Robyn Mengwasser v. Joseph Comito and Capital City Fruit Company

IN THE COURT OF APPEALS OF IOWA

No. 19-1983
Filed April 14, 2021

ROBYN MENGWASSER,
Plaintiff-Appellant,

vs.

JOSEPH COMITO and CAPITAL CITY FRUIT COMPANY,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

Plaintiff Robyn Mengwasser appeals the district court’s denial of her motion

for a partial new trial. AFFIRMED.

Bruce H. Stoltze and John Q. Stoltze of Stoltze & Stoltze, PLC, Des Moines,

and Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des

Moines, for appellant.

Jeffrey D. Ewoldt and Jessica A. Eglseder of Hopkins & Huebner, P.C., Des

Moines, for appellees.

Heard by May, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

Robyn Mengwasser appeals the denial of her motion for a partial new trial.1

Mengwasser’s motion followed a jury trial on her personal injury claim against

Joseph Comito and Capital City Fruit Company.2 Mengwasser’s claim arose from

a 2015 car accident. Comito, driving a company vehicle owned by Capital City

Fruit Company, rear-ended Mengwasser while her vehicle was stopped at an

intersection. The jury found the defendants at fault and awarded Mengwasser total

damages of $12,705: $10,950 for past pain and suffering and $1755 for past loss

of function of mind and body. The jury awarded no damages for future medical

expenses, future pain and suffering, future loss of function of mind and body, or

future loss of earning capacity.

Supporting her request for a new trial on damages only, Mengwasser

presents five claims of error on appeal, tracking the claims she presented in her

motion for a partial new trial. She claims the district court erred by (1) limiting the

testimony of Dr. Randy Dierenfield; (2) refusing to submit an eggshell plaintiff

instruction to the jury; (3) refusing to grant a partial new trial on the basis the jury

verdict was logically inconsistent; (4) granting Comito’s second motion in limine,

excluding evidence of medical treatment Mengwasser received shortly before trial;

and finally, (5) granting in part Comito’s post-trial application for taxation of costs

under Iowa Code chapter 677 (2019).

1 Mengwasser asks we remand this case for a partial new trial to address whether
she was entitled to future damages, while leaving the verdict undisturbed as to
Comito’s fault and past damages.
2 At times, we use “Comito” to refer to just Joseph Comito and other times we use

it to refer to both defendants collectively.
3

I. Factual Background and Earlier Proceedings.

On September 28, 2015, Mengwasser was stopped at an intersection when

Comito rear-ended her. Comito estimates his speed was five miles per hour at the

time of impact. Vehicle damage was minor. Mengwasser and Comito pulled into

a nearby parking lot to discuss the accident and exchanged contact information.

Neither party reported injuries or contacted police or paramedics. Mengwasser

experienced neck pain later that night and sought treatment at an emergency

department.3 She continued receiving treatment for neck pain up to the time of

trial.

About two years later, Mengwasser filed a petition at law and jury demand4

seeking damages for past and future (1) medical expenses; (2) physical and

mental pain and suffering; (3) loss of wages and future earning capacity; and (4)

loss of mind and body. Comito answered denying the claims and asserting certain

affirmative defenses.

Several important deadlines originated from the trial scheduling and

discovery plan. The dates important to the appeal issues are part of this procedural

timeline:

On November 26, 2018, Mengwasser’s expert designations were due.

Mengwasser filed her first designation of expert witnesses, designating “all treating

3 The emergency department providers assessed Mengwasser on the date of the
accident and determined she was experiencing acute neck pain. Providers took a
CT scan of the cervical spine and found Mengwasser had cervical spinal stenosis,
meaning narrowing of the spinal canal. Her condition had worsened since a
previous CT scan in 2006. Mengwasser was discharged that night and told to
follow up with a primary care provider.
4 The petition was amended in December 2018.
4

medical personnel identified in discovery and medical records as percipient5

witnesses.” (Emphasis added.) This included her chiropractor, Dr. Randy

Dierenfield, who provided treatment from 2015-2019. She also designated Dr.

Jacqueline Stoken, a non-treating physician, as an expert witness.

On December 26, 2018, Mengwasser’s expert witness disclosures and

reports were due. Dr. Stoken’s report, following her July 2018 independent

medical examination of Mengwasser, was timely produced. No other expert

reports were served.

On January 25, 2019, Comito’s expert designations were due.

On February 24, 2019, Comito’s expert witness disclosures were due.

