Todd Nommensen, Plaintiff-Appellant, v. American Continental Insurance Company and Saint Mary's Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents, 239 Wis. 2d 129

NETTESHEIM, J. ¶ 1. 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. Nommen-sen 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 to 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 — CrviL 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. 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). 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 Nom-mensen 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 WlS 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. ¶ 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 farther 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 asked to give opinions "to a reasonable probability." Nonetheless, the Committee has concluded "that the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions." Id. ¶ 16.

The court of appeals is principally an error-correcting court. See Jackson v. Benson, 213 Wis. 2d 1, 18, 570 N.W.2d 407 (Ct. App. 1997), rev'd on other grounds, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), cert. denied, 525 U.S. 997 (1998). We are bound by the precedents established by our supreme court. See State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159 (1984). Given the standing law as announced by the supreme court, we conclude that the trial court did not err in its use of Wis J—Civil 200 when instructing the jury as to the burden of proof. 3. Five-Sixths Rule ¶ 17.

Nommensen contends that because the two jurors who dissented from the negligence finding against St. Mary's were not the same two jurors who dissented from the finding of no causation, the verdict did not satisfy the five-sixths rule set out in WlS. Stat. § 805.09(2). The statute states: VERDICT. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions. ¶ 18.

The supreme court set out the black letter principles of the five-sixths rule in Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983). The five-sixths rule does not require that the same ten jurors must agree on every question. See id. at 401. Rather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim. See id. Thus, when we conduct a five-sixths analysis, we review the verdict on a claim-by-claim basis rather than as a whole. See id. Finally, dissents which are important to one claim may be immaterial to another.

See id. ¶ 19. Nommensen's argument fails because he seeks to use the whole verdict as the premise for his five-sixths challenge when, in fact, the jury's finding of no causation, standing alone, resolves the issue. Here, one of St. Mary's defenses was that even if it was negligent, such negligence did not cause Nommensen's injury. As noted, ten of the twelve jurors agreed with this assertion. This answer fully resolved St. Mary's claim of no causation in its favor and fully extinguished Nommensen's right to recover. Under Giese, the jury's other answer finding that St.

Mary's was negligent was not "necessary to support a judgment" on St. Mary's claim that any negligence on its part did not cause Nommensen's injury. ¶20. The case law also establishes that these same principles apply whether we assess a verdict in favor of the plaintiff or the defendant. In Augustin v. Milwaukee Electric Railway & Transport Co., 259 Wis. 625, 49 N.W.2d 730 (1951), the jury determined that the defendant was not negligent, with two jurors dissenting. See id. at 629.

The jury also determined that the plaintiff was not contributorily negligent with respect to three of four theories of liability presented, with two different jurors dissenting on one of the theories. See id. at 629-30. The supreme court held that the jury's finding of no negligence by the defendant, agreed to by ten of the jurors, entitled the defendant to a judgment of dismissal. See id. at 632-33. ¶ 21. To the same effect is Will v. Chicago, Milwaukee & St.

Paul Railway Co., 191 Wis. 247, 210 N.W. 717 (1926), where the jury, with one dissenter, determined that the defendant was not negligent but also determined, with two dissenters, that the plaintiff was contributorily negligent. See id. at 249-50. The supreme court reversed a grant of a new trial on grounds that the jury had not agreed upon the verdict. See id.

The court held that the answer as to the absence of negligence on the part of the defendant "requires a judgment for defendant because it is a complete verdict, in that it finds a want of the essential element for the plaintiff to maintain . . . namely, negligence or a breach of duty." Id. at 255. ¶ 22. Even apart from this case law, Nommen-sen's contention that we must look to the entire verdict does not bear up. If the jury in this case had unanimously agreed that St.

Mary's was negligent, but ten jurors still found that such negligence was not causal, Nommensen could not argue that the verdict was defective because the same ten jurors would have agreed on all the questions. Yet here, where Nommen-sen has failed to persuade two of the jurors on the negligence question, he argues that the verdict is subject to a five-sixths challenge. Thus, Nommensen seeks to use his failure to persuade the two jurors on the negligence question as a sword against the verdict when he would not be permitted to do so if he had prevailed with all the jurors on the negligence question. ¶ 23.

We uphold the trial court's ruling that the verdict satisfied the five-sixths rule. Conclusion ¶ 24. We hold that the trial court properly admitted the testimony of Buggy and correctly instructed the jury as to the burden of proof under Wis JI — Civil 200. We also hold that the verdict satisfied the five-sixths rule. By the Court. — Judgment affirmed. The jury fixed Nommensen's damages at $95,000. One of the jurors who dissented on the first question regarding St. Mary's negligence also dissented on this damage question. All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.