IN THE COURT OF APPEALS OF IOWA

No. 19-1942

Filed June 16, 2021

FREDERICK DUITSMAN, JR. and DIANA DUITSMAN,

Plaintiffs-Appellees,

vs.

ASHAR AFZAL, M.D., and CEDAR VALLEY MEDICAL SPECIALISTS, P.C.,

Defendants-Appellants.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David P. 

Odekirk, Judge.

Defendants appeal the district court’s denial of their motion for a new trial in 

a medical malpractice action. AFFIRMED.

George L. Weilein and Timothy C. Boller of Weilein & Boller, P.C., Cedar 

Falls, and Nancy J. Penner of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for 

appellants.

Pressley Henningsen, Farl Greene, Benjamin P. Long, and Laura Schultes 

of RSH Legal, P.C., Cedar Rapids, for appellees.

Heard by Mullins, P.J., and May and Schumacher, JJ.
2

SCHUMACHER, Judge.

Defendants appeal the district court’s denial of their motion for a new trial in 

a medical malpractice action. Defendants raise claims concerning the jury 

instructions, expert witness testimony, and statements made during closing 

arguments. We conclude the district court did not abuse its discretion by denying 

the motion for new trial. We affirm the jury’s decision.

I. Background Facts & Proceedings

Dr. Ashar Afzal is a medical doctor who works at Cedar Valley Medical 

Specialists, P.C. Frederick Duitsman, Jr. received treatment from Dr. Afzal for 

neck pain. On December 30, 2014, Dr. Afzal performed a radiofrequency ablation 

(RFA) procedure, which involved placing a needle into Duitsman’s neck at the C5-6 

level under x-ray guidance. The RFA procedure uses sound waves to burn specific 

nerves, which gives pain relief for about six months. Dr. Afzal injected a numbing 

agent mixed with Depo-Medrol at the site to reduce post-procedure discomfort.

Duitsman had no immediate complications and returned home after the 

procedure. The next day, Duitsman experienced sensory deficits. He was 

diagnosed with a spinal cord lesion at the C5-6 level. Duitsman does not have any 

feeling from the waist down.1 He has problems walking because he cannot feel 

his legs. Duitsman’s condition has continued to deteriorate, and he is expected to 

use a wheelchair in the future.

On December 2, 2016, Duitsman and his wife, Diana Duitsman, filed an 

action against Dr. Afzal and Cedar Valley Medical Specialists, P.C., alleging Dr. 

 

1 When Duitsman first woke up on December 31, he had no feeling from the neck 

down. This resolved itself, but he continues to have no feeling below the waist.
3

Afzal engaged in medical malpractice during the RFA procedure.

2

 The Duitsmans 

claimed Dr. Afzal injected Depo-Medrol into an artery, causing a blood clot, which 

caused a spinal stroke. They claimed Dr. Afzal was negligent because he did not 

use a contrast dye at the time of the injection to make sure he was not injecting 

the steroid into an artery. Additionally, they claimed Dr. Afzal was negligent 

because he used Depo-Medrol, a particulate steroid that could cause clots, rather 

than a non-particulate steroid.

One of the Duitsmans’ experts, Dr. Donald Lussky, provided trial testimony 

by an evidentiary deposition. Prior to trial, Dr. Afzal filed a motion in limine, 

claiming Dr. Lussky’s testimony should be limited because his deposition 

testimony differed from his expert’s report and a discovery deposition. The 

Duitsmans resisted Dr. Afzal’s motion. The district court sustained the objections 

to certain parts of the evidentiary deposition and ruled those parts of the deposition 

would be stricken. The remainder of the evidentiary deposition was presented to 

the jury.

The court gave the parties proposed jury instructions. Dr. Afzal objected to 

the first specification of negligence in the marshalling instruction on the ground that 

it was not supported by the evidence. The district court overruled his objections

and instructed the jury. Instruction No. 12 stated:

The Plaintiffs must prove all of the following propositions:

1. Dr. Afzal was negligent by failing to meet the standard of 

care as explained in Instruction No. 14[3]in one or more of the

following ways:

 

2 We will refer to Dr. Afzal and Cedar Valley Medical Specialists together as Dr. 

Afzal.

