Media Coordinators Notice - Margaret and John Smith V Loring Hospital - Lacv019319

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
MARGARET SMITH and JOHN SMITH, Plaintiffs,

vs.
LACV19319
)
\
)
)
)
) EXHIBIT LIST
LORING HOSPITAL, Defendant.
)
\
COMES NOW
Defendant
and
herewith
identifies the
following exhibits
which may be used at the trial of this matter.
Exhibit
Number Description Admitted
No Fdn. Objection
Other
Objection
Medical records from Loring
Hospital from 03/4-5/2010

admission, 56 pgs.
Loring Hospital Fall Risk B
Guidelines in effect 3/4/2010 Curriculum Vitae Barbara
Braafhart, RN
Photograph of room D
Photograph of place where Mrs.

Smith was found
E F
Photograph of hospital bed with
side rails up Photograph of call light
Photographs of call light on side

rail
Photograph of room showing location of bathroom Photograph of wrist band

Photograph of magnet
J
K L
DATED this.
is//day of.
. 2013.
Respectfully submitted,
HEIDMAN LAW FIRM, L.L.P.
By:
WJUA ,
P. O. Box 3086
JCJHN C. GRAY^T0002938
1128 Historic Fourth Street Sioux City, IA 51102 Phone: 712-255-8838
Fax: 712-258-6714
John.Grav(^Heidmanlaw.com
ATTORNEYS FOR DEFENDANT
Copy to:
Tyler C. Patrick Hudson, Mallaney, Shindler & Anderson, P.C.
5015 Grand Ridge Drive, Suite 100

West Des Moines, IA 50265
00374760
PROOF OF SERVICE
I certify that a true copy of this document was served upon each of the attorneys of record of all parties to this action at the addresses disclosed by thepteadings on By;
Hand Delivered
? FacSimtTa
Signal
D-Other
MARGARET SMITH and JOHN SMITH, Plaintiffs,

vs.
LACV193 19
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\
) )
>
)
) WITNESS LIST
LORING HOSPITAL, Defendant.
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\
COMES
NOW the Defendant, Loring Hospital, and herewith identifies the
following individuals who may be called to testify at trial:

1. 2. 3. Margaret Smith John Smith Tim Galbraith, RN
4.
5. 6. 7. 8.
9.
Lori Forneris, Chief Clinical Officer, Loring Hospital

Keri Geery, nurse, Loring Hospital Linda Brown, nurse, Loring Hospital Amy Scheffler, nurse Loring Hospital Sherry Bailey, CNA. Loring Hospital
Kay Martin, nurse, Loring Hospital
1 0. Barbara Braafhart, RN
DATED this
day of
,2013. Respectfully submitted,
HEIDMAN LAW FIRM. L.L.P.
By:
JOHN C. GRAY, m8 Historic Fo

P. O. Box 3086
0002938
Street
Sioux City, 1A 51 102
Phone: 712-255-8838
Fax: 712-258-6714
John. Gray(SMeidmanlaw. com ATTORNEYS FOR DEFENDAN"
Copy to: Tyler C. Patrick Hudson, Mallancy, Shindler & Anderson. P.C. 5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
PROOF OF SERVICE
I certify that a true copy of this document was
served upon each of the attorneys of record of all

