This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1932

C4-96-1943

Boyd A. Koehler, general conservator for Patricia

M. Koehler and Patricia M. Koehler, individually,

Respondents,

vs.

Abbott-Northwestern Hospital, Inc.,

Appellant (CX-96-1932),

Respondent (C4-96-1943),

James Ginsberg, M.D., et al.,

Respondents (CX-96-1932),

Appellants (C4-96-1943),

Doe 1 through 10,

Defendants (C4-96-1943).

Filed July 8, 1997

Affirmed in part, reversed in part, and remanded

Huspeni, Judge

Hennepin County District Court

File No. 945974

John P. Sheehy, Ronald I. Meshbesher, Michael C. Snyder, James H. Gilbert, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for Respondents Koehler)

Kevin P. Keenan, Charles E. Lundberg, Timothy S. Mangan, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant/Respondent Abbott-Northwestern Hospital, Inc.)

William M. Hart, Thomas H. Crouch, Christopher J. Schulte, Sean W. Duffy, Robert M. Frazee, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents/Appellants Ginsberg and Park Nicollet Medical Center)

Considered and decided by Huspeni, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellants, Abbott-Northwestern Hospital, Park Nicollet Medical Center, and Dr. James Ginsberg, seek review of a $15.9 million judgment awarded to respondents Patricia Koehler and her general conservator, Boyd Koehler, for injuries sustained by Patricia Koehler as a result of her attempted suicide while a patient at Abbott-Northwestern.[1] Because we find no error in the trial court's (1) refusal to submit the issue of Patricia Koehler's comparative fault to the jury, (2) refusal to grant judgment notwithstanding the verdict to appellants, (3) refusal to conduct a Schwartz hearing, (4) rulings on evidentiary matters, (5) jury instructions, and (6) refusal to grant a new trial because of alleged misconduct of respondents' attorneys, we affirm on those issues. Because in the interests of justice remittitur should be addressed initially by the trial court, we reverse and remand the issue of damages.

FACTS

On December 13, 1990, Patricia Koehler met with her therapist at Park Nicollet Medical Center (Park Nicollet) and expressed suicidal thoughts. Her therapist contacted Dr. James Ginsberg, a psychiatrist employed by Park Nicollet, who agreed with Koehler's therapist that Koehler should be admitted to the locked psychiatric unit at Abbott-Northwestern Hospital (Abbott-Northwestern). Koehler went voluntarily by ambulance to Abbott-Northwestern. After she was admitted, Ginsberg diagnosed her with dysthymic disorder, a form of depression, and put her on an intermediate suicide intervention level called "suicide assessments." In addition to the Prozac Koehler was already taking at the time of her admission, Ginsberg prescribed benzodiazepines to counter her anxiety and additional medication to counter her sleeplessness.

Staff and visitors testified that Koehler was anxious and suicidal throughout the day on December 13. Late that night, Ginsberg gave orders for one-to-one observation (in which the staff keeps the patient under constant observation) at the hospital staff's discretion. The nurse who did "one-to-ones" with Koehler that night said Koehler continued to have suicidal thoughts and that her condition had not changed during the night. A nurse who saw Koehler on December 14 noted that she was depressed and at risk for suicide. Ginsberg saw Koehler later in the day on December 14 and determined that while she remained depressed, her risk of self-harm had decreased. He discontinued her Prozac prescription and ordered additional medications to treat her sleeplessness and anxiety. The staff member who did "one-to-ones" with Koehler from mid-afternoon until midnight on December 14 said that Koehler was feeling more in control of her suicidal thoughts. The overnight staff person stated that Koehler had only weak thoughts of self-harm and that on the morning of December 15, she signed a contract not to harm herself. The staff took Koehler off one-to-one observation that morning. A nurse who was on duty December 15 stated that Koehler's mood had improved and that she was planning to work on some of her psychological issues. A staff member who spoke with Koehler that night at 10:00 p.m. determined that Koehler was in control of her suicidal thoughts. At 10:42 p.m., Koehler was found with her shirt wrapped around her neck and tied to the doorknob of her bathroom. The staff resuscitated Koehler, but she nonetheless suffered severe brain injury.

