Newmaster v. Mahmood, CO-84-1335
| Decision Date | 22 January 1985 |
| Docket Number | No. CO-84-1335,CO-84-1335 |
| Citation | 361 N.W.2d 130 |
| Court | Minnesota Court of Appeals |
| Parties | Margaret A. NEWMASTER, John E. Odegard, Respondents, v. Albert MAHMOOD, et al., Appellants. |
Syllabus by the Court
1. The trial court properly denied defendant's post trial motions.
2. The trial court properly admitted the testimony of plaintiff's expert witness.
3. The trial court properly ruled that the verdict should not be reduced by the amount of the basic economic loss benefits and uninsured motorist benefits paid.
Edward F. Fox, St. Paul, for Margaret A. Newmaster.
John E. Odegard, pro se.
Jeffrey M. Bauer, Minneapolis, for appellants.
Heard, considered and decided by PARKER, P.J., and SEDGWICK and LESLIE, JJ.
Lakeside Club, a defendant in a dramshop action, appeals the denial of a motion for new trial or a judgment NOV. The jury found that the club illegally sold liquor to a driver who negligently collided with the plaintiff. We affirm.
After drinking at the Lakeside Club, John Odegard ran a stop sign and collided with Margaret A. Newmaster's car. Newmaster's neck was broken in the collision. Odegard's blood alcohol level at the time of the accident was .25.
Newmaster brought a dramshop action against Odegard, an uninsured motorist, and Lakeside Club, a restaurant and bar owned and operated by appellant Albert Mahmood and his brother.
On the day of the accident Odegard had dinner at the Lakeside Club. Odegard testified that he had several drinks before going to the club, and was served 3 to 5 drinks at the club. A police officer testified that Odegard admitted that he had been drinking at the Lakeside Club.
Mahmood, his wife, and two long-time waitresses employed at the club all testified that Odegard was not served drinks that day. Albert Mahmood testified that he saw Odegard stagger and weave into the club, concluded Odegard was drunk and informed him that he could have dinner but not drinks. He informed his employees not to serve Odegard liquor.
Newmaster, a 35-year-old full-time teacher, librarian and mother of two, spent two weeks in the hospital following the accident. Her doctor placed no restrictions upon her when she returned to work.
Ten months after the accident she was diagnosed as 10% partially and permanently disabled due to her injuries. She is currently under treatment with an orthopedic surgeon for back pain, headaches and stiffness.
Approximately three years after the accident, Newmaster's doctor, Dr. Lambert, took new x-rays of her neck and noticed that her condition had deteriorated as a result of degenerative arthritis, leaving her 15% disabled.
Dr. Lambert testified that Newmaster's condition will deteriorate progressively and could prevent her from working full time in the future. Defendant's doctor agreed that no exercise program, therapy or drug treatment will cure her condition.
Three months before trial, Newmaster's lawyer wrote the following to appellants:
Given the progressive nature of Ms. Newmaster's injuries and the deterioration in her condition, I am also considering offering the expert testimony of an economist or some other similar vocational specialist on the issue of Ms. Newmaster's future damages, particularly as it might relate to future disability and lost income.
Two months before trial, Newmaster's lawyer wrote appellants that Newmaster had retained Dr. Neal, a licensed consulting psychologist and vocational expert, to "evaluate the economic impact of Mrs. Newmaster's injuries" at trial. The doctor's resume was enclosed and the letter said Dr. Neal's opinions would be available within 10 days. Neither letter mentioned that Newmaster had taken a Minnesota Multiphasic Personality Inventory (MMPI) or that Dr. Neal's opinions would be based, in part, on the results of that inventory.
Newmaster's lawyer did not furnish appellants further information regarding Dr. Neal's testimony until the Thursday afternoon before the scheduled Monday trial date. That letter said,
Dr. Neal indicates that Mrs. Newmaster's MMPI indicated a psychophysiological reaction to her neck which, in the future, will create additional problems in terms of apprehension, self-confidence, job attitude and performance, and to the depression which were considered as elements of Dr. Neal's determination of lost income.
Appellants did not move for a continuance or indicate that they wanted to present another expert to rebut Dr. Neal's testimony.
Dr. Neal, testified that within the next ten years a conservative projection of the impairment in Newmaster's total lifetime earning capacity would fall between a minimum of $129,500 for an unchanged disability of 15% and a maximum of $650,000 assuming total disability by 1994.
