concurring in the result.
Although I agree with the majority that the posturing of this case resulted in an unfair advantage to Dr. Edge, I do not believe that the trial court’s failure to allow the Kunnanzes to introduce evidence of the outcome in the Minnesota lawsuit is error, or that, on retrial, the trial court should admit evidence of the outcome of the Minnesota lawsuit. The Kunnanzes do not argue that the outcome of the Minnesota case should be offered as evidence of Dr. Edge’s negligence; rather, they argue only that the exclusion of the result in the Minnesota lawsuit allowed the jury to believe that the Kunnanzes were seeking double recovery. It seems to me that the issue of the jury’s speculation about double recovery best is addressed by an additional jury instruction to the effect that the jury should not concern itself with the possibility of double recovery. To allow into evidence the outcome of the Minnesota case, even for only the limited purpose of damages, quite possibly would posture the case unfairly in the other direction, against Dr. Edge, by placing before the jury evidence that Dr. Hulbert was not negligent.
Therefore, I would hold that the trial court’s refusal to give a jury instruction regarding the possibility of double recovery was reversible error.
I, therefore, concur in the result.