This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1007

 

 

Julie Gaarder, et al.,

Appellants,

 

vs.

 

Estate of Ortwin Norman Ostlie,

deceased, et al.,

Respondents,

 

Mark Gaarder,

Respondent,

 

and

 

Mark Gaarder,

Appellant,

 

vs.

 

Estate of Ortwin Norman Ostlie,

deceased, et al.,

Respondents.

 

Filed March 7, 2000

Affirmed

Shumaker, Judge

 

McLeod County District Court

File Nos. C7-97-000655, C9-97-457

 

 

Douglas A. Ruhland, Ruhland Law Office, Ltd., 366 Church Street North, PO Box 439, Eden Valley, MN 55329 (for appellants Julie Gaarder, Mark Gaarder, and Blue Cross Blue Shield)

 

William M. Hart, Erik M. Johnson, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South 6th Street, Minneapolis, MN 55402 (for respondents Estate of Ostlie, et al.)

 

Blake W. Duerre, Sean R. Simpson, Arthur, Chapman, Kettering, Smetak & Pikala, 500 Young Quinlan Building, 81 South 9th Street, Minneapolis, MN 55402 (for respondent Mark Gaarder)

 

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

††††††††††† Appellants Mark and Julie Gaarder and Blue Cross Blue Shield of Minnesota appeal from a judgment in a negligence action.They allege as error the trial court's admission of expert medical opinion without foundation and the court's refusal to give certain jury instructions.They also allege that the jury's finding of negligence without direct cause resulted in a perverse verdict.We affirm.

FACTS

††††††††††† On June 14, 1990, Ortwin Ostlie failed to stop for a stop sign at a rural intersection, and his motor vehicle collided with a vehicle driven by Mark Gaarder, who had the right-of-way.

Gaarder and his passenger, Julie Gaarder, were injured.One of Ostlie's passengers was killed and the other injured.Ostlie died from heart complications at some point in the occurrence.

A critical issue in the jury trial of the consolidated lawsuits arising out of the collision was whether Ostlie's heart complications and death preceded the accident.Ostlie had a remote history of heart problems.He had had a heart attack prior to 1980 and bypass surgery in 1980.He showed no symptoms of a heart ailment or an impending heart attack in the weeks, days, or moments immediately prior to the accident.

A witness to the accident testified that he heard Ostlie gasp at the scene and thought Ostlie was breathing.The witness also thought Ostlie was trying to move his head.Dakota County Medical Examiner Dr. John Plunkett gave his expert opinion that the collision caused Ostlie's heart trauma and death.

At the request of the local coroner, Hennepin County Medical Examiner Dr. Garry Peterson performed an autopsy on Ostlie.The coroner asked Dr. Peterson to try to ascertain whether Ostlie had had a cardiac event before the collision or afterward.A few weeks after the autopsy, Dr. Peterson wrote a letter in response to Ostlie's insurer's inquiry, stating:

It is my opinion that Mr. Ostlie died of arteriosclerotic heart disease and that his death preceded the accident.In other words, the accident was an effect rather than a cause of Mr. Ostlie's death.

 

††††††††††† Ruling that the opinion in the letter was merely cumulative of Dr. Peterson's testimony on the issue, the trial court overruled the Gaarders' foundational objection and allowed Dr. Peterson to read the letter to the jury.†† Later, the court sustained an objection to the letter being received as an exhibit.

††††††††††† The attorneys for all parties examined Dr. Peterson as to his opinion of the timing of Ostlie's death.He expressed his views in various forms:

Q. What was your conclusion?

 

A. * * * It was my opinion that he had had some sort of cardiac event that either coincided with or preceded the accident.

 

* * *

 

A. * * * But what I concluded was that the motor vehicle accident was postmortem or perimortem, it happened after or around the time of the death.