parlies to this action at the addresses disclosed
by the plead By: mj.s
-Pn/f
O Hand Delivered
54-76
00374868
? Fac1:
Signature
? Oilier
MlAj.'
n_
E-FILED 2013 JUN 19 1:52 PM SAC - CLERK OF DISTRICT COURT
MARGARET SMITH & JOHN SMITH Plaintiffs, -vsLORING HOSPITAL,
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
PLAINTIFFS TRIAL BRIEF
TABLE OF CONTENTS I. A PRIMA FACIE CASE OF MEDICAL MALPRACTICE REQUIRES THAT A PLAINTIFF PRESENT EVIDENCE THAT ESTABLISHES THE APPLICABLE STANDARD OF CARE, THAT THE STANDARD HAS BEEN VIOLATED; AND THAT THERE IS A CASUAL RELATIONSHIP BETWEEN THE VIOLATION AND THE INJURY A HOSPITAL MUST EXERCISE THAT DEGREE OF SKILL OR CARE IN LEARNING ORDINARILY POSSESSED AND EXERCISED BY OTHER HOSPITALS IN SIMILAR CISCUMSTANCES TESTIMONY BY A PROPERLY TRAINED NURSE REGARDING WHAT SHE WOULD HAVE DONE UNDER THE CIRCUMSTANCES IS ADMISSIBLE IN A MEDICAL MALPRACTICE CASE ON AT LEAST TWO BASES: (1) SUCH TESTIMONY IS RELEVANT ON THE STANDARD OF CARE AND BREACH AND (2) SUCH TESTIMONY MAY BE USED TO IMPEACH THE WITNESSS CREDIBILITY IOWA HAS REJECTED THE LOCALITY RULE IN MEDICAL MALPRACTICE ACTIONS. THE LOCALITY WHERE THE DEFENDANT PRACTICES IS MERELY ONE FACTOR THE JURY MAY CONSIDER WHEN DETERMINING THE APPROPRIATE STANDARD OF CARE UNDER IOWA RULES OF EVIDENCE, AN EXPERT WITNESS MAY RENDER OPINION TESTIMONY WITHOUT PRIOR DISCLOSURE OF THE UNDERLYING FACTS UPON WHICH HE OR SHE IS RELYING IN RENDERING THAT OPINION
II.
III.
IV.
V.
VI.
UNDER IOWA LAW, AN EXPERT OPINION NEED ONLY RISE TO THE LEVEL OF A PROBABILITY, NOT A CERTAINTY, IN ORDER TO BE ADMISSIBLE AND TO GENERATE A FACT QUESTION WHICH MAY BE SUBMITTED TO THE JURY GENERALLY, EXPERT TESTIMONY IS REQUIRED ON ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE, AN EXPERT MAY STATE HIS OPINION IN ANY FORM, SO LONG AS IT IS REASONABLY APPARENT THAT THE LANGUAGE USED IS MEANT TO EXPRESS THE WITNESS PROFESSIONAL OPINION
VII.
VIII. LAY WITNESSES MAY TESTIFY TO OPINIONS WHEN THE OPINIONS ARE BASED ON THE PERCEPTION OF THE WITNESS AND HELPFUL TO A CLEAR UNDERSTANDING OF THE WITNESS TESTIMONY OR THE DETERMINATION OF A FACT IN ISSUE IX. A PARTY MAY INTERROGATE AN UNWILLING OR HOSTILE WITNESS BY LEADING QUESTIONS USE OF LEADING QUESTIONS ON THE CROSS EXAMINATION OF A FRIENDLY WITNESS IS NOT ALLOWED UNDER IOWA LAW PRIOR ADMISSIONS BY A PARTY OPPONENT ARE ADMISSIBLE AS EVIDENCE AGAINST THAT PARTY AT TRIAL EITHER FOR IMPEACHMENT PURPOSES OR TO PROVE THE TRUTH OF THE MATTER ASSERTED A WITNESS MAY BE IMPEACHED BY A DEMONSTRATION OF BIAS OR PREJUDICE
X.
XI.
XII.
XIII. HOSPITAL AND MEDICAL RECORDS ARE ADMISSIBLE UNDER IOW LAW AS AN EXCEPTION TO THE HEARSAY RULE AND MAY BE USED TO PROVE FACTS CONTAINED THEREIN RELATING TO THE DIAGNOSIS, TREATMENT AND CONDITION OF THE PATIENT TO WHOM THEY RELATE XIV. REASONABLY CORRECT MAPS, MODELS AND VISUAL AIDS ARE ADMISSIBLE INTO EVIDENCE AND MAY BE USED TO ILLUSTRATE MATTERS IN EVIDENCE AND IN ANALYSIS XV. PHOTOGRAPHS ARE GENERALLY ADMISSIBLE IN EVIDENCE SO LONG AS THEY ACCURATELY DEPICT WHAT THEY PURPORT TO PORTRAY AND ARE NOT CUMULATIVE AND ARE PROBATIVE
XVI. IN MEDICAL MALPRACTICE ACTIONS, DAMAGES FOR ACTUAL ECONOMIC LOSS ARE NOT RECOVERABLE TO THE EXTENT THAT THOSE LOSSES ARE REPLACED OR INDEMNIFIED BY INSURANCE OR BY BENEFITS XVII. IOWA CODE SECTION 147.136 IS PREEMPTED BY THE MEDICARE SECONDARY PROVIDER STATUTE AND PLAINTIFF IS ENTITLED TO CLAIM AS DAMAGES ALL HEALTH CARE EXPENSES PAID BY MEDICARE Respectfully submitted, /s/Tyler C. Patrick J. Barton Goplerud, AT0002983 Tyler C. Patrick, AT0010268 HUDSON MALLANEY SHINDLER & ANDERSON, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265-5749 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS I hereby certify that on June 19, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
I.
A PRIMA FACIE CASE OF MEDICAL MALPRACTICE REQUIRES THAT A PLAINTIFF PRESENT EVIDENCE THAT ESTABLISHES THE APPLICABLE STANDARD OF CARE, THAT THE STANDARD HAS BEEN VIOLATED; AND THAT THERE IS A CASUAL RELATIONSHIP BETWEEN THE VIOLATION AND THE INJURY. Argument
In the case of Campbell v. Dellbridge, 670 N.W.2d 108, 109, (Iowa 2003), the Iowa Supreme Court set forth the requirements for a prima facie case of medical malpractice. The Court stated: To establish a prima facie case of medical malpractice, a plaintiff must produce evidence that (1) established 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. II. A HOSPITAL MUST EXERCISE THAT DEGREE OF SKILL AND LEARNING ORDINARILY POSSESSED AND EXERCISED BY OTHER HOSPITALS IN SIMILAR CIRCUMSTANCES. Argument A hospital must use the degree of skill, care and learning ordinarily possessed and exercised by other hospitals in similar circumstances. A violation of this duty is negligence. Authority Kastler v. Iowa Methodist Hospital, 193 N.W.2d 98 (Iowa 1971) Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970) Clites v. State, 322 N.W.2d 917 (Iowa App. 1982)
III.
TESTIMONY BY A PROPERLY TRAINED NURSE REGARDING WHAT SHE WOULD HAVE DONE UNDER THE CIRCUMSTANCES IS ADMISSIBLE IN A MEDICAL MALPRACTICE CASE ON AT LEAST TWO BASES: (1) SUCH TESTIMONY IS RELEVANT ON THE STANDARD OF CARE AND BREACH AND (2) SUCH TESTIMONY MAY BE USED TO IMPEACH THE WITNESS'S CREDIBILITY. Argument
Testimony from a properly trained nurse regarding the actions that she would have taken if confronted with facts similar to those presented in the case at issue is admissible on at least two bases. First, such testimony is admissible to prove that Defendants were negligent. Iowa Rule of Evidence 5.401 defines "relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." All relevant evidence is admissible under Iowa Rule of Evidence 5.402. In a medical negligence action, the standard of care and a Defendant's failure to comply with that standard of care are questions of fact to be established by expert testimony, and, therefore, any evidence bearing upon those issues is relevant. The standard of medical and hospital care which is to be applied in each case is not a rule of law, but a matter to be established by the testimony of competent medical experts. Moore v. Francisco. 583 P.2d 391 (Kan. App. 1978). See Grosjean v. Spencer, 140 N.W. 2d 139 (Iowa 1966). Ordinarily, evidence of the applicable standard of care and its breach must be furnished by an expert. Campbell v. Delbridge, 670 N.W.2d 108, 109 (Iowa 2003); Iowa Code 668.11 (2001) (emphasis mine). The landmark case of Speed v. State makes clear that the testimony of a properly trained physician regarding what he would have done under facts similar to those presented in the case at issue is admissible as relevant on the question of negligence. Speed v. State, 240 N.W.2d 901 (Iowa 1976). In Speed, plaintiff brought an action for medical negligence contending that doctors at the University of Iowa Hospitals and Clinics negligently cared for him, resulting in blindness. On appeal, the Iowa Supreme Court ruled that the evidence supported the trial court's conclusion that the defendant doctor was negligent. The Supreme Court first examined the testimony of plaintiff's expert witnesses. Next, the Supreme Court stated that the trial court's conclusion that
5
the defendant doctor was negligent was supported by testimony from the defense experts in response to questions regarding what they would have done if confronted with a similar situation. The Court stated: In addition, several of the witnesses called by the State gave testimony from which the trial court could infer negligence on the part of [the defendant doctor] in taking no further action after considering brain abscess aid septicemia. Dr. Robert Hardin, Vice President for Health Affairs at the University of Iowa, testified that if he had an impression of septicemia, he would do an immediate blood culture, and if he had an impression of brain abscess, he would arrange for a brain scan. Dr. Aldoph Sahs, a witness for the State and Head of the Department of Neurology at University Hospitals, testified that if he had an impression of brain abscess, he would do a spinal tap and a brain scan `as quickly as possible. Id. at 905. All of the foregoing testimony by defendant's own witnesses was admissible as to the negligence of the defendant. Id. The second rationale for allowing the testimony of a properly trained nurse regarding what she would have done under the circumstances is that such testimony bears upon the credibility of the witness where the witness testifies that the standard of care differs from what she would have done. In Pagalis & Wachsman, American Law of Medical Malpractice, 11:7 (1981), the authors note that evidence of an expert's own clinical experience is relevant on the issue of credibility, stating; ... Such a line of inquiry usually is admissible on the issue of credibility. If, for example, plaintiff's expert testifies that the defendant deviated from a certain standard of care, said experts credibility certainly would be severely shaken if, in fact, it can be shown that this expert has performed a medical act in the same or similar manner as the defendant. If a defense expert has testified that a defendant's medical act conformed with a certain acceptable standard of care, the credibility of said testimony certainly would be severely shaken if said expert conceded, on cross-examination, that he personally does not perform and/or teach the medical act in the same manner.
See also Siegel v. Mt. Sinai Hospital of Cleveland, 403 N.E.2d 202 (Ohio App. 1978).
IV.
IOWA HAS REJECTED THE "LOCALITY RULE" IN MEDICAL MALPRACTICE ACTIONS. THE LOCALITY WHERE THE DEFENDANT PRACTICES IS MERELY ONE FACTOR THE JURY MAY CONSIDER WHEN DETERMINING THE APPROPRIATE STANDARD OF CARE. Argument For years, the Iowa Supreme Court took the position that a medical professional was
merely held to the standard of medical practice in his/her community. That rule, known as the "locality rule," was abolished by the Iowa Supreme Court in the case of Speed v. State, 240 N.W. 2d 901 (Iowa 1976). See also Menzel v. Morse, 362 N.W.2d 465, 471 (Iowa 1985). One commentator has described the effect of the abrogation of the "locality rule" as follows; Formerly, an Iowa physician was merely held to the standard of medical care practiced in his community. That rule, however, has been abolished and the locality where the physician practices is merely one circumstance the jury may consider, not the absolute limit upon the skill required. Finely, Tort Reform in Medical Malpractice: Iowa's Past, Present and Future. 36 Drake L. Rev. 699 (1987). Even when the standard of care of a specialist, rather than a general practitioner, is at issue, the medical practice in the locality where the specialist practices is completely irrelevant to a determination of the applicable standard of care. See Perin v. Havne, 210 N.W.2d 609, 615 (Iowa 1973); Grosjean v. Spencer, 140 N.W. 2d 139, 143 (Iowa 1966); Speed, 240 N.W.2d at 901. V. UNDER IOWA RULES OF EVIDENCE, AN EXPERT WITNESS MAY RENDER OPINION TESTIMONY WITHOUT PRIOR DISCLOSURE OF THE UNDERLYING FACTS UPON WHICH HE OR SHE IS RELYING IN RENDERING THAT OPINION. Argument
Iowa Rule of Evidence 5.705 provides that an expert witness "may testify in terms of opinion or inference and give his reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise." Under the clear language of Rule 5.705, an expert witness may render opinion testimony without prior disclosure of the factual basis for that opinion. In addition, pursuant to Iowa Rule of Evidence 5.703, the facts relied upon by the expert witness need not be previously admitted into evidence or, for that matter, even be admissible into evidence so long as the facts relied upon are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Under Iowa Rules of Evidence 5.703 and 5.705, opinion testimony need not be offered by way of hypothetical questions. See Rule 5.703, Official Committee Comment (under Rule 5.703 the witness need not be interrogated by means of a hypothetical question ..."); Rule 5.705, Official Committee Comment (same). Additionally, Rule 5.703 is specifically exempted from operation of Rule 5.602 pertaining to lack of personal knowledge. Therefore, an expert may render opinion testimony relying upon personal knowledge, facts or data made known to him or her at trial, facts or data made known to him or her before trial, or facts and data not admissible at trial pursuant to Rule 5.703.
VI.
UNDER IOWA LAW AN EXPERT OPINION NEED ONLY RISE TO THE LEVEL OF A PROBABILITY, NOT A CERTAINTY, IN ORDER TO BE ADMISSIBLE AND TO GENERATE A FACT QUESTION WHICH MAY BE SUBMITTED TO THE JURY. Argument An expert may express their opinions as to a certain issue in terms of a possibility, a
probability, or an actuality. Hansen v. Central Iowa Hosp. Corp., 686 N.W. 2d 476, 485 (Iowa
8
