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

7/29/2019 Media Coordinators Notice - Margaret and John Smith v Loring Hospital - Lacv019319

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




















































































INTHE IOWADISTRICTCOURT FORSAC COUNTY

MARGARETSMITH and ) LACV19319

JOHNSMITH, )\

Plaintiffs,

)

)

vs.

)

)

) EXHIBIT LIST

LORINGHOSPITAL, )\

Defendant. )

COMES NOW Defendant and herewith identifies the following exhibits

whichmay be used at the trial of thismatter.

Exhibit

Number Description Admitted

No Fdn.

Objection

Other

Objection

AMedical records from Loring

Hosptal from 03/4-5/2010

admission, 56 pgs.

BLoring Hospital Fall Risk

Guidelines in effect 3/4/2010

C

Curriculum Vitae Barbara

Braafhart, RN

DPhotograph of room

E

Photographofpacewhere Mrs.

Smithwas found

FPhotograph ofhospital bedwith

side rails up

GPhotographofcall light




HPhotographsofcall light on side

rail

IPhotograph of room showing

location ofbathroom

JPhotograph ofwrist band

KPhotograph ofmagnet

L

DATED this.s //day o f . . 2013.Respectfully submitted,

HEIDMANLAWFIRM, L.L.P.

B y : WJUA , ^CJHN C. GRAY T̂0002938

1128 Historic FourthStreet

P. O. Box 3086

SiouxCity, IA51102

Phone: 712-255-8838Fax: 712-258-6714

John.Grav(̂ Heidmanlaw.com

ATTORNEYSFOR DEFENDANT

Copy to:

Tyler C. Patrick

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

5015 Grand Ridge Drive, Suite 100

West DesMoines, IA 50265

00374760

PROOF OF SERVICE

I certify that a true copy of this document was

served upon eachof the attorneysofrecord ofall

parties to this action at the addressesdisclosed

by thepteadings on

By; Hand Delivered

?FacSimtTa f D-Other

Signal

Delivered




IN THE IOWA DISTRICTCOURT FOR SAC COUNTY

MARGARET SMITH and ) LACV193 19

JOHN SMITH, )\

Plaintiffs,))

vs.

>

)

) WITNESS LIST

LORINGHOSPITAL, )\

Defendant.

)

)

COMES NOW the Defendant, Loring Hospital, and herewith identifies the

following individuals whomay be called to testify at trial:

1 . Margaret Smith

2. John Smith

3. TimGalbraith, RN

4. Lori Forneris, ChiefClinical Officer, Loring Hospital

5. Keri Geery, nurse, Loring Hospital

6. Linda Brown, nurse, Loring Hospital

7. Amy Scheffler, nurse Loring Hospital

8. Sherry Bailey, CNA. Loring Hospital

9. KayMartin, nurse, LoringHospital

1 0. Barbara Braafhart, RN




DATED this day of

By:

,2013.

Respectfully submitted,

HEIDMANLAWFIRM. L.L.P.

0002938

Street

JOHN C. GRAY,

m8Historic Fo

P. O. Box 3086

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.


West DesMoines, IA 50265

54-76

00374868

PROOF OFSERVICE

I certify that a true copy of this document was

served upon each o f th e attorneys of r eco rd o f allparlies to this action at th e addresses disclosed

-Pn/fy the plead

By: m.s? F a c 1 :

Signature

O Hand Delivered? Oilier

MlAj.' n_
















IN THE IOWA DISTRICT COURT FOR SAC COUNTY

MARGARET SMITH & : LAW NO. LACV19319

JOHN SMITH :

:Plaintiffs, :

:

-vs- ::

LORING HOSPITAL, : PLAINTIFFS’ TRIAL BRIEF

::

Defendant. :

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

II. A HOSPITAL MUST EXERCISE THAT DEGREE OF SKILL OR CARE

IN LEARNING ORDINARILY POSSESSED AND EXERCISED BY

OTHER HOSPITALS IN SIMILAR CISCUMSTANCES

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

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

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

E-FILED 2013 JUN 19 1:52 PM SAC - CLERK OF DISTRICT COURT



2

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

VII. 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

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

X. USE OF LEADING QUESTIONS ON THE CROSS EXAMINATION OF A

FRIENDLY WITNESS IS NOT ALLOWED UNDER IOWA LAW

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

XII. A WITNESS MAY BE IMPEACHED BY A DEMONSTRATION OF BIAS

OR PREJUDICE

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




3

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 MEDICARESECONDARY PROVIDER STATUTE AND PLAINTIFF IS ENTITLED

TO CLAIM AS DAMAGES ALL HEALTH CARE EXPENSES PAID BY

MEDICARE


/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 50265-5749Telephone: (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. GrayHEIDMAN LAW FIRM L.L.P.

