F I L E D

United States Court of Appeals

Tenth Circuit

AUG 16 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEN DOMANN and CYNTHIA

DOMANN,

Plaintiffs - Appellants,

v.

DEBBIE VIGIL, M.D.,

Defendant - Appellee.

No. 00-2270

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D. Ct. No. CIV-99-192-LH/LFG)

Daniel R. Swiss (Turner W. Branch, Margaret Moses Branch, and James P. Lyle,

with him on the briefs), The Branch Law Firm, Albuquerque, New Mexico, for

Appellants.

Alice Tomlinson Lorenz (Jennifer L. Stone, with her on the brief), Miller,

Stratvert & Torgerson, P.A., Albuquerque, New Mexico, for Appellee.

Before TACHA, Chief Judge, HENRY, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

In this medical malpractice case, appellants Ken and Cynthia Domann

challenge the jury verdict below as incomplete and inconsistent. The Domanns
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further appeal the district court’s refusal to instruct the jury on one of their

theories of negligence as well as the district court’s exclusion of the Domanns’

medical bills from evidence. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

I. Background

The Domanns moved to New Mexico in the spring of 1996. At the time,

Mrs. Domann was pregnant. Upon arrival in New Mexico, she began receiving

obstetrical care from the appellee, Dr. Debbie Vigil, M.D. On October 31, 1996,

Dr. Vigil admitted Mrs. Domann to St. Vincent’s Hospital after she had

developed symptoms consistent with mild preeclampsia. Labor was induced and

the following morning, a healthy baby girl was delivered. However, following

delivery, Mrs. Domann’s placenta did not deliver spontaneously. After Dr. Vigil

and a consulting doctor, Dr. Cleveland Pardue, attempted unsuccessfully to

remove the placenta manually, they made the decision to move Mrs. Domann to

the operating room, place her under a general anesthesia, and further explore her

uterus. Still, the placenta could not be removed and the doctors began to discuss

the possibility of a hysterectomy. 

At 10:35 a.m., Mrs. Domann suffered an unexpected cardiac arrest. After

stabilizing Mrs. Domann’s heart rate, Dr. Vigil decided to perform an immediate

hysterectomy assisted by a second consulting physician, Dr. Lance Mikkelsen. 
1

 An amniotic fluid embolism is an allergic reaction to the tissue of the

baby entering the mother’s circulation which can affect the heart’s ability to

pump effectively. Systemic inflammatory response syndrome is an immunologic

reaction where the blood vessels start leaking the water that is contained in the

blood, creating an inability to maintain adequate blood pressure. 

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During the operation, due to high levels of blood loss during and following the

delivery, Mrs. Domann’s blood pressure could not be stabilized. 

Following the hysterectomy, Dr. Vigil called for a further consultation with

Dr. Bruce Shaffer. Dr. Shaffer examined Mrs. Domann in the operating room

and diagnosed her with amniotic fluid emboli and systemic inflammatory

response syndrome.1 Amniotic fluid emboli can result in disseminated

intravascular coagulopathy (“DIC”), a condition where the body’s clotting system

goes awry and microscopic clots are formed throughout the body blocking the

blood supply to vital organs. At approximately 1:15 p.m., Dr. Shaffer ordered

Heparin to treat what he believed was DIC induced by amniotic fluid emboli. 

Fresh frozen plasma was ordered but withheld from Ms. Domann while the

Heparin was administered. Mrs. Domann received four units of fresh frozen

plasma later that afternoon. Mrs. Domann remained hospitalized until February

10, 1997, when, after a stormy hospital course, she was released to a

rehabilitation center. She continues to suffer peripheral nerve impairment and is

still progressing in her recovery. 

Following Mrs. Domann’s release from the hospital, the Domanns filed suit
2

 Placenta accreta is a condition where the placenta has grown through the

placental membrane and into the uterine wall. 

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against Dr. Vigil. The Domanns alleged that Dr. Vigil was negligent in the

following ways: (1) by failing to properly recognize and manage extensive

hemorrhaging during Mrs. Domann’s post-partum course; (2) by failing to

perform the hysterectomy soon enough to prevent Mrs. Domann’s DIC; and (3) by

failing to give the fresh frozen plasma soon enough and instead approving the

decision of Dr. Shaffer to administer Heparin. Evidence was presented at trial by

medical witnesses that Mrs. Domann had suffered an amniotic fluid embolism

complicated by DIC and placental accreta2 and that nothing could have been done

by any doctor to improve her outcome. 