2004) (citing Winter v. Honegger's & Company, 215 N.W. 2d 316, 321 (Iowa 1974)). In Winter, the Supreme Court discussed that level of certainty necessary in an expert's opinion in order for that opinion to generate a jury question: This Court has announced that expert testimony indicating that it is possible a given factual circumstance was the cause of plaintiff's injury or 'could have caused it' is insufficient, standing alone, to generate a fact question. Expert testimony indicating probability or likelihood of a causal connection is necessary for this purpose. In its decision, the Supreme Court also indicated instances in which an expert's opinion as to a "possible" causal connection could be sufficient to generate a jury question, stating: When testimony of an expert witness that a described condition is merely 'possible' or 'might' exist as a consequence of a stated cause is coupled with other testimony, non-expert in nature, that the described, condition of which complaint is made did not exist before occurrence of those facts alleged to be the cause thereof, a fact question as to causal relation is generated. The Winter case involved an action brought by the plaintiff against a manufacturer of a confinement hog-farrowing house which the plaintiff had purchased. The plaintiff alleged that as a result of the improper design, construction, and instruction for use of the ventilating system installed by the defendant in the farrowing house, environmental conditions were created which caused his hogs to develop atrophic rhinitis which, in turn, caused the plaintiff to lose accreditation of his herd. Id. at 319. Plaintiff's expert veterinarian testified on direct examination that the problems with the ventilation system in the farrowing house "could definitely be a contributing factor" to the hogs having ultimately contracted atrophic rhinitis. Id. at 322. On appeal, the defendants contended that the testimony of the plaintiff's expert veterinarian was not sufficient to create a question on the issue of causation in that his testimony amounted to a mere possibility, rather than the requisite level of probability, on the question of causation.
9
The Supreme Court held that the veterinarian's testimony indeed suggested only a possibility of causal connection between the ventilation system and the atrophic rhinitis. The plaintiff, however, had testified that for two years prior to use of the farrowing house, constructed by the defendants, his herd had no health problems. The Court held that the plaintiff's testimony coupled with the evidence of the expert veterinarian was sufficient to generate a fact question on the issue of causal relation. Id. See also Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 169-170 (Iowa 1960) (physician testimony coupled with lay person testimony that he had no prior health problems sufficient for plaintiff to sustain burden of proof). Iowa law is clear that an expert opinion, to be admissible, must amount to more than mere speculation or conjecture. Osborn v. Massev-Ferguson Inc., 290 N.W. 2d 893, 900 (Iowa 1980); Iowa Power and Light Company v. Stortenbecker, 334 N.W. 2d 326, 330-31 (Iowa Ct. App. 1983). In order to generate a jury question, an expert's opinion must indicate a probability or likelihood. Hansen, 686 N.W. 2d at 485; Stortenbecker, 334 N.W. 2d at 331 ("an opinion as to a mere possibility, as opposed to probability, is insufficient unless probability can be inferred by coupling the expert's 'possibility' testimony with lay testimony that the condition complained of did not exist before the occurrence of those facts in question."); Shinrone Inn. v. Tasco Inc., 283 N.W, 2d 280, 284 (Iowa 1979) (trial court's finding that plaintiffs expert was of the opinion that plaintiff's losses were probably, not merely possibly, due to design of defendant's livestock nursery was sufficient to establish proximate cause). An expert opinion need not be couched in definite, positive, or unequivocal language. Dickinson v. Maillard, 175 N.W, 2d 588, 593 (Iowa 1970).
VII.
EXPERT TESTIMONY IS REQUIRED ON ISSUES OF NEGLIGENCE AND CAUSATION, AN EXPERT MAY STATE HIS OPINION IN ANY FORM, SO LONG AS IT IS REASONABLY APPARENT THAT THE
10
LANGUAGE USED IS MEANT TO EXPRESS THE WITNESS' PROFESSIONAL OPINION. Argument In a medical malpractice case, expert testimony is ordinarily necessary on both the issues of negligence and causation. Evidence of the requisite skill and care exercised by a physician must be given by expert witnesses. Iowa Code 147.139. Expert testimony is also required on the question of causation: In medical malpractice cases, we have consistently held that, where common knowledge or everyday experience will not permit a lay jury to form an opinion as to causal connection between acts of negligence and injury to the plaintiff, 'causal connection is essentially a matter which must be foundationed upon expert evidence.' Kanlopren v. VanBramer, 392 N.W. 2d 480, 484 (Iowa 1986). An expert witness must have a basis for the opinion that he renders. Most courts have held that if an opinion is based on a "reasonable medical certainty" or a "reasonable medical probability," it is sufficient. Pegalis & Wachsman, American Law of Medical Malpractice, 11:6 (1981). It is also clear, however, that most courts will not defeat the probative value of an expert's opinion based on semantics alone. Hansen, 686 N.W. 2d at 485. In Hansen, the court stated that "[b]uzzwords like 'reasonable degree of medical certainty' are therefore not necessary to generate a jury question on causation." Id. (expert testimony indicating probability or likelihood of causal connection sufficient to generate question on causation). As highlighted by Hansen, the Iowa Supreme Court expressly held that "magic phrases" and semantics alone will not defeat an expert's opinion. Prior to Hansen, the Iowa Supreme Court held that a qualified expert should be allowed to state his opinion, either as to probable or even merely possible causation. The court held that the use of terms like "I believe" or "I think"
11
or "it appears to me" are permissible, if it is apparent that such language is meant to express a witness's professional opinion. Specifically, the court stated: We cannot agree that this evidence was inadmissible. Almost all courts have held the opinion of expert need not be couched in definitive, positive or unequivocal language. The use of the terms like "I believe;" or "I think;" or "it appears to me" have all been held permissible if it is apparent such language is meant to express the witness's professional opinion. Id. at 593.
VIII.
LAY WITNESSES MAY TESTIFY TO OPINIONS WHEN THE OPINIONS ARE BASED ON THE PERCEPTION OF THE WITNESS AND HELPFUL TO A CLEAR UNDERSTANDING OF THE WITNESS' TESTIMONY OR THE DETERMINATION OF A FACT IN ISSUE. Argument
Iowa Rule of Evidence 5.701 expressly permits lay witnesses to testify to certain opinions. The Rule states: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. For a lay opinion to be admissible, it must be based on the witness's own perception and must also be helpful to the trier of fact. The first requirement essentially incorporates the requirements of Iowa Rule of Evidence 5.602, which provides that a witness may not testify unless evidence is introduced to support a finding that the witness has personal knowledge of the matter. See Meeker v. City of Clinton, 259 N.W. 2d 822, 831 (Iowa 1977) (in order for lay witness to render opinion, they must have observed the facts necessary to - do so). The "rational connection" test of Rule 5.701(a) has been described as follows:
12
The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. Weinstein, Weinstein's Evidence, 701[2]. The second requirement of Rule 5.701 is a finding that the opinion will be helpful to a clear understanding of the witness's testimony or determination of a fact at issue. Lay opinion testimony has been described by one Iowa commentator as a "permissible shorthand rendering of the facts," McCormick, Opinion evidence in Iowa, 19 Drake L. Rev. 245, 248 (1970). The proper areas for lay opinion testimony are endless. In Kerry Coal Co. v. United Mine Workers, 637 F.2d 957 (3rd Cir. 1981), the Third Circuit Court of Appeals held that testimony that plaintiff's employees were "nervous and afraid" was merely a shorthand report of the witness's observations of employee reactions. Opinion evidence has been allowed to describe the appearance of persons or things, identity, manner of conduct, competency of a person, feeling degrees of light or darkness, sound, size, weight, distance, speed, etc. Weinstein, at 701(2). The admissibility of lay opinion testimony rests in the sound discretion of the trial court. Lamb v. Newton-Livingston Inc., 551 N.W. 2d 333, 340 (la Ct. App. 1996); Wade v. Jones, 312 N.W. 2d 510, 515 (Iowa 1981); Farm Fuel Products and Grain Processing, 429 N.W.2d 153, 161 (Iowa 1988). Moreover, the "ultimate issue" rule has been abolished by Iowa Rule of Evidence 5.704. Thus, testimony in the form of an opinion is not objectionable because it embraces and ultimate issue to be decided by the trier of fact. Grismore v. Consolidated Product Co., 5 N.W.2d 646, 662 (Iowa 1932).
IX.
A PARTY MAY INTERROGATE AN UNWILLING OR HOSTILE WITNESS BY LEADING QUESTIONS. Argument
13
Plaintiffs may call the defendant in their case in chief. Iowa Code 624.1 provides that: "a party may interrogate any unwilling or hostile wiliness by leading questions." See IRE 5.611(c) ("When a party calls a hostile wits, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."). The Iowa Supreme Court has held that under this section, the trial court has wide discretion when and to the extent which leading questions may be employed when interrogating such witnesses. Wong v. Waterloo Comm. Sch. Dist., 232 N.W. 2d 865, 868 (Iowa 1972). Under Section 624.1 of the Iowa Code, a party is presumed to be adverse when called as a witness by the opposing party.
X.
USE OF LEADING QUESTIONS ON THE CROSS EXAMINATION OF A FRIENDLY WITNESS IS NOT ALLOWED UNDER IOWA LAW. Argument Plaintiff may call certain adverse or hostile witnesses in their case. Defense counsel
should not be allowed to ask these same witnesses leading questions on "cross examination" following the direct examination by Plaintiff's counsel. In Matter of Estate of Hern, 284 N.W. 2d 191 (Iowa 1979), the Iowa Supreme Court noted that while cross-examination ought to be allowed following an adverse direct exam, such "cross examination": does not mean counsel has an unqualified right to ask leading questions of his or her own party client, its officer, directors or managing agents. The majority rule is that generally where an "adverse" witness is shown to be friendly toward or biased in favor of the cross-examiner, the reason for the rule, grounded on the assumed hostility of such witness to the cross. examiner's cause, has ceased to exist and leading questions may not be used in examining such ' witness. Annot., 38 A.L.R. 2d 952, 954 (1954). 284 N.W.2d at 197-98.
14
In Hern, the Iowa Supreme Court also cited several other authorities and cases for the proposition that "[w]hen an opponent's witness proves to be in fact biased in favor of the cross examiner, the danger of leading questions arises and they may be forbidden." Hern, 284 N.W.2d at 198. Under Iowa law, the use of leading questions on the "cross-examination" of a friendly witness simply should not be allowed.
XI.
PRIOR ADMISSIONS BY A PARTY OPPONENT ARE ADMISSIBLE AS EVIDENCE AGAINST THAT PARTY AT TRIAL EITHER FOR IMPEACHMENT PURPOSES OR TO PROVE THE TRUTH OF THE MATTER ASSERTED. Argument Rule 5.801(d)(2) of the Iowa Rule of Evidence identifies five types of statements, which
are not hearsay and are admissible as admissions by a party opponent. In a 1970 case, the Iowa Supreme Court stated: Though not truly an exception, and probably better described as a variant to the hearsay principle, it is generally understood, anything said by a party opponent may be used against him as an `admission,' provided it exhibits inconsistency with these facts presently asserted in pleadings or testimony. Bailey v. Chicago Burlington & Quincy Railroad Co., 179 N.W.2d 560, 566 (Iowa 1970)(citations contained therein), Therefore, an admission of a party does not have to be "against interest" at the time it was made in order to be admissible. Bailey, 179 N.W.2d at 566; Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (N.D. 1981); R. Lempert & S. Saltzburg, A Modern Approach To Evidence, 383 (1982 2d Ed). A general hearsay exception exists for statements which, when made, are against the declarant's interests. IRE 5.804(b)(3). The exception for "statements against interest" contained in Rule 5.804 requires that the declaration, when made, must be against the declarant's "pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal
15
liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." J... Rule of Evidence 5.801 exception for party admissions does not contain this Rule 5.804 requirement demonstrating either a pecuniary or proprietary interest. Rather, "[a] statement which is self-serving or neutral when made is just as readily admitted under the [Rule 801] admissions exception as a [Rule 804] statement against interest." R. Lempert & S. Saltzburg, at 383.
XII.
A WITNESS MAY BE IMPEACHED BY A DEMONSTRATION OF BIAS OR PREJUDICE. Argument
Iowa law does not specifically address the issue of impeachment of a witness, other than to state, [t]he credibility of a witness may be attacked by any party, including the party calling him. IRE 5.607. A witness's credibility is inherently put in issue when he or she takes the stand. The right of a party to impeach a witness by cross-examination, or other credible evidence, is universally recognized, and the scope and extent of cross-examination for impeachment purposes is in the sound discretion of the court. 81 Am. Jur. 2d, Witnesses, 865 - 866, 876 (1992). Courts are liberal in allowing testimony that tends to show bias for the basic reason that a witness's credibility is essential in the assessment of the facts of the case. Weinstein, Weinsteins Evidence, 607(04)[1](1988). Bias or prejudice of a witness is always relevant. 81 Am.Jur.2d, Witnesses, 876 (1992). The underlying assumptions which support the Impeachment of a witness are twofold: (1) certain relationships and circumstances hinder the neutrality of a witness, and (2) a witness who is not neutral or impartial may be tainting or "shading" his or her testimony, thereby favoring or
