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Czarnecki v. Volkswagen of America12/31/1991
o neurological damage, and his paraplegia was caused solely by the second impact from the seat back. Under VW's theory, Czarnecki did not suffer a Chance fracture, but did sustain the lap belt-caused burst fracture that resulted in his paraplegia. We agree with VW that, if only these two theories were presented to the jury as the cause of Czarnecki's paraplegia, the apportionment instructions would not be required because either all of Czarnecki's damages would be attributable to VW's defective design or none of them would be.
Therefore, the issue becomes whether VW presented evidence of yet another theory: that, if Czarnecki did suffer a Chance fracture in the first impact, Chance fractures in general are not always neurologically benign but can produce neurological damage. If evidence of this theory was presented, a jury could reasonably conclude that Czarnecki's paraplegia could have occurred both during the first and second impacts, necessitating the giving of the apportionment instructions because Czarnecki would be unable to prove the extent to which the defective seat back enhanced his damages over those that would have occurred merely from the collision.
Although the record references given by Czarnecki on appeal may not support his theory that VW argued a Chance fracture could cause neurological damage, our review of the entire record indicates that evidence was presented from which VW did in fact argue the possibility of a Chance fracture causing Czarnecki's paraplegia. While VW's counsel was cross-examining Dr. Dugan, Czarnecki's damages witness, the following exchange occurred:
Q. . . . You've heard of so-called Chance fractures?
A. I have.
Q. That's because you had patients in the past that have had that type of fracture; correct?
A. I have.
Q. All of your patients are spinal cord injured paraplegics?
A. They are, uh-huh.
Later that same day during argument on jury instructions, Czarnecki requested the proposed apportionment instructions, anticipating VW's argument that Chance fractures can result in neurological damage:
[CZARNECKI'S COUNSEL]: . . . f your honor will recall, the last time we discussed this, I indicated that if argument were to follow along the lines that your honor understood was your honor's understanding of this case, I would have no need for this instruction.
However, I had the feeling that the defendant's attorney was going to argue . . . a gray area of damages, that the Chance fracture damages might be greater than what my witness says it is, which is you have the operation and you recover.
And if that's what he is going to argue, then I need this instruction . . . .
THE COURT: [VW's counsel] is not going to argue that because there is no Chance fracture under his version of the evidence.
[VW's COUNSEL]: Under the plaintiff's there is. I don't think I should be precluded . . . . he point is there is evidence in the record that paraplegics can happen with Chance fractures. Their own witness [Dr. Dugan] this morning said he has had patients with Chance fractures, and all of his patients are paraplegics. So somehow it doesn't seem right to me that I should be precluded from suggesting that. --
In his closing argument in connection with counsel's reference to various medical articles relied upon by Czarnecki, VW's counsel in fact argued the precise point Czarnecki had anticipated:
If it was to prove that ordinarily in the typical situation a Chance fracture does not result in paraplegia, we don't dispute that. As Dr.
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