This opinion will be unpublished and

may not be cited except as provided by

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






Robert A. Scherman,





Gefrey F. Rasmussen, d/b/a Gefrey F. Rasmussen, D.D.S.,




Filed September 25, 2001


Amundson, Judge


Hennepin County District Court

File No. 996438


Clyde E. Miller, 307 South Main Street, Cambridge, MN 55008 (for appellant)


Kelly Ann Putney, Bassford Lockhart et al., 3550 Multifoods Tower, Minneapolis, MN 55402 (for respondent)


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

U N P U B L I S H E D  O P I N I O N


Appellant sued respondent, alleging dental malpractice after the dentist hit a nerve while giving an injection.  The district court directed a verdict, ruling that appellant presented insufficient evidence as to causation, and denied his motion for a new trial.  Appellant contends that (1) he presented sufficient evidence to create a factual question on the issue of causation; (2) the court erred in dismissing his informed consent claim; (3) the court erred in preventing his expert from providing rebuttal testimony; and (4) the court erred in granting respondent’s request for costs and disbursement for experts who did not testify.  We affirm.


For over a year prior to the events giving rise to this action, Robert Scherman had been a dental patient of Gefrey Rasmussen, D.D.S.  At his initial visit with Dr. Rasmussen, Scherman signed a consent form for medical treatment, indicating his understanding that the use of anesthetic agents involved a certain risk.   On several occasions after the initial visit, Scherman received both Prilocaine (a form of Novocain) and nitrous oxide as anesthetics in his dental treatment.

On November 20, 1995, as part of a general treatment plan agreed upon several months earlier, Scherman came into Dr. Rasmussen’s office for a root planing procedure.  To accomplish this procedure, Dr. Rasmussen gave Scherman a local anesthetic injection. According to Scherman’s later testimony, he requested only nitrous oxide, but Dr. Rasmussen indicated that he was going to get an injection instead.  According to Scherman, Dr. Rasmussen seemed to be in a hurry when he gave the Prilocaine injection in the right side of Scherman’s mouth.  When the needle went in, Scherman immediately felt a sensation like an electric shock and experienced severe pain before the anesthetic took effect. 

Scherman returned to the office for another procedure the next week, for which he also received a Prilocaine injection on the other side of his mouth.   The pain from the previous procedure, however, never completely left him, requiring him to take anti-pain medication, from which he reported significant side effects. 

Scherman filed a complaint alleging that Dr. Rasmussen negligently performed the injection on November 20, and that he failed to obtain informed consent for the procedure, which allegedly resulted in permanent damage to the right lingual nerve.   Before trial, the district court granted defendant’s motions in limine to dismiss the informed consent complaint as a matter of law, and to exclude as cumulative the testimony of one of defendant’s expert medical witnesses. 

Dr. Nelson Rhodus, Scherman’s chief medical expert, testified at trial that in his opinion Scherman had suffered a neuroma, or an overgrowth of nerve fibers, consistent with injury to the lingual nerve.  Dr. Rhodus testified that this type of injury still happens even with the best of technique, but that any time a procedure is done very rapidly,  “you run a risk.”   He agreed that he could not tell whether it was the initial contact with the nerve, continuing to inject with the needle, or the injection of the anesthetic solution that caused the damage.  Dr. Stephen Trobiani, Scherman’s other medical expert, testified that the persistence of Scherman’s symptoms suggested the presence of a neuroma, and that it would be unlikely that these symptoms would develop and persist if a nerve had not been penetrated.   Dr. Rasmussen testified that he had no distinct memory of Scherman’s injection as abnormal or unusual, and that he believed he had given over 20,000 such local anesthetic injections without incident.

At the close of plaintiff’s case in chief, defendant moved for a directed verdict on the basis that plaintiff was unable to establish a prima facie case.  The district court granted this motion, finding that Scherman was unable to meet his burden of proof with regard to the element of causation, and ordered judgment in defendant’s favor, together with costs and disbursements, which were allowed by the court administrator in the sum of $2,504.90.  Plaintiff then moved for a new trial, contending that the court erred in (1) granting the motion for directed verdict regarding causation, (2) excluding plaintiff’s other expert from testifying at trial, and (3) dismissing plaintiff’s informed consent claim as a matter of law.  The court denied the plaintiff’s motion, ordered final judgment of dismissal with prejudice, and on defendant’s motion awarded defendant further costs and disbursements in the sum of $6,273.42.  This appeal followed.



“A district court may grant a motion for a directed verdict when, as a matter of law, the evidence is insufficient as a matter of law to present a fact question for the jury.”  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998).  In determining whether to grant a directed verdict, the court must view the evidence in the light most favorable to the nonmoving party.  Id. Nevertheless, a directed verdict should be granted when the evidence is overwhelmingly preponderant for one party, even if there is some evidence in favor of the adverse party.  Zinnel v. Berghuis Constr. Co., 274 N.W.2d 495, 498 (Minn. 1979).   This court reviews de novo the district court’s ruling on a directed verdict.  Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App. 2000), review denied(Minn. July 25, 2000). 

