This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Reversed and remanded
Kandiyohi County District Court
File No. 34-C2-04-001550
John E. Mack, Mack & Daby P.A., P.O. Box 302, New London, MN 56273 (for appellant)
Mary B. Mahler, Heidi N. Thoennes, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for respondent)
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.
In this personal-injury case, appellant-plaintiff appeals from the district court’s judgment and the denial of her posttrial motions. Appellant contends that the district court abused its discretion by refusing to admit expert testimony and that this error was prejudicial. We reverse and remand.
Appellant Amanda Steffensen and respondent Caroline Otteson were involved in an automobile collision on February 27, 2003. Appellant sustained a fracture of her patella, also known as a broken kneecap. This injury required surgery. Appellant sued, alleging that the collision and her resulting injury were caused by respondent’s negligence.
Appellant identified Steven Lebow, M.D., a board certified neurologist, as an expert witness. Dr. Lebow examined appellant in July 2004. Dr. Lebow stated in a deposition that appellant’s injury is permanent and estimated the degree of permanency as five percent. Respondent filed a motion in limine to exclude the expert-opinion testimony of Dr. Lebow at trial. Respondent argued that “[a]s a neurologist, Dr. Lebow has no educational training or experience that . . . qualify him to render an opinion as to [appellant]’s fractured patella.” Respondent’s expert witness was an orthopedic surgeon who testified that appellant had achieved full recovery. The district court granted the motion and Dr. Lebow’s deposition testimony was excluded.
Because respondent conceded liability, the sole contested issue at trial was damages. The parties stipulated that appellant’s past medical expenses total $13,849.66. At the conclusion of the trial, the jury returned a verdict awarding appellant the stipulated amount of past medical expenses, past lost wages of $3,200, and damages of $12,800 for “[p]ast pain, disability, and emotional distress.” The jury did not award any future damages.
Appellant filed a motion for judgment notwithstanding of verdict, additur, or a new trial. The district court denied the motion, and this appeal follows.
The issues on
appeal are whether the district court abused its discretion by excluding Dr.
Lebow’s testimony and whether that error was prejudicial. “The granting of a new trial rests largely
within the district court’s discretion, and reversal is warranted only when the
district court’s decision involves a violation of a clear legal right or a
manifest abuse of discretion.” Blatz v. Allina Health Sys., 622 N.W.2d
376, 387 (
contends that the district court abused its discretion in excluding Dr. Lebow’s
his deposition, Dr. Lebow detailed his credentials. He obtained his medical degree from the
Dr. Lebow examined appellant on one occasion. During that examination, appellant complained of pain in her right knee. Appellant reported that she cannot run or rollerblade, and that she has difficulty walking up and down stairs and carrying her child. During his deposition, Dr. Lebow testified to a reasonable degree of medical certainty that appellant’s injury is permanent.
Respondent contends that the exclusion of Dr. Lebow’s testimony was appropriate because Dr. Lebow acknowledged that a patient with appellant’s injury “would not be seen by him, but rather by an orthopedic surgeon.” But Dr. Lebow’s actual testimony was as follows:
Q. Okay. Typically, if you have a patient that you’ve been treating on a neurological basis that has a fractured patella, that’s something you would ordinarily refer  to an orthopedic physician or surgeon because it involves a bone fracture, correct?
A. If it was a fracture that needed surgery, I would certainly refer to a surgeon.
Q. And would that be an orthopedic surgeon or a neurosurgeon?
A. No. For a kneecap, it would be an orthopedic surgeon.
This is not an acknowledgement that Dr. Lebow is unqualified to evaluate pain associated with such injuries; rather, Dr. Lebow indicated that he would generally refer an injury that requires surgery to a surgeon. Dr. Lebow did not express an opinion on the nature of appellant’s fracture, related surgical procedures, or the healing of the bone. Rather, he testified regarding the pain she experienced and the future pain appellant is likely to suffer.
The parties disagree over the scope of the district court’s order granting the motion to exclude. Respondent’s motion requests that the “Expert Opinion Testimony of Plaintiff’s Expert, Dr. Steven Lebow [be excluded] pursuant to Rule 702.” On appeal, respondent claims Dr. Lebow’s testimony was excluded only to the extent that he was opining about a fractured patella. Respondent’s memorandum in support of her motion in limine blends references to Dr. Lebow’s lack of qualifications to testify about a fractured patella with recognition of his expertise regarding the nervous system and the lack of any claim by appellant that she suffered any injury to her “central nervous system.” Appellant’s response to the motion emphasizes that Dr. Lebow would be called as an expert regarding pain and permanency as distinguished from more general testimony about the fracture.
Here, the district court simply granted the motion: “The defendant’s motion in limine is GRANTED.” No written memorandum accompanies the district court’s order. At trial the district court added: “The Court . . . agree[s] that a neurologist should not be talking about a knee [injury] unless [it has] some basis to believe he’s qualified in that area. [The district court] did not have that, so the motion was granted.” The parties failed to seek an additional explanation whether the district court’s ruling excluded all testimony or only certain testimony from Dr. Lebow. There is evidence that at trial, even the attorneys were confused as to the scope of the district court’s ruling. The upshot is the jury did not hear any of Dr. Lebow’s testimony.
We conclude that the best reading of the district court’s ruling is that since Dr. Lebow’s testimony was in the form of a deposition that had previously been taken, the ruling excluded all of his proposed testimony. Based on this record, because Dr. Lebow’s excluded testimony focused on pain and permanency and because his expertise gave him credentials to address those matters, we conclude that the district court abused its discretion by excluding Dr. Lebow’s testimony.
next question is whether the exclusion of Dr. Lebow’s testimony was
prejudicial. “Entitlement to a new trial
on the grounds of improper evidentiary rulings rests upon the complaining
party’s ability to demonstrate prejudicial error.” Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (
Here, Dr. Lebow was the sole medical witness whose testimony appellant sought to admit. Appellant did not present any other expert testimony regarding the permanency of her injury. An orthopedic surgeon testified as a defense witness, stating that appellant had a full recovery and that her knee injury was not permanent. The jury’s verdict did not contain an award of future damages.
Had Dr. Lebow been allowed to testify, the jury would have faced the task of weighing contrasting expert opinions of two physicians in order to render its verdict on permanency. Although there is no way to know what result the jury would have reached with Dr. Lebow’s testimony before it, a finding of continuing pain and permanency would not be unreasonable. We conclude that the district court’s exclusion of Dr. Lebow’s expert testimony was prejudicial, and we reverse and remand for a new trial.
Reversed and remanded.
 Challenges to deposition testimony may be
problematical. Although respondent
raised several objections during Dr. Lebow’s deposition testimony, none
specifically challenged his qualifications.
None of these objections, including those based on foundation, put
appellant’s counsel on notice that Dr. Lebow’s credentials to render an opinion
would later be challenged in a motion in limine. Appellant did not press respondent to sharpen
or limit the basis for the objections.
After a deposition, it may be increasingly difficult for the proponent
of an expert witness to establish appropriate credentials for that
witness. This is especially true if the
full nature of the objection is not stated until trial. Litigants should sort out objections early
and should not try to finesse the dispute by ambiguity and delay. See
 The parties disagreed whether Dr. Lebow, as a neurologist, could offer expert testimony regarding problems related to a fractured patella when the specialty of orthopedics deals with fractures. Because of our determination that Dr. Lebow’s opinion dealt with pain and that this was within his specialty, we do not reach the question of the district court’s discretion to limit testimony of a medical doctor who is a specialist to testify about medical questions outside that specialty.