This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1791

 

Melissa Brett,

Appellant,

 

vs.

 

Dr. Alexander Watts,

Respondent.

 

Filed March 20, 2001

Affirmed

Shumaker, Judge

 

Stearns County District Court

File No. C0-98-2757

 

 

 

Todd A. Crabtree, Susan J. Bowden, 1901 Curve Crest Boulevard, Stillwater, MN 55082 (for appellant)

 

Thomas P. Melloy, 1010 West Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            In a civil action premised on sexual abuse, the jury’s verdict that appellant sustained no damages is supported by the evidence and is dispositive of the appeal despite appellant’s contention that the district court erred in excluding certain liability evidence.  We affirm.

FACTS

            Melissa Brett was struck in the head with a softball when she was 15 years old and sustained a subdural hematoma.  During the next seven years, she was periodically treated and examined by neurosurgeon Alexander Watts, M.D.

            For all examinations except the first, only Watts and Brett were present in the examining room.  Watts instructed Brett to remove her outer clothing.  It is disputed as to whether he also required her to remove her bra.  Watts remained in the room while Brett undressed and while she dressed after the examination.  Watts never offered her a gown.

For one of his examination procedures, Watts ran a pinwheel over various parts of Brett’s body to detect neurological deficits.  Brett alleges that, on at least two occasions, Watts ran the pinwheel over her breasts and also touched her breasts with his hand.  It is this alleged touching that Brett claims constituted sexual abuse.

Brett sued Watts and tried the case to a jury.  In its special verdict, the jury found that Watts was not liable for sexual abuse and that Brett had not sustained any past damages nor would she sustain any future damages.

            Alleging various evidentiary errors, Brett moved for a new trial.  The district court denied the motion and Brett appealed.

            On appeal, Brett alleges five specific evidentiary errors and also contends that the evidence does not support the verdict.

D E C I S I O N

            This court reviews alleged specific evidentiary errors only if they were assigned as error in a motion for a new trial.  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993).  As to alleged errors not assigned in a motion for a new trial, our review is limited to ascertaining whether the evidence sustains the verdict.  Id. at 56.

            In her motion for new trial and in this appeal, Brett alleges five specific evidentiary errors.  Four relate to liability and one to damages.

            As to liability, Brett argues that the district court abused its discretion by excluding from evidence stipulations and orders involving complaints to the medical board about Watts’ inappropriate examination procedures; testimony by one of Watts’ female patients whose examination experiences were similar to those of Brett; certain testimony by Brett’s expert medical witness; and testimony by Brett and others as to how and when Brett discovered that Watts’ examination procedures allegedly were improper.

            The specific error relating to damages is the district court’s alleged refusal to allow Brett to testify about her reaction to her discovery of Watts’ improprieties.  The only other challenge to damages is Brett’s contention that the evidence does not support the verdict.  We believe the issue of damages is dispositive of the appeal.

Evidentiary Ruling

            On Brett’s direct examination, her attorney asked her how she learned of Watts’ misconduct.  She answered that her mother had seen a report about Watts on television and then had told her of it.  Because, in limine, the court had disallowed references to television reports about complaints to the medical board against Watts, the court instructed the jury to “disregard reference to anything on TV.”  Brett’s attorney continued with the examination:

Q.        We will move on, Your Honor.  What was your reaction?

 

A.        I was overwhelmed.  I was in shock.  I didn’t know how to react.

 

Q.        How did you feel?

 

A.        Scared.

 

Q.        Why scared?

 

A.        Because I knew that the feeling that I had wasn’t right before, and that just made it – hearing about it made me know that what I was feeling wasn’t wrong, that he did do something wrong.

 

            When defense counsel interrupted as if to make an objection, the court said:  “Overruled.  You can go ahead.”  Brett said she was finished with that answer and her attorney stated that she wanted to ask questions about Brett’s symptoms prior to the discovery of Watts’ alleged misconduct.

            Contrary to Brett’s contention, the court did not preclude her from describing as completely as she wished her reactions to the discovery of Watts’ alleged misconduct.  Thus, there is no error to review regarding that testimony.

