MICHELE WADE, Plaintiff-Appellant, vs. KENNETH GRUNDEN and K & P ENTERPRIZES, L.T.D., Defendants-Appellees.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-693 / 06-1948
Filed December 12, 2007
MICHELE WADE,
Plaintiff-Appellant,
vs.
KENNETH GRUNDEN and
K & P ENTERPRIZES, L.T.D.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, James E. Kelley,
Judge.
Plaintiff in a personal injury action appeals, challenging a ruling that
prohibited her, as a sanction for failure to make discovery, from claiming certain
items of damages. AFFIRMED.
Robert S. Gallagher of Gallagher, Millage, & Gallagher, P.L.C., Davenport,
for appellant.
Elliott R. McDonald III of McDonald, Woodward, & Ivers, P.C., Davenport,
for appellees.
Heard by Miller, P.J., and Eisenhauer and Baker, JJ.
2
MILLER, P.J.
Plaintiff Michele Wade appeals, challenging a district court order granting
a motion in limine by the defendants, Kenneth Grunden and K & P Enterprizes,
L.T.D. (the defendants), and prohibiting Wade from claiming certain items of
damages because Wade did not timely supplement answers to interrogatories
concerning types and amounts of damages sought by Wade. We affirm.
This case arises out of an automobile accident which occurred on March
28, 2003, when Wade’s vehicle was struck by a tree which fell from the
defendants’ property, as a result of which Wade claims she suffered soft tissue
injuries to her neck and shoulder.
Wade filed her petition for damages on
October 7, 2004. On or about December 23, 2004, the defendants propounded
their first set of interrogatories and request for production of documents upon
Wade. On June 17, 2005, Wade provided the defendants with her answers and
responses, approximately five months after they were due. See Iowa R. Civ. P.
1.509(1) (providing that answers to interrogatories shall be served upon all
adverse parties within thirty days after the interrogatories are served).
Interrogatory twenty-one asked Wade to “Identify with particularity the total
amount of damages you are seeking in this lawsuit.” Interrogatory twenty-two
requested specifics regarding the amounts and types of damages Wade was
claiming, including an itemization of amounts claimed for separate items of her
damages claim.
Wade answered both interrogatories identically, stating:
“Plaintiff is still receiving treatment for injuries sustained as a result of this
3
accident.
Still under investigation.
Plaintiff will supplement pursuant to
applicable Rules of Civil Procedure.”
On or about October 27, 2005, Wade sent supplemental answers to the
defendants. In response to interrogatory twenty-one she gave the same answer
as she had in June, set forth above, but added to it the following:
Please review the itemized medical billings as attached Plaintiff’s
Response to Request for Production of Documents and
Supplemental Response to Request for Production of Documents.
Further, attached to Plaintiff’s Supplemental Response to Request
for Production of Documents is a photocopy of a financing invoice
in the amount of $3,536.05, representing the amount financed to
purchase a bed.
Wade did not provide any supplemental response to interrogatory twenty-two.
On January 3, 2006, over a year after the defendants first served the
interrogatories, defendants sent Wade a formal request for supplementation
pursuant to Iowa Rules of Civil Procedure 1.503(4)(d) and 1.509(2). Wade did
not respond to this request for supplementation.
On January 27, 2006, a
settlement conference was held in anticipation of the trial set for February 13,
2006. At that time Wade provided defendants with information indicating she had
incurred $2,000 in medical bills in addition to the amount revealed in her October
2005 supplemental discovery responses. However, she still did not provide an
answer to interrogatories itemizing elements and amounts of damages as
requested in interrogatory twenty-two. In a “Summary of Damages” that appears
to have been filed as a part of or with “Plaintiff’s Settlement Conference
Statement,” Wade did list damages consisting in very large part of $14,822.36 in
past medical bills and $13,425 for loss of an automobile. The summary did not,
4
however, identify any amount, or any claim for, future medical expenses, past
loss of function, future loss of function, past pain and suffering, or future pain and
suffering.
As hereafter discussed, the trial court later heard and ruled on a
defendants’ motion in limine. In its ruling the court noted, in a portion of the
ruling that is not questioned on appeal, that Wade’s automobile damages had
been reimbursed to her by her insurance company, except for a $500 deductible,
and the amount of any repayment to her insurance company had been submitted
to arbitration between Wade’s insurance company and the defendants’ insurance
company.
The amount of Wade’s claimed damages as of the settlement
conference, although not shown by answers to interrogatories, thus appears to
have been less than $17,000.
On February 13, 2006, defendants sent another letter to Wade specifically
requesting, among other things, that she supplement her interrogatory responses
“with regard to the amount of damages you are claiming.” At Wade’s request the
trial was then continued to Monday, June 26, 2006, because of the unavailability
of her treating physician. Between the February 13, 2006 letter sent by the
defendants to Wade and June 21, 2006, Wade did not provide a supplemental
response to interrogatory twenty-one or interrogatory twenty-two regarding the
total amount and individual items and amounts of her claimed damages.
