GREGORY A. MIDDLETON and LINDA K. MIDDLETON, Plaintiffs-Appellants, vs. TIMOTHY S. MYERS, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-800 / 09-0087
Filed November 25, 2009
GREGORY A. MIDDLETON and
LINDA K. MIDDLETON,
Plaintiffs-Appellants,
vs.
TIMOTHY S. MYERS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, David J. Sivright,
Judge.
Gregory and Linda Middleton appeal the district court’s denial of their
motion for new trial claiming error in the instructions to the jury and the jury’s
award of damages for injuries sustained in a motorcycle accident. AFFIRMED
AND REMANDED.
Glenn Ruud, Rock Island, Illinois, for appellants.
Eric Knoernschild and Kenza Nelson, Muscatine, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
2
VOGEL, P.J.
Gregory and Linda Middleton appeal from the district court’s denial of their
motion for new trial following jury verdicts awarding them damages for injuries
they sustained in a motorcycle accident.
We find the district court erred in
submitting an aggravation instruction for Gregory, likely interfering with the jury’s
ability to find the facts, resulting in prejudice to Gregory. We therefore remand
for a new trial on damages for Gregory. As to Linda’s similar claims, we find no
error, and affirm the district court.
I. Background Facts and Proceedings
On September 3, 2004, while on their motorcycle and stopped at a traffic
light, Gregory and Linda were hit from behind by a Dodge Durango driven by
Timothy Myers.
Both Gregory and Linda were immediately treated in an
emergency room for injuries sustained in the accident. Linda complained of pain
in her neck, shoulders, knees, arms, and elbow, but was discharged with pain
medication after a CT scan did not reveal any acute injury. Gregory was also
discharged with medication for soreness and pain in his neck, shoulders and
back. Both Gregory and Linda sought further treatment from their primary care
physician, James E. Petre, M.D. Linda had been a patient of Dr. Petre’s since
1997 and had been previously treated for a variety of symptoms including neck
strain and low back pain. Gregory had been a patient of Dr. Petre’s since 1999.
A brief review of the medical examinations and treatment of the parties
following the accident begins with Dr. Petre, who diagnosed Gregory with a neck
and low-back sprain, prescribing pain medicine and a muscle relaxer.
On
September 9, 2004, Gregory began treatment for his low back pain with
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chiropractor Leroy Anthony Dietrich, D.C., who opined the pain was caused by
the accident. Gregory continued to see Dr. Dietrich periodically up to the time of
trial.
In January 2005, Gregory complained of a constant dull ache in his neck,
and following x-rays, Dr. Petre diagnosed Gregory as having mild degenerative
joint disease. An MRI revealed a broad base disk protrusion at C5-C6 with mild
to moderate pushing of the disk against the spine.
Dr. Petre believed the
accident directly related to the symptoms and problems for which he was treating
Gregory, as these pain symptoms were not present prior to the accident, even if
the protrusion may have existed in an asymptomatic state.
In March 2006, following aggressive but unsuccessful physical therapy,
Dr. Petre referred Gregory to a neurosurgeon, Srinivasan Purighalla, M.D., who
after reading an MRI, diagnosed Gregory with degenerative disk disease and
associated disk herniation at C4-5, C5-6, and mild degeneration at L5-S1. Dr.
Purighalla opined the degeneration preceded the collision but the herniation was
caused by the collision. Gregory had surgery to resolve the herniation in June
2006.
Gregory was also referred to David Staub, M.D., a rheumatologist in May
2007, in order to manage his pain.
After a bone density test, Dr. Staub
diagnosed Gregory with osteoporosis, and stated that the condition pre-dated the
accident. In July 2007, Dr. Petre confirmed “the osteoporosis itself wouldn’t be
caused–or any relationship to the accident, although it would increase his risk of
having a fracture for any trauma.” He further opined that Gregory continued to
complain of pain in his neck, shoulder, and back; all of which was caused or
4
exacerbated by the accident. Gregory was also seen by neurologist Brian J.
Anseeuw, M.D. in May 2007, who opined Gregory’s pain was caused by the
accident.
In January 2008, Morris Soriano, M.D., expert witness for the defense,
examined Gregory and opined that his injuries were “soft tissue” injuries, which
should have healed with conservative treatment in six to twelve weeks after the
accident.
