Joseph Spaulding v. Joseph Cook (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 12 2017, 9:03 am
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.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Diana C. Bauer Patrick J. Murphy
Bauer Legal LLC State Farm Litigation Counsel
Fort Wayne, Indiana Indianapolis, Indiana
David L. Farnbauch
Sweeney Law Firm
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Spaulding, December 12, 2017
Appellant-Plaintiff, Court of Appeals Case No.
02A03-1707-CT-1623
v. Appeal from the Allen Superior
Court
Joseph Cook, The Honorable Nancy Eshcoff
Appellee-Defendant. Boyer, Judge
Trial Court Cause No.
02D01-1311-CT-519
Najam, Judge.
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Statement of the Case
[1] Following an automobile accident, Joseph Spaulding sued Joseph Cook, and,
prior to trial, Cook stipulated that he was 100% at fault for causing the accident.
At the conclusion of a trial on damages, the jury awarded Spaulding no
damages. Spaulding filed a motion to correct error in which he alleged, in
essence, that the verdict was inconsistent with the evidence and inadequate as a
matter of law. The trial court denied that motion. Spaulding appeals and
claims that the trial court abused its discretion when it denied his motion to
correct error. We affirm.
Facts and Procedural History
[2] On June 8, 2012, Spaulding was driving approximately thirty miles per hour
westbound on Independence Drive in Fort Wayne. As Spaulding entered the
intersection with Centennial Drive he had the right-of-way, as there was no stop
sign or traffic signal for traffic on Independence Drive. Cook was driving a full-
size van on Centennial Drive, stopped at a stop sign, did not see Spaulding’s car
approaching the intersection, and proceeded into the intersection with
Independence Drive. Despite last-second evasive maneuvers by both drivers,
Cook’s van collided with Spaulding’s car. Cook later described the force of the
collision as “mild” or “moderate.” Plaintiff’s Ex. 31 at 31; Tr. at 49.
Spaulding’s car sustained damage to the front fender and front part of the
driver’s-side door, and the rearview mirror was broken. Other than the front
right bumper coming loose on one side, Cook’s van sustained no damage.
Spaulding was wearing his seatbelt and no part of his body hit anything in the
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car as a result of the collision. Spaulding did not have any obvious injuries and
did not seek medical attention that day.
[3] The next morning, Spaulding felt pain in his left shoulder when he tried to
reach into his back pants pocket. Accordingly, that afternoon Spaulding went
to the emergency room at Lutheran Hospital. Dr. Mary Wilger examined
Spaulding’s left shoulder and ordered X-rays, which “show[ed] nothing
acutely.” Plaintiff’s Ex. 1 at 2. Dr. Wilger noted that Spaulding had
“tenderness to palpation along the lateral aspect of the [left] shoulder” and
“limited external rotation and very limited adduction” in the left shoulder. Id.
at 1. Dr. Wilger gave Spaulding range of motion exercises to do at home and
prescribed Vicodin for pain. Dr. Wilger instructed Spaulding to follow up with
his family doctor in three to five days.
[4] A few days later, on June 12, Spaulding saw his family doctor, Dr. Naren Patel.
Dr. Patel examined Spaulding and noted that, while he had full range of motion
in his left shoulder, “he was having pain doing the shoulder movements” during
the examination. Plaintiff’s Ex. 32 at 10. Dr. Patel also noted that Spaulding
had tenderness of the left trapezius muscle and in the left shoulder area. Dr.
Patel injected cortisone into Spaulding’s left shoulder area, prescribed Percocet
and a muscle relaxer, and ordered physical therapy.
[5] Spaulding attended eleven physical therapy appointments between June 14 and
July 23, and he followed up with Dr. Patel on June 26 and July 11. During the
July 11 visit, Dr. Patel suspected that Spaulding had sustained a rotator cuff
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injury, and he referred Spaulding to Dr. John Pritchard, an orthopedic surgeon.
Spaulding made an appointment to see Dr. Pritchard on August 3.
