State of Minnesota, Respondent, vs. Kori Dardine, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-174

Marcelle R. Fowler,
Appellant,

vs.

Juho Krepp, M.D., et al.,
Respondents.

Filed August 25, 1998
Affirmed
Short, Judge

Pennington County District Court
File No. C095608

Kenneth F. Johannson, Johannson, Taylor, Rust & Fagerlund, P.O. Box 605, Crookston, MN 56716 (for appellant)

W. Todd Haggart, Pamela J. Hermes, Vogel, Kelly, Knutson, Weir, Bye & Hunke, L.T.D., 502 First Avenue, N., P.O. Box 1389, Fargo, ND, 58107-1389 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Marcelle R. Fowler underwent a laparoscopic hysterectomy during which shoulder braces were used to secure her in the Trendelenburg position. After surgery, Fowler suffered permanent injury to both arms, allegedly due to the shoulder braces. Fowler sued Dr. Juho Krepp, Falls Clinic, and Northwest Medical Center (collectively "respondents") for negligently using the shoulder braces. A jury found Fowler had sustained damages, but that the defendants were not medically negligent. Fowler moved for judgment notwithstanding the verdict (JNOV), or in the alternative a new trial. On appeal from the trial court's denial of her motion, Fowler argues:  (1) the trial court erred by admitting certain expert testimony; and (2) she was entitled to judgment notwithstanding the verdict. We affirm.

D E C I S I O N

In general, exclusion of expert testimony is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Walton v. Jones, 286 N.W.2d 710, 713 (Minn. 1979). On appeal from a trial court's denial of judgment notwithstanding the verdict (JNOV), this court must affirm if there is any competent evidence reasonably tending to support the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).

I.

Fowler argues the trial court abused its discretion by admitting Dr. Krepp's testimony because the defense failed to disclose the content of this testimony prior to trial. See Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390, 393 (Minn. 1977) (concluding as part of discovery procedure, party may require other party to identify each person whom other party expects to call as an expert witness, state subject matter on which expert is expected to testify, and state substance of expert's facts and opinions and summary of grounds for opinions); see alsoMinn. R. Civ. P. 26.02(d)(1) (setting forth requirements for disclosing information on expert testimony). However, the record demonstrates:  (1) during pretrial discovery, Fowler requested that the respondents disclose the names of their medical experts and the subject matter on which those experts would testify; (2) in supplemental answers to interrogatories, respondents stated one of their experts, Dr. Juho Krepp, would testify on his own behalf and explain the medical care provided to Fowler, and the care he took to avoid injury during surgery; and (3) at trial, Dr. Krepp testified he gave Fowler appropriate care and followed proper procedures, and those procedures were usual and customary. Given these facts, we conclude Dr. Krepp's testimony was properly disclosed during the discovery process.

Even assuming Dr. Krepp's testimony was not properly disclosed, Fowler should have been able to anticipate such testimony. Moreover, Fowler's counsel failed to seek a continuance after the testimony was received. See Phelps, 253 N.W.2d at 394 (concluding failure to suppress evidence not abuse of discretion where opposing party does not seek continuance and fails to show prejudice from having had only brief notice of appearance of an expert medical witness); see also Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986) (concluding defendant was not substantially prejudiced by untimely and inadequate disclosure because it was not difficult for defendant to anticipate expert's testimony and prepare its cross-examination). Under these circumstances, we conclude the trial court did not abuse its discretion in failing to suppress Dr. Krepp's testimony.

Fowler further argues the trial court abused its discretion by admitting Dr. Krepp's testimony because he could only testify to whether Fowler's medical treatment was given according to customary and usual practices of practitioners in the same community. However, Fowler failed to make this specific objection at trial. Under these circumstances, we decline to review this evidentiary issue. See Tagtow v. Carlton Bloomington Dinner Theatre, Inc., 379 N.W.2d 557, 561 (Minn. App. 1985) (concluding new objections cannot be raised on appeal unless made at trial or preserved in post-trial motions); see, e.g., Cannady v. Lynch, 27 Minn. 435, 439-40, 8 N.W. 186, 188 (1881) (concluding court will not consider specific objection that is made on appeal, but not presented to court below, nor plaintiff's counsel).

Even assuming this issue was preserved for appeal, medical experts are permitted to give their opinions on the very issue that the jury must decide. See State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984) (concluding in Minnesota, law has long been that medical experts are permitted to give opinions on very issue that jury will have to decide). Under these circumstances, we conclude the trial court did not abuse its discretion in admitting Dr. Krepp's testimony.

II.

Fowler finally argues she was entitled to JNOV because, in the absence of the improperly admitted testimony, she clearly established the respondents' liability. We disagree. In addition to Dr. Krepp's properly admitted testimony, the record demonstrates:  (1) Dr. Krepp also testified he kept up with developments in the field of obstetrics and gynecology, and the use of padded shoulder braces during surgery was an accepted practice, and in Fowler's case, the padding was correctly placed; and (2) a nurse anesthetist testified he was responsible for positioning and padding patients when using shoulder braces, he was never told the use of shoulder braces was inappropriate, and the padding and positioning of Fowler was appropriate during her surgery. Because respondents introduced evidence that reasonably supports the jury verdict, we conclude the trial court properly denied Fowler's post-trial motion for JNOV. See Rettman, 354 N.W.2d at 429 (concluding appellate court must affirm trial court's denial of JNOV if there is any competent evidence reasonably tending to support verdict); Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 365 (Minn. 1979) (concluding unless evidence is practically conclusive against verdict, appellate court will not set verdict aside).

Affirmed.

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