Lyle A. McGee, et al., Appellants, vs. Dr. Leslie Ann Sebring a/k/a Leslie A. Nussbaum, Respondent, Dr. William W. Anderson, Respondent. A05-1985, Court of Appeals Unpublished, August 8, 2006.

This opinion will be unpublished and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

A05-1985

Lyle A. McGee, et al.,

Appellants,

vs.

Dr. Leslie Ann Sebring a/k/a Leslie A. Nussbaum,

Respondent,

Dr. William W. Anderson,

Respondent.

Filed August 8, 2006

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 03-16151

Paul A. Sortland, Sortland Law Office, 120 South Sixth Street, Suite 1510, Minneapolis, MN 55402-1817 (for appellants)

David D. Alsop, Sarah M. MacGillis, Gislason & Hunter LLP, 9900 Bren Road East, Suite 215E, P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondent Sebring-Nussbaum)

Katherine A. McBride, James F. Roegge, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4400, Minneapolis, MN 55402 (for respondent Anderson)

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

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

KALITOWSKI, Judge

On appeal in this medical-malpractice action, appellants Lyle and Jonel McGee argue that the district court erred by (1) admitting expert rebuttal testimony; (2) admitting evidence of appellant Lyle McGee’s alcohol consumption; (3) refusing to submit to the jury appellants’ claims for future medical expenses and loss of future earning capacity; and (4) denying appellants’ request to submit a proposed jury instruction on insurance coverage. We affirm.

D E C I S I O N

In the spring of 1999, appellant Lyle McGee (McGee) was referred to respondent Dr. Leslie Sebring-Nussbaum (Nussbaum) because he was suffering from lower back pain that caused weakness, tingling, and numbness in his back and legs. Nussbaum examined McGee and concluded that he had significant degenerative disc disease. She discussed with McGee his options and he decided to have spinal-fusion surgery.

Nussbaum used a four-poster frame during McGee’s surgery. The frame consists of a flat board to which four angled and padded posts are attached. The patient is laid on the frame facing downward and the surgical team adjusts the posts to place them at the body’s “bony prominences,” generally the shoulders and hips, to minimize pressure on the nerves.

Nussbaum used this placement process when positioning McGee for his lumbar-fusion surgery. The surgery proceeded without incident, and Nussbaum detected no change or shift in McGee’s position. But three days after surgery, McGee could not lift his leg, which signified to Nussbaum that he suffered injury to his femoral nerve, called a “femoral neuropathy.”

McGee and his wife, appellant Jonel McGee, filed a complaint alleging medical malpractice against Nussbaum and respondent Dr. William W. Anderson (Anderson), the anesthesiologist who participated in the surgery. The complaint alleged that the injury to McGee’s femoral nerve occurred when a supporting pad slipped during surgery.

After six days of trial, the jury returned a verdict finding neither respondent negligent. Appellants moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The district court denied appellants’ motions.

Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court’s broad discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). A new trial will be granted because of an improper evidentiary ruling only if the complaining party demonstrates prejudicial error. Id. at 46. An evidentiary error is prejudicial if it might reasonably be said to have changed the outcome of the trial. Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998).

1. Dr. Resnick’s testimony

Appellants assert that the district court abused its discretion by admitting the testimony of Dr. Resnick because Dr. Resnick was unqualified to testify concerning an anesthesiologist’s standard of care and because there was no foundation for his testimony as an expert witness. We disagree.

Appellants presented the deposition testimony of Dr. Kirk Hogan at trial. Dr. Hogan had a clinical practice in anesthesiology at the University of Wisconsin Hospitals from 1986 until 1998. Dr. Hogan testified that it was both the neurosurgeon’s and the anesthesiologist’s responsibility to monitor the patient for shifting throughout surgery. He claimed that the anesthesiologist should pause surgery every hour and check under the sterile drapes to ensure that the patient had maintained optimum positioning. Dr. Hogan testified that he had participated as an anesthesiologist in 200 spinal-fusion surgeries and named three neurosurgeons with whom he had worked, Dr. Javid, Dr. Leven, and Dr. Trost. During each of those procedures, Dr. Hogan stated that he, an anesthesia resident, or a nurse checked the patient’s position in the manner he described.

