ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
RANDALL R. SHOUSE RAYMOND L. FAUST
SHOUSE & LANGLOIS LEGAL SERVICES NORRIS, CHOPLIN & SCHROEDER
Indianapolis, Indiana Indianapolis, Indiana
CLYDE ROBERSON, ) ) Appellant-Plaintiff, ) ) vs. ) No. 49A05-9707-CV-272 ) BONNIE M. HICKS, THE INDIANA ) ASSOCIATION OF SEVENTH-DAY ) ADVENTISTS, INC. and INDIANAPOLIS ) JUNIOR ACADEMY OF SEVENTH-DAY ) ADVENTISTS, ) ) Appellee-Defendant. )
RATLIFF, Senior Judge
testified multiple sclerosis is rarely, if ever, caused by trauma, and specifically, that the
accident in issue did not cause Roberson's multiple sclerosis. Roberson did not offer any
medical evidence in opposition, and the trial court granted the Defendants' motion.
The case was tried to a jury. The deposition testimony of Roberson's family physician, L.T. Gates, M.D., was read into evidence. Dr. Gates was unable to say to a reasonable degree of medical certainty that Roberson's pain was caused by the accident, but did testify that the pain Roberson experienced following the accident was consistent with either the early symptoms of multiple sclerosis or injuries resulting from a motor vehicle accident. R. 20-21. Roberson testified that approximately five days after the accident, he began to experience pain in his legs and back, which pain was different from the pain he now experiences as a result of the multiple sclerosis. R. 44-45, 92-94. At the conclusion of Roberson's case-in-chief, Defendants moved for a judgment on the evidence, arguing that Roberson had failed to prove that his injuries were caused by the accident and not his multiple sclerosis. The trial court granted the motion.
916, 918 (Ind. 1993). When the defendant moves for judgment on the evidence at the close
of the plaintiff's case in a jury trial, the motion should be granted only where an issue in the
case or an essential element of the claim is not supported by sufficient evidence. See Ind.
Trial Rule 50(A); Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994). In other words,
the court should withdraw the case from the jury only if there is a complete failure of proof
on at least one essential element of the plaintiff's case. Johnson v. Naugle, 557 N.E.2d 1339,
1342 (Ind. Ct. App. 1990). If there is any probative evidence or reasonable inference to be
drawn therefrom or if there is evidence which would allow reasonable people to differ as to
the result, judgment on the evidence is improper. Van Bree v. Harrison County, 584 N.E.2d
1114, 1116 (Ind. Ct. App. 1992).
An essential element in a cause of action for negligence is the requirement of a reasonable connection between a defendant's conduct and the damages which the plaintiff has suffered. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 635 (Ind. 1991). This element requires, at a minimum, causation in fact--that is, that the harm would not have occurred "but for" the defendant's conduct. Id. The plaintiff's burden may not be carried with evidence based merely upon supposition or speculation. Palace Bar, Inc. v. Fearnot, 269 Ind. 405, 409, 381 N.E.2d 858, 861 (1978).
When an injury is objective in nature, 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. Antcliff v. Datzman, 436 N.E.2d 114, 121 (Ind. Ct. App. 1982). Ordinarily, however, the question of the causal connection between a permanent condition,
an injury and a pre-existing condition is a complicated medical question. Noblesville Casting
Div. of TRW, Inc. v. Prince, 438 N.E.2d 722, 732 (Ind. 1982). When the issue of cause is
not within the understanding of a lay person, expert witness testimony on the issue is
necessary. Brown v. Terre Haute Regional Hosp., 537 N.E.2d 54, 61 (Ind. Ct. App. 1989).
Standing alone, an expert opinion which lacks reasonable probability is not sufficient to
support a verdict. Noblesville Casting Div., 438 N.E.2d at 731. However, "an expert's
opinion that something is 'possible' or 'could have been' may be sufficient to sustain a verdict
or award" when rendered in conjunction with other, probative evidence establishing the
material factual question to be proved. Id.
