MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 09 2020, 9:06 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Polen, Jr. J. Blake Hike
Daniel J. Zlatic Larry L. Barnard
Rubino Ruman Crosmer & Polen, LLC Carson LLP
Dyer, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Neal M. Siegel, December 9, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CT-173
v. Appeal from the La Porte Circuit
Court
Sue M. Tomion, The Honorable Thomas Alevizos,
Appellee-Defendant. Judge
Trial Court Cause No.
46C01-1803-CT-460
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-173 | December 9, 2020 Page 1 of 17
[1] Neal M. Siegel appeals the trial court’s judgment of $51,500 based upon a jury
verdict in his favor. Siegel raises two issues which we restate as:
I. Whether the trial court erred or abused its discretion in
instructing the jury; and
II. Whether the trial court erred in entering judgment for damages
in the amount awarded by the jury.
We affirm.
Facts and Procedural History
[2] In 2016, Siegel was driving a vehicle when he was involved in an automobile
accident with Sue Tomion. On March 23, 2018, Siegel filed a complaint
against Tomion. 1 On November 7, 2018, the trial court scheduled a jury trial
for November 25, 2019.
[3] On November 18, 2019, Siegel filed a supplemental proposed jury instruction
including Proposed Jury Instruction No. 5, which states:
The duty to abstain from injuring another applies to the sick, the
weak, infirm, or previously injured, as well as to the strong and
healthy, and when this duty is violated, the measure of damages
is the injury and damage which results.
The law provides that a wrongdoer takes a plaintiff as she finds a
plaintiff, with all of plaintiff’s illnesses and infirmities of body,
and the defendant is responsible in damages for aggravating a
previous physical condition. Even if you find from the evidence
1
The record does not contain a copy of the complaint.
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that because of a prior physical condition, the plaintiff may have
been susceptible to injury, or that he/she suffered more because
of a prior physical condition, this fact will not prevent the
recovery of any and all damages caused by the defendant’s
conduct.
Where a preexisting condition existed, and where after an injury
aggravating the condition results, but you cannot distinguish
between the current injury or condition and the preexisting
condition, so long as the fact of aggravation is established by the
evidence in the case, the defendant whose negligence was the
cause of the injury or aggravation is responsible for the entire
damage.
Appellant’s Appendix Volume II at 220.
[4] On November 25 and 26, 2019, the court held a jury trial. The court informed
the jury that Tomion stipulated that her negligence caused the accident but
disputed the nature, extent, and cause of some of Siegel’s alleged injuries and
damages.
[5] Siegel testified he had been a limousine driver for eighteen years and was
involved in a car crash in April 2014, which resulted in injuries including “a
neck issue” and “a back and hip issue.” Transcript Volume II at 94. He
testified about his treatment and pain before and after the 2016 crash. He
indicated that doctors recommended a cervical laminectomy in 2015, but he
could not pass the cardiac clearance for the procedure until he changed his
lifestyle. He had the procedure at some point after the 2016 car crash and after
he had lost forty pounds.
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[6] The court admitted photos of the vehicles involved in the 2016 crash. Siegel
testified that Tomion was braking when she struck the rear of his vehicle and
that he “felt a big bump in the back of [his] car.” Id. at 99. When asked how he
was feeling immediately after the collision, he answered: “I felt a jolt in the
bottom of my back right away, and I felt pain in my neck, but my neck was
already messed up, so I wasn’t sure what I was feeling in my neck.” Id. at 100.
He testified that an ambulance arrived but he did not use it because he thought
he could still complete his ride, he was a long way from home, and he did not
think it was necessary to go to the hospital. He testified that he saw a doctor six
days after the accident regarding limitations in his neck, the appointment had
been scheduled prior to the time of the accident, and he “did not discuss that
accident, the second accident, with [the doctor] at that time. Not on the initial
visit.” Id. at 130.
