Deborah Meckola, as Trustee for the Heirs of Jordan Adams, Decedent v. Thomas J. Rishavy, M.D.

This opinion will be unpublished and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
A15-0693

Deborah Meckola,
as Trustee for the Heirs of Jordan Adams, Decedent,
Respondent,

vs.

Thomas J. Rishavy, M.D., et al.,
Appellants.

Filed April 4, 2016
Affirmed
Schellhas, Judge

St. Louis County District Court
File No. 69DU-CV-13-317

Robert K. Randall, William M. Fishman, Michael C. Van Berkom, Fishman, Carp,
Bescheinen & Van Berkom, Ltd., Plymouth, Minnesota (for respondent)

William M. Hart, Julia J. Nierengarten, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota; and

Tracy A. Schramm, Geraghty, O’Loughlin & Kenney, P.A., Duluth, Minnesota (for
appellants)

Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.
 UNPUBLISHED OPINION

SCHELLHAS, Judge

Following a jury trial on respondent’s medical-malpractice wrongful-death claims,

appellants seek reversal of a money judgment against them and remand for a new trial. We

affirm.

FACTS

On April 28, 2010, 17-year-old Jordan Adams sustained burns in a welding accident

at his high school and was admitted to SMDC Medical Center in Duluth for treatment.

Appellant Thomas J. Rishavy, M.D., a plastic surgeon, was Adams’s attending physician

at SMDC.1 Adams’s burns were not considered to be life threatening, and his prognosis

was good. But Adams died at SMDC on May 12. An autopsy revealed that the immediate

cause of death was an undiagnosed endocrine condition called Addison’s disease and that

an underlying cause of death was Adams’s burn trauma, which triggered an Addisonian

crisis causing electrolyte abnormalities that stopped Adams’s heart.

Respondent Deborah Meckola, Adams’s mother and trustee for his heirs, brought

medical-malpractice wrongful-death claims against physician-defendants and SMDC. A

few weeks before trial, Meckola informed physician-defendants and the district court that

she had settled her claims against SMDC and moved to exclude from evidence Adams’s

prehospitalization medical records. The records document Adams’s history of mental-

1
At all material times, Dr. Rishavy was acting within the course and scope of his
employment by appellant Northland Plastic Surgery P.A. We therefore refer to Dr. Rishavy
and Northland collectively as “physician-defendants.”

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health issues and indicate that, prior to his burn injury, Adams experienced physical

symptoms including high heart rate, low blood pressure, loss of appetite, and weight

fluctuations. Dr. Rishavy did not review the records in treating Adams but learned of

Adams’s preexisting mental-health issues shortly after Adams’s admission to SMDC. The

court denied Meckola’s motion but noted that it would consider at trial any “specific

objections regarding specific entries” in the medical records.

On the first day of trial, Meckola informed physician-defendants and the district

court that her claims against SMDC had been settled through a Pierringer release, and

Meckola later stipulated to dismiss her claims against SMDC with prejudice. Meckola’s

claims against physician-defendants were tried to a jury. During physician-defendants’

cross-examination of Meckola’s first expert witness, the court sua sponte restricted the use

of Adams’s prehospitalization medical records; after two of Meckola’s expert witnesses

testified and were excused, the court expressly ruled that the records were admissible in

redacted form. Following the close of evidence, because neither party had referred to or

attempted to introduce the records in redacted form, the court ruled: “We can make the . . .

record[s] part of the record in terms of appellate issues and give [them] an exhibit number,

but I will not be sending [the records] to the jury.”

The jury found in favor of Meckola and awarded $508,033.60 in damages.

Physician-defendants moved for a new trial, assigning error to the district court’s rulings

regarding Adams’s prehospitalization medical records and to its decision not to submit the

question of SMDC’s comparative fault to the jury. The court denied physician-defendants’

new-trial motion and entered judgment for Meckola.

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 This appeal follows.

DECISION

Physician-defendants argue that the district court committed reversible error in “the

fact and manner of” its restriction of the use of Adams’s prehospitalization medical records.

Physician-defendants also argue that the court committed reversible error by

“suppress[ing]” the question of SMDC’s comparative fault.