1128 Historic Fourth Street

P.O. Box 3086Sioux City, IA 51102

ATTORNEY FOR DEFENDANT




4

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 SupremeCourt 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 THESTANDARD OF CARE AND BREACH AND (2) SUCH TESTIMONY MAY

BE USED TO IMPEACH THE WITNESS'S CREDIBILITY.

Argument




5

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 appliedin 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




6

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 gavetestimony 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. RobertHardin, 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 spinaltap 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 thedefendant 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 thesame or similar manner as the defendant. If a defense expert hastestified 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, oncross-examination, that he personally does not perform and/or

teach the medical act in the same manner.




7

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 MAYRENDER OPINION TESTIMONY WITHOUT PRIOR DISCLOSURE OF

THE UNDERLYING FACTS UPON WHICH HE OR SHE IS RELYING IN

RENDERING THAT OPINION.

Argument




8

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




9

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 itis 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 notexist 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.




10

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




11

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, 'causalconnection 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"




12

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 indefinitive, positive or unequivocal language. The use of theterms 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 thewitness, 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:




13

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




14

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'scause, has ceased to exist and leading questions may not be usedin examining such ' witness. Annot., 38 A.L.R. 2d 952, 954

(1954).

284 N.W.2d at 197-98.




15

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 asan `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




16

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, Weinstein’s

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




17

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 reliedupon 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 patientswhose care is entrusted to physicians, nurses, and employees of

the hospital may be assured, and for such further reason that inrecords such as this, no reason exists for any fraudulent

misrepresentation as to the condition of the patient. A party to anaction 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, andno reason exists to indicate that it was false, the interests of

justice require that such evidence be admitted. The rule of




18

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 thememorandum, 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 circumstancesof 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




19

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




20

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 representedor 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 prejudicethe 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




21

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 shownin 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 thecrossing. 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 thathe 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 suchfacts. 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




22

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 andsurgeon ... 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, rehabilitationservices, 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 TOCLAIM 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




23

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 self-

insured plan if it carries its own risk (whether by a failure toobtain 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 thatare 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 thecase 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




24

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,

1 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.




25

therefore, entitled to claim all health care expenses as damages which have been paid by

Medicare.





MARGARET SMITH & : LAW NO. LACV19319JOHN SMITH :

:Plaintiffs, ::

-vs- ::

LORING HOSPITAL, : PLAINTIFFS’ PROPOSED JURY : INSTRUCTIONS:

Defendant. :

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




2

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


/s/Tyler C. Patrick J. Barton Goplerud, AT0002983Tyler C. Patrick, AT0010268HUDSON MALLANEY SHINDLER &ANDERSON, P.C.5015 Grand Ridge Drive, Suite 100

West Des Moines, Iowa 50265-5749Telephone: (515) 223-4567Facsimile: (515) 223-8887 ATTORNEYS FOR PLAINTIFFS




3

I hereby certify that on June 19, 2013, I electronically filed the foregoing document with the SacCounty 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/ECFsystem:

John C. GrayHEIDMAN LAW FIRM L.L.P.1128 Historic Fourth StreetP.O. Box 3086Sioux City, IA 51102ATTORNEY FOR DEFENDANT




4

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 Hospital’s

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.




5

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 applicablelaw.

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.




6

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.




7

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 availableto you during your deliberations. Documents or items read from or referred to which were not offeredand 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.




8

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.




9

INSTRUCTION NO.____

You will decide the facts from the evidence. Consider the evidence using your observations, commonsense and experience. You must try to reconcile any conflicts in the evidence; but, if you cannot, you willaccept the evidence you find more believable.

In determining the facts, you may have to decide what testimony you believe. You may believe all, partor 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.




10

INSTRUCTION NO.____

An expert witness was asked to assume certain facts were true and to give an opinion based on thatassumption. 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.