[7] The court played the video deposition of Dr. Andrew Engel, Siegel’s pain
management physician, who testified in part that he treated Siegel following the
2014 crash, and that Siegel had degenerative disc disease prior to the 2016
accident. He testified about the surgery related to spinal stenosis that pre-
existed the 2016 accident, that a CT scan after the accident showed “C3-4
spondylolisthesis, so again spondylolisthesis is offsetting of the bone, and some
narrowing of the C5-6 disc and the multi-level facet disease, so there were
changes in the facet joint associated with aging,” and that Siegel “still needed
resolution of the C3-4 spondylolisthesis that I thought was caused by the motor
vehicle accident.” Appellant’s Appendix Volume II at 155, 157. The court
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played the video deposition of Dr. Larry Salberg, a neurologist hired by defense
counsel who conducted an examination of Siegel and his medical records in
September 2019. Dr. Salberg testified that “almost all of the symptoms that he
was complaining about and getting treated for were preexisting the motor
vehicle accident of 2016.” Id. at 55. The court also admitted Siegel’s medical
records.
[8] During the discussion of the final instructions, the court and the parties
discussed Final Instruction No. 6, which stated:
If you find that the Plaintiff is entitled to recover, you must
consider evidence of third-party source benefits Plaintiff received
and whether Plaintiff must repay those benefits.
Any amount Plaintiff is not required to repay will not be paid out
of any verdict you award to Plaintiff after this trial is over. In
determining your verdict, therefore, reduce what you would
otherwise award Plaintiff by the amount of any benefits Plaintiff
is not required to repay.
Id. at 202. The following exchange occurred regarding Final Instruction No. 6:
[Siegel’s Counsel]: Six, they actually took out the middle
paragraph where it says, any amount plaintiff must repay, I
would just ask that the entire pattern be given.
THE COURT: Yes.
[Siegel’s Counsel]: I have the pattern if you’d like it.
THE COURT: I have it.
THE BAILIFF: What number is it?
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THE COURT: 531.
[Siegel’s Counsel]: It’s 531.
THE COURT: Seven is ours anyway. No problem with that?
[Siegel’s Counsel]: No problem, Judge.
Transcript Volume II at 157-158.2 The court ultimately gave Final Instruction
No. 6.
[9] In discussing another instruction, 3 Siegel’s counsel asserted that the instruction
was not the pattern and that “[t]here’s 926(a) and 926(b).” 4 After some
discussion, the following exchange occurred:
2
Indiana Model Civil Jury Instruction 531 states:
If you find that [plaintiff] is entitled to recover, you must consider evidence of [worker’s
compensation][name other collateral source payment] benefits [plaintiff] received and whether
[plaintiff] must repay those benefits.
Any amount [plaintiff] must repay for those benefits will be paid out of any verdict you
award to [plaintiff] after this trial is over. Do not reduce your verdict by the amount of
those benefits [plaintiff] must repay.
[Any amount (plaintiff) is not required to repay will not be paid out of any verdict you
award to (plaintiff) after this trial is over. Therefore, in determining your verdict, reduce
what you would otherwise award (plaintiff) by the amount of any benefits (plaintiff) is not
required to repay.]
3
During the beginning of the discussion concerning this instruction, the court stated: “Eight is pattern.”
Transcript Volume II at 158. On appeal, the parties do not point to the proposed instruction the court was
discussing.
4
Indiana Model Civil Jury Instruction 926(a) states: “A pre-existing condition is a [physical][mental]
condition that existed before [the collision][the incident][describe event]. [Plaintiff] may recover damages for
the extent that [defendant] aggravated [plaintiff]’s [specify pre-existing condition]. [Plaintiff] cannot, however,
recover damages for [specify pre-existing condition] itself.” Indiana Model Civil Jury Instruction 926(b) states:
“[Plaintiff] is [also] not entitled to recover damages for any condition that occurred after, and was not caused
by, [the collision][the incident][describe event].”
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THE COURT: What do you want to use? Before the collision in
question?
