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Benning v. Moore9/6/2005
ce 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 " wice in 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, " 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.
Affirmed.
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