                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1405

                                      Jean A. Swanson,
                                         Appellant,

                                             vs.

                              Summit Orthopedics, Ltd., et al.,
                                      Respondents.

                                     Filed July 18, 2016
                                          Affirmed
                                        Reyes, Judge

                             Washington County District Court
                                  File No. 82CV135261

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chrtd., Minneapolis,
Minnesota (for appellant)

Katherine A. McBride, Rodger A. Hagen, LouAnn Lawton, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for respondents)

         Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant argues that the district court erred in denying her motion for judgment

as a matter of law (JMOL) because the evidence does not support the jury verdict. In
addition, Swanson argues that the district court abused its discretion in denying

Swanson’s motion for a new trial based on several alleged trial errors. We affirm.

                                           FACTS

         On August 6, 2009, appellant Jean A. Swanson tripped and fell, fracturing her

right leg. She was brought to the emergency room and treated by respondents, Summit

Orthopedics, Ltd., and employee Dr. Hartleben, an orthopedic surgeon. On August 7,

2009, Dr. Hartleben performed surgery to repair Swanson’s fractured right leg. Swanson

alleges that while Dr. Hartleben fixated her right leg, he also fractured her left leg, which

was fragile because of polio in her youth. Over the next two days, an x-ray and CT scan

were taken of Swanson’s left leg. She was diagnosed with a left tibial plateau fracture

and her left leg was immobilized with a soft removable splint.

         Dr. Hartleben provided post-operative follow-up care for both legs in August,

September, October, and November 2009. During these follow-up visits, Dr. Hartleben

did not notice any signs of malrotation1 in Swanson’s right leg and believed the fracture

was healing well. Swanson complained of nighttime achiness and pain in her left knee

area, and difficulties with the fit of the brace on her left leg, but she did not complain of

malrotation in her right leg. Dr. Hartleben referred Swanson to physical therapy and

expected a follow-up visit when she returned from her out-of-state winter vacation.




1
    According to trial testimony, “malrotation” is bad rotation of the bone fragments.

                                               2
        Swanson attended physical therapy, but alleges that she could not rotate her right

 leg internally2 or place weight on it. On March 10, 2010, Swanson returned to Summit

 Orthopedics and complained of external3 malrotation of her right hip and foot. Swanson

 alleges that respondents fixated her right leg in a malrotated position, which affected her

 mobility.4 Dr. Biebl, another orthopedic surgeon, evaluated Swanson’s right leg, agreed

 that it was malrotated, and referred Swanson to orthopedic surgeon Dr. Dahl.

 Subsequently, Dr. Dahl performed surgery on Swanson’s right leg to correct the

 malrotation.

        Swanson initiated a medical-malpractice lawsuit against respondents. During a

 jury trial, the parties presented various experts who opined regarding Swanson’s leg

 malrotation. The jury found that Dr. Hartleben was not negligent in providing treatment

 to Swanson. Swanson filed a motion for a new trial and for JMOL, both of which the

 district court denied. This appeal follows.

                                      DECISION

I.      Sufficient evidence supports the jury’s verdict and the district court’s denial of
        Swanson’s motion for JMOL.

        Swanson argues that the district court erred in denying her motion for JMOL

 because the evidence does not support the jury verdict. We disagree.



 2
   According to trial testimony, “internally” is described as rotating inward toward the
 center of the body.
 3
   According to trial testimony, “externally” is described as rotating outward away from
 the center of the body.
 4
   Prior to this surgery, Swanson required a power wheelchair for mobility as a
 consequence of her post-polio syndrome.

                                               3
       A party may move for JMOL pursuant to Minn. R. Civ. P. 50. JMOL is

appropriately granted only in unambiguous cases where the verdict is manifestly contrary

to the evidence as a whole or contrary to the applicable law. Jerry’s Enters., Inc., v.

Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) Appellate

courts “apply de novo review to the district court’s denial of a [r]ule 50 motion.” Bahr v.

Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009); see Glorvigen v. Cirrus

Design Corp., 796 N.W.2d 541, 549 (Minn. App. 2011), aff’d, 816 N.W.2d 572 (Minn.

2012). Appellate courts “view the evidence in the light most favorable to the prevailing

party.” Bahr, 766 N.W.2d at 919. The district court’s denial of JMOL must be affirmed

“if there is any competent evidence reasonably tending to sustain the verdict. . . . and we

will not set the verdict aside if it can be sustained on any reasonable theory of the

evidence.” Lester Bldg. Sys. v. Louisiana-Pac. Corp., 761 N.W.2d 877, 881 (Minn.

