the delivery team and it was his responsibility to coordinate maternal

maneuvers. Any direction by Dr. Widmer to push after shoulder dystocia

was recognized but before the McRoberts maneuver was implemented falls

squarely within his failure to direct or coordinate the proper maneuver and

could result in improper traction. The district court’s instructions

adequately instructed the jury on each alleged act or omission.

The same is also true for the HCHC nurses. Failing to meet the

standard of care “in the performance of the McRobert[s] maneuver”

encompassed “directing to push” after the recognition of shoulder dystocia.

Indeed, HCHC nurses could fail to meet the standard of care if they

directed the mother to push after the recognition of shoulder dystocia but

before implementation of the McRoberts maneuver—a direction that is

contrary to the performance of the maneuver as established in the record.

Moreover, the district court illustrated the difficulty that a separate

instruction on “directing to push” would create in conjunction with an

instruction regarding the proper maneuver to deliver T.D.
I mean, you can’t say stop pushing and just sit there the rest
of the day. At some point you have to start pushing again. I
think that was the testimony of all the experts. I mean, you
can’t just stop and lollygag around. At some point somebody
has to push again.
13

We agree with its reasoning. Directions to intermittently start and

stop pushing at certain points in the delivery process are part of the proper

maneuver. This is supported by the testimony of each party’s expert.

Therefore, the district court’s jury instructions adequately encompassed

T.D.’s specifications of negligence. See Porter, 217 N.W.2d at 233.

T.D.’s proposed instructions also drew a distinction between

maternal and fetal maneuvers. It was T.D.’s theory that HCHC nurses

failed to properly and effectively perform the maternal maneuver

(McRoberts maneuver and suprapubic pressure 4), that Dr. Widmer failed

to properly and effectively supervise the delivery team, and that

Dr. Widmer failed to properly and effectively use fetal maneuvers. When

faced with an improper and ineffective maternal maneuver, T.D.’s expert

indicated it was Dr. Widmer’s responsibility to direct the proper and

effective performance of the maternal maneuver. If the proper and effective

maternal maneuver failed to release the shoulder dystocia, then

Dr. Widmer should have moved on to other fetal maneuvers (physician-

applied maneuvers).

We conclude the district court’s instructions adequately

encompassed T.D.’s legal theories of negligence. To begin, both parties’

experts agreed maternal maneuvers are performed by nurses. Even T.D.

concedes “the HCHC nurses attempted the proper maternal maneuvers—

McRobert[s] and suprapubic pressure.” Yet, T.D. asserts the district

court’s exclusion of “proper and effective” conveyed only a specification of

whether the HCHC nurses conducted the proper maneuver, not whether

it was effective. This exclusion, we believe, was fully encompassed in the

instruction submitted. The district court’s instruction begins by

4Suprapubic pressure is a nurse applied maneuver that pushes down on the
mother’s pubic bone to resolve shoulder dystocia.
14

explaining that HCHC nurses are negligent if they fail to meet the standard

of care during the performance or application of a maternal maneuver. We

are convinced a negligent performance or application of a maternal

maneuver sufficiently encompassed an act that would violate the standard

of care, i.e, inadequate or ineffective. The district court “need not adopt

the form requested by a party.” Schuller v. Hy-Vee Food Stores, Inc., 328

N.W.2d 328, 332 (Iowa 1982).

A similar analysis is appropriate for Dr. Widmer’s specifications.

T.D.’s proposed instructions sought to distinguish two different acts or

omissions: (1) Dr. Widmer’s failure to supervise maternal maneuvers and

(2) Dr. Widmer’s failure to use fetal maneuvers. We conclude the district

court’s instruction sufficiently highlighted two distinct acts or omissions.

First, unlike the court’s instruction for the HCHC nurses’ specification,

Dr. Widmer’s instruction was not narrowed to the maternal maneuvers

(McRoberts and suprapubic pressure). Quite the opposite. It set forth his

duty to “direct or coordinate proper maneuvers.” We read this two-fold

specification to include multiple maneuvers, if necessary.

Second, the district court’s specification reflected the sequential

nature of proper maneuvers, as expressed by the parties’ expert testimony.

If shoulder dystocia is encountered during the delivery, it is the physician’s

responsibility to direct the proper maternal maneuver. If the proper

maternal maneuver does not resolve the shoulder dystocia, the physician

should coordinate a number of fetal maneuvers. The record indicates

maternal maneuvers are nurse applied, in contrast to fetal maneuvers,

which are physician applied. T.D. presented significant evidence reviewing

fetal maneuvers and their proper use.