[Tomion’s Counsel]: Before the May 21st –
*****
[Tomion’s Counsel]: May 21, 2016, accident.
[Siegel’s Counsel]: That’s fine.
THE COURT: – accident. Plaintiff may recover damages to the
extent that the defendant aggravated plaintiff’s pre-existing
condition.
[Tomion’s Counsel]: Do you want to put specific –
[Siegel’s Counsel]: I mean, if we were going to put something
specific I would just say pre-existing neck and back condition.
THE COURT: Pre-existing neck and back condition?
[Tomion’s Counsel]: That’s fine.
THE COURT: Plaintiff cannot, however, recover damages for
the prior condition, neck and back condition. All right. Nine is
pattern. No problem, right?
[Siegel’s Counsel]: That’s fine.
Id. at 159. The court gave the jury Final Instruction No. 9, which stated:
A pre-existing condition is a physical condition that existed
before the collision on May 21, 2016. Plaintiff may recover
damages for the extent that the Defendant aggravated Plaintiff’s
neck and back condition. Plaintiff cannot, however, recover
damages for the neck and back condition itself.
Appellant’s Appendix Volume II at 205.
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[10] With respect to Siegel’s supplemental Proposed Instruction No. 5, Tomion’s
counsel objected and stated: “My objection is that it is covered by – if he wants
the combination of model instruction 925 and 926(a), which has already been
agreed to, I think what we could do is add 925 and then that would cover this
instruction, which is not a pattern instruction.” 5 Transcript Volume II at 161.
Siegel’s counsel mentioned Dunn v Cadiente, 516 N.E.2d 52 (Ind. 1987), reh’g
denied, and asserted that the instruction covered the issue of apportionment.
After some discussion, the court indicated it would give the pattern instruction
and allow Siegel’s counsel to discuss Dunn to the jury.
[11] During closing argument, Siegel’s counsel argued:
The big question that we have to ask here and the big question
for the jury is you have to determine – you know, their argument
is [Siegel] had all these horrible things before, which we don’t
dispute. We argue that he was doing better before this crash.
The issue you have to figure out is was he hurt in this crash?
And all of the evidence says yes, including their own doctor. . . .
And the law of aggravation, folks, is very simple. If somebody
has pre-existing problems and they’re hurt, they’re responsible for
the aggravation. One thing I want to make perfectly clear, and
when the judge instructs you on this, listen to the instruction,
what is the responsible cause? It doesn’t have to be a single
responsible cause. There can be multiple responsible causes
which is what they say. And given the fact that they are a
responsible cause and they can’t differentiate between what it is,
unfortunately they’re on the hook for the whole thing; and that’s
5
Indiana Model Civil Jury Instruction 925 states: “[Defendant] is not excused from responsibility just because
[plaintiff] had [describe physical or mental condition] at the time of [the collision][the incident][describe event] that
made [him][her] more likely to be injured.”
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the law. The crash also caused new injuries. There’s no dispute
of that in the evidence.
Transcript Volume II at 176-177. Siegel’s counsel suggested total damages of
over $1,000,000 to the jury.
[12] During the closing argument, Tomion’s counsel stated that “there is just
absolutely nothing fair about a $1 million judgment in a ten-mile-an-hour
accident.” Id. at 185. He stated that “[t]he question is: Is all the pain he’s
having because of the accident?” Id. at 186. He also stated:
Now, if I had failed to convince you of this and you find
yourselves considering this and you’re down there and get back
there and you start thinking about 65 or $66,000.00 in medical
expenses, I would still suggest to you that pain and suffering is no
more than 25 or $30,000.00. And, again, the reason for that is
because I don’t think any of this stuff is related to the accident
and he already had pain to begin with, so why – how does he
justify compensation of up to $1 million in this case? I don’t
think so. . . . But when you look at it and consider it, you
consider all of the testimony, consider all of the medical records,
you consider everything that you’ve heard today, we would ask
that you render a verdict in the amount of $1,000.00 up to
$30,102.00.
Id. at 208-209.
