Patricia J. Marquardt, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0968

Patricia J. Marquardt,
Respondent,

vs.

James M. Schaffhausen, et al.,
Appellants,
Steven M. Dittes, et al.,
Defendants,
Steven W. Sonnesyn, et al.,
Defendants.

Filed May 20, 2019
Reversed and remanded
Reyes, Judge
Dissenting, Jesson, Judge

Hennepin County District Court
File No. 27-CV-16-12770

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota; and

Scott Wilson, Scott Wilson, Attorney at Law, Minneapolis, Minnesota; and

Douglas E. Schmidt, Stephanie J. Winter, Schmidt & Salita, Minnetonka, Minnesota (for
respondent)

Richard J. Thomas, Chad J. Hintz, B urke & Thomas PLLP, Arden Hills, Minnesota (for
appellants)

Considered and decided by Reyes, Presiding Judge; Jesson, Judge; and Cochran,
Judge.

2
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this appeal from judgment following a jury trial on respondent patient’s medical-
malpractice claims arising out of brain injuries suffered following a knee replacement,
appellants orthopedic surgeon and clinic challenge the denial of their motions for judgment
as a matter of law (JMOL) or a new trial. We reverse and remand.
FACTS
In January 2012, appellant Dr. James Schaffhause n performed a total knee
arthroplasty (TKA) on respondent Patricia Marquardt’s right knee. Upon opening the knee
joint, Dr. Schaffhausen observed “dark, cloudy fluid” and necrotic (dead) tissue.
Dr. Schaffhausen suspected infection and ordered a Gram stain test and a culture.1 While
he waited for the results of the Gram stain test, he disinfected and removed unhealthy tissue
from the joint area. The Gram stain test came back negative, indicating “that the likelihood
of infection [was] very low,” so Dr. Schaffhausen continued with the surgery.
Three days post -surgery, Dr. Schaffhausen learned that the culture sent to the lab
produced Methicillin-resistant Staphylococcus Aureus (MRSA), a type of staph infection.
Dr. Schaffhausen consulted with an infectious -disease specialist, who advised th at
Marquardt be treated with a six -week intravenous administration of vancomycin,
consisting of one dose every 12 hours. After the administration of the third dose, a
vancomycin trough was obtained to ensure that Marquardt’s vancomycin levels were not

1 A Gram stain and a culture are tests doctors can order if they suspect an infection. Gram
stain tests provide quick results while cultures take several days.

3
in a dangerous range. Testing showed that her vancomycin levels were in an a ppropriate
range for Marquardt to continue her vancomycin administration at home.
Dr. Schaffhausen, relying on the results of additional tests conducted by the infectious-
disease sp ecialists, discharged Marquardt from the hospital , and arranged weekly
monitoring of her at-home vancomycin treatment by her treating infectious-disease doctor.
On the first day of Marquardt’s at -home monitoring, a blood test revealed that she had
severely high vancomycin levels. Marquardt went to the hospital, where she was diagnosed
with vancomycin toxicity, acute renal failure, anemia, and MRSA.
Marquardt’s condition deteriorated , and she began experiencing neurological
symptoms, including seizu res. Marquardt again went to the hospital , where neurologist
Dr. Laura Boylan diagnosed her with acute disseminated encephalomyelitis (ADEM) 2
“occurring peri-infecticiously with MRSA.” Dr. Boylan placed Marquardt on a ster oid
regimen to treat the ADEM and discharged her. Marquardt returned to the hospital a few
days later. After being discharged again, she returned later that same day after suffering a
seizure at home. Neurologist Dr. Mostafa Farache changed Marquardt’s diagnosis to
posterior reversible encephalopathy syndrome (PRES ).3 Based on this new, updated
diagnosis, Marquardt’s treatment included discontinuing steroids, which had been
administered to reduce the inflammation associated with ADEM, but can aggravate blood

2 ADEM is an autoimmune inflammatory condition, usually seen after an infection, where
the immune system, which builds antibodies to attack foreign bodies , attacks the nervous
system (brain and spinal cord).
3 PRES is a condition where there is a hyperperfusion of fluid (sometimes blood) into the
brain. Hypertension (high blood pressure) can worsen a case of PRES.

4
pressure and wors en PRES, and begin ning treatment for “acute renal failure” due to
vancomycin toxicity . Consultation with the Mayo clinic led to the Mayo Clinic’s
conclusion that Marquardt “ [d]eveloped acute renal failure due to vancomycin and then
elevated blood pressures. Subsequently developed PRES.” Marquardt continues to suffer
from significant neurological injuries affecting her vision, balance, memory, and cognition.
Marquardt filed suit against Dr. Schaffhausen and appellant Twin Cities
Orthopedics, P.A. ( collectively, appellants) on January 13, 2016 , alleging negligence,
patient abandonment, and informed -consent violation. The district court held a jury trial
over several days . The parties agreed that Marquardt’s MRSA infection exi sted prior to
the TKA surgery. Because Marquardt’s experts provided differing testimony as to
Marquardt’s final neurological condition, Marquardt argued two possible theories of
causation: (1) relying on Dr. Boylan’s initial ADEM diagnosis, Marquardt claimed that Dr.
Schaffhausen caused her ADEM by continuing with the TKA surgery after discovering her
infected knee joint , and this spread th e MRSA infection into her bloodstream ; or,
alternatively (2) if Marquardt had PRES, then Dr. Schaffhausen caused it by prematurely
discharging her from the hospital and failing to properly monitor her vancomycin
treatment.
After trial, the jury returned a special verdict in favor of Marquardt, finding
Dr. Schaffhausen negligent in his care . The jury awarded Marquardt $2,500,000 in
damages. Appellants moved for JMOL in their favor or, in the alternative, a new trial. The
district court denied appellants’ motion s, ruling that the record contained sufficient
evidence to support the jury’s verdict. This appeal follows.