T.D. argues the district court’s use of “direct or coordinate” limited

Dr. Widmer’s liability to maternal maneuvers because “direct or
15

coordinate” each refer to controlling or managing others. However, read

in the context of the two-fold specification, we disagree. Dr. Widmer’s

negligence may have stemmed from his failure to direct maternal

maneuvers or from his failure to coordinate fetal maneuvers. Compare

Direct, Webster’s Third New International Dictionary (unabr. 2002) (“[T]o

dedicate to a person[,] . . . to dispatch, aim, or guide usu. along a fixed

path”), with Coordinate, Webster’s Third New International Dictionary (“[T]o

bring into a common action, movement, or condition : regulate and

combine in a harmonious action”). With respect to the district court’s

exclusion of “effective,” we are again convinced the standard of care implies

effective direction or coordination.

Whether Dr. Widmer was negligent for his failure to direct or

coordinate proper maneuvers was a question for the jury. We believe the

district court’s instruction sufficiently advised the jury of specific acts or

omissions related to maternal and fetal maneuvers.

T.D. also argues that the district court erred in its refusal to provide

T.D.’s specification of negligence regarding Dr. Widmer’s assessment of

bradycardia:
(d) Mistakenly concluding that [T.D.] was experiencing
bradycardia and as a result, delivering [T.D.] hastily and
without due care;

The record indicates bradycardia occurs when the fetal heart rate remains

below 110 beats per minute for a full ten-minute period. When

bradycardia occurs, there is a danger the fetus will be deprived of oxygen

and suffer a brain injury. A more severe bradycardia will result in less

time for a physician to complete delivery.

Defendants argue the evidence is insufficient to support T.D.’s

specification of negligence. If substantial evidence in the record supports
16

T.D.’s legal theory concerning bradycardia, he is entitled to submit that

theory to the jury. See Lundman, 895 N.W.2d at 919–20. “Evidence is

substantial enough to support a requested instruction when a reasonable

mind would accept it as adequate to reach a conclusion.” Id. at 920

(quoting Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999)). “[W]e give the

evidence the most favorable construction it will bear in favor of supporting

the instruction.” Asher, 846 N.W.2d at 496–97.

Applying this favorable construction, we determine a reasonable

mind would not accept the evidence as adequate to conclude there was no

bradycardia. Dr. Widmer testified T.D.’s heart rate lowered to eighty beats

per minute, which revealed T.D. “was having some distress.” In

Dr. Widmer’s opinion, T.D. was experiencing late deceleration following his

mother’s push and contraction, and “[t]hat’s usually a sign that the baby

is not doing well.” In T.D.’s circumstances, the late deceleration kept his

heart rate down in the eighty beats-per-minute range. Further, T.D.’s own

expert testified it was impossible to determine whether Dr. Widmer

misdiagnosed bradycardia because the fetal heart rate charts only

reflected T.D.’s heart rate every five minutes. He stated,

[W]e really don’t know what the care showed, other than
nursing charts that every five minutes heart rate 80’s to 90’s,
90 to a hundred, but it doesn’t tell you what it is minute to
minute to minute, so we don’t know if these are what we call
variable decelerations . . . . So it may have been indicated, it
may not have been. I don’t think there’s enough information
there in the record to tell you.

(Emphasis added.) The record contains insufficient evidence to support

the legal theory that Dr. Widmer mistakenly concluded T.D. was

experiencing bradycardia. We conclude the district court did not err in

refusing T.D.’s specification of negligence.
17

T.D. next contends Iowa caselaw is clear on the specification issue:

jury instructions must include each specification of negligence that finds

support in the evidence. Caselaw in the form of premises liability provides

relevant rules of proper jury instructions.

“The court is entitled to choose its own language in submitting an

issue and need not adopt the form requested by a party.” Schuller, 328

N.W.2d at 332. That was the rule expressed by our court in Schuller after

we determined the jury instructions adequately incorporated plaintiff’s

specifications of negligence. See id. There, Schuller was injured after

tripping over an ashtray canister as he entered the aisle in defendant’s

grocery store. Id. at 330. He sought four specifications of negligence

against the grocery store: “blocking an aisle by placing an ashtray where

a customer was expected to walk, placing an ashtray in a concealed

location, failing to place the ashtray in a safe location, and failing to warn

of the ashtray’s location.” Id. at 331–32.

The district court only submitted instructions concerning whether

the grocery store was negligent “in placing the ashtray stand in an aisle

where customers were expected to walk” and circumstances that would

give rise to a duty to warn. Id. at 332. We concluded Schuller’s first three

specifications of negligence related to the concept of ashtray placement,

which was adequately incorporated in the single specification submitted.

See id.

In Bigalk, our court addressed the issue of whether a plaintiff was

entitled to have the jury instructed on each alleged act or omission. 540

N.W.2d at 248. After falling into an unguarded stairwell, Bigalk brought

a personal injury claim against the property owner. Id. Her theory was,

as a possessor of land, the property owner owed a duty under Restatement

(Second) of Torts. Id.
18

Bigalk claimed the property owner was negligent in failing to warn

of the danger, failing to provide adequate lighting, failing to cover the open

stairwell, and failing to provide a railing around the stairwell. Id. at 248–

49. The district court limited the specifications of negligence and

instructed the jury, “The Defendant was negligent in failing to make the

condition (open stairway) safe or in failing to warn the Plaintiff of the

condition and risk involved.” Id. at 249. Bigalk objected on the ground

that, apart from the warning language, the instructions did not advise the

jury concerning the specific acts or omissions she claims were negligent

conduct. Id. at 249. On appeal, we reversed the district court. Id. at 250.

