Brenda Scott, individually and as parent and guardian of Kevin Gayden, a minor, Respondent, vs. Minneapolis Public Schools, Special District No. 1, Appellant. A05-649, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-649

Brenda Scott, individually and as parent and guardian of

Kevin Gayden, a minor,

Respondent,

vs.

Minneapolis Public Schools,

Special District No. 1,

Appellant.

Filed April 18, 2006

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Hennepin County District Court

File No. PI 02-16852

Robert J. Hajek, Roger E. Meyer, Hajek, Meyer & Beauclaire, P.L.L.C., 3433 Broadway Street Northeast, Suite 110, Minneapolis MN 55413 (for respondent)

Alan I. Silver, David A. Turner, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for appellant)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The district court entered judgment on a jury verdict, finding that the Minneapolis Public Schools, Special District No. 1, violated the Minnesota Government Data Practices Act, Minn. Stat. § 13.05, subd. 5 (2002), by failing to establish appropriate safeguards for records containing a student’s private data. The school district appeals from judgment and the denial of its posttrial motion for judgment notwithstanding the verdict. By notice of review, the student’s mother appeals the district court’s determination of attorneys’ fees. Because we conclude that the evidence supports the jury’s verdict on the violation and damages and that the district court did not err or abuse its discretion in its rulings applying the statutory duty, we affirm the judgment but reverse and remand for additional findings on attorneys’ fees.

F A C T S

Kevin Gayden was a seventh-grade student in the Minneapolis public school system in the 2001-02 school year. In April 2002 Gayden came home from school and told his mother, Brenda Scott, that two students from his school were showing “papers” with information about him to the other students at his school and that they were calling him “dumb,” “stupid,” and “retarded.” Scott told Gayden that he should take the papers the next time the students teased him. A week later Gayden took the papers from one of the taunting students and brought the papers home. Scott recognized the papers as copies of Gayden’s assessment-summary report, which determines whether a child qualifies for special-education services from the school district. The report contained details about Gayden’s school and family histories, as well as psychological and behavioral information about him. The complaint also notes that the report included information about his intellectual and functional abilities as well as his IQ score. The school district acknowledges that the report contained private educational data about Gayden.

One of the students who taunted Gayden with the papers testified that they found the papers in a school parking lot within ten to fifteen feet of a dumpster containing a garbage bag that had been torn open. The student testified that the papers were blowing around in the wind.

Scott, on Gayden’s behalf, sued the school district, alleging that the papers contained educational data and that the school district violated the Minnesota Government Data Practices Act, Minn. Stat. § 13.05, subd. 5(2) (2002), which requires the school district, as a responsible authority, to “establish appropriate security safeguards for all records containing data on individuals.” The district court denied the school district’s motion for summary judgment, and the case was tried to a jury. At the conclusion of Scott’s case in chief, the school district moved for a directed verdict on the failure to present a prima facie case on liability because Scott had not presented expert evidence on the statutory standard of care. The district court denied the motion.

The jury returned a verdict finding that the school district violated its statutory duty to establish appropriate safeguards for Gayden’s educational records, that the violation caused $60,000 in past damages for pain, embarrassment, and emotional distress, and that the violation will cause $80,000 in future damages for embarrassment and emotional distress. The school district moved alternatively for judgment notwithstanding the verdict or a new trial. The district court denied the motion, and, in response to Scott’s motion, ordered the school district to pay $47,824.50 of Scott’s $68,848.25 request for attorneys’ fees and costs and disbursements.

The school district appeals from judgment and the denial of its posttrial motion, raising four grounds on which it contends the district court should have granted judgment notwithstanding the verdict: (1) the district court’s misconstruction of the statutory cause of action and the resulting errors in its jury instructions and special-verdict interrogatories; (2) the lack of expert testimony on the statutory standard of care; (3) the absence of competent evidence on the measure of damages; and (4) the presence of intervening and superseding factors that, as a matter of law, negated Scott’s claims of causation. By notice of review, Scott challenges the district court’s denial of a portion of the requested attorneys’ fees.

