Kenitta K. Chandler v. Rhonda Bowser (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 07 2018, 8:39 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Sandy L. Bryant Larry A. Yeager
Indianapolis, Indiana State Farm Litigation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenitta K. Chandler, May 7, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1706-CT-1346
v. Appeal from the Marion Superior
Court
Rhonda Bowser, The Honorable John F. Hanley,
Appellee-Defendant. Judge
Trial Court Cause No.
49D11-1412-CT-39762
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Rhonda Bowser was ordered to pay $17,630.31 in
damages to Kenitta Chandler for injuries arising out of a motor vehicle
accident. The trial court denied Chandler’s motion to correct error requesting
additur. Chandler appeals, raising the sole issue of whether the trial court erred
as a matter of law in denying her motion. Bowser cross-appeals and raises one
issue for review: whether Chandler waived her appeal for failing to provide this
court with the entire transcript of the trial as required by Indiana Appellate Rule
9(F)(5). Concluding there was no error, we affirm the judgment of the trial
court.
Facts and Procedural History
[2] On December 9, 2012, Bowser and Chandler were involved in a motor vehicle
accident in which Bowser struck the back of Chandler’s car. Chandler visited
the emergency room the day after the accident, and again on January 17, 2013.
On her first visit to the emergency room, Chandler complained of low back
pain and left side neck pain but had a full range of motion in her neck, hips,
knees, and ankles, and both her upper and lower extremities exhibited good
strength. Her second visit was prompted by a spasm in her neck causing pain
and discomfort.
[3] Chandler was then seen on three different occasions by Dr. Robert Cater, an
internist. At her first visit on January 28, 2013, Dr. Cater found her to have
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significant neck spasm, a limited range of motion in her neck, pain in both
shoulders and elbows, pain in her left knee, dizziness, and a palpable spasm in
the muscles of her lower back, all of which Chandler said related to her
accident. Dr. Cater did not review Chandler’s medical records from before the
accident, but she reported no pre-existing history of injuries or ongoing pain,
and Dr. Cater testified that the injuries he treated Chandler for “were directly
related to her motor vehicle accident . . . .” Transcript, Volume II at 12. “If the
trauma had not occurred, she would not have had symptoms, in my opinion.”
Id. at 15. Dr. Cater recommended Chandler continue taking the pain
medication prescribed in the emergency room and begin physical therapy.
Chandler attended physical therapy from February 5, 2013 through April 9,
2013. Dr. Cater noted “the subsequent physical therapy notes . . . showed
improvement to definitely require physical therapy to maintain her normal
function.” Id. at 20.
[4] When Chandler returned to Dr. Cater in March, she still had daily pain in her
shoulders and lower back but had an improved range of motion in her neck.
And when she returned a month after that, her neck and knee pain had
resolved, but she still had reduced mobility in her lower back and persistent
pain in her back and shoulder. Dr. Cater intended for Chandler to continue
with physical therapy, but a referral was not sent until August. Once the
referral was made, Chandler began physical therapy again on August 29, 2013,
continuing through November 2013. Chandler did not contact Dr. Cater’s
office between April and August regarding the lost referral.
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[5] In February 2014, Chandler began treating with Dr. Jonathan Shook, an
orthopedic surgeon. He assessed Chandler’s most outstanding issue as
persistent shoulder pain stemming from the accident and recommended
additional physical therapy. Chandler began physical therapy again in June
2014, attending regularly through September 2014.
[6] Chandler filed a complaint for damages against Bowser on December 5, 2014,
alleging Bowser was negligent in operating her motor vehicle and seeking
damages for her personal injuries. Bowser admitted liability but challenged the
nature, cause, and extent of Chandler’s injuries and damages. At a jury trial in
April 2017, Chandler introduced into evidence a medical bill summary
indicating total medical expenses of $24,857.22, incurred between December
10, 2012, and September 30, 2014. These expenses included her two
emergency room visits, treatment with both Dr. Cater and Dr. Shook,
medications, and physical therapy from February 2013 to April 2013, from
August 2013 to November 2013, and from June 2014 to September 2014.
