Colleen Jacobson, Appellant, vs. Cheryl Ann Allen, Respondent, Abdon Alden Peterson, Respondent.

This opinion will be unpublished and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

A04-098

 

Colleen Jacobson,

Appellant,

 

vs.

 

Cheryl Ann Allen,

Respondent,

 

Abdon Alden Peterson,

Respondent.

 

Filed October 5, 2004

Affirmed Hudson, Judge

 

Stearns County District Court

File No. CX-02-147

 

Michael M. Murphy, Jr., Murphy Law Offices, 30 Seventh Avenue North, P.O. Box 866, St. Cloud, Minnesota 56302-0866 (for appellant)

 

Michael J. Ford, Krista L. Durrwachter, Quinlivan & Hughes, P.A., Suite 600, 400 South First Street, P.O. Box 1008, St. Cloud, Minnesota 56302-1008 (for respondent Allen)

 

Gordon H. Hansmeier, Troy A. Poetz, Rajkowski Hansmeier Ltd., 11 North Seventh Avenue, P.O. Box 1433, St. Cloud, Minnesota 56302 (for respondent Peterson)

 

            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant argues that she is entitled to a new trial because of alleged errors during voir dire.  Appellant also contends that the trial court abused its discretion by: (1) excluding certain portions of expert testimony; (2) failing to instruct the jury on negligence per se; and (3) instructing the jury in accordance with CIVJIG 91.40.  We affirm.

FACTS

On September 25, 1995, respondent Abdon Peterson was traveling eastbound on Highway 23 in St. Cloud, Minnesota.  Respondent Cheryl Allen entered the eastbound traffic from Division Street and, according to Peterson's testimony, Allen cut through traffic in order to get into the left turn lane for Seventh Avenue.  About this time, appellant Colleen Jacobson came to a stop on Division Street in the left turn lane for Seventh Avenue.  Allen was located directly behind Jacobson's car and testified that the front end of her car was in the turn lane and the tail end remained in the eastbound lane for Highway 23.  Peterson and his wife, who was a passenger in his car, both testified that Allen's stop was sudden and a collision could not be avoided.  The front end of Peterson's vehicle struck the rear end of Allen's vehicle, which in turn struck Jacobson's vehicle.  Peterson estimated that his speed at the time of the accident was approximately 35 miles per hour.

            After the collision, Jacobson got out of her vehicle and immediately complained of neck pain.  Jacobson was taken to the St. Cloud Hospital, and her hospital records revealed that her vital signs were normal and she was in no acute distress.  X-rays were taken of Jacobson's neck and the record states that "Three view C-spine is unremarkable" and "Patient was well at the time of discharge.  She continues to have no neurologic symptoms or any kind of paresthesias or other problems."  Jacobson was diagnosed with neck strain, prescribed ibuprofen and flexeril, and discharged from the hospital that day.

Following the accident, Jacobson went to see Dr. Patrick Herson, her family doctor.  Dr. Herson referred Jacobson to physical therapy where she attended five sessions.  On November 10, 1995, Dr. Herson released Jacobson back to work with no restrictions.  Dr. Herson's December 27, 1995, records state "Cervical strain, resolved.  Full ROM of her neck.  No discomfort or pain."  On October 16, 1996, Jacobson's physical therapist noted that Jacobson "reports 75% improvement in overall sx of stiffness and discomfort."  Jacobson did not receive any more physical therapy treatment until she was involved in another accident four years later.

            On October 30, 1999, Jacobson was involved in a more severe accident, which totaled her car.  Jacobson went to the hospital complaining, "it just hurts everywhere."  She was diagnosed with "multiple body aches after motor vehicle accident."  Jacobson underwent two MRIs, one of which revealed a disc "herniation at C6-C7."  On August 24, 2001, Dr. Jeffrey Gerdes, a neurosurgeon, performed surgery on Jacobson.