5
D E C I S I O N
Appellants challenge the denial of their motion s for JMOL or a new trial, arguing
(1) Marquardt produced insufficient evidence of causation; (2) the district court abused its
discretion by admitting Dr. Boylan’s ADEM diagnosis without requiring her to testify at
trial; (3) Marquardt’s counsel engaged in misconduct during closing arguments by
materially misrepresenting appellants’ expert’s testimony ; (4) Marquardt failed to prove
the reasonableness and necessity of her past medical expenses; and (5) Marquardt’s expert
witnesses lacked the requisite qualifications to testify. We address appellants’ last
argument first.
Appellants argue that a new trial is warranted because the district court abused its
discretion by admitting the testimony of Marquardt’s expert witnesses, Dr. John Stark and
Dr. Kevin Stephan. Specifically, appellants contend that, under Minn. R. Evid. 702 and
caselaw, both doctors lack the requisite foundational qualifications to testify as medical
experts on causation of the two possible neurological conditions. We agree.
The granting of a new trial rests la rgely within the district court’ s discretion, and
reversal is warranted only when its decision involves a violation of a clear legal right or a
manifest abuse of discretion. Blatz v. Allina Health Sys. , 622 N.W.2d 376, 387 (Minn.
App. 2001), review denied (Minn. May 16, 2001). To prevail on her claim for medical
malpractice, Marquardt must show (1) the standard of care recognized by the medical
community; (2) Dr. Schaffhausen’s departure from that standard; (3) that
Dr. Schaffhausen’s departure from that standard directly cause d her injuries; and
(4) damages. Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn. 1983).

6
To prove that Dr. Schaffhausen’s alleged deviation s directly caused her injuries,
Marquardt argued two different paths of causation based on whether she had a neurological
diagnosis of ADEM or PRES , which are two very d ifferent neurological conditions with
two different treatment programs. 4 Therefore, in order for Marquardt to directly link her
ultimate neurological condition to any alleged negligence by Dr. Schaffhausen, she had to
demonstrate, including through expert testimony, that the record supported one or both of
the possible diagnoses.
We review the district court’s determination as to expert-witness competency for a
“clear abuse of discretion.” Koch v. Mork Clinic, P.A., 540 N.W.2d 526, 529 (Minn. App.
1995) (citation omitted). Minn. R. Evid. 702 governs the admissibility of expert testimony
and provides that “[i]f 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.” (Emphasis added). Although education and
professional training are important considerations, it is the “occupational experience” of a
potential expert witness that is of “controlling importance” when determining qualification.
Cornfeldt v. Tongen , 262 N.W.2d 684, 692 ( Minn. 1977) (citation omitted). An expert

4 While Marquardt argues that “there has been no ‘change ’ to the AD EM diagnosis” by
Dr. Farache, rather, that “[b]oth diagnoses exist in the record, as alternative or different
explanations” for her brain damage, a careful review of the undisputed record belies
Marquardt’s argument. Specifically, when Dr. Farache changed Marquardt’s diagnoses
from ADEM to PRES, he stopped the steroid regimen for ADEM, which indicated that he
did not agree with that diagnosis. Significantly, in ending the steroid treatment for ADEM,
Dr. Farache testified that steroids pose a risk of worsen ing PRES. Dr. Farache then
commenced treatment specifically and solely for PRES.

7
unfamiliar with a procedure cannot testify about it. Koch, 540 N.W.2d at 529. While “the
exclusion of expert medical testimony is within the sound discretion of the [district] court,”
Reinhardt, 337 N.W.2d at 93, caselaw is clear that a district court abuses its discretion and
a new trial may be granted if it admits testimony from an unreliable expert who lacks the
requisite scientific knowledge and practical experience in a particular area. Cornfeldt, 262
N.W.2d at 692; accord Sanchez v. Waldrup, 136 N.W.2d 61, 68 (Minn. 1965).
In Reinhardt, the supreme court held that the district court appropriately excluded a
pathologist’s testimony about the use of a specific drug to treat rheumatoid arthritis because
the pathologist lacked practical experience in prescribing the drug or treating a patient
taking the drug, and “admitted that it is not his job to make a diagnosis of rheumatoid
arthritis.” 337 N.W.2d at 93-94. The supreme court in Teffeteller v. Univ. of Minn., upheld
the district court’s decision that a pediatrician is not competent to testify as to a claim of
malpractice in the subspecialty of pediatric oncology because the pediatrician did not
specialize in that area and lacked experience in the specializ ed procedure. 645 N.W.2d
420, 427-28 (Minn. 2002). In Swanson v. Chatterton, the supreme court agreed with the
district court’s decision to exclude an orthopedic surgeon’s testimony about diabetes
because the surgeon showed no “special knowledge” or practical experience in the field of
diabetes. 160 N.W.2d 662, 669 (Minn. 1968). This court, in Riewe v. Arnesen, upheld a
district court’s decision to permit a nonsurgeon gastroenterologist to testify about surgical
procedures, a matter outside his area of expertise, only because he had extensive

8
occupational experience in the surgical field. 5 381 N.W.2d 448, 459 (M inn. App. 1986),
review denied (Minn. Mar. 27, 1986).
As explained below, neither Dr. Stark nor Dr. Stephan has the requisite occupational
experience in neurology, much less in ADEM or PRES. As a result, they were not qualified
to testify on ADEM and PRES, or what caused them, creating a gap in Marquardt’s chain
of causation.
I. Dr. John Stark
Dr. Stark has the educational and professional training of an orthopedic surgeon, as
well as the occupational experience. As a result, he is qualified to opine on the standard of
care of an orthopedic surgeon performing a TKA surgery, as well as any deviations from
that standard. His testimony on these topics is therefore admissible.
However, Dr. Stark is not a neurologist who specializes in independently diagnosing
neurological conditions such as ADEM or PRES. He admits that, as an orthopedic surgeon,
he has never treated a patient with ADEM, and admits that incidents of ADEM are “very
rare.” He further testified that he has never seen a case of ADEM following a MRSA
infection. Not only does this reflect his lack of occupational experience, it is direct
testimony that weakens Marquardt’s “spread” theory as to the causal link between ADEM
and MRSA. Dr. Stark is not qualified to provide an opinion about ADEM or its cause.

