Kenitta K. Chandler v. Rhonda Bowser (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 7, 2018
• Docket: 49A02-1706-CT-1346
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 07 2018, 8:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Sandy L. Bryant Larry A. Yeager Indianapolis, Indiana State Farm Litigation Counsel Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenitta K. Chandler, May 7, 2018 Appellant-Plaintiff, Court of Appeals Case No. 49A02-1706-CT-1346 v. Appeal from the Marion Superior Court Rhonda Bowser, The Honorable John F. Hanley, Appellee-Defendant. Judge Trial Court Cause No. 49D11-1412-CT-39762

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 1 of 10 Case Summary and Issues [1] Following a jury trial, Rhonda Bowser was ordered to pay $17,630.31 in

damages to Kenitta Chandler for injuries arising out of a motor vehicle

accident. The trial court denied Chandler’s motion to correct error requesting

additur. Chandler appeals, raising the sole issue of whether the trial court erred

as a matter of law in denying her motion. Bowser cross-appeals and raises one

issue for review: whether Chandler waived her appeal for failing to provide this

court with the entire transcript of the trial as required by Indiana Appellate Rule

9(F)(5). Concluding there was no error, we affirm the judgment of the trial

court.

Facts and Procedural History [2] On December 9, 2012, Bowser and Chandler were involved in a motor vehicle

accident in which Bowser struck the back of Chandler’s car. Chandler visited

the emergency room the day after the accident, and again on January 17, 2013.

On her first visit to the emergency room, Chandler complained of low back

pain and left side neck pain but had a full range of motion in her neck, hips,

knees, and ankles, and both her upper and lower extremities exhibited good

strength. Her second visit was prompted by a spasm in her neck causing pain

and discomfort.

[3] Chandler was then seen on three different occasions by Dr. Robert Cater, an

internist. At her first visit on January 28, 2013, Dr. Cater found her to have

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 2 of 10 significant neck spasm, a limited range of motion in her neck, pain in both

shoulders and elbows, pain in her left knee, dizziness, and a palpable spasm in

the muscles of her lower back, all of which Chandler said related to her

accident. Dr. Cater did not review Chandler’s medical records from before the

accident, but she reported no pre-existing history of injuries or ongoing pain,

and Dr. Cater testified that the injuries he treated Chandler for “were directly

related to her motor vehicle accident . . . .” Transcript, Volume II at 12. “If the

trauma had not occurred, she would not have had symptoms, in my opinion.”

Id. at 15. Dr. Cater recommended Chandler continue taking the pain

medication prescribed in the emergency room and begin physical therapy.

Chandler attended physical therapy from February 5, 2013 through April 9,

2013. Dr. Cater noted “the subsequent physical therapy notes . . . showed

improvement to definitely require physical therapy to maintain her normal

function.” Id. at 20.

[4] When Chandler returned to Dr. Cater in March, she still had daily pain in her

shoulders and lower back but had an improved range of motion in her neck.

And when she returned a month after that, her neck and knee pain had

resolved, but she still had reduced mobility in her lower back and persistent

pain in her back and shoulder. Dr. Cater intended for Chandler to continue

with physical therapy, but a referral was not sent until August. Once the

referral was made, Chandler began physical therapy again on August 29, 2013,

continuing through November 2013. Chandler did not contact Dr. Cater’s

office between April and August regarding the lost referral.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 3 of 10 [5] In February 2014, Chandler began treating with Dr. Jonathan Shook, an

orthopedic surgeon. He assessed Chandler’s most outstanding issue as

persistent shoulder pain stemming from the accident and recommended

additional physical therapy. Chandler began physical therapy again in June

2014, attending regularly through September 2014.

[6] Chandler filed a complaint for damages against Bowser on December 5, 2014,

alleging Bowser was negligent in operating her motor vehicle and seeking

damages for her personal injuries. Bowser admitted liability but challenged the

nature, cause, and extent of Chandler’s injuries and damages. At a jury trial in

April 2017, Chandler introduced into evidence a medical bill summary

indicating total medical expenses of $24,857.22, incurred between December

10, 2012, and September 30, 2014. These expenses included her two

emergency room visits, treatment with both Dr. Cater and Dr. Shook,

medications, and physical therapy from February 2013 to April 2013, from

August 2013 to November 2013, and from June 2014 to September 2014.

