This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals
                              C0-95-1914

     Donna J. Ehlers, et al.,
     Respondents,
     vs.

Christopher P. Amon and Robert Amon,

individually and d/b/a One Hour Express Foto,
     Appellants.
     Filed May 14, 1996
Affirmed
Amundson, Judge

Washington County District Court

File No. C8-94-3296

Robert J. Appert, 222 Rosedale Towers, 1700 West Highway 36, St. Paul, MN
55113, Arlo H. Vande Vegte, 1850 West Wayzata Boulevard, P.O. Box 39, Long
Lake, MN 55356 (for Respondents)

Eric J. Magnuson, Michael J. McGuire, Rider, Bennett, Egan & Arundel,
P.L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis,
MN 55402 (for Appellants)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and
Amundson, Judge.
                                     
                        Unpublished Opinion

AMUNDSON, Judge (Hon. Smith F. Eggleston, District Court Trial
Judge)

Appellants argue that they are entitled to a new trial on the issue of
damages because: (1) the trial court improperly allowed a physical
therapist to interpret medical reports and to render medical opinions
regarding causation and future harm; (2) respondents' counsel made a
``golden rule argument'' in closing argument; (3) respondents' counsel
referred to insurance in closing argument; and (4) the jury's award of
damages was due to ``passion or prejudice.'' We affirm.
                                     
                               Facts



On November 16, 1988, appellant Christopher Amon and 27-year-old respondent
Donna Ehlers were involved in an automobile accident. Respondents
sued Christopher and Robert Amon. The trial court bifurcated the trial. In
the first phase, the parties tried the negligence and damages issues.
The jury found Christopher Amon 100% at fault and awarded respondents
$218,272 in damages, broken down as follows: (1) past medical expenses --
$9,772; (2) future medical expenses -- $21,500; (3) past pain, disability,
and emotional distress -- $15,000; (4) future pain, disability, emotional
distress, and loss of earning capacity -- $172,000. Appellants moved for
JNOV, a new trial, and remittitur. The trial court denied these motions.
Appellants tried to appeal after the first phase, but this court dismissed
the appeal as premature. In the second phase of the trial, the parties
tried the issue of ownership of the car. The jury determined that both
Robert and Christopher Amon owned the car. Neither party filed posttrial
motions after the second phase. This appeal followed.
                                     
                              Decision

Physical Therapist's Testimony
Appellants argue that the trial court erred in allowing Michael Ripley,
Ehlers' treating physical therapist, to testify: (1) regarding his
``interpretation'' of medical reports (x-ray and MRI scan); (2) that
Ehlers' injuries were caused by the accident; (3) whether subsequent
injuries were the cause of her current condition; and (4) whether her
condition would worsen in the future. Appellants brought a motion in limine
and objected at trial.

The trial court's determination that a ``witness possesses the necessary
special knowledge, skill, experience, or training to be permitted to
testify as an expert'' will not be reversed unless appellants show that
``there is absolutely no evidence that the witness possessed the requisite
qualifications of an expert'' and that the erroneous admission of the
expert testimony ``substantially influenced the verdict returned to the
prejudice of the objector.'' Tayam v. Executive Aero, Inc., 283
Minn. 48, 52-53, 166 N.W.2d 584, 587 (1969).
        
        Appellants cite no cases that hold that physical
        therapists may not testify on such issues. Neither
        do appellants point to any testimony in this case
        indicating that the physical therapist did not have
        the ``knowledge, skill, experience, training, or
        education'' to testify on such issues. See
        Minn. R. Evid. 702 (witness may be qualified as an
        expert ``by knowledge, skill, experience, training,
        or education'').

Ripley had a B.S. in Physical Therapy. For this degree, he took courses in
anatomy, pathology, pathophysiology, biomechanics, and ``numerous other
therapeutic treatment techniques *** .'' He had advanced training in
treatment and evaluation techniques and had been a licensed physical
therapist for sixteen years. He taught others and also published articles
relating to his work. He testified that he had seen ``thousands'' of
patients with injuries similar to Ehlers' injuries.

Appellants argue that Minnesota law limits what physical therapists are
allowed to do. See Minn. Stat. § 148.76 (1994). These statutory
limitations, however, are not relevant to the physical therapist's
testimony in this case.