5 The gastroenterologist had practical experience treating patients with similar abdominal
complications as respondent, he worked day -to-day with surgeons over a long period of
time, he observed many surgeries, he participated with surgeons in the assessment of
surgical needs of patients and types and methods of surgical procedures to be applied, and
he had knowledge of surgical standards. Id. Neither Dr. Stark nor Dr. Step han has this
kind of practical experience in neurology.

9
Despite his lack of foundational qualification s, the district court admitted Dr. Stark’s
testimony that the TKA surgery proximately caused Marquardt’s brain damage by ADEM.
Similarly, as to PRES, Dr. Stark has never treated or diagnosed PRES and admits
that he is not an expert in PRES . While consultations with specialists may constitute
practical experience, Koch, 540 N.W.2d at 530, there is no in dication in the record that
Dr. Stark consulted with a neurologist about ADEM, PRES, or their causes. Dr. Stark
merely “did some reading on” ADEM and PRES in preparation for testifying in this case.
Although Dr. Stark claimed that he could distinguish ADEM from PRES based on an MRI
image, he incorrectly identified their distinguishing f eatures. Dr. Stark stated that he had
“no opinion” as to whether Marquardt had ADEM or PRES. However, later in his
deposition, he stated that he thought Marquardt had ADEM.
Finally, the administration of vancomycin treatments is also outside of Dr. Stark ’s
area of expertise. He admitted that, as an orthopedic surgeon, he does not determine when
a vancomycin trough should be done or what the proper monitoring of vancomycin troughs
would be and that he relied on other medical specialists to provide their expertise in this
area. He added that “it would involve a team of people, including the Pharm. Ds. and the
infectious disease specialists . . . to discuss these very difficult problems.” He admitted
that vancomycin toxicity “occurs very rarely,” about “5 to 7 percent” of the time.
Because Dr. Stark lacks the necessary occupational experience with respect to
ADEM, PRES, and vancomycin treatment, the district court abused its discretion by
allowing in his testimony on these three topics and causation.

10
II. Dr. Kevin Stephan
Dr. Stephan is an infectious-disease specialist who treated Marquardt in this case.
He has the educational background and occupational experience to opine on the spread of
infections and TKAs in the presence of MRSA. His testimony on these topics is
admissible.
However, as an infectious-disease specialist and not a neurologist who specializes
in independently diagnosing neurological conditions such as ADEM or PRES, Dr. Stephan
is not qualified to provide an opinion as to these conditions . Dr. Stephan lacks prior
occupational experience in treating ADEM . H is only experience i s in this very case.
Notably, Dr. Stephan did not independently diagnose Marquardt with ADEM. Rather, he
relied on reports from his neurologist or radiologist colleagues to conclude that Marquardt
had ADEM. There is no indication in the record that his reliance on the reports involved
Dr. Stephan consulting with the neurologists about the causes of ADEM and PRES. The
record indicates that, once Dr. Farache changed Mar quardt’s diagnosis to PRES,
Dr. Stephan adopted the PRES diagnosis in his own medical notation in Marquardt’s
records, several days later. Given Dr. Stephan ’s lack of occupational experience in
diagnosing ADEM and lack of experienc e in treating ADEM, he is not qualified to
independently opine about the neurological conditions or their causes. Despite his lack of
qualifications, the district court admitted Dr. Stephan’s conclusory testimony that “it’s a
highly likely situation” that the types of cuts to Marquardt’s bone could have spread the
MRSA infection and that the MRSA led to ADEM.

11
Similarly, Dr. Stephan is not qualified to provide an expert opinion on PRES
because he lacks the prior occupational experience in t reating a patient with PRES. His
only experience with PRES is in this very case and, here as well, Dr. Stephan relied on the
diagnoses of his neurologist colleagues. Similarly, Dr. Stephan is not qualified to opine
about any alleged connection between PRES and vancomycin treatments. He admitted that
he has not seen a case of PRES associated with vancomycin toxicity in his practice, only
in medical literature. Despite this, he testified that, if Marquardt acquired PRES due to her
sensitivity to vancomycin treatment, then the TKA surgery did not cause her PRES. Not
only does Dr. Stephan lack the foundational qualification to provide this testimony, but to
the extent that he did testify, it is favorable to appellants’ case. Because Dr. Stephan lacks
the necessary occupational experience with respect to ADEM and PRES, his testimony on
these topics, including their cause, should have been excluded.
As an infectious-disease specialist who has treated dozens of cases of vancomycin
toxicity, Dr. Stephan is competent to testify about the administration of vancomycin . In
this regard, he testified that Marquardt would have experienced vancomycin toxicity
whether or not she had the TKA surgery because she needed vancomycin for her MRSA
infection, and she had a sensitivity to it. He also stated that the hospital provided Marquardt
with “appropriate care” in monitoring her vancomycin troughs prior to her discharge. This
dispels Marquardt’s theory of causation for PRES, which is based on Dr. Schaff hausen’s
alleged failure to properly monitor her vancomycin treatment before her discharge from
the hospital. Dr. Stephan added that it “didn’t seem likely” to him that the vancomycin
toxicity caused Marquardt’s brain damage.

12
As a result of Dr. Steph an’s testimony about vancomycin treatment, ADEM is
Marquardt’s only remaining causation theory for her neurological injuries . But neither
Dr. Stark nor Dr. Stephan is a neurologist, nor do they have the requisite occupational
experience to opine on ADEM or its cause. The district court therefore erred by denying
appellants’ motion for a new trial on this basis.
Reversed and remanded.