[13] The jury found in Siegel’s favor and awarded him $51,500. The court accepted
the verdict and entered judgment accordingly. On December 4, 2019, Siegel
filed a Motion to Correct Error and Request for a New Trial Pursuant to Trial
Rule 59, which was deemed denied.
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Discussion
I.
[14] The first issue is whether the trial court erred or abused its discretion in not
giving the jury Siegel’s Proposed Instruction No. 5 and in providing the jury
with Final Instruction No. 6. The purpose of jury instructions is to inform the
jury of the law applicable to the facts without misleading the jury and to enable
it to comprehend the case clearly and arrive at a just, fair and correct verdict.
Blocher v. DeBartolo Props. Mgmt, Inc., 760 N.E.2d 229, 235 (Ind. Ct. App. 2001),
trans. denied. Trial courts generally enjoy considerable discretion when
instructing a jury. Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020).
When a party challenges a trial court’s decision to give or refuse a proposed
instruction, a reviewing court considers three things: (1) whether the instruction
correctly states the law; (2) whether the instruction is supported by evidence in
the record; and (3) whether the instruction’s substance is covered by other
instructions. Id. “Only the first consideration is a legal question on which the
trial court receives no deference.” Id. The other two are reviewed for an abuse
of discretion. Id.
[15] Siegel argues the trial court erred in refusing to give his Proposed Instruction
No. 5, asserts it was an accurate statement of the law, and cites Dunn v.
Cadiente, 516 N.E.2d 52 (Ind. 1987), reh’g denied. Specifically, he emphasizes
the third paragraph of Proposed Instruction No. 5. He contends that the
instruction was supported by the evidence, the instruction was not covered by
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other instructions, and that the jury was left with the incorrect impression that
he continued to have the burden of proof regarding causation of damages.
[16] In Dunn, Robert Dunn appealed a judgment awarding damages of $24,065
following a bench trial in his medical malpractice action against Dr. Samson S.
Cadiente. 516 N.E.2d at 53. The Indiana Supreme Court held:
It is axiomatic that, before liability can be imposed, there must be
proof that the defendant’s negligence proximately caused the
plaintiff’s harm. Yaney by Yaney v. McCray Memorial Hospital
(1986), Ind. App., 496 N.E.2d 135. An essential element of
recovery in a negligence action is that the injury be the proximate
result of a defendant’s negligence. Hartman v. Memorial Hospital of
South Bend (1978), 177 Ind. App. 530, 380 N.E.2d 583. In order
for a plaintiff to carry his burden of proof, the evidence must
establish the element of proximate cause connecting the alleged
wrongful act with the injury. Palace Bar Inc. v. Fearnot (1978) 269
Ind. 405, 381 N.E.2d 858. Just because there is proof that some
of the claimed injury and loss was caused by the breach of duty
does not necessarily mean that all damages resulted from the
breach.
Id. at 55. The Court held:
A pre-existing condition or susceptibility, if aggravated by a
defendant’s conduct, may result in a defendant’s full liability for
the resulting injury and loss. However, if the pre-existing
condition, standing alone, independently causes injury and loss,
a defendant will not be liable for such damages.
Id. at 56.
[17] The Court stated:
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To the extent that there may have been conflicting evidence
regarding the extent to which all of Dunn’s injuries and losses
were causally related to Cadiente’s conduct or the congenital
anomaly, the question may be viewed as one of apportionment of
damages. Upon this issue, Prosser favors the following
approach:
Where a logical basis can be found for some rough
practical apportionment, which limits a defendant’s
liability to that part of the harm which he has in fact
caused, it may be expected that the division will be made.
Where no such basis can be found and any division must
be purely arbitrary, there is no practical course except to
hold the defendant for the entire loss, notwithstanding the
fact that other causes have contributed to it.