Thus, because of Ripley's education and experience, it cannot be said that
there was ``absolutely no evidence'' he possessed the requisite
qualifications.

Appellants concede that ``Respondents' doctor and chiropractor rendered
similar opinions * * *.'' For this reason alone, it is unlikely that
Ripley's testimony ``substantially influenced'' the verdict. Ripley gave a

higher figure for future physical therapy costs than either Dr. Ormiston or
Dr. Nelson -- $1,800 per year versus $500 to $1,000 per year. That
testimony, however, goes only to the $21,500 in future medical expenses the
jury awarded. Even if the jury were influenced by Ripley's estimate of
future medical expenses, they obviously did not accept completely his
testimony regarding future physical therapy costs. In addition, future
medical expenses account for less than 10% of the jury's total award. Thus,
we conclude that Ripley's testimony did not ``substantially influence'' the
jury's verdict.

Because there is evidence that Ripley was qualified to testify regarding
Ehlers' injuries, and because Ripley's testimony did not substantially
influence the jury's verdict, the trial court did not err in admitting his
testimony.
``Golden Rule Argument'' in Closing Argument
Appellants argue that respondents' counsel improperly made a ``Golden
Rule argument'' in closing argument, and thus appellants are entitled to a
new trial. Respondents' attorney told the jury that to value Ehlers'
damages ``you must look into her heart *** and into her soul.'' He said
further:
        
        You have to walk a mile in Donna's moccasins. You
        have to feel the pain, and you have to live through
        what she's living through. Then go ahead and
        evaluate what it's going to mean to her. * * * You
        need to get inside of her life. * * * You really
        need to understand her problems.

Respondents' attorney also told the jury ``Now, this case is not what it
would mean to you. It's very important to separate yourself from this
case.'' Appellants' counsel objected after respondents' counsel finished
his statement and asked for a curative instruction, but the trial court
refused.

The decision to grant a new trial for misconduct of counsel rests within
the discretion of the trial court and that decision will not be reversed
absent a clear abuse of that discretion. Colgan v. Raymond, 275
Minn. 219, 226, 146 N.W.2d 530, 535 (1966) (``Golden Rule'' argument).

In a very similar case, this court held that a new trial was not justified.
See Mueller v. Sigmond, 486 N.W.2d 841 (Minn. App. 1992),
review denied (Minn. Aug. 27, 1992). In Mueller, during
closing argument, plaintiff's attorney said:
        
        Think, for example, what an injury like this would
        mean to Michael Jordan * * * or yourself * * * or
        anyone else that you know, how it would take them
        out of the game of life that they're in.

Id. at 844. Defendant's attorney objected and asked for a curative
instruction but the trial court refused. Id. Although the trial
court refused a curative instruction, it instructed the jury to ``'do your
duty as jurors regardless of any personal likes or dislikes, opinions,
prejudices or sympathy.''' Id. This court held that this instruction
``was sufficient to remove any possible prejudice.'' Id.

The trial court in this case gave the following jury instruction:
``First, you must not permit sympathy, prejudice, or emotion to influence
your verdict.'' This instruction is basically the same cautionary
instruction that in Mueller this court considered ``sufficient to
remove any possible prejudice.'' Thus, under Mueller, the trial
court here did not clearly abuse its discretion by denying a new trial.
Reference to Insurance in Closing Argument
Appellants argue that respondents' counsel improperly referred to
insurance in closing argument. Appellants base this argument on the
following comments:

        
        Now we need to look at the damages. What are the
        damages in this case? We'll go right down the line
        of past medical expenses. Are they reasonably
        necessary? You're not to consider insurance when
        factoring this in, the Judge worries about that
        later, that's not an issue in this case.

Appellants' counsel objected after respondents' counsel finished his
statement and asked for a curative instruction, but the trial court
refused.

