      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Mar 31 2015, 10:17 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Steven P. Polick                                         David Cerven
      Steven P. Polick & Associates, P.C.                      Highland, Indiana
      Griffith, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      SVT, LLC d/b/a ULTRA                                     March 31, 2015
      FOODS,                                                   Court of Appeals Case No.
                                                               45A03-1407-CT-238
      Appellant-Defendant,
                                                               Appeal from the Lake Superior
              v.                                               Court Civil Division
                                                               The Honorable John R. Pera, Judge
      Benny Becchino,                                          Case No. 45D10-1205-CT-00090
      Appellee-Plaintiff




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Benny Becchino, who had preexisting shoulder injuries, slipped and fell while

      shopping at an Ultra Foods grocery store. After the fall, his shoulder pain

      worsened and ultimately required surgery. The store’s third-party administrator

      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015     Page 1 of 18
      denied Becchino’s initial injury claim in part on the ground that the area where

      he fell had been swept fifteen minutes prior to the fall. Becchino filed suit

      against SVT, LLC (SVT), and asked in his initial discovery request for all

      surveillance tapes or any other depiction of Becchino’s fall and/or the fall scene

      on or about the date of the fall. SVT produced surveillance footage beginning

      approximately fourteen minutes before Becchino’s fall, and when Becchino

      asked for more of the surveillance footage, it had already been automatically

      recorded over. At trial, Becchino argued and requested a jury instruction on

      spoliation of the evidence. Becchino also set out to prove and submitted a jury

      instruction stating that there was no logical basis for apportionment of damages

      and, as such, SVT was liable for the entire amount. Because we find that there

      was evidence supporting the spoliation instruction and the apportionment

      instruction was a correct statement of law, the trial court did not abuse its

      discretion in issuing these instructions. We affirm.



                            Facts and Procedural History
[2]   On March 26, 2012, at 11:27 a.m., Benny Becchino was shopping for a few

      items at SVT’s Ultra Foods in Highland, Indiana, when he slipped and fell.

      After he fell, he noticed that on the floor “there was wet stuff and [] two

      grapes.” Tr. p. 428. He stood up quickly and was approached by seafood

      manager Janice Witt, who had witnessed Becchino’s fall. Witt also saw the

      grapes on the floor – “one that [was] smashed and one that was whole.” Id. at




      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 2 of 18
      658. Witt called store manager Vince McDonnell, who came to the scene and

      made a “Customer Injury Report.”


[3]   In the report, the “Nature and Extent of Injury” is reported as: “LEFT

      SHOULDER HURTS, L [L is circled] KNEE HURTS.” Ex. 23. On the

      second page of the report, STATEMENT OF INJURED, Becchino filled in his

      name and the explanation of the incident: “I, Benny Becchino, do hereby offer

      the following explanation of the above incident. Slipped & fell from grapes on

      floor.” Id. Below this, there is a section with the heading WITNESS

      STATEMENT, which reads as follows: “I, Jan Witt, do hereby offer the

      following explanation of the above incident. Sa[w] him slip on grapes jumped

      back up and held his back.” Id. According to store manager McDonnell, this

      report then went to the safety manager to make sure that all of the information

      was filled in, and also to loss prevention “to . . . see if they could find this

      incident on video and burn the disc for it.” Tr. p. 286.


[4]   When loss prevention receives a report, they “go back to the camera where the

      incident happened . . . to see if they can see the event.” Id. at 277. Loss-

      prevention people watch the footage and burn to a disc what they think is

      relevant. Then, because the cameras are on “kind of a loop[,]” every sixty days

      the digital footage gets copied over. Id. Once the footage is recorded over, it

      cannot be restored.