On, March 4, 2019, Mengwasser produced a February 22, 2019 report

authored by Dr. Dierenfield. Dr. Dierenfield treated Mengwasser from 2015-2019.

The report contained his opinions on causation as well as Mengwasser’s loss of

function and ability to work.

On March 12, 2019, Comito offered to confess judgment for the sum of

$25,000.

On March 26, 2019, Mengwasser designated rebuttal expert witnesses.

On May 29, 2019, Comito moved to exclude the newly designated rebuttal

witnesses and Dr. Dierenfield’s opinions on causation and permanency of injury,

5 Merriam-Webster dictionary defines percipient as “one that perceives.”
Percipient, Merriam-Webster, https://www.merriam-webster.com/dictionary/
percipient (last visited Mar. 8, 2021).
5

noting that only Dr. Stoken’s expert opinions were timely produced by the

December 26, 2018 deadline.6

On May 30, 2019, Mengwasser served her second supplemental answer to

interrogatories alerting Comito to a follow-up appointment with Dr. Michael

Jackson on May 29. She also gave notice of an MRI scheduled for early June. No

records were produced related to this treatment.

On June 14, 2019, the district court granted Comito’s May 29 motion in its

entirety, excluding the opinions of Dr. Dierenfield on causation and permanency.7

On June 17, 2019, in a second motion in limine, Comito moved to exclude

evidence of new medical treatment produced “at the eleventh hour before trial.”

Six days later, on June 23, 2019, Mengwasser produced exhibit 21, which

contained ninety-eight pages of progress notes and the results from diagnostic

testing performed on various parts of her body. The district court excluded

evidence concerning the May 29, 2019 treatment report and the June 7, 2019 MRI

that were not previously produced until the day before trial.

Trial took place from June 24 through June 28, 2019. On July 1, the district

court entered judgment against Comito in the amount of $12,705.

With a verdict less than the $25,000 offer to confess judgment, Comito

moved to tax costs pursuant to Iowa Code chapter 677. Mengwasser contested

the application.

6 Comito also moved to strike a report produced on May 24, 2019, authored by
Scott Meyer, a physician’s assistant who provided treatment to Mengwasser, but
that ruling, which was favorable to Comito, is not a subject of this appeal.
7 Mengwasser does not appeal the district court’s order excluding the opinions

from three rebuttal experts.
6

Next, Mengwasser timely moved for a partial new trial pursuant to Iowa Rule

of Civil Procedure 1.1004. A hearing on both post-trial motions was held on August

21, 2019. On November 10, 2019, the court issued an order denying

Mengwasser’s motion for new trial and granting in part Comito’s application for

taxation of costs pursuant to section 677.10. This appeal followed.

II. Standard of Review and Preservation of Error.

As to Mengwasser’s first claim, arguing the court should not have granted

Comito’s motion to strike reports and opinion testimony of Dr. Dierenfield, we

review for an abuse of discretion.

We review a trial court’s decision to admit or exclude expert
testimony for an abuse of discretion. Thus, we will reverse a decision
by the district court concerning the admissibility of expert opinions
only when the record shows ‘the court exercised [its] discretion on
grounds or for reasons clearly untenable or to an extent clearly
unreasonable.’

Ranes v. Adams Lab’ys, Inc., 778 N.W.2d 677, 685 (Iowa 2010) (alteration in

original) (citation omitted) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

Comito agrees error was preserved on this issue.

Next, Mengwasser contends the court erred in declining to submit an

“eggshell plaintiff” instruction to the jury. Absent a discretionary component, we

review a trial court’s refusal to give a requested jury instruction for correction of

errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). “[W]e

will not reverse the district court’s failure to give a requested jury instruction unless

it prejudices the party requesting the instruction.” Ludman v. Davenport

Assumption High Sch., 895 N.W.2d 902, 920 (Iowa 2017). Comito agrees error

was preserved on this claim.
7

Third, pointing to the lack of future damages awarded, Mengwasser argues

the jury verdict was inconsistent and the district court erred by denying her motion

for a partial new trial on that ground. Error was preserved by Mengwasser’s motion

for partial new trial. “Generally, the trial court has some discretion when faced with

inconsistent answers in a verdict.” Clinton Physical Therapy Servs., P.C. v. John

Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). “However, the

question whether a verdict is inconsistent so as to give rise to the exercise of that

discretion is a question of law.” Id. Thus, we review for correction of errors at law.

