This opinion will be unpublished and

may not be cited except as provided by

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




John Schwalbe and Daniel Schwalbe, as trustees for

the heirs of Betty Ann Schwalbe, deceased; et al.,



Berscheid Lumber & Supply,


Filed April 22, 1997


Schumacher, Judge

Stearns County District Court

File No. C0951545

James P. Larkin, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for Appellants)

John D. Quinlivan, Dyan J. Ebert, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 400 South First Street, Suite 600, Post Office Box 1008, St. Cloud, MN 56302 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



Appellants John Schwalbe and Daniel Schwalbe, as trustees for the heirs of Betty Ann Schwalbe, deceased, and Yvonne and William Prince, individually, challenge the trial court's directed verdict on their negligent maintenance claim, its exclusion of expert witness testimony on damages, and its denial of their motion for additur and amended findings or in the alternative a new trial. Because we find no probative evidence supporting the causation element of the negligent maintenance claim, no abuse of discretion in the exclusion of the expert witness testimony, and no basis for overturning the jury's findings, we affirm.


On August 31, 1993, a flatbed truck owned and driven by an employee of respondent Berscheid Lumber & Supply crossed into the lane for oncoming traffic and collided with a pickup truck, killing the driver, Betty Ann Schwalbe, and injuring the passenger, Betty Schwalbe's sister, Yvonne Prince. The record indicates Betty Schwalbe was then 23 years old, was engaged to be married, was living independently, and was working a full-time and a part-time job. The seventh of eight children, she visited her parents' home where she helped them and her two brothers, who were living at home.

The trustees, along with Yvonne Prince and her husband William Prince, brought this action against Berscheid, alleging negligence of the driver and negligent maintenance of the truck. Because Berscheid conceded the driver's negligence, the only issues remaining for trial were the negligent maintenance of the truck and damages.

The trial court granted Berscheid's motion for a directed verdict on the negligent maintenance claim. The court also granted Berscheid's motion to exclude the testimony of Dr. Jean Kinsey and Dr. Pauline Boss, experts on family structure and the financial worth of a sibling's or child's contribution to the family. The court concluded that because the jurors were capable of understanding the evidence offered by members of the decedent's family, expert witness testimony would not assist them in answering the special verdict questions on damages.

The trial court adopted the jurors' special verdict findings that Yvonne Prince's past damages were $20,397, that her future damages were $45,000, and that William Prince's damages were $0; these findings are unchallenged. The jury also found that John and Daniel Schwalbe's direct monetary loss resulting from the death of Betty Schwalbe was $100,000 and that John and Daniel Schwalbe's indirect monetary loss of Betty Schwalbe's advice, aid, assistance, comfort, guidance, counsel, society, and companionship was $0.

The Schwalbes and Princes challenge the directed verdict on negligent maintenance of the truck, the exclusion of expert witness testimony on the damages suffered by Betty Schwalbe's family, and the denial of their motions for either an additur of $150,000 accompanied by an amended finding or a new trial.


1. The Directed Verdict.

Where the trial court grants a motion for a directed verdict, a reviewing court reviews the evidence and its inferences to determine whether the evidence could reasonably sustain a contrary verdict. Northwestern State Bank of Luverne v. Gangestad, 289 N.W.2d 449, 453 (Minn. 1979).

A review of the record evinces no facts that would establish a causal connection between the accident and respondent's alleged violation of Minn. Stat. § 221.0314, subd. 10 (1996), requiring that vehicles be lubricated, inspected, and driven only if not in a condition likely to cause an accident or breakdown. The truck was inspected immediately after the accident by Al Reese, a commercial vehicle inspector for the Minnesota Department of Transportation. Reese was requested to come to the scene of the accident by David Nohner, the investigating officer of the Stearns County Sheriff's department. Reese's inspection report, submitted as an exhibit, stated "No defects found." Nohner testified that "No defects" did not refer to a particular type of defect and that Reese would normally have listed any defects if any had been found. Nohner also testified that "those guys [commercial vehicle inspectors] are very well versed in what they are doing in truck inspections * * *" and that Reese had inspected the truck from underneath.

The Schwalbes and Princes argue that negligent maintenance of the truck resulted in a leak that caused the truck to pull to the left and prevented the driver from being able to get back into his own lane. The only evidence of this leak came from the testimony of a mechanic who inspected the truck three weeks after the accident. He testified that he could not say when the leak started and that, if the leak he observed had existed at the time of the accident, it would have been visible to anyone inspecting the truck from underneath.

It was not error for the trial court to conclude that there was no evidence from which the jury could find that the truck was in a condition likely to cause an accident or breakdown in violation of Minn. Stat. § 221.0314.

2. The Exclusion of the Expert Witnesses' Testimony.

Minn. R. Evid. 702 provides that:

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 trial court has broad discretion in admitting or excluding evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Entitlement to a new trial rests upon the complaining party's ability to demonstrate prejudicial error. Id.

