#28631-a-MES 

2019 S.D. 53 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

GENE WEBER and 

CLARISSA WEBER, Plaintiffs and Appellees, 

 

v. 

GERALD RAINS and K & L 

CONSTRUCTION, INC. d/b/a 

K & L LANDSCAPE & 

CONSTRUCTION, INC., Defendants and Appellants. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

HANSON COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE PATRICK T. SMITH 

Judge 

* * * * 

MICHAEL D. BORNITZ 

KIMBERLY R. WASSINK 

ROBERT D. TRZYNKA 

SAMUEL A. KRYSTOSEK of 

Cutler Law Firm, LLP 

Sioux Falls, South Dakota Attorneys for plaintiffs and 

appellees. 

ROSS M. WRIGHT 

DANA VAN BEEK PALMER of 

Lynn, Jackson, Shultz 

 & Lebrun, P.C. 

Sioux Falls, South Dakota Attorneys for defendants and 

appellants. 

* * * * 

CONSIDERED ON BRIEFS 

ON JANUARY 7, 2019 

 OPINION FILED 09/04/19 
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SALTER, Justice 

[¶1.] Gene Weber brought suit against Gerald Rains and K & L 

Construction (the Appellants) for injuries sustained in a motor vehicle accident. 

The jury returned a verdict in favor of Weber and awarded damages. On appeal, 

the Appellants claim the circuit court abused its discretion when it denied their 

motion to exclude testimony from Weber’s medical providers regarding the extent 

and permanency of his injuries. The Appellants also contend the jury’s passion or 

prejudice resulted in an excessive and unsustainable verdict. We affirm. 

Background 

[¶2.] Weber and Rains were involved in a motor vehicle accident on January 

9, 2014, on Highway 25 south of Emery. Highway 25 is a two-lane blacktop road 

with no shoulder. Weber was traveling southbound in his pickup truck, heading 

back to his job site after stopping home in Emery for lunch.1 Rains was 

northbound, driving a semi-tractor with a side dump trailer. He was working 

within the scope of his employment with Sioux City-based K & L Construction, 

transporting gravel from a quarry to the site of a bridge maintenance project. 

[¶3.] Rains testified that he had a coughing fit just prior to the collision, and 

an investigation revealed that his tractor-trailer had drifted over the centerline. 

Both drivers stated they took evasive action and were able to avoid a head-on 

collision. However, Rains’ rear axle struck Weber’s front driver’s side, causing 

 

1. Weber has been self-employed as a carpenter and contractor for over 20 

years. His work typically includes installing sheet rock, shingling, cabinethanging, and other home improvement projects. 
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Weber’s pickup truck to spin into the oncoming traffic lane and land in the opposite 

ditch. 

[¶4.] Weber testified that after the accident he was dazed and may have lost 

consciousness momentarily. After taking a few moments to assess his condition, he 

got out of his pickup and spoke with Rains and another K & L truck driver who 

witnessed the accident. Weber stated that he was feeling alright at the accident 

scene, but he started to experience tightness in his shoulders later that evening. 

[¶5.] The following morning, Weber saw his regular medical provider, Joni 

Wagner (Wagner), a physician assistant, and reported that he felt “beat up.” Weber 

told Wagner he had pain in his shoulders, upper and lower back, and a headache. 

Wagner prescribed a regimen of physical therapy and referred him to Dr. Matthew 

McKenzie, an orthopedic surgeon. Weber testified that the physical therapy 

provided only short-term relief. Dr. McKenzie obtained an MRI, which was 

“essentially normal.” He diagnosed Weber with chronic myofascial pain and 

suggested chiropractic treatment. 

[¶6.] Weber started chiropractic treatment with Dr. John Bosch in the fall of 

2014. Eventually, his low back and left shoulder pain subsided, but he continued to 

experience right shoulder pain and headaches. Dr. Bosch referred Weber to Dr. 

