This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Margaret Bichsel,



State of Minnesota,


Ramsey County,


Filed July 27, 1999


Parker, Judge[*]

Ramsey County District Court

File No. C0-93-13987

Alf E. Sivertson, Michelle M. Barrette, Sivertson & Barrette, P.A., 1465 Arcade Street, St. Paul, MN 55106-1723 (for appellant)

Mike Hatch, Attorney General, Matthew L. Anderson, Sharon A. Lewis, Kristine I. Legler, Assistants Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130 (for respondent State)

Susan Gaertner, Ramsey County Attorney, C. David Dietz, Assistant County Attorney, 560 RCGC-West, 50 West Kellogg Blvd., St. Paul, MN 55101 (for respondent County)

Considered and decided by Peterson, Presiding Judge, Parker, Judge, and Thoreen, Judge.[**]

U N P U B L I S H E D   O P I N I O N

Appellant challenges the jury's verdict that she failed to prove elements of her whistleblower claim and the district court's exclusion of certain evidence. Because the jury's verdict is not palpably contrary to the evidence and because the trial judge did not abuse his discretion in excluding the evidence, we affirm.


Appellant Margaret Bichsel, a former juvenile court law clerk, brought this whistleblower action against the state. The jury returned a special verdict that appellant failed to prove either that she reported violations or that she suffered emotional or economic damage in connection with her whistleblower claim. The district court denied appellant's motions for judgment notwithstanding the verdict, or a new trial, and rule 37 sanctions. She now challenges both the jury's verdicts and an evidentiary ruling of the district court.

1. The Jury's Verdicts

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear [as] to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citations omitted), review denied (Minn. Feb. 12, 1993).

Appellant first challenges the special verdict that she did not

report a violation or a suspected violation of a law or rule governing the proper or timely processing of court orders or federal funding to her employer or to any governmental body or law enforcement official.

To answer the question, the jury had to make a credibility judgment between appellant, who testified that she had reported violations to several people, and those people, who testified that she had not reported violations to them.

In particular, the juvenile court judge and the juvenile court manager, to whom appellant said she would have reported and did report violations, repeatedly testified that appellant did not report any violations to them. That testimony, which the jury was free to believe, supports the verdict.[1]

Appellant also challenges the jury's verdict that she was not damaged economically and emotionally by the state's actions. Again, the jury was free to disbelieve her testimony that she was unfairly deprived of her job and believe the testimony of those who said appellant refused the state's offer of an equivalent job with identical pay and benefits, requiring the same skills she had used as a law clerk. The jury's verdict that appellant did not suffer economic damage as a result of the state's action can be reconciled with the theory that appellant rejected appropriate employment offered by the state.[2]

Analogously, in regard to emotional damages, the jury was free to believe the testimony of appellant's psychologist, who testified that although appellant was diagnosed as having post-traumatic stress disorder (PTSD): the events appellant experienced at the juvenile court were not typical for that diagnosis; appellant did not seem always to experience the intense fear, helplessness or horror characteristic of the diagnosis; appellant was atypical in not trying to avoid the stimuli connected with her trauma because she worked constantly on her litigation; and the psychologist had encouraged appellant to become less involved in the litigation because it was the primary stressor in her life. Again, theories emerge with which we can reconcile the jury's verdict that appellant did not suffer emotional damage as a result of the state's actions, and therefore, we do not overturn the special verdict. See id.

2. Exclusion of Evidence

The district court excluded evidence from two county employees who appellant claims retaliated against her.

The question of 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) (citation omitted). To be entitled to a new trial, appellant would have to show that exclusion of the evidence was an abuse of the district court's discretion and that she was prejudiced by that exclusion. She fails to show either.

The trial court's exclusion of the testimony of county employees whom appellant claimed were her supervisors was not erroneous. Appellant argues that these county employees derived their authority over her from their supervisor, a state employee. But the state employee testified that she had no power to hire or fire law clerks and was not the direct or indirect supervisor of any law clerk.

Moreover, the law clerk position is limited by Minn. Stat. § 484.545, subd 4 (1998): "All law clerks in every judicial district, shall serve without tenure at the pleasure of the appointing judge or judges." Only the judge had the power to hire or fire appellant, who served at his pleasure. Appellant does not argue that the judge's decision not to retain her as his clerk was retaliatory or show that any other supervisor retaliated against her.

In any event, appellant does not show that the exclusion of the evidence was prejudicial. She argues that the exclusion made the sequence of her proof illogical, which in turn might have influenced the jury to find that she did not make reports or suffer damages. But the exclusion of a portion of a party's evidence during trial is a risk inherent to litigation; holding that no evidence could be excluded if it formed part of a party's proof would eliminate the right to object to evidence. Moreover, appellant does not argue that the excluded testimony would have been dispositive on any element of her whistleblower claim, and the jury's findings on those elements are amply supported.

The trial court did not err in excluding evidence, and the jury's verdict is not palpably contrary to the evidence.


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

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

[1] The jury was equally free to disbelieve appellant's own testimony, which was impeached on cross examination when she admitted dishonest activities and revealed that she had based some of her allegations of reporting on insufficient information, on her own view of the proper disposition of a case, or on her desire for another position.

[2] The verdict can also be reconciled with the theory that no damage occurred, supported by testimony that, with retraining, appellant is likely by 2004 to recoup what she will have lost by not working as a law clerk.