Reinfeld v. Hutcheson

#25281, #25297-a-GAS

2010 SD 42

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

FALYN REINFELD, Plaintiff and Appellee,

v.

H.L. HUTCHESON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE WILLIAM J. SRSTKA, JR.
Judge

* * * *
CLINT L. SARGENT
WILLIAM E. BLEWETT of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota

and

NICHOLE CARPER
Sioux Falls, South Dakota Attorneys for plaintiff
and appellee.

JENNIFER L. WOLLMAN of
Woods, Fuller, Shultz
& Smith, PC
Sioux Falls, South Dakota Attorneys for defendant
and appellant.

* * * *
ARGUED MARCH 23, 2010

OPINION FILED 05/26/10
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SEVERSON, Justice

[¶1.] Falyn Reinfeld (Reinfeld) brought this lawsuit against H.L. Hutcheson

(Hutcheson) for negligence in connection with an automobile accident. The trial

court granted Reinfeld’s motion for a new trial on the basis that the jury’s award of

damages for past and future medical expenses, but not pain and suffering, was

inadequate and insufficient under the evidence presented at trial. Hutcheson

appeals. We affirm.

BACKGROUND

[¶2.] On December 9, 2004, Reinfeld and Hutcheson were involved in an

automobile accident at the intersection of Dakota Avenue and 26th Street in Sioux

Falls, South Dakota. Hutcheson stopped at a stop sign on Dakota Avenue, waited

to cross 26th Street, and proceeded south through the intersection when another

motorist waved him through. Hutcheson’s view of eastbound traffic on 26th Street

was obstructed by vehicles in the westbound lane. Reinfeld was traveling east on

26th Street. Hutcheson struck Reinfeld’s vehicle as Reinfeld entered the

intersection. Reinfeld gripped her steering wheel to brace for impact and hit her

head on the driver’s side window. Neither driver reported any injuries to the officer

who responded to the scene of the accident.

[¶3.] Reinfeld began experiencing headaches and pain in her neck and

shoulders within hours of the accident. Reinfeld saw Dr. Richard Plummer the day

after the accident. Dr. Plummer imposed work and lifting restrictions and

prescribed physical therapy and pain medications. An MRI conducted on January

7, 2005, revealed disk bulging at C5-C6 with no significant nerve impingement.

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Reinfeld’s condition failed to improve, and Dr. Plummer referred Reinfeld to Drs.

Jerry Blow and Steven Guse. Drs. Blow and Guse treated Reinfeld using pain

medications, physical therapy, trigger point injections, and neuromuscular electrical

stimulation. On March 30, 2005, Dr. Guse determined that Reinfeld had reached

maximum medical improvement. Dr. Guse assigned Reinfeld a 5% permanent

whole-person impairment rating and imposed a permanent overhead lifting

restriction of no more than 40 pounds. Despite having reached maximum medical

improvement, Reinfeld continued to receive medical treatments from Dr. Guse and

chiropractic care from Dr. Bruce Johnson.

[¶4.] In September 2007, Reinfeld brought this lawsuit against Hutcheson

for negligence in connection with the accident. Prior to trial, Hutcheson admitted

that he was negligent, but disputed the cause, nature, and extent of Reinfeld’s

injuries. The case proceeded to trial to determine causation and damages. By

special verdict, the jury found that Hutcheson’s negligence was the legal cause of

Reinfeld’s injuries and awarded Reinfeld $18,791.63 in past medical expenses and

$11,054.30 in future chiropractic care expenses. The jury awarded no damages for

past disability, future disability, past pain and suffering, future pain and suffering,

lost wages, or lost earning capacity. Reinfeld moved for a new trial on the basis

that the jury’s award of damages for past and future medical expenses, but not pain

and suffering, was inadequate and insufficient under the evidence presented at

trial. The trial court granted Reinfeld’s motion for a new trial. Hutcheson appeals.

