Anita J. Howard, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1232

Anita J. Howard,
Appellant,

vs.

Shelly R. Svoboda, M. D., et al.,
Respondents.

Filed June 12, 2017
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CV-14-20381

Richard E. Bosse, Law Offices of Richard E. Bosse, Chartered, Henning, Minnesota (for
appellant)

Paul C. Peterson, William L. Davidson, João C.J.G. de Medeiros, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this medical-malpractice action, appellant challenges the district court’s denial of
her request for judgment as a matter of law or a new trial, arguing that the district court
2
erred by allowing respondents’ experts and a treating physician to testify regarding the
growth rate of a spinal infection that caused appellant’s paraplegia. We affirm.
FACTS
Appellant Anita J. Howard’s history of back pain led her to seek treatment at
respondent Noran Neurological Clinic (Noran ) in 2009. Noran referred appellant to a
neurosurgeon, Dr. Mahmoud Nagib . In August 2009, Dr. Nagib performed surgery on
appellant to relieve back pain caused by nerve compression in her spine. In October 2009,
Dr. Nagib transferred appellant’s care back to Noran. Respondent Dr. Shelly Svoboda and
Christopher Geisler treated appellant at Noran on October 26, 2009, November 23, 2009,
February 25, 2010, and May 25, 2010.1
On the morning of June 7, 2010, appellant was able to walk normally. After waking
from a nap later that day, she was unable to move her legs. Appellant was admitted to
Abbott Northwestern Hospital, where she reported that she had had a fever and chills for
the past two days, a s well as worsening back pain. Appellant also reported that she had
been unable to move her legs for a period of time the night before she was admitted to the
hospital. Appellant never regained her ability to walk after June 7.

1 Although Geisler was named as a defendant in the underlying action, t he district court
granted summary judgment in his favor. The district court’s grant of summary judgment
is not challenged, and Geisler is not a respondent, in this appeal.
3
Appellant had an MRI, which revealed that two vertebrae in her spine had collapsed
and caused paraplegia. 2 The collapse of the vertebrae was caused by a bone i nfection.
Appellant was diagnosed with osteomyelitis and discitis based on the MRI results.
In May 2014, appellant sued respondents, alleging that they negligently failed to
identify, diagnose, and treat the infection before it permanent ly damaged her spine. In
January 2015, respondents moved to compel appellant to authorize an informal conference
with Dr. Nagib under Minn. Stat. § 595.02, subd. 5 (2016). In response, appellant moved
for a temporary injunction or order for protection, asking the distr ict court to enjoin
respondents from “[i]nquiring of Dr. Mahmoud Gamal Nagib or any other treating
physician as to any standard of care owed to [appellant] by [respondents] and the causation
of her injuries as a violation thereof.”
In April 2015, the di strict court granted respondents’ motion to compel in part,
directing appellant to authorize respondents’ informal conference with Dr. Nagib and
permitting respondents’ counsel to inquire as to “any ‘information or opinion in the
possession’ of Dr. Nagib regarding . . . his treating relationship with her, including the time
periods from August 20, 2009 to October 26, 2009 and from June 7, 201 0 forward.”
However, the district court issued a protective order precluding respondents’ counsel from
requesting expert opinions from Dr. Nagib about “(a) the standard of care applicable to
other medical providers who cared for [appellant] during periods of time when [appellant]

2 Paraplegia is “[c]omplete paralysis of the lower half of the body.” The American Heritage
College Dictionary 1010 (4th ed. 2007).
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was not Dr. Nagib’s patient or (b) whether an alleged breach of the standard of care by
medical providers other than Dr. Nagib caused injury to [appellant].”3
In July, appellant moved to depose her treating physicians and respondents’ experts.
The district court denied appellant’s motions.
In September , appellant and respondents had the informal conference with
Dr. Nagib. Dr. Nagib was not asked about any standard of care that respondents owed
appellant, consistent with the district court’s protective order.
In November and December, appellant moved to exclude respondents’ proffered
expert testimony regarding the timing of her infection, arguing that it would not be helpful
to the factfinder and failed to meet the qualifications for admission as expert tes timony
under Minn. R. Evid. 702. 4 The district court denied appellant’s motion, reasoning that
“[t]he planned testimony and evidence from [respondents’] experts meet the standards for
admissibility under Rule 702” and that respondents’ “experts do not offer novel scientific
theories.”