Verdict on Damages

            The special verdict contained one question as to liability and two as to damages.  The jury wrote “$0” for past and for future general damages.  Brett made no claim for special damages.

            Prior to submitting the case to the jury, the district court instructed:

Questions two and three on the verdict form that you have are the damages questions.  You must answer these questions regardless of your answers to the other questions on the verdict form.  Your verdict is not complete until these damages questions are answered.

 

Neither party objected to the instruction.

            In his final argument, defense counsel reminded the jury that it was to answer the damages questions no matter how it answered the liability question.  Counsel then urged the jury to answer $0 to each damages question, contending that no distinction could be made between problems allegedly caused by Watts and problems that pre-existed Brett’s encounters with Watts.  Brett’s counsel argued only that Brett’s psychologists corroborated her claim of damages and that some damages were caused by Watts.  Brett alleges no specific error in the damages instructions or verdict form.  Therefore, we consider whether the verdict is manifestly contrary to the evidence viewed in a light most favorable to the verdict.  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

            Brett testified that as a result of Watts’ sexual abuse she had sleep disturbance, nightmares, loss of trust in males, aversion to being touched, panic attacks, and stress.  On cross-examination, she admitted that her middle teenage years were troublesome, involving major occurrences that need not be detailed.  She acknowledged a strained relationship with her mother, and later with her husband, whom she accused of physical abuse.  She admitted that she ignored her doctors’ advice regarding control of her diabetes and that the consequences interfered with her life.  Although she claimed that her symptoms were persistent, she noted on a “patient profile” three years after Watts’ last examination of her that she was having no problems coping or with stress tolerance.  Brett admitted that she did not complain of Watts’ conduct to anyone except her mother until she learned of the television report of Watts’ alleged misconduct with other patients.  She also conceded that not all her problems were caused by Watts.

            Thus, the jury heard substantially conflicting evidence about damages.  That the jury was not persuaded by Brett’s proof of damages is evident from the verdict.  The evidence was such that the jury could reasonably infer that Brett’s problems were attributable to various other significant stressors in her life and not to Watts’ behavior toward her.  See In re Friedenson, 574 N.W.2d 463, 466 (Minn. App. 1998) (stating credibility issues are within the province of the factfinder), review denied (Minn. Apr. 30, 1998).  Brett has failed to demonstrate that the verdict on damages was manifestly contrary to the evidence.

            Brett’s attorney contended during oral argument that in a sexual abuse case liability and damages are inextricably linked because caselaw has held that sexual abuse is a personal injury.  He argued that the district court’s exclusion of evidence that might have established liability had a negative impact on the damages issue such that the damages verdict was distorted.  The implication of his argument is that proof of sexual abuse raises a presumption of some damages because the abuse is injury.  We disagree that such a presumption arises.

Addressing the question of when the statute of limitations begins to run on a claim of sexual abuse, the supreme court has said that the abuse itself is a personal injury that triggers the statute:

Accordingly, concepts of sexual abuse and injury within the meaning of this statute are essentially one and the same, not separable – as a matter of law one is “injured” if one is sexually abused.

 

Blackowiak v. Kemp, 546 N.W.2d 1, 2 (Minn. 1996).[1]

            Relying on Blackowiak, the supreme court later said that, for statute-of-limitations purposes, “sexual abuse is personal injury” and the statute begins to run as soon as the abuse occurs.  W.J.L. v. Bugge, 573 N.W.2d 677, 681 (Minn. 1998).  However, nowhere has the supreme court intimated that damages are presumed when there has been sexual abuse.  And we noted in a prior appeal from summary judgment in Watts’ favor in this case that

* * * the civil definition of “personal injury caused by sexual abuse” requires only the same threshold showing of emotional damage as any other tort.

 

Brett v. Watts, 601 N.W.2d 199, 203 (Minn. App. 1999).

            Thus, damages, if any, from the “personal injury” that results from sexual abuse must be proved.  As evident from the special verdict, Brett failed to prove any damages related to the sexual abuse.

            Finally, because the damages issue is dispositive, we do not reach the other errors alleged on appeal.

            Affirmed.



*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Minn. Stat. § 541.073, subd. 2(a) (1998), provides: “An action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know the injury was caused by the sexual abuse.”