Opinion
No. 3-132 / 02-0691.
Filed March 12, 2003.
Appeal from the Iowa District Court for Wapello County, E. RICHARD MEADOWS, Jr., Judge.
Plaintiff-appellant Timothy Cook appeals the decision of the trial court entering judgment for the defendant-appellee, Farm Bureau Mutual Insurance Company, and denying his motion for a new trial. AFFIRMED.
Robert Garver, West Des Moines, for appellant.
Edward Parker of Morain, Burlingame Pugh, P.L.C., Des Moines, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Plaintiff-appellant Timothy Cook appeals the decision of the trial court entering judgment for the defendant-appellee, Farm Bureau Mutual Insurance Company, and denying his motion for a new trial. Cook was injured in an automobile accident and received $25,000 from the tortfeasor. Cook petitioned the defendant, his insurance carrier, for underinsured motorist coverage for additional compensation for the injuries. Following a trial, the jury assessed Cook's injuries at $25,000. As Cook had already been compensated $25,000 by the tortfeasor, the trial court entered judgment for the defendant, dismissing Cook's petition for further compensation. On appeal Cook argues there was no evidence to support the inclusion of a jury instruction regarding a pre-existing condition, and in the alternative, the pre-existing condition instruction was erroneous because there was no evidence in the record from which to apportion the injury. Cook also argues the assessment of damages by the jury was inadequate. We affirm.
Plaintiff Timothy Cook was involved in an automobile accident on February 10, 1999. Prior to this accident Cook had an extensive history of spinal problems, beginning in the late 1980s. In November of 1988 Cook had diskectomy surgery on the sixth and seventh segments of his cervical spine to relieve pain in the right side of his body. On December 20, 1988, Cook had a second surgery in which the sixth and seventh cervical segments were fused. On June 14, 1990, Cook had a third surgery on the sixth and seventh cervical segments to remove scar tissue resulting from the first two surgeries. In October of 1991 Cook had a fourth surgery in which the fifth and sixth cervical segments were also fused. On March 10, 1998, Cook had a fifth surgery on his neck, this time in the area of the seventh cervical segment, which is the lowest segment of the neck, and first thoracic segment. At that time a metal plate was screwed into Cook's spine, extending from the seventh cervical segment up to the fifth cervical segment. Following that surgery Cook had some pain in his right thigh, which lasted approximately a year, but Cook testified he had recovered from that thigh pain through exercise and stretching. At the time of the accident Cook testified he felt "choked" and "jerked around" by the seatbelt in his car. A witness to the accident testified hearing Cook say his back hurt. Following the accident Cook testified he had severe headaches and "excruciating" pain in his lower back which radiated down his left leg. When Cook returned to work he testified it was difficult for him to either stand or sit for long periods of time.
After seeking various methods of pain relief, on December 21, 1999 Cook ultimately had surgery on the fourth and fifth lumbar segments of his spine to relieve the lower back pain. On May 29, 2001, Cook had an additional surgery in the area of the fourth and fifth cervical segments of his neck.
On appeal Cook challenges Jury Instruction 15, which read as follows:
If you find Timothy Cook had a lower back condition before this incident and this condition was aggravated by this incident causing further suffering or disability 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 actions.
In objecting to this instruction, Cook's counsel stated the following:
[W]e would request that instruction 15 referring to lower-back condition be omitted. The evidence in this trial does not support that there was any condition other than a normal low back for Mr. Cook prior to the collision which was the subject matter of the lawsuit, and the jury, therefore, could not find any abnormality in the low back prior to the accident.
That's what this instruction anticipates, and so I think that the inclusion of it is improper. I believe that is the only objection that — that is all the plaintiff has. Thank you.
Cook argues that in spite of his history of neck problems, he exhibited no lower back pain until the automobile accident occurred, and that the jury instruction providing for the possibility of a pre-existing condition in the lower back was not supported by any evidence. The defendant argues in response that Cook did have lower back problems prior to the accident and that the pre-existing condition instruction was therefore appropriate.