2009) (quotation and citation omitted).

       A.     Sufficient evidence supports the jury’s verdict that Dr. Hartleben was
              not negligent and did not fixate Swanson’s femur in a malrotated
              position.

       Swanson argues that the evidence compels a finding that Dr. Hartleben was

negligent and fixated her femur in a malrotated position because there was not a new

fracture, there was no radiographic evidence of post-fixation rotation, and respondents’

experts’ theories lacked foundation. Swanson’s argument is misguided.

       Regarding the issue of negligence, a trial court does not err in denying a motion

for JMOL where conflicting, credible testimony is offered. Boschee v. Duevel, 530

N.W.2d 834, 842 (Minn. App. 1995), review denied (Minn. June 14, 1995). In situations


                                              4
“[w]here expert witnesses offer conflicting opinions, it is for the jury, as the ultimate trier

of fact, to consider their qualifications and determine the weight to be given their

opinions.” McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 146 (Minn. App.

1992) (quotation omitted), review denied (Minn. Mar. 26, 1992).

       The district court’s order denying Swanson’s motion for JMOL is supported by the

record. The district court reasoned, and the record reflects, that both Dr. Szalapski and

Dr. Bruer testified that Dr. Hartleben achieved a good alignment of the right femur at the

time of surgery based on the imaging studies and fluoroscopic images5 they reviewed.

Dr. Szalapski explained that the leg length looked good, and the screws were almost

perfectly parallel.

       Dr. Szalapski reviewed Swanson’s imaging studies taken from August to

November 2009 while Swanson was under respondents’ care. He opined that her bone

was healing nicely, and there was good alignment based on the “degree of parallelness of

the screws” and stated that not much had changed during that time. Similarly, Dr. Bruer

agreed that she could not see any signs of malrotation in the studies from August to

November 2009.

       Additionally, Dr. Szalapski compared the x-rays from November 2009 to March

2010, and opined that there was a major change based on the position of the tip of the rod

in comparison to the staples. The change, according to Dr. Szalapski, occurred because



5
  According to trial testimony, “fluoroscopic images” are enhanced images produced
from a camera used during a surgical procedure to assess alignment and hardware
placement, and are saved for radiographic interpretation.

                                               5
the bone shortened up, gradually turned, and cut around the screws, causing the fibula to

go behind the tibia, which resulted in a “major change in the rotation of the knee.”

Dr. Bruer also opined that the location of the distal fixation screw and the intermedial nail

had both changed based on the images she viewed from November 2009 to March 2010.

       Furthermore, Dr. Szalapski described Swanson as a patient with “limited mobility”

whose “care was complicated by the fact that she has extremely poor bone quality . . .

[and] by the presence of hardware from previous surgeries.” Likewise, Dr. Bruer opined

that the hardware did not fail, the change in Swanson’s bone was due to subsidence,

which happens when bone is soft and the hardware moves in relation to the bone. And

Dr. Szalapski opined that Swanson’s malrotation was due to weak bones that could not

hold the hardware. “And just with normal muscle forces and normal weight bearing, [the

bone] gradually failed. . . . [T]he screws stay[ed] in the same place, but . . . [cut] through

the osteoporotic bone which allows the bone to move and because [it is] a spiral fracture

that results in malrotation.”

       Swanson’s experts opined that a fluoroscopic image or x-ray was insufficient to

view a bone in a malrotated position and Dr. Mechrefe opined that Swanson was

malrotated at the time of surgery. But we must “view the evidence in the light most

favorable to the prevailing party.” Bahr, 766 N.W.2d at 919.

       The jury weighed and considered the credibility of each witness, and implicitly

found respondents’ witnesses credible by accepting their testimony. Id. Therefore, the

evidence supports the jury’s verdict that Dr. Hartleben was not negligent and did not

fixate Swanson’s femur in a malrotated position.


                                               6
7
         B.     Swanson’s standard-of-care arguments are waived.

         Swanson argues that Dr. Hartleben failed to meet the applicable standard of care

with regard to both of her legs. But she failed to brief or provide legal support for these

issues, and issues not briefed on appeal are waived. See Melina v. Chaplin, 327 N.W.2d

19, 20 (Minn. 1982).