“[Appellate courts] afford the district court broad discretion when ruling on

evidentiary matters, and [appellate courts] will not reverse the district court absent an abuse

of that discretion.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015). “By their very

nature, evidentiary rules demand a case by case analysis, an analysis best left to the trial

judge familiar with the setting of the case.” Id. (quotations omitted). “But the erroneous

exclusion of evidence is grounds for a new trial unless the exclusion was harmless.” Id.;

see also TC/Am. Monorail, Inc. v. Custom Conveyor Corp., 840 N.W.2d 414, 422 (Minn.

2013) (“To be entitled to a new trial based on an improper evidentiary ruling, [a party]

must establish prejudice.”). “An evidentiary error is prejudicial if it might reasonably have

influenced the jury and changed the result of the trial.” TC/Am. Monorail, 840 N.W.2d at

423 (quotation omitted).

Prehospitalization medical records

Physician-defendants argue that the district court committed reversible error in the

manner of its restriction of the use of Adams’s prehospitalization medical records by

“narrow[ing]” the restriction only after two of Meckola’s expert witnesses testified and

were excused. This argument rests upon a factual assertion—namely, that the court’s sua

4
sponte ruling during physician-defendants’ cross-examination of Meckola’s first expert

witness “prohibited [physician-defendants] from using the pre-hospitalization records for

any purpose.” But the appellate record disproves physician-defendants’ assertion.

When physician-defendants began to question Meckola’s first expert witness

regarding Adams’s prehospitalization medical records, the district court halted cross-

examination, excluded the jury from the courtroom, and asked physician-defendants to

explain the relevance of records not relied upon by Dr. Rishavy in his treatment of Adams.

After counsel argued that the records were relevant to the expert witness’s credibility, the

court ruled that “we’re not going to be talking about prior unrelated physical findings that

[Dr. Rishavy] did not rely upon in the treatment of [Adams].” (Emphasis added.) In

reaching its ruling, the court noted that Dr. Rishavy had been aware of Adams’s preexisting

mental-health issues and stated, “How that plays into the case, we’ll let the attorneys

inquire and have at it with respect to that.” The court’s ruling did not prohibit the use of

Adams’s prehospitalization medical records for any purpose. Instead, the court restricted

the use of the prehospitalization medical records to records regarding Adams’s mental

health. The court later confirmed, rather than narrowed, that ruling when it stated:

[A]ny information relative to [Adams’s mental-health issues]
. . . are fair game for [physician-defendants] and any records
that deal with those [issues] directly are fair game and may be
part of the medical record that goes to the jury in this case, but
those records that deal with prior physical symptoms that are
identical or similar to the ones observed in this case would not
be relevant because [Dr. Rishavy] did not rely upon them, and
so we are going to have to redact the records to make sure that
doesn’t happen.

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We conclude that the court did not err in the manner of its restriction of the use of the

prehospitalization medical records.

Physician-defendants argue that they were entitled to unrestricted use of Adams’s

prehospitalization medical records “to challenge the credibility of [Meckola]’s experts by

showing that the factual basis for their opinions—that [Adams] was, ‘by history,’ a normal,

healthy 17-year-old boy whose symptoms should have been considered unusual and

alarming—was flawed.” According to physician-defendants, Adams’s “history of eating

issues, rapid fluctuations in his weight, incidents of low blood pressure and high heart rate,

and vomiting associated with anxiety” undermined the credibility of Meckola’s experts,

whose testimony purportedly supported a theory that “Adams was a healthy, normal, and

active 17-year-old who exhibited new, uncommon, and alarming physical symptoms.” But

our close examination of the testimony of Meckola’s three expert witnesses shows that

none of the witnesses testified that Adams was healthy prior to his hospitalization or that

his physical symptoms did not predate his hospitalization. Instead, the witnesses testified

about the appearance and progression of Adams’s physical symptoms during the

hospitalization and about the typicality of those physical symptoms in patients like Adams.

We therefore conclude that Adams’s prehospitalization medical records had limited, if any,

relevance to the credibility of Meckola’s experts.

Even if physician-defendants were entitled to unrestricted use of Adams’s

prehospitalization medical records to cross-examine Meckola’s expert witnesses,

physician-defendants have failed to establish prejudice by showing that unrestricted use

“might reasonably have influenced the jury and changed the result of the trial.” TC/Am.

