may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Western National Mutual Insurance,
Filed May 20, 1997
Toussaint, Chief Judge
Douglas County District Court
File No. C295704
Michael J. Dolan, Thornton, Hegg, Reif, Johnston & Dolan, P.A., 1017 Broadway, Post Office Box 819, Alexandria, MN 56308 (for appellant)
Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.
Western National appeals from the denial of its post trial motions for a new trial or remittitur, arguing the damages were not supported by the evidence and the trial court erred in admitting into evidence references to an independent medical examination (IME). Western National also appeals from a jury verdict in favor of respondent Kristi Wussow, arguing the trial court erred in admitting the references to the IME. Because the trial court did not (1) abuse its discretion in denying Western National's post trial motions or (2) err in allowing the references to the IME, we affirm.
Wussow was injured in a hit-and-run accident by an unidentified driver. She had automobile insurance with Western National. Western National denied coverage, and Wussow commenced an action for uninsured benefits. After a trial, the jury awarded Wussow $110,000. Wussow introduced evidence to show the nature and extent of her injuries, how the accident changed her lifestyle, and her present and future medical costs. The jury heard testimony from medical experts and saw actuarial tables for loss of income, medical expenses, and life expectancy. Based on the substantial evidence supporting the verdict, the trial court did not abuse its discretion in denying Western National's motion for a new trial.
The decision to grant remittitur is entirely within the sound discretion of the court. Hanson v. Chicago, Rock Island & Pac. R.R. Co., 345 N.W.2d 736, 739 (Minn. 1984).
The record shows that Wussow suffered from post-concussion syndrome with headaches, chronic cervical strain/sprain with occipital neurotic headaches, trapezius fibromyositis, and a chronic lumbar strain/sprain (with evidence of two bulging discs). The record also shows Wussow testified about her pain, the changes to her life, and her future medical costs. Based on this record, the trial court did not abuse its discretion in denying Western National's motion for remittitur.
During trial, Wussow proposed to introduce into evidence the results of an IME Western National ordered her to submit to. The trial court ruled that the underlying facts and conclusions of the IME were irrelevant and inadmissible. The trial court, however, allowed Wussow to testify that she, at Western National's request, submitted to an IME and that she then gave the test results to her treating neurologist, Dr. Steven S. Lebow. Dr. Lebow was allowed to testify that he was aware the IME took place and that he reviewed the IME report.
After deliberating for a short time, the jury asked the judge: "Are/is there medical records from Western National Mutual doctor * * * ?" The parties agreed on a curative instruction to the jury that told them the IME was not received into evidence and that they should not speculate about its contents.
Western National argues that the fact that an IME had been completed was irrelevant to any determination of disputed fact in the trial. Western National also argues that even if the references to the IME were relevant, the references were more prejudicial than probative.
The record shows that the trial court allowed Wussow to refer to the IME because it believed the existence of the IME was relevant to show that Wussow had cooperated fully with her insurance company and had gone through all the necessary procedural steps required to make her claim. In addition, Dr. Lebow's reference to the IME was allowed to show that Wussow did not merely ignore the results of the IME, but brought them to the attention of her treating neurologist to aid in her diagnosis and treatment.
The trial court's reasoning for admitting the references to the IME is compelling. An element of making an insurance claim is whether the insured complied with all the insurance company's requirements, and the IME testimony shows Wussow's compliance with Western National's request.
As for prejudice, the record shows that the content of the IME was not revealed to the jury, and the jury never heard whether the IME was more or less favorable toward Wussow. Based on this record, the trial court did not abuse its discretion in denying Western National's request for a new trial based on the references to the IME.
[ ]1 Western National argues the trial court violated the expert witness rules of Minn. R. Evid. 702 and 703 when it allowed Dr. Lebow to testify about the IME. Rules 702 and 703 focus on the basis for an expert's opinion. Dr. Lebow's testimony on the IME did not bring it within these rules. The trial transcript reveals that Dr. Lebow only said he received the IME. The rest of his testimony indicates he did not rely on the IME in formulating his expert opinion.