This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1639

 

 

Hughe Raymond Pruitt,

Appellant,

 

vs.

 

Thomas A. Seivert, D.C.,

Respondent.

 

 

Filed August 17, 2004

Affirmed

Anderson, Judge

 

Dakota County District Court

File No.  C1-02-7802

 

Roger R. Roe, Jr., Best & Flanagan LLP, 225 South Sixth Street, Suite 4000, Minneapolis, MN  55402 (for appellant)

 

William M. Hart, Melissa Dosick Riethof, Barbara A. Zurek, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant instituted a chiropractic-malpractice action against respondent.  The matter was tried to a jury, which found respondent was not negligent in his treatment of appellant.  Although the jury filled out the portion of the special-verdict form finding respondent not negligent, it failed to complete the damages portion of the form, including calculating appellant’s present and future medical expenses and pain and suffering awards.  Appellant moved the district court for a new trial, but the district court denied the motion.  We affirm.

FACTS

 

            On April 6, 1998, appellant, Hughe Raymond Pruitt, sought treatment from respondent, Thomas Seivert, a chiropractor, for pain in Pruitt’s legs and feet.  On April 6, Seivert took Pruitt’s medical history, performed an examination, diagnosed Pruitt with a lower-back ailment, and made a chiropractic adjustment to Pruitt’s back.  Seivert also saw Pruitt on April 7, 8, and 10.  At the April 10 visit, Seivert told Pruitt that he should see a general practitioner if his leg and foot pain did not subside over the next week. 

            On the afternoon of April 10, after the appointment, Pruitt telephoned Seivert to complain that his foot pain had become significantly worse and that he needed medication for the pain.  Seivert contacted the Westview Clinic and requested a pain-medication prescription for Pruitt; Pruitt filled the prescription that day.  On April 11, Pruitt told Seivert that he had taken all but two of the pills from the prescription during the night.  Concerned at the amount of the prescription Pruitt had taken, Seivert told Pruitt to go to an urgent-care center or emergency room.  On April 11, Pruitt was admitted to the Westveiw Clinic where Dr. Ezell concluded that there was nothing seriously wrong with Pruitt. 

            At Pruitt’s next appointment with Seivert on April 13, Seivert noted that Pruitt’s leg and foot pain had diminished but that there was decreased palpitation of the pulses in the foot and ankle.  Seivert further noted that it was possible that Pruitt’s problem was vascular in nature.  On April 14, at Pruitt’s next visit, Seivert noted that Pruitt’s overall pain had improved, his peripheral pulses were present, and the color of his feet had improved but that Pruitt’s feet were cold.

            On April 15, Pruitt called Seivert and terminated treatment.  While being treated by Seivert, and after the treatment with Seivert ended, Pruitt continued to receive treatment from other care providers.  On April 15, the Westview Clinic referred Pruitt to a neurologist.  On April 17, Pruitt saw a different chiropractor, Dr. LeDuc, who noted that Pruitt’s feet were sore, swollen, discolored, and had diminished peripheral pulses.  LeDuc concluded, as Seivert had, that it was possible Pruitt’s problem was vascular in nature.  LeDuc then recommended Pruitt see a medical provider immediately.

            Arrangements were made for Pruitt to go to his usual clinic and it would remain open later than the normal clinic business hours.  But the clinic was closed when he arrived shortly after leaving LeDuc’s office.  Pruitt then decided to return home and wait to attend his clinic the next morning.  But later that evening Pruitt could no longer deal with the pain, he called an ambulance, and he was admitted to a local emergency room at 10:30 p.m. on April 17.  At this time, Pruitt had no peripheral pulses, and his feet were cold and had changed color.  The emergency-room doctor misdiagnosed Pruitt’s condition, and it was not until the morning of April 18 that a vascular specialist finally diagnosed Pruitt with acute lower extremity arterial ischemia.  After the diagnosis, Pruitt began thrombolytic therapy, but the treatment failed.  Pruitt’s lower limbs began to die, and his legs were amputated below the knees. 

            Pruitt instituted a malpractice action against Seivert, and, at trial, both parties presented expert-witness testimony.  Two of Pruitt’s witnesses testified through depositions admitted at trial, and two of his witnesses testified in person.  Seivert’s witnesses testified in person.  The experts disagreed about (1) the dates that Pruitt exhibited symptoms of acute lower extremity arterial ischemia, (2) whether Seivert should have recognized that Pruitt’s symptoms indicated both that his condition was arterial ischemic and that the condition was an emergency, (3) whether Seivert should have referred Pruitt to a different health-care provider, and (4) whether an earlier diagnosis would have affected the outcome of Pruitt’s ultimate medical condition.

D E C I S I O N

 

I.

           

            Pruitt argues that he is entitled to a new trial because there is newly discovered evidence, which, even with reasonable diligence, he could not have found and produced at trial.  We disagree. 

