This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Barbara J. Gloyd,
Joan Tabatt, et al.,
Filed February 18, 2003
Toussaint, Chief Judge
Stearns County District Court
File No. CX004002
Roger J. Nierengarten, Nierengarten Law Offices, Roosevelt Office Park, 600 25th Avenue South, Suite 106, St. Cloud, MN 56301 (for appellant)
John H. Scherer, Rajkowski Hansmeier, Ltd., 11 7th Avenue North, P.O. Box 1433, St,. Cloud, MN 56302 (for respondents)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Forsberg, Judge.*
TOUSSAINT, Chief Judge
Appellant seeks a new trial in this personal injury action, contending that after an inadmissible statement was disclosed to the jury, a curative instruction was insufficient to remedy the mistake. Because the trial court did not abuse its discretion in denying a new trial, we affirm.
This appeal arises out of the damages trial for injuries sustained by appellant Barbara Gloyd in an automobile accident. At trial, a portion of the videotaped deposition of an expert witness was mistakenly played in the presence of the jury.
After the videotaped testimony had concluded, the jury was dismissed. Upon the jury’s return, the trial court instructed the jury to disregard the disputed testimony because the medical records to which the expert witness referred were erroneous, the records were not those of Gloyd, and that portion of the witness’s testimony was played by mistake.
The jury returned a special verdict that precluded Gloyd from reaching the threshold to recover damages. Based on the playing of the videotaped testimony, Gloyd moved for a new trial, alleging both misconduct of the prevailing party and accident or surprise that could not have been prevented by ordinary prudence. The trial court denied Gloyd’s motion, concluding that the error did not rise to the level of a substantial injustice and that the curative instruction sufficiently remedied the error. This appeal follows.
We will not disturb the trial court’s denial of a new trial motion absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). A trial court should grant motions for a new trial “cautiously and sparingly and only in the furtherance of substantial justice.” Leuba v. Bailey, 251 Minn. 193, 207-08, 88 N.W.2d 73, 83 (1957). An appellate court must affirm a denial of a motion for a new trial “unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992). “The court should not grant a new trial unless the conflict between the verdict and the preponderance of the evidence suggests that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice.” Green v. City of Coon Rapids, 485 N.W.2d 712, 716 (Minn. App. 1992) (internal quotation omitted), review denied (Minn. June 30, 1992).
It is uncontested that allowing the jury to hear the disputed portion of the videotape was a mistake. Regardless of fault, however, the purpose of granting a new trial for attorney misconduct under Minn. R. Civ. P. 59.01(b) “is not to punish professional lapses of counsel, but to obviate prejudice.” Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974); accord Marlowe v. Gunderson, 260 Minn. 115, 121, 109 N.W.2d 323, 326-27 (1961) (holding that granting a new trial is not a disciplinary measure, but is to prevent a miscarriage of justice). A trial court judge is in the best position to determine whether the jury was prejudiced by attorney misconduct. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).
Here, the trial court did not abuse its discretion by finding that the jury did not act “under some mistake or from some improper motive, bias, feeling, or caprice.” See Green, 485 N.W.2d at 716. The record is silent as to whether the videotaped testimony was played intentionally, and the trial court found that the jury was not prejudiced by the testimony. The trial court, which is in the best position to make that determination, did not err in finding that the statement did not prejudice the jury.
A trial court has great discretion in granting a new trial on the basis of surprise under Minn. R. Civ. P. 59.01(c). Sward v. Nash, 230 Minn. 100, 109, 40 N.W.2d 828, 833 (1950). Such a motion should be granted only if there is a strong possibility that a new trial would have a different result. Id. A trial court’s decision on such matters will not be disturbed on appeal without a showing of a clear abuse of discretion. Schiro v. Raymond, 237 Minn. 271, 277, 54 N.W.2d 329, 333 (1952).
An accident or surprise is an act that “could not have been prevented by ordinary prudence.” Minn. R. Civ. P. 59.01(c). Further, “[k]nowledge of what testimony will or will not be precludes surprise.” Swanson v. Williams, 303 Minn. 433, 435, 228 N.W.2d 860, 862 (1975) (citation omitted). Here, Gloyd knew the content of the videotaped testimony before it was presented to the jury, so its viewing—though unintended—cannot properly be considered surprise. Rather, this situation is more like a “mistake” akin to a witness giving unanticipated, inadmissible testimony, and the court instructing the jury to disregard the inadmissible portion of the testimony.
The trial court here provided such an instruction, determined that it “was sufficient to remedy the mistake,” and ruled that granting a new trial would not be “in the furtherance of substantial justice.” See Leuba v. Bailey, 251 Minn. 193, 207-08, 88 N.W.2d 73, 83 (1957). The trial court’s decision is supported by the record. The trial court acted within its discretion when it ruled that this instruction sufficiently remedied the mistake and that there is not a strong possibility that a new trial would have a different result.
Because the mistake was promptly and sufficiently remedied through the court’s instruction, the trial court did not abuse its discretion in denying a motion for a new trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.