II.      Swanson is not entitled to a new trial based on the alleged trial errors.6

      Under Minn. R. Civ. P. 59.01(a):

                      A new trial may be granted to all or any of the parties
                and on all or part of the issues for any of the following causes:
                ....
                      Irregularity in the proceedings of the court, referee, jury,
                or prevailing party, or any order or abuse of discretion,
                whereby the moving party was deprived of a fair trial.

We review a district court’s decision on a motion for a new trial under an abuse-of-

discretion standard. Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc.,

715 N.W.2d 458, 476-77 (Minn. App. 2006), review denied (Minn. Aug. 23, 2006). The

principal concern in deciding to grant a new trial is whether there is prejudice. Id.

Appellate courts “will not set aside a jury verdict on an appeal from a district court’s

denial of a motion for a new trial unless it is manifestly and palpably contrary to the

evidence viewed as a whole and in the light most favorable to the verdict.” Navarre v. S.

Wash. Cty. Sch., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted).

         A.     The district court did not abuse its discretion by denying Swanson’s
                motion for a new trial based on respondents’ experts’ testimony.

6
 Swanson fails to specify that she is requesting a new trial based on the alleged trial
errors. Swanson does not refute that this is her argument in her reply brief and seems to
argue this generally in her brief and in a header in her reply brief.

                                                8
       The “determination of whether harm was done or whether there was genuine

surprise which left defendants in a position where they could not have a fair trial must be

left to the sound discretion of the trial court.” Sroga v. Lund, 259 Minn. 269, 273, 106

N.W.2d 913, 915-16 (1961).

       Swanson makes several arguments that she is entitled to a new trial because

respondents’ experts testified regarding new and undisclosed theories and opinions. We

address each argument in turn.

                 1.   The scout image7

       Swanson argues that respondents improperly compared a CT scout image to the

March 3, 2010, AP x-ray image (anterior-posterior or front-to-back view). The district

court found that the scout image was available to all of the experts, Swanson did not

object to respondents’ experts’ testimony regarding the scout image, and determined that

Swanson was not prejudiced by the testimony. Because Swanson never objected to the

testimony at trial, Swanson cannot now claim surprise, and the record supports the

district court’s findings and determination to deny Swanson a new trial. Swanson v.

Williams, 303 Minn. 433, 435, 228 N.W.2d 860, 862 (1975) (noting that “[t]he trial court

acted well within its discretion in denying plaintiff's motion for a new trial on the ground

of surprise”).




7
  According to trial testimony, a “scout image” is a preliminary diagnostic image used to
line up and preview the CT image.

                                             9
              2.     Testimony regarding the movement of the screws

       Swanson contends that respondents’ experts argued for the first time at trial that

the distal locking screws moved shortly after fixation causing the bone to rotate without

leaving a trace of their movement. But Swanson failed to raise this argument in her

motion for new trial and therefore has waived it. Iverson v. Iverson, 432 N.W.2d 492,

493 (Minn. App. 1988) (“On appeal from the denial of a motion for a new trial, only

those matters specifically alleged in the motion to constitute error may be reviewed.”),

review denied (Minn. July 27, 1989).

              3.     Dr. Szalapski’s testimony regarding a change in rotation in the
                     knee

       Swanson argues that Dr. Szalapski’s new testimony regarding the location of

Swanson’s fibula was based upon an improper comparison of different views. Swanson

cites to Longbehn v. Schoenrock, 727 N.W.2d 153, 159 (Minn. App. 2007) for the

proposition that this comparison led the jury to a “strained interpretation of the evidence.”

But that case is inapposite because Longbehn is a defamation per se case appealing a

jury’s award of damages. Id. Swanson failed to object to Dr. Szalapski’s testimony at

trial, cannot claim surprise, and as such has waived this argument on motion for new trial

or on appeal. Poppler v. O'Connor, 306 Minn. 539, 541 n.1, 235 N.W.2d 617, 619 n.1

(1975); Swanson, 303 Minn. at 435, 228 N.W.2d at 862.

              4.     Dr. Szalapski’s trial testimony regarding trigonometry proof of
                     malrotation and lucency

       Swanson apparently argues that she was prejudiced by Dr. Szalapski’s testimony

regarding trigonometry proof of malrotation and lucency because the arguments lacked


                                             10
foundation, and while the testimony was stricken, the jury believed that Swanson was

hiding valuable information. But Swanson provides no caselaw in support of either

argument. Mere assertions of error not supported by argument or authority cannot be

considered on appeal except where prejudice is obvious. State v. Modern Recycling, Inc.,

558 N.W.2d 770, 772 (Minn. App. 1997). Because Swanson did not adequately provide

legal support for her arguments related to Dr. Szalapski’s testimony, she has waived these

arguments.

