This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lyle A. McGee, et al.,
Dr. Leslie Ann Sebring a/k/a Leslie A. Nussbaum,
Dr. William W. Anderson,
Filed August 8, 2006
Hennepin County District Court
File No. 03-16151
Paul A. Sortland, Sortland Law Office, 120 South Sixth Street, Suite 1510, Minneapolis, MN 55402-1817 (for appellants)
David D. Alsop, Sarah M. MacGillis, Gislason & Hunter LLP, 9900 Bren Road East, Suite 215E, P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondent Sebring-Nussbaum)
Katherine A. McBride, James F. Roegge, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4400, Minneapolis, MN 55402 (for respondent Anderson)
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this medical-malpractice action, appellants Lyle and Jonel McGee argue that the district court erred by (1) admitting expert rebuttal testimony; (2) admitting evidence of appellant Lyle McGee’s alcohol consumption; (3) refusing to submit to the jury appellants’ claims for future medical expenses and loss of future earning capacity; and (4) denying appellants’ request to submit a proposed jury instruction on insurance coverage. We affirm.
D E C I S I O N
In the spring of 1999, appellant Lyle McGee (McGee) was referred to respondent Dr. Leslie Sebring-Nussbaum (Nussbaum) because he was suffering from lower back pain that caused weakness, tingling, and numbness in his back and legs. Nussbaum examined McGee and concluded that he had significant degenerative disc disease. She discussed with McGee his options and he decided to have spinal-fusion surgery.
Nussbaum used a four-poster frame during McGee’s surgery. The frame consists of a flat board to which four angled and padded posts are attached. The patient is laid on the frame facing downward and the surgical team adjusts the posts to place them at the body’s “bony prominences,” generally the shoulders and hips, to minimize pressure on the nerves.
Nussbaum used this placement process when positioning McGee for his lumbar-fusion surgery. The surgery proceeded without incident, and Nussbaum detected no change or shift in McGee’s position. But three days after surgery, McGee could not lift his leg, which signified to Nussbaum that he suffered injury to his femoral nerve, called a “femoral neuropathy.”
McGee and his wife,
appellant Jonel McGee, filed a complaint alleging medical malpractice against
Nussbaum and respondent Dr. William W. Anderson (
After six days of trial, the jury returned a verdict finding neither respondent negligent. Appellants moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The district court denied appellants’ motions.
an erroneous interpretation of the law, whether to admit or exclude evidence is
a question within the district court’s broad discretion. Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (
1. Dr. Resnick’s testimony
Appellants assert that the district court abused its discretion by admitting the testimony of Dr. Resnick because Dr. Resnick was unqualified to testify concerning an anesthesiologist’s standard of care and because there was no foundation for his testimony as an expert witness. We disagree.
Appellants presented the deposition testimony of Dr. Kirk Hogan at trial. Dr. Hogan had a clinical practice in anesthesiology at the University of Wisconsin Hospitals from 1986 until 1998. Dr. Hogan testified that it was both the neurosurgeon’s and the anesthesiologist’s responsibility to monitor the patient for shifting throughout surgery. He claimed that the anesthesiologist should pause surgery every hour and check under the sterile drapes to ensure that the patient had maintained optimum positioning. Dr. Hogan testified that he had participated as an anesthesiologist in 200 spinal-fusion surgeries and named three neurosurgeons with whom he had worked, Dr. Javid, Dr. Leven, and Dr. Trost. During each of those procedures, Dr. Hogan stated that he, an anesthesia resident, or a nurse checked the patient’s position in the manner he described.
After Dr. Hogan’s
The district court admitted Dr. Resnick’s testimony over appellants’ objection, but limited its scope to addressing Dr. Hogan’s testimony regarding the practices at the University of Wisconsin Hospitals during the time of McGee’s operation. In denying appellants’ motion for a new trial, the district court stated that Dr. Resnick’s testimony was limited to rebuttal of Dr. Hogan’s testimony and that his testimony had not prejudiced appellants.
Rebuttal evidence consists
of evidence that “explains, contradicts or refutes” previously submitted
evidence. State v. Williams, 586 N.W.2d 123, 126 (
Here, Dr. Resnick’s
testimony contradicted Dr. Hogan’s testimony that it was common practice at the
Appellants argue that Dr. Resnick was unqualified to testify on the standard of care of anesthesiologists because he is a neurosurgeon, not an anesthesiologist. But Dr. Resnick acknowledged that he had no training or specialty in anesthesiology. And during his 36-minute deposition, he did not testify to the standard of care of anesthesiologists or others. He merely testified as to what he had observed anesthesiologists do, or not do, during spinal surgeries that he participated in at the University of Wisconsin Hospitals, including practice around June 1999.
