James Carder v. Active Chiropractic, PC and Brian R. Dornbush, DC

IN THE COURT OF APPEALS OF IOWA
_______________

No. 25-0308
Filed April 1, 2026
_______________

James Carder,
Plaintiff–Appellee,
v.
Active Chiropractic, PC and Brian R. Dornbush, DC,
Defendant–Appellants.
_______________

Appeal from the Iowa District Court for Clinton County,
The Honorable Stuart P. Werling, Judge.
_______________

REVERSED AND REMANDED
_______________

Abbey C. Furlong and Grace E. Mangieri of Lane & Waterman LLP,
Davenport, attorneys for appellants.

William J. Bribriesco of Bribriesco Law Firm, PLLC, Bettendorf, attorney
for appellee.
_______________

Considered without oral argument
by Tabor, C.J., and Badding and Sandy, JJ.
Opinion by Tabor, C.J.

1
TABOR, Chief Judge.

This appeal reflects the confusion that medical malpractice litigants
and district courts have experienced during the evolution of case law
addressing certificate of merit affidavits. In 2021, James Carder petitioned for
one claim of negligence against Dr. Brian R. Dornbush and Active
Chiropractic, PC. 1 Carder timely served his certificate of merit affidavit
under Iowa Code section 147.140 (2021). Almost three years later, Dornbush
moved to dismiss, asserting that Carder’s affidavit lacked the requisite oath
according to Miller v. Catholic Health Initiatives-Iowa, Corp., 7 N.W.3d 367,
375 (Iowa 2024).

At first, the district court granted the dismissal, finding the affidavit
did not comport with Miller, but later reinstated the petition, accepting
Carder’s argument that Dornbush’s motion came too late under S.K. v.
Obstetric & Gynecologic Associates of Iowa City & Coralville, P.C., 13 N.W.3d
546, 571–73 (Iowa 2024). Now Dornbush argues the lawsuit should be
dismissed for two reasons: (1) the authority for the district court’s ruling,
S.K., was supplanted by Banwart v. Neurosurgery of North Iowa, P.C., 18
N.W.3d 267, 276–78 (Iowa 2025), and (2) Carder’s certificate of merit
affidavit is insufficient.

Banwart announced a “bright line” rule that defense motions to
dismiss alleging deficient affidavits are timely if those motions are filed before
the dispositive motion deadline. 13 N.W.3d at 277–78. We find Dornbush filed
his motion before that deadline. We also find Carder’s certificate of merit

1
Dornbush practices at and serves as the president of Active Chiropractic. We
refer to them collectively as Dornbush.

2
affidavit did not substantially comply with Iowa Code section 147.140. Thus,
we reverse and remand for dismissal.

I. Facts and Prior Proceedings

Carder hurt his leg jumping off a riding lawnmower. After a week of
pain in his back, hip, and thigh, Carder sought treatment at Active
Chiropractic. Dornbush diagnosed Carder with various injuries,
recommended chiropractic treatment twice a week for two weeks, and
provided Carder with instructions on home exercises.

During the four-week course of treatment, Carder’s pain increased.
Dornbush never ordered x-rays nor did he refer Carder for other scans or
imaging of his spine before starting treatment. Carder alleged that
Dornbush’s negligence worsened his injuries and resulted in damages for
medical expenses, loss of bodily function, and pain and suffering. Thus,
Carder launched this action against Dornbush for chiropractic malpractice in
August 2021.

Dornbush timely filed his answer, and Carder served Dornbush with a
certificate of merit affidavit, as required by Iowa Code section 147.140. In
early 2022, the parties filed a trial scheduling and discovery plan, and the
court scheduled the trial for October 2023. A month before trial, the parties
jointly requested a continuance. At a scheduling conference, court set trial
for May 2025, noting that the parties declined an earlier date when offered.

The case lingered with minimal motion practice or discovery until
summer 2024. In May of that year, the supreme court decided in Miller, 7
N.W.3d at 375–77, that signed but unsworn affidavits without any language
indicating the affiant was “under penalty of perjury” fail to substantially
comply with the certificate-of-merit requirement. The following month,

3
Dornbush moved to dismiss with prejudice under section 147.140(1)(b),
alleging Carder’s certificate of merit was insufficient under Miller, as it lacked
the requisite oath.

Carder resisted, but the district court granted the motion in
September, finding the affidavit did not comport with the requirements as
explained in Miller. Later that month, Carder moved to reconsider. On
November 8, the supreme court filed S.K., 13 N.W.3d. at 546. In a concurring
opinion, four justices held that the medical providers waived their challenge
to the certificate of merit affidavit when they filed it as a motion to reverse in
the supreme court during their appeal of a jury verdict. Id.at 553–54; see also
id. at 569–70 (Waterman, J., concurring). The same day, citing S.K. as new
authority, the district court granted Carder’s motion and reinstated the case.
Dornbush asked the district court to reconsider the reinstatement. But the
court denied that motion, and Dornbush applied for interlocutory appeal in
February 2025. On March 7, the supreme court issued its decision in
Banwart. That same day, Carder filed his resistance to the application for
interlocutory appeal. Three days later, Dornbush replied, arguing that
Banwart was “dispositive of the instant dispute.” The supreme court granted
the appeal and transferred the case to our court.

II. Scope and Standard of Review

We review rulings on motions to dismiss under Iowa Code
section 147.140(6) for the correction of legal error. Miller, 7 N.W.3d at 372.
“We also review the district court’s rulings on statutory interpretation for
correction of errors at law.” Banwart, 18 N.W.3d at 272.

