930 N.W.2d 630
N.D.2019Background
- 2011 car accident injured Mark Klein; Sarah Luithle later died (unrelated) and her Estate defended the tort suit. Trial occurred in August 2018.
- Klein presented medical expert Dr. Bill Rosen and intended to present two other experts, Reg Gibbs and Scott Stradley, Ph.D., to support past and future medical damages.
- During trial, the Estate moved to strike portions of Dr. Rosen’s testimony as not meeting the “reasonable degree of medical certainty” standard; the court struck all of Dr. Rosen’s testimony on the record.
- The court also barred testimony from Gibbs and Stradley, finding insufficient foundation absent Dr. Rosen’s medical testimony.
- The jury found Klein 25% at fault and Luithle 75% at fault and awarded Klein compensatory damages; Klein appealed the exclusion/striking of expert testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly struck Dr. Rosen’s testimony under N.D.R.Ev. 702 | Klein: striking all of Dr. Rosen’s testimony was overbroad; some testimony (past treatment, exam observations, and parts not asserting future certainty) was admissible | Estate: Dr. Rosen’s opinions on future care lacked reasonable medical certainty and were therefore inadmissible | Reversed — court abused discretion by striking all of Dr. Rosen’s testimony; some portions were admissible and the wholesale strike was overbroad; remand for a new trial |
| Whether Gibbs and Stradley should have been permitted to testify | Klein: their testimony was admissible and was improperly excluded; exclusion hinged on Dr. Rosen’s erroneous exclusion | Estate: their testimony lacked foundation absent admissible medical testimony from Dr. Rosen | Not decided on the merits — court remanded; on retrial district court must determine foundation after medical testimony is presented |
Key Cases Cited
- Lenertz v. City of Minot, 923 N.W.2d 479 (N.D. 2019) (district court has broad discretion over expert testimony)
- Myer v. Rygg, 630 N.W.2d 62 (N.D. 2001) (court must ensure expert testimony is reliable and relevant)
- Condon v. St. Alexius Medical Center, 926 N.W.2d 136 (N.D. 2019) (future medical expenses require reasonable medical certainty)
- Symington v. Mayo, 590 N.W.2d 450 (N.D. 1999) (plaintiff must show substantial evidence establishing future medical necessity)
- FLRA v. United States DOJ, 395 F.3d 845 (8th Cir. 2005) (broad unguided orders are arbitrary and may be an abuse of discretion)