ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
ROBERT J. PALMER JEFFREY J. STESIAK
May, Oberfell & Lorber
DOUGLAS E. SAKAGUCHI
South Bend, Indiana Sweeney, Pfeifer, Morgan & Stesiak
South Bend, Indiana
COURT OF APPEALS OF INDIANA
HORST KARL, )
vs. ) No. 71A04-0004-CV-173
BRIDGETT STEIN, )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable Terry A. Crone, Judge
Cause No. 71C01-9808-CT-066
May 30, 2001
OPINION - FOR PUBLICATION
Appellant-defendant, Horst Karl, appeals the trial courts order setting aside a jury verdict
for the appellee-plaintiff, Bridgett Stein, and granting her a new trial to determine
the proper amount of damages.
Upon appeal, Karl presents three issues which we restate as follows:
Whether the trial court entered adequate findings under Ind.Trial Rule 59(J); and
Whether the trial court abused its discretion by granting Steins motion to correct
error and ordering a new trial upon the issue of damages.
On July 3, 1996, Karls vehicle rear-ended Bridgett Steins vehicle which was stopped
at an intersection for a traffic light. Immediately after the collision, Stein
was able to get out of the car and was transported to a
hospital emergency room. During her examination, Stein complained of pain in her
lower back, left shoulder, head, and neck. Based upon her complaints, x-rays
were taken of Steins cervical spine,
See footnote lumbar spineSee footnote and scapula.See footnote After reviewing
the films, the emergency room physician found that they were unremarkable for fracture
or dislocation. Plaintiffs Exhibit 1, Tab A at 6. Stein was
diagnosed with an [a]cute cervical lumbar strain, secondary to motor vehicle accident,See footnote given
pain medication and released. Plaintiffs Exhibit 1, Tab A at 6.
Stein was also instructed to follow up with Dr. Cardenas, her family physician,
as needed. Stein incurred expenses in the amount of $672.25 for the
services provided at the emergency room and $132.87 for radiology fees, for a
total of $805.12.
On July 5, 1996, Stein visited Dr. Brian Jacobs who was temporarily seeing
Dr. Cardenass patients. Dr. Jacobs notes reveal that during her visit Stein
complained of neck pain and tingling in both hands. Plaintiffs Exhibit 1,
Tab B. At trial, however, Stein testified that her entire back .
. . from the lower back all the way up to [her] neck,
her leg, and knee were sore. Record at 157. During Dr.
Jacobs examination of Stein, he noted tingling in Steins hands, but found Steins
upper extremity strength, shoulder motion, neck range of motion, [and] tenderness all within
normal limits. Plaintiffs Exhibit 1, Tab B. Dr. Jacobs concluded
that Stein had a cervical strain and recommended that Stein undergo physical therapy.
On July 15, 1996, Stein visited Dr. Cardenas for a follow-up appointment.
According to Dr. Cardenass notes, Stein was still experiencing pain in her neck
and back and numbness and tingling in her right arm and hand.
Stein continued physical therapy and had an MRI of her cervical spine taken.
Neither the emergency room physician nor Steins family physicians, who examined her
soon after the accident, recorded any complaints by Stein concerning knee pain.
In August 1996, Stein was referred to neurologist Dr. Kevin Kristl who checked
for possible nerve damage in her neck, arm, and left leg. Dr.
Kristl found no signs of nerve damage and noted that Steins MRI scan
of the lumbar spineSee footnote was negative. In his letter to Dr. Cardenas,
Dr. Kristl did note, however, that an EMG done in 1990 . .
. show[ed] bilateral carpal tunnel syndrome. Plaintiffs Exhibit 1, Tab B.
Stein admitted this diagnosis at trial and further admitted that she had surgery
to alleviate numbness and tingling in her hands. Stein also admitted that
approximately six months after the surgery the numbness and tingling returned and bothered
[her] off and on and that in 1995 she was diagnosed with recurrent
carpal tunnel syndrome. Record at 181-82.
