concurrence">RANDALL, Judge

(concurring specially)-

I concur in the majority’s conclusion that posttrial affidavits contradicting unre-canted testimony of an expert were not a basis, on these facts, for a new trial. But I would go further and state that “Lamson testimony” has no place in a civil trial where there is simply “a battle of experts.” I find no Lamson issue here to even have to consider.

As the majority indicates, Larrison v. United States, 24 F.2d 82 (7th Cir.1928) is an old federal criminal case discussing the standard to grant a defendant a new trial when you have recanted testimony. As the majority points out, of the 22 Minnesota cases citing Larrison, every single one was criminal except one civil case, and that civil case involved recanted testimony.

At oral argument, appellant’s counsel had to concede that he did not know of one case in this country where, in a civil case not involving posttrial recanted testimony but merely experts with opposing points of view at trial, Larrisonwas found to be controlling law for a civil case. In the thousands and thousands of civil cases in this state and in this country yearly, involving claims of medical malpractice, products liability, accident reconstruction, etc., you have experts with opposing views routinely. Sometimes the experts are so opposed “in their expert opinion” that a common-sense lay juror is going to say to themselves, “Boy, somebody has to be lying because they both can’t be right!” There has never been a basis for equating opposing experts with opposing opinions as *197the legal equivalent of perjured and/or posttrial recanted testimony under oath. To even think about doing so would throw virtually every single civil case in this country, where experts are used, state and federal, into a continual series of posttrial Larrisonmotions. You can always find after a trial another expert to sign an affidavit that purportedly contradicts something that another expert said at trial.

Put simply, the resolution of conflicting expert opinions at trial is for the jury. That is the way it has always been. Romanik v. Toro Co., 277 N.W.2d 515, 518 (Minn.1979) (holding that conflicts in expert testimony are to be resolved by the jury); State v. Ostlund, 416 N.W.2d 755, 760-61 (Minn.App.1987) (stating that where doctor opinions conflict, the trier of fact is to determine the credibility of the witness and the weight to be given their testimony).

I would find, as a matter of law, that there never was a Larrisonissue in this case because it was a civil case and did not have any posttrial recanted testimony.

Citation profile

Relationships

How this case has been treated — in progress