This opinion will be unpublished and

may not be cited except as provided by

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






Charles Pfisthner,





Edward A. Charnowski,



Filed November 27, 2001


Harten, Judge


St. Louis County District Court

File No. C6-00-601135


Boad S. Swanson, Marcovich, Cochrane, Milliken & Swanson, P.A., 1214 Belknap Street, Superior, WI 54880 (for appellant)


Robert E. Mathias, Attorney at Law, 724 East Superior Street, Duluth, MN 55802 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.*


U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court’s denial of his motion for a new trial on his negligence claim.  He argues that the jury’s special verdict was perverse because it disregarded the testimony of two physicians, failed to award all of his past medical expenses, and did not award any future damages despite finding that appellant suffered a permanent injury.  Because we conclude that the verdict was not perverse, we affirm.



Appellant Charles Pfisthner and respondent Edward A. Charnowski were in an automobile accident on October 3, 1997.  Appellant sued respondent for negligence, claiming that the accident caused him neck and arm injuries.

At the trial, Dr. Stefan Konasiewicz testified for appellant and Dr. Richard Galbraith testified for respondent.  Both physicians stated that appellant was injured in the accident, but they disagreed about the permanency of the injuries and the need for any additional treatment.  Dr. Konasiewicz testified that appellant did suffer a permanent injury; Dr. Galbraith stated, “I could not find any causation as a residual or a permanent residual as a result of the accident” and that appellant did not need “any further care or treatment.” 

Appellant offered an exhibit listing the $19,026.38 total medical expenses from the accident.  Dr. Konasiewicz stated that all treatment received was “reasonable and necessary.”  The exhibit listed expenses from a chiropractic clinic totaling $6,116.13.  On cross-examination appellant admitted this clinic treated him for “both * * * low back and * * * neck problems.” 

Respondent presented evidence that appellant sought treatment for his neck, arms, and back before the accident.  Appellant admitted that, according to medical records, he was hospitalized for neck and lower back problems in 1988.  Another record from January 1988 read, “[m]ost of the left shoulder discomfort started when he [appellant] had his neck cracked by a chiropractor.” 

Respondent also submitted medical records from Superior Neurosurgery showing that appellant was treated in the late 1980’s and early 1990’s for neck and back pain.  A record dated January 25, 1988, recommended both a CT and a MRI of the “neck area” to determine what was causing appellant discomfort.  Another medical report from January of 1988 noted that appellant had neck pain in the past and that his left wrist “went out” two years earlier. 

Both physicians stated at trial that they were unaware of appellant’s complete medical history.  Dr. Konasiewicz remarked he had no records or knowledge of “any similar [neck or arm] problems prior to * * * 1997.”  Appellant admitted on cross-examination that he did not reveal to Dr. Konasiewicz these earlier incidents even though the doctor specifically asked appellant if he had “any problems with neck pains before this auto accident.” 

            The jury found that appellant suffered a permanent injury and disfigurement and awarded $2,500 for past pain, disability, disfigurement, and emotional distress; $1,500 for past wage loss; and $8,500 for past health care expenses, for a total of $12,500.

            The district court denied appellant’s motion for a new trial.  This appeal followed.


 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 a light most favorable to the verdict. 


ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).  “If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.”  Hanks v. Hubbard Broad, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citations omitted), review denied (Minn. Feb. 12, 1993).  

Appellant first argues that in not awarding compensation for all of appellant’s past medical expenses, the jury “disregarded uncontroverted testimony of various witnesses,” namely Dr. Konasiewicz and Dr. Galbraith.  A jury may disregard medical expert testimony 

in whole or in part unless the opinions are so positive as to exclude all doubts as to the matter on which they are given and unless based on testimony which is positive, consistent, unimpeached, and uncontradicted.


Barrera v. Muir, 553 N.W.2d 104, 107 (Minn. App. 1996), review denied, (Minn. Oct. 29, 1996) (citations and quotations omitted). 

Although neither physician testified that appellant’s injuries resulted from a pre-existing condition, respondent offered evidence, through exhibits and cross-examination, that appellant had neck and arm problems before the accident.  Furthermore, Dr. Konasiewicz was not fully informed of appellant’s medical history.  This evidence contradicts, or at least places in doubt, the physicians’ testimony that appellant’s injuries were wholly caused by the accident.  See Rud v. Flood, 385 N.W.2d 357, 360 (Minn. App. 1986) (party may refute claim of injury by cross-examination and reference to medical records).  Additionally, appellant admitted on cross-examination that some of the pre-accident chiropractic treatment he received was for his back.   

The jury’s decision not to award all of appellant’s past medical expenses can be reconciled under either of two theories:  that some of appellant’s injuries were caused by  a pre-existing condition for which respondent was not responsible or that some of his treatment was for a condition unrelated to the accident.  See Raze v. Mueller, 587 N.W.2d 645, 648-49 (Minn. 1999) (jury could have concluded that some of the current problems were from a pre-existing condition); see also Buttz v. Bergeson, 392 N.W.2d 917, 920 (Minn. App. 1986) (jury given wide deference to determine adequate compensation). 

            Appellant also contends that it was inherently contradictory for the jury to find that appellant suffered a permanent injury, but not award damages for future medical expenses, lost wages, or pain and suffering.  However, the jury could have found that the permanency of appellant’s injury resulted from his pre-existing condition, not from the accident.  Alternatively, the jury could have inferred that, although appellant suffered a permanent injury, additional medical treatment would not help him, an inference that is supported by Dr. Galbraith’s statement that appellant needed no further medical treatment. 

            We conclude that because the jury’s decision is not palpably contrary to the evidence, the verdict must stand.  See Hanks, 493 N.W.2d at 309.  Accordingly, the district court did not abuse its discretion in denying appellant’s motion for a new trial.       


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