Fourth, Mengwasser claims the district court erred in granting part of

Comito’s second motion in limine, excluding evidence of her most recent medical

treatment. Here, the ruling preventing any discussion of the medical records

during trial is treated as an evidentiary issue. Comito argues that error was not

preserved because Mengwasser never offered proposed exhibit 21, which

contained the records, into evidence and never received an evidentiary ruling. We

disagree. Mengwasser resisted Comito’s motion to exclude the recent medical

records at trial, and she included this claim in her motion for a partial new trial.

“We review evidentiary rulings for an abuse of discretion.” Anderson v. Khanna,

913 N.W.2d 526, 535 (Iowa 2018).

Finally, Mengwasser objects to the taxation of certain court costs. She

argues the court erred in granting Comito’s application for taxation of costs under

Iowa Code chapter 677, involving the videographer and videoconferencing fees

and the expert fees for the accident reconstruction experts. The parties dispute

whether error was preserved as to the expert fees. “We review the district court’s

interpretation of chapter 677 for legal error.” CSS2 Enter., Inc. v. Farmers Coop.
8

Co., No. 14-1686, 2015 WL 4935834, at *4 (Iowa Ct. App. Aug. 19, 2015). Then

to answer the question whether the deposition costs are “necessarily incurred,” we

review the district court’s determination for an abuse of discretion. EnviroGas, L.P.

v. Cedar Rapids/Linn Cnty. Solid Waste Agency, 641 N.W.2d 776, 786 (Iowa 2002)

(interpreting what costs were necessarily incurred under Iowa Rule of Civil

Procedure 1.7168).

III. Analysis.

A. Opinions of Dr. Dierenfield.

Our first task involves evaluating the district court’s discretionary call to limit

Dr. Dierenfield’s testimony. On March 4, 2019, Comito received an email from

Mengwasser including a report dated February 22, 2019, written by Dr. Dierenfield

in which he opined:

I have made the following conclusions as Robyn
Mengwasser’s chiropractor, and as part of my routine diagnosis and
treatment duties. I began treating Robyn in October of 2015 due to
injuries she sustained in a motor vehicle collision. Robyn initially
complained of neck pain due to a rear end collision in which she was
an unaware belted passenger of the vehicle impacted.
My initial diagnosis was a cervical strain/sprain. Robyn
reported that her time working on a computer as a duty under duress.
Robyn continued to receive chiropractic treatment at my office for
these injuries throughout the rest of 2015, 2016, 2017, 2018 and up
until the date of this report.
Although Robyn’s condition did improve during the course of
her treatment, she ultimately reached maximum chiropractic
improvement. In other words, Robyn’s condition can be prevented
from worsening with chiropractic treatment as needed, but she will
never fully recover from her injuries. . . .

8 Iowa Rule of Civil Procedure 1.716 provides:
Costs of taking and proceeding to procure a deposition shall
be paid by the party taking it who cannot use it in evidence until such
costs are paid. The judgment shall award against the losing party
only such portion of these costs as were necessarily incurred for
testimony offered and admitted upon the trial.
9

I have concluded at this time that Robyn’s pain and functional
limitations with respect to her cervical injury are more likely than not
the result of the September 2015 motor vehicle collision. Further, I
have concluded that her diminished functionality has impacted her
ability to perform her work since she is unable to sit for long periods
of time.

While Dr. Dierenfield was a treating doctor and Mengwasser timely

designated all treating doctors as expert witnesses, Mengwasser did not serve the

opinion report on causation and loss of function by the December 26, 2018

deadline. Comito moved to exclude Dr. Dierenfield’s report and preclude him from

testifying about causation and loss of function. Comito pointed to the requirements

under Iowa Rule of Civil Procedure 1.500(2)(b). Rule 1.500(2)(b) requires, in

addition to expert disclosures, a written report from witnesses “retained or specially

employed to provide expert testimony.” The report must contain:

(1) A complete statement of all opinions the witness will
express and the basis and reasons for them.
(2) The facts or data considered by the witness in forming the
opinions.
(3) Any exhibits that will be used to summarize or support the
opinions.
(4) The witness’s qualifications, including a list of all
publications authored in the previous ten years.
(5) A list of all other cases in which, during the previous four
years, the witness testified as an expert at trial or by deposition.
(6) A statement of the compensation to be paid for the study
and testimony in the case.

Mengwasser argues rule 1.500(2)(b) does not apply because Dr.