Jason Hurd, another orthopedic surgeon, who diagnosed his condition as “a 

myofascial whiplash injury” and suggested nerve conduction studies. When the 

studies found normal nerve activity, Dr. Hurd advised Weber to continue 

chiropractic treatment. 
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[¶7.] Weber also saw Dr. Christopher Janssen, a physiatrist, twice. Dr. 

Janssen thought Weber was experiencing cervical facet pain and offered Weber 

trigger-point injections and radiofrequency ablation as treatment options. Weber 

declined, opting for over-the-counter pain medication and chiropractic treatment. 

[¶8.] Weber commenced this action against the Appellants, seeking damages 

he alleged were caused by Rains’ negligence. Prior to trial, the Appellants admitted 

liability for the collision and agreed to pay for Weber’s past medical expenses and 

property damage. Still unresolved were the issues of Weber’s past wage loss,2

future chiropractic expenses, pain and suffering, and the loss of consortium claim of 

Weber’s wife, Clarissa.

[¶9.] In his responses to the Appellants’ discovery requests, Weber initially 

objected to an interrogatory requesting information about expert witnesses, citing 

attorney-client privilege and work-product doctrine. However, Weber’s response 

also stated that “[w]ithout waiving this objection, Plaintiff anticipates that his 

doctors would testify as expert witnesses regarding his care and treatment, his 

prognosis, and his past and future medical bills.” 

[¶10.] On October 30, 2017, pursuant to the court’s scheduling order, Weber 

identified Wagner and Drs. Bosch and Janssen as expert witnesses. Weber’s 

disclosures stated they would testify that: (1) the accident caused Weber’s injuries; 

(2) Weber would require future medical care; and (3) Weber’s injuries are 

permanent. The Appellants’ deadline to disclose expert witnesses was November 

 

2. Weber’s claim only included wages lost while attending medical 

appointments. 
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30, 2017, but they chose to not identify any experts. Weber supplemented his 

discovery responses on January 5, 2018, responding to the Appellants’ request for 

expert witness information by referring to his earlier expert disclosure. 

[¶11.] On January 28, 2018, Weber saw Wagner again for the first time in 

almost three years. The visit occurred just prior to Wagner’s trial deposition. 

Wagner’s record of this visit relates how Weber’s pain affected his marital 

relationship and his hobbies, and caused emotional stress from lost wages and 

medical bills. At her trial deposition, Wagner testified generally that chronic pain 

can cause depression, anxiety, relationship problems, and other health issues. 

Wagner also testified that Weber would “more likely than not” continue to 

experience flare-ups of his chronic pain symptoms. The Appellants contend that 

Wagner had never mentioned any of these concerns in her records of Weber’s prior 

visits. They also claim that the treatment records of Drs. Bosch and Janssen failed 

to mention that Weber was permanently injured or could not enjoy his hobbies. 

[¶12.] Prior to trial, the Appellants moved the circuit court in limine for an 

order excluding: (1) argument, testimony, or evidence portraying Dr. Bosch, Dr. 

Janssen, and Wagner as expert witnesses; (2) portions of Wagner’s deposition 

testimony regarding missed work and loss of income, the need to find different 

employment, and general questions regarding chronic pain; and (3) evidence, 

testimony, and argument that Weber will have future pain, suffering, and medical 

expenses. The Appellants argued Weber’s expert designations did not comply with 

the rules of discovery, claiming his patient treatment records did not support the 

opinions of his medical providers. In the Appellants’ initial view, Weber’s treating 
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providers should have been considered lay witnesses who were unable to provide 

opinions regarding the permanency of Weber’s injuries, his future pain and 

suffering, and his future medical treatment. 

[¶13.] On February 20, 2018—the first morning of the three-day trial—the 

circuit court denied the Appellants’ motions to exclude testimony about Weber’s 

future pain and suffering, finding that the challenged testimony was within the 

scope of Weber’s treatment. The court determined that Weber’s medical providers 

could testify about their perceptions of Weber’s overall prognosis that they acquired 

while treating him. In so doing, the court also rejected the Appellants’ argument 

that allowing Wagner to testify generally about how chronic pain can affect a 

patient would violate the rules of civil procedure governing expert disclosures. 

