Dakota County District Court. File No. C5-02-8452.
Considered and decided by Harten , Presiding Judge, Randall , Judge, and Klaphake , Judge.
Posttrial expert affidavits contradicting the unrecanted testimony of an expert witness who testified at trial are not "[m]aterial evidence newly discovered" within the meaning of Minn. R. Civ. P. 59.01(d).
The opinion of the court was delivered by: Harten, Judge
Concurring specially, Randall, Judge
Appellants moved for judgment notwithstanding the verdict (JNOV) or for a new trial on the ground that expert affidavits they obtained after trial contradicted portions of the unrecanted trial testimony of one of respondents' expert witnesses.*fn1 The motion was denied. They challenge the denial of the motion for a new trial, which we affirm.
Appellant Janet Dostal, a patient of respondent Southdale Obstetric & Gynecology Consultants (Southdale), delivered a healthy baby boy at the hospital of respondent Fairview Health Services (Fairview) about 9:30 a.m. on 12 February 2000. About 2:00 a.m. on 13 February 2000, appellant experienced symptoms later determined to be streptococcal meningitis. On 11 February 2000, the positive result of appellant's test for Group B streptococcus had been faxed by Southdale to Fairview and been placed in a pile of documents to be filed. Because the positive result was not in appellant's file, and no other factor indicated that the baby was at risk, penicillin had not been administered during appellant's labor.
Appellant and her husband Kevin Dostal brought this action against Southdale and Fairview, contending that their negligence had caused her to contract meningitis. At trial, one of respondents' expert witnesses, a board-certified specialist in internal medicine and sub-specialist in infectious diseases, testified extensively.*fn2 His testimony included statements that strep bacteria may have been colonized on Janet Dostal's skin and that one percent of blood-borne penicillin reaches the cerebral spinal fluid (CSF). After trial, the Dostals obtained an affidavit from a microbiologist who said that strep bacteria do not colonize on skin and an affidavit from a pharmacologist who said that five to ten percent of blood-borne penicillin reaches the CSF.
On the basis of these affidavits, appellants unsuccessfully moved for a new trial. They now challenge the denial of that motion.
Are posttrial expert affidavits contradicting the unrecanted testimony of an expert who testified at trial "[m]aterial evidence newly discovered" within ...