After Dr. Hogan’s deposition, respondent Anderson attempted to locate the three surgeons that Dr. Hogan named in his deposition. Ultimately, counsel instead located Dr. Resnick. Dr. Resnick was not one of the three doctors that Dr. Hogan named, but he was a neurosurgeon who had practiced at the University of Wisconsin Hospitals since 1998, was Dr. Trost’s partner, had jointly participated with Dr. Trost in lumbar-fusion surgeries, and performed between 200 and 230 spinal surgeries per year. Dr. Resnick testified that based on his experience at the University of Wisconsin, including the time of McGee’s June 1999 surgery, patients were not periodically inspected during the course of surgery absent a patient’s movement or some other concern. And Dr. Resnick stated that he had never seen Dr. Trost call for someone to inspect the frame’s contact with the patient’s hip, on an hourly basis or otherwise.

The district court admitted Dr. Resnick’s testimony over appellants’ objection, but limited its scope to addressing Dr. Hogan’s testimony regarding the practices at the University of Wisconsin Hospitals during the time of McGee’s operation. In denying appellants’ motion for a new trial, the district court stated that Dr. Resnick’s testimony was limited to rebuttal of Dr. Hogan’s testimony and that his testimony had not prejudiced appellants.

Rebuttal evidence consists of evidence that “explains, contradicts or refutes” previously submitted evidence. State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998) (quotation omitted); Van Tassel v. Patterson, 235 Minn. 152, 160, 50 N.W.2d 113, 117 (1951). “[T]he determination of what constitutes proper rebuttal evidence rests almost wholly in the discretion of the [district] court.” State v. Eling, 355 N.W.2d 286, 291 (Minn. 1984).

Here, Dr. Resnick’s testimony contradicted Dr. Hogan’s testimony that it was common practice at the University of Wisconsin during spinal surgeries for anesthesiologists to periodically halt surgery to go under the drapes and check the position of the patient’s hips on the surgical frame. And Dr. Resnick specifically contradicted Dr. Hogan’s claim that Dr. Trost checked under the drapes during surgery. Thus, Dr. Resnick’s testimony was properly admitted as rebuttal evidence. See Whitney v. Buttrick, 376 N.W.2d 274, 278 (Minn. App. 1985) (holding that rebuttal evidence, which attempted to disprove the opposing expert’s theory without presenting a new theory, was proper), review denied (Minn. Jan. 23, 1986).

Appellants argue that Dr. Resnick was unqualified to testify on the standard of care of anesthesiologists because he is a neurosurgeon, not an anesthesiologist. But Dr. Resnick acknowledged that he had no training or specialty in anesthesiology. And during his 36-minute deposition, he did not testify to the standard of care of anesthesiologists or others. He merely testified as to what he had observed anesthesiologists do, or not do, during spinal surgeries that he participated in at the University of Wisconsin Hospitals, including practice around June 1999.

Appellants argue that counsel for Dr. Anderson did not properly lay foundation for Dr. Resnick’s testimony as an expert witness. But Dr. Resnick did not testify as an expert witness. He did not offer opinion testimony; he only testified to the facts that he observed. Dr. Resnick explicitly stated that he had “not reviewed any of the case information.”

Appellants also contend that they did not have an opportunity to rebut Dr. Resnick’s testimony. But during the presentation of their case, appellants informed the court that they intended to take a rebuttal deposition of Dr. Hogan in light of the court’s admission of Dr. Resnick’s testimony. And appellants scheduled the deposition. Appellants ultimately cancelled the deposition, not because they were without time to take it, but because Dr. Hogan had nothing further to say. And the court gave appellants the option of a continuance at the risk of being held responsible for costs, but appellants did not renew their continuance request.

Appellants contend that Dr. Resnick’s testimony was “severely prejudicial” because it left the jury “with the impression that Dr. Hogan had either lied, exaggerated, or clearly did not know what he was talking about.” But given that the jury heard testimony from four doctors stating that respondents met the standards of care in their fields, appellants have not established that Dr. Resnick’s testimony, if improperly admitted, changed the outcome of the trial.

Although appellants challenge the admission of Dr. Resnick’s testimony on many different bases, they fail to demonstrate that the district court abused its discretion and that its decision prejudiced appellants. We conclude that the district court properly admitted Dr. Resnick’s testimony as rebuttal evidence. And even if that admission was in error, Dr. Resnick’s testimony was not so prejudicial as to deprive appellants of a fair trial because of the substantial evidence, unrelated to Dr. Resnick’s testimony, demonstrating that respondents did not violate their respective standards of care.

2. Evidence of alcohol consumption

The district court found that evidence relating to the frequency and amount of McGee’s alcohol use was relevant and admissible because alcohol consumption was potentially a factor in his injury. The court did, however, order the parties to refrain from using the phrase “alcohol abuse” because of its potentially prejudicial effect.

