Griffith v. Kulper

IN THE COURT OF APPEALS OF IOWA

No. 24-0097
Filed May 7, 2025

BREA ANNE GRIFFITH, Individually, as Administrator of the ESTATE OF
MICHAEL LEE GRIFFITH, and on behalf of L.M.G., a minor,
Plaintiffs-Appellees,

and

BRIAN L. GRIFFITH,
Plaintiff-Appellee,

vs.

JOHN L. KULPER and TRAVIS J. GALLOWAY,
Defendants-Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Benton County, Kevin McKeever,

Judge.

Defendants appeal a jury verdict in a coemployee gross negligence action.

AFFIRMED.

Matthew G. Novak (argued) and Bradley J. Kaspar (argued) of Pickens,

Barnes & Abernathy, Cedar Rapids, for appellants.

Cory F. Gourley (argued) of Gourley, Rehkemper & Lindholm, PLC, West

Des Moines, for appellee Brian Griffith.

John C. Wagner (argued) and John G. Daufeldt of John C. Wagner Law

Offices, PC, Amana, for appellees Brea Griffith on behalf of the Estate of Michael

Griffith and minor child L.M.G.

Heard at oral argument by Schumacher, P.J., and Buller and Sandy, JJ.
2

BULLER, Judge.

John Kulper and Travis Galloway (defendants1) appeal an adverse jury

verdict ordering them to pay more than $2.8 million in a coemployee gross

negligence action brought by Brea2 and Brian3 Griffith (plaintiffs) following the

death of Michael Griffith while working at Wendling Quarries, Inc. (Wendling). The

defendants claim they are entitled to judgment as a matter of law, that the district

court erred in giving the gross negligence jury instructions, and allege evidentiary

error in admitting references to administrative citations and purported

non-disclosed expert testimony. We affirm.

I. Background Facts and Proceedings

Michael was killed as a result of compression asphyxia when he fell into a

lime surge hopper while working as a stockpile driver at Wendling—a surface

mining business. Michael began working for Wendling in May 2019 and typically

worked in quality control. His training for the stockpile driver position consisted of

“one day shadowing an experienced stockpiler, the next day doing the work while

being shadowed by an experienced stockpiler, and then the next day being

observed while he did the work on his own,” while other stockpile drivers

remembered getting “about a week” of training. Michael only had a day of

1 Claims against a third defendant were dismissed before trial on motion for
summary judgment and at trial on directed verdict. We do not discuss those
claims.
2 Brea brought suit on behalf of herself, her late husband Michael’s estate, and

their minor child. We refer to them collectively as “Brea.”
3 Michael’s father Brian brought a separate suit, which was consolidated with
Brea’s before trial.
3

worksite-specific training and had only about a week of training before his death in

January 2020.

Stockpile drivers drive dump trucks under the lime surge hoppers—

machines that load trucks with crushed rock or lime from the quarry, which the

drivers then haul to stockpiles for customers. Buildup of material on the inside of

the hopper requires workers to “lean over the hopper to scrape it” from above with

a thirteen-foot pole while standing on a catwalk across the top of the hopper and

more than eleven feet off the ground. The catwalks have a gate on either side,

secured to the railing in an “up” position by removable linchpins. And in January,

stockpile drivers reportedly would have to scrape the hopper “almost every time”

they hauled a load. Wendling employees at trial agreed this was an inherently

“dangerous job” and that the catwalk above the lime surge hopper was a “hazard.”

Stockpile drivers did not wear harnesses or lanyards when on the catwalk, despite

the Wendling manual requiring them to do so.

Wendling moves operations to different quarries eight to ten times each

year. Operations were set up at a new quarry the day before Michael’s death; the

day of his death was the first day anything was crushed at the new location.

Galloway was a crushing superintendent and worked as Michael’s supervisor at

the time. Galloway was responsible for complying with applicable laws, Mine

Safety and Health Administration (MSHA) safety standards, facilitating weekly

safety meetings with employees, and examining each working place at least once

every shift. Galloway generally drove a truck around the quarry to perform

inspections on the freshly-reassembled equipment at the new location. And on the

morning of Michael’s death, Galloway “just briefly” visually inspected the hopper
4

Michael was killed in—from ten to fifteen feet away with his truck headlights.

