Douglas Wilson and Jane Wilson v. Shenandoah Medical Center

IN THE COURT OF APPEALS OF IOWA

No. 23-0509
Filed July 24, 2024

DOUGLAS WILSON and JANE WILSON,
Plaintiffs-Appellees,

vs.

SHENANDOAH MEDICAL CENTER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Page County, Margaret Reyes,

Judge.

Shenandoah Medical Center appeals the district court’s denial of its motion

for summary judgment. AFFIRMED.

Jennifer E. Rinden, Vincent S. Geis, and Nancy J. Penner of Shuttleworth

& Ingersoll, PLC, Cedar Rapids, for appellant.

Jessica A. Zupp of Zupp and Zupp Law Firm, Denison, Gary T. Gee of Gary

Gee Law Office, Shenandoah, and Andrew D. Sibbernsen of Sibbernsen Law Firm,

PC, Omaha, Nebraska, for appellees.

Considered by Badding, P.J., Langholz, J., and Bower, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

BOWER, Senior Judge.

Shenandoah Medical Center appeals the district court’s denial of its motion

for summary judgment for failure to timely file an expert witness designation. Upon

review, we affirm.

I. Background Facts and Proceedings

In December 2021, Douglas and Jane Wilson filed suit against Shenandoah

Medical Center (SMC), alleging SMC committed medical malpractice in its care

and treatment of Douglas relating to a hip replacement. On January 20, 2022,

SMC filed an answer. On February 1, the Wilsons filed a certificate of merit under

Iowa Code section 147.140 (2021), in which registered nurse Jenny Beerman

opined “nurses, agents, and employees, working at [SMC] breached the standard

of care in caring for and treating Douglas Wilson following his December 30, 2019,

right hip replacement procedure.”

On March 1, the parties filed a trial scheduling and discovery plan. Among

other provisions, it stated the Wilsons would designate their expert witnesses by

“210 days before trial or by September 1, 2022,” and SMC would designate its

witnesses by “150 before trial or by December 1, 2022.” On March 8, SMC filed a

motion to “extend the trial scheduling time standards in this case to allow this case

to be scheduled beyond December 2023 and specifically for July 23–29, 2024.”

The motion further stated, “Defense counsel has communicated with Plaintiffs’

counsel in good faith. Plaintiffs’ counsel has indicated he intends to resist this

motion but he is available for trial July 23–29, 2024.” Following a hearing on SMC’s

motion to extend trial deadlines, the court entered an order finding “good cause for

the motion” and ordered the trial be scheduled in July 2024. The court set a status
3

hearing for December 8 to confirm the trial date and schedule a pre-trial

conference.

On November 30, SMC filed its designation of expert witnesses. On the

same date, SMC filed a motion for summary judgment based on the Wilsons’

failure to timely file its expert-witness disclosure. See Struck v. Mercy Health

Servs.–Iowa Corp., 973 N.W.2d 533, 539 (Iowa 2022) (“It is well settled that expert

testimony is required to prove professional negligence claims against healthcare

providers.”).1 On December 2, the Wilsons filed an expert-witness disclosure

naming Beerman as their expert. The Wilsons resisted SMC’s motion for summary

judgment, asserting substantial compliance and good cause for missing the expert-

designation deadline, as well as lack of prejudice to SMC.

Following a hearing, the district court entered an order denying SMC’s

motion. SMC filed an application for interlocutory appeal, which our supreme court

granted and transferred to this court for disposition.

