Jeanne Shellum, et al., Respondents,

This opinion will be unpublished and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
A18-1516

Jeanne Shellum, et al.,
Respondents,

vs.

Fairview Health Services d/b/a Fairview Southdale Hospital,
Appellant,

Edina Retina Consultants PA, et al.,
Defendants.

Filed May 28, 2019
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-16-267

Teresa Fariss McClain, Lisa L. Beane, Robins Kaplan LLP, Minneapolis, Minnesota (for
respondents)

Matthew S. Frantzen, Marissa K. Linden, Gislason & Hunter LLP, Minneapolis, Minnesota
(for appellant)

Considered and decided by Cochran, Presiding Judge; Hooten, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Following a jury verdict finding appellant liable for an infection that required
respondent’s eye to be removed, appellant moved for a judgment as a matter of law (JMOL)

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or, in the alternative , a new trial. The district court denied the motion and appella nt
appealed. We affirm.
FACTS
In 2011, respondent Jeanne Shellum underwent surgery to repair a macular hole in
her left eye, a condition that causes some vision impairment. Following the surgery, Jeanne
developed endophthalmitis, an infection that caused enough damage that the eye eventually
had to be removed. Jeanne and her husband, respondent Way ne Shellum, filed a medical
malpractice lawsuit against appellant Fairview Health Services d/b/a Fairview Southdale
Hospital for its agents’ failure to adhere to sterile procedures before and during the surgery.
Jeanne’s damages arose from the loss of her eye, while Wayne’s came from the trauma that
his wife had been through and the resulting loss of consortium.
At trial, r espondents presented evidenc e that the infection had been caused by
appellant’s employees negligently failing to follow proper procedures before and during
the surgery. Specifically, they argued to the jury that breaks in sterile technique during the
preparation and use of a bottle of balanced salt solution (BSS) caused two bacteria species,
Pseudomonas aeruginosa and Serratia marcescens, to be introduced into Jeanne’s left eye
which caused the infection. Appellant argued that there was no breach of care, or if there
was, that respondents could not prove the bacteria that caused the infection was introduced
through the surgery.
In a special -verdict form, th e jury found for respondents. The jury awarded
$2,704,506.91 to Jeanne and $470,000 to Wayne. Following the verdict, appellant moved

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for JMOL or, in the alternative , a new trial. The distr ict court denied this motion. This
appeal follows.
D E C I S I O N
I. The district court correctly determined that respondents established a
prima facie case that appellant caused Jeanne’s injury.

Appellant does not dispute the jury’s determination that there was a breach of duty
in failing to utilize sterile procedures before and during the surgery, but does argue that
respondents did not present sufficient evidence to allow a reasonable jury to find a chain
of causation from appellant’s e mployees’ actions to Jeanne’s injury. It argues that
therefore the district court erred by denying appellant’s motion for JMOL.
We review de novo a district court ’s decision on a motion for JMOL. Knuth v.
Emergency Care Consultants, P.A. , 644 N.W.2d 106, 110 (Minn. App. 2002) , review
denied (Minn. Aug. 6, 2002) . We view the evidence in the light most favorable to the
nonmoving party and independently determine whether the evidence is sufficient to present
an issue of fact for the jury. Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren,
Ltd., 711 N.W.2d 811, 816 (Minn. 2006).
To establish a prima facie case of medical malpractice, the plaintiff bears the burden
of showing through expert testimony: (1) the standard of care required from a physician
under the circumstances; (2) defendant ’s departure from that standard; and (3) that
defendant’s departure from that standard w as a direct cause of the patient ’s injuries.
Walton v. Jones , 286 N.W.2d 710, 714 (Minn. 1979). A plaintiff makes a prima facie
showing for the element of causation by presenting evidence that it is more probable than