Galloway didn’t get out of his truck or examine the catwalk railings, gates, and pins

or whether they were secured.

Kulper worked for Wendling as the safety and environmental director at the

time of the incident. His primary responsibilities did not involve day-to-day

operations, but he ensured employees were equipped with adequate training and

education to make safe decisions during work. The limestone hopper was one of

the pieces of equipment within Kulper’s purview.

At around 1:00 p.m. on January 8, an employee discovered the hopper’s

bin overflowing and the belt smoking—an indication the belt had been spinning “for

a while.” That employee and another climbed to the top of the limestone hopper

and found Michael encased in lime at the bottom of the hopper. Michael had no

pulse when his coworkers found him, did not respond to CPR, and was

pronounced dead at the scene. Although Michael was still new as a stockpile

driver that morning and was still training, no one directly witnessed the incident

that left Michael dead.

A catwalk gate that workers were required to lean over to clean the machine

was discovered in an open or “down” position at the scene; the removable linchpins

typically used to secure the two gates to the catwalk railing were not in place on

either gate. The gates were not secured by padlock nor was there any of the

following: a “kill switch” to stop the hopper below when the gate was open, a

vibration system to reduce buildup, a safety net or grate, or any type of harness

worn by workers to prevent falling. The gates and railing around the catwalk were

removable to permit movement from various quarries. And an employee who set
5

up the machine at the new quarry location agreed linchpins might not have been

installed to secure the gate the day before Michael’s death because “there’s a lot

of stuff that goes on” when Wendling moves to a new quarry.

MSHA—the governmental regulatory body that ensures the health and

safety of miners—launched an investigation following this incident and found four

violations of federal MSHA standards. Wendling had not been issued any citations

prior to this incident.

Michael’s wife Brea—on behalf of herself, Michael’s estate, and their minor

child—filed a petition asserting claims of coemployee gross negligence and loss

of consortium. Later, Michael’s father Brian filed a separate action with similar

claims, which was eventually consolidated into this case. The district court denied

Galloway and Kulper’s motion for summary judgment and at trial denied their

motion for directed verdict.

During the eight-day trial, the jury heard testimony from Brea’s treating

physician and therapist as fact or mixed fact-and-expert witnesses. The jury also

heard extensive witness testimony describing the working conditions surrounding

Michael’s death, including the following:

• A former employee described when another employee fell into a
hopper in 1996.
• An engineer testified: “When there’s no railing into the hopper,
anyone can fall into it accidentally or while trying to work around the
hopper. It just prevents—there’s no guardrail to prevent someone
from falling in.”
• Another stockpile driver at the time of Michael’s death agreed “[t]he
job that Michael Griffith was doing on the day that he died, at the time
that he died, [i]s a dangerous job.”
• An employee that set up the hopper agreed that if the “pins were not
in place, that can be catastrophic” and “it’s a safety concern . . . that
6

there’s an inability to contact people” in the event of an emergency
because there is no cellular signal.
• An expert witness with an MSHA certification described multiple
violations of the standard of care.
• Wendling’s president and owner said a running hopper is a hazard.
• Galloway—and later Kulper—agreed the job is inherently dangerous,
and that “a kill switch,” “[n]etting of some type . . . over the top of the
hopper or a grate,” “a safety harness and lanyard system,” “a
two-person notification system,” “a welded solid catwalk fence,” or “a
lowered catwalk system around the side of the hopper” all “would
have saved Michael’s life had [they] been in place.” Galloway agreed
that “if th[e] gate had been padlocked and had [a lockout/tagout]
procedure to lock it out, [Michael’s death] never would have
occurred.” And he admitted the kill switch and two-person
notification system would have been simple to implement.
• Galloway testified Michael did nothing wrong performing his
workplace duties on the day of his death.
• Kulper agreed that “if a person is to find themselves in the hopper
while it’s running and it’s not locked out or tagged out and nobody
else sees that, it’s highly likely to result in death.”
• Kulper said there is nothing in the safety manual that describes
navigating the catwalks or scraping the bins.

