Klein v. Estate of Luithle
Klein v. Estate of Luithle
Opinion
*632 [¶1] Mark Klein appeals a judgment following a jury verdict awarding him compensatory damages resulting from a vehicular accident. Klein appeals, arguing the district court incorrectly struck the entirety of his expert witness's testimony from the record and improperly excluded testimony from two other expert witnesses under N.D.R.Ev. 702 and 703. We reverse and remand for a new trial.
I
[¶2] Klein and Sarah Luithle were in a vehicular accident in 2011. Luithle died in 2014 from unrelated causes. The case was tried before a jury in August 2018. Prior to trial, Luithle's Estate moved the district court to exclude two of Klein's witnesses, Reg Gibbs and Scott Stradley, Ph.D., arguing their testimony and opinions did not meet the requirements of N.D.R.Ev. 702 and 703. The court denied the motion, stating the arguments raised by Luithle's Estate went to the credibility of the experts, not to the admissibility of their testimony. On the second day of trial, Bill Rosen, M.D., testified as Klein's medical expert witness. After Dr. Rosen testified, Luithle's Estate moved to strike part of Dr. Rosen's testimony, arguing it did not meet the reasonable degree of medical certainty standard and was therefore speculative and inadmissible. After acknowledging Klein's continuing objection, the court struck all of Dr. Rosen's testimony. The court also excluded proposed testimony from Gibbs and Stradley because it held there was a lack of foundation for these experts to testify without Dr. Rosen's testimony. The jury determined Klein was 25% at fault and Luithle was 75% at fault for the accident that caused Klein's injuries. Klein was awarded compensatory damages. The two issues on appeal are whether the district court erred (1) by striking Dr. Rosen's testimony under N.D.R.Ev. 702, and (2) by not permitting Gibbs and Dr. Stradley to testify.
II
[¶3] "The district court has broad discretion whether to allow expert witness testimony, and its decision will not be reversed on appeal unless it abused its discretion."
Lenertz v. City of Minot
,
*633
[¶4] Dr. Rosen was Klein's medical expert. His testimony was necessary to support Klein's claim for past and future medical damages.
Condon v. St. Alexius Medical Center
,
Court: "[W]hen I say the testimony of Dr. Rosen is struck, it's struck to the extent that he offered testimony that was outside of his expertise. But, I mean, he said I saw the patient, I talked to him. You're not suggesting that I strike his testimony in that regard?
Attorney for Luithle's Estate: Well, any medical opinions.
Court: That's where it would be.
Attorney for Luithle's Estate: Right.
Court: All right.
Later the court told counsel in chambers that it had "made several rulings essentially ruling that Dr. Rosen's testimony from a medical standpoint would be struck, given the reality that he offered no opinion to a reasonable degree of medical certainty." And again, "Dr. Rosen's testimony is struck, that is the medical testimony." But when the court addressed the jury on the record it stated:
[T]he testimony of Dr. Rosen, ... based on legal reasoning by this Court, is hereby struck. You as jurors are not to consider that testimony when you deliberate, and the attorneys will not reference nor will they argue that testimony in their closing remarks to you. So you're to put that testimony out of your mind.
Thus, all of Dr. Rosen's testimony was stricken.
[¶5] Even if some of Dr. Rosen's testimony was properly excluded, striking all of the testimony was overbroad.
See
Central Telecommunications, Inc. v. TCI Cablevision, Inc.
,
*634
The motion to strike was for part of Dr. Rosen's testimony relating to certain identified issues. Dr. Rosen testified to a few items as being reasonable and necessary. For example, he testified that medical care for Klein's injury following the accident including both current and ongoing physical therapy was reasonable and necessary. Dr. Rosen also testified about observations he made when he physically examined Klein. The "reasonable degree of medical certainty" standard applies to future medical expenses, not past or present facts.
See
Condon
,
[¶6] Striking testimony wholesale when part of the testimony is admissible may be an abuse of discretion by the court.
C.f. Arkansas Louisiana Gas Co. v. James
,
[¶7] "It is not an abuse of discretion for a judge to make sua sponte evidentiary rulings under certain circumstances."
Vachon v. Pugliese
,
[¶8] Klein's substantial rights were affected because his medical expert's testimony was completely struck and Klein was significantly limited in proving both past and future damages. Additionally, the matter of medical expenses was a major issue at trial, and exclusion of Klein's only medical expert left him to rely solely on the medical witness called by Luithle's Estate. Therefore, we remand for a new trial. Because we are remanding for a new trial as a result of the error in striking all of Dr. Rosen's testimony, we need not reach *635 the arguments regarding the court's exclusion of Gibb's and Dr. Stradley's testimonies. On retrial, the district court must determine whether there is sufficient foundation for that testimony in consideration of the medical testimony presented at that time.
III
[¶9] We reverse the district court judgment and remand for a new trial.
[¶10] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
Reference
- Full Case Name
- Mark KLEIN, Plaintiff and Appellant v. the ESTATE OF Sarah LUITHLE, Defendant and Appellee
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Although a district court judge has broad discretion when admitting or excluding expert witness testimony, it is an abuse of discretion to strike all of an expert witness's testimony sua sponte when some of the testimony is admissible.