4
not that her injury resulted from the defendant health care provider’s negligence. Cornfeldt
v. Tongen, 295 N.W.2d 638, 640 (Minn. 1980). Expert testimony in a medical malpractice
case must be “more than consistent with” a simple recitation of a plaintiff ’s theory of
causation; it must demonstrate a reasonable probability that the defendant’s negligence was
the proximate cause of the injury. Walton, 286 N.W.2d at 715. The guiding pri nciple is
that juries are not permitted to speculate as to the possible causes of a plaintiff ’s injury.
Smith v. Knowles , 281 N.W.2d 653, 656 (Minn. 1979). Failure to present such proof by
admissible expert testimony requires that a judge grant JMOL. Cf. McDonough v. Allina
Health Sys., 685 N.W.2d 688, 697 (Minn. App. 2004).
Appellant alleges that, “The testimony of respondents’ experts was not, as a matter
of law, sufficient to meet r espondents’ bu rden to establish causation.” Appellant’s
argument contains two bases for why respondents’ expert testimony was insufficient. First,
appellant argues that th eir causation opinions did not contain “the required degree of
certainty.” Second, appellant argues that the district court erred when it concluded that
“the seal applied to the BSS bottle was ‘non-sterile.’”
Appellant’s first argument is that the extensive expert testimony opining that breaks
in sterile procedure c aused the infection was simply speculation and was insufficient to
establish causation. Appellant essentially argues that because respondents’ expert
witnesses could not testify with 100% certainty that the breaks in sterile procedure caused
the infection, the evidence was insufficient to allow the j ury to find appellant liable. But
that is not the standard reviewing courts apply. We simply review the expert testimony to
determine if there is sufficient factual foundation to support the expert’s opinion that it is

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more likely than not that the defendant’s negligence caused the injury. See Bernloehr v.
Cent. Livestock Order Buying Co. , 208 N.W.2d 753, 755 (Minn. 1973). And here there
was sufficient factual foundation.
Dr. Polsky testified that the bacteria which caused Jeanne’s infection was introduced
into her eye at the time of surgery, most likely through the BSS, to a reasonable medical
certainty. His opinion was grounded on the facts th at: the disease moved rapidly after
surgery and “presented in this dramatic, explosive way,” suggesting that “a significant load
of microorganisms were actually directly put into the eye”; there was a breach in sterile
technique in preparing the sol ution used to irrigate the eye ; and this breach consisted of a
non-sterile sticker label being placed on a sterile cap and the surgery team relying on the
assumption that the cap was sterile.
Dr. Cohen testified that: the day after the surgery Jeanne could only s ee light with
the eye that had been operated on, whereas normally a patient would at least be able to
count fingers with that eye; the eye also had abnormally elevated pressure; and the same
day, it was discovered that the eye contained a colle ction of whi te cells, known as
hypopyon, meaning that Jeann e had endophthalmitis. And on the second day after the
surgery: these symptoms did not improve despite Jeanne receiving an injection of
antibiotics directly i nto the infected eye ; and there was “ fibrin and pus in the anterior
chamber,” indicating a very aggressive infection. Dr. Cohen noted that the two main types
of bacteria that caused the infection, “Serratia marcescens and Pseudomonas aeruginosa”
are “very, very toxic organisms. They’re not the typi cal. They’re the contaminant .” He
also opined, “These bugs, as -- as you’ll hear, can be everywhere. But the one place they

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can never be is in an operating room. They can’t be. . . . They can’t be put in those
situations because, if they do, you ge t infected like this .” He further testified that: these
bacteria do not live together in eye drops or makeup ; there has never been a reported case
of that occurring ; this is because of preservatives in those produc ts; and while
Pseudomonas can be found in these products maybe one percent of the time, Serrat ia
simply “doesn’t live there.” Dr. Cohen concluded his opinion that the bacteria could not
have been introduced from eye drops or makeup by stating, “When I see these bugs, it’s a
contaminant. There was a b reach. There is a breach somewhere that allowed these
opportunistic bugs to get into the system, and that brea ch is the cause of those bugs.” Dr.
Cohen also testified that this was his opinion to a reasonable medical certainty even before
he was shown the evidence of an actual breach in sterile procedure in this case.
This testimony is sufficient to establish a prima facie case for the element of
causation. The mere fact that the doctors could not guarantee that the seal was
contaminated is insufficient to overturn a jury verdict. In the case that appellant relies on
for this argument, Walton v. Jones , the district court granted JMOL because no expert
testified to a reasonable probability that the defendant’s negligence caused the plaintiff’s
death. 286 N.W.2d at 715–16. That scenario is a far cry from the extensive, unequivocal
testimony in this case.
Appellant also asserts as part of this argument that Dr. Polsky incorrectly testified
that Jeanne’s eye was irrigated with 500ml of BSS, when really it was only irrigated with
25ml. But even assuming appellant is factually correct, that is irrelevant. In our review of
the district court’s denial of appellant’s motion for JMOL, we simply analyze whether there