Appellants argue that counsel for Dr. Anderson did not properly lay foundation for Dr. Resnick’s testimony as an expert witness. But Dr. Resnick did not testify as an expert witness. He did not offer opinion testimony; he only testified to the facts that he observed. Dr. Resnick explicitly stated that he had “not reviewed any of the case information.”
Appellants also contend that they did not have an opportunity to rebut Dr. Resnick’s testimony. But during the presentation of their case, appellants informed the court that they intended to take a rebuttal deposition of Dr. Hogan in light of the court’s admission of Dr. Resnick’s testimony. And appellants scheduled the deposition. Appellants ultimately cancelled the deposition, not because they were without time to take it, but because Dr. Hogan had nothing further to say. And the court gave appellants the option of a continuance at the risk of being held responsible for costs, but appellants did not renew their continuance request.
Appellants contend that Dr. Resnick’s testimony was “severely prejudicial” because it left the jury “with the impression that Dr. Hogan had either lied, exaggerated, or clearly did not know what he was talking about.” But given that the jury heard testimony from four doctors stating that respondents met the standards of care in their fields, appellants have not established that Dr. Resnick’s testimony, if improperly admitted, changed the outcome of the trial.
Although appellants challenge the admission of Dr. Resnick’s testimony on many different bases, they fail to demonstrate that the district court abused its discretion and that its decision prejudiced appellants. We conclude that the district court properly admitted Dr. Resnick’s testimony as rebuttal evidence. And even if that admission was in error, Dr. Resnick’s testimony was not so prejudicial as to deprive appellants of a fair trial because of the substantial evidence, unrelated to Dr. Resnick’s testimony, demonstrating that respondents did not violate their respective standards of care.
2. Evidence of alcohol consumption
The district court found that evidence relating to the frequency and amount of McGee’s alcohol use was relevant and admissible because alcohol consumption was potentially a factor in his injury. The court did, however, order the parties to refrain from using the phrase “alcohol abuse” because of its potentially prejudicial effect.
Appellants argue that the district court abused its discretion by admitting any evidence of McGee’s alcohol consumption because its relevance was outweighed by its prejudicial effect. Appellants contend that they were prejudiced by the admission of the alcohol-consumption evidence and are therefore entitled to a new trial. We disagree.
Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of
Evidence of McGee’s alcohol consumption was probative of whether he was at an increased risk for a compression injury during surgery despite the efforts of the surgical team. Three doctors testified that excessive alcohol consumption could increase a patient’s risk for potential neuropathy complications. Even Dr. Hogan, appellants’ witness, stated that based on concerns that physicians had noted about McGee’s alcohol use in the past, McGee’s alcohol use would increase his risk, when compared with other patients, for developing a neuropathy even when the surgical team exercised due care.
Appellants insist that this testimony prejudiced them, but fail to explain how they were prejudiced. And evidence does not violate rule 403 merely because it is damaging to a party’s case. Given that four doctors testified that respondents met the standard of care, appellants fail to demonstrate how the evidence of past alcohol use prejudiced them to the extent that it affected the trial’s outcome.
Appellants claim that the prejudicial effect of alcohol-consumption evidence outweighs its probative value unless the offering party shows that the alcohol caused or contributed to the injury. Appellants cite two cases in support of this assertion.
First, appellants cite Mueller v. Sigmond, 486 N.W.2d 841
(Minn. App. 1992), review denied
(Minn. Aug. 27, 1992). In Mueller, the respondent sued for damages
stemming from a traffic accident, and the district court granted the
respondent’s motion to exclude evidence that she had been drinking the evening
of the accident. 486 N.W.2d at
842-43. On appeal, this court held that
the exclusion of the evidence was within the district court’s discretion but stated
that the evidence would have been admissible if the record had shown that the
respondent’s drinking contributed to the accident.
Second, appellants cite Hastings v. United Pac. Ins. Co., 396
N.W.2d 682 (Minn. App. 1986), as support for the proposition that evidence of
alcohol consumption is properly excluded where the record does not demonstrate
that alcohol was the proximate cause of an injury. But appellants’ reliance on
Evidence of McGee’s alcohol consumption was probative of whether he was predisposed to an increased risk of neuropathy despite any potential negligence on respondents’ part. And beyond mere assertion, appellants fail to explain how the evidence’s prejudicial effect outweighed its probative value. Thus, we conclude that the district court did not abuse its discretion by admitting evidence of McGee’s alcohol use.
Appellants argue that the district court erred by granting respondents’ motions for directed verdict against appellants’ claims for future medical expenses and loss of future earnings. We disagree.
appeal from a directed verdict, appellate courts make an independent
determination of whether the evidence was sufficient to present a fact question
to the jury and review the evidence in the light most favorable to the
nonmoving party. Boone v.