We have previously addressed the propriety of granting a judgment on the evidence in a case such as this. See Smith v. Beaty, 639 N.E.2d 1029 (Ind. Ct. App. 1994); Daub v. Daub, 629 N.E.2d 873 (Ind. Ct. App. 1994). In Smith, the plaintiff's van blew a tire and rolled twice before coming to rest upside down. While Smith was trapped in the van, which was partially obstructing the roadway, a semi-tractor trailer driven by the defendant collided with the van, causing it to spin and roll onto its side. At trial, Smith presented expert medical testimony by his treating physician. However, the doctor was unable to say to a reasonable degree of medical certainty whether the rolling of the van or the impact of the semi caused Smith's injuries. Smith testified that prior to the collision, he was able to call for help and to attempt to free himself from his seat belt, and that he felt severe pain only after the semi collided with his van. A motorist who stopped to assist Smith prior to the collision testified that Smith did not complain of pain until after the collision. The trial court granted the
defendant's motion for judgment on the evidence. We reversed, holding that "a lay person
would be competent to draw inferences from these facts and determine that [the defendant's]
conduct was a cause of Smith's injuries." 639 N.E.2d at 1034 (emphasis in original).
Although Smith's doctor was unable to say to a reasonable degree of medical certainty which
event caused Smith's injuries, the testimony of Smith, the doctor, and the passing motorist
together established a prima facie showing that Smith's injuries were caused by the collision.
Id. at 1034-35.
In contrast, in the case of Daub, the plaintiff slipped as she crossed her in-laws' patio but managed to grab a nearby fence to keep herself from falling to the ground. She felt no pain until late the next day, when her back began to stiffen after several hours of bending and straightening while photocopying a large amount of materials. She subsequently obtained chiropractic treatment, was hospitalized for several days, was placed in traction, underwent physical therapy, and had two surgeries on her back. She had significant pre-existing conditions and subsequent injuries. The only evidence offered at trial was the testimony of the plaintiff and the defendant. The trial court granted a judgment on the evidence in favor of the defendants. On appeal, we affirmed, holding that "in the absence of additional evidence, [the plaintiff's] lay report of the facts which she experienced first-hand amounts to nothing more than her own hypothesis that her back ailment was caused by the slip." 629 N.E.2d at 878.
Not surprisingly, Roberson contends that the facts of his case are more akin to that of Smith, while Defendants align the facts of this case more closely with Daub. We are inclined
to agree with Roberson. Here, as in Smith, although Dr. Gates was unable to say to a
reasonable degree of medical certainty that the accident caused Roberson's pain, Roberson
was able to testify that he felt pain only after the accident, and that it was a different kind of
pain from that which he now experiences as a result of his multiple sclerosis. Dr. Gates was
able to testify that the pain Roberson experienced after the accident was consistent with
injuries one could receive in a motor vehicle accident. Further, the medical testimony
designated by the Defendants, and uncontroverted by Roberson, was that trauma rarely, if
ever, triggers multiple sclerosis. It is therefore unlikely that the pain Roberson began to
experience just five days after the accident was an early stage of multiple sclerosis, if he had
never experienced that pain before. The defendant's act need not be the sole cause of the
plaintiff's injuries. Lucas v. Dorsey Corp., 609 N.E.2d 1191, 1199 (Ind. Ct. App. 1993). The
essential question is whether the defendant's wrongful act is one of the proximate causes
rather than a remote cause, and that is generally a question for the trier of fact. Id. From
Roberson's own testimony, the jury could have inferred causation.
We cannot say that there was a complete failure of proof on the causation element of Roberson's negligence claim. Therefore, we hold that Defendants' motion for judgment on the evidence was improperly granted by the trial court. The judgment of the trial court is reversed and we remand with instructions to grant a new trial.
RUCKER, J., and DARDEN, J., concur.
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