[5]   On the day of Becchino’s fall, Kevin Sahm was the utility clerk assigned to

      sweeping the store floors. The utility clerk assigned to floors is supposed to


      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 3 of 18
      respond to clean-up calls promptly as well as sweep the store floors every two

      hours. As to the regular sweeping of the store, there is a “sweep log” in which

      the utility clerk records his sweeping activity. Id. at 699. Sahm’s regular

      practice was to write in the sweep log that each sweep took fifteen minutes,

      even when a sweep actually took longer to complete. Id. at 700. So, for

      instance, a typical sweep log might read as follows: 7:00 to 7:15, 9:00 to 9:15,

      and so forth. On the day of Becchino’s fall, March 26, Sahm wrote on the

      sweep log that he had swept from 11:00 to 11:15 in the morning. Ex. 24.


[6]   Before his fall at Ultra Foods, Becchino suffered from long-term pre-existing

      conditions in his back and shoulders. He had previously had four surgeries on

      his shoulders (two on each side), the last of which was in 2004. From 2004 to

      2012, when the fall occurred, Becchino “always had some pain in there. . . . But

      he was capable of doing things.” Tr. p. 417. He did not receive any treatment

      on his shoulders—including physical therapy or pain medication—during this

      time period.


[7]   After he finished filling out the customer injury report with McDonnell,

      Becchino bought a couple of items at Ultra Foods, and then went on to another

      store afterwards. The next morning, however, Becchino went to the emergency

      room complaining of shoulder pain, and an x-ray was performed. Becchino

      then saw a nurse practitioner, who recommended that he see an orthopaedic

      surgeon, David J. Harris, M.D. Becchino visited Dr. Harris on April 3, and

      received Cortisone injections behind his shoulders. MRIs revealed “recurrent

      tears in the rotator cuff tendons. On the left side, he had his acromioclavicular

      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 4 of 18
      joint cleaned out.” Id. at 560. Ultimately, months later, Becchino had surgery

      performed on his right shoulder followed by physical therapy. Id. at 451.


[8]   Shortly after the fall, Becchino filed a claim with SVT’s third-party

      administrator, who responded by a letter dated April 11, 2012. This letter reads

      in relevant part as follows:

               . . . Our investigation confirms you were walking in front of the food
               promotion area at the end of aisle number 2. You slipped and fell onto
               the floor after stepping on a grape. The incident did not occur in the
               produce area. There were only 2 grapes found on the floor. The store
               did not have any prior notice of loose grapes on the floor in the aisle.
               A sweep of the floors in the store was completed fifteen minutes prior
               to your fall. Our obligation is to pay claims where evidence places
               legal liability on our insured. Therefore, we respectfully deny liability
               on the part of our insured for this loss.
      Ex. 38.


[9]   Becchino’s attorney filed suit on May 2, 2012, about a month after the slip and

      fall. In his request for production of documents sent on May 16, Becchino

      requested “All pictures, videos, surveillance tapes or any other depiction

      showing the Plaintiff’s fall and/or the fall scene on or about March 26, 2012 at

      Ultra Foods . . . .” Id.; Tr. p. 41-43.1 But the only surveillance footage that was

      preserved from the day of Becchino’s fall begins at 11:13 a.m., fourteen minutes




      1
       In the transcript, Becchino’s counsel tells the trial court, and SVT does not dispute, that the request for
      production of documents was sent on May 16, 2012. But in the appendix and at Ex. 38, there are identical
      unsigned copies of this document, with the statement below Certificate of Service reading as follows: “I
      certify that on June 1, 2012, a true and complete copy of the above and foregoing pleading or paper was
      made upon each party or attorney of record herein . . . .” Appellant’s App. p. 18 (emphasis added); Ex. 38.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015              Page 5 of 18
       before Becchino’s 11:27 a.m. fall. Store manager McDonnell had reviewed the

       surveillance footage for thirty to forty-five minutes before Becchio fell, and had

       not seen Sahm sweeping in those videos. Tr. p. 399.


[10]   On June 21 SVT responded to this specific request for production of documents

       as follows:

               Attached are copies of four photographs taken at the scene on the date
               of the Plaintiff’s incident. Also submitted with this Response to
               Request for Production of Documents is a disk containing copies of
               the videos depicting the Plaintiff on the day of the accident.
       Appellant’s App. p. 19. On June 27 Becchino’s attorney sent a letter stating

       that he had reviewed portions of the discovery responses, including the

       surveillance video, and was interested in seeing the video of the area where

       Becchino fell starting at 10:00 a.m. Id. at 22. He also requested video from the

       “camera in the produce section” from 10:00 a.m. onwards. Id. But this

       surveillance footage was no longer available as this second request was now

       beyond the 60-day window after which the video was recorded over. Tr. p. 39.


