               IN THE SUPREME COURT OF IOWA
                               No. 17–1934

                           Filed March 1, 2019


MANDI MUMM,

      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,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Pottawattamie County,

Gregory W. Steensland, Judge.



      Mandi Mumm seeks further review of a court of appeals decision

affirming a district court’s denial of her motion for a new trial. DECISION

OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT
AFFIRMED.



      Randall J. Shanks and Emily A. Shanks Warren (until withdrawal)

of Shanks Law Firm, Council Bluffs, for appellant.



      Michael W. Ellwanger and Laura L. Mommsen (until withdrawal) of

Rawlings, Ellwanger, Mohrhauser, Nelson & Roe LLP, Sioux City, for

appellee Jennie Edmundson Memorial Hospital.
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     Thomas J. Shomaker, Mary M. Schott, and Robert A. Mooney of

Sodoro Daly Shomaker PC LLO, Omaha, Nebraska, for appellees

Emergency Physicians of Western Iowa, L.L.C. and Paul C. Mileris.
                                      3                  3/1/2019 8:07:25 AM

MANSFIELD, Justice.

         I. Introduction.

         This case raises the recurring question of how to respond to jury

questions during deliberations.

         An individual who had been confined in a halfway house suffered a

disabling stroke.    She sued both the halfway house and an attending

emergency room physician at a nearby hospital.         She alleged that the

halfway house failed to get her needed medical attention and that the

physician rendered negligent care, thereby leading to delayed detection

and treatment of the stroke. Before trial, she settled with the halfway

house and continued to pursue her claim against the physician.           The

halfway house was listed on the verdict form as a potential nonparty at

fault.

         During deliberations, the jury asked, “If we attribute 25% fault to

[the physician] and 75% to [the halfway house] would [the plaintiff] only

get 25% since [the halfway house] has been released?”         The jury also

asked, “If [the halfway house] has been released how [is it] still named in

the lawsuit?” The district court answered both questions by directing the

jury back to the original instructions, although those instructions did not

explain the effect of any fault allocation. Thereafter, the jury returned a

verdict that the physician was not negligent and, as advised by the verdict

form, stopped there.

         Appealing from a denial of her motion for new trial, the plaintiff

argues that the district court should have answered “yes” to the jury’s first

question. The court of appeals found no abuse of discretion and affirmed.

On further review, we likewise find no abuse of discretion. Although the

district court could have—and probably should have—given an affirmative

answer to the first question, we are unable to find any prejudice on this
                                       4                   3/1/2019 8:07:25 AM

record. The jury surely understood that its verdict would result in no

damages being awarded against the physician; therefore, any jury

confusion as to whether an award of some damages would be reduced was

immaterial.    Furthermore, the plaintiff has not provided us with a

transcript of any portion of the trial, making it even more difficult to find

potential prejudice. Accordingly, we affirm the decision of the court of

appeals and the judgment of the district court.

      II. Facts and Procedural History.

      Because no transcript was ordered of the jury trial, our summary of

the facts is necessarily somewhat limited. Mandi Mumm’s appellate brief

cites to her petition, not to the trial record, for factual support.

      Nonetheless, some facts appear to be undisputed. In early 2014,

when she was thirty-three years old, Mumm was released from federal

prison into a halfway house operated by CH, Inc. under a contract with

the Federal Bureau of Prisons.

      On February 11, 2014, Mumm became ill and received permission

to go to a clinic for medical care. She had complaints of headache, neck

pain, and dizziness. Her diagnoses were headache and acute sinusitis.

After being seen by the clinic and prescribed one medication, she returned

to the CH halfway house.

      On February 14, Mumm was still not feeling well and received

permission to go to the emergency room of Jennie Edmundson Hospital in

Council Bluffs.    Mumm complained of a worsening of her headache,

nausea, dizziness, and vomiting. She reported that she had a history of

migraines.    She was seen by an emergency room physician, Dr. Paul

Mileris. Dr. Mileris ordered a CT exam of her head that was reported as

normal. Mumm was treated with medication and released back to the

halfway house.
                                            5                      3/1/2019 8:07:25 AM

       Mumm’s condition did not improve at CH. According to Mumm’s

petition, on February 16, she became very ill and began exhibiting signs

of a stroke. She looked ill, she was sweating, her throat was swollen, she

could not breathe, and the right side of her face was drooping. However,

Mumm was not released by CH to return to the emergency room for

approximately twenty-four hours.