            Jacobson filed two separate lawsuits.  On June 27, 2003, the trial court, at a pre-trial settlement conference, denied appellant's motion to consolidate the two lawsuits, and the case was tried to a jury in August 2003, with only the 1995 accident at issue.  Jacobson moved the district court to instruct the jury on aggravation of a pre-existing injury using CIVJIG 91.40.  The district court denied the motion and instead instructed the jury using CIVJIG 163.  The jury found that Peterson was not negligent.  The jury also found that Allen was negligent, but that Jacobson was not permanently injured as a result of the accident and was not disabled for 60 days.  The jury awarded Jacobson damages in the amount of $2,600 for past medical, $500 for past pain and suffering, and $0 for future medical and future pain and suffering. 

Jacobson moved for a new trial, alleging errors regarding evidentiary rulings, jury instructions, and voir dire.  The trial court denied Jacobson's motion.  This appeal follows.

D E C I S I O N

"On appeal from a denial of a motion for a new trial, the verdict must stand unless it 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).

Voir Dire

 

Jacobson argues that defense counsel committed misconduct by telling the jury that the lawyers were entitled to exercise peremptory challenges to remove jurors.  Jacobson claims this gave the jury the impression that their answers were not important, because the attorneys could "knock off" panel members they did not want.  Jacobson also argues that a potential juror should have been excused for cause, which would have allowed Jacobson to use her peremptory strike on another potential juror.  Finally, Jacobson argues that the trial court improperly removed another juror for cause. 

            Jacobson cites no authority for her claim that it is improper for counsel to inform prospective jurors of the procedures of the court, including peremptory strike procedures.  Moreover, in denying Jacobson's motion for a new trial, the trial court noted that defense counsel's explanation regarding the peremptory strike procedures "was accurate and not an error."  We see no error in the trial court's actions or those of defense counsel.

Likewise, we see no error in the trial court's refusal to remove the first prospective juror for cause.  The trial court should be given broad discretion in determining whether to remove a prospective juror for cause.  State v. Graham, 371 N.W.2d 204, 206 (Minn. 1985).  Here, the juror indicated that he had worked for his father's insurance business for over 25 years, and that it would be difficult for him to be fair as his father's year-end bonus as an auto insurance salesperson was calculated on the basis of losses-and-claims ratios.  Ultimately, however, following further questioning by plaintiff's counsel and the court, the court determined that the juror was rehabilitated and could be fair.  We conclude that the trial court did not abuse its discretion by not excusing the prospective juror.

With respect to the second prospective juror, Jacobson did not object when the trial court excused this juror for cause.  In general, an appellant forfeits her right to have an alleged error reviewed on appeal if she has failed to object to the error, but this court has discretion to review any issue if it is plain error.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  Here, the trial court acted within its discretion by excusing this prospective juror, who, as the trial court noted, had a roommate who suffered a neck injury in an auto accident, and "stated without reservation that she could not be fair."  Therefore, there was no plain error and Jacobson has forfeited her right to have the alleged error reviewed.

Excluded Expert Testimony

 

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court's discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."  Id. at 46 (quotation omitted).

            Jacobson argues that the trial court abused its discretion by excluding portions of testimony given by Jacobson's treating neurosurgeon, Dr. Jeffrey Gerdes.  Jacobson argues that Dr. Gerdes' entire deposition testimony was especially relevant because it was Dr. Gerdes' opinion that Jacobson sustained permanent injuries as a result of both the 1995 and 1999 accidents, and that he could not apportion her damages between the two accidents.  Moreover, Jacobson notes that in the excluded testimony, Dr. Gerdes identified a medical bill from Central Minnesota Neurosciences in the amount of $9,101, and a surgery bill from St. Cloud Hospital in the amount of $20,270.03.  Dr. Gerdes testified that the bills reflected necessary treatment and care for Jacobson as a result of both the 1995 and 1999 accidents.

            But the trial court excluded this testimony precisely because Dr. Gerdes was not clear about which accident caused the injuries in question; the trial only concerned the 1995 accident.  The trial court thus properly concluded that any comments regarding the 1999 accident were irrelevant.  Furthermore, the jury was allowed to hear other, virtually identical, portions of Dr. Gerdes' testimony where he referred to both accidents and the permanency of Jacobson's injuries.  Specifically, the jury heard the following excerpt from Dr. Gerdes' deposition testimony:

Q:        Are you or are you not certain, then, that both the 9-25-95 accident and the 10-30-1999 accident caused the injuries that necessitated the surgery?