[¶14.] In addition to presenting Wagner’s videotaped deposition at trial, 

Weber also offered live testimony from Drs. Bosch and Janssen. Dr. Bosch testified 

that Weber experienced difficulty performing his work duties and enjoying his 

hobbies due to his injuries. Dr. Bosch also testified that he “picked up” on Weber’s 

emotional issues from his injuries, and opined that his pain would “forever be an 

issue [due to] continuous re-injury, [were] chronic, [and] there’s not going to be a 

drastic change.” Dr. Janssen testified that Weber suffered a whiplash injury with 

resulting cervical facet pain and cervical myofascial pain that would likely be 

permanent. In Dr. Janssen’s view, Weber would never be pain free, and treatment 

goals were focused on reducing his pain complaints. The Appellants did not offer 

any expert medical evidence. 
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[¶15.] The jury awarded Weber $813,480 for pain and suffering, loss of 

enjoyment of life, mental anguish, and disability. It also awarded Weber $31,000 

for future chiropractic care, $35,520 for lost wages, and $20,000 for Clarissa’s loss of 

consortium claim. 

[¶16.] The Appellants moved for a new trial, and the record relating to the 

post-verdict litigation that followed provides some of the most illuminating 

information relative to this appeal. As their first basis for a new trial, the 

Appellants argued that the court should not have allowed Wagner to testify about 

collateral effects associated with chronic pain or allowed Dr. Janssen to testify that 

Weber’s pain was permanent. For each witness, the Appellants asserted that the 

treatment records failed to support the breadth of their opinions. Weber’s counsel 

countered, stating he did not actually know what his medical providers would say in 

response to his permanency-related questions because, unlike a retained expert, he 

was unable to easily visit with them and determine their testimony or the contents 

of any report. However, Weber’s counsel also indicated that he disclosed the 

medical providers as experts to provide notice and on the strength of his belief that 

the witnesses would, in fact, testify that the injury was permanent given the length 

of time Weber had suffered from pain and its unresolved nature. 

[¶17.] In a rejoinder, counsel for the Appellants acknowledged that Weber’s 

disclosure “partially complied” with the rules, but they also alleged it “created 

confusion” because of uncertainty whether the medical providers were testifying as 

lay or expert witnesses. In response to an inquiry from the circuit court, counsel for 

the Appellants further acknowledged that Weber’s expert witness disclosure plainly 
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stated that his medical providers would each testify that Weber’s injuries were 

permanent. Counsel for the Appellants stated that they had, nevertheless, elected 

not to depose any of the medical providers, opting to seek exclusion of their 

testimony at trial because of what they believed to be an insufficient basis provided 

by the disclosure. 

[¶18.] During the course of the hearing, the parties and the court discussed in 

detail varying interpretations of our decisions in Veith v. O’Brien, 2007 S.D. 88, 739

N.W.2d 15, and Wangsness v. Builder’s Cashway, Inc., 2010 S.D. 14, 779 N.W.2d 

136. Both opinions express the position that treating medical providers may be 

considered lay witnesses, rather than expert witnesses, who are not subject to 

traditional pretrial discovery rules relating to experts. The Appellants had 

originally viewed Weber’s treating medical providers as lay witnesses, but during 

the new trial litigation they relied upon Wangsness to argue that the treating 

medical providers were experts whose opinions and bases were subject to disclosure 

under our pretrial discovery rules. Relying upon Veith, Weber contended his 

medical providers were not experts at all, but, in any event, their identities and 

opinions had been disclosed. 

