SENATE FILE 371

BY  ZAUN

A BILL FOR

An Act relating to liability cases involving licensed professionals.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 668.11, Code 2011, is amended to read as follows:
   668.11Disclosure of expert witnesses in liability Liability cases involving licensed professionals —— expert witnesses —— malicious prosecution —— abuse of process.
   1.
  a.  A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert’s name, qualifications, and the purpose for calling the expert within the following time period:
   a.  (1)  The plaintiff within one hundred eighty days of the defendant’s answer unless the court for good cause not ex parte extends the time of disclosure.
   b.  (2)  The defendant within ninety days of plaintiff’s certification.
   2.  b.  If a party fails to disclose an expert pursuant to subsection 1 paragraph “a” or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert’s testimony is given by the court for good cause shown.
   3.  This section does not apply to court appointed experts or to rebuttal experts called with the approval of the court.
   c.  A party shall disclose the following information for each expert witness whose testimony the party anticipates using at trial or for each expert witness upon whose opinion the opinions or conclusions of any expert witness whose testimony is anticipated for use at trial is based:
   (1)  A written report prepared and signed by the expert.
   (2)  A complete statement of all opinions the expert is expected to express and the basis and reasons for such opinions.
   (3)  A complete statement of the data or other information considered by the expert in forming the expert’s opinions.
   (4)  Any exhibits or other tangible materials considered by the expert in forming the expert’s opinions.
   (5)  The expert’s qualifications including a list of all publications authored by the expert in the previous ten years.
   (6)  A list of all other cases in which the expert has testified as an expert and not as a party in the previous ten years.
   (7)  All of the following:
   (a)  The relationship between the expert and the party including the party’s attorney, insurer, or surety, including, at a minimum, a description of all matters for which the expert has been used as a consultant or trial expert for the party.
   (b)  The compensation paid to the expert for each matter on which the expert has been consulted and the annual compensation paid to the expert during the previous ten years by the party designating the expert.
   d.  The disclosures described in paragraph“c” shall be admissible as evidence subject only to such evidentiary objections as would otherwise apply to the information.
   2.  This section does not apply to court-appointed experts or to rebuttal experts called with the approval of the court.
   3.
  a.  A licensed professional subject to a claim for negligence or other unintentional misconduct shall have a cause of action for malicious prosecution in a subsequent claim against the person who brought such claim and their attorney, or both, if all of the following occur:
   (1)  The original claim was dismissed as to the licensed professional or the trier of fact found that the conduct of the licensed professional was not the proximate cause of the claimant’s or plaintiff’s damages.
   (2)  The trier of fact found that the person who brought the claim against the licensed professional lacked probable cause to do so at the time the original action against the licensed professional was commenced. 
   b.  The licensed professional’s damages may include but are not limited to attorney fees, expert witness fees, travel expenses, and the value of the time spent preparing for or participating in the defense of the original claim against the licensed professional.
   4.  Any party who has successfully brought a claim for professional liability against a licensed professional shall have a cause of action for abuse of process when all of the following conditions exist:
   a.  The professional liability action proceeded to trial and was not resolved by settlement prior to an initial decision by the trier of fact in favor of the person bringing the action against the licensed professional.
   b.  The trier of fact awarded damages and those damages exceed the final settlement demand of the person so demanding by more than one hundred percent.
EXPLANATION
   This bill relates to liability cases involving licensed professionals.
   EXPERT WITNESSES. The bill amends current law relating to the disclosure of an expert witness in a liability case involving a licensed professional to require a party who expects to call an expert witness at trial or upon which the opinions or conclusions of the expert witness are based to include certain specific information including the expert’s qualifications, a written report, data, and other expertise the expert intends to rely on, as well as information relating to any relationship between the expert and the party including, at a minimum, a description of all matters for which the expert has been used as a consultant or trial expert for the party, and the compensation paid to the expert for each matter on which the expert has been consulted and the annual compensation paid to the expert during the previous 10 years by the party designating the expert. The bill provides that the disclosures required in the bill shall be admissible as evidence subject only to such evidentiary objections as would otherwise apply to the information. The bill does not apply to court-appointed experts or to rebuttal experts called with the approval of the court.
   MALICIOUS PROSECUTION. The bill provides that a licensed professional subject to a claim for negligence or other unintentional misconduct has a cause of action for malicious prosecution in a subsequent claim against the person who brought such claim and their attorney, or both, if the original claim was dismissed as to the licensed professional or the trier of fact found that the conduct of the licensed professional was not the proximate cause of the claimant’s or plaintiff’s damages and the trier of fact found that the original plaintiff who brought the claim against the licensed professional lacked probable cause to do so at the time the original action against the licensed professional was commenced. The licensed professional’s damages may include but are not limited to attorney fees, expert witness fees, travel expenses, and the value of the time spent preparing for or participating in the defense of the original claim against the licensed professional.
   ABUSE OF PROCESS. The bill provides that any party who has successfully brought a claim for professional liability against a licensed professional shall have a cause of action for abuse of process when the professional liability action proceeded to trial and was not resolved by settlement prior to an initial decision by the trier of fact in favor of the person bringing the action against the licensed professional and the trier of fact awarded damages and those damages exceed the final settlement demand of the person so demanding by more than 100 percent.