Full Case Name:  REICKSVIEW FARMS, L.L.C., Plaintiff, v. Ross KIEHNE, DVM, et al., Defendants.

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Country of Origin:  United States Court Name:  United States District Court, N.D. Iowa, Eastern Division Primary Citation:  541 F. Supp. 3d 935 (N.D. Iowa 2021) Date of Decision:  Friday, May 28, 2021 Judge Name:  Leonard T. Strand, Chief Judge Jurisdiction Level:  Federal Attorneys:  Benjamin R. Merrill, Brant D. Kahler, Brown Winick Law Firm, Des Moines, IA, for Plaintiff. James W. Carney, Nicholas J. Mauro, Jasper Paul Verhofste, Carney Appleby Nielsen & Skinner PLC, Des Moines, IA, for Defendants. Docket Num:  No. C21-2001-LTS
Summary: This case is brought by a farm in the business of raising and breeding pigs. Plaintiff brought suit against a veterinarian and veterinary clinic for several claims, including malpractice. Plaintiff alleges defendant failed to oversee and perform testing for Mhp, leading plaintiff to unknowingly transfer infected pigs to other farms resulting in monetary damages. Defendants moved for summary judgment and were denied, with the court holding that the two year statute of limitations for veterinary malpractice claims does not apply, and the five year statute of limitations for unwritten contract applies.


Background: Farm with sow farrowing operation brought action against veterinarian and veterinary clinic in state court asserting state-law claims for breach of express contract, breach of implied-in-fact contract, promissory estoppel, breach of implied duty contract, and professional negligence or malpractice. Veterinarian and clinic removed to federal court, and moved for summary judgment.  

Holding: The District Court, Leonard T. Strand, Chief Judge, held that five-year statute of limitations period applicable to unwritten contracts applied to farm’s claims.  

Motion denied.  


Leonard T. Strand, Chief Judge

This matter is before me on a motion (Doc. 20) for summary judgment filed by defendants Ross Kiehne, DVM, and Swine Vet Center, P.A. (SVC). Plaintiff Reicksview Farms, L.L.C. (RVF), has filed a resistance (Doc. 21) and defendants have filed a reply (Doc. 22). Oral argument is not necessary. See Local Rule 7(c).  


RVF filed this action in Iowa District Court for Chickasaw County on December 8, 2020. See Doc. 1. On January 5, 2021, defendants removed the case to this court based on diversity jurisdiction under 28 U.S.C. § 1332 and supplemental jurisdiction under 28 U.S.C. § 1441. RVF filed an amended complaint (Doc. 14) on March 8, 2021.  

RVF alleges that it operated a 10-site, 50,000-head sow farrowing operation in Chickasaw County, Iowa, and contracted with SVC and Dr. Kiehne to provide veterinary services, including Mycoplasma hyopneumoniae (Mhp) antibody testing every 30 days. RVF contends SVC and Dr. Kiehne oversaw and/or performed the Mhp antibody testing as contracted, except in September and October 2017, when they failed to oversee or perform the testing. As a result, RVF alleges it unknowingly transferred Mhp-infected gilts to third-party customers and to other sites within the RVF sow farrowing operation, resulting in monetary damages, including an increase in production costs, the cost of replacement gilts to sustain its sow farrowing *937 operation and the loss of genetic premiums under various gilt sale agreements with third-party customers. RVF further alleges that Dr. Kiehne has admitted to failing to conduct Mhp antibody testing in September and October 2017.  

RVF asserts claims of breach of express contract (Count I), breach of implied-in-fact contract (Count II), promissory estoppel (Count III), breach of contract (implied duty) (Count IV) and professional negligence/malpractice (Count V). In their motion (Doc. 20) for summary judgment, defendants argue that all claims are based on a theory of veterinary malpractice and are barred by the two-year statute of limitations provided in Iowa Code § 614.1(9).  


Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).  

A material fact is one that “ ‘might affect the outcome of the suit under the governing law.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id.  

An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Evidence that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, or evidence that is “merely colorable” or “not significantly probative,” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505, does not make an issue of material fact genuine.  