[¶19.] The court ultimately viewed Veith as controlling and determined that 

the treating medical providers did not “fit under the definition of an expert[.]” The 

court also indicated that any inconsistencies between the medical records and the 

testimony could have been addressed adequately through cross examination and 

noted that testimony from other lay witnesses—Weber, as well as his wife, son, and 

father—supported the assertion that Weber’s injuries are permanent. 
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[¶20.] As their second basis for a new trial, the Appellants argued that the 

verdict was excessive and the product of passion and prejudice. The circuit court 

denied the motion, however, under the following reasoning: 

I do not believe simply because the verdict approached a million 

dollars, that that in and of itself makes it shocking to anyone’s 

conscience. I believe this verdict was capable of being reached 

by a jury that heard the facts and interpreted them in the 

manner in which they did and was not the result of passion or 

bias or reflective of them being inflamed in any fashion. 

[¶21.] The Appellants raise two issues on appeal, restated as follows: 

1. Whether the circuit court abused its discretion by admitting 

certain testimony from Weber’s treating providers. 

2. Whether the circuit court abused its discretion by denying 

the Appellants’ motion for a new trial based upon their claim 

that the verdict was excessive. 

Analysis 

Medical Expert Discovery 

[¶22.] “The trial court’s evidentiary rulings . . . will not be overturned absent 

a clear abuse of discretion.” Veith, 2007 S.D. 88, ¶ 25, 739 N.W.2d at 23. “A court 

abuses its discretion when it makes ‘a fundamental error of judgment, a choice 

outside the reasonable range of permissible choices, a decision . . . [that], on full 

consideration, is arbitrary or unreasonable.’” ISG, Corp., v. PLE, Inc., 2018 S.D. 64, 

¶ 24, 917 N.W.2d 23, 32 (alteration in original) (quoting Wald, Inc. v. Stanley, 2005 

S.D. 112, ¶ 8, 706 N.W.2d 626, 629). “Our review [of evidentiary rulings] requires a 

two-step process; first, to determine whether the trial court abused its discretion in 

making an evidentiary ruling; and second, whether the error was a prejudicial error 

that ‘in all probability’ affected the jury’s conclusion.” O’Day v. Nanton, 2017 S.D. 
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90, ¶ 21, 905 N.W.2d 568, 573 (quoting Supreme Pork, Inc. v. Master Blaster, Inc., 

2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491). 

[¶23.] We also review the grant or denial of a motion for new trial under the 

abuse of discretion standard. See Glanzer v. Reed, 2008 S.D. 104, ¶ 13, 757 N.W.2d 

417, 420 (“Whether a new trial should be granted is left to the sound judicial 

discretion of the trial court, and this Court will not disturb the trial court’s decision 

absent a clear showing of abuse of discretion.” (quoting Waldner v. Berglund, 2008 

S.D. 75, ¶ 11, 754 N.W.2d 832, 835)). A motion for a new trial may be granted when 

an “[i]rregularity in the proceedings . . . prevented . . . a fair trial.” SDCL 15-6-

59(a)(1). 

[¶24.] Pretrial discovery relating to expert witnesses is generally governed by 

SDCL 15-6-26(b), which provides in relevant part:

A party may through interrogatories require any other party to 

identify each person whom the other party expects to call as an 

expert witness at trial, to state the subject matter on which the 

expert is expected to testify, and to state the substance of the 

facts and opinions to which the expert is expected to testify and 

a summary of the grounds for each opinion. 

SDCL 15-6-26(b)(4)(A)(i). The provisions of SDCL 15-6-26(e) further impose a 

continuing obligation upon parties to supplement their earlier responses if they 

were either incomplete or “if the additional or corrective information has not 

otherwise been made known to the other parties during the discovery process or in 

writing.” SDCL 15-6-26(e)(1)-(2). 

[¶25.] Included among the broad range of sanctions available to circuit judges 

who determine a party has failed to properly supplement its earlier discovery 

responses is the express authority to exclude the evidence that was not disclosed. 
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However, this authority is tempered by the requirement that the court assess the 

violation for harmlessness: 

A party that without substantial justification fails to disclose 

information required by subdivision 15-6-26(e)(1), or to amend a 

prior response to discovery as required by subdivision 15-6-

26(e)(2), is not, unless such failure is harmless, permitted to use 

as evidence at a trial, at a hearing, or on a motion any witness 

or information not so disclosed. In addition to or in lieu of this 

sanction, the court, on motion and after affording an opportunity 

to be heard, may impose other appropriate sanctions. 

