This opinion will be unpublished and

may not be cited except as provided by

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






Catherine Sanford,





Duane F. Nelson, D. P.M., et al.,



Filed August 14, 2007


Kalitowski, Judge


Washington County District Court

File No. C6-03-6884


Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Loring Green East, 1201 Yale Place, Suite A100, Minneapolis, MN 55403 (for appellant)


Donald C. Mark, Jr., Shannon M. McDonough, Christopher A. Ugarte, Fafinski Mark & Johnson, P.A., 775 Prairie Center Drive, Suite 400, Eden Prairie, MN 55344 (for respondents)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Catherine Sanford challenges the district court’s denial of her motion for a new trial, arguing that the district court abused its discretion by excluding certain expert witness testimony, declining to allow appellant to call a rebuttal witness, allowing expert witness testimony by a psychiatrist, and excluding certain evidence.  We affirm.



            Respondent Duane F. Nelson, a podiatrist, performed surgery on appellant Catherine Sanford’s foot to remove a bunion.  Appellant later sought further treatment from both respondent Nelson and another doctor due to continued difficulties with the foot.  Appellant brought suit alleging medical negligence, medical malpractice, and negligent supervision, training, retention, and hiring.  A jury returned a special verdict finding no negligence.  The district court denied appellant’s motion for a new trial.


            Appellant failed to disclose her intention to call expert witness Dr. Vargas until one or two weeks before the scheduled trial date.  She argues that the district court abused its discretion by excluding the expert testimony.

            The district court has discretion in determining the appropriate sanction for untimely disclosure of expert witnesses.  Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977).  And broad discretion must be left to the district court to enforce calendar rules and deadlines.  Hous. & Redev. Auth. v. Kotlar, 352 N.W.2d 497, 499 (Minn. App. 1984).  However, “[t]he general rule in Minnesota is expert testimony should be suppressed for failure to make a timely disclosure of the expert’s identity only where counsel’s dereliction [in failing to make the disclosure] is inexcusable and results in disadvantage to his opponent.”  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quotation omitted) (alteration in original).  “In situations where the failure to disclose is inadvertent but harmful, the court should be quick to grant a continuance and assess costs against the party who has been at fault.”  Id. (quotation omitted).  “The crucial question is whether defendant has been prejudiced to any appreciable degree by the late disclosure.”  Id. 

            Here, the record indicates that appellant’s decision to add Dr. Vargas arose immediately after respondents attempted to preclude appellant’s only other expert, Dr. Ciegler, from testifying.  The district court denied respondents’ motion to exclude Dr. Ciegler.  Appellant admits that Dr. Vargas would testify to the same conclusions and opinions as Dr. Ciegler.  In excluding Dr. Vargas, the district court decided that the case would move forward as the parties had planned it, with appellant presenting the expert she had originally disclosed.  On this record, we cannot say the district court abused its discretion by precluding Dr. Vargas from testifying, because exclusion as a sanction is within the district court’s discretion and the exclusion of Dr. Vargas did not prejudice appellant’s case.

            Appellant further argues that because after the district court excluded Dr. Vargas the court granted a jointly-requested continuance regarding an unrelated topic, her request that Dr. Vargas testify was no longer untimely.  But the decision to allow a continuance was made after, and independent of, the ruling precluding Dr. Vargas’s testimony.  At the time the decision was made to exclude the testimony, the trial had not been continued and the motion was untimely.  On this record, we cannot conclude that the district court abused its discretion by declining to reconsider its decision to exclude Dr. Vargas.


            Appellant argues that the district court abused its discretion by excluding testimony of an expert rebuttal witness.  “Procedural and evidentiary rulings are within the district court’s discretion and are also reviewed under an abuse-of-discretion standard.”  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). 

            “Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.”  Riley Bros. Constr., Inc. v. Shuck, 704 N.W.2d 197, 204 (Minn. App. 2005) (citing Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997)).  “Before this court will order a new trial based on alleged evidentiary errors, appellant must demonstrate that the district court erred in its interpretation of law, or otherwise abused its discretion, and that the alleged error was prejudicial.”  Id. 

            Here, respondent’s expert Dr. Standa stated on cross-examination that no significant shortening of appellant’s toe resulted from the allegedly negligent surgery.  This statement was made after appellant spent significant time with Dr. Standa attempting to elicit testimony that he believed appellant’s toe was shorter after the surgery.  Appellant asked the witness at least three times if comparing ‘before’ and ‘after’ toe lengths using x-rays was something he normally did and three times the witness said, “No.”  Nonetheless, appellant eventually elicited testimony from the witness, using x-rays appellant described as not “the world’s best,” during which the witness stood up, arranged the x-rays, and discussed the comparisons.   

            Appellant did not object to the testimony at the time.  Instead, after the defense rested, appellant informed the district court that she intended to call a rebuttal witness, a radiologist, to testify that a shortening of appellant’s toe resulted from the allegedly negligently performed surgery.

