Videoconference – here to stay?
Pros: reduces costs, saves time, generally highly
effective
Cons: reduces personal interaction, occasional
technical difficulties
Tips:
Control Feedback
Learn the Technology
Consider impact on Court Reporter and Judge
Act Professionally
General Civil Practice Tips - Procedural
Tell us whether your Motion is Un-resisted (call
opposing counsel, please).
Polk County MSJ Deadline is 90 days before Trial
Do not make substantive arguments by email
Check in if you aren’t getting a ruling
Timely file your Exhibits
Act Professionally
General Practice Tips - Substantive
Cite Authority
Just because you can file a motion doesn’t mean
you should
Respond to Statements of Undisputed Facts
Motions to reconsider should be targeted
Stop the insults in your briefing
“ad hominem: directed against a person rather
than the position they are maintaining.”
Think about how your filing looks
Toney v. Parker, 958 N.W.2d 202 (Iowa June 21, 2021)
Plaintiff resisted MSJ on deadline. Clerk of Court
rejected filing in EDMS. Plaintiff refiled the next day.
District Court struck the resistance and granted MSJ.
Reversed. District Court elevated form over substance.
Filing related back to original deadline because clerk
rejected it for minor error and deadline was not
jurisdiction. Cites to Jones v. Iowa Department of
Transportation, 887 N.W.2d 590 (Iowa 2016).
No Boundry, LLC v. Hoosman, 953 N.W.2d 696
(Iowa Jan. 22, 2021)
Longstanding policy favoring resolution of legal disputes on the merits.
Court granted default possession of home after property tax sale.
Defendant filed Motion to Set Aside Default Judgment (Rule 1.977) within weeks.
Asserted he is legally disabled and needs a guardian ad litem. District Court
denied motion.
Reversed. Longstanding policy favoring resolution of legal disputes on the
merits.
Found excusable neglect: cause of failure to timely answer, intent to defend,
whether movant asserts a meritorious defense in good faith, whether movant
ignored or willfully defied rules of procedure
Issues in Medical Malpractice
Frequently litigated: when is the statute of limitations triggered.
Kostoglanis v. Yates, (May 5, 2021), 956 N.W.2d 157 (Iowa Mar. 12,
2021)
Plaintiff had surgery. Concerns about postoperative wound care
within days. Three years later filed suit alleging negligent
misrepresentation, fraudulent misrepresentation, and breach of
contract.
All claims are predicated on injuries “arising out of” patient care
and, therefore, subject to the two-year statute of limitations in
Iowa Code 614.1(9)
Distinguished claim for sexual assault in Doe v. Cherwitz, 894 F.
Supp. 344 (S.D. Iowa 1995). Those claims did not “arise out of”
patient care.
Issues in Medical Malpractice
Watch expert deadlines.
Iowa Code 147.140: Personal injury or wrongful death against health care
provider. “Certificate of merit affidavit” signed by an expert witness. WITHIN
60 DAYS OF DEFENDANT’S ANSWER.
Iowa Code 668.11 (180 days of defendant’s answer in professional liability cases).
Rider v. Segal, 959 N.W.2d 423 (Iowa May 14, 2021)
Plaintiff brought claims relating to problems from surgery. Doctor had been
investigated by Board.
Court declines to answer whether negligent credentialing is a tort in Iowa.
District Court granted MSJ.
Reversed. Court finds expert reliance on prior lawsuits against the Doctor for
purpose of negligent credentialing was appropriate. Distinguishes use of prior
lawsuits to show propensity as compared with use to show knowledge of
employer.
NCJC, Inc. v. WMG, Inc., 960 N.W.2d 58
(Iowa May 28, 2021)
Impact of offer to confess judgment on contractual fee shifting.
Contract dispute. Defendant offered to confess judgment for $75,000.
Plaintiff prevailed at trial and was awarded $41,453.57.
Contract had a fee-shifting provision for “prevailing party.” Plaintiff was
prevailing party: received money judgment, even though less than
demanded.
BUT, “prevailing party” fees pursuant to contract are “costs” for
purposes of determining the effect of an offer to confess judgment.
Iowa Code 625.22: fees recovered on written contract are taxed as costs
Iowa Code 677.10: plaintiff cannot recover costs from time of offer
Godfrey v. State of Iowa, 962 N.W.2d 84 (Iowa June 31, 2021)
Work Comp Commissioner Godfrey refused to resign, Gov.
Branstad reduced his pay, Godfrey sued for sexual-orientation
discrimination.
Court grants Judgment as a Matter of Law: insufficient
evidence that decision-maker (Gov. Branstad) had knowledge
of Godfrey’s sexual orientation.
Critical of evidentiary rulings, although not the basis of the
opinion.
Admission of testimony regarding position of Republican
Party as “anti-gay.” Not tied to defendant or Godfrey’s
employment.
Exclusion of evidence relating to Godfrey’s prior mental
health despite claim for emotional distress damages.
Lukken v. Fleischer, 962 N.W.2d 71(Iowa June 30, 2021)
Zip-line case. Employee failed to reset braking system.
Lukken crashed into wooden pole, suffered neck fracture.