To establish a prima facie case of medical malpractice for negligent treatment, a plaintiff must establish (a) the standard of care recognized by the medical community as applicable to the defendant’s conduct, (b) that the defendant departed from that standard, (c) that this departure directly caused the plaintiff’s injuries, and (d) damages.  Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn. 1983).  To establish the standard of care, the defendant’s departure from the standard of care, and causation, the plaintiff must introduce expert testimony when these issues are not within the common knowledge of laymen. 94-95.   Mere increased risk of injury has been held insufficient to establish causation.  See Cornfeldt v. Tongen,295 N.W.2d 638, 640 (Minn. 1980) (mere increase in risk of death or serious harm as a result of negligence in performing surgery was insufficient to establish causation without testimony that death probably resulted from this increased risk).  Rather, the plaintiff has the burden of proving that “it was more probable that [the injury] resulted from some negligence for which defendant was responsible than from something for which he was not responsible.”  Smith v. Knowles, 281 N.W.2d 653, 656 (Minn. 1979) (quotation omitted).

Plaintiff argues that the district court erred in directing a verdict for defendant because he produced sufficient factual evidence on the issue of causation to allow the jury to decide the issue.  But he fails to differentiate between establishing that defendant departed from the standard of care, and proving that such a departure was a direct cause of plaintiff’s injury.  Plaintiff’s expert-in-chief, Dr. Rhodus, testified that if the injection procedure was performed “very, very rapidly,” “you run a risk” of injury.  But Dr. Rhodus never stated that it was more probable than not, that defendant’s alleged negligence, i.e., giving the injection too quickly, caused any injury to the nerve.  In fact, he agreed that he could not tell whether the initial contact with the nerve, continuing to inject with the needle or the injection of the anesthetic solution caused specific damage to the nerve.  Dr. Trobiani testified it was likely that Scherman’s symptoms were caused by penetration of the nerve.  But the applicable standard of care does not exclude the possibility of nerve penetration.  As Dr. Rhodus indicated at trial, hitting the lingual nerve is a “relatively common occurrence.  Thus, the plaintiff failed to carry the burden on the issue of causation, and accordingly the district court did not err in directing a verdict for the defendant on this issue. 


To establish a claim for negligent nondisclosure of risk, a plaintiff must show: (1) a duty on the part of the physician to know of a risk; (2) a duty to disclose that risk; (3) breach of that duty; (4) causation, i.e., the undisclosed risk must materialize in harm; and (5) damages.  Bigay v. Garvey, 575 N.W.2d 107, 111 n.3 (Minn. 1998).  Expert testimony is necessary to show that a risk, in fact, exists, that it is accepted medical practice to know of that risk, and that the risk materialized in harm.  Reinhardt,337 N.W.2d at 96.  The plaintiff also carries the burden of demonstrating that a reasonable person in the plaintiff’s position would have refused the treatment in question had he been informed of the undisclosed risk.  Id. 

In this case, no expert testimony established that giving the Prilocaine injection created an undisclosed risk to the plaintiff.  On the contrary, this was a routine injection which the defendant had given thousands of times without incident.  Dr. Rasmussen’s attorney presented unrebutted evidence that the type of injury that Scherman suffered was likely to occur in somewhere between one in 750 and one in 161,000 cases.  Even had a risk of this magnitude been disclosed, Scherman failed to establish that a reasonable person in his position would not have consented to the procedure.  When he initially began his treatment plan with Dr. Rasmussen, Scherman signed a consent form disclosing the risks of anesthesia.  By the time of the November 20 injection, Scherman had already received several Prilocaine injections from Dr Rasmussen, along with nitrous oxide. Furthermore, he returned to Dr. Rasmussen a week later for a similar injection without complaint.  Therefore the district court did not err in holding that Scherman failed to introduce sufficient evidence to sustain its burden of production in the claim for negligent nondisclosure of risk.


            The exclusion of expert medical testimony lies within the sound discretion of the district court, whose ruling will not be reversed unless it relies on an erroneous view of the law or constitutes an abuse of discretion.  Reinhardt, 337 N.W.2d at 93.  Where the excluded testimony is cumulative, its rejection is not so prejudicial as to warrant reversal.  Molkenbur v. Hart, 411 N.W.2d 249, 252 (Minn. App. 1987), review denied(Minn. Oct. 30, 1987). 

            Scherman claims the district court erred in excluding the testimony of Dr. Alan   Simons, another dentist who would have testified on the issue of causation.  Dr. Simons’ affidavit, however, indicates that his testimony was cumulative and would not have differed significantly from the opinions of Dr. Rhodus and Dr. Trobiani.  In addition, Dr. Simons, who lived in Michigan, never examined Scherman.  Accordingly, the district court did not err in refusing to allow his testimony.


            Finally, Scherman claims that the district court abused its discretion in awarding the defendant expert witness fees for witnesses who did not testify at trial.  Minn. Stat. § 357.25 (2000), however, specifically allows for taxation of expert witness fees that are “just and reasonable.”  The determination of what costs are reasonable is left largely to the discretion of the trial court.  Casey v. State Farm Mut. Auto. Ins. Co., 464 N.W.2d 736, 740 (Minn. App. 1991), review denied (Minn. Apr. 5, 1991).  In making its award, the court properly noted that the expenses claimed were necessary to defend against a medical malpractice claim, and that defendant was prepared to call these witnesses, had the court not directed a verdict in its favor.  Therefore, the district court did not abuse its discretion, either in its initial award of costs and disbursements or in the augmented award.