Misty M. Whitley v. C.R. Pharmacy Service, Inc. D/B/A Fifth Avenue Pharmacy, and Fifth Avenue Compounding , 816 N.W.2d 378 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 10–0843
Filed June 29, 2012
MISTY M. WHITLEY,
Appellant,
vs.
C.R. PHARMACY SERVICE, INC. d/b/a FIFTH AVENUE PHARMACY,
and FIFTH AVENUE COMPOUNDING,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, L. Vern
Robinson, Judge.
Plaintiff appeals from judgment for defendant on a jury verdict in a
pharmacy malpractice lawsuit. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for
appellant.
Christopher L. Bruns and Robert M. Hogg of Elderkin & Pirnie,
P.L.C., Cedar Rapids, for appellees.
2
CADY, Chief Justice.
In this case, we must decide whether the district court erred in
admitting exhibits directed to the issue of fault in a pharmacy
malpractice action that were not disclosed during the pretrial discovery.
The court of appeals found the district court abused its discretion by not
excluding the evidence as a sanction for violating both the pretrial order
of the district court to disclose all exhibits prior to trial and the spirit and
purpose of our discovery rules. On our review, we vacate the decision of
the court of appeals and affirm the district court.
I. Background Facts and Proceedings.
Like many people, Misty Whitley had nearsighted vision. She
sought the services of Dr. Lee Birchansky, an ophthalmologist at the Fox
Eye Clinic in Cedar Rapids, to correct her vision. After consulting with
Dr. Birchansky, she decided to undergo Epithelial Laser Assisted In Situ
Keratomileusis (Epi-LASIK) eye surgery, a procedure commonly used to
correct nearsightedness, farsightedness, or to reduce astigmatism. The
surgery requires the skin of the cornea to be removed to enable a laser to
sculpt the underlying surface of the cornea. A thin contact lens is placed
on the cornea while a new layer of skin grows over the cornea. The new
corneal skin typically takes three to five days to regenerate.
On November 3, 2005, Whitley underwent Epi-LASIK surgery.
Dr. Birchansky performed the procedure. Immediately following the
surgery, Whitley’s vision improved to 20/20. By March 2006, however,
Whitley’s vision had deteriorated. She returned to Fox Eye Clinic on
March 7. Dr. Birchansky diagnosed her with postoperative corneal
scarring in both eyes, a common risk associated with Epi-LASIK surgery.
He recommended Whitley undergo a corneal scraping procedure followed
by application of a drug known as mitomycin-C (MMC) to help treat her
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blurry vision and prevent scarring. Whitley’s surgery was scheduled for
March 9. Dr. Birchansky notified staff to order MMC at 0.02%
concentration from C.R. Pharmacy in Cedar Rapids to use for the
surgery.
C.R. Pharmacy received and processed the prescription order on
March 7. Pharmacist Jodie Smith entered the medication into the
computer system at the pharmacy. She compounded the MMC at a
separate facility across the street. Smith took the product label,
containers, and the supplies necessary to complete the product to the
facility. The pharmacy’s records show the compounding was performed
the morning of March 9, and the medication was placed in a bottle.
The surgery took place in Dr. Birchansky’s office on March 9. The
records from Dr. Birchansky’s office indicated the surgery began around
noon and was completed within an hour. Dr. Birchansky applied a
substance from a bottle he believed to be MMC ordered from the
pharmacy. Dr. Birchansky did not apply the entire amount of the
substance in the bottle and placed the bottle containing the remaining
amount in a refrigerator in his office.
On March 13, Whitley returned to the clinic because her eyesight
had deteriorated and she had severe headaches. Dr. Birchansky found
the skin over her cornea was not healing. Ultimately, Whitley’s eyes
began to show signs of cataracts and glaucoma. Dr. Birchansky referred
Whitley to the University of Iowa Hospitals and Clinics for further testing
and treatment. The physician who examined Whitley concluded her
condition was likely caused by the application of MMC in excess of 0.02%
concentration. Dr. Birchansky then sent what purportedly was the
remainder of the substance in the bottle for testing. The results of the
testing revealed no trace of MMC in the bottle.
