This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Alise Zachman,


Allied Insurance,
a division of Depositors Insurance Company,


Filed January 24, 2006


Peterson, Judge


Wright County District Court

File No. C4030939


Mark D. Luther, Bremer Bank Building, 8800 Highway 7, Suite 408, St. Louis Park, MN  55426 (for appellant)


Thomas E. Emmer, Emmer & Associates, P.A., 1800 Pioneer Creek Center, P.O. Box 39, Maple Plain, MN  55359 (for respondent)


            Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from the denial of a new-trial motion, appellant Alise Zachman argues that she is entitled to a new trial because the district court abused its discretion by excluding portions of her expert’s testimony.  We affirm.


After Zachman was injured in a motor-vehicle accident on November 29, 1997, she was diagnosed with multiple disc derangements in her back and neck.  Zachman entered into a settlement with the at-fault driver and then commenced an action against her no-fault insurance carrier, respondent Allied Insurance, for underinsured-motorist coverage. 

Dr. Timothy Garvey, an orthopedic surgeon who specializes in cervical spine surgery, testified during a videotaped deposition that the November 1997 motor-vehicle accident resulted in permanent injury to Zachman’s spine.  Garvey testified that Zachman is experiencing continued and increased pressure on her spinal cord, which places her at an increased risk of being paralyzed from the neck down if any further trauma is sustained.  He further testified: “I anticipate at this point within a reasonable degree of medical certainty that she is as good as she is going to get without surgical intervention, meaning that she’ll have chronic neck pain and left arm pain.  And she has numbness in the left upper extremity.”  Garvey stated that with surgical intervention, Zachman “has an 82 percent chance at five year follow-up that she will report good or excellent outcome for resolution of her pain.”  Garvey testified that if Zachman does not have surgery, she will require annual evaluations, and he estimated the cost of the evaluations to be between $500 and $1,000 each year.  Respondent requested that this estimate be stricken as speculative, and the request was denied.  Garvey also testified about his recommendation for future surgery, his choice of surgical procedure, and the cost of the surgery.  Respondent objected to Garvey’s testimony about the cost of surgery as speculative and lacking foundation.  The district court sustained the objection.

Respondent’s expert, Dr. Bradley Helms, performed an independent medical examination of Zachman and testified that Zachman did not need any further treatment for the injuries she sustained as a result of the November 29, 1997 motor-vehicle accident.  Helms testified that Zachman had a preexisting degenerative condition that had progressed since the accident and that as a result of this condition, Zachman might need treatment in the future, but it was not related to the accident.

In its answers on the special-verdict form, the jury stated that Zachman did not sustain a permanent injury as a result of the November 29, 1997 accident.  The jury awarded Zachman $104,200 in damages, which included $12,000 for future medical expenses.  Zachman moved for a new trial on the issue of future medical expenses.  The court denied her motion.  This appeal followed.


Zachman argues that she is entitled to a new trial on the issue of her future health-care costs because the district court erred in excluding her expert’s testimony regarding the cost of future surgery.  Generally, the decision whether to grant a new trial lies within the district court’s discretion and will not be disturbed on appeal absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  A district 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 is an abuse of its discretion.  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998).  The district 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).

Garvey testified that “includ[ing] some of the surgeon’s fees, anesthesia fees, hospitalization, and the three month care thereafter, it would be $70,000.00, plus or minus $15,000.00” for Zachman to have surgery.  Garvey explained that he knew about the cost of surgery “[b]ecause often—not often, occasionally, I ask patients, patients will say, ‘Holy mackerel, that was a lot of money,’ and I ask them to send me a copy of their bill so I can see what the charges are.”  None of the patient bills that Garvey saw was admitted into evidence.  The defense objected on grounds that the testimony lacked foundation and was speculative. 

When deciding whether to admit an expert opinion, the district court must determine “whether the opinion [is] based on facts sufficient to form an adequate foundation,” Law v. Essick Mfg. Co., 396 N.W.2d 883, 887 (Minn. App. 1986) (citations omitted), review denied (Minn. Jan. 27, 1987); and an expert should not be allowed to speculate.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982). 

Minn. R. Evid. 703 1989 comm. cmt. states:

The sufficiency of facts or data in establishing an adequate foundation for receiving the [expert] opinion is subject to a two part test:

            1.         are these facts and data of a type relied upon by experts in this field when forming inferences or opinions on the subject;

            2.         is this reliance reasonable?


Garvey described the foundation for his opinion about the cost of Zachman’s surgery as being the bills of patients who, on occasion, have said to him that their surgery cost a lot of money and who, at his request, sent him their bills so that he could see what the charges were.  The district court could reasonably conclude that the facts in the bills of this group of patients were not of the type relied upon by orthopedic surgeons when forming opinions on the cost of surgery.  The bills were not provided to Garvey on any systematic basis; they were not even provided to Garvey often.  They were only provided to Garvey occasionally when a patient happened to comment about the cost of the patient’s surgery.  Given the erratic manner in which Garvey received the bills, it would be reasonable to conclude that they did not accurately represent all bills, or at least typical bills, for the surgery.  The district court did not abuse its discretion by concluding that there was not sufficient foundation upon which Garvey could state his opinion about the cost of future surgery.

Furthermore, “before an error in the exclusion of evidence may be grounds for a new trial, it must appear that such evidence might reasonably have changed the result of the trial if it had been admitted.”  Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 79-80, 220 N.W.2d 281, 285 (1974).  Garvey testified that if Zachman does not have surgery, she will require annual evaluations that will cost between $500 and $1,000 each year.  By special-verdict, the jury awarded Zachman $12,000 for future medical expenses and concluded that Zachman did not sustain a permanent injury.  The jury’s conclusion that Zachman did not sustain a permanent injury and its $12,000 award for future medical expenses indicate that the jury did not believe that there was a need for future surgery.  Thus, it does not appear that the evidence about the cost of future surgery might reasonably have changed the result of the trial.  Accordingly, the district court did not abuse its discretion in denying appellant’s motion for a new trial.