 

A:        Yes.

 

Defense Counsel:      Objection.  Irrelevant.

 

A:        Yes.

 

The trial court overruled this objection and the jury was allowed to hear this portion of Dr. Gerdes' testimony.  The jury also heard the following exchange from Dr. Gerdes' deposition:

Q:        And your common sense judgment in this case after reviewing all the records and after talking to the patient and having the other records available for review was that Colleen Jacobson Riedeman sustained permanent injuries as a result of both the 19 - - the September 25, 1995 accident and the October 30, 1999 accident?

 

A:        That's correct.

 

Because the jury heard both of these statements by Dr. Gerdes, combined with the fact that the jury was allowed to see all of Jacobson's medical bills, including Gerdes' surgery bill, any prejudice in excluding other, similar portions of Dr. Gerdes' testimony was significantly minimized.  Accordingly, the trial court acted well within its discretion by excluding portions of Dr. Gerdes' testimony. 

Negligence Per Se Instruction

 

The violation of a traffic regulation is prima facie evidence of negligence.  Minn. Stat. § 169.96(b) (2002).  Once the plaintiff has established a traffic violation, the burden shifts to the violator to present evidence of an excuse or justification for the violation.  Marshall v. Galvez, 480 N.W.2d 358, 361 (Minn. App. 1992).  It is only when the violator offers nothing that could serve as an excuse or a justification that "the court should hold the violator negligent as a matter of law."  Riley v. Lake, 295 Minn. 43, 53, 203 N.W.2d 331, 338 (1972).

Jacobson argues that the trial court abused its discretion by failing to instruct the jury that Peterson was negligent as a matter of law.  Jacobson argues that because Peterson admitted in his deposition that he was driving over the speed limit, a negligence per se instruction should have been given to the jury.

Here, Peterson admitted in his deposition that he was speeding, and he offered no excuse or justification for violating the traffic regulation.  Because Peterson offered no excuse or justification for violating the traffic regulation, the trial court should have found Peterson negligent as a matter of law.  Therefore, the trial court erred by not instructing the jury that Peterson was negligent per se.  However, we hold that the trial court's error was harmless, because Jacobson failed to meet the statutory tort threshold.

A plaintiff with a vehicle-related injury must plead and prove certain additional elements in order to recover damages for non-economic losses.  Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983); Minn. Stat. § 65B.51, subds. 1, 3 (2002).  Here, in order to recover damages for non-economic losses, Jacobson had to prove: (1) her medical expenses from the 1995 accident were in excess of $4,000; or (2) she sustained a permanent injury or a disability for more than 60 days as a result of the 1995 accident.  See Minn. Stat. § 65B.51, subd. 3. 

The jury's special verdict form, which tracks the statutory requirements, demonstrates that Jacobson did not meet the statutory tort threshold.  Here, the jury found Allen was negligent and her negligence was a direct cause of the accident.  However, the jury also found that Jacobson did not sustain medical expenses in excess of $4,000, sustain a permanent injury, or sustain a disability for 60 days or more as a result of the accident.  It was Jacobson's burden to prove one of these elements.  Therefore, we conclude that in denying Jacobson's new-trial motion, the trial court correctly noted that "the Jury's finding of no liability obviate[s] this error [of not giving a negligence per se instruction]."

CIVJIG 91.40 Jury Instruction

 

Trial courts are allowed considerable latitude in selecting the language in jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  We will not reverse a trial court's decision unless the instructions constituted an abuse of discretion.  Id.  Jury instructions need only convey to the jury a "clear and correct understanding of the law."  Cameron v. Evans, 241 Minn. 200, 209, 62 N.W.2d 793, 798 (1954).  To determine whether an instruction is erroneous, we read the instructions as a whole in light of the evidence of the case.  Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

Jacobson argues that the trial court abused its discretion in refusing to instruct the jury in accordance with 4A Minnesota Practice, CIVJIG 91.40 (Supp. 2004).  Specifically, Jacobson contends that because she had pre-existing medical conditions, CIVJIG 91.40 should have been given.  Civil Jury Instruction Guide 91.40 on aggravation of a pre-existing condition provides as follows:

There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident.

