*1 Todd Nommensen, Plaintiff-Appellant,†
v. Company American Continental and Saint Insurance Center, Medical Inc., a Wisconsin corporation, Defendants-Respondents. of Appeals
Court
15,
No.
August
99-3018. Submitted on
2000. Decided
briefs
27, 2000.
September
Before Nettesheim and JJ. NETTESHEIM, J. This is a medical mal- practice against case commenced Todd Nommensen Mary's Saint Center, Medical insurer, Inc. and its (St. Company American Continental Insurance Mary's). negli- A determined that St. was gent negligence but such was not causal. ensuing judgment appeals dis- from the
Nommensen missing argues complaint. trial his He that the court testimony improperly certain and errone- admitted ously jury regarding proof. instructed the the verdict violated the five-sixths He also contends rulings uphold trial court's and rule. We all of the judgment. affirm the Proceedings
Facts and Trial Court hospitalized was at St. 2. While Nommensen Mary's following surgery, Kim chest nurse Dvorak pain Shepherd injection Toradol, administered an right thigh. medication, into Nommensen's Nommen- immediately pain. sen testified that he felt a He injection made in the front of contended that was injec- thigh, previous from all his a location different Following injection, tions. Nommensen refused all injections. Mary's Shepherd's and further records injection notes did not document the location of the nor any complaint drug from Nommensen at the time the days Shep- However, later, administered. three supervisor herd's left a note for Nommensen's doctor saying complained that Nommensen had of numbness burning right thigh. in his After sensation his hospital, release from the Nommensen continued to experience thigh. pain and numbness his Eventu- ally, diagnosed damage. he was nerve According expert testimony, injection proper shoulder, locations for an are the buttocks, the side of the buttocks and the side of the *4 thigh. Shepherd mid-third of the testified that she properly injection administered under these standards. Buggy Ellen testified on behalf of St. Nurse
Mary's properties about certain of Toradol and its propensities causing for discomfort or harm even when injected. properly objected Nommensen to this testi- mony, arguing represented superseding that it cause injury Mary's pled for his which St. had not as an disagreed per- affirmative defense. The trial court Buggy's testimony. mitted instructing jury
¶ 5. When on the burden of proof, the trial court used standard instruction WiS satisfy 200, JI—CrviL you states, which "This burden is to certainty greater weight to a reasonable 'yes' the credible evidence that should be the answer." added.) (Emphasis instructing, rejected In so the court request "probability" Nommensen's the word "certainty." should be substituted for the word jury ¶ 6. The determined that St.
negligent, jurors dissenting. However, two jury negligence further determined that such was not jurors dissenting.1 By causal, with two different sought verdict, motion after Nommensen claiming a mistrial ruling trial, and a new that the verdict did not satisfy the five-sixths rule set out in WiS. Stat. 805.09(2) (1997-98).2 § The trial court ruled that the verdict satisfied the five-sixths rule. upon jury
¶ 7. Based verdict, the trial court judgment dismissing entered a com- Nommensen's plaint. appeals, challenging Nommensen the three rulings we have discussed. $95,000. damages fixed Nommensen's at One of who dissented on the question regarding first
Mary's negligence damage also dissented on question. 2All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
Discussion Testimony Buggy's 1. Nurse Buggy's that testi- ¶ contends 8. Nommensen potential mony properties its of Toradol and about properly upon patient administered even when effect prod- was a defective a claim that Toradol akin to was "superseding argues cause" He that this was uct. required Mary's theory was of defense which St. pursuant plead to Wis. as an affirmative defense Stat. 802.02(3). [St. concludes, result, § "As a Nommensen Mary's] awith to a silent shifted blame defendant into the in the who was added chair courtroom silent statute of limitation ran." case after the begin reject argument. We 9. We Nommensen's Mary's dispute by noting that Nom- that St. did not theory injury. of Rather, its had an mensen suffered Shepherd