This opinion will be unpublished and

may not be cited except as provided by

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




Marianne McClevey,



Dr. Peter E. Fehr, et al.,


Filed August 12, 1997


Peterson, Judge

Ramsey County District Court

File No. C193391

John O. Murrin, III, Murrin Law Firm, 4018 West 65th Street, Edina, MN 55435 (for appellant)

William M. Hart, J. Richard Bland, Christopher J. Schulte, Meagher & Greer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents)

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



In this medical malpractice action, Marianne McClevey argues that she is entitled to a new trial because the trial court committed prejudicial error in admitting evidence about her social security records. We affirm.


Appellant Marianne McClevey had a caesarean section operation on October 10, 1990, and respondent Dr. Peter E. Fehr provided postoperative care for her. McClevey presented evidence that in mid-November, she called Dr. Fehr's office on at least two occasions and complained about significant pain, said she had had a green discharge, and requested penicillin. She had an appointment with Dr. Fehr on November 19, 1990. Two days later, she suffered hemorrhagic shock and other complications.

An expert witness, Dr. Berkowitz, testified that in his opinion, Dr. Fehr violated the medical community's standard of care by failing to ask appropriate questions to elicit information about McClevey's symptoms for purposes of diagnosis and by failing to take McClevey's temperature, failing to perform a pelvic examination, and failing to conduct any radiological testing during her appointment on November 19. Dr. Berkowitz believed that McClevey's symptoms during the previous few days and a high white blood cell count earlier in November indicated a possible infection and that an appropriate diagnosis on November 19 would have prevented the complications that occurred two days later.

Dr. Miller, McClevey's treating physician in 1993, testified that by February 1993, no medical restrictions needed to be placed on McClevey. He specifically testified that he did not place any restrictions on McClevey forbidding her from working. McClevey filed a claim for social security disability benefits in August 1993, and a social security Reconsideration Disability Report completed in December 1993 stated that Dr. Miller had advised McClevey against performing any work other than basic, necessary activities like dressing and bathing.

During cross-examination at trial, McClevey admitted that Dr. Miller had placed no restrictions on her between August and December 1993, but the social security application stated that Dr. Miller had advised her against any work other than basic, necessary activities. McClevey admitted signing the social security application, but claimed that the information about the restrictions placed on her by Dr. Miller was not filled in until sometime later. McClevey pointed out that the information about the restrictions was written in someone else's handwriting and speculated that a social security administration employee, who could have misinterpreted something McClevey said, must have filled in the information.

McClevey was also cross-examined at trial about information on the social security application regarding her marriage to Robert McClevey. The application stated that McClevey and Robert McClevey were married on December 9, 1984, and divorced in 1986. McClevey testified at trial that she and Robert McClevey said vows to each other, but they were never legally married.


The trial court has discretion to decide whether to grant a new trial, and its decision will not be reversed absent a clear abuse of discretion. Nimis v. St. Paul Turners, 521 N.W.2d 54, 57 (Minn. App. 1994). The decision whether to admit or exclude evidence

rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

McClevey argues that the trial court erred in refusing to limit cross-examination of her by defense counsel about information on her social security application. McClevey argues that evidence about her application was inadmissible under federal authority prohibiting the disclosure of information in possession of the Social Security Administration and the Department of Health and Human Services. We disagree.

42 U.S.C. § 1306(a)(1) prohibits the disclosure by an employee of the Social Security Administration or the Department of Human Services of information obtained by an employee of either agency in performing the employee's job responsibilities. 20 C.F.R. 401.340(a) provides:

The Privacy Act allows us to disclose information when we receive an order from a court of competent jurisdiction. However, much of our information is especially sensitive. Participation in social security programs is mandatory, and so people cannot limit what information is given to SSA. When information is used in a court proceeding, it usually becomes part of a public record, and its confidentiality cannot be protected. Therefore, we treat subpoenas or other court orders for information under the rules in paragraph (b) of this section.

We generally disclose information in response to a subpoena or other court order if

(1) Another section of this part would specifically allow the release; or

(2) The Secretary of HHS is a party to the proceeding; or

(3) The information is necessary for due process in a criminal proceeding.

In other cases, we try to satisfy the needs of courts while preserving the confidentiality of information.

42 U.S.C. § 1306(a)(1) and 20 C.F.R. 401.340(a) expressly apply only to the disclosure of information by Social Security Administration and Department of Health and Human Services employees and do not control the use of information following disclosure. McClevey admits that she signed a release authorizing disclosure of her social security records to respondents for discovery purposes. McClevey makes no claim that a Social Security Administration or Department of Human Services employee acted improperly in disclosing the information to respondents.

McClevey contends that the admission of evidence at trial about her social security records violated the release she signed because she intended to limit the release of information to respondents to use for discovery and not for any other purpose. The release was not part of the record before the trial court. Respondents filed a motion in this court to supplement the record on appeal with the release. Generally, an appellate court cannot consider evidence that was not presented to the trial court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). But to sustain the judgment of the trial court, the appellate court may permit the record on appeal to be supplemented by documentary evidence of a conclusive nature. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).

Under Plowman, we grant respondent's motion to supplement the record on appeal with the release. The release authorized the Social Security Administration to release to respondents' attorney "a complete copy of the social security file and/or information from the social security records maintained regarding * * * Marianne McClevey" for the purpose of "litigation." The release expressly authorized disclosure of McClevey's social security records for the purpose of litigation, and a trial is part of litigation.

Given the release signed by McClevey authorizing the Social Security Administration to release her social security records to respondents for the purpose of litigation, the trial court acted in accordance with federal law in admitting evidence about the records. See Merchant's Nat'l Bank & Trust Co. of Fargo v. United States, 41 F.R.D. 266, 268 (D.N.D. 1966) (holding that the Secretary of Health, Education, and Welfare could not prohibit discovery of documents when the documents were discoverable under the federal rules of civil procedure and the social security applicant had not opposed discovery); see also Gilley v. Travelers Ins. Co., 298 F. Supp. 47 (E.D. Tenn. 1969) (rejecting argument that under 42 U.S.C. § 1306, psychiatrist, whom defendant was referred to by agent of Social Security Administration, was prohibited from testifying at trial on defendant's right to recover disability benefits under an insurance policy; court stated that 42 U.S.C. § 1306 should be strictly construed because it seeks to limit availability of evidence to court and noted that courts have held that such restrictions on disclosure have no application to disclosure made under legal process).

McClevey also argues that the evidence about her social security records was inadmissible under Minn. R. Evid. 608(b). McClevey has the burden of providing an adequate record for appellate review. Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968); see also Minn. R. Civ. App. P. 110.02 (appellant has the duty to order a transcript). The partial transcript provided by McClevey does not establish that she raised this ground of objection during trial. A claim of error may not be based on a ruling admitting evidence unless the record shows a timely objection "stating the specific ground of objection." Minn. R. Evid. 103(a)(1); see also Dix v. Harris Machinery Co., 240 Minn. 218, 228, 60 N.W.2d 628, 634 (1953) (appellate court will not consider ground for objection to admission of evidence that was not raised during trial). Furthermore, McClevey failed to raise the rule 608(b) issue in her new trial motion or the memorandum accompanying the motion, and the trial court did not address the issue in denying McClevey's motion for a new trial. McClevey, therefore, waived her right to raise this objection on appeal. See Tews v. Husqvarna, Inc., 390 N.W.2d 363, 366 (Minn. App. 1986) (on appeal from denial of a motion for a new trial, review is limited to grounds assigned as error in new trial motion).

Appellant has failed to establish that the trial court erred in denying a new trial.