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Present:    All the Justices
DONNA HONSINGER
OPINION BY
v.    Record No.  021761                                             JUSTICE LAWRENCE L. KOONTZ, JR.
                                                                     September  12,  2003
SHEILA F. EGAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we consider whether the trial court erred
in refusing to grant certain jury instructions proffered during
the trial of a personal injury lawsuit.
BACKGROUND
This case arose from an automobile accident that occurred
on October  24,  1998 in Fairfax County involving motor vehicles
operated by Sheila F. Egan  (Egan) and Donna M. Honsinger
(Honsinger).    For purposes of our resolution of this appeal, the
facts surrounding the occurrence of that accident are not
pertinent.    Honsinger’s liability is not at issue here.
On December  2,  1999, Egan filed a motion for judgment in
the Circuit Court of Fairfax County  (the trial court) against
Honsinger alleging that Egan suffered various injuries in the
1998 accident.    She alleged that those injuries included
“traumatic brain injury” and  “post-traumatic stress disorder and
other mental anguish, fear, anxiety, depression and loss of
energy, focus and stamina.”    Egan alleged that as a result of
her injuries she had suffered  “lost earning capacity and loss of




occupation as a professional singer.”    She sought damages of
$2,500,000.
The subsequent trial essentially became a battle of experts
with regard to Egan’s asserted injuries and damages.    There was
evidence that two days after the accident, Egan went to the
emergency room of the Columbia Reston Hospital Center
complaining of dizziness, vertigo, and headaches.    The attending
physician there referred Egan to Dr. Ruben Cintron, a
neurologist, who treated her for a multitude of symptoms
including headaches, fatigue, memory problems, mood swings, and
depression.    Dr. Cintron concluded that these symptoms were
consistent with a mild traumatic brain injury caused by
acceleration and deceleration forces upon Egan during the  1998
accident.    Dr. Cintron referred Egan to Dr. John W. Wires, a
neuropsychologist, to aid in her treatment.    Dr. Wires concurred
with the diagnosis made by Dr. Cintron.
Honsinger’s asserted theory of the case was that Egan’s
“constellation” of conditions or symptoms arose from other
causes that were unrelated to the accident.    This  “two causes”
defense is the principal focus of the issue now before us.
Honsinger introduced evidence that Egan had suffered
through a series of traumatic events in her life, including a
sexual assault, her parents’ divorce, and her own divorce.
Additional evidence showed that Egan also suffered from adult-
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onset diabetes.    There was some indication that her insulin
levels had fluctuated both before and after the accident, and
that Egan had been hospitalized because of high blood sugar in
2000.
To counter Egan’s evidence regarding a traumatic brain
injury and its attendant symptoms, Honsinger presented evidence
that Egan had complained of similar symptoms prior to the  1998
accident, most notably during a visit to a chiropractor in  1995.
A document relating to that visit showed handwritten
endorsements by Egan listing symptoms including nausea, fatigue,
headaches, and dizziness.
Dr. Thomas V. Ryan, a clinical neuropsychologist, testified
for Honsinger that Egan’s symptoms could have been the result of
one of many different physiological events including previous
psychological problems, brain damage from unstable diabetes, or
a mild traumatic brain injury.    Dr. Ryan opined that Egan could
be presenting these symptoms as a form of  “secondary gain,”∗ with
Egan focusing on her physical symptoms from the accident as a
way of masking her latent psychological condition.    Using the
results from a series of clinical tests conducted on Egan, Dr.
∗ In general terms, Dr. Ryan explained secondary gain as a
continuum concept in which an individual may be faking symptoms
or in fact have symptoms such as loss of memory, but exaggerate
the symptoms because the individual likes attention.
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Ryan expressed the opinion that she was not suffering from a
mild traumatic brain injury as a result of the  1998 accident.
Rather, he testified that it was more likely that the
constellation of her symptoms was brought on by one of the other
causes.
Dr. Bruce Smoller, a psychiatrist, also testified for
Honsinger and concurred with Dr. Ryan that Egan’s condition was
not the result of injuries sustained in the  1998 accident.    In
Dr. Smoller’s opinion, Egan suffered from a form of bipolar
disorder.