As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505. The party moving for entry of summary judgment bears “the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.  

In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the *938 nonmoving party. Matsushita, 475 U.S. at 587–88, 106 S.Ct. 1348. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court’s function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376–77 (8th Cir. 1996).  


The following facts are undisputed for purposes of this motion. All acts alleged in the amended complaint (Doc. 14) were committed within the scope and course of Dr. Kiehne’s employment as agent and owner of SVC. On January 3, 2018, Dr. Kiehne informed RVF that Mhp antibody tests had not been performed as provided by the parties’ contract. RVF filed suit on December 8, 2020. Counts I, II and III are based on defendants’ failure to perform the contracted testing. Count IV is premised on defendants’ implied duty to provide veterinary services in accordance with the learning, skill, care and diligence of a careful and trustworthy veterinarian. Count V alleges that defendants committed professional negligence and malpractice.  


This case presents a question that, surprisingly, has not been addressed by Iowa’s courts: What is the statute of limitations in Iowa for claims arising out of veterinary malpractice? The parties agree that the Iowa Code does not specify a statute of limitations for claims arising out of veterinary malpractice and no court has determined the period of limitation for such claims in Iowa. Defendants argue the most analogous statute of limitations is the two-year statute of limitations for medical malpractice claims under Iowa Code § 614.1(9). RVF argues its claims fall within the five-year statute of limitations for unwritten contracts, injuries to property and “all other actions” as provided in Iowa Code § 614.1(4). Section 614.1 reads as follows, in relevant part:

Actions may be brought within the times limited as follows, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

4. Unwritten contracts-injuries to property-fraud-other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years, except as provided by subsections 8 [wages] and 10 [secured interest in farm products].


9. Malpractice.

a. Except as provided in paragraph “b”, those founded on injuries to the person or wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse, licensed under chapter 147, or a hospital licensed under chapter 135B, arising out of patient care, within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of, the injury or death for which damages are sought in the action, whichever of the dates occurs first, but in no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a *939 foreign object unintentionally left in the body cause the injury or death.

b. An action subject to paragraph “a” and brought on behalf of a minor who was under the age of eight years when the act, omission, or occurrence alleged in the action occurred shall be commenced no later than the minor’s tenth birthday or as provided in paragraph “a”, whichever is later.

Iowa Code § 614.1. “When disagreement arises as to which of the several periods of limitation contained in Iowa Code section 614.1 is applicable, [the court] must determine ... which of the types of actions described in the statute most nearly characterizes the action before the court.” Kostoglanis v. Yates, 956 N.W.2d 157, 159 (Iowa 2021) (quoting Scott v. Sioux City, 432 N.W.2d 144, 147 (Iowa 1988)). I must consider the “actual nature of the action,” as the question “turns on the nature of the right sued upon and not on the elements of relief sought for the claim.” Id. (quoting Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994)).  

Defendants characterize RVF’s action as one of “professional negligence” or malpractice and argue that Iowa Code § 614.1(9) “most nearly characterizes” RVF’s claims. See Doc. 20-1 at 7-8. RVF argues that this is an issue of statutory interpretation and because Iowa Code § 614.1(9) applies only to “injuries to the person or wrongful death,” and contains an exhaustive list of healthcare professionals related to human care, the legislature purposefully excluded claims related to veterinary practice.  

“The goal of statutory construction is to determine legislative intent.” Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). Legislative intent is determined “from the words chosen by the legislature, not what it should or might have said.” Id. “[L]egislative intent is expressed by omission as well as by inclusion of statutory terms.” Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 812 (Iowa 2011) (citing State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001)). See also Meinders v. Dunkerton Comm. Sch. Dist., 645 N.W.2d 632, 637 (Iowa 2002) (noting the rule of “expression unius est exclusion alterious” – expression of one thing is the exclusion of another – recognizes that “legislative intent is expressed by omission as well as by inclusion, and the express mention of one thing implies the exclusion of others not so mentioned” (quoting Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995))). Another rule of statutory interpretation is that “[e]ach term is to be given effect.” Miller v. Marshall Cnty., 641 N.W.2d 742, 749 (Iowa 2002). In other words, a court should “not interpret statutes to render any part superfluous.” First State Bank v. Clark, 635 N.W.2d 29, 32 (Iowa 2001). Finally, a court may consider the legislative history to help determine legislative intent. See Doe v. Iowa Dept. of Human Servs., 786 N.W.2d 853, 858 (Iowa 2010) (“We also consider the legislative history of a statute, including prior enactments, when ascertaining legislative intent.”).  