Dierenfield was not an expert retained in anticipation of litigation. Instead, she

asserts Dr. Dierenfield was simply her treating physician and thus qualifies as a
10

witness who did not need to provide a written report under rule 1.500(2)(c).9 More

specifically, because Dr. Dierenfield was not an “expert,” Mengwasser did not need

to submit his written report under rule 1.500(2)(b); instead service of the report on

March 4 amounted to an expert disclosure submitted within ninety days of trial in

compliance with rule 1.500(2)(d).10

But the label assigned to the physician does not necessarily dictate their

role for litigation purposes. See Morris-Rosdail v. Schechinger, 576 N.W.2d 609,

612 (Iowa Ct. App. 1998) (noting a treating physician may begin to assume the

expert role “when a treating physician begins to focus less on the medical

questions associated in treating the patient and more on the legal questions which

surface in the context of a lawsuit”). And a treating physician “ordinarily is not

required to formulate [an opinion on causation] in order to treat the patient.”

Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 482 (Iowa 2004).

Mengwasser maintains Dr. Dierenfield did not form the opinions and

conclusions of law stated in his February 2019 report in anticipation of litigation.

Rather, she argues Dr. Dierenfield formed his opinions and conclusions through

the course of his treatment of her from 2015 up to the start of trial. And at oral

9 Rule 1.500(2)(c) states:
Witnesses who do not need to provide a written report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(1) The subject matter on which the witness is expected to
present evidence . . . .
(2) A summary of the facts and opinions to which the witness
is expected to testify.
10 Under rule 1.500(2)(d)(1), “A party must make [expert] disclosures at the times

and in the sequence set forth in the court’s trial scheduling order. If not
otherwise ordered, expert disclosures shall be due: [n]o later than 90 days before
the date set for trial . . . .”
11

argument, Mengwasser directed us to Dr. Dierenfield’s initial notes following the

collision.11 But after a full review of the treatment records, other than the first

reference to her car accident, Dr. Dierenfield does not directly tie his treatment to

any particular cause or tie Mengwasser’s loss of function to the 2015 car accident.

At trial, Dr. Dierenfield summarized his knowledge of the cause of injuries as

follows:

Q. Doctor, you’ve not offered an opinion in your treatment
notes as far as the cause of this condition; correct? A. On day one
when I formed the notes, that was everything that the patient said.
So I, apparently, don’t have anything in the notes saying that.
Q. Okay. And so what the patient reported to you was what
you consider the subjective complaint; correct? A. Correct.
Q. And it’s kind of something you just take her word for it?
A. Right.

Likewise, because she was at maximum medical improvement, Dr. Dierenfield

testified he released Mengwasser from his care in May 2018. Thus, the opinions

developed in the February 2019 report were not arrived at as a necessary part of

Mengwasser’s ongoing treatment. Instead, the doctor’s later produced report

addresses subjects that are within the scope of expert testimony. See Day v.

McIlrath, 469 N.W.2d 676, 677 (Iowa 1991) (“We believe a treating physician

ordinarily focuses, while treating a patient, on purely medical questions rather than

on the sorts of partially legal questions (such as causation or percentage of

disability) which may become paramount in the context of a lawsuit.”).

11 The treatment notes, authored by Dr. Dierenfield on October 5, 2015, reference
Mengwasser’s belief that the car accident was the cause of her injuries. The doctor
addressed an article generally discussing how rear-end collisions can cause
greater injuries to unaware passengers with fastened seatbelts, but he did not
explicitly say this was the case with Mengwasser. He did not conclude at that point
in treatment that her symptoms were permanent.
12

Comito offered no objection to testimony by Dr. Dierenfield about the

treatment of Mengwasser. To that subject matter, the court agreed Dr. Dierenfield

could testify. The district court, granting Comito’s motion to strike, stated:

Contrary to plaintiff’s assertions, Dierenfield’s opinions (as to
causation and loss of function and its impact on plaintiff’s ability to
perform her work) . . . were not formed or stated during the course of
[his] treatment of plaintiff and certainly were not disclosed or even
revealed in their respective medical records as of plaintiff’s
December 26, 2018 deadline for making expert disclosures.
Therefore, defendants’ motion to strike is GRANTED as to those
specific opinions. However, it should be noted that the foregoing
ruling does not prohibit said witnesses’ testimony regarding their
actual medical treatment of plaintiff.

(Emphasis added).

