Harris v. Shopko Stores, Inc.

308 P.3d 449

Wendy HARRIS, Respondent,

v.SHOPKO STORES, INC., Petitioner.

No. 20110945.

Supreme Court of Utah.

June 14, 2013.

Rehearing Denied Aug. 1, 2013.

Michael E. Day, Nathan Whittaker, Murray, for respondent.

Alain C. Balmanno, Ruth A. Shapiro, Salt Lake City, for petitioner.

Brent Gordon, Idaho Falls, John P. Lowrance, South Jordan, amicus curiae.

On Certiorari from the Utah Court of Appeals.

Chief Justice DURRANT, opinion of the Court:

INTRODUCTION

¶ 1 Wendy Harris was injured when she sat on a display office chair at ShopKo Stores, Inc. (ShopKo), and the chair collapsed. She sued ShopKo for negligence. At the trial, evidence was introduced that she suffered from preexisting conditions that may have contributed to her injury. The trial court instructed the jury that, if it could, it should apportion damages between those attributable to ShopKo's negligence and those attributable to her preexisting conditions. The jury found ShopKo negligent but awarded Ms. Harris substantially less than she requested in damages. She appealed.

¶ 2 The court of appeals reversed the jury's award and remanded for a new trial. It did so on the ground that the trial court had erred in giving the apportionment jury instruction. The court of appeals held that, because Ms. Harris's preexisting conditions were asymptomatic on the date of the accident, ShopKo was not entitled to a jury instruction permitting the jury to allocate some portion of the damages to Ms. Harris's preexisting conditions. We conclude that this approach is inconsistent with a core principle of tort law: defendants are liable only for those injuries proximately caused by their negligence. Under the court of appeals' approach, where a plaintiff is experiencing no symptoms on the date of an accident, a defendant is liable for the full extent of the plaintiff's injury, even though some portion of that injury may, in fact, have been caused by a preexisting condition. While we conclude the court of appeals erred in this regard, however, we nevertheless affirm that court's grant of a new trial. We do so because at trial ShopKo did not present evidence sufficient for the jury to apportion damages on a nonarbitrary basis.

BACKGROUND

¶ 3 On March 29, 2006, Ms. Harris went to ShopKo to buy an office chair. When she sat in one of the display chairs, the chair fell apart. Ms. Harris fell to the floor, landing on her wrist and tailbone. The next day, she went to the hospital after feeling “deep abdominal pain.” She worried that “something had come loose” from a previous surgery. The pain in Ms. Harris's wrist eventually went away, but the abdominal pain intensified in her lower back and tailbone.

¶ 4 In the days after the ShopKo accident, Ms. Harris visited her brother, Kay Whittaker, who is a family nurse-practitioner. She later saw several doctors and therapists. These physicians observed that she suffered severe pain in her lower back and tailbone, which radiated down the back of her leg to her knee. Ms. Harris underwent a variety of treatments, including pain medication, physical therapy, massage therapy, and chiropractic care.

¶ 5 Despite the treatment she received, Ms. Harris continued to experience pain three years after the ShopKo accident. In 2009, she visited Dr. Richard Rosenthal, a pain-management specialist. Dr. Rosenthal diagnosed her with facet joint syndrome (inflammation of one of the spinal joints) and coccydinia (inflammation of the tailbone). Dr. Rosenthal treated Ms. Harris's facet joint syndrome through radio frequency lesioning—a treatment that stops pain by severing the nerve to the facet joint. To treat the coccydinia, Ms. Harris had to sit on a donut cushion and receive occasional injectionsof steroids and anesthetics to reduce inflammation.

¶ 6 In 2007, Ms. Harris sued ShopKo for negligence. The case went to a jury trial in 2009. At trial, Dr. Rosenthal testified as an expert in interventional pain medicine. He stated that facet joint syndrome is not always trauma related and can be caused by degenerative disc disorder due to aging. He testified that it is more likely than not that the ShopKo accident caused Ms. Harris's pain and injury. He also testified that Ms. Harris received a single treatment for possible back pain in 2002, although her chief complaint at the time was leg pain.

¶ 7 Dr. Rosenthal further testified that Ms. Harris had been in three automobile accidents prior to the ShopKo accident. As a result, she had received treatment for neck and back pain, although “there was no subsequent treatment for back pain in any of those accidents.” Dr. Rosenthal mentioned that he saw two references to fibromyalgia, which he described as a “chronic condition,” in Ms. Harris's records from 2001 but did not believe fibromyalgia caused her pain after the ShopKo accident. He stated that he believed Ms. Harris's pain would eventually go away but that she may face permanent complications from her injuries. Finally, he testified that Ms. Harris's medical treatment was reasonable.

