IN THE COURT OF APPEALS OF IOWA

No. 21-1852

Filed June 21, 2023

THE TIMELY MISSION NURSING HOME d/b/a TIMELY MISSION NURSING 

HOME and TIMELY MISSION,

Plaintiff/Counterclaim Defendant-Appellant,

vs.

KATHY L. ARENDS and PATTI J. FIDERLICK, Individually and as CoExecutors of the ESTATE OF DARLENE WEAVER,

Defendants/Counterclaim Plaintiffs-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, James M. Drew, 

Judge.

Timely Mission appeals the district court’s admission of certain evidence as 

well as jury instructions. REVERSED AND REMANDED.

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

L. Booher (pro hac vice) of Zimmerman Booher, Salt Lake City, Utah, for appellant.

Benjamin P. Long, Pressley Henningsen, Brian Ivers, and Laura Schultes 

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

Heard en banc.
2

GREER, Judge.

The Timely Mission Nursing Home (Timely Mission) appeals the entry of a 

$6,000,000 verdict against them in favor of Kathy Arends and Patti Fiderlick, 

individually and as co-executors of the Estate of Darlene Weaver (collectively the 

Estate). Timely Mission argues the district court wrongly admitted evidence that 

was hearsay, unfairly prejudicial, and of prior bad acts; it also challenges the 

admission of state documents with findings of abuse. Finally, it challenges certain 

jury instructions it believes were not supported by the evidence. Because we find 

inadmissible evidence was admitted, we reverse and remand for a new trial. 

I. Background Facts and Prior Proceedings. 

Darlene Weaver moved into Timely Mission in July 2015 for nursing and 

memory care; among other things, she lived with dementia and Parkinson’s 

disease and had a history of falling. When Weaver arrived at Timely Mission, a 

comprehensive assessment was done. This tool is meant to provide a full picture 

of the individual for appropriate care to be provided. Based on that tool, Timely 

Mission completed a fall assessment which was periodically updated. When 

Weaver first arrived, she had recently sustained a hip fracture and was designated 

a one-person assist, meaning she needed someone with her to help get her to the 

restroom or walk down the hall. But after six months, she was determined an 

independent ambulator and not a high fall risk. 

In April 2017, while moving between her bed and the restroom, Weaver fell. 

According to Timely Mission’s charting, she suffered no serious injury. No changes 

were made to Weaver’s fall assessment. Then, in June of 2017, Weaver fell again
3

while moving between her bed and the restroom and fractured her left hip and 

shoulder. Less than a week later, she died of complications from the June fall. 

Timely Mission filed a claim in Weaver’s probate action for unpaid charges.

1

 

Then the Estate filed suit against Timely Mission in November 2017; the cases 

were consolidated, and the Estate eventually paid the remaining balance, leaving 

only the Estate’s claims that Timely Mission’s negligence, gross negligence, or 

recklessness caused Weaver’s wrongful death; Timely Mission breached its 

contract with Weaver by failing to provide care commensurate with her needs; and 

dependent adult abuse. Additionally, Weaver’s children claimed loss of 

consortium. The Estate sought punitive damages. 

Along with allegations about Timely Mission’s fall assessment of Weaver 

and fall-prevention measures, the Estate’s argument focused on alleged abuse of 

Weaver and its impact on her health and willingness to ask for help. This 

specifically concerned one certified nursing assistant (CNA) at Timely Mission, 

Melanie Blakesley. Days before the fall, Arends called Timely Mission; the 

employee who took the call summarized in a note, entered as an exhibit at trial, 

that Arends did not want Blakesley caring for Weaver because, when Weaver had 

asked Blakesley for help, Blakesley had told Weaver to “help herself” because “she 

couldn’t be [there] all of the time.” The employee who took the call spoke with 

Weaver, who confirmed this concern. The Estate planned to elicit testimony that 

fear of staff at a nursing home can prevent residents from asking for help. They 

also presented witnesses, namely other CNAs or Timely Mission staff who had 

1 The bill was eventually paid in full in the midst of trial.
4

worked with Blakesley, who would testify they saw Blakesley physically and 

verbally abuse other residents. The Estate also planned to include documents 

from the Iowa Department of Inspections and Appeals (IDIA) that contained 

allegations of, investigations into, and findings of abuse at Timely Mission—some, 

but not all, involved Weaver as the victim.

2

Ahead of trial, Timely Mission filed several motions in limine. One asked 

the district court to exclude evidence of complaints made to the IDIA that both did 

and did not involve Weaver. In another, it asked the district court to limit evidence 

about Blakesley’s alleged physical and verbal abuse toward other residents as 

impermissible prior bad acts evidence and hearsay. A third sought to exclude 

evidence that Weaver fell because of “fear of Melanie Blakesley or Ms. Weaver’s 

unwillingness to call for assistance.” 

