author: PAGE, Justice.

text:
    GROUP HEALTH PLAN, INC., et al., Plaintiffs, Medica, a subsidiary of Allina Health System, Plaintiff, v. PHILIP MORRIS INCORPORATED, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, British-American Tobacco Company Limited, et al., Lorillard Tobacco Company, Liggett Group, Inc., United States Tobacco Company, Hill & Knowlton, Inc., The Council for Tobacco Research—U.S.A., Inc., The Tobacco Institute, Inc., Smokeless Tobacco Council, Inc., Defendants.
    No. C6-00-377.
    Supreme Court of Minnesota.
    Jan. 11, 2001.

      Lawrence T. Hofmann, Richard M. Hag-strom, Michell K. Enright, Tricia M. Whitehill, Zelle, Hofmann, Voelbel & Gette, L.L.P., Minneapolis, for Plaintiffs Group Health Plan, Inc., and HealthPart-ners, Inc.
    Lewis A. Remele, Jr., Charles E. Lund-berg, Gregory P. Bulinski, Bassford, Lock-hart, Truesdell & Briggs, P.A., Minneapolis, for Plaintiff Medica.
    Peter W. Sipkins, Dorsey & Whitney, L.L.P., Minneapolis, for Defendants.
   OPINION

PAGE, Justice.

Before the court are two consolidated federal court actions by appellants, three nonprofit Minnesota health maintenance organizations, Group Health Plan, Inc., HealthPartners, Inc., and Medica (collectively “the HMOs”), against several cigarette manufacturers and affiliated organizations, respondents Philip Morris Incorporated, et al. (collectively “the tobacco companies”). The HMOs seek to recover costs for increased health care sendees they provided to their members as a result of tobacco-related illnesses. The United States District Court for the District of Minnesota certified two questions to this court. First, must a private plaintiff be a purchaser of the defendant’s products in order to properly plead a claim under Minnesota’s misrepresentation in sales statutes, Minn. Stat. §§ 325F.67, 325F.69, subd. 1, 325D.13 (2000), and MinmStat. § 8.31, subd. 3a (2000)? Second, must a private plaintiff plead and prove reliance on the defendant’s statements or conduct in order to be eligible for relief in the form of damages under the aforementioned statutes?

Based on the broad language of the four statutes and the legislative intent that the statutes create remedies broader than those available in an action for common law fraud, we conclude that the HMOs are not required to be purchasers of the defendants’ products in order to properly plead a claim under these statutes. For the same reasons, we conclude that it is not necessary for plaintiffs to plead reliance by individual purchasers of defendants’ products in order to properly plead a claim under these statutes. It will be necessary, however, for plaintiffs to prove a causal nexus between the conduct alleged to violate Minn.Stat. §§ 325F.67, 325F.69, subd. 1, and 325D.13 and the damages claimed.

The HMOs brought these actions against the tobacco companies seeking to recover costs of increased health-care services incurred as a result of their members’ tobacco-related illnesses. The HMOs contend that they were directly and indirectly injured by the tobacco companies’ conspiracy to mislead the public and the health-care industry regarding the effects of tobacco use. They allege that they were directly injured by the tobacco companies’ deceptive statements urging them not to engage in tobacco education programs that could have prevented or decreased the occurrence of tobacco-related illnesses among their members. The HMOs allege that they were indirectly injured by the tobacco companies’ deceptive conduct because of the costs for increased medical services incurred by their members that the HMOs were contractually obligated to assume.

The HMOs’ first amended complaint asserted nine counts, alleging violations of Minnesota’s antitrust statutes and Minnesota’s statutes prohibiting misrepresentation in sales, as well as conspiracy, breach of a special duty, and unjust enrichment. The federal district court dismissed the statutory misrepresentation in sales counts without prejudice for failure to plead the necessary elements of the claim. The breach of a special-duty claim was dismissed with prejudice.

Second amended complaints were filed re-alleging violations of the antitrust statutes and the misrepresentation in sales statutes, conspiracy, unjust enrichment, and two new counts under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). The tobacco companies moved to dismiss the misrepresentation in sales, unjust enrichment, and RICO counts under Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief could be granted, and under Fed.R.Civ.P. 12(b)(7) and 19 for failure to join necessary parties. The HMOs moved to certify to this court the question of whether they can properly plead a claim under Minnesota’s misrepresentation in sales statutes when they are not purchasers of the tobacco companies’ products.

The federal district court dismissed the HMOs’ unjust-enrichment claim with prejudice because the HMOs have an adequate remedy at law in the form of a subrogation action and because their members did not possess the necessary indicia of membership to qualify the HMOs for associational standing. The court dismissed the HMOs’ RICO claims with prejudice because their RICO theory was highly speculative and their injuries were derivative and too remote to satisfy the requirements for a RICO claim. The court granted the motion to certify the “purchaser” question to this court and added an additional question about the need to plead and prove reliance. The court reserved judgment on the motion to dismiss the misrepresentation in sales counts until this court responds to the certified questions.

The certification order presents the following two questions, which we have modified slightly pursuant to our authority under Minn.Stat. § 480.065, subd. 4 (2000):(1) must plaintiffs be purchasers of defendants’ products in order to properly plead a claim under MinmStat. §§ 325F.67, 325F.69, subd. 1, 325D.13, and 8.31, subd. 3a; and (2) must these private plaintiffs plead and prove individual purchaser reliance on the defendants’ statements or conduct in order to be eligible for relief in the form of damages under MinmStat. §§ 325F.67, 325F.69, subd. 1, 325D.13, and 8.31, subd. 3a?

I.

The certified questions call upon us to determine the scope of statutory claims for relief under the specified Minnesota statutes, first, as to who may bring a claim and, second, as to the nature of the pleading and proof that is necessary to such a claim. Because the claims at issue are creations of statute, our function, as in all statutory interpretation, is to discern as best we can the legislative intent. See Minn.Stat. § 645.16 (2000); Current Technology Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn.1995). Our starting point is the language of the statutes in question. See, e.g., State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996).

Three substantive statutes define the prohibited conduct, MinmStat. §§ 325F.67, 325F.69, subd. 1, and 325D.13. Section 325F.67 provides:

Any person, firm, corporation, or association who, with intent to sell or in anywise dispose of merchandise * ⅜ ⅜ makes, publishes, disseminates, circulates, or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, label, price tag, circular, pamphlet, program, or letter, or over any radio or television station, or in any other way, an advertisement of any sort regarding merchandise * * ⅜ which advertisement contains any material assertion, representation, or statement of fact which is untrue, deceptive, or misleading, shall, whether or not pecuniary or other specific damage to any person occurs as a direct result thereof, be guilty of a misdemeanor, and any such act is declared to be a public nuisance and may be enjoined as such.
The duty of a strict observance and enforcement of this law and prosecution for any violation thereof is hereby expressly imposed upon the attorney general, and it shall be the duty of the county attorney of any county wherein a violation of this section shall have occurred, upon complaint being made, to prosecute any person violating any of the provisions of this section.

Section 325F.69, subdivision 1, provides:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.

The third substantive statute, section 325D.13, states: “No person shall, in connection with the sale of merchandise, knowingly misrepresent, directly or indirectly, the true quality, ingredients or origin of such merchandise.”

The fourth statute at issue provides remedies that may be pursued by private parties for violation of these substantive statutes. This remedial statute is Minn. Stat. § 8.31, subd. 3a (2000). Section 8.31 provides the attorney general authority to investigate and enforce the statutes designated in subdivision 1 that regulate “unfair, discriminatory, and other unlawful practices in business, commerce, or trade,” including the statutes at issue here. Minn. Stat. § 8.31, subd. 1. Subdivision 3a of section 8.31 creates private remedies for violations of the statutes enumerated in subdivision 1:

In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees, and receive other equitable relief as determined by the court. The court may, as appropriate, enter a consent judgment or decree without the finding of illegality. In any action brought by the attorney general pursuant to this section, the court may award any of the remedies allowable under this subdivision.

II.

We first address the question of whether the plaintiffs must be purchasers of the defendants’ products in order to properly plead a claim under section 8.31, subdivision 3a, for alleged violations of the misrepresentation in sales statutes.

The HMOs contend that this issue was resolved in State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490 (Minn.1996) (Humphrey), where we held that Blue Cross Blue Shield of Minnesota (Blue Cross), a nonprofit health care organization similar in many respects to the HMOs, had standing to bring substantially identical claims against the tobacco companies under the same statutes, even though there was no allegation that Blue Cross was a purchaser of the defendants’ products. The HMOs argue that stare decisis requires a result here similar to the one reached in Humphrey. Beyond relying on Humphrey, the HMOs assert that Minn. Stat. § 8.31, subd. 3a broadly authorizes “any person” who has been injured by a violation of the misrepresentation in sales statutes to bring an action for damages without any requirement that the plaintiff be a purchaser.

The tobacco companies counter that, although Humphrey addressed standing, the specific issue presented here was neither argued nor decided in that case, and therefore Humphrey does not control the result in this case. They contend that the statutes at issue are consumer protection statutes and the remedies are therefore intended only for consumers — that is, purchasers and users of the product that is the subject of the alleged misrepresentation.

Because it could foreclose the need to address additional arguments, we turn initially to the HMOs’ contention that Humphrey has already answered the first certified question, or at least controls the result. There is no dispute that the legal claims brought under the misrepresentation in sales statutes by the HMOs are the same as those alleged by Blue Cross. Further, the tobacco companies acknowledged at oral argument that, for the purposes of these certified questions, the HMOs are identical to Blue Cross.

