Mandi Mumm v. Jennie Edmundson Memorial Hospital d/b/a Methodist Jennie Edmundson Hospital, Emergency Physicians of Western Iowa, L.L.C. and Paul C. Mileris, M.D. ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1934
Filed October 10, 2018
MANDI MUMM,
Plaintiff-Appellant,
vs.
JENNIE EDMUNDSON MEMORIAL HOSPITAL d/b/a METHODIST JENNIE
EDMUNDSON HOSPITAL, EMERGENCY PHYSICIANS OF WESTERN IOWA,
L.L.C., and PAUL C. MILERIS, M.D.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gregory W.
Steensland, Judge.
Mandi Mumm appeals the order denying her motion for new trial after a jury
found in favor of the defendants on her medical-malpractice claim. AFFIRMED.
Randall J. Shanks and Emily A. Shanks Warren of Shanks Law Firm,
Council Bluffs, for appellant.
Michael W. Ellwanger and Laura L. Mommsen of Rawlings, Ellwanger,
Mohrhauser & Nelson, L.L.P., Sioux City, for appellee Jennie Edmundson
Memorial Hospital.
Mary M. Schott, Thomas J. Shomaker, and Robert A. Mooney of Sodoro
Daly Shomaker PC LLO, Omaha, Nebraska, for appellee Emergency Physicians
of Western Iowa, L.L.C., and Paul C. Mileris, M.D.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
PER CURIAM.
Mandi Mumm appeals the order denying her motion for new trial after a jury
found in favor of the defendants on her medical-malpractice claim.
Our review of rulings on motions for new trial is based on the grounds raised
in the motion. See Jack v. Booth, 858 N.W.2d 711, 718 (Iowa 2015). Because
Mumm’s motion was based on the trial court’s response to questions received from
the jury, our review is for an abuse of discretion. See Iowa R. Civ. P. 1.925 (“While
the jury is deliberating, the court may in its discretion further instruct the jury, in the
presence of or after notice to counsel.”); Jack, 858 N.W.2d at 718 (“To the extent
the motion is based on a discretionary ground, we review it for an abuse of
discretion.”); McConnell v. Aluminum Co. of America, 367 N.W.2d 245, 250 (Iowa
1985) (finding trial court did not abuse its discretion in denying plaintiff’s objection
to the form of its responses to the jurors’ questions). “An abuse of discretion exists
when the district court’s ruling ‘rests upon clearly untenable or unreasonable
grounds.’” Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017) (citation omitted). A
ruling is untenable when the court bases it on an erroneous application of the law.
See State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017). In other words, an error of
law constitutes an abuse of discretion. State v. Kingery, No. 17-1529, 2018 WL
3650352, at *2 (Iowa Ct. App. Aug. 1, 2018) (citing State v. Smith, 753 N.W.2d
562, 564 (Iowa 2008)).
On appeal, the defendants assert Mumm failed to preserve error in not
objecting to the court’s response to the jury’s question at the time it was made.
However, when a court further instructs a jury during deliberations, “any objections
thereto shall be made in a motion for new trial.” Iowa R. Civ. P. 1.925, see also
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Everett v. State, 789 N.W.2d 151, 156-57 (Iowa 2010); Olson v. Sumpter, 728
N.W.2d 844, 849 (Iowa 2007); State v. McKee, 312 N.W.2d 907, 915 (Iowa 1981).
Mumm did raise the issue in her motion for new trial and properly preserved the
error.
The first five questions on the verdict form submitted to the jury were as
follows:
QUESTION NO. 1: Was Dr. Paul Mileris negligent?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is “no,” do not answer any of the following
questions.]
QUESTION NO. 2: Was the negligence of Dr. Paul Mileris a
cause of any item of damage to Plaintiff?
Answer “yes” or “no.”
ANSWER: _____
[If your answer to either Question No. l or No. 2 is “no,” then
you shall not assign any fault to Dr. Paul Mileris, and you will not
answer any further questions.]
If the answer to both Questions 1 and 2 are yes, then you will
answer the following questions.
QUESTION NO. 3: Was CH, Inc., negligent?
Answer “yes” or “no.”
ANSWER: _____
[If your answer is “no,” do not answer Question No. 4.]
QUESTION NO. 4: Was the negligence of CH, Inc., a cause
of any item of damage to Plaintiff?
Answer “yes” or “no.”
ANSWER: _____
[If your answer to either Question No. 3 or No. 4 is “no,” then
you shall not assign any fault to CH, Inc.]