 

* * *

 

A. * * * I felt that the heart was the cause of death.

 

Q. Okay.Before the accident?

 

A. Well, I donít' know if I can time it that specifically * * * .

 

* * *

 

Q. Okay.Now my understanding, Doctor, is that perimortem means that it occurred either before or after death?

 

A. The term means around the time of death.It's a broad term.

Q. It could be before or after death?

 

A. Before, during or after.

 

* * *

 

Q. * * * you couldn't tell if these injuries had occurred before, during, or after death?

 

A. I used the term perimortem to say around the time of death.I used a broad term I guess to be more conservative about it.But if you asked what my opinion was and is, I think I've given it.

 

Q. * * * my question is that, yes, you were not sure it occurred before?

 

A. Yeah, I'll concede that perimortem would include both before and after, but very briefly before or after.

 

* * *

 

Q. * * * [Ostlie's death] could have occurred at or even after the impact?

 

A. The way that I wrote it there I think it acknowledges that that's a possibility.I still would agree, I still believe that it occurred before the accident.

 

* * *

 

Q. The letter is stronger than your actual findings?

 

A. Right.

 

Q. * * * Doctor, would it be correct in stating that the findings in your autopsy report are consistent with death occurring at the time of impact or a few seconds thereafter?

 

A. Yes.

* * *

 

Q. Perimortem is essentially a diagnosis of somewhat uncertainty and that you can't say it occurred before or you can't say it occurred at or you can't say it occurred after; you're just saying it occurred around the time of death; is that correct?

 

A. You use that term because of the imprecision in doing that, that's right.

 

* * *

 

Q. Dr. Peterson, is it fair to say that whether Mr. Ostlie died before, at or after the impact is very difficult to determine, true?

 

A. It's a difficult question, that's right.

 

Q. In fact it may be that it's just too close to call; you just can't call them that close?

 

A. No.I called it.It was asked to do the autopsy with that question in mind.I came up with a conclusion on it.It's a difficult question.I looked at the amount of hemorrhage.I felt that it didn't match the traumatic injuries I found.That was a conclusion I came to.I think some of the things that can qualify or affect that decision have been brought out here, but that was the opinion I came to.I think it was a reasonable one.

 

* * *

 

A. * * * I do believe that there was a cardiac event prior to the accident and that was the reason for Mr. Ostlie's death.

 

Q. That's what you've been consistent with all the time?

 

A. Yes.

 

At the conclusion of the evidence, the Gaarders requested jury instructions on the standard of care for a driver with physical infirmities and on evidence required for a "nonactionable cause."The trial court refused to give the instructions.

In its special verdict, the jury found that Ostlie had not been negligent in the accident, and that Mark Gaarder had been negligent but his negligence was not a direct cause of the collision.

On appeal, the Gaarders allege as reversible error the trial court's admission of the content of Dr. Peterson's letter about the timing of Ostlie's death and the court's refusal to give requested jury instructions.The Gaarders also allege that the jury's finding that Mark Gaarder was negligent but that his negligence was not a direct cause of the accident was perverse.

D E C I S I O N

Expert Opinion

The Gaarders claim the trial court committed prejudicial error by allowing into evidence the opinions Dr. Peterson stated in his letter to Ostlie's insurer and in his testimony.Rulings on evidence are within the sound discretion of the trial court.State v. Smith, 563 N.W.2d. 771, 773 (Minn. App. 1997).An evidentiary ruling will not constitute reversible error unless prejudice is shown.Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).An evidentiary error is prejudicial if it "might reasonably have changed the result of the trial."Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) (citations omitted).

Expert testimony is required when the proof of a fact depends on evidence that is not within the common knowledge and understanding of laypersons.Harvey v. Fridley Med. Ctr., P.A., 315 N.W.2d 225, 227 (Minn. 1982).

