This opinion will be unpublished and

may not be cited except as provided by

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






Marcella Elizabeth Steele,





Christopher Harold Qualen, et al.,



Filed July 29, 2003


Randall, Judge


Anoka County District Court

File No. C0-00-869


Marc G. Kurzman, Kurzman Grant & Ojala Law Office, 219 Main Street Southeast, Suite 403, Minneapolis, MN 55414 (for appellant)


Jennifer E. Ampulski, Meagher & Geer P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from the district court’s order granting a new trial, appellant contends that the district court erred in granting respondents’ motion for a new trial on the sole issue of damages.  The district court found insufficient evidence, as a matter of law, to sustain the award of damages.  Appellant claims her own testimony and the medical records do support the award.  Further, appellant argues that the district court failed to make the specific finding of passion or prejudice required to grant a new trial under Minn. R. Civ. P. 59.01(e).  Because we conclude that the district court did not abuse its discretion in ordering a new trial on damages, we affirm. 


            Appellant Marcella Steele was involved in an accident with a car driven by and owned by respondents on March 19, 1994.  Steele was also in two other accidents, one occurring on March 27, 1992, and the other on June 14, 1995. 

            At trial, appellant testified about the nature of the accident, her injuries and treatments, the approximate costs of these treatments, and her loss of earning capacity.  Appellant also offered her medical records into evidence.  In response, the defense offered the expert testimony of Dr. Ansar Ahmed.  He testified that his examination of appellant found nothing that explained her complaints of pain.  He testified that his review of her MRI records showed that her spine was normal.  He concluded that this accident did not cause her any disabilities and that she was not in need of any further medical care.  Finally, he concluded that the chiropractic expenses she claimed were neither reasonable nor necessary in relation to the accident.   

            The first jury returned a verdict in appellant’s favor for $140,000.  Respondents made post-trial motions for JNOV, remittitur, and a new trial.  The district court denied the motions for remittitur and JNOV, but granted their motion for a new trial on damages alone under rule 59.  The second jury awarded $21,000, after deduction of collateral-source offsets.  This jury concluded that appellant did not suffer a permanent injury from the accident.  Appellant now challenges entry of judgment on the second jury verdict and the order granting a new trial.




            First, respondents argue that the district court’s grant of a new trial is “not reviewable.”  For this proposition, they cite Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990), and Patton v. Minneapolis Street Railway Co., 245 Minn. 396, 398, 71 N.W.2d 861, 862 (1955).  These cases are distinguishable.  Their language about the second trial “wiping out” the first is directed to evidentiary and at-trial issues.  The cases do not indicate that a district court’s grant of a new trial on the issue of damages is never reviewable after the second trial has concluded.

            The rules of appellate procedure do not explicitly discuss this situation.  But, rule 103.04, entitled “scope of review,” states:

On appeal from or review of an order the appellate courts may review any order affecting the order from which the appeal is taken and on appeal from a judgment may review any order involving the merits or affecting the judgment.  They may review any other matter as the interest of justice may require.


Minn. R. Civ. App. P. 103.04.  A district court’s grant of a new trial is not reviewable in and of itself, before the second trial commences, unless it is based solely upon an issue of law, rather than based on the district court’s discretion.  Minn. R. Civ. App. P. 103.03(d).  But this does not mean that the new trial order, based on a district court’s discretionary call, is never reviewable, as it certainly “affects the judgment” rendered after the second trial.  See Muehlstedt v. City of Lino Lakes, 466 N.W.2d 56 (Minn. App. 1991) (holding that order granting new trial on some issues, but denying new trial on all issues, is not appealable prior to the second trial).  Implicitly, Muehlstedt holds that the grant of a new trial is appealable after the second trial.  Even though the standard of review is abuse of discretion, litigants are entitled, at some time, to review of the district court’s grant of a new trial.  The issue is when, not if, review will be allowed.  Requiring litigants to wait until after judgment is entered in the second trial, when the second trial was a discretionary call, serves judicial economy.  Thus, we review this appeal on the merits.


The Record

The district court’s memorandum concludes, “the record is wholly incomplete of evidence for the jury to determine a damages amount.”  In its discussion of defendant’s motion for remittitur, the court discussed the alleged insufficiencies of the evidence to support the award.  As to past health-care expenses, the court noted that what little medical evidence there was assigned 40 percent of the injuries to the 1994 accident, whereas the jury assigned 60 percent.  The court also noted that the only evidence of past health-care expenses was plaintiff’s own testimony. 

As to past wages, the court noted that the record showed no “independent evidence” that any of the plaintiff’s injuries specifically prevented her from continuing work.  The court also noted that appellant never asked her employer to make any accommodations to enable her to continue working and that no evidence suggested she was unable to work elsewhere.  From this, the court concluded that the jury’s award for past wage loss was excessive and not justified by the evidence. 

As to future pain and suffering, the court found the jury’s award inconsistent with its finding that appellant did not suffer a permanent disability.  As to past pain and suffering, the court concluded the medical evidence was insufficient on the same basis as past health-care expenses and wage loss. 