We said, “[Bigalk] was entitled to have the jury instructed in the present

case concerning each alleged act or omission that found support in the

evidence.” Id.

We later contrasted Schuller with Bigalk in Herbst, 616 N.W.2d 582.

The narrow question in Herbst was whether the district court adequately

instructed the jury concerning specifications of negligence. Id. at 585. We

identified two issues with the instructions given in Herbst. Id. at 587.

First, the district court did not adequately instruct the jury concerning

defendant’s negligent act. Id. Second, the jury was not adequately

instructed concerning Herbst’s theory of defendant’s negligent omission.

Id.

Herbst sustained injuries while descending from a stage in a

university rehearsal hall. Id. at 583. It was her theory that the university

was negligent by (1) “permitting makeshift stairs to be used,” (2) “failing to

provide a safe and secure set of stairs,” and (3) “failing to provide

unimpeded access to the permanent stairs.” Id. at 586. The district court

instructed the specification of negligence as “failing to provide safe and

secure access onto the stage.” Id. at 586–87.
19

We concluded the instruction did not adequately instruct the jury

concerning each alleged act (permitting makeshift stairs to be used) or

omission (failing to provide safe and secure access). See id. at 587. We

determined Herbst’s third specification of negligence (failing to provide

unimpeded access) was to be encompassed in the first two instructions.

See id.

Upon our review, we determine the jury was adequately instructed

concerning T.D.’s specifications of negligence. Viewed as a whole, the

district court’s instructions ensured the jury would give consideration to

each alleged act or omission. In Bigalk and Herbst, the standard of care

was simply repeated to the jury. Like Schuller, the district court’s

instructions in this case related to the concept of specific acts or omissions

during the delivery of T.D. and sufficiently encompassed T.D.’s

specifications of negligence.

We need not reach T.D.’s claim of prejudice given our holding on the

manner in which the district court instructed the jury. “An error in giving

an instruction ‘does not warrant reversal unless the error is prejudicial to

a party.’ ” Asher, 846 N.W.2d at 496 (quoting Herbst, 616 N.W.2d at 585).

“Prejudice results when the trial court’s instruction materially misstates

the law, confuses or misleads the jury, or is unduly emphasized.”

Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa

2000) (en banc). In any event, T.D. was free to emphasize, and did

emphasize, that his proffered specifications of negligence breached the

standard of care. By his own admissions, T.D. indicated he emphasized

his specifications of negligence throughout his opening, case-in-chief, and

closing. While discussing the proffered instructions with the parties, the

district court even encouraged T.D. to argue his specifications: “You can

argue that point, that’s fine. You can argue that all you want, and that’s
20

fine . . . .” T.D.’s presentation of his legal theory, in conjunction with the

instructions as a whole, properly explained the relevant law to the jury.

See id. (“In this case, all the instructions when read together properly

explained the applicable law to the jury.”). We conclude the district court

fulfilled its “duty to see that a jury has a clear and intelligent

understanding of what it is to decide.” Sonnek v. Warren, 522 N.W.2d 45,

47 (Iowa 1994).

B. Training and Medical Education. The district court prohibited

T.D. from offering evidence of Dr. Widmer’s CME records. T.D. contends,

as he did in the district court, that Dr. Widmer’s training and medical

education records were admissible. The CMEs were admissible, T.D.

argues, because (1) the records were relevant to show a breach in the

standard of care and (2) he was entitled to introduce impeachment

evidence that lessened the weight of Dr. Widmer’s expert opinion. We

disagree with T.D.’s contention regarding the relevancy of CME records to

show a breach in the standard of care, but we agree that he was entitled

to introduce CME records for impeachment purposes. However, we affirm

the district court’s decision because the erroneous ruling did not affect

T.D.’s substantial rights. See Iowa R. Evid. 5.103(a).

The procedural background surrounding Dr. Widmer’s CME records

offers insight to the district court’s ruling. A year and a half after T.D. filed

his petition in district court, he filed a motion for leave to amend and

substitute the original petition. Defendants resisted, citing concerns that

T.D. was raising new claims of negligent training and credentialing for the

first time less than sixty days before trial. The district court denied T.D.’s

motion. The order stated, “It is clear that what the [p]laintiff is asking for

is the inclusion of a claim of negligent training.” It concluded the proposed

amendment, which added a new claim of negligent training, would
21

substantially change the issues or defenses of the case. The district court

ruled:

The primary issues in this case remain as to what the
applicable standard of care was on the date in question and
whether there was a violation of this standard with a causal
relationship to the injury.

....

To the extent there may be any reference in the
[a]mended [p]etition that relates to a theory of recovery based
on negligent training or credentialing, the amendment is
denied.

