Steven C. Lane v. Brandy D. Rosenquist and Hermann Ventures, LLC d/b/a Seasons Homecare

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ROBERT W. MYSLIWIEC J. THOMAS VETNE
South Bend, Indiana BRIAN M. KUBICKI
Jones Obenchain, LLP
South Bend, Indiana
FILED
Aug 17 2012, 9:20 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
STEVEN C. LANE, )
)
Appellant-Plaintiff, )
)
vs. ) No. 43A03-1111-CT-534
)
BRANDY D. ROSENQUIST and )
HERMANN VENTURES, LLC d/b/a )
SEASONS HOMECARE, )
)
Appellees-Defendants. )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-1001-CT-4
August 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Steven C. Lane collided with a minivan and suffered neck pain as a result of the
accident. He sued the minivan‟s driver and her employer. Lane incurred approximately
$39,000 in medical expenses before trial. The jury awarded Lane $32,000 in damages but
found that he was twenty percent at fault and thus reduced his recovery to $25,600. Lane
filed a motion to correct error, claiming that the trial court erred in instructing the jury on
comparative fault, that the jury erred in apportioning fault, and that the jury‟s verdict was
inadequate. The trial court denied Lane‟s motion.
On appeal, Lane contends that the trial court abused its discretion in denying his
motion to correct error and in excluding evidence regarding health insurance. We find no
abuse of discretion and therefore affirm.
Facts and Procedural History
On the morning of January 12, 2009, Lane was driving his car eastbound on Winona
Avenue in a residential neighborhood in Warsaw. He approached the intersection of Union
Street at the posted speed limit of thirty miles per hour. Winona Avenue is the preferential
street, and a stop sign is posted for northbound traffic on Union Street. When Lane reached
the intersection, he suddenly saw a northbound minivan “right in front of [him]” and “didn‟t
have a chance to swerve or hit [his brakes] or anything.” Tr. at 43. Lane‟s car collided with
the minivan, which was driven by Brandy D. Rosenquist in the course of her employment
with Hermann Ventures, LLC d/b/a Seasons Homecare (collectively, “Appellees”).
According to eyewitness Steve Johnson, Rosenquist was traveling approximately thirty-five
2
to forty miles per hour at the time of the collision and “didn‟t appear to slow down” for the
stop sign. Id. at 103. At trial, Rosenquist said, “I recall slowing for the stop sign. I recall
removing my foot from the gas and I do remember applying the brake. After that, I don‟t
remember anything until I see a tree coming at me.” Id. at 125.
Lane was transported to the hospital emergency room complaining of pain in his left
knee. The evidence is conflicting as to whether he complained of neck pain to emergency
room personnel. See id. at 79 (Lane‟s testimony) (“I told [the doctor] that my hand was
hurting, that my neck and back were hurting.”); Defendants‟ Ex. A (emergency department
note) (“[Lane] denies any neck or back problems at this point but has a history of chronic
back pain.”). Lane was prescribed pain medication and a muscle relaxer and was released
from the hospital. Two days later, he visited a chiropractor to be treated for neck pain. Lane
received additional treatment, including several epidural steroid injections, for his neck pain.
Lane sued Appellees for negligence. Prior to trial, the court granted Appellees‟
motion in limine to exclude “[a]ny reference to the parties‟ financial status.” Appellant‟s
App. at 24. The trial court indicated that its ruling would apply to evidence that Lane once
had health insurance (which Lane would have used to establish that he had not been treated
for neck pain before the accident) and that he no longer had health insurance (which he
would have used to establish pain and suffering as a result of being unable to pay his medical
bills after the accident). The court did allow Lane to make an offer of proof as to this
excluded evidence on rebuttal. During trial, Lane submitted an exhibit indicating that he had
3
incurred $39,086.98 in medical expenses before trial. The court admitted the exhibit without
objection.
On September 21, 2011, the jury awarded Lane $32,000 in damages but found that he
was twenty percent at fault for the accident and thus reduced his recovery to $25,600. The
trial court entered judgment on the jury‟s verdict. Lane filed a motion to correct error,
asserting that the trial court erred in instructing the jury on comparative fault, that the jury
erred in apportioning fault, and that the verdict was inadequate. The trial court denied Lane‟s
motion.
