Richard Spinnenweber v. Robert Laducer

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1534
RICHARD SPINNENWEBER,
Plaintiff-Appellant,
v.
ROBERT LADUCER and
RED RIVER SUPPLY, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 14-cv-101 — John E. Martin, Magistrate Judge.
____________________
ARGUED OCTOBER 29, 2020 — DECIDED DECEMBER 18, 2020
____________________
Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. In this run-of-the-mill car accident
case, Defendants conceded liability, and the parties went to
trial over causation and damages. Plaintiff sought compensa-
tory damages for his physical injuries and presented evidence
that he suffered whiplash and a possible minor concussion
from the crash. He did not seek to recover medical expenses,
2 No. 20-1534
lost wages, or punitive damages. And he did not seek dam-
ages for mental or emotional injuries.
Nevertheless, the jury awarded Plaintiff a million-dollar
verdict. The district court was understandably shocked by
this award and, upon motion from Defendants, ordered Plain-
tiff to either accept a reduced verdict of $250,000 or opt for a
new trial. Plaintiff chose a new trial and, through an odd turn
of events, ended up with a $0 verdict.
Plaintiff now appeals, arguing that the district court erred
in granting the Defendants’ motion for remittitur or a new
trial. For the following reasons, we affirm.
I. BACKGROUND
In 2012, Defendant truck driver Robert Laducer rear-
ended Plaintiff Richard Spinnenweber’s minivan on I-94 in In-
diana. Spinnenweber refused medical treatment at the scene.
Five days later, Spinnenweber went to an urgent care center
to treat neck pain and, possibly, tinnitus (ringing in the ears).
Then three months after that, he told his doctor that he was
suffering from tinnitus and bouts of short-term memory loss.
In total, Spinnenweber visited seventeen medical providers to
treat these conditions.
Spinnenweber sued Laducer and Laducer’s employer, De-
fendant Red River Supply, Inc., and sought compensatory
damages for the physical injuries that the accident allegedly
caused. He did not seek punitive damages; he did not seek to
recoup medical costs or lost wages; and he did not make “a
claim for psychiatric, psychological, mental, or emotional in-
juries.” Defendants conceded liability. The parties proceeded
to trial on “[t]he extent of [Spinnenweber]’s damages caused
by the accident.”
No. 20-1534 3
At trial, none of Spinnenweber’s medical providers testi-
fied, and Spinnenweber did not put any medical records into
evidence. Instead, Spinnenweber himself testified, and he in-
troduced recorded deposition testimony from Defendants’
medical expert, Dr. Peter Carney, and from his own friends
and family.
Dr. Carney was the only expert that Spinnenweber relied
on. He testified that Spinnenweber “clearly had a whiplash
injury” from the crash. And “[e]ventually, three months after
the accident, he began to complain of mild tinnitus.” But Dr.
Carney did not relate the alleged tinnitus to the accident.
As for Spinnenweber’s alleged head injuries, Dr. Carney
opined that “[t]he initial [medical] reports do not talk about
any loss of consciousness, any memory problems. He cer-
tainly could’ve had a very mild concussion. It is possible.” But
Dr. Carney was certain that the accident did not cause any se-
rious head injury. And he did not connect the alleged memory
loss to the accident. Instead, he testified that the memory loss
could have come from any number of past injuries. Dr. Car-
ney also testified that although a QEEG test (which measures
electrical activity in the brain) showed that Spinnenweber had
experienced a head injury, the QEEG could not show when
that injury occurred.
After the close of evidence, Spinnenweber’s counsel told
the jury during closing arguments that “[t]he purpose of tort
law, of negligence law, is to deter bad conduct so it doesn’t
repeat. A verdict that isn’t proper gives permission to con-
tinue the conduct. That’s the problem, and that’s [Spinnen-
weber]’s problem.” The jury then awarded Spinnenweber $1
million in compensatory damages.
4 No. 20-1534
Defendants filed a motion for remittitur or a new trial ar-
guing that the verdict was grossly excessive and unsupported
by the evidence. The court granted the motion because “[t]he
testimony presented was insufficient to establish that any-
thing other than [Spinnenweber’s] temporary whiplash and
possible mild concussion were caused by the accident.” The
court offered Spinnenweber the choice of accepting $250,000
or a new trial.
Spinnenweber, through counsel, declined to accept the re-
mittitur award of $250,000. Counsel for Spinnenweber then
advised the court that he would be withdrawing from the case
and that Spinnenweber would be proceeding pro se.
The court set the matter for a jury trial. Later, the parties
jointly moved to withdraw the jury demand. The court
granted that motion, and the new trial was scheduled as a
bench trial.
At the one-day trial before the court, Spinnenweber pre-
sented no evidence and requested an award of $0 in damages,
which he described as a “verdict of silence.” Defendants
moved for a judgment in their favor and against Spinnen-
weber, which the court granted.
