                      IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1583
                            Filed November 21, 2018


SUSANA RODRIGUEZ,
    Plaintiff-Appellant,

vs.

CYNTHIA MARIE SPENNER,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.



       Susana Rodriguez appeals from an adverse judgment in her personal-injury

suit against Cynthia Spenner. AFFIRMED.




       Robert D. Tiefenthaler of Tiefenthaler Law Office, PC, Sioux City, for

appellant.

       Patrick L. Sealey and Jacob V. Kline of Heidman Law Firm, PLLC, Sioux

City, for appellee.




       Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.

       Susana Rodriguez’s vehicle was struck from behind by Cynthia Spenner’s

vehicle at an intersection. Rodriguez filed this personal-injury action claiming

Spenner was negligent and caused Rodriguez injuries. Rodriguez appeals from

an adverse judgment, claiming the district court erred in instructing the jury and in

denying her motion for new trial.

       We review challenges to jury instructions for the correction of errors at law.

Sleeth v. Louvar, 659 N.W.2d 210, 213 (Iowa 2003). Our review of a district court’s

ruling on a motion for new trial depends upon the grounds raised in the motion.

Bryant v. Parr, 872 N.W.2d 366, 375 (Iowa 2015). If the motion for new trial was

based upon a discretionary ground, we review the court’s ruling for an abuse of

discretion. Clinton Physical Therapy Servs., P.C. v. John Deere Health Care, Inc.,

714 N.W.2d 603, 609 (Iowa 2006).

       Jury Instructions. Rodriguez objected to the trial court giving a proposed

jury instruction on pre-existing conditions.1 In the alternative, Rodriguez proposed

this modified instruction:


1
  The court instructed the jury on aggravation of a preexisting condition (Instruction No. 25)
and—at Rodriguez’s request—on the “eggshell plaintiff” (Instruction No. 26). Instruction
No. 25 provided:
                 If you find Plaintiff Rodriguez had a pre-existing condition in her
        neck and/or shoulder before this collision and this condition was
        aggravated or made active by this collision causing further suffering and/or
        disability, then she is entitled to recover damages caused by the
        aggravation. She is not entitled to recover for any physical ailment or
        disability which existed before this incident or for any injuries or damages
        which she now has which were not caused by Defendant Spenner’s
        actions.
Instruction No. 26 stated:
                 If Plaintiff Rodriguez had a condition making her more susceptible
        to injury than a person in normal health, then Defendant Spenner is
        responsible for all injuries and damages which are experienced by Plaintiff
                                          3


              If you find Plaintiff [Rodriguez] had a pre-existing condition
       before this collision and this condition was aggravated or made
       active by this collision causing further suffering and/or disability then
       she is entitled to recover damages caused by the aggravation. She
       is not entitled to recover for any physical ailment or disability which
       existed before this incident or for any injuries or damages which she
       now has which were not caused by the defendant’s actions.
              However, if you determine that any pre-existing condition was
       asymptomatic before the collision, then you should refer to
       [proposed] Instruction No. 18 [Previous Infirm Condition Instruction].

The trial court overruled Rodriguez’s objection to Instruction No. 25 and denied the

request for the modified instruction.

       We must address whether there is sufficient evidence of a preexisting

condition to warrant the instruction.     “When we weigh the sufficiency of the

evidence to support a requested instruction, we review the evidence in the light

most favorable to the party seeking the instruction.”         Weyerhaeuser Co. v.

Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000).

       Viewing the evidence in the light most favorable to Spenner, who sought

the instruction, the jury could have found the following.         On May 22, 2013,

Rodriguez (in front) and Spenner (behind Rodriguez) were stopped at a traffic light.

The two vehicles began to move forward, Rodriguez stopped her vehicle, and

Spenner’s right front bumper came in contact with Rodriguez’s left rear bumper.

At the time the vehicles came in contact, Spenner had not applied the gas pedal

and was traveling less than five miles per hour. Rodriguez was wearing her

seatbelt, airbags did not deploy, and no part of her body came into contact with

any part of her car. Neither vehicle showed visible damage, and neither vehicle



       that are caused by Defendant’s actions, even though the injuries claimed
       produce a greater injury than those which might have been experienced by
       a normal person under the same circumstances.
                                         4


was repaired after the incident. Rodriguez alleged the incident caused damage to

her neck and left shoulder and ultimately resulted in the necessity for two

surgeries.

       Rodriguez’s medical records, however, indicate she suffered migraines

dating back to 1986, neck pain dating back to 1987, shoulder pain dating back to

1998, and hand pain and numbness dating back to 2002. Spenner’s counsel

elicited testimony that while Rodriguez did not seek regular medical treatment for

these conditions from 2009 to 2013, she did have multiple musculoskeletal

problems which required visits to a doctor, including an issue with tingling and

numbness in her hand. There was also evidence that Rodriguez avoided medical

treatment due to financial concerns. Rodriguez’s medical records include two

magnetic resonance imagings (MRIs) read by different radiologists.              The

radiologist from the 2009 MRI described the findings as indicating “moderate

bilateral neuroforaminal stenosis” (“the narrowing of the holes where the nerves

come out”). The radiologist from the 2013 MRI described “the disk protrusion

causes moderate to severe left foraminal stenosis.” Dr. Johnson stated the only

difference between the two MRI studies “might be if you really picked through the

language here, and different radiologists will often use different language to

describe the same thing.” We conclude there was evidence to support the giving

of a preexisting condition that may have been aggravated by the collision.

