This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Roxanne Benning, as Trustee for the

heirs and next of kin of Nicole Lynn Benning,





John Dolan Moore,




Filed September 6, 2005


Halbrooks, Judge



Hennepin County District Court

File No. WD 01-19015



John P. Sheehy, Michael C. Snyder, Pamela J. Spaulding, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404; and


Trevor R. Walsten, Timothy A. O’Brien, Walsten & Te Slaa, P.A., 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)


Lee La Bore, La Bore, Giuliani, Cosgriff, & Viltoft, 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN 55343 (for respondent)




            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            In this wrongful-death action arising from an automobile collision, appellant challenges the district court’s denial of her motion for a new trial on a number of grounds, arguing that the district court erred by denying her motion because (1) the jury awarded insufficient damages, (2) the district court erred in several of its instructions to the jury, (3) the district court permitted respondent to testify about the facts of the underlying car accident when liability had already been admitted, (4) respondent’s counsel made prejudicial arguments and improper remarks to the jury, and (5) the district court excluded certain medical expenses.  Because the district court did not abuse its discretion by denying appellant’s motion for a new trial, we affirm. 


            On the evening of December 23, 1999, respondent John Moore lost control of his motor vehicle, swerved into oncoming traffic on I-94, and collided with a vehicle driven by Nicole Lynn Benning, who died soon after the accident.  Some days later, respondent apologized to the Benning family by letter.  Nicole is survived by her parents, grandparents, siblings, and other relatives. 

            Respondent initially denied liability, but in August 2003, admitted negligently causing Nicole’s death.  In response, appellant Roxanne Benning, Nicole’s mother, moved the district court for summary judgment on negligence and causation.  The district court granted the motion, and the wrongful-death case proceeded to trial on the issue of damages alone.  Upon granting appellant’s summary-judgment motion, the district court clarified that respondent “will be allowed to say that he admits responsibility, and that he takes responsibility” for Nicole’s death. 

            Nicole Benning grew up on a dairy farm in Browerville, Minnesota.  She graduated from the local high school in 1996, where she was homecoming queen and active in band, choir, and cheerleading.  After high school, Nicole attended a technical college in the St. Cloud area and received a diploma in word processing.  In 1998, Nicole moved to the Twin Cities area, where she worked in a variety of secretarial positions. 

At trial, a number of family members and friends testified about their close relationships with Nicole and the impact that she had on their lives.  Nicole’s sister, Beverly Fletcher, explained that she and Nicole “were inseparabl[e]; we did everything together.”  She also explained that Nicole was “extremely bubbly, energetic, very outgoing, could brighten up the room.  It was amazing, everybody loved her.”  When their older sister passed away, Beverly testified that Nicole was “[her] rock” and that “without Nicole, [she] couldn’t have made it through it.”

Nicole’s parents testified about their love and affection for their daughter.  Nicole’s father, Roger Benning, testified that upon Nicole’s death, “there [was] so much cheerfulness [that the family] lost.”  He also explained that with Nicole’s death, “i[t] feels like a piece of myself is gone.”  Roxanne Benning testified that Nicole was “happy, vibrant, always joking[, and] very loving.”  Nicole also helped her mother obtain her GED.  During the last year of Nicole’s life, Nicole and her mother spoke on the telephone almost every day and Nicole visited 2-3 times per month.  Roxanne Benning testified about the pain and loss she felt over Nicole’s death, explaining, “I lost one of my children, and one of my best friends, that I can never be without. . . .  I didn’t know if it was worth living again, because it’s too hard.”

On cross-examination, Nicole’s parents testified that Nicole “wanted to be self-sufficient” and agreed that she was “on her own financially.”  Roxanne Benning explained that, from time to time, Nicole “would come home and maybe get some meat from the farm, groceries, or something.”  Roxanne Benning also admitted that there were some things she did not know about her daughter’s life.  For example, she did not learn about Nicole’s new boyfriend, Jeff Engstrom, until they had been dating for some time.  Roxanne Benning explained that Jeff and Nicole had been planning to get married and that he took care of Nicole’s financial obligations after her death.  Roxanne Benning also conceded that Nicole had attended mental-health counseling sessions for a “traumatic incident,” but that she was unaware about the counseling until approximately one year later. 

After the close of testimony, the district court read a number of instructions to the jury.  Relating to damages, the district court instructed the jury:

The term damages means, a sum of money that will fairly and adequately compensate a person who has been harmed. 