[6] In the meantime, on his way to a physical therapy appointment on July 27,
Spaulding was in another car accident. The brakes on Spaulding’s truck were
not working properly, and he rear-ended a stopped vehicle. Spaulding was
traveling approximately five or ten miles per hour at the time of the collision.
He did not sustain any injury, and he did not seek medical treatment.
[7] When Spaulding returned to physical therapy on July 31, he reported that he
did not have “any pain” at that time and that he was “doing better.” Plaintiff’s
Ex. 4 at 1. And during physical therapy on August 2, Spaulding reported that
he did not have “any pain” at that time and that he “th[ought] things [were]
working because he [was] having less pain overall with all activity, including
reaching behind his back.” Plaintiff’s Ex. 5 at 1.
[8] On August 3, Spaulding saw Dr. Pritchard. Spaulding described the June 8
accident and stated that, since that accident, he had “experienced frequent left
arm pain” but had improved with physical therapy. Plaintiff’s Ex. 6 at 1.
Spaulding described his pain as intermittent and said it was a six on a scale of
one to ten. Spaulding did not tell Dr. Pritchard that he had been in another car
accident on July 27. Dr. Pritchard suspected “some degree of rotator cuff
pathology” and injected Spaulding’s left shoulder with cortisone. Id. at 2. Dr.
Pritchard instructed Spaulding to continue with physical therapy and to follow
up with him in six weeks.
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[9] On September 5, Spaulding returned to see Dr. Pritchard and reported
“increased weakness and more discomfort” in his left shoulder. Plaintiff’s Ex.
35 at 9. Accordingly, Dr. Pritchard ordered an MRI of Spaulding’s left
shoulder which revealed a “significant rotator cuff tear,” a possible biceps
tendon tear, and “moderate acromioclavicular joint arthrosis.” Id. at 10. Dr.
Pritchard surgically repaired the rotator cuff and biceps tendon injury on
September 27.
[10] On November 21, 2013, Spaulding filed a complaint against Cook alleging that
Cook’s negligence caused his injuries. Cook filed an answer. On July 14, 2014,
Spaulding filed an amended complaint and alleged that Cook had caused him
to suffer “permanent injury to his left shoulder and left bicep area that required
surgical intervention.” Appellant’s App. Vol. 3 at 14. Prior to trial, the parties
stipulated that Cook was “100% at fault[.]” Id. at 19. But Cook denied
responsibility for any damages allegedly incurred by Spaulding.
[11] At a jury trial on damages, Spaulding testified, and he presented the deposition
testimony of his physicians, Dr. Patel and Dr. Pritchard. Dr. Patel testified that
Spaulding’s left shoulder injuries were caused by the June 8 accident. On cross-
examination, Cook asked Dr. Patel about a history of injuries to Spaulding’s
right shoulder, which had led to surgery for a significant rotator cuff injury in
that shoulder.
[12] In his deposition testimony, Dr. Pritchard testified in relevant part as follows:
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Q: All right. Now, Dr. Pritchard, while we’re on this list here of
the procedures that you performed back on September 27th,
which of these surgical procedures, in your opinion, were related
to or caused by the trauma of the motor vehicle accident?
A: Well, of these procedures, the actual acromioclavicular
[(“AC”)] joint arthritis, which means a hypertrophy of the joint,
that we saw on X-ray, those findings were probably pre-existing
the injury. I mean, it’s almost a form of arthritis. So, it certainly
didn’t occur just in a couple months. Unfortunately, any trauma
or injury to the shoulder can exacerbate it, so although the actual
arthritis of the AC joint was pre-existing, you know, its
subsequent removal still, I feel, has bearing on the injury, as does
the rotator cuff and as does the biceps tendon, both which more
than likely occurred at the time of injury.
Q: All right. Can a patient, particularly one who’s, first of all, is
it unusual for a seventy-six year old patient to have some degree
of arthritis in an AC joint? Is that an unusual finding?
A: Not particularly.
