This opinion will be unpublished and

may not be cited except as provided by

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






Michael Craig Johnson,





Darla Lynn Koepke, et al.,



Filed November 30, 2004


Kalitowski, Judge


St. Louis County District Court

File No. C1-02-102649


H. Jeffrey Peterson, Andrew R. Peterson, Cope & Peterson, Ltd., 415 South First Street, Virginia, MN 55792 (for respondent)


Steven L. Reyelts, Stacy E. Johnston, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd., 332 West Superior Street, Suite 700, Duluth, MN 55802-1801 (for appellants)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this personal injury and future damages action, the jury awarded a verdict in favor of respondent.  Appellants challenge the district court’s denial of their motions for judgment notwithstanding the verdict (JNOV), a new trial, or in the alternative, remittitur.  We affirm.



            Appellants argue that the district court erred by denying appellants’ motion for JNOV.  We disagree.  Where judgment notwithstanding the verdict has been denied by the district court, on appellate review, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (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.

             Respondent presented evidence that he suffered a permanent injury, that there was a high likelihood that he would need surgery and future care resulting in future treatment costs.  Respondent also presented evidence that the injuries he sustained as a result of the accident affected both his ability to work and his life in general, thus affecting future earning capacity. 

            Appellants argue that evidence regarding the relatively small amount of compensatory damages overwhelmingly indicates that reasonable minds could not differ as to the unreasonableness of the future damages award.  But as the district court notes in a memorandum attached to its order dated January 30, 2004, appellants presented no evidence on the issue of damages other than cross-examination of respondent and respondent’s treating physician.  The cross-examinations did not elicit any testimony that directly contradicted respondent’s evidence on his claims for injury and future damages.  We conclude the district court did not err in denying JNOV.


            Appellants challenge the district court’s denial of their motion for new trial on several grounds including:  excessive damages, improper submission of issues to a jury, error in exclusion and admission of evidence, and insufficiency of the evidence to support the verdict. 

            Excessive damages

            Appellants argue that the district court erred by denying the motion for new trial because the jury rendered a verdict that was excessive.  “The discretion to grant a new trial on the ground of excessive damages rests with the trial court, whose determination will only be overturned for abuse of that discretion.”  Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).  A new trial on damages will be granted only when the verdict is so inadequate or excessive that it “could only have been rendered on account of passion or prejudice.”  Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn. 1987).  But speculation that passion or prejudice existed is not sufficient to warrant a new trial.  Vadnais v. American Family Mut. Ins. Co., 309 Minn. 97, 104, 243 N.W.2d 45, 49 (1976).  The supreme court has considered the following factors:  plaintiff’s injuries, past and future pain and suffering, life expectancy, and job loss.  De Witt v. Schubauer, 287 Minn. 279, 286, 177 N.W.2d 790, 795 (1970); see also Stenzel v. Bach, 295 Minn. 257, 260, 203 N.W.2d 819, 822 (1973) (affirming the district court’s denial of a new trial based on the considerations in DeWitt).

            Here, respondent presented evidence on his injury, his past pain, and the great likelihood that his injury was permanent, his age and future life expectancy, and the impact of his injury on his job and job prospects.  Appellants argue that respondent did not prove damages with “reasonable certainty.”  But appellants’ assessment of the verdict does not take into account all of the De Witt factors.  And respondent did provide uncontradicted evidence of his injuries to a reasonable medical certainty and testimony on the impact of his injury on his job and job prospects.  Additionally, there is no evidence indicating the jury was influenced by passion or prejudice.   

            Because the district court considered all the evidence presented at trial and properly concluded the damages award did not shock the conscience, and because appellants have not established that the jury was influenced by passion or prejudice, we conclude the district court did not err in denying appellants’ motion for a new trial.

            Submission of issues to the jury

            Appellants argue that the testimony of respondent’s treating physician failed to establish by a reasonable certainty the need for future medical expenses.  “Where there is evidence reasonably tending to prove the existence of a factual issue, the court may submit the issue to the jury.”  Zobel & Dahl Constr. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984).  In a claim for damages for future medical expenses, a plaintiff must produce evidence:  (1) showing the necessity of future damages in the form of future medical treatments; and (2) establishing by expert testimony the amount of the damages.  Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).  The plaintiff must prove the reasonable certainty of future medical expenses by a fair preponderance of the evidence.  Id.

            Respondent’s treating physician testified as to respondent’s injuries, future damages, and costs.  The physician, having agreed to offer her opinions “to a reasonable degree of medical certainty,” testified that (1) respondent’s injury was permanent and caused solely by the accident with appellants; and (2) respondent will need future surgery and future care for his injury.  The physician also testified as to the costs of respondent’s future treatment and rehabilitation.  Significantly, appellants failed to present evidence contradicting the physician’s assessment of respondent’s injury and future care.  Because appellants failed to produce any evidence contradicting respondent’s evidence as to the need for future treatment and costs, we cannot say the district court erred in submitting the issue of future medical expenses to the jury.

