IN THE
Court of Appeals of Indiana FILED Rick Lawson Sep 19 2025, 8:53 am
and MGM Automotive Repair, Inc., CLERK Indiana Supreme Court Court of Appeals Appellants-Defendants, and Tax Court
v.
Kasia M. McClendon-Campbell, as guardian of Cecil McClendon, Jr., Appellee-Plaintiff.
September 19, 2025
Court of Appeals Case No. 25A-CT-182
Appeal from the Lake Superior Court
The Honorable Calvin D. Hawkins, Judge
Trial Court Cause No. 45D02-2105-CT-486
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 1 of 24 Opinion by Senior Judge Najam Judges Vaidik and Mathias concur.
Najam, Senior Judge.
Statement of the Case [1] Rick Lawson rear-ended Cecil McClendon, Jr. at a stoplight. McClendon
sustained a concussion upon impact, and he developed symptoms of dementia
soon after the accident. His quality of life rapidly declined as his symptoms
worsened, and his family placed him in a nursing home less than a year after
the accident.
[2] McClendon, through his guardian and daughter Kasia M. McClendon- 1 Campbell, sued Lawson and Lawson’s employer, MGM Automotive Repair,
Inc., for negligence. Lawson and MGM conceded they were liable for any
harm to McClendon that resulted from the accident. But they claimed that
McClendon’s cognitive decline was caused by Alzheimer’s dementia, not the
collision. The jury determined Lawson and MGM owed McClendon $3.7
million. Lawson and MGM filed two post-trial motions: (1) a motion for
1 In the Notice of Appeal, Lawson and MGM stated her last name was McClendon. But we use the name McClendon-Campbell provided when she testified at trial.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 2 of 24 judgment notwithstanding the verdict; and (2) a motion for remittitur. The trial
court denied both motions after a hearing.
[3] Lawson and MGM appeal, arguing the trial court erred in denying their post-
judgment motions. Concluding that the trial court did not err, we affirm.
Issues [4] Lawson and MGM raise three issues, which we consolidate and restate as:
I. Whether the trial court erred in denying their motion for judgment notwithstanding the verdict.
II. Whether the trial court abused its discretion in denying their motion for remittitur.
Facts and Procedural History [5] In August 2019, Cecil McClendon, Jr. (“McClendon”) was seventy-seven years
old. He was a retired high school science teacher and guidance counselor. In
addition, McClendon had earned a master’s degree and was a retired Air Force
Captain. He managed his family’s finances, golfed or walked every day, and
took turns with his wife, Berneda McClendon (“Berneda”), in preparing dinner.
McClendon had close relationships with his children and grandchildren. He
had high blood pressure and high cholesterol, but he displayed no symptoms of
cognitive decline. To the contrary, four months before August 2019,
McClendon’s treating nurse practitioner, Tonya Harvey, administered “an
extensive cognitive exam” to McClendon. Tr. Vol. 2, p. 8. He passed.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 3 of 24 [6] On August 21, 2019, McClendon was driving his Toyota Corolla in
Merrillville, Indiana. He was struck from behind by Rick Lawson, who was
driving a Ford Crown Victoria. Lawson was test-driving the vehicle as part of
his duties for his employer, MGM Automotive Repair, Inc. (“MGM”).
[7] After the accident, McClendon told Lawson that he was dizzy. McClendon
also told a police officer that he felt dizzy and had head pain. He drove home
from the accident scene, but Berneda insisted that he go to the emergency room
because he did not seem like himself. McClendon told hospital staff that his
head had struck the headrest. A doctor diagnosed him with neck strain and a
concussion. A concussion is a form of traumatic brain injury. An expert later
explained that McClendon’s head had initially dipped forward after the impact
and was then struck by the headrest as the seat “[caught] up to him.” Tr. Vol.
3, p. 137.
[8] Lawson later stated he had been going seven to ten miles per hour when he
struck McClendon. McClendon’s vehicle was damaged. The mechanic who
repaired McClendon’s Corolla later said that the metal impact bar in the rear of
the car was “destroyed” and had to be replaced. Id. at 13.
[9] McClendon’s daughter, Kasia M. McClendon-Campbell (“McClendon-
Campbell”), and Berneda both noticed changes in McClendon’s behavior after
the accident. Tr. Vol. 1, p. 151 (McClendon-Campbell described the changes as
“immediate”); Tr. Vol. 3, p. 64 (Berneda said he began a “quick” decline). He
would go to the store with a shopping list, but rather than buying what was on
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 4 of 24 the list, he would return home with cookies and candy. That was the first sign
of his “[c]onfusion[,]” but it got worse. Tr. Vol. 1, p. 152. By September 2019,
Berneda, who in the past had always preferred that McClendon drive when
they went out, began driving him to some of his medical appointments because
he could not remember directions. In addition, within a few weeks of the
collision, she had to hang a yellow wreath on their front door because the
houses in their neighborhood all looked alike, and he could no longer tell them
apart.
