This opinion will be unpublished and

may not be cited except as provided by

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




Carrolee Ann Moore,



Brian Jacobson,


Filed June 24, 1997


Amundson, Judge

Goodhue County District Court

File No. C995525

Rolv Slungaard, Doar, Drill & Skow, S.C., Office Park, P.O. Box 546, Baldwin, WI 54002 (for Appellant)

A. James Dickinson, Stringer & Rohleder, Ltd. 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.



In this negligence action, appellant Carrolee Moore argues that because the damage award was unsupported by the evidence, the district court erred in denying her motion for judgment notwithstanding the verdict or a new trial. We affirm.


In December 1992, the car appellant Carrolee Moore was driving was rear-ended by a car driven by respondent Brian Jacobson. Moore sued Jacobson for negligence.

Moore testified at trial that she injured her right shoulder in the accident and that as a result, she suffered severe pain and limited motion in her shoulder. This prevented her from doing many everyday tasks and participating in many of her former activities. Moore testified that the injury had forced her to leave school and to quit several jobs. Fortunately for Moore, her disability was not complete. She testified that she had continued to play basketball and to participate in karate after the accident. Her infirmities did not impair her aggression, as she had been in three fist fights between the accident and the trial. She recalled having broken her thumb and two knuckles in one of these fights, and that one of her opponents had fallen to the ground after she punched him with her right hand. Moore further testified that she had been in another minor automobile accident and a snowmobile accident since her collision with Jacobson.

Two doctors who treated Moore testified that the accident had bruised or torn muscles in her right shoulder. Scar tissue had formed in those muscles which caused Moore pain and limited her shoulder mobility. One doctor said Moore would suffer occasional muscle inflammations in the future that would require treatment; the other said Moore might suffer future inflammations that might require treatment. The doctors estimated that the cost of any future inflammation treatment would be about $1,000 per year.

But both doctors testified that they were unaware of Moore's involvement in fist fights and karate. One doctor also said Moore had exhibited a full range of shoulder motion during an examination. Several diagnostic tests performed on Moore's shoulder failed to reveal continued injury. The doctors advised that any future inflammations could be treated by heat, ice, and exercises that Moore could do at home; Moore's physical therapist agreed. Moore's medical records showed that she saw a doctor because of shoulder pain in early January 1993, but did not visit a doctor again for shoulder treatment until early June 1993. Most importantly, Moore's treating physician testified that he had not advised her to avoid any particular job or recreation.

This case is rife with conflicting evidence. Moore's occupational expert testified that the accident had cost Moore nearly $60,000 in lost wages and $13,520 per year in future earning capacity. But the expert agreed that his opinion was based on his belief that Moore's doctors had restricted her from lifting more than ten pounds. The expert also said he had not learned of Moore's nearly failing grade-point average in technical school until the day of trial and that Moore had told him that she had a B average. Other evidence at trial showed Moore earned minimum wage before the accident, but shortly after the incident obtained and retained a job paying over seven dollars per hour. Moore took and passed a pre-employment physical for the post-accident job, which involved working with another person to lift table top sections at a furniture factory. Moore's employment records also showed she had been discharged from the jobs she had held after the accident for reasons such as failure to provide medical documentation of an ankle injury, walking off the job, poor performance, and tardiness. Moore's technical school guidance counselor testified that Moore said she was leaving school because she had lost interest in a child care career and that she had never mentioned an accident.

The district court directed a verdict for Moore on the issue of Jacobson's negligence. The jury determined that Moore's negligence was not a direct cause of the accident. The jury awarded Moore $670.67 for past medical expenses; $946.96 for past pain, suffering, and disability; and zero damages for future medical expenses, future pain and suffering, past lost earnings, and future lost earning capacity. The district court partially granted Moore's motion for judgment notwithstanding the verdict (JNOV) and awarded her an additional $9,548.77 in damages for past medical expenses. The district court denied the remainder of Moore's motion for JNOV and her motion for a new trial.


I. Verdict Contrary to the Evidence

The granting of JNOV is a question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979). JNOV is appropriate only if there is no competent evidence reasonably tending to support the verdict. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). This court must view the evidence in the light most favorable to the verdict. Id.

Moore argues that the district court erred in denying her motion for JNOV or a new trial because her experts' testimony regarding her damages was uncontroverted and there was no competent evidence to support the verdict. See Peterson v. Truelson, 249 Minn. 530, 536, 83 N.W.2d 236, 240 (1957) (jury may not disregard all positive, unimpeached evidence and draw inference contrary to that evidence based solely on conjecture). We disagree.