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was a sufficient factual basis for the expert testimony to allow the jury to reach the verdict
that they did. When considering Dr. Polsky’s testimony as a whole, it is more than
sufficient to establish a prima facie case of causation such that we would affirm the district
court’s denial of appellant’s motion for JMOL. His expert testimony concluding that the
infection-causing bacteria more likely than not entered Jeanne’s eye due to contamination
during surgery would still be supported by adequate factual foundation even if Dr. Polsky
misstated the amount of BSS used for irrigation during the surgery.
Appellant’s second argument, that the district court erred when it concluded that the
seal applied to the BSS bottle was non -sterile, is similarly baseless. When this court
reviews a post-trial denial of a motion for JMOL, we view the evidence in the light most
favorable to the non-moving party. Jerry’s, 711 N.W.2d at 816. Whether the seals were
actually sterile was a contested issue at trial. Respondents elicited testimony during cross-
examination from one of appellant’s experts, a surgical nurse, who opined that the seals
could not have been sterile based on the manner in which the y were stored. Appellant
introduced evidence that the seals were sterile to contest this testimony. But because there
was contested evidence, the district court was obliged to view the evidence in the ligh t
most favorable to respondents and accept as proved that the seals were not sterile. See id.
Appellant argues that reversal is required under Ingram v. Syverson because there
was more than one possible inference to be drawn from the conflicting testimony. 674
N.W.2d 233, 237 (Minn. App. 2004) , review denied (Minn. Apr. 20, 2004). But that was
a case where we reviewed a grant of summary judgment. Id. There, we held that if
reasonable minds can differ as to causation, then summary judgment is inappropriate and

8
a jury should resolve the issue. Id. But that is completely different from this case, where
the evidence was presented to the jury and the jury made permissible credibility and factual
determinations. This court does not review orders denying motions for JMOL under the
same standard that we review a grant of summary judgment; we only analyze whether the
evidence was sufficient to permit the jury to have reached the verdict that they did.
For the above reasons, we affirm the denial of appellant’s motion for JMOL.
II. The district court did not abuse its discretion when it ruled that appellant
was not entitled to a new trial based on claimed evidentiary errors.

Evidentiary rulings will not be reversed unless they are based on an erroneous view
of the law or constitute an abuse of the district court’s broad discretion. Kroning v. State
Farm Auto. Ins. Co. , 567 N.W.2d 42, 45 –46 (Minn. 1997). We will only reverse a
judgment based on an erroneous evidentiary ruling when the complaining party
demonstrates prejudice. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).
Relevant evidence is generally admissible. Minn. R. Evid. 402. Relevant evidence
is that which has “any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Minn. R. Evid. 401. But relevant evidence may be excluded if “ its probative
value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403.
a. November 2016 swabbing of Jeanne’s makeup
Because appellant alleged that the bacteria that caused Jeanne’s infection could have
been introduced through her makeup, the issue of whether Jeanne’s makeup was
contaminated with the bacteria at the time of the surgery was of central importance.

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Appellant’s claim was that Jeanne used the makeup in such a way that allowed it to become
contaminated with bacteria. Because the makeup Jeanne was using in 2011 had long ago
been disposed of, when Jeanne first learned of appellant’s alternate theory of causation in
2016, she had the makeup she was using then tested for the presence of this bacteria.
Respondents submitted that this was relevant because the cleanliness of the makeup Jeanne
was using in 2016 was indicative of the level of care that she took of her makeup generally.
The district court allowed the parties to jointly submit Jeanne’s medical records,
including a 2016 test of her makeup for bacteria which could have ca used the infection.
Jeanne testified that she went to get the tests done in response to appellant’s allegations
during litigation that the bacteria that caused her infection came from either her eyes being
“colonized” or from her makeup. While she did not testify about the methodology of the
testing or any inferences that could be drawn from those results, she did testify that t he
tests “were all negative.” One of appellant’s experts, Dr. Gary Kravitz, testified in rebuttal
that the results of these tests were not necessarily reliable and that they likely did not reflect
what was going on in 2011.
Appellant argues that the district court erred in admitting the evidence because it
was not relevant. It argues that whether or not Jeanne’s makeup was contaminated in 2016
has absolutely no bearing on whether her makeup that she used in 2011, which had long
ago been discarded, was contaminated. But, the evidence above was not admitted to
directly p rove anyth ing about the makeup Jeanne used in 2011 ; it was admitted to
demonstrate the general level of care that Jeanne used to keep her makeup clean. And
because relevancy is an incredibly low bar, this is sufficient to render the 2016 test of the

