Megan Ashley Spindler, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0536

Megan Ashley Spindler,
Respondent,

vs.

Donald Lee Westman,
Appellant.

Filed February 8, 2021
Affirmed; motion denied
Slieter, Judge

Anoka County District Court
File No. 02-CV-18-5550

Scott Wilson, Scott Wilson Law Firm, PLLC, Minneapolis, Minnesota; and

Nathan H. Bjerke, TSR Injury Law, Bloomington, Minnesota; and

Lance Redlinger, Redlinger Law Firm, P.A., Shoreview, Minnesota (for respondent)

Richard S. Stempel, Luke G. Peters, Stempel & Associates , PLC, Excelsior, Minnesota
(for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant Donald Lee We stman appeals from judgment following a damages-only
jury trial regarding respondent Megan Ashl ey Spindler’s injuri es arising from a car

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accident. Westman challenges the denial of his motion for a new trial based on misconduct
by Spindler’s counsel during closing argument. Because we defer to the district court judge
who presided over the trial and carefully considered the impact of the purported improper
statements, and who found the jury was not prejudiced thereby, we affirm.
FACTS
Westman was involved in a 2013 automobile-collision with Spindler. Westman
stipulated to liability. Theref ore, the jury’s sole issue wa s to determine the extent of
Spindler’s injuries and the resulting damages amount. Spindler introduced evidence from
three doctors, all of whom opined that she e xhibited symptoms of complex regional pain
syndrome (CRPS). Dr. Susan Evans and Dr. Sanjeev Arora noted that Spindler exhibited
symptoms of CRPS as early as October 30, 2014, and Dr. Andrew Will stated that
Spindler’s pain was chronic, progressive, and incurable. Sp indler provided one witness
who testified as to physical changes in Spindler’s arm, and Spindler also testified that she
experienced progressive pain that caused adverse effects on her daily life. Dr. Will testified
regarding the future medical treatment he recommended for Spindler, including a spinal
cord stimulator at an initial cost of $290,000. He also testified that a battery for the spinal
cord stimulator costs $100 ,000 and Spindler would requi re between five and ten
replacement batteries over her lifetime.
As part of his defense, Westman pres ented video recordings showing Spindler
engaging in the following activities at tw o fitness centers between December 2014 and
April 2015: swinging on the parallel bars, swinging a sledgehammer, ring activities, and
weight lifting. Westman also presented evidence that Spindler had entered a bodybuilding

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competition after the car accident. Westman presented Dr. Burgarino’s conclusion, based
upon his independent medical evaluation (I ME), that Spindler required no medical
treatment after May 2013. Pursuant to the court’s in limine order, the jury did not hear Dr.
Burgarino’s opinion that Spindler did not have CRPS.
The jury ultimately awarded Spindler $1,065,507.98 in da mages. Westman
subsequently filed a motion for a new trial based on purported attorney misconduct during
closing argument, which the district court denied.1 This appeal follows.2
DECISION
This court will not reverse a district c ourt’s decision to deny a new-trial request
based on attorney misconduct absent a clear abuse of discretion. Wild v. Rarig, 234 N.W.2d
775, 785 (Minn. 1975); see also Poston v. Colestock , 540 N.W.2d 92, 94 (Minn. App.
1995) (“Appellate courts rarely disturb a dist rict court’s response to improper remarks in
closing arguments.”), review denied (Minn. Jan. 25, 1996). The purpose of granting a new
trial “is not to punish counsel, but to cure prejudice.” Sather v. Snedigar, 372 N.W.2d 836,
839 (Minn. App. 1985). “[T]he primary ‘con sideration in determining whether to grant a
new trial is prejudice.’” Johnson v. Wash. Cnty. , 518 N.W.2d 594, 600 (Minn. 1994)
(quoting Wild, 234 N.W.2d at 786). Misconduct may be prejudicial in its cumulative effect.
See Wild, 234 N.W.2d at 786. We defer to the district court’s superior ability to gauge the

1 As part of this motion, Westman also sought judgment as a matter of law, remittitur, and
a further stay of enforcement of judgment. Only the denial of the motion for a new trial is
raised on appeal.
2 Spindler filed a motion to strike two issues raised in Westman’s appellate brief. Because
we affirm the district court’s conclusion of no resulting prejudice, we deny this motion as
unnecessary.