3

Instruction No. 14 stated:
4

a. In failing to properly place the cannula needle during 

the radiofrequency ablation procedure on Plaintiff Fredrick

Duitsman, Jr.; or

b. In choosing to inject a particulate steroid during the

radiofrequency ablation procedure without utilizing injection of 

dye under live fluoroscopy or digital subtraction angiography 

. . . .

2. The negligence was a cause of the damage to the 

Plaintiffs.

3. The amount of damage.

During closing arguments, plaintiffs’ counsel stated, “There’s a falseness in 

a defense that throws a bunch of stuff up there that really doesn’t relate to what 

we’re dealing with.” Plaintiffs’ counsel also stated the defense was like a whacka-mole game and involved “games of distraction, smoke and mirrors.” He asked 

the jurors to “stand up and stand out and do the right thing.” Although informed 

consent and spoliation of evidence were not issues in this case, plaintiffs’ counsel 

talked about consent and Dr. Afzal’s failure to keep images from the procedure. 

The defense asked for a mistrial based on the statements during closing 

arguments. The court denied the motion.

The jury found Dr. Afzal was negligent and his negligence caused harm to 

the Duitsmans. The jury awarded the Duitsmans a total of $7,360,000 in damages. 

Dr. Afzal filed a motion for a new trial, claiming (1) the court submitted a 

specification of negligence for which there was insufficient evidence; (2) the 

evidentiary deposition of Dr. Lussky should not have been admitted to the extent 

his opinions exceeded those in his report; and (3) a mistrial should have been

 

Physicians who hold themselves out as specialists must use 

the degree of skill, care and learning ordinarily possessed and 

exercised by specialists in similar circumstances, not merely the 

average skill and care of a general practitioner.

A violation of this duty is negligence.
5

granted based on plaintiffs’ counsel’s improper closing argument. The Duitsmans 

resisted the motion for a new trial. The district court denied the motion. Dr. Afzal 

now appeals.

II. Specification of Negligence

Dr. Afzal contends the district court erred by submitting a specification of 

negligence that was not supported by the evidence. He states the instructions 

permitted the jury to find him negligent for failing to properly place the needle during 

the RFA procedure on Duitsman. He states there was no evidence the harm to 

Duitsman was caused by the placement of the needle alone. Dr. Afzal asserts that 

the Duitsmans’ experts—Dr. Fred Dery, Dr. Allen Elster, and Dr. Lussky—stated 

the spinal lesion was caused by the injection of a particulate steroid into an artery.4

“We review alleged errors in jury instructions for the correction of errors at 

law.” Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 570 (Iowa 

2017) (quoting Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009)). “Any 

 

4 The jury instruction proposed by the plaintiffs originally had nine elements of 

negligence. The district court removed seven. Regarding the remaining two 

elements, the defense argued there was one opinion on the standard of care and 

such was that the defendant injected Depo-Medrol into the radicular artery

because the defendant did not use contrast dye with live fluoroscopy or digital 

subtraction angiography. Defense counsel stated:

That’s his own opinion and testimony. So now to break it down, no 

one’s claiming that Dr. Afzal was in the foramen, so if he says, yeah, 

he breached the standard of care to put it there, that’s not the 

Duitsman case. So I think if their own expert concedes on crossexamination he’s got one opinion and that’s it, they don’t get two

specifications saying basically the same thing. 

The plaintiffs responded that the witness, 

specifically said that he went too deep. I had him explain what he 

meant. He was in the wrong location. He was in the foramen area. 

. . . and as you know, Your Honor, with every other expert, we 

confirmed that that would be a breach of the standard of care. 
6

error in the instructions given ‘does not merit reversal unless it results in 

prejudice.’” Deboom, 772 N.W.2d at 5 (Iowa 2009) (quoting Wells v. Enter. RentA-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004)). There is prejudicial error when 

the instructions materially misstate the law. Id.

“Jury instructions should be formulated so as to require the jury to focus on 

each specification of negligence that finds support in the evidence.” Eisenhauer 

ex rel. T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 10 (Iowa 2019) (quoting 

Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000)). A legal theory should be 

submitted to the jury if it is supported by substantial evidence. Id. “Iowa law 

requires a court give a requested instruction as long as the instruction is a correct 

statement of law, is applicable to the case, and is not otherwise embodied 

elsewhere in the instructions.” Id. The instructions should not “provide undue 

emphasis to any particular aspect of the case,” or “duplicate specifications 

adequately encompassed elsewhere in the instructions.” Id. (citations omitted). 