Absent the late report, Dr. Dierenfield focused on the treatment of

Mengwasser and with the report, “assume[d] a role in litigation analogous to . . . a

retained expert” offering opinions and conclusions as to causation and loss of

function. See Day, 469 N.W.2d at 677. His opinions and conclusions were not

produced until March 4, 2019, well past the December 26, 2018 deadline for

disclosure of expert reports. Because those expert opinions came late and the

district court did not preclude Dr. Dierenfield from testifying about his treatment,

we find no abuse of discretion.

B. The “Eggshell Plaintiff” Instruction.

Mengwasser requested an “eggshell plaintiff” jury instruction, modeled after

Iowa Civil Jury Instruction 200.34 (titled previous infirm condition), stating:

If Robyn Mengwasser had a neck injury making her more
susceptible to injury than a person in normal health, then the
defendant is responsible for all injuries and damages which are
experienced by Robyn Mengwasser that are caused by defendant’s
actions, even though the injuries claimed produce a greater injury
13

than those which might have been experienced by a normal person
under the same circumstances.

Comito argued successfully that the instruction was not warranted from the

evidence presented. Mengwasser contends the degenerative disc disease found

in her neck was a previous infirmed condition making her an “eggshell plaintiff.”

Because of that status she asserts her neck was more susceptible to injury and

the jury should have been so instructed.

“Iowa law requires a court to give a requested jury instruction if it correctly

states the applicable law and is not embodied in other instructions.” Sonnek v.

Warren, 522 N.W.2d 45, 47 (Iowa 1994). “The verb ‘require’ is mandatory and

leaves no room for trial court discretion.” Alcala, 880 N.W.2d at 707. Courts may

only submit an issue to the jury if supported by substantial evidence. See Kinseth

v. Weil-McLain, 913 N.W.2d 55, 75 (Iowa 2018). “Evidence is substantial enough

to support a requested jury instruction when a reasonable mind would accept it as

adequate to reach a conclusion.” Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa

1996). “In weighing the sufficiency of the evidence, we give it the most favorable

construction it will bear in favor of the party seeking submission.” Id.

To establish sufficient proof to submit the instruction, Mengwasser directs

us to an excerpt from a report authored by one of her expert witnesses, Dr. Stoken.

In addressing whether Mengwasser had “any preexisting symptomatic or

nonsymptomatic conditions that were aggravated by the collision,” Dr. Stoken

answered, “Robyn did have neck pain from 2006-2008. She had mild degenerative

disc disease in the cervical spine which was materially aggravated by the collision.”

In addition, Dr. Stoken testified at trial:
14

Q. Did you form any conclusions with respect to any
symptomatic or nonsymptomatic preexisting conditions that Robyn
may have, and were those aggravated by this collision in 2015?
A. She does have a mild degenerative disc disease in the cervical
spine, but it was—and it was materially aggravated by the collision.
Q. What is degenerative disc disease, Dr. Stoken? A. That’s
some arthritis that’s occurring, and the disc—what happens is that
the disc, when you’re young, is full of water, and it’s nice and puffy.
But as we age, it gets harder and loses the water, so it becomes—
so you start developing some arthritis.
Q. Is that something that typically everyone has? A. Yes.

And Mengwasser points to an excerpt from a report authored by Comito’s expert,

Dr. Todd Harbach, who performed an independent medical evaluation of

Mengwasser. He opined:

[She] shows degeneration, predominantly at the C5-6 disk
space. It was degenerative in year 2007/2008, and follow up studies
at the time of her accident showed further degeneration of that disk
level. [She] also demonstrated facet joint arthrosis at multiple levels
which were also noted in her earlier studies in 2007/2008. . . .
....
I believe it is a reasonable deduction that the motor vehicle
accident sustained on September 20, 2015, aggravated [her]
preexisting degenerative conditions. . . .
....
The aggravation cannot be objectively identified on any study
[that was done after the accident]. I do not believe that the injury
accelerated her to . . . an end that she would not have reached
naturally on her own.