In Humphrey, among other claims, Blue Cross alleged that the tobacco companies violated the following statutes: Unfair Discrimination and Competition, Minn.Stat. §§ 325D.03-.08, 325D.69 (1994); Unlawful Trade Practices, Minn.Stat. §§ 325D.09-.16 (2000); False Statement in Advertisement, Minn.Stat. § 325F.67 (2000); and Deceptive Trade Practices, Minn.Stat. §§ 325D.43-.48 (2000). 551 N.W.2d at 496. Blue Cross sought damages for the increased cost of health care incurred as a result of the illegal actions of the defendants. The issue in Humphrey that is relevant here was whether Blue Cross could state a private claim for damages under section 8.31, subdivision 3a, for violations of the substantive statutes.

The tobacco companies made essentially two arguments in Humphrey. First, they argued that Blue Cross could not assert a direct claim against the defendants because Blue Cross was not directly injured by the conduct of the defendants. See id. at 494-95. Rather, Blue Cross’ damages were indirect — increased health-care costs arising from tobacco-related illnesses suffered by its subscribers as a result of alleged deception by the defendants. The tobacco companies contended that Blue Cross’ injury was too remote from the alleged misconduct and it could therefore only assert a subrogation claim. See id. The second argument raised by the tobacco companies was that Blue Cross suffered no injury because it passed through any increased costs to its subscribers and, without injury, Blue Cross had no standing to bring its claims. See id. at 492.

In addressing Blue Cross’ tort claims, we held that the injury to Blue Cross was too remote from the alleged misconduct for it to assert a direct claim, and neither its unusual status as something more than a typical health insurer nor its claim that the tobacco companies assumed a “special duty” could overcome this barrier to standing. See id. at 495.

In addressing the statutory claims raised by Blue Cross, we pointed out the breadth of the legislative grants of standing for antitrust, consumer protection, and deceptive trade practices claims. See id. at 496. We explained that, “[i]n the face of these plain statutory grants of standing, the tobacco companies look to what is commonly called the ‘pass through defense.’ ” Id. We noted that the pass-through defense was abolished by the legislature with the broad grants of standing conferred in the statutes at issue and held that Blue Cross therefore had standing to sue under the misrepresentation in sales statutes and the antitrust statute. See id.

The HMOs argue that, because it was apparent that Blue Cross was not a purchaser of the defendants’ goods in Humphrey, implicit in our ruling that Blue Cross had standing for its statutory claims is a determination that status as a purchaser of the goods is not necessary to state a claim under those statutes. The tobacco companies argue that the issue of purchaser status was neither argued nor decided in Humphrey.

Although our statements in Humphrey about Blue Cross’ standing to bring its statutory claims are broad, it is clear from the briefs in that case that the precise issue presented here was not expressly raised in Humphrey. Moreover, although that issue is arguably subsumed in the argument about direct versus remote injury, we did not address the issue in our opinion. In the absence of any indication that the issue presented here was raised, considered, and addressed in Humphrey, we decline to rely on stare decisis for resolution of this important issue, and we must analyze the issue on its merits.

Since the claims at issue are based on statute, we look to the language of the statutes to answer the question whether the plaintiffs must be purchasers to state a claim. Minnesota Statutes §§ 325F.67, 325F.69, subdivision 1, and 325D.13, define the conduct that constitutes a violation of law; they say nothing about who may bring a private action for damages resulting from a violation. As we recognized in Humphrey, it is Minn.Stat. § 8.31, subd. 3a, that authorizes private actions for violation of these substantive statutes. In describing who may bring an action, subdivision 3a does so in the broadest terms, stating that “any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages.” Id. (emphasis added). Neither the private remedies statute nor the substantive statutes contains any language restricting those who may sue to purchasers or consumers.

Thus, the plain and unambiguous language of the governing statute allows “any person” to bring a private action for redress of violations of the misrepresentation in sales statutes. Specifically, Minn.Stat. § 8.31, subd.3a, does not limit potential plaintiffs to purchasers of the defendant’s goods.

The tobacco companies urge us to read a limitation into the broad language of the private remedies statute and restrict the “any person” language to those who the substantive statutes were designed to protect — that is, purchasers and users of the defendant’s goods. They assert that the broad language used in subdivision 3a does not evince an intent actually to allow “any person” to bring an action to enforce the misrepresentation in sales statutes, but rather was necessary because the private remedies statute addresses a broader array of substantive statutes, not all of which are limited to consumer protection.

The tobacco companies argue that, in Church of the Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1 (Minn.1992), overruled in part by Ly v. Nystrom, 615 N.W.2d 302, 314 n. 25 (2000), this court implicitly acknowledged that the universe of those who may bring an action under subdivision 3a to enforce the misrepresentation in sales laws is limited to those intended to be protected by the substantive laws. They derive this implicit limitation from the court’s discussion of the argument made by the defendants in WatPro that private actions under subdivision 3a are limited to individual consumers, excluding sophisticated purchasers like the plaintiff church. As support for their conclusion that private actions are available only to consumers, or those whom the statutes are intended to protect, the tobacco companies rely on the court’s framing of the issue in WatPro as whether the Consumer Fraud Act, Minn. Stat. § 325F.69 (the substantive statute), extends to all consumers and its analysis of whether commercial consumers are excluded. But it does not appear that in WatPro any argument was made or addressed by this court that noneonsumers as a class are not covered by the “any person” language of subdivision 3a. Just as we are disinclined to reach a conclusion about the resolution of this issue from Humphrey, where the precise issue was not raised but arguably is implicit in our holding, we are even less inclined to rely on a conclusion that is said to be implicit not in the holding, but merely in the nature of our discussion in WatPro.

The tobacco companies argue that the limiting construction they proffer is further supported by the concurring and dissenting opinion of Justice Simonett in Wat-Pro. Referring to section 8.31, subdivision 3a, Justice Simonett wrote: “Read literally, ‘any person’ means just that. But read in context, having in mind the purpose of the statute, ‘any person’ means any consumer and excludes ‘merchants.’ The court’s opinion properly so holds * * * .” WatPro, 491 N.W.2d at 9 (Simonett, J., concurring in part and dissenting in part).

We are not persuaded that Justice Simo-nett’s concurrence/dissent warrants the conclusion the tobacco companies would have us reach. First, we note that, rather than holding that merchants are not in-

cluded in “any person,” the majority only concluded that the plaintiff church was not a “merchant” as defined in the U.C.C., and therefore did not decide whether the U.C.C. provides the exclusive remedy for a claim by a merchant to the exclusion of the Consumer Fraud Act. See WatPro, 491 N.W.2d at 7-8. Second, although Justice Simonett, joined by two other members of the court, stated his view that the phrase “any person” in subdivision 3a carries less than its broad literal meaning, it bears mention that the consumer versus noncon-sumer issue argued here was not before the court in WatPro. Finally, and perhaps most significantly, we cannot overlook the oft-repeated rule of statutory interpretation that, “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2000); see also State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996). In light of these factors, we are not inclined to adopt a limited meaning for the unambiguous phrase “any person” in subdivision 3a based on the suggested narrower context of an ancillary statute, section 325F.69.

Our unwillingness to limit the plain meaning conveyed by the language of subdivision 3a based on the presumed intent of the misrepresentation in sales statutes is fortified by the fact that the naturally broad interpretation of “any person” is consistent with the overall tenor of the statutes at issue to maximize the tools available to stop the prohibited conduct. Although, as discussed above, we do not find Humphrey dispositive, it is instructive as to the scope of the statutes. In particular, we explained that these statutes authorize “a private cause of action for any party injured directly or indirectly by a violation of the statute. These provisions reflect a clear legislative policy encouraging aggressive prosecution of statutory violations.” Humphrey, 551 N.W.2d at 495 (emphasis added). We noted further that “[tjhese statutes are generally very broadly construed to enhance consumer protection.” Id. at 496.

The legislative history of the private remedies statute also emphasizes this expansion of enforcement opportunities. In a Labor and Commerce Committee meeting, Senator Winston Borden, author of the bill that included section 8.31, subdivision 3a, stated that its purpose was to “allow the individual person to bring a civil action for the damages he sustained.” Hearing on S.F. 819, S. Comm. Labor and Commerce, 68th Minn. Leg., March 8,1973 (audiotape). Referring to false advertising and consumer fraud, Senator Borden noted that, “if a[n] individual could bring an action, he can do some of the prosecuting, he can do some of the enforcing, he can provide some of the protection for himself and others that the Attorney General’s Office * * * can not do today.” Id. Like the wording of the statute, the description of its goal is broad: to enable individuals injured by the prohibited conduct to sue for damages and in doing so complement the limited enforcement resources of the attorney general. There is no indication that this goal is restricted to purchasers, and it is apparent that it can be effectuated as well by enforcement actions brought by nonpurchasers.

