This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Eugene Orbeck,





Kim Marie Larsen, et al.,



Filed April 10, 2001


Huspeni, Judge*


Hennepin County District Court

File No. PI992532



Mark N. Stageberg, 5101 Thimsen Avenue, Minnetonka, MN  55345 (for respondent)


Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402; and


Emilio R. Giuliani, Patrick J. Kelly, La Bore, Giuliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN  55343 (for appellants)


            Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellants challenge the denial of their motion for a new trial, arguing that the trial court erred in instructing the jury pursuant to 4A Minnesota Practice, CIVJIG 91.40 (1999), that appellants were liable for all damages to respondent if damages caused by his pre-existing medical condition could not be separated from those caused by the accident.  Because it is undisputed that respondent suffered no symptoms of any pre-existing medical condition before the accident, we conclude that there was no medical condition to which CIVJIG 91.40 would apply and, therefore, we affirm.


            In November 1992, respondent Eugene Orbeck was rear-ended by appellant Kim Marie Larsen, who was driving appellant Herman Flint’s car.  Orbeck’s neck immediately became sore and, within a few days, he began having headaches.  Orbeck sought medical care at an emergency room ten days after the accident and chiropractic care beginning in February 1993.  The chiropractor took x-rays of Orbeck’s neck that showed “degenerative changes” which pre-dated the accident.  Orbeck’s visits to the chiropractor continued for two months; he returned in November 1994 for several more appointments and did not return again until October 1996.  Orbeck did not seek medical or other chiropractic care between these visits to the chiropractor.  Until a recent surgery alleviated his condition, Orbeck suffered for several years from chronic pain and tightness in the neck, muscle soreness in the shoulders, and headaches.  It is undisputed that Orbeck suffered no symptoms before the accident occurred.

Orbeck was examined in 1998 by an orthopedic surgeon retained by appellants and in June 1999 by a neurologist retained by Orbeck.  The orthopedic surgeon diagnosed Orbeck to be suffering from an arthritic condition that flared up at irregular intervals.  The orthopedic surgeon testified that the degenerative changes in Orbeck’s neck

can cause the exact symptoms that Mr. Orbeck has:  Pain in the neck, tightness in the neck, muscle soreness in the trapezial muscle, headaches.  * * *  I’m sure the accident did exacerbate his degenerative changes and pain for a period of time, but * * * there’s no objective evidence of a permanent injury as a result of that accident.  He has the symptoms of the degenerative disk disease that he has, and that degenerative disk disease predated the accident.  And I think his symptoms would have been the same whether or not he was in that motor vehicle accident.  And so for those reasons I feel that there is no permanency as a result of his accident.


The neurologist arrived at a different diagnosis.  In the neurologist’s opinion, Orbeck suffered from “chronic right-side neck pain * * * due to a right C4-5 facet joint injury that he suffered in the car accident on November 7, 1992.”  The neurologist began treating Orbeck by “denerving the facet joint” by radio frequency waves, which has relieved Orbeck’s symptoms.  The effect of the treatment is expected to last approximately 15 months; after that, subsequent treatments will be required to prevent Orbeck’s symptoms from recurring.  Both Orbeck’s chiropractor and the neurologist acknowledge that the degenerative changes in his neck pre-dated the automobile accident, but both testified that (1) the degenerative changes were not a cause of his symptoms and (2) his symptoms were caused entirely by the accident.

            Orbeck brought suit against Larsen and Flint in February 1999.  At trial, Orbeck argued that his asymptomatic physical condition made him just like a “thin-skull” plaintiff and that appellants were liable for all his damages:

[I]f somebody strikes somebody in the head and that blow to the head ends up killing them or being much more serious than it would [be] to the normal person because this individual has a very thin skull * * * [that person is] 100 percent responsible for the end result, even if it was made worse because of some underlying condition in [the] victim.


The trial court instructed the jury off the record, but neither party disputes that the court used 4A Minnesota Practice, CIVJIG 91.40 (1999), over appellants’ objection.  CIVJIG 91.40 provides:

There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident.


(Defendant) is liable only for any damages that you find to be directly caused by the accident.


If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all of the damages.[1]


The jury returned a verdict in favor of Orbeck, and awarded damages. 


            Trial courts are allowed considerable latitude in selecting the language in a jury instruction.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  An appellate court will not grant a new trial unless the instructions constitute an abuse of discretion.  See id.  A jury instruction “must be construed as a whole and tested from the standpoint of its total impact on the jury.”  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

            Appellants challenge the trial court’s instruction to the jury pursuant to 4A Minnesota Practice, CIVJIG 91.40 (1999), arguing that the instruction allows a jury to hold a defendant liable for a plaintiff’s entire condition and not just the additional injury caused by the defendant over and above the pre-existing physical condition.  This court recently addressed the propriety of CIVJIG 91.40 in cases where a defendant’s conduct aggravates a pre-existing medical condition.  Blatz v. Allina Health System, 622 N.W.2d 376, 389-92 (Minn. App. 2001).  We consider that case to provide precedent on the question of whether CIVJIG 91.40 accurately reflects Minnesota law, and we shall follow the rationale set forth there.

The Blatz court noted that Minnesota had adopted the Restatement concept of apportioning liability among at-fault defendants in Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970).  Blatz, 622 N.W.2d at 390.  The Blatz court observed, however, that

CIVJIG 91.40 extends beyond Mathews in two significant ways.  First, it treats aggravation of an injury as an apportionable cause.  Thus it embraces the second part of section 433A by apportioning harm not just among at-fault defendants, but between a pre-existing condition and an at-fault defendant.  Second, it places the burden of proof for the apportionment of aggravation on the at-fault defendant.  Because the apportionment of aggravation of an injury is not between two at-fault defendants, as in Mathews, but rather between a pre-existing condition and an at-fault defendant, the principles underlying joint and several liability have thus been extended to circumstances in which they do not apply.