Defendants argue that Iowa holds veterinarians and medical doctors to the same standards, noting they must obtain doctorate degrees to practice, are subject to the same rules regarding dispensing, supplying and prescribing drugs, see Iowa Code § 147.107, and are both identified as a “practitioner” under Iowa Code § 155A.3(38).1 Defendants also observe that “malpractice” is broadly defined in Iowa Code Chapter 272C.12 as “any error *940 or omission, unreasonable lack of skill, or failure to maintain a reasonable standard of care by a licensee in the course of practice of the licensee’s occupation or profession, pursuant to this chapter.” Further, defendants note that under Iowa Administrative Code § 811-1.4(17A,169) a patient is defined as “an animal or group of animals examined or treated by a licensed veterinarian.”  

In addition, defendants point out that some states within the Eighth Circuit apply the same statute of limitations to malpractice claims against medical doctors and veterinarians. Specifically, Arkansas includes veterinarians in its definition of “medical care provider” and its statute of limitations for malpractice actions against “medical care providers” is two years. See Doc. 20-1 at 11-12 (citing Ark. Code Ann. § 16-114-201). Minnesota has a specific statute of limitations for “all actions against veterinarians ... for malpractice, error, mistake, or failure to cure, whether based on contract or tort,” which is also two years. Id. at 12 (citing Minn. Stat. Ann. § 541.07(1)). Malpractice actions against medical doctors in Minnesota are also subject to a two-year statute of limitations. Id. Defendants state that Missouri, South Dakota and Nebraska have similar standards. For these reasons, defendants argue that veterinary malpractice is akin to medical malpractice such that Iowa’s two-year medical malpractice statute of limitations should apply to Count V, which is expressly based on veterinary malpractice.  

As for Counts I through IV, defendants argue these claims are also subject to the two-year statute of limitations because they merely recast a malpractice claim as claims for breach of contract. Doc. 20-1 at 14 (citing Kostoglanis, 956 N.W.2d at 159-60). In Kostoglanis, the same two subsections of § 614.1 were at issue regarding claims of negligent misrepresentation, fraudulent misrepresentation and breach of contract related to treatments plaintiff had received at a medical spa. Kostoglanis, 956 N.W.2d at 158. The district court granted summary judgment in favor of defendants, holding that all of the claims arose from patient care and were therefore barred by the two-year statute of limitations for malpractice actions. Id. The Iowa Supreme Court agreed, stating it “is widely accepted that a plaintiff cannot through artful pleading evade the statute of limitations governing medical malpractice actions.” Id. at 160. Similarly, defendants contend that the foundation of all of the RVF’s claims is professional negligence or malpractice, and that RVF should not be able to avoid a two-year statute of limitations for malpractice by casting its claims as breach of contract.  

Finally, defendants argue the public purpose of the statute of limitations would be undermined by allowing this action to proceed. They note that the medical malpractice statute of limitation “was designed primarily to protect the courts and defendants from the multitude of problems that can occur in dealing with stale claims.” Rathje v. Mercy Hosp., 745 N.W.2d 443, 448 (Iowa 2008). Defendants argue that allowing RVF to bring its claims approximately three years after the alleged malpractice, or after Dr. Kiehne disclosed the missed tests to RVF, will frustrate the purpose of the statute and open the door for veterinarians to be sued five or ten years after an alleged negligent act stemming from their work in a professional capacity. Defendants attempt to analogize this concern to the situation that prompted the medical malpractice statute of limitations.  