3 In June 2015, respondents appealed the district court’s protect ive order. This court
reversed, holding that “an ‘informal discussion’ with a treating physician who has
examined or cared f or a party allows inquiry into ‘any informat ion or opinion’ the
physician possesses, including opinions on the standard of care and causation relating to
periods when the physician was not caring for the patient. ” Howard v. Svoboda (Howard
I), 877 N.W.2d 562, 564 (Minn. App. 2016), vacated, 890 N.W.2d 111 (Minn. 2017). The
supreme court vacated this court’s decision, holding that this court “lacked appellate
jurisdiction over the district court’s interlocutory order.” Howard v. Svoboda, 890 N.W.2d
at 116.
4 Appellant also argued that respondents’ proffered expert testimony regarding the timing
of her infection did not meet the Frye-Mack standard for novel scientific evidence . The
district court concluded that the Frye-Mack standard did not apply because respondents’
experts did not offer novel scientific theories. On appeal, appellant does not argue that the
Frye-Mack standard applies.
5
In January 2016, appellant’s case was tried to a jury. One of respondents’ defenses
at trial was that appellant’ s infection had developed between M ay 25, 2010, the last time
she was treated at Noran, and her hospitalization on June 7, 2010. Dr. Nagib appeared as
a witness for respondents , and testified that appellant’s infection was “very recent” and
developed in less than 13 days. Dr. Nagib did not testify regarding any standard of care
that respondents owed appellant.
The jury returned a special verdict finding that Dr. Svoboda was not ne gligent in
her care and treatment of appellant. The jury did not reach th e issue of causation.
Appellant moved for judgment as a matter of law (JMOL) or in the alternative, a new trial,
arguing that the district court “failed to exclude the testimony of [respondents’] experts
contrary to Rule 702 of the Minnesota Rules of Evidence ” and erred by permitting
“Dr. Nagib . . . to testify as a Rule 26 expert as to the speed of growth of the osteomyelitis
bacteria contrary to [the district court’s] Order of April 30, 2015.”5
The district court denied appellant’s motions, reasoning that “[w]hile [appellant’s]
experts testified to the contrary, the jury may reasonably have credited Dr. Svoboda’s
testimony, and that of [respon dents’] experts who also testified that the standard of care
did not require Dr. Svoboda to test for infection based upon [appellant’s] reports of ongoing
back pain.” The district court noted that when both parties present evidence sufficient to
sustain a verdict in their favor, the determination of negligence is a fact question for the