On November 5, 1996, Stein saw an orthopedic surgeon, Dr. Bankoff, for knee
pain. Because Stein continued to experience pain in her knee, Dr. Bankoff
decided to perform surgery on Steins knee on July 16, 1997. Dr.
Bankoff found a tear on the lateral cartilage, which he repaired. At
trial, Stein denied having fallen on her knee or experiencing any other trauma
to her knee. Stein admitted, however, that in October 1996 when she
was descending the stairs outside her house, her knee gave out, causing her
to fall. Stein stressed that she did not fall on her knee
and further stressed that she was not climbing the stairs, contrary to her
deposition testimony. When asked to explain her prior deposition testimony wherein she
stated that she fell while ascending the stairs, she simply explained that her
deposition testimony was wrong.
On December 16, 1997, nearly eighteen months after the accident, Stein again saw
Dr. Cardenas for pain she was experiencing in her neck. In her
notes, Dr. Cardenas indicated that Stein had experienced some bulging of a disk
in her neck several years ago and that it was possible it is
getting worse now after the accident. Plaintiffs Exhibit 1, Tab B.
On May 15, 1997, Stein filed a lawsuit against Karl, alleging that Karls
negligent operation of his vehicle was the proximate cause of her injuries.
Stein sought damages for hospital, doctor and medical expenses totaling $12,975.87, lost wages
totaling approximately $2,900.00See footnote and an undetermined amount for pain and suffering. In
his answer to the complaint, Karl claimed that immediately before the accident, he
was faced with a sudden emergency when his brakes failed and, therefore, was
not responsible for Steins injuries.
During a jury trial on October 18, 1999, Karl presented his sudden emergency
defense and also attempted to show that the medical problems Stein complained of
after the accident were not the result of the collision. In particular,
Karl presented evidence that one week before the accident Stein had visited Dr.
Cardenas for pain she was experiencing in her shoulder, chest, ribs and back.
Karl also attempted to show that the injury to Steins knee was
caused by a fall subsequent to the accident and that the pain and
numbness in her hands and arms were attributable to carpal tunnel syndrome.
Ultimately, Stein conceded that Karl was not in any way responsible for any
carpal tunnel problems . . . . Record at 188. However,
Stein continued to allege that her remaining medical conditions were caused by the
At the close of the evidence, the jury was instructed that if it
found Karl negligent, it could award Stein only such damages as [would] fairly
and adequately compensate for such injury and damages as you find, from a
preponderance of the evidence, that have been sustained as a direct result of
the accident. Record at 78. The jury was also instructed that
it could not engage in speculation concerning the amount of damages but had
to ensure that the evidence provided a reasonably certain basis from which [it]
may find the plaintiffs actual loss. Record at 78. With regard
to pain and suffering, the jury was instructed to arrive at an amount
which [would] fairly compensate the plaintiff for the damages she had suffered.
Record at 80. The jury was further instructed that [t]here is no
exact standard for fixing the compensation to be awarded on account of such
elements of damages and that the award should be fair and just in
light of the evidence. Record at 80.
Sometime during deliberations, the jury sent the trial court a note, informing the
court that while all of the jurors agreed that Stein had not proven
her allegations, they were unable to enter a verdict in favor of Karl
because they did not believe his brakes were faulty. The court instructed
the jury to continue deliberating and to attempt to decide the case based
upon the instructions and evidence. Thereafter, the jury returned its verdict for
Stein in the amount of $500.00.
Believing the jury verdict to be inadequate, Stein filed a motion to correct
error, claiming that her damages greatly exceeded the $500.00 award. According to
Stein, [w]hile there was some dispute as to whether the knee surgery was
caused by the accident, it was undisputed that other injuries were in fact
caused from the accident. Record at 110. In the alternative, Stein
alleged that considering that the jury found neither partys case compelling, the jury
had arrived at a compromised verdict. Stein asked the court to enter
judgment on the evidence for the proper amount, to grant a new trial
or to grant a new trial subject to additur. Karl opposed Steins
motion, asserting that the verdict was reasonable because the evidence showed that the
accident did not cause most of Steins injuries.