SDCL 15-6-37(c)(1) (emphasis added). 

[¶26.] Here, even if Weber failed to seasonably amend or supplement his 

response to the Appellants’ interrogatory seeking expert witness information, 

Weber did timely disclose Wagner and Drs. Bosch and Janssen as experts pursuant 

to the court’s scheduling order on October 30, 2017.3 The three had treated Weber, 

and the disclosure indicated that the subject matter of their testimony would relate 

to his “injuries, medical care, treatment and prognosis.” Weber identified the 

grounds for their opinions as their treatment, along with their “education, training, 

and experience[.]” The disclosure also described the substance of the experts’ 

opinions in the following terms: 

Plaintiff Gene Weber’s medical providers will testify consistent 

with the medical records regarding Plaintiff’s injuries, medical 

condition, care, treatment, progress, and prognosis. They will 

discuss the injuries Plaintiff Gene Weber sustained, describe the 

medical basis and cause for those injuries, and otherwise 

demonstrate how Mr. Weber was injured in this collision. In 

addition[,] they will testify that Plaintiff’s injuries were 

proximately caused by the motor vehicle collision, that the 

Plaintiff will require future medical care as a proximate result of 

 

3. See SDCL 15-6-16 (requiring the court to enter a scheduling order 

establishing certain enumerated deadlines, as well as any deadlines 

“appropriate to the circumstances of the case”). 
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the motor vehicle collision, and that Plaintiff’s present medical 

condition is permanent in nature. 

(Emphasis added.) 

[¶27.] Against this legal and factual backdrop, we are unable to accept the 

Appellants’ principal argument that they were “ambushed” at trial with expert 

medical testimony that Weber’s injuries were permanent. Nor can we safely 

proceed on the Appellants’ view that a discovery violation necessarily occurred and 

move directly to the prejudice considerations we set out in Papke v. Harbert, 2007 

S.D. 87, ¶ 55, 738 N.W.2d 510, 529. 

[¶28.] At the latest, Appellants knew on October 30, 2017, that Weber’s 

treating medical providers would testify that, in their respective opinions, Weber’s 

injuries were permanent. The case was tried to a jury on February 20-22, 2018, 

leaving the Appellants nearly four months to determine their best course in light of 

this disclosure. Under the circumstances, this should have been sufficient time for 

the Appellants to formulate a plan to meet Weber’s proof if they believed that to be 

necessary. The Appellants had until November 31, 2017, to disclose their own 

medical experts, but they did not pursue that option to refute Weber’s permanent 

injury claim. Nor did they seek additional time from the court to develop their own 

expert proof. 

[¶29.] The Appellants’ principal effort on appeal—to assail the sufficiency of 

Weber’s medical records as a basis to support the expert’s opinions concerning 

permanency—is also not sustainable. So far as they are included in the record here, 

Weber’s medical records describe chronic pain that was treated but did not resolve. 

In this regard, the records reveal initial efforts to address Weber’s pain through 
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physical therapy, a lengthy course of chiropractic care, and successive referrals to 

orthopedic specialists, all without lasting success. Numerous attempts to gain 

insight from diagnostic studies and imaging were equally unsuccessful, and Weber 

eventually sought care from Dr. Janssen for pain management. Even if, as the 

Appellants state, Weber’s medical records do not include the word “permanent,” 

permanency is, nevertheless, an apparent and reasonable inference from the 

records. 