Our adherence to the naturally broad meaning of the statutory authorization for any person to sue is also consistent with the reading other courts have given similarly broad statutes. For example, in Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 448 N.E.2d 357 (1983), the Supreme Judicial Court of Massachusetts addressed the reach of a consumer protection statute with similar language. The question was whether the plaintiffs in a medical malpractice action could bring a separate action against the insurer of the defendant medical provider under the Massachusetts consumer protection statute, Mass. Gen. Laws ch. 93A, § 9. The court held that the malpractice plaintiffs could sue the insurer under section 9 on the basis that the insurer’s settlement practices violated a statute governing unfair or deceptive practices in the business of insurance. See Van Dyke, 448 N.E.2d at 360. The court pointed out that section 9 had been amended in 1979 to authorize suit by any person injured by violation of the specified substantive statutes. The statute as amended read:

[a]ny person, other than a person entitled to bring action under [G.L. c. 93A, § 11], who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two * ⅜ * or any person whose rights are affected by another person violating the provisions of [G.L. c. 176D, § 3(9)] may bring an action * * ⅜.

Van Dyke, 448 N.E.2d at 360 (quoting Mass. Stat.1979, c. 406, § 1, which amended Mass. Gen. Laws ch. 93A, § 9(1)) (emphasis added) (brackets in original). The court explained that the amended language broadened the statute to include anyone injured by the unlawful conduct:

This 1979 amendment substantially broadened the class of persons who could maintain actions under G.L. c. 93A, § 9. The plaintiffs, therefore, are entitled to relief under G.L. c. 93A, § 9, if they were injured by any method, act, or practice of St. Paul that was unlawful under G.L. c. 93A, § 2, or if their rights were affected by St. Paul’s violation of G.L. c. 176D, § 3(9).

Id. Since the victims of medical malpractice were allowed to sue the medical provider’s insurer, the “any person” language in the Massachusetts statute was obviously not limited to purchasers of the defendant’s goods or services. See Sidney Binder, Inc. v. Jewelers Mut. Ins. Co., Inc., 28 Mass.App.Ct. 459, 552 N.E.2d 568, 572 (1990) (insurance company can sue under consumer fraud act for fraudulent representations by insured).

The United States Supreme Court has addressed similar broad language in the private remedies provision of the federal antitrust laws. Section 4 of the Clayton Act provides that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” may sue for treble damages. 15 U.S.C. § 15 (1994) (emphasis added). The Court explained that this broad authorization to sue reflects congressional goals of expanded enforcement and deterrence parallel to those in Minnesota’s misrepresentation in sales laws:

[T]he lack of restrictive language reflects Congress’ “expansive remedial purpose” in enacting § 4: Congress sought to create a private enforcement mechanism that would deter violators and deprive them of the fruits of their illegal actions, and would provide ample compensation to the victims of antitrust violations. As we have recognized, “[t]he statute does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers * * ⅜ .”
Consistent with the congressional purpose, we have refused to engraft artificial limitations on the § 4 remedy.

Blue Shield of Virginia v. McCready, 457 U.S. at 470, 472, 102 S.Ct. 2540 (1982) (citations and footnote omitted).

We have held that it is not the role of this court to extend the reach of consumer protection beyond what was intended by the legislature. See Boubelik v. Liberty State Bank, 553 N.W.2d 393, 403 (Minn.1996). But neither is it our role to narrow the reach where the legislature has spoken in unequivocally broad terms. In Minn.Stat. § 8.31, subd. 3a, the legislature authorized “any person” injured by a violation of the misrepresentation in sales laws to bring an action for damages. We conclude that, as long as the plaintiff alleges an injury by conduct that violates one or more of the substantive statutes, it is not necessary under subdivision 3a to plead that it is a purchaser of the defendant’s products. We therefore answer the first certified question in the negative. The HMOs need not be actual purchasers of the tobacco companies’ products in order to properly plead claims under Minn.Stat. §§ 325F.67, 325F.69, subd. 1, 325D.13, and 8.31, subd. 3a.

III.

The second certified question is whether a plaintiff must plead and prove reliance on the defendant’s alleged misrepresentations in order to recover damages under Minn.Stat. § 8.31, subd. 3a, for violation of Minn.Stat. §§ 325F.67, 325F.69, subd. 1, or 325D.13. Once again, we first look to the language of the statutes.

As described above, section 8.31, subdivision 3a, authorizes “any person injured by a violation of any of the laws referred to in subdivision l[to] bring a civil action and recover damages * * * and receive other equitable relief as determined by the court.” Subdivision 3a defines the remedies available and requires only that a plaintiff be injured by a violation of one of the substantive statutes to recover damages. We must then look to the substantive statutes to determine what constitutes a violation.

Each of the misrepresentation in sales statutes at issue defines a violation primarily in terms of the conduct of the defendant that is prohibited. The limited references in the statutes to the victim/plaintiff indicate that reliance is not an element of a violation when seeking injunctive relief. Minnesota Statutes § 325F.69, subdivision 1, defines the conduct proscribed essentially as any misrepresentation made with the intent that others rely on it in connection with the sale of any merchandise. Significantly, that conduct is prohibited “whether or not any person has in fact been misled, deceived, or damaged thereby.” Id. The person could not have relied on the misconduct if they were not misled or deceived. The defendant must intend that its conduct be relied on, but reliance by the victim is not necessary for the violation to occur. Minnesota Statutes § 325F.67 defines the prohibited conduct in terms of untrue or misleading statements in advertisements for the sale of merchandise. The statute goes on to provide that such conduct is a misdemeanor and a public nuisance “whether or not pecuniary or other specific damage to any person occurs as a direct result.” Id. Finally, Minn.Stat. § 325D.13 prohibits any person from misrepresenting the quality, ingredients, or origin of merchandise in connection with the sale of merchandise. Neither section 325F.67 nor section 325D.13 mentions reliance as necessary for a violation.

The language of the statutes therefore establishes that, to state a claim that any of the substantive statutes has been violated, the plaintiff need only plead that the defendant engaged in conduct prohibited by the statutes and that the plaintiff was damaged thereby. Allegations that the plaintiff relied on the defendant’s conduct are not required to plead a violation. Allegations of reliance are therefore not necessary to state a claim under section 8.31, subdivision 3a, for damages resulting from a violation.

As we stated in Humphrey, “[t]he legislature may, by statute, expand the connection between conduct and injury necessary to permit suit.” 551 N.W.2d at 495. The legislature has done so in these misrepresentation in sales statutes. Specifically, elimination of reliance as a distinct element of a statutory misrepresentation claim is consistent with the legislature’s intent to broaden the availability of redress.

In passing consumer fraud statutes, the legislature clearly intended to make it easier to sue for consumer fraud than it had been to sue for fraud at common law. The legislature’s intent is evidenced by the elimination of elements of common law fraud, such as proof of damages or reliance on misrepresentations.

State by Humphrey v. Alpine Air Prods., Inc., 500 N.W.2d 788, 790 (Minn.1993) (emphasis in original). Imposing a requirement to plead common law reliance in a statutory claim intended to alleviate the burdens of a common law fraud action would be contrary to the legislature’s intent.

The tobacco companies argue that, to the extent the legislature eliminated elements of common law fraud from a statutory misrepresentation action, it did so only for claims seeking injunctive relief, not damages. They point out that the express language eliminating the element of reliance is found only in one of the substantive statutes and that statute authorizes only injunctive relief. The tobacco companies argue that, because the statute that authorizes actions for damages, Minn.Stat. § 8.31, subd. 3a, contains no similar express exemption from the reliance requirement, there is therefore no such exemption intended for a damages action. Several courts have embraced this distinction between claims for injunctive relief and claims for damages. See, e.g., Garay v. Beers, No. C5-97-2268, 1998 WL 373082, *3 (Minn.App.1998) (unpublished opinion) (holding that plaintiff seeking pecuniary damages under Consumer Fraud Act must prove reasonable reliance on defendant’s conduct). But see Sutton v. Viking Oldsmobile Nissan, Inc., 611 N.W.2d 60, 65 (Minn.App.2000) (stating reliance not required for damages action under Consumer Fraud Act).

But subdivision 3a authorizes a damages action for a violation of the substantive statutes. As explained, those statutes define what constitutes a violation, and they do so in a manner that indicates that reliance is not a separate element of a violation. We will not read an element into a statutory claim that the legislature has not articulated and, to the contrary, has indicated should be eliminated.

Based on the statutory language, as well as the intent of the legislature to make statutory misrepresentation in sales actions less burdensome than common law fraud actions, we conclude that it is not necessary to plead individual consumer reliance on the defendant’s wrongful conduct to state a claim for damages under subdivision 3a and the substantive misrepresentation in sales statutes. Therefore, we answer the first part of the second certified question in the negative.

The second certified question takes the inquiry a step further, however. It asks whether a plaintiff must prove reliance in order to recover damages under Minn. Stat. § 8.31, subd. 3a, for violations of Minn.Stat. §§ 325F.67, 325F.69, subd. 1, and 325D.13. It is this aspect of the question that appears to be the real point of contention between the parties.

The tobacco companies argue that, even if reliance is not retained as an independent element of an action for damages under subdivision 3a, the HMOs must nevertheless prove reliance by their members on the alleged wrongful conduct in order to prove their damages were caused by defendants’ conduct. The tobacco companies contend that this causation element is reflected in the statutory requirement that to recover the person must be “injured by a violation.” Minn.Stat. § 8.31, subd. 3a. (emphasis added). In other words, the tobacco companies assert that the HMOs cannot prove causation without demonstrating reliance on the alleged illegal conduct, and without causation there can be no award of compensatory damages.

It appears that the HMOs do not disagree with this argument in general. Although they may disagree about the details, they concede that they must prove a causal nexus between the allegedly wrongful conduct of the defendants and their damages.