The bizarre nature of these events is not lost on us. But
Spinnenweber walked away with the $0 he asked for. And
now, represented by counsel, he appeals his final judgment of
$0 and the district court’s order granting Defendants’ motion
for remittitur or a new trial.
II. ANALYSIS
We review the district court’s decision for abuse of discre-
tion. Sommerfield v. Knasiak, 967 F.3d 617, 622 (7th Cir. 2020).
And Indiana law controls whether the jury’s award to
No. 20-1534 5
Spinnenweber was excessive. Kaiser v. Johnson & Johnson, 947
F.3d 996, 1019 (7th Cir. 2020).
This case turns on two questions. First, did the district
court abuse its discretion by finding that Spinnenweber’s evi-
dence showed that he potentially suffered just whiplash and
a mild concussion from the accident? Second, did the district
court abuse its discretion by finding that the $1 million verdict
for those injuries was so outrageous that it warranted remit-
titur or a new trial?
To both we answer no.
A. Scope of Injuries
Under Indiana negligence law, there must be a “reasona-
ble connection between a defendant’s conduct and the dam-
ages which a plaintiff has suffered.” Topp v. Leffers, 838 N.E.2d
1027, 1032 (Ind. Ct. App. 2005) (quoting Daub v. Daub, 629
N.E.2d 873, 877 (Ind. Ct. App. 1994)). At minimum, a plaintiff
must prove “causation in fact—that is, that the harm would
not have occurred ‘but for’ the defendants’ conduct.” Daub,
629 N.E.2d at 877.
The evidence required to establish causation varies de-
pending on whether the injury is objective or subjective.
When an injury is objective—meaning the ailment can be dis-
covered by a physical exam independent of a patient telling a
doctor what he feels—“the plaintiff is competent to testify as
to the injury and such testimony may be sufficient for the jury
to render a verdict without expert medical testimony.” Id. (cit-
ing Antcliff v. Datzman, 436 N.E.2d 114, 121 (Ind. Ct. App.
1982); Morphew v. Morphew, 419 N.E.2d 770, 771 (Ind. Ct. App.
1981)). But when an injury is subjective—meaning the “com-
plaint or injury is perceived or experienced by a patient … but
6 No. 20-1534
is not directly observable by the doctor”—lay “testimony
alone [i]s not sufficient to prove causation without expert
medical testimony.” Topp, 838 N.E.2d at 1033 (citing Daub, 629
N.E.2d at 877).
Usually, the “causal connection between a permanent con-
dition, an injury and a pre-existing affliction or condition is a
complicated medical question,” and “testimony of an expert
witness on the issue is necessary.” Daub, 629 N.E.2d at 877–78
(first citing Noblesville Casting Div. of TRW, Inc. v. Prince, 438
N.E.2d 722, 732 (Ind. 1982); and then citing Brown v. Terre
Haute Reg’l Hosp., 537 N.E.2d 54, 61 (Ind. Ct. App. 1989); Wat-
son v. Med. Emergency Servs., Corp., 532 N.E.2d 1191, 1196 n.2
(Ind. Ct. App. 1989)). For example, in Daub, the plaintiff
slipped on ice at her in-law’s house and sued her in-laws to
recover for alleged back injuries. Id. at 875. At trial, the plain-
tiff alone testified about her injuries. Id. at 877. After the close
of evidence, the trial court granted judgment to the in-laws
because the plaintiff did not marshal expert testimony show-
ing that the slip caused her injuries. Id. at 876. The Indiana
Court of Appeals upheld that decision because “the issue of
cause [wa]s not within the understanding of a lay person[
and] testimony of an expert witness on the issue [wa]s neces-
sary.” Id. at 878. The court further explained that the plaintiff’s
testimony was “so lacking in probative value on the question
of cause in fact that it offer[ed] the jury at best only the mere
possibility that her back ailment was in fact caused by the
slip.” Id.
In this case, Dr. Carney’s testimony that Spinnenweber
“clearly had a whiplash injury” and “certainly could’ve had a
very mild concussion” showed that Spinnenweber could have
suffered those injuries from the accident.
No. 20-1534 7
But the record evidence did not show that the crash could
have caused Spinnenweber’s other alleged injuries such as in-
ternal brain trauma and tinnitus. Those were subjective inju-
ries because Spinnenweber perceived them, but they were not
directly observable by his doctors. And the cause of those in-
juries involved complicated medical questions (such as the
role of pre-existing conditions) that lay testimony alone could
not have answered. As in Daub, though, no expert testimony
or other medical evidence linked Spinnenweber’s alleged
head injury or tinnitus to the accident. So it would have been
conjecture or speculation for the jury to find that the crash
caused those ailments.
The district court thus did not abuse its discretion in find-
ing that Spinnenweber’s evidence showed that he potentially
suffered just whiplash and a mild concussion from the crash.