II. Standard of Review

We review orders concerning summary judgment for correction of errors at

law. Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 544 (Iowa 2018). Here,

however, the court denied SMC’s motion based on its finding good cause excused

the Wilsons’ deviation from the expert-witness deadline. When reviewing “good

cause” determinations under Iowa Code section 668.11 (2021), “[t]he scope of our

review is for abuse of discretion.” Hantsbarger v. Coffin, 501 N.W.2d 501, 505

1 The question of whether expert-witness testimony is required to substantiate the

Wilsons’ claims against SMC is not before us on appeal. Cf. Struck, 973 N.W.2d
at 539 n.4 (noting two exceptions to the expert-witness requirement).
4

(Iowa 1993); see also McGrew v. Otoadese, 969 N.W.2d 311, 319 (Iowa 2022)

(reviewing the district court’s admission of expert testimony under Iowa Rule of

Civil Procedure 1.500(2) for abuse of discretion). The district court has “broad

discretion in ruling on whether to extend the time allowed for parties to designate

expert witnesses . . . , and the exercise of that discretion will not be disturbed

unless it was exercised on clearly untenable grounds or to an extent clearly

unreasonable.” Hill v. McCartney, 590 N.W.2d 52, 54–55 (Iowa Ct. App. 1998).

III. Discussion

In this interlocutory appeal, SMC challenges the district court’s denial of its

motion for summary judgment based on the Wilsons’ failure to timely file its expert-

witness disclosure. Iowa Code section 668.11(1)(a) requires a plaintiff alleging

medical malpractice to “certify to the court and all other parties the expert’s name,

qualifications and the purpose for calling the expert . . . within one hundred eighty

days of the defendant’s answer unless the court for good cause not ex parte

extends the time of disclosure.” Failure to timely designate an expert generally

bars the expert from testifying in the action “unless leave for the expert’s testimony

is given by the court for good cause shown.” Iowa Code § 668.11(2).

Because section 668.11 is a “procedural or remedial” statute,
it is subject to liberal interpretation. Only substantial, rather than
strict, compliance is required. “Substantial compliance is
‘compliance in respect to essential matters necessary to assure the
reasonable objectives of the statute.’” The purpose of section 668.11
is “to require a plaintiff to have his or her proof prepared at an early
stage in the litigation in order that the professional does not have to
spend time, effort and expense in defending a frivolous action.”

Jackson v. Cath. Health Initiatives, Inc., No. 22-1911, 2023 WL 5602863, at *2

(Iowa Ct. App. Aug. 30, 2023) (internal citations omitted).
5

Here, the parties agreed to the deadlines in the trial scheduling and

discovery plan, which stated the Wilsons would designate their expert witnesses

by “210 days before trial or by September 1, 2022.” The Wilsons designated their

expert on December 2, 2022. The Wilsons’ disclosure was untimely. Accordingly,

the central question before the district court was whether the Wilsons established

good cause for their delay.

For purposes of section 668.11, “good cause” is a “sound, effective,
truthful reason, something more than an excuse, a plea, apology,
extenuation, or some justification for the resulting effect. The movant
must show his failure to defend was not due to his negligence or want
of ordinary care or attention, or to his carelessness or inattention. He
must show affirmatively he did intend to [act] and took steps to do
so, but because of some misunderstanding, accident, mistake or
excusable neglect failed to do so. Defaults will not be vacated where
the movant has ignored plain mandates in the rules with ample
opportunity to abide by them.”

Reyes v. Smith, No. 21-0303, 2022 WL 1656238, at *2 (Iowa Ct. App.

May 25, 2022) (quoting Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998)). In

determining whether good cause exists for a plaintiff’s noncompliance with the

section 668.11 deadline, “the court considers three factors: (1) the seriousness of

the deviation; (2) the prejudice to the defendant; and (3) defendant’s counsel’s

actions.” See id.

SMC correctly notes delays equal to or shorter than three months have

been considered serious deviations. See Nedved, 585 N.W.2d at 240 (affirming

the rejection of an expert designation filed three months late); Reyes, 2022

WL 1656238, at *2 (“[A] delay of sixty-six days is substantial.”); see also Hill, 590

N.W.2d at 55 (affirming the rejection of an expert designation filed four months

late). The district court acknowledged as much, noting “Iowa courts have found a
6

three-month delay in filing an expert designation, as in the present matter, to be a

serious deviation.”