Prosser[, Law of Torts, 4th Edition,] p. 314. Consistent with a
plaintiff’s burden to prove causation, we do not view this
consideration as transferring to a defendant the burden to prove
the existence of a logical basis for apportionment. The burden of
proof remains with the plaintiff. In order to benefit from this
rule, it is therefore plaintiff’s burden to prove the absence of any
such basis for apportionment.
Id. The Court observed that “[v]iewing the evidence favorable to the judgment,
we find it does not inescapably lead to the conclusion that apportionment is
impossible” and held that “[t]hus the trial court did not err in failing to award
damages for all of the injuries and losses claimed by plaintiff.” Id.
[18] As pointed out by Tomion, Siegel’s Proposed Instruction No. 5 fails to take into
consideration the first portion of the Court’s quotation of Prosser. Specifically,
Proposed Instruction No. 5 did not state that “[w]here a logical basis can be
found for some rough practical apportionment, which limits a defendant’s
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liability to that part of the harm which he has in fact caused, it may be expected
that the division will be made.” See id. (quoting Prosser, supra., p. 314). Nor
did Proposed Instruction No. 5 inform the jury that “[w]here no such basis can
be found and any division must be purely arbitrary, there is no practical course
except to hold the defendant for the entire loss.” See id. (quoting Prosser, supra.,
p. 314) (emphasis added). The proposed instruction would have required
additional clarification instructions and may have confused the jury in its
proposed form. We find no abuse of discretion in the trial court’s denial of the
proposed instruction. 6
[19] Siegel also argues that the trial court erred in giving Final Instruction No. 6. He
points to Indiana Model Civil Jury Instruction 531 which provides:
If you find that [plaintiff] is entitled to recover, you must consider
evidence of [worker’s compensation][name other collateral source
payment] benefits [plaintiff] received and whether [plaintiff] must
repay those benefits.
Any amount [plaintiff] must repay for those benefits will be paid
out of any verdict you award to [plaintiff] after this trial is over.
Do not reduce your verdict by the amount of those benefits
[plaintiff] must repay.
[Any amount (plaintiff) is not required to repay will not be paid
out of any verdict you award to (plaintiff) after this trial is over.
Therefore, in determining your verdict, reduce what you would
6
To the extent Siegel asserts that the trial court’s instruction that he “cannot . . . recover damages for the
neck and back condition itself” is in contradiction to Dunn, Appellant’s Brief at 29-30 (quoting Transcript
Volume II at 215), we note that he did not object at trial to Final Instruction No. 9 based upon Dunn and
ultimately agreed to the instruction.
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otherwise award (plaintiff) by the amount of any benefits (plaintiff)
is not required to repay.]
He asserts that the trial court improperly substituted the third bracketed
paragraph in place of the second paragraph.7 He also asserts that Final
Instruction No. 6 was not supported by evidence because there was no evidence
admitted at trial of collateral source payments that did not need to be repaid by
him. He argues that “the only evidence in the record consisted of the fact that
Siegel was required to repay Meridian Health for payments it made to Siegel’s
medical providers for services necessitated by Tomion’s negligence.”8
Appellant’s Brief at 35.
[20] To the extent Siegel asserts that Final Instruction No. 6 was an incomplete and
inaccurate statement of the law because it informed the jury to reduce what it
would otherwise award Plaintiff by the amount of any benefits Plaintiff is not
required to repay, we disagree. This statement is found in paragraph 3 of
Indiana Model Civil Jury Instruction 531. With respect to Siegel’s argument
that the trial court failed to instruct the jury not to reduce the verdict by the
amounts of those benefits he must repay, we note that Final Instruction No. 9
7
Siegel notes: “Words, phrases, and sentences that appear in brackets are alternatives or additions to
instructions, to be used when applicable to the particular case on trial.” Appellant’s Brief at 34 n.1 (quoting
Indiana Model Civil Jury Instructions, 2014 Ed., Guidelines for Judges and Attorneys, p. xxxi).
