## 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 B ranch, and James P. Lyle, with him on the briefs), The Branch Law Firm, Albuq uerque, New Mexico, for Appellants. Alice Tomlinson Lorenz (Jennifer L. Stone, with heron the brief), Miller, Stratvert & Torgerson, P.A., Albuquerque, New Mexic o, for Appellee.

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

TACHA , Chief Circuit Judge.
In this medical malpractice case, appellants Ken an d Cynthia Domann challenge the jury verdict below as incomplete and inconsistent. The Domanns-2-

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 jurisdict ion pursuant to 28 U.S.C. § 1291 and affirm. I. Background The Domanns moved to New Mexico in the spring of 19 96. At the time, Mrs. Domann was pregnant. Upon arrival in New Mexi co, she began receiving obstetrical care from the appellee, Dr. Debbie Vigi l, M.D. On October 31, 1996, Dr. Vigil admitted Mrs. Domann to St. Vincent’s Hos pital after she had developed symptoms consistent with mild preeclampsi a. Labor was induced and the following morning, a healthy baby girl was deli vered. However, following delivery, Mrs. Domann’s placenta did not deliver sp ontaneously. After Dr. Vigil and a consulting doctor, Dr. Cleveland Pardue, atte mpted unsuccessfully to remove the placenta manually, they made the decisio n to move Mrs. Domann to the operating room, place her under a general anest hesia, 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 c ardiac arrest. After stabilizing Mrs. Domann’s heart rate, Dr. Vigil dec ided to perform an immediate hysterectomy assisted by a second consulting physic ian, Dr. Lance Mikkelsen.1 An amniotic fluid embolism is an allergic reactio n to the tissue of the

baby entering the mother’s circulation which can af fect the heart’s ability to pump effectively. Systemic inflammatory response s yndrome is an immunologic reaction where the blood vessels start leaking the water that is contained in the blood, creating an inability to maintain adequate b lood pressure. -3- During the operation, due to high levels of blood l oss 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. Doman n in the operating room and diagnosed her with amniotic fluid emboli and sy stemic inflammatory response syndrome. 1 Amniotic fluid emboli can result in disseminated intravascular coagulopathy(“DIC”), a condition where the body’s clotting sys tem goes awry and microscopic clots are formed througho ut the body blocking the blood supply to vital organs. At approximately 1:1 5 p.m., Dr. Shaffer ordered Heparin to treat what he believed was DIC induced b y amniotic fluid emboli. Fresh frozen plasma was ordered but withheld from M s. Domann while the Heparin was administered. Mrs. Domann received fou r 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 per ipheral nerve impairment and is still progressing in her recovery. Following Mrs. Domann’s release from the hospital, the Domanns filed suit2 Placenta accreta is a condition where the placent a has grown through the

placental membrane and into the uterine wall. -4- against Dr. Vigil. The Domanns alleged that Dr. Vi gil was negligent in the following ways: (1) by failing to properly recogniz e and manage extensive hemorrhaging during Mrs. Domann’s post-partum cours e; (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 enoughand instead approving the decision of Dr. Shaffer to administer Heparin. Evi dence was presented at trial by medical witnesses that Mrs. Domann had suffered an amniotic fluid embolism complicated by DIC and placental accreta 2 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 underesti mating 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 specia l verdict form which was accepted by the district court. The special ve rdict form included two preliminary questions. The first asked the jury to determine whether Dr. Vigil-5-

had been negligent, and the second asked the jury t o determine whether any negligence of Dr. Vigil had been the proximate caus e of any of the Domanns’ injuries. The Domanns also submitted jury instruct ion 28, which was subsequently given to the jury. Instruction 28 states: After considering the evidence and these instructio ns as a whole the preliminary questions presented for you to answer o n the special verdict form are as follows: 1. Was Dr. Debbie Vigil negligent? 2. Was any negligence of Dr. Debbie Vigil a proximat e 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 Vig il 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 o therwise answer the questions required of you on the special verdict fo rm 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 th at it had reached a unanimous verdict. Upon reading the verdict, the d istrict 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 fill ed out and subsequently-6-

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 incons istent and incomplete. We review a district court’s refusal to grant a new tr ial based on a finding that the jury verdict is not inconsistent for abuse of discr etion. 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 ashowing 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 de monstrates “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 t he jury’s verdict. Harvey , 873 F.2d at 1348; Heno v. Sprint/United Mgmt. Co. , 208 F.3d 847, 852 (10th Cir.-7-

2000). We find no abuse of discretion in the district court’s determination that the jury verdict in this case was not inconsistent or i ncomplete. 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 d oes not vitiate an otherwise unanimous verdict where the unanimous answers to th e 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 t o 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 u nanimous answers to some of the questions on a special verdict form the “trial judg e [can] enter judgment on the basis of the unanimous verdicts if they are disposi tive 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 proxim ate 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 judgm ent for defendant” (internal quotation marks omitted)); Skyway Aviation Corp. v. Minneapolis, Northfield &-8-

Southern Ry. Co. , 326 F.2d 701, 704 (8th Cir. 1964) (“The failure t o agree on the unanswered interrogatory did not vitiate the otherw ise 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 reconcil able and not inconsistent. Indeed, the jury was simply following the clear lan guage of instruction 28 which provided that, should the jury reach a unanimous “n o” 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 find ing that Dr. Vigil was not the proximate cause of any of the Domanns’ injuries. M oreover, the Domanns concede in their brief before this court that, unde r 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 pr operly returned a verdict in favor of Dr. Vigil, and the district cou rt did not abuse its discretion in entering judgment on that verdict and denying the m otion for a new trial. III. Jury Instructions The second issue raised on appeal by the Domanns co ncerns a jury instruction that was submitted by the Domanns but n ot given by the district court. We review a district court’s decision whether to gi ve a particular jury instruction for abuse of discretion. Harrison v. Eddy Potash, Inc. , 112 F.3d 1437, 1442 (10th-9-

Cir. 1997), vacated on other grounds byEddy Potash, Inc. v. Harrison , 524 U.S. 947 (1998). The Domanns’ suit alleged that Dr. Vig il had been negligent by failing to perform the hysterectomy on Mrs. Domann soon enough. However, the Domanns failed to provide any expert medical testim ony that the timing of the hysterectomy was in any way negligent or a deviatio n from the standard of care. The legal substance of jury instructions in a diver sity 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 requi red where the alleged negligence occurs within an area of knowledge in wh ich 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 o f the jury instruction concerning the Domanns’ delayed hysterectomy theory of neglige nce. Dr. Vigil objected on the grounds that no medical expert testimony had be en 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 th eory of negligence from the jury instructions. We find no abuse of discretion in this decision. The record contains no medical expert testimony stating that D r. Vigil’s decision to perform the hysterectomy when she did was negligent. Furth er, the Domanns cannot point-10-

to any such testimony on appeal. The district court correctly excluded the instruction on the Domanns’ delayed hysterectomy th eory 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 unanimou s answer “no” to the question of proximate cause, it is not an abuse of discretio n for the district court to enter judgment on that verdict and deny a motion for a ne w 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 disc retion when it excluded the jury instruction on a delayed hysterectomy theory of neg ligence. Finally, because we hold for Dr. Vigil on the issues discussed above, the question of whether the district court properly excluded evidence of the Do manns’ medical bills from trial is moot. AFFIRMED.