This opinion will be unpublished and

may not be cited except as provided by

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






Jacob Merrill, by and through his next of friend

and natural legal guardian, Heather Kelly,





Stefan P. Guttormsson, MD,



Northland OB/GYN PA,



St. Luke’s Hospital of Duluth,



Filed August 7, 2007


Kalitowski, Judge


St. Louis County District Court

File No. 69-C8-02-601240


Richard E. Bosse, Law Offices of Richard E. Bosse Chartered, 303 Douglas Avenue, P.O. Box 315, Henning, MN 56551 (for appellant)


Charles B. Bateman, Tracy A. Schramm, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd., 332 West Superior Street, Suite 700, Duluth, MN 55802-1801 (for respondent Stefan P. Guttormsson)


David C. Hutchinson, Mark W. Hardy, Carolin Nearing, Geraghty, O’Loughlin & Kenney, P.A., 386 North Wabasha Street, Suite 1400, St. Paul, MN 55102 (for respondent St. Luke’s Hospital)


            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Jacob Merrill, by and through his mother Heather Kelly, challenges the district court’s decision to deny appellant’s motion to amend the complaint by adding new claims.  Appellant argues that the appropriate standard of review is de novo, or in the alternative, that the district court abused its discretion when it denied the motion on the grounds that (1) appellant failed to produce evidence supporting the proposed claim; (2) the amendment would lead to inflammatory and unfairly prejudicial evidence; and (3) the proposed claims would not withstand a motion for summary judgment.  We affirm.


            Heather Kelly gave birth to appellant Jacob Merrill on March 8, 1993.  During labor, Kelly experienced a period of distress during which appellant’s fetal heart rate dropped below 70 beats per minute for approximately 12 minutes.  Appellant has cerebral palsy and mental retardation, which appellant alleges result from the period during labor that appellant’s heart rate dropped below the normal range.  Appellant brought suit in March 2002 against the attending physician, respondent Guttormsson, and the hospital, respondent St. Luke’s Hospital, alleging medical negligence. 

            Twenty-three months later, after receiving a nurse’s employment record during the course of discovery that indicated the nurse was chemically dependent, appellant sought to amend the complaint to add claims of negligent hiring, negligent supervision, and negligent retention of the nurse.  After a hearing, the district court denied the motion.

            The medical negligence claim proceeded to trial and the jury returned a special verdict for respondents, finding no negligence.  Appellant made no posttrial motions, but brought a seven-issue appeal to this court.  A special-term panel dismissed five of the claims as improperly raised in the absence of a motion for a new trial.  The panel deferred the decision as to whether this court has proper jurisdiction over a sixth issue, but appellant did not brief the issue and it is deemed waived.  Melina v. Chapman, 327 N.W.2d 19, 20 (Minn. 1982).  Thus, the only issue on this appeal is whether the district court erred in denying appellant’s motion to amend the complaint.                 

            A district court has broad discretion when deciding whether to grant leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A party may amend its complaint after a responsive pleading has been filed if the party obtains leave of court.  Minn. R. Civ. P. 15.01.  Although leave to amend shall be “freely given when justice so requires,” id., it should not be given if the amendment would prejudice the adverse party.  Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004).  But “the liberality to be shown in the allowance of amendments to pleadings depends in part upon the stage of the action and in a great measure upon the facts and circumstances of the particular case.”  Bebo v. Delander, 632 N.W.2d 732, 741 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).

            If a party attempts to amend the complaint after significant discovery has occurred, the district court may consider whether the amendment states a claim on which relief may be granted and whether sufficient evidence exists to support the amendment.  Pischke v. Kellen, 384 N.W.2d 201, 204 (Minn. App. 1986).  If the movant fails to produce evidence that supports the proposed claim, Bib Audio-Video Prods. v. Herold Mktg. Assocs., 517 N.W.2d 68, 73 (Minn. App. 1994), or if the proposed claim could not survive summary judgment, Bebo, 632 N.W.2d at 740, leave to amend is properly denied.

