Martin Gensler, Respondent, vs. James L. Paulson, Appellant.

Martin Gensler, Respondent, vs. James L. Paulson, Appellant. A04-609, Court of Appeals Unpublished, January 25, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-609

 

Martin Gensler,

Respondent,

 

vs.

 

James L. Paulson,

Appellant.

 

Filed January 25, 2005

Affirmed

Lansing, Judge

 

Mille Lacs County District Court

File No. C2-02-0932

 

James S. Ballentine, Larry E. Stern, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondent)

 

James D. Knudsen, Leo I. Brisbois, Louise A. Behrendt, Stich, Angell, Kreidler & Dodge, PA, The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from the denial of posttrial motions in a personal-injury action, James Paulson challenges the adequacy of the record to support the jury's award of future medical expenses.  Because the evidence adequately establishes the need for future medical treatment and also provides a basis for computing the cost of the treatment, we affirm.

F A C T S

Martin Gensler sued James Paulson for injuries resulting from an automobile accident that occurred on June 16, 1997.  Gensler sought, in part, damages for future medical expenses, and he presented evidence on future medical expenses through the deposition testimony of two medical experts.

The first, Dr. Michael Gibbs, a chiropractor, testified that he saw Gensler approximately two weeks after the accident on July 1, 1997.  At that time, Gensler was experiencing pain from the base of his skull through his low back.  According to Gibbs, this pain was due to "residuals of acute traumatic cervical thoracic and lumbar strain" caused by the accident.  He encouraged Gensler to continue physical therapy and corrective exercises and provided "cervical, thoracic and lumbar manipulation" to relieve Gensler's pain.

Gibbs provided six more manipulation treatments between September 9 and November 6, 1997; five treatments between December 5, 1997 and January 6, 1998; one treatment on April 2, 1998; and one treatment each week between August and November 1998.  He also saw Gensler once on August 5, 2000.  Gibbs explained that Gensler periodically stopped treatment in an attempt to manage the pain with corrective exercise learned through physical therapy, but he resumed manipulation treatment when the pain became severe.  Gibbs further explained that, although Gensler was experiencing continuing pain from November 1998 through August 2000, Gensler stopped seeking treatment because he had moved.  Gibbs noted his understanding that, after moving, Gensler did not seek treatment from a different chiropractor because he feared insurance would not cover the cost of his care.

Gibbs testified that, in his opinion, Gensler was suffering from a "permanent musculoskeletal condition" to the "cervical, thoracic and lumbar" area.  According to Gibbs, Gensler will experience "permanent" pain in the cervical, thoracic, and lumbar spine and will "have limited range of motion."  Gibbs testified that "the best [Gensler] can look forward [to] is to maximize his potential and resolve his pain with temporary help such as [chiropractic] manipulation, exercises, taking . . . over-the-counter medication" and, if necessary, going "to a medical doctor [for] stronger medication."  Gibbs said that he would continue to recommend chiropractic care in the future, assuming, as expected, that Gensler's pain continues.  Finally, Gibbs testified to a report from an orthopedist who examined Gensler after the accident.  The orthopedist "recommended further physical therapy and chiropractic care as needed."

Gensler's second medical expert, Dr. David Dorn, a neurologist, testified to seeing Gensler twice after the June 1997 accident.  Dorn determined that Gensler had a "permanent" soft-tissue injury as a result of the accident.  Dorn stated that he did not think Gensler's symptoms  "were going to go away" and that he believed Gensler "was going to have permanent problems."  Dorn recommended a course of treatment that included exercise, over-the-counter medication, and restrictions on some types of activities.  Dorn noted that Gensler was receiving ongoing chiropractic treatment.  In addition, Dorn reviewed Gensler's medical-treatment records extending from the date of the June 1997 accident and testified that he believed those treatments were reasonable and necessary.

Paulson also provided expert medical evidence on future medical expenses.  Paulson's expert, Dr. Paul Cederberg, disagreed with Gibbs and Dorn.  Cederberg testified that he examined Gensler twice after the June 1997 accident and found no "objective evidence" of Gensler having "a permanent injury."  Cederberg also stated that he did not "see any objective reason for more treatment."

Through stipulation, the jury received an exhibit summarizing Gensler's medical expenses between June 1997 and January 2003.  This exhibit showed medical expenses totaling $8,054, including payments to chiropractors, rehabilitation clinics, and medical clinics.  The jury was instructed that Gensler's life expectancy was an additional forty-eight years.

The jury returned a verdict finding that Gensler had sustained a permanent injury as the result of the June 1997 accident and awarding $65,000 in damages for future medical expenses.  Paulson moved for judgment notwithstanding the verdict (JNOV) and a new trial, contending, in part, that the evidence did not establish the damages for future medical treatment.  The district court denied Paulson's posttrial motions, concluding that the evidence adequately sustained the award.  Paulson appeals from the order denying the posttrial motions.

