This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Ralph B. Lowis,





Park Nicollet Clinic, et al.,



Filed ­­­January 16, 2007


Dietzen, Judge


Hennepin County District Court

File No. MP 04-7720


David B. Ketroser, P.O. Box 427, Hopkins, MN 55343 (for appellant)


Katherine A. McBride, Barbara A. Zurek, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4400, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges a district court order denying his posttrial motions for new trial or, alternatively, for judgment as a matter of law, arguing that the district court erred in (1) denying his request to introduce portions of medical textbooks to impeach respondents’ medical expert; (2) admitting opinion testimony of respondents’ other medical expert; and (3) denying his motion for judgment as a matter of law because defendants offered no qualified testimony on the issue of causation.  Because we conclude that the district court properly applied the law and did not abuse its discretion, we affirm.


In this medical malpractice action, appellant Ralph Lowis contends that respondents Park Nicollet Clinic and Michael Cristofano were professionally negligent in (1) failing to educate him about possible adverse reactions to Viramune, which is a medication they prescribed to treat his HIV infection; (2) failing to diagnose Stevens-Johnson Syndrome (SJS), which is a hypersensitivity to that medication; and (3) failing to stop the medication once he showed the signs and symptoms of SJS, which caused him to sustain permanent eye damage.  

Appellant was diagnosed as HIV-positive in 1986 and treated for that condition and its complications for a number of years.  In 1996, appellant transferred care of his HIV infection to Dr. Leslie Baken, an infections disorder specialist at Park Nicollet.  On July 30, 2002, Dr. Baken changed appellant’s prescription from Sustiva to a drug called Viramune in order to relieve sleeplessness and resulting fatigue apparently caused by Sustiva.  Viramune is a medication known to have serious side effects, and a pamphlet that accompanies each package contains an advisory regarding potentially severe, life-threatening skin reactions.  On August 13, appellant visited Park Nicollet and was seen by respondent Cristofano, a nurse practitioner who specializes in HIV patients, for complaints of both a penile lesion and a cold sore in his mouth.  He was given tests and prescribed Valtrex to treat a possible herpetic infection.  The test results were negative.

On August 17, appellant went to a Park Nicollet urgent care clinic complaining of red eyes and flu-like symptoms, but did not report any rashes, which are a hallmark of complications from Viramune.  He was diagnosed with conjunctivitis and prescribed eye drops.  When appellant returned to the clinic the next day and reported that his eye condition had worsened and that he had an itchy skin rash, he was diagnosed as having an allergic reaction to the eye drops.

On August 19, appellant visited respondent Cristofano at Park Nicollet, who diagnosed appellant as having an allergic reaction to Viramune and removed him from the medication.  Sixteen hours later appellant went to the emergency room complaining of severe eye pain.  He was given Percocet for pain relief and instructed to see an ophthalmologist at Park Nicollet that same morning.  When the Percocet wore off he returned to the emergency room and was seen by Dr. Steven Rakes, an ophthalmologist.  Dr. Rakes diagnosed appellant as having SJS. 

Appellant was later admitted to Methodist Hospital and then transferred to Hennepin County Medical Center’s burn unit for treatment.  He has undergone numerous opthalmologic procedures/surgeries to treat the consequences of SJS.  As a result of SJS, appellant suffered serious and permanent eye damage.

            The jury trial of this matter lasted two weeks.  Both parties presented expert medical testimony regarding the drug Viramune and its potential side effects; the diagnosis, causation, and treatment of SJS; the standard of care applicable to respondents; and the permanent eye damage sustained by appellant as a result of his reaction to Viramune.  Appellant’s expert Dr. C. Stephen Foster agreed that, despite studies and research done on early intervention and diagnosis of SJS, no one has developed an effective treatment for SJS.  And Dr. Foster conceded that once a patient develops SJS, the disease runs its own course.  Thus, early intervention before the condition develops is critical.

Dr. Norman Levine, a dermatologist and professor of medicine in Arizona, testified as a medical expert for respondents.  On cross-examination, Dr. Levine was asked:

Q. Can you refer to any medical literature that says that the entire constellation of SJS from first symptom to the all encompassing rash only takes 24 to 48 hours?


A. Fitzpatrick textbook of medicine the most recent because I bought it to make sure that has that in there. My textbook has it in there.


Q. And it says that the patient doesn’t develop systemic, mucosal or any other problems before they have the all encompassing rash; is that correct?