The jury awarded Brea, the minor child, and Brian more than $2.8 million

dollars collectively. The defendants then filed a motion for judgment

notwithstanding the verdict (JNOV) and alternative motion for a new trial. The

district court denied both motions. Kulper and Galloway appeal.

II. Standards of Review

“The standard of review for a district court’s denial of a motion for [JNOV] is

for correction of errors at law.” Royal Indem. Co. v. Factory Mut. Ins., 786

N.W.2d 839, 846 (Iowa 2010); see Iowa R. App. P. 6.907. When reviewing these

rulings, “we simply ask whether a fact question was generated.” Royal Indem. Co.,

786 N.W.2d at 846. “To justify submitting the case to the jury, substantial evidence

must support each element of the plaintiff’s claim.” Smith v. Iowa State Univ. of
7

Sci. & Tech., 851 N.W.2d 1, 18 (Iowa 2014). When determining this, we view

evidence in the light most favorable to the non-moving party. Gibson v. ITT

Hartford Ins., 621 N.W.2d 388, 391 (Iowa 2001). And we determine evidence to

be substantial when reasonable minds can use the evidence to reach the same

findings. Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 790 (Iowa 2009).

“[W]e review refusals to give a requested jury instruction for correction of

errors at law.” Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016).

“We generally review challenges to district court decisions to exclude or

admit evidence for an abuse of discretion.” Hawkins v. Grinnell Reg’l Med. Ctr.,

929 N.W.2d 261, 265 (Iowa 2019). And “when we review the interpretation of a

rule of civil procedure, such as rule 1.500(2), our review is for errors at law.”

McGrew v. Otoadese, 969 N.W.2d 311, 319 (Iowa 2022).

III. Discussion

Kulper and Galloway argue they are entitled to judgment as a matter of law,

the district court erred in the gross negligence jury instructions, and evidentiary

errors occurred at trial related to the admission of references to MSHA citations

issued to Wendling and non-disclosed expert testimony. We address each

argument in turn.

A. Judgment as a Matter of Law

Generally, Iowa’s workers’ compensation statutory framework is the

exclusive remedy for workplace injuries. See Iowa Code § 85.20 (2020). But

section 85.20(2) recognizes an exception when the workplace injury is “caused by

[any] other employee’s gross negligence amounting to such lack of care as to

amount to wanton neglect for the safety of another.” See McGill v. Fish, 790
8

N.W.2d 113, 120 (Iowa 2010) (“[S]ection 85.20 does not recognize or create a

cause of action based on gross negligence, but merely recognizes a restriction on

an existing common law right of action against a coemployee for negligence by

including a portion of the claim within the exclusivity of the workers’ compensation

scheme.”). This exception is “a narrow one.” Walker v. Mlakar, 489 N.W.2d 401,

405 (Iowa 1992). And claims of gross negligence “carry a high burden of proof.”

Johnson v. Interstate Power Co., 481 N.W.2d 310, 321 (Iowa 1992).

To prevail, the plaintiffs had to prove: “(1) knowledge of the peril to be

apprehended; (2) knowledge that injury is a probable, as opposed to a possible,

result of the danger; and (3) a conscious failure to avoid the peril.” Thompson v.

Bohlken, 312 N.W.2d 501, 505 (Iowa 1981). All three elements must be

established against a defendant to succeed against that defendant. See Henrich

v. Lorenz, 448 N.W.2d 327, 333 (Iowa 1989). The defendants here challenge all

three elements.