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STANDARD OF REVIEW

[¶5.] “If the trial court finds an injustice has been done by the jury’s verdict,

the remedy lies in granting a new trial.” Waldner v. Berglund, 2008 SD 75, ¶11,

754 NW2d 832, 835 (citations omitted). “A motion for a new trial is addressed to

the sound discretion of the trial court; we will not overturn the court’s ruling unless

it appears affirmatively from the record [that] there has been an abuse of

discretion.” Morrison v. Mineral Palace Ltd. P’ship, 1998 SD 33, ¶7, 576 NW2d 869,

870 (citations omitted). “Additionally, this [C]ourt has consistently stated that

more deference is given to the trial court’s grant of a new trial than its denial of

one.” Id. (quoting Tunender v. Minnaert, 1997 SD 62, ¶9, 563 NW2d 849, 851).

“This is because orders allowing new trials ‘are not conclusive or decisive of any

rights or issues. They merely open the way for a reinvestigation of the entire case

upon its facts and merits.’” Id. (quoting Jensen v. Miller, 80 SD 384, 389, 124

NW2d 394, 396 (1963)).

ANALYSIS AND DECISION

Appeal #25281

[¶6.] 1. Whether the trial court abused its discretion by
granting Reinfeld’s motion for a new trial.

[¶7.] The trial court relied upon SDCL 15-6-59(a) in granting Reinfeld’s

motion for a new trial. That statute provides in relevant part:

A new trial may be granted to all or any of the parties and on all
or part of the issues for any of the following causes:
...
(5) Excessive or inadequate damages appearing to have been
given under the influence of passion or prejudice;

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(6) Insufficiency of the evidence to justify the verdict or other
decision or that is against law.

SDCL 15-6-59(a).

[¶8.] A new trial should not be granted merely because the trial court

believes the verdict is smaller than it should be. Stoltz v. Stonecypher, 336 NW2d

654, 657 (SD 1983). “The jury’s verdict should not be set aside except in those

extreme cases where it is the result of passion or prejudice or where the jury has

palpably mistaken the rules of law by which damages in a particular case are to be

measured.” Waldner, 2008 SD 75, ¶14, 754 NW2d at 836 (quoting Itzen v. Wilsey,

440 NW2d 312, 313-14 (SD 1989) (citing Stoltz, 336 NW2d at 657; SDCL 15-6-

59(a)(5))). If the jury’s verdict “can be explained with reference to the evidence,” it

should be affirmed. Id. (quoting Itzen, 400 NW2d at 314).

[¶9.] This Court first considered the validity of an award of damages for

medical expenses, but not pain and suffering, in Gould v. Mans, 82 SD 574, 152

NW2d 92 (1967). In that case, after hearing all the evidence, the jury returned a

general verdict for the precise amount of Gould’s alleged medical, hospital, physical

therapy, and transportation expenses. Gould moved for a new trial on the basis

that the jury’s verdict was inadequate and insufficient under the evidence presented

at trial because it awarded no damages for pain and suffering. The trial court

granted Gould’s motion for a new trial. This Court affirmed, holding that “[i]n view

of the evidence regarding the extent, nature, and causation of plaintiff’s injuries and

mental condition, the trial court could do no wrong in either granting or refusing a

new trial on the ground of inadequate damages.” Id. at 578, 152 NW2d at 94. “It

was a matter resting within [the trial judge’s] broad discretion[.]” Id.

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[¶10.] In Gould, this Court recognized that “the apparent weight of authority

[ ] regards a verdict in a personal injury action for the amount of medical expenses

to be inadequate and invalid without an additional award for pain and suffering.”

Id. at 576, 152 NW2d at 93 (citation omitted). “[A] jury cannot award recovery for

medical expenses and without reason deny recovery for the very injuries

necessitating the medical expenses.” Id. Yet, this Court was “not willing to adopt

an inflexible rule [that] would in effect render every verdict approximating a

plaintiff’s medical expenses inadequate and invalid as a matter of law.” Id. at 577.

This Court left open the possibility that such verdicts could be sustained on various

grounds. Id.

[¶11.] In Morrison v. Mineral Palace Ltd. P’ship, this Court again considered

the validity of an award of damages for medical expenses but not pain and

suffering. 1998 SD 33, 576 NW2d 869. By special verdict, the jury awarded

Morrison the exact amounts she claimed for medical expenses and lost wages, but

awarded nothing for pain and suffering or permanent impairment. In affirming the

trial court’s grant of a new trial, this Court held that “there [was] no construction

that [could] properly sustain the verdict” and that “[e]vidence of uncontested

damages was ignored by the jury.” Id. ¶12, 576 NW2d at 872. Because Morrison

received 100% of her claimed damages for medical expenses and lost earnings, this

Court rejected Mineral Palace’s argument that the jury reduced its award of

damages due to Morrison’s contributory negligence. Id. Had the jury done so, the

awards for pain and suffering and permanent impairment would have been

reduced, not completely eliminated. Id.

