Nommensen v. AMERICAN CONTINENTAL INS.

• Decision Date: 27 September 2000
• Docket Number: No. 99-3018.,99-3018.
• Citation: 239 Wis.2d 129,619 N.W.2d 137,2000 WI App 230
• Parties: Todd NOMMENSEN, Plaintiff-Appellant, v. AMERICAN CONTINENTAL INSURANCE COMPANY and Saint Mary's Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

239 Wis.2d 129

2000 WI App 230

619 N.W.2d 137

Todd NOMMENSEN, Plaintiff-Appellant,¹ v. AMERICAN CONTINENTAL INSURANCE COMPANY and Saint Mary's Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents.

No. 99-3018.

Court of Appeals of Wisconsin.

Submitted on briefs August 15, 2000.

Decided September 27, 2000.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John Barry Stuff of Stewart, Peyton, Crawford, Crawford & Stuff of Racine.

On behalf of the defendant-respondent, the cause was submitted on the brief of John A. Nelson and Timothy W. Feeley of von Briesen, Purtell & Roper, S.C. of Milwaukee.

Before Brown, P.J., Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.

This is a medical malpractice case commenced by Todd Nommensen against Saint Mary's Medical Center, Inc. and its insurer, American Continental Insurance Company (St. Mary's). A jury determined that St. Mary's was negligent but that such negligence was not causal. Nommensen appeals from the ensuing judgment dismissing his complaint. He argues that the trial court improperly admitted certain testimony and erroneously instructed the jury regarding the burden of proof. He also contends the verdict violated the five-sixths rule. We uphold all of the trial court's rulings and affirm the judgment.

Facts and Trial Court Proceedings

¶ 2. While Nommensen was hospitalized at St. Mary's following chest surgery, nurse Kim Dvorak Shepherd administered an injection of Toradol, a pain medication, into Nommensen's right thigh. Nommensen testified that he immediately felt a pain. He contended that the injection was made in the front of his thigh, a location different from all previous injections. Following the injection, Nommensen refused all further injections. St. Mary's records and Shepherd's notes did not document the location of the injection nor any complaint from Nommensen at the time the drug was administered. However, three days later, Shepherd's supervisor left a note for Nommensen's doctor saying that Nommensen had complained of numbness and a burning sensation in his right thigh. After his release from the hospital, Nommensen continued toM experience pain and numbness in his thigh. Eventually, he was diagnosed with nerve damage.

¶ 3. According to the expert testimony, the proper locations for an injection are the shoulder, the buttocks, the side of the buttocks and the side of the mid-third of the thigh. Shepherd testified that she properly administered the injection under these standards.

¶ 4. Nurse Ellen Buggy testified on behalf of St. Mary's about certain properties of Toradol and its propensities for causing discomfort or harm even when properly injected. Nommensen objected to this testimony, arguing that it represented a superseding cause for his injury which St. Mary's had not pled as an affirmative defense. The trial court disagreed and permitted Buggy's testimony.

¶ 5. When instructing the jury on the burden of proof, the trial court used standard instruction WIS JI—CIVIL 200, which states, "This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that `yes' should be the answer." (Emphasis added.) In so instructing, the court rejected Nommensen's request that the word "probability" should be substituted for the word "certainty."

¶ 6. The jury determined that St. Mary's was negligent, with two jurors dissenting. However, the jury further determined that such negligence was not causal, with two different jurors dissenting.² By a motion after verdict, Nommensen sought a mistrial ruling and a new trial, claiming that the verdict did not satisfy the five-sixths rule set out in WIS. STAT. § 805.09(2) (1997-98).³ The trial court ruled that the verdict satisfied the five-sixths rule.

¶ 7. Based upon the jury verdict, the trial court entered a judgment dismissing Nommensen's complaint. Nommensen appeals, challenging the three rulings we have discussed.

Discussion

1. Nurse Buggy's Testimony

¶ 8. Nommensen contends that Buggy's testimony about the properties of Toradol and its potential effect upon a patient even when properly administered was akin to a claim that Toradol was a defective product. He argues that this was a "superseding cause" theory of defense which St. Mary's was required to plead as an affirmative defense pursuant to WIS. STAT. § 802.02(3). Nommensen concludes, "As a result, [St. Mary's] shifted blame to a silent defendant with a silent chair in the courtroom who was added into the case after the statute of limitation ran."

