Nommensen v. AMERICAN CONTINENTAL INS.

• Decision Date: 12 July 2001
• Docket Number: No. 99-3018.,99-3018.
• Citation: 629 N.W.2d 301,2001 WI 112,246 Wis. 2d 132
• Parties: Todd NOMMENSEN, Plaintiff-Appellant-Petitioner, v. AMERICAN CONTINENTAL INSURANCE COMPANY and Saint Mary's Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

246 Wis.2d 132

2001 WI 112

629 N.W.2d 301

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

No. 99-3018.

Supreme Court of Wisconsin.

Oral argument April 30, 2001.

Decided July 12, 2001.

For the plaintiff-appellant-petitioner there was a brief by John Barry Stutt and Stewart, Peyton, Crawford, Crawford & Stutt, Racine, and oral argument by John Barry Stutt.

For the defendants-respondents there was a brief by John A. Nelson, Timothy W. Feeley and von Briesen, Purtell & Roper, S.C., Milwaukee, and oral argument by John A. Nelson.

¶ 1.DAVID T. PROSSER, J.

This is a review of a published decision of the court of appeals, Nommensen v. American Continental Insurance Co.,2000 WI App 230, 239 Wis. 2d 129, 619 N.W.2d 137, which affirmed a judgment by the circuit court for Racine County, Richard J. Kreul, Judge.The case involves an alleged error in the jury instructions in a medical negligence trial.The sole issue is whether the circuit court erred in failing to grant the plaintiff's request to modify the standard jury instruction on the ordinary burden of proof in a civil case by substituting the word "probability" for the word "certainty."

¶ 2.The court of appeals affirmed the circuit court's decision to give the standard instruction.Wisconsin JI—Civil 200 (civil jury instruction 200 or instruction 200) states the quantum of evidence required in an ordinary civil case—that is, "the greater weight of the credible evidence."It also provides a standard for the degree of certitude required of the fact finder—that is, "reasonable certainty."These two elements are combined in the second sentence of the instruction, which we place in context:

The burden of proof...rests upon the party contending that the answer to a question should be "yes."This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.

Wis JI—Civil 200 (emphasis added).

¶ 3.The plaintiff-petitioner contends that this instruction is ambiguous or confusing and constitutes an erroneous statement of the burden of proof.He argues that the problem would be solved by replacing the word "certainty" in the instruction with the word "probability."

¶ 4.In making this argument, the petitioner raises important and disquieting questions that have been debated in this court for more than a century.We take these questions seriously.Yet, we are not convinced that the present jury instruction on the ordinary burden of proof is erroneous as a matter of law, that the petitioner's formulation of a new instruction would resolve the suggested dilemma, or that the petitioner has made the case for a new trial.We are especially convinced that this court should not assume the responsibility of writing a new jury instruction on the burden of proof.Accordingly, we affirm the decision of the court of appeals.

¶ 5.As we reach this conclusion, we respectfully urge the Wisconsin Civil Jury Instructions Committee to revisit Wis JI—Civil 200 to explore whether the instruction can be improved without abandoning precedent on the two-element approach to the ordinary burden of proof.

¶ 6.The petitioner fails to persuade us to grant the specific relief he requested—a new trial on the issue of liability.However, the issue of whether instruction 200 is a satisfactory instruction is well developed in the parties' briefs and is of such statewide import that it requires our attention.We are mindful that we must maintain a wide-angle view of the instruction and its role in assisting juries to reach the proper answers to verdict questions.

FACTS & PROCEDURAL HISTORY

¶ 7.Todd Nommensen was a patient for chest surgery at St. Mary's Medical Center in Racine.He claims that during his recovery, he suffered nerve damage when he received an injection of the pain medication Toradol in the front of his right thigh.He contends that the front of the thigh is an improper body location to administer an injection because there is a nerve that runs across the leg that can be struck by a needle.He alleges that the pain and numbness resulting from the nerve damage is particularly troublesome to him because he is blind and the injury interferes with his non-sight sensory perceptions.

¶ 8.When Nommensen filed proposed jury instructions with the circuit court, he asked the court to replace the word "certainty" with the word "probability" in civil jury instruction 200 on the ordinary burden of proof.The circuit court declined to do so.

¶ 9.Thus, the circuit court charged the jury with instruction 200 without modification.This instruction read as follows:

The burden of proof, other than on question ____ (e.g., comparison of negligence) and the damage questions in the verdict, rests upon the party contending that the answer to a question should be "yes."This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.