The district court held a hearing on the motions and determined it would 

rule on IDIA evidence as it arose during trial. Further, it ruled that any evidence of 

physical abuse against Weaver was “obviously” admissible, but the admissibility 

of any evidence of such abuse against another resident would be determined at 

trial, so the Estate could only “refer to its contentions in a general sense” and not 

discuss specifics until the court could deem such evidence was admissible. And 

it overruled Timely Mission’s request to exclude evidence about Weaver’s fear of 

Blakesley and its consequences. 

The issue of evidence of physical abuse arose during the Estate’s opening 

statement. Outside of the presence of the jury, Timely Mission asserted that the 

2 Though the documents do not refer to residents by name, the details provided 

confirmed that one of the reports concerned Weaver. 
5

references to physical abuse were “incurably prejudicial” and that there was “scant 

evidence—certainly not compelling evidence and not substantial—of any type of 

physical abuse occurring in this case.” Realizing this would be a persistent issue, 

the district court offered Timely Mission a standing objection to references to 

physical abuse. Timely Mission declined, stating it would “have to watch and see.” 

Several individuals who were staff at Timely Mission while Weaver was a 

resident also testified. Darci Beck,3 a CNA, testified that she received word from 

other residents that Blakesley was “rude” or would swear at them; she also testified 

she witnessed Blakesley swearing at residents and being aggressive during 

transfers.4 Melissa Brandt, a charge nurse, testified she received complaints from 

other staff about Blakesley swearing at residents and being “physically rough.” 

She also stated she had expressed concerns to Roberta Hagedorn, Timely 

Mission’s Director of Nursing, about the staffing levels, specifically that they 

needed more CNAs. Paul Armstrong, the maintenance supervisor, also testified 

he heard concerns or “rumors” about Blakesley from the staff; he directed them to 

speak to Hagedorn. CNA Colleen Haugen testified she knew Blakesley was not 

allowed in certain rooms and had heard it was because she was rough with 

residents and swore at them; specifically, she heard this was why Blakesley was 

not allowed in Weaver’s room for a period. She herself saw Blakesley yell “fuck” 

and “bitch” at Weaver and tell Weaver to “put her own shoes on.” Haugen 

3 Beck gave similar testimony in a deposition, which was read to Lori Bierle, the 

corporate representative for Timely Mission, while taking her deposition. That 

portion of Bierle’s video deposition was played for the jury. 

4 Testimony at trial showed that “transferring” refers to moving a patient from one 

position to another, such as from their bed to a chair or helping them stand.
6

intervened, asking Blakesley to leave the room, and then reported this information 

to the charge nurse. CNA Rita Thompson also testified she heard reports from 

other staff that Blakesley was being abusive toward residents and reported that 

information to the charge nurse. She also testified she found bruises on the back 

of Weaver’s arms and the top of her shoulder, which she reported to the charge 

nurse. And finally, portions of facility administrator Stephanie Morris’s deposition 

were read into evidence. Morris testified a state surveyor came to her and reported 

allegations Blakesley had verbally and physically abused some of the residents; 

after following up with staff, she determined that some allegations were founded 

and terminated Blakesley. 

Following Brandt’s testimony, again outside of the presence of the jury, the 

district court granted Timely Mission a standing objection to references to verbal 

and physical abuse of those other than Weaver. The district court specifically 

noted it was allowing the evidence in to show the abuse “was reported and there 

was not follow-up investigation,” but not for the truth of the allegations. 

In addition to the staff members, the Estate offered testimony from several 

expert witnesses. One, Byron Arbeit, was an expert in health care administration. 

He explained that, consistent with both state laws and Timely Mission’s internal 

policies, all Timely Mission employees were required to report suspected abuse—

including verbal or physical abuse—even if they did not see it occur. He also stated 

that, based on his review of the evidence in the case, Weaver had been verbally 

abused and potentially physically abused. Timely Mission objected to his initial 

statement, citing the earlier motion in limine—the district court overruled the 

objection. Arbeit explained that if a resident was abused, they would feel 
7

threatened, become withdrawn, and be less likely to ask for help. This was echoed 

by another expert presented by the Estate—Dr. Joyce Black, a nursing professor—

who testified residents “can become fearful that they’re going to get yelled at, and 

they can stop asking for help because they don’t want to get yelled at.” 

Also during Arbeit’s testimony, the Estate sought to ask him about the IDIA 

reports, including the one that originated after Weaver’s death and concluded she 

had been abused. Timely Mission objected, stating the reports were both hearsay 

and evidence of prior bad acts. The district court limited the Estate to only the 

report that followed Arends’s complaint; further restricted the testimony to refer to 

it as a report, but not a citation; and held Arbeit could not discuss specifics of the 

findings. The report itself, however, was not offered into evidence. Arbeit testified 

he regularly used state documents to develop his conclusions and that such 

practice was common in his field; here, he relied on the IDIA report and found it 

was consistent with his conclusions. 

