This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Gerald A. Irrthum, et al.,





Western National Mutual

Insurance Company,



Filed May 27, 2003

Affirmed in part, reversed in part

Hudson, Judge


Dakota County District Court

File No. C6018465


Timothy K. Dillon, 400 West Mill Street, Cannon Falls, Minnesota 55009 (for respondents)


James T. Martin, Julian C. Janes, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue, Suite 444, Edina, Minnesota 55435 (for appellant)


Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


After respondents Gerald and Mary Irrthum settled their claim for damages arising out of an automobile accident against the at-fault driver, they sued appellant Western National Mutual Insurance Company, their insurer, for underinsured motorist benefits.  The jury returned a verdict for the Irrthums, and the trial court denied posttrial motions.  Western contends that (a) the trial court committed prejudicial error in admitting speculative expert testimony as to the relationship between the accident and Gerald Irrthum’s shoulder problems; (b) damages are excessive as a matter of law and the evidence does not support the verdict that the accident caused Gerald Irrthum’s injury or Mary Irrthum’s loss of consortium claim; and (c) Western is entitled to judgment notwithstanding the verdict on the jury award for future medical expenses.  We affirm on all issues except that of future medical expenses, which we reverse. 


            Sixty-three year old Gerald Irrthum was injured in September 1999 while driving near Randolph, Minnesota.  Both parties agree that the driver of the vehicle that struck Irrthum’s truck was solely at fault for the accident.

Gerald Irrthum and his wife, Mary Irrthum, settled their claim for damages against the at-fault driver arising from the automobile accident.  They then sued appellant Western National Mutual Insurance Company, their insurer, for underinsured motorist benefits.  A jury trial was held in March 2002.

Pre-Accident Medical History

At trial, Gerald Irrthum testified as to his injuries and also presented deposition testimony from his treating orthopedic physician, Dr. Bradley Wille.  Dr. Wille testified as to Irrthum’s pre-accident medical history, including coronary bypass surgery in 1991, two hip replacements in 1992 and 1996, and spinal stenosis.  In 1987, a bull knocked Gerald Irrthum against a gate post, dislocating Irrthum’s shoulder, which was successfully put back into place.  Irrthum also had rotator cuff pathology and was apparently told that he had tendonitis, but his medical records reveal no rotator cuff tears in either shoulder before the accident.

Post-Accident Medical History

When Gerald Irrthum went to the emergency room immediately after the accident, he complained of upper back pain, right shoulder pain and abdominal pain.  He made no complaint of left shoulder pain.  An MRI of Irrthum’s right shoulder taken a month later revealed a massive rotator cuff tear of the right shoulder.  Rotator cuff surgery was performed on the right shoulder in early November 1999.  In February 2000 a CT scan of the thoracic spine showed a T-7 compression or crush fracture. 

In May 2000, Irrthm reported that he fell down a step and hurt his back; he reported pain in his right lower back.  Chiropractic records showed that he made a speedy recovery and was discharged on an “as-needed” basis.  In October 2000, Irrthm returned to the chiropractor reporting left cervical pain radiating to his left arm.  In November 2000 Irrthum was diagnosed with an extensive rotator cuff tear on his left side.  He underwent rotator cuff surgery on the left arm in December 2000.

Dr. Wille testified in his deposition that, although the left shoulder surgery initially appeared successful, the subsequent clinical exam suggested the repair had torn, and that he did not believe there was anything further that could be done surgically.  He had the same opinion as to the right rotator cuff injury.  Dr. Wille testified that Gerald Irrthum’s rotator cuff injuries and the crush fracture of the T-7 spine were permanent injuries and that, as a result, Irrthum could not put either arm behind his back for such activities as bathroom hygiene or reaching above shoulder level.  Dr. Wille also testified that Irrthum had  a lifting restriction of five to ten pounds up to shoulder level.  He confirmed that Irrthum’s pain was ongoing and that his injuries were “activity sensitive.”  Dr. Wille reported that both shoulders had the potential for getting worse, and that Irrthum will have difficulty living independently. 

Irrthum testified that, with his arm restrictions, he cannot comb his hair, reach items in high places, or attend to his personal bathroom hygiene.  He cannot adjust the car mirror or turn on the car radio.  He can no longer perform outside chores.  Mary Irrthum reported that, before the accident, Irrthum helped her with refinishing in a small antiques business that they shared, plowed snow, mowed the lawn, and golfed; he was now unable to do any of these activities.

