This opinion will be unpublished and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

C3-00-1731

 

Dale W. Gordon,

Respondent,

 

vs.

 

Burlington Northern and Santa Fe

Railway Company, a corporation,

Appellant.

 

Filed May 16, 2001

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. C599601328

 

Paul A. Strandness, Stephen S. Eckman, Eckman, Strandness & Egan, 319 Barry Avenue South, P.O. Box 597, Wayzata, MN  55391 (for respondent)

 

Patrick J. Sweeney, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the denial of its motion for a new trial, arguing that the district court erred by excluding certain evidence and that respondent’s counsel committed misconduct at trial.  By notice of review, respondent appeals the district court’s failure to grant him a directed verdict on the issue of contributory negligence.  Because we find no errors by the district court, we affirm.

 

FACTS

            Respondent Dale W. Gordon developed bilateral carpal-tunnel syndrome in 1993 while working for appellant Burlington Northern and Santa Fe Railway Company (the railway).  Gordon underwent surgery on both wrists and returned to work.  Later, Gordon sued the railway for his injuries, and the railway settled the claim.  Gordon continued to work for the railway, and in June 1997, he developed bilateral flexor tenosynovitis, a medical condition with symptoms resembling those of carpal-tunnel syndrome.  Gordon sued the railway for those injuries.

In response to questions about his medical history asked at his deposition, Gordon testified that in 1997 he sought treatment for herpes that he contracted from his wife and that he scheduled and, two days later, canceled an appointment with a doctor to discuss a vasectomy.  The railway provided Gordon’s medical and work records and Gordon’s deposition testimony to Dr. Kurt T. Hegmann, a physician specializing in internal and preventive medicine.  The railway deposed Dr. Hegmann, asking him about “psychosocial risk factors” associated with the development of carpal-tunnel syndrome.[1]  Dr. Hegmann testified that a “risk factor” is an attribute that “has been shown in an epidemiological study to be associated with the development of [a] disease” and that “psychosocial risk factors” encompass “everything from job dissatisfaction to marital discord and problems with interpersonal relationships.”  Dr. Hegmann testified that,  in reviewing Gordon’s records and deposition testimony, he found evidence of “psychosocial stressors” in Gordon’s life that were associated with the development of carpal-tunnel syndrome: “marital issues, and there’s evidence of anxiety and depression.”  Dr. Hegmann further testified that “it has been reported that psychosocial risk factors are associated with carpal tunnel syndrome” but that “there’s speculation as to how they’re related.”

The district court granted Gordon’s pretrial motion in limine to exclude evidence concerning the facts that he sought treatment for herpes and scheduled and canceled an appointment to discuss a vasectomy.  At trial, the railway cross-examined Gordon’s expert ergonomist, Robert O. Andres, asking him about nonoccupational, psychosocial risk factors associated with carpal-tunnel syndrome.  Andres noted that such factors included “divorce, getting married, moving, [and] changing jobs.”  Dr. Hegmann’s deposition, without any references to herpes or the vasectomy appointment, was read to the jury as part of the railway’s case-in-chief.

            At the close of evidence, Gordon moved for a directed verdict on the issue of contributory negligence, arguing that the railway had presented no evidence that he was contributorily negligent.  The district court denied the motion, and the jury returned a special verdict that found the railway 75% liable for Gordon’s injuries.  The railway filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, on several grounds, including claims that the district court erred in refusing to (1) allow it to introduce evidence that Gordon sought treatment for herpes and scheduled and canceled an appointment with a doctor to discuss a vasectomy and (2) admonish Gordon’s counsel for an improper closing argument.  The district court denied the railway’s motion, and the railway appeals the denial of its motion for a new trial.  By notice of review, Gordon challenges the district court’s denial of his motion for a directed verdict, arguing that there was insufficient evidence for the jury to conclude that he was contributorily negligent.

D E C I S I O N

Evidentiary rulings

The railway argues that the district court abused its discretion in the exclusion of evidence.  Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  The district court excluded on the grounds that it was neither relevant nor probative the railway’s proposed evidence regarding Gordon’s treatment for herpes and the circumstances of his vasectomy appointment.

Relevant evidence is evidence having

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

Minn. R. Evid. 401.  The railway contends that evidence regarding Gordon’s herpes and the vasectomy appointment are relevant, as evidence of risk factors for the development of carpal-tunnel syndrome, to the issue of whether the railway’s alleged negligence in 1997 caused or contributed to Gordon’s condition.  But the railway’s medical expert, Dr. Hegmann, did not explain how a causal connection exists between psychosocial risk factors and either carpal tunnel syndrome or bilateral flexor tenosynovitis.  Thus, the district court did not abuse its discretion in determining that the excluded evidence was not relevant.

Alleged attorney misconduct

The railway moved the district court for a new trial on the ground that “[t]he court refused to admonish plaintiff counsel’s improper final argument.”  The railway does not raise this issue here but instead argues for the first time that Gordon’s attorney committed misconduct during his opening statement and during trial.  A reviewing court “must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  A party may not obtain review “by raising the same general issue litigated below but under a different theory.”  Id.   Therefore, this issue is not properly before us.

Contributory negligence

            Gordon argues by notice of review that the district court erred in denying his motion for a directed verdict on the issue of contributory negligence.  On appeal from a directed verdict, a reviewing court makes an independent determination of whether, viewed in the light most favorable to the nonmoving party, the evidence was sufficient to present a fact question to the jury.  Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997).  Here, there was evidence that when Gordon was injured in June 1997, he felt “a pain or a lightening shoot up both arms at the same time”; Gordon kept working for the remainder of that day and part of the next at the same job; he kept working at a different job thereafter, despite pain in his hands; and Gordon first saw a doctor about his injuries in September or October 1997.  Viewed in the light most favorable to the railroad as the nonmoving party, the evidence was sufficient to present a fact question to the jury regarding Gordon’s contributory negligence.

            Affirmed.

           



[1] The parties draw no distinction between carpal-tunnel syndrome and bilateral flexor tenosynovitis for the purpose of arguing the issues on appeal; therefore, neither do we.