This opinion will be unpublished and

may not be cited except as provided by

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




Joseph Gross,



Victoria Station Farms, Inc.,


Filed August 19, 1997


Foley, Judge


Dissenting, Short, Judge

Washington County District Court

File No. C1-95-3117

John F. Stockman, Benjamin H. Frisch, Jensen & Stockman, 1301 East 79th Street, Suite 108, Bloomington, MN 55425 (for appellant)

Katherine C. Bloomquist, 4100 Peavey Road, Suite 180, Chaska, MN 55318 (for respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.


FOLEY, Judge

Appellant Joseph Gross brought this action against respondent Victoria Station Farms, Inc. for damages resulting from injury to his horse. Because the district court erred in finding appellant's expert unqualified to express an opinion on causation and in granting summary judgment to respondent, we reverse and remand for trial.


On November 24, 1993, appellant's thoroughbred stallion escaped from its paddock while being boarded at respondent's stables. During an attempt to capture the horse, one of respondent's employees roped the horse from behind, pulling it off its feet. It is undisputed that the horse sustained a cut on its left rear leg that required stitches.

Appellant claims the horse also sustained a "splint injury" to its front right leg during the incident. Appellant contends that because a splint injury is a closed injury, it was not readily apparent after the incident. He asserts that this injury manifested itself later and caused permanent injury to the horse. He alleges that the horse was lame from the time of the incident until January 1994, when he moved the horse to a new facility. He contends that the horse continues to have lameness problems and that its value has depreciated.

Respondent's expert, Dr. Tracy Turner, a veterinarian, examined the horse in July 1996 and found lameness. That veterinarian stated, however, that the lameness was because of foot pain, not a splint injury. The veterinarian concluded that the horse's lameness was not related to the November 1993 incident, but was consistent with the horse's prior lameness problems.[1] Two other affidavits from veterinarians also stated that "a splint injury does not permanently inhibit a horse's ability to compete upon recovery from such an injury."

Appellant brought this action for breach of contract, conversion, and negligence. Respondent moved for summary judgment. The district court granted appellant the opportunity to present additional information as to the need for an expert opinion at that time.

Appellant submitted a memorandum and provided an affidavit from Dr. Debra K. Bennett. Dr. Bennett holds a doctorate degree in Biology/Systematics and Ecology (Vertebrate Paleontology). She is the Director of the Equine Studies Institute, which is an educational resource service focusing on all types of horse-related studies. She also works as a researcher (mammalian paleontologist) for ANTS, Inc., a scientific toymaking company. She has written numerous articles relating to horses. Dr. Bennett's affidavit states that her "work has been dedicated to the study of horses and other equines."

The district court determined that Dr. Bennett was not competent to render an expert opinion as to causation and granted summary judgment to respondent. Appellant now seeks this court's review.


On appeal from summary judgment, the appellate court determines whether the district court erred in its application of the law and whether any genuine issues of material fact remain. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court reviews legal questions de novo, Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984), but must give the nonmovant the benefit of any doubt regarding the existence of a genuine issue of material fact. Rathbun v. W.T. Grant Co., 300 Minn. 223, 229-30, 219 N.W.2d 641, 646 (1974).

Summary judgment is appropriate where a claimant presents no evidence of causation to link an injury to the alleged cause of the injury. Anderson v. City of Coon Rapids, 491 N.W.2d 917, 921 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). Summary judgment is not appropriate, however, where the record presents "triable issues of fact for resolution by a jury." Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987). When considering the motion, a court is prohibited from weighing evidence or making factual determinations. Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995).

The Minnesota Supreme Court set forth the meaning and purposes of summary judgment in Sauter v. Sauter, 244 Minn. 482, 70 N.W.2d 351 (1955). The court recognized the "useful function of summary judgment proceedings as a means of securing the just, speedy, and inexpensive determination of [an] action," but clarified that

summary judgment was never intended to be used as a substitute for a court trial or for a trial by jury where any genuine issue of material fact exists.

Id. at 485, 70 N.W.2d at 353 (footnote omitted). Summary judgment has also been described as a "'blunt instrument'" to be employed "'only where it is perfectly clear that no issue of fact is involved.'" Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (quoting Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966)).


Appellant contends that the district court erred in requiring him to present expert testimony as to the issue of causation at the time of summary judgment. We disagree. In support of its motion, respondent provided an affidavit from a veterinarian who had examined the horse and concluded that its lameness was not related to the November 1993 incident or to any splint injury. The veterinarian also stated that in his experience he had not seen a horse fail to recover fully and compete as a result of a splint injury. The record contained two other affidavits from veterinarians who similarly stated that a splint injury does not cause permanent harm.

