This opinion will be unpublished and

may not be cited except as provided by

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




Zheng-Xuan Shen,



The Board of Regents of the

University of Minnesota, et al.,


Filed July 27, 1999


Thoreen, Judge[*]

Hennepin County District Court

File No. 96-12703

Richard A. Williams, Jr., Williams & Iverson, P.A., 1220 Landmark Towers, 345 St. Peter St., St. Paul, MN 55102 (for appellant)

Mark Bohnhorst, Office of the General Counsel, University of Minnesota, 325 Morrill Hall, 100 Church St. S.E., Minneapolis, MN 55455 (for respondents)

Considered and decided by Harten, 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


Zheng-Xuan Shen appeals from summary judgment entered in favor of respondent University of Minnesota on her claims of defamation, negligent infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED), and the denial of her motion to amend the complaint to include a punitive damage claim. Because there are no genuine issues of material fact and the district court correctly applied the law, we affirm the district court's grant of summary judgment.


Appellant Shen was a researcher in the laboratory of Dr. Karen Hsaio at the University of Minnesota. On August 22 and 24, 1994, Shen was required to perform the "corner index" test for a line of mice while Hsaio and another lab assistant were on vacation. After returning, Hsaio noticed Shen had recorded scores on August 22 and 24 for nine mice that were allegedly sacrificed or had been set aside for the Raptor Center on August 19, 1994. Shen attempted to locate the mice, but was unsuccessful. Shortly thereafter, Hsaio discovered Shen had recorded scores for mouse 866 on August 22 and 24. Mouse 866 had been marked dead on the morning of August 22, 1994 by the animal caretaker.

Academic misconduct proceedings were initiated and after a hearing, the University determined Shen had committed academic misconduct. Shen sought review of the University's decision with the Office of Research Integrity (ORI) in Rockville, Maryland. ORI found the evidence too inconclusive to sustain a finding of scientific misconduct.

Shen brought this lawsuit against the University of Minnesota, its Board of Regents, and Hsaio. Respondents moved for summary judgment. The district court granted respondents' motion for summary judgment on all of Shen's claims. Shen made two separate motions pursuant to Minn. R. Gen. Prac. 115 and Minn. R. Civ. P. 60.02 for reconsideration of the district court's ruling. As part of those motions, Shen attempted to supplement the district court record with further evidence obtained during discovery. The district court denied both motions and Shen filed this appeal.


"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).


A defamatory statement

must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff's reputation and to lower him or her in the esteem of the community.

Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 886 (Minn. 1986).

The defamatory statements at issue concern Hsaio's comments to lab employees and colleagues that Shen recorded scores for dead mice and mistyped mouse brains, and that she was going to terminate Shen's employment. The district court found evidence raising genuine issues of material fact relating to Shen's entry of scores for the nine mice sent to the Raptor Center or sacrificed. However, the district court found no genuine issues of material fact as to the death and subsequently recorded corner index scores for mouse 866.

The district court record shows that the cage holding mouse 866 contained a total of six mice. Shen concedes two of the mice, 862 and 863, were sent to the Raptor Center on August 15, 1994. Therefore, four mice remained in the cage on August 22. It is undisputed that the animal caretaker discovered one dead mouse on the morning of August 22, leaving three mice in the cage. According to lab records, mice 864, 865, and 867 from that cage were sacrificed on September 4, 1994 and placed in a lab freezer. By simple subtraction it necessarily follows that mouse 866 was the dead mouse found on August 22. Shen attempts to rebut the physical evidence by claiming mouse 866 was alive when she recorded the scores. Shen also argues Hsaio concocted the events because of their difficult working relationship. These arguments are merely speculation and do not create a genuine issue of material fact.

There is no genuine material issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

In light of contradictory physical evidence, Shen's statement that the mouse was alive when she recorded scores for it does not create an issue of disputed fact. Cofran v. Swanman, 225 Minn. 40, 43-44, 29 N.W.2d 448, 450 (1947).

Having determined the lack of a genuine issue of material fact concerning Shen's recording of scores for a dead mouse, the district court applied the law appropriately by determining that the statements made by Hsaio were substantially true. Whether a statement is substantially true is a question of law. Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).

[P]laintiff cannot succeed in meeting the burden of proving falsity by showing only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial. "A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."

Id. (citations omitted).

The district court's decision that the statements were substantially true is not in error. It is probable that recording scores for one dead mouse would have the same effect on the mind of the recipient as would recording scores for multiple dead mice, as Hsaio had told her colleagues.


Claims of punitive damages and NIED cannot stand alone. See Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. App. 1987) (no basis for NIED damages for mental anguish or suffering without direct invasion of plaintiff's rights, including defamation). Because Shen's claim of defamation was unsuccessful, there is no basis for recovery for NIED or punitive damages. Id.


Shen's IIED claim was properly dismissed since no evidence was put forth showing that Hsaio engaged in extreme and outrageous conduct that would intentionally or recklessly cause severe emotional distress. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). Successfully showing malice does not alone prove extreme and outrageous conduct. Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. App. 1992) review denied (Minn. Dec. 15, 1992).


Shen argues that the district court erred by refusing to reconsider its decision based on newly-discovered evidence. Minn. R. Civ. P. 60.02. Shen admits the evidence submitted as part of the motion to reconsider was available to her at the time of the summary judgment motion, but was not submitted to keep from overwhelming the district court. Shen was granted a continuance to complete further discovery after respondents made their first motion for summary judgment. Both parties supplemented the summary judgment record after the hearing. Rule 60.02 permits reconsideration for excusable neglect, mistake, inadvertence, surprise, fraud, or newly-discovered evidence, but its purpose is not to allow a party to supplement evidence already known, but not introduced. See Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn. App. 1997) review denied (Minn. Apr. 27, 1997) (rule 60.02 does not provide for introduction of evidence known to exist before judgment entered).


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

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