Summary
finding no error to allow physical therapist to testify regarding causation where there was evidence he possessed the requisite qualifications and his opinion did not substantially influence the jury's verdict given that plaintiff's treating physician and chiropractor rendered similar opinions
Summary of this case from Nelson v. TaylorOpinion
No. C0-95-1914
Filed May 14, 1996.
Appeal from the District Court, Washington County, File No. C8-94-3296.
Robert J. Appert, Arlo H. Vande Vegte, (for Respondents)
Eric J. Magnuson, Michael J. McGuire, (for Appellants)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Amundson, Judge.
Unpublished Opinion
Appellants argue that they are entitled to a new trial on the issue of damages because: (1) the trial court improperly allowed a physical therapist to interpret medical reports and to render medical opinions regarding causation and future harm; (2) respondents' counsel made a "golden rule argument" in closing argument; (3) respondents' counsel referred to insurance in closing argument; and (4) the jury's award of damages was due to "passion or prejudice." We affirm.
Facts
On November 16, 1988, appellant Christopher Amon and 27-year-old respondent Donna Ehlers were involved in an automobile accident. Respondents sued Christopher and Robert Amon. The trial court bifurcated the trial. In the first phase, the parties tried the negligence and damages issues. The jury found Christopher Amon 100% at fault and awarded respondents $218,272 in damages, broken down as follows: (1) past medical expenses — $9,772; (2) future medical expenses — $21,500; (3) past pain, disability, and emotional distress — $15,000; (4) future pain, disability, emotional distress, and loss of earning capacity — $172,000. Appellants moved for JNOV, a new trial, and remittitur. The trial court denied these motions. Appellants tried to appeal after the first phase, but this court dismissed the appeal as premature. In the second phase of the trial, the parties tried the issue of ownership of the car. The jury determined that both Robert and Christopher Amon owned the car. Neither party filed posttrial motions after the second phase. This appeal followed.
Decision
Physical Therapist's Testimony
Appellants argue that the trial court erred in allowing Michael Ripley, Ehlers' treating physical therapist, to testify: (1) regarding his "interpretation" of medical reports (x-ray and MRI scan); (2) that Ehlers' injuries were caused by the accident; (3) whether subsequent injuries were the cause of her current condition; and (4) whether her condition would worsen in the future. Appellants brought a motion in limine and objected at trial.
The trial court's determination that a "witness possesses the necessary special knowledge, skill, experience, or training to be permitted to testify as an expert" will not be reversed unless appellants show that "there is absolutely no evidence that the witness possessed the requisite qualifications of an expert" and that the erroneous admission of the expert testimony "substantially influenced the verdict returned to the prejudice of the objector." Tayam v. Executive Aero, Inc., 283 Minn. 48, 52-53, 166 N.W.2d 584, 587 (1969).
Appellants cite no cases that hold that physical therapists may not testify on such issues. Neither do appellants point to any testimony in this case indicating that the physical therapist did not have the "knowledge, skill, experience, training, or education" to testify on such issues. See Minn. R. Evid. 702 (witness may be qualified as an expert "by knowledge, skill, experience, training, or education").
Ripley had a B.S. in Physical Therapy. For this degree, he took courses in anatomy, pathology, pathophysiology, biomechanics, and "numerous other therapeutic treatment techniques * * *." He had advanced training in treatment and evaluation techniques and had been a licensed physical therapist for sixteen years. He taught others and also published articles relating to his work. He testified that he had seen "thousands" of patients with injuries similar to Ehlers' injuries.
Appellants argue that Minnesota law limits what physical therapists are allowed to do. See Minn. Stat. § 148.76 (1994). These statutory limitations, however, are not relevant to the physical therapist's testimony in this case.
Thus, because of Ripley's education and experience, it cannot be said that there was "absolutely no evidence" he possessed the requisite qualifications.
Appellants concede that "Respondents' doctor and chiropractor rendered similar opinions * * *." For this reason alone, it is unlikely that Ripley's testimony "substantially influenced" the verdict. Ripley gave a higher figure for future physical therapy costs than either Dr. Ormiston or Dr. Nelson — $1,800 per year versus $500 to $1,000 per year. That testimony, however, goes only to the $21,500 in future medical expenses the jury awarded. Even if the jury were influenced by Ripley's estimate of future medical expenses, they obviously did not accept completely his testimony regarding future physical therapy costs. In addition, future medical expenses account for less than 10% of the jury's total award. Thus, we conclude that Ripley's testimony did not "substantially influence" the jury's verdict.
Because there is evidence that Ripley was qualified to testify regarding Ehlers' injuries, and because Ripley's testimony did not substantially influence the jury's verdict, the trial court did not err in admitting his testimony.
"Golden Rule Argument" in Closing Argument
Appellants argue that respondents' counsel improperly made a "Golden Rule argument" in closing argument, and thus appellants are entitled to a new trial. Respondents' attorney told the jury that to value Ehlers' damages "you must look into her heart *** and into her soul." He said further:
You have to walk a mile in Donna's moccasins. You have to feel the pain, and you have to live through what she's living through. Then go ahead and evaluate what it's going to mean to her. * * * You need to get inside of her life. * * * You really need to understand her problems.
Respondents' attorney also told the jury "Now, this case is not what it would mean to you. It's very important to separate yourself from this case." Appellants' counsel objected after respondents' counsel finished his statement and asked for a curative instruction, but the trial court refused.
The decision to grant a new trial for misconduct of counsel rests within the discretion of the trial court and that decision will not be reversed absent a clear abuse of that discretion. Colgan v. Raymond, 275 Minn. 219, 226, 146 N.W.2d 530, 535 (1966) ("Golden Rule" argument).
