This opinion will be unpublished and

may not be cited except as provided by

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







Amanda R. Newman,


Dustin Gallipo,


Filed June 1, 2004


Wright, Judge


Anoka County District Court

File No. C6-02-4090



Robert N. Edwards, Robert N. Edwards, Chtd., 2150 Third Avenue, Suite 300, Anoka, MN  55303 (for appellant)


John P. Brendel, Lars C. Erickson, Brendel And Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN  55042 (for respondent)



            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.



U N P U B L I S H E D  O P I N I O N




Appellant challenges the jury’s damage award in this personal-injury action, arguing that the district court abused its discretion in (1) admitting into evidence photographs of the vehicles taken after the accident, (2) denying her request for itemized medical damages on the special verdict form, and (3) denying her motion for a new trial.  We affirm. 



In November 1998, a vehicle driven by respondent Dustin Gallipo struck appellant Amanda Newman’s vehicle from behind while she was stopped on a highway.  Shortly after the accident, Newman began to experience headaches and pain in her left leg, lower back, and neck.  In September 1999, Newman also developed pain in her jaw, which she attributed to the accident.  From November 1998 through April 2003, Newman incurred $25,059.76 in medical expenses from several providers. 

Newman commenced an action against Gallipo to recover damages for her injuries related to the accident.  Gallipo conceded liability, and the case proceeded to trial on the issue of damages. 

The parties presented conflicting medical evidence as to the nature and extent of Newman’s injuries.  Dr. Michael Sethna, Newman’s treating physician, testified that, as a result of the accident, Newman suffered a disc injury that worsened over time.  According to Dr. Sethna, Newman’s headaches may have been caused by the aggravation of a preexisting condition.  Gallipo’s expert witness, Dr. Bruce Templeton, testified that Newman’s jaw pain was unrelated to the accident.  According to Dr. Frederick Strobl, who was hired by Gallipo to perform an independent medical examination, Newman’s back injury likely resulted from a preexisting degenerative disorder, and any injuries Newman incurred in the accident were not permanent in nature. 

Newman brought a motion in limine to exclude photographs taken after the accident, which depict minimal damage to both vehicles.  The district court denied the motion in limine, finding that the photographs were more probative than prejudicial.  The district court also denied Newman’s motion to instruct the jury that the photographs could not be considered to determine the extent of Newman’s injuries.  In his closing argument, Gallipo’s counsel argued that the damage to the vehicles depicted in the photographs was evidence of the force of the impact. 

The jury awarded Newman $2,500 in damages for past pain, disability, and emotional distress; $7,953.39 to reimburse past health care expenses; and $400 in damages for past wage loss.  Newman moved for judgment notwithstanding the verdict (JNOV), additur, or a new trial.  Gallipo moved to reduce the verdict in the amount of the collateral source offsets.  The district court denied Newman’s motion, concluding that none of the grounds for JNOV, additur, or a new trial was met and granted Gallipo’s motion for collateral source offsets.  This appeal followed. 



Newman contends that the district court abused its discretion in admitting into evidence photographs of the vehicles taken after the accident.  The decision to admit or exclude evidence rests within the district court’s broad discretion and will not be disturbed on review absent an erroneous interpretation of the law or an abuse of discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  In assessing whether the district court’s evidentiary ruling is an abuse of discretion, we look at the record as a whole to determine whether the district court acted arbitrarily, capriciously, or contrary to the law.  Id. at 46. 

Under Rule 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]”  Minn. R. Evid. 403 (emphasis added); see also Dunn v. State, 486 N.W.2d 428, 433 (Minn. 1992) (applying Rule 403 to autopsy photographs).  Evidence does not violate Rule 403 merely because it is highly damaging to the opponent’s case.  Betzold v. Sherwin, 404 N.W.2d 286, 288 (Minn. App. 1987) (finding controverted record of past medical history not prejudicial under Rule 403), review denied (Minn. June 25, 1987).  Rather, such evidence is admissible when it is highly probative.  Id. 

Newman argues that the photographs are misleading and thereby unfairly prejudicial.  We disagree.  Where liability has been admitted in a personal-injury action arising out of an automobile accident and the only issue for trial is the amount of damages, evidence as to the force of the impact may be relevant to establish the extent of a plaintiff’s injuries as a measure of damagesBaltus v. von der Lippe, 293 Minn. 99, 100-01, 196 N.W.2d 922, 923 (1972).  Because such evidence is relevant to the issue of damages, it is admissible.  Id.  Thus, photographs depicting the damage to the vehicles may be probative, albeit not conclusive, evidence of the force of the impact and any resulting injuries.  See id.; see also Quill v. Trans World Airlines, Inc., 361 N.W.2d 438, 444 (Minn. App. 1985) (airplane crash), review denied (Minn. Apr. 8, 1985).  The district court concluded that “the photographs’ probative value outweighed their prejudicial effect . . . . [and] the jury was entitled to weigh the photographic evidence at its discretion.”  Because evidence regarding the force of the impact is relevant to the issue of damages, the district court did not abuse its discretion in admitting the photographs. 


Newman argues that the district court abused its discretion in rejecting her proposed special verdict form, which itemized Newman’s medical expenses.  District courts have considerable latitude in selecting language for use in jury instructions and special verdict questions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986); Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).  Reversal is not warranted absent an abuse of discretion.  Alholm, 394 N.W.2d at 490.

            Newman proposed a special verdict form that itemized the expenses she incurred from each medical provider.  Newman argues that the itemization was necessary in order to properly limit application of collateral source offsets to those expenses paid by no-fault insurance.  But the district court, not the jury, determines the amount paid by collateral sources through documentation submitted by the parties and from the record.  See Minn. Stat. § 548.36,subd. 3(b) (2002); Western Nat’l Mut. Ins. Co. v. Casper, 549 N.W.2d 914, 917 (Minn. 1996) (providing that the district court determines the amount of collateral source benefits paid through evidence submitted by the parties); see also Gunderson v. Olson, 399 N.W.2d 166, 169 (Minn. App. 1987) (instructing the district court to offset a jury’s award for past health care expenses with payments of no-fault benefits), review denied (Minn. Mar. 18, 1987).  Because an itemized special verdict form was not necessary to ensure the proper application of collateral source offsets, the district court exercised its sound discretion in rejecting Newman’s proposed special verdict form. 

Moreover, our review establishes that any implication that collateral source offsets were misapplied is unsupported by the record.  The district court’s application of collateral source offsets to the jury’s damage award for past health care expenses was proper. 


Newman also challenges the district court’s denial of her new-trial motion.  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 when viewed in the light most favorable to the verdict.  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).  Newman fails to meet the requisite standard for a new trial. 

Dr. Strobl testified that the only expenses that were reasonably related to the car accident were costs for one to three months of therapy or chiropractic care, magnetic resonance imaging of the cervical and lumbar region, and x-rays of the thoracic area.  According to Dr. Templeton’s testimony, Newman’s jaw pain was not associated with the car accident.  Thus, the jury could reasonably exclude any medical expenses associated with this symptom.  Evidence of medical expenses submitted by Newman established that expenses for her first three months of chiropractic care, magnetic resonance imaging, and x-rays were roughly $9,815.  The jury awarded Newman $7,953.39 for past medical treatment and diagnostic expenses.  Assuming that the jury credited the testimony of Drs. Strobl and Templeton, the verdict is not manifestly and palpably contrary to the evidence.  Accordingly, the district court did not abuse its discretion in denying Newman’s new-trial motion.