[11]   A jury trial was held on March 24 - 26, 2014. At trial, Dr. Harris testified by

       way of his deposition as to the effect of the fall:

               [Becchino’s attorney]: . . . What role, if any, did the fall play in his left
               shoulder?
               [Dr. Harris]: Well, as far as did this – was it the sole cause of his
               tendon tearing or it worsening? With his current tendon tearing, it’s
               difficult to be exact [] because . . . I didn’t have a full image of what
               things looked like prior. But, certainly, Mr. Becchino’s symptoms,
               according to him, had dramatically progressed.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 6 of 18
               [Becchino’s attorney]: All right. So what -- sometimes we say there
               can be an aggravation of a pre-existing condition. Are you familiar
               with that?
               [Dr. Harris]: Absolutely.
                                                     *****
               [Becchino’s attorney]: Can you apportion the degree of the
               aggravation due to the fall versus what was there before?
               [Dr. Harris]: I don’t think with any medical certainty.
       Id. at 551-52.


[12]   At trial Becchino testified that from a “functional standpoint,” the kinds of

       things that cause pain now that didn’t before he fell include: “Hanging up a

       coat. Putting stuff in the microwave. Everyday things. My fishing. Just

       washing your hair. You know, whenever you move them arms upwards[.]. . .”

       Id. at 455.


[13]   During the jury-instruction conference, counsel for Becchino asked the trial

       court to issue an instruction on spoliation of the evidence. Specifically,

       Becchino’s counsel argued that his initial, general request for production of

       documents—which he intended as a request for “the whole day,” id. at 752—

       was sent within the sixty-day window of opportunity before which the

       surveillance video was recorded over. The parties disagreed over the correct

       statement of law on spoliation. The trial court stated as follows:

               So we’ve got the claims people saying to the Plaintiff, we swept the
               area 15 minutes before you fell. . . . [H]owever, then we get to trial and
               we’ve got the testimony of the store manager saying, I looked at the
               video, as of quarter to 11:00 there was nobody sweeping the floor.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 7 of 18
                  Now there’s an inference there . . . that between the time this letter was
                  written and at some point thereafter . . . it was discovered that the
                  video didn’t support the assertion that the floor had been swept.
                  Which leads to an inference, perhaps, that it was intentionally
                  destroyed as a result of that.
                  In any event, it’s clear that as of the date of the request for production
                  that was sent over to the Defendant . . . and still within that 60 day
                  window when the video was available, the Plaintiff asked for video of
                  March 26th. I think, at that point, the Defendant was on notice that
                  that video should have been preserved for the entire day.
                  So, I do think that the instruction is warranted. The objection of the
                  Defendant is overruled. And I’ll be[] giving it in [the] form of [Model
                  Instruction] 535.[2]
       Id. at 757-58. Thereafter, the trial court instructed the jury as to spoliation as

       follows:

                  If a party fails to produce evidence under the party’s exclusive control,
                  you may conclude that the evidence the party could have produced
                  would have been unfavorable to the party’s case.
       Id. at 792.


[14]   Becchino’s counsel also requested an instruction on apportionment of damages,

       Plaintiff’s Jury Instruction No. 6, which reads as follows:

                  A pre-existing condition, if aggravated by a defendant’s conduct, may
                  result in the defendant’s full liability for the resulting injury. If there is
                  no basis for apportionment between the pre-existing condition and the




       2
           Model Instruction No. 535 reads as follows:

                If a party fails to . . . [produce documents] under the party’s exclusive . . . [control], you may
                conclude that the . . . [documents the witness could have produced] would have been
                unfavorable to the party’s case.
       Ind. Model Civil Jury Instructions, Instruction No. 535 (Ind. Judges Ass’n 2014).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015                    Page 8 of 18
               extent of the aggravation, then the defendant is liable for the entire
               injury.
       Appellee’s App. p. 1. SVT put forth Indiana Model Civil Jury Instruction No.