16
disfavoring a party. Weinstein, Weinstein's Evidence, 607(04)[1] (1988). Bias affects credibility, and credibility, in turn, affects the fact finder's assessment of the facts of the case.
XIII.
HOSPITAL AND MEDICAL RECORDS ARE ADMISSIBLE UNDER IOWA LAW AS AN EXCEPTION TO THE HEARSAY RULE AND MAY BE USED TO PROVE FACTS CONTAINED THEREIN RELATING TO THE DIAGNOSIS, TREATMENT, AND CONDITION OF THE PATIENT TO WHOM THEY RELATE. Argument
Hospital and medical records have long been admissible in Iowa. They were admissible prior to the enactment of the Iowa "Business Records Statute" in 1961. The rationale for allowing hospital records into evidence has been stated as follows: Hospital records were admitted into evidence even before the 1961 Iowa Statute without requiring a foundation from each person who made the entries. Because hospital records are relied upon in matters relating to life or death, such records have added trustworthiness, and may be admitted into evidence, even if there is not a showing as to some of the other foundational requirements. Vestal & Willison, Iowa Practice, 37.04 (1974). This rationale was set down in the landmark case of Gearhart v. Des Moines Ry. Co., 21 N.W. 2d 569 (Iowa 1946). In Gearhart, the court explained the inherent trustworthiness of hospital records and the foundation required to admit them. That such [medical] records are not only supposed to be true, but must be true in order that the safety and even the life of patients whose care is entrusted to physicians, nurses, and employees of the hospital may be assured, and for such further reason that in records such as this, no reason exists for any fraudulent misrepresentation as to the condition of the patient. A party to an action is entitled to whatever information may be properly adduced for the Court and jury, and where such information can be obtained under circumstances that indicate that it is true, and no reason exists to indicate that it was false, the interests of justice require that such evidence be admitted. The rule of
17
admission applies with full force to a general public hospital where the records are for the benefit of all persons concerned in the care of various patients ... Id. at 571. Prior to the adoption by Iowa of the Federal Rules of Evidence, hospital and medical records were admitted under Iowa Code 622.28. This was the statute allowing "business records" into evidence as an exception to the hearsay rule. Under the Iowa Rule of Evidence, the corresponding section is Rule 5.803(6), which states: Records of regularly conducted activity, A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time, by, or from Information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and the regular practice of that business activity was to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term business' as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit. IRE 5.803(6)(emphasis added). This rule of evidence operates to allow hospital and medical records into Evidence as an exception to the hearsay rule, to prove the truth of the matter asserted. Significantly, the Federal Rule of Evidence 803(6) specifically allows the admission into evidence of notations as to "opinions" and "diagnoses." The Official Comment to the Iowa Rules of Evidence clearly indicates that statements of "opinions" and "diagnoses" are admissible, so long as they come from a "business record." IRE 5.803(6), Official Comment. When considering admissibility of business records under the old Iowa Code 622.28, the Iowa Supreme Court always viewed the statute liberally. The Iowa Supreme Court has afforded Rule 5.803(6) the same liberal interpretation. In State v. Fisher, 178 N.W. 2d 380 (Iowa
18
1970), the court was faced with the admissibility of hospital records under Iowa Code 622.28. The court explained that it construed 622.28 to "accord it the broad, liberal interpretation it was intended to have." Id. at 382. In the case of Poweshiek County National Bank v. Nationwide Mutual Ins., Co. 156 N.W. 2d 671 (Iowa 1968), the court stated, [w]hen properly identified, hospital records made by authorized professional personnel (doctors and nurses) are admissible in evidence to show the condition and treatment of the patient. Id. at 674. The court continued by quoting with approval a Minnesota case stating that hospital records are admissible to prove "diagnosis, treatment or medical history of the patient, pertinent to the medical and surgical aspects of the case ...." ld. Clearly, under Iowa Rule of Evidence 5.803(6) and previous decisions of the Iowa Supreme Court, medical records may be admitted to prove facts in connection with treatment, condition, diagnosis, and opinion, and are admissible into evidence so long as the entries were made in the "regular course of treatment."
XIV.
REASONABLY CORRECT MAPS, MODELS AND VISUAL AIDS ARE ADMISSIBLE INTO EVIDENCE AND MAY BE USED TO ILLUSTRATE MATTERS IN EVIDENCE AND IN ANALYSIS. Argument
Iowa has long held that reasonably correct maps, models, and visual aids are admissible into evidence. Visual aids and exhibits submitted into evidence may be used by a witness to illustrate matters in evidence and in analysis. For example, in the case of State v. Pepples, 250 N.W. 2d 390, 396 (Iowa 1977), the Iowa Supreme Court stated: Counsel may also use visual aids to illustrate matters in evidence in aid of their analysis. See State v. Plowman, 386 N.W. 2d 546, 550 (Iowa Ct. App. 1986). Whether or not a map, model, or visual aid goes to the jury is largely a matter of judicial discretion, State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1903)(demonstrative evidence). At the
19
very least, the court should allow the map, model, or visual aid to be marked for identification if it is to be used as a testimonial aid or visual summary. United States v. Abbas, 504 F.2d 123, 125 (9th Cir. 1975). XV. PHOTOGRAPHS ARE GENERALLY ADMISSIBLE IN EVIDENCE SO LONG AS THEY ACCURATELY DEPICT WHAT THEY PURPORT TO PORTRAY AND ARE NOT CUMULATIVE AND ARE PROBATIVE. Argument Photographic evidence is one of the most widely accepted and admitted forms of evidence used in civil trials. Generally, if the photographs assist the jury in understanding the case or are illustrative of the testimony of a witness and have been properly authenticated, they are admissible. Since the development of the art of photographs, photographs have generally been received in evidence on the same basis as maps and diagrams, to enable the trier of the fact better to understand the characteristics of the person, object, scene or condition represented or reproduced ... Two basic factors are recognized as tests to determine relevancy and to aid the judge in the exercise and sound discretion to admit or exclude the photographs, depending on whether it will assist or confuse or enlighten or unduly prejudice the jury. These two facts are: (1) does the photograph assist the jury in understanding the case, or (2) does it assist the witness in explaining his testimony? Gard, Jones on Evidence, 17:49 (1972). Iowa follows this general position on the proper use of photographic evidence. In the case of Maier v. Illinois Cent. R. Cd., 243 N.W, 2d 388 (Iowa 1974), the court stated, Iowa law holds photographs of objects or persons are admissible if they are illustrative of the testimony of witnesses. Id., at 394. Before photographs are admissible in evidence, they must be properly authenticated. Authentication for photographs merely requires the testimony of the person who took the
20
photograph or an individual familiar with what the photograph portrays. Id.; see State v. Holderness, 293 N.W. 2d 226 (Iowa 1980)(circumstantial evidence authenticating time and place of photograph satisfies IRE 5.901(a)). The witness authenticating the photograph must testify that the photograph is an accurate depiction of the event or object: The general principle of photographs as an application of natural laws in producing images, resemblances, pictures of persons, things, scenes and conditions are so well known as to be the subject of judicial notice, and the proof of authentication is facilitated in this respect... The authentication or verification of a photograph is a prerequisite to its being received in evidence, maybe by the photographer himself or by any witness whose familiarity with the subject matter of the photograph qualifies him to testify that it is a correct representation of the object or scene which it portrays... The important thing is the identity of the subject matter shown in the picture and showing that the subject matter is faithfully reproduced. Jones on Evidence, supra at 17:51. The Iowa courts have consistently followed this general rule on authentication of photographs. In the Maier case, the court identified a method for authentication of photographs: Plaintiff testified the exhibits reasonably and accurately portrayed the view of the scene as he looked out of his car. Earlier testimony established that he was familiar with the crossing. It is not necessary for a witness to be a photographer or know anything concerning the taking of pictures or.;, technical data concerning camera or lenses. The only requirement is that he know about the facts "" represented or the scene or objects photographed. After this is established, a witness may say whether the photographs correctly and accurately portray such facts. When the photograph is thus verified, it is admissible. Id.
XVI.
IN MEDICAL MALPRACTICE ACTIONS, DAMAGES FOR ACTUAL ECONOMIC LOSS ARE NOT RECOVERABLE TO THE EXTENT THAT
21
THOSE LOSSES ARE REPLACED OR INDEMNIFIED BY INSURANCE OR BY BENEFITS. Argument Iowa law prohibits the recovery for actual losses, either past or present, in medical malpractice actions, if those losses are payable by some other fund or source. Section 147.136 of the Iowa Code states: In an action for damages for personal injury against a physician and surgeon ... based on the alleged negligence of the practitioner ... or upon the alleged negligence of the hospital in patient care, in which liability Is admitted or established, the damages awarded shall not include actual economic losses incurred or to be incurred in the future by the claimant by reason of personal injury, including but not limited to, the cost of reasonable and necessary medical care, rehabilitation services, and custodial care, and the loss of services and loss of earned income, to the extent that those losses are replaced or are indemnified by insurance, or by governmental, employment, or service benefit programs or from any other source except the assets of the claimant .... Id.
XVII.
IOWA CODE SECTION 147.136 IS PREEMPTED BY THE MEDICARE SECONDARY PROVIDER STATUTE AND PLAINTIFF IS ENTITLED TO CLAIM AS DAMAGES ALL HEALTH CARE EXPENSES PAID BY MEDICARE. Argument
The Medicare Secondary Provider ("MSP") statute, as amended by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, provides as follows: (b) Medicare as secondary payer ... (2) Medicare secondary payer (A) In general Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that - ... (ii) payment has been made or can reasonably be expected to be made under a workmen's
22
compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance. In this subsection, the term "primary plan" means a group health plan or large group health plan, to the extent that clause (i) applies, and a workmen's compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance, to the extent that clause (ii) applies. An entity that engages in a business, trade, or profession shall be deemed to, have a selfinsured plan if it carries its own risk (whether by a failure to obtain insurance, or otherwise) in whole or in part. (B) Repayment required ... (iii) Action by United States in order to recover payment made under this subchapter for an item or service, the United States may bring an action against any or all entities that are or were required or responsible ... to make payment with respect to the same item or service ... under a primary plan... (d) Effective Dates ... The amendments made by this section (1) in the case of subsection (b) ... as if included in the enactment Of section 953 of the Omnibus Reconciliation Act of 1980. 42 U.S.C. 1395y. In passing the MSP statute, Congress's express purpose was to lower Medicare costs by making the government a secondary provider of medical coverage when there are other sources of coverage. Blue Cross & Blue Shield of Tex., 995 F.2d 70, 70-73 (N.D. Ala. 2001). With its 2003 amendments to the MSP, Congress expanded Medicare's scope as the secondary provider of medical coverage by legislating that all parties involved in a claim are now subject to the MSP reimbursement requirement. See Larue & Posin, Medicaid, ERISA and Other Medical Liens Against Personal Injury Recoveries, 61 La. B.J. 335 (2004)(noting abrogation of 5th Circuit's ruling in Thompson v. Goetzmann, 337 P.3d 489 (5th Cir. 2003), by the 2003 MSP amendments in the Medicare Prescription Drug Act and the creation of a lien against all parties, including alleged tortfeasors, for reimbursement). Thus, the aim of the 2003 amendments to the MSP, which are retroactive to 1980, is to make Medicare benefits secondary to all potential payers who are responsible fix the medical expenses and preserve Medicare's right to reimbursement from these parties. 42 U.S.C. 1395y(B)(2)(A)(ii),(d); See 42 C.F.R. 411.32(a) ("Medicare benefits are