¶ 8 Following Dr. Rosenthal's testimony, Ms. Harris called, among others, Dr. Eric Hogenson, Mr. Kay Whittaker, and Dr. Rodney Scuderi to testify. Each witness testified that he treated Ms. Harris after the ShopKo accident. First, Dr. Hogenson, Ms. Harris's family-practice physician, testified that he treated Ms. Harris for back pain. He testified that her back pain began after the ShopKo incident. He also testified that Ms. Harris's records indicate that he treated her for fibromyalgia and depression in 1997. Second, Mr. Whittaker, a family nurse-practitioner, also treated Ms. Harris for back pain shortly after the ShopKo incident. He testified that he ordered x-rays and that the x-rays did not show any fractures. Finally, Dr. Scuderi, Ms. Harris's chiropractor, testified that he treated Ms. Harris shortly after the ShopKo incident. He testified that, in his opinion, her fall at ShopKo caused her lower-back injury. He also testified that his treatment of her was reasonable, although it did not provide lasting relief.

¶ 9 On cross-examination, ShopKo presented Dr. Scuderi with records of Ms. Harris's past medical treatment. These records included a 1998 hospital visit for “cervical strain and to rule out a disc herniation”; a 2001 hospital visit following a car accident for “diffuse neck pain”; and a 2002 hospital visit for “excruciating discomfort in the lumbar area,” which led to a diagnosis of “left leg pain and questionable sciatica.” Dr. Scuderi then explained that Ms. Harris's symptoms after the ShopKo incident were not consistent with a chronic condition. He noted that “[i]t's not unusual for a patient of Ms. Harris's age to have some neck and back pain.” On redirect, Dr. Scuderi testified that nothing in Ms. Harris's past medical records indicated that she had a chronic lower-back condition prior to visiting him.

¶ 10 Dr. Alan Colledge testified for ShopKo. He practices family medicine and treated Ms. Harris a total of five times after the ShopKo accident. He testified that he could not conclude that the ShopKo incident was the cause of Ms. Harris's pain, stating that he “just report[s] the news” and “do[esn't] know where [the pain] comes from.” He testified that the results of Ms. Harris's MRI and x-rays were “normal” and that her sacroiliac joint looked “fairly normal.” He then testified that a sign of degenerative disc disease is an annular tear. Dr. Colledge believed that Ms. Harris had “an annular tear or ... traumatized the disc complex” in her back and that “she had some trauma.” He also testified that Ms. Harris's questionable sciatica in 2002 could potentially play a role in her current pain. Ms. Harris's counsel pointed out on cross-examination that the radiologists disagreed as to whether Ms. Harris had an annular tear.

¶ 11 Dr. Colledge further testified that Ms. Harris had back pain consistent with degenerative disc disease. He acknowledged that facet disease can be caused by a single incident of trauma and that it can also be “brought to light” by trauma. But he believed that Ms. Harris “probably ha[d] a component of” both degenerative disc disease and facet disease or an aggravation of both. Moreover, Dr. Colledge testified that degenerative disc disease can be asymptomatic and that a traumatic incident can cause it “to go from more of an asymptomatic to symptomatic state.” Finally, he testified that Ms. Harris's pain is still “extraordinary” and “more than what [he] would usually see” for an annular tear or facet disease after nine months. He thought Ms. Harris's use of narcotics and her involvement in the present lawsuit could be delaying her recovery.

¶ 12 At the close of trial, the district court instructed the jury concerning “[a]ggravation of symptomatic preexisting conditions” (Apportionment Instruction). The Apportionment Instruction read as follows:

If Plaintiff had a physical, emotional, or mental condition before the time of the March 29, 2006 incident, she is not entitled to recover damages for that condition or disability. However, Plaintiff is entitled to recover damages for any aggravation of the pre-existing condition that was caused by Defendant's fault, even if Plaintiff's pre-existing condition made her more vulnerable to physical or emotional harm than the average person. This is true even if another person may not have suffered any harm from the event at all.

When a pre-existing condition makes the damages from injuries greater than they would have been without the condition, it is your duty to try to determine what portion of the physical, emotional or mental harm to Plaintiff was caused by the preexisting condition and what portion was caused by the March 29, 2006 fall.

If you are not able to make such an apportionment, then you must conclude that the entire physical, emotional and mental harm to Plaintiff was caused by Defendant's fault.

¶ 13 Ms. Harris objected to the Apportionment Instruction because it ...