A. No, what the references say is the whole constellation occurs as a package and that within a very few days often 12 to 24 hours, you get the mucous membrane lesions and the skin lesions in a big bag. And that it doesn’t take nine days for the mucous membrane lesions to develop the full constellation. And I must say I have never read . . . any place where it says you can go nine days for the mucous membrane lesions to the rest of the syndrome.


Appellant’s counsel did not ask Dr. Levine about the content of those medical treatises.  Following his testimony, Dr. Levine returned to Arizona.

Dr. Steven Rakes, an ophthalmologist, testified as a medical expert for respondents.  He testified that appellant would not have avoided eye problems which he experienced if the Viramune was stopped on August 16, 2002.  During rebuttal, appellant sought to introduce testimony of his counsel, Dr. David Ketroser, to impeach Dr. Levine and prove that he “lied” during cross-examination when he stated that SJS develops rapidly after the first symptom, may manifest from within 12 to 48 hours of the first symptom, and that this prognosis was corroborated by Fitzpatrick’s Dermatology in General Medicine and his own textbook.  Appellant proposed to have his trial counsel introduce a transcribed portion of Dr. Levine’s testimony and portions of those two medical treatises, which he referenced as support for his opinion.  Respondents objected, and the district court sustained the objection on numerous grounds. 

Following the trial, the jury returned a verdict finding that respondents were negligent, but that their negligence was not a direct cause of appellant’s injuries.  Appellant moved for judgment notwithstanding the verdict (JNOV),[1] or in the alternative, for a new trial on the issue of causation, arguing that the district court erred by denying his request to introduce into evidence, during rebuttal, the proposed testimony of Ketroser and portions of the two medical treatises to impeach Dr. Levine, and by admitting unobjected-to causation testimony of Dr. Rakes not previously disclosed in discovery.  The district court denied the motions.  This appeal follows.



Initially, respondents argue that appellant did not bring a motion for a new trial within the time limit required by Minn. R. Civ. P. 59.01 and, thus, the evidentiary issues he presents were not preserved for appellate review.  Specifically, respondents contend that although appellant’s motion for JNOV was timely, it did not properly reference the specific grounds for a new trial in its motion as required by rule 59.01, and, therefore, appellant was time-barred from bringing a motion for a new trial.  

Interpretation of the rules of civil procedure is a question of law, which this court reviews de novo.  Smith v. Flotterud, 716 N.W.2d 378, 381 (Minn. App. 2006), review denied (Minn. Sept. 27, 2006).  “It has long been the general rule that matters such as trial procedure, evidentiary rulings, and jury instructions are subject to appellate review only if there has been a motion for a new trial . . . .”  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).  Minn. R. Civ. P. 59.01 outlines seven reasons for which a motion for a new trial may be granted. 

Here, appellant made a motion for a new trial within the window allowed by the rule and then supplemented his motion with a memorandum of law.  Respondents rely on Sauter to argue that a party is required to state the specific reason under rule 59.01 that the district court should grant a new trial.  But Sauter stands for the general rule that a proper appeal on matters such as trial procedure, jury instructions, or evidentiary rulings must be taken from a district court’s ruling on a motion for a new trial.  Sauter, 389 N.W.2d at 201-02.  There is nothing in the language of Sauter that requires a party to state the specific reason it is moving for a new trial in its actual motion, rather than in a supplemental memorandum in support of the motion.

Previously, this court held that where a party addresses the grounds of its motion for a new trial in a supplemental memorandum of law, rather than in its actual notice of motion and motion for relief, the requirements of rule 59.01 are satisfied.  GN Danavox, Inc. v. Starkey Labs., Inc., 476 N.W.2d 172, 176 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991).  GN Danavox mirrors this case.  Thus, appellant preserved the evidentiary issues for review.


            Appellant argues that the district court’s evidentiary rulings deprived him of a fair trial and that he should be granted a new trial on the issue of causation.  “[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court.”  Benson v. N. Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990). Further, we review the district court’s denial of a motion for a new trial for an abuse of discretion.  Boschee v. Duevel, 530 N.W.2d 834, 840 (Minn. App. 1995), review denied (Minn. June 14, 1995).  “[B]efore 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)).  And we will not set aside a jury verdict on appeal from a district court’s denial of a motion for a new trial unless it is manifestly and palpably contrary to the evidence as a whole, viewed in the light most favorable to the verdict.  Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn. 2002). 

