                                                           FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Feb 14 2013, 9:13 am
court except for the purpose of
establishing the defense of res judicata,
                                                                CLERK
collateral estoppel, or the law of the case.                  of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

DAVID P. FRIEDRICH                              KEITH L. JOHNSON
Wilkinson Goeller Modesitt                      Terre Haute, Indiana
Wilkinson & Drummy, LLP
Terre Haute, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES L. MYERS,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 77A01-1204-CT-142
                                                )
GLEN L. WILLIAMS,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE SULLIVAN SUPERIOR COURT
                         The Honorable Robert E. Springer, Judge
                             Cause No. 77D01-1003-CT-107


                                    February 14, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Charles L. Myers (Myers), appeals the jury verdict awarding

Appellee-Plaintiff, Glen L. Williams (Williams), damages in the amount of $130,000

following an automobile accident.

       We affirm.

                                         ISSUES

       Myers raises three issues on appeal, which we consolidate and restate as the

following two issues:

       (1) Whether the trial court abused its discretion by instructing the jury on

          apportionment of damages; and

       (2) Whether sufficient evidence was presented to support an apportionment of the

          damages.

                         FACTS AND PROCEDURAL HISTORY

       On November 25, 2009, Myers was traveling westbound on Wabash Avenue in

Terre Haute, Indiana. Upon turning north onto Brown Avenue, Myers collided with

Williams’ vehicle.      Following the accident, Williams complained of neck pain and

headaches and sought initial treatment at the emergency room. He later received care

from his family physician.

       In 1978 or 1979, prior to the accident, Williams had a neck injury. In 2005, he

began treatment with Dr. Timothy Lenardo (Dr. Lenardo), a rheumatologist, for

inflammatory arthritis and osteoarthritis in his neck, shoulders, elbows, wrists, hands, and



                                             2
knees. During his exams, Dr. Lenardo found Williams’ neck to be normal and supple. In

March of 2009, Williams underwent surgery to repair a torn rotator cuff to his right

shoulder. Two years after the accident, in July 2011, Williams had surgery to repair his

left rotator cuff.

       Because of continuing pain after the collision, Williams commenced treatment

with nurse practitioner Donna Purviance (Nurse Purviance), at the Pain Management

Clinic at UAP Clinic in Terre Haute, Indiana, six months after the automobile accident.

He complained of neck pain, headaches, and sleep disturbance due to the pain. Nurse

Purviance opined that Williams’ neck pain was caused by the accident but that she could

not apportion what amount of pain was derived from the pre-existing arthritis condition

and what amount was caused by the collision.

       In 2011, Williams saw Dr. Julie Shaw (Dr. Shaw), a chiropractor, who treated him

for neck, shoulder, and back pain. She determined that Williams’ pain originated from an

exacerbation of his pre-existing arthritic condition caused by the accident. Dr. Shaw

could not apportion what pain, if any, was caused by the pre-existing condition and what

pain was caused by the collision.

       On March 12, 2010, Williams filed a Complaint, claiming injuries and damages as

a result of Myers’ negligence in operating his vehicle. Myers admitted fault for the

accident but disputed Williams’ damages. On March 6 through March 8, 2012, the trial

court conducted a jury trial. At trial, Myers did not contest that Williams had incurred

injuries as a result of the accident. However, he claimed although the evidence reflects

that Williams’ initial neck pain, headaches, and physical therapy through February 2010


                                           3
derived from the collision, Williams’ complaints changed in March of 2010. Myers

pointed to Williams’ visit with Dr. Lenovo on March 8, 2010 where Williams no longer

discussed the daily neck pain and headaches. As such, Myers contended that the pain

complaints later in 2010 and again in 2011 are the result of Williams’ shoulder surgery, a

condition which existed prior to the accident.

       At the close of the evidence, the trial court instructed the jury with respect to

Williams’ pre-existing condition as follows:

COURT’S FINAL INSTRUCTION NO. 10

               In this case there is evidence that [Williams] had a preexisting
       physical condition in the area of his body he claims was injured in the
       motor vehicle collision. If you find that his preexisting physical condition
       was causing pain or other symptoms before or after the motor vehicle
       collision, you must then attempt to apportion what, if any, pain was caused
       by the preexisting physical condition and what, if any, pain was caused as a
       result of the motor vehicle collision. Where a logical basis can be found to
       apportion that part of Plaintiff’s pain which the motor vehicle collision has
       caused and that part of Plaintiff’s pain caused by the preexisting condition,
       then Defendant’s liability is limited to that portion of the pain, which the
       motor vehicle collision actually caused. However, where no such
       apportionment can be made and any division must be purely arbitrary, then
       Defendant is liable for all of Plaintiff’s pain, regardless of the fact that other
       causes may have contributed to it.