Lane now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Lane challenges the trial court‟s denial of his motion to correct error as well as its
exclusion of evidence regarding health insurance. We review both issues under an abuse of
discretion standard. See Ellis v. M & I Bank, 960 N.E.2d 187, 190 (Ind. Ct. App. 2011) (“We
will reverse a trial court‟s decision to grant or deny a motion to correct error only for an
abuse of discretion. An abuse of discretion occurs if the trial court‟s decision is clearly
against the logic and effect of the facts and circumstances, or if the trial court has
misinterpreted the law.”) (citation omitted); Weinberger v. Boyer, 956 N.E.2d 1095, 1104
(Ind. Ct. App. 2011) (“The standard of review for admissibility of evidence is abuse of
discretion. The trial court abuses its discretion only when its action is clearly erroneous and
against the logic and effect of the facts and circumstances before the court. Even when the
trial court erred in its ruling on the admissibility of evidence, this court will reverse only if
4
the error is inconsistent with substantial justice.”) (citations and footnote omitted), trans.
denied (2012).1
I. Denial of Motion to Correct Error
A. Comparative Fault
We have explained that
[t]he Comparative Fault Act modifies the common law rule of contributory
negligence which precluded a victim from recovering damages if the victim
was even slightly negligent. The Act permits a jury to allocate fault among
parties. Where the Comparative Fault Act applies, it operates to diminish a
claimant‟s recovery by the amount of the claimant‟s contributory fault, and
bars recovery altogether in situations where the claimant‟s contributory fault is
found to be greater than the fault of all other persons whose fault proximately
contributed to the claimant‟s damages.
Horine v. Homes by Dave Thompson, LLC, 834 N.E.2d 680, 685 (Ind. Ct. App. 2005)
(citations and quotation marks omitted).
In their answer to Lane‟s negligence complaint, Appellees denied that Rosenquist
caused the accident. Before trial, the court and the parties reviewed the preliminary jury
1
Appellees‟ counsel use footnotes, rather than citation sentences, to cite sources. As we recently
explained in City of Elkhart v. SFS, LLC, 968 N.E.2d 812 (Ind. Ct. App. 2012),
Citation sentences are required under our appellate rules. Ind. Appellate Rule 22 (requiring
adherence to Bluebook rules); see The Bluebook: A Uniform System of Citation R. B2, at 4
(Columbia Law Review Ass‟n et al. eds., 19th ed. 2010) (“In non-academic legal documents,
citations appear within the text of the document as full sentences or as clauses within
sentences directly after the propositions they support.”).
Id. at 815 n.1. We also note that Appellees‟ counsel cite an unpublished memorandum decision on page 18 of
their brief in violation of another appellate rule. See Ind. Appellate Rule 65(D) (“Unless later designated for
publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be
cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the
case.”). We encourage Appellees‟ counsel to comply with the foregoing rules in future appeals.
5
instructions, which apparently mentioned comparative fault.2 Lane objected on the basis that
Appellees had not specifically pled contributory fault as an affirmative defense. The trial
court overruled the objection on the basis that the Appellees had raised the defense “by a
general denial.” Tr. at 11.
On appeal, Lane argues that the court erred in instructing the jury on comparative fault
because Appellees failed to specifically plead contributory fault as an affirmative defense.
Lane cites no authority for this proposition, and we are aware of none. In fact, as Appellees
observe, Indiana Trial Rule 9.1(A) says, “In all claims alleging negligence, the burden of
pleading and proving contributory negligence, assumption of risk, or incurred risk shall be
upon the defendant who may plead such by denial of the allegation.” Lane does not respond
to this observation in his reply brief, let alone contend that “contributory negligence” does
not encompass “contributory fault.”
In an opinion issued the year before our legislature adopted the Comparative Fault
Act, our supreme court held that the trial court “did not exceed its discretion in allowing
defendants to raise contributory negligence and incurred risk as issues at trial.” Whisman v.
Fawcett, 470 N.E.2d 73, 77 (Ind. 1984). In so holding, the Whisman court relied in part on
the following statement regarding Trial Rule 9.1(A) from Dean William F. Harvey‟s treatise
on civil procedure:
It is interesting to note that the [1970 Civil Code Study] Commission
did not adopt as part of the new code the provisions of Federal Rule 8(c) which
requires contributory negligence, assumption of risk and incurred risk to be
separately and specifically pleaded as affirmative defenses. Under [Trial Rule
2
Those instructions are not in the record before us.