[7] Although Dr. Cater testified that Chandler’s medical treatments all stemmed

from the accident, he conceded that back pain, neck pain, and spasms can be

caused by things other than motor vehicle accidents, such as sleeping wrong, for

instance. He also noted that the notes from Chandler’s first emergency room

visit indicate she had low back and neck pain but a full range of motion and

good strength in her upper and lower extremities. Dr. Cater further testified

that there was evidence Chandler had degenerative changes between the fifth

and sixth vertebrae in her neck. Finally, Dr. Cater acknowledged that his

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 4 of 10 opinions about whether the accident caused Chandler’s injuries and pain were

based primarily upon the three visits she made to him, but the subsequent visits

with Dr. Shook and physical therapists “were further indication that she

continued to have pain and symptoms.” Id. at 63.

[8] Ultimately, Dr. Cater testified that the medical bill summary reflected “the

involvement of multiple medical professionals, all of whom felt that the patient

had significant pain and disability[,]” and therefore the treatment was necessary

based on her injuries. Id. at 27. Based on his experience and review of

Chandler’s medical records, Dr. Cater concluded the charges in the medical bill

summary “are reasonable charges considering the course of her illness and the

length.” Id.

[9] Apparently,1 Chandler argued for damages in the amount of $125,000 to

account for her medical bills and pain and suffering. Bowser posited that

Chandler could be entitled to as little as $0 damages, given she failed to seek

medical care on the date of the accident, to as much as $11,331.49, to account

for her medical care through her first round of physical therapy. The jury

awarded Chandler damages in the amount of $17,630.31. Chandler

subsequently filed a motion to correct error, requesting additur pursuant to

Indiana Trial Rule 59(J)(5) to award her a judgment in the amount of her

1 As will be discussed below, Chandler requested that only Dr. Cater’s testimony be transcribed. Although Bowser requested additional parts of the transcript be prepared, neither party requested the entire trial be transcribed, and the record therefore includes only Dr. Cater’s testimony and Bowser’s closing argument.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 5 of 10 medical bills. The court denied Chandler’s motion to correct error. Chandler

now appeals the denial of this motion to correct error.

Discussion and Decision I. Waiver [10] We begin by addressing Bowser’s waiver argument. Bowser argues that

Chandler waived her argument regarding the sufficiency of the verdict by not

requesting and providing the entire transcript of the two-day jury trial. Indiana

Appellate Rule 9(F)(5) states that a party’s Notice of Appeal shall include

[a] designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.

(Emphasis added.) Although a failure to include a transcript is “not fatal to the

appeal, failure to include a transcript works a waiver of any specifications of

error which depend upon the evidence.” Lifeline Youth & Family Servs., Inc., v.

Installed Bldg. Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (quoting

In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).

[11] Chandler has chosen to rest her appeal on the testimony of Dr. Cater alone,

requesting only the “[t]rial testimony of Dr. Robert Cater and Stipulated

Medical Bill Exhibit of jury trial conducted on April 18 & 19, 2017” be

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 6 of 10 prepared. Notice of Appeal at 2. In her reply brief, she recommits to that

decision, stating she need not provide a transcript of the entire trial as she has

provided the “only evidence as to the amounts of medical specials” which is all

that is needed to “fairly present and decide the issue of additur.” Appellant’s

Reply Brief at 5-6. Chandler’s argument on appeal, however, is that the jury’s

verdict is “contrary to the evidence.” Pursuant to Appellate Rule 9(F)(5), she

should have requested a transcript of all the evidence. The failure to comply

with Appellate Rule 9(F)(5) could therefore be found to constitute a waiver.

Waiver notwithstanding, we are nonetheless inclined to address the merits of

Chandler’s argument. However, she is bound by the consequences of that

choice. In other words, we can only decide the issue on the record presented to

us. “It is a cardinal rule of appellate review that the appellant bears the burden

of showing reversible error by the record, as all presumptions are in favor of the

. . . judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468-69 (Ind.

Ct. App. 2006).