Following a hearing, the trial court granted Steins motion to correct error under
T.R. 59(J) and ordered a new trial on the issue of damages only.
Karl responded by filing his own motion to correct error in which
he contended that if a new trial were granted, the jury should be
permitted to reconsider both liability and damages. That motion to correct error
was denied and Karl appeals.
Adequacy of the Trial Courts Findings under Ind.Trial Rule 59(J)(7)
First, Karl claims that the trial court did not enter adequate findings under
T.R. 59(J). That rule provides as follows:
(J) Relief granted on motion to correct error.
The court, if it determines that prejudicial or harmful error has been committed,
shall take such action as will cure the error, including without limitation the
following with respect to all or some of the parties and all or
some of the errors:
Grant a new trial;
Enter final judgment;
Alter, amend, modify or correct judgment;
Amend or correct the findings or judgment as provided in Rule 52(B);
In the case of excessive or inadequate damages, enter final judgment on the
evidence for the amount of the proper damages, grant a new trial, or
grant a new trial subject to additur or remittitur;
Grant any other appropriate relief, or make relief subject to condition; or
In reviewing the evidence, the court shall grant a new trial if it
determines that the verdict of a non-advisory jury is against the weight of
the evidence; and shall enter judgment, subject to the provisions herein, if the
court determines that the verdict of a non-advisory jury is clearly erroneous as
contrary to or not supported by the evidence, or if the court determines
that the findings and judgment upon issues tried without a jury or with
an advisory jury are against the weight of the evidence.
In its order correcting error the court shall direct final judgment to be
entered or shall correct the error without a new trial unless such relief
is shown to be impracticable or unfair to any of the parties or
is otherwise improper; and if a new trial is required it shall be
limited only to those parties and issues affected by the error unless such
relief is shown to be impracticable or unfair. If corrective relief is
granted, the court shall specify the general reasons therefore. When a new
trial is granted because the verdict, findings or judgment do not accord with
the evidence, the court shall make special findings of fact upon each material
issue or element of the claim or defense upon which a new trial
is granted. Such finding shall indicate whether the decision is against the
weight of the evidence or whether it is clearly erroneous as contrary to
or not supported by the evidence; if the decision is found to be
against the weight of the evidence, the findings shall relate the supporting and
opposing evidence to each issue upon which a new trial is granted; if
the decision is found to be clearly erroneous as contrary to or not
supported by the evidence, the findings shall show why judgment was not entered
upon the evidence. T.R. 59(J)(7) (emphasis supplied).
As the rule requires, a trial court must enter findings of fact if
the trial court determines that the jury verdict does not accord with the
evidence. Read v. Malone, 176 Ind.App. 497, 501, 376 N.E.2d 494, 497
(1978); Hunter v. Byrd, 602 N.E.2d 1052, 1054 (Ind. Ct. App. 1992), trans.
denied. The type of findings which must be made, however, depends upon
whether the court concludes that the verdict is against the weight of the
evidence or clearly erroneous. Malacina v. Malacina, 616 N.E.2d 1061, 1063 (Ind.
Ct. App. 1993). If the court determines the verdict is against the
weight of the evidence, the trial court must include the supporting and opposing
evidence on each issue upon which a new trial is granted. Read,
176 Ind.App. at 501-502, 376 N.E.2d at 497. If the court concludes
that the decision is clearly erroneous, the trial court should make evident why
judgment was not entered upon the evidence. Id. The purpose of
the requirements [of T.R. 59(J)(7)] is to provide the parties and the reviewing
court with the theory of the trial courts decision. Malacina, 616 N.E.2d
In this case, the trial court made the following findings:
Pursuant to Trial Rule 59(J)(7), the Court concludes that the jurys verdict for
the Plaintiff in the amount of $500.00 is against the weight of the
evidence on the issue of the Plaintiffs damages.
The Court hereby enters the following findings of fact:
1. The evidence was undisputed that the Stein vehicle was stopped awaiting the traffic
light to turn green from red.
2. Mr. Karls vehicle struck the rear of the Stein vehicle while the Stein
vehicle was stopped.