D-1

JESSON, Judge (dissenting)
I respectfully dissent.
Well within its wide discretion, the district court refused to overturn the jury’s $2.5
million verdict in favor of respondent Patricia Marquardt and denied appellants’ posttrial
motions. It deemed Ms. Marquardt’s experts qualified to testify as to causation. And,
having presided over the lengthy proceedings, it concluded that the verdict w as not
“manifestly and palpably contrary to the evidence viewed as a whole.” Renswick v. Wenzel,
819 N.W.2d 198, 204 (Minn. App. 2012) (quotation omitted), review denied (Minn. Oct.
16, 2012).
We should affirm. To be sure, both Ms. Marquardt and appel lants Dr. James
Schaffhausen and Twin Cities Orthopedics, P.A., presented compelling testimony. Based
upon my review of the record, I conclude that a reasonable jury could have rendered a
verdict for either side. But that is just the point—the jury resolved the evidentiary conflicts
in favor of Ms. Marquardt. As a result, a ppellate review of the underlying testimony is
only to consider Ms. Marquardt’s experts’ qualifications and opinions and the evidence as
a whole in the light most favorable to Ms. Marquardt. In re Estate of Butler, 803 N.W.2d
393, 399 (Minn. 2011).
To undertake this review, I begin by addressing the issue of Ms. Marquardt’s
experts’ qualifications deemed determinative by the majority.6 And since I differ from the
majority and would affirm on this ground, I turn to the balance of issues raised by

6 This analysis includes my resolution of the issue of whether a medical record including a
diagnosis was properly admitted.

D-2

appellants: whether Ms. Marquardt introduced sufficient evidence to prove that his
negligence caused her brain injuries; whether Ms. Marquardt’s counsel committed
prejudicial error in his closing argument ; and whether Ms. Marquardt produced adequate
evidence to support the jury’s award of past medical expenses . Because the district court
did not abuse its discretion in denying Dr. Schaffhausen’s posttrial motion on these
grounds, I would affirm.
Qualifications of Ms. Marquardt’s experts
Background of experts and testimony
Everyone agrees: Ms. Marquardt had a staph infection —staph aureus, which is
referred to as MRSA 7—when she was rolled into surgery to have her knee replaced by
Dr. Schaffhausen. And while all staph infections are serious, MRSA can be particularly
aggressive. Dr. Schaffhausen did not know about the infection when he began the
operation, but Ms. Marquardt alleges that he made three fundamental errors (deviations
from the expected standard of care) between his first appointment with Ms. Marquardt and
her ultimate brain damage. First, that Dr. Schaffhausen departed from the standard of care
before the surgery , by deciding to per form it, despite the red flags permeating Ms.
Marquardt’s medical history. Second, that Dr. Schaffhausen departed during the surgery,
by continuing with the total knee replacement after opening up Ms. Marquardt’s knee and
observing dark, cloudy fluid and necrotic (dead) tissue. And third, that Dr. Schaffhausen
erred after the surgery, by failing to remove the artificial knee and sending Ms. Marquardt

7 Methicillin-resistant staphylococcus aureus

D-3

home from the hospital aft er only three days of monitoring her reaction to the toxi c
antibiotic vancomycin , rather than keeping her in the hospital or moving her to a
transitional care unit for observation. Ms. Marquardt alleged that each of these departures
caused her to suffer neurological injuries. Ms. Marquardt’s primary theory was that her
injuries were caused by ADEM, 8 which in turn was caused by the spread of the MRSA
infection into the bloodstream . But Ms. Marquardt alternatively posited that, if she had
PRES9 rather than ADEM, the PRES was caused by the extensive vancomycin treatment
that she would not have needed if Dr. Schaffhausen had diagnosed and treated the MRSA
infection through less-invasive arthroscopy, instead of proceeding with surgery .
Alternatively, she contended that any negative effects resulting from the vancomycin
treatment could have been promptly treated if she had remained in the hospital longer or
been placed in a transitional care unit. Ms. Marquardt offered two medical experts in
support of her medical-malpractice claims: Dr. John Stark and Dr. Kevin Stephan.
Dr. Stark, a graduate of the University of Minnesota Medical School, is an
orthopedic surgeon certified by the American Board of Orthopedic Surgery and the
Arthroscopy Board of North America. After completing a residency in orthopedic surgery,

8 Acute disseminated encephalomyelitis
9 Posterior reversible encephalopathy syndrome

D-4

Dr. Stark spent the first nine years of his practice doing general orthopedics, which
included total knee replacements and arthroscopy.10
Part of Dr. Stark’s training to become an orthopedic surgeon involved learning to
recognize and respond to infections as they relate to surgery. As Dr. Stark testified, “[i]t’s
a huge and critical responsibility of orthopedic surgery to diagnose and treat [infections]
efficiently and correctly.” In fact, Dr. Stark classified his training regarding dealing with
infections and their consequences as a “fundamental part” of his training at the beginning
of his career. And Dr. Stark maintains his training by participating in continuing-medical-
education programs that involve topics related to preventing, dealing with, a nd curing
infections.
Dr. Stark also explained that doctors frequently rely on the opinions of specialists
when diagnosing and treating patients. For example, Dr. Stark testified that although he
understands how the kidneys operate and function —something he would expect any
competent orthopedic surgeon to understand —he would rely on recommendations from
infectious disease specialists and hospital pharmacists when evaluating signs of renal
system problems and the effects of v arious medications. And while Dr. Stark is familiar
with ADEM through his background and training, he admitted that he is not an expert on

10Although appellants characterize Dr. Stark as an orthopedic surgeon whose primary
practice focused on the spine, lower back, and feet, Dr. Stark testified that he performed
total knee replacements at the begin ning of his career and again when he was at Regions
Hospital as an assistant professor. He estimated that he last performed a total knee
arthroplasty in 2008—four years before Marquardt’s surgery.

D-5

PRES and would use and rely on reports from a trusted neurologist or radiologist when
evaluating and diagnosing the condition.
In addition to being a practicing orthopedic surgeon, Dr. Stark joined the University
of Minnesota faculty as an assistant professor of orthopedic surgery in 2000. In that
position, Dr. Stark used his training and experience to educate young doctors in the areas
of total knee replacements and installing artificial knees. Another part of Dr. Stark’s
responsibilities as a professor involved training students about septic arthritis: an infection
inside of a joint.
Dr. Stephan, also a graduate of the University of Minnesota M edical School, is a
board-certified specialist in infectious disease medicine, which is a subspecialty of internal
medicine. Before becoming a staff physician in the infectious diseases section of the
Duluth Clinic, Dr. Stephan served as an infectious disease specialist for the U.S. Air Force
for 23 years, 13 of which included active duty. In addition to his own service, Dr. Stephan
taught the subject area of infectious diseases at the Uniformed Services University of the
Health Sciences, a military medic al school for medical officers who are getting their
training for active duty.
Dr. Stephan testified that he is familiar with MRSA and has experience treating
patients with artificial or prosthetic knee joints that are infected with MRSA. Dr. Stephan
has also treated dozens of cases involving vancomycin toxicity. Further, Dr. Stephan
described the collaborative process doctors use when making certain decisions—including
deciding whether a prosthetic knee gets removed—describing it as “a team approach”