II. Motion to Correct Error A. Standard of Review [12] On appeal, we review a trial court’s rulings on motions to correct error for

abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048,

1055 (Ind. 2003). We will reverse only where “the trial court’s judgment is

clearly against the logic and effect of the facts and circumstances before it or

where the trial court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d

758, 761 (Ind. 2013). Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 7 of 10 [13] Pursuant to Indiana Trial Rule 59(J)(5), if the trial court determines on a

motion to correct error that prejudicial or harmful error has occurred, it “shall

take such action as will cure the error,” including, “[i]n the case of excessive or

inadequate damages, enter[ing] final judgment on the evidence for the amount

of the proper damages, grant[ing] a new trial, or grant[ing] a new trial subject to

additur or remittitur.” “Trial courts must afford juries great latitude in making

damage award determinations.” Childress v. Buckler, 779 N.E.2d 546, 550 (Ind.

Ct. App. 2002). Only the evidence favorable to the award is considered and the

court “must not reverse a damage award so long as the damages fall within the

scope of the evidence.” Palmer v. Comprehensive Neurologic Services, P.C., 864

N.E.2d 1093, 1103 (Ind. Ct. App. 2007), trans. denied. A verdict will be reversed

only if the amount of damages awarded indicates “the jury was motivated by

prejudice, passion, partiality, corruption, or consideration of some improper

element.” Id.

B. Award of Damages [14] Chandler argues that her medical bill summary and Dr. Cater’s testimony

established her undisputed medical bills are $24,877.22 and that her damage

award should have been at least that amount. To recover damages for medical

expenses, the expenses must be both reasonable and necessary. Sibbing v. Cave,

922 N.E.2d 594, 600 (Ind. 2010). Reasonable and necessary “means (1) that

the amount of medical expense claimed must be reasonable, [and] (2) that the

nature and extent of the treatment claimed must be necessary in the sense that it

proximately resulted from the wrongful conduct of another . . . .” Id. at 604.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 8 of 10 [15] Chandler is correct that Indiana Evidence Rule 413 provides that statements of

charges for health care expenses “are prima facie evidence that the charges are

reasonable.” (Emphasis added.) Despite this, Chandler still has the burden of

proving that “the treatment claimed [was] necessary in the sense that it

proximately resulted from the wrongful conduct . . . .” Sibbing, 922 N.E.2d at

604.2 Although Dr. Cater did testify that he found all of the charges in the

medical bills summary to be reasonable and necessary, “[d]amages are

particularly a jury determination.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d

453, 462 (Ind. 2001). “[T]he jury is free to either accept or reject the opinion of

the expert witness; the finder of fact may supplant its own conclusion for that of

the expert.” Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. Ct. App. 2004) (noting

that this rule means the defendant in a personal injury case can challenge the

opinion of the plaintiff’s expert regarding causation: “Doctors and other expert

witnesses are not oracles whose opinions, once stated, cannot be questioned or

refuted . . . .”).

[16] Considering the breaks in Chandler’s physical therapy, the testimony of Dr.

Cater that Chandler had degenerative changes in her neck, his testimony that

spasms can be caused by factors other than a motor vehicle accident, and the

2 The medical bill summary was admitted into evidence by stipulation of the parties. Chandler contends Bowser’s “unqualified stipulation” of the summary into evidence means Bowser could not then, nor can she now, challenge the reasonableness and necessity of the medical bills summarized therein. Appellant’s Reply Brief at 8. Although the medical bill summary provides some evidence that the charges therein were reasonable, Bowser rigorously contested whether the charges were necessary during her cross-examination of Dr. Cater. Contrary to Chandler’s assertion, Bowser did not waive her right to challenge the necessity of the charges by her stipulation that the summary represented medical bills Chandler had incurred.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 9 of 10 fact that the medical bill summary shows bills for over a year after Dr. Cater

last treated Chandler, it was within the scope of the evidence adduced from Dr.

Cater for the jury to reject the necessity of some of the stipulated medical costs.

Additionally, despite Chandler’s assertion that the jury must have considered

some improper element, there is no indication in the record provided by

Chandler that “the jury was motivated by prejudice, passion, partiality,

corruption, or consideration of some improper element.” Palmer, 864 N.E.2d at

1103. Finally, the trial court heard all of the evidence from this two-day trial

and determined that no prejudicial or harmful error was committed in the

award of damages. Given our standard of review and the state of the record on

appeal, Chandler has not shown that the trial court abused its discretion in

denying her motion to correct error.

Conclusion [17] Concluding that the trial court did not abuse its discretion in denying

Chandler’s motion to correct error, we affirm.

[18] Affirmed.

Crone, J., and Bradford, J., concur.

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