3. Mr. Karl claimed that his brakes failed and that the defense of sudden
emergency should absolve him of any responsibility for the accident with Ms. Stein.
4. It is obvious that the jury found that the defense of sudden emergency
did not apply to the case when they found for the Plaintiff and
against the Defendant.
Concerning the Plaintiffs damages, the following uncontradicted evidence was presented to the jury:
1. That Bridgett Stein complained of pain at the scene of the accident;
2. That Bridgett Stein was taken from the scene of the accident to South
Bend Memorial Hospital where she was treated for the injuries she sustained in
the accident with Mr. Karl.
3. That emergency room doctor diagnosed Ms. Steins injuries as an acute cervical strain,
secondary to motor vehicle accident.
4. That Ms. Stein incurred $672.25 for medical services provided at South Bend Memorial
As recited above, the nature and extent of the Plaintiffs injuries, at least
the initial treatment at the hospital following the accident were not in dispute.
Additionally, the medical bills incurred at South Bend Memorial Hospital in the
amount of $672.25 were not disputed by Mr. Karl. Thus, it is
clear that the jurys verdict in the amount of $500.00 is against the
weight of the evidence. Furthermore, since there was a finding for the
Plaintiff, the issue of liability has been determined and thus there is no
need to re-litigate that issue.
Accordingly, a new trial on damages is necessary. Pursuant to Trial Rule
59 the Court vacates the Judgment entered on October 19, 1999 pursuant to
Trial Rule 58 for the Plaintiff in the amount [of] $500.00, and orders
a new trial on the issue of the Plaintiffs damages only. Record
at 119-21 (emphasis supplied).
Karl acknowledges that the trial court obviously concluded that the evidence concerning Steins
emergency room injuries and expenses was undisputed. However, Karl challenges this conclusion,
asserting that there was evidence that not all of the expenses incurred at
the emergency room were necessarily attributable to the accident. Appellants Reply Brief
at 2. As such, Karl claims that both the evidence opposing and
supporting the jurys verdict should have been set forth by the trial court
in its findings.
We agree with Karls observation that, despite the trial courts stated rationale that
the jury verdict was against the weight of the evidence, it obviously concluded,
based upon its determination that Steins emergency room expenses were undisputed, that the
jury verdict was clearly erroneous. When it is apparent that a court
has concluded that a jury verdict is clearly erroneous, despite its stated rationale,
findings setting forth opposing and supporting evidence are not required. See Keith
v. Mendus, 661 N.E.2d 26, 31-32 (Ind. Ct. App. 1996) (concluding that the
trial courts statements that there was a complete lack of evidence and the
jurys verdict was not warranted by the evidence, revealed the courts belief that
the jury verdict was clearly erroneous rather than against the weight of the
evidence, and therefore, trial court was not required to set forth supporting and
opposing evidence), trans. denied.
Moreover, we disagree with Karls assertion that the findings are inadequate because in
his opinion there is evidence supporting the jurys verdict. Karl correctly notes
that a trial court which concludes a jury verdict is against the weight
of the evidence is required to set forth supporting and opposing evidence.
See Burell v. Riggs, 557 N.E.2d 698, 700 (Ind. Ct. App. 1990) (noting
that to the extent the trial court intended to set aside a jury
verdict because it was against the weight of the evidence, the trial court
was required to set forth both opposing and supporting evidence), trans. denied.
Such a requirement exists to allow the trial court, acting as a thirteenth
juror, to demonstrate why the conflicting evidence preponderates in favor of the losing
party. Dughaish ex Rel Dughaish v. Cobb, 729 N.E.2d 159, 169 (Ind.
Ct. App. 2000), trans. denied. In this case, however, it is clear
that the trial court set aside the jury verdict, not because the verdict
was against the weight of the evidence, but because the verdict was clearly
erroneous. Thus, we find Karls argument to be, in essence, a challenge
to the courts conclusion, not the adequacy of the findings. See Appellants
Reply Brief at 1 (If such evidence [supporting the jurys verdict] exists, the
trial courts finding that the medical bills incurred at Memorial Hospital were not
disputed is erroneous. . . .). Given the trial courts obvious conclusion
that the verdict was clearly erroneous, it was not required to set forth
supporting and opposing evidence.