5 Appellant also moved for JMOL and a new trial on the ground that the district court erred
by denying her the opportunity to depose her treating physicians and respondents’ experts.
Appellant does not appeal the district court’s denial of her JMOL and new-trial motions on
these grounds.
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jury. The district court viewed the standard-of-care evidence in the light most favorable to
the verdict and concluded that a reasonable jury could reach a verdict in Dr. Svoboda’s
favor. The district court also concluded that respondents’ experts’ testimony was
admissible under Minn. R. Evid. 702, that “Dr. Nagib could testify as to his opinion about
the infectious process as a treating physician ,” and that even if “ Dr. N agib can be
considered to have testified improperly as a Rule 26 expert,” appellant was not prejudiced
because had “Dr. Nagib . . . not testified at all, there was sufficient evidence to uphold the
verdict.” Howard appeals.
D E C I S I O N
If a party moves for JMOL after a jury returns a verdict, the district court may
“(1) allow the judgment to stand, (2) order a new trial, or (3) direct entry of judgment as a
matter of law.” Minn. R. Civ. P. 50.02. “The jury’s verdict will not be set asi de if it can
be sustained on any reasonable theory of the evidence.” Longbehn v. Schoenrock , 727
N.W.2d 153, 159 (Minn. App. 2007) (quotation omitted). “Courts must view the evidence
in the light most favorable to the nonmoving party and determine whethe r the verdict is
manifestly against the entire evidence or whether despite the jury’s findings of fact the
moving party is entitled to judgment as a matter of law.” Id. (quotation omitted). “JMOL
is appropriate when a jury verdict has no reasonable suppo rt in fact or is contrary to law.”
Id. An appellate court reviews a district court’s decision to grant or deny JMOL de novo.
Id.
Under Minn. R. Civ. P. 59.01(g), a district court may grant a motion for a new trial
if “[t]he verdict . . . is not justified by the evidence, or is contrary to law.” “On appeal from
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a denial of a motion for a new trial, an appellate court should not set aside a jury verdict
unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the
light most favorable to the verdict.” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999)
(quotations omitted). Although the new-trial standard is less rigorous than the standard for
granting JMOL, it is still a demanding standard. Clifford v. Geritom Med, Inc., 681 N.W.2d
680, 687 (Minn. 2004). B ecause the district court is in a better position to determine
whether the verdict is justified by the evidence, this court will not reverse its decision to
deny a motion for a new trial absent a clear abuse of discretion. See Baker v. Amtrak Nat’l
R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn. App. 1999).
Appellant challenges the district court’s denial of her JMOL and new -trial motions
on the grounds that (1) the district court erred by failing to “exclude the testim ony of
respondents’ experts contrary to Rule 702 of the Minnesota Rules of Evidence” and (2) the
district court erred by allow ing “a treating physician, Dr. Nagib, to testify at trial as a
[Minn. R. Civ. P.] 26 expert and render his opinion as to the speed of growt h of the
osteomyelitis bacteria.” As to the testimony of respondents’ experts, appellant argues, “If
the evidence is excluded, . . . reasonable minds could only reach one conclusion, a judgment
in favor of the Appellant.” As to the testimony of Dr. Nagib, appellant argues, “The
admission of such improper evidence, giving an unfair and prejudicial advantage to the
Respondents, in the battle of the experts, has deprived the Appellant of a fair trial, in light
of the fact that the negligence and cau sation are totally and exclusively dependent upon
expert testimony.”
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Appellant’s challenge to the district court ’s denial of her JMOL and new -trial
motions hinges on her assertion that the district court erred by allowing respondents’
experts and Dr. Nagib to testify regarding the timing of her infection. We therefore focus
our review on these evidentiary rulings and address each of the underlying assertions of
error in turn. See Doe v. Archdiocese of St. Paul , 817 N.W.2d 150, 164 (Minn. 2012)
(considering evidentiary ruling first because the district court’s grant of summary judgment
hinged on that ruling).
I.
Appellant argues that the district court erred by failing to “exclude the testimony of
respondents’ experts contrary to Rule 702 of the Minnesota Rules of Evi dence.”
Specifically, appellant objects to respondents’ expert testimony regarding when appellant’s
infection began. At trial, appellant’s expert s testified that the infection was likely seeded
during her surgery with Dr. Nagib, that the infection progressed over several months, and
that appellant’s continuing pain was a sign of infection. Respondents’ experts testified that
the infection developed rapidly, likely from two to ten days prior to appellant presenting at
the hospital with paralysis.
Minn. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise. The
opinion must have foundational reliability. In addition, if the
opinion or evidence involves novel scientific theory, the
proponent must establish that the underlying scientific
9
evidence is generally accepted in the relevant scientific
community.

For expert testimony to be admissible under Rule 702, a proponent must show that
the testimony passes a four-part test: “(1) [t] he witness must qualify as an expert; (2) the
expert’s opinion must have foundational reliability; (3) the expert testimony must be
helpful to the trier of fact; and (4) if the testimony involves a novel scient ific theory, it
must satisfy the Frye-Mack standard.” Doe, 817 N.W.2d at 164. Appellant focuses on the
second requirement, arguing that respondents’ experts’ opinions lack foundational
reliability and thus were not helpful to the trier of fact. We review a district court’s ruling
regarding foundational reliability for an abuse of discretion. Id.
The supreme court has outlined three steps that a district court must take in
analyzing the foundational reliability of expert testimony. Id. at 167-68. “First, the district
court must analyze the proffered testimony in light of the purpose for which it is being
offered.” Id. “Second, the court must consider the underlying reliability, consistency, and
accuracy of the subject about which the expert is t estifying.” Id. at 168. Finally, “the
proponent of evidence about a given subject must show that it is reliable in that particular
case.” Id. “ As long as the district court considered the relevant foundational reliability
factors, [an appellate court] will not reverse its evidentiary finding absent an abuse of
discretion.” Id.
The district court summarized the basis for respondents’ experts ’ testimony
regarding the onset of appellant’s infection as follows:
Dr. Christian Schrock is an expert witness w ith a background
as an epidemiologist evaluating infectious diseases. His
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opinions are based on his training, expertise, generally
accepted principles of science related to the care and treatment
of patients with infections, [ appellant’s] medical records, and
deposition transcripts. Dr. Schrock’s opinion is that the
Streptococcus intermedius bacteria causing [ appellant’s]
infectious process is an organism that can cause serious
infections very rapidly. He cited to an article as an example of
organisms in the Streptococcus milleri family causing rapid
clinical deterioration. Dr. Schrock’s opinion was based only
in part on the article. Dr. Schrock’s opinions are supported by
the testimony of [respondents’] other expert witnesses. These
additional experts include: Dr. Amir Mehbod, whose opinion
that the infection developed rapidly is based in part on
[appellant’s] medical records and his own experience; Dr.
Frederick Strobl, whose opinion that the infection started
shortly before June 7 is based in part on [appellant’s] medical
records; [and appellant’s] treating surgeon Dr. Mahmoud
Nagib, whose opinion that [appellant’s] infection developed a
few days before June 7 is based on his observations of
[appellant] and short history of infection symptoms.

