Kimberly A. Stewart v. Dianna N. Randle (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Mar 12 2020, 9:50 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Michael W. Phelps Blaire M. Evans
Stewart Phelps Wood State Farm Litigation Counsel
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Kimberly A. Stewart, March 12, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-2270
v. Appeal from the Marion Superior
Court
Dianna N. Randle, The Honorable James B. Osborn,
Appellee-Defendant. Judge
Trial Court Cause No.
49D14-1704-CT-14960

Najam, Judge.

Statement of the Case
[1] Kimberly Stewart appeals the trial court’s denial of her motion to correct error

after a jury entered a verdict in favor of Dianna Randle on Stewart’s complaint

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 alleging that Randle had negligently caused a car accident. Stewart presents a

single issue for our review, namely, whether the evidence presented at trial

supported the tender of two verdict forms to the jury, one finding for Randle

and the other finding for Stewart. We affirm.

Facts and Procedural History
[2] On May 1, 2015, Stewart was stopped in traffic on Lafayette Road in

Indianapolis when Randle failed to stop and collided with Stewart’s vehicle

from the rear at low speed. The rear of Stewart’s vehicle was “a bit dented in”

as a result of the impact. Tr. Vol. 2 at 53. Stewart felt “stunned” and

“confused” after the accident, but she did not seek medical treatment that day.

Id. at 59. The next day, which was a Saturday, Stewart had a “headache and

just some pains.” Id. at 62. The following Monday, Stewart called her doctor,

Dr. Allison Wright, and made an appointment for May 13. At that

appointment, Stewart reported having a headache and neck pain. Dr. Wright

diagnosed Stewart with whiplash and muscle spasms in her neck and trapezius

muscles. Dr. Wright advised Stewart to take Aleve to treat her symptoms.

[3] Prior to the May 2015 accident, in 2012 and 2013 Stewart had sought medical

treatment for pain in her left shoulder and numbness in her left arm. An MRI

of Stewart’s neck in October 2013 showed “mild spondylitis changes of the

cervical spine most pronounced on the left at C6-C7” and “a minimal disc

protrusion at C5-C6.” Id. at 24. At some point in 2014, Stewart began seeing a

massage therapist, Karen Higgs. And just prior to the May 2015 accident,

Stewart saw Higgs for massage treatments in February and March 2015, with
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 reports of tightness in her upper back and neck. After the May 1, 2015,

accident, Stewart saw Higgs for a massage on May 15 to treat her “neck in the

upper shoulder area again.” Id. at 38.

[4] Stewart saw Dr. Wright for a follow up visit on August 25, and Stewart

reported that she was “still having left shoulder pain.” Id. at 12. And at a visit

in April 2016, Dr. Wright instructed Stewart to get an MRI of her cervical

spine. Dr. Wright described the MRI results as follows:

[It shows] some arthritis but also looks like she had disc [sic]. So,
you have the vertebrae and you have the discs that are in
between. One was kind of pushing out at C5-C6. Then at C6-
C7, she had some arthritis changes too, and then a little bit of the
disc was kind of pushed out on the left, and that would
correspond to where most of her pain—pain was both sides but
mainly on the left. . . .

Id. at 15. Dr. Wright referred Stewart to a pain specialist for further treatment.

[5] On April 13, 2017, Stewart filed a complaint against Randle alleging injuries

proximately caused by Randle’s negligence in the May 1, 2015, accident.

During the ensuing jury trial, Stewart presented testimony from Higgs and from

Dr. Wright, who testified that Stewart’s injuries were “probably related” to the

accident. Tr. Vol. 2 at 19. Randle conceded that the accident was her fault, but

she challenged Stewart’s evidence that Randle had proximately caused her

alleged injuries. At the conclusion of the trial, over Stewart’s objection, the trial

court tendered two verdict forms to the jury, one finding in favor of Stewart and

the other finding in favor of Randle. The jury returned a verdict in favor of

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 Randle. Stewart filed a motion to correct error, which the trial court denied.

This appeal ensued.

Discussion and Decision
[6] Stewart contends that the trial court erred when it tendered to the jury two

verdict forms, one finding in favor of Stewart and the other finding in favor of

Randle. Stewart maintains that the evidence was undisputed that Randle

proximately caused her injuries, and, therefore, the trial court was required to

tender a single jury verdict form in Stewart’s favor with only the amount of

damages to be determined by the jury. We review a trial court’s decision

regarding jury verdict forms for an abuse of discretion. See Hrezo v. City of

Lawrenceburg, 81 N.E.3d 1146, 1158 (Ind. Ct. App. 2017).