11

INSTRUCTION NO.____

You have heard testimony from persons described as experts. Persons who have become experts in afield because of their education and experience may give their opinion on matters in that field and thereasons for their opinion.

Consider expert testimony just like any other testimony. You may accept it or reject it. You may give itas much weight as you think it deserves, considering the witness' education and experience, the reasonsgiven for the opinion, and all the other evidence in the case.




12

INSTRUCTION NO.____

You have heard evidence claiming a witness made statements before this trial while under oath and whilenot 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 trialyou may also use the statement as a basis for disregarding all or any part of the witnesses’ testimonyduring the trial but you are not required to do so. You should not disregard witnesses’ testimony duringthe trial if other credible evidence supports it or if you believe it for any other reason.




13

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.




14

INSTRUCTION NO.____

"Negligence" means failure to use ordinary care. In this case, ordinary care is the care which a reasonablycareful hospital would use under similar circumstances. "Negligence" is doing something a reasonablycareful hospital would not do under similar circumstances, or failing to do something a reasonably carefulhospital would do under similar circumstances.




15

INSTRUCTION NO.____

Loring Hospital is liable for the negligent acts and omissions of its nurses and hospital staff if the acts andomissions are done in the scope of the employment.




16

INSTRUCTION NO.____

For an act to be within the scope of a nurse’s or other hospital staff’s employment, the act must benecessary to accomplish the purpose of the employment, and it must be intended to accomplish that purpose.




17

INSTRUCTION NO.____

A hospital must use the degree of skill, care and learning ordinarily possessed and exercised by other hospitals in similar circumstances.





18

INSTRUCTION NO.____

A hospital must use the degree of ordinary care and attention that the known mental and physicalcondition of a patient requires.





19

INSTRUCTION NO.____

The conduct of a party is a cause of damage when the damage would not have happened except for theconduct.




20

INSTRUCTION NO.____

You must decide whether the claimed harm to Margaret Smith is within the scope of Loring Hospital’sliability. Margaret Smith’s claimed harm is within the scope of a Loring Hospital’s liability if that harmarises from the same general types of danger that Loring Hospital should have taken reasonable steps toavoid.

Consider whether repetition of Loring Hospital’s conduct makes it more likely harm of the type MargaretSmith claims to have suffered would happen to another. If not, the harm is not within the scope of liability.




21

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 thefollowing 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 fromfalling;

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 todamages. If Margaret Smith has proved all of these propositions, Margaret Smith is entitled to damages

in some amount.




22

INSTRUCTION NO.____

If you f ind Margaret Smith is entitled to recover damages, it is your duty to deter mine the amount. In

doing so you shall consider the f ollowing items:

1. The reasona ble value of necessar y hospital char ges, doctor char ges and pr escri ptions f r om the

date of injur y to the pr esent time.

2. Loss of function of the mind and body from the date of injury to the pr esent time.

3. The pr esent value of f utur e loss of f unction of the mind and body.

4. Physical and mental pain and suffering f r om the date of injur y to the present time.

Physical pain and suff ering may include, but is not limited to, un pleasant f eelings, bodily

distr ess or uneasiness, bodily suf f er ing, sensations or discomfort. Mental pain and suffering

may include, but is not limited to, mental anguish, ner vousness, worry, anxiety, ir ritability,

disa ppointment, de pr ession, confusion, disorientation, appr ehension, em bar r assment, loss of

en joyment of life, a feeling of uselessness or emotional distr ess.

5. The pr esent value of f uture physical and mental pain and suff ering. Physical and mental pain and

suffer ing have already been explained to you in this Instr uction.

Future damages must be reduced to pr esent value. "Pr esent value" is a sum of money paid now in advancewhich, together with inter est ear ned at a reasonable rate of return, will compensate the Margaret Smith for future losses.

The amount you assess f or physical and mental pain and suffering in the past and f uture, and loss of

function of the mind and body in the past and f utur e, cannot be measur ed by any exact or mathematical

standard. You must use your sound judgment based upon an impartial consider ation of the evidence.

Your judgment must not be exer cised arbitr ar ily, or out of sym pathy or pr e judice, for or against the

par ties. The amount you assess f or any item of damage must not exceed the amount caused by the

def endant as pr oved by the evidence.

