may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Cindy Jane Snelson,
Stacie Marie Bauer,
Filed July 8, 1997
Nicollet County District Court
File No. C395100173
Nick A. Frentz, Frentz and Frentz, 115 East Hickory Street, P.O. Box 3484, Mankato, MN 56002 (for Appellant)
Michael S. Kreidler, Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.A., Suite 120, The Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.
The trial court jury determined that appellant's damages included $8,435 for future medical expenses. The trial court granted judgment notwithstanding the verdict and eliminated damages for future medical expenses. Appellant disputes the trial court's determinations that she failed to show the reasonable need for future medical expenses and that there was an insufficient basis for the jury to reasonably calculate those damages. We affirm.
Appellant sued respondent in a negligence action, claiming past and future pain and suffering and past and future medical expenses. In addition to its designation of future medical expenses, the jury found damages of $5629.42 for past medical expenses, $6,000 for past pain, and $2435 for future pain.
To recover future medical expenses, a plaintiff must prove that future medical treatments will be required and must furnish expert testimony on the cost for those services. Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990) (citing Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980)), review denied (Minn. Feb. 21, 1990). A plaintiff must prove the "reasonable certainty" of future medical expenses by a "fair preponderance of the evidence." Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987).
The record shows that (a) appellant incurred medical expenses of $5,629.42 through January 30, 1995, 16 months before the trial in June 1996; (b) the jury determined that appellant was reasonably certain to incur $2,435 in future damages for pain, disability, disfigurement, embarrassment, or emotional distress; (c) appellant's orthopedist testified that he thought "there may be some times in the future where [appellant] will require some out-patient physical therapy, if she has ongoing problems with pain and discomfort"; (d) the orthopedist also testified that someone with appellant's condition would "have a higher tendency to require further back care in the future"; (e) a back-care center physician indicated that appellant may experience exacerbations of her pain problem; (f) in the event of greater pain, the physician recommends that appellant follow measures outlined in her discharge instructions, and if those measures prove inadequate, she is advised to call the center.
The trial court determined that this evidence was insufficient to give the jury anything other than speculation as a basis for an award for future medical expenses. This view is consistent with the record. Although the evidence indicates that appellant likely will experience future pain problems, it only indicates that there may be times when she will require medical treatment. Cf. Dornberg v. St. Paul City Ry. Co., 253 Minn. 52, 57, 60, 91 N.W.2d 178, 183, 185 (1958) (allowing the issue of future medical expenses to go to the jury where expert testified that plaintiff "might" need future surgery, but expert added that plaintiff "would" require surgery and that sound medical opinion would recommend surgery as "necessary"); Mueller v. Sigmond, 486 N.W.2d 841, 844 (Minn. App. 1992) (affirming trial court's decision to allow future damages to go to the jury where expert doctor testified that it was "very likely" and "reasonably certain" that the plaintiff would need future arthroscopic surgery and "very possible" that plaintiff would need a future knee replacement), review denied (Minn. Aug. 27, 1992).
Appellant's orthopedist failed to offer any evidence to indicate whether future treatment is reasonably certain to be required. Similarly, the rehabilitation discharge report states only that appellant may experience some future problems and should then inquire about treatment services. Appellant failed to prove the reasonable certainty of future medical expenses by a fair preponderance of the evidence.
The trial court also concluded that there was an inadequate showing with respect to a basis for the jury to calculate future damages. See Lind, 450 N.W.2d at 358 (requiring that plaintiff prove both the necessity of future medical treatment and the amount of such damages by expert testimony). Appellant contends that future damages could have been determined by consideration of her past medical bills. In light of our determination that appellant failed to show adequately that future treatment would be reasonably certain, we decline to analyze this issue further.