Gary Cyril Jenco v. Paul James Crowe, M.D., John Y. Hendricks, M.D., North Memorial Health Care, d/b/a North Memorial Medical Center

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0375

Gary Cyril Jenco, et al.,
Appellants,

vs.

Paul James Crowe, M.D., et al.,
Respondents,

John Y. Hendricks, M.D., et al.,
Respondents,

North Memorial Health Care, d/b/a North Memorial Medical Center,
Respondent.

Filed January 26, 2015
Affirmed
Toussaint, Judge*

Hennepin County District Court
File No. 27-CV-12-7335

Thomas Francis Handorff, Access Justice, Minneapolis, Minnesota (for appellants)

Melissa D. Riethof, Barbara Ann Zurek, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota (for respondents Paul James Crowe, M.D., et al)

Jennifer M. Waterworth, Gislason & Hunter, LLP, Minneapolis, Minnesota (for
respondents John Y. Hendricks, M.D., et al)

Mark W. Hardy, Geraghty O’Loughlin & Kenney, PA., St. Paul, Minnesota (for
respondent North Memorial Health Care)

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 Considered and decided by Chutich, Presiding Judge; Reilly, Judge; and

Toussaint, Judge.

UNPUBLISHED OPINION

TOUSSAINT, Judge

In this medical-malpractice action, appellants challenge the pretrial dismissal of

their negligent-treatment claims against three of the respondents and a jury verdict in

favor of the remaining respondents. We affirm.

DECISION

Appellant Gary Cyril Jenco underwent three back surgeries over the course of

March 19 and 20, 2008. The first surgery was a laminotomy to remove bone on the spine

that was causing nerve pain. The second and third surgeries were to remove hematomas

that were surgical complications and were causing Jenco to suffer from cauda equina

syndrome, a dysfunction of the spinal nerves in the spinal canal caused by compression.

Jenco remained in the hospital for two months following the surgeries, and spent many

months thereafter at a rehabilitation center. He continues to suffer extensive paralysis of

the lower extremities and related disabilities.

In March 2012, Jenco and his wife (appellants) initiated this medical-malpractice

action against multiple defendants for personal injuries and loss of consortium. The

district court dismissed a number of claims before trial, and the jury returned a verdict in

favor of the remaining defendants. Appellants assert that the district court erred by

(1) dismissing their negligent-treatment claims against respondents North Memorial

Health Care, John Y. Hendricks, M.D., and Andrew Johnson Houlton, M.D., and

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(2) denying their motion for a new trial of their claims against the remaining respondents

on grounds of an allegedly improper evidentiary ruling and juror bias. We address each

argument in turn.

I.

Appellants first challenge the district court’s pretrial dismissal of their negligent-

treatment claims against North Memorial, Dr. Hendricks, and Dr. Houlton. To prevail on

a negligent-treatment claim, a plaintiff must prove (1) the standard of care recognized by

the medical community in relation to the defendant’s conduct; (2) that the defendant’s

deviated from that standard of care; and (3) that the departure from the standard was the

direct cause of the plaintiff’s injuries. Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d

321, 329 (Minn. 2013). Moreover, as a preliminary matter, under Minn. Stat. § 145.682

(2014), medical-malpractice plaintiffs are required twice in the early stages of litigation

to present expert affidavits supporting their claims. The second of these affidavits must

identify the experts who plaintiff intends to call at trial. Id., subd. 4. Failure to comply

with the requirements of Minn. Stat. § 145.682 results in mandatory dismissal of the

claims for which expert testimony is necessary. Id., subd. 6. This court reviews a district

court’s dismissal for failure to comply with Minn. Stat. § 145.682 for an abuse of

discretion. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005).

In order to comply with the expert-identification requirements of Minn. Stat.

§ 145.682, subd. 4, a plaintiff must submit an affidavit from an expert who is qualified to

testify regarding the subject matter of the plaintiff’s claims. Teffeteller v. Univ. of Minn.,

645 N.W.2d 420, 427 (Minn. 2002). In the area of medical-malpractice, Minnesota

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courts have held that medical professionals are not qualified to testify outside their areas

of practical expertise. See Teffeteller, 645 N.W.2d at 427 (holding that district court did

not abuse its discretion by determining that doctor without specialization in field of

pediatric oncology or experience with bone-marrow transplants was not qualified to

testify as to standard of care for treating bone-marrow transplant patient); Cornfeldt v.