D E C I S I O N

1. Standard of Review.

We must address initially the lingering question of what standard of review should be applied by this court. When the 90-day appeal time was nearly exhausted, the trial court had not yet ruled upon post-trial motions brought by appellants.[2] A notice of appeal was filed in this court thus depriving the trial court of jurisdiction.

During pendency of this appeal, respondents, citing Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (concluding that where party has not moved for new trial, only issue on appeal is whether evidence sustains verdict), moved to limit the inquiry of this court to "whether the evidence sustains the verdict, the findings of fact and the conclusions of law." In denying respondents' motion, the special term panel of this court reasoned that "[r]ulings on appellants' new trial motions were not necessary to preserve issues for appeal."

While respondent continues to urge that issues should be limited, we conclude that it would be inappropriate to, in effect, reconsider and overrule this court's prior order. See Minn. R. Civ. App. P. 140.01; In re Estate of Sangren, 504 N.W.2d 786, 788 n.1 (Minn. App. 1993) (concluding that attempt to reargue issue decided at special term equivalent to motion to reconsider and prohibited by rule 140.01), review denied (Minn. Oct. 28, 1993).[3] We will address the issues raised in this case in a manner consistent with the spirit of the special term order.

2. Comparative Fault.

Minn. Stat. § 604.01 (1996), subd. 1, governs the application of comparative fault:

[I]n an action * * * to recover damages for fault resulting in death, in injury to person or property, or in economic loss, * * * [t]he court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering.

Id. It is appropriate to apply comparative fault even where the plaintiff is mentally ill, using a reduced capacity standard. Tomfohr v. Mayo Found., 450 N.W.2d 121, 124 (Minn. 1990). Appellants argue that the trial court erred in not submitting Koehler's comparative fault to the jury. We find no error. In Tomfohr, the supreme court made an exception to the general rule of submitting a plaintiff's comparative fault to the jury, holding that it was not error for a district court to refuse to submit a capacity-based instruction to the jury concerning the patient's comparative fault in the specific factual situation of

an attempted suicide committed by a mentally ill patient admitted to a locked hospital ward where the medical staff was aware of his suicidal ideations.

Id. at 125.

The facts of this case are strikingly similar to those in Tomfohr. Koehler was a mentally ill patient who attempted suicide after being admitted to a locked ward and the staff was aware of her suicidal thoughts. Appellants urge us to adopt the reasoning set forth in Champagne v. United States, 513 N.W.2d 75 (N.D. 1994), a case in which the court concluded that where a suicide victim retains enough mental capacity to be responsible for his own well-being, it is appropriate to compare his fault with that of the medical caregivers. We conclude, however, that unlike the plaintiff in Champagne, the circumstances of Patricia Koehler parallel dramatically those outlined by the Tomfohr court when it set forth its narrow exception to the general rule that a plaintiff's comparative fault should be submitted to the jury.

3. Evidence Supporting the Verdict.

Ginsberg and Park Nicollet argue that they are entitled to judgment notwithstanding the verdict (JNOV) because the evidence does not support the verdict. In reviewing a jury verdict, this court considers the evidence in the light most favorable to the verdict and will not overturn it unless no reasonable mind could find as the jury did. Reedon of Faribault v. Fidelity & Guar. Ins. Underwriters, 418 N.W.2d 488, 491 (Minn. 1988).

Ginsberg and Park Nicollet argue that the evidence does not support the verdict because (1) respondents did not prove that Ginsberg's admission diagnosis of Koehler with dysthemia rather than major depressive disorder and borderline personality disorder caused the harm to Koehler, (2) there was no negligence by Ginsberg in giving the staff discretion to remove Koehler from one-to-one observation, (3) staff discretion in removing her from one-to-one observation did not cause Koehler's self-harm, and (4) Ginsberg's prescription of benzodiazepines for anxiety was not a breach of the standard of care.