The Iowa Supreme Court determined in 1974 that there was no statute of limitations that specifically applied to claims of medical malpractice. See *941 Baines v. Blenderman, 223 N.W.2d 199 (Iowa 1974). In 1975, the Iowa legislature amended its statutory provisions to add a statute of limitation for medical malpractice. See 1975 Iowa Acts Ch. 239, § 26. See also Rathje, 745 N.W.2d at 455 (“In 1975, one year following Baines, the Iowa legislature enacted Iowa Code section 614.1(9)(a) as a specific exception to the general statute of limitations for malpractice actions against a specific group of medical personnel and medical facilities.”). The Iowa Supreme Court has recognized that the legislature acted due to a “critical situation” involving “the high cost and impending unavailability of medical malpractice insurance,” see Schlote v. Dawson, 676 N.W.2d 187, 191 (Iowa 2004), driven by the popularity of the discovery rule that had “picked up steam in the 1960s.” Rathje, 745 N.W.2d at 455. The Court concluded “legislative history clearly suggested that the legislature passed the provision [Iowa Code § 614.1(9)] in direct response to our Baines decision and to restrict the Baines discovery rule.” Schlote, 676 N.W.2d at 192. Defendants argue that the concerns that led to § 614.1(9) are equally applicable to veterinarians and that the purpose of the statute would be frustrated by allowing a longer statute of limitations for veterinary malpractice claims, which involve similar professional acts, with the only difference being the type of patient.  

RVF disputes that the two-year medical malpractice statute of limitations applies to any of its claims. It relies on various canons of statutory interpretation, noting that the omission of veterinarians from § 614.1(9) expresses the legislature’s intent. It points out that subsection (9) applies only to “[claims] founded on injuries to the person or wrongful death” while veterinary malpractice claims applies to injuries to animals (i.e., property). It also notes that every occupation listed in subsection (9) provides care to humans. With regard to the legislative history, it focuses on the discussion in Rathje, in which the Court emphasized that after Baines, the Iowa legislature “enacted Iowa Code section 614.1(9)(a) as a specific exception to the general statute of limitations for malpractice actions against a specific group of medical personnel and medical facilities.” Rathje, 745 N.W.2d at 455 (emphasis added). RVF notes that every case interpreting subsection (9) has done so in the medical malpractice context and that other professional negligence claims, such as those against lawyers or architects, are subject to the five-year limitations period set forth in § 614.1(4). See, e.g., Skadburg v. Gately, 911 N.W.2d 786, 791-92 (Iowa 2018) (because plaintiff did not claim a written contract existed between her and defendant, the five-year limitations period in Iowa Code § 614.1(4) applied to her legal negligence claim); Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., 789 F.3d 821, 824 (8th Cir. 2015) (five-year limitations period for actions on unwritten contracts or those brought for injuries to property applied to action alleging professional negligence against architectural firm).  

RVF also argues that when two statutes of limitations are involved, the court should apply the one allowing the longer time period. See Rock v. Warhank, 757 N.W.2d 670, 676 (Iowa 2008) (“Finally, we must adhere to the bedrock principle we use when interpreting statutes of limitations: ‘when two interpretations of a limitations statute are permissible, the one giving the longer period to a litigant seeking relief is to be preferred and applied.’ We rely on this principle because statutes of limitations are disfavored.”) (quoting Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 261 (Iowa 1980)); Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970) (“Courts do not favor the defense of the statute of limitations, and statutes of limitation should not be applied to cases which do not come within their provisions. Where two *942 statutes of limitation are involved, the one giving the longer period to a litigant seeking relief is to be preferred and applied.”).  

Finally, RVF argues that its contract claims are fundamentally different from its malpractice claim. It notes that Counts I, II and III are based on defendants’ failure to perform the contracted Mhp antibody tests and do not allege that defendants breached the standard of care required of a veterinarian by failing to provide the tests. Count IV is premised on an implied contractual duty to provide veterinary services in accordance with the learning, skill, care and diligence that a careful and trustworthy veterinarian would be expected to exercise. RVF argues it should be permitted to maintain claims for both breach of contract and professional negligence. See Mutual Serv. Cas. Ins. Co. v. Armbrecht, 142 F. Supp. 2d 1101 (N.D. Iowa 2001) (recognizing that an allegedly negligent veterinarian may also be sued on the basis of a breach of contract theory).  