Based on this record the district court instructed the jury on the law concerning an

aggravated injury.12 See Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 577

12 Instruction 15 provided:
If you find Robyn Mengwasser had a physical ailment or
disability before the subject collision was aggravated by the subject
collision causing further suffering then she is entitled to recover
damages caused by the aggravation. She is not entitled to recover
for any physical ailment or disability which existed before the subject
collision or for any injuries or damages which she now has which
were not caused by the subject collision
15

(Iowa 1997) (noting the distinction “between ‘a pre-existing condition’ that was

made worse, i.e. aggravated, by the accident, and ‘a prior condition’ that made the

plaintiff more susceptible to injury”). After reviewing the evidence, the district court

confirmed there was not sufficient evidence warranting the instruction, stating:

Then getting back to plaintiff’s one objection which was the
failure to include the previous-infirmed condition instruction, there is
no evidence that the court can recall, nor has any evidence been
identified by either of the parties, that would indicate where there was
any opinion given by an expert witness and I think that’s what would
be required here that there was any kind of previous condition that
Miss Mengwasser had that made her more susceptible to the injuries
that she allegedly suffered in the accident in question. I don’t think
that that’s anywhere in the record and so that’s why I am not
including that instruction.

We agree with the district court. The eggshell plaintiff rule is an exception to the

general rule, applying “only when the pain or disability arguably caused by another

condition arises after the injury caused by the defendant’s fault has lighted up or

exacerbated the prior condition.” Waits, 572 N.W.2d at 577. But evidence is

required to establish that the pain or disability is greater than the injured person

would have suffered in the absence of the prior condition. Id. at 578. Here, no

substantial evidence tied Mengwasser’s prior condition to a greater susceptibility

to injury. See Benn v. Thomas, 512 N.W.2d 537, 540 (Iowa 1994) (holding

eggshell plaintiff instruction properly given where plaintiff introduced substantial

medical testimony of enhanced risk of injury because of prior infirm condition);

Bowers v. Grimley, No. 08-0484, 2009 WL 139570, at *9 (Iowa Ct. App. Jan. 22,

2009) (refusing to give eggshell plaintiff instruction without substantial medical

evidence that plaintiff was more susceptible to injury due to pre-existing condition).
16

Because the instruction was not supported by the evidentiary record, we

find no error in the district court’s refusal to give the jury an eggshell plaintiff

instruction.

C. Inconsistent Verdict.

For her next claim of error, Mengwasser argues the court erred in denying

her motion for a partial new trial because the jury verdict was inconsistent. Based

on the evidence at trial, she claims it was logically inconsistent for the jury to award

zero damages for future medical expenses, future pain and suffering, future loss

of function of mind and body, and future loss of earning capacity. Mengwasser

rests her claim on the repeated assertion that all the doctors involved in this case

agreed her injuries were permanent.

A new trial may be granted, and the jury verdict set aside,
when the verdict is so logically and legally inconsistent it is
irreconcilable in the context of the case. In assessing whether the
jury verdict is inconsistent, we are mindful that a jury’s verdict is to
be liberally construed to give effect to the intentions of the jury and
to harmonize the verdict if possible. The test is whether the verdict
can be reconciled in any reasonable manner consistent with the
evidence, its fair inferences, and in light of instructions of the court.

Kalvik ex rel. Kalvik v. Seidl, 595 N.W.2d 136, 139 (Iowa Ct. App. 1999) (citations

omitted).

As the finder of fact, juries are free to accept or reject evidence presented

during a trial. See Blume v. Auer, 576 N.W.2d 122, 125-26 (Iowa Ct. App. 1997).

While Dr. Stoken’s testimony was much more conclusive, as she believed

Mengwasser’s injuries were permanent, the jury did not have to accept it. “[A] jury

is free to accept or reject any testimony, including uncontroverted expert

testimony.” Crow v. Simpson, 871 N.W.2d 98, 105 (Iowa 2015). And contrary to
17

Mengwasser’s position, there was disagreement among the expert witnesses

(namely Dr. Harbach and Dr. Stoken) regarding permanent injury. Dr. Harbach’s

opinion regarding Mengwasser’s degree of permanent injury was far more

nuanced than she suggests. Relying on his experience and his medical

examination of Mengwasser, Dr. Harbach stated in his report, “I would expect such

an injury to be a temporary aggravation, and it is unusual that the patient would

continue to have as many symptoms as she has today now three and one-half

years later.” When asked about this portion of the report, Dr. Harbach confirmed

it was “[s]tatistically very unlikely.” In his opinion, 97.5% of people with

Mengwasser’s injuries would recover. When asked directly whether he believed

Mengwasser’s injuries, conditions, or symptoms were permanent, Dr. Harbach

replied, “All right. So I went based on basically what she was telling me . . . she

thought that she had some permanency to her symptoms, although the records

don’t support that well or very well at all.” Instead, Dr. Harbach described

Mengwasser’s condition as “the normal progression of degeneration” or in other

words, natural aging of the body. Further, in his view, her condition would have

reached the same point despite the car accident.