QUESTION NO. 5: What percentage of the total fault do you
attribute to Defendant, Dr. Paul Mileris and what percentage of the
total fault do you attribute to CH, Inc.? The percentages must total
100%.
[If you previously found that Defendant Dr. Paul Mileris or CH,
Inc., was not at fault, or did not cause damage to Plaintiff, then enter
“0” after its name.]
ANSWER:
Dr. Paul Mileris _____%
CH, Inc. _____%
TOTAL: 100%
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During deliberations, the jury sent the court two questions concerning the
apportionment of fault between the defendants:
1. If we attribute 25% fault to Dr. Paul Mileris and 75% to CH,
Inc. would Mandi only get 25% since CH has been released?
2. If CH, Inc. has been released how are they still named in
the lawsuit?
The court conferred with counsel. Mumm’s counsel advocated that the court
answer “yes” to the first question and to refer the jury back to the instructions in
answer to the second; counsel for the defendants requested that the court refer
the jury back to the instructions in response to both questions. The court’s written
answer to the jury stated, “Please follow the instructions already given to you
based upon the evidence presented at trial.” Ultimately, the jury returned a verdict
form answering “no” to question one, which asked whether Dr. Mileris was
negligent. Excepting for the foreperson’s signature, the remainder of the verdict
form was left blank.
Mumm moved for new trial, alleging the jury’s questions about
apportionment of fault and its subsequent finding that Dr. Mileris was not negligent
indicated it “was clearly confused.” In Mumm’s view:
[T]he jury was clearly confused when answering Question 5. First,
in order to get to Question 5, the jury would have had to answer
Questions 1, 2, 3 and 4 in the affirmative. That would mean that the
jury found both Dr. Mileris and CH, Inc. were negligent and that their
negligence was a cause of Mandi’s damages. For all intents and
purposes, the jury was trying to figure out a way to award Mandi 25%
of her damages. The jury was obviously confused as to Question 5
and the effect it would have on the damage amount awarded to
Mandi. Plaintiff respectfully asserts that the Court should have
answered “Yes” to the jury’s question to clear up this confusion. By
not answering ‘‘Yes” and simply referring the jury back to the
instructions was an abuse of discretion.
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In denying Mumm’s motion for new trial, the district court stated:
While it makes some sense that subsequent questions
shouldn’t be or need not be discussed until question 1 is answered
in the affirmative, it is not particularly realistic to think that juries don’t
discuss the whole package before going back and answering
questions. This Court concludes that the question does not reflect
confusion by the jury so much as it reflects a complete discussion of
the case by all jurors. It would not be unusual for some jurors to want
to discuss other questions in order to help them decide the case.
Ultimately, this inheres in the verdict and in the discussions carried
on by the jury. This Court finds no reason to set aside or interfere
with the jury’s judgment in this case.
We are unable to find the district court’s ruling rests on clearly untenable or
unreasonable grounds. Having found no abuse of discretion, we affirm the order
denying Mumm’s motion for new trial.
AFFIRMED.
All judges concur except Doyle, J who dissents.
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DOYLE, Judge (dissenting).
I respectfully dissent. I, too, do not find the district court’s reasoning to be
clearly untenable or unreasonable. And having agreed with the majority on that
point, the controversy would ordinarily come to an end.
But wait, there’s more.
Application of comparative fault principles can be confusing. For that
reason, the legislature has mandated: “If the claim [subject to comparative fault] is
tried to a jury, the court shall give instructions and permit evidence and argument
with respect to the effects of the answers to be returned to the interrogatories
submitted under this section.” Iowa Code § 668.3(5) (2017) (emphasis added).1
Presumably, Iowa Civil Jury Instruction 400.3, entitled “Comparative Fault – Effects
of Verdict,” was drafted to implement the statutory mandate. Instruction 400.3
provides:
After you have compared the conduct of all parties, if you find
the plaintiff, ______, was at fault and the plaintiff’s fault was more
than 50% of the total fault, the plaintiff, _______, cannot recover
damages.
However, if you find the plaintiff’s fault was 50% or less of the
total fault, then I will reduce the total damages by the percentage of
plaintiff’s fault.
Seemingly, Instruction 400.3 would have no applicability to this case as there was
no contention Mumm was at fault. It naturally follows that the instruction was not
requested by either party and was not given upon submission of the case to the
jury. But that does not end the matter. The jury was asked to compare the fault,
1
A transcript of the trial was not ordered, so we do not know what the lawyers argued to
the jury with respect to the effects of the answers to be returned to the comparative fault
interrogatories. Iowa Code section 668.3(5) was not raised or argued on appeal.
