This opinion will be unpublished and

may not be cited except as provided by

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






Bonita Hane,





Stephen Wayne,



Filed May 30, 2000


Peterson, Judge


Ramsey County District Court

File No. C6-98-566


Robert T. Brabbit, Brabbit & Salita, P.A., 100 South Fifth Street, Suite 450, Minneapolis, MN  55402 (for appellant)


Mark A. Pilney, Lars C. Erickson, Reding & Pilney, 600 Inwood Avenue North, Suite 140, Oakdale, MN  55128 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a judgment and an order denying her motion for a new trial in this negligence action arising out of an automobile accident, appellant Bonita Hane argues that the trial court erred by excluding the testimony of two experts who would have testified regarding the permanency of her injuries and the likelihood of her requiring future medical care.  We affirm.


            In June 1996, Hane was injured when the vehicle she was driving was rear-ended by a vehicle being driven by respondent Stephen Wayne.  The accident aggravated a pre-existing arachnoid cyst in Hane’s thoracic spine.  The cyst had been diagnosed and its size surgically reduced in 1995 by Hane’s treating neurosurgeon, Dr. Robert M. Roach.  The surgery resolved Hane’s symptoms, which included back pain, leg pain, and incontinence.  After the accident, Hane’s symptoms recurred.  Both Roach and Hane’s treating neurologist, Robert G. Jacoby, opined that the accident caused the cyst to become symptomatic again.  In October 1996, Roach surgically implanted a shunt in the cyst to drain spinal fluid from the cyst into Hane’s abdomen.  Hane began experiencing headaches due to excessive spinal fluid drainage, so in November 1996, Roach surgically placed a valve into the shunt system to regulate drainage.

            Hane sought to introduce the following testimony by Jacoby regarding the permanency of her injuries:

            Q  Doctor, do you have an opinion to a reasonable degree of medical certainty as to whether these injuries have left – or whether Ms. Hane’s suffered a permanent injury as a result of this automobile accident on June 3rd, 1996?


            A  I do.


            Q  And what is that opinion?


            * * * *


A  My opinion is that she has increasing difficulties with the thoracic spine because of the second surgery, she also had some scar formation with some irritation of the surrounding structure of the thoracic spine.


            Q  Doctor, is Ms. Hane more susceptible to future harm or complications because of this injury?


            * * * *


            A  I think so, because again she’s had a second surgery and that continues to weaken the back, and so she will be at increased risk if she had another accident or was to fall or some other traumatic event was to happen.


            Hane also sought to introduce the following testimony by Roach regarding her need for future medical care:

            Q.  Doctor, we are required to – held to the standard of whether it’s more likely than not that the plaintiff would require future surgery.  That is correct, the question that I asked did not state that, but I’m asking whether you can say at this point Miss – whether Miss Hane would have future medical care and treatment?


            * * * *


            A.  Yes, I think it’s more likely than not that given over what we expect will be her normal life-span, this will malfunction or need to be approached surgically again in some way, yes.


            Wayne filed a motion in limine seeking to exclude for lack of foundation and nondisclosure Roach’s testimony regarding Hane’s need for future medical care and to exclude Hane’s claim for future loss of earnings because it was based entirely on Hane requiring surgery if the shunt malfunctioned in the future.  Wayne also objected to Jacoby’s testimony about the permanency of Hane’s injuries on lack of foundation and nondisclosure grounds.  The district court granted Wayne’s motion in limine in its entirety and sustained the objection to Jacoby’s testimony on the ground of nondisclosure.

            The case was tried to a jury.  The jury found that Wayne’s negligence caused Hane injury and awarded her $37,328.23 for past medical expenses, $4,145.43 for past wage loss, $17,500 for past pain and suffering, embarrassment, and emotional distress, and $9,000 for future pain and suffering, embarrassment, and emotional distress.  The jury found that Hane sustained a permanent disfigurement as a result of the accident but not a permanent injury.


1.         Roach’s testimony

The district court has considerable discretion in determining the sufficiency of foundation laid for expert opinion.  Even if evidence has probative value, it is still within the district court’s discretion to exclude the testimony.  This is a very deferential standard.  In fact, we have stated that even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the district court judge will not be reversed absent clear abuse of discretion.


Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761-62 (Minn. 1998) (citations and quotations omitted).

The competency of an expert witness to provide a medical opinion depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the subject of the offered opinion.


Id. at 761.  “[E]xperts must base their opinions on facts sufficient to form an adequate foundation for the opinion and should not be allowed to speculate.”  Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987).

            Roach testified that he did not have any literature supporting his conclusion regarding the life expectancy of the shunt or the valve, had done no independent research to determine the life expectancy of the shunt or the valve, and had not had any other patients who experienced a malfunction of the same shunt or valve.  He admitted that there was “not good information to assess * * * or to predict if and when [a shunt malfunction] will occur.”  Roach’s opinion was based on his experience with similar mechanical devices and on Hane’s 30-year life expectancy.  He admitted that the similar mechanical devices on which his opinion was based did not include the exact same type of device used in Hane.  His experience with similar devices was with shunts in the brain, which, like Hane’s shunt, contain a valve system but, nonetheless, are “a different type of system.”  Roach testified that the brain shunts are used in pediatric patients as well as adults and that “particularly in the pediatric population, there is the expectation that over time in most of those something will go awry and need surgical revision.”  Roach did not testify as to the likelihood of the brain shunts malfunctioning in adults.  The district court did not abuse its discretion in excluding Roach’s testimony for lack of foundation.

2.         Jacoby’s testimony

            “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Jennie-O Foods, Inc. v. Safe-Glo Products Corp., 582 N.W.2d 576, 580 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).  An error in excluding evidence is prejudicial when it appears “that such evidence might reasonably have changed the result of the trial if it had been admitted.”  Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).

            Hane argues that Jacoby’s testimony regarding the permanency of Hane’s injuries was alone sufficient to support a claim for future wage loss and loss of earning capacity and, therefore, she was prejudiced by its exclusion.  Citing Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477 (1959), Hane argues that when a plaintiff can prove a permanent injury, the plaintiff is entitled to have the special verdict form include a question regarding loss of future earning capacity.  The evidence in Wilson, however, showed that the plaintiff had suffered a permanent injury that prevented her from doing work she had previously performed.  The plaintiff in Wilson did not work outside the home, and the issue was whether the evidence was sufficient to prove her earning capacity.  In this case, Jacoby’s testimony did not indicate that Hane’s injury would affect her future earning capacity.  We find no authority holding that evidence of a permanent injury alone entitles a plaintiff to recover for future loss of earning capacity.

            Jacoby’s testimony regarding the permanency of Hane’s injuries was relevant only to Hane’s claim for damages for future pain and suffering, embarrassment, and emotional distress.  Hane provided only a partial transcript containing only the discussions regarding Wayne’s motion in limine and objection to Jacoby’s testimony.  Without a transcript of the evidence regarding Hane’s future damages, we cannot determine the likelihood of whether the exclusion of Jacoby’s testimony affected the jury’s verdict on future damages.  Appellant is responsible for providing an adequate record for review.  State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  Because the record does not show that Hane was prejudiced by the exclusion of Jacoby’s testimony, she is not entitled to a new trial on that basis.

            Having determined that the district court properly excluded Roach’s testimony for lack of foundation and that Hane failed to establish that she was prejudiced by the exclusion of Jacoby’s testimony, we do not reach the issue of whether the district court erred by excluding Roach and Jacoby’s testimony for nondisclosure.