Kip Seidenstucker v. Linda Ferguson (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2018
• Docket: 18A-CT-962
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 20 2018, 6:52 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael W. Phelps Charles S. Smith Phelps Legal Group Jon L. Bucher Bloomington, Indiana Schultz & Pogue, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kip Seidenstucker, November 20, 2018 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-962 v. Appeal from the Marion Superior Court Linda Ferguson, The Honorable Appellee-Defendant. Heather A. Welch, Judge Trial Court Cause No. 49D01-1601-CT-4

Kirsch, Judge.

[1] This appeal arises from a negligence claim that resulted from an automobile

accident that occurred between Kip Seidenstucker (“Seidenstucker”) and Linda

Ferguson (“Ferguson”). Ferguson admitted fault at trial, and the case

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 1 of 12 proceeded to a jury trial to determine damages. The jury returned a verdict in

favor of Seidenstucker in the amount of $34,105.09. He appeals and raises the

following restated issues for our review:

I. Whether the trial court abused its discretion when it denied, in part, Seidenstucker’s motion in limine regarding the expert witness’s medical license suspension; and

II. Whether the trial court abused its discretion when it denied Seidenstucker’s motion to correct error based on Seidenstucker’s contention that the jury verdict was not based on the evidence presented at trial.

[2] We affirm.

Facts and Procedural History [3] On August 30, 2014, Ferguson made a left turn from Kingsley Drive onto

Kessler Boulevard in Indianapolis, Indiana and collided with Seidenstucker’s

vehicle. Tr. Vol. II at 138-39. Shortly after the accident, Seidenstucker felt back

pain and reported it to the police officer who had responded to the scene. Id. at

226-27. Seidenstucker did not seek medical attention at that time and refused

an ambulance, but he proceeded to seek medical attention at the Indianapolis

Veterans Administration Hospital later that day when the pain worsened. Id. at

232. Seidenstucker went to the emergency room where x-rays were taken. Id.

at 161. For five or six weeks after the accident, Seidenstucker’s pain improved;

however, he reached for something one day, and his pain worsened. Id. at 162,

233; Appellant’s App. Vol. 2 at 25. Seidenstucker returned to the emergency

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 2 of 12 room complaining that his back pain was radiating. Tr. Vol. II at 162. The

emergency room staff diagnosed him with sciatica, and he received steroids,

muscle relaxants, and hydrocodone and was told that he might need physical

therapy. Id. Several weeks later, Seidenstucker went to his primary care

physician and complained of back pain, and his doctor ordered physical

therapy. Id. Seidenstucker did not complete his course of physical therapy. Id.

at 162-63, 169, 188-89.

[4] On December 21, 2015, Seidenstucker filed his complaint for negligence against

Ferguson. Ferguson admitted fault, and the case proceeded to a jury trial on

damages on February 13-14, 2018. On February 8, 2018, Seidenstucker filed a

motion in limine regarding the admission of testimony about a criminal

conviction and suspension of the medical license of his expert witness, Dr.

Robert Gregori (“Dr. Gregori”), a pain management physician. The trial court

granted in part and denied in part the motion, ruling that evidence of Dr.

Gregori’s criminal conviction was not admissible, but that evidence of the

suspension of his medical license was admissible. Appellant’s App. Vol. 2 at 12.

[5] At trial, Dr. Gregori testified that Seidenstucker had two issues that were

related to the accident: an aggravation of his degenerative disc condition and

lumbar strain with a sacroiliac (“SI”) injury on the right side. Id. at 28; Tr. Vol.

II at 173-78. Dr. Gregori opined that Seidenstucker would experience pain

indefinitely. Tr. Vol. II at 182. Dr. Gregori testified that Seidenstucker would

have benefited from more physical therapy and that patients who go through

their “prescribed physical therapy and all their scheduled visits tend to do

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 3 of 12 better” than those who do not. Tr. Vol. II at 169, 188. Dr. Gregori opined that

Seidenstucker may need some additional treatment for the SI joint. Id. at 179.

Specifically, Dr. Gregori stated that SI injections with steroid numbing

medicine would serve two benefits: (1) diagnostic, in that if it helped

significantly with Seidenstucker’s pain, it would identify the origin of the pain;

and (2) lasting relief from pain. Id. Dr. Gregori stated that most patients

benefit from these SI injections after doing it “for two or three months” and

then repeating it. Id.