1. Knowledge of the peril to be apprehended

Concerning the first Thompson element, a plaintiff must show “that a

coemployee actually knew of a peril or hazard; otherwise, there cannot be a

conscious failure on the coemployee’s part to avoid the peril or hazard and thereby

prevent the injured worker’s injury.” Walker, 489 N.W.2d at 404. Constructive

knowledge is insufficient. Id. at 404–05. At the summary-judgment stage here,

the defendants admitted, “there is no question all employees at Wendling knew

there was some degree of risk in the work being performed. The first element

established in Thompson is not in dispute.” But in their post-trial motions, they

seemingly switch their position and dispute that the first element was established.
9

In denying the motion for JNOV, the district court reasoned the jury was

“provided with specific information regarding the dangers posed by the bin, the

need to engage in scraping, the safety precautions which were ignored, and the

likelihood of injury resulting from the ignored safety precautions.” And the jury

heard testimony from Kulper and Galloway that the interior of hoppers are

“inherently” and “insanely dangerous” and that workers could be injured if they

were in the bin. See Thompson, 312 N.W.2d at 505. We agree that substantial

evidence supports that the jury could reasonably conclude Kulper and Galloway

had actual knowledge of the peril. The court did not err in denying the motion for

JNOV on the first element.

2. Knowledge that injury is a probable, as opposed to a possible,
result of the danger
The “second element is usually determinative because it is exceptionally

difficult for plaintiffs to prove that a defendant had the requisite knowledge an injury

was probable, rather than possible, under the circumstances.” Lancial v. Burrell,

No. 20-0136, 2020 WL 5650616, at *2 (Iowa Ct. App. Sept. 23, 2020). “Element

two requires more than a showing of the defendant’s actual or constructive

knowledge of the actuarial foreseeability—even certainty—that accidents will

happen.” Alden v. Genie Indus., 475 N.W.2d 1, 2 (Iowa 1991) (cleaned up).

Instead, “the plaintiff must show that the defendant knew or should have known

that his conduct placed the plaintiff in a zone of imminent danger.” Jensen v.

Vanderleest, Nos. 9-369, 98-1950, 1999 WL 975879, at *4 (Iowa Ct. App. Oct. 27,

1999). A zone of imminent danger may be established in two ways:

First, it can be made by proving defendant’s actual or constructive
awareness of a history of accidents under similar circumstances.
10

The second context in which we have found a zone of imminent
danger is where the high probability of harm is manifest even in the
absence of a history of accidents or injury. . . .
To satisfy element two of the Thompson test, the plaintiff must
show not only the existence of a zone of imminent danger, but that
the defendant knew or should have known that their conduct caused
the plaintiff to be in that zone.

Alden, 475 N.W.2d at 2–3 (internal citations omitted).

As Brian concedes, the history of accidents under similar circumstances

option is perhaps less convincing here because the last accident occurred in

1996—before both Kulper and Galloway were employed by Wendling—under

different circumstances they may not have known. So, we focus our analysis on

whether Brea and Brian generated a fact question on the second option: if “a high

probability of harm [was] manifest” on the face of the conduct. Hernandez v.

Midwest Gas Co., 523 N.W.2d 300, 305 (Iowa Ct. App. 1994). And we see no

legal error in the district court’s analysis denying the motion for JNOV, which we

reproduce and adopt as our own:

When evaluating the relevant credible evidence in the light
most favorable to the plaintiffs, the Court finds that the jury could
have reasonably concluded that the configuration of the bin in
question represented a zone of imm[i]nent danger. The Court further
finds that the jury could have reasonably concluded that injury was
probable as opposed to possible given the configuration of the bin
and the numerous failures to observe basic safety precautions. The
jury was provided with expert opinions that the bin was unsafe. They
were provided with specific information regarding the dangers posed
by the bin, the need to engage in scraping, the safety precautions
which were ignored, and the likelihood of injury resulting from the
ignored safety precautions. The jury could have reasoned (and
apparently did reason), that a bin in such a configuration was less
akin to a failure to adhere to the standard of care which posed a risk
(negligence) and more akin to a zone of imminent danger (gross
negligence). While the Court may not necessarily agree with this line
of reasoning, the Court’s job is to understand what the jury’s
reasoning could have been, not to substitute its own reasoning for
the reasoning made by the jury. The job of making this determination
11

was left to the jury and the Court can find no obvious defect in the
apparent reasoning made by the jury in this regard.