Counsel for both parties proffered jury instructions to the
trial court in preparation for submitting the case to the jury.
The trial court granted instructions advising the jury that Egan
had the burden to prove by a preponderance of the evidence that
Honsinger was negligent and that her negligence proximately
caused the  1998 accident and the injuries Egan claimed to have
suffered as a result.    The trial court also granted a limiting
instruction on the subject of aggravation of a pre-existing
condition.
In addition to these instructions, Honsinger proffered two
other instructions that are at issue here.    She contended in the
trial court that either of these instructions was consistent
with her theory of the case or  “two causes” defense and were
meant to guide the jury when the evidence was in  “equipoise” for
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the causes of Egan’s asserted injuries.    The first of the two
instructions, Instruction R, stated:
Damages are not presumed nor may they be based
upon speculation, but must be proven; and the burden
is upon the plaintiff to prove by a preponderance of
the evidence each item and element of damage claimed.
Unless such item or element thus claimed is proven by
a preponderance of the evidence, the plaintiff cannot
recover therefor.
If you are uncertain as to whether any particular
element of damage claimed was caused by the collision,
or if it appears just as probable that any injury or
element of damage complained of resulted from a cause
other than the collision as that it did, then the
plaintiff cannot recover therefor.
The second instruction, Instruction S, stated:
Damages are not presumed nor may they be based
upon speculation, but must be proven; and the burden
is upon the plaintiff to prove by a preponderance of
the evidence and with reasonable certainty any item or
element of damage claimed and that it is properly
attributable to the accident; and unless such item or
element of damage is thus proven by a preponderance of
the evidence and with reasonable certainty, then the
plaintiff cannot recover for such item or element.
If you believe from the evidence that a
particular injury complained of by the plaintiff may
have resulted from either of two causes, for one of
which the defendant might have been responsible and
for the other of which she was not, and if you are
unable to determine which of the two causes occasioned
the injury complained of, then the plaintiff cannot
recover therefor.
Egan objected to both instructions.    She contended that the
language used imposed an improper burden of proof on her because
it required that she prove causation of her injuries and damages
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with some degree of certainty, rather than by a preponderance of
the evidence.    She also argued that the instructions were
cumulative of the burden of proof instructions already granted
and that they would confuse the jury.
The trial court refused both Instructions R and S.    It
reasoned, in part, that both instructions were deficient,
duplicative of other instructions already approved, and would
confuse the jury.    While refusing these instructions, the trial
court stated, however, that Honsinger would be permitted to
assert her  “two causes” theory of the case to the jury under the
other granted instructions.    In her closing argument, Honsinger
contended that Egan’s injuries were not caused by the accident
but, rather, by one or more of the other potential causes
identified by Honsinger’s experts.
The jury returned its verdict for Egan, awarding her
damages in the amount of  $500,000.    The trial court denied
Honsinger’s motion to set aside the verdict and for a new trial
and entered judgment on the jury’s verdict.    We awarded
Honsinger this appeal, limited to the issue whether the trial
court erred in failing to grant Instruction R or Instruction S.
DISCUSSION
Our resolution of this appeal is guided by well-established
principles.    In reviewing a trial court’s refusal to grant a
proffered jury instruction, we examine the evidence in the light
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most favorable to the proponent of the instruction.
Commonwealth v. Vaughn,  263 Va.  31,  33,  557 S.E.2d  220,  221
(2002); Blondel v. Hays,  241 Va.  467,  469,  403 S.E.2d  340,  341
(1991).
The purpose of jury instructions  “is to fully and fairly
inform the jury as to the law of the case applicable to the
particular facts, and not to confuse them.”    H. W. Miller
Trucking Co. v. Flood,  203 Va.  934,  936,  128 S.E.2d  437,  439
(1962); see also Southers v. Price,  211 Va.  469,  473,  178 S.E.2d
685,  688  (1971).                                                        “Instructions are meant to aid the jury in its
deliberations, not to make such deliberations more difficult.”