[10] McClendon’s personality also changed. He swore at Berneda, which he had
not done in the past. On one occasion, McClendon demanded that she give
him the car keys, and she complied because she was afraid. He kept driving
against his family’s wishes. McClendon also stopped cooking meals and lost
interest in foods that he had previously enjoyed.
[11] By October and November 2019, McClendon had trouble changing the
channels on his television and using his cell phone, and he blamed the devices.
When the cable went out in McClendon’s house in November or December
2019, he used scissors to cut the power cord to the television.
[12] Also in November or December, McClendon began wearing the same clothes
for several days in a row. When Berneda asked him to change, he put his dirty
clothes in the trash. In addition, with McClendon-Campbell’s help, Berneda
took over managing the family finances, over McClendon’s strong objections.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 5 of 24 She learned he had been throwing bills in the trash rather than organizing and
paying them.
[13] During this period, McClendon bought a snow blower, but he thought it was
broken because he could not operate it or read the manual. He intended to take
the snow blower back to the store, which was fifteen minutes from his house by
car. Instead, McClendon ended up in northwest Ohio, four hours away, where
he was taken into police custody. His family members had to go get him.
[14] McClendon stopped using toilet paper, preferring to use paper towels instead.
In January or February 2020, McClendon stopped flushing the toilet. During
this period of time, Berneda encountered McClendon brandishing an unloaded
handgun in the house.
[15] On February 18, 2020, a police officer encountered McClendon driving the
wrong way on an Indiana state highway. McClendon said he was going to
Crown Point, but he was driving in the wrong direction. When an officer
explained McClendon’s mistake, he turned his car around and began driving
the wrong way a second time. The officer stopped McClendon and removed
him from his car. McClendon appeared to be confused, became hostile, and
said he was being harassed. Another officer contacted McClendon-Campbell,
who advised them to take him to a hospital.
[16] After that incident, McClendon’s family put him in a nursing home. In the
nursing home, treatment providers determined McClendon’s statements about
his life and health were untrustworthy due to his cognitive impairments. He
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 6 of 24 later had to be moved to a different nursing home because he became verbally
and physically abusive to other residents and to employees. Berneda and
McClendon-Campbell stopped taking McClendon to family gatherings because
they believed he posed a threat to others’ safety.
[17] McClendon visited several health care providers during the post-accident
period. Five days after the collision, he saw Nurse Practitioner Harvey.
McClendon reported pain, dizziness, balance issues, and loss of coordination.
She noted that he appeared to be confused and could not understand complex
concepts, which was a significant change from his mental state during prior
appointments. Nurse Practitioner Harvey saw McClendon again in September
and October of 2019, and he was even more confused, getting progressively
worse. Berneda told her that McClendon continued to drive, but he often got
lost.
[18] McClendon also saw a neurologist, Dr. Aisha Shareef, in August 2019. He
reported headaches and dizziness. During subsequent appointments,
McClendon continued to report dizziness. On October 16, he told Dr.
Shareef’s nurse practitioner that he was having “problems with cognition.” Tr.
Vol. 3, p. 40. Over the next four months, Dr. Shareef noted that McClendon’s
mental capabilities declined by a “concerning” degree. Id. at 37. She saw
McClendon on February 18, when he was hospitalized after the incident where
he twice drove the wrong way on a highway. Dr. Shareef expressed concern
that he may have developed dementia.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 7 of 24 [19] McClendon-Campbell became McClendon’s guardian. In May 2022, she sued
Lawson and MGM on behalf of McClendon in connection with the auto
accident. McClendon-Campbell alleged that Lawson was negligent. She also
alleged that MGM was liable for Lawson’s negligence under the doctrine of
respondeat superior and had negligently hired and trained Lawson.
[20] The trial court presided over a four-day jury trial. The parties stipulated to the
following: (1) Lawson’s car struck McClendon’s car; (2) Lawson was acting
within the scope of his employment for MGM; (3) MGM and Lawson were
liable for the collision; (4) McClendon was not at fault; and (5) “Plaintiff, his
Guardian, or his Family have incurred medical bills to date of $426,017.94.”