The Estate made a similar offer with Dr. Bruce Naughton. Following his 

conclusion that Weaver was abused, the Estate asked if Naughton had reviewed 

the IDIA documents and if they were consistent with his opinions and conclusion—

Naughton responded that they were consistent. He also explained, when asked 

about abuse, that particularly for a patient with dementia:

they’re already in an institution where they don’t want to be. They’re 

not feeling any control. It’s very easy for someone who you feel is

not paying attention to you, is treating you as an object—it’s

devaluing. It—it can cause depression, anger. It’s just—adds to the

environment where you already feel trapped, not in control, that it 

makes that even worse.
8

Fiderlick testified that the last time she saw her mother, she seemed out of 

sorts—she described her as “quiet,” “subdued,” and “[j]ust not herself.” She also 

recalled a conversation where her mother said someone at Timely Mission was 

being mean to her. Arends also testified about finding bruises on the backs of her 

mother’s arms the April before her fall. She also testified that, as far back as 2016, 

Weaver expressed she was fearful of Blakesley, specifically that “she was afraid 

nobody would come and help her get dressed.” Arends believed that “when 

[Weaver] asked for help, they wouldn’t come help her.” Arends testified that she 

told Timely Mission about her concerns and trusted it to keep Blakesley out of 

Weaver’s room; she did not believe Blakesley was allowed in Weaver’s room in 

June 2017 and repeated her wishes that Blakesley not care for Weaver when she 

heard Blakesley was in her room again. 

After the close of evidence in the nine-day trial, Timely Mission moved for a 

directed verdict. It claimed the Estate failed to prove its prima facie case of 

physical and verbal abuse or introduce substantial evidence that Timely Mission 

caused Weaver’s fall; it also argued the Estate had not offered substantial 

evidence necessary to support punitive damages due to the acts of Timely Mission 

employees. The district court denied the motion. Timely Mission then objected to 

the corresponding jury instructions, arguing certain specifications were not 

supported by the evidence, but the district court gave these challenged 

specifications to the jury.

The jury returned a verdict for the Estate, awarding $2,000,000 for Weaver’s 

pre-death pain and suffering, $1,000,000 for pre-death loss of full mind and body, 

$500,000 each to Weaver’s two children for loss of consortium, and $2,000,000 in 
9

punitive damages. Timely Mission moved for a new trial and judgment 

notwithstanding the verdict. After a hearing on the motions, the district court 

denied both. 

On appeal, Timely Mission argues the district court wrongly allowed the 

Estate to offer (1) hearsay evidence that Blakesley was verbally abusive to 

residents other than Weaver; (2) hearsay evidence that Blakesley was physically 

abusive to other residents; and (3) evidence from IDIA investigations. Timely 

Mission also argues the district court submitted claims not supported by the 

evidence to the jury, namely a negligent staffing claim and two punitive damages 

specifications. 

II. Standard of Review.

Our typical review of a district court decision to exclude or admit evidence, 

including decisions based on Iowa Rules of Evidence 5.403 and 5.404, is for an 

abuse of discretion. Mohammed v. Otoadese, 738 N.W.2d 628, 631 (Iowa 2007) 

(rule 5.403); Kindig v. Newman, 966 N.W.2d 310, 317 (Iowa Ct. App. 2021) 

(rule 5.404). “We reverse the district court’s admission as an abuse of discretion 

when the grounds for admission were ‘clearly untenable or clearly unreasonable.’” 

Kindig, 966 N.W.2d at 317 (citation omitted). “However, we review challenges to 

hearsay and other evidence implicating the interpretation of a rule of evidence for 

correction of errors at law.” Hawkins v. Grinnell Reg’l Med. Ctr., 929 

N.W.2d 261, 265 (Iowa 2019). “Error may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of the party is affected.” 

Iowa R. Evid. 5.103(a). But, “unless the record shows the contrary, we presume 
10

improperly admitted hearsay evidence is prejudicial to the nonoffering party.” 

Hawkins, 929 N.W.2d at 265.

III. Analysis.

A. Evidence about Blakesley and Abuse.

Timely Mission challenges the following statements made by six witnesses

about Blakesley and residents other than Weaver: 

(1) Beck’s testimony that residents told her Blakesley was rude, would not 

help them, or would swear at them; that she witnessed Blakesley swearing at other 

residents; and that she reported Blakesley for that behavior and aggressively 

transferring residents to the administrator and charge nurse;

(2) Brandt’s testimony that other staff told her Blakesley had sworn at and 

been physically rough with residents;

(3) Armstrong’s testimony he had other staff members tell him Blakesley 

was abusive;

(4) Haugen’s testimony that she heard from “rumors and other employees” 

that Blakesley was physically rough with and would swear at residents;

(5) Thompson’s testimony that other staff told her Blakesley was abusive 

and that she reported her concerns about Blakesley’s behavior to the charge 

nurse; and 

(6) Morris’s testimony that an IDIA surveyor told her about reports that 

Blakesley “was being abusive to residents” and, upon investigation, was told by 

staff that Blakesley was verbally abusive and physically rough with a resident.

As to Blakesley and Weaver, Timely Mission also challenges Haugen’s 

testimony that she was once told “at report” that Blakesley was not to go into 
11

Weaver’s room, that she was told by other aides that Blakesley was not allowed in 

Weaver’s room because Blakesley was rough with Weaver, and that she saw and

reported Blakesley swear at Weaver and refuse to help her. 