Propriety of Granting a New Trial
Karl contends that the trial court erroneously concluded that Stein was entitled to
a new trial because the jury could have concluded that most of Steins
injuries, including some of the injuries resulting in emergency room treatment, were not
caused by the rear-end collision. In particular, Karl points out that the
jury was presented with evidence that Stein had complained of shoulder and back
pain just one week before the accident, had pre-existing problems with her neck
and tingling and numbness in her hands, and fell on her knee approximately
two months after the accident. Thus, Karl contends that the jury award
was reasonable and was based upon the evidence.
The trial courts decision to grant a new trial carries a strong presumption
Barnard v. Himes, 719 N.E.2d 862, 865 (Ind. Ct. App.
1999), trans. denied. In reviewing that decision, the appellate courts sole duty
is to examine the record to determine whether: (1) the trial court abused
its discretion; (2) a flagrant injustice occurred; or (3) the appellant has made
a strong case for relief from the trial courts order. Id.
An abuse of discretion will be found when the trial courts action is
against the logic and effect of facts and circumstances before it and the
inferences which may be drawn therefrom. Id.
In support of his contention that the trial court erred, Karl relies upon
this courts decision in Conklin v. Demastus, 574 N.E.2d 935 (Ind. Ct. App.
1991). There, the plaintiff brought a personal injury action against a driver
who rear-ended the plaintiffs vehicle at an intersection. The impact from the
collision caused the plaintiffs head and chest to hit the steering wheel and
his arm to hit the dashboard. Each car was damaged only slightly
and neither car was towed. While the plaintiff did not complain of
injuries at the scene of the accident, the following day the plaintiff visited
his doctor, complaining of numbness and pain in his right hand and arm
and pain in his chest. X-rays revealed that a pre-existing arthritic condition
in the plaintiffs arm and hand had become worse.
As the plaintiffs condition did not improve with physical therapy, he consulted an
orthopedic surgeon for his hand and arm injuries. The surgeon concluded that
the plaintiff was suffering from a sensory loss and paralysis of the radial
nerve in his right arm, and tests revealed that the plaintiff had an
acute lesion of the radial nerve. The plaintiff also developed a loss
of feeling in his hip and legs and weakness and spasms in the
muscles of his left leg.
Believing his medical problems had been caused by the rear-end collision, the plaintiff
filed a negligence action against the defendant. The defendant denied negligence on
his part and further claimed that the accident was not the proximate cause
of the plaintiffs injuries. At trial, the defendant presented evidence that the
plaintiff had a substantial medical history. The defendant also submitted evidence that
the plaintiff had injured his elbow and arm in accidents subsequent to the
In closing argument, defense counsel conceded liability on the part of the defendant
but adamantly argued that the defendant did not cause the plaintiffs injuries.
After the jury returned a verdict in favor of the defendant, the plaintiff
filed a motion to correct error and a motion for judgment on the
evidence to have the jury verdict set aside. The trial court agreed
and ordered a new trial pursuant to T.R. 59(J)(7).
Upon appeal, the defendant contended that the trial court abused its discretion in
granting a new trial because the evidence at trial supported the jurys verdict.
We agreed, noting that a jury could have concluded that the plaintiffs
injuries had not been caused by the collision. Id. at 940.
In particular, we noted that the jury could have properly considered the plaintiffs
lengthy medical history, his credibility as a witness, evidence that the automobiles sustained
only minor damage, and that the plaintiff did not complain of injuries at
the scene of the accident. Id.
While it appears that in this case the impact from the collision was
more severe than the one in Conklin, the evidence reveals that Stein was
able to exit the vehicle without the assistance of medical personnel. In
addition, while Stein did complain of pain immediately following the accident, she had
been experiencing some similar pain just prior to the accident. Moreover, of
the injuries Stein alleged were caused by the accident, only some of them
were reported to the emergency room physician immediately following the accident. Thus,
we must conclude, as did the court in Conklin, that there was substantial
evidence from which the jury could have concluded that many of Steins medical
conditions, including some of the injuries she reported to the emergency room physician,
were not caused by the rear-end collision.