            Because the district court here considered whether sufficient evidence existed to support the proposed claims, appellant claims that the district court effectively granted summary judgment on the claims in favor of respondents and therefore the proper standard of review is de novo.  We disagree because Minnesota caselaw prescribes an abuse-of-discretion standard of review in cases such as this.  See Stead-Bowers v. Langley, 636 N.W.2d 334, 342 (Minn. App. 2001) (reviewing under an abuse-of-discretion standard to affirm refusal to permit amendment where party had failed to provide evidence establishing cause), review denied (Minn. Feb. 19, 2002); Bebo, 632 N.W.2d at 741 (reviewing under an abuse-of-discretion standard to determine that amendment “would have prejudiced respondent because additional discovery would have been necessary”); Piscke, 384 N.W.2d at 204 (reviewing under an abuse-of-discretion standard to determine that “amendment would not serve a legal purpose because appellant has failed to establish evidence to support the allegation he seeks to amend”).    

            Appellant also argues that the district court abused its discretion by refusing to allow amendment of the complaint based on the court’s determination that appellant failed to present evidence supporting the claim.  Specifically, the district court based its refusal on the lack of any evidence that the nurse was under the influence of drugs or alcohol on March 8, 1993.  Appellant admits that he has no evidence that the nurse was under the influence of drugs or alcohol during appellant’s mother’s labor and delivery, but argues that discovery was curtailed.  But appellant did not raise this issue below and generally, we do not consider issues raised for the first time on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Accordingly, we consider only the evidence and arguments that appellant presented to the district court.

            Without evidence indicating that the nurse was intoxicated on March 8, 1993, the district court concluded that appellant had not provided evidence establishing a causal link between the hospital’s allegedly negligent hiring, retention, or supervision and appellant’s injuries.  The court further concluded that general evidence of the nurse’s drug use would be inflammatory, irrelevant, and inadmissible.  Finally the court determined that even if it allowed the amendment, the claim would be resolved immediately by a grant of summary judgment in favor of respondents. 

            We have upheld district court decisions denying a motion to amend where an appellant failed to make a showing of causation.  In Stead-Bowers, the plaintiff moved the court to amend a complaint to add a claim of defamation.  636 N.W.2d at 338.  In affirming the district court, we upheld the district court’s decision that the plaintiff-appellant “d[id] not present any evidence showing how the statements harmed her reputation.”  Id. at 342.  We relied in part on the plaintiff-appellant’s failure to produce evidence of causation in affirming the denial of her motion to amend.  Id. at 342.  Here, the district court correctly noted that all of the proposed claims are negligence claims that require a showing of causation in order to succeed.  Because appellant has failed to provide evidence showing causation, we conclude that the district court did not abuse its discretion by denying the motion to amend on this basis.

            Appellant also argues that the district court abused its discretion by deciding that the evidence regarding the nurse’s general use of drugs and alcohol would be inadmissible as inflammatory and substantially more prejudicial than probative.  “The admission of 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.”  Kronig v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45 (Minn. 1997) (quotation omitted).  Relevant evidence is admissible under Minn. R. Evid. 402, but rule 403 permits the exclusion of relevant 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. 

            Here, the evidence that appellant sought to admit may be relevant, but the district court determined that the prejudice of showing that the nurse was generally using drugs or alcohol during the time period that appellant was born substantially outweighed its probative value.  Absent any evidence that the nurse was under the influence of drugs while providing care to appellant’s mother, evidence regarding the nurse’s general drug use is of limited probative value.  On this record we cannot conclude that the district court abused its discretion by determining that the evidence was inadmissible.

            Appellant further argues that the district court abused its discretion by denying his motion to amend based on the district court’s determination that the requested claims would not withstand a summary judgment motion.  Appellant asserts that “[w]ithout providing the Plaintiffs with notice and opportunity to develop their evidence, the Court has arbitrarily precluded the Plaintiffs’ cause of action without a hearing.”  We disagree.  The district court did not make a summary judgment determination.  Rather, the court properly determined that a claim that will not withstand summary judgment is properly precluded from a post-response, post-discovery complaint amendment, see Piscke, 384 N.W.2d at 204.  We conclude that the district court did not abuse its discretion by denying appellant’s motion to amend.