The district court reasoned that Dr. Schrock’s testimony would be helpful to the jury
in determining when appellant’s infection began and that “[w]hat [appellant] asserts are
flaws in Dr. Schrock’s analysis go to the weight of his testimony and not its admissibility.”
The district court further reasoned that “[t]he jury wi ll decide whether to credit
Dr. Schrock’s opinion, and will do so by evaluating not only his testimony but that of
[respondents’] experts corroborating his testimony and that of [ appellant’s] e xperts
opposing it.” The district court concluded that the jury should “hear the conflicting
opinions of both sides’ experts regarding the pace of bacterial growth as it relates to the
progression of [appellant’s] infection” and held that the testimony of respondents’ experts
was admissible under Rule 702. The district court also concluded that “[t]he scientific
theories underlying bacterial reproduction rates, infectious process, and diagnosis of
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discitis and osteomyelitis are each well established ,” and that respondents’ expert s’
opinions do not involve novel scientific theories and therefore do not implicate the Frye-
Mack standard.
Appellant contends that respondents’ experts “had no science to back up their theory
that [the] bacteria grew so f ast that in less than twelve (12) days it had caused such
extensive destruction of the vertebral bodies that they collapsed and caused impingement
of the spinal cord and [her] permanent paralysis.” Appellant argues that the district court
allowed respondents’ experts to instead “testify as to their own personal experience,” which
is “contrary to Rules 702 and 703 of the Minnesota Rules of Evidence.” Appellant relies
on Doe v. Archdiocese of St. Paul and Jacobson v. $55,900 in U.S. Currency. 817 N.W.2d
at 167; 728 N.W.2d 510, 529 (Minn. 2007). Although both cases are relevant in that they
describe the standards for determining foundational reliability, the circumstances of those
cases are different than those in this case.
In Doe, the supreme court considered whether the district court had erred by finding
that the “theory of repressed and recovered memory” was inadmissible as foundationally
unreliable under the Frye-Mack standard. 817 N.W.2d at 166. In concluding that the
district court did not err, t he supreme court noted that the district court had “found that
while there are hundreds of studies on the theory of repressed and recovered memory, it
was unconvinced that any of the studies had proved the existence of, much less the accuracy
or reliability of, repressed and recovered memories.” Id. at 169.
In Jacobson, the supreme court considered whether the district court had erred by
admitting dog -sniff evidence to prove a connection between seized cash and drug
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trafficking. 728 N.W.2d at 525. The supreme court stated that it agreed “with the
reemerging view that a dog’s alert could meet the relatively low threshold for relevance on
the question of whether cash is connected to drug trafficking.” Id. at 527-28. The supreme
court found that the dog -sniff evidence was relevant, but concluded that the evidence
lacked an adequate foundation because the proponent of the evidence (1) failed to provide
evidence regarding the dog’s training, certifications, or accuracy and (2) failed to provide
evidence establishing foundation that the specific dog sniff at issue was reliable. Id. at
529-30.
Unlike Jacobson, this case does not involve a failure to establish an expert witness’s
qualifications or the reliability of a particular test . And unlike Doe, this case does not
involve a novel scientific theory or a question regarding whether a particular phenomenon
exists. The parties do not dispute that a Streptococcus milleri bacteria caused the infection
that ultimately resulted in appellant’s paraplegia. Instead, they dispute the growth rate of
that infection. In doing so, each side relies on scientific evidence.
Appellant argues that respondents’ experts’ opinions are not reliable because they
are based on personal experience, and not on repeated clinical trials. However, appellant’s
own evidence supports respondents’ expert testimony regarding the timing of her infection.
Appellant presented a peer -reviewed study of “64 patients of vertebral osteomyelitis
bacteria growth” in support of her negligence claim at trial. In that study, the mean duration
