State of Minnesota, Appellant, vs. William Anthony Moore, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-788

Heather Chitwood,

Respondent,

vs.

Deborah Saebra Lee Halliday, et al.,

Appellants.

Filed November 5, 1996

Affirmed

Forsberg, Judge[*]

Hennepin County District Court

File No. PI-95-3957

Sharon L. Van Dyck, Daniel J. Bresnahan, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for Respondent)

Lawrence M. Rocheford, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Appellants)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

Appellants Deborah Saebra Lee Halliday and Patrick Lee Halliday challenge the district court's denial of their motion for JNOV or, in the alternative, a new trial. We affirm.

FACTS

In September 1992, sixteen-year-old Heather Chitwood seriously injured her neck and right shoulder when the car she was driving was rear-ended by a car driven by Deborah Halliday. In January 1995, Chitwood commenced this lawsuit against appellants Deborah Halliday and the owner of the vehicle, Patrick Lee Halliday, seeking damages for past and future medical expenses, loss of earning capacity, and physical and mental pain. Prior to trial, the defendants admitted liability.

Trial commenced in December 1995 on the issue of non-economic damages. The jury returned a verdict in favor of Chitwood, awarding her $25,000 as compensation for past pain and disability and awarded her $40,000 as compensation for future pain and disability. On January 17, 1996, the district court adopted the jury's findings and ordered judgment. Appellants moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court denied the post-trial motion.

D E C I S I O N

On review of the denial of a motion for a new trial, the verdict must not be disturbed unless it is "manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). The standard for reviewing a JNOV denial is also stringent.

Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

1. Voir Dire

Prior to jury selection, appellants disclosed that Safeco Insurance Company of America (Safeco) was the liability insurer for appellants and therefore interested in the outcome of the case. Appellants argue that the district court erred by not complying with rule 123 of the Minnesota Rules of Practice by asking individual jurors about their interest in Safeco rather than asking the question collectively.

The burden of providing a record rests with appellants, the parties challenging the propriety of the voir dire process. Hunt v. Regents of Univ. of Minn., 460 N.W.2d 28, 31 (Minn. 1990). Minnesota courts have consistently held that an appellate court "may not base its decision on matters outside the record on appeal." Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (citing Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977)). Where a complete record is not available, the supreme court has required that the challenging party comply with rule 110.03 to supplement the record in order to provide for appellate review. Hunt, 460 N.W.2d at 31; Minn. R. Civ. App. P. 110.03. This court may, however, suspend the requirements of rule 110.03 to allow for review if the remainder of the record supports appellants' grounds for appeal. Id. at 31-32. In this case, however, the evidentiary material necessary to determine the issue at hand is not on the record. In fact, the remainder of the record demonstrates that the parties and the court disagree as to the actual events of voir dire. Because the parties waived their right to have voir dire recorded, and there is no way to accurately determine what transpired, this court is unable to review this issue.

2. Exclusion of Expert Testimony

Decisions to admit or exclude evidence rest within the broad discretion of the district court and its rulings will not be disturbed unless based on an erroneous view of the law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Moreover, an order may not be disturbed due to an improper evidentiary ruling "unless a substantial right of the party is affected." Minn. R. Evid. 103(a). Likewise, entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error; it must appear that such evidence might reasonably have changed the result of the trial if it had been admitted. Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).

A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Gardner v. Coca Cola Bottling Co. of Minn., 267 Minn. 505, 513-14, 127 N.W.2d 557, 563 (1964). Even if this court would have reached a different conclusion, the decision of the district court will not be reversed absent a clear abuse of discretion. Reinhardt v. Colton, 337 N.W.2d 88, 92 n.1 (Minn. 1983).

