MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 03 2016, 8:47 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE David W. Stone IV Matthew J. Jankowski Stone Law Office & Legal Research Kopka Pinkus Dolin PC Anderson, Indiana Carmel, Indiana Michael W. Phelps Rom Byron Nunn Law Office Bloomington, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cynthia Brown and October 3, 2016 Gregory Brown, Court of Appeals Case No. Appellants-Plaintiffs, 49A04-1601-CT-177 Appeal from the Marion Superior v. Court The Honorable Heather Welch, The Boeing Company, Judge The Honorable Therese Hannah, Appellee-Defendant Judge Pro Tempore Trial Court Cause No. 49D01-1303-CT-8974
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 1 of 8 [1] Cynthia and Gregory Brown sued The Boeing Company (Boeing) for
negligence after Cynthia was injured in a car accident caused by a Boeing
employee. The Browns appeal the jury verdict entered in favor of Boeing,
raising two arguments on appeal: (1) the trial court erroneously excluded
evidence regarding alleged bias of a Boeing expert witness; and (2) the trial
court erroneously excluded evidence that Cynthia was no longer able to
continue working with special needs children. Finding no error, we affirm.
Facts [2] On April 27, 2012, Cynthia was driving a vehicle in Indianapolis and was
stopped at a traffic signal. Another vehicle, operated by Eric Haugse, struck the
rear of Cynthia’s vehicle. Cynthia incurred ongoing pain in her left shoulder,
left arm, lower back, right leg, and right ankle, as a result of the accident.
[3] On March 5, 2013, the Browns filed a complaint against Haugse and Boeing,
seeking to recover damages as a result of the accident. Haugse was a Boeing
employee, and Boeing eventually stipulated that Haugse was working in the
course and scope of his employment 1 and that Haugse’s negligence caused the
accident.
[4] A jury trial on the issue of damages took place from November 17 through 19,
2015. At some point during the trial, Boeing filed a motion in limine, seeking
1 After Boeing conceded that Haugse was working in the course and scope of his employment, Haugse was dismissed from the lawsuit.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 2 of 8 to prohibit the Browns from asking certain questions of Boeing’s expert witness,
Dr. Alfred Bowles. Boeing also sought to exclude a number of documents that
the Browns intended to submit into evidence. The trial court granted the
motion.
[5] Before the trial began, the Browns stipulated that Cynthia’s claim for lost
income had been withdrawn. At trial, however, the Browns attempted to
introduce evidence that Cynthia was no longer able to teach special needs
children as a result of her injuries. Boeing objected to the evidence, arguing
that it was confusing and irrelevant as her claim for lost income had been
withdrawn. The Browns argued that it was relevant because it showed the
emotional loss she sustained by no longer being able to do the work she loved.
The trial court sustained Boeing’s objection and excluded the evidence. On
November 19, 2015, the jury awarded Cynthia $25,000 and awarded Gregory
$0 for his claim of loss of consortium. The Browns now appeal.
Discussion and Decision [6] Both of the arguments raised by the Browns on appeal amount to a contention
that the trial court erroneously excluded evidence. Decisions to admit or
exclude evidence are within the sound discretion of the trial court, and we will
reverse only where the ruling is against the logic and effect of the facts and
circumstances before the court. Flores v. Gutierrez, 951 N.E.2d 632, 637 (Ind. Ct.
App. 2011).
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 3 of 8 I. Expert Witness [7] First, the Browns contend that the trial court erred by excluding testimony and
documents related to Dr. Bowles. The specific evidence sought to be admitted
was as follows:
Dr. Bowles works for a company called BRC and has been on BRC’s board of directors for approximately four years. During the years 1990-2005, State Farm insurance companies had paid BRC over $10 million and Ford Motor Company had paid BRC over $14 million for the services of BRC’s expert witnesses.
The trial court permitted evidence to be introduced regarding the identity of Dr.
Bowles’s employer; the hourly rate paid to Dr. Bowles for his services; and any
previous payments made to Dr. Bowles by the law firm for Boeing or Boeing’s
insurance company (Ace American Insurance Company). The trial court
excluded evidence regarding payments made by other corporations to BRC in
the past.
[8] The trial court permitted the Browns to make an offer of proof regarding the
substance of testimony they sought to elicit from Dr. Bowles.
First, they asked him about a document relating to payments made by State Farm to BRC between 1990 and 1995. He stated he was not employed by BRC during those years and had no personal knowledge regarding that information. Second, they asked him about a document relating to payments made by State Farm to BRC between 1995 and 2000. Dr. Bowles testified that he had no personal knowledge of that information because, while he was a consultant with BRC during those years, he was not yet on the board of
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 4 of 8 directors, so had no means of knowing whether that information was true or not. Third, they asked him about a document relating to payments made by Ford Motor Company to BRC between 2000 and 2004. Dr. Bowles again testified that he had no personal knowledge of that information because, while he was employed by BRC during those years, he was not yet on the board of directors, so had no means of knowing whether that information was true or not.
