This opinion will be unpublished and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

C4-98-537

Sue A. Wruck, et al.,

Appellants,

vs.

Richard L. Rvsavy, M.D., et al.,

Respondents.

Filed October 20, 1998

Affirmed

Short, Judge

Stearns County District Court

File No. C0962558

Roger J. Nierengarten, Nierengarten Law Offices, 1111 First Street North, P.O. Box 339, St. Cloud, MN 56303 (for appellants)

Corrine L. Evenson, Quinlivan & Hughes, P.A., 400 South First Street, 600 Norwest Center, P.O. Box 1008, St. Cloud, MN 56302-1008, and

Kevin S. Carpenter, Holmen & Carpenter, P.A., 26 Sixth Avenue North, St. Cloud, MN 56303 (for respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.

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

SHORT, Judge

Four days after being treated for a viral flu infection by Dr. Richard Rysavy, Sue Wruck was hospitalized with pneumonia. Wruck remained in the hospital for 44 days, including 19 days on a respirator. Wruck and her husband sued Rysavy for medical negligence, alleging Wruck's injury resulted from Rysavy's failure to properly diagnose her illness and refer her to a specialist. A jury returned a special verdict awarding damages but finding no medical negligence. On appeal from the trial court's denial of their motion for a new trial, the Wrucks argue the trial court erred in: (1) giving a prejudicial jury instruction; and (2) limiting the cross-examination of an expert witness. By cross-appeal, Rysavy argues the trial court erred in: (1) awarding only part of his claimed costs and disbursements; and (2) requiring the jury to assess damages after finding Rysavy not negligent. We affirm.

D E C I S I O N

We will reverse a trial court's evidentiary rulings or its decision on post-trial motions only for a clear abuse of discretion. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (evidentiary rulings); Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981) (new trial motions). When reviewing a denial of a motion for new trial, we determine whether the denial involved a violation of a clear right or a manifest abuse of judicial discretion. Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975).

I.

The Wrucks argue the trial court abused its discretion by instructing the jury to continue deliberating after its first indication of a possible deadlock. See State v. Kelley, 517 N.W.2d 905, 909 (Minn. 1994) (holding trial court cannot lead jury to believe deadlock is not an option). However, we will reverse a trial court decision only if errors in jury instructions destroy the substantial correctness of the entire jury charge, create a miscarriage of justice, or lead to substantial prejudice of a party. Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). The record demonstrates the trial court: (1) addressed the jury on its second day of deliberation, and after its first question regarding the possibility of a deadlock; (2) suggested jurors deliberate only until they determined whether they could render a verdict without requested documents; and (3) reminded jurors, in its instructions, not to surrender their convictions for the mere purpose of returning a verdict. Neither counsel objected to the trial judge's instructions or asked for clarifying instructions. Given these facts, the trial court's instructions did not substantially prejudice the jury. Under these circumstances, we cannot say the trial court abused its discretion in suggesting the jury continue deliberating. See State v. Jones, 556 N.W.2d 903, 911-12 (Minn. 1996) (noting Standard 15-4.4(b) of the ABA's Standards Relating to Jury Trials suggests trial court repeat instructions and require jury to continue deliberating if they are unable to agree); see also State v. Danforth, 573 N.W.2d 369, 373-74 (Minn. App. 1997) (holding trial court did not abuse discretion by encouraging jury to continue deliberating despite escalating tensions and indication they were "hopelessly deadlocked"), review denied (Minn. Feb. 19, 1998).

The Wrucks also argue the trial court abused its discretion in limiting the cross-examination of Rysavy's expert witness. See Minn. R. Evid. 703(b) (admitting underlying expert data when inquired into on cross-examination); Minn. R. Evid. 705 (requiring disclosure of facts or data underlying expert's opinion if inquired into on cross-examination). Although Minn. R. Evid. 703 and 705 permit disclosure of facts underlying an expert's opinion on cross-examination, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Minn. R. Evid. 403; see Ramsey County v. Miller, 316 N.W.2d 917, 921 (Minn. 1982) (noting Minn. R. Evid. 403 may be used to exclude relevant but substantially prejudicial evidence). Here, the Wrucks attempted to admit reports containing withdrawn and prejudicial opinions of Rysavy's medical treatment of Sue Wruck. The Wrucks contend certain parts of these reports were necessary to test the credibility of the expert witness. However, the record shows: (1) the expert witness never testified to relying on these reports in forming his medical opinion; (2) the Wrucks knew of the reports' prejudicial impact because they elected not to call the author of the reports as a witness; and (3) the Wrucks attempted to admit the reports in their entirety, rather than only those parts relevant to testing the expert's credibility. See Levienn v. Metropolitan Transit Comm'n, 297 N.W.2d 272, 274-75 (Minn. 1980) (refusing to admit medical reports by means of cross-examination unless expert relied on reports in formulating opinion). Given these circumstances, the trial court did not abuse its discretion in limiting the Wrucks' cross-examination.

II.

Rysavy argues the trial court abused its discretion in failing to make detailed findings in support of its award of costs and disbursements. See Jonsson v. Ames Constr., Inc., 409 N.W.2d 560, 563 (Minn. App. 1987) (concluding "absent a specific finding that the costs were unreasonable, the court shall approve recovery of disbursements"), review denied (Minn. Sept. 30, 1987). In deciding whether the trial court abused its discretion in its award of costs and disbursements, we must determine whether the awarded costs were reasonable and necessary. Stinson v. Clark Equip. Co., 473 N.W.2d 333, 336 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). The record demonstrates the trial court: (1) performed a cost-by-cost evaluation of Rysavy's claimed costs and disbursements to determine its award; (2) possessed sufficient knowledge of the case through trial testimony and the trial record to issue a reasonable order; (3) supported its award with relevant law; and (4) distinguished Rysavy's claimed costs from those amassed in more complex cases. See Romain v. Pebble Creek Partners, 310 N.W.2d 118, 124 (Minn. 1981) (noting trial judge is in best position to judge what is necessary and what is only useful); Quade & Sons Refrigeration, Inc. v. Minnesota Mining & Mfg. Co., 510 N.W.2d 256, 261 (Minn. App. 1994) (holding trial court knew expert's qualifications through trial testimony and thus could determine reasonable fees), review denied (Minn. Mar. 15, 1994). Given these facts, the trial court did not abuse its discretion in its award of costs and disbursements. Because we affirm the trial court's denial of the Wrucks' motion for new trial, we need not reach Rysavy's argument on the special verdict form.

Affirmed.