A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide. A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence. This court must apply the same standard.
Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992).
1. Future medical expenses
In asserting a claim for
damages for future medical expenses, a plaintiff must: (1) show the necessity of future damages in
the form of future medical treatments; and (2) establish by expert testimony
the amount of damages. Lind v. Slowinski, 450 N.W.2d 353, 358
(Minn. App. 1990), review denied
(Minn. Feb. 21, 1990). Both requirements
must be substantiated through competent evidence, which is ordinarily expert
testimony. Pietrzak v. Eggen, 295 N.W.2d 504, 507 (
Here, appellants failed to provide any expert testimony to establish the cost of McGee’s future medical expenses. Appellants argue that trial exhibits demonstrate that McGee needed continuing medication to treat ongoing pain. But appellants fail to cite any expert testimony as to the amount of future damages that McGee would incur.
Appellants cite Kwapien v. Starr, 400 N.W.2d 179 (Minn.
App. 1987), in support of their argument that the district court should have
submitted the issue of future medical expenses to the jury without expert
testimony because McGee’s position was permanent and his medical treatment was
likely to continue. In Kwapien, the issue was whether the district
court abused its discretion by refusing to grant remittitur on the jury’s award
of $20,000 for the respondent’s future medical expenses. 400 N.W.2d at 184. The parties stipulated to the respondent’s
past costs and the jury was presented with an actuarial table demonstrating the
respondent’s life expectancy.
Here, appellants provided no evidence of McGee’s life expectancy, and the parties did not stipulate to the cost of McGee’s earlier treatments. Furthermore, appellants offered no expert testimony on the cost of McGee’s past treatments. Because appellants provided no expert testimony establishing the amount of either future or past medical expenses, any award of future medical expenses would have been based on speculation. See id. Therefore, we conclude that the district court did not err by directing a verdict against appellants’ claim for future medical expenses.
2. Loss of earning capacity
Appellants also contend that the district court erred by directing a verdict against their claim of loss of future earning capacity.
The impairment of earning capacity is an item of general damages which does not require specific proof of actual earnings or income either before or after the injury. Because future damages such as this are impossible to prove with absolute certainty, the rule is that recovery may be had if future damage is reasonably certain to occur.
Id. at 183 (citation
omitted). 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.”
Id. (emphasis omitted). 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 (
The record indicates that McGee has worked as a lead technician for Northwest Airlines since 1991. As lead technician, McGee testified that he does not “have to do a lot of physical work.” He manages a crew of about 13 people, and assigns, organizes, and oversees their work. He returned to work approximately 11 months after the surgery and his income remained the same.
argue that they established McGee’s loss of earning capacity through evidence
that he uses a motorized bike to transport himself at work, is limited in his
activity, and can no longer climb ladders or stairs. But appellants fail to link McGee’s physical
limitations to his managerial duties as a lead technician, a position which he
admitted did not entail much physical work.
Although McGee can no longer walk the length of the hangar or climb a
ladder, appellants have not shown by a preponderance of the evidence that those
tasks were required of his job or that his inability to perform them impairs
his “power to earn.” See Wilson by Wilson v. Sorge, 256
Appellants argue that the district court abused its discretion by declining to submit to the jury their proposed instruction on the parties’ insurance coverage. We disagree.
District courts are allowed
considerable latitude in selecting the language in jury instructions. Alholm
v. Wilt, 394 N.W.2d 488, 490 (
Here, appellants requested an instruction stating:
You should not consider whether any party in this case was or was not covered by insurance. Some plaintiffs or defendants are covered by insurance, some are not, and some have various forms of partial coverage. Also, some people who have insurance must reimburse their insurance company under certain circumstances. The law does not allow the parties to present evidence about insurance or lack of insurance. More importantly, insurance has no bearing on whether the defendant was at fault or the amount of damages, if any, caused by a defendant’s fault.
The court denied appellants’ request but ultimately added an instruction stating, “Do not consider who actually paid the expense.”
Appellants argue that the
court’s instruction did not adequately instruct the jury to disregard insurance
coverage. They claim that the jury could
have assumed that McGee’s expenses were covered by insurance because he was
employed by a large company. Appellants
The task of extending existing law falls to the supreme court or the legislature, but not to this court. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). Furthermore, the district court here did instruct the jury not to consider who actually paid McGee’s past medical expenses. And appellants fail to demonstrate that the court’s use of the more general instruction, as opposed to their proposed instruction, destroyed the substantial correctness of the charge as a whole, caused a miscarriage of justice, or resulted in substantial prejudice. See Morlock, 650 N.W.2d at 159. Therefore, we conclude that the district court did not abuse its discretion by denying appellants’ request to submit their proposed jury instruction.