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Gensler v. Paulson1/25/2005
ony, a jury could have found it was reasonably certain that Gensler would incur future medical expenses. See Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric, 495 N.W.2d 208, 213 (Minn. App. 1993) (concluding need for future medical care was established when doctor testified that plaintiff's condition was "permanent" and would "require continual medical treatment"), review denied (Minn. Mar. 22, 1993); Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987) (concluding that jury could have found that it was reasonably certain that plaintiff would incur future medical expenses based on doctor's testimony that plaintiff's condition was "permanent" and "required [plaintiff] to undergo physical therapy or similar treatment to relieve her pain for the rest of her life").
With regard to the second Lind requirement, Paulson argues that the evidence is insufficient to establish the cost of future medical expenses because neither Gibbs nor Dorn provided " testimony whatsoever regarding . . . cost." But the cost of future medical expenses has been upheld without requiring expert testimony when it could be computed by factoring life expectancy against the cost of past treatment. Lind, 450 N.W.2d at 358 (citing Kwapien, 400 N.W.2d at 184); see also Krutsch, 495 N.W.2d at 214 (concluding that record containing evidence of past treatment and life expectancy was sufficient).
Gibbs testified that chiropractic care would be necessary to treat Gensler's "permanent" pain. Gibbs also testified that Gensler should continue with the corrective exercises learned in physical therapy, continue using over-the-counter medication, and see a medical doctor for prescription medication if needed. An orthopedist concurred, recommending that Gensler continue with physical therapy and chiropractic treatment as needed.
The stipulated exhibit summarizing Gensler's past medical care showed $2,513 in expenses for chiropractic care over five and one-half years. According to Gibbs's testimony, Gensler did not receive chiropractic treatment during two years of the time period reflected in the summary, even though his pain continued, because of concerns about insurance coverage. The summary also showed $5,541 over five and one-half years in medical expenses other than chiropractic care, including rehabilitative care and appointments with medical doctors. The court instructed the jury that Gensler's life expectancy was an additional forty-eight years.
Based on this evidence, the jury could reasonably factor Gensler's life expectancy against the cost of his past medical expenses to arrive at an approximate figure for future medical expenses. The award of $65,000 over forty-eight years, or $1,354 a year, roughly equates to the $1,464 a year of past medical expenses reflected in the summary. An "approximate" figure arrived at in this manner is based upon the evidence presented and is not based on pure speculation. Kwapien, 400 N.W.2d at 184.
Because competent evidence satisfies both Lind requirements and therefore adequately supports the jury's award for future medical expenses, the district court did not err in refusing to grant Paulson's motions for JNOV and new trial.
In a footnote in his brief, Paulson cites Minn. R. Evid. 703 as part of an assertion that the district court erred in admitting Gibbs's testimony over Paulson's foundation objection. Other than citing the rule, Paulson does not provide legal support for his argument. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere
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