Timely Mission argues, as it did at trial, that the statements should have 

been excluded as hearsay. And, as to the statements made about Blakesley’s 

treatment of residents other than Weaver, it argues they were unfairly prejudicial 

and inadmissible evidence of prior bad acts. 

i. Hearsay.

Iowa Rule of Evidence 5.802 excludes hearsay statements from evidence 

unless they fit into an established exception. Rule 5.801(c) defines hearsay as “a 

statement that: (1) The declarant does not make while testifying at the current trial 

or hearing; and (2) A party offers into evidence to prove the truth of the matter 

asserted in the statement.” 

a. Error Preservation. 

The Estate disputes error preservation on statements made by Brandt about 

abuse toward residents other than Weaver, claiming that they were made before 

the standing objection was put in place. 

“It is a fundamental doctrine of appellate review that issues must ordinarily 

be both raised and decided by the district court before we will decide them on 

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). But, “[o]ur issue 

preservation rules are not designed to be hypertechnical.” Griffin Pipe Prods. Co. 

v. Bd. of Rev., 789 N.W.2d 769, 772 (Iowa 2010). They exist to promote fairness 

because “[i]t is fundamentally unfair to fault the trial court for failing to rule correctly 

on an issue it was never given the opportunity to consider.” Otterberg v. Farm 
12

Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa 2005) (alteration in original). In 

this case, when the district court discussed the standing objection, the Estate tried 

to specifically clarify that it would only apply going forward. The district court 

responded:

Right, right. The record’s made up to this point forward. But, again, 

I—And I don’t want to re-create everything that’s been said. But I—

I know we’ve had some pretty in-depth conversations about this. And 

we talked about reasons previously urged in a motion in limine and 

whatnot. So I think it’s been clear that Timely Mission has been 

objecting to testimony of any type of abuse with respect to other 

residents throughout the trial thus far.

Based on this discussion, it is clear that the district court had ample notice of the 

concern and repeatedly addressed this issue from the case’s onset; we have no 

doubt the goals of error preservation were met. Cf. Gacke v. Pork Xtra, L.L.C., 

684 N.W.2d 168, 181 (Iowa 2004) (“This court has long held the view that ‘once a 

proper objection has been urged and overruled, it is not required that repeated 

objections be made to questions calling for the same type of evidence.’” (citation 

omitted)), overruled on other grounds by Garrison v. New Fashion Pork LLP, 977 

N.W.2d 67, 81–82 (Iowa 2022). 

The Estate also challenges whether error was preserved as to statements 

made by Haugen about interactions with Weaver specifically. Timely Mission did 

not object to the statements at the time Haugen testified. Typically, the district 

court’s ruling on a motion in limine is not an evidentiary ruling; “[t]his is because 

the error only occurs, if at all, when the evidence is offered at trial and is either 

admitted or refused.” Quad City Bank & Tr. v. Jim Kircher & Assocs., P.C., 804 

N.W.2d 83, 89–90 (Iowa 2011). And if a motion in limine is denied, as it was here, 

“the resisting party must object at the time the evidence is offered at trial to 
13

preserve a challenge to the evidence on appeal.” State v. Thoren, 970 

N.W.2d 611, 621 (Iowa 2022). But, “[w]hen the court’s ruling on a motion in limine 

leaves no question that the challenged evidence will or will not be admitted at trial, 

counsel need not renew its objection to the evidence at trial to preserve error.” 

Quad City Bank & Tr., 804 N.W.2d at 90. “The key to deciding whether the general 

rule or the exception applies in a given case is determining what the trial court 

purported to do in its ruling.” Id. 

Timely Mission had already objected to statements of physical abuse 

perpetrated against Weaver in its third motion in limine—unlike the statements 

about interactions with other residents, which the court reserved ruling on, the 

district court expressly held: “Obviously, any evidence of physical or verbal abuse 

perpetrated against Darlene Weaver is admissible. To the extent Timely Mission’s 

motion pertains to that evidence it is overruled.” (Emphasis added). Because this 

qualified as a final ruling on admissibility and fits into the exception of this general 

rule, error was preserved without a contemporaneous objection to Haugen’s 

testimony. 

b. Blakesley and Other Residents.

The district court held the statements about Blakesley and other residents

were not hearsay because they were not offered for their truth, but instead to show 

that suspected abuse “was reported [to Timely Mission] and there was no followup investigation.” See McElroy v. State, 637 N.W.2d 488, 501 (Iowa 2001) (“[A]

statement that would ordinarily be deemed hearsay is admissible if it is offered for 

a non-hearsay purpose that does not depend upon the truth of the facts 

presented.”).
14

Timely Mission argues the above statements—except for Beck’s testimony 

that she witnessed Blakesley swearing at and aggressively transferring other 

residents—were inadmissible hearsay evidence offered for their truth, pointing to 

our supreme court’s holding in Gacke. In Gacke, a nuisance case against a hog 

confinement facility, the plaintiffs, prior to trial, “circulated questionnaires to various 

individuals who had been on or around the plaintiffs’ property concerning the odors 

emanating from the defendant’s confinement facilities. Twenty-three completed 

questionnaires were admitted at trial over the defendant’s hearsay objection.” 684 