What is more, some medical records conflicted with Mengwasser’s report

of continuing neck symptoms. During some medical appointments, Mengwasser

either reported being “much improved” or mentioned no issues with her neck when

asked to provide a present history of illness. And the jury heard that Mengwasser

suffered neck pain at times before the 2015 collision. So, even though

Mengwasser reported to Dr. Stoken her neck pain ranged from one to three out of
18

ten, with zero being no pain, a jury might assume Mengwasser was back to pre-

accident pain levels.

Here, there was conflicting testimony and evidence presented regarding

the permanency of Mengwasser’s injuries and symptoms. The district court found

the verdict to be “consistent with and adequately supported by the evidentiary

record created at trial.” A jury could evaluate the minor physical damage to the

vehicle, the conflicting medical record notations, and Mengwasser’s history and

current pain complaints and conclude the collision did not cause future injury or

damages. See Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 892

(Iowa 1996) (noting failure to award future damages even though past damages

were given is within the province of the jury). Here it was within the jury’s

discretion, based on substantial evidence from the record, to award zero damages

for future medical expenses, future pain and suffering, future loss of function of

mind and body, and future loss of earning capacity. In sum, we find the verdict

was consistent with the evidence a jury could believe and decline Mengwasser’s

invitation to disturb it.

D. Exclusion of Recent Treatment Evidence.

Before the June 24, 2019 trial, Mengwasser treated with Dr. Michael

Jackson on May 29 and underwent an MRI of her cervical spine on June 7.

Mengwasser alerted Comito of these appointments on May 30 by serving her

second supplemental answers to interrogatories. However, she did not produce

any records of these treatments until three days before trial. Under the trial

scheduling and discovery plan, exhibits were required to be exchanged seven days

before trial. Likewise, Dr. Jackson was not on the trial witness list for Mengwasser.
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Comito moved to preclude any testimony or other evidence regarding

Mengwasser’s recent medical treatment on the basis of unfair surprise and

emphasized:

[A]s of the date this Motion was filed, the medical records pertaining
to Plaintiff’s May 29 and June 7 appointments were not available to
Defendants. As such, Defendants’ counsel has insufficient
knowledge of what transpired at these visits; nor has Defendants’
medical expert, Dr. Harbach, been provided with these new records.
Dr. Harbach completed his independent medical exam of Plaintiff on
March 22, 2019 and obviously did not have access to information
regarding the May 29 and June 7 medical visits before he prepared
his IME report.

Both parties made their case to the court on the first day of trial. Mengwasser

argued, “[T]his is something that has been reviewed by Dr. Stoken, and it doesn’t

change her opinions at all. So there’s no unfair prejudice in that sense.” She also

pointed to a supplemental report from Dr. Stoken sent to the defendants the day

before, in which Dr. Stoken stated she had reviewed the latest records.13 The court

conditionally granted Comito’s motion. “Well, I’m going to grant [Defendants’

motion], and let’s take that up before we see any of that evidence. I want to know

exactly what we’re talking about, and I want to have an opportunity to review her

report myself. So that is granted until we have revisited it.”

Later, during Dr. Stoken’s trial testimony, Mengwasser tried to elicit

testimony regarding the recent treatment. Comito objected, pointing to the court’s

earlier ruling. At this point Mengwasser modified her argument, “[M]y position is

simply this, Judge: Dr. Stoken was just asked about Robyn Mengwasser’s

deposition testimony with respect to future treatment. Dr. Stoken is aware of future

13 In the same report, Dr. Stoken also stated she reviewed records and reports
from two other individuals who were excluded as rebuttal witnesses.
20

treatment [Mengwasser] had since her deposition. I think that opens the door to

her answering those questions.” Ultimately, the court sustained Comito’s objection

to the exhibit, marked as exhibit 21, stating “there will be no further examination

. . . from this witness or any other as to the content of exhibit 21.”

Under the abuse-of-discretion standard, we find no abuse of discretion in

the court’s decision to exclude the evidence of recent treatment. See Hagenow v.

Schmidt, 842 N.W.2d 661, 670 (Iowa 2014) (confirming the trial court has broad

discretion related to rulings allowing or disallowing expert testimony challenged as

untimely), overruled on other grounds by Alcala, 880 N.W.2d at 708. With the

“eleventh hour” disclosure, Comito had no ability to rebut or comment on the new

evidence. All things considered, the jury heard references to recent treatment of

Mengwasser. Dr. Stoken testified Mengwasser required future medical treatment

and that she reviewed a May 29 record of recent treatment requiring an ultrasound.

