This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






James W. Clifford, individually and as Trustee of the Heirs and

Next of Kin of Doris T. Clifford, deceased,





Geritom Med, Inc.,

defendant and third party plaintiff,



Michael Gmitro, M.D., et al.,

third party defendants,



Bruce J. Mack, M.D.,

third party defendant,



Monica Myklebust, M.D., et al.,

third party defendants,



Filed July 15, 2003

Reversed and remanded

Huspeni, Judge*



Hennepin County District Court

File No. WD 99-13457


Paul A. Strandness, Stephen Eckman, Eckman, Strandness & Egan, P.A., 319 Barry Avenue South, P.O. Box 597, Wayzata, MN 55391 (for respondent James W. Clifford)


Timothy J. Leer, Robert E. Kuderer, Matthew M. Johnson, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, MN 55439 (for appellant)


Susan R. Swaschka, Bradley J. Betlach, Halleland Lewis Nilan Sipkins & Johnson, P.A., 600 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondents Michael Gmitro, et al.)


Barbara Zurek, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondent Bruce J. Mack)


David Hutchinson, Carolin Jane Nearing, Geraghty, O’Loughlin & Kenney, P.A., 1400 EcoLab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents Monica Myklebust, et al.)


            Considered and decided by Kalitowski, Presiding Judge, Anderson, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a jury verdict finding that appellant was negligent and caused the death of respondent’s deceased, appellant argues that the trial court abused its discretion by ordering a new trial after a jury found that appellant was not negligent.  Appellant also contends that its valid claims for contribution against other health-care workers who treated respondent’s deceased were improperly dismissed, and that its posttrial motions after the second trial should have been granted.  Because we conclude that the trial court abused its discretion by granting a second trial, we reverse and remand for reinstatement of the first jury verdict.  Because we are directing reinstatement of the first jury verdict, we do not address appellant’s arguments that its contribution claims against additional respondents were improperly dismissed, nor do we address the question of whether the trial court erred in denying appellant’s posttrial motions following the second trial.


On June 17, 1999, Doris Clifford called her regular medical clinic, Park Nicollet, complaining of congestion.  Respondent Michael Gmitro, M.D., took her call and prescribed Liquibid, a decongestant.  Gmitro’s nurse, respondent Susan Duffy, called this prescription in to a pharmacy, appellant Geritom Med., Inc.  Dan Lee, a pharmacist at Geritom, took this call.  Whether Duffy misspoke or Lee misheard or some combination of the two occurred is a central question in this case.  Neither Lee nor Duffy remembers the conversation.  Lee filled a prescription for Lithobid, a drug containing the substance lithium.  Lee’s notes taken during the phone conversation show that he wrote down Lithobid, the drug that he supplied.  Duffy had no notes regarding the conversation.  Lee testified that his custom was to write down the name of the drug that he was told to provide and then repeat it to the caller to ensure that there was no misunderstanding.  Lee filled the prescription containing 40 pills of Lithobid with directions to take two pills, twice daily.  Over the course of the next eight days, Clifford took five pills from this prescription. 

            On June 23, 1999, Clifford called Park Nicollet with concerns of a possible drug reaction.  This call was not returned.  On June 25, 1999, Clifford was admitted to respondent North Memorial Medical Center after she briefly lost consciousness.  Upon arrival, Clifford appeared fine and showed no signs of any problems.  When North Memorial checked to see what drugs Clifford was currently taking, they discovered the Lithobid prescription.  North Memorial then gave her the normal adult dosage of Lithobid from their supply of pharmaceuticals.  North Memorial’s policy is to continue dispensing preexisting prescriptions when patients are admitted to the hospital.  On July 6, 1999, Clifford died of lithium toxicity.

            Respondent James W. Clifford, individually and as trustee of the heirs and next of kin of Doris T. Clifford, deceased (the estate), filed a wrongful-death claim solely against Geritom.  Geritom then filed third-party actions against Gmitro; Duffy; Park Nicollet; North Memorial; and Clifford’s physicians at North Memorial, respondent Bruce Mack, M.D., and respondent Monica Myklebust, M.D.  The trial court dismissed these third-party claims with prejudice for failure to state a claim under Minn. R. Civ. P. 12.02(e).  The basis of the dismissal was the trial court’s conclusion that there was no common liability between Geritom and any of the third parties.   