We have held before that a general peril in a workplace combined with

additional circumstances can create a zone of imminent danger. See, e.g., Larson

v. Massey-Ferguson, Inc., 328 N.W.2d 343, 345–46 (Iowa Ct. App. 1982) (finding

the general peril of a running power take-off shaft combined with the employee

being instructed to work in close proximity to the unshielded shaft with a jacket on

and to put weight on the auger meant the defendant knew “injury was probable”).

And our supreme court has found the second Thompson element was satisfied

when the general peril of working with caustic soap, the defendants’ knowledge

about a tear in the employee’s protective suit and that the protective sheets often

slid down, and the defendants requiring the employee to continuously work with a

defective suit created a probability of injury. See Swanson v. McGraw, 447 N.W.2d

541, 543–45 (Iowa 1989). Here, the defendants were aware of the general peril

associated with being a stockpile driver, particularly as to the hopper. And the

additional circumstances of an unsecured gate, missing pins, no warnings, missing

supervision, and a mere pre-dawn visual inspection by headlights of the

newly-reassembled hopper conducted from a distance on the day of Michael’s

death made the injury probable. Viewing this evidence in the light most favorable

to Brea and Brian, there was substantial evidence to generate a fact question, and

the district court did not err in finding a reasonable jury could have concluded this

element was proven.
12

3. Conscious failure to avoid the peril

Few cases discuss the third Thompson element. But Alden is instructive

because, in that case, “elements two and three are effectively coalesced.” 475

N.W.2d at 2.4 In Alden, a maintenance employee was painting a flagpole on a

windy day using a manlift that was in the bed of a truck to reach the top of the pole.

Id. at 1. The manlift had outriggers to provide stability, but they could not be used

when the manlift was in the bed of the truck. Id. The supervisor directed the

maintenance employee to finish the job despite the dangerous conditions, and the

manlift collapsed causing the employee to sustain fatal injuries. Id. at 1–2. In

determining elements two and three effectively coalesced, our supreme court said:

The factual controversy surrounding the alleged order by [the
supervisor] to use the manlift without outriggers would, if proved,
demonstrate a “knowledge that the injury is probable” as well as “a
conscious failure to avoid the peril.” However, insofar as the alleged
act is affirmative in nature, it is somewhat awkward to refer to it as “a
conscious failure to avoid the peril.” We, therefore, will consider the
extent to which the facts herein give rise to a material dispute bearing
on some aspect of element two.

Id. at 2. We generally agree with this reasoning as applied to the circumstances

here, and we likewise find substantial evidence for element three.

And we also agree with the district court’s analysis, which we again

reproduce and adopt as our own:

The conscious failure to avoid the peril suggests that the co-
employee not only knew of the zone of imminent danger and knew it
posed a risk of injury which was probable as opposed to possible,
but in addition to those two conditions, the co-employee exposed the
plaintiff to the known danger willingly. Whenever there is a question
of intent, it poses a difficult hurdle because an individual’s intent is
rarely demonstrable by direct evidence or proof. However, it is

4 Like the Alden court, we can see some overlap between elements two and three

in this case.
13

reasonable for a fact finder to conclude that an individual intends the
natural consequences of their actions. Therefore, if the defendants
knew of the zone of imminent danger (which the jury obviously
concluded in the affirmative) and further knew that the danger
constituted an imminent threat (which the jury likewise concluded in
the affirmative), than the act of sending any individual into the zone
of imminent danger without first making the zone less dangerous is
an act which could reasonably be concluded to constitute a
conscious failure to avoid harm. There was substantial evidence
provided in support of this line of reasoning.

Last, we note that there is substantial evidence as to both Kulper and

Galloway despite their different roles in the day-to-day operations. The jury could

have reasonably found that both knew of the danger posed by the hopper, the risk

of injury associated with a dangerous job, the conscious failure to avoid the risk,

and that an employee would be given Michael’s job assignment the day of his

death at the new quarry location. We find no error in the district court denying the

motion for JNOV or the jury finding Brea and Brian met their burden as to all three

elements. And we reiterate that it is not our role to substitute our view of the

evidence for that of the jury—instead we only review for substantial evidence,

respecting the jury’s role as ultimate fact-finder.

