Herbert B. Fick, Respondent,

This opinion will be unpublished and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
A17-1388

Herbert B. Fick,
Respondent,

vs.

Eric J. Edwardson, et al.,
Appellants.

Filed April 16, 2018
Affirmed
Cleary, Chief Judge

Dakota County District Court
File No. 19HA-CV-16-911

Mark R. Kosieradzki, Andrew D. Gross, Kosieradzki Smith Law Firm, LLC, Plymouth,
Minnesota (for respondent)

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Lee L. LaBore, LaBore, Giuliani & Viltoft, Ltd., Hopkins, Minnesota (for appellants)

Considered and decided by Cleary, Chief Judge; Reilly, Judge; and Stauber, Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellants Eric J. Edwardson and John M. Edwardson (the Edwardsons) challenge
the district court’s denial of their motion for judgment as a matter of law, new trial, or
remittitur on the grounds that the jury’s awards for past medical expenses, future medical
expenses, and pain and suffering were not su pported by sufficient competent evidence.
Because the jury’s awards for past and future medical expenses and pain and suffering were
supported by the evidence presented at trial, we affirm.
FACTS
While riding his bicycle on August 1, 2010 , respondent Herber t B. Fick collided
with a vehicle operated by Eric Edwardson. Fick “went butt first into the road” after being
thrown from his bicycle and sustained an injury to his lower back. Fi ck testified that he
had pain in his lower back and pelvic area immediately after the collision and that his pain
has intensified since. More than five years after the collision, Fick commenced suit against
the Edwardsons, alleging that his injury was caused by the Edwardsons’ negligence and
carelessness.
Prior to the collision, Fick was active and relatively healthy. In the days following
the collision, Fick sought treatment from a chiropractor and a massage therapist. An MRI
revealed Fick had a fractured sacrum. It is undisputed that Fick’s sacrum was fully healed
by November 4, 2010. Fick testified that his pain continued after that date and he sought
sporadic massage and chiropractic treatment s from 2010 to 2013. In 2013, Fick saw
Dr. Adam Todd, a licensed phys ician specializing in nerve pa in. Dr. Todd conducted a
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physical exam and diagnosed Fick with severe pudendal neuropathy. Dr. Todd opined that
the condition was a permanent injury resulting from the collision. Dr. Todd referred Fick
to Dr. Stanley Antolak, prescribed him some anti-inflammatories, and “believe[d]” he
recommended physical therapy and massage therapy to treat the nerve pain.
Later that year, Fick sought treatmen t from Dr. Antolak, a licensed urologist
specializing in pelvic nerve pain. Dr. Antolak conducted a physical exam and two separate
nerve tests, and diagnosed Fi ck with pudendal neuropathy. Dr. Antolak stated that
“without a doubt with medical ce rtainty that the accident” wa s the cause of the injury.
Dr. Antolak testified that he explained to Fick the various treatment options, which ranged
from self-care, prescription medications, injecti ons, and surgery. He prescribed physical
therapy and pain psychology treatment for Fick.
Fick declined to take any medications or injections prescribed by Dr. Antolak or
Dr. Todd. Fick testified that, over the course of his life, he has avoided all medication that
is “not necessary or critical,” if he has any c hoice at all. He expl ained that his doctors
informed him of the side effects and that he believed them to be “ life threatening.” He
further explained that he may reconsider his refusal to take medication when he could no
longer handle the pain but was “afraid of what it might do for the long run.” Dr. Todd
testified that it was reasonable for Fick to choose not to take the prescribed medications or