A district court's ability to order a new trial must be “exercised with caution” but a reviewing court “will usually defer to the exercise of that authority by the trial court.”  Knuth v. Emergency Care Consultants, P.A., 644 N.W.2d 106, 113 (Minn. App. 2002) (citation omitted). 

            Appellant first argues that the new trial should not have been granted under rule 59 because the district court did not find that the first verdict was the “product of passion and prejudice.”  Next, appellant argues that the district court improperly concluded that appellant’s own testimony was not credible evidence and, by so doing, usurped the jury’s role as fact-finder. 

“If a jury verdict has any reasonable evidentiary support, both the trial court and appellate court must accept it as final.”  St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51 (Minn. App. 2000) (citation omitted).  With that in mind, we look to the record to determine if there is reasonable evidence supporting the jury’s verdict.

1.         Past Health-Care Expenses

Appellant’s testimony does not make clear when her medical expenses occurred.  At trial, counsel for appellant asked her about each of the three accidents in detail and then asked her about medical expenses.  It is unclear whether these expenses are only after the 1994 accident or whether they cover the entirety of her care after the 1992 accident.  It is clear that respondents cannot be responsible for expenses before their accident with appellant.  On cross-examination, it became apparent that appellant was experiencing the same problems that she suffered well before the 1994 accident. 

In fact, appellant’s medical records indicate, and she “had no reason to dispute,” that the month before the 1994 accident she reported to her doctor that the headaches were getting worse.  She had also recently (the month before the accident) switched medications in an attempt to better manage her pain.  The “approximate” figures that appellant gave are the only evidence of medical expenses.  Given the lack of evidence of whether the expenses approximately claimed related to only post-1994 expenses rather than her treatment for all the accidents, it is difficult to say that the district court abused its discretion in granting a new trial on this issue.

2.         Past Wages

Appellant’s testimony, including her testimony at her 2000 deposition that she “had no reason to dispute” at trial, establishes that she continued in her job driving a bus until 1996, nearly two years after the accident at issue.  For about half of this period, appellant also had a second job as a sales associate at Sears.  The $80,000 sought in damages comes not from any evidence, but rather from counsel’s argument that $80,000 ($10 per hour for 2000 hours a year for 4 years) would be a “fair” amount. 

            The only thing that appellant testified to in this regard was that following the 1994 accident she had “a weight restriction as to how much I could push, pull, carry.  I had time limits as far as sitting, standing, walking, bending, stooping, reaching above my head.”  She also testified that “[her employer] couldn’t accommodate the adjustments that needed to be made in my schedule to accommodate my disability.”  However, on cross-examination, she stated that she had no reason to dispute that there were, in fact, no restrictions between the 1994 accident and the middle of 1995, as she stated in her 2000 deposition.  There is no evidence in the record that she ever requested any accommodation from her employer.  Further, she continued in that job nearly two years after the accident.  We cannot say that the district court abused its discretion by granting a new trial based on the insufficient evidence to support appellant’s claim for lost wages. 

            3.         Future Pain and Suffering

            The district court found the award of future pain and suffering at odds with the jury’s finding that appellant had not suffered a permanent injury.  The court suggested that the jury must have thought that while not permanent, her injury was still not healed fully, but would heal in time.  This is logically reasonable, but lacks evidentiary support.  Both the expert testimony and appellant’s own testimony suggest that she has recovered as much as she ever will.  If, as the district court suggested, the jury awarded future pain and suffering on this basis, it cannot be sustained.  Any variety of pain and suffering whether past, present, or future, is inherently indeterminate.  Because of this, appellate courts are reluctant to disturb verdict amounts as excessive unless they “shock the conscience.”  Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 499 (Minn. App. 1996).  Here, however, the district court did not have a problem so much with the amount as excessive, but rather the lack of evidence to support a verdict.

Appellant argues that the district court somehow believed that one witness’s testimony was insufficient, as a matter of law, and, therefore, the district court erred.  If the district court had said that, it would be error.  But appellant has taken the court’s statement out of context.  When placed in context, the record is clear that the court believed the testimony was substantively lacking, to the point where it would not support the amount of damages awarded, even giving deference to the jury’s role as fact-finder.  Given this, granting a new trial to fill in these gaps in the evidence was within the district court’s discretion. 

            Finally, appellant makes much of the fact that the district court did not specifically find the first verdict to have been “a product of passion and prejudice.”  We disagree.  The heading in its memorandum where the court discusses the damages is entitled “New Trial Based On Excessive Or Insufficient Damages Appearing To Have Been Given Under The Influence Or Passion or Prejudice.”  The court then sets out correct statements of law
regarding its responsibility and concludes that there was no evidence from which the jury could have determined damages figures.  The district court did not explicitly repeat the “magic phrase,” “was given under the influence of passion and prejudice.”  But it did not have to.  It logically follows from the heading.

We affirm the district court’s grant of a new trial on the issue of damages and its entry of judgment upon the second verdict.