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makeup relevant. See Minn. R. Evid. 401 (defining relevant evidence as that which has
“any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable ” (emphasis added)) . We cannot say that it
was an abuse of the district court’s broad discretion to conclude that the 2016 testing was
relevant.1
Appellant also argues that this evidence w as unfairly prejudicial. Though framed
as a separate argument , appellant is simply re -asserting the immediately preceding
argument that the evidence was irrelevant. Specifically, appellant argues that the danger
of unfair prejudice significantly outweighed the probative value because the evidence had
“zero probative value.” But appellant does not offer any distinct argument about prejudice,
and simply repeats claims that the evidence was irrelevant.
Finally, appellant argues that the test results shoul d not have been introduced
because the results were not introduc ed through an expert witness. To support this
argument, appellant cites to Tousignant v. St. Louis Cty., 615 N.W.2d 53 (Minn. 2000).
But that case is inapposite. Tousignant dealt with statutory requirements for certification
of expert review, and limited that requirement to cases where expert testimony was
required to establish a prima facie case. Tousignant, 615 N.W.2d at 55.
Here, the evidence at issue was not required to establish a prima facie case; it was
offered to rebut appellant’s alternate theory that the source of the bacteria could have been
Jeanne’s makeup. And while Jeanne testified that the testing did not find any similar

1 And even if admission of the test results was irrelevant, appellant has also failed to
demonstrate prejudice from the alleged error.

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bacteria on her makeup, she did not offer any medical opinion about how the makeup was
tested or what those results meant. Appellant has failed to present any argument or
authority that would justify ordering a new trial based on a lack of expert testimony about
the 2016 test results. We therefore affirm the district court’s conclusion that the
introduction of the 2016 test results did not constitute reversible error.
b. Failure to investigate infections
Appellant argues that the introduction of testimony regarding its failure to
investigate the cause of J eanne’s infection also constituted reversible error. It argues: (1)
that the questions were unfairly prejudicial, and (2) that the testimony about the lack of
investigation violated Minn. Stat. § 145.64 (2018).
Before trial, the district court ruled th at respondents could not introduce testimony
about the failure to investigate because it would simply tend to show that appellant “didn’t
know” or “didn’t care” about Jeanne, which was not relevant to the case and was unfairly
prejudicial. The calculus ch anged when appellant argued to the jury that there was no
evidence that the bottle containing the BS S was infected with bacteria. This of course
hinges on whether or not there was ever any attempt to test the bottle, making that question
of central importance. It would have been absurd to have allowed appellant to argue that
there was no evidence of negligence because no bacteria was found on the bottle containing
the BSS, while not allowing respondents to question whether the bottle was ever tested.
And while appellant could have requested a limiting instruction once this calculus changed,
they failed to do so. See Minn. R. Evid. 105 (noting that the court “ upon request, shall

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restrict the evidence to its proper scope and instruct the jury accordingly” (emphasis
added)). This argument therefore fails.
Appellant’s other argument in this section is that Minn. Stat. § 145.64, subd. 1,
which protects the records of medical review organizations, barred the introduction of
testimony which was used at trial. This argument selectively ignores a crucial section of
the releva nt statute. While the statute bars the introduction of records of review
organizations and prevents witnesses from testifying about their testimony to review
organizations, it does not bar t he use of, “Information, documents or records otherwise
available from original sources.” Minn. Stat. § 145 .64, subd. 1(a). And appellant fails to
point to a single piece of evidence that was a record from a medical review organization ,
as opposed to evi dence “otherwise available from original sources.” Id. In short, the
statute simply does not apply to the evidence in this case. We therefore affirm the district
court’s conclusion that introduction of the above evidence did not constitute reversible
error.
c. Photographs of the seal’s packaging and demonstrative evidence
Appellant argues that the district court committed reversible error by refusing to
admit a photograph of the seals that the hospital used at the time of the trial and to allow
appellant’s employees to demonstrate the procedure used to apply seals to bottles prepared
with BSS for surgery. Respondents argue that the seals used at the time of trial were
packaged and stored differently than they were in 2011, and so the pictures of the packaging
used at the time of trial were irrelevant. They also argue that the procedure used to a pply
the seals is irrelevant.