4
Whitley subsequently underwent corneal transplant surgery on
both eyes. Soon after, an accident caused Whitley to have her left eye
surgically removed. She now wears a prosthetic eye.
On November 16, 2007, Whitley filed a lawsuit against
Dr. Birchansky and Fox Eye Clinic alleging negligence and
res ipsa loquitur. On February 14, 2008, the petition was amended to
add a claim against C.R. Pharmacy alleging it supplied a defective
product for her surgery.
Whitley dismissed Dr. Birchansky and his office from the lawsuit
on January 12, 2009, and continued to pursue the claims against C.R.
Pharmacy. A discovery deadline was set for July 10, 2009, and the trial
date was later continued to March 1, 2010, to allow both parties
additional time for investigation and discovery.
On September 17, 2009, Whitley filed a motion to amend her
petition to assert an additional claim of negligence. She alleged the
prescription delivered to Dr. Birchansky was not the MMC ordered, but
was another substance that C.R. Pharmacy improperly represented as
MMC. In particular, the amended petition alleged:
That the Defendant C. R. Pharmacy Service, Inc. . . . was
negligent in the compounding of the solution delivered to
Dr. Birchansky . . . in one or more of the following ways:
A. In failing to deliver mitomycin-C to Dr. Birchansky;
B. In delivering a solution to Dr. Birchansky in a
bottle with a label indicating the content was mitomycin-C
when the bottle did not contain mitomycin-C;
C. In delivering to Dr. Birchansky a solution of an
unknown chemical and strength in a bottle labeled
mitomycin-C;
D. In failing to warn Dr. Birchansky that the
prescription did not contain a solution of mitomycin-C;
E. In failing to warn Dr. Birchansky that the
prescription contained a solution other than the requested
mitomycin-C;
5
F. In failing to properly compound the requested
solution of mitomycin-C.
The amended pleadings were filed after the July deadline established in
the pretrial order for amending pleadings and completing discovery.
Consequently, C.R. Pharmacy claimed the pleadings were untimely.
Before the district court ruled on Whitley’s motion to amend, Whitley
served nine supplemental interrogatories on C.R. Pharmacy. C.R.
Pharmacy responded to the additional interrogatories in October 2009.
Interrogatory Nos. 7 and 8 requested the pharmacy provide the name of
individuals other than its employees or agents it alleged were responsible
for Whitley’s injuries. C.R. Pharmacy responded:
Defendant objects to this Request as calling for attorney
work product. Without waiving this objection Defendant
states it contends Dr. Birchansky’s office applied a
substance other than the original MMC prescription to
Plaintiff’s eyes and later substituted another substance for
the original prescription before sending the bottle for testing.
On November 16, 2009, the district court granted Whitley’s motion
to amend her petition to add the specific claims of negligence by C.R.
Pharmacy. The court directed the defendant to file a motion for a
continuance if it needed more time to prepare for trial in light of the
amended petition. The discovery deadline from the court’s initial
scheduling order was not altered to extend discovery. 1
On November 23, 2009, C.R. Pharmacy submitted a supplemental
response to the interrogatories asserting an additional objection that the
interrogatories were untimely because the discovery deadline of July
2009 had passed. Neither party requested a continuance of the trial,
1The district court order granting the plaintiff’s motion to amend pleadings
indicated it had previously directed court administration to change the pleading and
discovery deadlines when it continued the trial in June 2009, but no change was
entered.
6
and the objections were not submitted to the district court for a ruling or
were not otherwise resolved by the parties.
A final pretrial conference was held on February 12, 2010. C.R.
Pharmacy filed its notice of exhibits listing fifteen documents, including a
handwritten note memorializing the order for MMC from
Dr. Birchansky’s office, a prescription delivery log, and a receipt from
March 9, 2006. 2 Essentially, the pharmacy maintained it delivered the
correct prescription and Dr. Birchansky mistakenly applied the wrong
substance. Whitley asserted the pharmacy compounded and delivered
the wrong prescription, which Dr. Birchansky applied to her eyes. The
final pretrial order by the district court stated, “Any exhibit not identified
will not be admitted at trial unless this order is modified by the court, for
good cause shown, by any party wishing to offer such exhibit.” The prior
pretrial order that set the trial date and pretrial conference provided that
“[t]he only exhibits exempted are those which will be used for
impeachment purposes only or those exhibits which are too difficult to
transport because of size or weight.”
