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Gasiorowski v. Hose12/15/1994
plaintiff's dystonia, that it could not be attributed to Dr. Hose's epidural injection, and that it was probably a psychiatric disorder. After testifying that two-thirds of patients with dystonia had predisposing factors that allowed fairly minor trauma to precipitate their condition, he defined "precipitate" as to "bring about at that time without being sufficient to cause it yourself." He added:
It's thought [that] in most cases of dystonia . . . the patient . . . has some precipitating factor and it begins then; not that [the precipitating factor] caused it, but the patient had to be of the type that would get dystonia in order for the trauma to cause it. I mean we all have trauma hundreds of times in our lives. We don't get dystonia from it.
In response to this testimony, the plaintiff asked the trial court to give the following jury instruction:
Plaintiff is entitled to recover all damages resulting from the negligence, fault of the defendant, even if the plaintiff was more susceptible than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury .
The trial court erred by refusing the instruction. Though we reverse on other grounds, not on this one, we address the propriety of this ruling because the issue is likely to recur if similar testimony is offered on remand.
The defendants do not dispute that the instruction, which is derived from RAJI (Civil) 2d Negligence 10(a), correctly states the law. See generally, Jefferson L. Lankford & Douglas A. Blaze, the Law of Negligence in Arizona 56 (1992) (citing Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983)). Rather, they contend the trial court appropriately rejected the instruction because there was no evidence that this plaintiff had a predisposing susceptibility to dystonia.
We find this argument unpersuasive. Though defendants made no effort to prove plaintiff had a predisposing susceptibility, they implied such a susceptibility through the testimony of Dr. Kwalans. Further, Dr. Kwalans's testimony opened a line of reasoning to the jury tending to minimize the consequences of Dr. Hose's conduct, should the jury find that conduct the precipitating agent. Defense counsel argued to the jury, "any kind of midline trauma will" trigger dystonia. The jury might have concluded that, even if Dr. Hose indeed precipitated plaintiff's condition through an improper epidural injection, he should not be held responsible because, had he not done so, some other "midline trauma" would have sooner or later caused the same result. The requested instruction was appropriate to relieve the ample possibility for such a misimpression and to give the jury a proper legal context for evaluating the interplay of predisposing susceptibility and precipitating cause. See, e.g., Czarnecki v. Volkswagen of Am., 172 Ariz. 408, 411, 837 P.2d 1143, 1146 (App. 1991).
IV.
For the foregoing reasons, we reverse the judgment for defendants and remand for a new trial.
NOEL FIDEL, Judge
EINO M. JACOBSON, Presiding Judge
E. G. NOYES, JR., Judge
Page 1 2 3 4 5 6 Arizona Personal Injury Attorneys
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