Damages may include past and future harm.


It must be proved that future harm is reasonably certain to occur. 


A party asking for damages must prove the nature, extent, duration, and consequences of his or her harm.  That is, the harm that is being compensated.


You must not decide damages based on speculation or guess.


When you consider damages for claimants, determine an amount of money that will fairly and adequately compensate claimants for the losses they suffered as a result of this death.


You should consider what Nicole Lynn Benning would have provided to the claimants if she had lived.  You should consider her contributions in the past, her life expectancy at the time of her death, her health, age, habits, talents, and success, her occupation, her past earnings; her likely future earning capacity, and the prospects of having bettered herself had she lived; her personal living expenses; . . . all reasonable expenses incurred for funeral and burial; and all reasonable expenses for support due to her last sickness, including necessary medical and hospital expenses incurred after and as a result of the injuries causing death; the counsel, guidance, aid, advice, comfort, assistance, and protection she would have given if she had lived.


. . . .


Do not include an amount for punishing the defendant; for grief, or emotional distress of the surviving next of kin, or for the pain and suffering of Nicole Benning before her death. 


. . . .


You must determine the total amount of money that will fairly and adequately compensate the claimants for the damages suffered as a result of this death. 


After closing arguments, the jury deliberated and awarded $10,834.75 for funeral expenses, but zero damages for appellant’s loss of counsel, guidance, aid, advice, comfort, assistance, and protection. 

Appellant moved for a new trial, which the district court denied.  The district court did not issue findings or attach a memorandum to its order denying a new trial, but stated:

[The] evidence is . . . that this young woman was at a stage in her life where she had moved out of the house, was not a daily companion to anyone.  Probably the strongest theoretical loss would have been in pecuniary loss, loss of companionship, etcetera would have been to the niece; and we find out that as to the niece, Nicole was a paid babysitter.  And so that substantially, I think, undercuts whatever might be made of the loss to that little girl. . . .


            But bottom line, we have a young person at that stage of her life when she probably is offering the least companionship to her parents.  And then what we had in this case that was really, absolutely extraordinary was overwhelming evidence of the amount, total amount of companionship and support and human contact and all those things that go [with] companionship, the extraordinary amount that this family has.  And so there is this paradoxical situation where having lost this daughter and another in a totally different circumstance, this family is still rich in daughters and rich in grandchildren and rich in daughters’ friends, and all of those people who we see visiting the Benning home because it was evidently a wonderful place to be.  . . . [W]e have parents grieving as parents will and family grieving as family will.  The grief is not compensable.  The damage, that is the companionship, that exists compared with—well, at any rate, it’s hard to articulate these things. 


            . . . .


            So I do think that the jury could reasonably come to the view on this evidence that however much grief this family suffered in terms of pecuniary loss . . . in terms of companionship, support, etcetera, Nicole was at a stage where . . . she was not making a large contribution of that kind and arguably any contribution of that kind. 


(Emphasis added.)  Based on the district court’s observation that the jury could have reasonably awarded zero damages and that any errors made during trial did not result in an unfair trial, the court denied appellant’s motion for a new trial.  This appeal follows. 


            Appellant argues, on a number of grounds, that the district court abused its discretion by denying her motion for a new trial.  A new trial may be granted for a variety of reasons, including:

(a)       Irregularity in the proceedings of the [district] court . . . or any order or abuse of discretion, whereby the moving party was deprived of a fair trial;


                        (b)       Misconduct of the jury or prevailing party;


                                    . . . .


(e)       Excessive or insufficient damages, appearing to have been given under the influence of passion or prejudice;


            . . . .


(f)        Errors of law occurring at the trial, and objected to at the time or, if no objection need have been made pursuant to Rules 46 and 51, plainly assigned in the notice of motion [for a new trial].


Minn. R. Civ. P. 59.01.  A district court has the discretion to grant a new trial, and we will not disturb its decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  Errors during a trial are not grounds for granting a new trial unless the errors affect the “substantial rights of the parties.”  Minn. R. Civ. P. 61.  On appeal from a denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict and will affirm only if the verdict is manifestly and palpably contrary to the evidence.  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

