This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
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
St. Louis County District Court
File No. 69-C0-04-600765
Lindsay R.M. Jones, Lindsay R.M. Jones, LLC,
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.
D E C I S I O N
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
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.
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,
addition, the admission of expert testimony is within the broad discretion of
the district court. State v. Ritt, 599 N.W.2d 802, 810 (
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.
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.
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 (
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.
the district court granted respondents $16,568.90 in costs and
disbursements. And appellants have cited
no authority requiring
 Testicular torsion is a twisting of the testicle and spermatic cord, which will result in a dead testicle if left untreated.