23
secondary to benefits payable by a third party payer even if the State law or the third party payer states that its benefits are secondary to Medicare benefits or otherwise limits its payments to Medicare beneficiaries."). Preemption of a state law by a federal law occurs when the federal and state law conflict even though Congress says nothing about it. See Burlington N.R.R.Co. v. State of Minnesota, 882 F.2d 1349, 1352 (8th Cir, 1989)(identifying four bases for preemption); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)(a state law is preempted when it acts as an obstacle to the accomplishment of the full purposes and objectives of Congress."). Here, the MSP, as amended by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, with its expansive definition of a self-insured plan to include an entity that engages in a business, trade, or profession, preserves Medicare's right to reimbursement when and if medical benefits are paid by another party. 1 Iowa Code Section 147.136, by preventing Medicare from becoming a secondary provider of medical coverage when there are other payers available and by eliminating its right of reimbursement against these other payers, is therefore preempted by Section 1395y because it is in direct conflict with Medicare's goal. See Klinefelter v. Faultersak, 31 F. Supp. 2d 457, 459 - 60 (E.D. Pa. 1998) (state law excluding evidence of medical bills that were payable by other insurance preempted by Section 1395y); See also Smith v. Travelers Indem. Co., 763 F. Supp. 554, 558 (M.D. Fla. 1989)(Section 1395y preempts state collateral insurance statute that attempted to reduce automobile liability insurers' liability by the amount of Medicare payments). Accordingly, Section 147.136, to the extent that it allows alleged tortfeasors, either as an individual or an organization, to become secondary to Medicare, is preempted. A plaintiff is,
Although the Medicare statute does not define "entity," courts routinely rely on the plain meaning of a word to define it in a statute. U.S. v. Auginish, 266 F.3d 781, 784 (8th Cir. 2001). According to its dictionary definition, "entity" can refer to an individual or an organization. Merriam-Webster Unabridged Collegiate Dictionary, 2004. 24
therefore, entitled to claim all health care expenses as damages which have been paid by Medicare.
25
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
PLAINTIFFS PROPOSED JURY INSTRUCTIONS
COME NOW the Plaintiffs, Margaret and John Smith, and hereby request the following jury instructions: 1. Statement of the Case 2. Uniform Instruction No. 100.2: Duties of Judge and Jury, instructions as whole 3. Uniform Instruction No. 100.3: Burden of Proof, Preponderance of the Evidence 4. Uniform Instruction No. 100.4: Evidence 5. Uniform Instruction No. 100.5: Deposition Testimony 6. Uniform Instruction No. 100.9: Credibility of Witnesses 7. Uniform Instruction No. 100.11: Hypothetical Question, Expert Testimony 8. Uniform Instruction No. 100.12: Opinion Evidence, Expert Witness 9. Uniform Instruction No. 100.15: Statements by a Party Opponent 10. Uniform Instruction No. 100.8: Stipulated Testimony 11. Uniform Instruction No. 700.2: Ordinary Care Common Law Negligence Defined 12. Uniform Instruction No. 730.1: Liability of Employer (specially drafted) 13. Uniform Instruction No. 730.2: Scope of Employment
14. Uniform Instruction No. 1600.4: Negligence Duty of Hospital Professional Services 15. Uniform Instruction No. 1600.5: Negligence Duty of Hospital Nonmedical Administrative Ministerial or Routine Care 16. Uniform Instruction No. 700.3: Cause in Fact 17. Uniform Instruction No. 700.3A: Scope of Liability 18. Uniform Instruction No. 1600.1: Essentials for Recovery Loring Hospital (specially drafted) 19. Uniform Instruction No. 200.1: Elements of Recovery Margaret Smith 20. Uniform Instruction No. 200.31: Spousal Consortium John Smith 21. Uniform Instruction No. 200.34: Previous Infirm Condition 22. Uniform Instruction No. 200.37: Mortality Tables Personal Injury 23. Uniform Instruction No. 200.38: Quotient Verdict 24. Uniform Instruction No. 100.18: General Instructions to the Jury 25. Uniform Instruction No. 100.21: General Instruction Juror Notes 26. Instruction related to Verdict Forms Respectfully submitted, /s/Tyler C. Patrick J. Barton Goplerud, AT0002983 Tyler C. Patrick, AT0010268 HUDSON MALLANEY SHINDLER & ANDERSON, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265-5749 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS
I hereby certify that on June 19, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
STATEMENT OF THE CASE This is a hospital negligence action. On March 4, 2010, Margaret Smith was found on the floor of her home. After being discovered on the floor of her home, Margaret Smith was taken to the emergency room at Loring Hospital, and was later admitted into the hospital. In the early morning hours of March 5, 2010, while she was an inpatient at Loring Hospital, Margaret Smith fell and suffered injury. Margaret Smith and John Smith allege that Loring Hospital was negligent in failing to recognize that Margaret Smith was at an increased risk for falling and for choosing not to put safe fall protection measures into place to prevent her from falling. Margaret Smith and John Smith further allege that Loring Hospitals negligence was a cause of harm to Margaret Smith, including past medical expense, pain and suffering, and loss of function of her mind and body. As a result, Margaret Smith is seeking compensation from Loring Hospital for those harms. In addition, John Smith claims he has suffered a loss of consortium as a result of the negligence of Loring Hospital. Loring Hospital denies that it was negligent. Further, Loring Hospital denies that any negligence on its part caused harm to Margaret Smith. Do not consider this summary proof of any claim. Instead, decide the facts from the evidence and apply the law which I will give to you now.
INSTRUCTION NO.____ My duty is to tell you what the law is. Your duty is to accept and apply this law. You must consider all of the instructions together because no one instruction includes all of the applicable law. The order in which I give these instructions is not important. Your duty is to decide all fact questions. Do not be influenced by any personal likes or dislikes, sympathy, bias, prejudices or emotions.
INSTRUCTION NO.____
Whenever a party must prove something they must do so by the preponderance of the evidence. Preponderance of the evidence is evidence that is more convincing than opposing evidence. Preponderance of the evidence does not depend upon the number of witnesses testifying on one side or the other.
INSTRUCTION NO.____
You shall base your verdict only upon the evidence and these instructions. Evidence is: 1. Testimony in person or by deposition. 2. Exhibits received by the court. 3. Stipulations which are agreements between the attorneys. 4. Any other matter admitted (e.g. answers to interrogatories, matters which judicial notice was taken, and etc.). Evidence may be direct or circumstantial. The weight to be given any evidence is for you to decide. Sometimes, during a trial, references are made to pre-trial statements and reports, witnesses' depositions, or other miscellaneous items. Only those things formally offered and received by the court are available to you during your deliberations. Documents or items read from or referred to which were not offered and received into evidence, are not available to you.
The following are not evidence: 1. Statements, arguments, questions and comments by the lawyers. 2. Objections and rulings on objections. 3. Any testimony I told you to disregard. 4. Anything you saw or heard about this case outside the courtroom.
INSTRUCTION NO.____
Certain Testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before the trial and preserved in writing. Consider that testimony as if it had been given in court.
INSTRUCTION NO.____
You will decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. You must try to reconcile any conflicts in the evidence; but, if you cannot, you will accept the evidence you find more believable. In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witnesses' testimony. There are many factors which you may consider in deciding what testimony to believe, for example: 1. Whether the testimony is reasonable and consistent with other evidence you believe; 2. The witnesses' appearance, conduct, age, intelligence, memory and knowledge of the facts; and, 3. The witnesses' interest in the trial, their motive, candor, bias and prejudice.
INSTRUCTION NO.____
An expert witness was asked to assume certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. If any fact assumed in the question has not been proved by the evidence, you should decide if that omission affects the value of the opinion.
10
INSTRUCTION NO.____
You have heard testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinion on matters in that field and the reasons for their opinion. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.
11
INSTRUCTION NO.____
You have heard evidence claiming a witness made statements before this trial while under oath and while not under oath. If you find such a statement was made, you may regard the statement as evidence in this case the same as if the witness had made it under oath during the trial. If you find such a statement was made and was inconsistent with the witnesses testimony during the trial you may also use the statement as a basis for disregarding all or any part of the witnesses testimony during the trial but you are not required to do so. You should not disregard witnesses testimony during the trial if other credible evidence supports it or if you believe it for any other reason.
12
INSTRUCTION NO.____
Counsel has stipulated that if Dr. Daniel Kensinger were called as a witness he would testify as stipulated. Consider stipulated testimony as if it had been given in court.
13
INSTRUCTION NO.____
"Negligence" means failure to use ordinary care. In this case, ordinary care is the care which a reasonably careful hospital would use under similar circumstances. "Negligence" is doing something a reasonably careful hospital would not do under similar circumstances, or failing to do something a reasonably careful hospital would do under similar circumstances.
14
INSTRUCTION NO.____ Loring Hospital is liable for the negligent acts and omissions of its nurses and hospital staff if the acts and omissions are done in the scope of the employment.
15
INSTRUCTION NO.____ For an act to be within the scope of a nurses or other hospital staffs employment, the act must be necessary to accomplish the purpose of the employment, and it must be intended to accomplish that purpose.
16
INSTRUCTION NO.____
A hospital must use the degree of skill, care and learning ordinarily possessed and exercised by other hospitals in similar circumstances. A violation of this duty is negligence.
17
INSTRUCTION NO.____
A hospital must use the degree of ordinary care and attention that the known mental and physical condition of a patient requires. A violation of this duty is negligence.
18
INSTRUCTION NO.____
The conduct of a party is a cause of damage when the damage would not have happened except for the conduct.
19
INSTRUCTION NO.____
You must decide whether the claimed harm to Margaret Smith is within the scope of Loring Hospitals liability. Margaret Smiths claimed harm is within the scope of a Loring Hospitals liability if that harm arises from the same general types of danger that Loring Hospital should have taken reasonable steps to avoid. Consider whether repetition of Loring Hospitals conduct makes it more likely harm of the type Margaret Smith claims to have suffered would happen to another. If not, the harm is not within the scope of liability.
20
INSTRUCTION NO.____
Margaret Smith must prove all of the following propositions: 1. Loring Hospital, through the actions of its nurses and staff, was negligent in one or more of the following ways: a. In failing to recognize Margaret Smith was at an increased risk for falling; and/or b. In choosing not to put safe fall protection measures into place to prevent Margaret Smith from falling; 2. The negligence was a cause of damage to the Margaret Smith. 3. The amount of damage. If Margaret Smith has failed to prove any of these propositions, Margaret Smith is not entitled to damages. If Margaret Smith has proved all of these propositions, Margaret Smith is entitled to damages in some amount.
21
INSTRUCTION NO.____
If you find Margaret Smith is entitled to recover damages, it is your duty to determine the amount. In doing so you shall consider the following items:
1.
The reasonable value of necessary hospital charges, doctor charges and prescriptions from the date of injury to the present time.
2.
Loss of function of the mind and body from the date of injury to the present time.
3.
The present value of future loss of function of the mind and body.
4.
Physical and mental pain and suffering from the date of injury to the present time. Physical pain and suffering may include, but is not limited to, unpleasant feelings, bodily distress or uneasiness, bodily suffering, sensations or discomfort. Mental pain and suffering may include, but is not limited to, mental anguish, nervousness, worry, anxiety, irritability, disappointment, depression, confusion, disorientation, apprehension, embarrassment, loss of enjoyment of life, a feeling of uselessness or emotional distress. The present value of future physical and mental pain and suffering. Physical and mental pain and suffering have already been explained to you in this Instruction.