Tongen, 262 N.W.2d 684, 692, 694 (Minn. 1997) (affirming exclusion of testimony of

gastroenterologist and pathologist about the actions of an anesthesiologist); Swanson v.

Chatterton, 281 Minn. 129, 136, 140, 160 N.W.2d 662, 666, 669 (1968) (holding that

district court did not abuse its discretion in excluding testimony by internist regarding

standard of care for orthopedic surgeon). The Minnesota Supreme Court has emphasized

that “the sufficiency of the foundation to qualify a witness as an expert . . . is primarily a

question for the determination of the trial court.” Swanson, 281 Minn. 136-37, 160

N.W.2d at 667; see also Teffeteller, 645 N.W.2d at 427 (“Our case law makes very clear

that we are to apply a very deferential standard to the district court when reviewing a

determination as to expert qualification, reversing only if there has been a clear abuse of

discretion.” (quotation omitted)).

A.

Appellants asserted a negligent-treatment claim against North Memorial based on

the alleged negligence of the nursing staff, and submitted the expert affidavit of Mary

Zimmerman, R.N., in support of this claim. The district court dismissed the claim against

North Memorial based on its determination that, while Zimmerman was qualified to

testify regarding the standards of care applicable to North Memorial’s nursing staff, she

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was not qualified to testify that any departures from that standard of care caused Jenco’s

injuries. Nor, the district court reasoned, had any other expert qualified to testify as to

causation opined that the nursing staff’s alleged departures from the standard of care had

caused Jenco’s injuries. The district court explained that only one of appellants’ experts,

Avi Bernstein, M.D., was qualified to testify to the causation of Jenco’s injuries and

noted that Dr. Bernstein had not identified conduct by nursing staff as a cause of Jenco’s

injuries.

The district court’s analysis is sound. Nurses generally are not qualified to testify

as to medical causation. See, e.g., Vaughn v. Mississippi Baptist Med. Ctr., 20 So.3d 645,

652 (Miss. 2009) (collecting authority for “majority rule that nursing experts cannot

opine as to medical causation and are unable to establish the necessary element of

proximate cause”). Zimmerman is a registered nurse and certified legal nurse consultant.

Nothing in Zimmerman’s report suggests that she has education or experience that allows

her to opine on the cause of Jenco’s injuries. And nothing in Dr. Bernstein’s report

connects any conduct on the part of North Memorial’s nursing staff to Jenco’s injuries.

Accordingly, we conclude that the district court did not abuse its discretion by dismissing

the negligent-treatment claims against North Memorial.

B.

Appellants also asserted negligent-treatment claims against Drs. Hendricks and

Houlton, anesthesiologists who monitored Jenco during and after the first surgery, and

submitted an affidavit from Lowell Feinstein, D.O., a board certified anesthesiologist, in

support of these claims. The district court dismissed the claims against Drs. Hendricks

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and Houlton based on its determination that Dr. Feinstein was not qualified to testify as to

causation, and because no qualified expert had opined that the alleged departures from

the standard of care by Drs. Hendricks and Houlton had caused Jenco’s injuries.

Again here, the district court’s analysis is sound. There does not appear to be a

categorical rule against anesthesiologists testifying as to causation. See, e.g., Schneider v.

Little, 49 A.3d 333, 358 (Md. Ct. Spec. App. 2012) (holding that anesthesiologist was

qualified to testify regarding cause of spinal cord injury during vascular surgery based on

his experience as anesthesiologist and experience teaching residents about prevention of

spinal cord injuries during vascular surgery), rev’d on other grounds 73 A3d 1074 (Md.

2013). But Dr. Feinstein’s education and experience are limited to anesthesiology, and

nothing in Dr. Feinstein’s report suggests that he has particular experience with cauda

equina syndrome and its causes. By way of contrast, Dr. Bernstein’s report describes him

as “experienced in spinal surgery and related complications, including postoperative

hemorrhage, hematoma, and cauda equina syndrome.” But Dr. Bernstein did not opine in

his report that any conduct by Drs. Hendricks or Houlton caused Jenco’s injuries.

Accordingly, we conclude that the district court did not abuse its discretion by dismissing

the negligent-treatment claims against Drs. Hendricks and Houlton.

II.

