Eric Peterson, Annette L. Peterson and Michael Peterson v. Michael Oliver and Oliver Gravett

IN THE COURT OF APPEALS OF IOWA

No. 24-0221
Filed April 9, 2025

ERIC PETERSON, ANNETTE L. PETERSON and MICHAEL PETERSON,
Plaintiffs-Appellants,

vs.

MICHAEL OLIVER,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister,

Judge.

The plaintiffs appeal the district court’s decisions to exclude their expert

witness from testifying and to deny their motion for new trial based on the exclusion

of the expert. AFFIRMED.

Marc S. Harding and Christian J. Crocker of Harding Law Office, Des

Moines, for appellant.

Kent A. Gummert and Alexandra C. Galbraith of Lederer Weston Craig PLC,

West Des Moines, for appellee.

Considered without oral argument by Tabor, C.J., and Ahlers and

Sandy, JJ.
2

AHLERS, Judge.

Eric, Annette, and Michael Peterson hired attorney Michael Oliver to seek

recovery of damages for injuries Eric sustained in a motor vehicle accident in 2016

when Eric was a minor. Oliver obtained a settlement for the Petersons from the

other driver, exhausting the policy limits of the other driver’s insurance. The

Petersons then asked Oliver to file a lawsuit against the Petersons’ underinsured

motorist (UIM) insurance carrier. Oliver miscalculated the applicable statute of

limitations, resulting in the Petersons’ claims against their UIM carrier being time-

barred. The Petersons then hired other attorneys and sued Oliver for legal

malpractice.1

Because plaintiffs in a legal malpractice action must prove they would have

been successful in the underlying lawsuit absent their lawyer’s negligence, a legal

malpractice action is often referred to as a “case within a case.” Quad City Bank

& Tr. v. Elderkin & Pirnie, P.L.C., 870 N.W.2d 249, 253 (Iowa Ct. App. 2015)

(citation omitted). To try to prove the damages they could have recovered against

their UIM carrier but for Oliver’s claimed negligence, the Petersons sought to call

an expert witness—an occupational health physician (Dr. Bansal)—to testify about

the extent and permanency of Eric’s injuries.

Oliver moved to exclude the testimony of the Petersons’ expert because the

expert had not been disclosed and to exclude the expert’s report as hearsay. The

district court granted Oliver’s motion. The case proceeded to a jury trial. Although

1 The Petersons originally sued Oliver, his law partner, and his law firm. The
Petersons dismissed their claims against the law partner before trial and against
the law firm during trial. So, the only remaining defendant in this suit is Oliver.
3

the jury returned a verdict in the Petersons’ favor, the amount of damages the jury

awarded did not exceed various offsets to the award, which reduced the Petersons’

judgment to zero. The Petersons filed a motion for new trial based on the district

court’s exclusion of their expert’s testimony. The district court denied the motion,

and the Petersons appeal. The only issue on appeal is whether the district court

abused its discretion in excluding the expert’s testimony and failing to grant a new

trial based on that claimed error.

We review district court decisions excluding expert testimony for an abuse

of discretion. Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 570

(Iowa 2017). We reverse based on such decisions only when the district court

exercised its discretion on grounds or for reasons that are clearly untenable or

clearly unreasonable. Id.

The issue on appeal stems from the Petersons’ failure to disclose

Dr. Bansal as an expert. Iowa Rule of Civil Procedure 1.500(2)(a) required the

Petersons to disclose the identity of all expert witnesses. And, because there was

no scheduling order setting a different deadline, rule 1.500(2)(d) required the

expert disclosure to be made no later than ninety days before trial.

There is no question the Petersons failed to meet these disclosure

obligations. Trial was originally scheduled to begin May 8, 2023. The Petersons

waited until April 7 to file their expert designation, and even that late-filed

designation did not include Dr. Bansal. Oliver moved to strike the late-disclosed

experts, and the district court granted that motion. Around the same time, at the

Petersons’ request, the district court continued the trial to November 13. Exactly

one week before trial, the Petersons filed a witness list that for the first time
4

disclosed their intention to call Dr. Bansal as a witness, but even that filing did not

identify Dr. Bansal as an expert. Oliver moved in limine to exclude Dr. Bansal’s

testimony due to the Petersons’ failure to disclose him as an expert. The district

court granted the motion and excluded Dr. Bansal’s testimony.