At that time, appellant had presented no facts to contradict the opinions of these veterinarians. While appellant claimed that the incident caused the horse's continuing lameness, he presented no evidence beyond his own assertions and denials to create a triable issue of fact. Thus, the district court properly required appellant to produce an expert opinion before determining if the claim could survive.


Appellant contends that the district court erred in determining that his expert, Dr. Bennett, was not competent to render an expert opinion on causation in this case. We agree. The district court stated:

[Appellant's] expert has degrees in geology and paleontology. She is currently a researcher for a scientific toy-making company and for a one-person education resource service. She has not practiced in the field of equine lameness diagnosis. This Court finds that based upon Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977), [appellant's] expert is not competent to render an expert opinion on medical causation in this case.

We hold that the district court applied too narrow a definition of "expert" in its review of Dr. Bennett's qualifications.

Minn. R. Evid. 702 provides for the admission of expert testimony where the witness is "qualified as an expert by knowledge, skill, experience, training, or education." Minnesota courts have adopted a broad interpretation of expertise. Block v. Target Stores, Inc., 458 N.W.2d 705, 709 (Minn. App. 1990) (trial court erred by ruling architect not qualified as expert concerning relative safety of flooring, lighting, and display practices at store where record demonstrated his experience and knowledge), review denied (Minn. Sept. 28, 1990). An expert has been defined as a person who (1) by practice or observation has experience in any science, art, or trade; (2) has skill, experience, or peculiar knowledge on certain subjects or in certain professions; (3) has experience through a course of previous habit and practice or study, so as to be familiar with the subject; or (4) has vast experience in any particular department of art, business, or science. Block, 458 N.W.2d at 709 (quoting Davidson v. St. Paul, Minneapolis & Manitoba Ry. Co., 34 Minn. 51, 55, 24 N.W. 324, 326 (1885)).

An expert witness need not be the most qualified person in her field, as long as the expert has some specialized knowledge or training that will be of some assistance to the jury. Hueper v. Goodrich, 263 N.W.2d 408, 411 (Minn. 1978). This knowledge may be gained through formal education or years of occupational experience. Id. (trial court did not abuse discretion in allowing state patrol officers to testify as experts because of experience and training).

Appellant's expert, Dr. Bennett, received a doctorate degree in Biology/Systematics and Ecology (Vertebrate Paleontology) in 1984. Her affidavit states that her "work has been dedicated to the study of horses and other equines." Her resume states that she is the Director of the Equine Studies Institute, which is an educational resource service focusing on all types of horse-related studies. She also works as a researcher (mammalian paleontologist) for ANTS, Inc., a scientific toymaking company. She has written numerous articles relating to horses in such publications as: Arabian Horse Express, Dressage and CT, Modern Horse Breeding, Horseplay, Equus, Horseman, Polo, and Conquistador. Further, she has her own horses, including one that experienced a splint injury.

In her affidavit, Dr. Bennett asserted, among other things, that her work

has been dedicated to the study of horses and other equines, dealing with the specific study of anatomy, paleontology, biomechanics. * * * That based upon the information provided to me and my professional knowledge and experience, I conclude to a reasonable degree of scientific certainty that the present lameness of [the horse] is traceable to an injury that occurred to the right forelimb on November 24, 1993.

(Emphasis added.) Dr. Bennett also summarized her opinion in an attachment to her affidavit, stating that she believed the proximate cause of the horse's present lameness was the November 1993 injury.

While Dr. Bennett does not treat horses for injuries as a veterinarian would, the record demonstrates that she has knowledge in the subject area qualifying her as an expert. The fact that she does not have practical experience treating splint injuries would go to the weight and credibility of her testimony, which are matters for the trier of fact to decide. We therefore conclude that the district court erred in finding Dr. Bennett unqualified to express an opinion.

In addition, contrary to the assertion of the dissent, Dr. Bennett's affidavit specifically states that her opinion is based on a reasonable degree of scientific certainty. When an expert testifies at trial or by affidavit, the expert need not testify to an absolute certainty. This court has stated:

The possibility that proof problems may arise at trial cannot justify judicial preemption of appellant's opportunity to complete and present his case to the jury when preliminary evidence indicates * * * a likely cause [of an injury] * * * even though a precise, demonstrable causal connection is still lacking.

If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding the fact issue exists.

Woody v. Krueger, 374 N.W.2d 822, 825 (Minn. Ct. App. 1985).

* * * The plausible causal connection is sufficient for the different causes of action to proceed.

