1996-11-05

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C8-98-329

Duane Monette, et al.,

Appellants,

vs.

K.M. Clinch, M.D., et al.,

Respondents.

Filed August 18, 1998

 Reversed

Kalitowski, Judge

Hennepin County District Court

File No. 9614200

Stewart R. Perry, Shawn M. Perry, Shane C. Perry, Perry, Perry & Perry, 402 Towle Building, 330 Second Avenue South, Minneapolis, MN 55401 (for appellants)

Thomas H. Crouch, Robert M. Frazee, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

  U N P U B L I S H E D O P I N I O N

 KALITOWSKI, Judge

Appellants Duane and Colette Monette challenge the dismissal of their negligence action following the district court's grant of respondents' motion in limine excluding the testimony of appellants' expert witness. We reverse.

  D E C I S I O N

This is a medical malpractice case arising out of ulnar nerve injuries suffered by appellant Mr. Monette following surgery for prostate cancer. Appellants attempted to introduce the deposition testimony of an expert, Dr. Jeffries, that Mr. Monette's ulnar nerve injury was caused by the malpositioning of Mr. Monette's arm in surgery by the anesthesiologist. Respondents made a motion in limine to exclude this testimony. The district court granted the motion and dismissed appellants' case, finding that Dr. Jeffries' "opinions, conclusions and theories are not supported by medical science and thus cannot be submitted to the jury."

This court reviews evidentiary rulings for an abuse of discretion:

It has long been the law in this state that evidentiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court. * * * A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

 Benson v. Northern Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990) (citations omitted).

Appellants argue that this court should use a de novo standard of review to determine whether the district court erred. We disagree. The underlying evidentiary ruling is properly reviewed under the abuse of discretion standard, even though the result of the exclusion is dismissal of the case. See id. at 444 (applying the abuse of discretion standard to the review of the exclusion of plaintiff's expert when plaintiff's claims were dismissed on summary judgment); Reinhardt v. Colton, 337 N.W.2d 88, 93, 96 (Minn. 1983) (applying abuse of discretion standard to the review of the exclusion of plaintiff's expert when plaintiff's claims were dismissed on directed verdict). This conclusion is also bolstered by the Supreme Court's explicit rejection of a stricter standard of review when the exclusion of expert testimony results in dismissal:

We likewise reject [the] argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subjected to a more searching standard of review. * * * [T]he question of admissibility of expert testimony * * * is reviewable under the abuse of discretion standard.

 General Elec. Co. v. Joiner, 118 S. Ct. 512, 517 (1997).

All relevant evidence is admissible unless exclusion is mandated by other controlling law. Minn. R. Evid. 402; Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 833 (Minn. App. 1995).

 If scientific * * * 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. The court considers "both the degree of the witness's scientific knowledge and the extent of the witness's practical experience with the subject of the offered opinion" when determining whether an expert witness is competent to provide a medical opinion. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998). "[E]xperts must base their opinions on facts sufficient to form an adequate foundation for the opinion and should not be allowed to speculate." Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987).

The ultimate question of admissibility is whether the expert testimony will assist the jury in resolving the factual questions presented. The trial court may take into account whether the probative value of the evidence, even if helpful and relevant, is substantially outweighed by the danger of unfair prejudice or of misleading the jury.

 State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995) (discussing the application of Minnesota Rules of Evidence 403 to the admission of expert testimony) (citations omitted).

We agree with the district court that Dr. Jeffries is competent to testify as an expert concerning anesthesiology. The record shows that Dr. Jeffries is board-certified and has been practicing anesthesiology for 43 years and, since 1964, he has taught residents at Georgetown University Hospital how to perform anesthesia. At issue here is not Dr. Jeffries' qualifications, but rather whether the district court abused its discretion in concluding that Dr. Jeffries' opinion has no foundation in medical science.

Appellants contend the district court impermissibly weighed the evidence and abused its discretion by: (1) discrediting Dr. Jeffries' opinion by relying on articles submitted by respondents that were not subject to cross-examination or other evidentiary protections; and (2) mischaracterizing Dr. Jeffries' opinion. We agree.

The district court did not apply similar standards when considering respondents' evidence as it did when examining the testimony of appellants' expert. The authors of the articles submitted by respondents: (1) did not consider the particular facts of this case; their articles were general; (2) were not subject to cross-examination, as was Dr. Jeffries; and (3) were not qualified as experts, as was Dr. Jeffries. Further, the district court did not address the specific concerns raised by Dr. Jeffries regarding the validity of the articles relied on by the district court.

We agree with appellants' contention that the district court oversimplified Dr. Jeffries' opinion. Dr. Jeffries did not merely state that all ulnar nerve injuries are the result of negligent malpositioning. Rather, Dr. Jeffries' testimony indicates he reviewed the facts in this case and determined that in his opinion, malpositioning was the cause of Mr. Monette's ulnar nerve injury. Specifically, Dr. Jeffries: (1) reviewed the MRI report, concluding that Mr. Monette did not have anything in his neck that would have accounted for the ulnar nerve injury; and (2) determined that Mr. Monette's previous stiffness in his fingers was not a sign of ulnar nerve injury.

The authors of the articles relied on by the district court did not apply their theories to Mr. Monette's injury. In addition, the articles did not establish that Mr. Monette's injury could not have been caused by malpositioning. Rather, the articles merely recognize, and disagree with, the contention that all ulnar nerve injuries are caused by malpositioning. We conclude the district court abused its discretion by weighing the evidence and determining the validity of a qualified witness's opinion. This constituted an improper invasion of the province of the jury.

Because we reverse the district court's decision to exclude the testimony of appellant's expert, we need not address appellants' argument that the district court improperly denied their motion for leave to file a motion for reconsideration.

Reversed.