Jacobson v. Allen, No. A04-098 (MN 10/5/2004)
| Decision Date | 05 October 2004 |
| Docket Number | No. A04-098.,A04-098. |
| Parties | Colleen Jacobson, Appellant, v. Cheryl Ann Allen, Respondent, Abdon Alden Peterson, Respondent. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Stearns County, File No. CX-02-147.
Michael M. Murphy, Jr., Murphy Law Offices, (for appellant)
Michael J. Ford, Krista L. Durrwachter, Quinlivan & Hughes, (for respondent Allen)
Gordon H. Hansmeier, Troy A. Poetz, Rajkowski Hansmeier Ltd., (for respondent Peterson).
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Wright, Judge.
UNPUBLISHED OPINION
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.
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 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 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.
"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).
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.
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:
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:
To continue reading
Request your trial