Dr. Neal based his opinions of Newmaster's earning capacity, on the medical reports of both Newmaster's doctor and the adverse examiner, a personal interview with Newmaster, a review of her work history and income, and the results of the MMPI.
After the jury returned its $207,097 verdict in favor of Newmaster, the appellants filed post trial motions for JNOV, new trial, and remittitur together with an application to offset no-fault and uninsured motorist benefits which Newmaster received through her own no-fault carrier.
All motions were denied.
1. Did the trial court properly deny defendant's post trial motions?
2. Did the trial court abuse its discretion in admitting the testimony of plaintiff's expert witness?
3. Did the trial court correctly rule that the verdict should not be reduced by the amount of the basic economic loss benefits and uninsured motorist benefits paid?
The standard to be applied in determining the propriety of granting a motion for judgment notwithstanding the verdict is whether there is ANY competent evidence reasonably tending to support the verdict. Kantorowicz v. VFW Post, No. 230, 349 N.W.2d 597 (Minn.Ct.App.1984).
The trial court must base its decision on the evidence as a whole, viewing all evidence in a light most favorable to the verdict. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (1975). Only where the facts are undisputed and reasonable minds can draw but one conclusion from them does the question for determination become one of law for the court. Kramer v. Kramer, 282 Minn. 58, 162 N.W.2d 708 (1968).
Despite the sharp conflict in two fact issues, viewing the evidence in a light most favorable to the verdict, there is ample evidentiary support for the verdict. Therefore, the trial court properly denied the motion JNOV.
A motion for a new trial made upon the ground that the jury verdict is not supported by the evidence should be granted only in cases where the preponderance of the evidence clearly suggests jury mistake, improper motive, bias, or caprice. Conover v. Northern State Power Co., 313 N.W.2d 397, 408 (Minn.1981).
Viewing the evidence in a light most favorable to the verdict, there is ample credible evidence to support the verdict against both defendants. Additionally, there is no articulable reason or event showing an injustice has been done. Therefore, there is no reason to submit this case to a second jury.
A motion for remittitur is also addressed to the sound discretion of the trial court whose ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. The trial court must leave the plaintiff with the highest dollar verdict permissible under the evidence. Cf. Sandt v. Hylen, 301 Minn. 475, 224 N.W.2d 342 (1974). The trial court did not abuse its discretion in denying the motion for remittitur.
2. Appellants argue that the trial court abused its discretion in admitting the testimony of Dr. Neal in light of the untimely disclosure of the substance of his testimony.
The decision to permit the use of expert testimony, even on short notice, is within the discretion of the trial court. Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn.1977).
When the failure to disclose is not willful, the trial court should consider alternative methods short of exclusion for preventing prejudice, e.g., granting a continuance and assessing costs against the offending party, Krech v. Erdman, 305 Minn. 215, 218, 233 N.W.2d 555, 557 (1975); or limiting the subject matter of the testimony to matters already disclosed, Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390 (Minn.1977).
The Cornfeldt court stressed that the judicial process is an attempt to seek the truth. It said:
We should not unduly hamper that search by excluding relevant evidence where other means are available to protect a party from the effects of an inadvertent failure to disclose. Trial courts must have discretion to determine the sanction appropriate to a violation of...
To continue reading
Request your trial
-
Riewe v. Arnesen, C8-85-671
...3. Whether to permit the use of expert testimony, even on short notice, is within the trial court's discretion. Newmaster v. Mahmood, 361 N.W.2d 130, 133, (Minn.Ct.App.1985) (citation omitted). Trial courts are in the best position to assess the degree of prejudice that will arise from a vi......
-
Calcagno v. Emery
...1984). The district court must leave the prevailing party with the highest amount permitted by the evidence. Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn. App. 1985). The jury awarded respondent $4,623,924 in damages. Appellant challenges only the award of $2,250,000 in future noneconomi......
-
Thorn v. Glass Depot
...question for determination become one of law for the court. Kramer v. Kramer, 282 Minn. 58, 162 N.W.2d 708 (1968). Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn.Ct.App.1985). The testimony is contradictory regarding whether Thorn was walking in the traffic lane or on the shoulder at the t......
-
Benson v. Rostad, C7-85-1617
...granting a motion for JNOV is whether any competent evidence exists which reasonably tends to support the verdict. Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn.Ct.App.1985) (citation omitted). Such a motion admits every inference that can be reasonably drawn from the evidence and the cre......