The district court later granted defendants’ joint motion in limine

regarding any reference to HCHC’s training and credentialing process and

any reference to or evidence concerning Dr. Widmer’s training as a family

practice physician, including Dr. Widmer’s CME records. 5 At the close of

his case-in-chief, T.D. again sought to admit Dr. Widmer’s CME records.

The district court maintained the same ruling, which excluded the records.

5In
passing, T.D.’s brief asserts the district court abused its discretion by granting
overly broad motions in limine. He points to, as an example, the motions in limine
regarding HCHC’s training and credentialing process and Dr. Widmer’s CME records. We
have stated,

The function of a motion in limine is not only to exclude during the
voir dire examination and opening statements, reference to anticipated
evidence claimed to be objectionable because of incompetent, irrelevant,
immaterial or privileged but to also restrict opposing counsel in asking
questions or making statements in offering such matters until the
admissibility of the questionable evidence can be determined during the
course of the trial by presenting to the court in the absence of the jury
such evidence by offer and objection. Its objective is to control such
matters in advance and thus avoid disclosing to the jury prejudicial
material which may compel declaring a mistrial.
Twyford v. Weber, 220 N.W.2d 919, 922–23 (Iowa 1974). Here, the district court did not
abuse its discretion by granting the motions in limine. Any reference to negligent training
or credentialing would be a new claim prejudicial to the defense, as previously determined
by the district court. It was appropriate to grant the motions in limine until the
admissibility of the evidence was determined by offer of proof. Id. at 923.
22

Defendants claim T.D. failed to preserve error on the admissibility

of Dr. Widmer’s CME records. “If the ruling excludes evidence, a party

informs the court of its substance by an offer of proof, unless the

substance was apparent from the context.” Id. r. 5.103(a)(2). In this case,

T.D. made the following offer of proof:

It’s a long-standing rule in Iowa that evidence may be
introduced to impeach an expert witness or to lessen the
weight of his expert opinion or qualifications. . . . And since
we know Dr. Widmer will testify as an expert witness, it’s
Plaintiff’s position that we’re entitled to introduce evidence
that will lessen the weight of his opinion and also to raise
doubts about the quality of his expertise.

Dr. Widmer’s CME records are relevant and admissible for
this purpose. Even had Dr. Widmer not been designated as
an expert witness, this evidence is relevant to call into
question the professional judgment he exercised in the
delivery of [T.D.] and also the expected testimony . . . to give
in his defense that he—he did not need more than two
maneuvers. . . .

T.D. concluded his offer of proof by providing the court with Dr. Widmer’s

CME records, a collection of discovery relevant to the CMEs, and a

breakdown of the type of CMEs Dr. Widmer obtained.

“The purpose of an offer of proof is to give the trial court a more

adequate basis for its evidentiary ruling and to make a meaningful record
for appellate review . . . .” State v. Ritchison, 223 N.W.2d 207, 212 (Iowa

1974). We conclude T.D.’s offer of proof provided the district court with

an adequate basis and provided our court with a meaningful record for

review. It is clear T.D. sought to introduce CME records to show a breach

in Dr. Widmer’s standard of care and to lessen the weight of his expert

opinion.

We now turn to the merits of T.D.’s claim. Relevant evidence is

admissible, unless provided otherwise. See Iowa R. Evid. 5.402. However,

“[i]rrelevant evidence is not admissible.” Id. Evidence is relevant if “[i]t
23

has any tendency to make a fact more or less probable than it would be

without the evidence; and . . . [t]he fact is of consequence in determining

the action.” Id. r. 5.401.

1. CME records to show breach in the standard of care. “A physician

is liable for injury to a patient caused by failure of the physician to apply

that degree of skill, care, and learning ordinarily possessed and exercised

by other physicians in similar circumstances.” Speed, 240 N.W.2d at 904.

In other words, “[a] physician owes a duty to his patient to exercise the

ordinary knowledge and skill of his or her profession” when providing care

and treatment. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d

256, 260 (Iowa 1999). Dr. Widmer thus owed a duty to exercise “the

ordinary knowledge and skill” of his profession during T.D.’s delivery, and

if that standard was violated, he is liable for injuries. See id. The question

becomes whether Dr. Widmer’s CME records have a tendency to make a

fact, that is of consequence to his outlined duty, more or less probable.

See Iowa R. Evid. 5.401.

T.D.’s brief reviewed the general purpose of CME credits and

canvased Iowa’s requirements of CME hours for physicians. According to

T.D.’s calculation, Dr. Widmer’s CME records show, out of approximately

four hundred hours of CME credits during the relevant timeframe, only

eight hours were potentially related to obstetrics. Obstetrics accounted

for less than two percent of his overall CME credits, although obstetrics

accounted for five to ten percent of his overall practice. T.D.’s theory

concludes Dr. Widmer’s lack of CME credit hours in obstetrics

demonstrates he did not possess the same degree of skill, care, and

learning as other physicians in similar circumstances.