As the Petersons failed to meet the expert-disclosure requirements, Iowa

Rule of Civil Procedure 1.517(3)(a) prohibited them from calling Dr. Bansal as a

witness “unless the failure was substantially justified or is harmless.” The

Petersons contend their failure to disclose was harmless for two reasons.2 First,

they point out that Dr. Bansal became involved in the Petersons case in the first

place because, while Oliver was representing the Petersons in their underlying

personal-injury cases, Oliver hired Dr. Bansal to examine Eric and give opinions

about permanent injuries. Dr. Bansal performed the examination, prepared a

report, and provided the report to Oliver. The Petersons intended to call Dr. Bansal

to express the same opinions contained in that report and to admit the report as a

trial exhibit. Second, the very same report Dr. Bansal provided to Oliver was

disclosed as an exhibit before both the May and November trial dates. Based on

these two reasons, the Petersons contend any failure to disclose Dr. Bansal as an

expert was harmless.

2 The Petersons also make a passing argument claiming their failure to disclose

was “substantially justified,” but like the district court, we conclude the Petersons
have offered no excuse that rises anywhere near the level of substantial
justification. Instead, their argument really focuses on their claim that the failure
to disclose was harmless. To the extent the Petersons are making a substantial-
justification argument, we reject it and confine any further analysis to their
argument that their failure to disclose their expert was harmless.
5

The Petersons made these same arguments to the district court in their

motion for new trial. The district court rejected these arguments with this

reasoning:

The court concludes that [the Petersons’] arguments missed
the mark. The harm that the court sought to prevent in excluding [the
Petersons’] late disclosed expert witness was [Oliver’s] inability to
counter Dr. Bansal’s expert testimony with an expert of [his] own.
Given the fact that the disclosure was made only one week before
trial, [Oliver] correctly pointed out that there was not time to hire [his]
own expert witness. Admission of Dr. Bansal’s testimony would not
have been harmless to [Oliver]. In sum, the court concludes that it
properly excluded Dr. Bansal as a trial witness and therefore no
factual or legal grounds exist that warrant the grant of a new trial.

We find this reasoning sound, and we find nothing to be gained by restating it in

different words. There is nothing clearly untenable or unreasonable about the

court’s reasoning or conclusion, and therefore we find no abuse of discretion in the

district court’s decision to exclude the expert.3 As there was no abuse of discretion

3 In reaching this conclusion, we are not persuaded by the cases relied upon by

the Petersons. Two cases relied upon by the Petersons involved the trial court
being found not to have abused its discretion in admitting expert testimony despite
discovery violations. Boone v. Moore, 980 F.2d 539, 542 (8th Cir. 1992); Patterson
v. F.W. Woolworth Co., 786 F.2d 874, 879 (8th Cir. 1986). The fact that these
cases found no abuse of discretion in admitting the expert testimony despite
discovery violations does not compel a conclusion that exclusion of such
testimony—like we have here—equates to an abuse of discretion. These cases
merely illustrate how discretion works.
Another case relied upon by the Petersons involved the trial court being
found to have abused its discretion in not permitting the plaintiffs to call a late-
disclosed expert in rebuttal after the defense called its own expert when the
defense was aware of the plaintiffs’ expert’s identity due to involvement in a parallel
state court lawsuit. Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th
Cir. 1981). This case may have some persuasive value if Oliver had called his
own expert here that would have contradicted Dr. Bansal’s proposed testimony.
But since Oliver called no such expert, Murphy sheds little to no light on the issue
here.
The other cases relied upon by the Petersons are either extremely old or
not on point. Plano Mfg. Co. v. Griffith was decided nearly 137 years ago and has
nothing to do with discovery or designation of experts. 39 N.W. 214, 215 (Iowa
6

in excluding the expert’s testimony, there was no abuse of discretion in denying

the Petersons’ motion for new trial based on exclusion of the expert. See Fly v.

Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012) (holding that the standard of review for

denying a motion for a new trial on a discretionary ground is for an abuse of

discretion).

AFFIRMED.

1888). Similarly, the opinion in Weeks v. State relied upon by the Petersons is a
dissent addressing the issue of notice of intent to impeach a witness with a prior
conviction. 804 So. 2d 980, 999–1000 (Miss. 2001) (Banks, J., dissenting). It has
nothing to do with expert designations or discovery rules.