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[¶12.] Waldner v. Berglund is the most recent case to consider the issue.

2008 SD 75, 754 NW2d 832. Waldner moved for a new trial when the jury returned

a general verdict awarding her the precise amount of medical expenses she incurred

within days after the automobile accident. The trial court denied Waldner’s motion

for a new trial. This Court affirmed, holding that the case turned on witness

credibility. Id. ¶19, 754 NW2d at 836. “Waldner’s reasons for seeking treatment

following the accident were based in large part on her subjective descriptions of

pain.” Id. ¶15. The jury apparently felt that Waldner’s subsequent medical

treatments and any pain she experienced were not related to the accident, did not

exist, or were not necessary. Id. ¶13, 754 NW2d at 835. It is important to note that

the verdict in Waldner was general, and therefore, this Court could not say

conclusively what it represented. Id. ¶15 n*, 754 NW2d at 836 n* (citing Andreson

v. Black Hills Power & Light Co., 1997 SD 12, ¶14, 559 NW2d 886, 889-90).

[¶13.] Hutcheson argues that “[t]he issue of damages in a personal injury

action is peculiarly a question for the jury.” Itzen, 440 NW2d at 313 (citation

omitted). Hutcheson contends that because Reinfeld’s credibility was challenged

during cross-examination, the jury was free to disbelieve or reject her subjective

descriptions of pain. See Waldner, 2008 SD 75, ¶13, 754 NW2d at 835; Andreson,

1997 SD 12, ¶12, 559 NW2d at 889; Itzen, 440 NW2d at 314; Stoltz, 336 NW2d at

658. The jury was not bound to accept Reinfeld’s testimony as absolutely true if

Hutcheson weakened the evidence to some degree on cross-examination, but

introduced no evidence to rebut it. Kusser v. Feller, 453 NW2d 619, 621 (SD 1990)

(citing Grubbs v. Foremost Ins. Co., Grand Rapids, 82 SD 98, 102, 141 NW2d 777,

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779 (1966)). See Howe v. Farmers Coop. Creamery of Madison, 81 SD 207, 210, 132

NW2d 844, 845 (1965) (“The persuasiveness of evidence may be overcome even

though uncontroverted by direct evidence.”). Hutcheson thus concludes that the

jury was free to deny Reinfeld recovery for pain and suffering.

[¶14.] However, no evidence was presented at trial to contradict the fact that

Reinfeld’s injuries and medical treatments were painful. Each of Reinfeld’s treating

physicians, Drs. Plummer, Blow, Guse, and Johnson, found indications of neck and

back pain. Reinfeld also underwent several trigger point injections in which muscle

relaxers were injected into abnormally tense muscles. Dr. Guse testified that

trigger point injections are a “very painful procedure.” Even Hutcheson’s experts

testified that Reinfeld experienced some pain and suffering as a result of the

accident. Hutcheson presented the testimony of Dr. David Hoversten, who

conducted an independent medical examination of Reinfeld on October 4, 2005, at

the request of Reinfeld’s former employer, Express Communications. Dr. Hoversten

testified:

[C]ertainly Falyn has pain and troubles in her neck. She has
stiffness, she has pain in her neck, and she has some headaches.
And I believe they are there. . . . I cannot say she doesn’t have
pain. I cannot say that she doesn’t have troubles.

Consistent with each of Reinfeld’s treating physicians, Dr. Hoversten believed that

Reinfeld’s condition was chronic and that she would experience pain throughout her

life.

[¶15.] Furthermore, the jury awarded Reinfeld damages for medical expenses

incurred in the treatment of pain. Dr. Plummer referred Reinfeld to Dr. Guse in

February 2005. After nearly a month of treatment with Dr. Guse, Reinfeld was still

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experiencing regular headaches and fairly constant pain. On March 30, 2005, Dr.

Guse determined that Reinfeld had reached maximum medical improvement.