We are not convinced Dr. Widmer’s CME records make such bold

statements. This evidence simply reflects the fact that Dr. Widmer has
24

discretion in the type and amount of credit hours selected. No evidence

was produced in T.D.’s offer of proof recognizing the type and amount of

CMEs obtained by similarly situated doctors. More importantly,

Dr. Widmer’s type and amount of credit hours are inconsequential in

determining T.D.’s action—whether Dr. Widmer violated his standard of

care on the day he delivered T.D. We conclude Dr. Widmer’s CME records

are irrelevant to show a breach in that standard of care. Therefore, the

district court did not abuse its discretion.

2. CME records for impeachment. We must next address whether

Dr. Widmer’s CME records were admissible as impeachment evidence.

Ordinarily, impeachment evidence is admissible if it is relevant to

undermining the credibility of the witness being impeached. See State v.

Turecek, 456 N.W.2d 219, 224 (Iowa 1990). In the case of an expert

witness, evidence may be introduced “to lessen the weight of his expert

opinion.” Ipsen v. Ruess, 241 Iowa 730, 734, 41 N.W.2d 658, 661 (1950)

(quoting 32 C.J.S. Evidence § 571 (now found at 32A C.J.S. Evidence

§ 996, at 78 (2008))).

Dr. Widmer testified, in his expert opinion, the maternal maneuvers

he used to deliver T.D. met the standard of care. T.D. asserts the CME

records would have weakened Dr. Widmer’s credibility as an expert and he

was entitled to introduce the impeachment evidence.

Defendants compare this issue to Campbell v. Vinjamuri, 19 F.3d

1274 (8th Cir. 1994), and argue Dr. Widmer’s CME records were properly

excluded. We think this case is distinguishable. Campbell involved similar

impeachment evidence during a medical malpractice trial. The deposition

of Dr. Vinjamuri revealed “he was not board certified in anesthesiology as

he had, on three or four occasions, failed the board certifying

examination.” Id. at 1267. The district court found the board failures
25

irrelevant and inadmissible, but evidence that Dr. Vinjamuri was not

board certified was allowed to go before the jury. Id. On cross-

examination, Campbell sought to use Dr. Vinjamuri’s test failures to

impeach his credibility as an expert, but the district court refused. Id.

The United States Court of Appeals for the Eighth Circuit affirmed

on appeal. Id. at 1278. However, unlike Dr. Widmer, Dr. Vinjamuri gave

what was classified as limited expert testimony and the court did “not

decide whether a different result would be warranted had Vinjamuri given

more extensive expert testimony.” Id. at 1277 & n.2. The court reasoned

Vinjamuri’s test failures had no connection to whether he met the

standard of care in his treatment. Id. at 1277. His reason for the lack of

certification was deemed of limited significance, but as the court pointed

out “[i]t [was] sufficient that the jury was given the information that

Vinjamuri was not board certified in his specialty.” Id.

In contrast to Dr. Vinjamuri’s limited expert testimony in Campbell,

Dr. Widmer was designated as an expert and provided his expert opinion

testimony. Further, evidence that Dr. Vinjamari was not board certified

was before the jury and that evidence was found to be sufficient. The same

is not true for Dr. Widmer; there is no evidence before the jury concerning

the type and amount of his CME credits. T.D. does not seek to impeach

Dr. Widmer with evidence of the reason for his limited CME credits in

obstetrics. He seeks to introduce impeachment evidence as a way of

informing the jury that Dr. Widmer has limited CME credits in obstetrics.

We are not inclined to reach the same conclusion as the Eighth Circuit in

Campbell.

We agree with T.D.’s argument that the district court should have

allowed Dr. Widmer’s CMEs to be used for impeachment purposes. The

cross-examination of Dr. Widmer with his own CME records may have
26

lessened the weight of his expert opinion. See Ipsen, 241 Iowa at 734, 41

N.W.2d at 661; see also Heinz v. Heinz, 653 N.W.2d 334, 342 (Iowa 2002)

(“The purpose of cross-examination is to test the veracity of statements a

witness made and to weaken or disprove the opposing case.”). The CME

records would have shown the jury that Dr. Widmer committed relatively

few hours of his continuing medical education to obstetrics. Therefore,

the CME records were relevant to undermining the credibility of

Dr. Widmer and were admissible as impeachment evidence on this narrow

issue. See Turecek, 456 N.W.2d at 224.

We must next determine whether reversible error was committed by

the omission of this evidence. Error in excluding evidence may be claimed

“only if exclusion of the evidence affected a party’s substantial rights.”

Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 503 (Iowa 2009); see Iowa R.

Evid. 5.103(a). Reversal is warranted only if the exclusion of Dr. Widmer’s

CME records affected T.D.’s substantial rights. See Scott, 774 N.W.2d at

503. Because we are dealing with a nonconstitutional error, we employ

the harmless error analysis. See State v. Russell, 893 N.W.2d 307, 314

(Iowa 2017). “We presume prejudice and reverse unless the record

affirmatively establishes otherwise.” Id.