A review of Linda’s medical examinations and treatments includes her visit
to Dr. Petre’s office on September 7, 2004, where a nurse practitioner examined
Linda for her complaints of pain in her right elbow. On September 10, 2004, Dr.
Petre diagnosed Linda with whiplash, prescribed pain medication, muscle
relaxers and referred her for physical therapy. With ongoing complaints, Dr.
Petre referred Linda to an orthopedic surgeon, Michael Dolphin, D.O., in October
2004.
Dr. Dolphin performed a MRI, which revealed inflammation in the
shoulders, cervical and lumbar strain, and some tendinitis, all related to the
accident. He gave her cortisone injections and recommended physical therapy.
Dr. Dolphin took some x-rays of the neck and found some evidence of
degenerative disk disease. He opined that the degenerative condition preexisted
the accident. Dr. Dolphin believed some symptoms, such as neck pain, were
due to the accident and some symptoms such as nausea, vomiting, and
headache could not be definitively attributed to before or after the accident and
were potentially from the degenerative condition.
medication and instructed to continue physical therapy.
Linda was given pain
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Dr. Dolphin referred Linda to Bruce McElhinney, D.O., who in May 2005
diagnosed her with a “sprain/strain kind of injury in the back, shoulder, neck
area,” and treated her with osteomanipulation. Linda saw Dr. Anseeuw in August
2005, who found that she had a decrease in range of motion in the cervical and
lumbar spine, with some vertigo, neck and back pain, and headaches.
In
January 2006, on Dr. Dolphin’s suggestion, Linda saw John Hoffman, M.D., who
diagnosed her with a frozen shoulder, likely a result of the accident. Linda was
also seen by Dr. Soriano in January 2008, who diagnosed her with a “soft tissue”
injury, and opined that she did not sustain damage to her disks but suffered from
whiplash. Linda continued to see Dr. Hoffman through early 2008 and underwent
various treatments to release the shoulder and ease her pain.
Linda also
continued to see Dr. Petre for complaints of joint irritation, shoulder, and back
problems.
After a trial, the jury awarded Gregory $8000 damages and Linda $35,360.
They appeal.
II. Standard of Review
Our review is for correction of errors at law. Iowa R. App. P. 6.907 (2009).
We find reversible error when the instructions given to the jury, viewed as a
whole, fail to convey the applicable law. Benn v. Thomas, 512 N.W.2d 537, 53839 (Iowa 1994). An erroneous instruction does not entitle the party claiming error
to reversal unless the error was prejudicial. Waits v. United Fire & Cas., 572
N.W. 2d 565, 569 (Iowa 1997). Instructions may be considered erroneous if they
contain a material misstatement of the law, are not supported by the evidentiary
record, or are conflicting and confusing. Id. at 575. An aggrieved party may, on
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motion, have an adverse verdict or decision vacated and a new trial granted for
errors of law occurring in the proceedings only if the errors materially affected the
party’s substantial rights. Benn, 512 N.W.2d at 539.
III. Gregory’s Claims
The district court submitted an aggravation instruction to the jury for
Gregory based on his preexisting but asymptomatic degenerative disk disease
and an eggshell plaintiff instruction based solely on his post-accident diagnosis of
osteoporosis. The aggravation instruction, instruction eleven, read:
If you find plaintiff Gregory A. Middleton had degenerative disk
disease before this incident and this condition was aggravated or
made active by this incident causing further suffering, then he is
entitled to recover damages caused by the aggravation. He is not
entitled to recover for any physical ailment or disability which
existed before this incident or for any injuries or damages which he
now has which were not caused by the defendant’s action.
The eggshell plaintiff instruction, instruction thirteen, read:
If plaintiff Gregory A. Middleton had osteoporosis making him more
susceptible to injury than a person in normal health, then the
defendant is responsible for all injuries and damages which are
experienced by Gregory A. Middleton proximately caused by
defendant’s actions, even though the injury claimed produced a
greater injury than might have been experienced by a normal
person under the same circumstances.