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if any, between Dr. Mileris and CH, Inc., a released defendant. Confused, or
merely curious, the jury asked the court: “If we attribute 25% fault to Dr. Paul Mileris
and 75% to CH, Inc. would Mandi only get 25% since CH has been released?”
Clearly, the jury wanted to know the effects of the application of comparative fault
upon its answers to interrogatories—and it was entitled to know. Submitting
uniform instruction 400.3, as suggested below, would have satisfied the jury’s
legitimate quest for answers.
Although the body of uniform instruction 400.3 does not fit the facts of this
case, there is language in the comments section following the instruction that does.
Several notes in the comments section to the instruction explain the effects of the
application of comparative fault in various situations:
Note: 1. Where consortium claims are involved, the fault of the
person whose injury or death provides the basis for the consortium
claim does bar or reduce the consortium recovery. Iowa Code
section 668.3(1)(b), overturning Schwennen v. Abell, 430 N.W.2d 98(Iowa 1988).
Note: 2. When the jury will be asked to allocate fault among
more than two “parties” as defined in Iowa Code section 668.2, add:
If you assign to a party less than 50% of the total fault, that party will
only be liable to the extent of the percentage of fault assigned by you.
Where concert of action among two or more parties is alleged, see
Reilly v. Anderson, 727 N.W.2d 102 (Iowa 2007).
Note: 3. When there is more than one defendant, plaintiff can
claim the entire amount of [earning capacity] [medical expenses]
[other economic damages] awarded to the plaintiff from any
defendant whose percentage of fault is found by you to be 50% or
more.
Note: 4. If the jury is asked to compare fault of a third party
defendant or more than one defendant, add; I will order the
[defendants] [and third party defendant] to contribute to the payment
of damages awarded on the basis of the percentages of fault you
insert in your answers to the questions at the end of these
instructions.
Note: 5. When there is a settling party, add: If you assign a
percentage of fault to the settling party, I will reduce the amount of
plaintiff’s recovery by that percentage.
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Notes 2 and 5 are applicable here, and the court should have answered:
If you assign to a party less than 50% of the total fault, that party will
only be liable to the extent of the percentage of fault assigned by
you,” and “If you assign a percentage of fault to the settling party, I
will reduce the amount of plaintiff’s recovery by that percentage.
Of course, by simply answering the jury’s first question, “Yes,” as requested by
Mumm, would have accomplished the same purpose as giving the language
suggested in notes 2 and 5—and probably would have been less confusing.
“Jury instructions ‘must convey the applicable law in such a way that the
jury has a clear understanding of the issues it must decide.’” Rivera v. Woodward
Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015) (quoting Thompson v. City of Des
Moines, 564 N.W.2d 839, 846 (Iowa 1997)). Section 668.3(5) mandates a court
inform the jury of the effects of comparative fault as applied to the jury’s answers
concerning fault. The court’s failure to answer the jury’s first question runs counter
to the statutory mandate, and I conclude the court erred.
Next, was the error prejudicial to Mumm? Instructional errors do not merit
reversal unless prejudice results. See DeBoom v. Raining Rose, Inc., 772 N.W.2d
1, 5 (Iowa 2009). Prejudice occurs and reversal is required when jury instructions
contain a “material misstatement of the law” or are misleading or confusing.
Rivera, 865 N.W.2d at 902. “We assume prejudice unless the record affirmatively
establishes that there was no prejudice.” Id. at 903. “When an instruction fails to
convey a central principle of liability, this warrants a new trial.” Haskenhoff v.
Homeland Energy Sols., LLC, 897 N.W.2d 553, 579 (Iowa 2017) (internal citations
omitted). I think the same can be said for the failure to convey the effects of the
application of comparative fault. Here, the instructions failed to convey to the jury
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how application of comparative fault to its answers to interrogatories affected its
verdict. Although it asked, the jury was not informed that allocating 25% fault to
Dr. Mileris would limit his liability to that percentage and that allocating 75% fault
to CH would reduce Mumm’s total damages recovery by that amount.
With the failure to meet the mandate to be fully informed under section
668.3(5), particularly in view of the jury’s question, the jury was left with a material
omission of the law. I believe this omission to be the substantial equivalent of a
material misstatement of the law. And, although the jury was not affirmatively
misled by the instructions, it was not led at all.
With no guidance, the jury was left to blindly flop around on its own in those
murky waters of comparative fault. I cannot say justice was served under the
particular circumstances presented. I therefore believe Mumm is entitled to a new
trial, see id. at 579-81, and I would reverse the order denying Mumm’s motion for
new trial and remand for further proceedings.