This opinion will be unpublished and

may not be cited except as provided by

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






Amanda Steffensen,


Caroline Otteson,


Filed July 31, 2007

Reversed and remanded

Minge, Judge


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.

U N P U B L I S H E D  O P I N I O N


MINGE, 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 (Minn. App. 2001).  “To require a new trial, the exclusion of evidence must be both an abuse of discretion and prejudicial.”  Id.  We are “very deferential” in our review of a district court’s ruling on the admissibility of an expert’s testimony.  State v. Johnson, 672 N.W.2d 235, 241 (Minn. App. 2003) (quotation omitted), review denied (Minn. Mar. 16, 2004). 

            A.         Exclusion

            Appellant contends that the district court abused its discretion in excluding Dr. Lebow’s testimony.  Minn. R. Evid. 702 governs the admissibility of expert testimony: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”  A medical expert witness must have both scientific knowledge and practical experience in the area in which testimony is sought.  Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977).  “[A]ny person whose profession or vocation deals with the subject at hand is entitled to be heard as an expert, while the value of his evidence is to be tested by cross-examination and ultimately determined by the jury.”  Haas v. Gaviser,  348 N.W.2d 406, 407 (Minn. App. 1984) (quotation omitted); but cf. Swanson v. Chatterton, 281 Minn. 129, 140, 160 N.W.2d 662, 669 (1968) (upholding the exclusion of the testimony of plaintiff’s expert witness, an internist, as to the standard of care required of an orthopedist in treating a fracture, not because the witness was an internist, but because he lacked experience and expertise in treating fractures).   

            During his deposition, Dr. Lebow detailed his credentials.  He obtained his medical degree from the University of Minnesota in 1973 and then completed an internal-medicine internship and a residency in neurology.  He has practiced at the Noran Neurological Clinic since 1977.  Dr. Lebow’s curriculum vitae indicates that he is board certified in neurology.  Neurology is the primary focus of his research and lectures.  Dr. Lebow explained that a neurologist “take[s] care of patients [who] have diseases or injuries that involve the brain, the spinal cord, the peripheral nerves[,] and the neuromuscular system that supports those things.”  The peripheral nervous system and the neuromuscular support system are presumably relevant to pain associated with appellant’s knee injury. 

            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.[1] 

            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.[2]

            B.  Prejudice

            The 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 (Minn. 1997) (quotation omitted).  “[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).  The complaining party bears the burden to establish prejudicial error.  Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 465 (1944). 

            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.



[1] 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 Minn. R. Civ. P. 32.04(c)(2).  On this record, we do not suggest that either party used such a strategy.  Further, we note that neither party, whether in posttrial proceedings or on appeal, addresses the question of who has primary responsibility for clarity in these matters and we do not reach that aspect of the issue.

[2] 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.