[6] Dr. Gregori also testified that Seidenstucker might benefit from neural ablation

therapy, a course of treatment where the doctor uses radio frequency to burn

the nerves. Id. Dr. Gregori also testified that the neural ablation therapy could

provide longer term relief, but that there could be some regeneration of the

nerves. Id. at 180. Such regeneration could require a patient “to have [the

neural ablation therapy] repeated in a couple of years.” Id. Dr. Gregori also

testified that he believed that physical therapy could benefit Seidenstucker and

could help with both the SI joint and his low back pain. Id. Evidence was

presented that the cost of the two SI injections would range from $3,000.00 to

$4,000.00 each (for a total of $6,000.00 to $8,000.00) and each subsequent

neural ablation therapy would range from $4,000.00 to $6,000.00. Appellant’s

App. Vol. 2 at 28. The cost for additional physical therapy would be between

$1,200.00 to $1,600.00. Id. The trial court took judicial notice of the fact that

Seidenstucker’s life expectancy was an additional fifty years. Tr. Vol. III at 23.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 4 of 12 [7] Dr. Gregori’s medical license was suspended in 2007. Tr. Vol. II at 185. His

license was reinstated with probationary status in 2009, and the probationary

status was removed in 2012. Id. at 185, 186. At the time of trial, Dr. Gregori

was still unable to prescribe opiate medications due to his lack of a Drug

Enforcement Agency number. Id. at 184-85. Dr. Gregori testified that he

provides independent medical examinations as 95% of his business, with the

other 5% involving the treatment of patients. Id. at 184.

[8] The jury returned a verdict in favor of Seidenstucker for a total amount of

$34,105.09. Tr. Vol. III at 96. The trial court entered judgment consistent with

that verdict on February 21, 2018. Appellant’s App. Vol. 2 at 8-10. On March 12,

2018, Seidenstucker filed a motion to correct error, or in the alternative, a

motion for additur, contending that the jury’s “verdict did not take into account

the uncontroverted testimony of Dr. Gregori.” Id. at 13-17. The trial court

denied Seidenstucker’s motion to correct error. Seidenstucker now appeals.

Discussion and Decision

I. Motion in Limine [9] “The grant or denial of a motion in limine is within the sound discretion of the

trial court and is an adjunct of the power of trial courts to admit and exclude

evidence.” Terex-Telelect, Inc. v. Wade, 59 N.E.3d 298, 302 (Ind. Ct. App. 2016)

(citing Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999), trans. denied),

trans. denied. Therefore, when reviewing a grant or denial of a motion in limine,

we apply the standard of review for the admission of evidence, which is

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 5 of 12 whether the trial court abused its discretion. Id at 302-03. We will find that a

trial court has abused its discretion when its decision is clearly against the logic

and effect of the facts and circumstances before the court. Id. at 303 (citing

Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1047 (Ind. Ct. App. 2007),

trans. denied).

[10] Seidenstucker argues that the trial court abused its discretion when it denied the

part of his motion in limine regarding the suspension of Dr. Gregori’s medical

license. Seidenstucker asserts that the evidence of the doctor’s medical license

suspension should not have been admitted because it was not relevant, and it

was unfairly prejudicial. Seidenstucker further claims that it was error to admit

the evidence because it created a situation where he could only explain the

license suspension and rehabilitate his expert witness by delving into the

underlying facts of Dr. Gregori’s criminal conviction, which evidence is not

admissible.

[11] Prior to trial, Seidenstucker filed a motion in limine to exclude evidence of both

Dr. Gregori’s prior criminal conviction and suspension of his medical license.

After hearing argument, the trial court granted the motion in limine in part and

denied it in part, ruling that evidence of Dr. Gregori’s criminal conviction was

inadmissible, but that evidence of the suspension of his medical license could be

admitted. Appellant’s App. Vol. 2 at 12. The Indiana Medical Licensing Board

suspended Dr. Gregori’s license in 2007. Tr. Vol. II at 185. His license was

reinstated with probationary status in 2009, and the probationary status was

removed in 2012. Id. at 185, 186. At the time of trial, Dr. Gregori was still

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 6 of 12 unable to prescribe opiate medications due to his lack of a Drug Enforcement

Agency number. Id. at 184-85. Dr. Gregori testified that he provides

independent medical examinations as 95% of his business, with the other 5%

involving the treatment of patients. Id. at 184.

