Harfield v. Tate

20030039 Ginger Harfield and
Todd Harfield, Plaintiffs and Appellants
Jeremy Tate, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Personal Injury
Appellant: Alan C. Erickson
Appellee: Jeffries, Olson & Flom, PA
Term: 09/2003   Argument: 09/25/2003
ND cite: 2004 ND 45
NW cite: 675 N.W.2d 155

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. The May 5, 1998 video trial deposition of the IME expert, Dr. Belgrade, was after motion heard on October 15, 2001, made subject to the order stating that, " . . with respect to medical testimony that said testimony shall be updated and that prior medical testimony shall be excluded, except for the limited purposes of impeachment and/or rebuttal . . ." Between the 1998 and 2002 trials, Harfield underwent a 1999 lumbar MRI with surgical care opinions, a 2000 IME by Dr. Belgrade, a 2002 cervical MRI, and a substantial medical treatment history. Did the 2002 trial court abuse its discretion by admitting into evidence the 1998 Belgrade trial deposition?
2. Harfields requested by motion in limine the exclusion of 1985 breast surgery medical records and Dr. Zarrett physician notes and letters. Did the court abuse its discretion by denying the motion as to five pages, admitting into evidence Dr. Zarrett's 1985 post operative notes which include with regard to to her symptom complaints that Harfield was a "probable malingerer", and his August 1, 1985 letter to Social Security, including, "I think that she is a malingerer . . (and) . . it will be a travesty of justice if she receives disability compensation."?
3. After remand of this case determined liability issues, Harfields requested by motion in limine to exclude Myron Lofgren opinions that the December 29, 1994 estimate damages are unrelated to the accident, particularly that vehicle frame damages, quarter panel buckling, windshield breakage and other items shown upon photographs in evidence could not have resulted from the accident, including breakage patterns caused by a fist, and that biomechanical forces could not possibly cause an injury. Did the trial court abuse its discretion by allowing Mr. Lofgren's speed, vehicle component, glass and biomechanical opinions?
4. The trial court has discretion to determine how Rule 68 process may apply to cost taxation, including as to one of multiple proceedings. Tate prevailed in the first trial only as a result of erronious liability positions, and then further.levied upon this action in an attempt by Rule 69 execution, sheriff's sale, his written bid, and order to show cause proceedings to purchase these causes of action pending against him. Did the trial court abuse its discretion by entering an order denying Harfields' attorney fees incurred in the defense to Rule 69 proceedings resulting in a stay against sale of this lawsuit pending the appeal, and by taxing Harfields for all proceedings?

Appellee's Statement of the Issues:
A. The Trial Court did not abuse its discretion in allowing the testimony of Tate's IME doctor, Dr. Miles Belgrade, to be received through the videotaped trial deposition testimony of May 5, 1998, and the videotaped trial deposition testimony of August 9, 2002.
B. The Trial Court did not abuse its discretion in admitting the 1985 notes of Dr. Robert W. Zarrett.
C. The Trial Court did not abuse its discretion in allowing the expert testimony of Myron Lofgren at trial.
D. The Trial Court correctly applied Rule 68 of the North Dakota Rules of Civil Procedure; the Trial Court did not abuse its discretion in the award of costs and disbursements to Tate; and, further, the Trial Court correctly denied an award of attorneys' fees.

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Docket entries:
102/10/2003 NOTICE OF APPEAL: 02/07/2003
202/10/2003 ORDER FOR TRANSCRIPT: 02/07/2003
302/12/2003 Copy of letter from Gail Wells to Alan Erickson dated February 11, 2003
403/03/2003 RETENTION OF RECORD ON APPEAL: 03/29/2003
503/03/2003 TRANSCRIPTS DATED 10-15-01; 7-01-02; 11-19-02
603/03/2003 DISK (e-mailed) - TRA dated 10-15-01 (TR1); 7-01-02 (TR2); 11-19-02 (TR3)
703/31/2003 MOT. EXT/TIME TRANSCRIPT (Gail Wells, Ct. Reporter)
803/31/2003 ACTION BY TRIAL COURT. Granted: 05/08/2003
904/02/2003 TRANSCRIPT DATED 12-23-98 (Order to Show Cause)
1004/02/2003 DISK - TRA dated 12-23-98
1104/24/2003 TRANSCRIPT DATED August 20 through 23, 2002 (4 volumes)
1204/28/2003 DISK - TRA August 20 thru 23, 2002 (disks)
1304/29/2003 RECORD ON APPEAL (7 VOL)(including exhibits, depositions (6), video depositions (5) and Transcripts
1404/29/2003 (3 entries 1 with 1 vol., 1 with 8 vols., and 1 with 2 vols.) not forwarded with the record were
1504/29/2003 not included with the record were Nos. 23, 51, 78, 184, 218, 247, 269, 303, and 435 (Tapes)
1604/29/2003 and Nos. 176, 416, 417, 418 and 419 (Steno Notes)
1706/03/2003 APPELLANT BRIEF
1906/09/2003 DISK - ATB
2007/03/2003 APPELLEE BRIEF
2207/07/2003 DISK - AEB
2309/25/2003 APPEARANCES: Alan C. Erickson; Thomas R. Olson
2409/25/2003 ARGUED: Erickson; Olson (Vol. Y; page 145)
2602/25/2004 UNANIMOUS OPINION: Sandstrom, Dale V.
2702/25/2004 Costs on appeal taxed in favor of appellants
2802/26/2004 Judgment Mailed to Parties
2903/02/2004 Corrected Opinion Page 1
3003/18/2004 MANDATE
3211/19/2009 EXPUNGED - Nonpermanent record items destroyed

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