This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-2058

 

 

Scott Alan Hammarlund,

Respondent,

 

vs.

 

Troy Steven James,

Appellant.

 

 

Filed September 7, 2004

Affirmed in part, reversed in part, and remanded

Robert H. Schumacher, Judge

 

Washington County District Court

File No. C4021558

 

 

Sharon L. Van Dyck, Candace L. Dale, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondent)

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402; and

 

Owen L. Sorenson, Robert H. Tennant III, Stringer & Rohleder, Ltd., 55 East Fifth Street, Suite 1200, St. Paul, MN 55101 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Troy Steven James appeals the district court's denial of his motion for a new trial, remittitur, or judgment notwithstanding the verdict. He argues the evidence did not support submitting the issue of future medical expenses or lost future earning capacity to the jury and he was entitled to judgment notwithstanding the verdict. In the alternative, he argues the jury's award of $776,000 for future medical expenses was grossly excessive and the district court abused its discretion in denying his motion for a new trial or remittitur. We affirm the jury's award for past and future pain, disfigurement, and disability but reverse and remand for a new trial on future medical expenses and lost future earning capacity.

FACTS

In 1999, respondent Scott Alan Hammarlund was involved in an automobile accident when James's vehicle struck the rear of Hammarlund's vehicle. The impact caused Hammarlund to hit the windshield with his head, resulting in cuts to both the front and back of his head and injury to his neck. He was taken to the hospital, where the cuts were sutured and he was released and told to follow-up with his family physician.

At the time of the accident, Hammarlund was 34 years old and worked as a groundsman for Xcel Energy. He does not have a high school diploma and has worked exclusively in jobs requiring physical labor.

Following the accident, Hammarlund missed one week of work and sought treatment for ongoing headaches and neck pain. He began treatment with a chiropractor, Lester Retzer. Hammarlund testified that the treatments alleviated his headaches for "a couple of hours and then they would come right back." After six months of treatment, Retzer recommended that Hammarlund consult a neurologist and discharged him from treatment.

Hammarlund sought treatment from Dr. Michael Sethna, a neurologist at the Noran Clinic in Minneapolis. Dr. Sethna diagnosed Hammarlund as suffering from "cervicogenic" headaches and determined that he had a decreased range of motion in his neck. Dr. Sentha prescribed medication and physical therapy and ordered a MRI. The MRI showed minor changes in his cervical spine, which Dr. Sethna considered normal for a man of Hammarlund's age. He attended six therapy sessions recommended by Dr. Sethna.

At a follow-up visit, Dr. Sethna referred Hammarlund to another chiropractor, Richard Zarmbinski. Hammarlund testified this treatment "helped to a certain degree. . . . [His neck] wasn't catching as often" and his headaches became less severe and did not last all day. Hammarlund initially received treatment two to three times per week. As his symptoms improved, the frequency of his visits declined to one to four times per month.

In 2003, Hammarlund returned to Dr. Sethna. Dr. Sethna found that the chiropractic treatments were helping, but the tension in Hammarlund's upper back and neck had not disappeared and his pain was "a good 7 on scale of 0 to 10." His headaches had also returned and were "relentless." The doctor recommended that he try a new antispasticity drug called Zanaflex.

Dr. Sethna testified that the Zanaflex reduced Hammarlund's headaches, providing as much as a 70% improvement but the drug also caused severe pain in his hips and shoulders, which caused him to stop taking the drug. Dr. Sethna prescribed a second antispasticity drug, Baclofen, noting that it might give persistent relief even after it is discontinued but that if his symptoms came back after discontinuing the drug, he may choose to remain on it indefinitely.

Hammarlund brought a personal-injury suit against James, seeking damages for injuries arising from the accident. At trial, liability was conceded by James, and the only question before the jury was damages. The jury returned a special verdict awarding Hammarlund $40,000 for past pain, disability and disfigurement; $175,000 for future pain, disability, and disfigurement; $38,000 for future lost earning capacity; and $776,000 for future medical expenses.

James filed a postverdict motion seeking a new trial, remittitur, or JNOV. The memoranda addressing the motion, however, focused exclusively on whether the district court should order a remittitur or a new trial. The district court denied James's motion for either a new trial or remittitur. The parties agree that the court inherently denied the motion for JNOV, and James argues the court erred in doing so.

D E C I S I O N

1. The district court grants a JNOV when "the verdict is manifestly against the entire evidence or . . . despite the jury's findings of fact, the moving party is entitled judgment as a matter of law" and therefore the standard of review is de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). But the jury's verdict should not be set aside "[u]nless the evidence is practically conclusive against the verdict." Id. (quotation omitted). The evidence must be considered in the light most favorable to the prevailing party, and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence. Id.

"In a civil action the plaintiff has the burden of proving future damages to a reasonable certainty." Peitrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980). This does not mean that a plaintiff must prove future damages to an absolute certainty; rather "the plaintiff must prove the reasonable certainty of future damages by a fair preponderance of the evidence." Id. If the plaintiff has shown that future damages are more likely than not to occur, the plaintiff is entitled to have the jury instructed on the award of future damages.