(Appellant’s App. p. 34).

       During a conference with the court discussing the jury instructions, a day earlier,

Myers objected to Instruction No. 10:

       And then Your Honor, the next instruction which quotes Dunn versus
       Caliunte [sic], I do not believe that’s an accurate description of the law that
       if you don’t know what it is then the Defendant is responsible and that’s
       totally against the burden of proof. I mean, if that’s the case then why does
       the Plaintiff have the burden of proof? I mean, essentially what it’s saying
       is if you can’t figure it out then the Defendant’s responsible on this pre-


                                               4
       existing condition and that’s totally contrary to what the preponderance of
       the evidence and burden of proof is.

       ***

       It’s just totally – it’s not – I believe that is not an accurate reflection of the
       law. It’s just not. It’s one case – it’s very distinguishable from what this –
       from what we’re talking about.

(Transcript pp. 247-48). After the trial court instructed the jury, Myers objected again,

stating:

       [Myers] objects to Court’s Final Instruction Number 10, which is based on
       the case of Dunn versus Calunte [sic], 516 N.E.2d 52 – 516 N.E.2d 52
       (1987). [Meyers] objects to this particular instruction because it’s a conflict
       of several other instructions in this particular case. The instruction is in
       conflict with Court’s Final Instruction Number Three, which is the Issue
       Instruction, discusses what the Plaintiff’s burden of proof is and then what
       the Defendant’s burden of proof is. It also conflicts with Court’s Final
       Instruction Number Four, which again sets forth again what the Plaintiff’s
       burden of proof is and what the Defendant’s burden of proof is concerning
       the November the 25th of 2009 accident. Final Instruction Number Ten is
       also in conflict with Court’s Final Instruction Number Six concerning
       evidence of greater weight. In this particular situation the instruction
       assumes that the jury cannot determine pre-existing injuries because any
       decision would be arbitrary. There has been sufficient evidence through
       medical records through the UAP Clinic, from Union Hospital and from the
       deposition testimony of Dr. Lenardo that there can be an apportionment
       between what of Mr. Williams’ complaints are arthritic related and which
       of his complaints are due to the November 25, 2009 accident and then also
       includes whether any injuries or problems he may have from shoulder
       surgeries that have been performed in 2009, 2010, and then again in 2011.
       So again, the Defendant objects to Court’s Final Instruction Number Ten,
       because it is in conflict with Defendant’s burden to prove which means the
       Court [sic] must prove that the injuries and damages which it is claiming
       are caused by this accident, which again, is in conflict with the responsible
       person or the former proximate clause instruction, which is Court’s
       Instruction Number Ten.

(Tr. p. 285).




                                               5
         At the close of the evidence, the jury awarded Williams damages in the amount of

$130,000.

         Myers now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                      I. Jury Instruction

         Myers contends that the trial court abused its discretion in instructing the jury at

trial.   Jury instructions serve to inform the jury of the law applicable to the facts

presented at trial, enabling it to comprehend the case sufficiently to arrive at a just and

correct verdict. Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229, 235

(Ind. Ct. App. 2001), trans. denied.       Jury instructions are committed to the sound

discretion of the trial court. Id. In evaluating the propriety of a given instruction, we

consider 1) whether the instruction correctly states the law, 2) whether there is evidence

in the record supporting the instruction, and 3) whether the substance of the instruction is

covered by other instructions. Id. An erroneous instruction warrants reversal only if it

could have formed the basis for the jury’s verdict. Id. Specifically, Myers presents us

with a two-fold contention, asserting that Instruction No. 10 (1) is an incorrect statement

of the law as it impermissibly shifts the burden of proof to Myers and (2) contradicts Jury

Instructions Nos 3, 4, and 6. We will analyze each contention in turn.

                                     A. Burden of Proof

         First, Myers claims that Jury Instruction No. 10 “invites the jury to ignore the

burden of proof and doesn’t require Williams to prove his claims.” (Appellant’s Br. p.

11). Focusing on the Instruction’s language that if no apportionment or division can be


                                              6
made between the pain deriving from the vehicle accident and the pain originating from

Williams’ pre-existing condition, Myers should be held liable for all of Williams’

injuries, Myers asserts that this inappropriately encourages the jury to disregard

Williams’ burden to prove damages by a preponderance of the evidence. In fact, Myers

maintains that “Instruction 10 allows the jury . . . [to find] Myers liable for all damages

without proof.” (Appellant’s App. p. 7). As such, Jury Instruction No. 10 is in incorrect

statement of the law.

