Update (August 27, 2018): Plaintiff Mark Kedrowski’s personal injury lawsuit arising out of a terrible small plane accident seemed dead two years ago (see below) but it has been given another chance. The Minnesota Supreme Court granted Plaintiff’s petition for further review earlier this month. (See the petition: here, the response to the petition: here, the partial grant of the petition: here).
To us, the basic issue on appeal is this:
Can a judge, having decided that the plaintiff is entitled to a trial by jury, decide, after the jury’s verdict in the plaintiff’s favor, to strip the plaintiff of the verdict in his favor based on the trial court’s further analysis in response to a post-trial motion?
To frame the issue that way is to predetermine the outcome. Of course judges can do this. They do it all the time. This is effectively the same as winning a jury verdict but having the verdict thrown out on appeal due to reversal of a legal issue, based on trial misconduct, or based on a trial court error.
But the issue in Mr. Kedrowski’s appeal can be articulated in many other ways, of course, making the issues seem far more difficult. Plaintiff’s lawyers articulate one of their issues like this, for example:
When does a trial court cross the line between gatekeeper and fact finder in evaluating foundation for an expert opinion, where the qualifications and methodology of the expert are not challenged, and the objection is to the expert’s choice of one test out of many?
The distinction between “gatekeeper” and “fact finder,” seen from one angle, seems obvious and, from another, ambiguous.
We’ll be very interested in how the Minnesota Supreme Court decides this case (and we’ll hold off on predicting).