Q: Okay. Can a patient have arthritis that shows up on an X-ray
if you take an X-ray or an imaging study of the AC joint? Can a
person have arthritis that shows up on an X-ray and be
asymptomatic?
A: Absolutely.
Q: Okay. And “asymptomatic” means that they don’t have
any—
A: No pain.
Q: — stiffness or pain or whatever?
A: Correct.
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Q: All right. And can trauma like the trauma that this
gentleman had in this motor vehicle accident, can that cause
arthritis in the AC joint to become symptomatic and painful?
A: Yes, it can.
Q: All right. And in your opinion, is that what happened in this
case?
A: From the best of my records, again, this is the first time that
I’m aware that he complained of pain of the shoulder subsequent
to the accident. I had treated him for other things, but, again, to
the best of my recollection, he had never had problems with the
left shoulder before he had the accident. He tried various
therapies, medications, and I would say that it is a result of the
accident.
***
Q: . . . Do you believe that his trip to the emergency room the
day after this collision, that that trip to the emergency room was
necessitated by the trauma of the motor vehicle accident?
A: I do.
Q: Okay. And how about the visits to Dr. Patel after he went to
the emergency room, leading up to the referral to you
complaining of left shoulder pain? Do you believe those visits to
his family physician were necessitated by the trauma of the
wreck?
***
A: It seems to me that after, you know, a patient of this age was
injured in a situation that he went to the emergency room,
followed up with his family physician, you know, had some
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treatment and then ultimately sent to me is consistent with him
having had the injury.
Q: All right. And how about the same question. Dr. Pritchard,
with regard to the physical therapy that he had at ONE prior to
the time that you saw him? Do you believe that therapy was
necessitated by the trauma of the collision?
A: Yes, I would say so.
Q: All right. And how about your charges for office visits and
also the surgery that he had on September 27th? Do you believe
those charges were related to the trauma of the motor vehicle
collision?
***
A: Yes, I would say they are.
Q: All right. And how about the physical therapy treatments,
Dr. Pritchard, that you ordered after Mr. Spaulding underwent
surgery on September 27th? Do you believe those physical
therapy charges are necessitated by the trauma of the motor
vehicle collision?
A: Yes, I do.
Q: How about the MRI that he underwent on September 5,
2012? Do you believe that was necessitated by the trauma of the
motor vehicle collision?
A: Yes, I do.
Plaintiff’s Ex. 35 at 15-27. On cross-examination, Cook asked Dr. Pritchard
whether he had reviewed Dr. Patel’s office notes, and Dr. Pritchard stated that
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he had not done so. Cook confirmed that Spaulding had told Dr. Pritchard that
he had been in a t-bone type accident at a speed of approximately twenty-five to
thirty miles per hour and had not hit anything inside of his car. Cook
confirmed that Spaulding had not informed Dr. Pritchard about Spaulding’s
July 27 accident during the August 3 office visit. Cook also asked Dr. Pritchard
to describe Spaulding’s history of rotator cuff injury in his right shoulder.
[13] In addition, this colloquy ensued:
Q: . . . So, I understand the idea clearly of someone having
conditions that may or may not have symptoms associated with
them and you’ve been asked, I know, about the symptoms
associated with the conditions that led to the surgery, but,
just so I’m clear, of any of the conditions that are being identified
on MRI or in the surgery, which of those do you believe were
actually caused by a trauma from a car accident versus they
already existed and were just made symptomatic by it?
A: Well, the acromioclavicular joint arthrosis, by definition, is
the description of the clavicle. It’s not, it doesn’t say it’s painful.
It doesn’t say it’s not painful, so I think that clearly pre-dated the
accident. In terms of acute, you know, tendon type issues, the
biceps tendon and the rotator cuff I feel were the specific acute
issues associated with the accident.
Q: Okay. So you believe the rotator cuff was torn in the
accident?
A: To the best of my knowledge, yes.
Q: And you believe the biceps tendon was torn in the accident?