A first jury trial was held with Geritom and the estate as the only parties.  Geritom filed two pretrial motions.  The first was to place all the dismissed third-party defendants on the verdict form to allow the jury to allocate negligence under Minn. Stat. § 604.02 (2002).  The court granted this motion as to Duffy, Gmitro, and Park Nicollet, but denied the motion as to North Memorial, Mack, and Myklebust.  Geritom’s second pretrial motion was to include a jury instruction on superseding cause.  The court denied this motion, concluding that the original negligence initiated the subsequent actions.  Clifford made a motion to prevent Geritom from arguing that the dismissed third-party defendants were responsible for Doris Clifford’s death.  Critically important for its impact on subsequent events in this case, the court denied this motion.  In its denial, the court stated:

Well, it appears that — that [Geritom] has the right to defend itself and by bringing up — you know, attacking the direct cause elements.  However, we are not going to instruct on superseding cause and so whatever testimony that comes in that the hospital continued to dispense the prescription I think can be handled by cross examination.  * * *  I am not going to limit him going into — attacking the direct cause issue, so I — I guess I’m going to deny your motion but I’m going to listen carefully to the — the evidence as it comes in.


The jury returned a verdict after the first trial finding Geritom not negligent and Park Nicollet negligent, but also finding that Park Nicollet’s negligence did not cause Doris Clifford’s death.  The estate moved for judgment notwithstanding the verdict (JNOV) or for a new trial on liability only.  The court denied the motion for JNOV, but granted the motion for a new trial, stating that the jury’s verdict finding no one causally negligent was the result of jury confusion and was tainted by Geritom’s “improper” arguments.

            A second trial was held, again with Geritom and the estate the only parties.  Before closing arguments in the second trial, however, the district court concluded that joint and several liability could attach if the jury were to find both Geritom and Park Nicollet negligent.  Therefore, the court gave Geritom a choice:  put Park Nicollet on the special verdict form as an “empty-chair” defendant or “lose them.”  Geritom chose to include Park Nicollet on the verdict form.  The jury found Geritom 100% causally negligent.  Geritom brought several posttrial motions, seeking a new trial, JNOV, and entry of judgment on the first verdict, all of which were denied.


            Motions for a new trial should be reluctantly granted by a trial court.  Leuba v. Bailey, 251 Minn. 193, 207-08, 88 N.W.2d 73, 83 (1957).  The granting of a new trial rests largely within the discretion of the trial court, and a trial court’s decision will be reversed only for a clear abuse of discretion.  Gunhus, Grinnell v. Engelstad, 413 N.W.2d 148, 153 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). 

            In the memorandum attached to its grant of a second trial, the court concluded:

At trial, defense counsel alluded to the possibility that someone other than those individuals listed on the verdict form may have been the true cause of Mrs. Clifford’s death.  On the second day of trial, the Court admonished defense counsel against going any further into these potential superseding causes.  Nevertheless, based on the verdict, it appears as though the jury gave a great deal of weight to defense counsel’s improper statements. 


            * * * *


[T]he verdict form gave the jury two choices:  (1) Defendant Geritom Med, Inc.; or (2) Dr. Gmitro and/or Nurse Susan Duffy.  One of these parties caused the death of Doris T. Clifford.  Because the jury found that neither of these parties caused Mrs. Clifford’s death, their verdict must have been corrupted by some mistaken belief or theory.  Thus, Plaintiff’s motion for a new trial on the issue of liability must be granted. 


The trial court’s assumption that either Geritom or the Park Nicollet parties had to have caused Doris Clifford’s death was, we conclude, without foundation.  The fact that the verdict form gave the jury only two choices did not preclude the jury from considering other possibilities that might have been raised by properly admitted evidence. 