During the offer of proof, the Browns were able to elicit certain information that
they were permitted to introduce during cross-examination—but they elected
not to do so. Specifically, Dr. Bowles testified that between 1995 and 2013, he
or BRC had been retained by “insurance companies, corporations and defense
lawyers” to give opinions “a couple of thousand times at least.” Tr. p. 401. He
also testified that 75% of his work is done on behalf of defendants, while only
25% is done on behalf of plaintiffs. Id. at 402.
[9] The Browns argue that the evidence regarding State Farm and Ford Motor
Company should have been admitted because it “show[s] the bias of Dr.
Bowles to give favorable defense testimony because of the large sums paid to
BRC for defense work.” Appellants’ Br. p. 9. We disagree. We find that this
evidence is wholly irrelevant to the issue of alleged bias on the part of Dr.
Bowles. Payments made to his employer—not to him or for work he had
done—over the course of nearly two decades by corporations that have
absolutely nothing to do with this case, and about which Dr. Bowles had zero
personal knowledge, in no way suggest that Dr. Bowles is a biased witness.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 03 2016, 8:47 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE David W. Stone IV Matthew J. Jankowski Stone Law Office & Legal Research Kopka Pinkus Dolin PC Anderson, Indiana Carmel, Indiana Michael W. Phelps Rom Byron Nunn Law Office Bloomington, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cynthia Brown and October 3, 2016 Gregory Brown, Court of Appeals Case No. Appellants-Plaintiffs, 49A04-1601-CT-177 Appeal from the Marion Superior v. Court The Honorable Heather Welch, The Boeing Company, Judge The Honorable Therese Hannah, Appellee-Defendant Judge Pro Tempore Trial Court Cause No. 49D01-1303-CT-8974
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 1 of 8 [1] Cynthia and Gregory Brown sued The Boeing Company (Boeing) for
negligence after Cynthia was injured in a car accident caused by a Boeing
employee. The Browns appeal the jury verdict entered in favor of Boeing,
raising two arguments on appeal: (1) the trial court erroneously excluded
evidence regarding alleged bias of a Boeing expert witness; and (2) the trial
court erroneously excluded evidence that Cynthia was no longer able to
continue working with special needs children. Finding no error, we affirm.
Facts [2] On April 27, 2012, Cynthia was driving a vehicle in Indianapolis and was
stopped at a traffic signal. Another vehicle, operated by Eric Haugse, struck the
rear of Cynthia’s vehicle. Cynthia incurred ongoing pain in her left shoulder,
left arm, lower back, right leg, and right ankle, as a result of the accident.
[3] On March 5, 2013, the Browns filed a complaint against Haugse and Boeing,
seeking to recover damages as a result of the accident. Haugse was a Boeing
employee, and Boeing eventually stipulated that Haugse was working in the
course and scope of his employment 1 and that Haugse’s negligence caused the
accident.
[4] A jury trial on the issue of damages took place from November 17 through 19,
2015. At some point during the trial, Boeing filed a motion in limine, seeking
1 After Boeing conceded that Haugse was working in the course and scope of his employment, Haugse was dismissed from the lawsuit.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 2 of 8 to prohibit the Browns from asking certain questions of Boeing’s expert witness,
Dr. Alfred Bowles. Boeing also sought to exclude a number of documents that
the Browns intended to submit into evidence. The trial court granted the
motion.
[5] Before the trial began, the Browns stipulated that Cynthia’s claim for lost
income had been withdrawn. At trial, however, the Browns attempted to
introduce evidence that Cynthia was no longer able to teach special needs
children as a result of her injuries. Boeing objected to the evidence, arguing
that it was confusing and irrelevant as her claim for lost income had been
withdrawn. The Browns argued that it was relevant because it showed the
emotional loss she sustained by no longer being able to do the work she loved.
The trial court sustained Boeing’s objection and excluded the evidence. On
November 19, 2015, the jury awarded Cynthia $25,000 and awarded Gregory
$0 for his claim of loss of consortium. The Browns now appeal.
Discussion and Decision [6] Both of the arguments raised by the Browns on appeal amount to a contention
that the trial court erroneously excluded evidence. Decisions to admit or
exclude evidence are within the sound discretion of the trial court, and we will
reverse only where the ruling is against the logic and effect of the facts and
circumstances before the court. Flores v. Gutierrez, 951 N.E.2d 632, 637 (Ind. Ct.
App. 2011).
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 3 of 8 I. Expert Witness [7] First, the Browns contend that the trial court erred by excluding testimony and
documents related to Dr. Bowles. The specific evidence sought to be admitted
was as follows:
Dr. Bowles works for a company called BRC and has been on BRC’s board of directors for approximately four years. During the years 1990-2005, State Farm insurance companies had paid BRC over $10 million and Ford Motor Company had paid BRC over $14 million for the services of BRC’s expert witnesses.
The trial court permitted evidence to be introduced regarding the identity of Dr.
Bowles’s employer; the hourly rate paid to Dr. Bowles for his services; and any
previous payments made to Dr. Bowles by the law firm for Boeing or Boeing’s
insurance company (Ace American Insurance Company). The trial court
excluded evidence regarding payments made by other corporations to BRC in
the past.
