This opinion will be unpublished and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

C5-00-1732

 

David Determan,

Respondent,

 

vs.

 

Sharon Barnes,

Appellant.

 

Filed July 3, 2001

Affirmed in part, reversed in part, and remanded

Amundson, Judge

 

Stearns County District Court

File No. C2-99-2107

 

Michael D. LaFountaine, Heidi N. Wolf, Quinlivan & Hughes, P.A., 400 South First Street, St. Cloud, MN 56302 (for appellant)

 

Michael A. Bryant, Bradshaw & Bryant Law Offices, 1505 Division Street, Waite Park, MN 56387 (for respondent)

 

Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

 

AMUNDSON, Judge

A jury awarded respondent damages for past medical expenses and past wage loss, and found he suffered a 60-day disability arising out of injuries sustained in a motor vehicle accident. After post-trial motions, the district court awarded respondent unconditional additur of $10,000 for past pain and suffering. We affirm in part, reverse in part, and remand.

FACTS

David Determan was involved in a motor vehicle accident on August 28, 1998, when he was rear-ended by a car driven by Sharon Barnes. The next day he went to a hospital emergency room because he was experiencing intense pain in his low back radiating into his legs, as well as pain and numbness in his upper shoulder and neck.

After the emergency room visit, Determan received treatment with a chiropractor and at a medical clinic for his upper and lower back injuries. Because those measures were not reducing his pain, approximately one month after the accident Determan was given an epidural injection that was unsuccessful. Determan then underwent surgery in November 1998. The surgery helped relieve some of the numbness he was experiencing in his legs and some of the pain in his low back. His neck and upper back problems were resolved by August 1999.

Determan had had numerous prior back injuries in the twenty years preceding the 1998 accident with Barnes, including two low back surgeries. He had not undergone treatment for back problems since 1995.

Determan sued Barnes for past and future physical and mental injuries, pain and suffering, medical expenses, lost wages, and earnings loss. Barnes testified to the accident, his injuries, and pain. The deposition testimony of Barnes's expert, Frederick Strobl, M.D., was submitted at trial. Dr. Strobl opined that the 1998 accident with Barnes did not cause a permanent injury, but that it did cause a temporary injury. Dr. Strobl felt that approximately three months of treatment was reasonably necessary because of the accident.

After trial, the jury awarded Determan $7,059.49 for past medical expenses and $6,881.66 for past wage loss. The jury awarded no damages for past pain and suffering, future medical treatment, future loss of earnings, or future pain and suffering. The jury found that Determan did not suffer any permanent injury, but that he had sustained a sixty-day disability.

After a hearing on Determan's post-trial motion for a new trial, judgment notwithstanding the verdict, or additur, the district court granted $10,000 in unconditional additur for past pain and suffering. The district court explained that the jury erred when it failed to award any damages for past pain and suffering, because it found that Determan had "suffered a serious physical injury." This appeal followed.

D E C I S I O N

 

Barnes contends that the district court erred by granting additur. The decision to grant additur rests almost wholly within the district court's discretion, but may not be granted unless the verdict is unreasonable. Krustch v. Walter H. Collin GmBh Verfahrenstechnik und Maschinenfabric, 495 N.W.2d 208, 216 (Minn. App. 1993), review denied (Minn. Mar. 22, 1993). When reviewing a damage award, we consider the evidence in the light most favorable to the verdict. Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 626 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994). Where conflicting evidence exists as to the nature and extent of a plaintiff's injuries, we give great deference to the jury's verdict and will affirm it where it can be reconciled with the evidence in the record and the fair inferences from that evidence. Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999).

Barnes argues that the jury's verdict, which awarded damages for past medical expenses and past wage loss, while failing to award damages for past pain and suffering, was not unreasonable because it can be reconciled with a reasonable interpretation of the facts. To attempt to accomplish this, Barnes points to Dr. Strobl's deposition testimony that Determan had pre-existing neck and lower back pain and that he "ha[d] a lot of reasons why he should have back pain that aren't related to the 1998 accident." But Barnes fails to point to any evidence that demonstrates that Determan did not suffer any pain and suffering as a result of the 1998 accident. Although Barnes's expert testified that there may have been several sources for Determan's pain and suffering, he did not specifically exclude the injury caused by Barnes as a source. There was evidence of neither a complete absence of pain and suffering after the accident, nor that Determan's pain and suffering was due solely to Determan's prior injuries. Therefore, the trial judge's award of additur for past pain and suffering was not an abuse of discretion because the uncontroverted evidence demonstrated that he sustained pain and suffering as a result of the 1998 accident.

This case is not like Raze because, in that case, the evidence presented clearly demonstrated that the injured party's complaints could have resulted solely from his pre-accident physical problems. See Raze, 587 N.W.2d at 647-48 (defendant's expert explicitly testified that plaintiff's symptoms were a result of conditions unrelated to the accident).

Although we conclude that granting additur was proper, it should not have been granted unconditionally. In Minnesota, consent of the non-moving party to additur is required. Runia v. Marguth Ag., Inc., 437 N.W.2d 45, 50 (Minn. 1989).

We therefore affirm the district court's decision to grant additur, but reverse the court's decision to make the additur unconditional. We remand to allow Barnes an opportunity to consent or receive a new trial.

Affirmed in part, reversed in part, and remanded.