D E C I S I O N

We review de novo the denial of a motion for judgment notwithstanding the verdict. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). In this review, our role is limited to determining whether the record contains any competent evidence reasonably tending to sustain the verdict. Id. We consider the evidence in the light most favorable to the verdict and will affirm unless the evidence is “practically conclusive against the verdict.” Id. (quotation omitted). Judgment notwithstanding the verdict is proper when the verdict is contrary to the law. Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990).

On its first claim of error, the school district advances a four-pronged argument for reversal. It contends that the district court misconstrued the statute, which resulted in (a) a duty to an individual student contrary to the statutory language; (b) erroneous jury instructions and special-verdict interrogatories; (c) an unwarranted three-step process to define appropriate security safeguards; and (d) strict liability.

(a) Statutory Construction

The issues in this litigation center on the school district’s statutory duty to “establish appropriate security safeguards for all records containing data on individuals.” See Minn. Stat. § 13.05, subd. 5(2) (2002) (stating obligations of responsible authority). These issues require us to interpret the Data Practices Act and therefore present questions of law subject to de novo review. Navarre v. S. Wash. County Sch., 652 N.W.2d 9, 22 (Minn. 2002). To determine the meaning of a statute, we focus first on the language of the statute. Free Press v. County of Blue Earth, 677 N.W.2d 471, 475 (Minn. App. 2004). When the language of the statute is plain, this language reflects legislative intent, and we apply its ordinary meaning. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).

The school district does not dispute that the records in question were educational data subject to the requirements of the Data Practices Act or that, under the Data Practices Act, the school district must designate a “responsible authority” who controls the “collection, use and dissemination of any set of data on individuals.” See Minn. Stat. § 13.02, subd. 16 (2002) (defining “responsible authority”). Instead, the school district asserts that the Data Practices Act, which protects against the inadvertent disclosure of a student’s records, does not create a duty to the individual student. We disagree.

The Data Practices Act expressly provides for civil remedies, stating that a responsible authority who violates any provision of the act is liable to a person “who suffers any damage as a result of the violation.” Id. § 13.08, subd. 1 (2002); see also Navarre, 652 N.W.2d at 30 (holding that person who suffers damages from entity’s violation of Data Practices Act may recover damages from entity). The specific language of the statute therefore creates a duty to establish appropriate safeguards for all records containing data on individuals and expressly creates a statutory cause of action against a responsible authority that violates any provision of the Data Practices Act. The plain language of the statute does not support the school district’s argument that it does not owe a duty to an individual student.

The school district further contends that it satisfied its statutory responsibilities by adopting appropriate procedures to safeguard data and that judgment notwithstanding the verdict was therefore appropriate. But the evidence, viewed in the light most favorable to the jury verdict, is sufficient to support the verdict. The record contains multiple statements from witnesses on which the jury could rely to find that the school district did not establish appropriate safeguards. The designated responsible authority, the assistant superintendent, testified that, while school district manuals “indicated that documents should be destroyed,” she had not designated any procedures prescribing how those documents should be destroyed. A school district attorney responsible for legal compliance with the Data Practices Act stated that school district staff were trained that records are “never to be just thrown away,” but acknowledged that “nothing in the [relevant employee manual] tells them how they should destroy a record.” A school district assistant principal testified that throwing away documents without tearing or shredding them was consistent with school district security safeguards. Because the responsible authority in the school district did not prescribe appropriate methods for destruction of student data, the jury had a basis to find that the school district did not establish appropriate security safeguards and thus violated the Data Practices Act by failing to perform a duty set forth in Minn. Stat. § 13.05, subd. 5(2).

(b) Special-Verdict Form

In the special-verdict form, the district court asked the jury to determine whether the school district violated the Data Practices Act “by failing to establish appropriate security safeguards for educational records containing data on Kevin Gayden” and whether the school district’s violation of the Data Practices Act was “a direct cause of damages to Kevin Gayden.” The district court also read Minn. Stat. § 13.05, subd. 5(2), directly to the jury and read the jury questions verbatim from the special-verdict form.