N.W.2d at 181. Similar to the argument here, the plaintiffs claimed the 

questionnaires were not offered for their truth, but to show that “the defendant 

[was] on notice of an odor problem [which] rendered the defendant’s subsequent 

failure to take remedial action unreasonable.” The supreme court stated on appeal 

that, counter to plaintiff’s argument, these questionnaires were offered for their 

truth because 

the reasonableness of the defendant’s inaction [was] dependent on 

whether an odor problem actually existed. In other words, if the 

statements made by the questionnaire respondents that there were 

severe odors coming from the defendant’s facilities were untrue, the 

defendant’s inaction would not be unreasonable. Thus, the probative 

value of the questionnaire statements depends on the truth of those 

statements. 

Id. at 182. 

The Estate argues this case is distinguishable from Gacke because unlike 

the hog confinement facility, where behavior was premised on the truth of the 

concerns, testimony at trial showed that Timely Mission staff members were 

mandatory reporters; and, according to Timely Mission’s internal policy, “[a]s a 

mandatory reporter, if an employee suspect[ed] or witness[ed] the potential abuse 
15

of a resident, they must notify the person in charge or the person’s designated 

agent who shall notify the [IDIA] within 24 hours of such notification.” In other 

words, action was to be taken when there was an allegation regardless of whether 

or not that allegation was true. We agree that Gacke can be distinguished but not 

in a manner that is helpful to the Estate. Unlike the detail from the questionnaires

in Gacke, here the evidence of alleged abuse came from unknown staff about nonspecific details against unnamed residents. On this record, the Estate could not 

reliably show foundational support that the prior incidents occurred under 

substantially the same circumstances. See McClure v. Walgreen Co., 613 

N.W.2d 225, 234 (Iowa 2000). To satisfy the failure-to-investigate theory, the 

Estate must show more than rumors. The Estate argues the evidence was offered 

to prove the “pattern of reports” that Timely Mission received but failed to 

investigate. But, based on this record we cannot say if the rumors all relate back 

to one incident or many incidents. Plus, although the Estate argues the evidence 

was not offered to show that Blakesley abused residents, that is exactly how the 

information was used by the Estate during closing arguments.

Taking another approach, the Estate argues this evidence should have 

been admitted for its truth regardless because the statements offered against 

Timely Mission were made by Timely Mission’s “employee[s] on a matter within 

the scope of that relationship and while it existed,” excluding them from the bar on 

hearsay under Iowa Rule of Evidence 5.801(d)(2)(D). This rule clearly does not

apply to certain statements: part of Beck’s testimony was about what she heard 

from residents and Morris’s testimony was about what she was told by an IDIA 

surveyor. To begin with, these statements are hearsay within hearsay, which is 
16

admissible only if each level of hearsay is admissible by some exception to the 

exclusionary rule. Iowa R. Evid. 5.805. But focusing just on the residents and the 

surveyor, these statements were not made by agents or employees of Timely 

Mission. The offering party bears the burden of “showing that the declarant was 

speaking within the scope of that person’s agency in order to establish a vicarious 

admission under Iowa Rule of Evidence 801(d)(2)(D).” Annear v. State, 454 

N.W.2d 869, 873 (Iowa 1990); accord Ceaser v. Marshalltown Med. & Surgical 

Ctr., No. 18-2101, 2020 WL 1310299, at *2 (Iowa Ct. App. Mar. 18, 2020). “[A]n 

act is deemed to be within the scope of one’s employment ‘where such act is 

necessary to accomplish the purpose of the employment and is intended for such 

purpose.’” Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999) (citation omitted); 

accord Ceaser, 2020 WL 1310299, at *2. And, regarding the rest of the statements 

at issue, there was no explicit foundation laid at trial that any of the statements 

were necessary for employment and made for that purpose. While information

could be passed between colleagues to ensure proper care, because we do not 

know the identity of those making the statements there is nothing in this record to 

assure us these unnamed staff members were speaking within the scope of their 

employment or even what purpose existed behind the spread of the rumors. Thus, 

these statements related to unknown employees were inadmissible hearsay that 

should not have been allowed into evidence. 

Because these statements were inadmissible hearsay, we presume 

prejudice. Hawkins, 929 N.W.2d at 265. And, “[w]hen inadmissible hearsay 

evidence directly addresses a hotly contested central dispute of the parties, it is 

harder for us to find the evidence nonprejudicial.” Here, abuse was a central theme 
17

of the Estate’s case. While there was direct evidence of individuals seeing isolated 

incidents of abuse by Blakesley, Timely Mission’s culture and understanding 

surrounding the abuse is a broader issue. Given the hot-button nature of the issue, 

we find Timely Mission was prejudiced. Therefore, we reverse the verdict and 

remand for a new trial. See id. at 267. But, because we find other reasons to 

remand for new trial and there are other issues that will likely arise in that new trial, 

we address the other evidentiary concerns as well. See Zaw v. Birusingh, 974 

N.W.2d 140, 168 (Iowa Ct. App. 2021) (“Because we find the case must be 

remanded for a new trial, we will consider any remaining issues that may arise 

again on retrial.” (citation omitted)). 

c. Blakesley and Weaver.