A: Yes.
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Q: In part, based upon the history that’s provided to you?
A: Correct.
Q: Okay. Is there anything specific about the MRI or in your
surgical findings that would allow you to date the onset or
occurrence of those conditions themselves?
A: No.
Q: All right. Is there some way you can describe for the jury
what the mechanics are that causes a rotator cuff to tear in the
way of this one?
A: Well, actually, a rotator cuff can tear in a number of different
ways. A vigorous eccentric contraction, you know, if someone is
holding on very firmly, even to a steering wheel, and doesn’t
strike any particular object externally, with tensing of the
muscles, that could potentially cause a rotator cuff to tear.
Falling down a stairs, grabbing something can cause a rotator
cuff to tear. So, anything that is more load than the rotator cuff
can tolerate can cause a tear.
Q: Okay. So, obviously, one of those examples involved being
inside of a car, so that’s naturally of more interest to me than the
others. So, what is it again, and I’m just trying to, I guess, push
you a little further with the mechanics of it. Grabbing the
steering wheel, you’re saying you don’t have to hit anything
inside the car. Is it —
A: Yes, tensing, a vigorous, you know, acute muscle
contraction, which, you know, certainly could occur by holding
on to a steering wheel, you know, could cause a muscle to see
more load than it can accept and cause a tear.
Q: Okay. So the biceps tear, the cuff tear, based on the history,
you believe were caused by the accident?
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A: Correct.
Q: Everything else you believe pre-existed it and either did or
didn’t produce symptoms that he didn’t have before?
A: Much like someone falling on an arthritic knee joint. You
know, when you bang up a, you know, any joint with X-ray
evidence of arthritis, oftentimes it will become more symptomatic
for a period of time.
Id. at 42-45.
[14] At the conclusion of the trial, the jury awarded Spaulding no damages.
Spaulding filed a motion to correct error under Trial Rule 59(A)(2) and stated
in part as follows:
1. That the jury’s verdict of “zero” dollars and “zero” cents is to
[sic] contrary to the evidence, clearly erroneous, and contrary to
Indiana law in that:
a. The evidence is uncontroverted that Plaintiff sustained a left
shoulder “strain” injury and left trapezius “strain” injury as a
result of the June 8, 2012[,] motor vehicle collision;
b. The evidence is uncontroverted that Plaintiff experienced pain
and was prescribed narcotic pain medication (Percocet) and
received a cortisone injection into his left shoulder to treat his
inflammation/pain on June 12, 2012, just 4 days after the subject
motor vehicle collision.
c. The evidence is uncontroverted that between June 9, 2012[,]
and July 23, 2012[,] Plaintiff incurred expenses for medical and
therapy services (Lutheran Hospital, Emergency Medicine of
Indiana, Summit Radiology, Dr. Patel and Orthopaedics
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Northeast) totaling $4,818.50 (after Medicare write-offs/write-
downs the accepted amount was $2,650.52).
d. The evidence is uncontroverted that the medical care and
services Plaintiff received from Lutheran Hospital, Emergency
Medicine of Indiana, Summit Radiology, Dr. Patel and
Orthopaedics Northeast between June 9, 2012 and July 23,
2012[,] was treatment necessitated by the trauma of the June 8,
2012[,] motor vehicle collision.
e. The evidence is uncontroverted that the Plaintiff had no
history of any preexisting left shoulder injury or left shoulder
pain/symptoms prior to the subject June 8, 2012[,] motor vehicle
collision.
f. No medical evidence was presented at trial to rebut the
testimony of Dr. Naren Patel that the Plaintiff’s left shoulder
“strain” and left trapezius “strain” injuries he diagnosed on June
12, 2012[,] (just 4 day[s] post-collision) were caused by the
trauma of the June 8, 2012[,] motor vehicle collision;
g. The Defendant presented no evidence other than the
testimony of Joseph Cook.