Appellants’ App. Vol. 2, p. 38. There was no dispute that McClendon
experienced a concussion from the accident.
2 [21] Nurse Practitioner Harvey and Dr. Shareef testified as discussed above. In
addition, McClendon presented testimony by Dr. Polly Westcott, a
neuropsychologist. Dr. Westcott performed a forensic review of McClendon’s
medical records and the police accident report. She also interviewed his family
members.
[22] Dr. Westcott explained that McClendon developed rapid-onset dementia after
the accident, and “it is more probable than not” that the dementia was caused
by the traumatic brain injury. Tr. Ex. Vol. 11, p. 99. She stated that a
2 Dr. Shareef testified via a prerecorded deposition.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 8 of 24 traumatic brain injury can lead to dementia even when the patient does not lose
consciousness as a result of the underlying accident, or when the brain injury
appears to be mild in nature. Dr. Westcott ruled out Alzheimer’s dementia as a
diagnosis because one of the key components of that form of dementia is “a
slow decline,” which was not apparent before the accident. Tr. Vol. 2, p. 69.
She also ruled out other potential causes, including that: (1) McClendon had
played football as a young man; and (2) he had experienced an unreported
stroke sometime before the accident. Dr. Westcott added that McClendon’s
age rendered him more susceptible to a traumatic brain injury resulting in
dementia.
[23] By contrast, Lawson and MGMs’ experts stated that the concussion did not
cause McClendon’s cognitive decline because he made a full recovery. They
instead attributed his cognitive decline to the stroke or to an ongoing
degenerative process of atrophy in his brain cells, which caused him to develop
Alzheimer’s dementia. They pointed out that a doctor had diagnosed
McClendon with Alzheimer’s dementia in 2020.
[24] McClendon-Campbell asked the jury to calculate damages of between eight
million dollars and eleven million dollars to compensate McClendon. Lawson
and MGM suggested that “$40,000 to $60,000” was more appropriate. Tr. Vol.
3, p. 192. The jury determined Lawson and MGM owed McClendon $3.7
million, and the trial court entered judgment on the jury’s verdict.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 9 of 24 [25] Lawson and MGM filed a motion for judgment notwithstanding the verdict,
asking the trial court to vacate the judgment and either: (1) enter judgment in
their favor; or (2) order a new trial. They also filed a motion for remittitur,
claiming the damages award was unsupported by the evidence. The trial court
denied both motions after a hearing. This appeal followed.
Discussion and Decision I. Motion for Judgment Notwithstanding the Verdict [26] Lawson and MGM claim the trial court erred in refusing to set aside its entry of
judgment, arguing there is insufficient evidence to support several elements of 3 McClendon-Campbell’s negligence claim. They filed their motion under
Indiana Trial Rules 50(A) and 59(J)(7). We review motions under each of
those rules under separate standards of review.
[27] Rule 50(A) provides, in relevant part:
Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.
3 McClendon-Campbell argues Lawson and MGM have procedurally defaulted appellate review of this claim because they conceded liability early in the case and were thus barred from later contesting causation. Having reviewed the parties’ post-trial pleadings and the transcript of the trial and the hearing on post-trial motions, we reject McClendon-Campbell’s claim of procedural default and turn to the merits.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 10 of 24 [28] A party may move for judgment notwithstanding the verdict at several different
points during a trial and subsequent stages, including (as happened in the
current case) in a post-judgment motion to correct error. Ind. Tr. R. 50(A). We
review a trial court’s decision on a Rule 50(A) motion de novo. Cosme v. Clark,
232 N.E.3d 1141, 1152 (Ind. 2024). A trial court should not grant relief under
this motion unless “‘there is a total absence of evidence or legitimate inference
in favor of the plaintiff upon an essential issue; or where the evidence is without 4 conflict and is susceptible of but one inference’ for the movant.” Id. at 1150
(quoting Whitaker v. Borntrager, 122 N.E.2d 734, 734-35 (Ind. 1954)). We may
not reweigh the evidence. Id. at 1152.
[29] Indiana Trial Rule 59 governs motions to correct error, and subsection (J)(7) of
that rule provides, in relevant part:
In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence[.]
4 In Cosme, the movant filed a Rule 50(A) motion after the plaintiff rested. In the current case, Lawson and MGM filed their motion after the entry of judgment. We conclude that de novo review remains correct when a party files a Rule 50(A) motion post-judgment. See Dughaish ex rel Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind. Ct. App. 2000) (applying de novo standard of review to a Rule 50(A) motion filed after the jury returned its verdict), trans. denied.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 11 of 24 [30] When a party requests relief under Rule 59(J)(7), the trial court acts as a
“thirteenth juror” and may weigh evidence and judge witness credibility.