“[W]hether a jury instruction sufficiently encompasses each specification of 

negligence alleged by a plaintiff is determined by the facts of the particular case.” 

Id.

In the ruling on Dr. Afzal’s motion for a new trial, the district court stated:

In this matter, the proper placement of the cannula needle was 

discussed extensively by almost all the relevant expert witnesses, 

including Dr. Afzal. Dr. Afzal himself was asked whether it would be 

a breach of the standard of care to put the needle in the wrong place 

during the [RFA] procedure and he acknowledged it would be a 

breach of the standard of care. This admission, together with the 

extensive discussions on the subject of the needle placement with 

the other experts, including without limitation Dr. Dery and Dr. 
7

Glaser,[5] provided a clear evidentiary basis in the record for the first 

specification of negligence in Jury Instruction No. 12.

Dr. Dery testified that the needle went too deep during Mr. 

Duitsman’s procedure and the artery was pierced and the steroid 

was at least partially injected into the artery causing the spinal cord 

lesion/stroke. Dr. Glaser acknowledged during cross-examination 

that if the needle was pushed into the foramen, that would be the 

wrong spot. Dr. Glaser further acknowledged that if Dr. Afzal stuck 

his needle in the foramen and caused an infarct, that this would be a 

major mistake. Dr. Glaser also acknowledged the blood supply to 

the spinal cord would not be injured if the [RFA] procedure is done 

appropriately and being in the wrong spot can result in injury to an 

artery.

The court concluded there was substantial evidence in the record to show the 

injury to Duitsman would not have occurred if the needle was in the proper location 

when Dr. Afzal injected the particulate steroid. 

We conclude there is substantial evidence in the record to support the 

instruction stating Dr. Afzal could be found negligent for failing to properly place 

the needle during the RFA procedure on Duitsman. There was evidence to show 

the procedure would not have resulted in harm to Duitsman if the needle had been 

in the correct location when Dr. Afzal injected a particulate steroid. We find no 

error in Instruction No. 12.

III. Expert Witness

Dr. Afzal asserts the district court improperly permitted the evidentiary 

deposition of Dr. Lussky to be presented to the jury. Dr. Afzal claims the 

evidentiary deposition contains expert opinions that were not disclosed in the 

expert witness report, made pursuant to Iowa Rule of Civil Procedure 1.508. Dr. 

Lussky’s report, which was dated May 17, 2018, noted, “On December 30, 2014, 

 

5 Dr. Scott Glaser was an expert witness for Dr. Afzal.
8

Dr. Ashal Afzal performed bilateral [RFAs] and particulate steroid injections at C5-6 

and C6-7 levels of Frederick Duitsman’s cervical spine,” and stated, “It is my 

medical opinion that Mr. Duitsman’s spinal cord injury was caused by the 

December 30, 2014 procedures.” Dr. Lussky’s report gave opinions about 

Duitsman’s medical condition resulting from the spinal cord lesion.

In Dr. Lussky’s videotaped evidentiary deposition, taken on July 1, 2019, he 

stated:

Q. Doctor, I want to talk to you about what caused Fred’s 

spinal cord injury. Have you reached a conclusion about what 

caused the spinal cord injury to the dorsal columns of Fred’s neck at 

the C5-6 level? A. I have.

Q. And what is your conclusion? A. Conclusion is arterial 

damage from a particulate material injection into radicular artery, 

damaging the posterial aspect of the spinal cord.

. . . .

Q. And what do you base that opinion on, Doctor? A. Based 

on reviewing all the medical records, the procedure, and just 

common sense that that’s what caused this injury to the spinal cord. 

The needle was in close proximity to the radicular artery, and the 

radicular artery supplies the spinal cord, and particulate matter 

was—radicular artery had particulate matter entered in, and then that 

particulate matter embolized or went to the spinal cord and caused 

an infarct to his stroke of the spinal cord.