A par ty cannot r ecover 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 f or each of the above items and the total will be used to

answer the s pecial verdicts.




23

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 Smithwould have performed for her son, John Smith, but for her injury.

"Parental consortium" is the relationship between parent and child and the right of thechild 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 notinclude 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'sinjury 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 parent’s normal life expectancy.




24

INSTRUCTION NO.____

If Margaret Smith had health conditions making her more susceptible to injury than a person in normalhealth, then Loring Hospital is responsible for all injuries and damages which are experienced byMargaret Smith that are caused by Loring Hospital’s actions, even though the injuries claimed produce agreater injury than those which might have been experienced by a normal person under the same

circumstances.




25

INSTRUCTION NO.____

A Standard Mortality Table indicates the normal life expectancy of people who are the same age asMargaret Smith is 3.18 years. The statistics from a Standard Mortality Table are not conclusive. Youmay use this information, together with all the other evidence, about Margaret Smith's health, habits,occupation, and lifestyle, when deciding issues of future damages.




26

INSTRUCTION NO.____

In arriving at an item of damage you cannot arrive at a figure by taking down the estimate of each juror asto an item of damage, and agreeing in advance that the average of those estimates shall be your item of damage.




27

INSTRUCTION NO.____

Upon retiring you shall select a foreman or forewoman. It will be his or her duty to see discussion iscarried on in an orderly fashion, the issues are fully and freely discussed, and each juror is given anopportunity 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 beincorrect. Remember you are not partisans or advocates, but are judges - judges of the facts. Your soleinterest is to find the truth and do justice.




28

INSTRUCTION NO.____

During the trial, you have been allowed to take notes. You may take these with you to the jury room touse in your deliberations. Remember, these are notes and not evidence. Generally, they reflect therecollection or impressions of the evidence as viewed by the person taking them, and may be inaccurateor incomplete.

Upon reaching a verdict, leave the notes in the jury room and they will be destroyed.




29

INSTRUCTION NO.____

I am giving you a special verdict form. If you all agree to the answers to the questions, the verdict will besigned 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




30


MARGARET SMITH & : LAW NO. LACV19319JOHN SMITH :

:Plaintiffs, ::

-vs- ::

LORING HOSPITAL, : VERDICT FORM::

Defendant. :

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.]




31

Question No. 3: Was the harm suffered by Margaret Smith within the scope of liability

created by Loring Hospital’s 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 Hospital’s 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 Hospital’s 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) $___________________




32

___________________________

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.






JOHN SMITH :

:Plaintiffs, :

:

-vs- ::

LORING HOSPITAL, : PLAINTIFFS’ WITNESS AND EXHIBIT

: LIST:

Defendant. :

COME NOW the Plaintiffs, Margaret and John Smith, and for their Witness and Exhibit

List state as follows:

WITNESS LIST

1. Margaret Smith (by deposition);

2. John Smith;

3. Connie Smith;

4. Timothy Galbraith, RN;

5. Dr. Daniel Kensinger, M.D. (by stipulation);

6. Lynn O’Brien, RN, BSN;

7. Any witness called or disclosed in discovery by Defendant;

8. 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. Medical Bills of Margaret Smith, Loring Hospital – March 5th through March 24,

2010

3. Medical Records for Margaret Smith, CNOS – March 5th through September 20,

2010

4. Medical Bills for Margaret Smith, CNOS – March 5th through September 20,

2010.

5. Medical Records for Margaret Smith Mercy Medical Center Sioux City – March

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. Loring Hospital Fall Prevention Guidelines;

11. C.V. Lynn O’Brien;




12. MSPRC Conditional Payments Summary;

13. 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


/s/Tyler C. Patrick

J. Barton Goplerud, AT0002983Tyler 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



County District Court by using the CM/ECF system. I certify that the following parties or their


system:

John C. Gray

HEIDMAN LAW FIRM L.L.P.

1128 Historic Fourth StreetP.O. Box 3086

Sioux City, IA 51102







JOHN SMITH :

:Plaintiffs, :

:

-vs- :: PLAINTIFFS’

LORING HOSPITAL, : MOTION IN LIMINE

::

Defendant. :

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.




2

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, Defendant’s 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 Defendant’s 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 Mother’s 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 daughter’s 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




3

excluded.