5.
Future damages must be reduced to present value. "Present value" is a sum of money paid now in advance which, together with interest earned at a reasonable rate of return, will compensate the Margaret Smith for future losses. The amount you assess for physical and mental pain and suffering in the past and future, and loss of function of the mind and body in the past and future, cannot be measured by any exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties. The amount you assess for any item of damage must not exceed the amount caused by the defendant as proved by the evidence. A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage. Similarly, damages awarded to one party shall not be included in any amount awarded to another party. Add together the amounts, if any, you find for each of the above items and the total will be used to answer the special verdicts.
22
INSTRUCTION NO.____
John Smith has made a claim for loss of parental consortium. Loss of parental consortium is the present value of the services which Margaret Smith would have performed for her son, John Smith, but for her injury. "Parental consortium" is the relationship between parent and child and the right of the child to the benefits of companionship, comfort, guidance, affection and aid of the parent in every parental relationship, general usefulness, industry and attention within the family. It does not include the loss of financial support from the injured parent, nor mental anguish caused by the parent's death. A child is not entitled to damages for loss of parental consortium unless the parent's injury has caused a significant disruption or diminution of the parent-child relationship. Damages for loss of parental consortium are limited in time to the shorter of the child's or parents normal life expectancy.
23
INSTRUCTION NO.____
If Margaret Smith had health conditions making her more susceptible to injury than a person in normal health, then Loring Hospital is responsible for all injuries and damages which are experienced by Margaret Smith that are caused by Loring Hospitals actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.
24
INSTRUCTION NO.____
A Standard Mortality Table indicates the normal life expectancy of people who are the same age as Margaret Smith is 3.18 years. The statistics from a Standard Mortality Table are not conclusive. You may use this information, together with all the other evidence, about Margaret Smith's health, habits, occupation, and lifestyle, when deciding issues of future damages.
25
INSTRUCTION NO.____
In arriving at an item of damage you cannot arrive at a figure by taking down the estimate of each juror as to an item of damage, and agreeing in advance that the average of those estimates shall be your item of damage.
26
INSTRUCTION NO.____
Upon retiring you shall select a foreman or forewoman. It will be his or her duty to see discussion is carried on in an orderly fashion, the issues are fully and freely discussed, and each juror is given an opportunity to express his or her views. Your attitude at the beginning of your deliberations is important. It is not a good idea for you to take a position before thoroughly discussing the case with the other jurors. If you do this, individual pride may become involved and you may later hesitate to change an announced position even if shown it may be incorrect. Remember you are not partisans or advocates, but are judges - judges of the facts. Your sole interest is to find the truth and do justice.
27
INSTRUCTION NO.____
During the trial, you have been allowed to take notes. You may take these with you to the jury room to use in your deliberations. Remember, these are notes and not evidence. Generally, they reflect the recollection or impressions of the evidence as viewed by the person taking them, and may be inaccurate or incomplete. Upon reaching a verdict, leave the notes in the jury room and they will be destroyed.
28
INSTRUCTION NO.____
I am giving you a special verdict form. If you all agree to the answers to the questions, the verdict will be signed by the person you selected to serve as foreman or forewoman. When you have agreed upon a verdict and appropriately signed it, inform the Court Attendant.
Dated this _____ day of _________________, 2013.
_________________________________________ Judge of the 5th Judicial District of Iowa
29
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
VERDICT FORM
COMES NOW the Jury, and returns the following verdict on the Questions submitted:
Question No. 1: Was defendant Loring Hospital negligent? Answer yes or no. Answer:
[If your answer is yes, go on to Question 2.]
Question No. 2: Was the negligence of Loring Hospital a cause of any item of harm to the plaintiff? Answer "yes" or "no." Answer:
[If your answer is yes, go on to Question 3.]
30
Question No. 3: Was the harm suffered by Margaret Smith within the scope of liability created by Loring Hospitals negligence? Answer yes or no Answer:
[If you answered yes, go on to Question No. 4.]
Question No. 4: State the amount of harm sustained by the Margaret Smith caused by Loring Hospitals negligence as to each of the following items of harm. If Margaret Smith has failed to prove any item of harm, or has failed to prove that any item of harm was caused by Loring Hospitals negligence, enter 0 for that item.
1.
Past medical expenses
$___________________
2.
Past loss of function of body and mind.
$___________________
3.
Future loss of function of body and mind
$___________________
4.
Past physical and Mental Pain and Suffering
$___________________
5.
Future physical and Mental pain and Suffering $___________________
TOTAL (add the separate items of damage)
$___________________
31
___________________________ FOREMAN OR FOREWOMAN*
*To be signed only if verdict is unanimous
_______________________________ Juror** _______________________________ Juror** _______________________________ Juror** _______________________________ Juror**
_______________________________ Juror** _______________________________ Juror** _______________________________ Juror**
**To be signed by the jurors agreeing thereto after six or more hours of deliberation.
32
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
PLAINTIFFS WITNESS AND EXHIBIT LIST
COME NOW the Plaintiffs, Margaret and John Smith, and for their Witness and Exhibit List state as follows: WITNESS LIST 1. 2. 3. 4. 5. 6. 7. 8. Margaret Smith (by deposition); John Smith; Connie Smith; Timothy Galbraith, RN; Dr. Daniel Kensinger, M.D. (by stipulation); Lynn OBrien, RN, BSN; Any witness called or disclosed in discovery by Defendant; Plaintiff reserves the right to call any witnesses for the purposes of: a. Rebutting any of the testimony or exhibits introduced or used by the Defendants; b. Laying foundation; and
c.
Impeaching the testimony of any of the witnesses called by the Defendant. EXHIBIT LIST
1.
Medical Records of Margaret Smith, Loring Hospital March 5th through March
24, 2010 2. 2010 3. 2010 4. 2010. 5. Medical Records for Margaret Smith Mercy Medical Center Sioux City March Medical Bills for Margaret Smith, CNOS March 5th through September 20, Medical Records for Margaret Smith, CNOS March 5th through September 20, Medical Bills of Margaret Smith, Loring Hospital March 5th through March 24,
5th through March 27, 2010; 6. Medical Bills for Margaret Smith, Mercy Medical Center Sioux City March 5,
through March 27, 2010; 7. Medical Records for Margaret Smith, Blackhawk Life Care Center March 25th
through July 25, 2010; 8. Medical Bills for Margaret Smith, Blackhawk Life Care Center March 25th
through July 25, 2010; 9. Medical Records for Margaret Smith, TriMark Physicians Group March 12th
through March 12, 2012 10. 11. Loring Hospital Fall Prevention Guidelines; C.V. Lynn OBrien;
12. 13.
MSPRC Conditional Payments Summary; Plaintiff reserves the right to introduce any of the following exhibits: a. Any exhibit necessary to respond to unanticipated evidence offered by the Defendant. b. Any exhibits or documents referred to by Plaintiff and Defendant as part of any answer to interrogatory, request for production of documents or deposition. c. Any summary document or exhibit used as necessary and appropriate pursuant to the Iowa Rules of Evidence. d. Summary exhibits pursuant to the Iowa Rules of Evidence
Respectfully submitted, /s/Tyler C. Patrick J. Barton Goplerud, AT0002983 Tyler C. Patrick, AT0010268 HUDSON MALLANEY SHINDLER & ANDERSON, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265-5749 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS I hereby certify that on June 19, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
PLAINTIFFS MOTION IN LIMINE
COMES NOW the Plaintiffs, and hereby move the Court for an Order preventing the Defendant and its counsel from mentioning to the jury at any stage of the proceedings, including voir dire, opening statements, closing argument, and eliciting or attempting to elicit any evidence by the use of leading or suggestive questions to any witness, any reference or any statement or evidence on the following subjects: DIVISION I: Comparative Fault Any claim or evidence of comparative fault on the part of Plaintiff, Margaret Smith, should be excluded. The Iowa Supreme Court has recently addressed the issue of comparative fault in medical negligence cases. See Wolbers v. Finley Hospital, 673 N.W.2d 728, 731-33 (Iowa 2003) and DesMoss v. Hamilton, 644 N.W.2d 302, 305 (Iowa 2002). Based on those cases, it is clear that there is no legitimate defense of comparative fault in this case and that Defendant should be prevented from arguing or implying that the actions of Plaintiff, Margaret Smith, in any way contributed to her injuries.
DIVISION II: Medical Literature The Defendant has designated an expert in this case. A written Rule 1.508 Summary has been provided by defense counsel to Plaintiffs counsel. In those summaries, no medical literature has been specifically identified in this case. Furthermore, Defendants designated expert, Barb Braafhart, stated in her deposition that she does not rely upon medical literature in support of her opinion, but rather her experience as a nurse. As such, it is too late to insert such literature into the case on the eve of trial. Pursuant to this Division of Plaintiffs Motion in Limine, Plaintiffs are seeking to have this court order that there shall be no reference to peer reviewed medical literature other than that which has been disclosed prior to trial of this matter. To allow any late reference to such literature would be prejudicial to the Plaintiffs and would not allow Plaintiffs counsel sufficient time to review said literature, cross check the existence of contrary literature, and effectively cross examine Defendants expert on those issues.
DIVISION III: Any Use of the Word Lottery or Similar Words to Suggest that John Smith Seeks to Profit from his Mothers Injury In recent trials, Plaintiffs counsel has had defense counsel in jury selection and/or final attempt to equate the filing of a lawsuit with the lottery. For obvious reasons, any such reference should not occur in a court of law and the Plaintiffs would request an Order from this Court preventing any such reference. See Conn v. Alfstad, 2011 WL 1566005 *1 (Iowa App. 2011) (granting new trial to Plaintiffs for inappropriate statements made by defense counsel in closing argument insinuating that father was seeking to profit from daughters dog bite injury). Such words and/or suggestions are used solely for the calculated purpose of inflaming the passions and prejudices of the jury, and bear no relevance to the case at hand. Id. As such, they should be
excluded.
Respectfully submitted, /s/Tyler C. Patrick J. Barton Goplerud, AT0002983 Tyler C. Patrick, AT0010268 HUDSON MALLANEY SHINDLER & ANDERSON, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265-5749 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS I hereby certify that on June 19, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
RESISTANCE TO DEFENDANT LORING HOSPITALS MOTION IN LIMINE PARTS 4, 11 & 13
COMES NOW the Plaintiffs, and for their Resistance to Defendant Loring Hospitals Motion in Limine parts 4, 11 and 13 state as follows: Plaintiffs offer no resistance to Defendants Motion in Limine, parts 1-3; 5-10; and 12. Resistance to Motion in Limine Part 4 In its motion in limine, part 4, Loring Hospital argues that Plaintiffs should be prevented from eliciting testimony regarding the standard of care of the hospital and its staff by anyone other than Plaintiffs expert. Plaintiffs resist. During the course of discovery, counsel for Plaintiffs took the deposition of Tim Galbraith, a nurse that was on duty at the time of Margaret Smiths fall at Loring Hospital. Surely, Plaintiffs counsel should be permitted to question Mr. Galbraith on the standard of care of the hospital and its staff, as he was an employee of the Loring Hospital, and his treatment of Margaret Smith the morning she was injured bears directly on the issue of whether Loring Hospital complied with the standard of care. Indeed, Mr. Galbraiths own actions in assessing Margaret Smith as a level one fall risk go to the heart of this hospital malpractice case. Resistance to Motion in Limine Part 11 In its motion in limine, part 11, Loring Hospital argues that Plaintiffs should be prevented from eliciting testimony from John Smith that he saw a bed alarm at the Sioux City hospital and therefore Loring Hospital should have bed alarms. Plaintiffs resist. The central issue in this malpractice case is