A few days following the February 12 pretrial conference, the
pharmacy manager, Robert Keane, discovered new documents indicating
the prescription in dispute was never delivered to Dr. Birchansky’s office,
but instead was picked up by Dr. Birchansky’s office manager on
March 9, 2006, at 1:39 p.m. The pharmacy manager discovered the
documents when he was preparing for trial. The pick-up time recorded
on these documents was after the time the records from Dr. Birchansky’s
office indicated Whitley’s surgery was completed. The new documents
2Theprescription delivery log (Exhibit D) showed a delivery to Fox Eye Clinic on
March 9, but the signature of the person signing for the delivery was crossed out. The
pharmacy manager testified at trial that this meant the delivery had not taken place.
7
consisted of a pick-up log from the pharmacy, which purportedly showed
“J. Hazzard” picked up the MMC prescription from the pharmacy, and a
cash register receipt from the pharmacy indicating an in-store pick up of
an MMC prescription on March 9 at 1:39 p.m. The pharmacy manager
who discovered these documents promptly reported his discovery to
counsel for the pharmacy.
Counsel for the pharmacy did not notify counsel for Whitley of the
discovery. They concluded they had no obligation to disclose the
documents under the pretrial order or the rules of discovery.
Trial commenced on March 1. In its opening statement, C.R.
Pharmacy stated that it could not be at fault because it did not deliver
the prescription to Fox Eye Clinic before Whitley’s surgery took place. As
the pharmacy’s counsel elaborated:
If, as the pharmacy now believes, an employee from
Dr. Birchansky’s office signed for the prescription, we know
when they signed because when you go to the pharmacy, like
most of us, and you go and sign, they run you through the
cash register and the cash register receipt has a date and
time stamp on it. The time stamp for that signature is 1339
hours, or 1:39 p.m., well after Dr. Birchansky’s procedure is
over.
On March 2, the second day of trial, C.R. Pharmacy disclosed both
of the newly discovered documents during the cross-examination of
Dr. Birchansky. It presented him with Exhibit NN, the pick-up log from
the pharmacy purportedly showing “J. Hazzard,” Dr. Birchansky’s office
manager, had picked up the MMC prescription from the pharmacy and
Exhibit OO, the cash register receipt showing that the prescription was
paid for at the pharmacy on March 9, 2006, at 1:39 p.m. Neither
document was admitted into evidence at that point. The district court
sustained, based on the lack of foundation, Whitley’s objection to Exhibit
NN. Exhibit OO was not offered at that time.
8
At the end of the day on March 3, as Whitley was nearing the end
of her case in chief, she raised an objection to Exhibit NN on the ground
that she had not received notice of the document before trial. She asked
that the document be excluded and for permission to take a discovery
deposition of Keane and anyone else the pharmacy intended to present
testimony about the document. The pharmacy resisted the request for
exclusion, explaining that the documents had been discovered after the
pretrial order and denying that Whitley had served a discovery request
that required it to disclose the documents. The district court said it
would review the matter overnight. It did order that Whitley could take
Keane’s deposition. 3
The next morning, March 4, Whitley expanded her objection to
include Exhibit OO. Whitley urged both exhibits should have been
disclosed in response to her Interrogatories 7 and 8. C.R. Pharmacy
argued that the documents were not discovered until after the pretrial
order and that they were only being used for impeachment. It also
asserted that objections had been raised to Interrogatories 7 and 8. The
district court commented, “I don’t like it either way,” but decided not to
exclude Exhibits NN and OO. Whitley then reiterated her request for a
discovery deposition of Keane before his testimony, and the district court
granted Whitley’s request.