According to Dr. Johnson, maximum medical improvement means that “the patient

has stabilized and reached a plateau in her healing process.” Medical treatment is

no longer intended to improve the patient’s physical condition, but is meant only to

alleviate pain. Reinfeld continued treatment with Drs. Guse and Johnson upon

reaching maximum medical improvement, and the jury awarded Reinfeld the

medical expenses related to that treatment, including the expenses of future

chiropractic care. The award of these past and future medical expenses is

inconsistent with no award of damages for pain and suffering. Had the jury

disbelieved or rejected Reinfeld’s subjective descriptions of pain, it would not have

awarded medical expenses incurred in an effort to treat that pain.

[¶16.] The form of the verdict is also relevant to the resolution of this case.

When the jury awards damages by general verdict, “[t]here is no concrete evidence

demonstrating [that] pain and suffering were not considered by the jury[.]”

Andreson, 1997 SD 12, ¶11, 559 NW2d at 889. See Waldner, 2008 SD 75, ¶15 n*,

754 NW2d at 836 n*; Morrison, 1998 SD 33, ¶¶10-12, 576 NW2d at 871-72;

Freeman v. Berg, 482 NW2d 32, 35 (SD 1992). “[M]ere speculation remains as to

the categorization of damages.” Andreson, 1997 SD 12, ¶9, 559 NW2d at 888. The

jury may have rejected or reduced awards for lost wages, lost earning capacity, and

permanent disability, and yet still made an award for pain and suffering. There is

no need for speculation, however, when the jury awards damages by special verdict

as in this case. Morrison, 1998 SD 33, ¶11, 576 NW2d at 871.

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[¶17.] Hutcheson argues the jury’s verdict was consistent with the verdict

form and must therefore stand. The verdict form explained: “Defendant disputes

the nature and extent of Plaintiff’s injuries. You must determine what damages, if

any, the Plaintiff shall recover.” (Emphasis added.) Paragraph 10 of the verdict

form provided: “Consider the nature, extent, duration, the pain and suffering,

mental anguish and loss of capacity of the enjoyment of life she experienced, if any,

up to the present.” (Emphasis added.) Paragraph 11 provided for the award of

future pain and suffering and contained language nearly identical to that in

Paragraph 10. By use of the phrase “if any,” Hutcheson contends that the verdict

form permitted the jury to award damages for medical expenses, but not pain and

suffering.

[¶18.] The trial court concluded that “[t]here is no construction that can

properly sustain the verdict” in this case. See Morrison, 1998 SD 33, ¶12, 576

NW2d at 872. An award of damages for medical expenses, but not pain and

suffering, may be sustained if there is evidence that the plaintiff had a pre-existing

injury or if the plaintiff’s injuries were not related to the defendant’s negligence.

See Waldner, 2008 SD 75, ¶13, 754 NW2d at 835; Morrison, 1998 SD 33, ¶¶14-15;

576 NW2d at 872-73; Itzen, 440 NW2d at 314; Gould, 82 SD at 577-78, 152 NW2d at

93-94. Hutcheson therefore elicited testimony from Dr. Johnson that Reinfeld

received chiropractic treatment six times between 2000 and 2004 for low back pain,

neck pain, and headaches. Nevertheless, the jury specifically found that

Hutcheson’s negligence was the legal cause of Reinfeld’s injuries and awarded

Reinfeld the exact amounts she claimed for past and future medical expenses. The

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jury explicitly rejected the notion that Reinfeld’s injuries were not related to the

accident. Had the jury found that Reinfeld’s injuries were not related to the

accident, the awards of damages for medical expenses and pain and suffering both

would have been reduced. The award for pain and suffering would not have been

completely eliminated.

[¶19.] Not only did the jury disregard evidence of uncontested damages, but

the jury’s verdict was insufficient under the evidence presented at trial. On the

facts of this case, the jury could not conclude that Hutcheson’s negligence was the

legal cause of Reinfeld’s injuries, award Reinfeld the precise amount of damages she

claimed for past and future medical expenses, including those expenses incurred in

an effort to treat her pain, and yet deny recovery for the pain and suffering related

to those injuries. Ultimately, the trial court did not abuse its discretion when it

granted Reinfeld’s motion for a new trial.

[¶20.] 2. Whether the trial court abused its discretion by
entering an order for a new trial on all damages claims.

