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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
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No. 93-3182
STATE OF WISCONSIN
: IN SUPREME COURT
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JOHN STOPPLEWORTH and JACQUELINE STOPPLEWORTH, PLAINTIFFS-APPELLANTS-PETITIONERS, v. REFUSE HIDEAWAY, INC., a Wisconsin corporation, JOHN W. DEBECK, THOMAS G. DEBECK and BITUMINOUS FIRE & MARINE INSURANCE CO., a foreign corporation, DEFENDANTS-RESPONDENTS. |
FILED APRIL 25,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
Review
of a decision of the Court of Appeals. Affirmed.
JANINE P. GESKE,
J. John and Jacqueline Stoppleworth petitioned this court for
review of an unpublished decision of the court of appeals affirming an order of
the Circuit Court for Dane County which dismissed their negligence action
against defendants, John W. DeBeck, Thomas G. DeBeck, Refuse Hideaway, Inc.,
and Bituminous Fire and Marine Insurance Co.
Circuit Court Judge Mark A. Frankel entered the judgment following the
jury's verdict finding that, although the DeBecks and Refuse Hideaway's
negligent operation of the Refuse Hideaway Landfill contaminated surrounding
well water consumed by John Stoppleworth, the defendants' negligence was not
causal of his basal cell carcinoma.
The issue before this court
is the propriety of the circuit court's order precluding any mention to the
jury of the identity of the insurer, Bituminous, as a party to the action. Stoppleworth contends that he is entitled to
a new trial because the prohibition on disclosure of Bituminous' position as
defendant violated a substantial right--that of the right to a "jury trial
inviolate."
Although we conclude that
there is neither a constitutional right nor a statutory requirement to name all
parties, we hereby adopt a procedural rule that, in a jury trial, the court
shall identify all joined parties to the jury panel.[1] We do not disturb the jury's verdict in the
case at hand, however, because we conclude that the order of the circuit court
did not affect any of the plaintiffs' substantial rights. Therefore, we affirm the court of appeals'
decision.
FACTS
The defendants in this
action, John and Tom DeBeck, and Refuse Hideaway, Inc., owners and operators of
the Refuse Hideaway Landfill in the Town of Middleton, Wisconsin, are insured
by Bituminous Fire and Marine Insurance Co. (Bituminous). The plaintiff, John Stoppleworth, initiated
a toxic tort claim against the defendants in which he asserted that their
negligent operation of the landfill resulted in contamination of his parents'
well. Stoppleworth claimed that he was
personally injured by this negligence through exposure to chemical contaminants
in the well water which he asserted was a substantial factor in causing his
basal cell carcinoma, a form of skin cancer.[2]
The defendants filed a motion
in limine, requesting that there be no mention of Bituminous before the jury
and that the insurer's name be removed from the caption and the jury
verdict. The defendants argued that the
fact that the DeBecks and Refuse Hideaway, Inc. were insured was irrelevant to
the issues before the court, and that to inform the jury of the insurer's role
as a defendant would be unduly prejudicial.[3] They based these arguments on studies of
jury behavior indicating that when juries are aware defendants are insured,
they tend to award higher damages.[4] The plaintiffs countered that any potential
prejudice would be allayed by instructing the jurors that their knowledge of
the existence of an insurance company as a defendant should have no bearing on
their determination of liability or nonliability.[5]
The circuit court granted the
defendants' motion and ordered that the identity of Bituminous as a defendant
not be revealed to the jury in any manner.
The court reasoned that, although the insurer was a party, "they're
only a party really for purposes that don't concern the jury."
Uncontroverted evidence
showed that the Stoppleworths' well contained volatile organic chemical
contaminants. The defendants proceeded
on the theory that John Stoppleworth's skin cancer was not caused by exposure
to any of these chemicals, but rather by chronic exposure to the sun. The defense presented evidence that, despite
Stoppleworth's claims that because of his fair skin he never went out in the
sun without sun screen, he had been sunburned numerous times. Childhood photographs showed him outdoors
without sun protection and with varying degrees of sunburn. John Stoppleworth testified that about once
a year, while he was a teenager, he would burn to the point of peeling. Testimony by family members revealed that he
did quite a bit of outdoor work landscaping at his home. John Stoppleworth also spent time on the
lake in his pontoon boat and water-skiing.
He and his wife honeymooned in Jamaica and had recently taken a
seven-day Caribbean cruise.