Appellants allege that the district court erred by excluding the testimony of their expert medical witness, Dr. Yellin, regarding the AMA Guidelines to the Evaluation of Permanent Impairment (guidelines). The district court based its exclusion of this testimony on three grounds. First, the issue of chronic pain syndrome was not before the jury. Our review of the record reveals that respondent never alleged that she was suffering from chronic pain syndrome; she merely claimed that she was afflicted with physical pain due to her injuries. The guidelines themselves address chronic pain syndrome and differentiate between chronic pain syndrome and persistent pain, which is a "symptom of an underlying acute somatic injury."

Second, as an orthopedic surgeon, Yellin was not trained in the use of the guidelines. To qualify as a medical expert, a witness "must have both the necessary schooling and training in the subject matter involved, plus practical or occupational experience with the subject." Lundgren v. Eustermann, 370 N.W.2d 877, 880 (Minn. 1985).

Yellin received his medical degree from Howard University College of Medicine in Washington, D.C., in 1973. He attended Cambridge University in Cambridge, England, on a surgical fellowship during medical school. He completed a one-year general surgery residency and a four-year residency in orthopedic surgery at Jackson Memorial Hospital at the University of Miami, Florida. He is board certified in orthopedics and his practical experience has included a position as the chief of orthopedics at United Hospital. The record demonstrates, however, that Yellin had little previous experience or familiarity with the guidelines. Yellin is not trained in pain management, nor did he have experience reading or interpreting psychological testing such as an MMPI exam, which is one of the criteria used by the guidelines.

Third, Yellin had not relied upon the guidelines when examining Chitwood, did not base his testimony on the criteria, nor conduct an examination for the psychological diagnosis of chronic pain syndrome. We find that the evidence supports the district court's findings and conclude that the court did not abuse its discretion by excluding the testimony.

Additionally, appellants challenge the court's exclusion of Yellin's testimony regarding Chitwood's medical records from other providers. Specifically, the district court excluded the portion of Yellin's testimony where he read portions of Chitwood's medical records from Capital Area Counseling and from St. Mary's Hospital. Regarding the records from Capital Area Counseling, we conclude that the district court did not err in excluding this evidence on the grounds that these records were substantially more prejudicial than probative.

Regarding the records from St. Mary's Hospital, we conclude that the district court properly excluded Yellin's testimony on two independent grounds. First, the district court did not abuse its discretion by excluding this testimony because appellant failed to disclose the records during the discovery process. Norwest Bank Midland v. Shinnick, 402 N.W.2d 818, 823 (Minn. App. 1987) (district court has wide discretion to impose sanctions for violations of discovery rules). Second, the district court did not abuse its discretion by excluding the records as irrelevant because the records pertained purely to Chitwood's gynecological problems and were not probative on the issue of neck and shoulder injuries.

Moreover, appellants have not demonstrated that the exclusion of Yellin's testimony resulted in actual prejudice. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (appealing party must demonstrate that the error resulted in actual prejudice in order for the appellate court to reverse). The record contains no evidence that the outcome of the trial would have been different had Yellin's entire video deposition been played for the jury. Therefore, we refuse to disturb the district court's order.

3. Trial Court's Partiality

Appellants also complain of certain remarks made by the judge during the trial. The decision whether to grant a new trial on the ground of prejudice of the district court rests within the sound discretion of the district court and will be reversed only for a clear abuse of discretion. Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 785 (1975), cert. denied, 424 U.S. 902, 96 S. Ct. 1093 (1976). A primary consideration is whether the claimed misconduct is so serious that it denies the litigants a fair trial. Id. at 434, 234 N.W.2d at 786. We have reviewed the record in this case and do not find that the district court's conduct or comments were prejudicial, biased, or deprived appellants of a fair trial. See Uselman, 464 N.W.2d at 139 (upholding district court's denial of new trial where court's improper comments did not alter outcome of case).

4. Cumulative Error

Appellants argue that because of the cumulative effect of the alleged errors, the district court abused its discretion by denying the post-trial motion. In light of appellants' failure to demonstrate any form of actual prejudice resulting from the alleged errors, reversal is not required. Cf. State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (in case with substantial conflicting testimony and difficult factual determinations, cumulative errors may require reversal).

Affirmed.

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