B. Jury Instructions

Kulper and Galloway next assert six errors in the jury instructions and that

the case should be remanded for a new trial if judgment as a matter of law is not

required. “Prejudice occurs and reversal is required if jury instructions have misled

the jury, or if the district court materially misstates the law.” Rivera v. Woodward

Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015). “Under Iowa law, a court is required

to give a requested instruction when it states a correct rule of law having

application to the facts of the case and when the concept is not otherwise
14

embodied in other instructions.” Herbst v. State, 616 N.W.2d 582, 585

(Iowa 2000).

The defendants first argue the district court “erred by declining to instruct

the jury that Thompson and its progeny require[] actual knowledge by defendants

to satisfy the elements of gross negligence.” The district court was correct in

declining to add the “actual knowledge” language to the stock instructions because

the jury instructions properly recited the Thompson test. Constructive knowledge

can be used to prove the Thompson test’s second element—that defendants had

knowledge that injury was probable because of inadequate safety measures. See

Alden, 475 N.W.2d at 3 (“[T]he plaintiff must show not only the existence of a zone

of imminent danger, but that the defendant knew or should have known that their

conduct caused the plaintiff to be in that zone.”). As Brian argues, a layperson

“would understand the meaning of knowledge” to mean actual knowledge. And

Brea argues that the “use of ‘conscious failure’ tells the jury the coemployee had

to be conscious of the peril for s/he to fail to avoid it consciously.” See State v.

Ellison, 985 N.W.2d 473, 482 (Iowa 2023) (words in a jury instruction need not be

defined when they are not “beyond the lexicon of a reasonable juror”); Thongvanh

v. State, 494 N.W.2d 679, 684 (Iowa 1993) (words do not require definition when

they are “a term of common usage and readily understandable”).

The defendants’ second instruction claim is that the district court “erred by

declining to issue an instruction stating the requirement the defendant knew his

conduct placed the coemployee in such imminent danger that someone would

‘more likely than not’ be injured” instead of using the word “probable.” The district

court correctly declined to issue this instruction because it is required to give a
15

requested instruction that accurately conveys a rule of law unless the law is already

embodied in the instructions. See Herbst, 616 N.W.2d at 585. “Probable” and

“more likely than not” are synonyms. See, e.g., T.H.E. Ins. Co. v. Est. of Booher,

944 N.W.2d 655, 664 (Iowa 2020) (“[I]n order to be probable, injury must be ‘more

likely than not.’” (citation omitted)). This is a distinction without a difference and a

correct statement of the law.

Third, the defendants argue the district court erred by declining to issue a

nonstock instruction explaining that the plaintiffs cannot prove the second element

of the Thompson test by simply showing they “knew that sooner or later, someone

would be injured.” The proposed language was not embedded elsewhere in the

jury instructions, but the given instructions accurately described gross negligence

law. And the proposed language is extraneous and carried a risk of confusing or

misleading the jury. The district court did not err in declining to give this novel

instruction.

Fourth, the defendants assert “the district court erred by declining to issue

an instruction stating the jury should consider each defendant’s knowledge of the

history of the work being performed and whether there were any prior injuries or

complaints about safety.” The district court correctly declined to give this

instruction, as this standard was inapplicable given the facts adduced and theory

advanced at trial. The plaintiffs did not rely on evidence of prior injuries or safety

complaints to establish a zone of imminent danger. Instead, they argued that the

hopper’s safety deficiencies were inherently hazardous, making the risk of injury

apparent on its face.
16

Fifth, the defendants argue the court erred by declining to issue an

instruction providing, “evidence that the defendant exposed himself to the same

risk of injury as the plaintiff is a strong indication that the defendant did not know

that injury was a probable result of the danger.” It is true that courts have

sometimes used defendants engaging in the same conduct that injured the plaintiff

as a potentially relevant factor. See Hernandez, 523 N.W.2d at 305–06; Henrich,

448 N.W.2d at 333; Lavery v. Campbell, No. 24-0517, 2024 WL 4969304, at *4

(Iowa Ct. App. Dec. 4, 2024). But, as Brian argues, neither Kulper nor Galloway

engaged in the same conduct under the same circumstances as Griffith

work[ing] on the catwalk, scraping or otherwise, when the gate was
unsecured, there were no pins, there was only wire around one gate,
the machine was running, it had recently been set up, and no
inspection had been completed by a competent person or otherwise,
and they hadn’t been warned of the imminent danger.