       926 (Model Instruction 926), which reads as follows: “Plaintiff, Benny

       Becchino, is not entitled to recover damages for any physical condition that

       existed before the incident.” Id. at 2 (citing Ind. Model Civil Jury Instructions,

       Instruction No. 926 (Ind. Judges Ass’n 2014)).


[15]   At the instruction conference, as the parties argued over instructions regarding

       apportionment, the following colloquy occurred:

               The [trial c]ourt: . . . [i]s there a Model [Instruction] . . . with respect to
               Plaintiff’s Number 6?
               [Becchino’s counsel]: I couldn’t find one, your Honor. That’s why I
               drafted this one. . . . I went through this with the doctor. I asked him
               twice, can you apportion; and he said, no, I can’t. And this – that
               Dunn [v. Cadiente, 516 N.E.2d 52 (Ind. 1987)] case says [] – it’s my
               burden. And if I meet it and it can’t be apportioned, then they eat it
               all. They’re responsible for the entire injury. That’s why I went
               through that exercise with the physician. And they haven’t come forth
               with any proof to dispute that.
               The [trial c]ourt: All right.
               [SVT’s counsel]: My turn? It’s directly contrary to the Model
               Instruction 926. 926 says plaintiff is not entitled to recover damages
               for any physical condition that existed before the incident. Period. It’s
               contrary to Indiana law. . . . If you look at the committee comments .
               . . talking about an aggravation of a previous injury . . . I’m quoting:
               A defendant is ordinarily liable for the aggravation or exacerbation of
               a pre-existing condition, comma, but not for the condition as it was.
               [citations omitted]. . . . So, this concept that, well, if the doctor can’t
               say how much was aggravated, we buy the whole enchilada, is just
               complete nonsense.
               [Becchino’s counsel]: . . . [T]hat’s the law in Indiana, your Honor. . . .
               [T]he Supreme Court said that in Ca[d]iente . . . . I met my burden. I
       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 9 of 18
               asked the doctor, can you apportion it. And he said twice in this
               deposition, no.
                                                     *****
               The [trial c]ourt: I’m giving the instruction. It is supported by the
               evidence and the principle of law [] as annunciated in Dunn [v.
               Caliente].
       Tr. p. 764-69.


[16]   Before giving final instructions to the jury, the trial court asked the attorneys if

       there were any objections to the final jury instructions, and SVT’s counsel

       responded, “None other than what we argued previously, Judge.” Id. at 787.


[17]   Ultimately, the trial court instructed the jury on apportionment as follows:

               Generally, a plaintiff is not entitled to recover damages for any
               physical condition that existed before the accident. However, a pre-
               existing condition, if aggravated by a defendant’s conduct, may result
               in the defendant’s full liability for the resulting injury. If there is no
               basis for apportionment between the pre-existing condition and the
               extent of the aggravation, then the defendant is liable for the entire
               injury.
       Id. at 798. Thus, the trial court combined the two instructions – Plaintiff’s Jury

       Instruction No. 6 and Defendant’s Jury Instruction No. 4 (or Model Instruction

       926).


[18]   Following the trial, on March 26 the jury returned a verdict in favor of

       Becchino, in the amount of $350,000 plus costs. On April 21, 2014, SVT filed a

       motion to correct error, arguing that the judgment was excessive and was a

       result of erroneous jury instructions. Appellant’s App. p. 31. The trial court

       denied the motion to correct error.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 10 of 18
[19]   SVT now appeals.


                                  Discussion and Decision

[20]   In reviewing a trial court’s decision to give or refuse a tendered jury instruction,

       this Court considers whether the instruction (1) correctly states the law, (2) is

       supported by evidence in the trial record, and (3) is covered in substance by

       other instructions. Gary Cmty. Sch. Corp. v. Lardydell, 8 N.E.3d 241, 246 (Ind.