            The district court rejected appellant’s request to supply a rebuttal witness, stating:

There’s been evidence in this case from the very beginning of medical issues, x-rays, all kinds of other medical documentation.  Obviously the parties knew x-rays were going to be an issue, they both have offered x-rays, Mr. Cooper came prepared with a light box for x-rays, various experts have testified as to those x-rays, and they have looked at them and interpreted them and answered questions about them to a great degree during the course of the trial.


Whether or not this jury has understood or been confused, or has learned a great deal from x-rays, I don’t know, and that’s not my issue.  But I am not going to allow further time for the Plaintiff to bring in an expert on x-rays at this point given where we are at in this trial, given the testimony that’s on record already and given Counsel’s questioning of the various experts from both sides about the x-rays.  So I’m denying that request to bring a radiologist in.


Thus, the district court appears to have decided that additional testimony regarding the x-rays would be cumulative, which is a valid basis to exclude relevant evidence under Minn. R. Evid. 403.  Appellant points to no specific reason or legal support for her proposition that the district court abused its discretion, instead arguing only that her proposed reason to offer rebuttal testimony is valid.  On this record, we cannot conclude that the district court’s decision was an abuse of its discretion. 


            Appellant argues that the district court abused its discretion by allowing testimony from respondents’ psychiatric expert witness on the bases that:  (1) appellant’s mental condition was not in controversy; (2) the testimony was highly prejudicial and not relevant; (3) the testimony lacked foundation; and (4) the testimony was not properly limited. 

            First, appellant argues that the testimony elicited from respondents’ expert witness was improper because her mental condition was not in controversy.  We disagree.  Rule 35.01 governs independent medical examinations:

In an action in which the physical or mental condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to . . . a physical [or] mental . . . examination by a suitably licensed or certified examiner.


Minn. R. Civ. P. 35.01.  In a pretrial order, the district court had already concluded that appellant had placed her mental and physical condition in controversy: 

Plaintiff has placed more than the condition of her foot in controversy in this action.  She is alleging physical damages involving not only the foot operated on, but as to both feet, her hips, and back.  She is alleging permanent disabilities with respect to walking and employment.  She is also alleging emotional damages involving sleeplessness, fatigue, humiliation, marital problems, stomach distress, nausea/vomiting, loss of appetite, stress, depression, etc.  There is no question that Plaintiff, by alleging these damages, has voluntarily placed both her physical and psychological condition in controversy.


            Appellant also challenges whether the district court abused its discretion by admitting testimony from the psychiatrist that was irrelevant and highly prejudicial.  “It has long been the law in this state that evidentiary rulings, including a decision to exclude the expert testimony, lie within the sound discretion of the trial court.”  Benson v. N. Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990).  The district court specifically found the evidence relevant, and appellant did not object at the time of the testimony to any of the testimony she now challenges.  On this record, we conclude that the district court did not abuse its discretion by admitting the testimony.

            Appellant further argues that the psychiatrist’s opinions lacked foundation because they were not supported by appellant’s treating physicians.  “The qualification of a witness to render expert testimony is a question to be determined by the trial court, whose ruling will not be reversed unless it is based on an erroneous view of the law or clearly not justified by the evidence.”  Hagen v. Swenson, 306 Minn. 527, 528, 236 N.W.2d 161, 162 (1975).  “Any person whose profession or vocation deals with the subject at hand may testify as an expert.  The value of his evidence is to be tested by cross-examination and ultimately weighed by the jury.”  Id. 

            We conclude that the district court did not abuse its discretion by admitting testimony from respondents’ expert psychiatric witness merely because appellant’s own witnesses did not agree with the expert’s opinion. 

            Finally, appellant argues that the district court abused its discretion by declining her request to limit or give limiting instructions on certain testimony.  But because appellant has not provided a record of the district court’s denial of her request for a limiting instruction and has not specified what testimony she believes should have been limited, we are unable to address this issue.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (stating that appellant bears the “burden to provide an adequate record” for review).


            Appellant argues that the district court abused its discretion by excluding testimony supporting its argument that respondent Nelson committed malpractice by performing the surgery because he allegedly lacked the requisite skills.  Appellant attempted to offer testimony of appellant’s expert regarding other former patients of respondent Nelson who sought corrective care from appellant’s expert following unsuccessful procedures. 

            But counter to appellant’s assertion, the mere fact Nelson performed the surgery cannot prove Nelson’s negligence; rather, appellant must prove that some negligent action of Nelson’s during the surgery caused appellant’s alleged injuries.  Thus, respondent Nelson’s history is not relevant to prove a breach of the standard of care, but instead may go to the element of causation.  And as proof of causation, the evidence offered is substantially more prejudicial than probative, if indeed it is at all probative.  Whether to admit or exclude evidence is within the district court’s discretion.  Kroning, 567 N.W.2d at 45-46; see also Minn. R. Evid. 403.  On this record, we conclude that the district court did not abuse its discretion. 

            Finally, because we affirm the district court’s denial of a new trial, we need not address the issues raised by respondents.