By the greater weight of the evidence is meant evidence which when weighed against evidence opposed to it has more convincing power.Credible evidence is evidence which in the light of reason and common sense is worthy of your belief.

If you have to guess what the answer should be after discussing all evidence which relates to a particular question, then the party having the burden of proof as to that question has not met the required burden.

Wis JI—Civil 200 (emphasis added).¹

¶ 10.The jury was then asked to answer three questions in a special verdict.The jury answered "yes" to the question whether St. Mary's was negligent through its employees.The jury answered "no" to the question whether St. Mary's negligence caused injury to Nommensen.Finally, the jury wrote that $95,000 would "fairly and adequately compensate" Nommensen "for past and future pain, suffering and disability."

¶ 11.On appeal, Nommensen raised three issues.All were rejected by the court of appeals.¶ 12.First, the court of appeals ruled that the circuit court properly admitted testimony from nurse Ellen Buggy on behalf of St. Mary's about certain properties of Toradol and its propensities for causing discomfort or harm even when properly injected.Nommensen had argued that this testimony spoke to a superseding cause for his injury which St. Mary's had not pled as an affirmative defense.Second, the court ruled that the circuit court properly instructed the jury when it used Wis JI—Civil 200 without modification.Third, the court ruled that the five-sixths verdict requirement had been met, despite dissents by various jurors on all three verdict questions.

¶ 13.Only the second issue is before this court.The court of appeals indicated that it was bound by precedent on the validity of the burden of proof jury instruction.Nommensen,239 Wis. 2d 129, ¶ 16.However, Presiding Judge Richard S. Brown wrote a lengthy concurring opinion suggesting that this court reevaluate the use of the phrase "reasonable certainty" within Wis JI—Civil 200.Id.at ¶¶ 25-48(Brown, P.J., concurring).Judge Brown's concurrence weighed the pros and cons of the current instruction and found it wanting.His exegesis on the subject requires a thoughtful response.

ANALYSIS

¶ 14.This case presents a single issue for our review: Did the circuit court erroneously instruct the jury when it used Wis JI—Civil 200, the standard civil jury instruction on the ordinary burden of proof?

¶ 15.This issue is of great import to all civil trials in this state because the focus of criticism applies not only to the ordinary burden of proof (instruction 200) but also to the middle burden of proof (Wis JI—Civil 205).Thus, the legal issue posed must be analyzed against the backdrop of all civil litigation.

¶ 16.Wisconsin JI—Civil 200 embodies two related elements: (1) degree of certitude and (2) quantum of evidence.State ex rel. Brajdic v. Seber,53 Wis. 2d 446, 448, 193 N.W.2d 43(1972).There appears to be no dispute that the appropriate quantum of evidence in an ordinary civil case is "the greater weight of the credible evidence."This expression of the required quantum of evidence "is an exact synonym for `fair preponderance' and much more understandable by the average juror."Wis JI—Civil 200 cmt.(citingWangen v. Ford Motor Co.,97 Wis. 2d 260, 299, 294 N.W.2d 437(1980)).

¶ 17.The criticism of the instruction is thus pointed toward the other element—the degree of certitude.Nommensen argues in essence that the present instruction is confusing, potentially misleading, and substantively wrong.In this criticism he is supported by Judge Brown and a provocative article by Attorney Alan E. Gesler.Alan E. Gesler, The Burden of Proof: How Certain is Reasonable?, 14 The Verdict 11 (1991).

HISTORICAL ANALYSIS

¶ 18.Nommensen argues that the precedent supporting use of the phrase "reasonable certainty" is based on an erroneous understanding of the law.He is joined in this criticism by Judge Brown and Attorney Gesler.

¶ 19.The current version of Wis JI—Civil 200 "Burden of Proof: Ordinary" dates from 1972.It follows an earlier version of the instruction adopted by the Wisconsin Civil Jury Instructions Committee in 1960.The committee stated in both its 1960 and 1972 comments to instruction 200 that the phrase "satisfied to a reasonable certainty" had been used since Kausch v. Chicago & Milwaukee Electric Railway Co.,176 Wis. 21, 26, 186 N.W. 257(1922).

¶ 20.In 1967 in Savina v. Wisconsin Gas Co., Justice E. Harold Hallows wrote for the court:

In this type of civil case the burden of the plaintiff is only to satisfy the jury to a reasonable certainty.The plaintiff is not required to remove all uncertainty.Kausch v. Chicago & M.E. Ry. Co.(1922), 176 Wis. 21, 186 N.W. 257.However, in instructing generally on burden of proof the court correctly

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