First, there was ample evidence from which the jury could have concluded that
Steins knee injury was not caused by the accident. Evidence at trial
reflected that a few months following the accident, Stein fell while ascending the
stairs to her house but did not report this to Dr. Bankoff.
There was also evidence presented that the type of knee injury Stein sustained
normally occurs when weight is placed on the knee, could be caused by
falling on the knee and would more likely be the result of a
fall rather than a knee hitting the dashboard of a car. Both
Dr. Gabriel, who examined Stein prior to trial, and Dr. Bankoff testified that
they would have expected to see symptoms such as pain and limping immediately
after the accident had the accident caused Steins knee injury; however, neither the
emergency room physicians report nor the notes from Steins July 5 and July
15 appointments included any complaints of knee pain. Finally, Dr. Bankoff conceded
that the symptoms indicative of the tear in Steins knee did not become
apparent until nearly eleven months after the accident.
With regard to Steins complaints of pain, tingling and numbness in her arms
and hands, Stein conceded that to the extent these symptoms were related to
carpal tunnel syndrome, they were not caused by the accident. Moreover, to
the extent Stein was attempting to prove that any other pain in her
hands and arms was caused by the accident, the jury could have concluded
that the symptoms were related to her carpal tunnel syndrome. The jury
heard evidence that several years before the accident, Stein had been diagnosed with
carpal tunnel syndrome which includes symptoms such as [t]ingling and numbness in the
thumb, index, middle, and part of the ring finger, and weakness of the
grip. Dr. Gabriels Deposition at 27-28. The jury also heard evidence
that Stein had surgery for the carpal tunnel syndrome and after experiencing pain,
numbness and tingling in 1995, was diagnosed with [e]arly recurrent carpal tunnel syndrome.
Dr. Gabriels Deposition at 29.
The jury also could have concluded that some of the injuries Stein reported
to the emergency room physician were not caused by the rear-end collision.
It is true that the jury heard evidence that Stein complained of shoulder,
back, and neck pain immediately following the accident, was transported to the emergency
room and incurred a total of $805.12 for x-rays, radiology fees, pain medication,
processing fees and emergency services. To be sure, in many cases a
plaintiffs emergency room expenses will be undisputed. See Sherman v. Kluba, 734
N.E.2d 701 (Ind. Ct. App. 2000) (finding trial courts order granting new trial
proper where plaintiff/pedestrians medical expenses for treatment following accident were undisputed), trans. denied;
Manzo v. Estep, 689 N.E.2d 474 (Ind. Ct. App. 1997) (concluding that plaintiff,
who brought action to recover for injuries allegedly sustained in rear-end collision, was
entitled to a new trial where expenses for treatment immediately following accident were
undisputed, but jury awarded plaintiff no damages); Brown v. Conrad, 531 N.E.2d 1190
(Ind. Ct. App. 1988) (upholding trial courts order granting plaintiff new trial because
the jurys award of no damages was clearly erroneous where uncontradicted evidence showed
that plaintiff was entitled to at least emergency room expenses), trans. denied; Burris
v. Riester, 506 N.E.2d 484 (Ind. Ct. App. 1987) (concluding that jury verdict
was inadequate and new trial was required because victims expenses immediately following automobile
collision were undisputed), trans. denied; Oliver v. Morrison, 431 N.E.2d 140 (Ind. Ct.
App. 1982) (holding that plaintiff, who sustained injuries in automobile collision, was entitled,
at a minimum, to some damages where uncontradicted evidence revealed that immediately following
the accident plaintiff complained of injuries, including injury to the left knee, was
taken to the hospital and two days later exhibited swelling in the left
knee), trans. denied; Read, supra, 176 Ind.App. 497, 376 N.E.2d 494 (affirming trial
courts decision to grant plaintiff a new trial on plaintiffs negligence claim where
evidence revealed that immediately following automobile accident, plaintiff was transported by ambulance to
the emergency room where he received treatment for a severe scalp laceration and
concussion and was admitted to the hospital for five days).