h. In order for the jury to have reached the result that Plaintiff is
entitled to “zero” dollars and “zero” cents, the jury would have
had to disregard, entirely, the opinion of Dr. Naren Patel that
Plaintiff’s left shoulder “strain” and left trapezius “strain” injuries
he diagnosed on June 12, 2012[,] (just 4 day[s] post-collision)
were caused by the trauma of the June 8, 2012[,] motor vehicle
collision;
i. In order for the jury to have reached the result that Plaintiff is
entitled to “zero” dollars and “zero” cents, the jury would have
had to disregard, entirely, the Lutheran Hospital emergency
room record [Exh. 1 in the parties “Joint Exhibit Book”]
authored by Dr. Mary Wilger, diagnosing Plaintiff as having an
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“injury of left upper arm” just one day after the June 8, 2012[,]
motor vehicle collision.
j. There was no cross examination or impeachment of Dr. Naren
Patel’s testimony undermining his opinion that Plaintiff’s left
shoulder “strain” and left trapezius “strain” injuries he diagnosed
on June 12, 2012[,] (just 4 day[s] post-collision) were caused by
the trauma of the June 8, 2012[,] motor vehicle collision;
k. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or decision that Plaintiff did not sustain a
left shoulder “strain” or a left trapezius “strain” injury or any
other type of injury as a result of the June 8, 2012[,] motor
vehicle collision. The jury’s decision or determination that
Plaintiff did not sustain any injury whatsoever in the June 8,
2012[,] motor vehicle collision is contrary to the evidence, clearly
erroneous, and contrary to law.
l. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or a decision that Plaintiff did not
experience any physical pain whatsoever as a result of the
injuries he sustained in the June 8, 2012[,] motor vehicle
collision. The jury’s decision or determination that Plaintiff did
not experience any physical pain whatsoever as a result of the
June 8, 2012[,] motor vehicle collision is contrary to the
evidence, clearly erroneous, and contrary to law.
m. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or a decision that the medical care and
services Plaintiff received from Lutheran Hospital, Emergency
Medicine of Indiana, Summit Radiology, Dr. Patel and
Orthopaedics Northeast between June 9, 2012[,] and July 23,
2012[,] is completely and totally unrelated to the June 8, 2012[,]
motor vehicle collision. That determination or decision by the
jury is contrary to the evidence, clearly erroneous, and contrary
to law.
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Id. at 24-27.
[15] The trial court denied that motion following a hearing. In its order, the trial
court stated in relevant part as follows:
At trial Cook presented evidence that cast doubt upon the
asserted severity of the impact, and that tended to undermine
Spaulding’s claim as to the speed of the accident. Testimony was
further given which showed that Spaulding did not immediately
report his injuries after the accident and did not immediately seek
medical care. These facts may have undermined Spaulding’s
credibility with the Jury. Additionally, the treating surgeon
testified in deposition that he was not aware that Spaulding had
been in an additional accident prior to Spaulding’s appointment,
a fact relevant to diagnosis. This fact had the potential to affect
the Jury’s assessment of Spaulding’s claims, as well as the Jury’s
appraisal of the validity of the expert’s opinions.
The evidence presented at trial also established that the MRI
revealed not only a torn rotator cuff, but also “moderate
acromioclavicular osteoarthrosis with ganglion cyst formation.”
The treating surgeon indicated that the clavicle was “markedly
arthritic,” and stated in his deposition, that in addition to the
rotator cuff repair, he removed about 7 to 8 millimeters of bone
to correct the arthrosis related problems. The surgeon stated that
the arthritic changes, including the ganglion cyst developed prior
to the accident, and that the ganglion cyst in particular was a sign
of a “more chronic, degenerative process.” Given this evidence,
the Jury could have concluded that Spaulding’s issues were
attributable to chronic, degenerative processes, and not due to the
accident. Finally, as definitive diagnosis of the muscle tear did
not occur until after the second accident had already occurred,
the Jury could have concluded that Spaulding had not proven,
more likely than not, that these injuries occurred in the first
Accident.