The district court further observed in Reyes, this court found “a late filing

deprives a defendant of the ‘strategic advantage under section 668.11 of knowing

the plaintiffs’ expert evidence before designating their own experts.’” (quoting

Reyes, 2022 WL 1656238, at *2). However, the court found “there are important

differences between Reyes and the present matter.” Specifically,

Here, the Wilsons argue that SMC is not prejudiced by their delay
because trial is not scheduled to occur until July 2024—a delay
requested by SMC’s counsel. And, unlike Reyes where defendants’
counsel “remained silent” as to the late disclosures, the Wilsons
argue that SMC acquiesced to the delayed disclosures by engaging
in extensive scheduling negotiations to conduct depositions both
before and after the Wilson[s’] September 1, 2022 deadline. Again,
scheduling was delayed by the unavailability of SMC’s counsel and
SMC continued working on the case even without the Wilson[s’]
expert designation.

The court therefore concluded, “Weighing the factors above coupled with

the facts of this matter, the court concludes that the Wilsons have established good

cause for their delayed disclosures under Iowa Code section 668.11.” The court

further found the Wilsons’ late disclosure of expert testimony was “harmless.” See

Iowa Rs. Civ. P. 1.500(2), .517(3)(a). The court stated, “For the reasons stated

above, the court considers the Wilsons’ failure to meet the disclosures harmless

considering the delayed trial date requested by SMC, the unavailability of SMC’s

counsel for depositions, and the lack of surprise or prejudice to SMC.”

Upon review, we find the record, including exhibits showing

correspondence between counsel and the relevant pleadings, supports the court’s

decision. In reaching this conclusion, we have considered our court’s decision in
7

Stanton v. Knoxville Community Hospital, Inc., No. 19-1277, 2020 WL 4498884,

at *4 (Iowa Ct. App. Aug. 5, 2020). In that case, the district court denied the

defendants’ motion for summary judgment after the plaintiff designated his expert

witness in May 2019—four months after the January deadline. Stanton, 2020

WL 4498884, at *1.

On interlocutory review, our court reversed the district court’s decision upon

concluding the record did not support the district court’s finding of good cause.

The court set forth “many circumstances that weigh[ed] against a finding of good

cause.” See id. at *3–4. Specifically, as relevant here, the court observed the

plaintiff “did not start looking for an expert until April 2, 2019—a year and a half

after he filed this lawsuit in September 2017, and almost three months after his

expert-designation deadline had already passed.” Id. at *3. The court stated

“during the winter of 2017–2018, both defendants served written discovery

responses on [the plaintiff, asking] for information about his experts,” but the

plaintiff “did not answer in a timely manner.” Id. at *1. The defendants continued

to “reach[] out to inquire about the status of [the plaintiff’s] responses,” including

an April 2018 email, in which defendant’s counsel stated in part: “Please let me

know when we can expect answers and responses [to our requests for production

and interrogatories]. I am especially interested in [a] list of medical providers, an

authorization to receive copies of Mr. Stanton’s medical records[,] and information

about your experts and claimed damages.” Id. The plaintiff provided his discovery

responses in August 2018, which “included no specifics about [his] retained

experts, if any,” and instead stated, “Any and all medical providers contained in the

medical records. Records include the information being requested. To be
8

supplemented at a later date if additional experts are necessary.” Id. The plaintiff

did not provide any additional information; his expert-witness designation deadline

expired in January 2019, after which his “lawyer’s office began making inquiries

into potential experts” four months later, in April. Id.