On the other hand, the Domanns’ medical expert, Dr. Richard Luciani,

testified that Dr. Vigil was negligent in underestimating the amount of blood Mrs.

Domann had lost leading to Mrs. Domann’s cardiac arrest, in failing to

immediately give Mrs. Domann fresh frozen plasma, and in allowing Dr. Shaffer

to administer Heparin. However, at no point did Dr. Luciani testify that Dr. Vigil

had a duty to perform the hysterectomy earlier than she did. 

Following testimony, the Domanns submitted a special verdict form which

was accepted by the district court. The special verdict form included two

preliminary questions. The first asked the jury to determine whether Dr. Vigil
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had been negligent, and the second asked the jury to determine whether any

negligence of Dr. Vigil had been the proximate cause of any of the Domanns’

injuries. The Domanns also submitted jury instruction 28, which was

subsequently given to the jury. Instruction 28 states:

After considering the evidence and these instructions as a whole the

preliminary questions presented for you to answer on the special verdict

form are as follows:

1. Was Dr. Debbie Vigil negligent?

2. Was any negligence of Dr. Debbie Vigil a proximate cause of Ken

and Cynthia Domann’s injuries and damages?

If you answer “no” to either question 1 or 2 on the special verdict form, you

shall return the special verdict for Dr. Debbie Vigil and against Ken and

Cynthia Domann.

If, on the other hand, you answer “yes” to question 1 and 2, you shall

determine the amount of money that will compensate Ken and Cynthia

Domann for the injuries and damages, and you will otherwise answer the

questions required of you on the special verdict form which I will hand to

you at the conclusion of these instructions.

After the district court had read the instructions to the jury, the court asked

counsel if there were any objections to the manner in which they were read. The

Domanns’ counsel stated that there were none. 

After deliberations, the jury informed the court that it had reached a

unanimous verdict. Upon reading the verdict, the district court noted that the first

question on the special verdict form had been left blank. The jury foreman

confirmed that the first question had not been filled out and subsequently
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explained that the jury had been unable to reach a unanimous answer to the first

question, but had unanimously answered “no” to the second question. Based on

the jury’s unanimous answer to the second question and on instruction 28, the

trial judge accepted the verdict for Dr. Vigil and denied the Domanns’ motion for

a new trial.

II. Jury Verdict

The Domanns now appeal the district court’s denial of their motion for a

new trial, arguing that the jury verdict was inconsistent and incomplete. We

review a district court’s refusal to grant a new trial based on a finding that the

jury verdict is not inconsistent for abuse of discretion. Harvey ex rel. Harvey v.

General Motors Corp., 873 F.2d 1343, 1346 (10th Cir. 1989) (holding that, when

plaintiffs argue an inconsistent jury verdict this court will “not disturb the trial

court’s denial of a motion for a new trial absent a showing of abuse of

discretion”); see also Harris Mkt. Research v. Marshall Mktg. & Communications,

Inc., 948 F.2d 1518, 1522 (10th Cir. 1991). It is the additional burden of the

appellant to show that any verdict inconsistency demonstrates “either confusion or

abuse on the jury’s part.” Global Van Lines, Inc. v. Nebeker, 541 F.2d 865, 868

(10th Cir. 1976). In determining whether there is any inconsistency, we must

accept any reasonable explanation that reconciles the jury’s verdict. Harvey, 873

F.2d at 1348; Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 852 (10th Cir.
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2000).

We find no abuse of discretion in the district court’s determination that the

jury verdict in this case was not inconsistent or incomplete. The general rule

adopted by federal courts addressing this question is that “failure by a jury to

answer some of the questions in a special verdict does not vitiate an otherwise

unanimous verdict where the unanimous answers to the verdict conclusively

dispose of the case.” Black v. Riker-Maxson Corp., 401 F. Supp. 693, 696

(S.D.N.Y. 1975); see also Technical Res. Servs., Inc. v. Dornier Med. Sys., Inc.,

134 F.3d 1458, 1466 (11th Cir. 1998) (holding jury verdict not inconsistent where

jury unanimously determined that plaintiff failed to prove two elements necessary

to recovery despite jury’s failure to answer other questions on the special verdict

form); Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1581 (Fed. Cir.

