This opinion will be unpublished and

may not be cited except as provided by

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







William Brewer,

as Trustee for the heirs and

next of kin of

Angela Josephine Brewer,





Columbia Park Medical Group, P.A., et al.,




Filed May 8, 2001

Foley, Judge


Anoka County District Court

File No. CX976327


Stewart Perry, Perry Perry & Perry, Suite 270, Parkdale 1, 5401 Gamble Drive, St. Louis Park, MN 55416 (for appellant)


William M. Hart, J. Richard Bland, John W. Munger, Meagher & Geer, PLLP, 4200 Multifoods Tower, 33 South 6th Street, Minneapolis, MN 55402 (for respondents)


Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant brought a medical-malpractice claim against David Bachman, M.D., and Bachman’s employer, Columbia Park Medical Group, based on Dr. Bachman’s alleged failure to properly diagnose and treat pneumonia in the decedent.  After a trial, the jury found no negligence, and the district court denied posttrial motions.  Appellant seeks reversal and a new trial on damages, contending there was negligence as a matter of law. In the alternative, appellant seeks a new trial on all issues, contending that the evidence and expert testimony do not support the verdict, and that evidentiary and other errors denied appellant a fair trial.  Because we find that the evidence supports the verdict and that appellant received a fair trial, we affirm.


            On December 6, 1996, 49-year-old Angela Brewer began experiencing flu-like symptoms.  On December 10, respondent David Bachman, M.D., an employee of respondent Columbia Park Medical Group (Columbia), diagnosed Angela as having a virus and prescribed cough medicine.  He did not order any x-rays or laboratory tests.  On December 11, Angela vomited once and felt “woozy,” causing her to worry that the medicine was making her nauseated.  The next day she left a telephone message for Dr. Bachman, complaining that the medicine was making her nauseated.  When Dr. Bachman returned her call, she reiterated her concerns.  Because Dr. Bachman thought that Angela’s symptoms had not changed and the cough medicine probably was not causing her nausea, he continued to prescribe fluids and cough medicine and did not ask her to come into his office for further diagnosis.  Later that day, Angela died from what was subsequently diagnosed as bacterial pneumonia and sepsis, an infection of the bloodstream.

            In January 1998, appellant William Brewer, Angela’s husband and trustee for her heirs and next-of-kin, filed a medical-malpractice suit against Dr. Bachman and Columbia. Appellant alleged that Dr. Bachman was negligent because he failed to recognize that Angela’s symptoms were indicative of pneumonia and did not schedule an emergency appointment for further diagnosis.  Had he done so, appellant asserts that Angela’s illness would have been diagnosed and could have been successfully treated. 

            At trial, the Brewers’ daughter, Kathryn, testified that she overheard the December 1996, conversation between Angela and Dr. Bachman.  Kathryn testified that her mother complained of rib pains, a productive cough, and nausea.  Kathryn also testified that Angela’s vomit was discolored and looked like ground up leaves. 

            Dr. Bachman testified that, from his records, the symptoms that Angela reported on her initial visit included nausea, chills, a dry or unproductive cough, and “generalized body aches.”  He acknowledged that he received a phone message a few days later, but he thought that from the message, Angela wanted to switch medicines because she thought the cough medicine was making her nauseated.  The phone message read:  “Is on cough meds with codeine, causing vomiting * * *.”  The note also said that Angela had rib pains. But after he talked with her, Dr. Bachman testified that Angela did not report any new symptoms other than the vomiting.  He recalled that she mentioned the vomiting because she wanted to know if the cough medicine had caused her nausea.  He only noted on the patient chart: “Not nausea until 12 hours later after taking meds.  Told that problem not related to codeine.”  Therefore, he was unaware from her comments that the consistency of her vomit was unusual, and he believed that her rib pains were part of the general malaise she had initially reported.  Dr. Bachman added that even if they had specifically discussed Angela’s rib pains or any unusual qualities about her vomit, these symptoms still would only be “two small pieces of a huge puzzle” and not necessarily lead him to believe that she had pneumonia.  He could not remember discussing anything further with her but testified that “the most significant thing in that conversation was what [he] wrote, because that’s what [he] writes on all [his] telephone notes.”