Our court observed the plaintiff’s “deadline was clear” and “emails between

the lawyers show[ed his] counsel was actually aware of [it]”; the plaintiff had “ample

opportunity to comply with the deadline”; and the “[d]efendants’ counsel made

multiple efforts—both through discovery requests and follow-up emails—to obtain

from [the plaintiff] information about his expert.” Id. at *3. The court also noted the

defendants suffered “at least some prejudice” by having to designate experts

before the plaintiff. Id. (noting further the plaintiff gained “the strategic advantage

of seeing his opponent’s expert materials before he had to designate”). Finally,

we observed the district court “erroneously concluded defendants’ counsel’s

actions supported a finding of good cause.” Id. at *4 (finding the court “misapplied”

the defense-counsel-action factor: “The district court noted that defense counsel

‘waited for the time period [for designating experts] to pass and then used

[p]laintiff’s late designation as a means to seek summary judgment.’ We take this

to mean the district court believed the defendants should have waited longer

before filing their motions for summary judgment. . . . [However,] we believe

defense lawyers are fully justified in moving forward with motions for summary

judgment [under these circumstances].”).

In contrast, here, the Wilsons filed suit against SMC in December 2021. On

February 1, 2022, the Wilsons filed their certificate of merit setting forth the opinion

of nurse Beerman relating to SMC’s breach of the standard of care. The parties
9

filed a trial scheduling and discovery plan, stating the Wilsons would designate

their expert witnesses by “210 days before trial or by September 1, 2022.” The

next week, SMC filed a motion to extend the case processing deadlines, stating in

part:

Defendant requests that the Court extend the trial scheduling time
standards in this case to allow this case to be scheduled beyond
December 2023 and specifically for July 23–29, 2024. Good cause
supports this request. Defense counsels’ trial calendars do not
permit an earlier trial date. . . . In addition, this is a medical
malpractice case. There will be a number of experts designated by
the parties. Completing discovery, including expert designations and
expert discovery, will require a substantial amount of time, which
further supports a trial date within the extension timeline of a complex
civil case under [Iowa Rule of Civil Procedure] 23.2(2).

On March 29, over the Wilsons’ resistance, the court entered an order finding

“good cause” for SMC and ordered the trial be scheduled in July 2024. The court

set a status hearing for December 2022 to confirm the trial date and schedule a

pre-trial conference.

On May 9, SMC served written discovery requests on the Wilsons. On June

13, the Wilsons provided their discovery responses, which included information

about the Wilsons’ proposed expert witnesses. For example, in response to

interrogatory number 16, which requested “the name, address, telephone number,

and employer’s name, address and telephone number of each person you expect

to call as an expert witness . . . at trial,” the Wilsons stated:
10

Meanwhile, the Wilsons asked SMC about scheduling depositions, stating,

“Hopefully we aren’t having to look too far in to the fall.” Correspondence between
11

the parties’ attorneys about scheduling depositions continued right up to the date

SMC filed its designation of expert witnesses and motion for summary judgment.

We observe the legislative intent behind the Iowa Code section 668.11

requirement “was to provide certainty about the identity of experts and prevent last

minute dismissals when an expert cannot be found.” Hantsbarger, 501 N.W.2d

at 504. This is not a situation in which the court’s exercise of discretion defeats

the purpose or intent of section 668.11. But see Stanton, 2020 WL 4498884, at *3

(“Stanton gained—and defendants lost—the strategic advantage of seeing his

opponent's expert materials before he had to designate. That is the opposite of

what the parties had agreed to. It is also the opposite of the legislature’s plan as

reflected in section 668.11(1)(b). It plainly anticipates defendants will not have to

designate until after plaintiffs.”). Nor is this a situation in which the Wilsons have

“shown little more than want of ordinary care or attention in missing the expert-

designation deadline.” Cf. Reyes, 2022 WL 1656238, at *2. Because the decision

to not bar the Wilsons from designating an expert witness was within the district

court’s discretion, the court did not err in denying SMC’s motion for summary

judgment.

AFFIRMED.

Badding, P.J., concurs; Langholz, J., dissents.
12

LANGHOLZ, Judge (dissenting).