At the district court, Pruitt argued that he was entitled to a new trial pursuant to Minn. R. Civ. P. 59.01(d), which permits a new trial based on newly discovered evidence.  Pruitt argued the district court has broad discretion in determining whether sufficient new evidence exists, thereby justifying a new trial.  On appeal, Pruitt challenges the decision of the district court on the basis that, “[a]lthough generally the denial of a motion for a new trial is reviewed under an abuse of discretion standard, when the motion is based upon newly-discovered evidence of falsified testimony the correct legal standard is the three-prong Larrison test.”  On appeal, Pruitt relies for the first time on the rule laid out in Larrison v. United States, 24 F. 2d 82, 87-88 (7th Cir. 1928), adopted by the Minnesota Supreme Court in State v. Caldwell, 322 N.W.2d 574, 580-81 (Minn. 1982). 

Pruitt collaterally challenges the decision of the district court, arguing that it erred by failing to use the Larrison test to evaluate his motion for a new trial.  In general, both the district court and the appellate court have the obligation to apply the correct and current version of the law.  But Pruitt’s argument that Larrison applies is a novel legal theory and not just a failure by the district court to cite the most current version of the law.  The Larrison rule, generally applied in the criminal context, has rarely been applied in civil cases and has never been applied in a medical or chiropractic malpractice case in Minnesota.

Pruitt did not argue to the district court that it should consider the Larrison three-prong test in ruling on the motion for a new trial, did not address the Larrison criteria in the motion to the district court, and is urging this court to substantially expand the reach of Larrison.  Because Pruitt never argued at the district court that Larrison applied, the argument is not properly before us.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (an appellate court will consider only those matters and theories presented to and considered by the district court).  Search Term Begin We decline to review Pruitt’s novel theory because it was never presented to the district court.

II.

 

            Pruitt argues that, because the verdict of the jury was contrary to the evidence presented at trial, the district court abused its discretion by failing to grant Pruitt’s motion for a new trial.  We disagree.

Pruitt argues that Seivert’s own testimony proves that Seivert was negligent in his care of Pruitt, because the testimony established (1) that Seivert was trained as a chiropractor and had knowledge of the condition of acute lower extremity arterial ischemia, (2) the standard of care for a chiropractor treating a patient with symptoms indicative of acute lower extremity arterial ischemia, and (3) that Seivert violated the standard of care for chiropractors by treating Pruitt when Seivert should have referred Pruitt to a different care-giver. 

A jury’s answer to a special-verdict question “can be set aside only if no reasonable mind could find as did the jury.”  Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997); see Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986) (jury verdict will be sustained if there is “any reasonable theory based on the evidence”).  On review, we will not set aside answers to special-verdict questions “unless they are perverse and palpably contrary to the evidence or [unless] the evidence is so clear to leave no room for differences among reasonable people.”  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  “The evidence must be viewed in a light most favorable to the jury verdict.  If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.”  Id. (citation omitted).

At trial, Seivert presented evidence that, although several care providers saw Pruitt between April 13 and April 18, Pruitt’s condition remained incorrectly diagnosed until the morning of April 18.  Seivert presented evidence that, like Seivert, other care providers did not conclude that Pruitt’s condition was an emergency until April 18, when Pruitt was diagnosed with lower extremity acute arterial ischemia.  Finally, Seivert presented evidence that while he was treating Pruitt, Pruitt did not exhibit all the indicia of lower extremity acute arterial ischemia, and Pruitt’s symptoms during that time did not warrant an emergency referral.  Because we view the evidence in the light most favorable to the verdict of the jury, and because Seivert presented evidence sufficient to allow the jury to reach the conclusion that he was not negligent in his care of Pruitt, the verdict is not “perverse and palpably contrary to the evidence.”  Id.  We affirm the decision of the district court not to set aside the jury verdict.

III.

 

            Pruitt argues that the district court abused its discretion by denying Pruitt’s motion for a new trial because the verdict, in which the jury failed to calculate the damages, was the result of the jury’s passion or prejudice.  We disagree.

When the damage award of the jury is the result of passion or prejudice the district court may, in its discretion, order a new trial.  Seydel v. Reuber, 254 Minn. 168, 173, 94 N.W.2d 265, 269 (1959).  We will not disturb the decision of the district court absent a clear abuse of discretion.  Id. 

It is well established that when a jury concludes, based on adequate evidence, that the defendant is not negligent, the failure of the jury to calculate damages does not automatically render the verdict the product of passion or prejudice.  Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973).  Because the evidence presented at trial supported the jury’s special-verdict finding that Seivert was not negligent in his treatment of Pruitt, and because this finding rendered the damage calculation in the special verdict moot, the district court did not abuse its discretion by denying Pruitt’s motion for a new trial based on the jury’s failure to completely calculate the damage award.  Id., 207 N.W.2d at 341; Buzzell v. Bliss, 358 N.W.2d 695, 700 (Minn. App. 1984).

            Affirmed.