            Each party presented two expert witnesses.  Appellant called Kathryn Hale, M.D., who specializes in internal medicine and is an assistant professor at Baylor College of Medicine, and Delbert Nelson, M.D., a family practitioner who is currently working in geriatric nursing home care.  Dr. Nelson testified that although the notes made on the patient chart following Angela’s first visit were “pretty brief,” they conformed to the general standard of care.  Both Drs. Hale and Nelson believed that Dr. Bachman should have brought Angela in for further testing because the vomiting and the rib pains were “red flags,” and, therefore, Dr. Bachman had violated his standard of care by not scheduling an emergency appointment for further tests.

            Respondents called Allan Kind, M.D., the head of the infectious disease section of Park Nicollet Clinic, and James Flink, M.D., a specialist in the treatment of people with lung disease and the critically ill.  Both Drs. Kind and Flink testified that, based on the information contained in the patient chart, Dr. Bachman did not violate the standard of care for doctors by not asking Angela to come into his office immediately.

            Respondents’ experts relied on medical articles to suggest that even if Dr. Bachman had called Angela in, she probably would not have survived, as certain people who contract this type of pneumonia will die even if treated.  Appellant objected to Dr. Kind’s use of the articles because respondents did not disclose they would be relying on them. During cross-examination, appellant elicited testimony from Dr. Kind that suggested these articles described circumstances that were much more dire than Angela’s situation.

            On August 4, 1999, the jury found that Dr. Bachman was not negligent in his care and treatment of Angela and that appellant was not entitled to past or future damages. Because the jury found that Dr. Bachman was not negligent, it did not reach the question of whether Angela’s death was directly caused by negligence.

            Appellant moved for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial, but the motion was denied.



            We review de novo the denial of a motion for JNOV.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  We will affirm the denial “if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Harman v. Heartland Food Co., 614 N.W.2d 236, 240 (Minn. App. 2000) (citation omitted).  “Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.”  Id. (quotation omitted). 

Appellant argues that the record is devoid of competent evidence to support the verdict.  Specifically, appellant claims that Dr. Bachman’s and respondents’ expert witnesses offered “obvious falsehoods and misleading” information to make Angela’s condition seem dire, to support respondents’ assertion that it would have made no difference if Dr. Bachman had scheduled an emergency appointment on December 12.

Appellant’s argument fails because he has not shown that Dr. Bachman’s conduct was negligent.  To support a medical-malpractice claim, appellant must establish three separate elements:  (1) the applicable standard of care recognized by the medical community; (2) the defendant departed from the applicable standard; and (3) the defendant’s departure from the applicable standard was a direct cause of the injury. Williams v. Wadsworth, 503 N.W.2d 120, 123 (Minn. 1993).

            There is sufficient, competent evidence in the record to support the jury’s finding of no negligence.  The parties presented conflicting testimony on whether Dr. Bachman violated the standard of care by not scheduling an emergency appointment based on symptoms Angela exhibited on December 12.  The jury heard testimony that Angela’s symptoms were not unusual enough to warrant special attention.  Dr. Bachman and respondents’ experts testified that coughing and vomiting could be associated with many other illnesses, and Dr. Flink testified that as many as a third of people with bacterial pneumonia do not even exhibit the same symptoms that Angela did.  Given this conflict, the jury chose to believe respondents’ witness and not to believe appellant’s experts.  “It is within the province of the jury to weigh conflicting testimony and determine witness credibility.”  St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51, 59 (Minn. App. 2000) (citation omitted); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (citations omitted) (“Deciding the credibility of witnesses is generally the exclusive province of the jury.”).

            Moreover, it is not clear that Angela made Dr. Bachman aware of any changes in her condition.  Dr. Bachman testified that if Angela had notified him of a change, he would have noted her comments in his patient report.  Dr. Bachman concluded that since he did not write anything else down, Angela must not have told him about the change in her cough. Although Kathryn testified that she overheard her mother tell Dr. Bachman about new or changed symptoms, she admitted that she did not listen to the entire conversation and was “not positive” what was discussed during the conversation.  The jury could have reasonably believed Dr. Bachman and disbelieved the accuracy of Kathryn’s testimony. 


            Appellant also contends that the trial court erred in denying his motion for a new trial because of errors in the testimony of respondents’ expert witnesses and the surprise use of medical articles to support this testimony.  Appellant argues that had he known of the intended use of the medical articles, he could have highlighted flaws in the experts’ testimony—flaws that appellant characterizes as knowingly misleading statements or outright lies.  Respondents contend that whether the medical articles were fully disclosed is irrelevant, and even if there had been surprise, appellant is still not entitled to a new trial.