Upon our review of the record, we conclude the error was harmless.

The district court’s exclusion of the CME records did not affect T.D.’s

substantial rights. At trial, T.D. was able to introduce other evidence

concerning Dr. Widmer’s training and lack of experience, which lessened

the weight of his expert opinion. T.D.’s expert testified to the proper use

of maternal and fetal maneuvers when shoulder dystocia is encountered.

His expert specifically stated Dr. Widmer did not possess the knowledge

and experience of proper maneuvers and that Dr. Widmer “didn’t ever have

a prior experience” with fetal maneuvers. T.D. also played the deposition
27

of Dr. Widmer for the jury. The deposition elicited from Dr. Widmer the

fact he could not recall attending any seminars or practice review courses

specific to obstetrics. On cross-examination, Dr. Widmer admitted to not

knowing multiple types of fetal maneuvers. In fact, Dr. Widmer testified

he had never performed a number of relevant fetal maneuvers used to

resolve shoulder dystocia. We conclude this evidence, in addition to the

opinions of many experts over the eight-day trial, weakened the credibility

of Dr. Widmer’s expert opinion.

The record affirmatively established the exclusion of Dr. Widmer’s

CME records did not affect T.D.’s substantial rights. There is no error

warranting reversal in this case. See Tucker v. Caterpillar, Inc., 564 N.W.2d

410, 414 (Iowa 1997).

C. Undisclosed Expert Opinions.

1. Direct testimony. At trial, Dr. Widmer testified on direct

examination:

Q. Do you have an opinion as to whether the
maneuvers you used were in conformity with the standard of
care?

MR. GOODMAN: Undisclosed opinion.

THE COURT: Overruled.

A. I believe I did.

T.D. contends this four-word standard of care opinion required prior

disclosure, which Dr. Widmer failed to do, and the district court erred by

allowing him to testify. We consider T.D.’s argument against this

backdrop.

Iowa Code chapter 688 contains a provision governing the

“[d]isclosure of expert witnesses in liability cases involving licensed

professionals” and states,
28
A party in a professional liability case brought against a
licensed professional pursuant to this chapter who intends to
call an expert witness of their own selection, shall certify to
the court and all other parties the expert’s name,
qualifications and the purpose for calling the expert . . . .

Iowa Code § 668.11(1) (2017). The parties do not dispute the timeliness of

Dr. Widmer’s designation pursuant to section 668.11. See id. (requiring

disclosure of expert witness for defendant “within ninety days of plaintiff’s

certification”). According to his expert designation, Iowa’s rules of civil

procedure then required Dr. Widmer to disclose:

(1) The subject matter on which the witness is expected
to present evidence under Iowa Rules of Evidence 5.702,
5.703, or 5.705.

(2) A summary of the facts and opinions to which the
witness is expected to testify.

Iowa R. Civ. P. 1.500(2)(c)(1)–(2). Defendants’ certification designating

Dr. Widmer conveyed, among other things, that he would “testify on the

issues of standard of care, causation and damages.” Defendants’ timely

certification of experts designated Dr. Widmer and indicated:

Dr. Widmer is qualified to testify in this case based on his
education, training, and experience, his review of the medical
records of [mother and T.D.], birth video, deposition testimony
in this case, and his care and treatment of [mother and T.D.].
The purpose of calling Dr. Widmer will be to have him testify on
the issues of standard of care, causation and damages.
Dr. Widmer is expected to testify at trial consistent with his
deposition testimony given in this case.

(Emphasis added.) We conclude that subject matter was plainly disclosed

by Dr. Widmer. See id. r. 1.500(2)(c)(1).

We also conclude the second prong of rule 1.500(2)(c) was satisfied.

Prior to Dr. Widmer’s designation, T.D. conducted an eight-hour

deposition of Dr. Widmer. This deposition, T.D. claims, was before

Dr. Widmer’s expert designation and was therefore limited to his capacity

as a treating physician, not as an expert. T.D.’s timeline for expert
29

designation is correct, but his argument overlooks actual testimony

elicited from Dr. Widmer by T.D.’s counsel:

Q. And you’re familiar with that method of properly
doing the McRoberts maneuver? A. I would say yes.

Q. And did you witness them perform the McRoberts
maneuver satisfactorily? A. I believe so.

....

Q. Was the McRoberts maneuver successful? A. I
believe so.

Q. And do you believe it was properly executed? A. I
do.

....

Q. Were these maneuvers that you ordered effective,
the application of the suprapubic pressure and the McRoberts
maneuver? A. Yes

Q. And would you please tell . . . why those maneuvers
that you ordered were effective? A. They were performed as
needed, and the baby was delivered.

Q. And the baby was delivered, what, within a minute
after the head was delivered, the entire body was delivered?
A. I believe by our time we thought a minute, 35.