Although we conclude that the legislature has eliminated the requirement of pleading and proving traditional common law reliance as an element of a statutory misrepresentation in sales action, the parties are correct that causation remains an element of such a claim. Section 8.31, subdivision 3a, authorizes a damages action only by someone injured by a violation. This language denotes a causal relationship between the alleged injury and the wrongful conduct that violates the statute. Causation is, therefore, a necessary element of an action to recover damages under section 8.31, subdivision 3a. Moreover, where, as here, the plaintiffs allege that their damages were caused by deceptive, misleading, or fraudulent statements or conduct in violation of the misrepresentation in sales laws, as a practical matter it is not possible that the damages could be caused by a violation without reliance on the statements or conduct alleged to violate the statutes. Therefore, in a case such as this, it will be necessary to prove reliance on those statements or conduct to satisfy the causation requirement. Indeed, while the HMOs might disagree with the use of the word reliance, they appear to concede that, as part of their necessary proof of a causal nexus between their damages and the defendants’ wrongful conduct, they must demonstrate that defendants’ conduct had some impact on their members’ use of tobacco products that caused their damages.

The true disagreement between the parties centers on how this causation element may be proven. The HMOs believe they can satisfy the requirement with circumstantial proof, such as studies and expert testimony, that will establish the general impact of the defendants’ wrongful conduct on the sale and consumption of tobacco products. The tobacco companies contend that the issue of how causation must be proven is premature and beyond the scope of the certified question, although they acknowledged in oral argument that, when that issue is reached, their position will be that causation can only be proven by evidence of reliance by individual consumers of their products. They assert that this court need only hold that reliance is a necessary part of the proof of causation in these circumstances.

The certified questions come to us in the posture of a Rule 12 motion to dismiss for failure to state a claim. The limited focus of such a motion, whether in state or federal court, is the adequacy of the pleadings. See, e.g., Northern States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963); Conwed Corp. v. Employers Reinsurance Corp., 816 F.Supp. 1360 (D.Minn.1993). It would be inappropriate in the context of a Rule 12 motion to dismiss to delineate in detail what proof is necessary for plaintiffs to recover on these particular claims. Nevertheless, it is appropriate and consistent with the certification process to articulate in general terms the standard of proof to provide some guidance to the federal court as it addresses this issue.

While we conclude that causation is a necessary element in a damages claim under the misrepresentation in sales statutes, in light of the reality that the root cause of the HMOs’ claimed damages is their members’ smoking-related injuries allegedly caused by the misconduct of the tobacco companies and the statutory authorization to “any person injured by a violation” to bring an action, we do not interpret the language of subdivision 3a to require a strict showing of direct causation, as would be required at common law. Rather, as the court of appeals has expressed it, the statute requires that there must be some “legal nexus” between the injury and the defendants’ wrongful conduct. See LeSage v. Norwest Bank Calhoun-Isles, N.A., 409 N.W.2d 536, 539 (Minn.App.1987). Cf. In re Control Data Corp. Securities Litigation (Abbey v. Control Data Corp.), 933 F.2d 616, 619 (8thCir.1991) (“some causal nexus” required between conduct of defendant and increased market price that damaged plaintiffs in fraud on the market case), cert. denied, 502 U.S. 967, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991). This reading is consistent with the intent of the legislature to provide relaxed requirements for pleading and proof in such actions.

More to the point, in cases such as this, where the plaintiffs’ damages are alleged to be caused by a lengthy course of prohibited conduct that affected a large number of consumers, the showing of reliance that must be made to prove a causal nexus need not include direct evidence of rebanee by individual consumers of defendants’ products. Rather, the causal nexus and its rebanee component may be established by other direct or circumstantial evidence that the district court determines is relevant and probative as to the relationship between the claimed damages and the alleged prohibited conduct. Further, in the context of the certified question, we reject the view expressed in two federal court decisions that our misrepresentation in sales laws require proof of individual reliance in ab actions seeking damages. See Thompson v. American Tobacco Co., 189 F.R.D. 544, 553 (D.Minn.1999); Parkhill v. Minnesota Mut. Life Ins. Co., 188 F.R.D. 332, 345 (D.Minn.1999). To impose a requirement of proof of individual reliance in the guise of causation would reinstate the strict common law reliance standard that we have concluded the legislature meant to lower for these statutory actions. Moreover, we are confident that the legislature would not have authorized private damages actions such as this, where the alleged misrepresentations are claimed to have affected a large number of consumers, while retaining a strict burden of proof that depends on evidence of individual consumer reliance.

We decline to answer in any greater detail based solely on the pleadings what manner of proof will be necessary to establish the necessary connection between the HMOs’ claimed damages and defendants’ conduct. We must leave it to the federal district court to assess this issue in light of not just the allegations, but the evidence offered.

To reiterate, in order to prove their claims for damages under the misrepresentation in sales statutes, the HMOs must establish a causal nexus between their alleged damages and the conduct of the defendants alleged to violate the statutes. This causal nexus has a component of reliance that, in the type of case before the court, may be proven by means other than direct evidence of reliance by individual consumers. Given the procedural posture of this case, we decline to explicate further what method or manner of proof is necessary to satisfy the causal nexus requirement in general or, in this case, in particular. We necessarily must leave resolution of this issue to the federal district court where it can be considered in the concrete context of the evidence actually offered by the parties.

Certified questions answered.

GILBERT, J„ and LANCASTER, J., took no part in the consideration or decision of this case.

      . The respondents are: Philip Morris Incorporated, RJ. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, British-American Tobacco Company Limited, Lorillard Tobacco Company, Liggett Group, Inc., Hill & Knowlton, Inc., The Council for Tobacco Research — U.S.A., Inc., and The Tobacco Institute. United States Tobacco Company and the Smokeless Tobacco Council, Inc., were dismissed from the suit by stipulated order of the Federal District Court.

      .Interestingly, the parties have reversed the positions taken regarding the scope of what was decided in Humphrey. Although the plaintiffs here argue for broad impact of that decision, in Humphrey the plaintiff Blue Cross asserted that the tobacco companies’ argument that the plaintiffs' injury was too remote did not extend to the statutory claims. Similarly, although the tobacco companies now argue that the ruling in Humphrey was narrow, in that case they argued that their "too remote” argument applied to all of the plaintiffs’ claims.

      . The only exception is in section 325F.67, which imposes a duty to enforce on the attorney general and county attorney.

      . In addition to section 8.31, subdivision 3a, Minn.Stat. § 325D.15 (2000) also authorizes "any person” to sue for damages for violation of section 325D.13. Section 325D.15 provides: "Any person damaged * * * by reason of a violation of [section 325D.13] shall be entitled to sue for * ⅜ * the amount of the actual damages, if any.”

      . In WatPro, our holding was that the transaction at issue was covered by the Consumer Fraud Act and was not precluded from coverage either because the plaintiff was a merchant whose transactions were exclusively covered by the U.C.C. or because the Consumer Fraud Act protects only individual consumers. See WatPro, 491 N.W.2d at 8.

      . The Court then discussed two limitations on the section 4 remedy it has recognized in order to prevent unacceptable risk of duplicate recoveries. See McCready, 457 U.S. at 473-74, 102 S.Ct. 2540 (explaining that par-ens patriae and indirect purchaser actions aré not permitted under section 4).

      . Although we decide that the HMOs' allegations are sufficient to state a claim under subdivision 3 a and the enumerated substantive statutes even though they are not consumers of defendants’ products, we do not hold that the scope of those enforcement statutes is entirely without limit. Cf. Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000) (holding that a private action under subdivision 3a to enforce the Consumer Fraud Act is only available if it will benefit the public). There may exist some nonconsumers whose injuries are loo attenuated to permit recovery under the same statutes. But that case is not before us today.

      . Group Health and HealthPartners allege that their injuries arose "on account of” defendants’ wrongful conduct. See Second Amended Complaint of Group Health, paras. 386, 392, 404. Medica alleges that it suffered injuries "[a]s a direct and proximate result” of defendants’ wrongful conduct. See Second Amended Complaint of Medica, paras. 238, 243, 253. Under the notice pleading standards of Rule 12, these allegations are sufficient with respect to causation.

      . Cf. LensCrafters, Inc. v. Vision World, Inc., 943 F.Supp. 1481, 1489 (D.Minn.1996) (holding that actual consumer confusion in a Lan-ham Act claim may be proven through use of consumer testimony or circumstantial evidence such as consumer surveys, consumer reaction tests, or market research).

      . We emphasize that we are addressing here only the requirements for the misrepresentation in sales actions before us on these certified questions. The type of proof required to satisfy the causation-based reliance factor may be different in a case of different scope or based on different causes of action.

