This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-603

 

Donald E. Baumann,

Respondent,

 

vs.

 

Christine Lemke,

Appellant.

 

Filed ≠≠≠November 6, 2001

Affirmed in part and reversed in part

Forsberg, Judge*

 

Wright County District Court

File No. C799959

 

 

Sheila K. Donnelly-Coyne, Paige J. Donnelly, Ltd., 900 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)

 

Lee L. La Bore, Lori L. Jensen-Lea, La Bore, Giuliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN 55343 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Forsberg, Judge.


U N P U B L I S H E D†† O P I N I O N

 

FORSBERG, Judge

 

††††††††††† Appellant challenges the denial of her posttrial motions for a new trial or for remittitur.† We see no abuse of discretion in the denial of the motion for a new trial and affirm.† Because reasonable minds could have found that respondent suffered past wage loss, we affirm that part of the juryís verdict, but we reverse the award for future medical damages because expert testimony did not establish that respondent will require future medical treatment.

FACTS

††††††††††† In April 1997, respondent Donald Baumann, a polio victim who walked with the aid of two sticks, was struck by a car driven by appellant Christine Lemke.† Respondentís leg was fractured and he underwent surgery.† He used about four months of accumulated sick leave during his recovery.† By April 1998, there were no restrictions on respondentís activity and his doctor, asked for an assessment of his condition, said that respondent required no further care.

Respondent brought this action against appellant.† During trial, the jury saw videotaped depositions of respondentís doctor and of appellantís expert medical witness, an orthopedic surgeon who had examined respondent.† Appellant objected to two questions on the special verdict form, past wage loss and future medical expenses, on the grounds that respondent had produced no evidence to support them. Both questions nevertheless went to the jury.†

Appellantís attorney did not object to respondentís counselís closing argument during its delivery or immediately afterwards, but later moved for a mistrial on the basis of statements respondentís counsel made during closing argument.† The motion was also denied.†

The jury returned a verdict for respondent that included $21,000 for past wage loss and $20,000 in future medical expenses.† Appellant moved for a new trial or for remittitur on these items, contending that she had been unjustly prejudiced by the closing argument of respondentís counsel and that the juryís awards for past wage loss and future medical expenses were unsupported by the evidence.† The district court denied the motion, and appellant now reiterates those arguments to this court.

D E C I S I O N

 

1.†††††††† Closing Argument

Whether improper closing argument had a prejudicial impact on the jury so as to require a new trial is a matter within the discretion of the trial judge who was present when the improper argument was made and could observe its impact on the jury.

 

Fischer v. Mart, 308 Minn. 218, 218, 241 N.W.2d 320, 320 (1976) (affirming denial of a motion for a new trial based on closing argument even though closing argument was held to be improper).† The trial judgeís determination on whether the closing argument had a prejudicial effect ďis generally entitled to deference absent clear abuse of discretion.Ē† Id. at 220, 241 N.W.2d at 322 (citation omitted).† In denying appellantís motions for a mistrial and for a new trial, the district court implicitly found no prejudice to appellant from respondentís counselís closing argument.†

Appellant alleges that respondentís counsel misled the jury by telling it that, if respondent were found ten percent at fault, ten percent of his medical bills would not be paid, and that, if he were found more than 50 percent at fault, none of his medical bills would be paid, when in fact all respondentís medical bills had already been paid.† Like the court in Fischer, ďwe do not condone improper argument of this nature.Ē† Id., 241 N.W.2d at 322. However, unlike the district court, we were not present when this argument was made and we did not observe its impact on the jury; now, we see no indication that it confused or misled the jury.† Absent such indication, there was no abuse of discretion in denying the motion for a new trial.† See Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515, 522-23 (Minn. App. 1991) (affirming denial of motion for new trial where trial court did not believe that ďcounselís remarks [on the results of the juryís verdict in a comparative fault case] confused or misled the juryĒ), review denied (Minn. Jan. 27, 1992).[1]

††††††††††† Appellant also objected to respondentís counselís calculation of the income appellantís expert medical witness derived from conducting independent medical examinations and giving depositions for insurers.† As the jury learned from his videotaped deposition, appellantís medical expert spends six weeks a year donating his services in the Ukraine.† Respondentís counselís calculation of the expertís income was based on his working 52 weeks per year and was therefore inaccurate.† However, the inaccuracy was arguably de minimis, and there is no evidence that it had any impact on the jury or that it resulted in prejudice. It does not warrant a new trial.† See Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670, 676 (holding that a new trial is not granted for counselís misconduct unless the misconduct is severe, has an impact on the jury, and clearly results in prejudice), review denied (Minn. Aug. 2, 1991).

