This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1514

Sheryl Adler,

Appellant,

vs.

Debra Harper,

Respondent.

Filed March 11, 1997

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. 95-1104

Kenneth W. Pearson, Hillstrom, Bale, Anderson, Polstein & Hill, Ltd., Suite 400, 607 Marquette Avenue, Minneapolis, MN 55402 (for Appellant)

Anne T. Johnson, Roger H. Gross, Gislason, Dosland, Hunter & Malecki, P.L.L.P., 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant challenges the trial court's denial of her motions for a new trial and judgment notwithstanding the verdict (JNOV), and a pretrial order applying collateral estoppel. Because the trial court did not abuse its discretion in denying appellant's motions for a new trial, because she was not entitled to JNOV, and because the remaining issue is moot, we affirm.

D E C I S I O N

Appellant Sheryl Adler sued respondent Debra Harper to recover damages for personal injuries sustained in an automobile accident. The jury found no permanent injury as a result of the accident and awarded minimal damages. Upon this failure to meet the threshold for tort claims, the trial court entered judgment for respondent. See Minn. Stat. § 65B.51, subd. 3 (1996).

1. Sufficiency of the Evidence

Appellant claims that the verdict was not justified by the evidence because uncontroverted, objective, medical evidence in the record established that she sustained permanent injury. Expert testimony may be submitted to assist the trier of fact in understanding the evidence or in determining a factual issue. See Minn. R. Evid. 702. Such testimony, however, is "not conclusive on the jury." Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 670 (Minn. 1983); see also Rud v. Flood, 385 N.W.2d 357, 360 (Minn. App. 1986) (jury not bound to accept expert's testimony). Indeed, a jury need not accept expert opinions unless they are

"so positive as to exclude all doubt as to the matter on which they are given and unless based on testimony which is positive, consistent, unimpeached, and uncontradicted."

Rud, 385 N.W.2d at 360 (quoting Krueger v. Knutson, 261 Minn. 144, 159, 111 N.W.2d 526, 536 (1961)).

In Barrera v. Muir, 553 N.W.2d 104, 107 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996), two medical experts testified that the claimant suffered from a permanent injury, but they disagreed on the diagnosis, prognosis, and degree of the impairment. On appeal, this court determined that the testimony was not "so positive as to exclude all doubt" and that the jury was free to disregard the experts' opinions in whole or part. Id. at 107-08.

Similarly, the expert opinions here were not "so positive as to exclude all doubt." While the medical experts testified that a muscle spasm could indicate a permanent injury, the testimony was not positive on the issue of causation. Furthermore, other evidence supported the jury's determination that appellant did not suffer permanent injury as a result of the accident. That evidence included: (1) appellant did not complain of injury at the scene of the accident; (2) she did not seek medical attention for several days; (3) she went to work on the day of the accident; (4) she did not miss any work; (5) she reported improvement in her condition within weeks of the accident; (6) she participated in many physical activities after the accident; (7) she went to a family physician within a year of the accident who indicated that her neck moved freely and did not note any pain, headaches, sleeplessness, or discomfort; and (8) she went to a neurologist who made no mention of any muscles spasms and found her neck supple. Thus, the jury's determination that appellant suffered no permanent injury was not so contrary to the evidence as to require a new trial. See Jacobs v. Rosemount Dodge-Winnebago South, 310 N.W.2d 71, 76 (Minn. 1981) (appellate court will not disturb jury's verdict unless "perverse and palpably contrary to the evidence").

2. Insufficient Damages

A new trial on damages will be ordered only where the verdict is so inadequate or excessive that it could only have been rendered out of passion or prejudice. See Minn. R. Civ. P. 59.01(e); Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn.1981).

Because the parties stipulated that appellant incurred over $18,000 in medical expenses, appellant contends the jury's failure to award that amount as damages requires a new trial. See Rud, 385 N.W.2d at 361 (damage award that is less than proven special damages may reflect passion and prejudice) (citing Heroff v. Metropolitan Transit Comm'n, 373 N.W.2d 355, 357 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985)). However, where a jury has determined by its answers to other special verdict questions that there is no liability, "'the denial of damages or granting of inadequate damages * * * does not necessarily show prejudice or render the verdict perverse.'" Id. (quoting Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973)). Because the jury found no permanent injury, we cannot conclude that the failure to award the full amount of damages for medical expenses shows prejudice.

Furthermore, a jury is not bound to award all medical expenses requested. See Hennen v. Huff, 388 N.W.2d 408, 411 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). The jury could have determined that some of the requested expenses were not directly related to injuries sustained as a result of the accident. We therefore affirm the trial court's refusal to grant a new trial.

3. Judgment Notwithstanding the Verdict

Appellant argues the trial court should have granted JNOV on the threshold issues of permanency and minimal damages. Unless the reviewing court is able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, a trial court's order denying JNOV should stand. See Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). As discussed above, the evidence does not conclusively establish that appellant suffered a permanent injury as result of the accident. Therefore, the trial court properly denied her motion for JNOV.

4. Collateral Estoppel

Appellant contends the trial court erred in determining that collateral estoppel bound the parties to a prior conciliation court ruling on the apportionment of negligence. Appellant's argument is moot, however, because appellant is not entitled to any damages as a result of this case. Therefore, this court need not address this issue.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.