            Appellant argues that the district court erred by excluding rebuttal testimony of appellant’s trial counsel, David Ketroser, who is also a medical doctor, in which Ketroser sought to read (1) a transcribed portion of Dr. Levine’s opinion testimony indicating that SJS progresses from first symptom to all encompassing rash in 24 to 48 hours and (2) portions of both Fitzpatrick’s Dermatology in General Medicine and Dr. Levine’s medical textbook.  Respondents objected to the proposed evidence on numerous grounds.  After lengthy arguments, the district court concluded (1) that the proposed evidence violated rule 3.7 of the Rules of Professional Conduct;  (2) that the proposed method of impeachment was contrary to the Rules of Evidence; and (3) that the proposed evidence was cumulative.

Minn. R. Prof. Conduct 3.7(a) provides:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1)       the testimony relates to an uncontested issue;

(2)       the testimony relates to the nature and value of legal services rendered in the case; or

(3)       disqualification of the lawyer would work substantial hardship on the client.


            The rules of professional conduct, which were promulgated by the Minnesota Supreme Court, govern the professional conduct of lawyers but are not rules of evidence.  Our review focuses on whether the evidence was admissible and whether the district court abused its discretion in excluding it.  Thus, we turn to the applicable rules of evidence.

Appellant argues that the portions of the two medical textbooks were admissible as impeachment of the underlying basis of Dr. Levine’s opinion regarding the rapid onset of SJS.  In general, the credibility of a witness may be attacked by any party, including the party calling the witness.  Minn. R. Evid. 607.  Traditional methods of impeachment include prior inconsistent statements and contradiction on a non-collateral matter.  Minn. R. Evid. 613 governs prior inconsistent statements and, in relevant part, provides that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon . . . .”  Minn. R. Evid. 613(b). 

Here, appellant sought to introduce a portion of Dr. Levine’s own textbook to impeach the underlying basis for his opinion.  Thus, appellant sought to impeach through a prior inconsistent statement allegedly set forth in his textbook.   But appellant failed to present the relevant portion of the textbook to Dr. Levine and afford him the opportunity “to explain or deny the same.”  We turn then to impeachment by contradiction.

Impeachment by contradiction on a non-collateral matter is governed by rules 401 - 403 of the Rules of Evidence.  Rule 403 provides discretion to the district court to exclude evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”  Minn. R. Evid. 403.  The district court concluded that, “The Fitzpatrick and Levine texts are rife with medical terminology and complexities beyond the realm of lay knowledge.  To allow a lawyer to hold up a medical textbook and simply argue that its text impeaches Dr. Levine’s testimony invites confusion and error.”  We agree.  In this case, we are persuaded that the complexity of the medical causation issue, particularly when appellant’s trial counsel, who was also a medical doctor, intended to argue its medical application to the case, had the potential of causing confusion of the causation issue to the jury.  And, therefore, it was proper to exclude the evidence under rule 403.

Next, we turn to the admissibility of portions of Fitzpatrick’s Dermatology in General Medicine.  Unlike Dr. Levine’s own textbook, which on its face may qualify as a prior inconsistent statement, the Fitzpatrick textbook was not previously adopted by the witness and, therefore, does not qualify as a prior inconsistent statement of the witness.  But even if the Fitzpatrick textbook was potentially admissible as impeachment evidence, the district court has the discretion under rule 403 to exclude it if its probative value is outweighed by the danger of confusing or misleading the jury. 

Finally, we turn to whether the proposed portions of Dr. Levine’s textbook or the Fitzpatrick textbook are admissible as substantive evidence.  Appellant argues in the alternative that the medical textbooks in question are admissible as a learned-treatise.  A medical textbook may be introduced into evidence as a learned-treatise if it was brought to the attention of the expert on cross-examination, and an expert witness establishes through testimony that the treatise is a reliable authority on the medical issue in question.  Minn. R. Evid. 803(18).  One commentator has concluded that “[a]lthough the rule says that the treatise need only be called to the attention of a witness on cross-examination, in order to completely effectuate the purpose of the rule and to insure that the treatise is used properly, the expert should be permitted to comment on the treatise or portions being introduced.”  11 Peter N. Thompson, Minnesota Practice, § 803.18 at 527 (3d ed. 2001).  And the district court may limit the use of treatises to avoid the unnecessary waste of time, the needless presentation of cumulative evidence, and the potential for misleading the jury or confusing the issues.  Minn. R. Evid. 403, 611(a); Green v. City of Coon Rapids, 485 N.W.2d 712, 717-18 (Minn. App. 1992), review denied (Minn. June 30, 1992).  Again, the district court did not abuse its discretion by excluding the evidence under rule 403.