¶ 9. We reject Nommensen's argument. We begin by noting that St. Mary's did not dispute that Nommensen had suffered an injury. Rather, its theory of defense was that Shepherd had properly administered the injection and had not caused Nommensen's injury. To that end, St. Mary's answer denied that it had caused the injury. Buggy's testimony was consistent with that defense, explaining that Toradol could cause such an injury even when properly administered. However, in making this defense, St. Mary's did not contend, akin to products liability law, that Toradol was defective, unsafe, unreasonably dangerous or otherwise unfit for the purpose intended. See WIS JI—CIVIL 3200. In short, this theory of defense was not an invocation of the law of superseding cause.

¶ 10. Furthermore, the attorneys' opening and closing statements to the jury confirm that St. Mary's did not deviate from its theory of defense as drawn by the pleadings. In fact, Nommensen himself anticipated that St. Mary's would offer the kind of defense represented by Buggy's testimony. In his opening statement, Nommensen's counsel stated, "[W]e know that the hospital will respond that . . . [Shepherd] gave the shot in the right place, but it was an untoward result; it was a bad result." Agreeing, St. Mary's counsel told the jury in his opening statement:

This is a case of an unfortunate but recognized complication of an appropriately given injection in Mr. Nommensen's thigh. Now you will hear that there is no dispute that Mr. Nommensen has what's called paresthesias or an area of sensory loss in his right thigh. What is in dispute is how that nerve came to be impaired. We expect to show you that such a complication can and does occur despite appropriate care being given by the nurses involved.

¶ 11. Echoing these very words, the first statement by St.Mary's counsel in his final argument to the jury was, "This is a case of an unfortunate but recognized complication of an intramuscular injection which was appropriately given." Moreover, counsel's only reference to Buggy's testimony in his final argument did not even deal with the testimony that Nommensen challenges on appeal. Rather, counsel cited to Buggy's unrelated testimony about the standard of care relative to the administration of injections.

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¶ 12. In summary, the issue in this case was where Shepherd had made the Toradol injection in Nommensen's thigh. One of the questions posed by that issue was how Nommensen could have sustained his injury in the face of St. Mary's claim that the injection had been properly administered. St. Mary's answer was that Toradol itself carries properties which can occasion an injury, even if properly administered—a defense that Nommensen himself anticipated in his opening statement to the jury. And this was a defense consistent with St. Mary's denial of causation. Thus, Buggy's testimony did not move beyond the issues as drawn by the pleadings and as further framed by the pretrial proceedings. We hold that the trial court properly allowed Buggy's testimony.

2. Burden of Proof Instruction

¶ 13. The trial court instructed the jury pursuant to WIS JI—CIVIL 200 which states, in relevant part, "This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that `yes' should be the answer." Nommensen objected to this instruction, contending that the court should substitute the word "probability" for "certainty." In support, Nommensen looks to an article published in VERDICT, a publication of the Wisconsin Academy of Trial Lawyers, which cites a study concluding that "certainty" produces a higher expectation in a juror's mind than "probability." See Alan E. Gesler, The Burden of Proof: How Certain is Reasonable, 14 VERDICT 12 (Winter 1991).

¶ 14. Nommensen also cites to dated Wisconsin case law which has questioned the "certainty" standard. See, e.g., Pelitier v. Chicago, St. P., M. & O. Ry. Co., 88 Wis. 521, 60 N.W. 250 (1894). However, none of these cases have condemned the use of the term or deemed it error. Finally, Nommensen concedes that WIS JI—CIVIL 200 correctly sets out current Wisconsin law on the subject. In Victorson v. Milwaukee & Suburban Transport Corp., 70 Wis. 2d 336, 234 N.W.2d 332 (1975), the trial court had instructed the jury under the "probability" standard. See id. at 356. Holding that the instruction was error, albeit harmless, the court noted that the "certainty" standard is the proper level for satisfying the preponderance of the evidence test. See id. at 357. And the court cautioned that the use of the word "probability" was "not to be encouraged." Id.

¶ 15. Whether the "certainty" standard is a correct statement of the burden of proof is oftentimes produced by those cases where expert testimony is couched in terms of "reasonable probability." See, e.g., Brantner v. Jenson, 121 Wis. 2d 658, 663-68, 360 N.W.2d 529 (1985). The Wisconsin Civil Jury Instructions Committee has recognized the potential tension between the two concepts in its Comment to WIS JI—CIVIL 200:

Suggestions have also been made to the Committee and to trial judges during instruction conferences that the certainty element ("to a reasonable certainty") should be replaced with the term "reasonable probability." Apparently, this suggestion is prompted by the fact that most expert witnesses, at least in medical malpractice cases, are

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