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Monorail, 840 N.W.2d at 423 (quotation omitted). Dr. Rishavy testified that he did not

remember using differential diagnosis when treating Adams and that he may not have

reviewed Adams’s hospital chart each time that he saw him. Meckola presented expert

testimony that Dr. Rishavy departed from the standard of care by failing to perform

differential diagnoses on Adams; failing to properly review Adams’s chart; failing to order

electrolyte testing on or before May 9, 2010; and failing to consult with a pediatric

intensivist prior to May 12. Indeed, Dr. Rishavy’s own expert witness testified that Dr.

Rishavy departed from the standard of care by failing to perform differential diagnoses on

Adams and failing to properly review Adams’s chart. And each of Meckola’s experts

testified that one or more of Dr. Rishavy’s departures from the standard of care caused or

contributed to Adams’s death. In light of the overwhelming evidence of their liability for

Adams’s death, we conclude that physician-defendants are not entitled to a new trial on the

grounds that the district court erroneously restricted physician-defendants’ use of the

prehospitalization medical records in cross-examining Adams’s experts. See Hendrickson

v. Magney Constr. Co., 402 N.W.2d 194, 196 (Minn. App. 1987) (stating that “if

[erroneously excluded] evidence or testimony is only collateral and not material to the main

issues, a new trial is not warranted” (citing Newton v. Minneapolis St. Ry. Co., 186 Minn.

439, 445, 243 N.W. 684, 687 (1932))); cf. Becker v. Mayo Found., 737 N.W.2d 200, 214

(Minn. 2007) (“Where a case is close on the facts, rejection of competent and material

evidence is reversible error.” (quotation omitted)).

Physician-defendants alternatively argue that Dr. Rishavy testified about why he

exercised his medical judgment as he did and that he should have been permitted to

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affirmatively use the prehospitalization medical records to show that Adams’s medical

history corroborated the reasonableness of Dr. Rishavy’s conclusions. In other words,

physician-defendants claim that Adams’s prehospitalization medical records “corroborated

the reasonableness of [Dr. Rishavy’s] judgment” that Adams’s physical symptoms during

his hospitalization were caused by the combination of his burn injuries and his preexisting

mental-health issues. But physician-defendants did not make an affirmative-use argument

below, instead insisting that the records were relevant to the credibility of Meckola’s

experts and unequivocally stating that the records “d[id]n’t factor into [Dr. Rishavy’s]

treatment of [Adams].” We therefore do not consider physician-defendants’ affirmative-

use argument on appeal. See Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628,

633 (Minn. 2013) (“Generally, a party may not obtain review by raising the same general

issue litigated below but under a different theory.” (quotation omitted)).

Even if we were inclined to consider physician-defendants’ affirmative-use

argument, the absence of the prehospitalization medical records from the appellate record

prevents us from determining whether the records contain otherwise-admissible evidence

that physician-defendants could have used to refute evidence of Dr. Rishavy’s departures

from the standard of care. Such absence is inexplicable in light of the district court’s

express invitation to place the prehospitalization medical records in the appellate record.

The absence of the prehospitalization medical records from the record before us provides

an independent reason for our decision not to consider physician-defendants’ affirmative-

use argument. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d

608, 609 (1976) (“An appellant has the burden of providing an adequate record for appeal.

8
Error cannot be presumed.”). We conclude that the district court did not abuse its discretion

by restricting the use of Adams’s prehospitalization medical records.

Comparative fault

Physician-defendants argue that, because Meckola settled her claims against SMDC

by way of a Pierringer release, they had a right to attempt to establish SMDC’s

comparative fault in Adams’s death. We agree that physician-defendants could have

pursued a comparative-fault strategy by presenting evidence of SMDC’s negligence and

requesting a jury determination on SMDC’s comparative fault. See Frey v. Snelgrove, 269

N.W.2d 918, 923 (Minn. 1978) (“If there is evidence of conduct which, if believed by the

jury, would constitute negligence (or fault) on the part of [the settling defendants], the fault

or negligence of th[e settling defendants] should be submitted to the jury.” (quotation

omitted)); Rediske v. Minn. Valley Breeder’s Ass’n, 374 N.W.2d 745, 749 (Minn. App.

