This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Chelsey Anne Holthaus,
Kevin M. Renslow,
Filed July 3, 2007
Benton County District Court
File No. 05-CV-05-60
Stephen D. Gabrielson, Stephen D. Gabrielson, Ltd., 18 Riverside Avenue South, #200, Sartell, MN 56377; and
John D. Hagen, Jr., P.O. Box 15609, Minneapolis, MN 55415 (for appellant)
Frederick L. Grunke, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this action arising out of an automobile accident, appellant Chelsey Holthaus challenges the district court’s denial of a new trial, arguing that respondent’s attorney made inappropriate and prejudicial comments during closing arguments and that any of the comments alone, or the cumulative effect of all, require a new trial. We affirm.
D E C I S I O N
“The decision whether to grant a new trial due
to improper argument by counsel rests almost entirely within the discretion of
the trial court and should not be reversed on appeal absent a clear abuse of
discretion.” Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989); Poston v. Colestock, 540 N.W.2d 92, 94 (
Appellant argues that the district court abused its discretion by not ordering a new trial based on several allegedly improper statements made by defense counsel during closing argument. Specifically, appellant challenges (1) a statement speculating as to a possible motive for her to exceed the speed limit; (2) a statement regarding the timing of her obtaining counsel; and (3) a statement regarding her failure to produce certain evidence at trial.
Appellant objected to the third
statement during closing arguments, requesting a curative instruction, but did
not object to the first two statements or request curative instructions. “[P]rejudicial remarks in closing argument
can be corrected by a curative instruction except in the case of the most
extreme misconduct.” Bisbee v. Ruppert, 306
First, appellant argues that the district court abused its discretion by denying a new trial based on respondent’s statement to the jury that appellant may have been rushing home from work on the evening of the accident because she had a date with her boyfriend and her parents were out of town. Appellant argues that this statement impugns appellant’s character by suggesting she is immoral and is therefore inherently prejudicial and inflammatory. We disagree. The district court appropriately reasoned that counsel was merely suggesting a possible reason that appellant might have been exceeding the speed limit. The district court properly concluded that this passing statement is insufficient to produce the prejudice that appellant claims, particularly where the jury had the opportunity to assess appellant’s character when she testified at trial.
Second, appellant argues that respondent implied improper collusion between appellant and her attorney in creating a legal claim when he mentioned that appellant had retained counsel while still undergoing medical treatments. Appellant did not object to the statements, did not request a curative instruction, and took the opportunity to address and refute respondent’s comments in her own closing statement. As the district court noted, the jury awarded appellant $10,000 in pain and suffering, which it presumably would not do if it believed that appellant fabricated the claim. We conclude that the district court did not abuse its discretion by denying a new trial based on this statement.
Third, appellant argues that the district court abused its discretion by not ordering a new trial based on respondent’s statements regarding the lack of foundation for certain medical bills. The parties stipulated that the medical bills submitted to the jury related only to treatment for appellant’s neck and right shoulder injuries. But respondent argued out of the hearing of the jury that without an expert present to establish the medical necessity of the treatments or to establish causation, the bills lacked foundation. The district court responded that it would allow the parties to argue the issue in closing statements, which respondent did. The district court denied appellant’s objection and request for a curative instruction.
In denying appellant a new trial based on the statement, the district court determined that respondent was justified in arguing appellant’s failure to carry her burden of establishing medical necessity and a causal connection between the car accident and the injuries resulting in the medical bills submitted to the jury. We agree and conclude that the district court did not abuse its discretion by refusing to give a curative instruction or to grant a new trial based on respondent’s comment in closing argument.
Appellant also argues that respondent mischaracterized the nature of the bills as being for treatments for body parts other than the neck and right shoulder. But appellant did not object on that basis at trial or ask for a curative instruction. And appellant did receive therapy for other body parts, but those bills were not submitted to the jury. Thus, the district court did not err in concluding that respondent did not misstate the nature of the treatments. Moreover, the record indicates that the jury was properly instructed that attorney statements are not evidence upon which to rely. We conclude that the district court did not abuse its discretion by denying appellant a new trial.
Appellant also argues that the
district court abused its discretion by not ordering a new trial based on the
cumulative effect of the challenged statements.
Appellant cites cases such as Larson
v. Belzer Clinic, 292