Foust v. McFarland, No. A04-760

CourtCourt of Appeals of Minnesota
Citation698 N.W.2d 24
Docket Number No. A04-760, No. A04-1956.
PartiesJeffrey L. FOUST, et al., Respondents, v. John R. McFARLAND, et al., Appellants.
Decision Date14 June 2005

698 N.W.2d 24

Jeffrey L. FOUST, et al., Respondents,
John R. McFARLAND, et al., Appellants

Nos. A04-760, A04-1956.

Court of Appeals of Minnesota.

June 14, 2005.

Review Filed August 16, 2005.

698 N.W.2d 26
Ronald I. Meshbesher, John P. Sheehy, Michael C. Snyder, Pamela J. Spaulding, Meshbesher & Spence, Ltd., Minneapolis, MN, for respondents

Paul V. Esposito (pro hac vice), Clausen Miller P.C., Chicago, IL; and Diane B. Bratvold, Rider Bennett, LLP; and Brian N. Johnson, Sheila T. Kerwin, Amanda M. Cialkowski, Halleland Lewis Nilan Sipkins & Johnson, P.A., Minneapolis, MN, for appellants.

Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and PORITSKY, Judge.1



Appellants appeal from the denial of their motion for judgment notwithstanding the verdict (JNOV), new trial, or remittitur, alleging that (1) the evidence does not support the jury's determination and is contrary to law, (2) certain evidence should not have been excluded, (3) respondents' intentional destruction of evidence should result in dismissal of their claims. Appellants also appeal from the partial denial of their motion for collateral source setoff. Respondents argue that the district court properly applied the law determining the setoff. We affirm on all issues.


The parties

This appeal arises from a $11,310,464 jury verdict. Appellants are driver John

698 N.W.2d 27
R. McFarland, his employer USF Holland, Inc., and its parent company U.S. Freightways, Inc. Respondents are Jeffrey and Linda Foust, (hereinafter Foust and L. Foust) who reside with their three children in Minnetonka

The collision

On May 15, 1998, Foust suffered brain and other injuries as a result of a collision with appellants' truck driven by McFarland. The collision occurred at the intersection of U.S. Highway 12 and County Road 6 in Orono, Minnesota. Traffic lights controlled the intersection, but a severe storm that afternoon had disabled them. A number of vehicle drivers were treating the intersection as a four-way stop because of the disabled traffic lights. Foust was among these drivers, and after waiting his turn, proceeded into the intersection. McFarland, who was driving a semi-truck at a speed of 55 mph, struck the vehicle driven by J. Foust in the intersection.

The injuries

Both sides presented extensive expert testimony regarding the extent of Foust's brain injuries. According to respondents' experts, Foust suffered injuries, including a diagnosis of traumatic brain injury (TBI). Respondents' experts testified that Foust continues to suffer from frontal lobe injury, exhibited by clear deficits in attention, concentration, processing speed, learning memory and executive functioning. This injury resulted in significant impairment to Foust's personal and social competencies.

Dr. Morgan, a neurology expert and witness for the respondents, testified that though Foust suffers from frontal lobe injury, he had a strong performance on "fund of information and vocabulary," explaining:

we know that brain injuries more likely affect some things more than others. And that's why we give a broad range of tests, not just those that are potentially sensitive to traumatic brain injury. And we look for separation. What you referred to were tests of fund of knowledge, fund of information, and vocabulary. And on those sorts of tests, he's at the 91st percentile compared to others of comparable age. These are tests that we know aren't likely to be affected by head trauma. They are very overlearned skills. Unless you've got some pretty massive structural abnormalities or have been in a coma for months and are tested closer to the time of the injury, those aren't likely to be much affected. So those tend to give you a sense of where this person is likely to have functioned before an injury because those stay up. They aren't affected. So what these would suggest is that this is somebody who before the injury was likely to have been well above average, possibly even within what we call the superior range.
The brain is specialized and there are certain aspects of function that are more likely to be affected by others. And this more conversational, language skills, body of knowledge, the kinds of things that are going to impress on conversational contact, are intact.
The effects of traumatic brain injury are commonly most likely to show up on tests of learning and memory. He's got a number of memory test performances that are actually below average and not even within the average range, which would be suspiciously low for him. But these are below the average range compared with others of comparable age. Similarly, on tests of more complex reasoning of different sorts, performance from the lower portion of average to
698 N.W.2d 28
below average levels would be suggestive in his case of some decline from where he was before.