 

(Defendant) is liable only for any damages that you find to be directly caused by the accident.

 

If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all of the damages.

 

(Emphasis added.)

In accordance with 4 Minnesota Practice,CIVJIG 163 (1986), the predecessor to CIVJIG 91.40, the district court instructed the jury as follows:

            A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the  particular results would not have followed if the injured person had not been subject to such pre-existing condition.  Damages are limited, however, to those results that are over and above those which normally followed from the pre-existing condition, had there been no accident.

 

In refusing to give CIVJIG 91.40, the trial court relied on Rowe v. Munye, 674 N.W.2d 761, 762-63 (Minn. App. 2004).  Rowe involved an action for personal injuries sustained in a motor-vehicle accident.  The plaintiff offered evidence to the jury of a new injury as well as an aggravation of a pre-existing condition.  Id. at 763.  Despite the defendant's objection, the trial court instructed the jury, using CIVJIG 91.40.  Id. at 764.  The jury returned a verdict for the plaintiff, and the defendant moved for a new trial, arguing that CIVJIG 91.40 misstates Minnesota law.  Id.  Defendant's new-trial motion was denied, and he appealed.  Id.  This court concluded

CIVJIG 91.40 impermissibly imposes on an at-fault defendant the burden of proving that he did not cause the portion of plaintiff's damages attributable to a pre-existing disability or condition.  We find no basis for this conclusion in Minnesota law.  The plaintiff in a negligence action bears the burden of proving the link between the defendant's action and the injuries suffered.

 

Id.at 767-68.  This court also noted

a jury instruction requiring the apportionment of damages based on the defendant's act, without recognition of the plaintiff's burden of proof on causation, wrongfully imposes on the defendant the burden of showing that he was not responsible for damages flowing from the plaintiff's pre-existing condition, which he had no part in causing.  This allocation of the burden of proof would conflict with the general allocation principle that the party with the greatest access to the relevant evidence should bear the burden.

 

Id. at 768.

Based on Rowe, the trial court did not abuse its discretion by refusing to instruct the jury in accordance with CIVJIG 91.40.[1]  Our decision is supported by the fact that Jacobson's contention is that Allen and Peterson should be liable for the aggravation of Jacobson's pre-existing injuries, especially in light of Dr. Gerdes' testimony that he could not apportion Jacobson's harm between the 1995 and 1999 accidents.  But the more serious 1999 accident was not at issue in this trial.  The trial court had already denied Jacobson's motion to consolidate the two lawsuits and had excluded portions of Dr. Gerdes' testimony relating to the 1999 accident so as not to mislead and confuse the jury.  Given that the focus of the trial was the 1995 accident, the jury instruction given as to aggravation of a pre-existing condition is consistent with the evidence presented at trial.  That evidence showed that, after the 1995 accident involving Allen and Peterson, Jacobson was diagnosed with neck strain, prescribed ibuprofen and flexeril, and discharged that same day.  Jacobson received physical therapy in late 1995; and by December 1995, her doctor's records indicated that she was in no discomfort or pain.  She received no further physical therapy until the 1999 accident, four years later.  Significantly, it was not until after the more serious 1999 accidentwhich did not involve Allen and Petersonthat Jacobson was diagnosed with a herniated disc, which necessitated later surgery.  Had the trial court instructed the jury pursuant to CIVJIG 91.40, Jacobson might well have recovered all of her damages even though she never carried her burden of proving the link between Allen and Peterson's actions in the 1995 accident and the injuries she suffered.  On this record, and in accordance with Rowe, the district court did not err by declining to instruct the jury in accordance with CIVJIG 91.40.

Affirmed.

[1] We are aware that the Minnesota Supreme Court accepted a petition for review in Rowe on April 28, 2004; but we decide to address this issue based on the law as it currently stands.