BISMARCK, N.D. (Legal Newsline) – A mother and her daughter who was kicked in the head by a horse won’t collect the millions of dollars they sought from their cousins.
The North Dakota Supreme Court on April 16 affirmed a five-figure jury verdict, technically in favor of Melissa Oster and daughter N.B. But it’s figuratively a win for Josh Terwilliger and Samantha Seewalker, whose lawyers successfully argued against requested damages that included up to $1,260,316 in future economic damages and up to $5,589,704 in future pain and suffering damages.
After trial in December 2019, the Burleigh County jury awarded only $16,500 after choosing lower damages estimates in the range of what the defendants’ experts argued while finding Oster 45% at fault for the accident.
Oster and the defendants disagreed on the circumstances leading to the incident. Oster and N.B. were staying at a residence owned by Terwilliger and Seewalker, who used to be married to each other, in 2015.
While playing with another child outside, N.B. was kicked by the horse in the head. Two experts testified she would have permanent effects from the injury, but a pediatric neurologist called by the defendants said she would not.
In asking for a new trial, Oster and N.B. made four arguments, including that the jury was prejudiced against them.
Plaintiffs lawyers pointed at an exchange about their ethnic background, which they testified was European American. Defense lawyers asked if that meant Native American and were told no.
When discussing future economic damages, defense lawyers also asked whether it was reasonable to think N.B. would have grown up to make much more than the $32,000-a-year her mother has so far topped out at.
“Although these questions were ill-conceived and inappropriate, the verdict conformed to the evidence, and the jury followed the instructions the district court gave it,” Justice Gerald VandeWalle wrote.
“Defense counsel asking inappropriate questions is not enough to show the jury acted under the influence of passion or prejudice.”
Another gripe from the plaintiffs dealt with a question from the jury that asked how their verdict would be divvied. Oster was planning to put N.B.’s damages in a trust until she was 18 years old, but the judge would not let the jury know that.
Instead, the jury was told to follow the evidence and reach a decision regardless of where the money went.
“Although the district court had permissive authority to provide an answer… no law required the court to give an instruction on the trust issue. The jury did not need an instruction on the issue of a trust in order to reach a verdict. As a result, the court did not fail to conform to the law or fail to follow a requirement of the law,” VandeWalle wrote.