       B.     The district court did not abuse its discretion in denying Swanson’s
              motion for a new trial based on respondents’ trial counsel’s closing
              argument.

       Swanson argues that she is entitled to a new trial because, during closing

argument, respondents argued an inaccurate and improper burden of proof suitable for

criminal cases and improperly discussed Dr. Biebl’s “expert testimony.”

       “A trial court’s response to improper remarks in closing argument is governed by

no fixed rules but rests almost wholly in [its] discretion . . . .” Poston v. Colestock, 540

N.W.2d 92, 93 (Minn. App. 1995) (quotation omitted) (alteration in original), review

denied (Minn. Jan. 25, 1996). Moreover, “[m]isconduct of counsel does not warrant a

new trial unless the misconduct clearly resulted in prejudice to the losing party.” Eklund

v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974).

       The district court determined that Swanson’s argument was without merit and

respondents’ explanation to the jury regarding the burden of proof, by a preponderance of

the evidence, was consistent with the court’s instruction. It also found that Swanson did

not object to respondents’ closing and cannot prove prejudice. The district court further


                                             11
found that Dr. Biebl’s deposition testimony was properly in evidence because it was read

to the jury, and as such, respondents’ counsel could reference that testimony during

closing argument.

       Here, respondents explained that in a civil case the burden of proof is a

preponderance of the evidence. Respondents further explained that the burden was “to

prove something more probably true than not true.” Then, respondents illustrated to the

jurors that a preponderance of the evidence was not the same as tipping a scale so they

were no longer equal or even, but a preponderance was more comparable to rolling a

boulder from the bottom to the top of a hill. Respondents’ explanation was generally

consistent with the district court’s jury instruction and with the weight of authority. See

Netzer v. N. Pac. Ry. Co., 238 Minn. 416, 425, 57 N.W.2d 247, 253 (1953) (noting that

jury’s instruction “to establish a fact by a fair preponderance of the evidence, the

evidence must satisfy you that it is more reasonable, more probable, more credible that

such fact exists than that the contrary exists” was appropriate). Moreover, viewing

respondents’ closing as a whole it did not misconstrue the burden of proof to the extent

required to constitute reversible error. See Swanson v. Thill, 277 Minn. 122, 127-28, 152

N.W.2d 85, 89 (1967).

       Respondents generally referred to the care that Dr. Biebl provided for Swanson.

Swanson also discussed the services that Dr. Biebl provided in her closing and objected

to respondents’ reference to Dr. Biebl. But “parties are permitted to argue reasonable

inferences from the facts presented at trial.” State v. Young, 710 N.W.2d 272, 280 (Minn.

2006) (quotation omitted).


                                             12
       Moreover, the district court gave a curative instruction to the jury clarifying that

statements made by attorneys are not evidence, including those made during closing

statements, and stated that the jury heard and understood the curative instruction. It is

within the district court’s broad discretion to give a curative instruction based on

improper remarks made during closing argument and its issuance of curative instructions

should be upheld except when the misconduct leads to “a miscarriage of justice.” Poston,

540 N.W.2d at 93-94 (quotation omitted). Because the record supports the district court’s

decisions to give a curative instruction and that respondents’ counsel did not commit

misconduct during closing argument, the district court did not abuse its discretion by not

granting a new trial. Id.

       C.     The district court did not abuse its discretion by denying Swanson’s
              motion for a new trial based on the totality of the circumstances.

       Swanson argues that she was denied a fair trial based on the totality of the

circumstances. We are not persuaded.

       An appellant is granted a new trial only in cases where the errors are “substantial

and prejudicial.” State v. Boykin, 285 Minn. 276, 282, 172 N.W.2d 754, 758 (1969).

However, where the individual errors are not substantial or prejudicial, there cannot be a

cumulative prejudice. Id.

       The district court implicitly concluded that, based on the totality of the

circumstances, Swanson was given a fair trial. The district court denied Swanson’s

motion concluding that, after several days of testimony, the jury had heard and fully

considered the testimony and evidence of Swanson’s injuries, but that Swanson had “not



                                             13
established that she is entitled to judgment as a matter of law or that a new trial is

necessary.”

       Swanson raises many alleged errors, but cannot prove individual or cumulative

prejudice. See id. As such, the evidence supports the district court’s decision and it did

not abuse its discretion by denying Swanson’s motion for a new trial.

       Affirmed.




                                              14