Respondents' expert, Jerome Kroll, testified that Ginsberg's admission diagnosis of Koehler, his decision to put Koehler on one-to-one observation at staff discretion, and his prescription of benzodiazepines fell below the standard of care. He also testified that Ginsberg's failure to include a "borderline diagnosis" in his admission diagnosis was one of the "critical links in that chain that ultimately led to her hanging herself." Finally, Kroll testified that, if Koehler had been on one-to-one observation and had not been taking benzodiazepines,[4] she would have been less likely to injure herself. The jury apparently believed Kroll's testimony and, viewing the evidence in the light most favorable to the verdict, Kroll's testimony was sufficient to sustain the jury's determination on negligence. We conclude that there is no basis for JNOV.

Park Nicollet and Ginsberg alternatively argue that they are entitled to a new trial if any of the liability theories fails because it is unknown upon which theory the jury found liability. We cannot agree. It is not necessary for this court to ascertain on which theory the jury premised its findings because the verdict may be affirmed if it is supported by any theory of the evidence. Nihart v. Kruger, 291 Minn. 273, 276, 190 N.W.2d 776, 778 (1971).

4. Schwartz Hearing.

The trial court has the discretion to grant a motion for a mistrial where it finds that there was prejudicial juror misconduct. Briggs v. Chicago Great Western Ry., 248 Minn. 418, 425, 80 N.W.2d 625, 632 (1957). It is within the discretion of the district court to determine whether to grant a Schwartz hearing. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979), cert. denied, 444 U.S. 973 (1979). The purpose of a Schwartz hearing is to

avoid harassment of jurors and to provide a record on appeal in cases where, after the jury renders the verdict, the losing party becomes aware of facts which indicate the possibility of jury misconduct.

Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977). Although a Schwartz hearing is mandated where the evidence "standing alone and unchallenged, would warrant the conclusion of jury misconduct," the district court need not "blindly accept the assertions submitted by defense counsel." Larson, 281 N.W.2d at 484.

During the trial a juror, in the presence of another juror, gave a copy of an article about borderline personality disorder to one of respondents' attorneys. Appellants' motion to strike that juror was denied. That juror was dismissed one month later (before deliberations) for unrelated reasons. Before appellants finished presenting their case, another juror expressed concerns to the court that the jury had already made its decision. That juror also expressed suspicions that "there was a big payoff there somewhere" on the jury. Based on that juror's statements, appellants moved for a mistrial. The trial court denied the motion and dismissed the juror. Appellants' post-trial motions for a Schwartz hearing were also denied; however, the trial court held a hearing regarding possible juror misconduct before the case was submitted to the jury. All counsel waived their right to be present at the hearing. The trial court concluded after that hearing that no misconduct had occurred. In denying appellants' motions for a Schwartz hearing, the trial court noted that it had investigated the allegations of misconduct with respect to both of the jurors, that both jurors were dismissed before deliberations, and that there had been no further evidence of juror misconduct. The trial court did not abuse its discretion in concluding that no further hearings on juror misconduct were necessary.

5. Evidentiary Rulings.

Evidentiary rulings, including decisions regarding expert testimony, lie within the district court's discretion and will not be disturbed absent abuse of that discretion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990). "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error." Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

Abbott-Northwestern argues that the trial court erred by not allowing its expert, Dr. Janofsky, to testify as to his diagnosis of Koehler. Abbott-Northwestern planned to elicit testimony regarding Janofsky's diagnosis to give credence to his opinion that Abbott-Northwestern acted reasonably in treating Koehler. We conclude that the trial court did not err in its ruling. Counsel for all parties agreed that Janofsky would not testify to issues concerning Ginsberg. The trial court determined that allowing Janofsky to testify as to his diagnosis of Koehler would violate the parties' agreement because such testimony would raise the issue of the appropriateness of Ginsberg's treatment of Koehler. We note also that the record contains no offer of proof by Abbott-Northwestern tending to refute the trial court's assessment.