Appellants argue that the district court abused its discretion by admitting any evidence of McGee’s alcohol consumption because its relevance was outweighed by its prejudicial effect. Appellants contend that they were prejudiced by the admission of the alcohol-consumption evidence and are therefore entitled to a new trial. We disagree.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. The district court is afforded broad discretion to determine if relevant evidence must be excluded under rule 403, and we will not reverse that decision unless the district court clearly abused its discretion. Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 229 (Minn. 1986).

Evidence of McGee’s alcohol consumption was probative of whether he was at an increased risk for a compression injury during surgery despite the efforts of the surgical team. Three doctors testified that excessive alcohol consumption could increase a patient’s risk for potential neuropathy complications. Even Dr. Hogan, appellants’ witness, stated that based on concerns that physicians had noted about McGee’s alcohol use in the past, McGee’s alcohol use would increase his risk, when compared with other patients, for developing a neuropathy even when the surgical team exercised due care.

Appellants insist that this testimony prejudiced them, but fail to explain how they were prejudiced. And evidence does not violate rule 403 merely because it is damaging to a party’s case. Given that four doctors testified that respondents met the standard of care, appellants fail to demonstrate how the evidence of past alcohol use prejudiced them to the extent that it affected the trial’s outcome.

Appellants claim that the prejudicial effect of alcohol-consumption evidence outweighs its probative value unless the offering party shows that the alcohol caused or contributed to the injury. Appellants cite two cases in support of this assertion.

First, appellants cite Mueller v. Sigmond, 486 N.W.2d 841 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). In Mueller, the respondent sued for damages stemming from a traffic accident, and the district court granted the respondent’s motion to exclude evidence that she had been drinking the evening of the accident. 486 N.W.2d at 842-43. On appeal, this court held that the exclusion of the evidence was within the district court’s discretion but stated that the evidence would have been admissible if the record had shown that the respondent’s drinking contributed to the accident. Id. at 843-44. Thus, while this court stated that a connection between the alcohol and the accident would render the alcohol evidence admissible, it did not hold that a district court’s admission of alcohol-consumption evidence only falls within the broad range of the court’s discretion if the consumption contributed to the injury.

Second, appellants cite Hastings v. United Pac. Ins. Co., 396 N.W.2d 682 (Minn. App. 1986), as support for the proposition that evidence of alcohol consumption is properly excluded where the record does not demonstrate that alcohol was the proximate cause of an injury. But appellants’ reliance on Hastingsis misplaced. In Hastings, this court did not address the admissibility of evidence, but considered whether the district court erred by granting summary judgment on a dram-shop claim because the evidence failed to demonstrate that a driver’s intoxication caused his accident. 396 N.W.2d at 684.

Evidence of McGee’s alcohol consumption was probative of whether he was predisposed to an increased risk of neuropathy despite any potential negligence on respondents’ part. And beyond mere assertion, appellants fail to explain how the evidence’s prejudicial effect outweighed its probative value. Thus, we conclude that the district court did not abuse its discretion by admitting evidence of McGee’s alcohol use.

II.

Appellants argue that the district court erred by granting respondents’ motions for directed verdict against appellants’ claims for future medical expenses and loss of future earnings. We disagree.

On appeal from a directed verdict, appellate courts make an independent determination of whether the evidence was sufficient to present a fact question to the jury and review the evidence in the light most favorable to the nonmoving party. Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997).

A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide. A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence. This court must apply the same standard.

Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992).

1. Future medical expenses

In asserting a claim for damages for future medical expenses, a plaintiff must: (1) show the necessity of future damages in the form of future medical treatments; and (2) establish by expert testimony the amount of damages. Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). Both requirements must be substantiated through competent evidence, which is ordinarily expert testimony. Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980); Lamont v. Indep. Sch. Dist. No. 395, 278 Minn. 291, 295, 154 N.W.2d 188, 192 (1967). Before an instruction on future medical expenses is allowed, the plaintiff must prove the reasonable certainty of such expenses by a fair preponderance of the evidence. Pietrzak, 295 N.W.2d at 507.

Here, appellants failed to provide any expert testimony to establish the cost of McGee’s future medical expenses. Appellants argue that trial exhibits demonstrate that McGee needed continuing medication to treat ongoing pain. But appellants fail to cite any expert testimony as to the amount of future damages that McGee would incur.

Appellants cite Kwapien v. Starr, 400 N.W.2d 179 (Minn. App. 1987), in support of their argument that the district court should have submitted the issue of future medical expenses to the jury without expert testimony because McGee’s position was permanent and his medical treatment was likely to continue. In Kwapien, the issue was whether the district court abused its discretion by refusing to grant remittitur on the jury’s award of $20,000 for the respondent’s future medical expenses. 400 N.W.2d at 184. The parties stipulated to the respondent’s past costs and the jury was presented with an actuarial table demonstrating the respondent’s life expectancy. Id. This court held that the district court did not abuse its discretion because even though there was no testimony directly estimating respondent’s future medical expenses, the jury’s verdict was not pure speculation because “it was possible for the jury to take respondent’s life expectancy and factor it against the cost of her past physical therapy treatments to arrive at an approximate figure for future medical expenses.” Id.