of symptoms before hospital admission was “48 +/ - 40 days,” meaning that the longest
duration that any of the patients experienced symptoms before hospital admission was 88
days and the shortest duration was eight days. Because at least one of the patients in the
13
study experienced symptoms only eight days prior to hospital admission, the peer-reviewed
study on which appellant relie d shows that it is possible that her infection developed
between her last examination with respondents on May 25 and her admission to the hospital
on June 7. Although the study indicates that it is rare for patients to experience symptoms
for such a brief period of time, the likelihood that appellant’s infection developed quickly
goes to th e weight of respondents’ expert -witness testimony, and not its foundational
reliability.
On this record, the district court did not abuse its discretion by allowing the jury to
hear the opinions of respondents’ experts regarding the timing of appellant’s infection.
II.
Appellant argues that the district court erred by allowing “a treating physician,
Dr. Nagib, to testify at trial as a [Minn. R. Civ. P.] 26 expert and render his opinion as to
the speed of growt h of the osteomyelitis bacteria. ” This court reviews a district court’s
evidentiary rulings for an abuse of discretion. Kroning v. State Farm Auto. Ins. Co. , 567
N.W.2d 42, 45-46 (Minn. 1997). “In the absence of some indication that the [district] court
exercised its discretion arbitrarily, capriciously, or contrary to legal usage, the appellate
court is bound by the result.” Id. at 46.
“An improper evidentiary ruling resulting in the erroneous admission of evidence
will only compel a new trial if it results in prejudicial error to the complaining party.”
George v. Estate of Baker , 724 N.W.2d 1, 9 (Minn. 2006). “An evidentiary error is
prejudicial if it might reasonably have influenced the jury and changed the result of the
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trial.” Id. For the reasons that follow, ap pellant cannot show that Dr. Nagib’s testimony
was prejudicial.
To establish a claim of medical malpractice based on negligent treatment, a plaintiff
must demonstrate “(1) the standard of care recognized by the medical community as
applicable to the particular defendant’s conduct; (2) that the defendant departed from that
standard; (3) that the defendant’s departure from that standard was a direct cause of the
patient’s injuries; and (4) damages.” Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn. 1983)
(quotation omitted). The special-verdict form submitted to the jury in this case asked the
jury to answer the following questions: (1) whether Dr. Svoboda was negligent; (2) if Dr.
Svoboda was negligent, whether her negligence was a direct cause of appellant’s injury;
and (3) if her negligence was a direct cause of appellant’s injury, what amount of damages
would fairly and adequately compensate appellant. The first question on the verdict form
regarding negligence encompasses the standard -of-care and breach -of-standard-of-care
elements of the medical -malpractice claim. The jury found that Dr. Svoboda was not
negligent, and therefore did not make findings regarding causation or damages.
Because the jury based its verdict for respondents on appellant’s failure to prove
that Dr. Svoboda breached the recognized standard of care and Dr. Nagib did not testify
regarding the standard of care or any attendant breach, Dr. Nagib’s testimony did not
prejudice appellant. Thus, the purported evidentiary error is not a basis for appellate relief.
Appellant’s arguments that the district court erred in allowing Dr. Nagib’s testimony are
therefore inconsequential, and we do not address them.
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Conclusion
Appellant’s challenge to the district court’s denial of her JMOL and new -trial
motions is base d on her assertion that the district court erred by allowing respondent’s
experts and Dr. Nagib to testify regarding the timing of her infection. Appellant does not
argue that she was entitled to JMOL or a new trial even if this testimony was properly
admitted. Because appellant fails to establish reversible error stemming from the district
court’s admission of the testimony and her challenge to the district court’s denial of her
JMOL and new-trial motions is based solely on that admission, we affirm.
Affirmed.