            Because we conclude that the district court did not abuse its discretion in excluding the proposed evidence, it is not necessary for us to reach the other bases for its ruling, nor is it necessary for us to reach the issues of prejudice to appellant and the denial of appellant’s motion for a new trial, and, therefore, we decline to do so.  We nonetheless observe that the other bases for the district court’s ruling have merit, and on this record, we are unable to conclude that the excluded evidence might reasonably have changed the result of the trial if it had been admitted.



Appellant argues that Dr. Rakes had disqualified himself from providing opinion testimony on causation and that his testimony unfairly exceeded respondents’ expert disclosures and discovery deposition, and, therefore, a new trial is required.  In his pretrial deposition, Dr. Rakes stated:

A.        I don’t think I can comment on that.  I mean, the reason I can’t is because when I became involved with patients who have this problem, those issues are handled by people with much more expertise in that area than me, so I don’t really have the expertise to say about the timing.


Specifically, appellant argues that respondents did not properly notify him that Dr. Rakes would testify that even if respondents had taken appellant off Viramune on August 16, 2002, it would not have prevented the onset of SJS.

In general, the admission or exclusion of expert testimony falls within the district court’s broad discretion, subject to whether the court has erroneously construed the law or abused its discretion.  Hempel v. Fairview Hosp. and Healthcare Servs. Inc., 504 N.W.2d 487, 490 (Minn. App. 1993).

Appellant first argues that Dr. Rakes disqualified himself in his deposition from expressing an opinion on causation.  But this issue is raised for the first time on appeal.  “A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  Thus, we decline to address the issue on the merits.  We observe, nonetheless, that appellant had the opportunity to cross-examine Dr. Rakes on this issue but chose not to do so.

We turn to whether Dr. Rakes’s testimony was properly disclosed by respondents.  Minn. R. Civ. P. 26.02(d)(1)(A) states:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.


To suppress expert testimony, a party must show surprise or unfair prejudice.  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986).  “[A]n appellant will not always know what testimony he will present on rebuttal, and he need not anticipate what rebuttal witnesses might testify to and disclose all possible rebuttal testimony in interrogatories.” Whitney v. Buttrick, 376 N.W.2d 274, 278 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).

            The district court concluded that Dr. Rakes’s testimony created no unfair surprise or prejudice for three reasons:  (1) the testimony, which addressed the standard of care and causation, fit within the expert disclosures provided to appellant; (2) appellant was allowed to depose Dr. Rakes which occurred more than one year before trial; and (3) Dr. Rakes testified in response to the trial testimony of Dr. C. Stephen Foster.

            Here, Dr. Rakes was one of respondents’ key witnesses on the issue of causation, and testified in response to Dr. Foster’s testimony on causation.  Although Dr. Rakes’s trial testimony on causation was not an issue addressed by appellant’s counsel during his discovery deposition, respondents had clearly disclosed that Dr. Rakes would testify regarding causation.  Because Dr. Foster testified about causation, Dr. Rakes was required to further elaborate his opinion on that issue.  Appellant has failed to establish prejudice or undue surprise.  And because of the nature of rebuttal testimony, respondents were not required to anticipate and disclose every detail of Dr. Rakes’s testimony.  See Buttrick, 376 N.W.2d at 274, 278-79.  Thus, the district court did not abuse its discretion by not excluding the causation testimony of Dr. Rakes.  Because there was no abuse of discretion by the district court in its evidentiary ruling on Dr. Rakes’s testimony, there was no prejudicial error warranting a new trial.


            Appellant argues that without the expert testimony of Drs. Levine and Rakes, respondents produced no evidence on the issue of causation and, therefore, he is entitled to judgment as a matter of law.  On appeal, where JNOV has been denied by the district court, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.  Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).

            Here, appellant’s theory that he is entitled to judgment as a matter of law is not plausible without the exclusion of respondents’ two causation witnesses, Drs. Levine and Rakes, which did not happen.  Each doctor testifed that respondents could not have prevented the onset of SJS had they removed appellant from Viramune earlier.  This testimony presents an issue of material fact and allows a jury to reasonably conclude that respondents’ breach of medical duty did not cause appellant’s permanent eye injuries, especially since appellant’s experts offered only hypotheses regarding causation, rather than documented medical findings or conclusions.  And if appellant has not affirmatively shown causation, he cannot be entitled to judgment as a matter of law.  Because we hold that the district court did not abuse its discretion in its evidentiary rulings, we are precluded from holding that appellant is entitled to judgment as a matter of law.


[1] Effective January 1, 2006, Minn. R. Civ. P. 50 has been amended to adopt the “judgment as a matter of law” nomenclature in place of “judgment notwithstanding the verdict” and “motion for directed verdict.”