Here, appellants provided no evidence of McGee’s life expectancy, and the parties did not stipulate to the cost of McGee’s earlier treatments. Furthermore, appellants offered no expert testimony on the cost of McGee’s past treatments. Because appellants provided no expert testimony establishing the amount of either future or past medical expenses, any award of future medical expenses would have been based on speculation. See id. Therefore, we conclude that the district court did not err by directing a verdict against appellants’ claim for future medical expenses.

2. Loss of earning capacity

Appellants also contend that the district court erred by directing a verdict against their claim of loss of future earning capacity.

The impairment of earning capacity is an item of general damages which does not require specific proof of actual earnings or income either before or after the injury. Because future damages such as this are impossible to prove with absolute certainty, the rule is that recovery may be had if future damage is reasonably certain to occur.

Id. at 183 (citation omitted). A plaintiff must prove by a preponderance of the evidence, “that a loss of earning capacity--an impairment in [plaintiff’s] power to earn a living--was reasonably certain to occur as a result of the injuries [plaintiff] sustained.” Id. (emphasis omitted). But “[w]ithout at least some evidence of lost earning capacity, the jury should not be allowed to consider it as a potential basis for their verdict.” Busch v. Busch Constr., Inc., 262 N.W.2d 377, 399-400 (Minn. 1977).

The record indicates that McGee has worked as a lead technician for Northwest Airlines since 1991. As lead technician, McGee testified that he does not “have to do a lot of physical work.” He manages a crew of about 13 people, and assigns, organizes, and oversees their work. He returned to work approximately 11 months after the surgery and his income remained the same.

Appellants argue that they established McGee’s loss of earning capacity through evidence that he uses a motorized bike to transport himself at work, is limited in his activity, and can no longer climb ladders or stairs. But appellants fail to link McGee’s physical limitations to his managerial duties as a lead technician, a position which he admitted did not entail much physical work. Although McGee can no longer walk the length of the hangar or climb a ladder, appellants have not shown by a preponderance of the evidence that those tasks were required of his job or that his inability to perform them impairs his “power to earn.” See Wilson by Wilson v. Sorge, 256 Minn. 125, 130-31, 97 N.W.2d 477, 482 (1959). Thus, the district court did not err by declining to submit to the jury the issue of McGee’s impaired earning capacity.

III.

Appellants argue that the district court abused its discretion by declining to submit to the jury their proposed instruction on the parties’ insurance coverage. We disagree.

District courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Appellate courts will not reverse a district court’s decision unless the instructions constituted an abuse of discretion. Id. “If the instruction destroys the substantial correctness of the charge as a whole, causes a miscarriage of justice, or results in substantial prejudice, the error requires a new trial.” Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159 (Minn. 2002).

Here, appellants requested an instruction stating:

You should not consider whether any party in this case was or was not covered by insurance. Some plaintiffs or defendants are covered by insurance, some are not, and some have various forms of partial coverage. Also, some people who have insurance must reimburse their insurance company under certain circumstances. The law does not allow the parties to present evidence about insurance or lack of insurance. More importantly, insurance has no bearing on whether the defendant was at fault or the amount of damages, if any, caused by a defendant’s fault.

The court denied appellants’ request but ultimately added an instruction stating, “Do not consider who actually paid the expense.”

Appellants argue that the court’s instruction did not adequately instruct the jury to disregard insurance coverage. They claim that the jury could have assumed that McGee’s expenses were covered by insurance because he was employed by a large company. Appellants argue that Minnesota courts should adopt a jury instruction that more explicitly instructs the jury not to speculate about insurance coverage, similar to instructions adopted in Iowa, California, Virginia, and New Mexico.

The task of extending existing law falls to the supreme court or the legislature, but not to this court. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). Furthermore, the district court here did instruct the jury not to consider who actually paid McGee’s past medical expenses. And appellants fail to demonstrate that the court’s use of the more general instruction, as opposed to their proposed instruction, destroyed the substantial correctness of the charge as a whole, caused a miscarriage of justice, or resulted in substantial prejudice. See Morlock, 650 N.W.2d at 159. Therefore, we conclude that the district court did not abuse its discretion by denying appellants’ request to submit their proposed jury instruction.

Affirmed.