submit to the injections as a means of treatment.
Prior to trial, Fick was examined by Dr. Fredrick Strobl, a licensed neurologist
retained by the Edwardsons. Dr. Strobl con ducted a physical exam and opined that Fick
did not sustain a permanent inju ry from the collision. He stat ed that all treatment Fick
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received from the time of the collision to November 4, 2010—the date his fractured sacrum
was healed—was reasonable and necessary. He opined that Fick’s treatment thereafter was
not related to the collision and must be rela ted to Fick’s pre-exis ting degenerative back
condition or his “excessive biking.”
Fick presented evidence of his past medical expenses related to the collision in the
form of medical bills totali ng $78,988.59. These bills included massage therapy,
chiropractic treatment, physical therapy, pa in psychology, diagnostic imaging and other
forms of treatment from the date of the collision to the time of trial. The parties stipulated
to the foundation for all the bills but only stipulated to the reasonableness and necessity of
the medical treatments throu gh November 4, 2010. Fick presented evidence on the
reasonableness and necessity of his past me dical treatment in the form of his own
testimony, that of his doctors, a nd his physical therapist. At the close of Fick’s case, the
Edwardsons moved for judgment as a matter of law (JMOL) on the issue of past and future
medical expenses, arguing that Fick failed to prove his past medical expenses were
reasonable and necessary and that he failed to meet his burden on the issue of future
medical care. The district court acknowledged that the evidence on both issues was “thin”
but held that there was sufficien t evidence on the i ssues to submit to the jury. The jury
received separate exhibits detailing the stipulated past medical expenses and contested past
medical expenses.
The special-verdict form submitted to the ju ry listed $12,142.15 as stipulated past
health-care expenses and left blanks for “co ntested past health car e expenses” and “past
pain and suffering.” The special-verdict fo rm listed two blanks for “future pain and
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suffering” and “future health care expenses.” The jury found that the collision was caused
by the negligence of both parties, apportioni ng 87% of the fault to the Edwardsons and
13% of the fault to Fick. The jury awarded a total of $1,062,809.15 in damages, of which
Fick was entitled to $9 24,643.96. The jury’s award fo r Fick’s past damages included
$12,142.15 for stipulated past medical e xpenses and $61,667 for contested medical
expenses as well as $175,000 fo r past pain and suffering. The award for Fick’s future
damages included $175,000 for future medical expenses and $639,000 for future pain and
suffering.
After trial, the Edwardsons moved for JM OL, a new trial, or remittitur of the
damages for past and future medical expenses, and pain and suffering, on grounds that Fick
failed to mitigate damages, and Fick’s counse l made improper statements during closing
argument. All motions were denied. This appeal follows.
D E C I S I O N
I. The jury’s award for past medical expe nses is supported by sufficient evidence.
The Edwardsons argue that they are entitled to judgment as a matter of law or a new
trial on the issue of past medical expenses because Fick did not meet his burden of proving
his past medical expenses. We disagree.
Judgment as a matter of law should be granted:
[O]nly in those unequivocal case s where (1) in light of the
evidence as a whole, it would clearly be the duty of the district
court to set aside a contrary verdict as being manifestly against
the entire evidence, or where (2) it would be contrary to the law
applicable to the case.