Causation of Left Shoulder Injury

Dr. Wille testified that, when he operated on Irrthum’s left shoulder after the accident, he found a massive tear of the rotator cuff, with “very similar pathology to that which was found on the right.”  He testified that, before the accident, Irrthum’s medical charting revealed no rotator cuff tears of any kind.  Over foundation objections by Western’s counsel, Dr. Wille also testified that it was extremely difficult to know when the left shoulder injury occurred, but he believed the accident was a potential contributing event to the left shoulder injury.  He testified that the condition of the massive tear on Irrthum’s right arm “[a]bsolutely” put an extra burden on his use of the left arm.  Dr. Wille noted that “after the surgery he had become increasingly dependent on his left side and I think it was the dependence on the left side that caused him to have enough symptoms to warrant doing something more surgically.” 

In addition, the jury heard excerpts from two separate opinions of Dr. William Kane, Western’s orthopedic medical expert, who originally came to this case as an independent medical examiner in the underlying action with the liability insurer.  During Dr. Wille’s deposition, Irrthum’s attorney read to him Dr. Kane’s written opinion in the original case, in which Dr. Kane opined that Gerald Irrthum had a permanent physical impairment involving both the left and right shoulders and that the September 1999 motor vehicle accident was a contributing factor.  In Dr. Kane’s deposition taken immediately before trial, however, he changed his opinion and reported that the accident did not contribute to the left shoulder injury.

Future Medical Expenses

In his deposition, Dr. Wille testified that Gerald Irrthum’s clinical records suggested that the rotator cuff repairs had torn, and that he did not believe that “there was anything further that can be surgically done for that.”  Dr. Wille noted that, with the massive tear in Irrthum’s right shoulder and the clinical evidence that it had returned, there was a frequently-developing degenerative condition called “cuff tear arthropathy,” which could often require surgery if the symptoms were severe.  He gave his “educated guess” that the total cost of shoulder replacement surgery would be between $25,000 and $50,000 per shoulder.  No further evidence on future medical expenses was provided.

The jury returned a verdict in favor of the Irrthums for $815,000.  This sum included $50,000 for Gerald Irrthum’s past pain and suffering; $480,000 for his future pain, disability and emotional distress; $100,000 for future medical expenses; $25,000 for past loss of consortium on behalf of Irrthum’s wife, Mary Irrthum; and $160,000 for her future loss of consortium.  The trial court entered a stipulated order for amended judgment, based on the fact that payments had previously been received by the Irrthums, including a payment of $100,000 made on behalf of the driver of the at-fault party before the commencement of the action, and to reflect that the maximum judgment to be entered was the $500,000 limit of underinsured motorist coverage.  Western moved for a new trial on the basis that (a) the trial court committed reversible error in overruling Western’s objections to the causation testimony, (b) damages were excessive as a matter of law, and (c) the Irrthums’ counsel in final argument improperly prejudiced the jury.  Western also moved for judgment notwithstanding the verdict (JNOV) on the issue of future medical expenses.  The trial court amended judgment to the sum of $500,000, but denied the motions for JNOV and a new trial.  This appeal followed.



The decision to grant a new trial lies “within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990) (citation omitted).  Where the trial court exercised no discretion but instead based its order on an error of law, however, a de novo standard of review applies.  Id.

Western first challenges the trial court’s denial of its motion for a new trial based on the court’s alleged evidentiary error in allowing what Western claims was Dr. Wille’s speculative medical testimony on causation.  A trial court’s decision to exclude expert testimony rests within its sound discretion, and we will not reverse its decision unless it is based on an erroneous view of the law or an abuse of its discretion.  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998); Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  “The trial [court] is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion.”  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 446 (Minn. 1990) (citation omitted). 

Western claims that Dr. Wille’s testimony about causation of the left shoulder injury was speculative and lacked proper foundation.  But Dr. Wille, as Gerald Irrthum’s treating orthopedic physician since 1992, had an adequate factual basis for establishing that Irrthum’s left shoulder required surgery after the accident:  namely, an MRI taken in the fall of 2000 showed a large rotator cuff tear on Irrthum’s left side.  From examining Irrthum, Dr. Wille could properly draw the reasonable inference that, in his medical opinion, after the accident Irrthum became increasingly dependent on his left arm, which gave him more symptoms and ultimately warranted surgery.  Moreover, it was uncontroverted that Irrthum had no massive rotator cuff tears in either shoulder prior to the motor vehicle accident.

