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Baale v. Sunset Homes3/15/2000
ach in turn.
1. Rule 125
Van Baale contends the district court had independent authority under rule 125(e) to compel timely disclosure of experts. Rule 125(e) states:
The court has discretion to compel a party to make the determination and disclosure of whether an expert is expected to be called as a witness and shall do so to ensure that determination and the disclosures required by this rule within a reasonable and specific time before the date of trial. Upon motion, or at a discovery conference held pursuant to R.C.P. 124.2, or on its own initiative, the court may prescribe the sequence in which the parties make the determination and disclosures provided for under the rule.
Because this subsection affords a court discretion to compel "disclosures required by this rule," it must be read in conjunction with the balance of the rule. The remaining subsections contemplate that a party has asked the opposing party for expert witness information. See Iowa R. Civ. P. 125(a) (permitting party to serve expert witness interrogatory, take deposition and/or obtain documents); 125(c) (duty of supplementation triggered if no previous disclosure "in response to an appropriate inquiry directly addressed to these matters").
Van Baale concedes he did not serve Midland with an expert witness interrogatory pursuant to Iowa Rule of Civil Procedure 125 or seek other expert discovery from Midland. Because no such request was made, we find rule 125(e) inapplicable. Additionally, rule 125(c), pertaining to supplementation of expert discovery, and decisions construing that rule, do not apply. See, e.g., Preferred Mktg. Assocs. Co. v. Hawkeye Nat'l Life Ins. Co., 452 N.W. 2d 389, 393 (Iowa 1990); Golden Circle Air, Inc. v. Sperry, 543 N.W.2d 629, 632-33 (Iowa App. 1995).
2. Rule 136
Van Baale next contends the district court should have excluded Midland's expert because Midland failed to designate the expert within the time frame set forth in the court's scheduling order. Midland concedes it did not designate its expert until August 4, 1998, despite a scheduling order which prescribed a deadline of March 20. However, the company maintains it could not designate an OSHA expert by the deadline because Van Baale did not notify it of claimed OSHA violations until late May, and did not amend his petition to raise such a claim until a month before trial.
Rule 136 (b) authorizes a district court to set time limits for designating experts. Rule 136(e) allows the court to impose sanctions upon a party who fails to obey a scheduling order. See Olson v. Nieman's, Ltd., 579 N.W.2d 299, 305 (Iowa 1998).
Van Baale's original petition raised a general negligence claim. The specifications of negligence contained in the petition made no mention of OSHA standards or a claimed violation of those standards. The petition did allege " efendant was under a legal or contractual duty to provide specified safeguards against danger and failed to do so." However, Van Baale did not specify the particular legal or contractual duties he believed Midland violated.
The amended petition filed on July 17, 1998, contained the same specifications of negligence as the original petition, but added a breach of contract claim stating, "Midland Homes breached the terms and conditions of the contract by failing to observe and comply with all applicable OSHA regulations relating to the construction of the house where Mr. Van Baale was working when he was injured." Midland retained an OSHA expert approximately two and a half weeks after this amended petition was served. We conclude Midland acted as quickly as feasible to retain an expert after learning
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