6
Jerry’s Enters., Inc., v. Larkin, Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811, 816
(Minn. 2006) (quotation omitted). We view the evidence in the light most favorable to the
nonmoving party and make an independent determination of whether there is sufficient
evidence to present an issue of fact for the jury. Id. We review the denial of a motion for
judgment as a matter of law de novo. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919
(Minn. 2009).
We review a district court’s new-trial decision for a clear abuse of discretion.
Moorhead Econ. Dev. Auth. v. Anda , 789 N.W.2d 860, 892 (Mi nn. 2010). We “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.” Navarre v. S. Wash. Cnty. Sch., 652 N.W.2d 9, 21
(Minn. 2002) (quotations omitted).
The Edwardsons argue that the award fo r past medical expenses was unsupported
by the evidence and that the district court ab used its discretion by failing to order a new
trial. The district court found that the jury’s verdict on past medical expenses had
“reasonable support in fact and [was] not contra ry to law” based on the testimony of the
doctors and Fick as well as the detailed list of medical expenses contained in the contested
past medical expenses exhibit.
The plaintiff has the burden of proving past damages by a pr eponderance of the
evidence. Rowe v. Munye, 702 N.W.2d 729, 735 (Minn. 2005). Past damages for health-
care expenses include medical supplies, hospitalization, and health-care services of every
kind necessary for treatment up to the time of the verdict. 4A Minnesota Practice, CIVJIG
7
91.15 (2014). The measure of damages for past medical expenses is the reasonable value
of the services received. Swanson v. Brewster, 784 N.W.2d 264, 281 (Minn. 2010). “There
is no fixed standard by which loss for injuries can be determined.” Brannan v. Shertzer, 242 Minn. 277, 287, 64 N.W.2d 755, 761 (1954). The assess ment of damages is within
“the peculiar province of the jury.” Myers v. Hearth Techs. Inc. , 621 N.W.2d 787, 794
(Minn. App. 2001) (quotation omitted), review denied (Minn. Mar. 13, 2001).
It is undisputed that Fick was injured as a result of the August 1, 2010 collision and
suffered a fractured sacrum that was fully healed by November 4, 2010. The Edwardsons
presented expert testimony that all medical expenses related to that injury were necessary
and reasonable and that any medical expenses incurred by Fick after November 4, 2010
were not related to the injury he sustained from the collisi on and therefore not necessary
or reasonable.
But Fick presented evidence through his own testimony and that of his treating
physicians that his past medical expenses were reasonable and necessary to treat the nerve
injury he suffered in the collision. Fick tes tified about his pain and his pain management
practices before and after the injury. Fick described the pa in and sensations associated
with his injury and testified that this pain was the reason he sought the various medical
treatments he did from the time of the collisi on to the time of trial. Both Dr. Todd and
Dr. Antolak diagnosed Fick with pudendal neur opathy and opined th at this injury was
caused by the August 1, 2010 collision. And both doctors testified that the injury was
permanent. Both doctors endorsed physical therapy and massage therapy as treatments for
Fick’s nerve pain and Dr. Antolak recommended he see a pain psychologist in addition to
8
these treatments. Further, all Fick’s past medical bills were submitted to the jury and
included descriptions of the treatment he re ceived, a breakdown of the cost of each
treatment, and treatment notes. No evidence was presented questioning the reasonableness
of the billing practices of any treatment provider.
Viewed in the light most favorable to Fick, this evidence is sufficient to support the
award for past medical expenses. As the district court found, Fick’s own testimony and that
of his treating physicians, combined with the detailed list of medical expenditures,
established the reasonableness and necessity of his past medical expenses. Accordingly,
we conclude that the Edwardsons were not entitled to judgment as a matter of law or a new
trial on the issue of past medical expenses.
II. The jury’s award for future medical expenses is supported by sufficient
evidence.