On June 21, 2006, defendants filed a motion in limine seeking, in relevant
part, to exclude any claim for damages for which a full and complete answer was
not provided in response to interrogatory twenty-two. In support of their motion
defendants cited Gordon v. Noel, 356 N.W.2d 559, 564 (Iowa 1984) and its
5
holding that a party is entitled to be informed of the plaintiff’s damages claims.
On Thursday June 22, 2006, two business days before the trial was scheduled to
begin, Wade supplemented her discovery responses, including a response to
interrogatory twenty-two. 1 The supplemental response to interrogatory twentytwo reflected she was now seeking $589,650.26 in total damages. She listed the
$14,822.26 in past medical bills, plus $300,000 in future medical bills, $1,248 in
lost wages, $50,000 for past loss of function, $10,000 for future loss of function,
$150,000 for past pain and suffering, $50,000 for future pain and suffering,
$13,425 for automobile damages, and $155 for a towing charge.
On June 22, 2006, the defendants filed a supplemental motion in limine
requesting Wade be prohibited from making any claim for property damage to
her vehicle, asserting that no such claim had been disclosed in a timely manner
and any issue of property damage had previously been resolved in binding
arbitration by the parties’ respective insurance carriers. On June 26, 2006, the
parties appeared for trial. After hearing oral arguments on defendants’ motion in
limine, the district court granted the motion and, citing Gordon, 356 N.W.2d at
564, ordered that Wade could “not claim any damages for past and future pain
and suffering, past and future loss of function of mind and body, past and future
loss of wages, future medical expenses, or automobile damages.”
After the
order was entered Wade requested a continuance of trial so she could challenge
1
The cover letter to the supplemental response is dated June 22. In its ruling on the
defendants’ motion in limine the trial court found that the supplemented answer to
interrogatory twenty-two was faxed to defense counsel on June 23, which would be the
last business day before trial.
6
the ruling through an interlocutory appeal. 2 The continuance was granted and
Wade filed an application for interlocutory appeal. On October 19, 2006, the
supreme court denied Wade’s application.
A jury trial was subsequently held. In accordance with the court’s ruling
on the defendants’ motion in limine the only issues for the jury were the necessity
for and reasonableness of the past medical expenses incurred by Wade. Wade
requested and was awarded the total amount of her medical expenses,
$14,822.36, which included $3536.05 for the bed she claimed was medically
necessary.
On appeal Wade contends the district court erred in granting the
defendants’ motion in limine and thus prohibiting her “from claiming damages for
past medical expenses, past and future pain and suffering, past and future loss
of function of the mind and body, past and future loss of wages, and future
medical expenses.” More specifically, she contends the defendants did have
notice of all elements of her damages claim because she had described those
elements to defense counsel on the phone and at the settlement conference, 3
and she believed she had adequately complied with the defendants’ requests to
update and supplement her answers to interrogatories through those contacts.
Wade argues that by granting the motion in limine and sanctioning her for failing
2
In oral argument on appeal Wade asserted that her motion for continuance of trial was
not limited to a request for time to apply for an interlocutory appeal. The record,
including the trial court’s ruling on the motion in limine, does not appear to support this
assertion. The court’s ruling states, in relevant part: “At the end of the court’s oral ruling
on the motion in limine, Plaintiff’s counsel moved to continue the trial to allow Plaintiff’s
counsel to file an application for interlocutory appeal from the Court’s limine order.”
3
Nothing in the record supports these contentions.
7
to supplement her answers in writing rather than orally the court deprived her of
her day in court, as the sanction was tantamount to granting a dismissal.
Initially, in examining Wade’s issue statement as set forth in her appellate
brief and quoted above we note that, contrary to her assertion, the district court in
fact did not prohibit her from claiming damages for past medical expenses. She
was allowed to claim and present evidence on past medical expenses, and the
jury awarded her the full $14,288.36 that she claimed. Thus, this portion of her
stated issue is clearly without merit. In addition, although the district court did
prohibit her from making any claim for automobile damages, she does not claim
this as error in her issue statement and thus we need not determine whether the
court erred in that part of its ruling.
Our review is for the correction of errors at law. Iowa R. App. P. 4.
A district court’s order imposing discovery sanctions will not
be disturbed unless the court abused its discretion. An abuse of
discretion consists of a ruling which rests upon clearly untenable or
unreasonable grounds. We must also be satisfied that substantial
evidence supports any factual findings necessary to the court’s
exercise of its discretion.
Troendle v. Hansen, 570 N.W.2d 753, 755 (Iowa 1997) (citations omitted). A
preclusive sanction order insures that a party will not be able to profit from its
own
failure
to
comply
with
discovery
requests.
Schwarzenbach
Schwarzenbach, 446 N.W.2d 475, 479 (Iowa Ct. App. 1989).
v.