properly had administered was that defense injury. injection and had not caused Nommensen's Mary's that it had end, St. answer denied To that testimony injury. Buggy's was consistent caused explaining could cause defense, that Toradol injury properly How- administered. even when such an Mary's making defense, St. did not this ever, liability products law, Toradol contend, akin to unreasonably dangerous or oth- defective, unsafe, purpose See WlS for the intended. erwise unfit theory not short, In of defense was JI —Civil 3200. superseding cause. an law invocation attorneys' opening Furthermore, Mary's jury closing that St. confirm statements theory as drawn its of defense did not deviate from anticipated pleadings. himself fact, In Nommensen repre- the kind of defense that St. would offer testimony. opening by Buggy's statement, In his sented "[W]e stated, Nommensen's counsel know that the hos- pital respond [Shepherd] gave . will that. . the shot right place, it result; but was an untoward it was a Agreeing, Mary's bad result." counsel told the *6 opening in his statement:
This ais case of an unfortunate recognized but com- plication appropriately given of an in injection Mr. thigh. you Nommensen's Now will hear that there is dispute no that Mr. Nommensen has what's called paresthesias or an area of in sensory right loss his thigh. What is in dispute is how that nerve came to impaired. expect you be We to show that such a can complication and does occur despite appropri- being given ate care by the nurses involved. Echoing very words, 11. these the first state- by Mary's argument
ment St. counsel in his final to the recog- was, "This is a case of an unfortunate but complication injection nized of an intramuscular which appropriately given." only Moreover, counsel's ref- Buggy's testimony argument erence to in his final did testimony not even deal with the that Nommensen challenges appeal. Buggy's on Rather, counsel cited to testimony unrelated about the standard of care rela- injections. tive to administration of summary, In the issue in this case was Shepherd injection where had made the Toradol in thigh. questions posed by Nommensen's One ofthe issue was how Nommensen could have sustained his injury Mary's injection in the face of St. claim that the properly Mary's had been administered. St. answer properties was that Toradol itself carries which can injury, properly occasion an even if administered —a anticipated defense that Nommensen himself his jury. opening And this was a defense statement Thus, of causation. denial consistent beyond testimony Buggy's as the issues did not move by by pleadings framed and as farther drawn prop- proceedings. pretrial court that the trial We hold testimony. Buggy's erly allowed Instruction Burden of Proof 2. jury pursuant The trial court instructed part, states, in relevant JI —Civil 200 which
to Wis
certainty
satisfy you to a reasonable
"This
is to
'yes'
greater weight
of the credible evidence
objected
Nommensen
should be the answer."
contending
should substi
that the court
instruction,
"certainty."
support,
"probability"
In
for
tute the word
published
to an article
looks
Nommensen
publication
Verdict,
Academy
of Trial Law
the Wisconsin
*7
"certainty"
concluding
study
yers,
that
which cites a
juror's
higher expectation
produces
in a
mind than
"probability."
Gesler, The Burden
See Alan E.
of Proof:
(Winter
14
12
Reasonable,
How Certain is
Verdict
1991).
Wisconsin
also cites to dated
14. Nommensen
"certainty"
questioned stan-
has
case law which
Ry.
e.g.,
Chicago,
P.,
O.
See,
St. M. &
dard.
Pelitier v.
(1894). However, none of
521,
Co., 88
Suggestions have also been made to the Com- judges mittee and to trial during instruction ("to certainty conferences that the element a rea- certainty") sonable should be replaced with the term probability." Apparently, sug- "reasonable gestion is prompted by the fact that most expert witnesses, cases, at least in malpractice medical are give opinions asked to "to a probability." reasonable Nonetheless, the Committee has concluded "that the certainty' firmly term 'reasonable has been established accurately degree case our law and reflects the answering ques- certitude must reach in verdict tions." Id. appeals principally
¶ 16. The court of
is
an error-
correcting
Benson,
1,
court. See Jackson v.
213 Wis. 2d
(Ct.
1997),
App.
