Lovely v. Allstate Insurance Co.

LIPEZ, Justice,

concurring.

Although I concur in the Court’s decision, I write separately to emphasize the importance of this decision to the proper allocation of the burden of proof in personal injury cases involving evidence of preexisting or subsequent injuries. The Court’s opinion may require the Superior Court to alter its traditional method of instructing jurors in such cases.

The section on damages in the basic civil jury charge used commonly in the Superior Court includes a statement that the plaintiff must “convince you by a preponderance of the evidence that the particular injury for which [the plaintiff] seeks compensation was caused by defendant’s negligence.” One paragraph later there is this statement:

I also instruct you that where there have been independent events affecting the plaintiffs condition, either before or after the incident which gave rise to this trial, you must separate out damages attributable to those prior or subsequent events, and award the plaintiff only those damages which you find to have been proximately caused by the defendant’s fault.

Viewed together, these jury instructions support the position of the defendant in this non-jury case that the plaintiff has the burden of apportioning harm between preexisting or subsequent injuries and the injury involved in the instant lawsuit.

The decision in this case makes clear that such an allocation of the burden of proof is improper. 1 Although a defendant can still introduce evidence about a plaintiffs prior or *1094 subsequent injury and argue that the pain, suffering or disability claimed by the plaintiff in the instant case is largely the result of that earlier or later injury, the court must now make clear to a jury that the defendant has the burden of establishing the causal relationship between the earlier or subsequent injury and the pain, suffering or disability now claimed by the plaintiff.

The plaintiff, of course, must still establish a causal relationship between the injury that is the subject of the lawsuit and the alleged consequences of that injury. Spickler v. York, 566 A.2d 1385, 1390 (Me.1989). Once the plaintiff has met that burden, however, the defendant who seeks to limit liability on the basis of a preexisting or subsequent injury has the same burden of proof as a defendant claiming comparative negligence or a failure to mitigate damages.

The Court’s reference to an aggregate injury that is “incapable of apportionment” should not be read for the proposition that the plaintiff has some discrete burden to prove that the injury is incapable'of apportionment before the defendant has the burden of establishing the causal relationship between the preexisting or subsequent injury and the claim of damages. There is no such discrete burden. The issue of apportionment will be present whenever the defendant, in response to the damage claimed, produces evidence of a preexisting or subsequent injury which the defendant asserts is the cause of some portion of the plaintiffs problems. There is no need for the court to make a preliminary determination that the injury is incapable of apportionment before imposing the burden of apportionment on the defendant. That burden is inherent in the defendant’s claim that there should be apportionment.

. This salutary outcome also highlights a possible inconsistency in the basic civil jury charge between the instruction on the responsibility of the plaintiff to separate out damages attributable to prior or subsequent injuries and the classic "eggshell” instruction. The latter instruction reads as follows:

Let me also instruct you, if you should find that at the time of the incident that the plaintiff had a bodily condition that made (him/her) more susceptible to injury than a person in good health, the defendant is responsible for all injuries suffered by plaintiff as a result of defendant’s negligence even if those injuries are greater than would have been suffered by a person in good health under the same circumstances. To put it another way, the law says that if you negligently cause damage to another person, you must take your victim as you find (him/her). What this means is that if you find that in fact plaintiff prior to the accident had a particular pre-existing injury and if you further find that defendant negligently caused further injury to plaintiff’s pre-existing problem, then plaintiff is entitled to full compensation for all of those particular damages caused by defendant’s negligence, even though (his/her) injuries may have been aggravated or rendered more serious by reason of a pre-existing physical condition.

This instruction uses the phrases "pre-existing injury", "pre-existing problem" and "pre-existing physical condition” interchangeably, thereby blurring a potentially important distinction between a pre-existing injury and a pre-existing condition. An injury connotes some degree of pain, suffering or disability. A condition may or may not involve pain, suffering or disability.

For example, the victim with the congenitally thin skull may have a pre-existing condition that involves no pain and suffering. If this victim suffers extensive head injuries in the accident because of a thin skull, there is no problem of apportionment between pre-existing pain and new pain. The pain is all new. It is simply more extensive because of the pre-existing condition. On the other hand, if the victim has a chronically painful back because of a previous back injury, and if an accident exacerbates this pain, there may be an issue of apportionment between the old and the new pain.

The instruction on damage apportionment in the basic civil jury charge treats this earlier injury as an “independent event affecting the plaintiff's condition,” and assigns to plaintiff the burden of ”separat[ing] out damages attributable to those prior or subsequent events.” The “eggshell” instruction in the basic civil jury charge treats the earlier injury as a part of the victim *1094 who must be taken as found. These two instructions are, in my view, inconsistent. The deletion of the instruction on damage apportionment would eliminate this inconsistency. The instruction on pre- and post-accident problems that follows the '‘egg-shell” instruction in the basic civil jury charge remains a correct statement of the law:

I remind you, however, and caution you that defendant is not responsible for any pre-exist-ing problems that you find worsened independently of the accident, or for any problems plaintiff experienced after the accident that you find did not result from the accident.