6
9.1(A)], by denying the allegation of negligence the defendant has available to
him any of the three defenses on which he relies. The reason for so drafting
the new rule, which is in reality a true codification of the old law, is that since
all three defenses are really matters of proof tending to negate defendant’s
responsibility for damages, such matters of proof can fairly be said to be in
issue when negligence is pleaded by the plaintiff. In effect, the plaintiff can be
expected to know that the defendant will try to prove that plaintiff’s injury was
the result of plaintiff’s own conduct.
Id. (citing 1 WILLIAM F. HARVEY INDIANA PRACTICE RULES OF PROCEDURE ANNOTATED
563 (1st ed. 1969) (emphases in Whisman)). We see no reason why a different result would
obtain under the Comparative Fault Act. Instructing the jury is a matter of trial court
discretion, Merida v. Cardinal, 749 N.E.2d 605, 607 (Ind. Ct. App. 2001), and Lane has
failed to establish an abuse of that discretion here.3
B. Fault Apportionment
Lane also contends that the jury erred in apportioning any fault to him. Fault
apportionment is uniquely a question of fact to be decided by the jury. Hampton v. Moistner,
654 N.E.2d 1191, 1195 (Ind. Ct. App. 1995). We may not reweigh the evidence, for “such is
not the function of a court of review.” Imel v. Thomas, 585 N.E.2d 712, 713 (Ind. Ct. App.
1992). “While at some point the apportionment of fault may become a question of law for
3
Lane also argues that the trial court erred in instructing the jury that Appellees “„[did] not have any
burden to prove or even to present any evidence that someone else was at fault.‟” Appellant‟s Br. at 18
(quoting Final Instruction 15). Lane failed to object to this instruction at trial and therefore has waived this
argument. Jamrosz v. Res. Benefits, Inc., 839 N.E.2d 746, 761 (Ind. Ct. App. 2005), trans. denied (2006).
Waiver notwithstanding, Lane has failed to show that he was prejudiced by the instruction, and thus he would
not be entitled to reversal in any event. See Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190,
1195 (Ind. 2007) (“Even when a jury is given an incorrect instruction on the law, we will not reverse the
judgment unless the party seeking a new trial shows a reasonable probability that substantial rights of the
complaining party have been adversely affected.”) (citation and quotation marks omitted).
7
the court, that point is reached only when there is no dispute in the evidence and the
factfinder is able to come to only one logical conclusion.” Hampton, 654 N.E.2d at 1195.
Lane makes the following argument:
The evidence at trial concerning liability was straight-forward. [Lane]
testified that he was traveling at the posted speed limit of 30 mph on a
preferential street, when [Rosenquist], traveling 5 or 10 mph over the speed
limit,[4] failed to stop at a stop sign and suddenly appeared in front of [Lane],
who was unable to avoid the collision. [Lane], and an independent witness,
each testified that [Rosenquist‟s] vehicle was not visible to [Lane] until he was
virtually in the intersection, and therefore insufficient time existed to take
evasive steps to avoid the collision.
[Lane] was not required to take preventative steps, such as slowing his
vehicle, as he crossed every cross-street.
Appellant‟s Br. at 19.
We note, however, that the jury was instructed that a motorist must indeed slow his
vehicle as he approaches each intersection. That instruction reads as follows:
When the events in this case happened, Indiana Code § 9-21-5-4(1) provided,
in part, as follows:
The driver of each vehicle shall … drive at an appropriate
reduced speed as follows:
4
Appellees observe that no evidence was presented regarding the speed limit on Union Street and thus
no basis exists for Lane‟s assertion that Rosenquist was traveling over the speed limit.
8
(1) when approaching and crossing an intersection or railway
grade crossing.[5]
If you decide from the greater weight of the evidence that a person
violated Indiana Code § 9-21-8-24[6] and that the violation was not excused,
then you must find that person was at fault.
5
Indiana Code Section 9-21-5-4 reads in its entirety as follows:
The driver of each vehicle shall, consistent with section 1 of this chapter, drive at an
appropriate reduced speed as follows:
(1) When approaching and crossing an intersection or railway grade crossing.
