¶1concurring in the result.
¶2[¶ 28] I respectfully concur in the result.
¶3[¶ 29] I believe the trial court abused its discretion in refusing to allow even one of the five photographs offered of Hamilton’s injuries. The majority correctly states that the photographs of Hamilton’s injured leg were relevant to the issue of pain and suffering. Compensation for pain and suffering is an element of non-economic damages which may be awarded by a trier of fact under N.D.C.C. § 32-03.2-04. In Albrecht v. Metro Area Ambulance, our Court stated:
“The plaintiff is entitled to recover for all forms of suffering proximately caused by tortious injury, including future suffering. The pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical.... Expert testimony can address pain, but frequently the physical injury itself and the kind of medical attention needed, permit or require an inference that the plaintiff suffered physically or emotionally.”
¶42001 ND 61, ¶ 14, 623 N.W.2d 367 (quoting 2 Dan B. Dobbs, The Law of Torts, 1050-51 (2001)). We have recognized that the power to exclude evidence under N.D.R.Ev. 403 should be exercised sparingly. State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439. Our Court has stated:
In determining whether to exclude evidence under Rule 403, courts should “ ‘give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’ ” See id. [State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994) ] (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence § 403[03], pp. 403-49, 403-51 (1994)). “Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403.
¶5Randall, at ¶ 15 (citation omitted). “Prejudice alone is not sufficient to warrant exclusion under Rule 403. Virtually all evidence is prejudicial to one party or another. To justify exclusion under Rule 403, the prejudice must be unfair.” 2 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Federal Evidence § 403.04[l][a], p. 403-33 (2002) (footnotes omitted). Evidence that is unfairly prejudicial is evidence that is designed to elicit a response from jurors that is not justified by the evidence. Id. at § 403.04[l][b]. Under Rule 403, evidence may be excluded if its probative value is “substantially out*687weighed by the danger of unfair prejudice.”
¶6[¶30] The trial court’s reason for excluding all the photographs of Hamilton’s injuries was: “It is my opinion that the photographs do not depict pain and suffering. They depict blood and gore which is highly prejudicial to the defendant in this case.” The trial court never explained how these photographs created “unfair prejudice.” It presumed a photograph depicting “blood and gore” was “unfairly” prejudicial. As the majority states at ¶ 22: “Even gruesome pictures are admissible for a proper proof purpose.” (citation omitted). Gruesome photographic evidence of injuries is not, per se, inadmissible. “[I]f photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible merely because they bring vividly to the jurors the details of a gruesome or shocking accident ... even though they may tend to arouse the passion or prejudice of the jurors.” 29A Am.Jur.2d Evidence § 963 (1994).
¶7[¶ 31] The test for determining whether a photograph may be shown to the jury is whether the photograph’s probative value is substantially outweighed by the danger of unfair prejudice. Considering the probative value of the photographs and the philosophy behind Rule 403, the trial court could have limited the evidence to one or two photographs. Furthermore, the trial court could use other safeguards including the standard jury instruction admonishing “[y]our decision must not be influenced by sympathy or emotion.” N.D.J.I. Civ. No. C-85.15 (1999).
¶8[¶ 32] The average juror today has been exposed to a great deal of “blood and gore” through- television, the media, and movies. The conclusion that the probative value of one or two photographs of the injuries sustained by Hamilton was “substantially outweighed by the danger of unfair prejudice” is not supported by reason. Pain is suffered from the time of the injury. The photographs in this case, taken in the hospital, were clearly probative of the seriousness of Hamilton’s injuries, and the pain, emotion, fear, and mental anguish suffered by him at the time the injuries were sustained. I am of the opinion the trial court abused its discretion when it excluded all of the photographs of the injuries sustained by Hamilton. However, because the jury returned a verdict determining Hamilton was more than 49 percent at fault for his injuries, the jury never reached the issue of damages. Because there is no ground for granting a new trial on liability, the trial court’s error is harmless error in this case.
¶9[¶ 33] Mary Muehlen Maring
¶10concurring in the result.
¶11[¶ 34] The juror affidavits raise some doubt in my mind as to the possibility of a quotient verdict, but I agree the affidavits are not conclusive on the issue. Rule 59(b)(2), N.D.R.Civ.P., allows the use of juror affidavits to show an improper quotient verdict. This rule distinguishes the procedure from that recommended in Praus v. Mack, 2001 ND 80, ¶ 57 n. 2, 626 N.W.2d 239 and Andrews v. O’Hearn, 387 N.W.2d 716, 734 n. 26 (N.D.1986), in which the court suggested that when juror misconduct is discovered, investigation should cease and the matter should be presented to the court to avoid the possibility of juror taint from extra-judicial pressures. Nevertheless, while N.D.R.Civ.P. 59(b)(2) permits a jury verdict reached “by a resort to the determination of chance” to “be proved by the affidavit of any one of the jurors,” it does not prohibit an evidentiary hearing on the matter. However, here no evidentiary hearing was requested.
¶12*688[¶ 35] I agree with the majority that the affidavits do not conclusively prove misconduct on the part of the jurors. I therefore concur in the result.