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Mumm v. Jennie Edmundson Memorial Hospital

Court of Appeals of Iowa

October 10, 2018

MANDI MUMM, Plaintiff-Appellant,
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., 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.

          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 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 ...

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