D-6

where orthopedic doctors get input from infectious disease specialists and then decide the
best course of treatment going forward.
Drs. Stark and Stephan offered testimony at trial that supported each of Marquardt’s
alleged errors as departures from the standard of care and opined that those departures
caused Ms. Marquardt’s neurological injuries. According to Dr. Stark , Ms. Marquardt’s
primary expert at trial, Dr. Schaffhausen’s first deviation from the standard of care was his
decision to schedule Ms. Marquardt for surgery at all. Dr. Stark testified that the s udden
onset and severity of Ms. Marquardt’s pain presented a red flag, as did the fact of her recent
steroid injections, which should have warned Dr. Sch affhausen of the risk of an infected
knee. And Dr. Stark opined regarding the serious inadequacy of Ms. Marquardt’s
presurgical workup , including Dr. Schaffhausen’s lack of concern about the anemia
revealed in the pre operative examination, as well as indications of abnormal kidney
function and a low hemoglobin level.
In sum, Dr. Schaffhausen should have suspected something unusual was wrong with
the knee and not proceeded to surgery, Dr. Stark testified. Rather, Dr. Schaffhausen should
have aspirated the knee to examine the synovial fluid which “almost certainly” would have
led to the proper diagnosis, performed an arthroscopy (a less -invasive procedure using
cannulas and telescopes) to “wash out” the knee, and prescribed antibiotic treatment. This
alternative, arthroscopic approach would have minimized the risk of spreading the MRSA
infection. The chance this less invasive tre atment would have cured Ms. Marquardt’s
MRSA infection—without any complications—was 90 to 95%, according to Dr. Stark.

D-7

But surgery went forward , and, according to Drs. Stark and Stephan,
Dr. Schaffhausen deviated from the standard of care for a second time. In Dr. Stark’s view,
when Dr. Schaffhausen encountered the abnormal fluid and dead tissue, he should have
immediately recognized this as evidence of infection. And immediately ended the
surgery.11 Instead, he installed an artificial knee into an apparently infected joint. Dr. Stark
testified that the cutting and sawing involved in artificial knee surgery—doing “bone work”
as he described it—aggravated the MRSA infection and spread it into the bloodstream. Dr.
Stephan agreed. He testified that the cutting of bones led to the exposure of the infection
to the blood stream. It is a “highly likely situation” because when dis rupting these bones
“that’s where the vascular supply or the blood supply to th e bone is richest, and so that’ s
going to allow bacteria to gain access that way.”
Three days after the surgery, when the culture taken from Ms. Marquardt’s knee
came back posi tive for MRSA, Ms. Marquardt began a six-week course of intravenous
vancomycin. This precipitated the third alleged deviation from the standard of care:
premature discharge. According to Dr. Stark, Dr. Schaffhausen should have removed the
artificial knee and treated the infection before discharge. Alternatively, Ms. Marquardt
should have been transferred to a transitional care facility. Under closer supervision, he
testified, there was a 100% chance Ms. Marquardt’s vancomycin toxicity would have been
discovered more quickly and stopped.

11 Dr. Stark testified that Dr. Schaffhausen could have per formed a frozen bio psy and
waited for the results, which he would have received around the same time as the results
of the Gram stain test and certainly before the end of surgery.

D-8

Instead, Ms. Marquardt, treated at home with intravenous vancomycin, began
experiencing neurological symptoms. After a generalized tonic clonic seizure, during her
second post-surgery admission to St. Mary’s Hospital in Duluth, a brain MRI was ordered.
The radiologist read it as showing a condition that “is concerning for a process such as
ADEM, encephalitis.” And neurologist Dr. Laura Boylan diagnosed Ms. Marquardt with
ADEM, an auto immune reaction to an infection. A nd t hat infection, according to
Dr. Boylan, was MRSA.12
But that is not the only neurological diagnosis in the medical record. When
Ms. Marquardt returned to the hospital, after apparently suffering a seizure at home,
Dr. Mostafa Farache diagnosed her with PRES and treated her for “acute renal failure” due
to vancomycin toxicity. As a result, we have two differential diagnoses in the record that
attempt to explain the undisputed permanent sensory and cognitive impairment that Ms.
Marquardt experiences. 13 One (ADEM) relates more to the spread of MRSA theory of
causation and one (PRES) to the vancomycin chain of causation.
With regard to causation, Dr. Stark testified that Dr. Schaffhausen’s decision to
proceed with surgery and install the total knee was “directly connected” to Ms. Marquardt’s
brain damage. In explaining the connection between Dr. Schaffhausen’s decisions and Ms.
Marquardt’s ultimate brain damage, Dr. Stark explained:

12 Dr. Boylan’s medical notation reads ADEM “occurring peri-infectiously with MRSA.”
13 While Dr. Schaffhausen arg ues that Dr. Farache changed Ms. Marquardt’s diagnosis
from ADEM to PRES, I reject that description. Rather, the medical reco rd reflects two
diagnoses. I further note that Dr. Farache described Dr. Boylan as a respected neurologist
with specialty training in the diagnosis of ADEM.

D-9

[Dr. Schaffhausen] took huge chances with this patient.
He cut the bone, allowing the bacteria to be underneath the
pro[s]theses and protected from the antibiotics where they can
do further damage. He pushed them into the system so that the
patient would get a bacteremia. Those kinds of things lead to
a deterioration of the circumstance, a downward spiral of
which all orthoped ic surgeons should be fearful . . . and
educated to protect [the patient] from those things and he didn’t
do that.