Q. And you said you usually like to see the baby
delivered three to five minutes after the head was delivered?
A. Yes.

Q. And that was well within your time frame; correct?
A. It was.

This line of questioning—before his designation as an expert witness—

makes clear Dr. Widmer believed the maneuvers he used were in

conformity with the standard of care. Even if T.D. should “be able to expect

that a treating physician’s testimony will not include opinions on

reasonable standards of care,” the deposition of Dr. Widmer, in fact, did.

See Hansen, 686 N.W.2d at 482 (addressing expert witness designation

under Iowa Code section 668.11). The distinction between Dr. Widmer as
30

a treating physician and Dr. Widmer as a designated expert, for purposes

of this disclosure, is inconsequential. We conclude Dr. Widmer’s

deposition disclosed a summary of facts and opinions to which he was

expected to testify. See Iowa R. Civ. P. 1.500(2)(c)(2).

Relatedly, Dr. Widmer’s direct testimony at trial was consistent with

and within the scope of his deposition testimony. The Iowa Rules of Civil

Procedure indicate, “The expert’s direct testimony at trial may not be

inconsistent with or go beyond the fair scope of the expert’s disclosures,

report, deposition testimony, or supplement thereto.” Id. r. 1.508(4). T.D.

claims Dr. Widmer’s four-word standard of care opinion was in violation

of rule 1.508(4)’s mandate. We disagree. At trial, the direct examination

of Dr. Widmer inquired into whether he believed the maternal maneuvers

conformed to the standard of care. His response, “I believe I did,” was

entirely consistent with his previous deposition testimony, which conveyed

his belief that such maternal maneuvers were successful, proper, and

effective. Moreover, Dr. Widmer’s direct testimony did not go beyond the

fair scope of his disclosures or deposition testimony. His expert

designation plainly stated, “The purpose of calling Dr. Widmer will be to

have him testify on the issues of standard of care, causation and

damages.” He testified exactly to that. Dr. Widmer’s four-word testimony

on the standard of care was well within the disclosed scope, and his direct

testimony regarding the maternal maneuver standard of care was

decidedly less detailed than his responses from the deposition testimony.

The district court did not err by allowing Dr. Widmer to testify on his expert

opinions.

2. Fetal heart rate notes. On the sixth day of trial, during redirect

examination, Dr. Widmer referred to a single page of handwritten notes.

He testified to creating the notes “last Friday” when he reviewed the birth
31

video and stated his notes would assist in recalling the times he heard

fetal heart rates without the need to watch the entire birth video. The

single page of handwritten notes contained nothing more than a column

of video time stamps with the corresponding fetal heart rates. 6 Only after

T.D.’s counsel published Dr. Widmer’s notes to the jury did defendants

later move to admit the notes as demonstrative evidence.

T.D. argues, as he did at trial, that Dr. Widmer provided an

undisclosed opinion on the fetal heart rate in the birth video. Defendants

take the position the handwritten notes were simply a summary of

Dr. Widmer’s observations used to refresh his recollection. We are

persuaded to agree with defendants.

The disclosure requirements of rule 1.508 are generally limited to

physicians retained as experts for purposes of litigation or for trial. See

Hansen, 686 N.W.2d at 483; Iowa R. Civ. P. 1.508. However, “even treating

physicians may come within the parameters of rule [1.508] when they

begin to assume a role in the litigation analogous to that of a retained

expert.” Hansen, 686 N.W.2d at 483 (quoting Morris-Rosdail v.

Schechinger, 576 N.W.2d 609, 612 (Iowa Ct. App. 1998)). This will occur

if the treating physician focuses more on the legal issues in pending

litigation and less on the medical facts and opinions associated in treating

a patient. Id.

It is clear Dr. Widmer does not satisfy Hansen’s threshold test as a

retained expert. This very narrow issue focuses on whether Dr. Widmer’s

handwritten notes reflect opinions in anticipation of litigation. We

conclude they do not. Dr. Widmer’s notes were derived from the birth

video—when he was T.D.’s treating physician. His notes are the summary

6Dr. Widmer testified he calculated the fetal heart rate at a given time by listening
to the birth video and counting on his watch.
32

of his observations and opinions during T.D.’s birth. Dr. Widmer’s

handwritten notes focused more on the medical facts and opinions of

T.D.’s birth and less on the legal issues in the pending trial. See id.

D. Access to Birth Video. T.D.’s birth was captured on a twenty-

one minute video. The birth video, recorded by T.D.’s aunt, depicted the

delivery team’s (Dr. Widmer and the HCHC nurses) efforts during T.D.’s

birth. Experts from both parties reviewed the birth video prior to the trial.

Later, T.D. offered the birth video into evidence, and it was admitted

without objection. At trial, the jury first viewed the twenty-one minute

birth video in its entirety. Then, throughout the trial, the record

demonstrates the birth video was played, paused, and replayed no less

than forty-one more times. In addition, defendants used ten screenshots

from the birth video during direct examination of their expert witnesses.