The Edwardsons argue that they are entitled to judgment as a matter of law or a new
trial on the issue of future medical expenses because Fick did not meet his burden of
proving his future medical expenses. We disagree.
As discussed above, we review the district court’s denial of the Edwardsons’ motion
for judgment as a matter of law de novo and the denial of a motion for a new trial for abuse
of discretion. “In a civil action the plaintiff has the burden of proving future damages to a
reasonable certainty” to ensure that “there is no recovery for damages which are remote,
speculative, or conjectural.” Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980). But
it is not necessary that “the evidence be unequivocal or that it establish future damages to
an absolute certainty.” Id. Rather, the “plaintiff must pr ove the reasonable certainty of
9
future damages by a fair preponderance of the evidence.” Id. To establish damages for
future medical care, a plaintiff must (1) dem onstrate that “future damages in the form of
future medical treatments will be required” and (2) establish the amount of the future
medical expenses by expert testimony. Lind v. Slowinski , 450 N.W.2d 353, 358 (Minn.
App. 1990), review denied (Minn. Feb. 21, 1990). Future medical expenses will not be
allowed “without an estimate of what they might be” because future medical expenses are
“a matter which the jury can not compute blindly without expert testimony” and thus
“cannot be left to their speculation.” Lamont v. Indep. Sch. Dist. No. 395, 278 Minn. 291,
295, 154 N.W.2d 188, 192 (1967). The jury is not permitted to “award any amount based
on a showing that expenses are likely to occu r. The plaintiff must also present some
evidence of what the expenses will be.” Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn.
App. 1987).
In this case, the first requirement of Lind is met: Dr. Antolak and Dr. Todd both
testified that Fick sustained a permanent injury from the collisi on. And Dr. Antolak
testified that it is more likely than not that Fick would continue to have nerve pain for the
rest of his life, regardless of the course of tr eatment he chose. On this expert testimony,
the jury could have found that it was reasona bly certain that Fick would incur future
medical expenses. See Krutsch v. Walter H. Collin GmBh Verfahr enstechnik Und
Maschinenfabric, 495 N.W.2d 208, 213 (Minn. App. 1993) (concluding need for future
medical care was established through expert testimony that the plaintiff’s condition was
“permanent” and would “require continual medical treatment”), review denied (Minn. Mar.
22, 1993).
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With respect to the second requirement, this case is similar to Kwapien. In Kwapien,
the plaintiff presented evidence she had a perm anent injury and that physical therapy or
similar treatment would be required for the re st of her life. 400 N.W.2d at 184. The
plaintiff presented evidence of the cost of her past physical thera py sessions but did not
provide a specific estimate of the total cost of her future medical expenses. Id. This court
upheld the jury’s award of fu ture medical expenses because, based on that evidence, “it
was possible for the jury to take [the plain tiff’s] life expectancy and factor it against the
cost of her past physical ther apy treatments to arrive at an approximate figure for future
medical expenses.” Id. “A figure arrived at in this manner based upon the evidence
presented would not have been pure speculation.” Id.
Here, Fick presented “some evidence” of wh at his future medical expenses would
be through expert testimony from Dr. Todd and Dr. Antolak. As in Kwapien, there was no
expert testimony providing a specific estimation of the cost of the future medical treatment
Fick would require. But both doctors testif ied that they recommended physical therapy
and massage therapy prior to trial. And Fick presented evidence that the weekly costs of
his physical therapy and massage therapy were $110 and $160 respectively. Further, expert
testimony established that the potential cost of surgery was in excess of $50,000 and the
potential cost of prescripti on medication w ould be between $300 a nd $6,000 per month
depending on the type of medication and dosag e required. While there was no specific
statement about how much future medical tr eatment Fick would need—whether it would
be more or less physical therapy and massage, a specific dosage of medication per month,
11
surgery, or a combination of all three—the jury was presented with sufficient evidence to
make an approximation of future expenses that was not “pure speculation.”
Viewed in the light most favorable to Fi ck, the award for future medical expenses
has ample support in the reco rd. There was testimony that his condition was permanent
and that he would continue to need medical treatment for the rest of his life, regardless of
which treatment path he chooses. The jury heard evidence about the costs of each of the
three treatment paths: self-car e, medication, and surgery a nd it was possible for them to
arrive at an approximate figure based on th e projected costs of each of these three
treatments or a combination of the three and Fick’s life expectancy. Accordingly, we