[12] A panel of this court has found comparable evidence admissible for the purpose

of impeaching an expert in Fridono v. Chuman, 747 N.E.2d 610 (Ind. Ct. App.

2001), trans. denied. In that case, Fridono filed a medical malpractice action

against Dr. Chuman alleging that he failed to comply with the applicable

standard of care in performing a cervical laminectomy. Id. at 610. At trial,

Fridono presented the testimony of an expert witness in support of his theory

that the surgery performed by Dr. Chuman was unnecessary. Id. at 615. On

cross examination, Dr. Chuman asked the expert if his privileges at a medical

school had ever been restricted. Id. Dr. Chuman used a letter agreement

between the expert and the medical school that imposed restrictions on his

privileges as a result of the peer review process as a means of impeaching the

expert and challenging his qualifications as an expert. Id. On appeal, this court

found that, while the discussions of the peer review committee were protected

by the applicable peer review statute, and were therefore not discoverable, the

final action taken as a result of that peer review process was discoverable and

admissible in judicial proceedings to impeach the expert witness. Id. at 620.

[13] Likewise, in Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008), trans. denied,

a defendant in a medical malpractice case was asked whether his conduct met

the applicable standard of care. Id. at 965. After the doctor said his treatment

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 7 of 12 did meet the applicable standard of care, plaintiff’s counsel questioned him

about his medical license suspension. Id. On appeal, a panel of this court

found that Davis could properly question Dr. Linton as to the standard of care

and his opinion as to whether he met that standard. Id. at 968-69. Because he

was properly questioned as to the standard of care, he was testifying as an

expert and could therefore be impeached with his licensure status. Id. at p. 969.

[14] Here, Dr. Gregori was testifying as an expert witness in support of

Seidenstucker’s case against Ferguson. Because he was testifying as an expert,

Dr. Gregori could, therefore, be impeached with the status of his medical

license and the fact that it had been previously been suspended.

[15] Seidenstucker argues that the only purpose for introducing the evidence about

Dr. Gregori’s medical license suspension was to impeach him regarding his

character for truthfulness. We disagree. The actual purpose of introducing

such evidence was to question Dr. Gregori’s credentials as an expert.

Seidenstucker presented Dr. Gregori’s testimony as expert testimony to

establish his medical damages as a result of the automobile accident with

Ferguson. Therefore, Dr. Gregori’s board certification was relevant to this case

and, likewise, so was his medical license history. Dr. Gregori provided

opinions about Seidenstucker’s condition and his treatment as an expert

witness. And it was Dr. Gregori’s expert opinions that were impeached by his

testimony regarding the suspension of his medical license.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 8 of 12 [16] Seidenstucker also claims that the evidence of Dr. Gregori’s suspension was an

attempt to admit evidence of Dr. Gregori’s criminal conviction for self-

prescribing opioid medication because the license suspension was based on that

conviction. Seidenstucker says that the only way of explaining the license

suspension was to reveal the underlying facts of his criminal conviction.

However, no actual evidence was introduced at trial that Dr. Gregori was

convicted for self-prescribing medication, or that his license suspension resulted

from such action. At no point during the questioning of Dr. Gregori was it

suggested that his license suspension was the result of a criminal conviction,

and Ferguson’s counsel did not introduce evidence that Dr. Gregori was

suspended for the abuse of drugs or a conviction related to drugs. Instead,

Ferguson’s counsel only asked limited questions about Dr. Gregori’s licensure

status. Therefore, we conclude that Ferguson was not attempting to introduce

evidence of a crime or evidence regarding Dr. Gregori’s character for

truthfulness, but was only cross-examining an expert witness about the history

of the credentials on which the witness relied for the authority to provide his

expert opinion. We conclude that the trial court did not abuse its discretion

when it denied Seidenstucker’s motion in limine regarding the admission of the

suspension of Dr. Gregori’s medical license.

II. Motion to Correct Error [17] Generally, a trial court’s ruling on a motion to correct error is reviewed for an

abuse of discretion. Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384

(Ind. Ct. App. 2017). An abuse of discretion occurs when the trial court’s

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 9 of 12 decision is against the logic and effect of the facts and circumstances before the

court or if the court has misinterpreted the law. Id.

