Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.

Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant. A04-2458, Court of Appeals Unpublished, December 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2458

 

Linda Timmer, et al.,

Respondents,

 

vs.

 

Shamineau Adventures,

Appellant.

 

Filed December 13, 2005

Affirmed

Randall, Judge

 

Morrison County District Court

File No. CX-03-261

 

Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN  55425-1582 (for appellant)

 

Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., 400 First Street South, Suite 600, St. Cloud, MN  56302 (for respondents)

 

            Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge.[1]

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering.  After respondents accepted the conditional remittitur, appellant brought this appeal contending:  (a) it is entitled to a Schwartz hearing based on a juror's allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert's opinions; and (d) the court erred in allowing respondent's expert to testify to opinions undisclosed prior to trial and denying appellant's request for a continuance.  Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence.  We affirm on all issues.

FACTS

            This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively "respondents") against appellant Shamineau Adventures.  Appellant is one of five subdivisions that are collectively referred to as "Shamineau Ministries."  Appellant's subdivision consists of a ropes course that includes various elements and obstacle courses.  One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side.  The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached.  The cable is threaded through a pulley system and a lanyard rope is attached to the pulley.  At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded.  A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness.  Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.     

            To ride the zip line, the rider's harness carabiner is attached to the zip line carabiner.  The rider then steps from the higher end platform, gliding down the cable across the valley.  The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill.  The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.  

            In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau.  Included in the group was Timmer, a special education teacher in the Little Falls School District.  On October 11, while "roving" the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director.  Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties.  Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders.  Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders.  Stanghelle then left the landing area to assist other students, teachers, and staff.  Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.       

            After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser.  When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness.  As Timmer tried to unscrew the safety harness, Boser began drifting backwards.  Timmer instinctively grabbed onto Boser to prevent her from coasting back to the sender, but Timmer was unable to maintain her footing.  Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser's harness.  When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries.  Timmer brought this tort action alleging negligence on the part of Shamineau Adventures.  Jere Timmer filed a claim for loss of consortium.  

            Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness.  Gauger's memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely.  Appellants moved for an order excluding Gauger's new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence.  The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the nature of the case.  

            A jury trial was held from June 21, 2004, through June 29, 2004.  At trial, Gauger testified that he has a bachelor's degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer.  Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities.  Appellant objected to Gauger's testimony on the basis that he was unqualified as an expert witness.  The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.   

            The jury heard extensive testimony concerning Timmer's injuries and her present physical condition.  Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered "multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture."  Dr. Nessler, Dr. Jeffrey Gerdes, and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing.  Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.

            On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault.  The jury awarded appellant damages in excess of $4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $2,783,949.  Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties.  Albrecht stated that the jury had made a mistake in selecting the damages.  According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant's 60% fault and subtracting respondent's 40% fault.  Appellant subsequently moved the district court for a Schwartz[2] hearing based on Albrecht's letter.  The district court first ruled the letter inadmissible, and then denied the motion for a Schwartz hearing.

            Following the district court's order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV.  The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $3,000,000 to $1,650,000.  Respondents accepted the conditional remittitur.  Shamineau appealed.  Respondents then served and filed their own notice of review objecting to the remittitur.

D E C I S I O N

I.

            Appellant argues that it is entitled to a Schwartz hearing based on Albrecht's letter stating that the jury had made a mistake in selecting the damages.  "The standard of review for denial of a Schwartz hearing is abuse of discretion."  State v. Church, 577 N.W.2d 715, 721 (Minn. 1998).

            In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct.  258 Minn. at 328, 104 N.W.2d at 303.  A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict.  Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990). 

Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors.  The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors.  The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing.  Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.

 

Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).

            Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:

There has been no evidence of juror misconduct in this matter.  The evidence received did not relate to actions outside of the deliberations that would constitute misconduct.  On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions.  However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.

 

The record supports the district court's conclusion that there were no clerical errors and no evidence of jury misconduct.  Albrecht's letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law.  The district court properly denied appellant's request for a Schwartz hearing.  See Senf, 419 N.W.2d at 648.

            For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that "misunderstanding" is not grounds for a new trial.  Instead, appellant argues that the letter is evidence of a "compromise verdict," and that a compromise verdict is grounds for a
new trial.  Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.   

            A "compromise" verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages.  See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971).  When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate.  Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).

            We agree with the district court that just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict.  Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability.  See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave an inadequate award, it was not a compromise verdict); Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury's award of damages was not supported by the evidence in light of the plaintiff's proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury's award of inadequate damages constituted a compromise verdict).  This case is novel.  Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury's intent.  We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly "get" comparative negligence.  It is not "misconduct" and does not call for a Schwartz hearing.