(2) When approaching and going around a curve.
(3) When approaching a hill crest.
(4) When traveling upon a narrow or winding roadway.
(5) When special hazard exists with respect to pedestrians or other traffic or by
reason of weather or highway conditions.
Indiana Code Section 9-21-5-1 reads,
A person may not drive a vehicle on a highway at a speed greater than is reasonable
and prudent under the conditions, having regard to the actual and potential hazards then
existing. Speed shall be restricted as necessary to avoid colliding with a person, vehicle, or
other conveyance on, near, or entering a highway in compliance with legal requirements and
with the duty of all persons to use due care.
6
This statute reads,
A person may not:
(1) slow down or stop a vehicle;
(2) turn a vehicle from a direct course upon a highway; or
(3) change from one (1) traffic lane to another;
unless the movement can be made with reasonable safety. Before making a movement
described in this section, a person shall give a clearly audible signal by sounding the horn if
any pedestrian may be affected by the movement and give an appropriate stop or turn signal in
the manner provided in sections 27 through 28 of this chapter if any other vehicle may be
affected by the movement.
Ind. Code § 9-21-8-24. We cannot tell whether this statute was included in the instruction intentionally or as a
result of a typographical error.
9
Appellant‟s App. at 44 (Final Instruction 14).
Lane contends that “[t]he instruction is erroneous because it refers to two different
sections of the Indiana Code. Further, there was no evidence to support the giving of the
instruction.” Appellant‟s Br. at 21. He asserts that “[a]ll discussion[s] of instructions were
held in the judge‟s chambers” and that he “objected to the instruction.” Appellant‟s Br. at 23.
Appellees say that “neither the record, nor [Rosenquist‟s] own recollection, support[s] the
claim” that Lane objected to the instruction. Appellees‟ Br. at 31. If Lane made any
objection in chambers, he made no effort to put it on the record at trial, nor did he prepare a
verified statement of the evidence regarding any objection pursuant to Indiana Appellate
Rule 31.7 Absent any competent evidence that Lane objected to the instruction at trial, we
must conclude that he has waived any argument about it on appeal. Jamrosz v. Res. Benefits,
Inc., 839 N.E.2d 746, 761 (Ind. Ct. App. 2005), trans. denied (2006).
As for Lane‟s assertion that Rosenquist ran the stop sign, Rosenquist told the jury that
she had known that there was a stop sign for northbound traffic on Union Street and that
there was no stop sign for eastbound traffic on Winona Avenue. She said that she
remembered “slowing for the stop sign,” “removing [her] foot from the gas,” and “applying
the brake.” Tr. at 125. It was the jury‟s function to judge the credibility of the witnesses and
weigh the conflicting evidence regarding whether Rosenquist stopped at the stop sign before
7
See Ind. Appellate Rule 31(A) (“If no Transcript of all or part of the evidence is available, a party or
the party‟s attorney may prepare a verified statement of the evidence from the best available sources, which
may include the party‟s or the attorney‟s recollection. The party shall then file a motion to certify the statement
of evidence with the trial court or Administrative Agency. The statement of evidence shall be attached to the
motion.”).
10
entering the intersection. See St. Margaret Mercy Healthcare Ctrs., Inc. v. Poland, 828
N.E.2d 396, 404 (Ind. Ct. App. 2005) (“[I]t was within the province of the jury to judge the
credibility of witnesses and to weigh the evidence.”), trans. denied.
Finally, we note that the jury was instructed that “[e]very driver must maintain a
proper lookout to see or hear what should be seen or heard through the exercise of reasonable
care. A person is negligent if he or she does not maintain a proper lookout.” Appellant‟s
App. at 43 (Final Instruction 13). Lane concedes that both sides presented evidence “that
there were obstructions at the intersection which prevented the drivers from seeing one
another until they were virtually in the intersection itself.” Appellant‟s Reply Br. at 2.8
Based on the evidence presented and the instructions given to the jury, we conclude that the
jury reasonably could have found Lane to be twenty percent at fault for the accident. As
such, Lane is not entitled to reversal on this issue.