       On February 17, at approximately 10:30 p.m., Mumm arrived again

at the emergency room.           She was triaged at 10:40 p.m. and seen by

Dr. Mileris at 11:29 p.m. An MRI of her brain was performed, and it was

determined that she was suffering a cerebral stroke with vertebral

dissection. She was transferred to the University of Nebraska Medical

Center later in the morning where she remained hospitalized for

approximately two months.               Mumm remains confined today to a

wheelchair and suffers bilateral paralysis.

       On November 12, 2015, Mumm filed suit in the Pottawattamie

County District Court against CH. The next day, she amended her petition

to add Sidney Strnad, a supervisor at CH. On February 9, 2016, Mumm

filed a motion to amend her petition to add Dr. Mileris, Emergency

Physicians of Western Iowa, L.L.C. (Dr. Mileris’s employer), and Jennie

Edmundson Hospital as defendants. On July 25, Mumm dismissed CH

and Strnad, having reached a settlement with them. On September 22,

Mumm amended her petition a third time.

       Jury trial commenced on August 28, 2017. By the time of trial, the

parties had agreed there was no independent claim of liability against the

hospital; its liability, if any, derived from that of Dr. Mileris. 1                Trial

proceeded for eight days.

       1At  the risk of oversimplification, we shall refer to the remaining parties to the
case collectively as “Dr. Mileris.”
                                      6                    3/1/2019 8:07:25 AM

      The case was submitted to the jury on September 8. The statement

of the case had explained to the jury that Dr. Mileris denied any negligence

and claimed that it was CH’s negligence that caused injury to Mumm.

      Instruction 22, the marshalling instruction, stated,

            In order for Mandi Mumm to recover against Dr. Paul
      Mileris, she must prove all of the following propositions:

            1. That Dr. Mileris was negligent on February 14, 2014,
      for failing to use the degree of skill, care and learning
      ordinarily possessed and exercised by other emergency room
      physicians in similar circumstances.

           2. That his negligence caused injury and damage to
      Mandi Mumm.

             3. The amount of damages.

             If the Plaintiff has failed to prove any of these
      propositions, she is not entitled to damages. If the Plaintiff
      has proved all of these propositions, the Plaintiff is entitled to
      damages in some amount, and you will then compare the fault
      of Dr. Mileris with the fault of CH, Inc. as set out in Instruction
      No. 24.

      Instruction 24 provided,

             The Defendants claim that CH, Inc. was at fault on
      February 15, 16 and 17, 2014, for delaying a transfer of Mandi
      Mumm to a hospital. Defendants must prove all of the
      following propositions.

             1. CH, Inc. was at fault.

             2. CH, Inc.’s fault was a cause of Plaintiff’s damage, if
      any.

             If the Defendants have failed to prove either of these
      propositions, you cannot assign any percentage of fault to CH,
      Inc. If the Defendants have proved both of these propositions,
      then you will assign a percentage of fault against CH, Inc.,
      and include CH, Inc.’s fault in the total percentage of fault
      found by you in answering the questions in the verdict form.

      The verdict form stated,

             QUESTION NO. 1: Was Dr. Paul Mileris negligent?
                                    7                     3/1/2019 8:07:25 AM

      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.] 2




2Questions   6 and 7 went on to ask the jury about items of damage.
                                           8                      3/1/2019 8:07:25 AM

       Because the trial has not been transcribed, we do not know whether

any objection was made to the jury instructions or special verdict forms.

The most we can say is that our record does not indicate any objection.

       At 2:01 p.m., after the jury was sent out to deliberate, the foreperson

sent the following note to the court:

             1. As related to Question 5: 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?

According to Dr. Mileris, these questions came “near the start of [jury]

deliberations.” This fact is not disputed by Mumm. 3

       According to Mumm, after receiving the jury questions,

              The Court contacted trial counsel to discuss the
       questions and a response thereto. Counsel for the Plaintiff
       moved the Court to answer “Yes” to the first question and refer
       the jury to the previously given jury instructions to answer the
       second. Counsel for the Defendants requested that the Court
       refer the jury back to the jury instructions.