      . The federal court may obtain guidance from decisions concerning the nature of proof required to establish a violation of the Lan-ham Act, 15 U.S.C. § 1125(a), a federal statute that, like the state laws at issue here, provides a private remedy for false or deceptive advertising. The federal courts have adopted a variety of approaches to this issue in Lanham Act, cases that in our view reflect appropriate sensitivity to the remedial goals of the statute that are paralleled in the statutes at issue here. See LensCrafters, Inc. v. Vision World, Inc., 943 F.Supp. 1481, 1489-90 (D.Minn.1996) (holding where only injunc-tive relief is sought, the plaintiff need only prove a likelihood of confusion among consumers of the product; where the plaintiff seeks money damages, actual confusion among consumers must be proven); PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 271 (2d Cir.1987) (stating actual consumer confusion may be proven through use of consumer testimony or circumstantial evidence such as consumer surveys or consumer reaction tests); LensCrafters, 943 F.Supp. at 1489 (same); U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1041 (9th Cir.1986) (explaining that expenditure by a competitor of substantial funds in effort to deceive consumers and influence their purchasing decisions justifies a presumption of actual confusion, and the burden shifts to the defendant to rebut that presumption); Resource Developers, Inc. v. The Statue of Liberty-Ellis Island Found., Inc., 926 F.2d 134, 140 (2d Cir.1991) (stating that, where evidence shows the defendant deliberately engaged in deceptive commercial practice, the burden shifts to the defendant to demonstrate the absence of consumer confusion); see also PPX Enters., 818 F.2d at 272 (holding that egregious deception eliminates need for plaintiff to prove actual confusion even for damages).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Garrett T. GEIGER, an Attorney at Law of the State of Minnesota.
    No. CX-00-1175.
    Supreme Court of Minnesota.
    Jan. 25, 2001.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility petitions this court to suspend indefinitely attorney Garrett T. Geiger from the practice of law in this state. The Director requests Geiger’s suspension because he violated several professional conduct rules by: neglecting client matters; charging excessive fees and using improper fee arrangements; bringing a frivolous claim; providing incompetent representation; and failing to properly supervise subordinate attorneys. Because Geiger failed to answer the Director’s petition for disciplinary action, the allegations in the petition are deemed admitted. Therefore, the only question before this court is the proper discipline.

Geiger was admitted to practice law in Minnesota on August 20, 1992, and currently lives in Arlington Heights, Illinois. His license to practice law has been suspended since April 1, 1998, for nonpayment of licensure fees. Since his admission to practice law, Geiger has received two admonitions from the Director. In January 1995, Geiger was admonished for failing to promptly serve an amended complaint pursuant to a court order in violation of Minnesota Rules of Professional Conduct 1.3 and 3.2. In December 1996, the Director issued a second admonition for failure to adequately clarify the basis and rate of his fee in violation of Minn. R. Prof. Conduct 1.5(b), and for failure to have a written contingent fee agreement in violation of 1.5(c).

In the petition for disciplinary action, the Director accused Geiger of violating the Minnesota Rules of Professional Conduct in connection with five client matters. The Director stated that the cumulative effect of those violations is prejudicial to the administration of justice and therefore violates Minn. R. Prof. Conduct 8.4(d). In his brief, the Director also accuses Geiger of noncooperation with the disciplinary investigation. Because the petition did not charge Geiger with noncooperation, however, any such allegations are not deemed admitted. The Director explains that Geiger initially cooperated with the disciplinary investigation, but later failed to do so. Specifically, the Director complains that Geiger failed to appear for the originally scheduled prehearing meeting. Geiger then contacted the Director and arranged to appear at a second prehearing meeting by telephone. However, Geiger also failed to appear for the rescheduled meeting.

Because Geiger failed to respond to the petition for disciplinary action, the following acts of misconduct are deemed admitted pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility.

Palmer Matter

In April 1995, Nancy Palmer retained Robert Brenner & Associates, Geiger’s firm, to represent her in an employment dispute with First Bank Systems. In March 1996, Palmer’s case was assigned to Geiger. The federal district court granted First Bank’s motion for summary judgment on June 3, 1997. On June 11, 1997, Geiger wrote to Palmer to inform her of the court’s decision and to explain her options: appeal the decision; attempt to negotiate a settlement; do nothing. Geiger also informed Palmer that her right to appeal expired on July 3, 1997. Palmer directed Geiger to attempt to negotiate a settlement and Geiger agreed to do so.

On June 26, 1997, Geiger called the office of James Selmer, First Bank’s attorney, and spoke with Selmer’s paralegal. Geiger explained that he intended to appeal on Palmer’s behalf, but would consider a settlement. The paralegal conveyed this information to Selmer, and Selmer told the paralegal to find out what settlement Geiger proposed.

The paralegal called Geiger on June 26, 1997, but had to leave a message. Geiger did not respond until June 30, 1997, when he spoke with Selmer and confirmed that Palmer would appeal, but asked if First Bank Systems would consider a settlement of $10,000. Selmer stated that he would relay the settlement demand to his client and indicated that he would contact Geiger when he heard from First Bank.

Geiger did not speak with Selmer again before July 3, did not tell Palmer that the appeal deadline passed, and did not file an appeal. On July 9,1997, Geiger moved the court, without informing Palmer, to extend his time for filing an appeal. In the motion, he explained that his failure to timely file was due to an illness that, since mid-May 1997, made him unable to concentrate and required him to take medication that frequently incapacitated him. Geiger did not identify the illness or the medication.

On July 31, 1997, the court denied Geiger’s motion, finding that Geiger’s illness did not amount to an extraordinary circumstance of excusable neglect and noting that Geiger had been able to draft other legal documents during his illness. On August 30, 1997, Geiger wrote to Palmer about the missed appeal and unsuccessful motion to extend the filing deadline.

The Director concluded that Geiger violated Minn. R. Prof. Conduct 1.3 and 1.4 when he failed to diligently pursue the matter and failed to keep Palmer informed. The Director also stated that Geiger violated Minn. R. Prof. Conduct 1.16 by failing to withdraw from the case when he was allegedly impaired.

Mahazu Matter

Ibrahim Mahazu’s employer terminated his employment in May 1993. With the help of an attorney, Mahazu filed a charge with the Equal Employment Opportunity Commission (EEOC) in February 1995. In March 1996, the EEOC sent Mahazu a right-to-sue letter and ended its involvement in the claim.

In April 1996, Mahazu entered into an agreement with Geiger’s law firm that was entitled “STANDARD JOINT ATTORNEY FEE AGREEMENT (Contingency Non-Personal Injury).” It required Ma-hazu to pay a $2,500 nonrefundable retainer fee, none of which would be applied to the costs of the suit. Additionally, the agreement called for a division of fees between lawyers who were not in the same firm, but did not require each lawyer to assume joint responsibility.

On June 18, 1996, Geiger filed a summons and complaint in Mahazu’s action. In January 1997, a settlement conference led to a $5,500 settlement. Approximately three weeks after the settlement conference, Mahazu signed a “Settlement Sheet” that addressed distribution of the settlement proceeds. Geiger would retain his one-third fee, $1,833, and $700 that remained unpaid from the $2,500 retainer. In the end, Geiger’s total fee was more than 78 percent of the $5,500 recovery.

The Director concluded that this fee and the fee arrangement were unreasonable and violated Minn. R. Prof. Conduct 1.5. Haken Matters

Carol Thomas Haken was involved in disputes with the Minnesota Department of Human Services (MDHS) and Joseph Vogel. Haken and her husband retained Geiger to represent them in both disputes.

1. Vogel Matter

In summer 1996, Geiger served a summons and complaint in the Vogel matter. On August 30, 1996, Geiger received discovery demands from Vogel’s attorney. The responses were due on October 3, 1996, but Geiger did not forward the materials to Haken until September 25, 1996. As a result, Haken did not have sufficient time to prepare a reply. Geiger called Vogel’s attorney, Jacqueline Sparks, to request an extension of time to respond to the discovery demands. Sparks gave Geiger until October 17,1996.

On October 11, 1996, Haken faxed information to Geiger for the discovery responses. Geiger failed to provide the responses to Sparks on October 17, 1996. On October 29, Sparks wrote to Geiger to remind him of his promise to provide the responses by October 17 and to demand a response by November 1, 1996. Geiger never replied to that demand.

On December 2, 1996, Sparks demanded that Geiger produce responses by December 16 or she would file a motion to compel. On December 15, Geiger sent unsigned, partial responses. On December 28, Sparks wrote to Geiger to acknowledge receipt of the discovery responses and noted that many of them were insufficient. She asked Geiger to contact her to discuss the problems with the responses, but Geiger did not respond. On December 30, Sparks served and filed a motion to compel discovery. A hearing date was set for January 31,1997.

On January 29, 1997, Geiger wrote to Sparks concerning her objections to the discovery responses, but did not provide additional information. Nonetheless, Sparks' agreed to continue the motion hearing. On January 30, Sparks wrote to Geiger concerning the ongoing discovery, but Geiger did not respond. On February 11, 1997, Sparks wrote to Geiger and he finally contacted her to ask if the hearing that was scheduled for the next day could be rescheduled for March 5, 1997. Sparks agreed. After a series of communications in which Geiger continued to explain that he was trying to get information to allow him to respond to discovery, Sparks once again agreed to reschedule the hearing to March 26,1997. However, Geiger failed to produce the responsive discovery documents by March 26.

On March 26, the parties appeared in court for the motion to compel. The court ordered the production of tax documents and amended the scheduling order. On April 3, Geiger produced some, but not all, of the ordered documents without offering an explanation for his failure to comply.

A new attorney representing Vogel continued to attempt to get various documents from Geiger, but Geiger still did not produce the documents. Vogel’s attorney filed a second motion to compel, and the court again ordered Geiger to produce documents. On August 13, 1997, the day before a scheduled mediation session, Haken faxed Geiger a letter requesting that he cancel the mediation. On the same day, Geiger withdrew from representation.