            Appellants also contend that the issue of loss of future earning capacity was improperly submitted to the jury.  A plaintiff must prove by a preponderance of the evidence, “that a loss of earning capacity—an impairment in [plaintiff’s] power to earn a living—was reasonably certain to occur as a result of the injuries [plaintiff] sustained.”  Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987).  But “[w]ithout at least some evidence of lost earning capacity, the jury should not be allowed to consider it as a potential basis for their verdict.”  Busch v. Busch Constr., Inc., 262 N.W.2d 377, 399-400 (Minn. 1977).

            Here, respondent’s testimony created a factual question as to whether a loss in respondent’s future earning capacity was reasonably certain to occur.  Respondent offered testimony that he has a permanent injury and that the injury will impair his ability to perform certain tasks for the rest of his life.  In addition, respondent offered testimony that he has been unable to complete work for his business that he ordinarily completed before the accident and that he has been forced to rely on his father and hire two extra workers to complete the jobs.  Since the evidence indicates respondent’s injury is permanent, the jury could reasonably infer from the evidence that respondent has suffered a permanent loss to his power to earn income.

            We reject appellants’ argument that because respondent’s income increased the year after his accident and because respondent did not introduce expert testimony as to the job market and the jobs from which he would be excluded, the district court erred in submitting this issue to the jury.  Because respondent’s testimony created a fact question for the jury, we conclude the district court did not err.

            Errors in exclusion and admission of evidence

            Appellants argue that the district court improperly excluded part of a videotape of appellant’s deposition and improperly admitted testimony by respondent’s treating physician.  “Evidentiary rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.”  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  Minnesota Rules of Evidence 401 provides the definition for relevant evidence:  “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Admissibility of evidence is a preliminary question to be determined by the court.  Minn. R. Evid. 104(a).

            Appellants wanted to show the jury a videotaped portion of appellant Ms. Koepke’s deposition so the jury could “meet” appellant.  The district court sustained respondent’s objection that appellant’s personality and interest in the case were not relevant to the issue of respondent’s damages.  Because appellants have not shown that the proffered testimony would be relevant to the only issue being tried to the jury, respondent’s damages, we conclude that the district court’s ruling to exclude the testimony was not an abuse of discretion.

            Appellants also argued that the testimony of respondent’s treating physician relating to respondent’s future medical expenses was inadmissible because the testimony failed to establish to a degree of reasonable certainty the need for future surgery and the specific cost of that surgery.  But the record indicates the physician offered her opinions “to a reasonable degree of medical certainty.”  And the physician testified that there was a “high likelihood” that future surgery would be necessary and that epidural injections were “more likely than not.”  Her testimony also included cost estimates for the treatments. 

            The district court properly concluded that the physician’s testimony was admissible because her opinions were offered to a reasonable degree of medical certainty and because she indicated that it was more likely than not that respondent would need future surgery and care.  The district court noted that any doubts as to the specificity of the physician’s cost estimates should be resolved by the weight the jury placed on her testimony.  We conclude that the district court did not abuse its discretion in admitting the physician’s testimony.

            Evidence supports  the verdict

            Appellants argue that the evidence does not support the verdict.  “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, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). 

            The record indicates that respondent offered uncontradicted testimony by his treating physician, respondent, respondent’s father, and respondent’s wife that (1) he was permanently injured in the accident with appellants; (2) he would need future surgery and care for his injury; and (3) his job, job prospects, and his lifestyle were affected by his injury.  Because appellants failed to cite to any evidence that does not support the verdict, we cannot say the verdict is “manifestly and palpably” contrary to the evidence on the record.  We conclude the district court properly denied appellants’ motion for a new trial.


            Appellants argue that the evidence presented on the issue of future damages is a “product of speculation, confusion, and the influence of passion and prejudice” and that the district court’s refusal to grant remittitur of the future damages award is an abuse of discretion.  The district court “exercises discretion in granting or denying remittitur, and appellate courts will not reverse unless there was a clear abuse of discretion.”  Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 792 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001) (quotation omitted).  The use of the remittitur is appropriate to cure an error by the jury regarding damages caused by passion or prejudice if their decision has not affected the other issues in the case.  Genzel v. Halvorson, 248 Minn. 527, 529 80 N.W.2d 854, 856 (Minn. 1957). 

            Respondent produced uncontradicted testimony of his injury, past expenses, and future expenses.  Since the verdict is supported by the evidence in the record and there is no evidence that the verdict stemmed from passion or prejudice on the part of the jurors, we conclude the district court did not err in denying remittitur.