(dissenting).
I respectfully dissent. “Stuff happens” is a cute phrase on a bumper sticker, but it should not be included in jury instructions. I would hold the district court committed reversible error in giving the “mere fact of injury” instruction. My analysis begins with the observation that the instruction was entirely unnecessary. The jury was told through other instructions everything they needed to know about the definition of negligence. There simply was no need to remind the jury that the fact Mr. Smith died did not mean Dr. Koslow was negligent in performing the procedure.
That the instruction was unnecessary is not, however, its principal defect. The court’s instructions on the law should not give undue prominence to any part of the case. Stover v. Lakeland Square Owners Ass’n, 43 N.W.2d 866, 868 (Iowa 1989). In particular, the instructions should not “overemphasize one party’s theory of the case.” Sunrise Dev. Co. v. Iowa Dep’t of Transp., 511 N.W.2d 641, 644 (Iowa Ct.App.1993). The “mere fact of injury” instruction violated these cardinal principles by gratuitously affirming a central premise of Dr. Koslow’s theory of defense: Bad things occasionally happen during emergent medical treatments despite a physician’s compliance with the relevant standard of care.
The worst feature of the challenged instruction was its capacity to communicate to the jury the notion the court doubted the treatment provided by Dr. Koslow fell below the relevant standard of care. I believe a reasonable juror could interpret the “mere fact of injury” instruction in this untoward way because the definition of negligence as conduct falling below the standard of care had already been given in other instructions. Why, a reasonable juror could wonder, would the court feel the need to augment that definition? Why, a reasonable juror could inquire, after properly defining the concept of negligence, would the court give a separate instruction emphasizing the essence of one of Dr. Kos-low’s principal arguments — that bad outcomes can occur in the absence of negligence — unless the court has doubts about the merits of the plaintiffs’ claim? Although the “mere fact of injury” instruction communicated an accurate statement of law, it was in my view completely unnecessary and prejudicial.
I believe the challenged instruction was also inappropriate because it could be understood by a reasonable juror as a backhanded comment on the evidence. See Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993) (instructions by the court that comment “on potential factual scenarios in which a standard of care may or may not have been adhered to” are impermissi*684ble comments on the evidence). It commented on the evidence by reminding the jurors they could find the plaintiffs produced no evidence other than the fact of injury to support their claim. Such a suggestion in the court’s jury instructions was in my view inappropriate just as it would have been improper to remind jurors in the instructions that frivolous negligence cases are not submitted to the jury.
The majority suggests the instruction was appropriate given the substance of Smith’s counsel’s closing argument. Counsel’s argument suggested the jury must decide whether Mr. Smith’s aneurysm burst during the procedure either coincidentally or as a consequence of the doctor’s treatment. The majority interprets this argument as an assertion the bad outcome of the procedure should be viewed by the jury as conclusive evidence of negligence. In my view, counsel’s argument can be understood as a more nuanced attempt to persuade the jury that the outcome was not coincidental, and was a consequence of the technique used by Dr. Koslow which precipitated a tear in the surface of the aneurysm. The question of whether the doctor’s choice and execution of the technique fell below the standard of care was a separate and distinct question for the jury to decide in conformity with appropriate instructions defining the plaintiffs burden to prove negligence and proximate cause. The argument made by Smith’s counsel did not suggest otherwise, and it neither provoked nor justified the district court’s deployment of the “mere fact of injury” instruction.
I would reverse and remand this case for a new trial.
WIGGINS, J., joins this dissent.