2. MDHS Matter

In April 1996, Haken retained Geiger to represent Sincerely, Inc., a small company run by Haken and her husband, in the MDHS matter. On November 7, 1996, Haken wrote to Geiger questioning his failure to respond to her phone calls and asking for information about her case. On January 28, 1997, Haken again wrote to Geiger and demanded a date by which the summons and complaint would be ready. On January 31, 1997, Haken wrote to explain that she had received a notice from MDHS.

On February 3, 1997, Geiger wrote to Haken to say that he was forwarding a copy of the complaint. Geiger then served MDHS with the complaint. MDHS served Geiger with requests for production and with interrogatories, to which Geiger never provided proper responses. On June 12, 1997, Assistant Attorney General Mark Traynor prepared a motion for MDHS based on Sincerely, Inc.’s failure to provide full and complete answers to MDHS’s interrogatories and production requests. On June 20, 1997, Geiger wrote to Traynor to apologize for not readying the promised discovery responses. Geiger attributed his failure, in part, to health problems. On June 20, Geiger also wrote to Haken about his mishandling of the case. He acknowledged that her concerns were legitimate and offered to withdraw. In August 1997, Haken retained a new firm to handle the Vogel and MDHS matters, and on September 17, 1997, Geiger filed his notice of withdrawal with the Office of Administrative Hearings.

The Director concluded that Geiger’s actions in both the Vogel and MDHS matters violated Minn. R. Prof. Conduct 1.3 and 1.4 because he failed to diligently pursue the matters and failed to reasonably communicate with his clients.

Smith Matter

On December 12, 1993, Merlon Smith retained Geiger to represent him in a claim against Dr. Leonard Goldman. Under the terms of Geiger’s contingent fee agreement, Smith paid a $2,500 nonrefundable retainer. The agreement did not inform Smith that the funds would not be held in a trust account or that he might not receive a refund of the funds if he chose to terminate his attorney-client relationship with Geiger. It did not explain whether the expenses would be deducted before or after the contingent fee was calculated. The Director concluded that the fee agreement violated Minn. R. Prof. Conduct 1.5 and Lawyers Professional Responsibility Board Opinion No. 15.

Geiger prepared a complaint in which he alleged that Dr. Goldman negligently failed to exercise the skill and learning required in the practice of medicine. Dr. Goldman moved for summary judgment, alleging that Smith was never Dr. Goldman’s patient. On September 14, 1994, Geiger wrote to Smith about the motion for summary judgment and explained that, after researching the matter, Geiger learned that a doctor-patient relationship was a prerequisite for a medical malpractice claim. On September 23, the district court granted the motion for summary judgment and noted that Smith had no legal cause of action for medical malpractice. The Director determined that Geiger’s conduct demonstrated a lack of competence in violation of Minn. R.. Prof. Conduct 1.1, and that Geiger brought a frivolous claim in violation of Minn. R. Prof. Conduct 3.1 ,

Nicholas Matter

Robert Nicholas retained Geiger’s firm, Robert Brenner & Associates, to represent him in a discrimination matter against Northwest Racquet Swim & Health Clubs (Northwest) and John Clay. Newly-admitted attorney, George Veith, was assigned to the case. On November 14, 1995, Robert Brenner was placed on a disciplinary suspension and Geiger took over operation of the firm, which became known as the Sharp Law Firm.

In spring 1996, Veith had not commenced a suit against Clay even though he had had the case for two years. In May 1996, Veith left the Sharp Law Firm. Brenner, now working in a nonattorney position, assigned the matter to Trent Jonas, another recently-admitted attorney.

In June 1996, Nicholas retained the Sharp Law Firm to represent him in an action against Northwest. He had until August 5, 1996, to serve Northwest. On August 3, 1996, Jonas addressed a summons and complaint to “Northwest Racquet Swim & Health Clubs, Inc.” at its corporate office, but the letter did not identify anyone authorized to accept service and it did not include an acknowledgement of receipt of summons and complaint. Northwest received the letter on August 7.

On August 20, 1996, Jonas tried again to serve Northwest by mail. He directed the summons and complaint to two individuals who he believed were authorized to accept service and he included an acknowledgement of receipt of summons and complaint. The acknowledgement of receipt was never signed or returned. On October 8, 1996, Jonas made a third attempt to serve Northwest by having his brother personally serve a copy of the summons and complaint. On October 23, 1996, Northwest answered and asserted that it had not been properly served and that the statute of limitations barred Nicholas’s claim. About this time, Jonas ended his association with the Sharp Law Firm and Geiger temporarily took over the case.

In spring 1997, Geiger assigned Nicholas’s claim against Clay to Stephen Hance, another recently-admitted attorney. In August 1997, Nicholas contacted Geiger to express concern over the handling of his case. On August 12, Geiger responded that he had serious doubts about Nicholas’s chances of success and that he, Geiger, was leaving the practice soon and Nicholas’s case would have to be transferred anyway.

On October 3, 1997, Geiger wrote to Nicholas and explained that his case represented “too much risk for the Sharp Law Firm.” Geiger explained that the contingent fee agreement therefore permitted him to withdraw from representation. On November 3, 1997, Geiger filed a petition of withdrawal and the court granted his request.

The Director concluded that Geiger’s conduct reflected a .lack of diligence in violation of Minn. R. Prof. Conduct 1.3, and that Geiger failed to properly supervise subordinate attorneys in violation of Minn. R. Prof. Conduct 5.1.

Based on Geiger’s misconduct in the Palmer, Mahazu, Haken, Smith, and Nicolas matters, the Director asks that Geiger be indefinitely suspended from the practice of law. The Director argues that because of the nature and cumulative effect of Geiger’s violations — particularly the repeated instances of client neglect — indefinite suspension is appropriate. The Director suggests that indefinite suspension is appropriate because it would require Geiger to participate in a Rule 18 procedure before he could be reinstated, and this would give the court a chance to consider his ability to practice law before reinstating him.

Because we deem the allegations in the Director’s petition admitted, the only issue before the court is the proper discipline for Geiger. “The purpose of attorney discipline is not to punish the attorney, but rather to guard the administration of justice and to protect the courts, the legal profession, and the public.” In re Merlin, 572 N.W.2d 737, 741 (Minn.1998) (internal quotation marks omitted). In determining the proper discipline, this court considers: (1) the nature of the misconduct; (2) the cumulative weight of the violations; (3) the harm to the public; and (4) the harm to the legal profession. See id. The court also considers aggravating or mitigating circumstances. See In re Graham, 609 N.W.2d 894, 896 (Minn.2000). An attorney’s disciplinary history is another relevant consideration. See id. When reviewing the disciplinary history, we expect to see “a renewed commitment to comprehensive ethical and professional behavior after a disciplinary proceeding, and [wjhere leniency has been shown once, we are reluctant to do so again.” Id. (internal quotation marks omitted). Even where no single act of misconduct standing alone warrants severe public discipline, the cumulative weight and severity of multiple disciplinary rule violations may compel such discipline. See In re Jones, 383 N.W.2d 303, 307 (Minn.1986). Although the court decides each case individually on its facts, other discipline cases provide guidance in determining the proper sanction. See Graham, 609 N.W.2d at 896.

Geiger’s actions in the Palmer, Smith, Nicholas, and Haken matters demonstrate a pattern of neglecting client matters. He failed to diligently pursue claims, failed to pursue an appeal, continued his representation despite what was by his own account a debilitating illness, and failed to adequately communicate with his clients. In addition to these acts of neglect, he failed to provide competent representation to a client. This court typically imposes indefinite suspension in cases involving a continued pattern of client neglect when no evidence of mitigating circumstances is present. See Merlin, 572 N.W.2d at 741 (“Indefinite suspension is typical in cases involving continued or repeated neglect of client matters without evidence of mitigating circumstances.”); In re Levenstein, 438 N.W.2d 665, 668 (Minn.1989) (“Cases involving continued or repeated neglect of client matters have traditionally warranted severe sanctions. Absent mitigating circumstances, typically we have ordered indefinite suspension.”). Even in cases where an attorney is involved in only one instance of client neglect, when that neglect is combined with other violations we have often suspended or disbarred the attorney. See In re Thedens, 557 N.W.2d 344, 349 (Minn.1997). In In re Muenchrath, we ordered indefinite suspension when an attorney neglected two client matters, failed to communicate with clients, misrepresented to clients that he performed work on their files that he never performed, and failed to cooperate with the disciplinary investigation. 588 N.W.2d 497, 501-02 (1999). In another case, we ordered indefinite suspension when an attorney failed to diligently pursue client matters, failed to return client phone calls, and failed to cooperate in the disciplinary investigation. See In re Kinnunen, 502 N.W.2d 773, 774-75 (Minn.1993). In reaching our decision to impose indefinite suspension, we emphasized Kin-nunen’s “failure to pursue his clients’ claims and to return their phone calls.” Id. at 774.

In addition to Geiger’s acts of client neglect, he charged an unreasonable fee to Mahazu and used a fee agreement in the Smith matter that violated Minn. R. Prof. Conduct 1.5. Geiger also has used an improper fee arrangement in the past. Charging excessive or illegal fees “provide[s] a basis for imposing discipline, depending on the egregiousness of that conduct, ranging from public reprimand to suspension, or, when charging excessive fees was one of several acts of misconduct, to disbarment.” In re Simmonds, 415 N.W.2d 673, 677 (Minn.1987) (citations omitted).