Both the school district and Scott agreed to the jury instructions and the special-verdict form. We conclude that the jury questions were properly framed in light of the relevant statutes. See Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (stating that appellate court reviews jury instructions for abuse of discretion). Aside from the prepositional phrase “on Kevin Gayden,” the district court essentially adopted the interpretation of the statute offered by the school district’s attorney. The inclusion of the name focused the jury on the particular context within which it would evaluate whether the school district established appropriate security safeguards and any damages that resulted from its failure to do so. The district court’s construction of subdivision 5, as embodied in its jury instructions, properly reflected the legal liability provided by the Data Practices Act for statutory-duty violations.

(c) Three-Step Process

The school district also argues that the court “adopted” an expert witness’s “three-step process” as the standard of liability under the Data Practices Act. We disagree. The district court allowed the expert on data protection to testify, over the school district’s objection, about an analytical framework for risk management used by many organizations to protect the security of confidential data. Scott’s counsel later questioned witnesses using the framework. But the district court’s jury instructions, trial statements, and memoranda do not adopt this framework as the statutory standard of care under the Data Practices Act.

(d) Strict Liability

The district court, outside the presence of the jury, suggested that the Data Practices Act creates strict liability. This fleeting reference was made only to counsel, and the court did not incorporate this standard into any jury instructions. Although Minn. Stat. § 13.05, subd. 5(2), does not require that the school district ensure that inadvertent disclosure never happens, the Data Practices Act clearly requires the school district to “protect against” such disclosure and provides damages to a person who suffers injury because of a failure to do so. See Navarre, 652 N.W.2d at 30 (stating that entity that violates any provision of Data Practices Act is liable to person for damages resulting from violation). The court used this conceptual framework in applying the law and constructing the jury instructions, and the misstatement on strict liability affected no part of the trial.

Whether expert testimony is required to establish a prima facie case is a question of law. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000). The school district argues that the Data Practices Act requires expert testimony and, because Scott’s expert witness was disqualified by the district court from testifying about data-destruction procedures under the Data Practices Act, Scott failed to present evidence of a statutory standard of care. We disagree.

The school district’s perceived deficiency in the expert’s testimony is his inability to testify to the statutory “appropriateness” of the school district’s existing safeguards. But whether the school district took appropriate measures was the ultimate issue before the jury. Even an expert qualified to comment on procedures under the Data Practices Act would not have been allowed to provide an opinion that would encroach on the province of the jury. See State v. MacLennan, 702 N.W.2d 219, 234 (Minn. 2005) (stating expert cannot testify to ultimate fact if determination should be left to trier of fact). The school district, relying on Hill v. Okay Construction Company, 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977), contends that expert testimony should generally be required to establish the standard of care. But this case is inapplicable for two reasons. First, Hill considered the issue of specific professional standards and held that claims of legal malpractice should be based on expert evidence similar to that necessary for claims of medical malpractice. Id. Second, Scott’s claim, unlike the one in Hill, does not allege negligence, but rather the failure to perform a statutory duty. We therefore conclude that a prima facie case under the Data Practices Act does not require expert testimony on the applicable standard of care.

Although expert testimony was not required and the expert was precluded from testifying about procedures under the Data Practices Act, the district court did not err by permitting the expert to testify about data-destruction practices in general. Scott’s expert testified that he is an independent business consultant, that he has a master’s degree in industrial relations, that he teaches human resource management at three colleges, and that he has provided expert testimony on behalf of multiple clients, including the school district. He testified that, in his experience, the difference in data-security practices between public and private institutions is “very small,” and he explained that most organizations have “document retention policies . . . and then destruction plans.” His testimony about data-destruction practices in other organizations is relevant to the standard of care for “appropriate security safeguards” imposed by the Data Practices Act. While his testimony did not detail methods of data destruction or explain the process for informing the staff of these methods, this evidence provided the jury with a context for assessing the standard of care for establishing appropriate security safeguards under the statute. See Minn. R. Evid. 702 (allowing expert to testify to specialized knowledge that will assist trier of fact).