[¶30.] Under the circumstances, therefore, the circuit court did not abuse its 

discretion by denying the Appellants’ motion to exclude the testimony of Weber’s 

treating medical providers. Even if Weber’s supplemented interrogatory response 

was not seasonable, the court acted within the rules of civil procedure to deny the 

Appellants’ motion in limine. In this regard, the duty to supplement contained in 

SDCL 15-6-26(e)(1) and (e)(2) applies to information “not otherwise . . . made known 

to the other parties during the discovery process or in writing.” Here, Weber’s 

expert disclosure on October 30, 2017, plainly stated that his medical providers 

would testify that his pain is permanent. Given this, we are unable to determine a 

violation of the discovery rules occurred or that the exclusionary remedy authorized 

as a sanction in SDCL 15-6-37(c) is implicated. 

[¶31.] Beyond this, a separate issue pervades the parties’ submissions and 

requires us to clarify the state of our decisional law regarding treating medical 

witnesses. Both the parties and the circuit court have, understandably, relied upon 

our prior decisions distinguishing witnesses who are treating medical providers and 

witnesses whose medical testimony was developed in anticipation of trial. See 
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Wangsness, 2010 S.D. 14, ¶ 20, 779 N.W.2d at 142-43; Veith, 2007 S.D. 88, ¶¶ 42, 

45, 739 N.W.2d at 27-28. According to these decisions, the former are regarded as 

lay witnesses, testifying about their perceptions even when those perceptions are 

informed by the application of specialized knowledge, training, and experience. Id. 

Only the latter category of witnesses, under the opinions in Wangsness and Veith, 

are considered experts. Id. 

[¶32.] In Veith, we held that a treating physician would be viewed as an 

“ordinary witness” who could testify about conclusions made in his treatment of the 

plaintiff even though the physician and his opinions were not disclosed. 2007 S.D. 

88, ¶ 45, 739 N.W.2d at 28. We similarly held in Wangsness that treating 

physicians will be treated as lay witnesses for purposes of disclosure under SDCL 

15-6-26(b)(4)(A)(i), as long as their opinions are not obtained in anticipation of 

litigation. 2010 S.D. 14, ¶ 20, 779 N.W.2d at 142-43. 

[¶33.] However, the current text of SDCL 19-19-701 no longer supports the 

view that treating medical witnesses, such as physicians, should be categorically 

treated as lay witnesses simply because they provide testimony based upon their 

perceptions. In 2011, we amended SDCL 19-19-701 relating to lay witnesses by 

unambiguously stating that lay witness testimony may “[n]ot [be] based on 

scientific, technical or other specialized knowledge within the scope of [SDCL 19-19-

702].” SDCL 19-19-701(c).4 The reference to SDCL 19-19-702 relates, of course, to 

our rule of evidence concerning expert witnesses. Both SDCL 19-19-701 and SDCL 

 

4. Both Veith and Wangsness were decided before the 2011 amendment to what 

is now SDCL 19-19-701. 
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19-19-702 are modeled after corresponding Federal Rules of Evidence, and, in fact, 

Rule 701 of the federal rules was, itself, similarly amended in 2000. At the time, 

the Advisory Committee stated the change was intended to “eliminate the risk that 

the reliability requirements set forth in Rule 702 would be evaded through the 

simple expedient of proffering an expert in lay witness clothing.” Fed. R. Evid. 701 

advisory committee’s note to 2000 amendment. The amendment “also ensure[d] 

that a party will not evade the expert witness disclosure requirements set forth in 

Fed. R. Civ. P. 26 . . . .” Id. 

[¶34.] Here, though, the concern about failing to disclose treating medical 

providers as experts is largely averted because Weber did, in fact, disclose his 

treating physicians and physician assistant as experts. He did not, in other words, 

seek to avoid disclosure by “proffering an expert in lay witness clothing.” As we 

stated above, Weber also provided notice that the medical experts would testify that 

his pain is a permanent condition and that the medical records, detailing chronic 

pain and ongoing pain management, adequately disclosed the basis for the 

testimony. However, the medical records describing Weber’s pain would not 

necessarily provide a basis for Wagner’s opinions about the collateral impact of 

Weber’s pain, such as anxiety, depression, relationship problems, overuse injuries, 

and diminished interest in hobbies. 