However, in this case, the jury heard evidence that just one week before
the accident, Stein had visited her family physician, Dr. Cardenas, complaining of pain
in her shoulder, chest, ribs and back. Dr. Cardenass notes from that
appointment reveal that Stein admitted that she had been doing a lot of
yard work about 2 days before the pain started. Plaintiffs Exhibit 1,
Tab C. Dr. Cardenass notes also indicate that Stein might have been
suffering from bursitis, tendonitis, or brachial plexus problem. Dr. Gabriel, who conducted
an independent physical examination of Stein before trial and who reviewed Dr. Cardenass
notes, interpreted Dr. Cardenass findings to mean that Stein might have had problems
with the left shoulder, chest, ribs, and back pain prior to the accident
and that the medical conditions Dr. Cardenas noted might have been the cause
of Steins shoulder pain. Dr. Gabriels Deposition at 15-17. Stein herself
admitted having seen Dr. Cardenas one week before trial and further testified that
she remembered that Dr. Cardenas believed Stein had strained her muscles while doing
yard work in the heat. Record at 162-63.
The jury also heard evidence from Dr. Gabriel concerning the difference between a
patients subjective complaints and a doctors objective findings and their reliability in diagnosing
a patients condition. Dr. Gabriel explained that an objective finding is something
which a doctor can actually feel or see in an x-ray and that
a subjective finding is something which a patient feels such as pain, but
which cannot be verified. According to Dr. Gabriel, with regard to Steins
back and neck pain, he could not make any objective findings.
Thus, considering the evidence and the final instructions, the jury could have properly
concluded that Steins knee injury had been caused by a subsequent fall and
that her hand and arm pain was caused by carpal tunnel syndrome.
The jury also could have concluded that while Stein would not have visited
the emergency room had the accident not occurred, the shoulder and back pain
of which Stein complained were not caused by the accident but a pre-existing
medical condition and/or overexertion of her muscles one week before the accident.
See Wickizer v. Medley, 169 Ind.App. 332, 336, 348 N.E.2d 96, 98 (1976)
(finding that evidence revealed that subjective complaints of plaintiff, who allegedly suffered injuries
in rear-end collision, might have been caused by medical condition and not accident),
trans. denied. See also Niemeyer v. Lee, 144 Ind.App. 161, 172, 245
N.E.2d 178, 185 (1969) (noting that the sincerity of a plaintiffs complaints does
not establish that a medical condition exists or that it was caused by
the defendants negligence). Because the neck pain was the only symptom not
present immediately before the accident, a reasonable jury could have decided not to
award Stein for any emergency room expenses except for those relating to the
The jury also could have determined that the neck strain Stein sustained in
the accident did not entitle her to a substantial award for pain and
suffering in that any continuing neck pain was caused by a pre-existing condition.
The record reveals that in 1990 an MRI was taken of Steins
cervical spine and indicated a slight bulging of the C5-6 disc. Another
MRI of Steins cervical spine was taken about three weeks after the accident
and revealed the same [m]inimal bulging of C5-6 disc. Dr. Gabriels Deposition
at 18. Finally, in December 1997, Stein had another cervical spine MRI
done which revealed the same findings as the July 1996 report. Dr.
Gabriel revealed the MRI findings to the jury and informed the jury that
during his examination of Stein he found no deformity of [Steins] neck, that
the range of movement was normal, and that there was no muscle spasm
or tenderness. Dr. Gabriels Deposition at 8-9. Dr. Gabriel further concluded
that, in his opinion, Stein had recovered completely from her cervical strain.
Finally, Stein herself testified that while she still experiences some neck pain, it
does not prevent her from engaging in any activity which she was able
to do before the accident. Record at 175. Stein further admitted
on cross-examination that the injuries she believed were caused by the accident do
not currently affect [her] physical activities in any way. Record at 185-86.
Attributing Steins continuing neck pain to the pre-existing bulging disk, the jury
could have concluded that Stein was entitled to only a minimal award for
pain and suffering for the cervical strain diagnosed at the emergency room.