4
III. Analysis

Dornbush raises two arguments. First, he contends that the district
court erred in relying on S.K., which has been supplanted by Banwart. Under
Banwart, Dornbush asserts that he was not too late in moving to dismiss.
Compare S.K., 13 N.W.3d at 571–73 (Waterman, J., concurring) (determining
that waiver can be implied by litigation conduct after final judgment and
opting not to decide “the precise point at which a motion challenging a
certificate of merit affidavit becomes untimely” but finding “we have no
trouble saying that it is too late once the district court issues its final
judgment”), with Banwart, 18 N.W.3d at 277 (adopting “the dispositive
motion deadline as a bright line for determining waiver” to avoid “a fact-
intensive inquiry into how much discovery is too much”). Second, Dornbush
asserts that Carder’s certificate of merit affidavit did not substantially comply
with the mandates of section 147.140.

A. Waiver

Dornbush first argues that the district court erred in denying his
motion to reconsider based on the litigation conduct waiver discussed in S.K.
See 13 N.W.3d at 572. Dornbush contends that Banwart’s dispositive motion
deadline replaced the uncertainty in S.K. and should be used to measure
whether he timely filed his motion to dismiss.

To counter, Carder compares his case to Modern Piping, Inc. v.
Blackhawk Automatic Sprinklers, Inc., where the litigation hit a lull for roughly
two years after service of the affidavit, discovery, and other pretrial
preparations. See 581 N.W.2d 616, 619–20 (Iowa 1998), overruled on other
grounds by Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22
(Iowa 1999). Carder also contends that considering the parties’ actions
during litigation, S.K. should apply regardless of Banwart. He emphasizes

5
that because trial was not continued until after the original dispositive motion
deadline had passed, Dornbush could no longer exercise his right to challenge
the sufficiency of the certificate of merit affidavit because the dispositive
motion deadline did not shift with the new trial date.

We are not persuaded by the comparison to Modern Piping as that case
was decided long before Iowa Code section 147.140 emerged in 2017. And we
find the application of S.K. is inconsistent with Banwart. The supreme court
distinguished S.K. from Banwart by pointing out S.K.’s unique posture, as
the matter had already gone to trial and received a final judgment, instructing
that “[g]oing forward, parties should rely upon this bright line rather than
statements we made in S.K.” Banwart, 18 N.W.3d at 277–78 (declaring that
S.K.’s holding is consistent with Banwart’s bright-line rule).

Finally, Carder’s argument that the dispositive motion deadline
remained tethered to the original trial date lacks merit. Carder does not
support this contention with any authority and misreads the trial scheduling
and discovery plan. True, the plan requires all motions, except motions in
limine, to be filed “at least 60 days before trial.” But, in the event of
continuances, the plan provides that all other deadlines remain in effect
“relative to the new trial date unless the court approves new deadlines.”
Thus, on the joint motion to continue, the court reset trial for May 5, 2025,
and altered no other deadline, meaning the dispositive motions deadline was
in March 2025.2 Because Banwart controls and Dornbush filed his motion to
dismiss nearly a year before the dispositive motion deadline, Dornbush did

2
Further, if we followed Carder’s logic, the other deadlines listed in the plan—
such as the deadlines for completing depositions and disclosing expert witnesses—would
also have run, preventing further discovery. Yet, both parties continued to participate,
although slowly, in discovery.

6
not waive his right to challenge the certificate of merit affidavit, nor was he
estopped from doing so.

B. Substantial Compliance

Dornbush next contends that Carder’s certificate of merit affidavit
does not substantially comply with section 147.140 because the expert
witness did not sign it under oath before a notary and it did not include the
“under penalty of perjury” language. See id. at 272–74. The legislature built
substantial compliance into the affidavit statute. See Iowa Code § 147.140(6).
“Substantial compliance means compliance in respect to essential matters
necessary to assure the reasonable objectives of the statute.” Banwart, 18
N.W.3d at 275 (cleaned up). Thus, the statute “requires the plaintiff to serve
a certificate of merit affidavit signed under oath” by a qualified expert. Miller,
7 N.W.3d at 370 (emphasis added).

Our supreme court has held that professional malpractice cases must
be dismissed for lack of substantial compliance when the plaintiff’s certificate
of merit affidavit was unsworn or unnotarized. See Banwart, 7 N.W.3d at 275;
see Miller, at 7 N.W.3d at 375 (noting that the “under penalty of perjury”
language must be included when the signer issues the sworn statement
through self-attestation rather than through a notary). The court emphasized
the essential nature of the “under oath” element, noting that “[a] contrary
holding would undermine many Iowa statutes requiring sworn statements or
verifications.” Miller, 7 N.W.3d at 375.

Here, Carder’s certificate of merit falls short of substantial
compliance. His expert’s affidavit states: “I, Jenny Crosby Wiemann, D.C.,
being first duly sworn on oath, state as follows,” but it is not notarized to
demonstrate the administration of the oath, nor does it contain the requisite

7
“under penalty of perjury” language. The affidavit was deficient under the
reasoning of Banwart and Miller.

Because the district court’s reliance on S.K. must bend to Banwart’s
bright line dispositive motion deadline, and Carder’s certificate of merit
affidavit does not substantially comply with the under oath requirement of
section 147.140(1)(b), we reverse the district court’s pre-Banwart denial of
Dornbush’s motion to reconsider and remand the case for dismissal with
prejudice under Iowa Code section 147.140(6).

REVERSED AND REMANDED.

8