So when you get down the road and you have ADEM or
PRES or whatever – if this patient is damaged and the doctor
has not taken sufficient care to protect them from these
complications, he’s at fault. It’s a deviation. And that’s clearly
what happened here. He did a total knee replacement in a
person with septic arthritis. That is never done. And anything
which happens down the road from that should be expected to
be a deterioration based on that abnormal circumstance and the
deviation that he exercised, including ADEM.

Accordingly, Dr. Stark testified that, based on his experience as an orthopedic
surgeon, complicating septic arthritis with bone work creates an aggravation of the
infection, and here, Marquardt ended up with ADEM as a result. When questioned about
Marquardt’s PRES diagnosis, Dr. Stark acknowledged that he was not an expert in
vancomycin and renal function, but stated that he is a “a physician who studies this
problem.” And, Dr. Stark testified, the sepsis that caused the ADEM was “a strong factor”
in Marquardt’s kidney failure and contributed to the impairment of her renal function and
a spike in her vancomycin levels . Dr. Stark further opined that it was unlikely that
Marquardt has PRES because it typically is secondary to other types of disease processes ,
which Marquardt did not have.
Similarly, D r. Stephan —who is an infectious -disease specialist —testified that
Marquardt’s MRSA infection existed at the time of her knee operation and led t o ADEM,

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which caused Marquardt’s brain damage, reduced cognitive functioning, and partial
blindness. And to the extent of Dr. Stephan’s knowledge, infection is the cause of ADEM
in 100% of cases. Further, Dr. Stephan —who has encountered dozens of cases o f
vancomycin toxicity —testified that it “didn’t seem likely” to him that the vancomycin
toxicity was the cause of Marquardt’s brain damage, given that the toxicity resolved
quickly and her kidney function improved after treatment.
Application of the standard of review
Minnesota Rule of Evidence 702 provides for expert testimony where a witness is
qualified “by knowledge, skill, experience, training, or education.” And the expert’s
opinion must have “foundational reliability.” Minn. R. Evid. 702. Whether sufficient
foundation exists to qualify a witness as an expert is a question of fact for the district court.
Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977). In assessing that question of fact
in a medical -malpractice action, the court must consider whether that witness has both
“sufficient scientific knowledge” and “some practical experience” with the subject m atter
of the proposed testimony. Id. And when assessing “some practical experience”,
consultations with treating physicians may con stitute practical experience. Koch v. Mork
Clinic, P.A. , 540 N.W.2d 526, 529 (Minn. App. 1995) , review denied (Minn. Jan. 12,
1996).
Here, the district court held that both Dr. Stark and Dr. Stephan satisfied the
foundational threshold for testifying, and that any challenge to their academic or
experiential qualifications went to the weight of their opinion, rather t han admissibility.

D-11

And it was for the jury to assess that weight. On appeal, that ruling should be sustained
unless there was a “clear abuse of discretion.” Id. at 529.
To discern whether the district court abused this discretion, one must distill the
central causation dispute at trial. It was not the fight over whether PRES or ADEM was
the proper neurological diagnosis for the final link leading to Ms. Marquardt’s brain
damage. The central causation dispute was whether Ms. Marquardt’s condition resulted
from the “spread of MRSA” due to the elective surgery as opposed to her reac tion to
vancomycin. Appellants vigorously asserted the latter. Even if no surgery took place, they
asserted, vancomycin would have been prescribed to treat the preexisting MSRA infection.
Dr. Stark, a practicing orthopedic surgeon for decades and an assistant professor,
was well qualified to testify on this central question. His experience and teaching
specifically deal with evaluating and diagnosing infections. This experience enabled him
to explain why treating the knee with a less -invasive arthroscopic procedure would result
in a 90% chance of a MRSA cur e. That the bone work during the surgery created an
aggravation of the infection. And that if Dr. Schaffhausen had kept Ms. Marquardt under
close medical supervision postsurgery, her vancomycin toxicity would have been quickly
discovered and stopped. Similarly, when it comes to the central causation dispute (spread
of MRSA or reaction to vancomycin), Dr. Stephan was well qua lified to opine. An
infectious-disease specialist, he has experience treating patients with artificial knee joints
infected with MRSA and has encountered dozens of cases involving vancomycin toxicity.
And in his opinion, it “didn’t seem likely” that the vancomycin toxicity was the ca use of
Ms. Marquardt’s brain damage. But it was, according to Dr. Stephan, “highly likely” that

D-12

the bone work during surgery spread the MRSA infection to Ms. Marquardt’s bone and the
blood stream.
Neither expert is a neurologist. But not all of the alleged deviations from the
standard medical care even require this specialized knowledge. Not the decision to proceed
to surgery instead of using the less-invasive approach. Not the alleged premature discharge
decision. And where the neurological diagnosis is important, these experts appropriately
relied upon their general medical training, research and the opinions of specialists
contained in the medical records. 14 These facts further support the district court’s expert
admissibility decision.
In addition to the wide discretion accorded district courts in assessing expert
qualifications, I am guided by three decisions: Cornfeldt v. Tongen, Riewe v. Arnesen, and

14 In their motion for judgment as a matter of law, appellants assert that M s. Marquardt’s
medical records containing Dr. Boylan’s ADEM diagnosis were improperly allowed into
evidence and that Dr. Boylan must testify before her ADEM diagnosis could be admitted.
But the ADEM diagnosis is located within Ms. Marquardt’s medical records, which ar e
admissible under the business -records exception to the hearsay rule. See Minn. R. Evid.
803(6). Medical records, such as those at issue here, are made in the regular course of
business if they are relevant to “medical history, treatment , or diagnosis.” Lindstrom v.
Yellow Taxi Co. of Minneapolis , 214 N.W.2d 67 2, 678 (Minn. 1974). Here,
Ms. Marquardt’s diagnosis is clearly relevant to her treatment and falls square within the
hearsay exception. While appellants argue Cornfeldt dictates otherwise, and Dr. Boylan
should have been required to testify because Ms. Marquardt’s diagnosis is a “highly
controversial” conclusion regarding a central issue of this case, Cornfeldt is
distinguishable. In Cornfeldt, the medical records contained a diagnosis that was not
supported by any scientific proof. 262 N.W.2d at 702. Here, Dr. Boylan diagnosed Ms.
Marquardt with ADEM, which is a medically -accepted diagnosis under these
circumstances. Further, appellants could have subpoenaed Dr. Boylan to elicit her
testimony. Nothing in the record indicates that appellants did so. As such, the district court
did not abu se its discretion in admitting Ms. Marquardt’s medical records conta ining
Dr. Boylan’s diagnosis of ADEM.