And this is not an express element of Thompson. In the interest of juror

comprehension and efficiency, the district court was not required to include every

potentially relevant factor in the jury instructions.

Finally, the defendants argue the stock jury instructions improperly define

“probable” and “possible.” The stock instructions are supported by caselaw and

have existed for decades. See Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385,

391 (Iowa 2000) (defining “probable” as “that which seems reasonably to be

expected: so far as fairly convincing evidence or indications go”) (cleaned up));

Juarez v. Horstman, No. 0-990, 2011 WL 441523, at *3 (Iowa Ct. App.

Feb. 9, 2011) (defining “possible” as something “which happen[s] so infrequently

that they are not expected to happen again”) (citation omitted)). We find no error
17

in using these definitions and in any of the challenged jury instructions regarding

gross negligence.

C. Admissibility of Evidence of the MSHA Citations

The third issue the defendants raise is that the district court properly

excluded the MSHA report and citations themselves but erred in admitting the

underlying evidence of the accident and citations issued to Wendling, claiming it

was “inadmissible hearsay and lacked relevance given there was not a knowing

violation of MSHA regulations.” See Iowa Rs. Evid. 5.802, 5.803(8)(B)(iv).

Although we recognize there are interesting legal questions surrounding whether

the citations themselves were perhaps admissible (and thus the district court was

perhaps over-cautious in exercising its discretion), we elect to bypass those issues

and instead focus our review on the narrow question of whether admitting some

information underlying the citations (but not the citations themselves) prejudiced

the defendants.

After careful review of the record, we conclude any alleged error was not

prejudicial. The jury was informed that Wendling did not admit liability on the

underlying MSHA issues relating to the citations. And, in light of the jury

instructions that cabined the jury’s review to the defendants’ actual knowledge, this

did not confuse the jury. We see no reasonable probability that this testimony

tipped the scales toward liability given that the defendants’ own testimony

established what they did and did not know. In our review, this renders the

challenged evidence largely cumulative and its admission harmless. See State v.

Elliott, 806 N.W.2d 660, 669 (Iowa 2011) (considering admission of hearsay

evidence in context of cumulative evidence and harmless error).
18

D. Non-Disclosed Expert Testimony

Kulper and Galloway last claim the district court abused its discretion by

permitting testimony from Michael and Brea’s treating medical provider and Brea’s

therapist. The treating medical provider—a licensed physician’s assistant—was

designated by the plaintiffs as “a fact and expert witness” and testified about her

background, Brea’s personality, and care and treatment of Brea after the incident

regarding her mental health and pregnancy. Defense counsel objected when she

was asked to describe Brea to the jury and discuss her mental-health

consultations. On appeal, the defendants argue this was improper “undisclosed

expert testimony offered for the sole purpose of stoking sympathy from the jury.”

Brea’s therapist was designated as a fact witness in initial disclosures and

testified generally about Brea’s therapy process. Defense counsel again objected,

arguing that she was a non-retained expert witness.

Upon a careful reading of the record, we find the testimony from these

witnesses was not expert testimony and was properly disclosed to the defendants

before trial. The witnesses did not implicate the disclosure requirements of Iowa

Rule of Civil Procedure 1.500(2)(c). And as the district court noted:

The witnesses in question did not provide a report, did not indicate
that any opinions would be to any level of any particular type of
scientific or medical certainty, and did not offer any opinions on any
matters which would require an expert under the rules. The
defendants simply did not like their testimony because it lent
credibility to the plaintiffs’ claims.

We agree, find no error in the district court overruling defense counsel’s objections

at trial, and deny the request for a new trial.

AFFIRMED.