Appellants presented the expert testimony of Dr. Lamberty, a neuropsychologist. Dr. Lamberty recognized that Dr. Morgan is regarded highly in the field. Lamberty agreed that Foust suffered brain injury as a result of the collision. However, Lamberty disagreed with the extent of Foust's brain injury.

The pre-accident career

The parties agree that prior to the accident Foust was a successful businessman. Foust was a telecommunication engineer and entrepreneur. During college, Foust worked as a coal miner and eventually earned a degree in electrical engineering. Early in his career, Foust worked for technology companies, eventually starting his own company, Telinq, which developed sophisticated, high-speed multiplexer telecommunications equipment. His company sold millions of dollars of equipment. He developed products for major corporations, including Minneapolis-based ADC Telecommunications. ADC later purchased the company from Foust and hired him. According to appellants, Foust helped transform ADC into an industry giant in digital electronic telecommunications transmission.


The parties disagree on Foust's ability to work after the collision. Both sides presented testimony to the jury regarding J. Foust's post accident employment. According to a number of witnesses presented by respondents, including a number of employees of ADC, Foust had difficulties with memory, planning, and controlling his temper after returning to work. Foust missed meetings, was confused, and could no longer make critical decisions. His work performance was unacceptable. Mary Pat Pearson, Director of Human Resources, testified that Foust did not improve and ADC "couldn't tolerate anymore." Foust testified that he was depressed and had suicidal ideations at times. He was treated medically for this. Appellants presented expert testimony through Dr. Lamberty that Foust could be employed—though at a reduced level from pre-accident conditions.

The computer

On July 16, 2003, following the deposition of L. Foust, appellants asked respondents to produce their computers. On July 28, 2003, respondents filed an objection to this discovery request. On August 13, 2003, the district court heard the dispute. The court ordered production of respondents' computers.

After trial began, appellants' forensic computer expert, Mark Lanterman reported to appellants that during an examination of respondents' computer, he determined that some data had been permanently deleted. Appellants moved to dismiss respondents' negligence claims, based on this spoliation of evidence. Alternatively, appellants requested a mistrial, continuance, or adverse inference instruction.

A few days later, Lanterman, testifying outside of the presence of the jury stated that he had found child pornography2 on the computer. In addition to the child pornography, Lanterman found a number of other documents including correspondence between Foust and other people. He found some illegal downloads of intellectual property. Appellants sought to introduce the evidence found on the computer. Some of the evidence was allowed, but much of it was denied. Appellants assert the denial was erroneous.

698 N.W.2d 29
Then on September 3, 2003, appellants claimed that Lanterman had found that portions of unallocated space on the laptop computer had been "scrubbed" using a "WipeInfo" program. The WipeInfo program is a computer program that permanently deletes data from the hard drive of a computer

On the same day, the district court made a determination that respondents were responsible for spoliation of computer data. As a result, the court granted appellants' request for sanctions and concluded that an adverse inference instruction would be read to the jury. The district court then determined that any evidence of the child pornography, and other bad acts, was "unnecessarily confusing, misleading, cumulative, and more prejudicial than probative" and ruled it inadmissible. The court further determined that neither Lanterman nor Foust could be questioned regarding circumstances surrounding the spoliation.

On September 12, 2003, the jury returned a verdict for respondents in the amount of $11,310,464.64. It apportioned fault of 80% to appellants and 20% to respondents. The court entered judgment for respondents in the amount of $9,048,371.71 exclusive of statutory costs, disbursements, and interests.

Following judgment, appellants moved for multiple collateral source setoffs. The parties first stipulated to an award of $135,464.64 in past medical expenses. The parties then agreed to a $20,000 setoff and another setoff for Blue Cross' $42,983.37 payment. Then appellants requested an additional setoff of $72,481.27 for amounts billed by medical providers for Foust's care, but which was discounted pursuant to the agreement between the medical providers and the medical insurance company. The district court denied appellants' request for a setoff for those medical bills charged but not paid for by Foust and not paid by the medical insurance company.

This appeal...

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    ...published opinions, it had held that negotiated-discount amounts are not collateral sources. Id. at *2-3 (discussing Foust v. McFarland, 698 N.W.2d 24 (Minn.App.2005), rev. denied (Minn. Aug. 16, Tezak v. Bachke, 698 N.W.2d 37 (Minn.App.2005), rev. denied (Minn. Aug. 24, 2005)). 5 The court......
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