       We disagree. In Dunn v. Cadiente, 516 N.E.2d 52 (Ind. 1987), reh’g denied, our

supreme court addressed the impact of evidence of pre-existing conditions on the

apportionment of damages in a medical malpractice case. In Dunn, the court noted as

follows:

       To the extent that there may have been conflicting evidence regarding the
       extent to which all of Dunn’s injuries and losses were causally related to
       Cadiente’s conduct or the congenital anomaly, the question may be viewed
       as one of apportionment of damages. Upon this issue, Prosser favors the
       following 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.

       Consistent with a plaintiff’s burden to prove causation, we do not view this
       consideration as transferring to a defendant the burden to prove the
       existence of a logical basis for apportionment. The burden of proof
       remains with the plaintiff. In order to benefit from this rule, it is therefore
       plaintiff’s burden to prove the absence of any such basis for apportionment.



                                             7
Id. at 56.

       We note that the trial court’s Jury Instruction No. 10 closely follows the language

of our supreme court in Dunn and does not impermissibly shift the burden of proof. For

this reason, we conclude that the trial court did not abuse its discretion by tendering it to

the jury.

                       B. Contradiction with Other Jury Instructions

       Next, Myers claims that Jury Instruction No. 10 contradicts Jury Instructions Nos.

3, 4, and 6.1 Jury Instructions 3, 4, and 6 were proposed by Myers and referenced the

requirement that a claim must be proven by the greater weight of the evidence. In

particular, Jury Instruction No. 3 establishes that Williams must prove his claims by the

greater weight of the evidence. Instruction No. 4 informs the jury that Williams must

prove by the greater weight of the evidence that Myers’ negligence caused Williams’

injuries. Instruction No. 6 clarifies to the jury that evidence is of greater weight if it

convinces the jury that a fact is more probably true than not. Myers now maintains that

because Instruction No. 10 allows the jury to hold him liable for all of Williams’ injuries

if no apportionment can be made or, if made, is purely arbitrary, Jury Instruction No. 10

abolishes the requirement that Williams establishes Myers’ liability by a greater weight

of the evidence.

       Again, we disagree. Jury Instructions Nos. 3, 4, and 6 instruct the jury as to the

overall requirements in negligence cases and the plaintiff’s burden of proof, while Jury


1
  Although Myers also claimed that Jury Instruction No. 10 contradicted Jury Instruction No. 8, we
consider that part of his argument waived as he failed to present this claim to the trial court.


                                                8
Instruction No 10 guides the jury with respect to the requirements of apportionment of

Williams’ pain, in the event the jury decides that the pre-existing condition caused the

pain after the motor vehicle collision. Viewed in this light, we cannot say that the Jury

Instructions are contradictory.

                              II. Apportionment of Damages

       Lastly, Myers contends that the evidence presented supports an apportionment of

the damages between Williams’ pre-existing arthritis and his injuries resulting from the

accident. When reviewing a jury’s verdict to determine if it is supported by sufficient

evidence, this court will neither reweigh the evidence nor judge the credibility of the

witnesses. Don Medow Motors, Inc. v. Grauman, 446 N.E.2d 651, 653 (Ind. Ct. App.

1983). We will consider only that evidence and reasonable inferences therefrom most

favorable to the verdict, and must affirm if the verdict is supported by substantial

evidence of probative value. Id. As we noted previously, in the event there is conflicting

evidence regarding the extent to which all of Williams’ pain was causally related to

Myers’ conduct or his pre-existing arthritis, the question is viewed as one of

apportionment. See Dunn, 516 N.E.2d at 56. In this respect, Williams had the burden to

prove the absence of any basis for apportionment. See id.

       Myers focuses on the testimony of Nurse Purviance and Dr. Shaw as providing the

evidence which would have aided the jury in apportioning Williams’ damages. Although

both witnesses were aware of Williams’ pre-existing arthritis and his two shoulder

surgeries, they unequivocally testified that they could not apportion what amount of pain

was derived from the pre-existing arthritis and what amount was caused by the collision.


                                            9
Based on this testimony, the jury could reasonably conclude that no basis for

apportionment existed and any division would be pure speculation.       Therefore, we

conclude that the verdict is supported by the evidence.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court properly instructed the

jury on apportionment of damages and sufficient evidence was presented to support an

apportionment of the damages.

       Affirmed.

BAKER, J. and BARNES, J. concur




                                            10