       Ct. App. 2014). The trial court has discretion in instructing the jury and will be

       reversed on the last two points only when the instructions amount to an abuse

       of discretion. Id. To constitute an abuse of discretion, the instructions given

       must be erroneous, and the instructions taken as a whole must misstate the law

       or otherwise mislead the jury. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct.

       App. 2012). As to the question of whether the instruction is supported by the

       evidence, we note that the quantum of evidence necessary for the giving of an

       instruction is deliberately set at a relatively low level in order to assure the right

       of parties to have the trier of fact determine factual disputes and to preserve the

       constitutional right to trial by jury. Upham v. Morgan Cnty. Hosp., 986 N.E.2d

       834, 838 (Ind. Ct. App. 2013), reh’g denied. Furthermore, under the abuse-of-

       discretion standard, we “view the evidence in a light most favorable to the

       decision” of the trial court. Musgrave v. Aluminum Co. of Am., 995 N.E.2d 621,

       638 (Ind. Ct. App. 2013) (quoting Short v. State, 962 N.E.2d 146, 148 (Ind. Ct.

       App. 2012)).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 11 of 18
                                     I. Spoliation Instruction
[21]   SVT argues first that the trial court abused its discretion in giving Indiana

       Model Civil Jury Instruction 535 on spoliation to the jury because there was no

       evidence that SVT intended to destroy or otherwise suppress evidence. See

       Appellant’s Br. p. 14. “Spoliation” is defined as “[t]he intentional destruction,

       mutilation, alteration, or concealment of evidence . . . .” Black’s Law Dictionary

       1620 (10th ed. 2014). In Indiana, the exclusive possession of facts or evidence

       by a party, coupled with the suppression of the facts or evidence by that party,

       may result in an inference that the production of the evidence would be against

       the interest of the party that suppresses it. Porter v. Irvin’s Interstate Brick & Block

       Co., Inc., 691 N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998) (citing Westervelt v.

       Nat’l Mfg Co., 33 Ind. App. 18, 69 N.E. 169, 172 (1903)). “While this rule will

       not be carried to the extent of relieving a party of the burden of proving his case,

       it may be considered as a circumstance in drawing reasonable inferences from

       the facts established.” Id. at 1365 (quoting Great Am. Tea Co. v. Van Buren, 218

       Ind. 462, 33 N.E.2d 580, 581 (1941)). The rule not only applies when a party

       actively endeavors to prevent disclosure of facts, but also when the party

       “merely fails to produce available evidence.” Id. (quoting Morris v. Buchanan,

       220 Ind. 510, 44 N.E.2d 166, 169 (1942)). These spoliation cases are directed to

       a party which has suppressed evidence believed to be in its control at the time of

       the lawsuit; however, this Court wrote, “we see no reason why they should not

       be applied where the party spoliates evidence prior to the commencement of a

       law suit that the party knew or should have known was imminent.” Id.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 12 of 18
[22]   In this case, the trial court gave the following spoliation instruction to the jury:

               If a party fails to produce evidence under the party’s exclusive control,
               you may conclude that the evidence the party could have produced
               would have been unfavorable to the party’s case.
       Tr. p. 792. On appeal, SVT does not dispute that that the instruction is a

       correct statement of law; instead, SVT argues that the trial court abused its

       discretion in giving the spoliation instruction because there is no evidence that

       SVT “actively endeavor[ed] to prevent disclosure of facts.” Appellant’s Br. p.

       12. SVT continues:

               [T]he Indiana spoliation model instruction requires that the missing
               evidence be in the exclusive control of the party and that the party
               failed to turn it over in response to specific written discovery. The
               finder of fact can only determine the second element of spoliation,
               culpability, after determining which materials a party was asked to
               produce, whether they were in it exclusive possession, and[] when the
               request was made.
       Id. at 18. Here, SVT maintains that Becchino’s original discovery request for

       “All pictures, videos, surveillance tapes or any other depiction showing the

       Plaintiff’s fall and/or the fall scene on or about March 26, 2012 at Ultra Foods .