I.          Jury Verdict

            Appellant first argues that the district court erred by denying her motion for a new trial when respondent admitted liability and the jury awarded no damages beyond the special damages.  A motion for a new trial based on insufficient damages may be granted when the evidence demonstrates that the damage award could have resulted only from passion or prejudice.  Minn. R. Civ. P. 59.01(e); Gale v. Howard, 413 N.W.2d 234, 237 (Minn. App. 1987).  To determine whether an award of damages is “within the bounds of reason,” the district court is to compare the verdict to the facts of the case.  Kalpin v. Helgeson, 254 N.W.2d 378, 379 (Minn. 1977).  In addition, an answer to a special-verdict question will be set aside only when it is perverse and contrary to the evidence or when the evidence is so clear as to leave no room for differences among reasonable people.  Jacobs v. Rosemount Dodge-Winnebago South, 310 N.W.2d 71, 76 (Minn. 1981).  No damage award can be sustained unless it is reasonable in light of the circumstances of a particular case.  Ahrenholz v. Hennepin County, 295 N.W.2d 645, 649 (Minn. 1980).  The jury’s verdict should not be changed “unless there is no evidence which reasonably supports the verdict or it is manifestly contrary to the evidence.”  Smith v. Carriere, 316 N.W.2d 574, 575 (Minn. 1982).  “If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.”  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (emphasis added), review denied (Minn. Feb. 12, 1993).   

            Appellant maintains that the jury’s award was insufficient and contrary to the overwhelming evidence of the Benning family’s loss of advice, comfort, and companionship resulting from Nicole’s death.  Appellant cites a number of cases in which Minnesota courts have granted new trials when negligence and causation had been established, but the jury awarded zero damages.  For example, in Ferguson v. Orr, a decedent’s heirs brought a wrongful-death and dramshop case after decedent was killed in an automobile accident.  427 N.W.2d 732, 733 (Minn. App. 1988), review denied (Minn. Oct. 26, 1988).  Decedent’s husband was driving the automobile at the time of the accident.  Id.  The jury assigned no liability to the dramshop defendant, found decedent 35 percent and her husband 65 percent negligent in the wrongful-death case, but nevertheless awarded zero damages to decedent’s heirs.  Id.  In the absence of evidence of estrangement, this court reversed and remanded for trial on the issue of damages alone, explaining:

The record shows that [decedent] regularly contributed money, advice, comfort and companionship to her mother, who lived with her; to her daughters, whom she visited frequently and planned to live near; and to her grandchildren, one of whom was staying with her when she died.  These family members certainly had the reasonable expectation of her continued kindness and emotional, as well as financial, support. 735.  In Ferguson, because both liability and causation had been established, this court “inferred that the jury’s verdict was predicated upon passion and prejudice” and cautioned that, “it is a rare life that is monetarily worthless.”  Id.  Remanding for a new trial, in that case, we noted that the focus for analysis of pecuniary damages needed to be on decedent’s “generous nature and the bonds that formed with her family as a result.” 736.    

In the wrongful-death context, the supreme court has recognized that “it is difficult to visualize a case where a human being does not have some monetary value in addition to special damages incurred by next of kin.”  Pehrson v. Kistner, 301 Minn. 299, 303, 222 N.W.2d 334, 337 (1974).  Focusing on that generalized language, appellant urges that any zero-damages verdict, where liability has been admitted, is unreasonable as a matter of law and illustrates passion and prejudice.  We disagree.

            Like the district court, we recognize that Nicole Benning’s life had value beyond measure.  But on the narrow legal issue of whether the district court abused its discretion by denying a new trial here, our focus is limited to whether “there is [] evidence which reasonably supports the verdict or [if the verdict] is manifestly contrary to the evidence.”  Smith, 316 N.W.2d at 575.  Given our deferential standard of review and our thorough review of the record, we cannot say that this verdict was a result of passion or prejudice.  As the district court highlighted, there is evidence in the record to show that in terms of companionship and support, “Nicole was at a stage [in life] where . . . she was not making a large contribution of that kind [to her family] and arguably any contribution of that kind.”  While it is true that Nicole was an important part of her family’s life, the record also reflects that she had begun to distance herself from her family and that she was looking forward to starting her own family with her boyfriend.  Moreover, the facts here are patently different from cases like Ferguson, where a decedent lived with and made financial contributions to family members.  427 N.W.2d at 735.  This particular jury, in this particular trial, decided to award zero damages beyond special damages.  Based on the record before this court, we decline to disturb the jury’s verdict because we conclude that the verdict was decidedly not “given under the influence of passion or prejudice.”  Minn. R. Civ. P. 59.01(e). 