B. Excessiveness of Damages
“Indiana courts will not disturb a compensatory-damages
award ‘[i]f there is any evidence in the record which supports
the amount of the award, even if it is variable or conflicting.’”
Kaiser, 947 F.3d at 1019 (alteration in original) (quoting Sears
Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001)).
Moreover, “[p]hysical and mental pain are, by their very na-
ture, not readily susceptible to qualification and, thus, the jury
is given wide latitude in determining these kinds of dam-
ages.” Weinberger v. Boyer, 956 N.E.2d 1095, 1113 (Ind. Ct. App.
2011) (citing Ritter v. Stanton, 745 N.E.2d 828, 845 (Ind. Ct.
App. 2001)).
Even so, wide latitude is not unlimited discretion. “A dam-
age award must be supported by probative evidence and can-
not be based on mere speculation, conjecture, or surmise.”
8 No. 20-1534
Abbey Villas Dev. Corp. v. Site Contractors, Inc., 716 N.E.2d 91,
101 (Ind. Ct. App. 1999) (quoting 4–D Bldgs., Inc. v. Palmore,
688 N.E.2d 918, 921 (Ind. Ct. App. 1997)). And a verdict is ex-
cessive if “the amount cannot be explained upon any basis
other than prejudice, passion, partiality, corruption, or some
other improper element.” Parke State Bank v. Akers, 659 N.E.2d
1031, 1035 (Ind. 1995) (quoting Fowler v. Campbell, 612 N.E.2d
596, 603 (Ind. Ct. App. 1993)). “To warrant reversal, the
amount of damages ‘must appear to be so outrageous as to
impress the court at “first blush” with its enormity.’” Kimber-
lin v. DeLong, 637 N.E.2d 121, 129 (Ind. 1994) (quoting N.Y.
Cent. R.R. Co. v. Johnson, 127 N.E.2d 603, 608 (Ind. 1955)).
In the district court’s words, “there [wa]s no rational con-
nection between the scant evidence presented and [Spinnen-
weber’s] compensatory award of one million dollars”—espe-
cially when Spinnenweber did not seek any medical expenses,
lost wages, or damages for emotional harm. Instead, it ap-
pears that the jury either incorrectly awarded damages for all
of Spinnenweber’s injuries—rather than just his whiplash and
concussion—or improperly conflated compensatory and pu-
nitive damages. After all, Spinnenweber’s attorney essentially
asked for punitive damages during closing argument by tell-
ing the jurors that “[t]he purpose of tort law, of negligence
law, is to deter bad conduct so it doesn’t repeat.”
Defendants forfeited any argument that this statement it-
self warranted a new trial. But to avoid any potential confu-
sion, we want to clarify that “[t]ort damages, with the excep-
tion of punitive damages, are intended to make the plaintiff
whole by compensating him or her for any injuries or losses
proximately caused by the defendant.” 25 C.J.S. Damages § 139
(2020); accord Ritter, 745 N.E.2d at 843 (“‘Compensation is the
No. 20-1534 9
stated goal of a court when measuring damages for personal
injuries.’ The question, as is so frequently raised in personal
injury actions, is how much money reasonably compensates
the [plaintiffs] for their injuries and pain and suffering.” (cita-
tion omitted) (citing Kavanagh v. Butorac, 221 N.E.2d 824, 828
(1966))).
Given the whiplash and mild concussion for which the
jury could have awarded compensatory damages to Spinnen-
weber, the district court did not abuse its discretion in finding
that the $1 million verdict was outrageous and then granting
Defendants’ motion for remittitur or a new trial.
Spinnenweber’s counterargument focuses on damages
awards in comparator cases. “While these comparisons are
relevant to the federal standard, Indiana courts heavily disfa-
vor ‘comparative analysis’ when reviewing a damages
award.” Kaiser, 947 F.3d at 1019 (citations omitted) (first citing
E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 834 (7th Cir. 2013); and
then citing Weinberger, 956 N.E.2d at 1114). We therefore do
not address the comparison cases that the parties cite in their
briefs. Weinberger, 956 N.E.2d at 1114 (“While it may be tempt-
ing to engage in a comparative analysis to aid us in the diffi-
cult task of evaluating the award at issue in this case, to do so
would be a significant departure from Indiana’s historical re-
gard for the uniqueness of every tort claim and the belief that
compensatory damage assessments should be individualized
and within the province of the factfinder.”).
We recognize that the result of our decision is that Spin-
nenweber gets no money on a claim for which Defendants
conceded liability and indisputably owed him something—in
the district court’s eyes, as much as $250,000. But
10 No. 20-1534
Spinnenweber was hoisted with his own petard. He did not
have to seek $0 in his second trial, and we can’t change that
he did.
III. CONCLUSION
We AFFIRM the decision of the district court granting De-
fendants motion for a new trial or a reduced verdict and the
district court’s final judgment of $0.