D-13

Koch v. Mork Clinic, P.A. In Cornfeldt, in a rare reversal of an expert -qualification
decision, the supreme court concluded that the district court abused its discretion when it
excluded the testimony of a gastroenterologist who, based upon his years of being
consulted by surgeons, would have testified that the actions of two surgeons did not
conform to accepted medical practice because Cornfeldt was not a suitable candidate for
surgery. 262 N.W.2d at 693-94. The court explained:
Opinion evidence is not restricted to the testimony of the
person best qualified to give an opinion or even to some of the
few persons best qualified. . . . It is usually held that any person
whose profession or vocation deals with the subject at hand is
entitled to be heard as an expert, while the value of his evidence
is to be tested by cross-examination and ultimately determined
by the jury.

Id. at 693 (emphasis added and cleaned up).

In a similar vein, this court in Riewe, citing Cornfeldt, upheld the district court’s
decision to permit a nonsurgeon internist to testify as an exp ert on whether surgery was
properly per formed despite appellant’s claim that the matter was outside his area of
expertise. Riewe v. Arnesen, 381 N.W.2d 448, 458 -59 (Minn. App. 1986), review denied
(Minn. Mar. 27, 1986). And in Koch, we upheld a district court’s decision to permit a
physician who had not practiced for decades, but who consulted with practicing physicians
on the topic at hand, to testify as a medical expert. 15 540 N.W.2d at 530. These cases

15 Nothing in our caselaw suggests that a consultation must be in person, particularly
considering advancements in technology resulting in easily ac cessible electronic medical
records. I note that Dr. Schaffhausen was provided with “infectious diseas e consultation”
regarding the intravenous administration of vancomycin before Ms. Marquardt’s hospital
discharge without personal contact with the physicians.

D-14

demonstrate the wide latitude accorded district courts when making assessments regarding
qualifications.16 Given this deference to the district court and the impressive credentials
and wide range of experiences of these ph ysicians, I conclude the district court did not
abuse its discretion in allowing Dr. Stark and Dr. Stephan to testify as medical experts on
causation.
Still, appellants argue that both Dr. Stark and Dr. Stephan lack the foundational
qualifications required due to their lack of scientific knowledge and practical experience
with ADEM and PRES. In support of this, appellants point to Lundgren v. Eustermann ,
370 N.W.2d 877 (Minn. 1985), and Kinning v. Nelson, 281 N.W.2d 849 (Minn. 1979), for
the proposition th at Dr. Stark’s admission to reading about ADEM and PRES in
preparation for trial supports the conclusion that he was unqualified to testify about them.

16 While appellants’ brief cites to additional cases beyond Cornfeldt which he claims
support the position that Dr. Stark’s lack of practical experience with ADEM or PRES was
prejudicial, these cases actually demonstrate the deference given to a district court’s
decision regarding expert qualifications. In each case, the supreme court determined the
district court did not abuse its discretion by excluding expert testimony, unlike here where
the majority determines it was an abuse of discretion fo r the district court to allow the
testimony. See Reinhardt v. Colton , 337 N.W.2d 88, 93-94 (Minn. 1983) (upholding
district court’s decision to exclude expert’s testimony, because he was a pathologist and
lacked the practical experience of treating rheuma toid arthritis with a specific drug);
Teffeteller v. Univ. of Minn. , 645 N.W.2d 420, 427 -28 (Minn. 2002) (upholding district
court’s decision to exclude expert testimony from pediatrician because he did not specialize
in pediatric oncology or have experience in the specialized procedure at issue); Swanson v.
Chatterton, 160 N.W.2d 662, 669 (Minn. 1968) (upholding district court’s decision to
exclude testimony from orthopedist because his qualifications “revealed no special
knowledge in the field of diabetes”); Williams v. Wadsworth, 503 N.W.2d 120, 125 (Minn.
1993) (upholding district court’s decision to exclude cardiologist’s testimony because he
had limited experience with the procedure at issue and because he attempted to give an
expert opinion outside his cardiological expertise).

D-15

Both cases are distinguishable. In Lundgren, a psychologist attempted to testify
about the standard of care of a physician in administering a particular drug. 370 N.W.2d at
880-81. A psychologist, despite having extensive theoretical knowledge about the drug, is
not a physician. Here, Dr. Stark and Dr. Stephan are physicians with the broad background
that medical school and residencies provide. And in Kinning, a medical expert witness
attempted to testify about the standard of care exercised by general practitioners in 1965,
when, at that time, he was a freshman in college and would not complete medical school
until seven years later. 281 N.W.2d at 854. The expert conceded that his opinion as to the
standard of care in 1965 was based principally on a selection of medical articles and books,
although he did not know whether any of the precise literature he used was commonly
reference by doctors in 1965. Id. at 855. Here, Dr. Stark and Dr. Stephan were physicians
at the time of Ms. Marquardt’s surgery. Unlike Kinning, they not only relied on their
general medical training and reading, but upon the diagnosis contained in the medical
records of a treating radiologist and neurologist.17
It is rare indeed to overturn a district court’s decision on expert qualification s. As
it should be. It is the district court that is intimately involved with the case . And here,
great deference is due to that court’s refusal to reverse its decision on expert qualification

17 More fundamentally, appellants’ focus on ADEM and PRES misses the larger point: Dr.
Stark certainly was qualified to testify about the outcome if surgery had not occurred in the
first place, as well as the outcome for violating the standard of care for orthopedic surgeons
which called for more time in the hospital or rehabilitation center to monitor progress post-
surgery. Both relate to causation and are intimately tied to his background as an orthopedic
surgeon.