The Gaarders contend that Dr. Peterson's opinions in his letter and in his trial testimony lacked the requisite foundation because they were not expressed to "a reasonable degree of medical certainty."When expert testimony is necessary, it must demonstrate a reasonable probability that the expert opinion is true.Id.No particular foundational formula is required.The expert need not testify "to a reasonable degree of medical certainty."See Boldt v. Jostens, Inc., 261 N.W.2d 92, 94 (Minn. 1977) (expert opinion "does not turn on semantics or on the use by the witness of any particular term or phrase") (quotation omitted); Konovsky v. Kraus-Anderson, Inc., 306 Minn. 508, 512, 237 N.W.2d 630, 633 (Minn. 1976) (affirming verdict based on expert testimony "somewhat less than the strong assertion of causation to a reasonable degree of medical certainty").The expert opinion need not be conclusive:

[I]t is not necessary that medical opinion be capable of demonstration or that an expert speak with confidence excluding all doubt; it is enough that he state his opinion as true in his judgment.

 

Bernloehr v. Central Livestock Order Buying Co., 296 Minn. 222, 225, 208 N.W.2d 753, 755 (1973).

Dr. Peterson's letter discloses no foundation for the opinion it contains.And the attorney who called Dr. Peterson as a witness failed to lay any foundation before having the doctor read the letter to the jury.The Gaarders made a proper and timely foundational objection.It was error for the trial court to have allowed this opinion into evidence without foundation.We hold, however, that the error was harmless because the admission of the opinion did not likely affect the verdict.During his testimony Dr. Peterson restated and reaffirmed his opinion that Ostlie died before the collision.Thus, even without the letter, the jury would have had that precise expert opinion to consider.See Simchuck v. Fullerton, 299 Minn. 91, 101, 216 N.W.2d 683, 689-90 (1974) (error that likely would not have affected verdict was harmless).

On cross-examination, Dr. Peterson admitted that Ostlie's death could have occurred either during or after the collision.He acknowledged that his autopsy findings were consistent with death at or a few seconds after impact.While acknowledging various possibilities as to the timing of Ostlie's death, Dr. Peterson maintained his initial position:

* * * I still believe it occurred before the accident.

* * *

* * * I called it. * * *I came up with a conclusion on it. * * * but that was the opinion I came to.I think it was a reasonable one.

 

The Gaarders did not object to any of Dr. Peterson's opinions other than that stated in his letter.A failure to object waives error and the opinion becomes part of the evidence the jury may consider.State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983).

Requested Jury Instructions

††††††††††† The Gaarders assign as error the trial court's refusal to give two requested jury instructions.The first would have informed the jury that a motorist who knows he is subject to heart attacks and to loss of consciousness is negligent if an accident occurs when he has a heart attack.

††††††††††† The trial court has wide latitude in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).Before an instruction may be given on a party's theory of the case, there must be evidence to support it.Kalsbeck v. Westview Clinic P.A., 375 N.W.2d 861, 869 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).We have examined the record and have found no evidence that reasonably supports the proposition that Ostlie knew he was currently subject to heart attacks and loss of consciousness.The trial court did not abuse its discretion in refusing this instruction.

The second instruction would have told the jury that once an inference of negligence arises, the defendant "must establish to a certainty, through conclusive evidence" that another non-negligent cause, such as a heart attack, "precipitated the accident."Although this appears to be the law in Wisconsin and Louisiana, it is not the law in Minnesota.The trial court gave a proper instruction under Minnesota law, and, therefore, did not abuse its discretion in refusing the Gaarders' second request.

Direct Cause

The jury found Mark Gaarder negligent but decided that his negligence was not a direct cause of the accident.Julie Gaarder contends that this produced a perverse verdict.We disagree.

The trial court instructed that a "direct cause is a cause which had a substantial part in bringing about the accident."The evidence reasonably supported the conclusion that Mark Gaarder's negligence in being inattentive played a slight role in causing the accident.A jury verdict must not be set aside unless it is perverse and palpably contrary to the evidence.Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).A finding of negligence without a finding of direct cause is not perverse if the verdict can be reconciled with the evidence.Id. at 276 (reconciling finding that both plaintiff and defendant were negligent but that neither directly caused the injury).

Affirmed.