Jill Marie Kalisch, 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This opinion is nonprecedential except as provided by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
A24-0442

Jill Marie Kalisch,
Respondent,

vs.

Jason Brewer Ericson, et al.,
Appellants.

Filed January 27, 2025
Affirmed
Larson, Judge

Hennepin County District Court
File No. 27-CV-22-11616

Michael R. Docherty, David J. Milavetz, Milavetz Injury Law, P .A., Brooklyn Center,
Minnesota (for respondent)

Teri E. Bentson, Law Offices of John C. Syverson, London, Kentucky (for appellants)

Considered and decided by Larson, Presiding Judge; Wheelock, Judge; and Smith,
John, Judge.∗

NONPRECEDENTIAL OPINION
LARSON, Judge
Appellants Jason Brewer Ericson and J.A.O. Services Inc. challenge the district
court’s decision to deny their motion for judgment as a matter of law on respondent Jill

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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Marie Kalisch’s damages claim for future medical expenses . Appellants argue Kalisch
failed to meet her burden to prove future medical expenses were reasonably certain to
occur, and failed to establish the type, cost, or duration of future medical care . Because
the district court did not err when it determined that Kalisch met her burden, we affirm.
FACTS
On May 5, 2021, Kalisch and Ericson were involved in a motor-vehicle collision.
Kalisch was driving a Toyota pickup truck, and Ericson was driving a dump truck owned
by his employer, J.A.O. Services. Each driver brought a negligence claim. 1 The district
court consolidated the cases, and the cases proceeded to a jury trial. At the close of
evidence, all parties moved for partial judgment as a matter of law (JMOL) regarding future
medical expenses. The district court denied both motions. Thereafter, the jury returned a
special verdict on September 1, 2023, finding Kalisch and Ericson each 50% negligent.
The jury awarded each driver money damages for the time period between the accident and
the verdict, as well as future damages. Appellants renewed their JMOL motion, arguing
Kalisch failed to meet her evidentiary burden to support the jury’s $50,000 award for future
medical expenses. After a motion hearing, the district court denied appellants’ motion and
entered judgment for Kalisch in the amount of $115,869.80 and for Ericson in the amount
of $24,020.05. This appeal follows.