The district court reviewed Dr. Lussky’s expert report and his evidentiary 

deposition. The court struck some instances of Dr. Lussky’s opinions concerning 

causation and standard of care, as well as some gratuitous comments. The 

statements noted above were not excluded by the court’s ruling. The evidentiary 

deposition, absent the parts excluded by the court’s ruling, was presented to the 

jury.

We review the district court’s evidentiary rulings for an abuse of discretion. 

Homeland Energy Sols., LLC v. Retterath, 938 N.W.2d 664, 684 (Iowa 2020). 
9

There is an abuse of discretion when the court’s ruling is based on grounds that 

are unreasonable or untenable. Andersen v. Khanna, 913 N.W.2d 526, 536 (Iowa 

2018). “A ground is unreasonable or untenable when it is ‘based on an erroneous 

application of the law.’” Id. (quoting Giza v. BNSF Ry., 843 N.W.2d 713, 718 (Iowa 

2014)).

Iowa Rule of Civil Procedure 1.508(4) provides, “The expert’s direct 

testimony at trial may not be inconsistent with or go beyond the fair scope of the 

expert’s disclosures, report, deposition testimony, or supplement thereto.” In Millis 

v. Hute, the plaintiff claimed a defense expert’s “evidentiary deposition testimony 

went beyond the fair scope of the opinions expressed in his written report to their 

surprise and prejudice.” 587 N.W.2d 625, 628 (Iowa Ct. App. 1998). We found 

the purpose of the rule was “to avoid surprise to litigants and to allow the parties 

to formulate their positions on such evidence as is available.” Id. Because the 

evidentiary deposition was taken several months before the trial date, we found 

the plaintiffs “had sufficient opportunity to seek further testimony on the disputed 

issues from their own experts but chose not [to] do so.” Id. We also concluded 

the plaintiffs were not prejudiced by the admission of the evidentiary deposition 

because they presented the testimony of their own experts to counter the 

testimony of the defendant’s expert. Id. We determined the district court did not 

err by admitting the evidentiary deposition of the defendant’s expert. Id.

An expert’s testimony may not go beyond the “fair scope” of the report. 

Studer v. DHL Express (USA), Inc., No. 07-1810, 2009 WL 775437, at *2 (Iowa Ct. 

App. Mar. 26, 2009) (citing Iowa R. Civ. P. 1.508(4)). We determine Dr. Afzal had 

adequate notice from the report of the “fair scope” of Dr. Lussky’s opinions. See 
10

W. Realty, Inc. v. Fox, No. 08-0922, 2009 WL 1676155, at *3 (Iowa Ct. App. June 

17, 2009). The report stated Duitsman’s spinal cord injury was caused by the RFA 

procedure. Furthermore, if Dr. Lussky’s evidentiary deposition was not exactly the 

same as his report, he could be impeached by this difference. See Fox v. 

Rechkemmer, No. 16-0849, 2017 WL 4315037, at *6 (Iowa Ct. App. Sept. 27, 

2017).

We conclude the district court did not abuse its discretion by denying Dr. 

Afzal’s request to exclude Dr. Lussky’s evidentiary deposition.

IV. Closing Arguments

Dr. Afzal contends the district court should have granted his motion for a 

mistrial or his motion for a new trial because plaintiffs’ counsel made improper 

closing arguments. He states plaintiffs’ counsel made inflammatory and 

derogatory characterizations of the defense. Dr. Afzal also states that plaintiffs’ 

counsel made statements referring to informed consent and spoliation of evidence, 

which were not issues in this case.

“We review a district court’s denial of a mistrial for an abuse of discretion.” 

Kinseth v. Weil-McLain, 913 N.W.2d 55, 66 (Iowa 2018). The court has broad 

discretion in ruling on a mistrial motion. Fry v. Blauvelt, 818 N.W.2d 123, 132 (Iowa 

2012). “[T]he trial court has before it the whole scene, the action and incidents of 

the trial as they occur, and is in a much better position to judge whether the 

defendant has been prejudiced by misconduct of opposing counsel, if there is 

such.” Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992)

(alteration in original) (quoting Baysinger v. Haney, 155 N.W.2d 496, 499 (Iowa 

1968)).
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“To warrant a new trial based on attorney misconduct, the complained of 

misconduct ‘must have been prejudicial to the interest of the complaining party.’” 