1985) (“Here, where the record reveals a demand by [nonsettling defendants’] counsel for

submission of [settling defendant’s] . . . fault to the jury, the trial court erred in not

submitting the question to the jury. There was an arguable basis to submit comparative

fault of any party: the trial court should not have denied [nonsettling defendants’]

request.”), review granted (Minn. Dec. 11, 1985) and appeal dismissed (Minn. May 15,

1986). But physician-defendants did not pursue such a strategy.

The record reflects that, prior to learning of Meckola’s settlement with SMDC,

physician-defendants filed proposed jury instructions that included an instruction on

comparative fault; they also filed a proposed special-verdict form that included questions

9
regarding SMDC’s comparative fault. At a subsequent pretrial hearing, the district court

stated:

It’s my understanding . . . that the case relative to
[SMDC] . . . has been dismissed by settlement. The issue of
how we submit negligence malpractice type issues to the jury
with respect to [SMDC] I think still remains open for
discussion, but that’s not an issue before the Court right at this
point in time. I think it’s at least included in [physician-
defendants’] proposed jury forms.

(Emphasis added.) But in its introductory remarks to the jury on the first day of trial, the

court identified only physician-defendants as “the parties being sued by [Meckola] in this

case.”

At the end of the second day of trial, the court referred to off-the-record “discussions

about whether or not SMDC should remain on the caption and also be part of a comparative

fault analysis” and stated, “I’m not sure I can couch it in terms of [counsel for physician-

defendants] agreeing that [SMDC] should not be on the jury verdict form or on the caption,

but she didn’t raise any strenuous objection when we discussed it in chambers.” Counsel

for physician-defendants acknowledged that she had filed the proposed jury instructions

and special-verdict form prior to finalization of the settlement between Meckola and

SMDC, and she stated unequivocally that “as long as SMDC . . . is not going to be listed

in the caption, then [physician-defendants] do not object to not having SMDC on the

verdict form.” With no objection by physician-defendants, the court then ruled that SMDC

would “not be included” in the jury instructions or on the verdict form.

Following the close of evidence and discussion with counsel, the district court

stated:

10
 [O]ff the record we had about a half hour session where we
went through the instructions. I got insight from both sides on
particular instructions, told both counsel what I would do in
terms of rulings, but did indicate that we would go back on the
record, preserve any objections, thoughts, clarifications for the
record.

Physician-defendants did not raise the comparative-fault issue. The court did not instruct

the jury on comparative fault, and physician-defendants did not object. Nor did physicians-

defendants object to the special-verdict form, which did not include questions regarding

SMDC’s comparative fault. We conclude that physician-defendants abandoned any initial

request for a jury determination on SMDC’s comparative fault and thereby forfeited their

right to such a determination. Cf. Fire Ins. Exch. v. Adamson Motors, 514 N.W.2d 807, 810

(Minn. App. 1994) (“Normally, the trial court should submit to the jury the fault of all parties,

including that of settling defendants. The failure to do so does not constitute error, however,

if the rights of all parties are protected and the adversarial process preserved. [Nonsettling

defendant] did not seek apportionment of any fault against [settling defendant] and cannot be

heard to complain of that failure now.” (citations omitted)).

Physician-defendants attempt to avoid forfeiture by asserting that, off the record,

“[t]he [district] court ruled preemptively, before trial started, that [they] would be

precluded from attempting to prove SMDC’s comparative fault.” We are not persuaded.

The record reflects that, on the first of two opportunities to state for the record physician-

defendants’ position on the comparative-fault issue, counsel for physician-defendants

conceded, “[A]s long as SMDC . . . is not going to be listed in the caption, then [physician-

defendants] do not object to not having SMDC on the verdict form.” And on the second

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opportunity, counsel for physician-defendants made no mention of the comparative-fault

issue when asked to “preserve any objections, thoughts, clarifications for the record.”

Physician-defendants did not make an adequate record of the ruling that they now claim

explains their decision not to seek a jury determination on SMDC’s comparative fault. We

therefore reject that claim.

Affirmed.

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