C. Inadequate Verdict
Next, Lane asserts that the jury‟s verdict was inadequate. We employ a strict standard
when reviewing a claim of inadequate damages, and we will neither reweigh evidence nor
8
Lane suggests that he did not have a duty to keep a proper lookout and slow down as he approached
the intersection because “[t]he exercise of ordinary and reasonable care does not require the preferred driver to
be constantly aware of actions of non-preferred drivers in plain view.” Appellant‟s Reply Br. at 3 (citing
Anderson v. Pre-Fab Transit Co., 409 N.E.2d 1157, 1164 (Ind. Ct. App. 1980), trans. denied). The flaw in
Lane‟s argument is that Rosenquist‟s minivan was not in plain view prior to the accident because of the layout
of the intersection and the surrounding topography in that residential area. Lane‟s own witness, Steve Johnson,
testified that a motorist traveling eastbound on Winona Avenue would have to be “right on it pretty close to”
the intersection to see any northbound traffic on Union Street because “it‟s hard to see anybody right there
behind the trees and house.” Tr. at 105.
11
judge witness credibility. Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d
1093, 1103 (Ind. Ct. App. 2007), trans. denied.
We consider only the evidence favorable to the award. In addition, we must
not reverse a damage award so long as the damages fall within the scope of the
evidence. A verdict will be reversed only upon a finding that, based upon the
evidence, the amount of damages awarded indicates that the jury was
motivated by prejudice, passion, partiality, corruption, or consideration of
some improper element. Where the evidence presented is conflicting as to the
nature, extent, and source of the injury, the jury is in the best position to assess
damages, and we will not disturb the award.
Id. (citations omitted). “The jury‟s damage award will not be deemed the result of improper
consideration if the size of the award can be explained on any reasonable ground.” Burton v.
Bridwell, 938 N.E.2d 1, 7 (Ind. Ct. App. 2010), trans. denied (2011).
Lane complains that “[t]he jury verdict, even before a 20% reduction for [his] fault,
was approximately $8,000 less than the undisputed medical expenses.” Appellant‟s Br. at 12.
Our supreme court has said that “[i]n order to recover an award of damages for medical
expenses, the party seeking to recover these damages must prove that the expenses were both
reasonable and necessary.” Cook v. Whitsell-Sherman, 796 N.E.2d 271, 277 (Ind. 2003).
Although Appellees did not object to the admission of Lane‟s list of medical expenses, they
did vigorously dispute whether those expenses were reasonable and necessary. For example,
Lane was billed nearly $4200 for three epidural steroid injections that Appellees‟ medical
expert would not have recommended in Lane‟s case. See Deposition of Robert A. Yount,
M.D., at 31-32 (“I do not recommend epidural steroid injections for patients in the absence of
radicular pain because, otherwise, there is nothing to treat. A cervical epidural injection
works because it reduces nerve inflammation. If there‟s no nerve inflammation, no radicular
12
pain, no pain in the arm, a cervical epidural, in my view is not indicated.”). One of Lane‟s
physicians opined that Lane would require several steroid injections annually for the rest of
his life, at a total cost of approximately $250,000, and Appellees‟ expert disagreed with this
opinion. Id.9 Appellees also disputed the nature, extent, and source of Lane‟s neck injury.
See, e.g., Tr. at 154-55 (Appellees‟ closing argument) (“And even Mr. Lane‟s own doctor,
Poovendran, says that the MRI was absolutely normal for a 55 year old man. Absolutely
normal. Not a sign of trauma on it.”); id. at 159 (“What about this neck discomfort? Dr.
Poovendran says if you‟ve got this degenerative disk disease, you can get pain just by going
through the activities of daily living. Lifting something, waking up on the wrong side of the
bed, reaching over to tie shoes. [Lane] had it before the accident. He‟s got it now. His life
wasn‟t ruined because of [Rosenquist].… He still works. He still plays pool.”).