            Appellant next argues that in light of Albrecht's letter indicating that the jury made a mistake in apportioning damages, its due process rights to a fair trial were violated.  Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b),[3] the letter was inadmissible for
purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV.  Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding.  Thus, appellant contends that the district court's ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial. 

            The Minnesota Supreme Court set forth the rational for the exclusion of juror testimony about a verdict or the deliberation process.  See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000).  In Pederson, the supreme court explained:  "The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts."  Id.  The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict.  Id.  These are legitimate public policy concerns that support Minn. R. Evid. 606(b).  The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party's right to a fair trial.  In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict.  Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory. 

II.

            Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable.  Specifically, appellant points out that:  (1) the jury awarded Linda Timmer $3,000,000 in future pain and suffering, but only $150,000 in past pain and suffering; and (2) Linda Timmer's award of $150,000 for past pain and suffering is the same as Jere Timmer's past loss of consortium.  Appellant asserts that the only logical explanation for the jury's irrational damages awards is that the jury carefully attempted to engineer respondents' net recovery, which constitutes misconduct.

            Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive.  Minn. R. Civ. P. 59.01.  The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  An appellate court will uphold 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).

            The district court did take note of the difference between future and past pain and granted appellant's motion for a new trial on the issue of future pain and suffering if respondents declined the court's remittitur reducing that portion of the verdict from $3,000,000 to $1,650,000.  However, respondents accepted the court's remittitur, and that benefited appellants in the amount of $1,350,000.  As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law.  Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.   

III.

            Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger's expert testimony.[4]  The decision to admit expert opinion testimony is within the broad discretion of the district court.  Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977).  To obtain a new trial based on evidentiary error, a claimant must show not
only that the ruling was erroneous, but also that it resulted in prejudice.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

            Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard.  See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000).[5]  Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied.  Id. at 814.  But if the expert's opinions do not relate to "novel scientific methods," a Frye-Mack analysis is not necessary.  See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff'd 669 N.W.2d 878 (Minn. 2003).

            Based on the scope of Gauger's testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant.  An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory.  Gauger's expert opinion testimony did not constitute "novel scientific testimony" and a complete Frye/Mack analysis was not necessary. 

            Although a Frye/Mack analysis was not necessary to be admissible, Gauger's testimony must at least meet the requirements of Minn. R. Evid. 702.  This rule provides "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."  Minn. R. Evid. 702. 

            Appellant contends that the district court abused its discretion by admitting Gauger's testimony, claiming Gauger was not qualified to be an expert witness.  We affirm the district court.  The district court found that:  (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America.  The record reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use.  The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology.  Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning.  We find there was proper foundation for Gauger's expert opinions, and the district court properly admitted his testimony. 

IV.

            Appellant argues that it is entitled to a new trial because the district court failed to grant appellant's motion for a continuance after respondents' late disclosure of Gauger's opinion testimony.  When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial.  Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

            The record shows that, four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe.  In denying appellant's motion for a new trial on the basis of the district court's refusal to grant a continuance, the district court stated that "the late or new disclosures regarding Mr. Gauger's testimony were really nothing more that a re-disclosure of what had previously been disclosed."  The court further noted that:

            Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope.  This opinion did not change.  The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard. 

 

            In addressing appellant's claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:

the fact of the matter is that [appellant's] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for the zip line to function properly.  He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line.  If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument.  However, that is clearly not the situation at hand.  Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson.  [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area.  No inquiry was made.  [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.

 

            The record supports the district court's decision.  We conclude the district court properly denied appellant's motion for a continuance. 

V.

            As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur.  Respondents argue that the district court abused its discretion by granting a conditional remittitur of the damages awarded for future pain and suffering.  The district court did reduce the amount of recoverable damages by approximately $1,350,000.  Respondents argue that reduction was uncalled for in light of the medical testimony.

            Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur.  Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984).  When a district court has examined the jury's verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion.  Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).

            In ordering the conditional remittitur, the district court explained that:

The jury awarded $150,000 for past pain and suffering.  Approximately 2.7 years had transpired from the date of the injury to the date of trial.  Therefore, the $150,000 award equates to $55,555.56 per year for her past pain and suffering.  On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy.  The award of $3,000,000 for future pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $103,448.28.

 

The district court addressed all the of the doctors' expert testimony on future pain and suffering, and concluded that "although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration.  Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.

            In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident.  Respondents present a good argument.  The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice.  But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary decision within the purview of the district judge's examination and weighing of the evidence.  We conclude the district court's conditional remittitur was reasoned and supported by the record.      

            Affirmed.

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

[2] See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).

[3] Minn. R. Evid. 606(b) states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict.  Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

[4] See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); Kumho Tire Co. v. Charmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999).

[5] The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant's reliance on the Daubert is misguided.  615 N.W.2d at 814-15.