       . . .” was not specific enough to warrant the inference that SVT’s failure to

       produce video footage from earlier than fourteen minutes before Becchino’s fall

       rose to the level of spoliation. Appellant’s App. p. 16. Becchino contends,

       however, that SVT’s initial denial of Becchino’s claim on the ground that the

       area had been swept fifteen minutes before the fall coupled with the failure to

       produce and preserve footage from earlier than fourteen minutes before the fall

       adequately supports the giving of the spoliation instruction. We agree.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 13 of 18
[23]   Becchino’s fall occurred on March 26, 2012. In a letter dated April 11, SVT’s

       third-party administrator denied liability, in part on the ground that “A sweep

       of the floors in the store was completed fifteen minutes prior to your fall.” See

       Ex. 38. Becchino filed his complaint on May 2, and his initial request for

       production of documents was on May 16 – within the sixty-day window before

       the store’s surveillance footage is recorded over. In this initial discovery

       request, he asked for “All pictures, videos, surveillance tapes or any other

       depiction showing the Plaintiff’s fall and/or the fall scene on or about March 26,

       2012 at Ultra Foods . . . .” Ex. 38 (emphasis added). Furthermore, as argued

       by Becchino:

               Vince McDonnell, the store’s manager, . . . knew that the sweep log
               for the day of the fall completed by Kevin Sahm was not accurate. He
               even looked at the video, as did loss prevention, well before the sixty
               (60) day loop period knowing Sahm’s sweep times were inaccurate,
               knowing a sweep of the area was important to the defense of a claim,
               yet SVT failed to preserve the only evidence that would have shown if
               and when the area where Becchino fell was last swept.
       Appellee’s Br. p. 19 (internal citations omitted).


[24]   SVT concedes in its reply brief that the level of culpability “can range from

       negligent conduct to intentional destruction.” Appellant’s Reply Br. p. 3. The

       quantum of evidence necessary for the giving of an instruction is deliberately set

       at a relatively low level in order to assure the right of parties to have the trier of

       fact determine factual disputes and to preserve the constitutional right to trial by

       jury. See Upham, 986 N.E.2d at 838. Here, viewing the evidence in the light

       most favorable to the trial court’s decision, we find that there was ample


       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 14 of 18
       evidence that SVT was at least negligent in failing to preserve surveillance

       footage of the day of Becchino’s fall. See Musgrave, 995 N.E.2d at 638. Thus

       the trial court did not abuse its discretion in issuing the spoliation jury

       instruction.


                               II. Apportionment Instruction
[25]   Next SVT contends that the jury instruction on apportionment was not a

       complete or correct statement of Indiana law. The trial court has broad

       discretion as to how to instruct the jury, and we generally review that discretion

       only for abuse. Id. at 637. Where, however, as here, the appellant’s challenge

       to the instruction is that the instruction was an incorrect statement of law, we

       review the trial court’s interpretation of that law de novo. Id. (quotation

       omitted).


[26]   When the attorneys argued over the apportionment instructions at the

       instruction conference, Becchino’s attorney tendered “Plaintiff’s Jury

       Instruction No. 6,” an instruction based on the Dunn case, which relies on

       Prosser’s approach:

               Where a logical basis can be found for some rough practical
               apportionment, which limits a defendant’s liability to that part of the
               harm which he has in fact caused, it may be expected that the division
               will be made. Where no such basis can be found and any division
               must be purely arbitrary, there is no practical course except to hold the
               defendant for the entire loss, notwithstanding the fact that other causes
               have contributed to it.
       Dunn, 516 N.E.2d at 56 (quoting William Prosser, Torts, at 314 (4th ed. 1971).

       Becchino’s specific proposed instruction read as follows:
       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 15 of 18
               A pre-existing condition, if aggravated by a defendant’s conduct, may
               result in the defendant’s full liability for the resulting injury. If there is
               no basis for apportionment between the pre-existing condition and the
               extent of the aggravation, then the defendant is liable for the entire
               injury.
       Appellee’s App. p. 1.