1 J.A.O. Services was a defendant in Kalisch’s case and has been held jointly and severally
liable for Kalisch’s damages.
3
DECISION
Appellants challenge the district court’s decision to deny their JMOL motion
regarding Kalisch’s future medical expenses. “We review de novo a district court’s
decision to deny a motion for judgment as a matter of law . . . viewing the evidence in the
light most favorable to [the nonmoving party].” Christie v. Est. of Christie, 911 N.W.2d
833, 838 n.5 (Minn. 2018) (quotation omitted); see also Vermillion State Bank v. Tennis
Sanitation, LLC, 969 N.W.2d 610, 618 (Minn. 2022). In doing so, we apply the same
standard as the district court and must reverse if the verdict is “manifestly against the entire
evidence” or “contrary to the law applicable to the case.” J.N. Sullivan & Assocs., Inc. v.
F.D. Chapman Constr. Co., 231 N.W.2d 87, 89 (Minn. 1975).
To establish damages for future medical care, a plaintiff must (1) demonstrate that
“future damages in the form of future medical treatments will be required” and (2) establish
the amount of the future medical expenses (the Lind factors). Lind v. Slowinski, 450
N.W.2d 353, 358 (Minn. App. 1990), rev. denied (Minn. Feb. 21, 1990). Appellants
challenge the district court’s determination that Kalisch met her burden on both Lind
factors, and we address each in turn.
A.
Appellants first argue Kalisch failed to meet her burden on the first Lind factor to
demonstrate that Kalisch will incur future medical expenses. To recover future medical
expenses, “the plaintiff has the burden of proving future damages to a reasonable
certainty.” Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980). The plaintiff need not
establish future medical expenses “to an absolute certainty,” but must prove the future
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expenses are “more likely to occur than not to occur.” Id. This ensures “that there is no
recovery for damages which are remote, speculative, or conjectural.” Id.
The parties rely on three cases to support their arguments regarding Kalisch’s
burden to prove future medical expenses. In the first case, Lind, we concluded that expert
testimony establishing that treatment that would be needed “once in a while . . . on the
average of once every four or five years” and that “ongoing medical care [would be needed]
on a sporadic basis” was sufficient to demonstrate to a reasonable certainty that the plaintiff
would incur future medical expenses. 450 N.W.2d at 358. Next, in Dornberg v. St. Paul
City Railway Co., the supreme court determined an expert’s opinion testimony that surgery
would be needed, although “no one could tell positively that [the surgery] would definitely
be necessary,” met the reasonable certainty requirement for future medical expenses. 91
N.W.2d 178, 183, 185 (Minn. 1958). The supreme court held the testimony “would go to
the weight of [the expert’s] opinion but would not deprive the jury of the right to consider
it.” Id. at 185. Finally, in Penteluk v. Stark , the supreme court concluded that expert
testimony on the permanency of an injury was sufficient to submit the issue of future
medical expenses to the jury. 69 N.W.2d 899, 901-02 (Minn. 1955). The supreme court
reiterated that the meaning of the testimony must be drawn from its entirety and not isolated
portions, as “[i]t is for the jury, not the court, to determine the weight to be given to the
testimony of a witness and to decide what such testimony proves.” Id. at 901.
Here, Kalisch presented the following evidence at trial regarding future medical
expenses. Kalisch sustained multiple injuries from the accident, including a double bone
fracture of the ulna and radius, facial bruising, headaches, and overall pain throughout her
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body. As a result, orthopedic surgeon Adam Bakker, M.D., performed two surgeries on
the forearm to repair the fractures, surgeries on both her wrists, and surgery on her shoulder
and bicep. Dr. Bakker’s testimony was provided at trial via video deposition as Kalisch’s
medical expert. Dr. Bakker testified “to a reasonable degree of medical certainty” that:
(1) there was “a good chance there will be” some permanent pain because of the injuries;
(2) he was hopeful that Kalisch was “not going to require much” future medical care,
“except for maybe an occasional therapy” to deal with her pain or discomfort; (3) a
“potential” future surgery may be needed on her wrist, but it was not common; and
(4) occupational therapy “helps with the range of motion, decreases her swelling and
inflammation that she had before and after . . . her surgeries, and it really allows the
recovery and the procedures that [Dr. Bakker] ha[s] done to be more long-term successful.”
The jury also learned Kalisch was an active person before the accident, continued to suffer
pain long after the accident, and was gradually beginning to return to some of her pre-
accident activities.
Viewing the evidence in the light most favorable to Kalisch, we conclude that
Kalisch satisfied the first Lind requirement. Dr. Bakker was Kalisch’s physician before the
accident and was familiar with her post-accident treatment. His testimony described
Kalisch’s injuries and surgeries, as well as his opinion on future medical care. To a
“reasonable degree of medical certainty,” Dr. Bakker thought “that there[ was] a good
chance” Kalisch will experience permanent pain, believed Kalisch may need “an
occasional therapy,” and described the recovery benefits that occupational therapy provides
after surgery.
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Appellants disagree, arguing that Dr. Bakker’s use of words like “maybe” or
“possibly” cannot establish any certainty regarding future medical expenses. But we must
look at Dr. Bakker’s testimony as a whole. See id. And although Dr. Bakker testified that
he was hopeful Kalisch would not need much future medical care and that Kalisch
“potentially” would need a future surgery, on the whole, Dr. Bakker’s testimony was
sufficient to allow the jury to determine its weight and whether Kalisch would more than
likely incur future medical expenses. See id. at 901-02; Dornberg, 91 N.W.2d at 185.
We, therefore, conclude that the district court did not err when it determined Kalisch
met her burden to demonstrate to a reasonable certainty that she will need future medical
care. See Lind, 450 N.W.2d at 358.
B.
Second, appellants argue that Kalisch failed to present sufficient evidence on the
second Lind factor to establish the amount of future medical expenses. Appellants
specifically point to the absence of any cost estimate for future medical care. Future
medical expenses will not be awarded “based on a showing that expenses are likely to
occur” without “some evidence of what the expenses will be.” Kwapien v. Starr, 400
N.W.2d 179, 184 (Minn. App. 1987). This is because future medical expenses are “a matter
which the jury cannot compute blindly without expert testimony. It cannot be left to their
speculation.” Lamont v. Indep. Sch. Dist. No. 395, 154 N.W.2d 188, 192 (Minn. 1967).
The parties contend that Kwapien resolves this issue. In Kwapien, we upheld a
future-damages award based on a physician’s testimony that the plaintiff’s condition “was
permanent and essentially ‘incurable’” and would require “physical therapy or similar
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treatment to relieve her pain for the rest of her life.” 400 N.W.2d at 184. To determine
future medical expenses, the jury had information relating to the cost of the plaintiff’s
previous physical-therapy treatments and the plaintiff’s life expectancy. Id. We
determined that “it was possible for the jury to take [plaintiff’s] life expectancy and factor
it against the cost of her past physical therapy treatments to arrive at an approximate figure
for future medical expenses.” Id. We upheld the jury’s damages award on the basis that
the amount of the award was “not . . . pure speculation.” Id.
At trial in this case, in addition to the evidence from Dr. Bakker regarding the need
for future medical care, the jury was also provided with evidence of Kalisch’s past medical
bills (around $33,000 for the two- year period), 2 which included past therapy expenses.
While the medical bills included costs for other procedures, each charge was labeled with
a description and billing code that would have allowed the jury to determine which costs
were associated with therapy. The record reflects Kalisch’s therapy totaled roughly $400
a session or $1,200 a course. The jury was also given an estimate of Kalisch’s life
expectancy (41 years) to assist in deciding the amount of future medical expenses to award,
if any.
Viewing this evidence in the light most favorable to Kalisch, we conclude Kalisch
satisfied the second Lind factor. Based on the evidence presented at trial, it was possible
for the jury to take Kalisch’s life expectancy and factor it against the cost of her past therapy
treatments to arrive at a cost for future medical expenses. In fact, this seems to be precisely