III

The school district asserts that the evidence was legally insufficient to support the jury’s determination of damages because Scott’s only expert witness on damages was not competent to testify about Gayden’s emotional distress. When reviewing a district court ruling on the competence of an expert witness, we must apply a deferential standard, reversing only if the district court abused its discretion. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998). A district court has “wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion.” Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 446 (Minn. 1990).

Medical-expert testimony is not a prerequisite to recovering damages for emotional distress. See, e.g., Navarre, 652 N.W.2d at 30 (permitting recovery of emotional-distress damages under Data Practices Act even though plaintiff “failed to produce any verifiable medical or psychological evidence to support her claim”). The party seeking emotional-distress damages must nonetheless “prove that emotional injury occurred under circumstances tending to guarantee its genuineness.” Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996) (quotation omitted).

The school district cites several cases to support its contention that medical-expert testimony is required to support damages for emotional distress. Our examination of these cases, however, does not persuade us that expert testimony is mandated to support a claim of emotional-distress damages. First, we recognize that, in Deli v. Univ. of Minn.,578 N.W.2d 779 (Minn. App. 1998), review denied (Minn. July 16, 1998), this court reversed an award of emotional damages. But we did so because the case involved a contractual claim without an accompanying tort. Id. at 783. Scott’s claim for emotional damages does not arise from contract law and therefore is not limited by the ruling in Deli. The second case, Born v. Medico Life Ins. Co., 428 N.W.2d 585, 589-90 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988), is similarly inapplicable because it addresses the independent tort of infliction of severe emotional distress rather than the distinct issue of emotional-distress damages. The third case, Anderson v. Independent School District, 357 F.3d 806, 811 (8th Cir. 2004), required evidence of continuing medical treatment to support the jury’s award of future medical expenses. But Gayden received future damages for embarrassment and emotional distress, not for future medical expenses.

Scott’s expert on damages was not a licensed psychologist, but his testimony nonetheless had an adequate foundation and was probative of the emotional harm that Gayden suffered. The expert testified that he has a doctorate in clinical psychology, is a licensed social worker, and has evaluated more than 600 children in his career. And he stated that he met with Gayden six times following the incident. Based on this testimony about his professional experience and his specific interaction with Gayden, the court did not abuse its discretion by determining that an adequate foundation supported the expert’s testimony about the emotional injury that Gayden suffered from release of the assessment-summary report.

This testimony establishes that Gayden’s emotional injury occurred under circumstances tending to guarantee its genuineness. The sensitive nature of the information, Gayden’s existing learning and behavioral problems, and Gayden’s confrontation with his peers provide a sufficient factual basis to support the genuineness of Gayden’s emotional injury. The expert explained that the incident will “have a devastating effect on [Gayden] for a lifetime” and that “it will impact him as the years move forward to the point where he most probably, in my estimation, won’t graduate from high school.” Given the wide latitude afforded the district court’s expert-testimony rulings and the legal standard for evidentiary support of emotional-distress damages, we affirm the district court’s denial of the school district’s motion for judgment notwithstanding the verdict with respect to the evidence offered to substantiate damages.

The school district further asserts that judgment notwithstanding the verdict was appropriate because Scott failed to establish that the school district caused Gayden’s injury. Specifically, the school district contends that an intervening act was a superseding cause of Gayden’s injury. This specific issue was not presented in the district court or preserved for review, and, it may not be considered on appeal.