We conclude that no new trial is warranted by virtue of this statement.
First, respondents' counsel referred to respondents' insurance for past
medical bills, not appellants' liability insurance. If the comment were
prejudicial, presumably the prejudice would show up in the jury's award of
past medical bills.(1)
        [Footnote] (1) See Odegard v. Connolly, 211
        Minn. 342, 345-46, 1 N.W.2d 137, 139 (1941) (``So
        long as the insurance is not featured or made the
        basis * * * for an appeal to increase or decrease
        the damages, the information would seem to be
        without prejudice.''); Martin v. Schiska, 183
        Minn. 256, 264, 236 N.W. 312, 315 (1931) (``Where it
        is apparent that the jury's information regarding
        the existence of insurance is not made use of to
        inflame or prejudice the jury in favor of either of
        the nominal or actual parties to the litigation, the
        fact of such information, or the manner in which
        that information was imparted in open court, should
        not call for a new trial.'').

However, the award for past medical bills was $9,772, which amounts to only
4.48% of the jury's total award. Second, it was a brief reference -- one
sentence out of a closing argument by respondents' counsel covering 45
transcript pages. Cf. Anderson v. Enfield, 244 Minn. 474,
481, 70 N.W.2d 409, 414 (1955) (distinguishing cases ``where insurance
coverage was repeatedly emphasized and featured in the questioning of
witnesses or in the closing argument of counsel.''). Third, in the cases
that appellants cite in which the court reversed on the grounds of mention
of insurance, liability insurance was mentioned, and the behavior was more
egregious than in this case. See Purdes v. Merrill, 268 Minn.
129, 128 N.W.2d 164 (1964) (issue of liability was doubtful, and
plaintiff's counsel said $40,000 award would not ``personally'' hurt
defendant, insinuating not only liability insurance coverage, but also the
limits of liability); Jeddeloh v. Hockenhull, 219 Minn. 541, 18
N.W.2d 582 (1945) (repeated references to insurance, including asking
witness whether he had automobile liability insurance).

``Passion or Prejudice''
Appellants argue that these ``irregularities'' -- the physical
therapist's testimony, and the ``golden rule'' and insurance comments
respondents' counsel made in closing arguments -- caused the jury to base
its verdict on passion or prejudice.

The trial court's denial of a new trial motion based on excessive damages
will be upheld unless there has been a clear abuse of discretion. Young
v. Hansen, 296 Minn. 430, 435, 209 N.W.2d 392, 395 (1973).

Appellants note that the jury awarded respondents an average of $2,500 per
year for past general damages, but awarded an average of $4,000 per year
for future general damages. Appellants assert that the only difference
between the past damages and future damages is that the future damages
included damages for loss of earning capacity. Thus, appellants conclude,
the extra $1,500 per year the jury awarded for future damages ($4,000-
$2,500) must be attributable to damages for loss of earning capacity.

Because the evidence regarding loss of earning capacity is weak, appellants
claim, the extra $1,500 per year must have been based on passion and
prejudice rather than evidence. We disagree.

First, as respondents correctly note, the special verdict form did not list
future loss of earning capacity damages separately from future pain,
disability, and emotional distress damages. Thus, it is not possible to
know how much (if any) of the $172,000 award the jury based on loss of
earning capacity. Any figure would be pure speculation. Second, it is not
at all clear that the jury should have awarded the same per-year damages
for past pain, disability, and emotional distress as they would for future
pain, disability, and emotional distress. After all, Dr. Nelson testified
that the ``marked moderate degenerative changes in her cervical spine * * *
will only worsen in time'' and that work would get more difficult for her
as she grows older. Thus, it would be reasonable for the jury to award a
larger per-year amount for future pain and emotional distress because the
experts said she would have more pain and emotional distress in the future.
Third, the jury awarded considerably less than the maximum respondents
asked for. Respondents' counsel suggested that the jury award $3,000 to
$6,000 per year times 43 years (a range of $129,000 to $258,000). He stated
``I argue strongly that it's on the upper end of the range.'' As
respondents correctly point out, the jury awarded $21,500 less than the
midpoint of respondents' suggested range (the midpoint between $129,000 and
$258,000 is $193,500 -- the jury awarded $172,000). Thus, based on the
jury's per-year award of damages, we cannot conclude that the verdict was
the product of passion or prejudice.

Finally, the cumulative effect of the alleged errors does not give rise to
a clear abuse of discretion that would warrant a new trial.