The district court's use of a jury instruction based on CIVJIG 91.40 was erroneous where appellants did not allege or seek any damages for any aggravation of a pre-existing disability or condition, and respondent alleged that there were no aggravation damages and instead argued that all of the post-surgery damages were and will continue to be a result of a pre-existing disability or condition.
A new trial is not required where the instruction, even if erroneous, was surely not prejudicial based on the facts of this case and arguments of counsel.
Reversed and judgment reinstated.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Gilbert, Justice
Dissenting, Anderson, Russell A., J. and Stringer, J.
This case involves whether or not the district court erred in giving an aggravation of a pre-existing condition instruction based on CIVJIG 91.40 and, if so, whether a new trial is warranted. Appellants Dean E. Morlock and Judy A. Morlock brought suit against respondent St.áPaul Guardian Insurance Company after Dean Morlock was injured in an automobile accident, seeking to recover underinsured motorist benefits for Dean Morlock's injuries and for Judy Morlock's loss of consortium. At the end of trial, and over respondent's objections, the district court instructed the jury on aggravation of a pre-existing condition based on CIVJIG 91.40. The jury returned a special verdict awarding $508,060.50 in damages to Dean Morlock and $125,000 for loss of consortium to Judy Morlock. Respondent moved for judgment notwithstanding the verdict, a new trial, or, in the alternative, remittitur of the damages award. This motion was denied and respondent appealed, arguing that the district court erred in giving a prejudicial jury instruction based on CIVJIG 91.40 and in declining to grant remittitur. The court of appeals reversed and remanded for a new trial. We reverse.
On September 15, 1996, an underinsured motorist rear-ended a car driven by appellant Dean Morlock (Morlock). Appellants sued respondent seeking to recover underinsured motorist benefits for severe and permanent back and neck injuries alleged to be the result of this accident. Morlock conceded that he had some intermittent back strains through the years after injuring his back in 1957; however, he argued that he had fully recovered and had been free of any symptoms prior to the accident.
According to Morlock's own testimony, the accident caused, among others, the following consequences: (1) he is only able to sleep for 2 or 2 1/2 hours every night, (2)áhe is unable to pick up his grandson, (3) he is unable to walk up and down from his home to the lakeshore, (4) he is unable to do maintenance or chores around his house, (5)áhe is unable to go into his son's swimming pool, (6) he is unable to work as effectively at his job as a real estate agent, and (7) he can no longer serve as a condemnation commissioner or real estate teacher because of the sitting and standing required for these activities. He testified that all of these consequences were the result of his injuries from the accident rather than any of his pre-existing conditions. Judy Morlock did not testify.
Appellants presented several other witnesses at trial. Darlene Schuman, Morlock's sister-in-law, testified that before the accident Morlock was an active man who "was able to do anything that needed to be done at [appellants'] house," which included cleaning the garage, loading suitcases when traveling, and doing yard work. She also testified that Morlock was able to bowl, golf, and dance before the accident. She then testified that as a result of the accident Morlock cannot do the things that he used to be able to do and instead has to walk with two canes.
Frank Schuman, Morlock's brother-in-law, testified that during a hunting trip with Morlock around 1990, he witnessed Morlock dragging an 8-point mule deer, that dressed out at 205 pounds, back to camp by himself. He further testified that Morlock was always in good athletic condition before the accident and that Morlock had absolutely no problem with walking and turning when he hunted with him. Schuman testified that, prior to the accident, he had witnessed Morlock use a "monstrous chainsaw" that was "more than what [Schuman cared] to lift and carry, let alone use, but [Morlock] was very capable of using that to cut large trees."
Several other witnesses also testified about how Morlock's physical capabilities changed as a result of the accident. Morlock's son, who worked with Morlock, testified that before the accident his dad was "always real active." He stated that before the accident he had hunted deer with his dad every year in Roseau and that, as a result of the accident, Morlock had to get a special permit allowing him to hunt from his car on some land just west of Prior Lake. Morlock's son testified that Morlock can no longer bowl and has to use a golf cart to get from his house to the lakeshore. Morlock's daughter also testified, stating that Morlock has to use a golf cart to go down to the lakeshore and that he is unable to lift his grandson. She stated, "the things that he used to be able to do on his own, he needs assistance with now."