II.        Jury Instructions

            Appellant argues that the district court abused its discretion in several of its instructions and comments to the jury throughout the course of the trial.  Denying a motion for a new trial on the grounds of erroneous jury instructions rests within the district court’s sound discretion and will not be reversed absent a clear abuse of that discretion.  Paulson v. Lapa, Inc., 450 N.W.2d 374, 378 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).  If an erroneous jury instruction destroys the substantial correctness of the charge, causes a miscarriage of justice, or results in substantial prejudice, a new trial is warranted.  Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 915-16 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  An error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (quotation omitted). 

A.        Companionship

            Recognizing that the model jury instruction, 4A Minnesota Practice CIVJIG 91.75 (1999), does not include the term “companionship,” appellant maintains that the district court erred by failing to include the term in its instruction to the jury.  At pretrial argument, respondent included the term “companionship” in its proposed jury instructions and added that “there is not dispute on that one particular issue.”  The district court also agreed that “there could [not] be much argument about whether companionship is an element of these [wrongful-death] cases.”  Nevertheless, the district court declined to include the term in the formal jury instructions, but specifically did not “preclud[e appellant] from referring to companionship” in her arguments.  In determining what Nicole “would have provided to [appellant] if she had lived,” the jury was instructed to consider “the counsel, guidance, aid, advice, comfort, assistance, and protection she would have given.”

            While the parties correctly note that the term “companionship” is not found in CIVJIG 91.75, the model instruction’s listing of “authorities” notes that “[a]n award of damages may include compensation for loss of comfort, assistance, and companionship.”  4A Minnesota Practice CIVJIG 91.75 Authorities, at 338 (emphasis added) (citing Martz v. Revier, 284 Minn. 166, 170 N.W.2d 83 (1969)).  In addition, the supreme court has explained that “[d]amages under the wrongful death statute are measured by pecuniary loss resulting from the death and include advice, counsel, and loss of companionship.”  Jones v. Fisher, 309 N.W.2d 726, 730 (Minn. 1981) (emphasis added) (quotation omitted). 

            But because the model jury instructions do not include the term “companionship,” the district court’s exclusion of the term cannot be said to constitute reversible error, and it was therefore within the district court’s discretion to exclude the term.  Cf. Willmar Poultry Co. v. Carus Chem. Co., 378 N.W.2d 830, 836 (Minn. App. 1985) (stating that a new trial will not be granted if jury instruction fully, fairly, and correctly states the law), review denied (Minn. Feb. 14 & Feb. 19, 1986).  Further, appellant’s counsel used the term repeatedly in his closing argument without objection from respondent’s counsel.

B.        Value of Decedent’s Life

In its preliminary instructions to the jury, the district court explained that “[t]he case is not about the value of Nicole Benning’s life.  Rather the issue in the case is what damages were sustained by her family as a result of her death.”  The court continued, “When you consider damages, determine an amount of money that will fairly and adequately compensate Nicole Benning’s family for the losses they suffered as a result of this death.”  Appellant argues that this is a “confusing and incorrect statement of law” because it allowed respondent’s counsel to argue, and the jury to conclude, that only economic contributions by Nicole Benning should be considered as damages. 

As the supreme court has stated, “[t]he proper measure of damages for wrongful death . . . is the pecuniary loss resulting from the death, not the value of a human life in the abstract.”  Ahrenholz, 295 N.W.2d at 648 (emphasis added).  Even though respondent’s counsel might have seized on the district court’s instruction to argue that no dollar amount could be placed on Nicole’s life, the instruction itself does not constitute reversible error because it accurately reflects the fact that the jury was not to put a specific dollar amount on the value of Nicole’s life. 

C.        Accepting Responsibility for Death

Appellant also argues that the district court erred by including the phrase “[respondent] accepted responsibility” in its jury instructions, rather than specifically instructing the jury that respondent had admitted liability.  By denying appellant’s motion to strike the “accepted responsibility” language and substitute “some other language consistent with the causation instructions that are normally given in a civil case,” the district court ruled that the “accepted responsibility” terminology was “accurate.”  The district court explained its rationale as follows:

I will say that the [c]ourt is concerned to try to strike a fair balance between the two parties here in terms of [their] virtue.


And I think that the opening view of a person who knows nothing about the situation, would be that the person who caused the collision was culpable in a criminal way really.


Now, I’m not saying that they would specifically believe he was charged with vehicular manslaughter.  But they wouldn’t particularly believe that he wasn’t either.  And he wasn’t.


And, yes, he was negligent, and he has said so.


But he is not anymore lacking in virtue than either Nicole or her [heirs].