In malpractice cases against a licensed professional, Iowa law generally

requires plaintiffs to “certify to the court and all other parties” the “name,

qualifications and the purpose for calling” any expert witness within 180 days “of

the defendant’s answer.” Iowa Code § 668.11(1) (2021). If a plaintiff fails to make

this certification, “the expert shall be prohibited from testifying in the action unless

leave for the expert’s testimony is given by the court for good cause shown.” Id.

§ 688.11(2). And so, in a case in which an expert is necessary to prove the claim—

like most medical malpractice cases—this failure makes summary judgment

dismissing the case appropriate. See Thomas v. Fellows, 456 N.W.2d 170, 173

(Iowa 1990).

The plaintiffs here—Douglas and Jane Wilson—failed to file their expert

certification on time. After waiting an extra three months or so past the Wilsons’

deadline, Shenandoah Medical Center (“SMC”) thus moved for summary judgment

on the ground that the Wilsons needed an expert and were barred from calling

one. The Wilsons offered no reason for their failure to comply with the statute—

indeed, they already had their expert lined up—aside from blaming SMC for sitting

“silent about the deadline” and continuing to engage with them on deposition

scheduling after the deadline passed. Yet the district court found this was good

cause and denied SMC’s motion for summary judgment.

True, a district court has wide discretion in making a good-cause decision

under section 668.11. But I agree with our court’s opinion in Stanton v. Knoxville

Community Hospital, Inc., No. 19-1277, 2020 WL 4498884 (Iowa Ct. App. Aug. 5,

2020), that the discretion is not limitless. And the same two key concerns that led
13

us to reverse because that limit was exceeded in Stanton are present here:

“(1) [the Wilsons have] not shown a valid reason for [their] failure to timely

designate [their] expert; and (2) the district court erroneously concluded

defendants’ counsel’s actions supported a finding of good cause.” Id. at *4. So I

would follow Stanton and reverse the district court’s denial of the motion for

summary judgment on the just-cause ground and remand for consideration of

SMC’s argument that the case must be dismissed for lack of an expert witness.

I.

Our supreme court has interpreted “good cause” under section 668.11

consistent with its meaning in the context of setting aside a default judgment. See

Donovan v. State, 445 N.W.2d 763, 765–66 (Iowa 1989). It means a “sound,

effective, truthful reason, something more than an excuse, a plea, apology,

extenuation, or some justification for the resulting effect.” Id. at 766 (cleaned up).

“[C]arelessness or inattention” or “ignor[ance]” will not suffice—parties must show

that they intended to follow the statute “and took steps to do so, but because of

some misunderstanding, accident, mistake or excusable neglect failed to do so.”

Id. (cleaned up). Our court has also said that it’s appropriate to consider “the

seriousness of the deviation” from section 668.11’s requirements, “the prejudice to

the” opposing party, and the opposing “counsel’s actions.” Hill v.

McCartney, 590 N.W.2d 52, 56 (Iowa Ct. App. 1998).

We review a district court’s decision on good cause for abuse of discretion.

See Hantsbarger v. Coffin, 501 N.W.2d 501, 505 (Iowa 1993) (“[A] trial court has

broad discretion in ruling on such matters, and the exercise of that discretion will

ordinarily not be disturbed unless it was exercised on clearly untenable grounds or
14

to an extent clearly unreasonable.” (cleaned up)). But even so, appellate courts

have reversed decisions both excusing and refusing to excuse violations of section

668.11 for good cause. See Stanton, 2020 WL 4498884, at *3–6 (reversing

excusal); Hantsbarger, 501 N.W.2d at 505–06 (reversing refusal to excuse).

Our decision in Stanton shows the way for this appeal. There, as here, the

supreme court found that the district court’s denial of summary judgment and

excusal of a plaintiff’s section-668.11 violation warranted interlocutory review and

transferred the appeal to our court. See Stanton, 2020 WL 4498884, at *2; see

also Iowa Rs. App. P. 6.104(2), .1101(3). Just as here, the plaintiff “‘seriously

deviated’ from the deadlines”—the same three months at the time the defendants

there filed for summary judgment and one more by the time he submitted his tardy

certification—after “ample opportunity to comply” on time. Stanton, 2020 WL

4498884, at *3. And of “particular concern[]” to our prior panel, the plaintiff—same

as the Wilsons—failed to show “a valid reason for” this noncompliance. Id. at *4.