Our standard of review concerning alleged error with respect to jury instructions is for correction of errors at law. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). "Parties to lawsuits are entitled to have their legal theories submitted to a jury if they are supported by the pleadings and substantial evidence in the record." Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). When weighing the sufficiency of the evidence to support a requested instruction, we view the evidence in a light most favorable to the party seeking the instruction. Id. Where a prior condition results in pain or disability before a second injury, the tortfeasor is liable only for the additional pain and disability arising out of the second injury. Waits v. United Fire Cas. Co., 572 N.W.2d 565, 578 (Iowa 1997). With respect to any pain or disability arising only after the second injury, however, 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.
Cook argues there is not "one scintilla" of evidence establishing he had problems in his lower back prior to the automobile accident. Cook further argues that any evidence of a mild degenerative condition in his lower back does not qualify as a pre-existing condition, as it is consistent with a normal spine in an individual of Cook's age.
We disagree with Cook and conclude there was evidence supporting the jury instruction regarding Cook's possible pre-existing condition in his lower back. Testimony by Dr. Hayne indicated degenerative changes in Cook's spine at the fourth and fifth lumbar segments, as uncovered by the June 22, 1998 MRI, could have been made more severe by activities Cook was involved in, including wrestling and football. In other words, contrary to Cook's arguments, these degenerative changes in his lower back, according to Dr. Hayne, were not necessarily attributable to the normal aging process.
Furthermore, there is evidence this degenerative condition caused Cook lower back pain prior to the automobile accident. In 1998 Cook indicated on a medical questionnaire form at Dr. Major's office that he had experienced recurrent back pain and backaches. Additionally, in January of 1998 Cook had a "Lumbar MRI" due to a clinical finding of "LBP." There was adequate evidence to leave the question of a pre-existing condition to the jury. We therefore conclude there was no error in the jury instructions.
Cook argues in the alternative that if there were a pre-existing condition and a subsequent injury in this case, the defendant is still liable for the entire injury because Dr. Hayne was unable to determine "when the aggravation stopped and the plaintiff returned to baseline." Cook argues because Dr. Hayne could not apportion his injury, he is entitled to damages for all of it. See Becker v. D E Distrib., 247 N.W.2d 727, 730-31 (Iowa 1976). This theory, he claims, invalidates the pre-existing condition instruction.
As Cook failed to raise this argument when he objected to the instruction, we conclude he has not preserved this argument for our review. See Grefe Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994). "[A] specific objection, if overruled, cannot avail the objector [on appeal] except as to the ground specified." Id, (quoting Porter v. Iowa Power Light Co., 217 N.W.2d 221, 231 (Iowa 1974)).
Even if this argument had been properly presented when objections to the jury instructions were made, however, we conclude it is without merit. Cook is essentially arguing that an "eggshell plaintiff" theory applies to this case and that the pre-existing condition instruction is contrary to this theory and was therefore an invalid instruction. There was no "eggshell plaintiff" instruction in this case, nor was one requested, so we are not faced with the problem of potentially competing theories in the jury instructions. More importantly, evidence of an inability to apportion injuries is not inherently contradictory with evidence of a pre-existing condition. See Waits, 572 N.W.2d at 578 (holding it is not improper for a court to give the jury both pre-existing condition and "eggshell plaintiff" instructions). It is the jury's responsibility to resolve factual disputes, not the court's responsibility. Id. We affirm on this issue.
Cook's final argument is that the trial court erred in denying his motion for a new trial on the basis that the jury award was inadequate. Cook claimed the award was consistent with an award for only temporary injury, and it did not compensate him for the full amount of his medical costs. We review the denial of a motion for a new trial for abuse of discretion. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). If the jury verdict is not supported by sufficient evidence and fails to effectuate substantial justice, a new trial may be ordered. Id.
Evidence at trial indicated both Doctor Abernathey and Doctor Nelson concluded Cook was suffering from a temporary back strain, and further, that the surgery would not have been necessary for that strain. Other evidence, specifically from expert witness Daubert, indicated that a side impact of minimal force, like the one Cook suffered, would not, in itself, have resulted in such a severe lower back injury. The jury's award of $25,000 based on the finding that the accident caused Cook only temporary injury to his lower back was supported by the record. We affirm the trial court on this issue.