/s/Tyler C. Patrick

J. Barton Goplerud, AT0002983Tyler C. Patrick, AT0010268

HUDSON MALLANEY SHINDLER &

ANDERSON, P.C.

5015 Grand Ridge Drive, Suite 100West Des Moines, Iowa 50265-5749

Telephone: (515) 223-4567



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



P.O. Box 3086

Sioux City, IA 51102ATTORNEY FOR DEFENDANT






JOHN SMITH :

:Plaintiffs, :

:

-vs- ::

LORING HOSPITAL, : RESISTANCE TO DEFENDANT

: LORING HOSPITAL’S : MOTION IN LIMINE PARTS 4, 11 & 13

Defendant. :

COMES NOW the Plaintiffs, and for their Resistance to Defendant Loring Hospital’s Motion in

Limine parts 4, 11 and 13 state as follows:

Plaintiffs offer no resistance to Defendant’s 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

Plaintiff s’ 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 Smith’s 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. Galbraith’s own actions in assessing Margaret Smith as a level one fall

risk go to the heart of this hospital malpractice case.


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




2

whether Loring Hospital failed to adequately assess Margaret Smith’s level of fall risk, and whether

appropriate fall protection measures were put into place to prevent her from falling. Both Plaintiffs’ and

Defendant’s experts have opined on the appropriateness of bed alarms in the context of Margaret Smith’s

care the morning she fell at Loring Hospital.

Plaintiffs anticipate that testimony may be elicited from Defendant’s 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, Defendant’s expert Barb Braafhart suggested in her deposition

that even if a bed alarm had been used, it likely would not have prevented Ma rgaret Smith’s 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 Hospital’s 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.


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 mother’s condition deteriorated

rapidly after her fall at Loring Hospital, and the major surgery that followed . It is John Smith’s belief,

based upon his personal observations of his mother’s 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 mother’s 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 witness’s perception; and (b) helpful to a clear understanding of the witness’s

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




3

rationally based upon his perception. Furthermore, such testimony is relevant on the issue of Margaret

Smith’s 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 Defendant’s

motion in limine parts 4, 11 and 13.


/s/Tyler C. Patrick

J. Barton Goplerud, AT0002983

Tyler C. Patrick, AT0010268

HUDSON MALLANEY SHINDLER &ANDERSON, P.C.


West Des Moines, Iowa 50265-5749Telephone: (515) 223-4567


I hereby certify that on June 20, 2013, I electronically filed the foregoing document with the SacCounty District Court by using the CM/ECF system. I certify that the following parties or their


system:

John C. Gray








Notice Id: 2CA101

IOWA DISTRICT COURT FOR SAC COUNTY

MARGARET SMITHJOHN W SMITH,

Plaintiff / Petitioner,

vs.

LORING HOSPITAL,

Defendant / Respondent.

Case No: 02811 LACV019319

Trial Notice

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 noticeof this document to attorneys of record,parties appearing pro se and

judge if assigned

Docket Code = OSTR




Case ID : 02811 LACV019319 - MARGARET SMITH & JOHN SMITH VSLORING HOSPITAL

Event Cd : OSTR

JOHN CALHOON GRAY filed

TYLER CLARK PATRICK filed

JOHN B GOPLERUD filed




Notice Id: 2CA101

IOWA DISTRICT COURT FOR SAC COUNTY

MARGARET SMITHJOHN W SMITH,

Plaintiff / Petitioner,

vs.

LORING HOSPITAL,

Defendant / Respondent.

Case No: 02811 LACV019319

Trial Notice

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 noticeof this document to attorneys of record,parties appearing pro se and

judge if assigned

Docket Code = OSTR





Event Cd : OSTR

JOHN CALHOON GRAY filed

TYLER CLARK PATRICK filed

JOHN B GOPLERUD filed




IN THE IOWA DISTRICT COURT FOR SAC COUNTY IOWA

MARGARET SMITHJOHN 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 subjectto 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 orunder order of submissions to the court, (b) in which proceedings subsequent to judgment or decreeare pending, (c) which have been stayed pursuant to the Servicemembers Civil Relief Act, (d) wherea party is paying a claim pursuant to written stipulation on file or court order, and (e) awaiting theaction 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 GEERYCLERK OF DISTRICT COURT