Despite all this, the district court in Stanton found good cause excused the

untimely expert certification, relying on its determination—also of special concern

to our prior panel—that “defense counsel’s actions weighed in favor of a finding of

good cause.” Id. The district court there was especially critical “that defense

counsel waited for the time period for designating experts to pass and then used

plaintiff’s late designation as a means to seek summary judgment.” Id. (cleaned

up). But then-Judge May, writing for a unanimous panel of our court, rejected this

reasoning, explaining that the district court misapplied the good-cause standard

because by waiting three months past the deadline, “defense counsel gave

Stanton ample opportunity to comply with his obligations before they finally moved
15

for summary judgment. They had no duty to wait longer or offer additional help to

their adversary. Stanton’s contrary view would turn defense counsel into their

‘brother’s keeper.’” Id. at *4 n.3.; see also Hantsbarger, 501 N.W.2d at 505

(rejecting suggestion “that opposing counsel must act as his or her ‘brother’s

keeper’”). And so we reversed the district court’s good-cause excusal. See

Stanton, 2020 WL 4498884, at *6. We should do the same again here.

To be sure, this case is not identical to Stanton in all respects. But unlike

the majority, I see the distinctions as either immaterial or cutting against—not in

favor of—finding good cause. For starters, it’s not clear that the Wilsons gave any

reason for their noncompliance—not even an unsound or ineffective one as in

Stanton (where the plaintiff’s counsel believed the deadline was in June rather than

January). See id. at *4. Instead, the Wilsons focused only on the conduct of

opposing counsel and the lack of prejudice. They argued that “Defendant misled

Plaintiffs about the seriousness with which the expert discovery deadline was

being treated,” explaining:

[E]ven in early September, when Plaintiffs inquired about depositions
again, Defendant sat silent about the deadline and eventually
offered, on October 25, 2022, to schedule depositions in January
2023, seemingly indicating that Defendant was not treating the
already-late-disclosure as fatal to Plaintiffs’ claims. If Defendant had
been in good faith treating that deadline seriously, then Defendant’s
October 25, 2022, email could have said: “You already missed your
expert designation deadline; we are not scheduling depositions now.
We are moving for summary judgment. Thank you.” Instead, the
emails said, “We are booked solid in November and December.
What does your January look like?”

Even if the Wilsons were intending for this to be a reason for their

noncompliance, just as in Stanton, I “cannot conclude” it “was a sound, effective,

truthful reason of the kind envisioned by Donovan.” Id. (cleaned up). The conduct
16

the Wilsons complain about is precisely the sort of normal, zealous advocacy one

would expect from opposing counsel. SMC’s counsel were under no duty to

preview their forthcoming summary-judgment motion to the other side—indeed,

doing so at the expense of their client’s possible ground for dismissing the case

might well have breached their ethical duties. See Iowa R. Prof’l Conduct 32:1.6(a)

(providing that generally “[a] lawyer shall not reveal information relating to the

representation of a client”); id. r. 32:3.1 cmt. 1 (noting an “advocate has a duty to

use legal procedure for the fullest benefit of the client’s cause” without abusing it);

see also id. r. 32:3.4 (listing duties that do exist to opposing party and counsel).