Abbott-Northwestern also argues that in regard to the testimony of Dr. Cavanaugh, an expert witness called by Ginsberg, the court erred by (1) limiting its examination of Cavanaugh to ten minutes and (2) allowing respondents to cross-examine Cavanaugh on any issue, including Abbott-Northwestern's negligence. We find no error. The record indicates that Abbott-Northwestern's counsel volunteered to limit his questioning to ten minutes. Abbott-Northwestern was not allowed to ask questions related to the hospital on direct examination,[5] but respondents' cross-examination properly included issues related to the hospital because they were within the scope of Park Nicollet's and Ginsberg's direct examination. Abbott-Northwestern was permitted to conduct redirect examination within the scope of the cross-examination.

Park Nicollet and Ginsberg argue that the trial court erroneously allowed respondents to refer to texts that post-dated Koehler's suicide attempt. Again, we find no error. Where the fundamental information referred to in a post-event text was available at the time of the alleged malpractice, it is not abuse of discretion for a district court to allow an expert to refer to the post-event text. Koch v. Mork Clinic, P.A., 540 N.W.2d 526, 530 (Minn. App. 1995), review denied (Minn. Jan. 12, 1996). Nothing in the record suggests that the trial court improperly allowed an expert to refer to a post-event text.

Abbott-Northwestern, citing 4 Minnesota Practice, CIVJIG 159 (allowing damages recovery for "[t]he reasonable value of necessary medical supplies and hospital and medical services * * * that are reasonably certain to be required in the future"), argues that the court erred in allowing testimony on optimal care for Koehler rather than merely required care. We conclude there is no error. Future medical expenses may be awarded if (1) future medical treatments will be required and (2) both the necessity and the amount of the damages are established by expert testimony. Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn.App. 1990), review denied (Minn. Feb. 21, 1990). Abbott-Northwestern cites no authority for the proposition that only testimony on the minimum standard of care for future medical expenses is allowable.

Appellants argue that the trial court erred in admitting Koehler's out-of-court statements that she preferred living in her home to living in a nursing home. We conclude there is no error. The trial court initially ruled that Koehler was "incapacitated and unable to relate the events and facts pertinent to her housing concerns" and that her out-of-court statements would be inadmissible regardless of whether they were within a hearsay exception because they were incompetent. The court later clarified its ruling, however, stating that while Koehler's statements regarding what was in her best interests, including judgments on where she should live, were incompetent and inadmissible, she was capable of making competent statements about everyday choices, such as what she liked to eat, her entertainment preferences, and where she preferred to live. The distinction made by the trial court between Koehler's competency to testify as to where she should live as opposed to where she preferred to live is a critical one. The trial court did not abuse its discretion in making that distinction.

Park Nicollet and Ginsberg next argue that the trial court abused its discretion by placing a limitation on the time they were allowed to cross-examine respondents' damages expert.

Generally, a wide range of inquiry should be allowed on cross-examination. But the manner and scope thereof rest largely within the discretion of the trial court.

Nelson v. Austin Transit, 271 Minn. 377, 381, 135 N.W.2d 886, 889 (1965) (citation omitted). The trial court noted that counsel did not use the full two hours he was allotted. Further, counsel did not make an offer of proof after his cross-examination, as he said he would before he began the cross-examination, regarding questions he was unable to ask due to the time constraint.

Appellants argue that the trial court erred in denying their request to view a document shown by respondents' counsel to two of respondents' experts on the ground that it contained work product. The Minnesota Rules of Civil Procedure provide that facts known by experts retained by another party are discoverable. Minn. R. Civ. P. 26.02(d); see also In re Air Crash Disaster at Stapleton Airport, 720 F. Supp. 1442, 1444 (D. Colo. 1988) (holding that "materials possessed by an expert in relation to a case in which he is expected to testify are discoverable" even if the materials contain attorney work product). We conclude that the trial court should have permitted the requested review. However, even assuming error, after reviewing the document in question, which outlines respondents' theory of the case, we are unable to discern any prejudice. Moreover, appellants were permitted to fully cross-examine those experts on all areas of their testimony.

