This opinion will be unpublished and

may not be cited except as provided by

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







Deeanne M. Carlson,





Richard F. Riemenschneider, DDS,




Filed February 13, 2007

Crippen, Judge


Ramsey County District Court

File No. C1-04-1134



Lawrence J. Skoglund, Erstad & Riemer, P.A., 8009 – 34th Avenue South, Suite 200, Minneapolis, MN 55425; and


Jon R. Hawks, 9700 Waterstone Place, Suite 105A, Minnetonka, MN 55305 (for appellant)


Gregory W. Deckert, Vest & Deckert, P.A., 6160 Summit Drive, Suite 360, Minneapolis, MN 55430 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Deeanne Carlson appeals from the district court’s denial of a new trial in an action for dental malpractice.  Appellant disputes the sufficiency of the evidence to support the jury’s finding that respondent Richard F. Riemenschneider, DDS, was not negligent in the treatment he provided to her, and she contends that the district court improperly excluded evidence from earlier Minnesota Board of Dentistry proceedings and from prior malpractice lawsuits.  Appellant also disputes the jury’s zero-damages determination and the district court’s refusal to allow a punitive-damages claim.  Because the record permits the jury’s verdict and because the district court did not abuse its broad discretion in excluding evidence, we affirm.  Other contentions of appellant are also without merit.


            Appellant brought this action against her former dentist for treatment he provided to her over the course of the 18 years that she was his patient.  After respondent sold his practice in 2000, appellant began seeing other dentists.  Appellant claims that she incurred more than $30,000 in dental care expenses after leaving respondent’s care.  She attributes her damages to respondent’s failure to diagnose and treat her dental problems.

            Prior to the 2005 jury trial, the district court ruled that evidence from proceedings involving respondent before the Minnesota Board of Dentistry (the board) and evidence of prior lawsuits against respondent were inadmissible.  Also, reversing its earlier decision, the court denied appellant’s motion to add a claim for punitive damages.  In its subsequent verdict, the jury found that respondent was not negligent and that appellant had been contributorily negligent and was 100% at fault for the problems she experienced. 

            The district court later denied appellant’s new trial motion, in which appellant argued that the jury’s verdict was contrary to the evidence, that the district court erred in excluding evidence, that the jury’s award of zero damages was insufficient and made under the influence of passion or prejudice, and that the court erred in refusing to allow a punitive-damages claim to go to the jury. 



            This court reviews a district court’s denial of a motion for a new trial for abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “[W]e 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) (quotation omitted).  In other words, the jury’s verdict “will not be set aside unless the evidence against it is practically conclusive.”  Ouellette by Ouellette v. Subak, 391 N.W.2d 810, 817 (Minn. 1986).  When “reviewing the sufficiency of the evidence to support a jury verdict . . . we may not substitute our judgment on disputed questions of fact.”  Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 172 (Minn. 1977).

A malpractice claim against a health-care provider is established by showing:  “(1) the standard of care recognized by the medical community as applicable to the particular [provider’s] conduct; (2) that the [provider] departed from that standard; (3) that the [provider’s] departure from that standard was a direct cause of the patient’s injuries; and (4) damages.”  Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).  The standard of care in medical-malpractice cases is a fact question for the jury.  Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App. 2000), review denied (Minn. July 25, 2000).

Appellant first argues that respondent was negligent in failing to diagnose and treat appellant’s abscesses or to refer her to a specialist and that these failures were a direct cause of her injuries.  Appellant’s oral argument focused on abscesses found under three teeth.  Abscesses are infections that can lead to more serious problems if left untreated. 

The evidence permits a finding that respondent was not negligent regarding the abscesses.  The jury heard testimony regarding respondent’s diagnosis and treatment of appellant’s abscesses.  Respondent, a general practitioner, had endodontics training for treatment of abscesses and performing root canals to address them, and there was testimony that the standard of care did not require a specialist to perform endodontics work.  Endodontics is the dental practice involving root canal-surgery and dealing with abscesses.  There was also testimony that respondent complied with the standard of care and that the root canals he performed on appellant, including those involving the three teeth that appellant refers to, were done appropriately.  The jury also heard evidence about appellant’s poor oral hygiene and how that could cause dental decay that leads to abscesses; for example, an endodontist’s records from January 2001 described appellant’s oral hygiene as “very poor.”  The record support’s the jury’s finding that respondent was not negligent in his treatment of appellant’s abscesses.

            Appellant poses similar arguments regarding her periodontal disease.  Periodontics deals with bone loss due to acute infection around gums.  The jury heard testimony that respondent was trained in periodontics and that he treated appellant appropriately for periodontal disease by performing root planing and scaling, by giving appellant home-care instruction for gum treatment, providing her dental rinses, and advising her to use a Waterpik to massage her gums.  There was expert testimony that respondent complied with the standard of care for a general dentist performing periodontal work and that it is common for general dentists to treat periodontal disease.  There was also evidence that appellant did not develop acute periodontal disease and its resulting bone loss until late 1998, that in June 1999 appellant reported to respondent’s staff that she was about to see a periodontal specialist, and that respondent did not learn otherwise until he saw her in 2000, the year he sold his business.  Again, the jury considered evidence of appellant’s poor hygiene as a cause of her problems; a periodontist’s records in December 2000 and April 2001 indicate that appellant’s oral hygiene was poor on those occasions.  Appellant, a cigarette smoker since 1975, testified that she learned in the 1980’s that smoking was bad for her dental health, but that she did not stop smoking until 2000, after she was no longer being treated by respondent.  Overall, there is sufficient evidence to permit a finding that respondent was not negligent in his periodontal treatment of appellant and that appellant herself was the cause of any further problems she had.

