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Klein v. Estate of Luithle

Supreme Court of North Dakota

July 11, 2019

Mark Klein, Plaintiff and Appellant
The Estate of Sarah Luithle, Defendant and Appellee

          Appeal 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 appellant.

          Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Bismarck, N.D., for defendant and appellee.


          TUFTE, JUSTICE

         [¶1] 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.


         [¶2] 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.


         [¶3] "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.

         [¶4] 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.

         Later 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 ...

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