And Mengwasser’s husband testified his wife sought treatment for her neck in the

“last few months” prior to trial, including an “ultrasound” test. Given the district

court’s broad discretion and its effort to balance the respective rights of the parties,

we find the court did not abuse its discretion in excluding the challenged evidence.

E. Taxation of Costs.

Finally, Mengwasser disputes the district court’s taxation of costs under

Iowa Code section 677.10. First, she argues she should not have been taxed for

costs related to videographer and videoconferencing fees incurred from the

depositions of Comito’s accident reconstruction experts. The first argument is
21

those expenses are not mentioned in Iowa Code section 625.14.14 Even so, that

section references “the necessary expenses of taking depositions.” Iowa Code

§ 625.14. But there are hurdles to clear in the effort to recover deposition costs.

And we have analyzed necessary deposition costs that are permitted under Iowa

Rule of Civil Procedure 1.716. See Hughes v. Burlington N. R.R. Co., 545 N.W.2d

318, 322 (Iowa 1996) (noting deposition costs that are taxable from a failure to

accept an offer to confess judgment are limited to those allowed under Iowa Rule

of Civil Procedure 157(a), now numbered rule 1.716). First, “for a party to recover

the cost of a deposition at the conclusion of a trial, the deposition must be

introduced into evidence either in whole or in part.” Long v. Jensen, 522 N.W.2d

621, 624 (Iowa 1994). Here, the videotaped depositions were introduced in whole

during the trial. The court’s post-trial order concerning taxation of costs stated:

Defendants seek to have taxed as costs the expenses
incurred for obtaining the testimony, by video deposition, of Dr.
Harbach of Iowa Orthopedic and of Messrs. Sebastian Bawab and
Michael Woodhouse of Vector Dynamics. Pursuant to [rule] 1.716,
these expenses would include only such portions of said video
depositions as were necessarily offered and admitted at trial.
However, it is undisputed that the entire video depositions of each of
these three witnesses were offered and admitted at trial herein.

Once the threshold requirement involving the use of the deposition at trial

is met, we afford the district court discretion to tax the deposition expense as a

cost. See Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986). Still Mengwasser

14 Section 625.14 provides:
The clerk shall tax in favor of the party recovering costs the
allowance of the party’s witnesses, the fees of officers, the
compensation of referees, the necessary expenses of taking
depositions by commission or otherwise, and any further sum for any
other matter which the court may have awarded as costs in the
progress of the action, or may allow.
22

contends the district court had no authority to tax videotaping and video services

as allowable deposition costs. This is not the first time video expenses have been

taxed as costs in Iowa. See, e.g., Lake v. Schaffnit, 406 N.W.2d 437, 442 (Iowa

1987) (finding no abuse of discretion in trial court taxing cost of video deposition

to unsuccessful party under Iowa Code section 625.3); In re Estate of Hetrick,

No. 11-1702, 2012 WL 3860749, at *3-4 (Iowa Ct. App. Sept. 6, 2012) (allowing

charge for videotaping services as necessary expense); Doty v. Olson, No. 09-

1852, 2010 WL 5050565, at * 5 (Iowa Ct. App. Dec. 8, 2010) (confirming video

deposition expense as a taxable cost to unsuccessful party under Iowa Code

section 677.10). With that guidance, we find no abuse of discretion by the district

court in taxing as costs the videoconferencing and videographer expenses.

For the first time in her appellate brief, Mengwasser develops an argument

that the fees related to testimony from crash reconstruction experts hired by

Comito should not be taxed because the testimony was not necessary to the jury’s

decision. Granted the jury found Comito was at fault in causing the accident. But

our rules of error preservation prohibit our consideration of this new theory. See

State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the

law of appeal and error than the axiom that a party cannot sing a song to us that

was not first sung in trial court.”). While Mengwasser objected to the costs of the

video depositions of Comito’s accident reconstruction experts, the only argument

advanced was that depositions were not admitted into evidence and that chapter

625 did not allow taxation of videographer fees. “We will not affirm a ruling on a

ground not urged in the district court.” Even so, we find Mengwasser’s argument

unpersuasive.
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IV. Conclusion.

Based on the above analysis, we affirm the district court’s order denying

Mengwasser’s motion for a partial new trial.

AFFIRMED.