At mid-morning, the jury was excused. During a recess, Whitley
deposed Keane and two other pharmacy personnel. Before trial resumed
in the afternoon, the parties had a conference with the court. Based on
3Whitley’s counsel also mentioned he had left several messages with Judy
Hazzard, Dr. Birchansky’s former office manager and the person who had allegedly
signed the pick-up log on March 9. He indicated at that time that he had been unable
to reach her. Another potential witness would have been the pharmacy’s delivery
person, but he suffered from Parkinson’s disease and was not available to testify.
9
the depositions, Whitley raised an objection that Keane’s testimony
regarding the significance of the cross-out on Exhibit D (the prescription
delivery log) would be speculative. The objection was overruled, and
Keane took the stand. Through Keane, the pharmacy offered Exhibits
NN and OO, the March 9 pick-up record signed by J. Hazzard and the
March 9 cash register receipt for an in-store pick up of the MMC
prescription dated March 9 at 1:39 p.m. Whitley renewed her previously
stated objections to the exhibits, but they were overruled, and the
exhibits were admitted.
Whitley sought no further relief, such as a continuance to attempt
to locate Judy Hazzard. On March 5, the case went to the jury, which
returned a verdict for the pharmacy.
Whitley moved for a new trial on the grounds that C.R. Pharmacy
had failed to comply with Iowa Rule of Civil Procedure 1.503(4)(a)(3) by
not supplementing its interrogatory answer prior to trial with its newly
acquired information. Whitley requested the district court sanction C.R.
Pharmacy by setting aside the jury verdict and substituting a new trial or
by reinstituting the offer to confess judgment. The district court denied
the motion, stating it believed the documents had been discovered in
good faith immediately before trial and they provided important
information for “the process of finding the truth.”
Whitley appealed. She claimed the district court erred at trial by
admitting into evidence the cash register receipt and the pharmacy log
that purported to show the medication provided to Dr. Birchansky by the
pharmacy was obtained by Dr. Birchansky’s office employee after the
doctor performed the surgery. She argued the district court erred by
failing to exclude the exhibits as a sanction against the pharmacy for
failing to disclose the exhibits in advance of trial in violation of the rules
10
of discovery and the pretrial order. She also argued the district court
erred in failing to exclude testimony from witnesses about the meaning of
the exhibits as too speculative.
We transferred the case to the court of appeals. It held the district
court abused its discretion by failing to exclude the exhibits from trial as
a sanction against the pharmacy for failing to disclose the exhibits to
Whitley in advance of trial. It found the surprise Whitley encountered in
the middle of trial was too prejudicial for the trial court to refuse to
exclude the evidence. As a result, the court of appeals reversed the
judgment and granted a new trial. We granted further review.
II. Standard of Review.
We normally review decisions on sanctions for violation of
discovery for an abuse of discretion. Lawson v. Kurtzhals, 792 N.W.2d
251, 258 (Iowa 2010). To the extent we review the basis of the decision
of the court for an erroneous interpretation of the law, however, our
review is for legal error. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994).
Under either standard, we will not reverse the court’s decision to admit
evidence unless the record shows prejudice to the complaining party.
Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 636–37 (Iowa
1997).
III. Analysis of Claims.
A. Overview. At the outset, it is important to frame the issues
presented in this appeal. While Whitley sought a new trial before the
district court based on the surprise she was dealt at trial, the claim she
raised on appeal is the district court erred in failing to exclude the
evidence as a sanction for failing to supplement discovery and comply
with the pretrial order. She does not separately raise, as a claim in this
appeal, the failure of the district court to grant a new trial on account of
11
the surprise she faced when confronted with the undisclosed evidence.
See Iowa R. Civ. P. 1.1004(3) (authorizing new trial after an adverse
verdict if “[a]ccident or surprise which ordinary prudence could not have
guarded against” materially affects a party’s substantial rights). Thus,
we are only reviewing a claim of error by the district court for failing to
exclude evidence in response to a timely objection, and a new trial is only
sought as a remedy on appeal for the claim of trial error.
B. Violation of Discovery Rules. Whitley claims C.R. Pharmacy
committed a sanctionable discovery violation by failing to update its
answers to Interrogatories 7 and 8 after it became aware of the pick-up
log and the receipt showing a 1:39 p.m. pick up. C.R. Pharmacy
responds that Whitley is to blame for not having served a specific, timely
discovery request that required disclosure of the documents at issue.