18,
137 instructing as to J — Civil 200 when use ofWis proof. of the burden Rule
3. Five-Sixths ¶ that because the two contends 17. Nommensen finding negligence jurors dissented from who Mary's against who not the same two were finding causation, the verdict of no dissented from satisfy in rule set out WlS. did not the five-sixths Stat. 805.09(2). § states: The statute to five-sixths of the agreed A verdict VERDICT. If than jury. of the more jurors shall be the verdict to arrive at a verdict must be answered question one claim, same five-sixths of the on the same agree questions. must on all supreme letter court set out the black 18. The Montgomery principles v. rule Giese five-sixths (1983). Ward, 392, Inc., Wis. 2d 331 N.W.2d require ten that the same rule does not five-sixths every agree question. at 401. on See id. must requires ten must Rather, the rule that the same judgment questions necessary support agree on all particular Thus, See id. when we conduct on a claim. analysis, the verdict on a claim- five-sixths we review Finally, by-claim as a See id. basis rather than whole. may important to one claim be dissents which are See immaterial to another. id. argument fails because he 19. Nommensen's premise his as the for the whole verdict
seeks use jury's finding challenge when, fact, the five-sixths standing Here, alone, resolves the issue. causation, no negli- if that even it was one of St. defenses was *9 negligence gent, such did not cause Nommensen's jurors agreed injury. noted, As ten of the twelve with fully Mary's this assertion. This answer resolved St. fully extinguished claim of no causation its favor and right jury's Giese, Nommensen's to recover. Under the finding Mary's negligent other answer that St. was was "necessary support judgment" on not any negligence part claim did cause on its not injury. Nommensen's
¶20. The case law also establishes that
these
principles apply
same
whether we assess a verdict in
plaintiff
Augustin
In
favor of the
or the defendant.
v.
Railway Transport Co.,
Milwaukee Electric
&
259 Wis.
(1951),
jury
625,
waukee & St. Paul 191 Wis. N.W. (1926), jury, dissenter, where the with one deter negligent not also mined that the defendant was but plaintiff determined, dissenters, that the two contributorily negligent. See id. at 249-50. The supreme grant court reversed a of a new trial on grounds agreed upon had that the not verdict. See id. The court held that the answer as to the absence negligence part "requires of the defendant on judgment complete it is a ver for defendant because dict, in that finds a of the essential element for it want namely, negligence plaintiff or a to maintain . . . duty." Id. at 255.
breach apart law, from this case Nommen- 22. Even must look to the entire verdict sen's contention that we *10 jury up. in this case had unani- not If the does bear negligent, mously agreed ten that St. was but negligence jurors causal, not still found that such was argue that the could not verdict Nommensen jurors the same ten would have defective because agreed questions. here, Yet where on all the Nommen- persuade to two of the on the sen has failed negligence question, argues he that the verdict is sub- challenge. ject Thus, seeks to a Nommensen five-sixths persuade the on the to use his failure to two negligence against question as a sword verdict permitted do if he had when he would not be prevailed to so negligence all on the with question. ruling uphold
¶ 23. We the trial court's that the satisfied the five-sixths rule. verdict
Conclusion properly hold that the court admit- We trial testimony correctly Buggy ted the of and instructed the proof as to the burden of under Wis JI — Civil 200. We also hold that the verdict satisfied the five-sixths rule.