Park Nicollet and Ginsberg also argue that the trial court abused its discretion in refusing to allow one of its witnesses to testify to the cost of a case manager in Wisconsin. When respondents' counsel objected on the grounds of foundation, the court ruled that the information was irrelevant, apparently because the information was not about Hennepin County. However, earlier in the trial another witness testified to the average cost of case management services throughout the country. There was no objection to that statement, which was given to explain why that witness found the cost of Koehler's case manager reasonable. Again, we conclude that this proffered testimony should have been admitted. But again we also observe that there was no demonstrated prejudice shown, nor was there an offer of proof made by appellants on this issue.

6. Jury Instructions.

The district court has wide latitude in selecting jury instructions and its decision will not be reversed absent abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

Errors in jury instructions warrant a new trial only if they destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice.

Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn.App. 1992). Where the "instructions are misleading and conflicting on a material issue, a new trial should ordinarily be granted * * *." Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

Park Nicollet and Ginsberg argue that the trial court's jury instructions on negligence were contradictory and misled the jury as to the standard of care they were to apply with regard to Ginsberg. We find no error. The trial court gave both the general negligence instruction[6] and the more specific instruction on the duty of a doctor.[7] Similarly, Abbott-Northwestern argues that the trial court erred by giving both the general negligence instruction and the specific instruction on the duty of nurses.[8] Appellants' reliance on Lindstrom to argue that the instructions given in this case were contradictory is misplaced. Lindstrom involved both an instruction of care for a common carrier and a general negligence instruction. The contradiction in those instructions was evident because the common carrier standard is that of the highest degree of care, and the general standard is that of reasonable care. Id. at 227-28, 214 N.W.2d at 675. Here, the instructions are not directly contradictory as they were in Lindstrom. The trial court in this case properly used the term "reasonable care," defined in the general negligence instruction, throughout its jury instructions, including those for the standard of care of nurses, doctors, and hospitals. It was within the trial court's discretion to include the general negligence instruction along with the more specific instructions on the duties of doctors and nurses.

Abbott-Northwestern also argues that the trial court erred in its instructions on the duty of nurses by refusing to give the professional medical judgment instruction that it gave with respect to doctors, pointing out that Wisconsin's jury instruction guide suggests such an instruction for nurses. We conclude there is no error in the trial court's decision to follow the Minnesota jury instruction guides with respect to both doctors and nurses.

Abbott-Northwestern further argues that it was entitled to its requested instruction based on the statute regulating the investment discretion of a conservator, and that without that instruction, the testimony of one of Koehlers' witnesses could have left the jury with the impression that a conservator's investment discretion is more narrow than it actually is. While we recognize that "[w]here a statute applies, the court generally should read it to the jury," Kirsebom, 486 N.W.2d at 174, the trial court did instruct the jury that it should take into account the "reasonable earning power of money" when awarding damages. It is unlikely, therefore, that the jury believed the conservator's investment discretion was narrow. Further, jury instructions must be considered in their entirety. Larson v. Powder Ridge Ski Corp., 432 N.W.2d 774, 776 (Minn. App. 1988). It is unlikely that the jury was misled by the absence of a specific instruction on investment discretion of a conservator.

7. Attorney Misconduct.

Appellants allege that respondents' attorneys engaged in misconduct that appealed to the passion and prejudice of the jury and, therefore, a new trial is required. The alleged misconduct includes (1) the introduction of peer review information after the trial court had ruled that peer review information would be suppressed pursuant to Minn. Stat. §§ 145.64, 145.65 (1996); (2) continual use of argumentative questions to insinuate that witnesses were being untruthful; (3) abusive and intimidating tactics; and (4) prejudicial and inflammatory comments.

Unless the conduct is so flagrant as to require the trial court to act on its own motion, a claim of misconduct requires: (1) an objection at the time of the alleged misconduct or at the close of the argument and (2) a request for corrective action that was denied by the district court. Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975), cert. denied, 424 U.S. 902 (1976). "Misconduct of counsel does not warrant a new trial unless the misconduct clearly resulted in prejudice to the losing party." Ecklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974).