Gregory asserts the court erred in submitting instruction eleven, aggravation,
which identified conditions that were neither active nor symptomatic prior to the
accident; he requested the court submit an eggshell instruction for the
degenerative
disk
disease,
similar
to
instruction
thirteen,
rather
than
aggravation.1
1
Myers asserts that error was not preserved for the eggshell plaintiff instruction because
Gregory did not object to instruction thirteen. At trial, Gregory argued, “we feel that with
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A. Aggravation
In order to determine whether prior symptoms or conditions give rise to
either an aggravation or eggshell plaintiff instruction, we look to the first instance
when the pain or disability for which compensation is sought arose. Waits, 572
N.W.2d at 577-78.
As a general rule, a defendant is liable only for injuries
caused by the defendant’s fault, and not for pain or disability resulting from other
causes. Id. at 577.
An aggravation instruction is proper when a person has a prior condition
which results in pain or disability before the second injury; this makes the
tortfeasor liable only for the additional pain and disability arising after the second
injury. Id. at 578. With respect to any pain or disability arising after the second
injury, the tortfeasor is fully responsible, even though that pain and disability is
greater than the injured person would have suffered in the absence of the prior
condition. Id.
Thus, if a plaintiff had a prior back injury that caused pain and a ten
percent disability before the injury inflicted by the defendant
occurred, the defendant would not be responsible for the disability
and pain that predated the current injury, but only for any additional
pain and disability caused by the current injury. Under these
circumstances, an aggravation instruction is appropriately
submitted to the jury.
Id.
Gregory claims no evidence was presented from which the jury could
determine he suffered pain or disability before the collision related to
regard to any degenerative disk disease issues, that should be covered in an instruction
similar to Instruction No. 13, which relates to Gregory Middleton’s osteoporosis.” We
find Gregory made the argument for an eggshell instruction on degenerative disk
disease, and therefore preserved error on appeal.
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degenerative disk disease, warranting an aggravation instruction.
It is
undisputed that Gregory had some preexisting, yet undiagnosed degenerative
disk disease unrelated to the accident. Dr. Purighalla testified that degenerative
disk disease was something that just developed naturally or normally in his body
and was not caused by any trauma. Upon questioning, Dr. Purighalla responded
that the only way he could connect the symptoms in the neck area relating to the
herniations to the accident, was Gregory’s statement that he did not have
complaints of neck pain until after the accident. Also, when visiting Dr. Petre
prior to the accident, Gregory remarked that he had “recurrent back pain” on his
medical history form.
Dr. Petre testified that while Gregory circled “yes” on
recurrent back pain, he had no other previous history of back problems, and
“people put down any possible discomforts that they have or problems when they
fill out these forms.” Dr. Petre testified that when he questioned Gregory as to
why he circled “yes” on the form, Gregory just said he had occasional back pain.
It is important to note Gregory never received any treatment or medication for
any such complaint. The district court nonetheless concluded, “It’s my opinion
that preexisting, even if it’s asymptomatic, has to be dealt with in the preexisting
language.”
In order for the district court to instruct the jury on an aggravation
instruction, the evidence must be substantial. See Sleeth v. Louvar, 659 N.W.2d
210, 215 (Iowa 2003). The evidence presented did not show that Gregory had a
prior condition that resulted in pain or disability before the accident; further, any
degenerative disk disease was asymptomatic. The only evidence presented was
his indication on a medical questionnaire of “recurrent back pain” and a post-
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accident diagnosis of degenerative disk disease. His primary doctor, Dr. Petre,
testified that he had never treated Gregory for back or neck pain, and Gregory
did not have a history of back problems until after the accident. We conclude
Gregory’s rather generic indication of back pain on a medical questionnaire form
does not yield a quantifiable level of pre-accident pain or disability such that the
jury could assess his post-accident pain or disability.
The jury was not bound, of course, to believe [Gregory] or [his]
witnesses. But, even the establishment of a lack of credibility in
[Gregory’s] case cannot fill the void in the defendant’s proof of a
preexisting disability as opposed to a mere preexisting condition.