While recognizing that several foreign jurisdictions have chosen to place the burden of proof on the at-fault defendant when apportioning damages between an at-fault defendant and an innocent or pre-existing cause, the Blatz court declined to adopt the rationale of those jurisdictions.  Instead, the Blatz court cautioned that

applying [CIVJIG 91.40] to aggravation of a pre-existing medical condition to apportion damage between that pre-existing condition and an at-fault defendant not only extends Minnesota law but also conflicts with existing caselaw.


Id. at 391-92 (citations omitted).

The version of CIVJIG 91.40 given in this case is not identical to that given in Blatz.[2]  Also, in Blatz, objection to the instruction was raised for the first time as part of the motion for new trial.  Thus, in applying the appropriate test, the Blatz court determined that “the instruction neither destroyed the substantial correctness of the charge nor created substantial prejudice on a vital issue.”  Id. at 392.  In this case, objection to the instruction was raised during trial.[3]  Therefore, we must examine the instructions taken as a whole and determine their total impact on the jury.  See Lindstrom, 298 Minn. at 229, 214 N.W.2d at 676.  In so doing, we reach the same ultimate conclusion as did the Blatz court.  Just as the defendant in Blatz was not entitled to a new trial because of the jury instruction on a pre-existing condition, neither are appellants here.  See Blatz, 622 N.W.2d at 392.

It is uncontested here that prior to the accident Orbeck suffered no symptoms of his underlying physical condition.  He was totally asymptomatic.  As such, he was a textbook example of the “thin-skull” or “egg-shell skull” victim.  This physical condition is discussed by Dobbs, The Law of Torts (West Group 2000), as

[t]he rule that holds the defendant liable for foreseeable harms even when the amount of harm is not foreseeable * * * [t]he label derives from an imagined case in which the plaintiff has an unusually thin skull.  The defendant, having no reason to know of the plaintiff’s peculiar susceptibility, negligently injures the plaintiff’s head.  The blow would be uncomfortable to normal people, but to the plaintiff it causes a fractured skull and serious injury.  It seems to be agreed that the plaintiff is entitled to recover for all the harm done, even though a fractured skull was definitely not foreseeable.  The defendant, courts say, takes the plaintiff as he finds her. 


Id. at 464-65 (citations omitted).

The theory upon which Orbeck presented his case to the jury was consistently and solely that of a “thin-skull” victim.  Based apparently on the testimony of appellants’ medical examiner that Orbeck’s post-accident symptoms were primarily caused by his degenerative disc condition, appellants asked that 4 Minnesota Practice, CIVJIG 163 (1986), be given.  Respondent opposed any instruction on aggravation, but reminded the court that CIVJIG 91.40 had superseded CIVJIG 163.  There was no basis upon which giving either aggravation instruction would have been appropriate.  There was no evidence, nor any claim, of aggravation.  No one, including appellants’ medical examiner, could testify to any symptoms upon which aggravation could be based.  There were none.  Thus, in the absence of symptoms, Orbeck’s underlying physical condition was not a pre-existing medical condition.  While appellants rely on Leubner v. Sterner, 493 N.W.2d 119 (Minn. 1992), to argue that error in giving CIVJIG 91.40 compels a new trial, that case is inapposite.  The Leubner court recognized that in cases involving aggravation “[t]he measure of damages is the pain and disability * * * that is over and above the preaccident pain and disability.”  Id. at 122.  Orbeck suffered no pain or disability prior to the accident.  Therefore, the only questions for the jury were whether appellants were negligent and whether that negligence caused Orbeck’s damages.  If the jury found causal negligence, which it did, appellants were 100% responsible for those damages.[4]

Because it was undisputed that Orbeck did not suffer from any pre-accident pain or disability related to the degenerative changes in his neck, the appropriate measure of damages in this case would be the entire amount of injury suffered by him.  CIVJIG 91.40 was not helpful to the jury; neither was it prejudicial.  Thus, construing the instruction as a whole and testing it from the standpoint of its total impact on the jury, see Lindstrom, 298 Minn. at 229, 214 N.W.2d at 676, we conclude that the trial court did not abuse its discretion in giving a CIVJIG 91.40 instruction.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellants’ list of proposed jury instructions contained 4A Minnesota Practice, CIVJIG 91.40 (1999); respondent’s did not.  The parties do not dispute that at the close of evidence, appellants requested that the court instruct the jury on aggravation of pre-existing medical condition pursuant to 4 Minnesota Practice, CIVJIG 163 (1986).  Respondent, while opposing any instruction on aggravation as not appropriate under the facts of this case, indicated that if the court was inclined to instruct on aggravation despite respondent’s objection, then CIVJIG 91.40, not CIVJIG 163, was the instruction currently in effect.


[2] In Blatz, the challenged language was: 

If you cannot separate damages caused by the pre-existing medical condition from those caused by Allina’s negligence, if any, then Allina is to be held liable for all of the damages.


Blatz, 622 N.W.2d at 390.  Here, the challenged language reads:

If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then [defendant] is liable for all of the damages.


[3]  Ironically, and as noted by both parties, respondent wanted no instruction on pre-existing medical condition; appellants wanted such an instruction, but they did not want CIVJIG 91.40.


[4]  There was no question of contributory negligence submitted to the jury; negligence of Orbeck was not an issue.