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Zander v. Workforce Safety and Insurance12/19/2003
work injury. Exhibit B44 at 33-35.
51. The medical evidence is not clear and convincing that Zander's work injury is the sole cause of his current condition as the Bureau interprets the provisions of N.D.C.C. ยง 65-05-35. Neither Dr. Nygaard or Dr. Fyfe could say with 100 percent certainty that the work injury was the sole cause of the current condition.
The ALJ's recommended findings, conclusions, and order were adopted by WSI as its final order.
[ ] WSI asks us to view its description of the clear and convincing evidence standard in its argument to the ALJ as somewhat in the nature of hyperbole. However, it is clear from the ALJ's analysis and findings that the ALJ embraced the hyperbole as the definition of clear and convincing evidence. That definition is not in accord with the prior holdings of this Court.
[ ] "Clear and convincing evidence" does not require a showing by "100 per cent certainty" or "absolute certainty." This Court, in a long line of cases, has repeatedly held that clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true. See, e.g., In re Adoption of J.M.H., 1997 ND 99, 7, 564 N.W.2d 623; State v. Schneider, 550 N.W.2d 405, 410 (N.D. 1996); In re Adoption of J.W.M., 532 N.W.2d 372, 378 (N.D. 1995); In re Estate of Stanton, 472 N.W.2d 741, 744 (N.D. 1991); Black v. Peterson, 442 N.W.2d 426, 429 (N.D. 1989); McCarney v. Knudsen, 342 N.W.2d 380, 385 (N.D. 1983); Pritchett v. Executive Dir. of the Soc. Serv. Bd., 325 N.W.2d 217, 220 (N.D. 1982); Zundel v. Zundel, 278 N.W.2d 123, 130 (N.D. 1979).
[ ] The Pattern Jury Instruction on clear and convincing evidence incorporates this standard:
Clear and convincing evidence means that the evidence leads you to a firm belief or conviction that the allegations are true. This is a higher standard of proof than proof by the greater weight of the evidence. The evidence presented need not be undisputed to be clear and convincing.
N.D.J.I. C-1.41.
[ ] In Zundel, this Court further explained the clear and convincing evidence standard: The plain language of prior opinions of this court have stated a clear and convincing standard of proof is the necessary requirement to the establishment of an implied trust. Not only does the weight of evidence required to meet such a standard not rise to the level of that required to meet the standard of beyond a reasonable doubt, but also the evidence need not be undisputed to reach the clear and convincing standard. Rather, under the clear and convincing standard, the evidence must be such that the trier of fact is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction.
. . . . The trier of fact is always given an opportunity to observe the demeanor of the witness, to weigh, judge, test, and compare evidence in connection with all the facts and circumstances in evidence. The trier of fact reaches its decision only after this weighing process is complete. The existence of conflicting testimony or other explanations of the evidence does not prevent the factfinder from reaching a conclusion the evidence is clear and convincing or even clear beyond a reasonable doubt.
Zundel, 278 N.W.2d at 129-30 (citations omitted).
[ ] Our prior caselaw clearly indicates that clear and convincing evidence requires more than a mere preponderance of the evidence, but something less than proof beyond a reasonable doubt or undisputed evidence. See Schneider, 550 N.W.2d at 409-10; Zundel, 278 N.W.2d at 130. In the context of this case, there was no requirement that the evidence on the cause of
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