Lukken had signed liability waiver.
Lukken sued zip-line designer. Designer dismissed because
owner had replaced designer’s original braking system.
Lukken also sued owner. Did waiver of liability bar claims?
Waiver does bar negligence claim.
Waiver does not bar claims for willful, wanton, or reckless
conduct – against public policy
Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9
(Iowa June 25, 2021)
Plaintiff injured at work. Offered and accepted light-duty work. Dispute arose
regarding specific work restriction (request for sit-down work) and employee
was fired, allegedly for insubordination.
3 claims: disability discrimination, failure to accommodate, retaliation
Court grants judgment notwithstanding the verdict on disability discrimination
because Plaintiff did not identify any job he could perform other than the
temporary light-duty work.
Failure to accommodate and retaliation claims could proceed relating to
request for sign language interpreter, but not relating to request for sit down
work. Verdict form did not differentiate between the two theories.
Therefore, reversed for retrial on these two claims on the interpreter theory.
Dix v. Casey’s General Stores, Inc., 961 N.W.2d 671
(Iowa 2021)
Employers who want to implement suspicionless drug testing must
follow detailed and comprehensive statutory scheme or face civil
liability.
Standard is “substantial compliance.”
Immunity provision applies to other independent causes of action,
not the private right of action in this statute.
Employer improperly classified employees as safety-sensitive
position. Awarded back pay to both employees and front pay to one.
Found Casey’s substantially complied where it relied on list of drugs
provided in announcement of policy since this was the first test, but
cautioned employers to provide a list with each testing.
Woods v. Charles Gabus Ford, Inc., 962 N.W.2d 1 (June 25, 2021)
Employee terminated after testing positive for meth.
Drug testing statute contains specific requirements for
notification of a positive test result.
Letter failed to include the fee and did not substantially comply.
Letter was not sent return receipt requested as required. Woods
did receive the notice. Therefore, substantially complied.
Remedy: No way to determine whether a retest would have
confirmed positive result. Remanded for determination of
whether back pay and/or front pay is appropriate.
Public Duty Doctrine Evolution
In 2018, Iowa Supreme Court seemed to re-invigorate public duty
doctrine. Johnson v. Humboldt County, 913 N.W.2d 256 (Iowa 2018).
Driver hit concrete embankment constructed by private landowner in
ditch.
“If a duty is owed to the public generally, there is no liability to an
individual member of that group.”
No special relationship, notes distinction between malfeasance/
nonfeasance.
In 2020, Breese v. City of Burlington, 945 N.W.2d 12 (Iowa 2020)
Bike rider fell 10 feet from sewer box that appeared to be part of
trail system.
Distinguished doctrine because City built, owned, operated, and
controlled the bike trail and sewer box. Connecting sewer box to path
could be considered affirmatively negligent.
Noted “gray area” in malfeasance/nonfeasance distinction.
Fulps v. City of Urbandale, 956 N.W.2d 469
(Iowa Mar. 19, 2021)
Clarifies the scope and purpose of the public duty doctrine.
Plaintiff fell on a sidewalk in Urbandale, broke her arm and wrist, alleged
sidewalk was uneven, damaged, and improperly maintained.
District Court (me) granted motion to dismiss based on language in Johnson
regarding duty to all.
Reversed. Clarifies that public duty doctrine comes into play “when a
governmental entity fails to take action (nonfeasance) with respect to a
third party – typically by failing to exercise statutory authority with respect
to the third party’s activity.”
Example: failing to enforce criminal or regulatory laws
City still on the hook for own failure to properly construct or maintain
Nonfeasance doesn’t mean doesn’t mean City can fail to maintain
City liable to the same extent a private property owner would be
Domenico Calcaterra v. Iowa Board of Medicine, No.
20-1429, 2021 WL 4929215(Oct. 22, 2021)
Iowa Code 272C.6(4)(a):
Licensing board’s “investigative information” shall be “privileged
and confidential.”
Contains some exceptions for disclosure, including final written
decision and finding of fact.
Doctor settled disciplinary matter, yet allegations from
statement of charges and press release remained publicly
accessible.
Court finds Board not allowed to publish that information.
Fact that it and other licensing boards had promulgated
contrary rules was not persuasive. Rules cannot override clear
statutory language.
Guge v. Kassel Enterprises, Inc., 962 N.W.2d 764
(Iowa June 18, 2021).
Minority shareholder sues for oppression. Majority shareholder has
statutory right to elect to buy out the minority shareholder for “fair
value.”
Experts agreed on net asset value approach (assets minus liabilities).
Entity’s value mainly in farmland.
Specific provision doesn’t define fair value but it is defined within same
chapter. Issue was whether adjustments or discounts should be applied.
Transaction costs. Both experts included discount for transaction costs of
hypothetical liquidation. District Court refused. Reversed. Doesn’t really
answer if they always apply.
Built-in capital gains taxes. This was an S Corp, not a C Corp. Taxes flow
through to shareholder level not entity level. Minority shareholders will pay
their own tax liability for selling their stock. Plus, no sale of assets was
actually contemplated.
Concurrence by Justices Oxley and McDonald noting the net asset value
approach assumes sale of assets.