The defense presented two
expert witnesses who testified to a reasonable degree of medical probability
that John Stoppleworth's cancer was not caused by exposure to the contaminants
in his parents' well water. Defense
witness, toxicologist Dr. Gots, testified that of the chemicals found in the
Stoppleworths' well only one, vinyl chloride, is a known human carcinogen. No epidemiological studies have linked vinyl
chloride to human basal cell carcinoma.
A second expert witness for the defense, Dr. Barnett, is a board
certified dermatologist who testified that he had treated more than 1,400 basal
cell carcinomas over the previous ten years.
He testified that, based on his own experience and an extensive search
of the medical research literature, there were no indications that toxins such
as vinyl chloride had ever been linked to development of basal cell skin
cancer. Finally, on cross-examination
of the plaintiffs' expert, Dr. Bryan, the defense elicited confirmation that if
exposure to vinyl chloride in the well water were a substantial factor in
causing John Stoppleworth's basal cell carcinoma, it "would be the first
case that [Dr. Bryan was] aware of in the world."
The jury returned a verdict
finding the defendants negligent in the operation of Refuse Hideaway
Landfill. However, the jury determined
that this negligence was not a cause of John Stoppleworth's skin cancer. The circuit court thereby issued an order
for judgment dismissing the Stoppleworths' action and subsequently denied their
motion for a new trial. The court of
appeals affirmed on the basis that, even if precluding mention of Bituminous
was erroneous, the Stoppleworths had not demonstrated that they were prejudiced
by the circuit court's ruling or that their substantial rights were affected
and, therefore, they were not entitled to a new trial. This court accepted the plaintiffs' petition
for review.
I.
This court must determine
whether there exists a statutory or constitutional right to name all parties
joined in a lawsuit. This is a question of law which we review de novo. Ball v. District No. 4, Area Board,
117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984).
The Stoppleworths argue that
they have both a statutory and constitutional right to reveal the identities of
joined parties to the jury. They find
support for their statutory claim in Wis. Stat. § 632.24 (direct action against
insurer)[6]
and Wis. Stat. § 803.04(2)(a) (permitting plaintiff to join insurer as a
party defendant)[7]. The Stoppleworths assert that by creating
these statutory mechanisms the legislature expressed a public policy to
facilitate the joinder of insurers as party defendants in negligence actions
and that the identity of the insurer as a defendant is pivotal. Further, they argue that these statutes
implicitly confer on plaintiffs the right to disclose the identity of all
defendants. They cite the lack of
statutory provisions explicitly allowing an insurer to "secrete or
exclude" its identity from the jury as indicative of legislative intent
that no such "privilege" should be recognized.
In contrast, the defendants
posit that the primary legislative purpose behind the direct action statutes is
one of judicial economy--to protect successful plaintiffs from having to pursue
insolvent defendants before proceeding against the defendants' insurers. In support of this interpretation, they cite
Decade's Monthly Fund v. Whyte & Hirschboeck, 173 Wis. 2d 665, 495
N.W.2d 335 (1993), in which we traced the history of Wisconsin's direct action
statutes. There, we noted that, as
early as 1927, the legislative purposes had been identified as including the
desire to:
save litigation and reduce the
expense by determining the rights of all parties in a single action which is
usually defended by the insurance carrier. [To] expedite the final settlement
of litigation and the final payment to the injured person, if he be entitled to
recovery. [To] place the burden upon the insurance carrier who has been
compensated in advance for its liability to pay the damage assessed for such
injuries to person and damage to property as have been caused by actionable
negligence on the part of the person insured.
Id. at 675 (quoting Ducommun
v. Inter-State Exchange, 193 Wis. 179, 185, 212 N.W. 289 (1927)). Thus we have recognized that the core
functions of these statutes are to expedite the litigation process and to
facilitate a successful claimant's access to compensation.
We find the defendants'
arguments most persuasive on this point--what the jury knows or doesn't know of
the identities of the various parties is not even contemplated by these
statutes. We conclude that there is no
support for the plaintiffs' claim that a statutory right exists to name all
joined parties. The legislative history
does not indicate an intent to convey such a right, nor has this court
previously recognized such a statutory right.
We decline to do so now. The Stoppleworths contend that this court
implicitly recognized the right to name all parties in Vuchetich v. General
Casualty Co., 270 Wis. 552, 72 N.W.2d 389 (1955). Specifically, they argue that Vuchetich established
precedent that the identity of an insurer defendant must always be revealed to
the jury. There, we reversed a circuit
court order enjoining the plaintiff from making any reference to the defendant
insurance company,[8] stating:
The proposition that, while one
may have his action against a designated defendant, he may not refer to that
defendant or divulge its name during the litigation presents a paradox so
startling that only the most direct and positive authority will convince us of
its truth.