The trial court excluded the testimony of expert witness Dr. Kinsey as to the direct monetary loss suffered by members of Betty Schwalbe's family and of expert witness Dr. Boss as to the family's indirect monetary loss of her society, comfort, companionship, and guidance. The jury found direct monetary loss of $100,000 and no indirect monetary loss. The Schwalbes and Princes do not challenge the first finding, but argue that the second shows they were prejudiced by the exclusion of the expert witnesses' testimony because the jury did not know how to assess monetary damages for the loss of a family member's advice, aid, assistance, comfort, guidance, counsel, society, and companionship.

The trial court reasoned that the jurors' knowledge and experience would enable them to understand the testimony of Betty Schwalbe's family members on the effects of her death and to calculate damages.

[W]here the subject matter [of evidence] is of such a nature that it ordinarily would lie within the knowledge or experience of people of common intelligence, the opinion of experts should not be permitted as a substitute for the combined opinion of the jury. Any other rule would soon lead to trial by experts instead of by witnesses, and jury trials as we have known them would soon be a thing of the past.

Carmody v. Aho, 251 Minn. 19, 24, 86 N.W.2d 692, 696 (1957). Historically, the Minnesota Supreme Court has restricted expert testimony to those areas where ordinary members of the community are unlikely to prove capable of forming a correct judgment without assistance. See, e.g., State v. Borchardt, 478 N.W.2d 757, 761 (Minn. 1991) (excluding expert testimony on psychological traits of men sexually victimized by other men because defendant's testimony adequately explained his relationship with decedent and expert testimony would not have added significantly to jury's common sense evaluation); Hestad v. Pennsylvania Life Ins. Co., 295 Minn. 306, 311, 204 N.W.2d 433, 436 (1973) (medical expert may not testify as to manner of death if opinion is based on facts or assumptions equally available to jury and understandable by them); Murphy v. Hennen, 264 Minn. 457, 464, 119 N.W.2d 489, 493-94 (1963) (opinion of police officer as to point of impact not admissible when based on facts and assumptions equally available to jury and in field of knowledge and experience ordinarily possessed by persons of common intelligence); Carmody, 251 Minn. at 27-28, 86 N.W.2d at 697-98 (testimony of accident reconstruction expert properly excluded where laymen could equally well determine where head-on collision happened); Hahn v. Diamond Iron Works, 221 Minn. 33, 36, 20 N.W.2d 704, 706 (1945) (court had discretion to hold that jury was as competent as experts to determine lighting conditions and construction of steps and whether there should have been a warning sign); Moehlenbrock v. Parke, Davis & Co., 145 Minn. 100, 103, 176 N.W. 169, 170 (1920) (expert testimony not essential to recovery for malpractice where common knowledge warranted jury's inference that desisting from use of ether at first sign of danger could have saved patient's life); Morris v. Farmers' Mut. Ins. Co., 63 Minn. 420, 423, 65 N.W. 655, 657 (1896) (opinions of experts on subject of such common knowledge as dangers of using steam power when threshing grain were inadmissible).

Similarly, this court has upheld the exclusion of expert testimony on a matter where testimony of actual witnesses was available. Covey v. Detroit Lakes Printing Co., 490 N.W. 2d 138, 143 (Minn. App. 1992) (upholding exclusion of expert testimony on whether readers could reasonably understand newspaper article where numerous witnesses had testified about their understanding of article). Here, members of Betty Schwalbe's family were available to testify as to their loss and did testify.

The Schwalbes and Princes cite Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961), holding that jury should be instructed that survivors should be compensated for loss of advice, comfort, assistance, and protection which they might reasonably have expected from decedent. Id. at 359, 113 N.W.2d at 363. Here, in accord with Fussner, the jury was instructed on the issue of monetary compensation for noneconomic loss and was asked to consider the issue specifically on the special verdict. Although Fussner does not hold that juries are incapable of assigning a monetary value to an intangible loss without the assistance of expert witnesses, it clearly acknowledges the difficulty of this task. Id. at 359, 113 N.W.2d at 362-63.

The case before us presents a very close question because we feel from our perspective that it would be advisable for the trial court to permit the testimony of the experts and let the jury determine the weight to be given to their testimony. Given our standard of review of evidentiary matters, however, we cannot say absolutely that there was an abuse of the trial court's broad discretion. Uselman, 464 N.W.2d at 138.

3. Damages.

The Schwalbes and Princes sought either an amended finding supporting an additur of $150,000 for damages from the loss of Betty Schwalbe's advice, aid, assistance, comfort, guidance, counsel, society, and companionship, or a new trial on the ground that the finding of no damages was not supported by the evidence. Granting either motion would mean setting aside the jury's special verdict findings.

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citations omitted), review denied (Minn. Feb. 12, 1993).

The jury was appropriately instructed with JIG 180 that in assessing pecuniary damages it could not include any amounts for punishing Berscheid for grief caused to family members or for their emotional distress. The jury was asked on the special verdict form to determine both the pecuniary damage from direct monetary loss caused by Betty Schwalbe's death and the pecuniary damage from indirect or nonmonetary loss, i.e., loss of her advice, aid, assistance, comfort, guidance, counsel, society, and companionship. These intangibles had no inherent pecuniary value. The jury's finding that there was no indirect pecuniary damage was not palpably contrary to the evidence.