Superseding cause is a factual issue to be decided by the jury. See Lubbers v. Anderson, 539 N.W.2d 398, 401-02 (Minn. 1995) (stating that causation is question of fact for jury). The school district’s failure to demand submission of the superseding cause issue to the jury waives its right to a determination of this factual issue. See Minn. R. Civ. P. 49.01(a) (requiring party demand submission of fact issue to jury); Germann v. F.L. Smithe Mach. Co., 381 N.W.2d. 503, 510 (Minn. App. 1986) (stating that, when court omits factual issue from special-verdict form, party waives right to determination of issue absent demand for submission), aff’d 395 N.W.2d 922 (Minn. 1986).

Additionally, the school district neither submitted a jury instruction on superseding cause nor requested that the issue of superseding cause be submitted to the jury on the special-verdict form. The failure to request an instruction or a special-verdict interrogatory constitutes waiver of the issue on appeal. See Germann, 381 N.W.2d at 509-10 (holding that, when party does not request jury instruction on superseding cause, and neither jury instructions nor special-verdict form include issue, appellate court may not consider it); see also Murphy v. City of Minneapolis, 292 N.W.2d 751, 755 (Minn. 1980) (concluding that when party requests jury instructions but does not object to their omissions, he waives issue on appeal).

Furthermore, although the school district stated in its posttrial motion for judgment notwithstanding the verdict that Scott must prove a causal connection between the violation and the injury, the school district made no specific argument on superseding causation. The failure to raise this issue in the motion for judgment notwithstanding the verdict amounts to an independent waiver of the issue. See Raach v. Haverly, 269 N.W.2d 877, 882 (Minn. 1978) (requiring that party raise issue in posttrial motion to preserve it on appeal).

Finally, we note that the school district requested a jury instruction that Scott must prove that the violation caused damages. The court incorporated this request into the jury instructions and told the jury that it must determine whether any violation of the Data Practices Act was a direct cause of Gayden’s damages. The court also included this language in the special-verdict form. The jury found that the school district violated the Data Practices Act and that the violation was a direct cause of Gayden’s damages. Competent evidence supports this verdict, and we affirm the district court’s denial of the school district’s motion for judgment notwithstanding the verdict on this issue.

By notice of review, Scott contests the amount of attorneys’ fees granted by the district court. See Minn. Stat. § 13.08, subd. 1 (authorizing “costs and reasonable attorney fees” under Data Practices Act). In determining the amount of attorneys’ fees, the district court must employ a two-step analysis, first multiplying the number of hours reasonably expended on the litigation by an hourly rate and then determining whether to adjust the fee upward or downward. Johns v. Harborage I, Ltd., 585 N.W.2d 853, 863 (Minn. App. 1998). The court must “provide a concise but clear explanation of its reasons for the fee award.” Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 629 (Minn. 1988) (quotation omitted). We will not reverse a district court’s imposition of attorneys’ fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).

Scott submitted to the district court a detailed valuation of attorney services and costs sustained over approximately two and one-half years, and Scott moved the court for total fees and costs of $68,848.25. The district court granted Scott $47,824.50 in attorneys’ fees and costs and disbursements “after taking out fees for legal assistants and associates, as well as time for preparation and trial for January 26, 2004, which never happened.” In its memorandum of law, the district court explained that the attorneys’ fees were based on the “time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.” See State by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971) (enumerating considerations for determining attorneys’ fees).

The district court’s line-item review of costs is apparent and corresponds to its award of $2,507 in costs and disbursements. But the district court limited attorneys’ fees to the 151.06 hours that the lead counsel dedicated to the case, for a total of $45,317.50. This computation does not account for the services of an associate attorney who prepared and presented a motion to the district court or the customary hourly charges paid by the firm’s clients on a regular basis.

The district court provided an explanation for its departure from the tabulation of hours submitted by Scott’s counsel, and the court’s on-the-record comments demonstrate that the court reviewed the materials. The court, however, did not address the standard of reasonableness, and its explanation for reduction of attorneys’ fees, while concise, provides no basis for granting fees only for lead counsel. Therefore, we reverse the district court’s imposition of attorneys’ fees and costs and disbursements, and we remand for further findings.

Affirmed in part, reversed in part, and remanded.