[¶21.] Hutcheson argues that the second trial on damages should be limited

to Reinfeld’s claim of damages for pain and suffering. SDCL 15-6-59(a) provides

that “[a] new trial may be granted to all or any of the parties and on all or part of

the issues[.]” A partial new trial “may not properly be resorted to unless it clearly

appears that the issue to be retried is so distinct and separable from the others that

a trial of it alone may be had without injustice.” Gasoline Prod. Co., Inc. v.

Champlin Ref. Co., 283 US 494, 500, 51 SCt 513, 515, 75 LEd 1188 (1931) (citations

omitted). See Morrison, 1998 SD 33, ¶17, 576 NW2d at 873 (quoting Maybee v.

Jacobs Motor Co., Inc., 519 NW2d 341, 345 (SD 1994) (citation omitted)). If

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multiple issues are so interwoven that they cannot be submitted to the jury

independently of one another without confusion and uncertainty, a partial new trial

would amount to a denial of a fair trial, and there should be a new trial on all the

issues. Id. (quoting Maybee, 519 NW2d at 345 (citing Gasoline Prod. Co., 283 US at

500, 51 SCt at 515)).

[¶22.] Hutcheson argues that because the jury has rendered a lawful and

consistent verdict on Reinfeld’s claims of damages for past and future disability, lost

wages, and lost earning capacity, a second trial can properly be limited to Reinfeld’s

claim of damages for pain and suffering. Hutcheson cites Byre v. Wieczorek,

wherein this Court instructed:

The guiding principal [to be applied by a trial court disposing of
a motion for a new trial] is that although a verdict ought not to
stand which is tainted with illegality, there ought to be but one
fair trial upon any issue, and the parties ought not to be
compelled to try anew a question once disposed of by a decision
against which no illegality can be shown.

88 SD 185, 200, 217 NW2d 151, 159 (1974) (quoting 58 AmJur2d, New Trial, § 25).

Hutcheson contends that a new trial on all claims of damages would give Reinfeld

“a second bite at the apple.”

[¶23.] The trial court’s decision to limit the issues to be considered in the new

trial will not be overturned “unless it appears affirmatively from the record [that]

there has been an abuse of discretion.” Morrison, 1998 SD 33, ¶¶7, 18, 576 NW2d

at 870, 873 (citations omitted) (holding that the trial court abused its discretion in

limiting the grant of a new trial). Reinfeld’s claims of damages for past and future

disability, lost wages, and lost earning capacity are so intertwined with her claim of

damages for pain and suffering “that a fair, new trial is not possible without a trial

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on all the issues.” See id. ¶18, 576 NW2d at 873. See also Pexa v. Clark, 85 SD 37,

176 NW2d 497 (1970) (granting a new trial to plaintiff on both causes of action

because the jury’s award of damages for medical expenses and pain and suffering,

but not wrongful death, was inconsistent and reflected a compromise). The 5%

permanent whole-person impairment rating and permanent work restrictions Dr.

Guse assigned Reinfeld were based at least in part on the pain Reinfeld was

experiencing as a result of the injuries she sustained in the accident. The trial

court therefore did not abuse its discretion by entering an order for a new trial on

all damages claims.

[¶24.] 3. Whether the trial court abused its discretion by
allowing a vocational rehabilitation consultant to testify
to Reinfeld’s total lost earning capacity.

[¶25.] Hutcheson argues that the trial court should not have allowed a

vocational rehabilitation consultant to testify to Reinfeld’s total lost earning

capacity. Reinfeld earned a degree in satellite communications from Mitchell

Technical Institute. In December 2004, Reinfeld was working at Express

Communications as an installer of satellite dishes. Reinfeld’s job was physically

demanding, requiring that she carry a 40 pound tool belt and 35 to 40 pound

satellite dishes up a ladder to customers’ roofs. Reinfeld claimed she could no

longer obtain work in the satellite communications field as a result of the injuries

she sustained in the accident and was therefore entitled to monetary damages for

lost wages and lost earning capacity. In support of her claim of damages for lost

earning capacity, Reinfeld presented the testimony of Rick Ostrander, a vocational

rehabilitation consultant. Hutcheson objected to Ostrander’s calculation of

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Reinfeld’s total lost earning capacity, arguing that only an economic expert could

project the value of her lost earning capacity into the future. The trial court

overruled Hutcheson’s objection and allowed the testimony at trial.