Thus, we first consider the legal responsibility of the pharmacy to
disclose the disputed information.
Our rules of discovery exist to avoid the type of surprise that
occurred in this case. See White v. Citizens Nat’l Bank of Boone, 262
N.W.2d 812, 816 (Iowa 1978). A trial should be a search for the truth,
and our rules of discovery are an avenue to achieving that goal. The
discovery process seeks to make a trial into “ ‘a fair contest with the
basic issues and facts disclosed to the fullest practicable extent.’ ”
Comes v. Microsoft Corp., 775 N.W.2d 302, 311 (Iowa 2009) (quoting
United States v. Procter & Gamble Co., 356 U.S. 677, 682–83, 78 S. Ct.
983, 986–87, 2 L. Ed. 2d 1077, 1082 (1958)).
Generally, discovery following the filing of a lawsuit involves any
information that is “relevant” and “not privileged.” Iowa R. Civ. P.
1.503(1). A variety of discovery methods exist under our rules for a party
to gather such information from another party, including the use of
12
written interrogatories. See id. r. 1.509(1) (permitting a party to serve
written interrogatories to be answered by the other party). The rules
governing interrogatories require a party who has been served with
interrogatories to answer each written question unless an objection to
the interrogatory is lodged. Id. An objection suspends the obligation to
answer until the objection is resolved. See id. (requiring either an
answer or objection in response to an interrogatory); see also Schaap v.
Chicago & Nw. Ry., 261 Iowa 646, 649, 155 N.W.2d 531, 533 (1968)
(holding a party who withholds an objection to interrogatories waives the
objection and is required to make a full answer). Additionally, the rules
require a party who has responded to an interrogatory to later
supplement or amend the response to include information acquired after
the initial response was made when, among other circumstances, the
question addressed a matter that bore “materially upon a claim or
defense asserted by any party to the action.” Id. r. 1.503(4). Consistent
with the discovery rules in general, the duty to supplement seeks to
clarify issues prior to trial, avoid surprise to parties, and allow a
complete opportunity to prepare for trial. White, 262 N.W.2d at 816.
Thus, a party has a clear duty to supplement answers to interrogatories.
Rule 1.509 provides that “[e]ach interrogatory shall be answered
separately and fully in writing under oath, unless it is objected to, in
which event the reasons for the objection shall be stated in lieu of an
answer.” Iowa R. Civ. P. 1.509(1) (emphasis added). Thus, the rule
provides that a party should either answer or object to an interrogatory
but does not specify what happens if a party does both.
The comparable Federal Rule of Civil Procedure is Rule 33. See
Fed. R. Civ. P. 33. This rule was amended in 1993 to specifically provide
that a party may object to a question but provide a partial answer.
13
Advisory Committee Notes on Amendments to Federal Rules of Civil
Procedure, 146 F.R.D. 401, 673 (1993) (adding language to Rule 33(b)(1)
to read that “[e]ach interrogatory shall be answered separately and fully
in writing under oath, unless it is objected to, in which event the
objecting party shall state the reasons for the objection and shall answer
to the extent the interrogatory is not objectionable”). The pre-1993
version of Federal Rule 33, however, contains similar language as our
rule 1.509. According to some authority, under the pre-1993 version of
the Federal Rule, an objection accompanied by an answer was treated as
a waiver of the objection. See Moses v. State Farm Mut. Auto. Ins. Co.,
104 F.R.D. 55, 58 (N.D. Ga. 1984) (“Defendant not only objected to this
interrogatory but also answered the interrogatory in the same response.
This procedure is improper.”); see also Meese v. Eaton Mfg. Co., 35 F.R.D.
162, 166 (N.D. Ohio 1964) (“Whenever an answer accompanies an
objection, the objection is deemed waived and the answer, if responsive,
stands.”).
We need not decide whether the same result follows under rule
1.509. A party that provides an answer to an interrogatory should be
required to supplement whatever answer it has provided. Even a partial
answer is not exempt from the obligation to supplement discovery under
rule 1.503(4). A contrary approach would be inconsistent with the goal
of discovery to disclose the facts to the “ ‘fullest practicable extent.’ ”
Comes, 775 N.W.2d at 311 (citation omitted).