whether Loring Hospital failed to adequately assess Margaret Smiths level of fall risk, and whether appropriate fall protection measures were put into place to prevent her from falling. Both Plaintiffs and Defendants experts have opined on the appropriateness of bed alarms in the context of Margaret Smiths care the morning she fell at Loring Hospital. Plaintiffs anticipate that testimony may be elicited from Defendants witnesses that suggests that bed alarms are not often or widely used in the context of fall protection, or alternatively, that they do not really work to prevent falls. To be sure, Defendants expert Barb Braafhart suggested in her deposition that even if a bed alarm had been used, it likely would not have prevented Margaret Smiths fall. John Smith should be able to testify as to his personal observations at the Sioux City hospital, as it goes to the fact that those sorts of devices are widely available and used by other hospitals to prevent patient falls, and bears on the issue of Loring Hospitals decision not to use one for Margaret Smith when it had them available for her safety. In other words, such testimony is relevant because, if other hospitals are using bed alarms, they are clearly seen as an essential component of patient safety and care. Resistance to Motion in Limine Part 13 In its motion in limine, Defendant argues that Plaintiffs should be restricted from putting on evidence of any claim that Margaret Smith now lives in a nursing home because of the fall at Loring Hospital. Plaintiffs resist. John Smith testified in his deposition that his mothers condition deteriorated rapidly after her fall at Loring Hospital, and the major surgery that followed. It is John Smiths belief, based upon his personal observations of his mothers deterioration after the fall, that his mother was never the same after this traumatic event, and that it hastened her admittance into the nursing home. John Smith should be permitted to testify as to his observations of his mothers deterioration following her fall at Loring Hospital, and his opinion that the fall directly contributed to her expedited need for nursing home care. See Sonnek v. Warren, 522 N.W.2d 45, 51 (Iowa 1994) (lay opinion testimony is admissible if it is: (a) rationally based on the witnesss perception; and (b) helpful to a clear understanding of the witnesss testimony or the determination of a fact issue.). John Smith took care of his mother, Margaret Smith, before and after her fall at Loring Hospital, and as such, his testimony as to her physical condition is
2
rationally based upon his perception. Furthermore, such testimony is relevant on the issue of Margaret Smiths claim of loss of full mind and body, which is a central issue in this case. WHEREFORE, for those reasons set forth above, Plaintiffs respectfully resist Defendants motion in limine parts 4, 11 and 13.
Respectfully submitted, /s/Tyler C. Patrick J. Barton Goplerud, AT0002983 Tyler C. Patrick, AT0010268 HUDSON MALLANEY SHINDLER & ANDERSON, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265-5749 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS
I hereby certify that on June 20, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
Notice Id: 2CA101
IOWA DISTRICT COURT FOR SAC COUNTY
MARGARET SMITH JOHN W SMITH ,
Case No: 02811 LACV019319 Trial Notice
Plaintiff / Petitioner, vs. LORING HOSPITAL, Defendant / Respondent.
The above entitled matter is hereby scheduled for jury trial on 09/25/13 at 09:00 AM .
/s/ Kellie Orres ----------------------------------Designee of the Court
Clerk to provide copies or notice of this document to attorneys of record, parties appearing pro se and judge if assigned
Docket Code = OSTR
Recipient List Case ID : 02811 LACV019319 - MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL E-FILED 2013 JUN 21 2:34 PM SAC - CLERK OF DISTRICT COURT Event Cd : OSTR JOHN CALHOON GRAY TYLER CLARK PATRICK JOHN B GOPLERUD filed filed filed
Notice Id: 2CA101
IOWA DISTRICT COURT FOR SAC COUNTY
MARGARET SMITH JOHN W SMITH ,
Case No: 02811 LACV019319 Trial Notice
Plaintiff / Petitioner, vs. LORING HOSPITAL, Defendant / Respondent.
The above entitled matter is hereby scheduled for jury trial on 09/25/13 at 09:00 AM .
/s/ Kellie Orres ----------------------------------Designee of the Court
Clerk to provide copies or notice of this document to attorneys of record, parties appearing pro se and judge if assigned
Docket Code = OSTR
Recipient List Case ID : 02811 LACV019319 - MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL E-FILED 2013 JUN 21 2:34 PM SAC - CLERK OF DISTRICT COURT Event Cd : OSTR JOHN CALHOON GRAY TYLER CLARK PATRICK JOHN B GOPLERUD filed filed filed
E-FILED 2013 JUL 26 9:58 AM SAC - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR SAC COUNTY IOWA
MARGARET SMITH JOHN W SMITH PLAINTIFF/PETITIONER VS. LORING HOSPITAL DEFENDANT/RESPONDENT CASE NO. 02811 LACV019319 1.944 DISMISSAL NOTICE
Petition Filed: 01/10/12 Dismissal Date: 01/01/2014 Date of Notice: 07/26/2013 Pursuant to the provisions of Rule of Civil Procedure 1.944, this case shall be tried or shall be subject to dismissal on the above date unless an order is entered as provided by said rule. * *Rule 1.944 does not apply to cases (a) pending on appeal from a court of record to a higher court or under order of submissions to the court, (b) in which proceedings subsequent to judgment or decree are pending, (c) which have been stayed pursuant to the Servicemembers Civil Relief Act, (d) where a party is paying a claim pursuant to written stipulation on file or court order, and (e) awaiting the action of a referee, master, or other court-appointed officer, provided, however, that a finding as to (a) through (e) is made and entered of record. Post December 31 trial or trial-setting conference dates will not serve to avoid dismissal.
/s/ DONNA GEERY CLERK OF DISTRICT COURT SAC COUNTY IOWA
Recipient List Case ID : 02811 LACV019319 - MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL E-FILED 2013 JUL 26 9:58 AM SAC - CLERK OF DISTRICT COURT Event Cd : NONO LORING HOSPITAL filed
E-FILED 2013 AUG 06 2:14 PM SAC - CLERK OF DISTRICT COURT
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
PLAINTIFFS MOTION EXEMPTING DISMISSAL PURSUANT TO IOWA RULE OF CIVIL PROCEDURE
COMES NOW the Plaintiff, Margaret Smith and John Smith, and in support of their Motion Exempting Dismissal Pursuant to Rule 1.944, states to the Court as follows: 1. That Plaintiff filed her petition on January 10, 2012. 2. That this matter was originally set for jury trial on June 26, 2013. 3. That Plaintiff was prepared to try this matter on the original trial date. 4. That on June 21, 2013, the Court was required to continue the trial because there was not a judge available. 5. That the new trial date in this matter is September 25, 2013. 6. That pursuant to the rule 1.944 Dismissal Notice, this case must be tried by January 1, 2014 unless an Order is entered by this Court setting the trial for a later date. WHEREFORE, Plaintiffs respectfully request the Court enter an Order Exempting Dismissal Pursuant to Rule 1.944. In addition, Plaintiffs request that the Court order that the Clerk of Court hereby rescind its proposed Dismissal of this case pursuant to Iowa Rule of Civil Procedure 1.944, and for such other relief as the Court deems just in the premises.
E-FILED 2013 AUG 06 2:14 PM SAC - CLERK OF DISTRICT COURT
Respectfully submitted,
/s/Tyler C. Patrick J. Barton Goplerud, AT 0002983 Tyler C. Patrick, AT0010268 Hudson, Mallaney, Shindler & Anderson, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 Email: jbgoplerud@hudsonlaw.net tpatrick@hudsonlaw.net ATTORNEYS FOR THE PLAINTIFFS I hereby certify that on August 6, 2013, I electronically filed the foregoing document with the Sac County District Court by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
E-FILED 2013 AUG 20 11:18 AM SAC - CLERK OF DISTRICT COURT
Defendant.
: : : : : : : : : : :
LAW NO. LACV19319
ORDER EXEMPTING DISMISSAL PURSUANT TO RULE 1.944
NOW on this 20th day of August, 2013 the above-captioned matter comes before the Court after receipt of the notice from the Sac County Clerk of Court granting potential Dismissal of this matter pursuant to Iowa Rule of Civil Procedure 1.944. The Court hereby grants that this case shall be exempt from Rule 1.944 Dismissal for good cause. _________________________________________ JUDGE, SECOND JUDICIAL DISTRICT OF IOWA Original filed. Copy to: Tyler C. Patrick J. Barton Goplerud 5015 Grand Ridge Drive, Ste. 100 West Des Moines, IA 50265 ATTORNEY FOR PLAINTIFFS John C. Gray HEIDMAN LAW FIRM L.L.P. 1128 Historic Fourth Street P.O. Box 3086 Sioux City, IA 51102 ATTORNEY FOR DEFENDANT
State of Iowa Courts Type: Case Number LACV019319 ORDER EXEMPTING FROM 1.944 DISMISSAL Case Title MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL So Ordered
Electronically signed on 2013-08-20 11:18:07
page 2 of 2
IN THE IOWA DISTRICT COURT FOR SAC COUNTY ______________________________ ) MARGARET SMITH and JOHN SMITH,) ) Plaintiffs, ) No. LACV19319 ) vs. ) ) LORING HOSPITAL, ) ORDER ) Defendant. ) ______________________________) The above action comes before the Court for review on the 29th day of August, 2013. The case is scheduled for trial on September 25, 2013. Having reviewed the court file, the Court finds that a Final Pretrial Conference should be held as hereinafter provided. ORDER IT IS ORDERED that a Final Pretrial Conference in the above proceeding will be held on Friday, September 20, 2013, at 2:00 p.m. in chambers at the Sac County Courthouse, Sac City, Iowa. IT IS FURTHER ORDERED: 1. That all trial exhibits shall be marked for identification at the pretrial conference; 2. That the parties, or their duly authorized representatives, shall personally appear at the pretrial
conference, or be immediately available by telephone, for the purpose of discussing settlement possibilities. Plaintiff shall submit a settlement demand to defense counsel at least five (5) days prior to the pretrial conference. 3. That the parties shall prepare, sign, and submit a joint, written Final Pretrial Stipulation Report at the pretrial conference as to each of the following items: (a) A statement of all stipulations to avoid unnecessary proof; (b) A list of proposed exhibits for each party, with a specification of any objections to same by opposing counsel; (c) A short, concise statement of known or anticipated evidentiary disputes; (d) A short, concise statement of legal issues, particularly those which may be unusual and require research; (e) A statement of any other matters which may aid, expedite or simplify the trial; and (f) A witness list.
4. That the parties shall submit and file all Motions in Limine, and Requested Jury Instructions, prior to the pretrial. The Final Pretrial Conference shall be governed
by the provisions of RCP 1.602. appear.
Counsel shall personally
Failure to comply with this Order will result in
the imposition of sanctions.
State of Iowa Courts Type: Case Number LACV019319 OTHER ORDER Case Title MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL So Ordered
Electronically signed on 2013-08-29 10:47:01
page 4 of 4
E-FILED 2013 SEP 19 8:36 AM SAC - CLERK OF DISTRICT COURT
Date:
09/19/2013 IN THE IOWA DISTRICT COURT FOR SAC COUNTY
Margaret Smith and John Smith Plaintiff No. lacv019319 vs.
Loring Hospital Defendant MEDIA COORDINATOR'S NOTICE OF REQUEST FOR EXPANDED MEDIA COVERAGE OF TRIAL OR PROCEEDING COMES NOW the undersigned person, who states as follows: 1. Certain representatives of the news media want to use photographic equipment (__X__), television cameras (__X__) or electronic sound recording equipment (__X__) in courtroom coverage in the above proceeding. 2. This filing is for all pre-trial motions, plea-taking, trial and sentencing. 3. The request(s) for expanded media coverage are described as follows: Two video cameras, tripods, videographers; audio accessibility; two photographers with up to two still cameras and two lenses each, two tripods. 4. This notice of request(s) for expanded media coverage is filed at least 14 days in advance of the proceedings for which expanded media coverage is being requested or grounds for shorter notice are set out in an attached statement. 5. I sent a copy of this notice by ordinary mail directed to the last known address of all counsel of record, parties appearing without counsel, the district court administrator for this judicial district, and the judicial officer expected to preside at the trial or proceedings for which expanded media coverage has been requested, as follows:
E-FILED 2013 SEP 19 8:36 AM SAC - CLERK OF DISTRICT COURT
ATTORNEYS: PROSECUTOR: J. Barton Goplerud 5015 Grand Ridge Dr. #100 West Des Moines, IA 50265 DEFENSE: John C. Gray 1128 4th St. Sioux City, IA 51102 PARTIES APPEARING WITHOUT COUNSEL: DISTRICT COURT ADMINISTRATOR: Scott Hand PRESIDING JUDGE: CLERK OF COURT: Sac County, Iowa WHEREFORE, the undersigned media coordinator gives notice of request(s) for expanded media coverage as aforesaid. Signature__/s/ Jesse Helling_______________________ Date_9/19/13_______________________ Jesse Helling Media Coordinator, Region 4 Third Judicial District of Iowa Address: Fort Dodge Messenger 713 Central Ave. Fort Dodge, IA 50501 Phone: (800)622-6613 Fax: (515)574-4529