And I don’t think that the sentence is a big deal.  I think sometimes when we’re looking at it, as lawyers in these things, we unduly emphasize them.  I think it will go by very quickly to the jury. 


But I do think . . . that . . . it does tend to mitigate a view they might have about culpability, because he is liable, but in my view, not culpable, which is why, despite this appalling result, he wasn’t criminally charged. 


At trial, it appears that the jury was never explicitly informed that respondent had admitted negligence and causation prior to trial.  Appellant argues that without this contextual information, the trial would make “absolutely no sense to the jury.”  Appellant claims that respondent’s counsel took full advantage of the “accepted responsibility” instruction in his closing argument to the jury.  For example, even though negligence and causation had been established, respondent’s counsel stated that “[respondent] could have said the weather was to blame, and maybe it was.”  But if respondent admitted to or accepted responsibility for causing the accident, then for his attorney to imply that the weather mighthave caused the accident was improper.

Nevertheless, the jury was informed, on a number of occasions, that its only task was to apportion damages.  For example, in its preliminary instructions, the district court told the jury that it was charged with deciding damages.  At the close of testimony, and explaining the special-verdict form, the jury was specifically instructed to determine “what amount of money will fairly and adequately compensate [appellant] for the damages reasonably certain to occur in the future as a result of Nicole Benning’s death, for loss of counsel, guidance, aid, advice, comfort, assistance and protection.”  The district court also explained the meaning of the term “damages” because the jury was to “determine damages for the claimants.”  So while the term “accepted responsibility” might not have made clear to the jury that respondent had admitted liability, it was made reasonably clear that the only issue at trial related to the damages suffered by appellant, and therefore, the district court’s instruction did not constitute reversible error.

D.        Damages from “zero to infinity”

Appellant contends that the district court erred by implying to the jury that it could award zero damages.  The district court explained to the jury that it was their “task to decide what number, from zero to infinity, should be filled in . . . for loss of counsel, guidance, aid, advice, comfort, assistance, and protection.”  The language “from zero to infinity” merely seems to state the obvious: it represents the absolute theoretical extremes of a jury verdict.  For its part, the district court explained why it used the terminology:

I have used that [instruction] . . . in every single civil case I have ever tried where the jury was going to fill in a number, whether it was about damages or whether it was about medical bills, or whatever it was about. . . . [A]n exception was my very first civil trial in which I didn’t say that, and the jury came back with a question, can we fill in zero? 


            I think it’s quite problematic[] for a [c]ourt to sit in a black robe and tell a jury, however carefully the answer may be phrased, that they could go ahead and put in zero.  So that’s why I [give the instruction]. 


And while the terminology may be suggestive, it alone cannot be the basis for a new trial.  Nevertheless, we caution the district court against future use of the phrase because any mention of a dollar amount, even zero, could have a potential impact on the jury’s deliberations.  Here, we determine that it did not. 

III.       Respondent’s Testimony

            While acknowledging that she failed to object at trial, appellant argues that the district court committed fundamental error affecting her substantial rights when it permitted respondent to testify about the facts of the car accident and his subsequent apology to Nicole’s family. 

Respondent counters that the same testimony regarding his apology to the Benning family had previously been elicited from other witnesses, including Nicole’s mother and Nicole’s sister, Beverly Fletcher.  For example, Roxanne Benning acknowledged that she remembered respondent “apologizing,” “giving condolences to the entire family,” and “taking responsibility” for the accident.  Because respondent’s remorse for the accident had already been elicited on cross-examination and because appellant did not specifically object to respondent’s testimony, the testimony cannot be said to have constituted plain error or affected appellant’s substantial rights.

            Respondent also testified to the facts of the car accident itself.  When asked about the evening in question, respondent explained, “[W]e hit a patch of ice, and I spun through the center median.  I hit my brakes, and I cranked on the wheel, but it didn’t do any good.  I swung through the center median, and into oncoming traffic.”  Appellant’s counsel did not object to this testimony.  Notably, respondent’s testimony was brief and involved less than four pages of the transcript, as compared to nearly 300 pages of testimony by appellant’s witnesses.  The district court determined that respondent’s testimony provided some context to the circumstances surrounding appellant’s claim, and, even if error, it cannot be said to have been an error so fundamental as to have prejudiced the outcome of the trial. 