D-16

after presiding over the multi -day trial. I note that the litany of cases cited in appellants’
brief reinforces this approach. 18 While a number of appellate decisions uphold a district
court’s rejection of expert affidavits and testimony based upon an abuse of discretion
standard of review, it is the rare case that reverses a district court’s acceptance of expert
testimony. This matter, on this record, is not that rare case.
Sufficiency of evidence to prove causation
All that was required for the jury to reach their verdict regarding causation was that
Dr. Schaffhausen’s negligence led, more likely than not, to Ms. Marquardt’s injuries. And
as the district court stated , “such evidence was certainly received at trial.” In the order
denying appellants’ posttrial motions, the district court pointed to the multiple statements
of Drs. Stark and Stephan that the sawing and cutting described in the operative report were
likely to spread infection into the bone and blood; to Dr. Stark’s testimony that the
operation (which should never ha ve taken place) spread “bacteria and inflammatory
products” into the bloodstream, causing Ms. Marquardt’s injuries; and to Dr . Stephan’s
testimony that her ongoing harm was caused by ADEM. And Dr. Stark testified that
regardless of whether ADEM or PRES is the appropriate final diagnosis, Ms. Marquardt’s
injuries are causally related to the decision to proceed with the operation. 19 Certainly, as
the district court recognized, cross -examination of the se experts “exposed potential
weaknesses in the ADEM causal chain.” But the experts reaffirmed their opinions on

18 See cases cited supra note 11.
19 Even appellants’ expert witness, Dr. Farache, could not say that ADEM had been an
impossible diagnosis.

D-17

redirect. Cross-examination does not, as the district court pointed out, erase the balance of
the experts’ testimony from evidence.
The district court’s decision is well supported by the record. I will not reiterate the
evidence of causation already addressed. But let me reinforce: Ms. Marquardt alleged three
deviations from the standard of care by Dr. Schaffhausen. Linking only one of them to
Ms. Marquardt’s brain damage supports the verdict on causation. And each link in the
causal connection need not be exp licitly tied to the words of an expert. Rather, if expert
testimony “reasonably implie[s]” the necessary chain of causation, the jury verdict stands.
Knuth v. Emergency Care Consultants, P.A. , 644 N.W.2d 106, 112 (Minn. App. 2002),
review denied (Minn. Aug. 6, 2002).
The district court did not abuse its discretion when it determined that there was a
view of the evidence not manifestly unreasonable that supports the verdict. Renswick, 819
N.W.2d at 204. And that—not clockwork precision—is what the law requires.
Statements during closing argument
Dr. Schaffhausen also argues that the district court abused its discretion by failing
to order a new trial on the basis of an alleged “blatant misrepresentation” of the appellants’
expert testimony made by Ms. Marquardt’s counsel during closing arguments. 20 The
decision whether or not to grant a new trial due to attorney misconduct rests almost entirely

20 The alleged misrepresentation involved statements from Ms. Marquardt’s counsel which
confused the testimony of appellants’ infectious -disease expert witness by conflating
ischemic perfusion (reduced blood flow) with hyper-perfusion (increased blood flow).

D-18

within the discretion of the district court and “should not be reversed on appeal absent a
clear abuse of discretion.” Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989)
The primary consideration in determining whether to grant a new trial is prejudice.
Johnson v. Washington Cty., 518 N.W.2d 594, 600 (Minn. 1994) (quotation omitted). And
a new trial is not warranted unless the improper statement resulted in prejudice to the losing
party that is sufficient to affect the outcome of the case. Eklund v. Lund, 222 N.W.2d 348,
350 (Minn. 1974). Here, t he district court determined that, although Ms. Marquardt’s
counsel “unquestionably” confused the defense expert’s testimony, the misstatement did
not prejudice appellants. Further, t he district court stated that, “[h]aving li stened to the
closing argument —which is a markedly different experience than reading it from a
transcript—[Ms. Marquardt’s] counsel’s mi sstatement came across more as lexical
confusion than a deliberate or malicious attempt to distort the juror’s recollection of the
record.” Because the district court is in the best position to determine prejudice, I would
conclude that the district court did not abuse its discretion by denying appellants’ motion
for a new trial on the basis of improper statements made during closing argument. See
Fischer v. Mart, 241 N.W.2d 320, 321-22 (Minn. 1976) (stating that the district court judge
is in the best position to determine whether an attorney’s misconduct prejudiced the jury
because he is present during the trial and able to observe its impact).
Evidence of medical expenses

Finally, appellants contend that it was an abuse of discretion for the district court to
deny the motion for a new trial on the basis that Ms. Marquardt failed to produce expert
testimony regarding the reasonableness and necessity of her past medical expenses.

D-19

Here, district court concluded that there was sufficient evidence in the record about
the various treatments provided to Ms. Marquardt and their necessity. Based upon this
evidence, the jury could reasonably determine which expenses were causally related to
Dr. Schaffhausen’s negligence. That conclusion is entitled to deference. The amount of
damages is a question of fact for the jury and is entitled to wide deference as long as the
amount is within the range of reasonable awards. Pulkrabek v. Johnson, 418 N.W.2d 514,
516 (Minn. App. 1988), review denied (Minn. May 4, 1988). And a new trial on the issue
of damages is granted only when a jury verdict is “so inadequate or excessive that it could
only have been rendered on account of passion or prejudice.” Rush v. Jostock, 710 N.W.2d
570, 577 (Minn. App. 2006) (quotation omitted), review denied (Minn. May 24, 2006). As
the district court concluded, testimony at trial provided the jury with ample information
about the impact of the surgery, the care Ms. Marquardt required in the weeks and months
following the surgery, and the care she required up until the verdict.21 Based on the record,
the jury had sufficient information to make its own determination of which medical
expenses were reasonable and necessa ry without the assistance of expert testimony. As
such, it was not an abuse of discretion for the district court to deny appellants’ motion for
a new trial on this ground.

21 I also note that appellants do not cite any binding authority that stands for the proposition
that expert testimony is required to demonstrate that each charge contained within a
medical bill is causally related to the negligence.

D-20

Conclusion
Much of our justice system rests on the role of independent jurors. Because the
district court acted well within its wide discretion when it denied appellants’ posttrial
motions to overturn the jury’s $2.5 million verdict, I dissent.