UPDATES & ANALYSIS

Malpractice case resulting in $97 million verdict sent back for a new trial by Iowa Supreme Court

by Rox Laird | November 14, 2024

A manufacturer’s written package insert regarding the use of an obstetrical vacuum used to deliver a baby born with brain damage contained hearsay that should not have been allowed into evidence in a medical malpractice trial that resulted in a $97 million jury verdict, the Iowa Supreme Court held in a unanimous ruling issued Nov. 8.

The Court in S.K. v. Obstetric & Gynecologic Associates reversed and remanded the case to the Iowa District Court for Johnson County for a new trial. The decision for the Court was written by Justice David May and joined by all justices except Justice Dana Oxley, who took no part in the case. Chief Justice Susan Christensen and Justice Thomas Waterman each filed separate concurring opinions.

S.K. suffered a brain injury during labor or delivery, which the baby’s conservator claimed was caused by the delivering doctor’s negligent use of a Mityvac obstetrical vacuum to deliver the baby and causing brain damage. The plaintiff’s experts testified S.K. is permanently disabled and will require 24-hour custodial care for life.

The defendant clinic disputed those allegations and raised six issues in urging the Iowa Supreme Court to reverse the verdict. The Court focused on just one: the plaintiff’s argument that the district court erred in admitting evidence presented to the jury from written statements in the vacuum manufacturer’s package insert regarding when the vacuum should not be used.

The clinic argued the package insert contained unfairly prejudicial hearsay statements. The Supreme Court agreed, saying those written statements met the definition of hearsay under Iowa Rules of Evidence because they were made outside of the trial or hearing at which they were offered; they were offered by the plaintiff “to prove the truth of the matter asserted” in the statements; they were offered to prove the vacuum should not be used when any “contraindications” are present; and they were offered to prove that using the vacuum could cause the “adverse events” listed on the insert. The Court was unanimous on this dispositive issue.

In addition to the hearsay question, the Court addressed a procedural issue raised by the defendant in a motion to reverse filed shortly before the Sept. 11 oral argument. In that motion, the clinic argued the plaintiff breached the requirement under Iowa Code section 147.140 that a plaintiff must serve defendants with a certificate of merit affidavit signed under oath by an expert witness.

The clinic argued that while the plaintiff served certificate of merit affidavits, the signature of an expert was unsworn and the case should be reversed and remanded for dismissal on that basis.

The Court disagreed, but the six participating justices were divided as to why. Chief Justice Christensen and Justices Waterman, Christopher McDonald and Matthew McDermott said the clinic’s motion should be denied based on waiver through litigation conduct. Justices May and Edward Mansfield said the defendant’s motion should be denied because error was not preserved in the trial court, but they would deny the clinic’s motion without reaching the issue of whether it waived the right to challenge the unsworn affidavit.

Writing in a separate concurring opinion, Justice Waterman elaborated on the four justices’ position, saying that the defendant clinic waived its right to challenge the unsworn certificate of merit affidavit. The clinic could have filed its motion for dismissal challenging the affidavit in early 2020, Waterman wrote, but it waited more than four years to raise the issue during which time “the parties incurred significant litigation expenses, tried the case to verdict, and fully briefed all the other issues for the appeal.”

“The clinic had a right to seek a dismissal under section 147.140(6) as of February 17, 2020,” Justice Waterman wrote. “The clinic waived that right by waiting until July 31, 2024, well after trial and final judgment, to raise the unsworn certificate of merit affidavit issue for the first time on appeal. A renewed motion by the clinic under section 147.140(6) in this case on remand must be denied on that ground.”

In a separate concurring opinion, Chief Justice Christensen sharply criticized the conduct at trial of the plaintiff’s attorney, Geoffrey Fieger of Southfield, Michigan, for what she considered to be misconduct throughout the trial, including improperly vouching for evidence, disparaging opposing counsel, and improperly encouraging the jury to punish the defendants during his closing argument.

Fieger’s conduct prompted at least seven motions for a mistrial, Christensen wrote, and while the district court did not grant a mistrial based on Fieger’s actions, she said “his conduct was both uncivil and disrespectful to his opposing counsel and the presiding judge. Attorneys should treat opposing counsel and judges with basic decency while operating within the Iowa Rules of Professional Conduct. Fieger failed to accomplish either of these things during trial.”

Tags: Iowa Supreme Court 2024-25