Id. at 555. Although we found error in that case, this
court did not base its decision on the existence of a "right" to have
the parties' identities revealed to the jury.
Rather, we concluded that the order, which prohibited any voir dire
questioning of the jurors or witnesses as to connections with the defendant
insurer, was erroneous because it prevented the plaintiff from investigating
potential bias.
Here, however, the circuit
court permitted exploration during voir dire as to whether any of the jurors
had been previously involved in any litigation involving insurance
companies. Additionally, the court
"was prepared to go further if there was any indication that there might
be any connection between any of the jurors and the defendant insurance
company." We do not find Vuchetich
controlling.
II.
The Stoppleworths next
contend that the circuit court's order barring mention of Bituminous violated
their right to a "jury trial inviolate" as guaranteed under the
Wisconsin Constitution, art. I, § 5.
They argue that "certainly the fundamental right to a jury trial
must include the right of a plaintiff to identify to a jury those parties to
the litigation who appear and participate in the proceeding." The plaintiffs cite no authority in support
of their claim that the circuit court's order violated the constitutional right
to trial by jury. Their argument is
based on inference and assumption and we do not find it convincing.[9]
Although we find neither a
statutory nor a constitutional right to have all parties identified, we
conclude that in a jury trial, as a procedural rule, the court should apprise
the jurors of the names of all the parties to the lawsuit.[10] This rule shall apply in all cases, not just
those involving insurance companies.[11] The
defendants based their motion to exclude mention of Bituminous on the statutes
controlling rules of evidence in Wisconsin.
The name of any given joined party simply is not evidence.[12] Therefore, the rules of evidence should not
be used to analyze the potential effect of advising the jury of the existence
of a specific party to a lawsuit.
However, just as trial judges are frequently confronted with the
potential prejudicial effect on the jury of extraneous information, a circuit
court can always give a cautionary instruction when it wants to protect against
unfair prejudice. In a situation such
as this case, we agree with the Stoppleworths' contention that any potential
for prejudice is aptly addressed by use of the curative instruction, Wis
JI—Civil 125, which reminds jurors that they must be impartial because a
defendant's liability or nonliability is unaffected by whether he or she is
insured.[13]
III.
The Stoppleworths argue that
the failure to mention Bituminous to the jury entitles them to a new
trial. We may not order a new trial
unless, after consideration of the entire proceeding, we determine that a
party's substantial rights have been affected.
Wis. Stat. § 805.18(2). We
conclude that no substantial rights of the Stoppleworths were affected and
therefore we affirm the order of the circuit court dismissing their negligence
claim in accordance with the jury's verdict.
The only specific harm that
the Stoppleworths claim to have suffered because of the circuit court's order
was that they were restricted from conducting a meaningful cross-examination of
the defense's expert witness, Dr. Gots, as to possible prejudice or bias. They argue that their attempts to impeach
Dr. Gots' credibility were substantially curtailed because they could not
establish his "close association" with the insurance industry.[14] The Stoppleworths acknowledge that the
court's order did not expressly forbid them to mention insurance in general or
even Dr. Gots' previous work for insurance defendants in particular. However, they contend that such a line of
questioning was not pursued because it would have been "meaningless"
to a jury unaware that there was an insurer defendant in the instant action.
After an examination of the
entire proceeding as reflected in the record, we are not convinced by this
argument.[15] The Stoppleworths not only had ample
opportunity to impeach Dr. Gots' credibility by painting him as a mouthpiece
for the defense, but they ably exercised that opportunity. The jury was made aware: that Dr. Gots
specializes in the area of forensic toxicology; that he has published articles
in that area; that his company is a member of the Defense Research Institute
which is devoted to litigation defense; that he has given many presentations
for that organization aimed at advising attorneys on how to defend toxic tort
cases; and that he has previously testified for the defense in cases in which
cancer causation is an issue.
Additionally, Dr. Gots testified that, in this case, he had been hired
by the defense and was being paid at the rate of $275 per hour. This record does not support the claim that
the plaintiffs' right to cross-examination was substantially affected.