[¶35.] Even assuming, without deciding, that the medical records provided 

insufficient support for these discrete opinions and that they were otherwise not 

disclosed, we do not believe reversal is required. We have identified the following 
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areas of concern to consider when assessing the impact of a party’s failure to fully 

disclose an expert’s opinion: 

(1) the time element and whether there was bad faith by the 

party required to supplement; (2) whether the expert testimony 

or evidence pertained to a crucial issue; and (3) whether the 

expert testimony differed substantially from what was disclosed 

in the discovery process. 

Papke, 2007 S.D. 87, ¶ 56, 738 N.W.2d at 529 (citing Kaiser v. Univ. Physicians 

Clinic, 2006 S.D. 95, ¶ 35, 724 N.W.2d 186, 195-96). 

[¶36.] Here, the Appellants do not allege Weber acted in bad faith concerning 

Wagner’s opinions. They acknowledge that Wagner’s trial testimony was taken by 

deposition three weeks before trial and not offered unexpectedly at the trial. 

Although the Appellants argue they had insufficient time to engage their own 

expert, there is no indication they either tried to engage an expert or asked the 

court for additional time to allow them to do so. Further, Wagner’s testimony about 

the adverse impact Weber’s pain has had or may have upon his life is a closelyrelated extension of the permanency testimony, which the Appellants identify as 

the central and crucial issue in this case, and which we have determined was 

properly disclosed. 

[¶37.] Beyond this, the testimony from Wagner on the collateral effect of 

Weber’s pain was brief—accounting for only a small portion of the entire 

evidentiary record adduced at trial. Moreover, Wagner’s testimony on this topic 

primarily restated Weber’s own allegations about how his life has been impacted by 

his injuries or illustrated the impacts of his injuries. Furthermore, Weber’s counsel 
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did not refer to these specific undisclosed opinions in his opening statement or 

closing argument. 

[¶38.] Setting Wagner’s undisclosed opinions in the context of the entire trial, 

we are unable to find sufficient prejudice to support the Appellants’ request for a 

new trial. Even if the circuit court abused its discretion in allowing this testimony 

under what we now conclude were outdated distinctions for treating medical 

witnesses set out in Veith and Wangsness, its decision to deny the motion for a new 

trial was not, itself, an abuse of discretion. Given our assessment of the prejudice 

resulting from Wagner’s undisclosed opinions, the court’s decision to deny the 

Appellants’ new trial motion was within the range of permissible choices. 

Jury Verdict 

[¶39.] Under SDCL 15-6-59(a)(5), a court may grant a motion for a new trial 

if it finds “[e]xcessive or inadequate damages appearing to have been given under 

the influence of passion or prejudice[.]” “A motion for a new trial based upon an 

excessive damages award ‘is addressed to the sound discretion of the trial court and 

a denial of the motion will not be reversed absent an abuse of that discretion[.]’” 

Maryott v. First Nat’l Bank of Eden, 2001 S.D. 43, ¶ 26, 624 N.W.2d 96, 105 

(quoting Berry v. Risdall, 1998 S.D. 18, ¶ 9, 576 N.W.2d 1, 4). 

[¶40.] We have previously stated that “a jury’s verdict should not be set aside 

‘except in extreme cases where it is the result of passion or prejudice[.]’” Roth v. 

Farner-Bocken Co., 2003 S.D. 80, ¶ 10, 667 N.W.2d 651, 659 (quoting Biegler v. Am. 

Family Mut. Ins. Co., 2001 S.D. 13, ¶ 32, 621 N.W.2d 592, 601). “A verdict should 

only be set aside if the jury’s conclusion was unreasonable and a clear illustration of 
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its failure to impartially apply ‘the reasoning faculty on the facts before [it].’” Id.