Moe v. Springfield Milling Corp., 394 N.W.2d 582, 585 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986).

Further, we do not believe Dr. Bennett's affidavit was based on "simple conjecture," as the dissent claims. In Hiber v. City of St. Paul, 219 Minn. 87, 91-93, 16 N.W.2d 878, 880-81 (1944), the supreme court stated:

The rule against conjectural and speculative opinions is aimed at those not based upon a factual foundation * * * . The distinction is between inference and conjecture. * * * An opinion of a medical expert witness based upon an adequate factual foundation is not a conjecture, but a legitimate inference, and as such has evidentiary value in determining disputed questions of fact.

* * * *

It is not necessary that the truth of an expert's opinion be capable of demonstration; it is sufficient that it is probably true. [An expert witness] is not required to speak with such confidence as to exclude all doubts in his mind, but may render his testimony in the form of an estimate of opinion, couched in expressions that fall short of absolute conviction of accuracy. Such qualification affects merely the probative force of the testimony.

(Citations omitted.) Dr. Bennett based her opinion on the information provided to her, which included, among other documents, the affidavits of respondent's veterinarians who specifically referred to the horse's prior lameness problems and surgery. Dr. Bennett made legitimate inferences as to a cause of the horse's injury; any weaknesses in her reasoning go to the weight and credibility of her testimony, which is not for this court to decide.[2]

Because the record presents a genuine triable issue of fact as to causation, the court may not decide this issue at summary judgment. We conclude that the district court erred in granting summary judgment and that appellant is entitled to a trial on the merits.

Reversed and remanded.

SHORT, Judge (dissenting).

I respectfully dissent because Gross failed to raise a genuine issue of causation between Victoria Station's conduct and the horse's present lameness. When causation is an element essential to a plaintiff's case, "[t]he proof must establish causal connection beyond the point of conjecture. It must show more than a possibility of injury from defendant's acts." Christensen v. Northern States Power Co., 222 Minn. 474, 476, 25 N.W.2d 659, 661 (1946). Gross's expert testimony, however, failed to show beyond simple conjecture that a causal link existed between Victoria Station's conduct and the lameness that later manifested in the horse's limbs.

Gross's expert did not testify to a reasonable certainty that causation was present, but stated "[i]t is easy for me to conceive" of one manner in which the horse might have incurred the injury. See Pagett v. Northern Elec. Supply Co., 283 Minn. 228, 236-37, 167 N.W.2d 58, 64 (1969) (requiring expert testimony to show not that injury might have caused condition, but that injury did cause condition); see also Derrick v. St. Paul City Ry. Co., 252 Minn. 102, 108, 89 N.W.2d 629, 634 (1958) (applying "reasonable certainty" standard to expert opinion). The expert also opined as a lay witness, basing parts of her opinion not on her professional training and experience, but on her casual observations of a similar injury suffered by her own horse. See Carmody v. Aho, 251 Minn. 19, 24, 86 N.W.2d 692, 696 (1957) (noting opinion that is not based on application of any special skill, learning, or experience, is inadmissible as expert opinion).

Moreover, the expert's opinion appears to rest primarily on the assumption the horse was not seriously impaired before the Victoria Station incident but was seriously impaired afterward. However, the expert's review of documents excluded the horse's early veterinary records, which indicate a history of "chronic right front lameness" dating from six years prior to the incident. Thus, the expert's conclusions are based on an inadequate factual foundation. See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982) (stating expert must base opinion on facts sufficient to form adequate foundation and should not be allowed to speculate); see also Daubert v. Merrell Dow Pharm., 509 U.S. 579, 594-95, 113 S. Ct. 2786, 2797 (1993) (focusing on evidentiary relevance and reliability in assessing expert witness testimony).

Gross's expert testimony was insufficient to permit a jury to infer that Victoria Station's negligence in capturing the horse caused its present lameness. Therefore, I would affirm the trial court's grant to Victoria Station of judgment as a matter of law. See Daubert, 509 U.S. at 596, 113 S. Ct. at 2798 (permitting summary judgment against proponent of expert testimony when testimony is inadequate to allow reasonable juror to conclude proponent's position more likely than not is true); Leubner v. Sterner, 493 N.W.2d 119, 121 (Minn. 1992) (mandating summary judgment upon plaintiff's failure to present proof of prima facie case).

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1Medical records indicate that the horse suffered from lameness problems prior to

November 1993.

[ ]2We observe that the incident need not have been the sole cause of the lameness to be compensable. 4 Minnesota Practice, CIVJIG 141 (concurring cause), 163 (aggravation of pre-existing condition) (1986).