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Donna Ingram, et al., Appellants, vs. Selmer Syverson, et al., Respondents. A03-967, Court of Appeals Published, February 3, 2004.

STATE OF MINNESOTA IN COURT OF APPEALS A03-967 Donna Ingram, et al., Appellants, vs. Selmer Syverson, et al., Respondents. Filed February 3, 2004 Reversed and remanded Toussaint, Chief Judge Olmsted County District Court File No. C2-02-000807 Raymond L. Hansen, O'Brien & Wolf, L.L.P., 206 S. Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903 (for appellants) Michael B. Goodman, Goodman & Guzinski, P.A., 300 First Avenue Northwest, Suite 306, P.O. Box 277, Rochester, MN 55903 (for respondents) Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Anderson, Judge. SYLLABUS I. Physicians testifying as expert witnesses in a personal-injury action, because of their training and

experience, may rely on a patient's statement made about the patient's symptoms to formulate opinions concerning causation. II. Where two theories of causation are reasonably plausible in a personal-injury action, a court may

not circumvent the jury's authority to determine which theory is more probable by granting summary judgment. OPINION TOUSSAINT, Chief Judge On appeal in this personal-injury case, appellants Donna Ingram and James Ingram argue that the district court erred in determining that their expert testimony was not based on adequate factual foundation, and in granting summary judgment because appellants failed to show their theory of causation was more probable than

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Donna Ingram, et al., Appellants, vs. Selmer Syverson, et al., Respondents. A03-967, Court of Appeals Published, February 3, 2004.

that of respondents. Because a physician's expert opinion may be reasonably based on information from multiple sources, including statements made to the physician by a patient, and because causation is an issue best suited for a jury, we reverse and remand. FACTS The present action arose out of a low-speed accident that occurred in Rochester on January 29, 1996, between vehicles driven by respondent-defendant Selmer Syverson and appellant-plaintiff James Ingram. Syverson, driving a pickup truck owned by his employer, respondent-defendant Expertise Lawn Care (Expertise), made a left turn as the Ingrams' van approached from the opposite direction. The icy conditions that afternoon made stopping difficult, and the Ingrams' van struck the passenger-side edge of the snowplow mounted on Syverson's turning vehicle. Appellant-plaintiff Donna Ingram, who had been diagnosed six days earlier with degenerative disc disease in her back (and who had been receiving back-pain treatment at the Mayo Clinic for three years), was a passenger in the vehicle driven by her husband. She asserts that, upon impact, she immediately felt a sharp pain in her low back. She now claims that the accident prompted, or at least accelerated, the need for spine-fusion surgery in July 1997. The Ingrams filed suit against both Syverson and Expertise, alleging that Syverson's negligence caused both the accident and Donna Ingram's deteriorated back condition. To support their claims, the Ingrams solicited the testimony of Dr. R. A. Klassen, Donna Ingram's treating surgeon, who testified that her condition worsened after the collision, and that her spine-fusion surgery "was related to the increasing pain that she had following the accident." On cross-examination, however, Dr. Klassen admitted that he was unable to causally connect Donna Ingram's symptoms to the accident solely from his own findings and examination, and relied upon her statements that her pain resulted from the accident. Further, Dr. Klassen conceded that Donna Ingram's injuries might have resulted from the natural progression of her degenerative back disease, rather than from the accident. Respondents moved for summary judgment, claiming that the Ingrams failed to establish that Syverson's alleged breach of duty caused Donna Ingram's back problems. They asserted that Dr. Klassen's testimony was based solely on Donna Ingram's own statements concerning the relationship of the accident to her pain, and that none of Dr. Klassen's physical examinations, standing alone, could link her increased pain to the accident.

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Donna Ingram, et al., Appellants, vs. Selmer Syverson, et al., Respondents. A03-967, Court of Appeals Published, February 3, 2004.

The district court granted respondents' motion, finding that Dr. Klassen's testimony was "not based on adequate factual foundation because no medical reports indicate evidence of injury suffered by the Plaintiff solely attributable to the accident . . ." Without medical reports supporting Dr. Klassen's testimony, the court reasoned, the only evidence linking the accident to Donna Ingram's pain was Donna's own statement. The court further determined that the Ingrams' theory of causation was "founded on speculation and conjecture" because the Ingrams did not show their theory was more probable than that of the respondents. The Ingrams appeal, asserting that their expert's opinion was based on sufficient factual foundation to withstand summary judgment, and that the court improperly decided a fact issue that should have been determined by a jury. ISSUES I. May a physician testifying as an expert witness rely on statements made by a patient about her symptoms to formulate opinions concerning causation? Must appellants demonstrate that their theory of causation is more probable than respondents' theory to withstand summary judgment? ANALYSIS When deciding a motion for summary judgment, the reviewing court is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). The court must review the evidence de novo, and in the light most favorable to the party against whom judgment is granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). All doubts and factual inferences must be resolved in favor of the non-moving party. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). I. The Ingrams first dispute the district court's determination that Dr. Klassen's testimony lacked adequate factual foundation. They contend that Dr. Klassen's opinion that Donna Ingram's pain related to the accident was based not only on her own statements about her symptoms, as the district court concluded, but also on medical records and physical examinations. This, they argue, is information typically relied upon by experts in Dr. Klassen's field. The Ingrams' argument finds support from the Minnesota Rules of Evidence. The comments to rule 703 state that a court should apply a two-part test to determine whether an expert's opinion is based on adequate
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II.

Donna Ingram, et al., Appellants, vs. Selmer Syverson, et al., Respondents. A03-967, Court of Appeals Published, February 3, 2004.

foundation. First, the court should determine if the facts and data are of a type relied upon by experts in the field when forming inferences or opinions on the subject. Minn. R. Evid. 703 1989 comm. cmt. Second, the court should address whether the expert's reliance is reasonable. Id. The comments specifically state that the physician-as-expert, because of the nature of his practice, "bases his diagnosis on information from numerous sources and of considerable variety." Id. This information includes "statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays." Id. Indeed, Minnesota courts have long recognized the relatively subjective, imperfect nature of medical science. In the oft-cited Hiber v. City of St. Paul, the Minnesota Supreme Court noted the difference between an expert's inference and mere conjecture rests in the expert's ability

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