See Baker v. Champion Motor Home Co., Inc., 505 N.E.2d 144, 150 (Ind.
Ct. App. 1987) (noting that in a personal injury action, a jury may
infer that a plaintiffs pain and suffering were caused by a condition other
than the accident and that under certain circumstances nominal damages awarded for pain
and suffering are appropriate), trans. denied.
Finally, the jury could have concluded that Stein was not entitled to lost
wages. The evidence revealed that Stein had been absent from work three
weeks immediately following the accident and an additional five weeks from late August
through September 1996. However, the jury was instructed that it could award
Stein only for the value of lost earnings that resulted from the negligence
and wrongful conduct of the defendant. Record at 75. If the
jury believed that Stein had suffered only a minor neck strain, it could
have concluded that she was not entitled to lost wages for the eight-week
leave from work.
See Cox v. Winklepleck, 149 Ind.App. 319, 322-23, 271
N.E.2d 737, 739 (1971) (concluding that it was within the jurys prerogative to
determine whether time plaintiff was absent from work or a portion thereof was
caused by the automobile collision).
When there is evidence supporting the jurys verdict, the trial court is not
permitted to set aside a jury verdict as clearly erroneous and order a
new trial. See Burell, 557 N.E.2d at 701-702 (A verdict is not
clearly erroneous if there is relevant evidence supporting the claim, albeit conflicting.).
Because there is evidence from which the jury could have concluded that most
of Steins injuries were not caused by the accident,See footnote we must conclude that
the trial court abused its discretion in granting a new trial on the
basis that the jury verdict was clearly erroneous. We reverse and remand
for reinstatement of the jury verdict.
The costs of appeal are hereby assessed against appellee.
SHARPNACK, C.J., and MATHIAS, J., concur.
Footnote: Cervical means [t]rachelian; relating to a neck, or cervix, in any sense.
Stedmans Medical Dictionary 280 (25th ed. 1990).
Lumbar is defined as [r]elating to the loins, or the part of
the back and sides between the ribs and the pelvis.
Dictionary 896 (25th ed. 1990).
A scapula is a [s]houlder blade; blade bone; a large triangular flattened
bone lying over the ribs, posteriorly on either side, articulating laterally with the
clavicle and the humerus.
Stedmans Medical Dictionary 1386 (25th ed. 1990).
The quoted diagnosis did not contain the word and between the
words cervical lumbar. The record reflects that x-rays were taken of both
Footnote: It is unclear whether MRI scans were taken of both the
cervical and lumbar areas or whether Dr. Kristls lumbar reference was a scriveners
Footnote: Stein presented a letter from her companys personnel director, who indicated
that Stein earned $345.00 weekly for a forty-hour week and missed work from
July 5, 1996, through July 26, 1996, and again from August 20, 1996,
through September 27, 1996.
Footnote: Karl does not otherwise contest the trial courts findings.
Footnote: We note that while the trial court had authority to set aside
the jury verdict on the ground that the verdict was against the weight
of the evidence, it did not do so. Therefore, because the trial
court did not set forth supporting and opposing evidence, explaining why the evidence
preponderated in favor of the plaintiff, we may not review the courts decision
upon that ground.
See Burell, 557 N.E.2d at 702.
Assuming the jury found that only Steins cervical strain was caused by
the accident and awarded Stein a nominal amount for pain and suffering, it
could have determined that $500.00 was a proper damage award. As a
result of the emergency room visit, Stein incurred the following costs: (1)
$15.25 for pharmacy; (2) $219.00 for emergency services; (3) $65.00 for a
processing fee; and (4) $373.00 for the x-rays. Stein also was billed
by radiology in the following amounts for the x-rays taken at the hospital:
(1) $52.04 for the cervical spine x-ray; (2) $52.04 for the lumbar
spine x-ray; and (3) $28.79 for the scapula x-ray. The costs for
pharmacy, emergency services, the processing fee, one-third of the total for the emergency
room x-rays and the cervical spine x-ray total $475.62.