As to Haugen’s testimony about Blakesley and Weaver, we find they were 

not inadmissible hearsay. Blakesley’s swear words directed at Weaver—“fuck” 

and “bitch”—were not offered for whatever “truth” the words held, but instead to 

show the tenor of the conversation and their impact on Weaver. As to the whole 

interaction, it was established that this occurred while Blakesley was working at 

Timely Mission and actively working with a resident, which “was necessary to 

accomplish the purpose of the employment and is intended for such purpose.” See 

Godar, 588 N.W.2d at 705. The same can be said of Haugen’s report of the 

behavior, as stated above. So, under rule 5.801(d)(2)(D), it is excluded from the 

definition of hearsay and its admission is not reversible error. 
18

ii. Unfair Prejudice.

Next, Timely Mission argues the abuse evidence about Blakesley and other 

residents was unfairly prejudicial.5 Iowa Rule of Evidence 5.403 gives the court 

discretion to “exclude relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice . . . .” First, the court determines 

the probative value of the evidence; that probative value is then balanced “against 

the danger of its prejudicial or wrongful effect upon the triers of fact.” State v. 

Lacey, 968 N.W.2d 792, 807 (Iowa 2021) (citation omitted). “Unfair prejudice 

arises when the evidence prompts the jury to make a decision on an improper 

basis, often an emotional one.” Pexa v. Auto Owners Ins. Co., 686 

N.W.2d 150, 158 (Iowa 2004) (citation omitted); accord State v. Plaster, 424 

N.W.2d 226, 231 (Iowa 1988) (noting unfairly prejudicial evidence “appeals to the 

jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or 

triggers other mainsprings of human action may cause a jury to base its decision 

on something other than the established propositions in the case”). But, “[t]he 

adverse effect of relevant evidence due to its probative value is not unfair 

prejudice.” Pexa, 686 N.W.2d at 158–59. “Because the weighing of probative 

value against probable prejudice is not an exact science, we give a great deal of 

leeway to the trial judge who must make this judgment call.” State v. Newell, 710 

N.W.2d 6, 20–21 (Iowa 2006). And, as excluding evidence under this rule leaves

the fact finder deprived of relevant evidence, courts are to use it sparingly. State 

v. Buelow, 951 N.W. 879, 889 (Iowa 2020) (“[A]ll powerful evidence is prejudicial 

5 This issue is distinct from whether or not a party was prejudiced by the wrongful 

admission of hearsay dealt with above. 
19

to one side.” (alteration in original) (citation omitted)). So “[i]f the balance between 

the evidence’s probative value and prejudicial effect is relatively close, the 

evidence should be admitted.” Id.

As we have stated, the alleged abuse at Timely Mission and the facility’s 

response was a main point of contention in this case, specifically in determining 

how likely Weaver would be to ask for help. The Estate argued this evidence was

to show Timely Mission engaged in a pattern of ignoring abusive behavior. Here, 

observations, not rumors, of alleged abusive behavior by Blakesley would have 

probative value to the claims made. And, while Timely Mission argues the 

probative value of the evidence is decreased by the vague descriptions given, this 

also decreases the prejudice. Evidence of abuse of dependent persons will often 

be “at least somewhat prejudicial.” See State v. Huston, 825 N.W.2d 531, 537 

(Iowa 2013) (“In child abuse cases, much evidence will be ‘at least somewhat 

prejudicial. Exclusion is required only when evidence is unfairly prejudicial [in a 

way that] substantially outweighs its probative value.’” (alteration in original) 

(citation omitted)). But Timely Mission has not demonstrated the evidence was 

unfairly prejudicial, it simply states it was. Accordingly, we find nothing 

unreasonable nor untenable in the district court’s determination that the evidence’s 

probative nature was not substantially outweighed by unfair prejudice. 

iii. Prior Bad Acts. 

Timely Mission’s third concern is that the evidence of Blakesley’s 

interactions with residents other than Weaver violated Iowa Rule of 

Evidence 5.404(b). Under the rule, “Evidence of any other crime, wrong, or act is 

not admissible to prove a person’s character in order to show that on a particular 
20

occasion the person acted in accordance with the character.” Iowa R. 

Evid 5.404(b)(1). But, “[t]his evidence may be admissible for another purpose such 

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Iowa R. Evid. 5.404(b)(2). “In 

determining whether to admit prior-bad-acts evidence, we rely on a three-step 

analysis.” State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014). First, we “determine 

whether the evidence is relevant to a legitimate, disputed factual issue.” Id at 9.