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Respondents are correct on both counts. As for the packaging of the seals,
appellant’s pharmacy supervisor, Karleen Franck, testified that the seals used in 2011 were
not wrapped in protective or sterile coating. To contrast, the seals in use at the time of trial
were packaged in sterile packagi ng, and were labeled as such. Notably, the photograph
that appellant argues should have been admitted shows packaging (packaging that was not
present on the seals used in 2011) prominently labeling the seals as “sterile.” Thus, the
district court’s conclusion—that a photograph showing the seals and packaging different
from that us ed in 2011 was irrele vant and unfairly prejudicial —fell within its broad
discretion.
Appellant also challenges the district court’s exclusion of a photograph of seals the
hospital currently uses because they are the same type of seals the hospital used in 2011.
While it is undisputed that the actual seals are the same , appellant misses the point of the
district court’s ruling. The photograph was not excluded because the seals were different,
the photograph was excluded because the pa ckaging was different. This argument also
fails.
As to the exclusion of demonstrative evidence, the district court also acted within
its discretion there. Appellant argues that a demonstration of the procedure used to apply
the seal to the bottle containing the BSS would have helped the jury to “understand the
processes and establish[] that they are done without contaminating the seal or port.”
That may have been so, b ut the district court ruled that appellant could adequately
make its case to the jury without actually demon strating how the seals are placed on the
bottle containing the BSS solution. Absent a ruling based on clearly erroneous facts or an

14
incorrect application of the law, district courts have broad discretion about what evidence
to admit at trial. Kroning, 567 N.W.2d at 45–46. And appellant has failed to provide any
authority to support a conclusion that this ruling was somehow an abuse of discretion.
Even if appellant had made such a showing, appellant has also failed to show that the lack
of a live demonstration was prejudicial.
We therefore hold that it was not an abuse of discretion for the district court to
exclude the demonstrative evidence.
d. Questions about preparation for testimony
Appellant argues that the district court “permitted respondents to elicit testimony
protected by the attorney-client privilege.” In Minnesota, attorney-client privilege has been
defined as follows:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived.

Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440 (Minn. 1998). This privilege protects the
substance of the relevant communications, not the fact that communications took place at
all. See City Pages v. State , 655 N.W.2d 839, 844 (Minn. App. 2003) (holding that
narrative descriptions of servic es provided within an attorney’s billing records were not
protected by attorney -client privilege because they did not reveal “the subject of
confidential communications with any specificity”), review denied (Minn. Apr. 15, 2003).

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Appellant argues that the questions present ed to Ms. Franck and Nurse Wendy Jo
College by respondents’ attorneys about whether they spoke with an attorney prior to their
testimony constituted a breach of attorney-client privilege. But, as above, these questions
were about whethe r there was any communication, not about the subst ance of those
communications. Therefore allowing these questions did not constitute reversible error.
See id.
Appellant also argues that the questions to Ms. College about what she spoke about
with appellant’s attorney constituted a breach of attorney -client privilege. It may have
been error for respondents’ attorney to ask these questions. Ms. College was asked if she
discussed with the attorney: her testimony generally, the issue of the seals, and ques tions
about disinfecting specific medical equipment.
However, these questions do not constitute reversible error because Ms. College
never directly answered them. All of her answers were equivocal and included statements
such as, “We didn’t talk about any one particular issue,” or, “I don’t understand what you’re
questioning.” Therefore, because there was no privileged information actually
communicated to the jury, we hold that it was not error to deny appellant’s motion for a
new trial on the grounds of a violation of attorney-client privilege.2

2 Further, as respondents note, appellant has never argued that respondents’ attorney
committed misconduct in merely asking these questions, and so that issue is no t properly
before this court.

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e. Impeachment evidence regarding breach of the standard of care
Appellant finally argues that the district court erred by allowing respondents to
question Nurse Ellen Simonson about a previous statement she ha d made in a deposition
because that introduced impermissible testimony about hospital policies . Minn. Stat.
§ 145.65 (2018) precludes evidence of written hospital policies from being used to establish
standards of care in medical malpractice cases.
Here, Ms. Simonson testified at trial that Ms. College did not violate accepted
standards of care. This contradicted an earlier statement that Ms. Simonson made at a pre-
trial deposition that Ms. College did violate accepted standards of care. The district court
ruled that while respondents could not use any portion of the deposition testimony at trial,
because the discussion during the deposition was inextricably tied to a line of questions
about hospital policies , respondents could question Ms. Simonson about her prior
inconsistent statement . Respondents’ attorney did ask Ms. Simonson about her prior
inconsistent statement, but the exchange did not include any discussion of hospital policies.
The testimony to which appellant now objects is Ms. Simonson’s response on cross-
examination that her opinion about whether Ms. College violated the standard of care
changed between the deposition and trial. While appellant frames the issue as being about
hospital policies, implicating Minn. Stat. § 145.65, hospi tal policies were not discussed at
trial and therefore the statute is not implicated. We therefore hold that the district court did
not err when it permitted respondents to impeach Ms. Simonson by asking her about her
prior inconsistent statement.
Affirmed.