This opinion will be unpublished and

may not be cited except as provided by

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






Mark Hammel,





Joseph Simmon,




Filed April 9, 2002

Reversed and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. PI003841





Adam P. Rutzick, Steven R. Rutzick & Associates, 2620 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)


Karen R. Cote, Patrick M. Conlin, Brett W. Olander & Associates, 1000 Norwest Tower, 55 East Fifth Street, St. Paul, MN 55101 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.*


U N P U B L I S H E D  O P I N I O N


            Appellant Mark Hammel argues that the district court erred in denying his motion for a new trial, or in the alternative, additur, because the evidence does not support the jury’s verdict.  Because the jury’s verdict is inconsistent and not supported by the evidence on the issue of past pain, we reverse and remand for a new trial, or for a conditional additur.


            On November 29, 1995, appellant Mark Hammel was traveling west on Highway 394 when a vehicle driven by respondent Joseph Simmon rear-ended appellant.  Appellant did not go to the hospital from the scene of the accident, but by the time he returned home, his back and neck were becoming “stiff,” and he went to the urgent care center.  The discomfort in his back and neck continued, and he began to see a chiropractor for treatment.  Soon after chiropractic treatment began, appellant noticed a “shooting” pain down his right arm into his hand, and over time his arm and hand went numb at night.

Appellant continued to have problems with his neck, back and arm, and eventually sued respondent for his injuries.  Respondent admitted liability for the accident, and a jury trial was held on damages only. 

Appellant was treated by two chiropractors, who testified that appellant suffered, and continues to suffer from, a back injury that requires ongoing chiropractic treatment.  Respondent’s expert, who performed an independent medical examination, testified that, although he believes that appellant did not suffer from a permanent injury and no longer needs chiropractic treatment, treatment was reasonable for six weeks after the accident, and he stated that appellant suffered from a back strain from the accident. 

            The jury found that appellant sustained a permanent injury, and awarded him $10,328 in past medical expenses, $3,179 for diagnostic tests, and $1,500 in lost wages.  The jury also awarded $10,000 for future medical expenses, but awarded appellant nothing for past or future pain, disability, and emotional distress. 

Appellant moved for a new trial, or in the alternative, conditional additur for his past and future pain, disability, and emotional distress.  The district court denied appellant’s motion in its entirety, and appellant challenges the district court’s post-trial order.


1.         Denial of new trial

A new trial may be granted if the verdict is not justified by the evidence, or is contrary to law.  Minn. R. Civ. P. 59.01 (g).  The decision whether to grant a new trial for insufficient damages is within the district court’s discretion, and we will not overturn that decision absent a clear abuse of that discretion.  Pomije v. Scheiber, 371 N.W.2d 596, 600 (Minn. App. 1985).  We will substitute our judgment for that of the jury only if there is no evidence reasonably tending to sustain the verdict or if the verdict is manifestly and palpably against the weight of the evidence.  Baker v. Amtrak Nat’l R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn. App. 1999). 

The district court agreed that the jury’s finding of a permanent injury was inconsistent with its failing to award damages for past or future pain.  When a jury verdict is inconsistent, the district court may, among other things, reconcile the jury’s verdict based upon the record by using its power of interpretation.  Bogut v. Jannetta, 410 N.W.2d 451, 454 (Minn. App. 1987).  The district court chose to reconcile the jury’s verdict, and in doing so, compared the circumstances in this case to the circumstances in Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999). 

In Raze, there was conflicting medical testimony as to whether appellant suffered from past pain caused by the accident.  Id. at 646-48.  But unlike Raze, no conflicting testimony exists in this case as to whether appellantsuffered from past pain.  Appellant’s chiropractors, as well as respondent’s medical expert agree that appellant suffered from pain caused by the accident, which was significant enough to warrant at least six weeks of chiropractic treatment.  Although the district court attempted to interpret the jury’s verdict, the court ignored the fact that the evidence is uncontested that appellant suffered from past pain, and in essence, allowed the jury to reject that evidence.  Thus, the circumstances of this case are not analogous to those in Raze

The district court also reasoned that the jury possibly rolled appellant’s award for past pain into its award of future medical expenses; however, the verdict shows otherwise.  The special verdict form poses two separate categories for damages: one for past pain, and the other for future medical expenses.  The jury clearly awarded nothing for past pain, but awarded appellant for future medical expenses.  Thus, the district court’s reasoning on this issue is not reconcilable with the record. 

We intervene when only special damages were awarded despite proof of general damages such as pain, suffering, and disability.  Carnahan v. Walsh, 416 N.W.2d 187, 189 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988); see also Bogut, 410 N.W.2d at 454 (remand where special verdict question cannot be reconciled because jury failed to award general damages despite evidence of such).  Thus, the district court abused its discretion in attempting to reconcile the jury’s verdict with the record, because the jury’s verdict is manifestly and palpably contrary to the evidence.

2.         Denial of additur

Appellant also argues that the district court erred in denying his motion for conditional additur.  Whether to grant additur rests “almost wholly” within the district court’s discretion.  Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988).  The district court “cannot grant additur unless grounds for a new trial on damages exist, since the court is, in effect, conditionally granting a new trial.”  Id. 

Since grounds exist for a new trial, the district court may elect to grant appellant’s motion for conditional additur, or may grant a new trial on the issue of damages for past pain.

            Reversed and remanded.

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