Respondents argue that appellants did not timely object to their actions. A careful review of the record convinces us, however, that appellants' counsel's objections to the questioning style throughout the trial were sufficient to preserve this issue for review. While, arguably, the post-trial motion determination of the trial court on this issue would have assisted review,[9] we believe that the record before us permits the meaningful review necessary. Two circumstances support our determination. First, the record establishes that the trial court discussed this issue with counsel. Clearly, the trial court could have reacted to the alleged misconduct and imposed sanctions it deemed appropriate even where counsel did not object to each prejudicial statement. Wild, 302 Minn. at 433-34, 234 N.W.2d at 786. Second, there is no indication that the trial court denied any request by appellants for corrective action. There does not appear to have been a request for a curative instruction, although the trial court did give general cautionary instructions that the statements of attorneys are not evidence and that the jury must follow the law and decide the case on the evidence regardless of personal likes or dislikes, opinions, prejudices or sympathy. See Eklund at 362, 222 N.W.2d at 350 (affirming district court's denial of new trial where cautionary instructions negated "possible prejudice arising out of some excess in the give-and-take of opposing counsel").

Again, although the trial court did not explicitly rule on the issue of misconduct, it was certainly made aware of that conduct during trial and did not find it prejudicial enough to take action upon its own motion.[10] The trial court was in the best position during this lengthy trial to observe and assess attorney conduct and to caution or punish appropriately. We decline to grant a new trial on this issue.

8. Damages.

Appellants argue that they are entitled to a new trial on damages or, alternatively, a remittitur, because the award was baseless, unreasonable, and excessive. A new trial or remittitur (or additur) may be granted if a party has been granted "[e]xcessive or insufficient damages, appearing to have been given under the influence of passion or prejudice." Minn. R. Civ. P. 59.01(e); McPherson v. Buege, 360 N.W.2d 344, 347 (Minn. App. 1984). A reviewing court will not disturb a damage award unless it "would be shocking or would result in plain injustice." Hughes v. Sinclair Mktg, Inc., 389 N.W.2d 194, 199 (Minn. 1986). Any damages award must be able to stand "the test of reasonableness in the light of its overall effect." Hallada v. Great N. Ry., 244 Minn. 81, 99, 69 N.W.2d 673, 687 (1955), overruled in part by Busch v. Busch Constr. Co., 262 N.W.2d 377, 397 (Minn. 1977) (limiting Hallada by holding that a plaintiff is not required to invest pain, suffering, and disability awards because they are compensation rather than reimbursement).

Mindful of the earlier order by this court that "rulings on appellant's motions were not necessary to preserve issues for appeal," we are, nevertheless, troubled by the issue of damages and the inextricably intertwined issue of remittitur.

Although an appellate court may reduce a jury's damages award, the preferred procedure is to defer to the district court's decision because the district court is in a unique and superior position to evaluate the propriety of a damage award. See Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 582 (Minn. 1977) (stating that question of whether damages are excessive should first be addressed to the discretion of the district court); Auger v. Rofshus, 267 Minn. 87, 94, 125 N.W.2d 159, 164 (1963) (ordering conditional remittitur but noting that reducing award was more properly task of district court); see also Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984) (giving effect to a district court's remittitur order even though it lacked jurisdiction because order was issued after appeal was filed), review denied (Minn. June 12, 1984).[11] We do not have the benefit of the trial court's superior and unique position on this issue in this case.

Appellants, in urging the excessiveness of the damage award, argue that such an award puts Patricia Koehler in a position of being able to meet all of her necessary expenses from the income received by investing the proceeds of the award and, in fact, having the principal of the award yet intact at the end of her life expectancy. Such allegations raise the concerns addressed in Hallada where the court observed:

The reasonableness of an award for damages can be appraised only in the light of the elementary principle that plaintiff should be given neither more nor less than a sum which leaves him financially whole to the same extent as he would have been had no injury occurred. Whether an injured person has been made financially whole must be tested by determining what the total amount of damages awarded by the jury will accomplish for him if conserved and used with ordinary prudence. * * *

No recognized theory of damages or principle of common sense requires that plaintiff, over and beyond his damages, be endowed with an estate at the conclusion of his life expectancy. * * * We must ever be careful lest an injured person is not made financially whole to the same extent as he would have been had he not been injured, but damages which grossly exceed or fall below full compensation cannot be permitted to stand.