[7] “In order to prevail on a claim of negligence the plaintiff must show: 1) duty

owed to plaintiff by the defendant; 2) breach of duty by allowing conduct to fall

below the applicable standard of care; and 3) compensable injury proximately

caused by defendant’s breach of duty.” King v. Ne. Sec., Inc., 790 N.E.2d 474,

484 (Ind. 2003). As Stewart correctly points out, Randle admitted liability in

causing the rear-end accident on May 1, 2015. Accordingly, the only issue at

trial was whether Randle proximately caused Stewart’s alleged injuries. As this

Court has observed,

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

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 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). 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. See Dee v. Becker, 636 N.E.2d
176, 181 (Ind. Ct. App. 1994).

Spaulding v. Cook, 89 N.E.3d 413, 421 (Ind. Ct. App. 2017), trans. denied.

[8] Here, Stewart maintains that, in light of Dr. Wright’s testimony that Stewart’s

injuries were caused by the May 1, 2015, accident, the trial court was required

to submit a single verdict form to the jury in favor of Stewart. Stewart asserts

that her medical testimony was “undisputed” and supported a damages award.

Appellant’s Br. at 11.

[9] But Stewart ignores Dr. Wright’s testimony acknowledging that Stewart’s

injuries were similar to those she had had in 2012 and 2013. When Randle

cross-examined Dr. Wright at trial about the similarities in Stewart’s symptoms

pre- and post-accident, the following colloquy ensued:

Q. . . . Does the indication [for the October 2013 MRI] say left
arm and shoulder pain with numbness and tingling?

A. Yes.

Q. Okay. And it looks like they say on impression mild
spondylitis changes of the cervical spine most pronounced on the
left at C6-C7?
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 A. [Yes].

Q. And they say a minimal disc protrusion at C5-C6?

A. [Yes].

Q. Okay. Do those appear[] to be the same locations that are
discussed in the MRI in July of 2016?

A. Yes, those are the two areas that they comment on.

Q. And in the July MRI it says progression of the mild disc
degeneration. Would that be something you would expect to see
some progression over the course of three years?

A. Yeah, I guess it’s possible.

Q. Because the degeneration isn’t something that gets better,
correct?

A. Right.

Q. And an auto accident isn’t the only thing that could make
degenerated disc disease progress or become symptomatic?

A. Aging is usually what causes it.

Tr. Vol. 2 at 24. In addition, Dr. Wright was equivocal when she testified that

the May 1, 2015, accident had caused Stewart’s injuries, stating only that she

“surmise[d]” that the findings on the 2016 MRI were “probably related” to the

accident. Id. at 19. Finally, Higgs testified that she had provided massage

therapy to Stewart prior to the May 1, 2015, accident to treat tightness in her

shoulders, upper back, and neck.

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[10] In light of the evidence that Stewart’s injuries might not have been caused by

the accident, we reject Stewart’s assertion that the jury’s verdict was

unsupported by the evidence. In Spaulding, as here, the plaintiff argued that

“the jury verdict [wa]s inadequate as a matter of law because the zero damages

award [wa]s contrary to the evidence.” 1 89 N.E.3d at 420. On appeal, we

affirmed the verdict in light of: the low impact of the accident; plaintiff’s pre-

existing conditions, which were similar to his alleged injuries caused by the

accident; plaintiff’s failure to seek immediate medical treatment; and his

doctor’s inability to testify “with absolute certainty that the accident” had

caused plaintiff’s claimed injuries. Id. at 423. We held that “the jury’s

determination that Spaulding was entitled to zero damages arising out of his

accident with Cook [wa]s not outside the bounds of the evidence.” Id.

[11] Likewise, here, we agree with Randle that the testimony of both Dr. Wright

and Higgs supports a reasonable inference that Stewart’s injuries were the result

of a pre-existing condition and not the May 1, 2015, accident. Thus, there is

evidence to support the jury’s verdict for Randle. See id. Accordingly, we hold

that the trial court did not abuse its discretion when it tendered both verdict

forms to the jury, and the court did not abuse its discretion when it denied

Stewart’s motion to correct error.

1
We note that, while Stewart asserts that the jury award of zero damages “warrants a new trial on
damages,” her argument on appeal is narrowly focused on whether the trial court abused its discretion when
it tendered both verdict forms to the jury. Appellant’s Br. at 9. Accordingly, we limit our analysis to that
argument.

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[12] Affirmed.

Vaidik, J., and Tavitas, J., concur.

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