8
While Siegel cites to the record in his statement of facts regarding whether he had to repay certain
payments, he does not cite to the record for this assertion in his argument section. Ind. App. Rule
46(A)(8)(a) provides that each contention in the argument section of an appellant’s brief “must be supported
by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in
accordance with Rule 22.”
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provided in part that “Plaintiff may recover damages for the extent that the
Defendant aggravated Plaintiff’s neck and back condition,” and Final
Instruction No. 13 provided in part:
You must now determine the total amount of money that will
fairly compensate Neal M. Siegel for those elements of damage
that you find were proved by the greater weight of the evidence to
have resulted from the collision caused by Sue M. Tomion.
In deciding the amount of money you award, you may consider:
*****
(4) The reasonable value of necessary medical care, treatment,
and services Neal M. Siegel has incurred and will incur in the
future as a result of the injuries;
Appellant’s Appendix Volume II at 205, 209. In light of these additional
instructions, we cannot say that the trial court abused its discretion.
II.
[21] The next issue is whether the trial court erred in entering judgment for damages
in the amount awarded by the jury. Siegel argues the evidence demonstrates
that the jury’s award of $51,500 was not within the bounds of the evidence.
[22] We afford a jury’s damage awards great deference on appeal. Sims v. Pappas, 73
N.E.3d 700, 709 (Ind. 2017). A damage award will not be reversed if it falls
within the bounds of the evidence. Id. We look only to the evidence and
inferences therefrom which support the jury’s verdict, and will affirm it if there
is any evidence in the record which supports the amount of the award, even if it
is variable or conflicting. Id. “Appellate courts will not substitute their idea of
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a proper damage award for that of the jury.” Sears Roebuck & Co. v. Manuilov,
742 N.E.2d 453, 462 (Ind. 2001) (quoting Prange v. Martin, 629 N.E.2d 915, 922
(Ind. Ct. App. 1994), reh’g denied, trans. denied). “We will not deem a verdict to
be the result of improper considerations unless it cannot be explained on any
other reasonable ground.” Id. (quoting Prange, 629 N.E.2d at 922). “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), reh’g denied).
[23] The record reveals that Siegel had been involved in a car crash in April 2014,
which resulted in injuries including “a neck issue” and “a back and hip issue.”
Transcript Volume II at 94. During his deposition, Dr. Salberg testified:
After careful review and thought and going over what the patient
told me in the IME it’s my opinion that almost all of the
symptoms that he was complaining about and getting treated for
were preexisting the motor vehicle accident of 2016. He had
been in several motor vehicle accidents prior and he had been
seeing specialists, including neurosurgeons and pain
management experts for several years before this accident
occurred.
*****
I felt that there may have been a mild exacerbation of the
preexisting neck issue with a simple, simple whiplash.
Appellant’s Appendix Volume II at 55-56. He also expressed his opinion
regarding the degenerative nature of some of Siegel’s injuries. When asked if he
agreed with Dr. Gandhi’s assessment in 2017 that Siegel needed surgery due to
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what occurred in 2014, Dr. Salberg answered: “I do a hundred percent, I do a
hundred percent.” Id. at 73. With respect to spondylolisthesis, he testified on
cross-examination:
[I]f you look at what the studies show it’s noted after the
accident. And it could have been maybe due to the accident. I
told you that, but it was a one plus. That’s usually not a real
painful situation and, you know, they didn’t do surgery because
he had a grade one spondylolisthesis, you know. They did it for
other reasons, but even if the accident did cause it it also could be
part of his degenerative disease, process like you point out, you
know. It’s a combination.
Id. at 123-124. Plaintiff’s Exhibit No. 13 consists of a summary of Siegel’s
medical bills and includes $144,833.92 of the total amount billed, the amount
paid by Meridian Health of $9,470.59, downward adjustments of $79,762.07,
and a balance remaining of $55,601.26. Based upon the record, the award was
within the range of evidence presented and we do not interfere with the jury
award.
[24] For the foregoing reasons, we affirm the trial court’s order.
[25] Affirmed.
Vaidik, J., and Pyle, J., concur.
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