2. ††††††† Sufficiency of the Evidence

††††††††††† Once the jury resolves an issue on a special verdict form, its decision can be set aside only ďif no reasonable mind could find as did the jury.Ē† Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997) (citation omitted).† Appellant contends that the jury verdicts on past wage loss and on future medical damages should be set aside.

Respondent was unable to do his job as a teacher for about half of an academic year: from mid-April to mid-June and from the beginning of September through early November.† Through his sick leave plan, he received his usual compensation during this period.† Use of sick leave is considered income loss.† Minn. Stat. ß 65B.44, subd. 3 (2000).† Respondent lost about half an academic yearís worth of sick leave, and the jury awarded him about half his academic yearís salary.† Reasonable minds could find, as the jury did, that respondent was entitled to $21,000 in past income loss.

††††††††††† But reasonable minds could not find that respondent is entitled to $20,000 in future medical expenses.††

There are two requirements in the award of future medical expenses.† The first is whether future damages in the form of future medical treatments will be required.† The second requirement is that not only the necessity, but the amount of the damages be established by expert testimony.

 

Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990) (citation omitted), review denied (Minn. Feb. 21, 1990).†

Neither partyís medical expert provided testimony from which reasonable minds could infer that respondent would require future medical treatment. Appellantís medical expert testified that any further deterioration respondent experienced would result from respondentís polio, not from the injury.

Respondentís medical expert was the doctor who had treated respondent from the time of the injury.† He testified that he examined respondent in May 1998 and told him, ď[y]ou donít have to see me unless you feel you need to for some reason.Ē

Respondentís doctor did not see him again until August 1999, when they discussed the possibility of further treatment.† The doctor testified about their discussion.

††††††††††† Q.††††††† And what you told him at that time was that he did not need any future treatment in your best medical opinion?

††††††††††† A.††††††† Yes.

††††††††††† Q.††††††† Which was consistent with what you had previously written in the letter to the attorneys, correct?Ē

††††††††††† A.††††††† Yes.

 

†The doctor was then asked about his most recent examination of respondent in June 2000, a week before the deposition.

††††††††††† Q.††††††† [Y]our recommendation was essentially continue things as they had been, which was, you donít need to treat.† If you want to come back, you can?

††††††††††† A.††††††† Right.


††††††††††† Q.††††††† And thatís how itís been left with him at this time and really since August 3rd, 1999?

††††††††††† A.††††††† Yes.

 

Finally, at the end of the deposition, the doctor was asked,

Q.††††††† You are still of the opinion that, based on your assessment of [respondent], he doesnít need any future care, correct?†

A.††††††† Correct.† But, as I said, unless things change for the worse, he may.† But right now, I donít think he does.

 

Reasonable minds could not construe this testimony as expert evidence establishing that future medical treatment is required.† See id.† The juryís award of future medical damages did not meet the Lind criteria.

††††††††††† We affirm the denial of the motion for a new trial and the award of past income loss, but we reverse the award of future medical damages.

††††††††††† Affirmed in part and reversed in part.

†††††††††††



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

[1] We note that in Hahn, as here, counsel for appellant ďfailed to make a timely objection during or immediately after [respondentís] counselís closing argument.Ē† Id. at 523.† Hahn held that ď[a] new trial is unwarranted in the absence of an objection and request for curative instructions.Ē Id. (citing Bisbee v. Ruppert, 306 Minn. 39, 48, 235 N.W.2d 364, 370 (1975)).