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CONCLUSION
The Court concludes that the Jury’s verdict of zero dollars was
within the bounds of the evidence, and that there is no “clear
indicat[ion] that the jury was motivated by prejudice, passion,
partiality, corruption or that it considered an improper element.”
The Court, therefore, DENIES Plaintiff Joseph Spaulding’s
Motion to Correct Error.
Appellant’s App. Vol. 2 at 18-19. This appeal ensued.
Discussion and Decision
[16] Spaulding appeals from the trial court’s denial of his motion to correct error.
We review the grant or denial of a Trial Rule 59 motion to correct error under
an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885
N.E.2d 1265, 1270 (Ind. 2008). On appeal, we will not find an abuse of
discretion unless the trial court’s decision is clearly against the logic and effect
of the facts and circumstances before it or is contrary to law. Miller v. Moore,
696 N.E.2d 888, 889 (Ind. Ct. App. 1998).
[17] Spaulding claims that the jury verdict is inadequate as a matter of law because
the zero damages award is contrary to the evidence. As this court has observed,
[a] jury determination of damages is entitled to great deference
when challenged on appeal. Sears Roebuck and Co. v. Manuilov,
742 N.E.2d 453, 462 (Ind. 2001). The applicable standard of
review has been summarized as follows:
Damages are particularly a jury determination.
Appellate courts will not substitute their idea of a
proper damage award for that of the jury. Instead,
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the court will look only to the evidence and
inferences therefrom which support the jury’s verdict.
We will not deem a verdict to be the result of
improper considerations unless it cannot be explained
on any other reasonable ground. Thus, if there is any
evidence in the record which supports the amount of the
award, even if it is variable or conflicting, the award will
not be disturbed.
Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App.
1994) (internal citations omitted)[, trans. denied]). In addition,
[our] Supreme Court has noted the following:
Our inability to actually look into the minds of the
jurors is, to a large extent, the reason behind the rule
that we will not reverse if the award falls within the
bounds of the evidence. We cannot invade the
province of the jury to decide the facts and cannot
reverse unless the verdict is clearly erroneous.
Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711,
713 (1971)).
Flores v. Gutierrez, 951 N.E.2d 632, 636 (Ind. Ct. App. 2011) (emphasis added),
trans. denied.
[18] Still, it is well settled that “Indiana subscribes to the general principle of tort law
that all damages directly attributable to the wrong done are recoverable.”
Russell v. Neumann-Steadman, 759 N.E.2d 234, 237 (Ind. Ct. App. 2001). A
plaintiff has the burden to prove by a preponderance of the evidence that the
medical expenses that he incurred were a proximate result of the defendant’s
negligence. See Matovich v. Rodgers, 784 N.E.2d 954, 958 (Ind. Ct. App. 2003).
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Once that burden is met, “the law allows an injured plaintiff to recover the
reasonable cost of necessary medical expenses.” Russell, 759 N.E.2d at 237.
The jury is not bound to award a plaintiff the exact amount of his medical
expenses, but it may determine what amount is reasonable in light of the
evidence.1 See Dee v. Becker, 636 N.E.2d 176, 181 (Ind. Ct. App. 1994).
[19] Here, Spaulding contends that there is no evidence to support the jury’s verdict.
In particular, Spaulding points out that both Dr. Patel and Dr. Pritchard
testified that his left shoulder injuries were caused by the June 8 accident. And
Spaulding asserts that, because “[c]ausation is a complicated medical question
that requires the testimony of expert medical witnesses[,]” and Cook did not
present contrary medical witness testimony, the jury was required to believe Dr.
Patel and Dr. Pritchard and award damages for Spaulding’s injuries. Reply Br.
at 5. We cannot agree.
[20] In Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. 2004), our Supreme Court stated,
[d]octors and other expert witnesses are not oracles whose
opinions, once stated, cannot be questioned or refuted by other
evidence, even if that evidence does not come in the form of
another expert’s testimony. It is clear, for example, that a jury
may reject unanimous medical expert testimony that a criminal
defendant was legally insane at the time he or she committed a
crime where there is evidence that tends to undermine such testimony.