[¶26.] SDCL 19-15-2 (Rule 702) sets forth the general requirements for the

admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in
the form of an opinion or otherwise.

[¶27.] “Trial courts enjoy broad discretion in ruling on the admissibility of

expert opinions.” Garland v. Rossknecht, 2001 SD 42, ¶9, 624 NW2d 700, 702

(citations omitted). “[W]hen dealing with expert opinion, the court must fulfill a

gatekeeping function, ensuring that the [expert] opinion meets the prerequisites of

relevance and reliability before admission.” Id. ¶10 (citing Daubert v. Merrell Dow

Pharm., Inc., 509 US 579, 597, 113 SCt 2786, 2799, 125 LEd2d 469, 485 (1993))

(additional citations omitted). “[A] trial judge must ensure that an expert’s

testimony rests on both ‘a reliable foundation and is relevant to the task at hand.’”

Rogen v. Monson, 2000 SD 51, ¶13, 609 NW2d 456, 459 (quoting State v. Hofer, 512

NW2d 482, 484 (SD 1994) (quoting Daubert, 509 US at 597, 113 SCt at 2799)). “A

fundamental baseline for reliability is that experts are limited to offering opinions

within their expertise.” Garland, 2001 SD 42, ¶11, 624 NW2d at 703 (citation

omitted).

[¶28.] Ostrander calculated Reinfeld’s lost earning capacity by comparing her

earning capacity in the satellite communications field prior to the accident to her

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present earning capacity. Using data from the United States Department of Labor,

the South Dakota Department of Labor, and Mitchell Technical Institute,

Ostrander calculated the average salary in the satellite communications field.

Ostrander then compared that salary to the average salary of occupations for which

Reinfeld was reasonably qualified with her injuries. Ostrander determined that the

injuries Reinfeld sustained in the accident substantially diminished her earning

capacity. He determined that Reinfeld’s average annualized loss of earning capacity

was $16,785 and that her expected remaining work life was approximately 39 years.

Ostrander multiplied those values and calculated Reinfeld’s total lost earning

capacity to be between $654,000 and $666,000. Ostrander continued his testimony

by suggesting that an award of $98,500 for training in another field would be a

more conservative measure of damages.

[¶29.] Hutcheson argues that a vocational rehabilitation consultant is not

qualified to project the value of lost earning capacity into the future. The verdict

form specifically instructed the jury to reduce any award of future damages to

present value and provided a calculations table to do so. Ostrander calculated

Reinfeld’s total lost earning capacity, but the trial court left the task of assigning

the present cash value to that award of damages to the jury. Ostrander offered

opinions within his expertise, and the trial court did not err by allowing him to

testify to Reinfeld’s total lost earning capacity. We caution, however, that

testimony of this nature from a vocational rehabilitation consultant is not

necessarily admissible in all cases. As with other expert opinions, a trial court must

exercise its “gatekeeping function, ensuring that the opinion meets the

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prerequisites of relevance and reliability before admission.” See id. ¶10, 624 NW2d

at 702 (citing Daubert, 509 US at 597, 113 SCt at 2799).

Appeal #25297

[¶30.] By notice of review, Reinfeld presents one issue for this Court’s

consideration.

[¶31.] 1. Whether the trial court abused its discretion by
declining to instruct the jury that the terms
“impairment” and “disability” are synonymous.

[¶32.] During deliberations, the jury posed a question to the trial court,

asking whether the terms “impairment” and “disability” are synonymous. While

several physicians testified at trial that Reinfeld suffered permanent “impairment,”

the verdict form instructed the jury to award the reasonable value of any

“disability” Reinfeld suffered in the past or would suffer in the future. Reinfeld

asked the trial court to instruct the jury that the terms “disability” and

“impairment” are synonymous. The trial court refused to so instruct the jury.

Because we affirm the trial court’s grant of a new trial, we need not address

whether the trial court’s failure to instruct the jury on this issue was error.

[¶33.] Affirmed.

[¶34.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and SABERS, Retired Justice, concur.

[¶35.] SABERS, Retired Justice, sitting for MEIERHENRY, Justice,

disqualified.

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