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Rowe v. Munye

February 17, 2004


Hennepin County District Court File No. P1 01 013595

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Wright, Judge.


I. Under Minnesota law, a person who has a pre-existing disability or pre-existing medical condition at the time of an accident is entitled to damages for any aggravation of that pre-existing condition, even though the particular results would not have followed if the injured person had not been subject to the pre-existing condition. Damages are limited, however, to those results that are over and above the results that would have normally followed from the pre-existing condition, had there been no accident.

II. The jury instruction for aggravation of personal damage provided in CIVJIG 91.40 which instructs the jury that "[i]f you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all the damages," misstates Minnesota law, and, when this instruction is given in a case that involves both a new injury and a pre-existing disability or medical condition, it constitutes prejudicial error.

The opinion of the court was delivered by: Lansing, Judge

Reversed and remanded


In an action for personal injuries sustained in a car accident, Cheryl Rowe presented medical evidence of a new injury and an aggravation of a pre-existing condition. Over Mohamed Munye's objection, the district court instructed the jury, using CIVJIG 91.40, that if they were unable to separate damages caused by the pre-existing condition from the existing medical condition, then Munye would be liable for all of the damages. The jury returned a verdict for Rowe against Munye, and Munye appeals from the resulting judgment.


The district court conducted a three-day jury trial on the issue of damages sustained by Cheryl Rowe when Muhamed Munye's car struck her car from behind as she made a left turn. Munye, in his answer to Rowe's complaint, denied liability. He alleged that his car, in turn, had been struck from behind by an unidentified car that had either caused a second collision with Rowe's car or pushed his car into hers. Rowe believed that a third car, driven by a friend of Munye's might have been involved in the accident, but she was unable to ascertain the identity of this driver. Because of the alleged involvement of an unidentified car, Rowe sued her uninsured motorist carrier, Employers Mutual Ins. Co., as well as Munye.

Munye did not cooperate in the discovery process. After he failed to answer interrogatories, attend his three scheduled depositions, and appear for non-binding arbitration, Rowe moved for summary judgment. Before the summary judgment hearing, the attorneys for all three parties reached an agreement that was stipulated on the record and incorporated into an order. The stipulation provided that if Munye again failed to appear for his rescheduled deposition, his affirmative defense alleging involvement of an uninsured driver would be stricken, Employers Mutual would be dismissed with prejudice, and the court would direct a verdict of liability against Munye, leaving only the issue of damages for trial. Munye failed to appear for his rescheduled deposition, and on his attorney's motion, the district court implemented the stipulated order.

At the jury trial on damages, Rowe testified that when Munye's car struck her car from behind, she was wearing a seatbelt. The force of the collision propelled her forward, but the seatbelt restrained her from striking any part of the car. Immediately after the accident she had a headache, and her neck was sore. The next day, she saw her chiropractor, Dr. Kelly Sheehan, who took x-rays, manipulated her spine, and applied traction. Rowe had experienced generalized pain in her neck, shoulders, and lower back over a period of years. The pain did not appear to be connected with any significant injuries to her back or neck but had required periodic appointments with chiropractors. She had begun receiving treatment from Sheehan three times a week beginning two months before the accident. About five months after the accident, an MRI showed that Rowe had a posterior disc herniation at C5 and C6 with mild posterior annular bulging at the C6-C7 level. Rowe continued treatment with Sheehan.

Two medical experts provided testimony at trial through videotaped depositions. Sheehan presented opinion evidence that Rowe suffered a permanent injury to the soft tissues of her neck and back as a result of the accident. He also testified that Rowe had degenerative neck problems before the accident. When asked whether Rowe's injuries were caused by the accident or aggravated by the accident, he testified: "I think they were actually both. I think they are aggravated and accentuated, and I think that there was more damage done to her."

Munye presented the videotaped deposition of Dr. Irman Altafullah, a consulting neurologist, who performed an independent medical examination. Altafullah testified that his physical examination showed that Rowe had a good range of motion in her neck and that the MRI revealed no pinched nerve in the neck that could account for Rowe's report of numbness in her right hand. He stated that as a result of the accident, Rowe may have suffered neck sprain or whiplash and also a lower back sprain. Based on Rowe's medical information, Altafullah believed "that this whiplash or sprain. . . was superimposed. . . on. . . a history of [Rowe's] longstanding neck, mid, and lower back pain." He concluded that Rowe had not sustained permanent aggravation or injury as a result of the accident. The record also contains the results of an examination by Dr. Ronald Tarrel, a consulting neurologist, who reported that Rowe developed increased soreness and headaches after the accident.

Rowe claimed that her damages attributable to the accident totaled $79,000. This amount included $6,000 for past medical damages; $15,000 for past pain, disability, and emotional distress; $52,000 for future pain, disability, and emotional distress; and $6,000 for future medical expenses.

At the close of trial, Rowe submitted proposed jury instructions, including CIVJIG 91.40. Munye's attorney objected to instructing the jury using CIVJIG 91.40. He contended that the last line of the instruction impermissibly shifted the burden of proving damages to Munye. The district court overruled the objection, concluding that CIVJIG 91.40 applied when the facts establish a pre-existing medical condition. In conformance with CIVJIG 91.40, the court instructed the jury:

There is evidence that Cheryl Rowe had a pre-existing disability or medical condition at ...

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