Where the
sanction selected by the trial court is dismissal of the action, the court’s range of
discretion is narrowed. Suckow v. Boone State Bank & Trust, Co., 314 N.W.2d
421, 425 (Iowa 1982). To justify dismissal of an action, a party’s non-compliance
must be due to willfulness, fault, or bad faith. Id.
8
“A party defending a claim is clearly entitled upon appropriate pretrial
request to be informed of the amount of the claim.” Gordon v. Noel, 356 N.W.2d
559, 564 (Iowa 1984). This includes discovery of amounts claimed for separate
elements of damages. Id. The purpose of Iowa Rule of Civil Procedure 1.503(4),
requiring supplementation of discovery responses in certain circumstances, “is to
avoid surprise and permit the issues to become both defined and refined before
trial.” Hariri v. Morse Rubber Prods. Co., 465 N.W.2d 546, 550 (Iowa Ct. App.
1990) (citing White v. Citizens Nat’l Bank of Boone, 262 N.W.2d 812, 816 (Iowa
1978)). “Discovery should expedite the disposition of litigation, by educating the
parties in advance of trial of the real value of their claims and defenses, which
may encourage settlements, and assure that judgments rest upon the real merits
of causes. . . .” Barks v. White, 365 N.W.2d 640, 643 (Iowa Ct. App. 1985)
(citation omitted).
For approximately one full year, in spite of two written requests from the
defendants, Wade failed to supplement her interrogatory answers related to
elements and amounts of damages, except insofar as she provided information
concerning her past medical expenses by incorporating by reference medical
billings produced in response to a request for production of documents. Wade
contends the defendants had prior notice of all the elements of her claimed
damages because she described her claims to the defendants on the telephone
and discussed her claims at the settlement conference held by a district judge.
However, the record before us on appeal contains no evidence in support of
these contentions, and no evidence she ever provided the defendants with the
9
amounts she was claiming for separate elements of her damages, as required by
the rules of civil procedure, until she listed elements and amounts totalling over
one-half million dollars one or two business days before trial. It is the plaintiff’s
burden to provide this information to the defendant and the defendant is entitled
to such information. Gordon, 356 N.W.2d at 564. Even presuming the elements
of damages were discussed in passing as alleged by Wade, orally providing
limited information during telephone calls and at settlement conferences cannot
be seen as an adequate substitute for under-oath, written answers to
interrogatories.
Furthermore, we do not believe the sanction imposed by the district court
was tantamount to a dismissal as Wade argues. The sanction imposed by the
court here allowed Wade to claim at trial the past medical expenses she had
identified in timely and adequate discovery responses. Wade ultimately received
the full amount she sought for those expenses.
We note the district court did conclude Wade’s “woefully late
supplementation, after two requests for supplementation more than three months
previously, amount[s] to conduct evidencing willfulness.” A finding of willfulness
would justify dismissal as a discovery sanction. Suckow, 314 N.W.2d at 425.
However, because the sanction imposed was not a dismissal we need not
determine whether the district court was correct in finding Wade’s violation of the
discovery rules was willful.
Finally, Wade claims that the district court erred in imposing a sanction for
failure to timely supplement answers to interrogatories, arguing that a prior order
10
compelling discovery is a prerequisite to the imposition of a sanction and no such
prior order had been made. In support of her position she cites a case applying
the Federal Rules of Appellate Procedure, Mems v. City of St. Paul, Dep’t of Fire
& Safety Servs., 327 F.3rd 771, 779 (8th Cir. 2003). Wade does not, however,
cite Iowa authority on the point that appears to be directly contrary to her
position. See, e.g., Sullivan v. Chicago & Northwestern Co., 326 N.W.2d 320,
324 (Iowa 1982) (acknowledging, in affirming imposition of sanctions for failure to
timely supplement answers to interrogatories, the court’s 1978 recognition that
“[V]iolations of discovery rules alone may warrant sanctions.”); White v. Citizens
Nat’l Bank of Boone, 262 N.W.2d 812, 816 (Iowa 1978) (holding, in affirming
imposition of sanction for failure to timely supplement answer to interrogatory,
that “[T]rial courts have inherent power to enforce our discovery rules and have
discretion to impose sanctions for a litigant’s failure to obey them.”); see also
Iowa R. Civ. P. 1.517(4)(b) (providing that if a party fails to serve answers to
interrogatories the court may make an order authorized by Iowa R. Civ. P.
1.517(2)(b)(2)); Iowa R. Civ. P. 1.517(2)(b)(2) (providing for an order “refusing to
allow [a] party to support or oppose designated claims or defenses, or prohibiting
such party from introducing designated matters in evidence). We reject Wade’s
argument, as it ignores almost thirty years of Iowa authority contrary to her
position.
For the reasons set forth above, we conclude the district court did not
abuse its discretion in granting the defendants’ motion in limine and imposing the
sanction of prohibiting Wade from claiming damages for elements of damage she
11
had not identified in timely responses to discovery requests.
The sanction
selected by the district court was one that would prevent Wade from profiting
from her failure to timely and adequately respond to the interrogatories, and was
reasonable under the circumstances of the case.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