Id. Without proof of an active or symptomatic impairment prior to the accident,
we find the district court erred in submitting an aggravation instruction.2
B. Prejudice
Gregory claims that the district court’s erroneous aggravation instruction
was prejudicial and entitled him to a new trial. See Waits, 572 N.W.2d at 569. In
order to apportion disability, the jury must make a distinction between the recent
trauma and a preexisting condition, which is a difficult task. See Sleeth, 659
N.W.2d at 215. Gregory was awarded damages in the sum of $8000: $3000 for
past medical expenses, $2500 for past pain and suffering, and $2500 for past
loss of function of body, compared with the documented past medical expenses
2
Gregory also asserts the district court erred in submitting an eggshell instruction to the
jury for only his osteoporosis, and not instructing on all of his pre-accident, asymptomatic
conditions, which became active or symptomatic post-accident, including his
degenerative neck and back condition. An eggshell plaintiff instruction is proper when a
person has a health condition prior to the disputed injury, which is non-disabling and
asymptomatic. Waits, 572 N.W.2d at 576. The jury could have concluded that
Gregory’s degenerative disk disease was a nondisabling, asymptomatic condition that
made him more susceptible to injury than a normal person. Sleeth, 659 N.W.2d at 213.
An eggshell instruction could therefore be appropriate.
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of $60,744.04. The aggravation instruction that was given to the jury advised
that Gregory could recover only that portion of his damage which was due to
aggravation.
Without substantial evidence of a preexisting, symptomatic
condition on which the jury could make such apportionment, the district court’s
improper aggravation instruction therefore likely interfered with the jury’s ability to
find the facts and apply the proper law in awarding Gregory’s past medical
damages.
We therefore remand for a new trial solely as to damages for
Gregory.3
IV. Linda’s Claims
Linda also asserts the court erred in submitting an aggravation instruction,
claiming that while there was evidence of her degenerative disk disease, the
court failed to quantify the extent of her pre-accident pain and disability. Dr.
Dolphin testified that evidence of Linda’s degenerative disk disease indicated it
preexisted the accident. Dr. Petre testified that his records between March 1997
through the accident indicated that he had seen Linda for neck spasms, dizzy
spells, low backaches, and back pain. She was given medications and referred
to a physical therapist in May 2004, where an electronic stimulator was used to
help with the muscle spasms in her lower back.
While a district court may submit both an eggshell and aggravation
instruction to the jury as to a given plaintiff, on our review we find the evidence
did not establish a factual basis for both.
See Waits, 572 N.W.2d at 578
(explaining that the jury can receive both instructions if they are instructed that
3
Gregory also argued that jury instructions eleven (aggravation) and thirteen (eggshell
plaintiff) were inconsistent and confused the jury. Because we are remanding for a new
trial on damages, we need not reach this issue.
11
the aggravation rule excludes liability for pain and disability existing prior to the
accident and the eggshell plaintiff is applicable only for pain and disability arising
after the accident). We agree with the district court that there was sufficient
evidence for the jury to find that Linda suffered from neck and back pain prior to
the accident, warranting an aggravation instruction, not an eggshell instruction,
as she also requested.
The jury was properly instructed on aggravation for
degenerative disk disease for Linda.
V. Jury Award
Linda argues the jury award for damages was grossly inadequate as a
result of prejudice or passion necessitating a new trial.4 Courts will not set aside
a verdict unless excessive or inadequate damages appear to have been
influenced by passion or prejudice. Iowa R. Civ. P. 1.1004(4). We agree with
the trial court’s conclusion (as to Linda) that
[t]he jury in this case determined the weight and value to be given
the testimony of each witness, including plaintiffs’ experts. The
verdicts indicate much of such testimony was rejected, while the
opinions of defendant’s expert witness were given greater weight.
The Court finds the verdicts in this case cannot be considered
inadequate, not sustained by sufficient evidence, nor contrary to
law. Plaintiffs have not shown the verdicts are flagrantly . . .
inadequate, so out of the reason so as to shock the conscience, the
result of passion or prejudice, or lacking in evidentiary support. . . .
The Court finds the verdicts fairly and reasonably compensate the
plaintiffs for the injuries sustained, and effectuate substantial justice
between the parties.
4
Gregory also argues the jury award for damages was inadequate, but we need not
reach this claim as we have remanded for a new trial on damages.
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VI. Conclusion
The district court erred in giving the jury an aggravation instruction for
Gregory, and we therefore remand for a new trial on damages for Gregory. As to
Linda’s similar claims, we find no error, and affirm the district court.5
AFFIRMED AND REMANDED.
5
We note noncompliance with the rules of appellate procedure requiring an appendix to
contain relevant portions of the transcript. See Iowa R. App. P. 6.905(2)(b)(3).
Appellants’ injuries are central to their appeal, but the parties’ appendix failed to include
any of the medical testimony presented at trial.
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