(quoting Biegler, 2001 S.D. 13, ¶ 32, 621 N.W.2d at 601). Additionally, we have held 

that: 

[w]hen considering whether a jury verdict is sustained by the 

evidence[,] ‘we are not to speculate or query how we would have 

viewed the evidence and testimony, or what verdict we would 

have rendered had we been the jury. The real and only question 

to be solved and answered is [whether] there [is] any legal 

evidence upon which the verdict can properly be based, and 

[whether] the conclusions embraced in and covered by [the 

verdict were] fairly reached . . . .’ 

Id. ¶ 25, 667 N.W.2d at 661 (quoting Biegler, 2001 S.D. 13, ¶ 32, 621 N.W.2d at 

602). “The test for determining if the jury verdict is the product of passion or 

prejudice is . . . ‘damages . . . so excessive as to strike [society], at first blush, as 

being, beyond all measure, unreasonable and outrageous . . . .’” Id. ¶ 26 (quoting 

Stormo v. Strong, 469 N.W.2d 816, 826 (S.D. 1991)). 

[¶41.] Here, the Appellants claim the jury was prejudiced by Weber’s treating 

medical providers’ “improperly admitted” testimony regarding the permanency of 

his injuries. However, this is simply a restated version of the expert testimony 

argument we addressed in our analysis above. 

[¶42.] The Appellants further contend that “gross disparity between the 

nature of [Weber’s] injury and the award for pain and suffering leads to the 

inescapable conclusion that the jury was moved by passion or prejudice.” Like the 

circuit court, we are not convinced that the verdict, alone, is self-evident proof of 

passion or prejudice. While the jury’s award for Weber’s pain and suffering was 

significantly higher than its award for the other claims, we find it is supported by 

the testimony of his treating medical providers and other witnesses at trial. His 
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medical providers universally agreed that his injuries are permanent, and he will 

experience flare-ups of pain regardless of his choice of work and hobbies for the rest 

of his life. Weber was 44 years old at the time of trial, and the court instructed the 

jury that he had an actuarially-based life expectancy of 37.5 additional years. His 

family provided significant testimony of Weber’s lifestyle changes, including 

irritability, lack of motivation, and fatigue that they attributed to dealing with pain. 

Our review of the evidence presented to the jury shows there was sufficient 

evidence to support its award for Weber’s pain and suffering and fails to support the 

claim that the jury acted with passion or prejudice. 

[¶43.] Indeed, the most conspicuous feature of this evidentiary record is that 

it is decidedly one-sided. Though the Appellants dispute the testimony from 

Weber’s medical providers regarding the extent and permanency of his injuries, 

they did not engage their own expert witnesses to provide an evidentiary basis for a 

contrary conclusion. They also suggest that the verdict is unsustainable because it 

is merely a “soft tissue injury” that Weber treated with over-the-counter pain 

relievers. However, the Appellants’ observations—offered as legal arguments—are 

unconnected to actual medical evidence supporting their argument that Weber’s 

soft-tissue injuries are not painful and permanent. 

[¶44.] Finally, we are not persuaded by the Appellants’ argument that the 

passion of the jury was aroused, at least in part, because the trial was conducted in 

Weber’s home county and Dr. Janssen’s hometown. The Appellants did not cite 

these circumstances to support their new trial motion before the circuit court, but 

even if the claims were preserved, we cannot accept the argument. We believe the 
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Appellants were in the best position to assess these conditions before proceeding to 

trial, rather than asking this Court to consider this argument after the verdict. 

Conclusion 

[¶45.] The circuit court did not abuse its discretion when it allowed Weber’s 

treating providers to testify about the permanency of his injuries, and its decision to 

allow Wagner’s undisclosed opinions about the impact of Weber’s injuries did not 

create prejudice sufficient to warrant reversal. Further, our review of the evidence 

presented to the jury supports its verdict, which we hold was not the result of 

passion or prejudice. Therefore, the circuit court did not abuse its discretion when 

it denied the Appellants’ motion for a new trial. We affirm. 

[¶46.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and 

SEVERSON, Retired Justice, concur.