By Judgment affirmed. Court.— (concurring). BROWN, 25. P.J. agree opinion case, I and as it lead particularly concurrence, relates to this Part 2.1 write separately because I am convinced that it is time for phrase supreme court to reevaluate the use of the certainty" as it exists in our standard "reasonable jury relating proof to the burden of instruction ordinary negligence, for Wis JI — Civil Wisconsin by plaintiff prove negligence requires that the law Czemierys, preponderance v. of the evidence. See Mock (Ct. 1983). App. I 207, 211, 336 113 Wis. 2d N.W.2d certainty" using am satisfied that the term "reasonable high too of a risk that in the instruction creates higher plaintiff proof hold a to a of than will burden intended. states, 26. Wisconsin relevant JI — Civil
part, as follows: question other than on proof, -(e.g., comparison negligence) the dam- verdict, age upon party in the rests questions contending question the answer to a should be you satisfy This burden is to a reasonable "yes." certainty *11 greater weight the of the credible evi- "yes" dence the answer. should be By meant greater weight the evidence is of weighed against evidence which when evidence convincing power. to it has more opposed Credible worthy your is of evidence is evidence which ... added.) belief. (Emphasis certainty" The term is not "reasonable jurors. their
defined for Jurors must therefore draw However, the term means. own conclusions about what to ascertain while are left to their own devices meaning may purposes term, assume, for of we mean law, will draw the same of Wisconsin recognized ing or term is defined a of word which dictionary. Jovoco, 273, Inc., v. 173 Wis. 2d Erdman Cf. (Ct. 1992) (stating App. that rea 279, 496 183 N.W.2d dictionary might persons to define look to a sonable words). Dictionary English of The Random House "certainty" defines the as: word Unabridged,
Language, being something certain; certain. 2. an "1. the state of certainly; certainty, for of a assured fact. 3. or with- suspect it, out a I but I don't know it doubt: for certainty." The Dictionary House of Random (2d 1987). English Unabridged ed. Language, rely assumptions ¶ 28. But we do not have to on conjecture ordinary to come to the conclusion that persons "certainty" being think of as "free of doubt." We linguistic empirical testing supporting study it. A have published England in the Journal of Medicine was indicating New "certainty" produces
that the use ofthe word expectation probability hearer an of or 94% Augustine Kong, al., more. See et How Medical Profes- Probability, Expressions Eng. sionals Evaluate New (1986). study quantify 740, qualitative J. Med. set out to expressions. Thus, certain See id. at 740. study qualitative expressions, while the was of experiment quantitative. subjects See id. The were physicians persons studying either or those who were subjects using medical and who were interactive com- puter programs. subjects See id. at 741. The asked were probability expressions: "certain," to focus on twelve "very likely," "probable," "likely," certain," "almost "fre- quent," "possible," "unlikely," reasonable," "not "improbable," "almost never" and "never." See id. The subject's probability being belief in the of a fact true along depending a scale of on the moved 0% 100% Sampling terms used. See id. error was taken into statistically account and enumerated and accounted for. See id. at 742. *12 pertinent part, outcome, 29. The was as fol- probability rating
lows: The word "certain" had a of id. 99%. See at 743. When the adverb "almost" was adjective "certain," added to the the median moved points The data thus from unescapable to 94%. See id. 99% per- words matter and a conclusion that something "certainty" being find to a son asked to something being asked to find to a thinks of the task as degree higher. empirical probability This or 99% study recognized published in one of the most ave- peer nues in the United States. There is for review strong Hence, of editorial tradition overview. reliability study's empirical is enhanced. study it is true that the did not mea- While certainty," term "reasonable I am satisfied
sure the plac- that it makes no difference. I do not believe that adjective ing the "reasonable" adverb before "certainty" downgrade qualify the hearer to or allows quality The the near of the word "certain." absolute defined word "reasonable" is THE RANDOM HOUSE DIC- judgment; "agreeable as to reason or sound TIONARY logical." at 1608. See Dictionary House Random "logi- is That are asked to determine a fact being cally not same as asked to certain" is being downgrade probability Rather, of a fact true. being simply that the decision are reminded certainty rationally made. I must one that is about be "certainty" and the term am convinced that the term certainty" ask the the same "reasonable question. of "reasonable 31. Those who defend use likely
certainty" instruction most have in the standard They disagreement empirical data. would no certainty" agree probably means a that "reasonable they probability also least or more. But would of at 94% plaintiff injustice likely s to a contend that it does no preponderance prove of the the case to probably argue that These defenders would evidence. plaintiff to a burden are not told to hold *13 convincing that them with evidence is 94% certain or only being Rather, more. the are asked to atbe "story", least 94% certain about side's has which the weight. greater point
¶ 32. The defenders no doubt would out preponderance there is a difference between They probably proof. evidence and burden of would Buchheit, 385, then cite Eichman v. Wis. (1906), following proposition: for the
Preponderance proof evidence and burden of thing, although they are not the same run into each By preponderance other. of evidence is meant the possesses greater weight evidence which or convinc- ing by power; proof duty burden of is meant the resting on the the party having affirmative of the satisfy issue to or convince the jury, by minds of the evidence, the preponderance of the of the truth of his contention. likely point
¶ 33. The defenders would most to language the of the instruction as evidence that deciding are told about difference between proof preponderance burden of of the evidence. For they likely argue instance, would that the instruction say preponderance not does of the evidence is equated certainty." Instead, with "reasonable "satisfy you are informed that the is certainty by greater weight a reasonable of the yes credible evidence that should be the answer." Wis goes say JI — Civil 200. The that, instruction on to greater weight evidence, of the is meant evidence "weighed against opposed which when evidence to it convincing power." has more Id. The defenders would prepon- thus conclude that the are informed how greater derance of the is the evidence same as the weight of the evidence. say that "reason- would then 34. The defenders necessary component certainty" of the is a
able
the burden to
that term addresses
instruction because
jurors.