In a very similar case, this court held that a new trial was not justified. See Mueller v. Sigmond, 486 N.W.2d 841 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). In Mueller, during closing argument, plaintiff's attorney said:
Think, for example, what an injury like this would mean to Michael Jordan * * * or yourself * * * or anyone else that you know, how it would take them out of the game of life that they're in.
Id. at 844. Defendant's attorney objected and asked for a curative instruction but the trial court refused. Id. Although the trial court refused a curative instruction, it instructed the jury to "'do your duty as jurors regardless of any personal likes or dislikes, opinions, prejudices or sympathy."' Id. This court held that this instruction "was sufficient to remove any possible prejudice." Id.
The trial court in this case gave the following jury instruction: "First, you must not permit sympathy, prejudice, or emotion to influence your verdict." This instruction is basically the same cautionary instruction that in Mueller this court considered "sufficient to remove any possible prejudice." Thus, under Mueller, the trial court here did not clearly abuse its discretion by denying a new trial.
Reference to Insurance in Closing Argument
Appellants argue that respondents' counsel improperly referred to insurance in closing argument. Appellants base this argument on the following comments:
Now we need to look at the damages. What are the damages in this case? We'll go right down the line of past medical expenses. Are they reasonably necessary? You're not to consider insurance when factoring this in, the Judge worries about that later, that's not an issue in this case.
Appellants' counsel objected after respondents' counsel finished his statement and asked for a curative instruction, but the trial court refused.
We conclude that no new trial is warranted by virtue of this statement. First, respondents' counsel referred to respondents' insurance for past medical bills, not appellants' liability insurance. If the comment were prejudicial, presumably the prejudice would show up in the jury's award of past medical bills.
See Odegard v. Connolly, 211 Minn. 342, 345-46, 1 N.W.2d 137, 139 (1941) ("So long as the insurance is not featured or made the basis * * * for an appeal to increase or decrease the damages, the information would seem to be without prejudice."); Martin v. Schiska, 183 Minn. 256, 264, 236 N.W. 312, 315 (1931) ("Where it is apparent that the jury's information regarding the existence of insurance is not made use of to inflame or prejudice the jury in favor of either of the nominal or actual parties to the litigation, the fact of such information, or the manner in which that information was imparted in open court, should not call for a new trial.").
However, the award for past medical bills was $9,772, which amounts to only 4.48% of the jury's total award. Second, it was a brief reference — one sentence out of a closing argument by respondents' counsel covering 45 transcript pages. Cf. Anderson v. Enfield, 244 Minn. 474, 481, 70 N.W.2d 409, 414 (1955) (distinguishing cases "where insurance coverage was repeatedly emphasized and featured in the questioning of witnesses or in the closing argument of counsel."). Third, in the cases that appellants cite in which the court reversed on the grounds of mention of insurance, liability insurance was mentioned, and the behavior was more egregious than in this case. See Purdes v. Merrill, 268 Minn. 129, 128 N.W.2d 164 (1964) (issue of liability was doubtful, and plaintiff's counsel said $40,000 award would not "personally" hurt defendant, insinuating not only liability insurance coverage, but also the limits of liability); Jeddeloh v. Hockenhull, 219 Minn. 541, 18 N.W.2d 582 (1945) (repeated references to insurance, including asking witness whether he had automobile liability insurance).
"Passion or Prejudice"
Appellants argue that these "irregularities" — the physical therapist's testimony, and the "golden rule" and insurance comments respondents' counsel made in closing arguments — caused the jury to base its verdict on passion or prejudice.
The trial court's denial of a new trial motion based on excessive damages will be upheld unless there has been a clear abuse of discretion. Young v. Hansen, 296 Minn. 430, 435, 209 N.W.2d 392, 395 (1973).
Appellants note that the jury awarded respondents an average of $2,500 per year for past general damages, but awarded an average of $4,000 per year for future general damages. Appellants assert that the only difference between the past damages and future damages is that the future damages included damages for loss of earning capacity. Thus, appellants conclude, the extra $1,500 per year the jury awarded for future damages ($4,000- $2,500) must be attributable to damages for loss of earning capacity.
Because the evidence regarding loss of earning capacity is weak, appellants claim, the extra $1,500 per year must have been based on passion and prejudice rather than evidence. We disagree.
First, as respondents correctly note, the special verdict form did not list future loss of earning capacity damages separately from future pain, disability, and emotional distress damages. Thus, it is not possible to know how much (if any) of the $172,000 award the jury based on loss of earning capacity. Any figure would be pure speculation. Second, it is not at all clear that the jury should have awarded the same per-year damages for past pain, disability, and emotional distress as they would for future pain, disability, and emotional distress. After all, Dr. Nelson testified that the "marked moderate degenerative changes in her cervical spine * * * will only worsen in time" and that work would get more difficult for her as she grows older. Thus, it would be reasonable for the jury to award a larger per-year amount for future pain and emotional distress because the experts said she would have more pain and emotional distress in the future. Third, the jury awarded considerably less than the maximum respondents asked for. Respondents' counsel suggested that the jury award $3,000 to $6,000 per year times 43 years (a range of $129,000 to $258,000). He stated "I argue strongly that it's on the upper end of the range." As respondents correctly point out, the jury awarded $21,500 less than the midpoint of respondents' suggested range (the midpoint between $129,000 and $258,000 is $193,500 — the jury awarded $172,000). Thus, based on the jury's per-year award of damages, we cannot conclude that the verdict was the product of passion or prejudice.
Finally, the cumulative effect of the alleged errors does not give rise to a clear abuse of discretion that would warrant a new trial.