[7] Although Dr. Cater testified that Chandler’s medical treatments all stemmed
from the accident, he conceded that back pain, neck pain, and spasms can be
caused by things other than motor vehicle accidents, such as sleeping wrong, for
instance. He also noted that the notes from Chandler’s first emergency room
visit indicate she had low back and neck pain but a full range of motion and
good strength in her upper and lower extremities. Dr. Cater further testified
that there was evidence Chandler had degenerative changes between the fifth
and sixth vertebrae in her neck. Finally, Dr. Cater acknowledged that his
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opinions about whether the accident caused Chandler’s injuries and pain were
based primarily upon the three visits she made to him, but the subsequent visits
with Dr. Shook and physical therapists “were further indication that she
continued to have pain and symptoms.” Id. at 63.
[8] Ultimately, Dr. Cater testified that the medical bill summary reflected “the
involvement of multiple medical professionals, all of whom felt that the patient
had significant pain and disability[,]” and therefore the treatment was necessary
based on her injuries. Id. at 27. Based on his experience and review of
Chandler’s medical records, Dr. Cater concluded the charges in the medical bill
summary “are reasonable charges considering the course of her illness and the
length.” Id.
[9] Apparently,1 Chandler argued for damages in the amount of $125,000 to
account for her medical bills and pain and suffering. Bowser posited that
Chandler could be entitled to as little as $0 damages, given she failed to seek
medical care on the date of the accident, to as much as $11,331.49, to account
for her medical care through her first round of physical therapy. The jury
awarded Chandler damages in the amount of $17,630.31. Chandler
subsequently filed a motion to correct error, requesting additur pursuant to
Indiana Trial Rule 59(J)(5) to award her a judgment in the amount of her
1
As will be discussed below, Chandler requested that only Dr. Cater’s testimony be transcribed. Although
Bowser requested additional parts of the transcript be prepared, neither party requested the entire trial be
transcribed, and the record therefore includes only Dr. Cater’s testimony and Bowser’s closing argument.
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medical bills. The court denied Chandler’s motion to correct error. Chandler
now appeals the denial of this motion to correct error.
Discussion and Decision
I. Waiver
[10] We begin by addressing Bowser’s waiver argument. Bowser argues that
Chandler waived her argument regarding the sufficiency of the verdict by not
requesting and providing the entire transcript of the two-day jury trial. Indiana
Appellate Rule 9(F)(5) states that a party’s Notice of Appeal shall include
[a] designation of all portions of the Transcript necessary to
present fairly and decide the issues on appeal. If the appellant
intends to urge on appeal that a finding of fact or conclusion
thereon is unsupported by the evidence or is contrary to the
evidence, the Notice of Appeal shall request a Transcript of all the
evidence.
(Emphasis added.) Although a failure to include a transcript is “not fatal to the
appeal, failure to include a transcript works a waiver of any specifications of
error which depend upon the evidence.” Lifeline Youth & Family Servs., Inc., v.
Installed Bldg. Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (quoting
In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).
[11] Chandler has chosen to rest her appeal on the testimony of Dr. Cater alone,
requesting only the “[t]rial testimony of Dr. Robert Cater and Stipulated
Medical Bill Exhibit of jury trial conducted on April 18 & 19, 2017” be
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prepared. Notice of Appeal at 2. In her reply brief, she recommits to that
decision, stating she need not provide a transcript of the entire trial as she has
provided the “only evidence as to the amounts of medical specials” which is all
that is needed to “fairly present and decide the issue of additur.” Appellant’s
Reply Brief at 5-6. Chandler’s argument on appeal, however, is that the jury’s
verdict is “contrary to the evidence.” Pursuant to Appellate Rule 9(F)(5), she
should have requested a transcript of all the evidence. The failure to comply
with Appellate Rule 9(F)(5) could therefore be found to constitute a waiver.
Waiver notwithstanding, we are nonetheless inclined to address the merits of
Chandler’s argument. However, she is bound by the consequences of that
choice. In other words, we can only decide the issue on the record presented to
us. “It is a cardinal rule of appellate review that the appellant bears the burden
of showing reversible error by the record, as all presumptions are in favor of the
. . . judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468-69 (Ind.
Ct. App. 2006).
II. Motion to Correct Error
A. Standard of Review
[12] On appeal, we review a trial court’s rulings on motions to correct error for
abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048,
1055 (Ind. 2003). We will reverse only where “the trial court’s judgment is
clearly against the logic and effect of the facts and circumstances before it or
where the trial court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d
758, 761 (Ind. 2013).