On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in the light most favorable to the verdict.


ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).

            The objective of the rules of discovery is to encourage parties to exchange relevant information prior to trial and to “prevent unjust surprise and prejudice at trial, especially where the testimony of expert witnesses is concerned.”  Gale v. County of Hennepin, 609 N.W.2d 887, 891 (Minn. 2000) (citation omitted).  But even if the parties fail to meet this objective, it is within the trial court’s discretion whether to grant a new trial for surprise, “and its decision will rarely be reversed on appeal.”  Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn. App. 1992) (quotation omitted).  A district court should only grant a new trial where there is a strong probability that if the surprised party had known of the evidence, the result would have been different.  Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App. 1987), review denied (Minn.  Mar. 18, 1987).

            Here, respondents had not disclosed or furnished the articles upon which their experts relied in giving testimony at trial.  This is disturbing to us, but we cannot conclude that the district court abused its discretion in denying a new trial. 

            Appellant complains that cross-examination of respondents’ experts was hampered by the lack of an opportunity to become familiar with the articles.  But there were several means available to appellant to remedy respondents’ failure to disclose.  See Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn. App. 1985) (if failure to disclose is not willful, trial court should consider alternative methods short of exclusion for preventing prejudice such as granting continuance, assessing costs against offending party, or limiting subject matter of testimony).  Appellant never sought a continuance in order to digest the import of the articles.  See Boschee v. Duevel, 530 N.W.2d 834, 841 (Minn. App. 1995) (“failure to suppress is not an abuse of discretion where the opposing party does not seek a continuance”) (quoting Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390, 394 (Minn. 1977), review denied (Minn. June 14, 1995).  Appellant also had ample opportunity to cross-examine respondents’ experts, and the transcript reveals that appellant was successful in pointing out differences between Angela’s condition and those reported in the articles.  See Sparta Sportsfabrikk v. Nortur, Inc., 407 N.W.2d 128, 130 (Minn. App. 1987) (having “ample opportunity to cross-examine” helps cure surprise).  See Koehnle v. M.W. Ettinger, Inc., 353 N.W.2d 612, 614 (Minn. App. 1984) (failing to object to admission of allegedly improper evidence waives issue on appeal).  Moreover, appellant only objected to the use of medical articles during Dr. Kind’s testimony.

            In addition, we do not believe that the use of the articles prejudiced appellant.  As the trial court found in its order and respondents argue, the articles were used to rebut appellant’s claim of causation:  even if Dr. Bachman was negligent, his negligence was not the cause of Angela’s death.  But since the jury found that Dr. Bachman was not negligent and did not reach the issue of causation, the articles did not affect the jury’s verdict. Because the evidence by the experts and their use of medical articles related to causation, rather than to negligence, and because appellant had a full opportunity to cross-examine, we conclude that appellant failed to establish the required “strong probability” that timely disclosure would have changed the result.  See Gunderson, 399 N.W.2d at 168.

            Lastly, the trial court did not violate appellant’s due process rights. Appellant concedes that because respondents are private actors, they cannot violate his due process rights.  See State v. Wicklund, 589 N.W.2d 793, 801 (Minn. 1999) (private conduct not subject to constitutional restrictions unless “entwined with governmental character”) (quotation omitted).  Instead, appellant contends that by making evidentiary decisions in respondents’ favor, the court violated his due process rights by ratifying respondents’ alleged misconduct.  This does not present a colorable due process claim. See Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119, 7 N.W.2d 501, 507 (1943) (due process “means opportunity for a hearing, i.e., opportunity to be present during the taking of testimony or evidence, to know the nature and contents of all evidence adduced in the matter, and to present any relevant contentions and evidence the party may have”) (quotation omitted); see also In re Collection of Delinquent Real Property Taxes, 530 N.W.2d 200, 206 (Minn. 1995) (due process requires judge be free from appearance of bias).  Rather, appellant is attempting to rephrase his argument regarding the credibility of respondents’ witnesses into a new claim against the trial court.  But appellant makes no claim of bias, and we do not find any error in the trial court’s evidentiary decisions.  Therefore, we reject appellant’s due process claim.



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