Nommensen v. American Continental Insurance

2001 WI 112, 629 N.W.2d 301, 246 Wis. 2d 132, 2001 Wisc. LEXIS 455
CourtWisconsin Supreme Court
DecidedJuly 12, 2001
Docket99-3018
StatusPublished
Cited by65 cases

This text of 2001 WI 112 (Nommensen v. American Continental Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nommensen v. American Continental Insurance, 2001 WI 112, 629 N.W.2d 301, 246 Wis. 2d 132, 2001 Wisc. LEXIS 455 (Wis. 2001).

Opinions

DAVID T. PROSSER, J.

¶ 1. 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 plaintiffs 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 [137]*137instruction 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 [138]*138to 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:

[139]*139The 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" Nommen-sen "for past and future pain, suffering and disability."

¶ 11. On appeal, Nommensen raised three issues. All were rejected by the court of appeals.

[140]*140¶ 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. Nom-mensen 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 [141]*141205).

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Cite This Page — Counsel Stack

Bluebook (online)
2001 WI 112, 629 N.W.2d 301, 246 Wis. 2d 132, 2001 Wisc. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nommensen-v-american-continental-insurance-wis-2001.