IV.       Attorney Misconduct

            Appellant argues that respondent’s trial counsel acted improperly by making a number of prejudicial arguments and improper comments throughout the course of the trial.  Whether to “grant a new trial because of attorney misconduct is not governed by fixed rules, but instead rests wholly within the discretion of the [district] court.”  Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).  In this context, the primary consideration in determining whether to grant a new trial is prejudice.  Id. 

When denying appellant’s motion for a new trial, the district court observed:

Counsel tried the case in a very calm and professional manner.  I saw that from both sides. . . .  I want to emphasize that in the [c]ourt’s view, there was no appeal to the jury’s passions by anyone, and nobody demonstrated or made arguments that in the [c]ourt’s view were prejudicial to the rights of the other side.  So I do want to say that I think that the calm in which the case was tried, given everything, is important to emphasize here.


(Emphasis added.)


            A.        Invoking Religious Beliefs

            Specifically, appellant first points to respondent’s counsel’s use of the phrase, “but for the grace of God, there goes I” during opening and closing as improper.  When appellant objected to the phrase during respondent’s opening statement, the district court overruled the objection.  In addition, during closing argument, respondent’s counsel also argued, “No judge, no jury, no lawyer, can stand in front of you and say, this is what [a human life is] worth.  Only the good Lord can say that, because the human existence has so many dimensions, so many avenues, that makes life so precious.” 

We conclude that counsel’s use of religious references and what amounts to a variation of a “golden-rule” argument are improper in a trial setting.  But on this basis alone, we cannot say that the statements worked prejudice on the proceedings before the jury or resulted in an unfair trial.  See Colgan v. Raymond, 275 Minn. 219, 225, 146 N.W.2d 530, 534 (1966) (stating that the “golden-rule” argument, that jurors might place themselves in the position of the plaintiff and award such damages as they would wish if they were in same position, is improper and, in some cases, reversible error); Omlid v. Lee, 391 N.W.2d 62, 65 (Minn. App. 1986) (declining to order a new trial where counsel made a “golden-rule” argument to the jury because the comment was not damaging); see also Williams v. State, 324 S.E.2d 544, 545 (Ga. Ct. App. 1984) (finding “but for the grace of God” language used during closing argument to be improper but concluding that the remark did not constitute reversible error).  Accordingly, the district court did not abuse its discretion by denying a new trial based on the improper references made by respondent’s attorney in opening statement and closing argument.

            B.        Highlighting Respondent’s Apology to Appellant

            On another occasion, respondent’s counsel highlighted respondent’s apology and shared with the jury that he had “been practicing law for 37 years” and that only “[t]wice in [his] career [had he] had a client that apologized, admitted, and sent sympathy to the other side before any litigation was commenced.”  Counsel continued by stating, “I think it goes to speak to the quality of this young man and his family.”  While appellant did not specifically object to this line of argument, appellant now contends that the court should have sua sponte interjected because respondent’s counsel “encouraged the jury to base its verdict not on the evidence, but on the jury’s sympathy for his client.”

While trial counsel are to be allowed some latitude in argument, the comments made by respondent’s attorney border on the improper because appellant’s damages were the only issue for trial.  See Malik v. Johnson, 300 Minn. 252, 262, 219 N.W.2d 631, 638 (1974) (noting that while counsel is entitled to wide latitude in closing argument, such latitude is not without limitations).  Neither respondent’s character nor the accident itself were at issue.  In Johnson, an attorney’s conduct “came close to warranting a new trial primarily because his closing argument seemed to center on encouraging the jury to punish the [defendants] for outrageous and reckless conduct.”  518 N.W.2d at 601.  Despite the recognition of counsel’s “inappropriate and inflammatory comments,” the supreme court deferred to the district court’s ability to deny a motion for a new trial based on attorney misconduct because the district court was “best positioned to determine whether or not an attorney’s misconduct has prejudiced the jury.”  Id.  Here, the district court was in the best position to assess whether or not respondent’s counsel’s statements prejudiced the jury.  The district court’s ruling that the jury was not prejudiced by these comments is not an abuse of discretion.

V.        Medical Expenses

            Finally, appellant argues that the district court erroneously excluded a claim for the medical costs incurred in an attempt to save Nicole’s life.  But at the pretrial hearing, the district court stated, “[B]ecause [Nicole was] an adult, it was her [medical] insurance [that paid for the hospital bills], I don’t see how the parents have any liability for the bills, or ever did.”  Because there is no evidence that appellant incurred any expense for Nicole’s medical treatment, the district court did not err by excluding these alleged expenses from the special-verdict form.