satisfy
tells the
to be
The instruction
plaintiff
reasonably
has met
certain about whether
*14
duty
convince the
of
his or her affirmative
weight
These defenders would
evidence. See id.
of the
right
supreme
got
likely say
court
it
back
that the
most
rhetorically
asked: "When
court
in 1894 when the
fact,
existence of a
or convinced of the
mind is satisfied
reasonably
Pelitier v.
of the fact?"
the mind
certain
is
Chicago,
Minneapolis
Co.,
Paul,
Railroad
& Omaha
(1894).
521, 529,
¶ thus conclude 35. The defenders would accurately jurors two different com- informed about are proof preponderance ponents of and of the law: burden words, would In the defenders other of evidence. being say do is to be asked to all the are that (the proving) that in own minds certain their weight greater than the other side's evidence has one evidence). (the preponderance of the side's Jury Instructions ¶ The Wisconsin Civil 36. among appeared the defend to be of 1996 Committee requested delete the Committee it was ers. When certainty," consid the Committee the term "reasonable request Comment, so. See and declined to do ered the Regents, 200, 1996, Univ. of Wisconsin. Wis JI — Civil opined follows: "The Committee as The Committee certainty' has been 'reasonable that the term believes accurately firmly in our case law established degree in must reach certitude reflects questions." answering Id. verdict agree statement I with the 37. do not "firmly And case law. while our is established" term accurately may language state instruction in the might how those well versed in the understand the law appropriate meaning of the term "reasonable cer- tainty," miserably attempt the instruction fails its explain to the to use the term how "reasonable certainty." result, As a I am convinced that the lan- guage in the instruction runs a real risk of the applying certainty" quality the term "reasonable applying of the evidence rather than the term to their convincing. state of mind about is the which side more Gesler, See Alan E. The Burden How Certain of Proof: (Winter 1991). Reasonable, is WATL VERDICT respond First, I will to the Wisconsin Civil Jury Instructions Committee's assertion that the term certainty" "firmly "reasonable has been established" in our case I law. am not so In 1894, convinced. supreme court wrote:
The expression certainty" "reasonable is not strictly accurate as a weight definition of the of evidence *15 required, may and mean no more than that quan- tum of evidence which satisfies or convinces the mind of a person reasonable of the a partic- truth of however, ular claim Possibly, or contention. it may more, mean and so be misleading. We think it bet- ter, cases, in such stop to stating usual rule party that having proof the burden of must by establish his case a preponderance great- or the weight est of evidence. (1894). Murray, 41,
Allen v. 87 46, Wis. 57 979 N.W. And in Pelitier, the court was also less than enthusias- tic about the trial court's use of the term "reasonable certainty" describing plaintiffs when burden of proof. Although the court affirmed the trial court's use reading term, of the even a casual of the decision shows misgiving. that it was done with some Pelitier, See 88 atWis. 528. Minneapolis,
¶ Fast to Sullivan v. 39. forward Railway Co., 518, Marie 167 Wis. Paul & Sault Sainte (1918). rejected the There, the court 167 N.W. negligence argument jury case that a instruction certainty" phrase "reasonable must contain proof. See id. at 527. The court describe the burden of "surplusage" nothing." "adds See called the term which id. unequivocal of the 40. The first endorsement Chicago & Electric
term was Kausch v.
Milwaukee
(1922).
