                     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
                                            3

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%
                                         4



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.
                                            5


      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.
                                            6


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.
                                           7


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.
                                           8



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
                                           9


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.