          To constitute reversible error, evidentiary error must be prejudicial and an abuse of discretion.  Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).  Western argues that allowing Dr. Wille’s testimony was prejudicial error because, absent that testimony, the jury would not have heard evidence linking Irrthum’s left shoulder injury to the accident and therefore would not have awarded such a large verdict, based on Irrthum’s inability to perform basic household and self-care tasks.  But we conclude that the trial court did not abuse its discretion in allowing Dr. Wille’s testimony because Dr. Wille, as Irrthum’s treating physician, was in a unique position to assess his injuries, and Western’s counsel conducted a vigorous cross-examination during Dr. Wille’s videotaped deposition, which was shown to the jury.  Moreover, the trial court specifically instructed the jury to limit damages for any pre-existing condition only to those damages over and above those which would have occurred without the accident.  Finally, the jury had not only the expert medical opinion of Dr. Wille before it, but also two separate reports from Dr. Kane, Western’s medical expert. In Dr. Kane’s first letter, introduced through Dr. Wille’s deposition, Dr. Kane stated his opinion that the accident had contributed to Irrthum’s left shoulder injury.  Although Dr. Kane later changed his opinion, the jury was free to make determinations of credibility from his testimony.  “Assessment of witness credibility is the unique function of the factfinder.”  Tews v. Geo. A. Hormel Co., 430 N.W.2d 178, 180 (Minn. 1988) (citation omitted).  Therefore, we conclude that the trial court’s decision to allow Dr. Wille’s testimony on causation did not constitute prejudicial error.

Western also challenges the sufficiency of the evidence to support Dr. Wille’s testimony on causation.  In reviewing the denial of a motion for a new trial on the ground that the evidence was insufficient to support the jury’s verdict, this court views the evidence in a light most favorable to the verdict.  Gordon v. Hoffman, 303 N.W.2d 250, 252 (Minn. 1981).  We will reverse a jury verdict only if it is “manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Roemer v. Martin, 440 N.W.2d 122, 124 (Minn. 1989) (quotation omitted).  Specifically, when reviewing a jury verdict on causation, “we do not determine which experts we would have believed, but whether the jury had adequate facts to support its finding of causation.”  Blatz v. Allina Health Syst., 622 N.W.2d 376, 387 (Minn. App. 2001), review denied (Minn. May 16, 2001).

In this case, Dr. Wille’s testimony, supported by his personal medical treatment of Irrthum, was reliable evidence that the accident forced Irrthum to become more dependent on his left arm, which in turn led to the massive rotator cuff injury in his left shoulder.  Dr. Kane, in his first report, also noted the accident as a contributing factor to Irrthum’s permanent physical impairment involving both his left and right shoulders.  Therefore, the jury could have reasonably concluded that the accident was a substantial cause of Irrthum’s left rotator cuff injury.  As such, we hold that the evidence of causation is sufficient to uphold the jury’s verdict.

Western additionally challenges the jury verdict as excessive.  A trial court may grant a new trial on the issue of excessive damages that appear “to have been given under the influence of passion or prejudice” or are “not justified by the evidence.”  Minn. R. Civ. P. 59.01 (e), (g).  Trial courts possess “the broadest possible discretion” in determining whether to grant a new trial on the basis of excessive damages.  Bisbee v. Rupert, 306 Minn. 39, 48, 235 N.W.2d 364, 371 (1975).  Although a damages award may be large in comparison to the severity of the plaintiff’s injuries, “the assessment of damages is the peculiar province of the jury.”  Schindele v. Ulrich, 268 N.W.2d 547, 552 (Minn. 1978).  The test for setting aside the verdict is whether it “shocks the conscience.”  De Witt v. Schubauer, 287 Minn. 279, 286, 177 N.W.2d 790, 795 (1970).  

In closing argument, Irrthum’s counsel referred to Irrthum’s future life expectancy of 16 years.  Thus, the jury’s original award of $480,000 for future pain, disability, and emotional distress would have provided Irrthum with $30,000 in future damages per year of his life expectancy.  Posttrial, this total was reduced to comport with the limit on Western’s underinsured motorist policy.  In view of Gerald Irrthum’s pain, his physical limitations, and the permanent nature of his injuries, we conclude that the jury’s verdict is sustained by the evidence, and thus, we uphold the trial court’s denial of a new trial on the basis of excessive damages.      