These facts are not disputed by Dr. Mileris. At this point, the court advised

the jury to “[p]lease follow the instructions already given to you based upon

the evidence presented at trial.”
       Later that afternoon, the jury returned a unanimous verdict finding

that Dr. Mileris was not negligent and, therefore, declined to answer the

remaining questions after Question 1. The verdict was filed at 3:56 p.m.

       On September 15, Mumm moved for a new trial. She asserted that

the jury was “clearly confused” when it sent its note to the court, that it

was “trying to figure out a way to award [Mumm] 25% of her damages,”


       3At oral argument, both counsel agreed that the jury was sent out to deliberate at
approximately 12:30 p.m., presumably ordered and had lunch, and came back with their
questions at 2:01 p.m.
                                      9                   3/1/2019 8:07:25 AM

and that the district court “should have answered ‘Yes’ to the jury’s

question to clear up this confusion.” Dr. Mileris resisted the motion.

      On November 6, the district court entered an order denying the

motion for new trial. The court explained,

             During deliberation, the jury sent several questions to
      the Court. Plaintiff’s post-trial motion focuses on one of those
      questions.    The question asked this Court for further
      instructions concerning the potential for assessing a 25%
      fault to Dr. Mileris. It is Plaintiff’s position that in order for
      the jury to get to that question and deliberate it, they must
      have necessarily answered questions 1-4 on the verdict form
      in the affirmative.

             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.

      Mumm appealed the denial of new trial, and we transferred her case

to the court of appeals. The court of appeals affirmed the district court’s

ruling, with one member of the panel dissenting. We granted Mumm’s

application for further review.

      III. Standard of Review.

      We review a trial court’s response to jury questions during

deliberations for 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.”); State v. Watkins, 463

N.W.2d 15, 18 (Iowa 1990) (noting that “the decision to give a supplemental

instruction, or to refrain from doing so, rests within the sound discretion

of the trial justice” (quoting State v. Pignolet, 465 A.2d 176, 184 (R.I.
                                       10                   3/1/2019 8:07:25 AM

1983))); McConnell v. Aluminum Co. of Am., 367 N.W.2d 245, 250 (Iowa

1985) (“The trial court did not abuse its discretion in denying McConnells’

objection to the form of its responses to the jurors’ questions, and no

prejudicial error resulted from the court’s communications with the jury.”);

see also State v. McCall, 754 N.W.2d 868, 871 (Iowa Ct. App. 2008).

      IV. Legal Analysis.

      In this case, it appears that answering “yes” to the jury’s first

question during deliberations would have closed a gap in the original

instructions.   The original instructions advised the jury that Mumm

claimed Dr. Mileris was negligent and that Dr. Mileris claimed CH was

negligent. The jurors were also told that if they found Dr. Mileris negligent,

and that his negligence was a cause of any item of damage to Mumm, they

should proceed to determine whether CH was negligent and if so, whether

CH’s negligence was a cause of damage of any item of damage to Mumm.

Finally, they were told that if they answered yes to the foregoing questions,

they should then attribute percentages of total fault to CH and Mumm.

      However, Iowa Code section 668.3(5), regarding comparative fault,

goes further. It provides, “If the claim 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); see also Sullivan

v. Wickwire, 476 N.W.2d 69, 72–73 (Iowa 1991) (indicating that in a case

with a settling defendant, the district court must instruct the jury that the

plaintiff’s recovery will be reduced by the percentage of fault attributed to

the settling party).   The Iowa State Bar Association’s model civil jury

instructions state that when there is a settling party, the jury should be

told, “If you assign a percentage of fault to the settling party, I will reduce

the amount of plaintiff’s recovery by that percentage.” Iowa State Bar
                                     11                  3/1/2019 8:07:25 AM

Ass’n, Iowa Civil Jury Instructions 400.3, n.5 (2018). Here, the court’s

original jury instructions did not explain how the math would work if some

fault were allocated to Dr. Mileris and some to CH. The dissenting judge

on the court of appeals noted this point, while also observing that Mumm

had not raised section 668.3(5) on appeal.

