This opinion will be unpublished and

may not be cited except as provided by

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






Matthew and Cassie Potter

as the parents and legal guardians of C. P., a minor child,





Jason Richard Buffington, M. D., et al.,



Filed August 15, 2006


Kalitowski, Judge


St. Louis County District Court

File No. 69-C0-04-600765


Lindsay R.M. Jones, Lindsay R.M. Jones, LLC, 239 Sterling Street, Decatur, GA 30030 (for appellants)


Eric D. Hylden, Tracy A. Schramm, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd., 332 West Superior Street, #700, Duluth, MN 55802-1801 (for respondents)


            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Matthew and Cassie Potter appeal the denial of a new trial in a medical malpractice action where the jury returned a verdict in favor of respondents.  Appellants argue that (1) they are entitled to either judgment notwithstanding the verdict or a new trial because the district court improperly admitted expert testimony; and (2) the district court violated appellants’ due process rights when it awarded respondents costs and disbursements under Minn. Stat. § 549.04 (2004).  We affirm.



            On November 25, 2003, appellants Matthew and Cassie Potter took their then two-and-a-half-year-old son, C.P., to a medical clinic in Duluth, Minnesota, because C.P. had been crying and vomiting and his left testicle was swollen and red.  Respondent Dr. Jason R. Buffington physically examined C.P. and ordered an ultrasound of C.P.’s scrotum.  Dr. Buffington suspected that C.P. was suffering from either testicular torsion or an infection.[1]

            C.P. was admitted to respondent St. Mary’s Medical Center (SMDC) that afternoon.  Respondent Dr. William D. Witrak reviewed C.P.’s ultrasound films and believed that C.P.’s left testicle was alive at the time C.P. left his care.  SMDC’s radiology department contacted Dr. Buffington and informed him that the ultrasound suggested epididymitis.  Dr. Buffington then treated C.P. with antibiotics.

            On November 27, 2003, Cassie Potter took her son to a walk-in medical clinic because C.P. was complaining of pain.  An ultrasound showed no blood flow in C.P.’s left testicle, and the doctors diagnosed C.P. with testicular torsion.  C.P.’s left testicle was removed.

            In March 2004, appellants filed a medical malpractice action on behalf of C.P. against respondents.  On May 10, 2005, the jury trial began.  Seven days later, the jury rendered a verdict, finding that respondents were not negligent.  Subsequently, appellants filed a motion for judgment notwithstanding the verdict (JNOV) and a new trial, which was denied by the district court.



            Appellants argue that the district court erred as a matter of law by allowing respondents’ expert, Dr. Leo Fung, to testify and that the admission of his expert testimony is grounds for JNOV or a new trial.  We disagree.

            When the district court has denied a party’s motion for JNOV, this court must affirm the denial “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).  And this court “will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted). 

            In addition, the admission of expert testimony is within the broad discretion of the district court.  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).  “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”  Minn. R. Evid. 702.  Nevertheless, the court may exclude the testimony “if its probative value is substantially outweighed by the danger of unfair prejudice.”  Minn. R. Evid. 403.  To constitute reversible error, an evidentiary ruling must be erroneous and result in prejudice.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

            Here, Dr. Witrak initially testified that when he reviewed C.P.’s ultrasound films on November 25, 2003, he believed that C.P.’s left testicle was “absolutely” alive.  Respondent’s expert, Dr. Fung, then testified that C.P.’s left testicle was not salvageable when appellants brought C.P. to the clinic on November 25, 2003.  Following Dr. Fung’s testimony, Dr. Witrak returned to the witness stand and reiterated that at the time of C.P.’s discharge, he believed that C.P.’s testicle was alive.  He stated that he did “the best anybody could have done at the time with the facts I had and with these ultrasound pictures.”

Contrary to appellants’ argument, Dr. Witrak did not abandon his initial testimony or admit that he was negligent.  Moreover, as the district court noted, “[w]hether or not [Dr.] Witrak changed his opinion as to the viability of the testicle and whether there was blood flow to the testicle is a matter of credibility and impeachment.”  Here, the jury weighed the testimony of multiple experts and concluded that the defendants were not negligent.  And a jury may find that a doctor acted reasonably even if it also finds that the doctor was ultimately mistaken.  Thus, appellants have not presented us with a basis to disturb the jury’s findings.   

            Under Minnesota law, the proponent of scientific evidence must provide adequate foundation by showing (1) “that the scientific theory is generally accepted in the applicable medical or scientific community”; and (2) “that the principles and methodology used are reliable.”  McDonough v. Allina Health Syst., 685 N.W.2d 688, 694 (Minn. App. 2004).  Appellants challenge the foundation for Dr. Witrak’s testimony, arguing that Dr. Witrak improperly adopted Dr. Fung’s medical opinion, which Dr. Witrak admitted was not based on generally accepted ultrasound film evaluation techniques.  We disagree.  Dr. Witrak neither abandoned his original testimony nor stated that Dr. Fung’s testimony was not supported by generally accepted ultrasound evaluation techniques.  Rather, Dr. Witrak referred to Dr. Fung’s prior testimony while he explained how he examines ultrasound films and makes decisions as a radiologist.

            On this record, we conclude that the district court did not abuse its discretion in admitting the testimony of Dr. Fung and Dr. Witrak and that appellants failed to present to the district court any grounds for granting either JNOV or a new trial.



            Appellants contend that because Minn. Stat. § 549.04 (2004) does not allow the district court to consider their financial status when ordering them to pay costs and disbursements, the statute as applied violates appellants’ right to due process under the Fourteenth Amendment.  But appellants failed to raise this issue before the district court.  Therefore, it is not properly before us.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally do not consider matters not argued and considered in the district court).

            Moreover, the district court has discretion to determine what costs are reasonable, and this court will reverse only for an abuse of that discretion.  Quade & Sons Refrigeration, Inc. v. Minn. Mining & Mfg. Co., 510 N.W.2d 256, 260 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).  “The standard by which the court’s discretion is measured is whether expenditures are reasonable.  Therefore, absent a specific finding that the costs were unreasonable, the court shall approve recovery of disbursement.”  Jonsson v. Ames Constr., Inc., 409 N.W.2d 560, 563 (Minn. App. 1987), (emphasis omitted), review denied (Minn. Sept. 30, 1987).  In addition, “[t]he trial court does not have discretion to deny costs and disbursements to the prevailing party.”  Quade, 510 N.W.2d at 260.

            Here, the district court granted respondents $16,568.90 in costs and disbursements.  And appellants have cited no authority requiring Minnesota courts to consider a party’s economic status when awarding costs and disbursements.  Thus, we conclude that the district court did not abuse its discretion in awarding respondents costs and disbursements in the amount of $16,568.90.


[1] Testicular torsion is a twisting of the testicle and spermatic cord, which will result in a dead testicle if left untreated.