Because we conclude that the
order prohibiting the identification of Bituminous as a defendant did not
affect the Stoppleworths' substantial rights, they are not entitled to a new
trial and we affirm the decision reached by the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
ROLAND B. DAY, C.J. (concurring). I join the
mandate of the majority opinion, and agree with its conclusion that a court in
a jury trial "should apprise the jurors of the names of all the parties to
the lawsuit." Majority op. at
11. I further agree that any prejudice
which may result from the announcement of an insurer's name is easily rectified
through a curative jury instruction. I
write separately because I disagree with the majority's conclusion that this
court has not previously recognized a right to name all joined parties. As the majority observes, this court stated
in Vuchetich v. General Casualty Co., 270 Wis. 552, 555, 72 N.W.2d 389
(1955):
The
proposition that, while one may have his action against a designated defendant,
he may not refer to that defendant or divulge its name during the litigation
presents a paradox so startling that only the most direct and positive
authority will convince us of its truth.
The majority distinguishes Vuchetich on the grounds that the
order at issue in the case was erroneous solely because of the limits it placed
on investigating possible bias among jurors through voir dire questioning. However, the order at issue in Vuchetich
was not limited to voir dire, but prohibited mention of the defendant insurance
company's name during the entire trial.
See id. at 553.
The Vuchetich court referred to limitations on voir dire
questioning as but one example arising from previous case law of this court
allowing the mention of an insurance company's name in a good-faith inquiry to
determine possible interest on the part of a juror; the court also noted cases
allowing comments of counsel on insurance as a second example. See id. at 555 (citing
cases). The Vuchetich court's
conclusion, that the order prohibiting mention of the insurance company
throughout the trial was erroneous, is clearly based on several sources:
"We are unable to read anything out of [the predecessor statute to Wis.
Stat. § 803.04(2)] which authorizes a court to prohibit such good-faith
inquiry or comment." Because Vuchetich
was not merely concerned with voir dire, the majority errs in its decision that
the case is not controlling here. See
majority op. at 10. Vuchetich
provides such a clear statement of the law that no one other than the parties
in the present matter has raised the issue in the forty years since the case
was decided!
Thus, although I concur in
the result of the majority opinion, I would conclude that this court had
previously recognized a right to name all parties in Vuchetich.
I am authorized to state that
Justice WILLIAM A. BABLITCH and Justice JON P. WILCOX join this concurring
opinion.
SUPREME
COURT OF WISCONSIN
Case No.: 93-3182
Complete Title
of Case: John Stoppleworth and Jacqueline
Stoppleworth,
Plaintiffs-Appellants-Petitioners,
v.
Refuse Hideaway, Inc., a Wisconsin corporation,
John W. DeBeck, Thomas DeBeck and Bituminous
Fire & Marine Insurance Company, a foreign
corporation,
Defendants-Respondents.
_______________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 191
Wis. 2d 826, 532 N.W.2d 144
(Ct. App. 1995)
UNPUBLISHED
Opinion Filed: April 25, 1996
Submitted on Briefs:
Oral Argument: January
9, 1996
Source of APPEAL
COURT: Circuit
COUNTY: Dane
JUDGE: MARK A. FRANKEL
JUSTICES:
Concurred: DAY, C.J. opinion filed
BABLITCH & WILCOX,
J.J., join
Dissented:
Not Participating:
93-3182 Stoppleworth v. Refuse Hideaway
ATTORNEYS: For the plaintiffs-appellants-petitioners
there were briefs by Arvid A. Sather and Michael, Best &
Friedrich, Madison and oral argument by Arvid A. Sather.
For the
defendants-respondents there was a brief by J. Ric Gass, Mark M. Leitner
and Kravit, Gass & Weber, S.C., Milwaukee and oral argument by J.
Ric Gass.
Amicus
curiae brief was filed by Craig A. Kubiak and Liebmann, Conway, Olejniczak
& Jerry, S.C., Green Bay for The Civil Trial Counsel of Wisconsin and
The Wisconsin Insurance Alliance.
[1] By thus holding, we are not stating that each and every time the case is called that the court must mention every party's name. We recognize that in the interests of judicial efficiency, once all the joined parties have been properly identified to the jury, the court may abbreviate further references to a lengthy caption.
[2] John's wife, Jacqueline Stoppleworth, joined in the action as a plaintiff claiming loss of consortium.
[3] In support of this argument, the defendants cited the following Wisconsin rules of evidence. Under Wis. Stat. § 904.01, "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence that is irrelevant is inadmissible. Wis. Stat. § 904.02. Further, even relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, . . ." Wis. Stat. § 904.03.