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[13] Pursuant to Indiana Trial Rule 59(J)(5), if the trial court determines on a
motion to correct error that prejudicial or harmful error has occurred, it “shall
take such action as will cure the error,” including, “[i]n the case of excessive or
inadequate damages, enter[ing] final judgment on the evidence for the amount
of the proper damages, grant[ing] a new trial, or grant[ing] a new trial subject to
additur or remittitur.” “Trial courts must afford juries great latitude in making
damage award determinations.” Childress v. Buckler, 779 N.E.2d 546, 550 (Ind.
Ct. App. 2002). Only the evidence favorable to the award is considered and the
court “must not reverse a damage award so long as the damages fall within the
scope of the evidence.” Palmer v. Comprehensive Neurologic Services, P.C., 864
N.E.2d 1093, 1103 (Ind. Ct. App. 2007), trans. denied. A verdict will be reversed
only if the amount of damages awarded indicates “the jury was motivated by
prejudice, passion, partiality, corruption, or consideration of some improper
element.” Id.B. Award of Damages
[14] Chandler argues that her medical bill summary and Dr. Cater’s testimony
established her undisputed medical bills are $24,877.22 and that her damage
award should have been at least that amount. To recover damages for medical
expenses, the expenses must be both reasonable and necessary. Sibbing v. Cave,
922 N.E.2d 594, 600 (Ind. 2010). Reasonable and necessary “means (1) that
the amount of medical expense claimed must be reasonable, [and] (2) that the
nature and extent of the treatment claimed must be necessary in the sense that it
proximately resulted from the wrongful conduct of another . . . .” Id. at 604.
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[15] Chandler is correct that Indiana Evidence Rule 413 provides that statements of
charges for health care expenses “are prima facie evidence that the charges are
reasonable.” (Emphasis added.) Despite this, Chandler still has the burden of
proving that “the treatment claimed [was] necessary in the sense that it
proximately resulted from the wrongful conduct . . . .” Sibbing, 922 N.E.2d at
604.2 Although Dr. Cater did testify that he found all of the charges in the
medical bills summary to be reasonable and necessary, “[d]amages are
particularly a jury determination.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d
453, 462 (Ind. 2001). “[T]he jury is free to either accept or reject the opinion of
the expert witness; the finder of fact may supplant its own conclusion for that of
the expert.” Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. Ct. App. 2004) (noting
that this rule means the defendant in a personal injury case can challenge the
opinion of the plaintiff’s expert regarding causation: “Doctors and other expert
witnesses are not oracles whose opinions, once stated, cannot be questioned or
refuted . . . .”).
[16] Considering the breaks in Chandler’s physical therapy, the testimony of Dr.
Cater that Chandler had degenerative changes in her neck, his testimony that
spasms can be caused by factors other than a motor vehicle accident, and the
2
The medical bill summary was admitted into evidence by stipulation of the parties. Chandler contends
Bowser’s “unqualified stipulation” of the summary into evidence means Bowser could not then, nor can she
now, challenge the reasonableness and necessity of the medical bills summarized therein. Appellant’s Reply
Brief at 8. Although the medical bill summary provides some evidence that the charges therein were
reasonable, Bowser rigorously contested whether the charges were necessary during her cross-examination of
Dr. Cater. Contrary to Chandler’s assertion, Bowser did not waive her right to challenge the necessity of the
charges by her stipulation that the summary represented medical bills Chandler had incurred.
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fact that the medical bill summary shows bills for over a year after Dr. Cater
last treated Chandler, it was within the scope of the evidence adduced from Dr.
Cater for the jury to reject the necessity of some of the stipulated medical costs.
Additionally, despite Chandler’s assertion that the jury must have considered
some improper element, there is no indication in the record provided by
Chandler that “the jury was motivated by prejudice, passion, partiality,
corruption, or consideration of some improper element.” Palmer, 864 N.E.2d at
1103. Finally, the trial court heard all of the evidence from this two-day trial
and determined that no prejudicial or harmful error was committed in the
award of damages. Given our standard of review and the state of the record on
appeal, Chandler has not shown that the trial court abused its discretion in
denying her motion to correct error.
Conclusion
[17] Concluding that the trial court did not abuse its discretion in denying
Chandler’s motion to correct error, we affirm.
[18] Affirmed.
Crone, J., and Bradford, J., concur.
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