[27]   SVT, on the other hand, submitted “Defendant’s Jury Instruction No. 4”—

       based on Model Instruction No. 926—which reads as follows: “Plaintiff,

       Benny Becchino, is not entitled to recover damages for any physical condition

       that existed before the accident.” Id. at 2. SVT’s counsel also argued that

       Becchino’s apportionment instruction was “directly contrary to the Model

       Instruction 926.” Tr. p. 765. SVT continued:

               926 says plaintiff is not entitled to recover damages for any physical
               condition that existed before the incident. Period. It’s contrary to
               Indiana law. It’s contrary to the Model Instruction, which, of course,
               your Honor knows, we all know is, you know, the most well-settled
               aspect of Indiana law once it make it’s [sic] way to a jury instruction.
       Id. at 766.


[28]   Ultimately the trial court announced that it would issue the following jury

       instruction on apportionment:

               Generally, a plaintiff is not entitled to recover damages for any
               physical condition that existed before the accident. However, a pre-
               existing condition, if aggravated by a defendant’s conduct, may result
               in the defendant’s full liability for the resulting injury. If there is no
               basis for apportionment between the pre-existing condition and the
               extent of the aggravation, then the defendant is liable for the entire
               injury.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 16 of 18
       Id. at 798. Thus, the trial court had combined both parties’ apportionment

       instructions – Plaintiff’s Jury Instruction No. 6 and Defendant’s Jury

       Instruction No. 4 (or Model Instruction 926). After tendering the final

       instruction to the parties, the trial court asked if there were any objections. SVT

       responded, “None other than what we argued previously, Judge.” Id. at 787.


[29]   On appeal, SVT contends that “there was testimony that a logical basis for a

       ‘rough practical apportionment’ existed.” Appellant’s App. p. 25 (emphasis

       added). Specifically, SVT cites to the following—the “most crucial piece of

       testimony given by Dr. Harris,” Appellant’s Br. p. 25—from Dr. Harris’s cross

       examination:

               [SVT’s counsel]: . . . [B]ut you can’t really say how much of an
               aggravation was generated by the fall at the grocery store?
               [Dr. Harris]: Well, the way I [] would probably choose to look at this
               would be that it was enough to cause a man who had been dealing
               with pain for eight years to decide to have another operation.
       Tr. p. 612-13. Contrary to SVT’s assertion, this testimony simply does not

       provide a “logical basis” for some “rough practical apportionment.” See Dunn,

       516 N.E.2d at 56. In other words, Dr. Harris does not provide, in this excerpt

       of his testimony or any other, a concrete, definitive answer—in terms of

       percentages, monetary value or some other form of valuation—as to how much

       of Becchino’s injury was due to his pre-existing condition and how much was

       exacerbated by the fall at Ultra Foods.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015   Page 17 of 18
[30]   We find that the rule of law is clear on this point, and is consistently spelled out

       even in the cases relied upon by SVT.3 See, e.g., Robertson v. B.O., 977 N.E.2d

       341, 346 (Ind. 2012) (“A pre-existing condition or susceptibility, if aggravated

       by a defendant’s conduct, may result in a defendant’s full liability for the

       resulting injury and loss. However, if the pre-existing condition, standing

       alone, independently causes injury and loss, a defendant will not be liable for

       such damages.”) (quoting Dunn, 516 N.E.2d at 56). The trial court’s

       apportionment instruction was a correct statement of the law. Thus we cannot

       say the trial court abused its discretion in giving either of the challenged jury

       instructions.


       Affirmed.


       Baker, J., and Riley, J., concur.




       3
         We note that SVT relies in part on an unpublished memorandum opinion in support of its argument. This
       is contrary to Indiana Appellate Rule 65, which provides: “[A] memorandum decision shall not be regarded
       as precedent and shall not be cited to any court except by the parties to the case to establish res judicata,
       collateral estoppel, or law of the case.” See Ind. App. R. 65(D). A court-rule violation of this nature
       significantly undermines our confidence in counsel’s credibility.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CT-238 | March 31, 2015             Page 18 of 18