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E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

MARGARET SMITH and JOHN SMITH, Plaintiffs,

LORING HOSPITAL, Defendant.

which may be used at the trial of this matter.

Medical records from Loring

Hospital from 03/4-5/2010

Loring Hospital Fall Risk B

Guidelines in effect 3/4/2010 Curriculum Vitae Barbara

Photograph of place where Mrs.

side rails up Photograph of call light

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

Photographs of call light on side

Photograph of room showing location of bathroom Photograph of wrist band

ATTORNEYS FOR DEFENDANT

Tyler C. Patrick Hudson, Mallaney, Shindler & Anderson, P.C.

5015 Grand Ridge Drive, Suite 100

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

MARGARET SMITH and JOHN SMITH, Plaintiffs,

LORING HOSPITAL, Defendant.

NOW the Defendant, Loring Hospital, and herewith identifies the

following individuals who may be called to testify at trial:

Lori Forneris, Chief Clinical Officer, Loring Hospital

E-FILED 2013 JUN 19 9:13 AM SAC - CLERK OF DISTRICT COURT

,2013. Respectfully submitted,

HEIDMAN LAW FIRM. L.L.P.

JOHN C. GRAY, m8 Historic Fo

Sioux City, 1A 51 102

John. Gray(SMeidmanlaw. com ATTORNEYS FOR DEFENDAN"

I certify that a true copy of this document was

served upon each of the attorneys of record of all

E-FILED 2013 JUN 19 11:10 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 11:10 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUN 19 11:10 AM SAC - CLERK OF DISTRICT COURT

Dated this _ day of _____________, 2013.