Geiger’s history of client neglect and fee violations, taken together with the instances in which he failed to properly supervise subordinate attorneys in violation of Rule 5.1 and brought a frivolous claim in violation of Rule 3.1, warrants indefinite suspension. The violations before us are aggravated by Geiger’s past admonitions for essentially the same type of behavior for which he is now being disciplined. See In re Dillon, 371 N.W.2d 548, 552 (Minn.1985) (“Not only did [respondent] borrow money from [his client] without disclosing conflicting interest and secure the loan with his contingent fee, he attempted to charge an illegal and excessive fee, misrepresenting his entitlement to it, the more serious because he had received a prior warning * * * with respect to the charging of excessive fees.” (emphasis added)). Far from demonstrating a “renewed commitment to comprehensive ethical and professional behavior,” Geiger has displayed a stubborn unwillingness to correct or improve his behavior. Graham, 609 N.W.2d at 896.

Geiger’s misconduct has resulted in harm to the public and to the profession. Conduct like Geiger’s subjects the profession to severe scrutiny and criticism and contributes to the public’s general mistrust of attorneys. Cf. In re Franke, 345 N.W.2d 224, 229 (Minn.1984) (“There is a less tangible, yet no less real, harm to the public-at-large that occurs when an attorney’s conduct is the subject of negative media attention.”). Moreover, Geiger directly harmed the profession when he brought a nonmeritorious suit, caused numerous delays for opposing counsel, the court, and his clients, and forced opposing counsel to file motions to compel discovery, which in turn required that a district court order Geiger to produce documents. See Franke, 345 N.W.2d at 229 (recognizing harm to the profession when “the record is replete with instances in which the * * * courts * * * had to order respondent to submit the required legal documents. Delays were common.”). Similarly, Geiger’s conduct directly harmed his clients. For instance, Palmer lost her right to appeal her case and Geiger made only weak and unsuccessful efforts to negotiate a settlement on her behalf. Smith paid for incompetent representation. Additionally, the many delays caused by Geiger likely increased his fees.

For all these reasons, we order that:

1. Respondent Geiger be suspended indefinitely from the practice of law.

2. If respondent seeks reinstatement, he must file a petition for reinstatement pursuant to Rule 18, Rules on Lawyers Professional Responsibility.

3. Respondent comply with the requirements of Rule 26, Rules on Lawyers Professional Responsibility.

4. Respondent pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

Indefinite suspension ordered.

      . Minnesota Rules of Professional Conduct 1.3 states: "A lawyer shall act with reasonable diligence and promptness in representing a client.”

      . Rule 3.2 provides: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

      . Rule 1.5(b) states: "When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.”

      . Rule 1.5(c) states in part:
      A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

      . Rule 8.4(d) prohibits a lawyer from "en-gag[ing] in conduct that is prejudicial to the administration of justice.”

      . Rule 13(b) of the Rules on Lawyers Professional Responsibility provides: “If the respondent fails to file an answer within the time provided or any extension of time this Court may grant, the petition's allegations shall be deemed admitted and this Court may proceed under Rule 15.” In July 2000, this Court entered an Order pursuant to Rule 13(b) stating that, because Geiger failed to file an answer to the Director’s petition, the allegations in the petition were deemed admitted. See In re Garrett T. Geiger, CX-00-1175, slip op. at 1 (Minn. July 27, 2000).

      . Rule 1.4 provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

      . Rule 1.16, subd. (a), states in part:
      (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

      (2) the lawyer’s physical or mental condition materially impairs the lawyer's ability to represent the client * ⅜ *.

      . Rule 1.5, parts (a) and (e), state in part:
      (a) A lawyer's fee shall be reasonable.

      (e) A division of fee between lawyers who are not in the same firm may be made only if:
      (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
      (2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and
      (3) the total fee is reasonable.

      .For our purposes, the key portion of Lawyers Professional Responsibility Board Opinion No. 15 states:
      All availability or nonrefundable retainer agreements must include a final paragraph immediately above the client signature line which informs the client that: (1) the funds will not be held in a trust account; and (2) the client may not receive a refund of the fees if the client later chooses not to hire the lawyer or chooses to terminate the lawyer’s services.

      . Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

      . Rule 3.1 states, in part: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”

      . Rule 5.1(b) stales: “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”

      . Rule 18 of the Rules on Lawyers Professional Responsibility provides, in part:
      (a) Petition for reinstatement. A petition for reinstatement to practice law shall be served upon the Director and the President of the State Bar Association. The original petition, with proof of service, and seven copies, shall then be filed with this Court. Together with the petition served upon the Director’s Office, a petitioner
      seeking reinstatement shall pay to the Director a fee of $300.
      (b) Investigation; report. The Director shall investigate and report the Director's conclusions to a Panel.
      (c) Recommendation. The Panel may conduct a hearing and shall make its recommendation. The recommendation shall be served upon the petitioner and filed with this Court.
      (d) Hearing before Court. There shall be a hearing before this Court on the petition unless otherwise ordered by this Court. This Court may appoint a referee. If a referee is appointed, the same procedure shall be followed as under Rule 14.


author: SHUMAKER, Judge.

text:
    Brett A. MUEHLHAUSER and Lynn Bean Singewald as co-trustees for the heirs and next-of-kin of Salina M. Muehlhauser, deceased, Respondents, v. Korey James ERICKSON, Defendant, Hartmann Well Drilling and Service, et al., Appellants.
    No. CX-00-656.
    Court of Appeals of Minnesota.
    Dec. 26, 2000.

      Harry A. Sieben, Jr., Jeffrey M. Mont-petit, Sieben, Grose, Von Holtum & Carey, Minneapolis, and Wilbur W. Fluegel, Flue-gel Law Office, Minneapolis, for respondents.
    Eric J. Magnuson, Brian A. Wood, John M. Bjorkman, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for defendant.
    James T. Martin, Dan T. Ryerson, Gisla-son, Martin & Varpness, PA., Edina, for appellants.
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and MULALLY, Judge.

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

   OPINION

SHUMAKER, Judge.

Appellants Brian Hartmann and Hart-mann Well Drilling and Service contend that the trial court erred in denying their motion for JNOV or, in the alternative, a new trial; in excluding eyewitness lay-opinion testimony; in improperly instructing the jury on damages; in refusing to give a curative instruction after final arguments; and in improperly awarding pre-verdict interest on future damages. We affirm in part, reverse in part, and remand.

FACTS

As Sara Muehlhauser prepared to make a left turn at an intersection, respondent Kory Erickson’s sport utility vehicle collided with the rear of her minivan. The impact propelled the van across an oncoming traffic lane, where it was struck by a truck that appellant Brian Hartmann was driving for appellant Hartmann Well Drilling and Service (Hartmann). The truck was carrying a load of metal pipes. The collision caused some pipes to come loose, and one of them struck van passenger Salina Muehlhauser in the head and killed her.

At trial, the co-trustees for Salina Muehlhauser’s next-of-kin contended that Brian Hartmann had been negligent in failing properly to load and secure the pipes and that his negligence also violated a federal motor carrier regulation. Over Hartmann’s objection, the trial court admitted the federal regulation as evidence of the customary practices followed in securing loads on trucks. The court excluded Hartmann’s offer of the lay opinion of a passenger in the truck as to movements and positions of the van after impact with the truck.

At the end of the trial, the court instructed the jury on the law of negligence and on the measure of damages for wrongful death. Hartmann objected to the damages instruction. The jury awarded damages in the amount of $495,000 and, over Hartmann’s objection, the court awarded interest on the entire amount. The court denied Hartmann’s alternative motions for JNOV or a new trial. This appeal followed.

ISSUES

1.Where the trial court instructed that the standard of care to be applied was contained in the common-law negligence instruction, did the court err in denying appellants’ motion for JNOV or, in the alternative, a new trial made on the ground that the evidence did not establish a violation of a federal motor carrier regulation that was received in the case?

2. Did the trial court err in excluding eyewitness lay-opinion testimony on the ground that appellants failed to show that the “perception” requirement of Minn.R.Evid. 701 had been met?

3. Did the trial court err in failing to include the term “pecuniary damages,” as used by the wrongful-death statute, when instructing the jury on damages?

4. Did the trial court err in failing to give a specific curative instruction when appellants objected to the co-trustees’ misstatement of the law in final argument?

5. Did the trial court err by including future damages in its award of pre-verdict interest?

ANALYSIS

Hartmann first argues that the trial court erred in denying the alternative motion for JNOV or a new trial.

Where JNOV has been denied by the trial court, on appellate review the trial court must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict. Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside. The evidence must be considered in the light most favorable to the prevailing party and an appellant court must not set the verdict aside if it can be sustained by any reasonable theory of the evidence.

Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998) (citations and quotations omitted). JNOV will only be granted when it would be impossible for reasonable minds to come to a different conclusion because the evidence is so overwhelmingly on one side. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn.1983). As an alternative to JNOV, a party may obtain a new trial where the verdict is not justified by the evidence. Minn.R.Civ.P. 59.01(g). The decision to grant a new trial lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990).

Negligence

Hartmann argues that the co-trustees relied entirely on a portion of the Federal Motor Carrier Safety Regulations to establish the standard of care for their negligence claim and that the evidence failed to show that Hartmann violated any regulation. The standard of care that the trial court instructed the jury to apply was that of ordinary common-law negligence. The court did not tie that standard to the federal regulations but rather instructed the jury that it could consider evidence of industry standards in deciding the negligence issue:

Evidence of standards or custom is not conclusive. It is just one piece of evidence. You may consider an industrial standard to decide whether reasonable care was used. You may consider what is usually done or customary in this industry to decide whether reasonable care was used. Consider this evidence along with all the other evidence when you decide if reasonable care was used.