Appellants next challenge the district court’s denial of their motion for a new trial.

This court reviews the district court’s denial of a motion for a new trial for abuse of

discretion. See Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715

N.W.2d 458, 476-77 (Minn. App. 2006), review denied (Minn. Aug. 23, 2006). The

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court “‘will not set aside a jury verdict on an appeal from a district court’s denial of a

motion for a new trial unless it is manifestly and palpably contrary to the evidence

viewed as a whole and in the light most favorable to the verdict.’” Id. at 477 (quoting

Navarre v. S. Washington Cnty. Schs., 652 N.W.2d 9, 21 (Minn. 2002)). The mere

possibility that impaneling another jury and conducting a new trial that would bring about

an opposite result is not grounds for a new trial. See Heggstad v. Dubke, 304 Minn. 129,

132, 229 N.W.2d 34, 36 (1975).

A.

Appellants first assert that they are entitled to a new trial because the district court

excluded evidence regarding the bleeding risks associated with the drug Ketorolac, which

was administered to Jenco during the first surgery. “The admission of evidence rests

within the broad discretion of the [district] court and its ruling will not be disturbed

unless it is based on an erroneous view of the law or constitutes an abuse of discretion.”

Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quotation

omitted). Relevant evidence is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Minn. R. Evid. 401.

The district court reasoned that evidence regarding the bleeding risks associated

with Ketorolac was not relevant because the district court had dismissed appellants’

negligence theory based on the administration of Ketorolac before trial. The district court

dismissed the theory because appellants’ expert did not opine that the Ketorolac injection

caused Jenco’s cauda equina syndrome. Importantly, appellants do not challenge the

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pretrial dismissal of this theory of liability. Moreover, as the district court noted, Dr.

Bernstein testified at trial that he had no criticisms of the medical treatment of Jenco until

after the second surgery. Because there was no claim at trial that the Ketorolac injection

caused Jenco’s injuries, facts regarding the Ketorolac injection were not “of consequence

to the determination of the of the action.” Minn. R. Evid. 401. Accordingly, the district

court did not abuse its discretion by denying appellants’ motion for a new trial on this

ground.

B.

Appellants assert that they are entitled to a new trial or a Schwartz hearing because

of alleged juror misconduct. The district court has discretion to grant a new trial based

on juror misconduct. See Minn. R. Civ. P. 59.01(b). The court may also hold a Schwartz

hearing, during which a juror or jurors may be questioned to determine the existence of

misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104

N.W.2d 301, 303 (1960). This court reviews both the denial of a Schwartz hearing and

the denial of a new trial based on juror misconduct for abuse of discretion. Opsahl v.

State, 677 N.W.2d 414, 421 (Minn. 2004); Benson v. Rostad, 384 N.W.2d 190, 196

(Minn. App. 1986).

Appellants assert juror misconduct by two jurors, one who posted a number of

“tweets” (posts to the social-media website Twitter) during the trial reflecting his disdain

for jury duty, but did not disclose any specifics about the case, and one who had been

convicted of a felony, but did not volunteer that information during the voir dire process.

The district court reasoned that the alleged juror conduct did not rise to the level of

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misconduct and that appellants could not demonstrate any prejudice stemming from the

alleged conduct. We agree. As the district court explained, the one juror’s tweets

“although disrespectful and distasteful, did not violate [the district court’s jury]

instructions.” And the other juror was discharged from his felony convictions well before

trial, was not disqualified from serving on a jury, and was not asked if he had any

convictions during voir dire. See Minn. R. Gen. Pract. 808(b); see also Olberg v.

Minneapolis Gas Co., 291 Minn. 334, 342, 191 N.W.2d 418, 424 (1971) (“A trial court is

not justified in ordering a new trial simply because a peremptory challenge might have

been exercised had the attorney elicited certain information on the voir dire

examination.”) Moreover, appellants have done no more than speculate that the alleged

misconduct compromised those jurors’ abilities to be impartial. Under these

circumstances, the district court did not abuse its discretion by denying appellants’

motion for a new trial on this ground. See State v. Kelley, 517 N.W.2d 905, 910 (Minn.

1994) (holding that party moving for new trial on grounds of juror misconduct bears

burden to show both misconduct and prejudice); Minn. R. Civ. P. 61 (providing that

harmless error cannot be basis for granting new trial).

Affirmed.

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