D E C I S I O N

The district court's denial of a motion for JNOV must be affirmed if, in the record, "there is any competent evidence reasonably tending to sustain the verdict."  Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).  "Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside."  Id. (quotation omitted).  We will similarly affirm the denial of a motion for a new trial unless the verdict is "manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict."  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

To recover future medical expenses, a plaintiff must (1) demonstrate that future medical treatments will be required, and (2) establish the amount of the 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).

Paulson argues that the evidence presented at trial was insufficient to establish the first Lind requirement because the expert testimony was not presented in "very strong and affirmative terms" and did not "specif[y] the exact nature of the treatment which would be needed."  Our review of the record shows that the expert testimony of Doctors Gibbs and Dorn sufficiently established the need for future medical treatment.

Gibbs and Dorn consistently testified that Gensler's injury was "permanent."  Gibbs specified that Gensler will experience "permanent" pain of the cervical, thoracic, and lumbar spine and will "have limited range of motion."  Gibbs explained that, to minimize the pain, Gensler should continue exercise, chiropractic manipulation, over-the-counter medication and, if necessary, seek stronger, prescription medication from a medical doctor.  Gibbs also noted a concurring opinion of an orthopedist who recommended further physical therapy and chiropractic care.  Dorn reviewed medical records pertaining to Gensler's postaccident treatment and noted that Gensler received chiropractic treatment.  Dorn testified that he believed those treatments were reasonable and necessary.

On this expert testimony, a jury could have found it was reasonably certain that Gensler would incur future medical expenses.  See Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric, 495 N.W.2d 208, 213 (Minn. App. 1993) (concluding need for future medical care was established when doctor testified that plaintiff's condition was "permanent" and would "require continual medical treatment"), review denied (Minn. Mar. 22, 1993); Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987) (concluding that jury could have found that it was reasonably certain that plaintiff would incur future medical expenses based on doctor's testimony that plaintiff's condition was "permanent" and "required [plaintiff] to undergo physical therapy or similar treatment to relieve her pain for the rest of her life").

With regard to the second Lind requirement, Paulson argues that the evidence is insufficient to establish the cost of future medical expenses because neither Gibbs nor Dorn provided "[any] testimony whatsoever regarding . . . cost."  But the cost of future medical expenses has been upheld without requiring expert testimony when it could be computed by factoring life expectancy against the cost of past treatment.  Lind, 450 N.W.2d at 358 (citing Kwapien, 400 N.W.2d at 184); see also Krutsch, 495 N.W.2d at 214 (concluding that record containing evidence of past treatment and life expectancy was sufficient).

Gibbs testified that chiropractic care would be necessary to treat Gensler's "permanent" pain.  Gibbs also testified that Gensler should continue with the corrective exercises learned in physical therapy, continue using over-the-counter medication, and see a medical doctor for prescription medication if needed.  An orthopedist concurred, recommending that Gensler continue with physical therapy and chiropractic treatment as needed.

The stipulated exhibit summarizing Gensler's past medical care showed $2,513 in expenses for chiropractic care over five and one-half years.  According to Gibbs's testimony, Gensler did not receive chiropractic treatment during two years of the time period reflected in the summary, even though his pain continued, because of concerns about insurance coverage. The summary also showed $5,541 over five and one-half years in medical expenses other than chiropractic care, including rehabilitative care and appointments with medical doctors.  The court instructed the jury that Gensler's life expectancy was an additional forty-eight years. 

Based on this evidence, the jury could reasonably factor Gensler's life expectancy against the cost of his past medical expenses to arrive at an approximate figure for future medical expenses.  The award of $65,000 over forty-eight years, or $1,354 a year, roughly equates to the $1,464 a year of past medical expenses reflected in the summary.  An "approximate" figure arrived at in this manner is based upon the evidence presented and is not based on pure speculation.  Kwapien, 400 N.W.2d at 184.

Because competent evidence satisfies both Lind requirements and therefore adequately supports the jury's award for future medical expenses, the district court did not err in refusing to grant Paulson's motions for JNOV and new trial.

In a footnote in his brief, Paulson cites Minn. R. Evid. 703 as part of an assertion that the district court erred in admitting Gibbs's testimony over Paulson's foundation objection.  Other than citing the rule, Paulson does not provide legal support for his argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).  Rule 703 provides that experts may base an opinion or inference on fact or data "perceived by or made known to the expert at or before the hearing."  Gibbs treated Gensler approximately nineteen times between July 1997 and August 2000.  He provided a professional opinion about Gensler's injury based on his examination and treatment of Gensler.  Plain error is not obvious, and we decline to analyze the issue further because Paulson did not address this argument in the text of his brief.  See In re Application of Olson for Payment of Servs., 648 N.W.2d 226, 228 (Minn. 2002) (holding this court need not address issue raised only "tangentially in one argument heading and in one footnote" but not discussed in text of argument section of appellant's brief).

            Affirmed.

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