Based on the record before us, we conclude that the jury‟s damage award can be
explained on the reasonable ground that the jury simply did not believe that some of Lane‟s
medical expenses were reasonable and necessary and that his neck pain was either not caused
by the accident or not as severe as he claimed. As such, we will not disturb the award.10
9
In closing argument, Lane‟s counsel also asked that his client be compensated for a future spinal
fusion surgery and postoperative care that one of Lane‟s physicians had recommended and estimated at
$200,000. Appellees‟ expert disputed both the estimated cost and the necessity of the procedure. See
Deposition of Robert A. Yount, M.D., at 14 (“It‟s completely unreasonable. There isn‟t an insurance company
in the state of Indiana that would pay anywhere near that for a three level cervical fusion.”), 29-30 (“What is
the point of [the surgery]? [Lane‟s physician] has already said he would continue to have pain afterwards and
would require further surgery in the future. What is the point of subjecting him to that, any future surgeries if
he‟s always going to have neck pain? I ask you, what is the point of that?”).
10
Lane‟s counsel argued that his client was entitled to hundreds of thousands of dollars for pain and
suffering, but he makes no specific argument about such damages on appeal.
13
That being said, we are compelled to address several comments made by Appellees‟
counsel during closing argument. It has been said that “[a]rguments and comments by
counsel calculated to arouse the passions and prejudices of a jury, by presenting to them
considerations extraneous to the evidence, are highly improper.” 28 IND. LEGAL
ENCYCLOPEDIA, Trial § 48 (2007) (citing U.S. Cement Co. v. Cooper, 172 Ind. 599, 88 N.E.
69 (1909), and City of Shelbyville v. Morton, 138 Ind. App. 460, 208 N.E.2d 705 (1965),
trans. denied). After Lane‟s counsel quantified his client‟s alleged damages at approximately
$1,000,000, Appellees‟ counsel made the following remarks:
Well, now you know why we‟re here. That‟s why we‟re here. That‟s why
they‟ve been chasing Brandy and Hermann Ventures for the last two and a half
years. That‟s why we‟re here.… Speaking of Hermann Ventures, why is it in
the case at all? What did Hermann Ventures do wrong? You heard Brandy
testify that she went through a pre-employment screening, background checks,
driving checks, license checks, you name it. Nothing wrong so they hired her.
But if Brandy is liable, it‟s liable. Even though she doesn‟t work there
anymore. Is it any wonder employers aren‟t hiring these days.
Tr. at 146-47.
Let‟s look at what happens later, what happens after the emergency room to
make [Lane] think he‟s horribly injured and that this was a life altering
accident? Well, the first thing he did, that we found out yesterday, was hire a
lawyer. Now, I don‟t know about you but unless somebody dies I‟m not
lawyering up right away. But that‟s what he did. Maybe we‟re just that kind
of society now. He didn‟t even wait to see a doctor on the follow up visit. He
went straight to his lawyer. And lawyers don‟t help you get any better. That‟s
what Dr. Yount told us today. He said in fact you‟re less likely to get better if
you go to a lawyer, and that makes sense „cause I‟m a lawyer and I can‟t cure
anything. [Lane‟s counsel] had a good visual yesterday. You remember, he
had this stack of records here, and he said look at the medical records he had
before the accident, there‟s just a couple. Then look at the stack of records
he‟s had after the accident. Look at that. I submit to you there‟s a couple of
ways you can look at that. The way he suggests is one way. I suggest a way to
look at that is this is the amount of medical records he had before the accident,
14
and this, this big stack, that‟s the amount of medical records he had after he got
a lawyer.
Id. at 153-54.
Mr. Lane sat up here yesterday and told us – the question from [his counsel]
was, what has Dr. Poovendran recommended? Massage therapy. Have you
had it? No. Why not? I can‟t afford it. Where did the money go? Well, we
know that $3,000 of it went for one hour of Dr. Gottlieb‟s time [for a
deposition]. He‟s investing it in litigation, not in treatment. And do you trust
what Dr. Gottlieb is telling you? Why would he say surgery is necessary?
Money. He does 300 of those surgeries a year. They take about an hour to do,
and he didn‟t tell us what his charges for that hour are, but he says the surgery
could cost $200,000.[11] Now that is ridiculous. You don‟t need me to tell you
that. You don‟t need Dr. Yount to tell you that – just like you don‟t need a
weather man to know which way the wind blows. Two hundred thousand for
an hour‟s worth of surgery is ridiculous. And think of this, if he does 300 of
those a year at $200,000 a pop, you know what that works out to? I do because
I added it up before coming up here this morning. That amounts to 60 million
dollars. Sixty million. If Gottlieb only gets ten percent of that 60 million, just
10 percent, that‟s still 6 million dollars that he gets a year from an hour‟s worth
of work for 300 days a year. It‟s no wonder that Dr. Gottlieb recommends
surgery at the drop of a hat. Got a hangnail? Let‟s operate.… So why operate
when physical therapy is working. Money. Is it any wonder our health care
system is broken.