The ten screenshots were similarly admitted into evidence without

objection.

Although the birth video was admitted into evidence, the district

court denied T.D.’s request for the video to be fully accessible to the jury

during deliberations. It did, however, allow full access to defendants’ ten

screenshots. The district court instructed the jury about the birth video

as follows:

You’ll have the exhibits in the jury room. As stated by the
lawyers in the case, if you wish to review the birth tape again,
we will have that set up. We will play it from beginning to end.
Actually, I think we probably do it in here, not in the jury room
because that TV is bigger and you have a little bit more room,
and I think the acoustics would probably be a bit better. So
we would do that, just let somebody know. Very simple, okay?

Consequently, during deliberations, the jury asked to view the birth video.

The district court permitted the video to be played once through without
33

the ability to pause, stop, or rewind. T.D. takes issue with the district

court’s restrictions and asserts the district court abused its discretion.

Iowa Rule Civil Procedure 1.926(2) provides, “When retiring to

deliberate, jurors . . . shall take with them all exhibits in evidence except

as otherwise ordered.” Whether exhibits are submitted to the jury during

deliberations is a matter within the district court’s discretion. See State v.

Thompson, 326 N.W.2d 335, 337 (Iowa 1982) (reasoning a district court’s

discretion provided by the rules of criminal procedure is “much the same

in civil cases”); see also Brooks v. Holtz, 661 N.W.2d 526, 532 (Iowa 2003)

(submission of exhibits to jury in civil case within district court’s

discretion).

In Brooks, we upheld a district court’s decision to withhold video of

the accident scene from jury deliberations, even though “the tape was

shown to the jury several times during the trial and was admitted into

evidence” and the plaintiffs requested the jury be allowed to have the video.

661 N.W.2d at 532. We noted when certain types of evidence are available

to the jury, “such evidence might be given ‘disproportionate importance in

relation to other trial testimony, for which the jurors were required to call

upon their recollection only.’ ” Id. (quoting State v. Baumann, 236 N.W.2d

361, 366 (Iowa 1975)).

Like Brooks, “[t]his judgment call was one for the trial court to

make.” Id. In deciding whether to submit the birth video for jury

deliberation, the district court stated,

What I’ll do, and what I’ve done in the past, we’ll wait
and see if they want to see it again and what context.
Sometimes they put a context, if it’s for a particular purpose,
maybe just general. Wait until it comes up. . . . Generally in
these situations—situation’s usually in a criminal case—I let
them play it once. Play it just as it was played, one time, and
they can resolve any issues they have regarding that.
34
If there’s some specific section they want to see to
confirm or not confirm something that was said by an expert,
that usually comes up, I play back the whole thing.

....

I think they should have at least one shot at it, see the
whole thing again, just as it was played in court. So they
will—I’ll tell them at the end of the thing, if you want to look
at it, let us know, you can look at it.

It is clear the district court was concerned with the context of the jury’s

reason for viewing the video. To avoid giving a disproportionate

importance to specific sections of the video, the district court’s judgment
call was to play the entire video once. This exercise of discretion was not

clearly unreasonable. See id.

Unlike the caselaw T.D. cites, the unique situation here

contemplated extensive competing expert opinions over an eight-day trial.

See, e.g., State v. Jackson, 387 N.W.2d 623, 629 (Iowa Ct. App. 1986)

(holding the district court did not abuse its discretion in granting jury’s

request to view crime scene video without limitation); State v. Hernandez,

No. 12–0219, 2013 WL 1452958, at *6 (Iowa Ct. App. Apr. 10, 2013)

(concluding the district court was within its discretion in allowing the jury

unfettered access to audio recordings of the criminal event). In its totality,

the birth video lasted twenty-one minutes. Yet, an overwhelming majority

of the forty-one paused or replayed sections focused on the one minute

and ten seconds following recognition of shoulder dystocia. In view of the

roughly nineteen minutes of extraneous details on the video, and to be

quite frank, the personal nature of the birth footage, 7 the district court

was correct to prevent the video from becoming disproportionately

7The birth video captured the reality of T.D.’s delivery, which upon its first
publication to the jury, caused one juror to “apparently [become] faint—fainted, or
[become] ill.”
35

important in the face of vast expert opinions. The district court did not

abuse its discretion by limiting access to the birth video.

IV. Conclusion.

For the aforementioned reasons, we affirm the district court’s

judgment. Specifically, we conclude the district court did not commit

reversible error in the specifications of negligence it submitted to the jury.

We determine Dr. Widmer’s CME records were not admissible to show a

breach in the standard of care. However, although it was an abuse of

discretion for the district court to prohibit the use of CME records as

impeachment evidence, the error was harmless. Further, defendants’

expert opinion testimony was properly disclosed and did not reflect an

opinion in anticipation of litigation. We also conclude the district court

did not abuse its discretion by limiting the jury’s access to the birth video.

AFFIRMED.

All justices concur except Waterman, J., who takes no part.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4450175. Public record. Not legal advice.