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IN THE COURT OF APPEALS OF IOWA No. 7-613 / 06-2039 Filed December 28, 2007 KAREN SWANTZ, Individually, and as Parent and Next Friend of TONYA LEIK, an Adult, CARMEN TRAMMELL, an Adult, and NICOLE LARA, an Adult, Plaintiffs-Appellees/Cross-Appellants, vs. ANTHONY COLBY, M.D. and MEDICAL ASSOCIATES OF IOWA CITY, P.L.C., Defendants-Appellants/Cross-Appelees. ________________________________________________________________ Appeal from the Iowa District Court for Johnson County, David L. Baker, Judge.

The defendants appeal from the district court's ruling granting a new trial following the jury's verdict in their favor on the plaintiffs' medical malpractice claim. REVERSED.

Greg A. Egbers and Edward J. Rose of Betty, Neuman & McMahon, P.L.C., Davenport, for appellants. Martin A. Diaz of Martin Diaz Law Firm, Iowa City, for appellees.

Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.

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EISENHAUER, J. Anthony Colby, M.D. and Medical Associates, P.L.C. appeal from the district court's ruling granting a new trial following the jury's verdict in their favor on the plaintiffs' medical malpractice claim. They contend the district court

abused its discretion in granting the motion. They also contend the court erred in excluding certain evidence from trial and in failing to instruct the jury on the comparative fault theory. The plaintiffs, Nicole Lara and Tonya Leik, cross-

appeal, contending the court should only have granted new trial on the issue of damages, or in the alternative, should have granted judgment not withstanding the verdict. Because there is sufficient evidence to support the jury's conclusion Dr. Colby's decisions were not the proximate cause of the plaintiffs' damage, we reverse the district court's order granting new trial. I. Background Facts and Proceedings. Karen Swantz began receiving treatment from Dr. Anthony Colby in March of 1990. In June of 1993 he gave her a complete physical examination at her request. For the four years after, Swantz received periodic treatment from Dr. Colby regarding specific complaints. Swantz did not receive care from Dr. Colby again until 1999. She received

treatment from him for dizziness and hypertension, dysuria, low back pain, sinus problems, earaches, and sinus problems, etc. Her last visit to Dr. Colby was on December 20, 2002. It is undisputed that Dr. Colby never advised Swantz

regarding colorectal cancer screening. Karen Swantz was diagnosed with colon cancer in May of 2004. By the time she was symptomatic, her cancer had metastasized and was ultimately terminal. This suit was brought on behalf of her estate by its executor, Tonya

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Leik, against Swantz's personal physician, Dr. Anthony Colby, and his employer, Medical Associates, P.L.C. It alleged Dr. Colby committed medical malpractice in failing to perform proper evaluation and testing for colon cancer. Trial was held in July 2006. The jury's verdict found the defendants

negligent, but that their negligence was not a proximate cause of the plaintiffs' damage. Judgment was entered July 25, 2006. The same day, the plaintiffs filed a motion for new trial and judgment notwithstanding the verdict. On November 17, 2006, the court granted the motion for new trial. The defendants appeal. II. New Trial. The defendants contend the district court abused its

discretion in granting the plaintiffs' motion for new trial. They argue the jury's finding that the defendants' negligence was not a proximate cause of the plaintiffs' damage is supported by substantial evidence. We review the actions of the district court for corrections of errors at law. Iowa R. App. P. 6.4. The standard of our review of a district court's ruling on a motion for new trial depends on the grounds raised in the motion. Clinton

Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). If a motion for new trial is based on a discretionary ground, we review the ruling for abuse of discretion. Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 480 (Iowa 2004). To show an abuse of discretion, the moving party must show the court exercised its discretion on grounds clearly untenable or to an extent clearly unreasonable. Lehigh Clay Prods., Ltd. v. Iowa Dep't of Transp., 512 N.W.2d 541, 543 (Iowa 1994). The district court may grant a new trial under Iowa Rule of Civil Procedure 1.1004(6) when "the verdict, report or decision is not sustained by sufficient

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evidence, or is contrary to law." A new trial may be ordered if a jury verdict is not supported by sufficient evidence and fails to effectuate substantial justice. Olson v. Sumpter, 728 N.W.2d 844, 850 (Iowa 2007). Evidence is substantial if

reasonable minds could find the evidence presented adequate to reach the same findings. Midwest Home Distrib., Inc. v. Domco Indus., Inc., 585 N.W.2d 735, 738 (Iowa 1998). The reason for granting a new trial must fairly appear in the record. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). We view the evidence in the light most favorable to the jury's verdict. Lara v. Thomas, 512 N.W.2d 777, 781 (Iowa 1994). We are slower to interfere with a district court's grant of a new trial than with its denial. Lehigh, 512 N.W.2d at 543. However, such ruling must be

founded upon sound judicial discretion and granted for reasons which fairly appear in the record. Lubin v. Iowa City, 257 Iowa 383, 385, 131 N.W.2d 765, 767 (1965). The court has no right to set aside a verdict just because it might have reached a different conclusion. Id. In jury trials controverted issues of fact are for the jury to decide. That is what juries are for. To hold that a judge should set aside a verdict just because he would have reached a different conclusion would substitute judges for juries. It would relegate juries to unimportant window dressing. That we cannot do. Lantz v. Cook, 256 Iowa 409, 413, 127 N.W.2d 675, 677 (1964). The jury found Dr. Colby breached his duty to Swantz when he failed to advise her of the necessity of obtaining colorectal cancer screening once she reached the age of fifty. However, they found this failure was not the proximate cause of Swantz's death. The trial court found "the jury was confused regarding

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the meaning of the term `proximate cause'" and "the verdict is not sustained by sufficient evidence." There are two components to the proximate-cause inquiry: "(1) the defendant's conduct must have in fact caused the damages; and (2) the policy of the law must require the defendant to be legally responsible for them." Id.; see also Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). With respect to the first component, a plaintiff must at a minimum prove that the damages would not have occurred but for the defendant's negligence. N.W.2d at 17; Gerst, 549 N.W.2d at 817. The but-for test is not the end of the inquiry, however. A plaintiff must also tender proof that defendants' negligence was a substantial factor in bringing about the injury. City of Cedar Falls, 617 N.W.2d at 17; Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567 (Iowa 1997). See generally Restatement City of Cedar Falls, 617

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