Kinseth, 913 N.W.2d at 66 (quoting Mays, 490 N.W.2d at 803). “[U]nless a different 

result would have been probable in the absence of misconduct, a new trial is not 

warranted.” Id. (alteration in original) (quoting Loehr v. Mettille, 806 N.W.2d 270, 

277 (Iowa 2011)). We consider “the severity and pervasiveness of the misconduct, 

the significance of the misconduct to the central issues in the case, the strength of 

the State’s evidence, the use of cautionary instructions or other curative measures, 

and the extent to which the defense invited the improper conduct.” Kipp v. 

Stanford, No. 18-2232, 2020 WL 3264319, at *8 (Iowa Ct. App. June 17, 2020)

(citation omitted).

During closing argument, plaintiffs’ counsel stated:

There’s a falseness in a defense that throws a bunch of stuff up there 

that really doesn’t relate to what we’re dealing with and it’s here in 

this courtroom right now and it’s no longer talking to me, it’s daring 

you. Can you guys take it on? It sits here in this courtroom right 

now.

Also, 

There was a lot of mud thrown up against the wall. A lot of issues 

came in here where I wanted to stand up and say, why are we talking 

about this? Why does this matter? Because that’s what you’ve got 

to tell me. You’ve got to tell me why this matters. You don’t just get 

to throw stuff. . . . The defense in this case is like that whack-a-mole 

game. . . . And no matter how good you are, how fast you are, how 

determined you are, eventually you cannot whack all those moles. 

But that’s a carnival game. It’s a game of distraction. It’s a game 

you choose to play even though you know you’re gonna lose. And 

sometimes it works in settings like this. Sometimes we can play 

games of distraction, smoke and mirrors, but it’s not the true story.

We have previously stated:
12

The single purpose of closing argument is to assist the jury in 

analyzing, evaluating, and applying the evidence. Thus, when 

exercising its discretion in determining the proper scope of closing 

argument, the trial court should give counsel the latitude to make 

comments and arguments within the framework of the legal issues 

and evidence introduced at trial. This latitude is compatible with 

effective advocacy.

Lane v. Coe Coll., 581 N.W.2d 214, 218 (Iowa Ct. App. 1998) (citations omitted). 

“Counsel may draw conclusions and argue permissible inferences which 

reasonably flow from the evidence presented. However, counsel has no right to 

create evidence or to misstate the facts.” State v. Coleman, 907 N.W.2d 124, 145 

(Iowa 2018).

In the ruling on the motion for a new trial, the district court stated:

The Court, in viewing the Defendants’ allegations of misconduct, 

does not find these went beyond the latitude appropriate for the 

arguments being made in the context they were made. The Court 

does not find Plaintiffs’ counsel to have improperly vouched 

personally for or against the veracity and/or credibility of a witness. 

The Court finds the arguments of Plaintiffs’ counsel concerning the 

merits and justness of the cause to have been reasonably based on 

the evidence presented at trial and not improper personal opinions.

Also, the court found plaintiffs’ counsel did not make improper arguments 

concerning informed consent or spoliation of evidence, stating 

The Court finds the argument by Plaintiffs’ counsel relating to those

issues was proper in light of the evidence introduced, some by the 

Defendants, on the issue of the risks of the procedure and the 

presence or absence of evidence material to the case, specifically

the imaging performed during the procedure.

The court determined plaintiffs’ counsel’s arguments went to the weight of the 

evidence, which was a proper matter to discuss in the closing arguments.

We find the statements of plaintiffs’ counsel came within the wide latitude 

given to parties during closing arguments. See Lane, 581 N.W.2d at 218. The 
13

arguments did not concern matters outside the scope of the evidence introduced 

during the trial. See id. The argument concerning informed consent and spoliation 

of evidence went to the weight of the evidence in the case. Furthermore, the 

complained of misconduct was not prejudicial to Dr. Afzal. See Kinseth, 913 

N.W.2d at 66. 

We conclude the district court did not abuse its discretion in denying Dr. 

Afzal’s motion for mistrial and motion for new trial based on the closing arguments.

We affirm the decision of the district court.

AFFIRMED.