Then, there “must be clear proof the individual against whom the evidence is 

offered committed the bad act or crime.” Id. (citation omitted). Then, if both the 

relevance and clear-proof requirements are met, the court determines “whether 

the evidence’s ‘probative value is substantially outweighed by the danger of unfair 

prejudice to the defendant.’” Id. (citation omitted). To determine if the probative 

value is substantially outweighed by the danger of unfair prejudice, we look at four

factors:

the need for the evidence in light of the issues and the other evidence 

available to the [offering party], whether there is clear proof the 

[opposing party] committed the prior bad acts, the strength or 

weakness of the evidence on the relevant issue, and the degree to 

which the fact finder will be prompted to decide the case on an 

improper basis.

Id. at 9–10 (citation omitted). 

The Estate argues the evidence was offered not to show that Blakesley

acted in conformity with her past actions, but to show that Timely Mission received 

a pattern of reports to which it “willfully and wantonly failed to respond.” See 

Thoren, 970 N.W.2d at 626 (“Prior bad acts evidence is always propensity 

evidence in the sense that it has the ‘potential for the jury to draw the 
21

inference . . . that because the defendant did this kind of thing before, he did it on 

the charged occasion.’” (alteration in original) (citation omitted)). Timely Mission’s 

argument bypasses6the relevance question and jumps to the clear-proof step, 

arguing that only hearsay supported the statements about Blakesley’s treatment 

of other residents. “In assessing whether clear proof of prior misconduct exists, 

the prior act need not be established beyond a reasonable doubt, and 

corroboration is unnecessary.” Putman, 848 N.W.2d at 10. “There simply needs 

to be sufficient proof to ‘prevent the jury from engaging in speculation or drawing 

inferences based on mere suspicion.’” Id. at 9 (citation omitted). But, while 

“[t]estimony of credible witnesses can satisfy the clear-proof requirement,” “[m]ere 

speculation or hearsay is not enough.” Thoren, 970 N.W.2d at 626 (citation 

omitted) (first alteration in original). 

Timely Mission is right that Brandt’s, Armstrong’s, Haugen’s, Thompson’s, 

and Morris’s testimony about Blakesley’s behavior toward residents was based 

only on hearsay statements. Those statements are not supported by clear proof 

and should not have been admitted under rule 5.404(b). The same can be said of 

Beck’s testimony about rumors she heard. But Beck also testified she often saw 

Blakesley yell at residents other than Weaver and transfer them aggressively—

these were not hearsay statements and Timely Mission has not questioned Beck’s 

credibility on these points. So, while a number of the contested statements cannot 

6 Timely Mission challenges relevance in its reply brief, but “we have long held that 

an issue cannot be asserted for the first time in a reply brief.” Young v. Gregg, 480 

N.W.2d 75, 78 (Iowa 1992). 
22

meet the clear-proof requirement, Beck’s testimony about what she saw herself 

can. 

We move, then, to the four-part test to determine “whether the evidence’s 

‘probative value is substantially outweighed by the danger of unfair prejudice to the 

defendant.’” Id. (citation omitted). As to need for the evidence, Timely Mission 

points out the Estate already had evidence of verbal abuse against Weaver, 

making evidence of Blakesley yelling at other residents unnecessary. Second, we 

have already determined there was direct testimony that Blakesley swore at and 

aggressively transferred a resident. Third, the eye-witness evidence of the act was

relatively strong and supports the contention that Timely Mission was informed of 

Blakesley’s behavior. These three factors all point to the evidence having 

probative value—and while evidence of abuse can evoke strong feelings, the 

evidence here was fairly vague. Beck testified she saw Blakesley swearing, but 

did not repeat anything verbatim; she also said only Blakesley aggressively 

transferred residents but did not discuss those residents’ reactions or how they 

were impacted. The evidence focused, instead, on if she reported the behavior 

regularly and if it continued. With this in mind, we do not find the likelihood of unfair 

prejudice outweighs the probative value of the evidence if similar evidence is 

presented at the next trial. 

We find the prior bad acts testimony about Blakesley toward other residents 

from Brandt, Armstrong, Haugen, Thompson, and Morris, as well as Beck’s 

testimony about rumors she heard, should have been excluded by the district court 

as evidence of prior bad acts for a lack of clear proof; the district court abused its 

discretion in not excluding that evidence. Graber v. City of Ankeny, 616 
23

N.W.2d 633, 638 (Iowa 2000) (“A ground or reason is untenable when it is not 

supported by substantial evidence or when it is based on an erroneous application 

of the law.”). But we find no abuse of the district court’s discretion in allowing 

Beck’s eye-witness testimony of Blakesley’s behavior. 

B. IDIA Evidence. 

Timely Mission argues the IDIA evidence—specifically referenced by Arbeit

and Naughton—was inadmissible7 evidence wrongly admitted under Iowa Rule of 

Evidence 5.703, which provides: 

An expert may base an opinion on facts or data in the case that the 

expert has been made aware of or personally observed. If experts 

in the particular field would reasonably rely on those kinds of facts or 

data in forming an opinion on the subject, they need not be 

admissible for the opinion to be admitted. But if the facts or data 

would otherwise be inadmissible, the proponent of the opinion may 

disclose them to the jury only if their probative value in helping the 

jury evaluate the opinion substantially outweighs their prejudicial 

effect.