Accordingly, the attorney-work-product objection lodged in this
case accompanied by an answer was an answer subject to the duty to
supplement like any other answer. 4 Similarly, the subsequent objection
4We observe that the documents disputed in this case that became Exhibits NN
and OO were not “ ‘prepared or obtained because of the prospect of litigation.’ ” Wells
14
lodged by the pharmacy that the interrogatories were untimely under the
terms of the pretrial order simply stood alongside the previous answer
and, as with the work-product objection, did not alter the duty to
supplement the answer given.
Notwithstanding, the pharmacy argues Whitley was foreclosed
from any relief in the form of sanctions because she failed to make a
good-faith effort to compel more complete discovery in response to its
original objection and answer. The pharmacy points out that the original
answer it provided was incomplete and merely reiterated its general
assertion that Dr. Birchansky must have applied a substance to
Whitley’s eyes other than the MMC prescription it filled and then
substituted another substance for the prescription filled by the pharmacy
before submitting it for testing.
Interrogatory No. 8 did ask for detailed information from the
pharmacy. It requested information including the identity of persons
with knowledge about the allegations and the identity of documents to
support the allegations. The pharmacy did not respond to the specific
detailed request, but simply answered the interrogatory with its general
claim that Dr. Birchansky was responsible for the injury. Nevertheless,
Whitley is not precluded from asserting a claim for sanctions based on
___________________________
Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 48 (Iowa 2008) (quoting 8
Charles Alan Wright, et al., Federal Practice and Procedure § 2024, at 198–99 (2d ed.
1994)). Further, Interrogatory No. 8 was a classic contention interrogatory that did not
call for work product. See Iowa R. Civ. P. 1.509(2) (“An interrogatory otherwise proper
is not necessarily objectionable merely because the answer to the interrogatory involves
an opinion or contention that relates to facts or the application of the law to facts
. . . .”). Equally important, when a party withholds a document in discovery, asserting
the document is privileged, “the parties shall make the claim expressly and shall
describe the nature of the documents, communications, or things not produced or
disclosed in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the applicability of the privilege or protection.” Iowa
R. Civ. P. 1.503(5)(a). The pharmacy did not do so here.
15
the failure to supplement discovery by failing to move to compel more
detailed discovery.
Under our rules of civil procedure, parties seeking discovery
should normally be justified in believing they have received substantially
all the information requested. Our rules specifically require answers to
interrogatories must be “fully” answered. Id. r. 1.509(1). Overall, our
rules strive “to effectuate the disclosure of information relevant to the
parties.” Farnum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983).
Moreover, a party may not unilaterally determine the scope of the duty to
respond to interrogatories. See Wash. State Physicians Ins. Exch. &
Ass’n v. Fisons Corp., 858 P.2d 1054, 1083–84 (Wash. 1993). If the
pharmacy wanted to protect itself from a duty to supplement discovery, it
should have moved for a protective order. Id.
Interrogatories 7 and 8 focused directly on the pharmacy’s defense
that the injury to Whitley was caused by Dr. Birchansky or his office.
The pharmacy had a continuing duty to supplement its answer. Once
the pharmacy acquired documentation supporting its claim that
Dr. Birchansky’s office caused the injury, it had a duty to supplement its
response under rule 1.503(4)(a)(3). The pharmacy violated its duty to
supplement its answer. 5
5Because we conclude the pharmacy had a duty to disclose the newly discovered
evidence prior to trial by supplementing its answers to interrogatories, it is unnecessary
for us to consider whether Exhibits NN and OO were also required to be disclosed under
the pretrial order that directed the parties to exchange all exhibits intended to be used
at trial. Although the pretrial order did not require documents used only for
impeachment to be exchanged prior to trial, the pharmacy’s attorney referred to the
exhibits in the opening statement, which substantially undermined the pharmacy’s
claim that these exhibits were intended only for impeachment. It is generally
recognized that a party cannot utilize impeachment as a subterfuge for the introduction
of evidence that is otherwise inadmissible. See State v. Nance, 533 N.W.2d 557, 562
(Iowa 1995).