      There is authority that supplemental instructions can be used to

cover holes in the original instructions:

             Where the original instructions are inadequate, and the
      jury asks questions indicating their confusion and need for
      further explanation, the failure to give proper additional
      instructions may be reversible error. Also, a court has a duty
      to further instruct the jury where the jury requests
      clarification, at least where the original instructions were
      incomplete or where the jurors indicate confusion.

89 C.J.S. Trial § 974, at 433 (2012) (footnote omitted); see also Brown v.

Lyon, 258 Iowa 1216, 1222, 142 N.W.2d 536, 539 (1966) (“Supplemental

instructions, of course, are as a general rule proper, and sometimes are

necessary and desirable.”).

      However, it is well-settled that an instructional error must be
prejudicial to warrant reversal. Ludman v. Davenport Assumption High

Sch., 895 N.W.2d 902, 920 (Iowa 2017) (“[W]e will not reverse the district

court’s failure to give a requested jury instruction unless it prejudices the

party requesting the instruction.”); Burkhalter v. Burkhalter, 841 N.W.2d

93, 97 (Iowa 2013) (“Error in giving a jury instruction ‘does not merit

reversal unless it results in prejudice.’ ” (quoting Wells v. Enter. Rent–A–

Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004))); Beyer v. Todd, 601 N.W.2d

35, 38 (Iowa 1999) (“Failure to give a requested jury instruction does not

warrant reversal unless it results in prejudice to the party requesting the

instruction.”); Grefe & Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994)

(“If instructions are erroneous, they must be prejudicial before we will
                                      12                   3/1/2019 8:07:25 AM

order reversal.”); Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993)

(“Error in giving an instruction does not require reversal unless the error

is prejudicial.”). This applies also to supplemental instructions: to show

an abuse of discretion, the plaintiff must demonstrate she was prejudiced

by the response to the jury question. See McConnell, 367 N.W.2d at 250

(finding no abuse of discretion while noting that the appellants “have not

shown they were prejudiced by the court’s conduct [in responding to the

jury questions]”).

      Although Iowa Code section 668.3(5) directs the court to inform the

jury of the effects of its fault allocations, our prior reversals in this area

have involved situations where the jury was affirmatively misled by the

allocation instructions given. See Reese v. Werts Corp., 379 N.W.2d 1, 3–

4 (Iowa 1985) (finding that reversal was required where the district court

failed to properly instruct the jury on the effect of its fault allocations and

the plaintiff objected to the misleading instructions that were given); see

also Wilson v. Farm Bureau Mut. Ins., 714 N.W.2d 250, 261 (Iowa 2006)

(noting that implicit in Reese was “the fact that the erroneous and

misleading instructions tainted the jury verdict[] resulting in prejudice to

the part[y] challenging the verdict[]”). We have yet to reverse a jury verdict

simply because the jury was not told the effect of the allocation they were

asked to make between a nonsettling defendant and a settling one.

Normally, juries answering special verdicts are not told of the

consequences of those answers: we trust jurors to find the facts impartially

regardless of where those findings may lead. See Schwennen v. Abell, 471

N.W.2d 880, 885 (Iowa 1991).

      In any event, we cannot find prejudice here. Mumm argues the first

question illustrates that the jury was confused and wanted to award

Mumm 25% of her damages against Dr. Mileris.               The district court
                                      13                   3/1/2019 8:07:25 AM

concluded that the jury was having a preliminary discussion of the entire

verdict form and simply wanted to make sure it understood the form before

going through full-blown deliberations.      On the face of it, the district

court’s reasoning is more logical than Mumm’s.           The district court’s

hypothesis can be reconciled with the actual jury verdict; Mumm’s can’t.

If the jury wanted to award some money to Mumm against Dr. Mileris, as

Mumm theorizes, the jury surely knew that entering a finding that

Dr. Mileris was not negligent and stopping there was not the way to do it.

      DeMoss v. Hamilton, 644 N.W.2d 302 (Iowa 2002), is relevant here.