Hallada, 244 Minn. at 97-98, 69 N.W.2d at 686-87.

It is possible that the damages award in this case is subject to reduction pursuant to the Hallada overall reasonableness test. However, we conclude that this case does not involve such unusual circumstances as to require that damages and remittitur be addressed for the first time in this court. See Auger, 267 Minn. at 95, 125 N.W.2d at 164 (stating that appellate court should not "perform the trial court's responsibility and reduce jury awards except in most unusual cases") (Rogosheske, J., dissenting on other grounds). Instead, we conclude that the interests of justice require the initial determination of the experienced trial judge who presided over this nine-week trial. We, therefore, remand for trial court determination those portions of appellants' post-trial motions concerning damages and remittitur.

Affirmed in part, reversed in part, and remanded.

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

[ ]1Unless otherwise noted, throughout this opinion the word "appellants" will refer to Abbott-Northwestern, Park Nicollet and Ginsberg collectively.

[ ]2Appellants did not move to stay entry of judgment, nor did they move to vacate judgment. In a letter to the district court, appellants state that they contacted the district court clerk the week before the time to appeal the judgment ran out to inquire whether the court would entertain a motion to temporarily vacate the judgment, but that the district court judge was away from court that week and was unable to consider the request.

[ ]3Respondents also cite Sorenson v. Visser, 558 N.W.2d 773 (Minn. App. 1997), an opinion released after the special term panel issued its order. We believe Sorenson is distinguishable because the issues in that case were raised for the first time in a second post-trial motion pending when the appeal was filed, and this court refused to address those issues, noting that there had been no objection made at trial. Id. at 776; see also Poppler v. O'Connor, 306 Minn. 539, 541 n.1, 235 N.W.2d 617, 619 n.1 (1975) (concluding that party who did not object when evidence entered not permitted to object in motion for new trial or on appeal).

[ ]4Kroll testified that benzodiazepines can reduce inhibitions, which must be taken into account when prescribing them to self-injurious patients with borderline personality disorders.

[ ]5Abbott-Northwestern's counsel stated that he had not agreed to any limitations with respect to Cavanaugh in the parties' agreement regarding expert testimony. However, while Cavanaugh was on the stand, Abbott-Northwestern's counsel agreed not to question him with regard to the hospital's liability.

[ ]6The trial court's instruction on negligence was:

[N]egligence is the failure to use reasonable care. Reasonable care is that care which a reasonable person would use under like circumstances. Negligence is the doing of something which a reasonable person would not do or the failure to do something which a reasonable person would do under like circumstances.

[ ]7The instruction given on the duty of a doctor was:

In performing professional services for a patient, a doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice, in similar communities and under like circumstances. In the application of his or her skill and learning, the doctor must also use reasonable care.

[ ]8The instruction given on the duty of a nurse was:

With regard to the duty of a nurse, in performing professional services for a patient, a nurse must use that degree of skill and learning which is normally possessed and used by nurses in good standing in similar practice, in similar communities and under like circumstances.

[ ]9We note without comment (or encouragement) that occasionally in cases in this procedural posture (appeal from the judgment before the trial court rules on post-trial motions), a trial court does issue its post-trial order during the pendency of an appeal. The appellate court may then decide to use that order for whatever purpose it may serve. See Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984) ("taking cognizance of [the trial court's order] for the insight it affords"), review denied (Minn. June 12, 1984). There is no indication in this case that the trial court, once deprived of jurisdiction, issued any order.

[ ]10The trial court also had discussions with counsel out of the presence of the jury regarding the conduct of respondents' counsel, again demonstrating awareness of and opportunity to respond to concerns about courtroom conduct.

[ ]11See footnote 9, supra.