            Finally, appellant argues that respondent was negligent in failing to take a proper dental history and full-mouth x-rays, which would have enabled respondent to diagnose appellant’s worsening periodontal conditions and her abscesses.  But respondent testified that his office recorded appellant’s history when she first came to see him and that they would update her records as needed on each visit.  His practice was to purge his files every few years after a treatment was completed and that was why he did not have a complete copy of appellant’s dental records.  There was also evidence that the standard of care did not require a dentist to take full-mouth x-rays in 1982 when appellant starting seeing respondent.  Respondent testified that once full-mouth x-rays for new patients became the norm in the 1990’s, he took them for his new patients but did not need to do so for appellant, an established patient for many years.  He also testified that the bite-wing x-rays that he took were sufficient for him to detect any abscesses or gum problems that were developing.  The jury could have accepted the testimony that the 60 bite-wing x-rays respondent took of appellant were adequate for diagnostic purposes.

On the record before us, the district court did not abuse its discretion by denying a new trial based on insufficient evidence to support the jury’s verdict.  The jury’s verdict is not manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.


            A “decision to admit or exclude evidence rests within the broad discretion of the [district] court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.”  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  The complaining party must demonstrate prejudicial error from an improper evidentiary ruling before being entitled to a new trial on those grounds.  Id.

            Evidence of other wrongs or acts is not “admissible to prove the character of a person in order to show action in conformity therewith.”  Minn. R. Evid. 404 (b).  Even relevant “evidence may be excluded 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 board found that respondent failed to maintain adequate safety and sanitary conditions and appropriate infectious disease control measures in his dental practice from 1991 though 2003, a period of time that overlaps with the time respondent treated appellant.  The board also found that respondent failed to provide or document appropriate periodontal treatment, to provide appropriate endodontics treatment, to provide appropriate restorative treatment, or to make or maintain adequate patient records.  The board’s findings over this period of time could be considered relevant to the issues in the present case because they show that respondent was sanctioned for some of the same failings that are being alleged here.  But as the district court concluded, the risk is that the evidence could substantially and unfairly prejudice respondent by confusing the issues presented to the board with the issues that the jury must consider.  The court also found that admitting evidence of the board’s actions would invade the province of the jury because the jury might infer that respondent was negligent in this case based on facts determined by the board in other matters, rather than on facts determined by the jury in this matter.  The court did not commit legal error or abuse its discretion in excluding this evidence.

            Similarly, the district court was within its broad discretion by excluding evidence of four prior malpractice lawsuits brought by appellant’s attorney against respondent.  The court found that the jury could wrongfully conclude that if respondent is accused of malpractice in other matters, then he must be liable for malpractice in the present case.  The court was within its discretion to make that determination and to exclude the evidence.


            Appellant contends that the verdict awarding no damages appears to have been given under the influence of passion and prejudice and that she is entitled to a new trial. A damage award that is less than the proved or undisputed damages may be overturned as the product of passion or prejudice unless the jury has also determined that there is no liability on the part of the defendant, and that finding is supported by credible evidence.  Wefel by Wefel v. Norman, 296 Minn. 506, 507-08, 207 N.W.2d 340, 341 (1973) (stating that, “It is clear that the jury realized that their findings on liability rendered the damage question moot.”); see also Radloff v. Jans, 428 N.W.2d 112, 115-16 (Minn. App. 1988), review denied (Minn. Oct. 26, 1988) (upholding award of less than proven damages when credible evidence supports jury’s verdict of no liability on defendant’s part).  The jury found respondent not negligent on credible evidence.  The jury decided that appellant’s contributory negligence was 100% and that it was the cause of her own injuries.  And the jury was asked to determine the amount of damages “directly caused by [respondent’s] dental care and treatment.”  Having found respondent to be not negligent at all, the jury could only determine, as it did, that the amount of damages was zero.  The district court did not abuse its discretion in denying a motion for a new trial based on the jury’s determination of zero damages.

            Finally, appellant contends that the district court erred by refusing to allow the jury to consider a claim for punitive damages.  This court may not reverse a denial of the motion to add a claim for punitive damages absent an abuse of discretion.  L.M. by S.M. v. Karlson, 646 N.W.2d 537, 545 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  There is no such abuse here.  The district court found that appellant had failed to produce clear and convincing evidence that respondent deliberately disregarded appellant’s safety.  See Minn. Stat. § 549.20, subd. 1(a) (2006) (requiring clear and convincing evidence before allowing a punitive-damages claim).  Even if the jury had found respondent negligent, it would not be sufficient for a punitive-damages award.  See Utecht v. Shopko Dep’t. Store, 324 N.W.2d 652, 654 (Minn. 1982) (holding that conduct more egregious than mere negligence is necessary to constitute the deliberate disregard required for a punitive-damages claim).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.