[18] Seidenstucker argues that the trial court erred in denying his motion to correct

error, in which he requested additur or a new trial. He contends that, based on

the totality of the evidence presented at trial, the jury’s verdict was inadequate.

Specifically, Seidenstucker asserts that the testimony of Dr. Gregori established

that Seidenstucker suffered a permanent SI injury and that he would experience

pain indefinitely. Seidenstucker alleges that, because of this injury, he will need

SI injections followed by neural ablation therapy, which could be required

every one to two years for the rest of his life. Based on the cost of the SI

injection, the neural ablation therapy, and future physical therapy,

Seidenstucker maintains that the cost of his future treatment is likely between

$210,200.00 to $300,400.00, which does not include his past medical bills of

$8,105.09 or any pain and suffering. Seidenstucker claims that, therefore, the

jury’s verdict was inadequate and not supported by the evidence presented at

trial.

[19] When reviewing a jury’s damage award that the appellant claims is inadequate,

we apply a strict standard. Liter’s of Ind., Inc. v. Bennett, 51 N.E.3d 285, 299

(Ind. Ct. App. 2016), trans. denied. “Specifically, we ‘consider only the evidence

that supports the award together with the reasonable inferences therefrom.’” Id.

If there is any evidence to support the amount of the award, even if it is

conflicting, this court will not reverse. Id. “This standard reflects the premise

that damages ‘are particularly a jury determination.’” Id. (quoting Sears Roebuck

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 10 of 12 & Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001)). We, therefore, do not

substitute our idea of a proper damage award for that of the jury. Id. (citing

Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied)).

“Because appellate courts are unable ‘to actually look into the minds of the

jurors, . . . we will not reverse if the award falls within the bounds of the

evidence.’” Id. (quoting Sears Roebuck, 742 N.E.2d at 462).

[20] Based on our review of the record, we conclude that the jury’s damage award

was supported by the evidence presented. Evidence was presented that, at the

time of the trial, Seidenstucker had incurred past medical expenses in the

amount of $8,105.09. Tr. Vol. III at 23-24. Dr. Gregori testified that

Seidenstucker would benefit from further physical therapy and that the cost for

additional physical therapy would be between $1,200.00 and $1,600.00.

Appellant’s App. Vol. 2 at 28. Dr. Gregori also testified that Seidenstucker would

likely need two SI injections to assist with his pain and that the cost of these

two SI injections would range between $3,000.00 and $4,000.00 each for a total

of between $6,000.00 and $8,000.00. Id. Dr. Gregori testified that, after the SI

injections, Seidenstucker could receive neural ablation therapy, which could

provide longer term relief, but that there could be some regeneration of the

nerves that could cause a patient to “have to have [the neural ablation therapy]

repeated in a couple of years.” Tr. Vol. II at 180. Evidence was presented that

each subsequent neural ablation therapy would range from $4,000.00 to

$6,000.00. Appellant’s App. Vol. 2 at 28. Although Dr. Gregori testified that

Seidenstucker may need subsequent rounds of neural ablation therapy

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 11 of 12 indefinitely, his testimony was that it was only a possibility and not a definite

requirement. Tr. Vol. II at 180.

[21] Additionally, Seidenstucker requested damages for pain and suffering.

Although Dr. Gregori opined that Seidenstucker would experience pain

indefinitely, evidence was also presented that he was able to work full time as

an occupational therapist, was able to go to the gym four or five days a week,

and “[p]hysically . . . was able to do most things”. Tr. Vol. II at 182, 236, 240;

Tr. Vol. III at 17-18. Assessing the value of damages for pain and suffering,

because it involves the weighing of evidence and credibility of witnesses, is

particularly within the jury’s discretion. Gary Cmty. Sch. Corp. v. Lardydell, 8

N.E.3d 241, 250 (Ind. Ct. App. 2014), trans. denied. The jury is in the best

position to award damages for pain and suffering. Id. We, therefore, conclude

that the jury’s award of damages was within the evidence presented at trial, and

the trial court did not abuse its discretion when it denied Seidenstucker’s

motion to correct error.

[22] Affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018 Page 12 of 12