(Emphasis added.) A fair reading of that instruction, together with the negligence instruction, indicates that any failure to comply with a standard of conduct for securing loads would have evidentiary value but that it would have to be tested against the common-law definition. Thus, even if the proof was insufficient to establish a violation of the federal regulation, the issue of common-law negligence remained. At least one jurisdiction has held that even if the federal motor carrier regulations do not apply, there remains a common-law duty to ensure that the load is properly and safely secured. Reed v. Ace Doran Hauling & Rigging Co., 1997 WL 177840 (N.D.Ill. Apr.7, 1997).

Brian Hartmann testified that he loaded pipes that were 18 feet long and pipes that were 21-feet long. He placed the pipes into a trough 18 feet long. The trough accommodated the 18-foot pipes, but the 21-foot pipes extended three feet beyond the front plate of the truck’s rack. Hart-mann tied the protruding portion of the 21-foot pipes in a bundle with a single band of a heavy wire not ordinarily used for tying cargo. He angled the 21-foot pipes into the trough but did nothing else to secure them to the truck. He admitted in hindsight that he made a mistake in not securing the pipes so they would not come loose.

Brian Hartmann’s father testified that he came to the scene before the van had been removed. He found 21-foot pipes on the ground but did not find any 18-foot pipes off the truck.

The jury did not need to find a violation of a federal motor carrier regulation to find negligence in this case. Rather, the jury could reasonably have found Brian Hartmann guilty of ordinary negligence for failing to secure the 21-foot pipes. The pipes were too long for the 18-foot trough designed to provide a secure restraint for pipes that fit. The 21-foot pipes extended beyond the front plate designed to prevent forward shifting. The 18-foot pipes stayed on the truck during the collision, and the 21-foot pipes came off. The jury could reasonably have inferred that Brian Hartmann was negligent in not securing the 21-foot pipes to the truck itself to prevent them from coming off. Thus, even if the evidence did not establish a violation of a federal regulation, it did show common-law negligence, which was a liability issue in the case.

Lay Opinion

Hartmann argues that the court erred in excluding the lay opinion of an eyewitness passenger in the Hartmann truck. Raymond Jaeckels testified that the accident happened “just like a flash.” He didn’t “know really how it went or what happened.” He didn’t see how the van reacted to the impact with the truck. When the truck hit it, the van became airborne and landed upside-down in a ditch. “Everything was blink of an eye. I didn’t see nothing. It was over within two seconds.”

In an apparent testimonial offer of proof outside the hearing of the jury, Hart-mann’s counsel asked Jaeckels: “Do you have an opinion to all that as to the general mechanism or mode in which the vehicles got to their final resting places?” Jaeckels surmised that the van came straight up over the top of the truck and that when the van landed it tore the pipe rack off the truck. The van then flipped upside-down and landed with pipe underneath the van. The trial court would not allow that opinion and instead confined the witness to a description of the height of the truck and the height of the van as it came over the truck.

The competency of a lay witness to give opinion evidence is

peculiarly within the province of the trial judge, whose ruling will not be reversed unless it is based on an erroneous view of the law or clearly not justified by the evidence.

In re Welfare of M.B.W., 364 N.W.2d 491, 494 (Minn.App.1985) (quoting Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.1977)).

There are two requirements for the admission of lay-witness opinion testimony:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

MinmR.Evid. 701.

Through Jaeckels’s opinion testimony, appellants sought to draw an inference as to how the pipe came loose; namely, the van tore the pipe loose, flipped, and then landed on top of the pipe. However, Jaeckels only very briefly saw the airborne van and the van at rest after it landed. He saw nothing in between those events. The supreme court has emphasized that the key inquiries in determining the admissibility of lay opinion are personal knowledge and helpfulness to the jury. State v. Post, 512 N.W.2d 99, 101 (Minn.1994); see also Holweger v. Great N. Ry., 269 Minn. 83, 95, 130 N.W.2d 354, 362 (1964) (finding that the trial court did not err in excluding employee’s opinion on the condition of an automatic coupler involved in an accident where employee did not have personal knowledge of the coupler).

It is doubtful that Jaeckels’s limited perceptions of the events of this accident were sufficient to satisfy the personal knowledge requirement of rule 701. But even if they were, his inference was not helpful to the jury. He testified to all the firsthand facts he knew. There is nothing in the record to show that Jaeckels was any more qualified than the jurors to draw an inference from his observations. See Krueger v. State Farm Mut. Auto. Ins. Co., 707 F.2d 312 (8th Cir.1983) (in a wrongful-death action it was proper for the court to exclude an eyewitness’s opinion as to whether a motorist had enough time to avoid the accident, where the witness had described his perceptions in sufficient detail and his opinion was not necessary to help the jury understand his testimony). It was not necessary here for Jaeckels to give his opinion to help the jury understand his testimony. Nor was the jury any better able to determine a fact in issue by hearing an inference from Jaeckels that the jury was equally capable of drawing.

Jury Instruction on Damages

The Minnesota civil jury instruction guides were revised and renumbered in 1999. Here the trial court gave 4A Minnesota Practice, CIVJIG 91.75 (1999), on damages for wrongful death. This is the revised version of the instruction formerly numbered 4 Minnesota Practice, CIVJIG 180 (1997).

Hartmann complains that the 1999 version of the instruction fails to use the term “pecuniary loss,” as provided in the wrongful-death statute. See Minn.Stat. § 573.02, subd. 1 (1998) (“The recovery in the action is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death * * * .”). Hart-mann also argues that the 1999 version of the instruction fails to define pecuniary loss as “a loss which has money value.” 4 Minnesota Practice, CIVJIG 180 (1997). The new instruction contains a heading “Lost time together.” Hartmann contends that this implies that lost time together is itself compensable.

The first section of the 1999 instruction is entitled “Money value of damages.” The text of the instruction directs the jury to determine “an amount of money” that will compensate for various losses described in other sections. When the heading and the text are read together, the jury is informed that it is to ascertain the money value of losses resulting from the wrongful death. The absence of the term “pecuniary loss” takes nothing away from this definition, nor would its inclusion add anything to it.

The section entitled “Lost time together” gives a rule of limitation. When the heading and the text are read together, it is clear that the jury is not to award damages beyond the life expectancy of any next-of-kin whose life expectancy is shorter than that of decedent. The text is merely a clearer statement of the same limitation that was contained in the 1997 version of the same instruction.

The 1999 version of the instruction is substantively consistent with the 1997 version of the instruction. The trial court did not abuse its discretion in giving the revised instruction on wrongful-death damages.

Final Arguments

Hartmann argues that the trial court erred in refusing to give a curative instruction following the co-trustees’ closing arguments. The determination of whether remarks made in final argument require a cautionary instruction or other corrective action is a matter left to the discretion of the trial court. Stroncek v. Berkshire Life Ins. Co., 292 Minn. 57, 65, 193 N.W.2d 286, 291 (1971). Counsel for the co-trustees stated in closing arguments:

I would ask you not to compromise her life with a loss of the value of the loss of what the law allows you to consider to her parents.

He concluded his final argument by giving the analogy of a famous racehorse that could have been sold for as much as $2 million and how calculation of damages of a racehorse would be simple. He then told the jury that their task was “not quite that simple here.” Contending that these remarks invited the jury to award damages on the value of a life in the abstract, Hartmann requested a curative instruction:

I instruct you that the measure of damages in this case is not based on any disclosed value of Salina Muehlhauser’s life. You should disregard any argument based on the value of a horse.

But the court instructed:

What the attorneys say about the law may be different from what I say. If this happens, you must rely on what I say about the law.

There is no reason to believe that the jury failed to follow the court’s instructions on the law and ignore contrary arguments by the attorney.

Interest on judgment

Finally, Hartmann argues that the trial court erred in awarding the co-trustees’ full claim for interest on the entire award, disregarding that a portion of the award pertained to future damages. This is purely a question of law, and the standard of review is de novo. Hibbing Educ. Assn. v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

Minn.Stat. § 549.09, subd. 1(b)(2) (1998), provides:

Except as otherwise provided by contract or allowed by law, preverdict, pre-award, or prereport interest shall not be awarded on the following:
(2) judgments or awards for future damages.

The co-trustees conceded at oral argument that the trial court erred in allowing interest on the entire amount of damages. The interest award is reversed, and the issue is remanded for recalculation. See Johnson v. Washington County, 506 N.W.2d 632, 641 (Minn.App.1993), aff'd, 518 N.W.2d 594 (Minn.1994).

DECISION

The trial court did not err in denying appellants’ motion for JNOV or, in the alternative, a new trial, because the evidence was sufficient to establish common-law negligence even if there was no proof of a violation of a federal motor carrier regulation.

The trial court properly excluded eyewitness lay-opinion testimony that was not directly based on firsthand observation and that would not have been helpful to the jury.

The trial court properly instructed the jury on wrongful-death damages when it gave the 1999 version of the jury instruction.

The trial court did not err in refusing to give the requested curative instruction.

The trial court erred by including future damages in its pre-verdict interest award.

Affirmed in part, reversed in part, and remanded.