This was a medical malpractice action against a physician who allegedly

failed to timely diagnose the decedent’s heart condition, resulting in his

suffering a fatal heart attack the next day. Id. at 304. We held the district

court committed a legal error in giving a comparative fault instruction

allowing the jury to allocate a percentage of fault to the decedent for failing

to heed his cardiologists’ prior advice to reduce his risk of heart attack. Id.

at 304, 307. Yet we found no ground for reversal because the plaintiff had

suffered no prejudice. Id. at 307. We explained,

      The court’s instructions and verdict form called upon the jury
      to first determine the fault, if any, attributable to Hamilton
      before proceeding to consider the alleged fault of Brian. The
      jury found no causal fault on Hamilton’s part and, so, in
      accordance with the court’s direction, answered none of the
      remaining interrogatories. As a result, error, if any, in the
      instruction dealing with Brian’s comparative fault had no
      effect on the verdict.

Id.; see also Ladeburg, 508 N.W.2d at 696 (finding the plaintiff could not

have been prejudiced by the submission of an instruction on her

comparative fault when the jury found the defendants were not at fault in

response to the first question on the verdict form).

      We have a similar situation here.          Even if the supplemental

instruction sought by Mumm would have corrected a deficiency in the
                                    14                  3/1/2019 8:07:25 AM

comparative fault allocation instructions, Mumm suffered no prejudice

because the jury found unanimously that Dr. Mileris was not negligent.

      Moreover, the lack of a trial transcript stands as a further

impediment to any finding of prejudice. For example, we do not know how

strong the evidence of Dr. Mileris’s negligence was or what counsel said in

closing argument about the instructions and verdict forms.         Powerful

evidence of Dr. Mileris’s negligence, coupled with closing arguments that

led the jury astray, might suggest a plausible risk that the final verdict

resulted from jury confusion, as opposed to the jury’s unvarnished,

collective assessment of the case against Dr. Mileris. But we don’t have

such a record here.

      Iowa Rule of Appellate Procedure 6.803(1) provides, “If the appellant

intends to urge on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant must include in

the record a transcript of all evidence relevant to such finding or

conclusion.” This rule requires the appellant to provide a transcript when

arguing on appeal that a trial court erred in directing a verdict on a

particular issue. See Powell v. Khodari-Intergreen Co., 334 N.W.2d 127,

130 (Iowa 1983) (“Such failure on his part precludes us from disturbing

the ruling of the trial court sustaining the motion for directed verdict on

the intentional infliction of emotional distress claim.”). Likewise, we have

indicated that this rule put the burden on the appellant to order a

transcript if he wanted to argue on appeal that a jury should have been

instructed on certain points of law.     See Blackford v. Prairie Meadows

Racetrack & Casino, Inc., 778 N.W.2d 184, 191 (Iowa 2010).

      More generally, we have said, “It is the appellant’s duty to provide a

record on appeal affirmatively disclosing the alleged error relied upon.” In

re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005); see also State v. Ludwig, 305
                                     15                  3/1/2019 8:07:25 AM

N.W.2d 511, 513 (Iowa 1981). This principle led us to affirm on an issue

when we did not have a transcript to determine whether the appellant had

asked for a particular instruction on that issue. See Estes v. Progressive

Classic Ins., 809 N.W.2d 111, 115–16 (Iowa 2012) (“Failure to provide a

record requires us to affirm the district court’s judgment.”); see also State

v. Campbell, 294 N.W.2d 803, 811 (Iowa 1980) (“Defendant’s assertions as

to the length of jury deliberations following the [supplemental] instruction

are not verified by the record. A defendant may waive error by failing to

provide this court with a record which affirmatively shows the basis of the

alleged error.”).

      Accordingly, if the record would have provided some basis for

determining that the district court’s refusal to answer the first jury

question was prejudicial, Mumm needed to provide that record to us.

Without that information, we cannot conclude the jury’s straightforward

verdict absolving Dr. Mileris of negligence is tainted by confusion.

      V. Conclusion.

      For the foregoing reasons, we affirm the judgment of the district

court and the decision of the court of appeals.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.

      All justices concur except Christensen, J., who takes no part.