[4] The defendants relied upon the following sources: Dale W. Broader, The University of Chicago Jury Project, 38 Neb. L. Rev. 744, 754 (1959) (damage awards are lowest when jury is not aware defendant has insurance and are highest when that information is revealed and a correctional instruction is given in response to an objection); James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. Legal Studies 751, 755 (1985) (defendants who can be presumed to be heavily insured tend to be assessed larger damage awards); see also Valerie Hans and M. David Ermann, Responses to Corporate Versus Individual Wrong Doing, 13 Law and Human Behavior 151 (1989).
[5] This
admonition is found in Wis JI—Civil 125:
References to an insurance company have been made in this case. The title to this case included an insurance company as a defendant. There is no question as to insurance in the special verdict, however. This is because no dispute of fact concerning insurance is involved in this case. In addition, the liability or nonliability of (defendant) for the damages claimed is exactly the same, whether (defendant) is or is not covered by insurance. Under your oath as jurors, you are duty bound to be impartial toward all the parties to this case. So, you should answer the questions in the verdict just as you would if there were no insurance company in this case.
[6] Wis.
Stat. § 632.24, reads:
Direct action against insurer. Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amount stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.
[7] Wis.
Stat. § 803.04(2)(a), reads in relevant part:
In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured.
[8] The insurer had been joined as a party under Wis. Stat. § 260.11(1) (1953-54), the precursor to Wis. Stat. § 803.04(2).
[9] Additionally, the defendants argued that plaintiffs' constitutional claim was fatally flawed because this court has held that "[t]he right preserved in Art. I., sec. 5 of the Wisconsin Constitution is simply the right as it existed at the time of the adoption of [the] constitution in 1848." In Interest of N.E., 122 Wis. 2d 198, 203, 361 N.W.2d 693 (1985) (finding juvenile's right to jury trial in delinquency proceedings strictly statutory, not constitutional); see also Bergren v. Staples, 263 Wis. 477, 481-83, 57 N.W.2d 714 (1953) (finding no constitutional right to jury trial in action against third-party tortfeasor by worker's compensation insurer). Thus, a claim that the state constitution prevents infringement upon the right to a jury trial in actions that did not exist in 1848 will be unavailing. The first statute permitting direct action against an insurer was not enacted until 1925. See 1925 Wis. Laws ch. 341 (creating Wis. Stat. § 85.25). Because we conclude that identification of parties does not impact the right to jury trial, we need not further pursue this argument.
[10] A practical reason for this rule was illustrated during oral argument in the following hypothetical: if a circuit court issued an order similar to the one issued here in a direct action suit where the claim had been brought only against the insurer and not the alleged tortfeasor, there would be no defendant to be named to the jury.
[11] Based on our decision today, we overrule that portion of Estate of Burgess v. Peterson, 196 Wis. 2d 55, 75, 537 N.W.2d 115 (Ct. App. 1995), in which the court of appeals determined that it was within the discretionary powers of a circuit court to alter an action's caption by removing the name of a party.
[12]
According to Black's Law Dictionary 555 (6th ed. 1990),
"evidence" is defined as:
Testimony, writings, or material objects offered in proof of an alleged fact or proposition. That probative material, legally received, by which the tribunal may be lawfully persuaded of the truth or falsity of a fact in issue.
[13] We note
that the following commentary on Wis. Stat. § 904.11 (which prohibits the
introduction of evidence that a party is insured on the issue of whether he or
she acted negligently or otherwise wrongfully) supports our analysis and
conclusion:
The exclusionary rule in W.S.A.
904.11 is [] not applicable where a direct action is brought against an
insurance company pursuant to W.S.A. 632.24.
In direct actions, the jury is informed by the case caption that an
insurance company is a party to the lawsuit.
This "information" cannot, however, be used as proof of
liability. Rather, the jury should,
upon request, be instructed that the liability or nonliability of the parties
is exactly the same regardless of whether there is insurance coverage.
7 Daniel D. Blinka, Wisconsin Practice - Evidence § 411.1 (1991) (footnotes omitted).
[14] The Stoppleworths did not make an offer of proof detailing what specific testimony they were precluded from introducing regarding Dr. Gots' connection to the insurance industry.
[15] Application of the procedural rule we announce today should circumvent future claims, such as those made by the petitioners, of unfair restriction of voir dire or cross-examination. As in all cases, once joined parties are identified to the jury panel, the parties are free to ask any relevant questions of the potential jurors and the witnesses.