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impact of the challenged statements in view of the trial as a whole. See Fischer v. Mart,
241 N.W.2d 320, 321-22 (Minn. 1976). Finally, “[i]f the [district] court instructed the jury
to disregard the improper remarks or argument s, a new trial will rarely be granted” by
appellate courts. Wild, 234 N.W.2d at 785-86.
Westman alleges misconduct in three se gments of Spindler’s closing argument:
(1) counsel’s reference to a purported agreem ent by defense counsel as to Spindler’s
requested future damages, and defense co unsel’s purported knowledge of Spindler’s
condition; (2) counsel’s misc haracterization of the IME’ s opinion; and (3) counsel’s
“bully” story.
Purported Agreement as to Future Damages; Spindler’s Condition
And I will tell you what, he thinks the same, [appellant’s counsel]
does. You heard him say that, in te rms of future pain, you know, we
have close to a $1 million in medi cal expenses. He acknowledges
that. And he said, so, you know, $2 million for the pain – remember
when he said that at the end of his closing – he is just saying that she
doesn’t have this cond ition when he knows th at she does. This
number makes sense to the defense, it makes sense to us, and it makes
sense given the facts in this case and the costs of the care to treat it.

The IME’s Opinion
Even Dr. Burgarino, okay, he never comes out and says, “This woman
does not have CRPS.” There is no opinion from him on that. None.
What he said is that from this crash, she has a strain-sprain injury. He
never says, “She doesn’t have CRPS ,” because she does. And even
Dr. Burgarino knows that she does. So, the only evidence you have
on this is that she has the conditi on. Everyone agrees that she has it
and every doctor agrees that she can’t fake it, the symptoms, that they
have been seen and documented.

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Counsel’s “bully” story

Jimmy has been bullying us for as long as I can remember. Jimmy
walks up and he picks up the ball . . . And Jimmy looks at me and he
says, “What are you going to do about it?” What are you going to do
about it. . . . I punched this kid square in the jaw . . . he hits me in the
ear, hard, like hard. So, I go down . . . but he never bugged us again.
The reason that made me think of th is is the because of the way the
defense has behaved in this case. For six years, they have spied on
her. They accused her of being a fake . They flew in Dr. Burgarino.
And now, well, the whole, they have been saying, what are you going
to do about it? . . . So , what are you going to do about it, now, is up
to you. We’re asking you for a verd ict that says to Megan Spindler,
we hear you and we be lieve you and we’re goi ng to do something
about it.

Westman’s counsel objected to the stat ement regarding his purported agreement on
damages and requested a curative instruction, which he drafted, the parties agreed to, and
the district court gave to the jury before de liberation as part of the standard final pre-
deliberation instruction. The jury was instructed as follows: “what the attorneys say during
closing arguments are not evidence. So, if [Spindler’s counsel] made a comment about
[Westman’s counsel]’s closing arguments a nd it differs from your recollection of what
[Westman’s counsel] said, you’re to rely on your own recollection.”
Denying Westman’s motion for a new trial, the district court concluded that
Westman failed to establish that prejudice re sulted from the statements made in closing
arguments. In doing so, the district court determined that each co mplained-of statement
was counsel’s “non-evidentiary opinion,” rather than a “misstatement of facts in evidence,”
and therefore did not constitute prejudicial misconduct.
The district court also determined that the evidence offered at trial supported the
verdict. Spindler requested up to $4,240,000 for pain, disa bility, and emotional distress,

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and up to $1,474,150 in future health-care e xpenses. Westman requested that the jury
return no future damages. The jury awarded Spindler $470 ,000 in future health care
expenses, and $470,000 in future pain, disability, and emotional distress. In sum, the jury
awarded Spindler $1,065,507.98.3
In addition to the curative in struction, the district court three times, as part of its
preliminary instructions, remi nded the jury that statements the attorneys make are not
evidence. Before closing arguments, the jury was again so instructed. Westman’s attorney
gave a similar statement during his closing argument. The jury was therefore instructed by
the court on multiple occasions to return a verdict based not on the attorneys’ statements
but on the evidence at trial, and appellate courts “presume that juries follow the instructions
they are given.” Frazier v. Burlington N. Santa Fe Corp. , 811 N.W.2d 618, 630 (Minn.
2012).
Given the district court’s measured determ ination that the evid ence supported the
verdict and the subsequent find ing of no prejudice, and the inst ructions given to the jury,
this is not the “rare” case in which we overturn the district court’s decision to deny a new
trial. See Wild, 234 N.W.2d at 786 (granting new trial due to both parties’ misconduct
which “permeated” the record with “personality conflicts . . . obvious appeals to passion
and prejudice, and such rude, abusive, and unlawyerlike trial antics and tactics that no jury
could arrive at an impartial verdict”). We de fer to the district court’s superior ability to
gauge the impact of the challenged statements in view of the trial as a whole and discern

3 Included in this sum is th e award of $125,507.98 for pa st damages, which is not
challenged on appeal.

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no abuse of discretion in so c oncluding no prejudice to the jury was caused by counsel’s
statements.
Affirmed; motion denied.