Gaalaas v. Morrison,  233 Va.  148,  156,  353 S.E.2d  898,  902
(1987).    Consequently, we will approve a trial court’s decision
not to give an instruction that is duplicative of instructions
already given.    See, e.g., Poliquin v. Daniels,  254 Va.  51,  59,
486 S.E.2d  530,  535  (1997); Cox v. Mabe,  214 Va.  705,  709,  204
S.E.2d  253,  257  (1974).
It is axiomatic that a party is entitled to have jury
instructions that address his or her theory of the case so long
as that theory is supported both by law and fact.    Price v.
Taylor,  251 Va.  82,  85,  466 S.E.2d  87,  88  (1996); Bowers v. May,
233 Va.  411,  413-14,  357 S.E.2d  29,  30  (1987).    In the present
case, the jury could have concluded from the evidence produced
by Honsinger that Egan’s alleged injuries arose from some other
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cause unrelated to the trauma of the  1998 accident.
Accordingly, and citing Mastin v. Theirjung,  238 Va.  434,  384
S.E.2d  86  (1989), Honsinger contends that she was entitled to
have either Instruction R or Instruction S given to the jury.
Honsinger’s reliance on Mastin, however, is misplaced in the
procedural context in which the jury instructions issue arose in
this case.    For the reasons that follow, we are unable to reach
Honsinger’s primary contention that she was entitled to a
specific instruction addressing the jury’s resolution of the
causes of Egan’s alleged injuries in addition to or distinct
from the other instructions requiring Egan to prove her injuries
and damages by a preponderance of the evidence standard.
In a civil trial, the burden is on the parties to furnish
the trial court with proper and appropriate instructions that
address their respective theories of the case.    However, when a
proffered instruction is not a correct statement of the law or
is not supported by the evidence in the case, the trial court is
not required to correct or amend the instruction rather than
refusing to grant it.    Peele v. Bright,  119 Va.  182,  184,  89
S.E.  238,  239  (1916).    But cf. Whaley v. Commonwealth,  214 Va.
353,  355-56,  200 S.E.2d  556,  558  (1973)  (holding that in a
criminal trial the trial court must correct or amend an improper
instruction if the proper instruction is necessary for the jury
to understand the case).    In the present case, Honsinger did not
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request the trial court to modify either Instruction R or
Instruction S and, moreover, she did not proffer an alternative
instruction after the trial court indicated that neither
instruction was a correct statement of the law.    In that
procedural context, we must address these instructions as they
were proffered.    And while the recited language from the portion
of the instruction at issue in Mastin is identical to the
language of the second paragraph of Instruction S,  238 Va. at
439,  384 S.E.2d at  89, we did not expressly approve that
language there and do not do so here.
We turn now to consider Honsinger’s instructions as
proffered to the trial court.    Instruction R is, at best,
confusing and, at worst, not a correct statement of law because
it would have required the jury to find for Honsinger if the
jury were  “uncertain” of the causation of Egan’s injuries,
implying that Egan was required to prove her case with
“certainty.”    However, we have held that  “[p]roximate cause need
not be established  ‘with such certainty as to exclude every
other possible conclusion.’  ”    Wooldridge v. Echelon Service
Company,  243 Va.  458,  461,  416 S.E.2d  441,  443  (1992)  (quoting
Northern Virginia Power Co. v. Bailey,  194 Va.  464,  471,  73
S.E.2d  425,  429  (1952)).    Even when, as here, the defendant
asserts the possibility of another cause for the plaintiff’s
injuries, the plaintiff’s burden remains that of proving by a
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preponderance of the evidence that the defendant’s acts were a
proximate cause of the plaintiff’s injuries.    Norfolk & Western
Railway Co. v. Poole’s Adm’r,  100 Va.  148,  154,  40 S.E.  627,  629
(1902).    Accordingly, we hold that the trial court did not err
in refusing to give Instruction R.
Similarly, the use of the phrase  “reasonable certainty” in
Instruction S renders that instruction either confusing or an
incorrect statement of law in that it would appear to impose
upon Egan a burden greater than that of proving her case by a
preponderance of the evidence.    Accordingly, we hold that the
trial court did not err in refusing to give Instruction S.
CONCLUSION
For these reasons, the judgment in favor of Egan will be
affirmed.
Affirmed.
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