Western also argues that inappropriate comments from Irrthum’s counsel in closing argument improperly influenced the jury.  Although the record does reflect several inappropriate remarks, we note that the trial court promptly sustained Western’s objections and instructed the jury to disregard the improper comments.  Because they were stricken from the record, these comments had minimal impact on the jury’s verdict and did not result in excessive prejudice to Western.  See, e.g., Mueller v. Sigmond, 486 N.W.2d 841, 844 (Minn. App. 1992) (stating new trial unnecessary in face of improper comment during closing argument where curative instruction read unless misconduct “extremely prejudicial”), review denied (Minn. Aug. 27, 1992).

Western finally contends, in its motion for a new trial, that the evidence does not support Mary Irrthum’s loss of consortium claim.  The Minnesota Supreme Court has held that “[c]onsortium * * * represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other.”  Thill v. Modern Erecting Co., 284 Minn. 508, 510, 170 N.W.2d 865, 867-68 (1969).  A “predominant element” is “the loss of a sexual relationship.”  Id. at 510-11, 170 N.W.2d at 868. Western maintains the lack of evidence concerning the Irrthums’ sexual relationship precludes Mary Irrthum from recovering on her loss of consortium claim.  But the evidence shows that Mary Irrthum lost her husband’s companionship and marital support to a significant degree.  After Gerald Irrthum’s injury, she had to perform all household tasks on the farm, even assisting her husband with his personal bathroom hygiene.  The Minnesota Supreme Court has been “reluctant in past cases to set aside even the most generous awards for loss of consortium.”  Busch v. Busch Const., Inc., 262 N.W.2d 377, 399 (Minn. 1977).  Therefore, we conclude that the record supports the jury’s loss of consortium award to Mary Irrthum of $10,000 per year for her husband’s projected 16-year life expectancy. 


We review de novo the denial of a motion for JNOV.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  We view the evidence in the light most favorable to the nonmoving party and determine whether the verdict is manifestly against the evidence as a whole or whether, “despite the jury’s factual findings, the moving party is entitled to judgment as a matter of law.”  Id.

Western maintains that the trial court erred in denying JNOV on the issue of Gerald Irrthum’s future medical expenses.  In order to justify an award of future medical expenses, the plaintiff must show that future medical treatments will be required and must also establish the amount of the damages through expert testimony.  Lind  v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).  Estimates of future damages must have a reasonable basis.  Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987).  Although proof to an absolute certainty is not required, future damages that are remote, speculative, or conjectural cannot be recovered.  Austin v. Rosecke, 240 Minn. 321, 322, 61 N.W.2d 240, 242 (1953). 

In this case, Western made a posttrial motion to exclude evidence on future medical expenses; the trial court denied the motion but noted that it was “a close call.”  At trial, the only evidence submitted concerning Gerald Irrthum’s future medical expenses came from Dr. Wille.  Dr. Wille testified that with the massive tear in Irrthum’s right shoulder and the clinical evidence that it had returned following surgery, there was a degenerative condition that frequently developed called “cuff tear arthropathy.”  Dr. Wille stated that this condition often required shoulder replacement surgery if the symptoms were severe.  Dr. Wille gave his “educated guess” that the total cost of shoulder replacement surgery would be between $25,000 and $50,000 per shoulder.  The record, however, contains no medical evidence that Irrthum, in fact, will develop cuff tear arthropathy and thus need future surgery.  Nor did Irrthum present specific estimates of future medical expenses required for his current medical conditions.  See Lind, 450 N.W.2d at 358 (reducing award for future medical expenses when testimony did not support original award).  Although Dr. Wille testified that with Irrthum’s injuries, it would be very difficult for him to live independently, no expenses were submitted for in-home health care or other associated expenses.  Therefore, the jury’s award of damages for future medical expenses must have been based solely on Dr. Wille’s speculation that Irrthum will develop “cuff tear arthropathy” and require associated surgery for that condition.  This evidence, by itself, is insufficient to sustain the jury’s award for future medical expenses, and we conclude that the trial court erred in failing to order JNOV on this issue as a matter of law. 

Affirmed in part, reversed in part.