Opinion
No. C7-96-1886.
Filed July 8, 1997.
Appeal from the District Court, Nicollet County, File No. C395100173.
Nick A. Frentz, Frentz and Frentz, (for Appellant)
Michael S. Kreidler, Leo I. Brisbois, Stich, Angell, Kreidler, Brownson Ballou, P.A., (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
The trial court jury determined that appellant's damages included $8,435 for future medical expenses. The trial court granted judgment notwithstanding the verdict and eliminated damages for future medical expenses. Appellant disputes the trial court's determinations that she failed to show the reasonable need for future medical expenses and that there was an insufficient basis for the jury to reasonably calculate those damages. We affirm.
FACTS
Appellant injured her back in a motor vehicle accident in 1994. She began medical treatment for her injuries in August 1994 with an orthopedic surgeon. As part of her treatment, she was referred to a back-care center where she underwent 19 rehabilitation sessions ending on January 30, 1995. The record includes subjective complaints that appellant has continuing back problems, but presently shows no observable injury.
Appellant sued respondent in a negligence action, claiming past and future pain and suffering and past and future medical expenses. In addition to its designation of future medical expenses, the jury found damages of $5629.42 for past medical expenses, $6,000 for past pain, and $2435 for future pain.
DECISION
"The granting of a judgment notwithstanding a jury verdict is a pure question of law." Edgewater Motels, Inc. v. Gatzke , 277 N.W.2d 11, 14 (Minn. 1979). In reviewing the trial court's decision, this court applies the same standard as the trial court employed in ruling upon the jury verdict. Id. Judgment notwithstanding the verdict only will be granted "when the evidence is so overwhelming on one side that reasonable minds cannot differ as to the proper outcome." Lamb v. Jordan , 333 N.W.2d 852, 855 (Minn. 1983) (citation omitted). In considering this decision, the court "admits every inference reasonably tending to be drawn from the evidence" and "the credibility of the testimony for the adverse party." Seidl v. Trollhaugen , 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).
To recover future medical expenses, a plaintiff must prove that future medical treatments will be required and must furnish expert testimony on the cost for those services. Lind v. Slowinski , 450 N.W.2d 353, 358 (Minn.App. 1990) (citing Pietrzak v. Eggen , 295 N.W.2d 504, 507 (Minn. 1980)), review denied (Minn. Feb. 21, 1990). A plaintiff must prove the "reasonable certainty" of future medical expenses by a "fair preponderance of the evidence." Kwapien v. Starr , 400 N.W.2d 179, 184 (Minn.App. 1987).
The record shows that (a) appellant incurred medical expenses of $5,629.42 through January 30, 1995, 16 months before the trial in June 1996; (b) the jury determined that appellant was reasonably certain to incur $2,435 in future damages for pain, disability, disfigurement, embarrassment, or emotional distress; (c) appellant's orthopedist testified that he thought "there may be some times in the future where [appellant] will require some out-patient physical therapy, if she has ongoing problems with pain and discomfort"; (d) the orthopedist also testified that someone with appellant's condition would "have a higher tendency to require further back care in the future"; (e) a back-care center physician indicated that appellant may experience exacerbations of her pain problem; (f) in the event of greater pain, the physician recommends that appellant follow measures outlined in her discharge instructions, and if those measures prove inadequate, she is advised to call the center.
The trial court determined that this evidence was insufficient to give the jury anything other than speculation as a basis for an award for future medical expenses. This view is consistent with the record. Although the evidence indicates that appellant likely will experience future pain problems, it only indicates that there may be times when she will require medical treatment. Cf. Dornberg v. St. Paul City Ry. Co. , 253 Minn. 52, 57, 60, 91 N.W.2d 178, 183, 185 (1958) (allowing the issue of future medical expenses to go to the jury where expert testified that plaintiff "might" need future surgery, but expert added that plaintiff "would" require surgery and that sound medical opinion would recommend surgery as "necessary"); Mueller v. Sigmond , 486 N.W.2d 841, 844 (Minn.App. 1992) (affirming trial court's decision to allow future damages to go to the jury where expert doctor testified that it was "very likely" and "reasonably certain" that the plaintiff would need future arthroscopic surgery and "very possible" that plaintiff would need a future knee replacement), review denied (Minn. Aug. 27, 1992).
Appellant's orthopedist failed to offer any evidence to indicate whether future treatment is reasonably certain to be required. Similarly, the rehabilitation discharge report states only that appellant may experience some future problems and should then inquire about treatment services. Appellant failed to prove the reasonable certainty of future medical expenses by a fair preponderance of the evidence.
The trial court also concluded that there was an inadequate showing with respect to a basis for the jury to calculate future damages. See Lind , 450 N.W.2d at 358 (requiring that plaintiff prove both the necessity of future medical treatment and the amount of such damages by expert testimony). Appellant contends that future damages could have been determined by consideration of her past medical bills. In light of our determination that appellant failed to show adequately that future treatment would be reasonably certain, we decline to analyze this issue further.