Moore sought an additional $2,000 in past medical expenses to compensate her for travel expenses related to receiving that treatment. Past medical expenses, however, are defined as "the reasonable value of medical supplies and hospital and medical services of every kind, necessary for treatment." 4 Minnesota Practice, CIVJIG 156 (1986). This definition does not include travel expenses. In any event, Moore introduced no evidence establishing her travel expenses, other than Moore's mother's testimony regarding the distance between Moore's home and her medical providers. Absent any evidence supporting Moore's claim for travel expenses, the district court properly denied her motion for JNOV or a new trial on this issue.

The district court also properly denied Moore's motion for JNOV or a new trial on the issue of her past pain and suffering. It is the factfinder's role to make credibility determinations. Benson v. Rostad, 384 N.W.2d 190, 195 (Minn. App. 1986). Although Moore testified that her shoulder was very painful, other evidence showed she did not return for medical treatment for her shoulder until nearly six months after the accident and had a full range of shoulder motion at one examination. Cf. Chacos v. State Farm Mut. Auto. Ins. Co, 368 N.W.2d 343, 347-48 (Minn. App. 1985) (plaintiff's failure to seek medical treatment after accident raised inference that he was able to work, which was sufficient to deny JNOV for plaintiff), review denied (Minn. Aug. 19, 1985). Other evidence showed that after the accident, Moore continued to play basketball, worked at a job that required lifting, participated in three fist fights, and was in two other accidents. Viewed in the light most favorable to the verdict, this evidence supports the jury's conclusion that Moore's shoulder was not as painful as she testified or that her pain was caused by something other than the accident.

Moore's expert's testimony on the issues of future medical expenses and future pain and suffering was impeached by evidence showing they were unaware of her participation in karate and fisticuffs after the accident. Moore's experts also agreed that her shoulder would occasionally be unremarkably and only episodically inflamed. Both treating doctors, as well as the Mayo Clinic and Moore's physical therapist, recommended that Moore use at-home remedies to treat any future inflammations, which would cost her nothing. From this evidence, the jury could have inferred that any future shoulder inflammations would be minor and would not require outside medical treatment. Also, based on the evidence regarding Moore's activities after the accident, the jury could have concluded that her injury was not as severe as she claimed or that her pain was caused by something other than the accident. Viewing the evidence in the light most favorable to the verdict, we cannot say that the damage award for future medical expenses and pain and suffering was unsupported by the evidence.

Regarding the issue of lost past and future earnings, Jacobson impeached Moore's expert's testimony by showing that the expert was unaware of Moore's poor grade-point average until trial and, further, his opinion was erroneously based on the belief that Moore's doctor had placed her under a lifting restriction. Other evidence showed Moore was earning more after the accident than before and that she lost employment for reasons other than her shoulder injury. This evidence supported the jury's decision that the accident did not cause Moore to lose any past or future earnings. The district court properly denied Moore's motion for JNOV or a new trial on this issue.

II. Partial Award of JNOV

Moore next argues that the district court's partial grant of JNOV shows the other damage awards were improper. Cf. Kloos v. Soo Line R.R., 286 Minn. 172, 178, 176 N.W.2d 274, 278 (1970) (when district court determined that jury acted improperly in awarding one plaintiff damages, it logically followed that other plaintiff's award should be reconsidered). But the evidence here supported the jury's verdict on the issues other than Moore's past medical expenses. Accordingly, the district court did not err in denying Moore's motion for JNOV with regard to those issues.

III. Passion or Prejudice

The decision whether to grant a new trial ordinarily rests within the district court's discretion. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). A denial of motion for a new trial must stand "unless it is manifestly and palpably contrary to the evidence, viewed in the light most favorable to the verdict." ZumBerge, 481 N.W.2d at 110.

Moore claims she is entitled to a new trial because the damage award here was so inadequate that it must have been the product of passion or prejudice. The district court, of course, is in the best position to determine whether passion and prejudice influenced the jury. LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977). Here, it determined that passion and prejudice did not influence the jury, and Moore's failure to point to any evidence of passion or prejudice supports the court's decision. See Peters v. Independent Sch. Dist. No. 657, Morristown, 477 N.W.2d 757, 760 (Minn. App. 1991) (plaintiff's failure to identify any evidence of passion or prejudice supported district court's decision that new trial on this ground was unnecessary).

IV. Additur

Moore finally argues that the district court should have granted additur as an alternative to a new trial. The decision whether to grant additur rests almost entirely within the district court's discretion. Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric, 495 N.W.2d 208, 216 (Minn. App. 1993), review denied, (Minn. Mar. 22, 1993). A district court may not grant additur unless the verdict is unreasonable. Id. When the jury is presented with conflicting evidence concerning the severity of the plaintiff's injuries, its findings regarding the damage award are not unreasonable. Id. Here, although Jacobson called no experts at trial, evidence about Moore's injuries was conflicted when her own testimony and that of her experts was thoroughly impeached. The jury's verdict was not unreasonable and the district court did not abuse its discretion in failing to grant additur.