SAC COUNTY IOWA

E-FILED 2013 JUL 26 9:58 AM SAC - CLERK OF DISTRICT COURT




Event Cd : NONO

LORING HOSPITAL filed

E-FILED 2013 JUL 26 9:58 AM SAC - CLERK OF DISTRICT COURT





JOHN SMITH :

:Plaintiffs, :

:

-vs- ::

LORING HOSPITAL, : PLAINTIFF’S MOTION EXEMPTING

: DISMISSAL PURSUANT TO IOWA: RULE OF CIVIL PROCEDURE

Defendant. :

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



2


/s/Tyler C. Patrick

J. Barton Goplerud, AT 0002983

Tyler C. Patrick, AT0010268Hudson, Mallaney, Shindler & Anderson, P.C. 5015 Grand Ridge Drive, Suite 100

West Des Moines, IA 50265Telephone: (515) 223-4567

Facsimile: (515) 223-8887

Email: [email protected] [email protected]

ATTORNEYS FOR THE PLAI NTIFF S

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


1128 Historic Fourth StreetP.O. Box 3086

Sioux City, IA 51102


E-FILED 2013 AUG 06 2:14 PM SAC - CLERK OF DISTRICT COURT

mailto:[email protected]










JOHN SMITH :

:Plaintiffs, :

:-vs- :

:

LORING HOSPITAL, : ORDER EXEMPTING DISMISSAL

: PURSUANT TO RULE 1.944:

Defendant. :

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 OFIOWA

Original filed.

Copy to:

Tyler C. Patrick

J. Barton Goplerud

5015 Grand Ridge Drive, Ste. 100West Des Moines, IA 50265

ATTORNEY FOR PLAINTIFFS

John C. GrayHEIDMAN LAW FIRM L.L.P.




E-FILED 2013 AUG 20 11:18 AM SAC - CLERK OF DISTRICT COURT



State of Iowa Courts

Type: ORDER EXEMPTING FROM 1.944 DISMISSAL

Case Number Case Title

LACV019319 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 bemarked for identification at thepretrial conference;

2. That the parties, or their dulyauthorized representatives, shallpersonally appear at the pretrial




2

conference, or be immediately availableby telephone, for the purpose ofdiscussing settlement possibilities.

Plaintiff shall submit a settlement

demand to defense counsel at least five(5) days prior to the pretrialconference.

3. That the parties shall prepare,sign, and submit a joint, written FinalPretrial Stipulation Report at thepretrial conference as to each of thefollowing items:

(a) A statement of allstipulations to avoid unnecessaryproof;

(b) A list of proposed exhibitsfor each party, with a specification ofany objections to same by opposingcounsel;

(c) A short, concise statement ofknown or anticipated evidentiarydisputes;

(d) A short, concise statement oflegal issues, particularly those whichmay be unusual and require research;

(e) A statement of any othermatters which may aid, expedite orsimplify the trial; and

(f) A witness list.

4. That the parties shall submit and

file all Motions in Limine, andRequested Jury Instructions, prior tothe pretrial.

The Final Pretrial Conference shall be governed




3

by the provisions of RCP 1.602. Counsel shall personally

appear. Failure to comply with this Order will result in

the imposition of sanctions.




State of Iowa Courts

Type: OTHER ORDER

Case Number Case Title

LACV019319 MARGARET SMITH & JOHN SMITH VS LORING HOSPITAL

So Ordered

Electronically signed on 2013-08-29 10:47:01 page 4 of 4




Date: 09/19/2013IN 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 usephotographic equipment(__X__), television cameras (__X__) or electronic soundrecording equipment (__X__) in courtroom coverage in theabove proceeding.

2. This filing is for all pre-trial motions, plea-taking,

trial and sentencing.

3. The request(s) for expanded media coverage are describedas follows: Two video cameras, tripods, videographers; audio

accessibility; two photographers with up to two still camerasand two lenses each, two tripods.

4. This notice of request(s) for expanded media coverage isfiled 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 tothe last known address of all counsel of record, partiesappearing without counsel, the district court administratorfor 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 Goplerud5015 Grand Ridge Dr. #100West 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

E-FILED 2013 SEP 19 8:36 AM SAC - CLERK OF DISTRICT COURT