1
The actual amount charged to the plaintiff or the amount actually paid by him may tend to prove the
reasonable and fair value of the services rendered to him but are not conclusive on the issue. Chemco Transp.,
Inc. v. Conn, 506 N.E.2d 1111, 1115 (Ind. Ct. App. 1987) (quoting Herrick v. Sayler, 160 F. Supp. 25, 29 (N.D.
Ind. 1958)), rev’d on other grounds, 527 N.E.2d 179 (Ind. 1988).
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See Cate v. State, 644 N.E.2d 546, 547-48 (Ind. 1994) (holding jury
was free to reject unanimous opinion of five psychiatrists that
defendant was legally insane where psychiatrists’ assertions were
not uncontroverted by other evidence). The law in Indiana is
that “[e]xpert opinion regarding causation may be admissible and
yet in conjunction with other evidence may be either sufficient or
insufficient to support a verdict.” Strong v. State, 538 N.E.2d 924,
930 (Ind. 1989). “[A]s is virtually the unanimous rule in this
nation’s jurisdictions, the jury is free either to accept or reject the
opinion of the expert witness; the finder of fact may supplant its
own conclusion for that of the expert.” Id. at 931 (quoting
Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722, 729
(Ind. 1982)). This rule would seem to have little meaning if . . . a
defendant cannot challenge or cast doubt upon the opinion of a
plaintiff’s expert that the plaintiff was injured by the defendant
with evidence that the plaintiff suffers from a pain-producing disease or
mechanism, unrelated to the defendant’s negligence, in the precise area of
the body where the plaintiff claims to suffer ongoing pain.
(Emphases added). And in Flores, this court stated as follows:
It is true that “[t]he testimony of a trained physician who has
examined and treated a patient concerning matters purely within
the medical realm cannot be controverted by lay opinion or by
judicial speculation or inference.” Beaman v. Hedrick, 146 Ind.
App. 404, 407, 255 N.E.2d 828, 830 (1970) (reversing trial court
determination of paternity when expert medical witness’s
testimony was that paternity was improbable but not impossible).
“However, on medical matters which are within the common
experience, observation, or knowledge of laymen, no expert testimony is
required to permit a conclusion on causation.” Willis v. Westerfield,
839 N.E.2d 1179, 1188 (Ind. 2006) (internal quotation omitted).
951 N.E.2d at 636-37 (emphasis added).
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[21] Thus, here, we must determine whether there is any evidence to undermine the
medical expert testimony that Cook proximately caused Spaulding’s injuries.
And we must determine whether the proximate cause of Spaulding’s injuries
concerns “matters purely within the medical realm” or whether it is “within the
common experience, observation, or knowledge of laymen.” Id.
[22] We agree with Cook that our opinion in Flores is on all fours with the instant
case. In Flores, the plaintiff alleged that he had neck and back pain caused by
the defendant’s negligence in rear-ending his vehicle in 2007. But the plaintiff
had a history of pre-existing conditions preceding the accident with the
defendant, and the plaintiff’s credibility was called into doubt. In particular:
Flores had multiple back problems, including a history of back
and neck pain, much of it pre-existing what was from all
appearances a relatively minor accident. An MRI report
specifically attributed his muscle spasm condition to these pre-
existing conditions, not to the accident as Dr. Jones did. Flores
did not seek medical attention for his injury from his diagnosing
physician during an almost two-year gap between his initial visits
and the instant diagnosis. In addition, he sustained a fall during
this time period which he did not divulge to Dr. Jones and which
Dr. Jones did not consider when reaching his diagnosis. As Dr.
Jones testified, such a fall would have been relevant to the
diagnosis.