16
IV. Failure to Exclude Evidence.
Whitley asserted on appeal that the disputed evidence was
inadmissible as a sanction because of the failure to supplement
discovery and because it was too speculative. We will address each claim
separately.
A. Sanction. We first consider the decision by the district court
to deny Whitley’s request to exclude the evidence as a sanction for the
failure to supplement discovery. Generally, noncompliance with
discovery is not tolerated. Lawson, 792 N.W.2d at 258. Nevertheless,
the sanction to result from noncompliance rests with the sound
discretion of the trial court. Id. While the sanction for the failure to
supplement discovery can include exclusion of the evidence at trial, the
trial court can also deny a request to exclude evidence. Id. at 258–59.
The factors used to consider sanctions include:
1. the parties’ reasons for not providing the
challenged evidence during discovery;
2. the importance of the evidence;
3. the time needed for the other side to prepare to
meet the evidence; and
4. the propriety of granting a continuance.
Id. at 259. Thus, in considering sanctions, a continuance can be used as
a tool to minimize or eliminate prejudice that can be visited on a party
when discovery is withheld. A continuance can give the complaining
party an opportunity to overcome the surprise and prepare an effective
response to the new evidence. Generally, a continuance is considered to
be the “traditionally appropriate remedy” for a claim of surprise at trial.
State v. Maghee, 573 N.W.2d 1, 6 (Iowa 1997).
17
When the pharmacy disclosed the newly discovered documents at
trial and its new defense theory became apparent, Whitley requested the
evidence be excluded as a sanction for the failure to timely disclose it
prior to trial. She also requested a continuance of the trial in the event
the court did not exclude the documents from evidence. She indicated
the continuance would be necessary to take depositions of the witnesses
the pharmacy intended to call at trial to testify about the documents.
The court granted the request for a continuance and then later denied
the request to exclude the newly discovered evidence. Thus, we must
consider if the trial court abused its discretion in making this decision. 6
A trial court abuses its discretion when it acts “ ‘on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.’ ” State
v. Parker, 747 N.W.2d 196, 203 (Iowa 2008) (quoting Maghee, 573
N.W.2d at 5). We cannot conclude the decision by the trial court to deny
the request to exclude the evidence after a continuance had been granted
constituted an abuse of discretion. The continuance offered Whitley the
opportunity to overcome the surprise she confronted at trial. It was a
traditional remedy used by courts when evidence is not disclosed until
trial. See Lawson, 792 N.W.2d at 258–59 (recognizing the propriety of
6Whitley agrees our standard of review is for an abuse of discretion. We observe
the trial court made its ruling to deny exclusion of the documents without indicating
whether or not the pharmacy violated the rules of discovery or the pretrial order in
failing to produce the documents prior to trial. Yet, we also observe the trial court
mentioned in its subsequent ruling on the motion for a new trial that its ruling at trial
denying sanctions was based on its conclusion that the pharmacy had not “technical[ly]
breached the rules,” but prompt disclosure “would have been professionally preferable.”
Thus, the trial court’s decision to admit the new evidence at trial could be viewed as an
error at law. When a discretionary decision by a trial court involves an erroneous
interpretation of law, our review is for legal error. Kjos, 524 N.W.2d at 196. Under this
standard, the error requires reversal and a new trial if it was prejudicial. Thompson v.
Rozeboom, 272 N.W.2d 444, 447–48 (Iowa 1978). Nevertheless, because the trial court
granted a continuance to abate the prejudice, the analysis applicable to an abuse of
discretion review would be comparable to a review for errors at law.
18
granting a continuance and determining the appropriate sanction for
failing to supplement discovery). Whitley used the opportunity to take
three depositions. Moreover, she did not object prior to the resumption
of trial that the continuance granted by the trial court had been
insufficient for her to adequately confront the new evidence once the trial
was to resume. Instead, Whitley switched gears just prior to the
resumption of trial and argued that the pharmacy’s new claim was too
speculative. Whitley then waited until filing a motion for new trial
following the jury verdict to finally inform the court that the continuance
did not provide her adequate time to investigate the new evidence and
rebut the allegations.