[8] The trial court permitted the Browns to make an offer of proof regarding the
substance of testimony they sought to elicit from Dr. Bowles.
First, they asked him about a document relating to payments made by State Farm to BRC between 1990 and 1995. He stated he was not employed by BRC during those years and had no personal knowledge regarding that information. Second, they asked him about a document relating to payments made by State Farm to BRC between 1995 and 2000. Dr. Bowles testified that he had no personal knowledge of that information because, while he was a consultant with BRC during those years, he was not yet on the board of
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 4 of 8 directors, so had no means of knowing whether that information was true or not. Third, they asked him about a document relating to payments made by Ford Motor Company to BRC between 2000 and 2004. Dr. Bowles again testified that he had no personal knowledge of that information because, while he was employed by BRC during those years, he was not yet on the board of directors, so had no means of knowing whether that information was true or not.
During the offer of proof, the Browns were able to elicit certain information that
they were permitted to introduce during cross-examination—but they elected
not to do so. Specifically, Dr. Bowles testified that between 1995 and 2013, he
or BRC had been retained by “insurance companies, corporations and defense
lawyers” to give opinions “a couple of thousand times at least.” Tr. p. 401. He
also testified that 75% of his work is done on behalf of defendants, while only
25% is done on behalf of plaintiffs. Id. at 402.
[9] The Browns argue that the evidence regarding State Farm and Ford Motor
Company should have been admitted because it “show[s] the bias of Dr.
Bowles to give favorable defense testimony because of the large sums paid to
BRC for defense work.” Appellants’ Br. p. 9. We disagree. We find that this
evidence is wholly irrelevant to the issue of alleged bias on the part of Dr.
Bowles. Payments made to his employer—not to him or for work he had
done—over the course of nearly two decades by corporations that have
absolutely nothing to do with this case, and about which Dr. Bowles had zero
personal knowledge, in no way suggest that Dr. Bowles is a biased witness.
The trial court properly permitted questions regarding the work done by Dr.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 5 of 8 Bowles (as opposed to his employer) in the past, Dr. Bowles’s compensation,
and the nature of Dr. Bowles’s work. The trial court also permitted questions
regarding the specific parties and law firms involved in this case. But there was
no reason to admit the overly broad, irrelevant evidence regarding past,
unrelated payments by unrelated parties having nothing to do with Dr. Bowles
or his work. Consequently, we decline to reverse on this basis.2
II. Cynthia’s Inability to Work [10] Next, the Browns argue that the trial court should not have excluded Cynthia’s
testimony regarding her inability to continue to teach children with special
needs as a result of her injuries. As noted above, Cynthia withdrew her claim
for lost income before the trial began. She argues that this evidence relates to a
loss of the enjoyment she derived from working with the children rather than
the lost income.
[11] Indiana Rule of Evidence 403 provides that a trial court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of,
among other things, confusing the issues or misleading the jury. In this case,
because Cynthia had withdrawn her claim for lost income, the trial court was
concerned that this testimony would confuse the jury: “once you put in
2 The Browns complain that the trial court was inconsistent by permitting Boeing to question the Browns’ expert witness, Dr. Gregori, regarding the ongoing relationship between the Browns’ attorneys’ law firm and Dr. Gregori, pursuant to which Dr. Gregori receives almost $40,000 annually. This evidence, however, relates directly to the expert witness, a law firm involved in the case, and compensation received directly by the expert witness. As such, it is easily distinguishable from the evidence at issue with respect to Dr. Bowles.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 6 of 8 evidence about her inability to work, then there’s no instruction saying not to
compensate her for it either. I’ll sustain the objection.” Tr. p. 243. We agree
with Boeing that the trial court reasonably concluded “that the jury would be
confused by the prospect that it was being encouraged to award damages for her
alleged loss of ability to function as a whole person for the loss of those jobs,
but was forbidden from awarding damages for the alleged loss of income that
necessarily accompanied the loss of those jobs.” Appellee’s Br. p. 39. While
we believe this to be a close call, we cannot say that the trial court erred by
excluding this evidence based on concerns about jury confusion.
[12] Moreover, testimony and argument were presented to the jury highlighting
Cynthia’s inability to work. Specifically, Cynthia testified that she is a
substitute teacher and that, following the accident, she was unable to return to
work full-time. Tr. p. 244. Following a sidebar, the trial court then
admonished the jury that Cynthia was not making a claim for lost wages.
Cynthia then testified that “I was talking about before when I used to do special
care children. I can’t accept that job any longer because I can’t—I can’t run
after them if they—if something happens. I can’t help lift them.” Id. at 247-48.
Then, in the final argument to the jury, the Browns’ attorney stated, “What’s
important is the way it’s affected her. The fact that she doesn’t get the joy of
working with disabled children.” Id. at 452. While Cynthia did not get to
testify fully regarding her inability to work and the loss of enjoyment she suffers
as a result, it is apparent that there was sufficient evidence and argument before
the jury to permit the jurors to consider the issue anyway. In any event,
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 7 of 8 therefore, even if there had been error in the exclusion of this evidence, it was
harmless.
[13] The judgment of the trial court is affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016 Page 8 of 8