1995) (holding that, where a jury fails to return unanimous answers to some of the

questions on a special verdict form the “trial judge [can] enter judgment on the

basis of the unanimous verdicts if they are dispositive of the case”); Audette v.

Isaksen Fishing Corp., 789 F.2d 956, 958 (1st Cir. 1986) (holding that, where a

jury returned with a unanimous finding of no proximate cause, but could not reach

a unanimous finding on the question of negligence, the jury verdict was “simple

to harmonize” and such a finding compelled “a judgment for defendant” (internal

quotation marks omitted)); Skyway Aviation Corp. v. Minneapolis, Northfield &
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Southern Ry. Co., 326 F.2d 701, 704 (8th Cir. 1964) (“The failure to agree on the

unanswered interrogatory did not vitiate the otherwise unanimous verdict

effectively disposing of the issues submitted.”). 

Therefore, the district court correctly determined that the special verdict

form returned by the jury in this case was reconcilable and not inconsistent. 

Indeed, the jury was simply following the clear language of instruction 28 which

provided that, should the jury reach a unanimous “no” answer to either of the

preliminary questions on the special verdict form, they were to return a verdict in

favor of Dr. Vigil. The jury was unanimous in finding that Dr. Vigil was not the

proximate cause of any of the Domanns’ injuries. Moreover, the Domanns

concede in their brief before this court that, under New Mexico law, proximate

cause is a necessary element to any recovery in tort. See, e.g., Coleman v. Eddy

Potash, Inc., 905 P.2d 185, 190 (N.M. 1995). Thus, the jury properly returned a

verdict in favor of Dr. Vigil, and the district court did not abuse its discretion in

entering judgment on that verdict and denying the motion for a new trial.

III. Jury Instructions

The second issue raised on appeal by the Domanns concerns a jury

instruction that was submitted by the Domanns but not given by the district court. 

We review a district court’s decision whether to give a particular jury instruction

for abuse of discretion. Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1442 (10th
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Cir. 1997), vacated on other grounds by Eddy Potash, Inc. v. Harrison, 524 U.S.

947 (1998). The Domanns’ suit alleged that Dr. Vigil had been negligent by

failing to perform the hysterectomy on Mrs. Domann soon enough. However, the

Domanns failed to provide any expert medical testimony that the timing of the

hysterectomy was in any way negligent or a deviation from the standard of care.

The legal substance of jury instructions in a diversity case such as this one

is a matter of state law. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1500 (10th

Cir. 1996). Under New Mexico law, in order to establish a deviation from the

standard of care, medical expert testimony is required where the alleged

negligence occurs within an area of knowledge in which laymen would be

presumed uninformed. Gerety v. Demers, 589 P.2d 180, 195 (N.M. 1978);

Pharmaseal Labs., Inc. v. Goffe, 568 P.2d 589, 594 (N.M. 1977). At the close of

the evidence, Dr. Vigil objected to the inclusion of the jury instruction concerning

the Domanns’ delayed hysterectomy theory of negligence. Dr. Vigil objected on

the grounds that no medical expert testimony had been offered to show that the

timing of the hysterectomy was a deviation from the standard of care. The district

court agreed and struck the delayed hysterectomy theory of negligence from the

jury instructions. We find no abuse of discretion in this decision. The record

contains no medical expert testimony stating that Dr. Vigil’s decision to perform

the hysterectomy when she did was negligent. Further, the Domanns cannot point
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to any such testimony on appeal. The district court correctly excluded the

instruction on the Domanns’ delayed hysterectomy theory of negligence.

IV. Conclusion

We hold that, when a jury instruction such as instruction 28 is given and a

jury returns a special verdict form with a unanimous answer “no” to the question

of proximate cause, it is not an abuse of discretion for the district court to enter

judgment on that verdict and deny a motion for a new trial even where the jury

could not reach a unanimous answer to the question of negligence. We further

hold that the district court did not abuse its discretion when it excluded the jury

instruction on a delayed hysterectomy theory of negligence. Finally, because we

hold for Dr. Vigil on the issues discussed above, the question of whether the

district court properly excluded evidence of the Domanns’ medical bills from trial

is moot. AFFIRMED.