Railway
21,
Co.,
26,
176 Wis.
It is so to have no better reason for a rule of law than that it was laid down in the time of if the Henry revolting grounds IV. It is still more upon long which it was laid down have vanished since, from imita- simply persists and rule blind tion of the past. Law, Holmes, The Path 10 Harv. L. Oliver Wendell (1897). 457, 469
Rev. my "firmly ¶ 43. It is view that is not law established" and that continued use of term "rea- certainty" part, upon based, is in sonable blind allegiance inspection, what, to on closer reveals past. agree checkered I with Alan Gesler's conclusion proof language that the burden of was created acci- analysis. supra, Gesler, dent rather than See at 13. Jury I will discuss the now Wisconsin Civil Instructions Committee's statement that the instruc- accurately degree jurors tion reflects of certitude answering questions. must reach in First, verdict go enough. statement does not far An instruction is not good simply accurately one it because states the law. jurors It must also drafted be in such a manner that language understand contained within it. problem immediate with the is instruction that it attempt explain makes no how there are separate pieces being presented two of information (1) them: that the must be convinced their (2) they mind; own must be convinced one probably side's evidence is more true than the other nothing says side's. is in the There instruction that weighing process means the are asked to deter- plaintiffs mine whether the evidence is more than likely fact, truer than the defendant's. is, There no explanation "weigh of how to the evidence." This void very creates the real risk that the will use the *17 certainty" language by "reasonable as the method easily weighed. the two sides are can which say plain- the to that the understand instruction unless certainty" may tiffs is true to a it evidence "reasonable weighty enough plaintiff not be considered prevail. for the to paraphrase I will the instruction based dictionary upon empirical the definitions and data I I have set forth above. am convinced that reasonable say could the understand instruction to as fol- weighed against lows: "Plaintiffs evidence is the job deciding defendant's and the whose evidence has weight yours. you may more plaintiffs is But before find that the weight, you has
evidence more must first be plaintiff provided you satisfied that the has with evi- absolutely nearly absolutely dence that is true or true." say I would be the first to not all that would glean meaning argue from I the instruction. But job only that some would. The accurately of an instruction is to not explain state the law the but what law persons usually possess means to who do not law degrees. duty Here, the fails in its to teach. instruction conveys suggest I an instruction that plain message job their is. I about what say: would plaintiff is to determine the has job
Your
whether
weight
evidence
has
than
greater
submitted
which
satisfy
defendant's.
It is the
plaintiffs
the
its)
mind,
(his,
you,
your
own
that
her or
evidence
you
is
the defendant's. The
convincing
more
than
you
does not have to
that
the evi-
plaintiff
convince
In
absolutely
dence is
true or even almost
true.
words,
not
the
plaintiff
other
need
exclude
contrary
may
conclusion
be
probability
Rather,
you
has to
plaintiff
true.
convince
its)
(his,
outweighs the other as to
her or
evidence
you
If
are satisfied that
the evi-
probabilities.
likely
is more
true
plaintiff
dence submitted
If,
true,
find
you may
plaintiff.
than not
for
however, you
plaintiffs
are convinced that
evi-
true,
find
likely
you may
more
not
than
dence is
its)
*18
(his,
met
her or
plaintiff
that the
has not
you.
convincing
proposed
I
instruction com-
believe that
jury
ports
It
that it is the
with Wisconsin law.
tells
duty.
plaintiff
Eichman,
has an
See
who
affirmative
jurors
evidence analysis, In the final this concurrence is a change paradigm call to about how we write our instructions. con- Much has been written about data firming legalisms. are often lost in a sea of doing, twenty-first as What we should be we enter century, is to teach what the law means better they apply and how should it. We should not be content giving an "accurate statement of the law." jury various instructions committees Wisconsin job regard exemplary have done an in this for the most part. However, the standard instruction on burden of proof poster child for stands as those instructions juror friendly. that, that need to more may I fear be while we never for sure whether a made its deci- know upon understanding sion based an inaccurate of its responsibility, the risk that this has occurred is real. change wording should of the instruction to We really acting insure that are in accordance with given to them. law