2 The district court order provides that the cost incurred was $33,534.17 for the two-year
period, but the record appears to reflect $33,412.17 in costs incurred.
8
what the jury did, given that the $50,000 future medical expenses award would provide
approximately one course of therapy every year for the rest of Kalisch’s estimated life.3
Appellants disagree, arguing that this case is distinguishable from Kwapien because
Dr. Bakker did not testify with the same level of certainty as Kwapien’s physician
regarding the need for future medical care. While Dr. Bakker’s testimony was not as
certain, as explained in part A, Dr. Bakker’s testimony provided enough context regarding
the permanency of the injury and future medical care to allow the jury to weigh the
testimony. See Penteluk, 69 N.W.2d at 901 (“It is for the jury, not the court, to determine
the weight to be given to the testimony of a witness and to decide what such testimony
proves.”).
Appellants also argue that this case is more similar to Lind, in which we concluded
the future-medical-expenses award was not supported by the physician’s testimony and
reduced the award. 450 N.W.2d at 358. In Lind, the jury awarded $63,000 for future
medical expenses. Id. But when calculating the future medical expenses supported by the
evidence, we determined the total cost per year, times the plaintiff’s life expectancy, only
totaled $30,400—prompting our reduction. Id. We do not observe a similar discrepancy
here. As explained above, based on the evidence in the record, a $50,000 award for future
medical expenses accounts for approximately one course of therapy every year for the rest
of Kalisch’s life.

3 This calculation does not account for the cost of a potential wrist surgery or any pain
medications Kalisch may also require.
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For these reasons, we conclude the district court did not err when it determined
Kalisch met her burden to establish the amount of the future medical expenses. See id.
Affirmed.