I agree with RVF that there is no reason to believe the Iowa legislature intended to subject veterinary malpractice claims to the two-year limitation provided in § 614.1(9). The statute explicitly applies to claims founded on “injuries to the person or wrongful death.” Iowa Code § 614.1(9)(a) (emphasis added). The statute also lists those persons or entities subject to such claims – all of whom provide care to humans. Id. While the statute is entitled “malpractice,” the text of the statute makes clear that it does not apply to other types of malpractice beyond the medical treatment of humans. Thus, for example, Iowa courts have determined that § 614.1(4) applies to claims of legal malpractice, see Skadburg, 911 N.W.2d at 791-92, and professional negligence by an architectural firm, see Cedar Rapids Lodge & Suites, LLC, 789 F.3d at 824. Subsection (4) explicitly applies to unwritten contracts, injuries to property, fraud and “other actions,” stating “all other actions not otherwise provided for in this respect” must be brought within five years. Iowa Code § 614.1(4).  

Regardless of how defendants characterize RVF’s claims, none of them involve injuries to a person or wrongful death, as described in under subsection (9). Instead, they all fall within at least one of the subsection (4) categories as either claims founded on unwritten contracts, injuries to property3 or under the catch-all provision of “all other actions.” Thus, the plain language of the relevant subsections of § 614.1 defeats defendants’ arguments.4  

While the statutory language itself is dispositive, I note that the legislative history of Iowa Code § 614.1(9) is also informative. Subsection (9) was enacted in response to a “medical malpractice crisis” involving increasing premiums and potential unavailability of medical malpractice insurance due to application of the discovery rule that tended to lengthen the timing for filing claims. See Rathje, 745 N.W.2d at 454-55. As the Rathje Court explained:

The reform became particularly relevant to Iowa after Baines made the discovery rule specifically applicable to medical malpractice cases. Thus, the Baines case set the stage for Iowa’s adoption of the national tort reform proposal of a statute to place an outside limit on the applicability of the discovery rule in medical malpractice actions. *943

In 1975, one year following Baines, the Iowa legislature enacted Iowa Code section 614.1(9)(a) as a specific exception to the general statute of limitations for malpractice actions against a specific group of medical personnel and medical facilities.

Id. (emphasis added). There is simply no indication in the legislative history that the Iowa legislature had any intention of including veterinary malpractice claims when it addressed the medical malpractice crisis by enacting Iowa Code § 614.1(9).  

Perhaps defendants are correct that public policy would best be served by imposing a two-year statute of limitations on claims for veterinary malpractice. That is an issue for the Iowa legislature, not the courts, to decide. Under Iowa law as it currently exists, claims based on veterinary malpractice do not fall within the “specific exception” created in Iowa Code § 614.1(9). As such, those claims are subject to the five-year statute of limitations set forth in Iowa Code § 614.1(4).  

Based on this conclusion, it is not necessary to determine whether the claims set forth in Counts I through IV of the amended complaint are founded on allegations of professional malpractice. Regardless of how they are characterized, all of the claims in the amended complaint are subject to a statute of limitations that is no shorter than five years. Because this action was filed within five years of the alleged acts or omissions, all of RVF’s claims are timely.  


For the reasons stated herein, defendants’ motion (Doc. 20) for summary judgment is denied.  


All Citations

541 F.Supp.3d 935


1 Iowa Code Chapter 155A governs pharmacists.

2 Iowa Code Chapter 272C.1 relates to the regulation of licensed professions and occupations.

3 RVF notes that animals are considered property under Iowa law. See Iowa Code §§ 554.2105 (defining “goods” as “all things ... which are movable at the time of identification to the contract for sale” and includes the “unborn young of animals”); 554.9102(ah) (including livestock in the definition of “farm products”).

4 While defendants’ observations as to how veterinary malpractice claims are treated in other states are interesting, they are not relevant.

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