Here, Zarmbinski testified that Hammarlund has sustained a permanent injury that will require future medical treatment. Zarmbinski testified that Hammarlund would likely need one to four chiropractic visits per month in order to control the level of his headaches. Zarmbinski also testified his average cost per session is $125. There was also evidence that Hammarlund had been receiving treatment until concerns arose over his ability to pay and that treatment was the only thing that provided him with any meaningful relief. Further, there was evidence that Hammarlund could reasonably be expected to live for 38 more years. This evidence, viewed in a light most favorable to the verdict, is sufficient to show to a reasonable certainty that Hammarlund will incur future medical expenses and allows the jury to compute the likely amount. See id. James was not entitled to JNOV.

2. James also argues the district court erred in not granting his motion for a new trial because the jury's award of $776,000 for future medical expenses was grossly excessive and speculative. "Ordinarily, the question of whether a motion for a new trial on the ground of excessive damages should be granted or whether the verdict should be reduced rests in the practical judgment and sound discretion of the trial court." DeWitt v. Schuhbauer, 287 Minn. 279, 286, 177 N.W.2d 790, 795 (1970). But appellate courts will set aside a verdict when it is so excessive that it could only be the result of passion or prejudice, or when the award is the result of speculation rather than the evidence presented at trial. Fifer v. Nelson, 295 Minn. 313, 318, 204 N.W.2d 422, 425 (1973).

As discussed above, the evidence demonstrates that Hammarlund may incur future medical expenses of between $125 and $500 per month for the next 38 years. At the most, however, this evidence supports an award of $228,000 in future expenses. Hammarlund argues he presented expert testimony regarding medical expenses from flare-ups he is likely to sustain in the future. There is nothing in the record, however, that would give the jury a factual basis as to how often or to what extent the flare-ups will occur. It cannot be said with any degree of certainty what amount of medical expenses Hammarlund will incur from these flare-ups.

We conclude the record before us is devoid of evidence that would allow the jury to reach a figure of $776,000 without engaging in speculation. See Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990) (vacating future damages award based on vague testimony that plaintiff will need "sporadic" care or "medical attention once in a while"), review denied (Minn. Feb. 21, 1990). We therefore reverse the award of $776,000 and remand for a new trial on this issue.

James also argues the trial court erred in instructing the jury on lost future earning capacity because there was no evidence to support that claim. An award of lost future earning capacity compensates a victim for loss of the power to earn in the future. Sylvester v. Gleason, 371 N.W.2d 573, 575 (Minn. App. 1985). When "there is medical testimony of some permanent impairment and also where there is testimony confirming the plaintiff's contention that she is unable to perform her duties in the same manner as before the accident, it is proper for the jury to consider loss of future earning capacity." Id. at 576.

Here, there is evidence that Hammarlund has suffered a permanent injury, but the evidence as to how that will affect his future earning capacity is vague, if not entirely nonexistent. The award of $38,000 could only be the result of speculation by the jury. Fifer, 295 Minn. 313, 204 N.W.2d 422. We accordingly reverse the award for future earning capacity and remand for a new trial on this issue.

James argues that under the supreme court's decision in Pietrzak he is entitled to a new trial on all damages. We disagree. In Pietrzak, the supreme court remanded for a new trial on damages based on the district court's refusal to instruct the jury on future medical expenses when the evidence showed she was more likely than not to need future reconstructive knee surgery. 295 N.W.2d at 508. The supreme court stated:

We would not be inclined to reverse and remand this case for a new trial on the issue of special as well as general damages but for the fact that future pain and suffering as well as future diminished earning capacity are so inextricably tied to future surgery and its attendant expenses.

 

Id. But the supreme court also stated: "The jury assessed plaintiff's damages in a lump sum rather than allocating amounts to each item of damage. The trial court granted additur in a lump sum." Id.

Here, the jury's verdict allocated amounts to each item of damage. Furthermore, the future medical expenses are chiropractic care and possible prescription medication, which, unlike surgery, are not invasive treatments. The award for future pain and suffering is not inextricably tied to the future medical care as in Pietrzak. The erroneous award of the amount of future medical expenses and future earning capacity does not mandate that we remand for a new trial on all issues. See Swanson v. Thill, 277 Minn. 122, 129, 152 N.W.2d 85, 90 (1967) (noting some federal courts have allowed new trial on less than all damages and there is supreme court precedent to support new trial on less than all damages in proper case).

James has made no argument that the amounts awarded for past and future pain, disability, and disfigurement are the result of passion or prejudice, or cannot be justified by the evidence. After independently reviewing the record, we conclude there is evidence to support both awards. We will not reverse a specific damage award on evidence based on a conclusory statement that a new trial on all damages is warranted. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on mere assertion and not supported by argument or authority is waived "unless prejudicial error is obvious on mere inspection"); see also ITT Hartford Ins. Co. v. Owens, 816 So.2d 572, 577 (Fla. 2002) (restricting new trial to issue of future medical expenses because special verdict form and record showed error only occurred in that area of recovery).

We reverse the jury's award for future medical expense and future lost earning capacity and remand for a new trial restricted to these issues.

Affirmed in part, reversed in part and remanded.



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