This opinion will be unpublished and

may not be cited except as provided by

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







Lisa Seitz,





Karen Higginbotham,



Filed May 22, 2007


Wright, Judge


Hennepin County District Court

File No. LN 04 3250


Michael A. Bryant, Bradshaw & Bryant, PLLC, 1505 Division Street, Waite Park, MN 56387 (for appellant)


Michael R. Peterson, Bruce P. Candlin & Associates, 380 St. Peter Street, Suite 603, St. Paul, MN 55102 (for respondent)



            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N



In this appeal challenging the district court’s order denying appellant’s motion for a new trial, appellant argues that the district court’s refusal to permit her to call a witness during her case-in-chief was prejudicial error.  We affirm. 


Appellant Lisa Seitz and respondent Karen Higginbotham were involved in a motor-vehicle accident.  The vehicles collided in heavy traffic when Higginbotham made a left turn from the left-turn lane and Seitz pulled out of a parking lot to turn across several lanes of traffic.  Seitz brought a personal-injury lawsuit against Higginbotham, alleging that Higginbotham’s negligent driving caused Seitz’s injuries.  In Seitz’s answers to interrogatories and on her witness list, she identified Officer Joseph Trout as a trial witness.  Higginbotham’s witness list also identified Officer Trout as a prospective trial witness.  Higginbotham subpoenaed Officer Trout to appear and give testimony during Higginbotham’s case-in-chief.  Seitz did not subpoena Officer Trout.

In his opening statement, Seitz’s counsel told the jury that “a police officer will testify.  He will not be here until tomorrow, so we’ll call him tomorrow.”  Higginbotham’s counsel stated in his opening, “we’ll also be calling Officer Joseph Trout,” and he described the officer’s anticipated testimony.  At the end of her case-in-chief, Seitz called Officer Trout as a witness.  Higginbotham objected to Officer Trout as a witness in Seitz’s case-in-chief because Higginbotham had subpoenaed the officer and had advised the jury of her intent to call Officer Trout.  The district court sustained the objection.  Officer Trout testified in Higginbotham’s case-in-chief. 

The jury found Seitz 85 percent negligent and Higginbotham 15 percent negligent.  Seitz moved for judgment notwithstanding the verdict, a new trial, and additur.  The district court denied the motions and awarded Higginbotham costs and disbursements.  This appeal from the judgment followed.


The decision to grant or deny a new trial lies “within the sound discretion of the [district] court and will not be disturbed absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “On appeal from a denial of a motion for a new trial, an appellate court should not set aside a jury verdict unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation omitted).  A party is not entitled to a new trial on the grounds of an improper evidentiary ruling unless the party can demonstrate prejudicial error.  Minn. R. Civ. P. 61; Knoning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).  An evidentiary error is prejudicial if it reasonably could have changed the result of the trial.  Foust v. McFarland, 698 N.W.2d 24, 33 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005).   

Seitz argues that, because she gave pretrial notice to opposing counsel and advised the jury that she would be calling Officer Trout as a witness, the district court’s decision barring Officer Trout’s testimony in Seitz’s case-in-chief constituted prejudicial error for two reasons.  First, jurors perceive from the entertainment media that the substance of a witness’s testimony is necessarily adverse to a party who cross-examines the witness.  Second, jurors perceive a cross-examining attorney as a “cold, argumentative, and defensive person, whose goal is to attack the witness.”  We are unpersuaded.

The district court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth.”  Minn. R. Evid. 611(a).  Jurors are routinely instructed to be impartial and to decide the case based on the evidence and witness credibility, not on what attorneys say during trial.  See 4 Minnesota Practice, CIVJIG 10.15 (instructing jurors on duties and definition of “evidence”), .20 (instructing jury on duty to decide case on facts), 12.15 (instructing jury on how to evaluate credibility) (2006). 

Seitz’s argument invites us to find prejudice based on bald assertions lacking any evidentiary support.  The record is devoid of any indication that the jurors were unable to set aside preconceived notions resulting from their exposure to courtroom scenes on television and in movies or that they had any such notions.  Moreover, Seitz’s attorney retained the ability to ask Officer Trout nonleading questions and to employ a warm, conversational demeanor during cross-examination.  Most importantly, Seitz has not identified any evidence that she was unable to present to the jury because of the district court’s ruling.  Because Seitz has not met her burden of establishing an evidentiary error that reasonably could have changed the result of the trial, she is not entitled to a new trial.