AMI 2203 Measure of Damages—Aggravation of Pre-existing Condition

This clause is to be inserted between the two paragraphs of AMI 2201 when the evidence justifies its use and should immediately follow the giving of AMI 2202.

Do not use the bracketed final sentence unless there is evidence that the claimant would have suffered pain, disability, mental anguish, etc., even though the accident had not occurred.

This instruction is based on the law as stated in Owen v. Dix, 210 Ark. 562, 196 S.W.2d 913 (1946) (collecting cases); was mentioned with approval in Continental Southern Lines, Inc. v. Moses, 239 Ark. 905, 907, 395 S.W.2d 20, 21 (1965) (quoting Owen as a clear and concise statement of the law); and was cited as the correct statement of the law in Clawson v. Rye, 281 Ark. 8, 11, 661 S.W.2d 354, 357 (1983). The rule reflected in this instruction, known as the eggshell plaintiff rule, embraces definite aspects of proximate causation, and it is reversible error not to give it if there is substantial evidence of aggravation of an existing condition. Primm v. U.S. Fid. & Guar. Ins. Corp., 324 Ark. 409, 413–14, 922 S.W.2d 319, 321 (1996). For the background to this instruction, see Lockhart v. O'Hara, 380 F. Supp. 379 (W.D. Ark. 1974). See generally Jacob A. Stein, Stein on Personal Injury Damages § 11:1 (3d ed.) (providing overview of rule).

It was not error to refuse to give the instruction when the decisive medical testimony related the entirety of the plaintiff's complaints to the current accident and there was no evidence of aggravation of an injury from a previous accident, even though a physician testified hypothetically that existing injuries could render a person more susceptible to further injury. Simpson v. Hurt, 294 Ark. 41, 43, 740 S.W.2d 618, 619 (1987). See also Coleman v. Cathey, 263 Ark. 450, 454, 565 S.W.2d 426, 429 (1978) (holding it was not error to refuse to give instruction in eye-injury case based on evidence of nearsightedness as only alleged pre-existing condition). The Eighth Circuit upheld the trial court's refusal to give the bracketed portion of this instruction absent substantial evidence that plaintiff would have suffered damages even had the accident not occurred in Kudabeck v. Kroger Co., 338 F.3d 856, 864 (8th Cir. 2003).

Arkansas has not explicitly ruled on the applicability of this instruction in medical malpractice cases. In Bockman v. Butler, 226 Ark. 159, 163, 288 S.W.2d 597, 599 (1956) (Bockman II), appeal after remand from Bockman v. Butler, 224 Ark. 125, 271 S.W.2d 918 (1954) (Bockman I), the court stated that a physician who committed malpractice is not chargeable for pain, suffering, or anguish that arose because of the original ailment but is chargeable only for the pain, suffering, anguish, and expenses that naturally follow from the malpractice. In upholding the verdict, the court concluded that because of the defendant's negligence one boy suffered much more and had a long and hard recovery and that, but for defendant's negligence, the other boy would not have died. Id. at 163, 288 S.W.2d at 599. The jury instructions were not challenged in Bockman II. The challenged jury instructions in Bockman I involved the general definition of proximate cause. The opinion does not mention eggshell plaintiff instructions. The Bockman I court did instruct the jury that plaintiffs had the burden of proving that the defendant's negligence “was the proximate cause of the unnecessary and prolonged suffering, if any” of the boys, but that portion of the instruction was not challenged on appeal.