conclude that the Edwardsons are not entitled to judgment as a matter of law nor a new
trial on the issue of future medical expenses.
III. The jury’s award for pa in and suffering is supported by sufficient evidence.
The Edwardsons argue that Fick’s “abject refusal to accept” some of his doctors’
recommendations, specifically those involving pain medication, constitutes a failure to
mitigate damages that justifies a remittitur or new trial on the jury’s award for pain and
suffering. This issue was raised posttrial a nd the district court denied the Edwardsons’
motion, finding that “there was sufficient eviden ce presented to the jury for it to find that
[Fick] exercised reasonable precaution in the care and treatment of his injury” and that the
evidence presented was “more than sufficient to uphold the ju ry’s verdict regarding past
and future pain and suffering.” On this record, the district court did not abuse its discretion
in denying the Edwardsons’ motion for a new trial.
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“The discretion to grant a new trial on th e ground of excessive damages rests with
the [district] court, whose determination will only be over turned for abuse of that
discretion.” Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn.
1984). It is within the di strict court’s discretion to determine whether damages are
excessive and whether the cure therefor is remittitur or a new trial. Ray v. Miller Meester
Adver., Inc. , 664 N.W.2d 355, 368 (M inn. App. 2003), aff’d, 684 N.W.2d 404 (Minn.
2004). “Remittitur may be granted on the ground that an excessive verdict appears to have
been given under the influence of passion and prejudice or on the ground that the damages
are not justified by the evidence” and the dist rict court’s decision on whether to grant a
remittitur will not be overturned absent a clear abuse of discretion. Kwapien, 400 N.W.2d
at 184.
The Edwardsons argue that medical treat ment may only be rejected where it poses
a risk to life, such as a major surgery or operation. But there is no such bright line rule.
Rather, a “[p]laintiff has a duty to mitigat e damages by acting reasonably in obtaining
treatment for her injury.” Adee v. Evanson , 281 N.W.2d 177, 1 80 (Minn. 1979) (citing
Couture v. Novotny , 297 Minn. 305, 211 N.W.2d 172 (1973)). This reasonableness
standard does not require the plaintiff to “submit to a major surgical operation” nor a form
of medical treatment “when the prospect of success is uncertain or when there is a chance
of unsatisfactory results.” Couture, 297 Minn. at 309-10, 211 N.W.2d at 174-75. Instead,
the plaintiff “may choose to bear his affliction and be compensated for it.” Id. at 309, 211
N.W.2d at 175. But in doing so, a plainti ff may not insist on one form of medical care
13
instead of another “and thereby aggravate da mages, unless the jury could find that a
reasonable person would do so.” Adee, 281 N.W.2d at 181.
Here, there was sufficient ev idence to establish that Fick mitigated his damages by
acting reasonably in obtaining treatment for his injury. And while Fick insisted on a form
of treatment other than prescription medicati ons, injections, or su rgery, he presented
sufficient evidence to establish that a reasonable person would do so. The jury heard
evidence about Fick’s lif estyle changes and treatment strate gies: his standing rather than
sitting at most opportunities, his modified bike seat, the special pad he uses when he is
required to sit, as well as his physical th erapy, massage therapy treatments, and pain
psychology treatments. The jury heard about Fick’s concerns related to the side effects of
prescription drugs, including the long-term consequences of lifel ong medication and his
decision not to treat his nerve injury with injections or surgery. Further, there was expert
testimony about the success rates and side effects of the medical procedures and
medications. Dr. Todd testified about the side effects of the medication Fick was initially
prescribed and stated that they ranged from dizziness and weight gain to fatigue and effects
on a person’s brain and ability to think. Similarly, Dr. Antolak testified that the main side
effect of the drug was “thinking problems.” Both doctors testified that prescription
medication could not heal a nerve and could not guarantee it would eliminate his pain.
There was also substantial testimony about th e invasiveness and pain associated with the
injections and surgery included as possible treatment methods for Fick’s injury and neither
doctor testified that either method would provi de Fick with lasting relief to a medical
14
certainty. Moreover, Dr. Todd testified that it was reasonable for Fick to refuse to take the
medications prescribed or submit to the surgical procedure or injections.
The jury heard evidence ab out the possible avenues of treatment, their respective
success rates and side effects, and Fick’s reasons for choosing not to pursue those
treatments. On this record, Fick presented sufficient evidence to permit the jury to find his
treatment strategies were reasonable despite the availability of ot her treatment options.
Accordingly, the district court did not abus e its discretion in denying the Edwardsons’
motion for a new trial or remittitur.
Affirmed.