Nor was it misleading to engage in scheduling discussions after the Wilsons

missed the deadline. It was prudent, courteous, and ethical for SMC to keep the

litigation train moving since SMC did not know if the Wilsons would still file the

certification—just a little late or with a good reason for the delay. See id. r. 32:3.2

(“A lawyer shall make reasonable efforts to expedite litigation consistent with the

interests of the client.”). So too was it uncertain whether the court would grant its

potential summary-judgment motion or if it could get interlocutory review of a

denial. I would thus reiterate Stanton’s guidance that good cause cannot be based

on this type of conduct by opposing counsel and improperly relying on it is a basis

for reversal. See Stanton, 2020 WL 4498884, at *4–6. What’s more, I don’t see

how any conduct in September or later—after the Wilsons had already missed their

September 1 deadline—could ever be a reason for missing that deadline.

I concede that any prejudice to SMC is less than the prejudice in Stanton

since the Wilsons had filed a certificate of merit and shared some information about

their expected expert through discovery responses and trial was further off. But
17

“[l]ack of prejudice, by itself, does not excuse the [Wilsons’] late designation.”

Nedved v. Welch, 585 N.W.2d 238, 241 (Iowa 1998); see also Stanton, 2020

WL 4498884, at *3 n.2 (“Even if no prejudice had occurred, however, that would

not excuse Staton’s late designation.” (cleaned up)). And SMC did still suffer at

least some prejudice from having to file its expert certifications first before the

Wilsons. SMC thus lacked the certainty of knowing whether the Wilsons would be

certifying the same expert who signed the certificate of merit and was identified as

an expected expert in discovery (subject to “the right to supplement . . . at a later

time”) expressly granted by the statutory scheme. See Stanton, 2020

WL 4498884, at *4; see also Iowa Code §§ 668.11(1), 147.140(3) (reiterating in

the later-enacted certificate-of-merit statute that parties must still “comply with the

requirements of section 668.11”). So this distinction in prejudice cannot be a

ground to affirm the district court’s ruling.

Seeing little material daylight between this case and Stanton—and finding

the reasoning of Stanton sound and persuasive—I would thus follow it and reverse

the district court’s just-cause decision under section 668.11. And because the

Wilsons’ violation of section 668.11 bars them from calling any expert witnesses,

SMC’s alternative challenge based on the Wilson’s violation of Iowa Rule of Civil

Procedure 1.500(2) is moot and need not be considered.

II.

The Wilsons argue as an alternative ground for affirming the denial of

summary judgment that they do not need an expert witness to prove their claims.

SMC chose not to respond on the merits, instead contending that we cannot reach

that question because the district court did not decide it. But we can affirm the
18

district court on any basis that the Wilsons urged to the district court. See Moyer

v. City of Des Moines, 505 N.W.2d 191, 193 (Iowa 1993). After winning in the

district court, the Wilsons were not required to file a cross-appeal or a 1.904 motion

asking the court to give them a victory twice over. See Jasper v. H. Nizam, Inc.,

764 N.W.2d 751, 774 (Iowa 2009). SMC’s choice not to engage on this ground

was thus precarious.

Of course, we are not completely without briefing on the issue—both parties

briefed it in the district court. And it seems that SMC likely has the better argument.

So I wouldn’t affirm on this basis. But I am reluctant to grant relief not requested—

indeed expressly disclaimed—on appeal. Thus, if I were writing for the court,

rather than dissenting, I would not reach this question. After all, we are not

required to consider an alternative ground for affirmance not decided by the court.

See, e.g., Moyer, 505 N.W.2d at 193 (declining invitation to affirm on alternate

grounds because the issue was moot). And so, despite the unfortunate wasted

judicial resources from not resolving the matter now, I would remand to the district

court to consider the rest of SMC’s summary judgment motion in the first instance.

* * *

To sum up, I would hold that the district court abused its discretion in

concluding that the Wilsons had good cause for their failure to file their expert

certifications under section 668.11 on time. It thus erred in denying SMC summary

judgment on that ground. And since the Wilsons would be barred from presenting

expert testimony under section 668.11, we should remand this case for the district

court to consider whether the Wilsons’ claims fail as a matter of law without expert

testimony. Because the majority instead affirms, I respectfully dissent.