The district court did not abuse its discretion when it made its
decision to grant a continuance and deny the request to exclude the
evidence. Based on the circumstances existing at the time the decision
was made, the trial court pursued a reasonable course of action.
Importantly, Whitley did not subsequently request any further relief from
the trial court based on a claim that the continuance was inadequate. 7
Had Whitley made such a claim, the trial court could have considered
further relief or sanctions. Consequently, Whitley waived any further
claim of error by failing to make a further objection. See State v. Wesson,
260 Iowa 331, 340, 149 N.W.2d 190, 196 (1967). A litigant cannot sit on
a claim of error until the trial is over and make the claim once the result
of the trial is unsatisfactory. See DeVoss v. State, 648 N.W.2d 56, 60
(Iowa 2002) (“ ‘[I]t is unfair to allow a party to choose to remain silent in
7In considering the possible prejudice that Whitley suffered from the belated
disclosure of the documents, we note her claim that she was unable to locate Judy
Hazzard, the retired employee of Fox Eye Clinic who supposedly picked up the
prescription from the pharmacy at 1:39 p.m. on the day of the surgery. However,
Whitley never asked the court for additional time to locate Hazzard.
19
the trial court in the face of error, taking a chance on a favorable
outcome, and subsequently assert error on appeal if the outcome in the
trial court is unfavorable.’ ” (quoting 5 Am. Jur. 2d Appellate Review
§ 690, at 360–61 (1995))).
B. Speculation. Whitley also claims the court abused its
discretion by allowing the pharmacy manager, Robert Keane, to testify to
his conclusion about the meaning of the line through the name of
Dr. Birchansky’s receptionist that was written on the delivery log. Prior
to Keane’s testimony, counsel for Whitley objected to any interpretation
of the mark on the delivery log as too speculative because the individual
who would have personal knowledge of it was not testifying. The
pharmacy asserted Keane would limit his testimony about the exhibits to
his conclusion that the prescription was likely picked up, not delivered,
based on his knowledge of what a mark on delivery logs typically meant
in his experience with the pharmacy’s delivery system. The pharmacy
also pointed out that Keane was available for cross-examination by
opposing counsel to explore the likelihood this case conformed to his
experiences in the past. The district court overruled Whitley’s objection
and found the proposed testimony was fair circumstantial evidence.
The rules of evidence do not specifically recognize an objection that
a question calls for speculation. Nevertheless, rule 5.611(a) authorizes
the district court to exercise reasonable control over the evidence, which
would authorize trial judges to address objections based on speculation
and conjecture. 7 Laurie Kratke Dorè, Iowa Practice: Evidence § 5.611:1,
at 576 (2011 ed.) [hereinafter Dorè]. Additionally, such an objection can
relate to testimony about the meaning of facts and the opinions
expressed by witnesses.
20
Essentially, Whitley’s argument is that the court allowed a lay
witness to improperly opine about an ultimate issue at trial. Lay
witnesses may testify to their opinions or inferences if the testimony is
rationally based on the witness’s perceptions and it is helpful to giving
the jury a clear understanding of either the witness’s testimony or a
determination of a fact at issue in the case. 7 Dorè § 5.701:1, at 628–31.
To properly admit a lay witness’s testimony, a sufficient factual
foundation must be established showing the witness’s opinion is based
on firsthand knowledge and “personal knowledge of facts to which the
observed facts are being compared.” Id. In this case, the pharmacy
established Keane had personal knowledge of the pharmacy’s delivery log
procedures and that he conducted an investigation into the logs and
receipts in Whitley’s case before reaching his conclusion. The district
court concluded the testimony was circumstantial evidence of the
proposition claimed. It had discretion to make such a decision. See
State v. McCarty, 179 N.W.2d 548, 551 (Iowa 1970) (holding the district
court has discretion to allow a lay witness to express an opinion on a
matter for which there is proper factual foundation). We cannot
conclude the decision made by the district court was an abuse of
discretion.
V. Conclusion.
We have considered all issues raised on appeal. We reverse the
decision of the court of appeals and affirm the judgment of the district
court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.