dissenting.
I respectfully dissent.
Eusey has correctly cited Huff v. Travelers Indemnity Co., (1977) 266 Ind. 414, 363 *27N.E.2d 985, for our standard of review in this case. There the court stated:
The "trial court's action in granting a new trial is given a strong presumption of correctness" on appellate review. Memorial Hospital v. Scott (1973), 261 Ind. 27, 31, 300 N.E.2d 50, 53. The inquiry of an appellate court is to examine the record to determine whether:
(a) The trial court abused its judicial discretion;
(b) A flagrant injustice has been done the appellant; or
(c) A very strong case for relief from the trial court's ordering a new trial has been made by the appellant. Memorial Hosp. v. Scott, supra.
Id., 266 Ind. at 428-29, 363 N.E.2d at 994. In my opinion the court erred in granting a new trial in this case because the error, if any, in admission of the Brogan report was harmless.
While Ind.Rules of Procedure, Trial Rule 59(F) provides for relief where prejudicial or harmful error has occurred, ef AR. 15(N), T.R. 61 regarding harmless error provides
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order in anything done or omitted by the court by any of the parties is ground for granting relief under a motion to correct errors or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Eusey argues the decision of the trial court should be upheld because admission of the report before the jury irreparably damaged his credibility as a witness. The record, however, does not support this contention.
After the report was admitted, Eusey testified he honestly believed he had seen Brogan, who had been his personal physician for some time, for injuries stemming from the accident. Eusey stated, "I have records of paying him for a visit." (R. 389) Eusey also testified he had seen six other professionals for these injuries, testified as to the specific dates of many of these appointments, and detailed his expenses of treatment. (R. 268-95) Eusey also described his emergency treatment at the hospital, the effect of his injuries on his ability to operate his business, and his constant pain.
While we are mindful of our duty not to reweigh evidence, the most the record demonstrates here is the raising of an issue of fact as to whether Brogan treated Eusey for injuries specifically resulting from the automobile accident. Eusey's testimony of his medical history following the accident and visits with other medical professionals was well-documented. Eusey's credibility before the jury was not so irreparably damaged as to have been inconsistent with substantial justice, nor to have affected his substantial rights.
Assuming for our purposes admission of the report was error, we find Judge Ratliff's analysis in Oliver v. Morrison, (1982) Ind. App., 431 N.E.2d 140 persuasive on this issue:
We have determined that Oliver has made a compelling case for relief from the obvious injustice which has been done him by virtue of the special judge's ordering a new trial. Although the trial judge committed certain errors ... there is no reasonable indication that those errors affected the jury's verdict and prejudiced Morrison's case. Only by speculation could the special judge have concluded that the verdiet would be significantly different after a new trial.
Id., 431 N.E.2d at 147.
Because the error, if any, in admitting the Brogan report was harmless as a matter of law, the trial court abused its discretion in granting a new trial.
I would reverse with instructions to reinstate the judgment entered on the jury's verdict.