from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
Jeffrey S. Weikum, Bismarck, N.D., for plaintiff and
K. Porsborg (argued) and Austin T. Lafferty (appeared),
Bismarck, N.D., for defendant and appellee.
Mark Klein appeals a judgment following a jury verdict
awarding him compensatory damages resulting from a vehicular
accident. Klein appeals, arguing the district court
incorrectly struck the entirety of his expert witness's
testimony from the record and improperly excluded testimony
from two other expert witnesses under N.D.R.Ev. 702 and 703.
We reverse and remand for a new trial.
Klein and Sarah Luithle were in a vehicular accident in 2011.
Luithle died in 2014 from unrelated causes. The case was
tried before a jury in August 2018. Prior to trial,
Luithle's Estate moved the district court to exclude two
of Klein's witnesses, Reg Gibbs and Scott Stradley,
Ph.D., arguing their testimony and opinions did not meet the
requirements of N.D.R.Ev. 702 and 703. The court denied the
motion, stating the arguments raised by Luithle's Estate
went to the credibility of the experts, not to the
admissibility of their testimony. On the second day of trial,
Bill Rosen, M.D., testified as Klein's medical expert
witness. After Dr. Rosen testified, Luithle's Estate
moved to strike part of Dr. Rosen's testimony, arguing it
did not meet the reasonable degree of medical certainty
standard and was therefore speculative and inadmissible.
After acknowledging Klein's continuing objection, the
court struck all of Dr. Rosen's testimony. The court also
excluded proposed testimony from Gibbs and Stradley because
it held there was a lack of foundation for these experts to
testify without Dr. Rosen's testimony. The jury
determined Klein was 25% at fault and Luithle was 75% at
fault for the accident that caused Klein's injuries.
Klein was awarded compensatory damages. The two issues on
appeal are whether the district court erred (1) by striking
Dr. Rosen's testimony under N.D.R.Ev. 702, and (2) by not
permitting Gibbs and Dr. Stradley to testify.
"The district court has broad discretion whether to
allow expert witness testimony, and its decision will not be
reversed on appeal unless it abused its discretion."
Lenertz v. City of Minot, 2019 ND 53, ¶ 17, 923
N.W.2d 479. A district court "abuses its discretion when
it acts in an arbitrary, unreasonable, or unconscionable
manner, when it misinterprets or misapplies the law, or when
its decision is not the product of a rational mental process
leading to a reasoned decision." State v.
Campbell, 2017 ND 246, ¶ 6, 903 N.W.2d 97.
"[T]he probative effect and admissibility of evidence is
a matter for the trial court's discretion."
Lenertz, at ¶ 17. Usually, "[r]elevant
evidence is admissible." N.D.R.Ev. 402. Yet, relevant
evidence may be excluded "if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice" or other evidentiary considerations.
N.D.R.Ev. 403. "It is the district court's
responsibility to make certain expert testimony is reliable
as well as relevant." Myer v. Rygg, 2001 ND
123, ¶ 10, 630 N.W.2d 62. Even if the district court
errs, "no error in admitting or excluding evidence . . .
is ground for granting a new trial, for setting aside a
verdict, or for vacating, modifying, or otherwise disturbing
a judgment or order," unless, because the party's
substantial rights were affected, justice so requires.
N.D.R.Civ.P. 61; see also N.D.R.Ev. 103(a) ("A
party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the
party."). This Court "appl[ies] this deferential
standard of review to provide trial courts with greater
control over the admissibility of evidence." Davis
v. Killu, 2006 ND 32, ¶ 6, 710 N.W.2d 118.
Dr. Rosen was Klein's medical expert. His testimony was
necessary to support Klein's claim for past and future
medical damages. Condon v. St. Alexius Medical
Center, 2019 ND 113, ¶ 18, 926 N.W.2d 136;
Symington v. Mayo, 1999 ND 48, ¶ 9, 590 N.W.2d
450 ("To recover future medical expenses, a plaintiff
has the burden of showing substantial evidence to establish
with reasonable medical certainty future medical services are
necessary."). At the conclusion of the direct
examination of Dr. Rosen's testimony, the attorney for
Luithle's Estate moved to strike "at least part of
Mr. Rosen's testimony." Counsel and the court
discussed whether Dr. Rosen's testimony established a
reasonable degree of medical certainty. The court struck all
of Dr. Rosen's testimony although it had initially said
it was going to strike only part of the testimony.
Court: "[W]hen I say the testimony of Dr. Rosen is
struck, it's struck to the extent that he offered
testimony that was outside of his expertise. But, I mean, he
said I saw the patient, I talked to him. You're not
suggesting that I strike his testimony in that regard?
Attorney for Luithle's Estate: Well, any medical
opinions. Court: That's where it would be. Attorney for
Luithle's Estate: Right. Court: All right.
the court told counsel in chambers that it had "made
several rulings essentially ruling that Dr. Rosen's
testimony from a medical standpoint would be struck, given
the reality that he offered no opinion to a reasonable degree
of medical certainty." And again, "Dr. Rosen's
testimony is struck, that is the medical testimony." But
when the court addressed the jury on the record it stated:
[T]he testimony of Dr. Rosen, . . . based on legal reasoning
by this Court, is hereby struck. You as jurors are not to
consider that testimony when you deliberate, and the
attorneys will not reference nor will they argue that
testimony in their closing remarks ...