            The jury’s responsibility in the first trial was to determine whether Clifford had proven by a preponderance of the evidence that Geritom and/or Gmitro/Duffy negligently caused Doris Clifford’s death.  The jury resolved these questions.  A reasonable interpretation of the verdict indicates that the jury concluded that Clifford failed to show that Geritom did anything wrong (apparently crediting Lee’s testimony over Duffy’s).  In addition, the jury concluded that Gmitro and/or Duffy were negligent (perhaps by failing to return Doris Clifford’s call), but that this negligence did not cause Doris Clifford’s death.  Neither of these conclusions, individually or taken together, demonstrates that the jury was confused or acting under a mistaken theory.

            The first jury, given the properly admitted evidence before it, could have concluded that a party or parties not listed on the special verdict form — whether negligent or not — were involved in the death of Doris Clifford.  The trial court, however, was clearly troubled by this possibility.  The court had indicated several times at trial that the issue of superseding cause was not to be introduced.  Nothing in the record, however, establishes that Geritom acted improperly in submitting evidence supporting its defense that actions of others were involved in Doris Clifford’s death.  To the contrary, the estate forthrightly and accurately cites the trial court’s language:

[W]hatever testimony that comes in that the hospital continued to dispense the prescription I think can be handled by cross examination.  * * *  I am not going to limit him going into — attacking the direct cause issue.


            Consistent with this ruling, Geritom referred in its opening statement to other possibilities regarding the cause of death.  This reference was proper.  Geritom stated in its final argument that “things are not always what they appear to be.”  This also was proper under the ruling.  Evidence was elicited during the first trial regarding how many of the Lithobid pills Doris Clifford had taken before being hospitalized.  This evidence was properly admitted.  While the trial court denied Geritom’s request for a jury instruction on superseding cause, it in no way prevented Geritom from arguing against direct causation, nor did it prohibit Geritom from eliciting evidence of Doris Clifford’s treatment after being admitted to North Memorial.  To the contrary, the court explicitly ruled that Geritom could present evidence attacking direct cause. 

            On appellate review, we take the record as we find it.  The record before us for review does not reveal any improper admission of evidence or argument by Geritom during the first jury trial in this case.  Just as we recognize the right of the estate to bring an action and choose to proceed solely against Geritom, and to decide how to present its evidence and arguments at trial, so must we recognize the right of Geritom to present evidence and arguments in support of its theory of defense.  Of course, both parties were entitled to move the court for guidance on what evidence and what arguments would be permitted.  That was done here, and the court ruled.  Its denial of the estate’s motion to limit Geritom’s attempt to attack direct cause was, we believe, a recognition that while the estate was free to bring and proceed to prove claims as it chose to do, the estate did not have the right to impermissibly limit, restrict, and diminish Geritom’s ability to defend itself.  Despite the recognition in its pretrial ruling of the permissible scope of presenting a defense, however, the trial court granted a second trial.

            We recognize the broad discretion vested in trial courts regarding the granting of new trials.  We conclude, however, that this is one of the rare cases where an abuse of discretion has been shown.  There was no basis upon which a new trial should have been granted.  We note also that in granting the estate’s motion for a new trial, the court denied the estate’s motion for JNOV.  The court correctly stated the standard for JNOV to be if reasonable minds could reach but one conclusion against the verdict.  See Seidl v. Trollhaugen, Inc., 232 N.W.2d 236, 239 (Minn. 1975).  The court concluded, “[Estate] has failed to establish that there is no competent evidence reasonably tending to support a verdict in [Geritom’s] favor.”  Thus, while the standards for JNOV and grant of a new trial are admittedly different, the trial court did appear to conclude, in essence, that Geritom presented competent evidence that reasonably tended to support a finding that it was not responsible for Doris Clifford’s death. 

            The first trial involved, essentially, a credibility issue between Duffy and Lee.  That issue was properly for the jury to decide, and the jury made its decision.  Overriding of that decision based on an impropriety that the record reveals did not occur and on a confusion that has not been demonstrated was an abuse of discretion.

            Because we conclude that the first jury’s verdict must be reinstated, we do not address the question of whether Geritom’s third-party complaints were properly dismissed.  Further, Geritom’s posttrial motions after the second trial are, we conclude, rendered moot by our decision here. 

            Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.