Id. at 156-58.
If you‟re in an accident with someone, it‟s reasonable to expect that they
would have to go to the emergency room. I would; so would you. It‟s fair and
reasonable to award the emergency room expenses to Mr. Lane. But after
that…. We‟ve got no broken bones. We‟ve got no dislocations. We‟ve got no
nerve injuries. We‟ve got no burns. Do you remember that woman who
spilled McDonald‟s coffee in her lap and got awarded tons of money for doing
that and she had some really gruesome burns. We don‟t have that here.
Id. at 159-60.
11
In fact, the $200,000 estimate also included preoperative and postoperative care, physical therapy,
and follow-up visits. Deposition of Jamie E. Gottlieb, M.D., at 10.
15
These comments were blatant attempts to exploit the jurors‟ economic insecurities and
reinforce negative stereotypes of the medical and legal professions. Such considerations
were both irrelevant and prejudicial, and counsel‟s comments exceeded the bounds of
permissible advocacy. We admonish Appellees‟ counsel to refrain from making similar
comments in future cases and remind them that using scare tactics instead of focusing on the
evidence presented at trial can ultimately lead to reversal on appeal. Because the jury‟s
verdict in this case can be explained on a reasonable ground, however, we decline Lane‟s
invitation to overturn it.12
II. Admissibility of Health Insurance Evidence
Finally, Lane contends that the trial court abused its discretion in excluding evidence
regarding health insurance. To reiterate, Lane wanted to present evidence that he had not
submitted an insurance claim for neck pain treatment prior to the accident as well as evidence
that his post-accident lack of health insurance increased his pain and suffering. Two
witnesses corroborated Lane‟s testimony that he had not experienced neck pain before the
12
Lane‟s counsel did not object to the foregoing comments or request an admonishment or a mistrial.
Our supreme court has said, “When an improper argument is alleged to have been made, the correct procedure
is to request the trial court to admonish the jury. If the party is not satisfied with the admonishment, then he or
she should move for mistrial. Failure to request an admonishment or to move for mistrial results in waiver.”
Dumas v. State, 803 N.E.2d 1113, 1117 (Ind. 2004) (citations omitted). Lane seeks to avoid waiver by
invoking the fundamental error doctrine, which has been applied almost exclusively in the criminal context.
“The fundamental error doctrine is extremely narrow and applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans. denied.
In Johnson v. Wait, 947 N.E.2d 951 (Ind. Ct. App. 2011), trans. denied, another panel of this Court observed
that “[w]e have applied the fundamental error doctrine only in limited situations in civil cases,” such as those
involving involuntary commitment and termination of parental rights. Id. at 959. As did the appellants in
Johnson, who sought reversal in a medical malpractice action on the basis of an erroneous jury instruction,
Lane has “failed to show that the fundamental error doctrine should be extended to cases that do not involve
liberty interests or parental rights.” Id.
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accident, and thus evidence that Lane had not submitted insurance claims for neck pain
treatment would have been cumulative. Any error in the exclusion of merely cumulative
evidence is harmless. Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009), trans.
denied (2010).
As for the evidence regarding Lane‟s lack of health insurance, the trial court correctly
observed that “[t]here is absolutely no control of the Defendant over the financial
circumstances of the injured party. It is what it is, and that hasn‟t anything to do with
negligence or the right to recover.” Tr. at 5; see Strack & Van Til, Inc. v. Carter, 803 N.E.2d
666, 675 (Ind. Ct. App. 2004) (“Generally speaking, the measure of compensatory damages
in negligence actions depends upon the nature of the injuries sustained by the plaintiff and
not upon her wealth or poverty.”). Lane cites no authority to the contrary and therefore has
failed to establish that the trial court abused its discretion in excluding such evidence.
Consequently, we affirm.
Affirmed.
RILEY, J., and BAILEY, J., concur.
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