“[R]ule 5.703 is intended to give experts appropriate latitude to conduct their work, 

not to enable parties to shoehorn otherwise inadmissible evidence into the case.” 

In re Det. of Stenzel, 827 N.W.2d 690, 705 (Iowa 2013). “[E]vidence admitted 

under this rule is admitted for the limited purpose of showing the basis for the 

expert witnesses’ opinions; it is not admissible as substantive evidence of the 

7 Though the district court, in its oral ruling, did not specifically cite rule 5.703, it 

ruled that “[t]o the extent that [Arbeit] testifies that he relied on [the IDIA report] and 

that that is reasonable for him to do so in his field of expertise, I will let him indicate 

that he reviewed it.” This language indicates a finding the evidence would not be 

otherwise admissible but could be entered under the terms of rule 5.703. Then, 

during an offer of proof made with Naughton, the court reiterated that the IDIA 

evidence presented concerns with relevance, prior bad acts, and hearsay, but was 

allowed under the same conditions as laid out for Arbeit. The Estate has not crossappealed; so, we proceed with the understanding the evidence was otherwise 

inadmissible and focus our analysis on rule 5.703. 
24

matters asserted therein.” Gacke, 684 N.W.2d at 183. It also “does not empower 

an expert witness to testify other experts subscribe to or support his or her opinion” 

because “[t]his type of testimony is not only insufficient to establish the prerequisite 

foundation, it relates to the truth of the matter by bolstering credibility and permits 

an expert to improperly serve as [a] conduit for the opinion of another witness.” 

CSI Chem. Sales, Inc. v. Mapco Gas Prods., Inc., 557 N.W.2d 528, 531 (Iowa Ct. 

App. 1996) (internal citations omitted); accord Arnold v. Lee, No. 05-0651, 2006 

WL 1410161, at *5 (Iowa Ct. App. May 24, 2006) (noting that while “introducing an 

opinion of a nontestifying expert as a basis for the opinion of a testifying witness” 

is allowed under rule 5.703, “introducing such evidence to corroborate the opinion” 

is not). 

As directed, Arbeit and Naughton both testified only that the IDIA report was 

consistent with their conclusions. But this limited testimony provided only 

corroboration—it did not provide information for the basis of their opinions. Cf.

Arnold, 2006 WL 1410161, at *6 (“Had the district court allowed the [evidence], 

there is a distinct danger that, because it provided nothing more than another 

opinion in agreement with [the expert], the jury would have used it as substantive 

evidence.”). The district court abused its discretion in allowing Arbeit and 

Naughton to testify that the IDIA reports were consistent with their conclusions.8 

Because the IDIA evidence at issue was inadmissible hearsay, we presume 

prejudice. Further, our supreme court has noted that “the potential prejudice from 

8 We evaluate this evidence in the specific form it was offered—we do not consider 

and take no opinion on whether the district court should have allowed or 

suppressed the evidence generally. 
25

the evidence about [an agency’s] investigation is quite high. Because 

administrative agencies are arms of the state, there is a risk that juries will treat 

agency findings as official, state-sanctioned results.” Thoren, 970 N.W.2d at 624; 

accord Huston, 825 N.W.2d at 538–39 (collecting cases recognizing “the danger 

a jury will be unfairly influenced by an administrative agency finding”). And this 

prejudice exists even if, as the Estate argues, it did not “impl[y] or argue[] that 

because the ‘state papers’ existed, therefore abuse happened, and that the jury’s 

job was complete (they could just rely on the State’s findings).” The Estate does 

not argue that using this evidence to bolster its witnesses’ credibility did not 

prejudice Timely Mission, and we will not make that argument for them. See Hyler 

v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“In a case of this complexity, we will 

not speculate on the arguments [a party] might have made and then search for 

legal authority and comb the record for facts to support such arguments.”). Again, 

this is a reversible error that requires a new trial. See Hawkins, 929 N.W.2d at 267.

C. Jury Instruction Specifications. 

Finally, we turn to Timely Mission’s last contention of error—that the district 

court erred in submitting claims to the jury that were not supported by the evidence. 

Timely Mission challenges a specification of the negligence instruction which 

allowed the jury to find Timely Mission negligent for “failing to provide sufficient 

staffing to care for the needs of [Weaver] and assure her safety” and two punitivedamages specifications that allowed the jury to find Timely Mission liable for acts 

of its employees if “[t]he employee was unfit and the employer or its managerial 

agent was reckless in employing or retaining the employee” or if “[t]he employer or 

its managerial agent ratified or approved the act.” 
26

Because we have already determined that a new trial is necessary and our 

decision may impact what issues are raised on retrial, we will not address if these 

particular jury instructions were supported by the evidence. 

IV. Conclusion.

Because prejudicial, inadmissible evidence was allowed into evidence, we 

reverse and remand for a new trial. 

REVERSED AND REMANDED.