       In Waits v. United Fire & Casualty, Co., 572 N.W.2d 565, 577–78 (Iowa

1997), our supreme court addressed a claim by an insurance company that it was

improper to give instructions on both the aggravation of a preexisting condition and

an eggshell plaintiff.
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               Whether the eggshell plaintiff rule applies or the aggravation
       rule applies depends in the first instance on when the pain or
       disability for which compensation is sought arose. Where the prior
       condition resulted in pain or disability before the second injury, the
       tortfeasor is liable only for the additional pain and disability arising
       after the second injury. 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.
               [The defendant] United Fire suggests that it is improper for the
       court to give both an eggshell plaintiff instruction and an aggravation
       instruction. It contends the trial court should decide which instruction
       fits the proven facts and give only that instruction. We disagree.
       Where there is testimony that establishes a factual basis for both
       instructions, a trial court does not commit reversible error by
       submitting both instructions to the jury. It is the jury’s responsibility
       to resolve factual disputes, not the court’s responsibility. Moreover,
       we can envision situations where the principles embodied in both
       instructions might apply. For example, if the prior condition has
       caused some disability or pain that is aggravated by the second
       injury and at the same time the additional harm resulting from the
       second injury is greater than it would have been in the absence of
       the prior injury, the jury would need both instructions to accurately
       determine the defendant’s liability. Applying the aggravation rule and
       the eggshell plaintiff rule in the example given, the jury should
       compensate the plaintiff for the entire pain and disability resulting
       from the defendant’s fault but not for any pre-existing pain and
       disability.

Waits, 572 N.W.2d at 577–78 (third emphasis added).

       Rodriguez does not challenge the giving of the eggshell plaintiff instruction.

In fact, she requested that instruction. And as stated by the Waits court, it is not

reversible error to submit both instructions to the jury where there is a factual basis

to do so. Id. at 578. Here, the jury could have determined Rodriguez was

asymptomatic or symptomatic but without the financial means to obtain medical

treatment that she may have needed. Both Instructions 25 and 26 permit an award
                                             6


of damages if the jury determined damages were caused by the defendant.2 Under

the circumstances of this case, we find no reversible error occurred as a result of

the jury instructions.

       Motion for new trial. Here, the jury concluded Spenner, though negligent,

did not cause any of Rodriguez’s damages. This was a low-speed, low-impact,

no-property-damage collision.        Despite the opinions of Rodriguez’s medical

providers and experts,3 the jury was free to reject that testimony. See Crow v.



2
  We note neither party referenced Instruction No. 25 in their closing arguments nor does
the record reflect the jury submitted any question concerning either Instruction Nos. 25 or
26 during their deliberations that might reflect confusion.
3
  According to Rodriguez, six treating physicians “concluded the collision was the cause
of the injuries and need for treatment” that Rodriguez received in this matter. She
mischaracterizes some of the medical records and reads too much into others. For
example, Dr. Scott Murray, the emergency room doctor noted “acute motor vehicle
collision with cervical and shoulder strain.” This is a far cry from a finding of causation.
         Dr. Mark Kruse, who Rodriguez saw on July 1, 2013, several weeks after the
accident, and wrote:
                  Examination findings indicate the patient is suffering from an acute
         moderate sprain strain complex with multiple levels of spinal subluxations
         causing brachial radiculitis intercostal neuritis and lumbago. Examination
         shows she suffers with a pre-existing discogenic spondylosis[,] a reverse
         cervical curve and osteoarthritis. It is in my opinion based on a reasonable
         medical certainty this patient suffered a whiplash injury causing new
         injuries and aggravating her pre-existing condition.
Thus, Dr. Kruse accepted Rodriguez’s report that the collision resulted in the “snapping of
the neck” that aggravated a preexisting condition.
         Rodriguez also cites a January 1, 2014 record by Dr. Sharon Vande Vegte with
the notation of neck pain during “2 month recheck for [motor vehicle accident] MVA” and
a December 31, 2013 record by Dr. Dustin Sorenson of “pain that is a result of an
accident.” These notations may be nothing more than recitations of reports by Rodriguez.
         Dr. Matthew Johnson testified that though “the underlying changes in the spine
were not caused by the accident,” if Rodriguez was not symptomatic and not having any
pain prior to the accident and then had symptoms after the accident, “then the accident
caused some type of trauma or injury to the nerve that continued to cause pain.”
         Finally, Rodriguez points to testimony by Dr. Steven Stokesbary, who opined
Rodriguez sustained a “classic seat belt injury”—“a left shoulder impingement with rotator
cuff tear, likely caused by the accident.” We observe Dr. Stokesbary testified:
                  Most of what I determine [causation of injury] on are what the
         patient reports to me as what happened during the accident, how they were
         hit, assuming it was a vehicle accident, or how the vehicle was hit, or how
         their vehicle hit something else, some other object, what happened during
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Simpson, 871 N.W.2d 98, 107 (Iowa 2015) (“It is well-settled that the law requires

a jury to consider expert testimony in the same manner it considers any other

testimony. The jury may accept an expert’s testimony or reject it.” (citations

omitted)).

                 A district court has broad discretion in deciding whether to
          grant or deny a new trial on the ground that the verdict failed to
          administer substantial justice between the parties. We will find an
          abuse of discretion only when a district court has exercised its
          discretion “‘on grounds clearly untenable or to an extent clearly
          unreasonable.’” When the evidence amply supports the verdict
          reached by the jury, a district court abuses its discretion when it
          grants a new trial because it would have reached a different result.

Id. at 108 (citations omitted). There was substantial evidence from which the jury

could find the collision did not cause Rodriguez damage following the collision.

          Because the evidence does support the verdict reached by the jury, we

affirm.

          AFFIRMED.




          the collision, if they can recall, and then any emergency reports that I might
          see.