Two of Morlock's co-workers also testified. One co-worker testified that as a result of the accident Morlock has difficulty getting in and out of cars and that it appears to be painful for him to do so. She testified that since the accident she has never seen Morlock walking without the assistance of two canes. Another co-worker stated that he had witnessed "a middle aged man grow old in a hurry." He further testified that Morlock is slow at getting in and out of cars and sales meetings appear to be extremely uncomfortable for him.
Testimony from videotaped depositions of two medical experts was introduced in support of appellants' claims. Dr. Bruce Norback, a neurologist who began treating Morlock in January 1997, testified that Morlock had been given a 10 percent workers' compensation disability rating in 1957. This rating was for back injuries incurred when Morlock fell off a loading dock and landed 4 to 5 feet below across a 2 x 6 brace, injuring his right lumbar area. Norback testified that this 10ápercent disability was permanent and that it had not gone away and that Morlock continues to be treated for the low back injury he suffered in 1957. He went on to testify that the injuries from the 1957 fall, specifically pain in his right lumbar area and radiation into the right thigh and calf, involved the same sort of pain he was complaining about after the 1996 accident. Norback acknowledged that Morlock had been hospitalized several times for problems associated with the 1957áinjury prior to the 1996 accident and that these preaccident complaints about low back pain and pain going down into Morlock's right leg were identical to Morlock's complaints made after the accident. However, when Norback was asked directly if the 1957 injury had anything to do with the postaccident symptoms and pain Morlock had described to Norback, he replied,
Well, I don't think it does. *á*á* [A]ll the way through his [sic] 1970's, 1980's [there] is intermittent back pain that he goes to see physicians for. But really after 1991 there is this hiatus of nothing, no bad flare-ups of back pain, no hospitalizations, nothing else. *á*á* I think the culprit here is still the accident of September 1996 to a reasonable degree of medical certainty.
Norback testified that all of the neck, spine, and back injuries complained about by Morlock at trial were attributable to the September 1996 accident. Specifically, an MRI scan for both Morlock's back and neck revealed a far lateral herniated disk at L2-3 on the right side, possible L2 radiculopathy (disk pinching the nerve), a herniated disk at L3-4áon the right side and a central protruding or herniated disk obliterating the epidural space at C2-3. While Norback recognized that a neurosurgeon was able to perform surgery on the herniated disks in Morlock's back, he went on to conclude that the injuries to Morlock's neck were not surgically treatable.
Dr. John Rhoades, Morlock's family physician, also testified on appellants' behalf. He indicated that he had no knowledge of Morlock's 1957 accident or any treatment Morlock received as a result of that accident. Rhoades testified that Morlock began attending physical therapy shortly after the 1996 accident but that his condition did not improve. According to Rhoades, as a result of the 1996 accident Morlock was unable to work, had a limited range of motion for his neck, had neck pain, shoulder pain, lower back pain, daily headaches, and was having trouble sleeping. Rhoades further testified that Morlock had some degeneration of his spine over the years and chronic arthritis and as well as various problems with his elbows, shoulder, and knee prior to the 1996 accident. When asked directly whether any of Morlock's current problems were related to any pre-existing medical conditions Rhoades responded that they were not, except that if Morlock was having any knee pain, it would be related to his pre-existing knee problems.
Respondent presented only one medical witness, Dr. Daniel Ahlberg. He testified that based on his review of Morlock's medical records and his examination of Morlock, he believed that none of Morlock's complaints for future claims after the surgery and recovery period were the result of the car accident. Instead, Ahlberg testified all of these complaints were the result of his degenerative diseases that predated the accident and Morlock's "functional overlay" of associating his pain with the accident.*fn1 Ahlberg testified,
[Morlock's] principal problem is chronic pain syndrome, which basically is the fact that he has a background, degenerative problem with spine disease, primarily in the lower back, also to some degree in his neck, and although that's present, there's substantial exaggeration of his symptomatology. There's no evidence for any neurological deficit.á*á*á*á[H]is principal problem is chronic pain substantially exaggerated by dysfunctionality *á*á*. á
He concluded that Morlock's disk herniations were appropriately treated with surgery and that Morlock had fully ...