Flores, 951 N.E.2d at 637. The jury awarded Flores zero damages, and we held
that, “[t]he simple facts that Flores had multiple pre-existing back problems
with multiple causes and that Dr. Jones’s diagnosis was attributable to an
incomplete record and a patient with credibility problems places it outside the
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‘purely medical realm’ requiring expert testimony to controvert it.” Id. Thus,
we affirmed the jury’s verdict.
[23] Here, the undisputed evidence shows that, at the time of the June 8 accident,
Spaulding had pre-existing conditions in his left shoulder, namely, arthritis and
a ganglion cyst. Dr. Pritchard explained that the MRI of Spaulding’s left
shoulder showed moderate and chronic degenerative arthritis and a ganglion
cyst that pre-dated the June 8 accident, and he testified that a cyst is the result
of “two rough surfaces” rubbing together “[a]s an irritation” and producing
fluid. Plaintiff’s Ex. 35 at 39. In addition, Spaulding did not seek medical
attention until the day after the accident, which was, according to Cook’s
testimony, not “very serious[.]” Plaintiff’s Ex. 31 at 30. Indeed, there was no
damage to Cook’s van other than the rusted-out bumper coming loose, and the
damage to Spaulding’s car was minor. Moreover, Spaulding was not forthright
with Dr. Pritchard in that, during his initial appointment with Dr. Pritchard on
August 3, 2012, Spaulding told him about the June 8 accident but did not tell
him about the July 27 accident. And Dr. Pritchard testified that his opinion on
causation was “based upon the history that[ was] provided” to him. Plaintiff’s
Ex. 35 at 43.
[24] We also note that Spaulding testified that he had been involved in
approximately three other vehicular accidents prior to the June 8, 2012,
accident with Cook. On one occasion, Spaulding was driving on I-69 when a
tire blew out on his vehicle, which “tore up the fender and the door” of his car.
Defendant’s Ex. F at 29. That evidence of prior accidents, combined with Dr.
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Pritchard’s testimony that a rotator cuff tear can occur just by “holding on very
firmly” to a steering wheel, could have led the jury to reasonably infer that
Spaulding had injured his left shoulder prior to the June 8 accident. Plaintiff’s
Ex. 35 at 43.
[25] Finally, Dr. Pritchard testified that, “to the best of [his] knowledge,”
Spaulding’s rotator cuff tear “more than likely occurred” as a result of the June
8 accident. Id. at 15, 42-43. But Dr. Pritchard could not establish the date of
onset of Spaulding’s injuries by diagnostic tests or during surgery. The jury was
entitled to weigh the evidence and determine the credibility of Dr. Pritchard’s
opinion “based on the evidence presented and the degree of certitude with
which the opinion [was] cast.” Glenn v. Bd. of Comm’rs, Harrison Cty., Ind., 552
N.E.2d 485, 487 (Ind. Ct. App. 1990). Because the nature of Spaulding’s
injuries was mostly subjective and Dr. Pritchard could not state with absolute
certainty that the accident had caused them, the jury, in its discretion, could
have disregarded Dr. Pritchard’s conclusions on causation.
[26] We hold that, in light of Spaulding’s pre-existing conditions in his left shoulder,
his failure to inform Dr. Pritchard of the July 27 accident during the
consultation one week after that accident, the degree of certitude underlying Dr.
Pritchard’s opinion, and the relatively minor impact in the June 8 accident, the
issue of causation is “outside the ‘purely medical realm’ requiring expert
testimony to controvert it.” Flores, 951 N.E.2d at 637; see also Conklin v.
Demastus, 574 N.E.2d 935, 940 (Ind. Ct. App. 1991) (affirming jury verdict for
defendant, despite his concession of negligence, in light of plaintiff’s medical
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history, plaintiff’s credibility issues, minor damage to cars, and no injuries
reported at the scene). Thus, the jury’s determination that Spaulding was
entitled to zero damages arising out of his accident with Cook is not outside the
bounds of the evidence. Id. The trial court did not abuse its discretion when it
denied Spaulding’s motion to correct error.
[27] Affirmed.
Mathias, J., and Barnes, J., concur.
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