Dughaish, 729 N.E.2d at 169. “We will reverse only for an abuse of discretion.”
Id. at 167. “An abuse of discretion will be found when the trial court’s action is
against the logic and effect of the facts and circumstances before it and the
inferences which may be drawn therefrom.” Id. A trial court does not commit
reversible error if it denies a new trial where the evidence is conflicting. Id.
When reviewing a trial court’s decision on a Trial Rule 59(J)(7) motion, “[i]t is
improper for Indiana appellate courts to invade the province of the jury in
weighing [conflicting] evidence.” Id. at 170.
[31] The elements of negligence are as follows: (1) the existence of a duty on the
part of Lawson to conform his conduct to a standard of care arising from his
relationship with McClendon; (2) Lawson’s failure to conform his conduct to
the requisite standard of care; and (3) an injury to McClendon proximately
caused by Lawson’s breach. Mayfield v. The Levy Co., 833 N.E.2d 501, 505 (Ind.
Ct. App. 2005).
[32] Lawson and MGM conceded at trial that Lawson breached a duty to
McClendon and caused him to experience some damages, but they claim the
accident did not proximately cause McClendon’s cognitive decline. In Indiana,
the proximate cause element involves two inquiries: “whether the injury would
not have occurred but for the defendant’s negligence; and (2) whether the
plaintiff’s injury was ‘reasonably foreseeable as the natural and probable
consequence of the act or omission.’” Singh v. Lyday, 889 N.E.2d 342, 357 (Ind.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 12 of 24 Ct. App. 2008) (quoting City of Gary ex rel. King v. Smith & Wesson Corp., 801
N.E.2d 1222, 1244 (Ind. 2003)), trans. denied. Lawson and MGM challenge
both aspects of proximate cause, and we address each in turn.
A. Reasonable Foreseeability
[33] The reasonable foreseeability element of proximate cause, also known as the
“scope of liability doctrine,” asks whether the plaintiff’s injury was a natural
and probable consequence of the defendant’s conduct, which in light of the
circumstances, should have been foreseen or anticipated. Kovach v. Caligor
Midwest, 913 N.E.2d 193, 197-98 (Ind. 2009). A defendant cannot be held liable
if the ultimate injury was not reasonably foreseeable as a consequence of the
defendant’s act or omission. Id.
[34] Relying heavily on Kovach, Lawson and MGM claim the “ultimate injury”
here—McClendon’s rapid-onset dementia—must have been specifically
foreseeable to Lawson at the time of the accident. Reply Br. p. 4. But that
reliance is misplaced. Although the Kovach court discusses both elements of
proximate causation, its decision on the merits of the parties’ claims was based
on but-for causation, not foreseeability. 913 N.E.2d at 199 (victim’s death from
overdose would not have occurred but for nurse’s administration of excessive
amount of medication to victim; lack of measurement marks on medicine cup
was irrelevant). Instead, it has long been established that the concept of
reasonable foreseeability does not mean a tortfeasor must have anticipated a
specific and exact outcome. “The determination of what is reasonably
foreseeable is not judged by the subjective opinions of those involved, but is Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 13 of 24 based upon the standard of due care in avoiding a result which might
reasonably have been anticipated in the ordinary course of men.” Harper v.
Guarantee Auto Stores, 533 N.E.2d 1258, 1264 (Ind. Ct. App. 1989), trans. denied.
“If the actor’s conduct is a substantial factor in bringing about harm to another,
the fact that the actor neither foresaw nor should have foreseen [sic] the extent
of harm or the manner in which it occurred does not preclude liability.” Id.
[35] The following authorities recognize the principles discussed in Harper:
Courts assume a radical distinction between the nature of a harm and its extent. The foreseeability or risk rule holds the defendant subject to liability if he could reasonably foresee the nature of the harm done, even if the total amount of harm turned out to be quite unforeseeably large.
Dan B. Dobbs, Paul T. Hayden, Ellen M. Bublick, The Law of Torts Vol I, p.
711 (2d ed. 2011) (emphases in original omitted, emphasis added). Similarly:
To render a person liable for negligence, it is sufficient that such person should have foreseen that the negligence would probably result in injury of some kind to some person, and the person need not have foreseen the particular consequences or injury that resulted. It is the tendency of the act involved to cause some injury to the person who is actually injured thereby, or to someone else who occupies a position which, in reference to the act, is analogous to the situation of the injured person, under the circumstances known to the actor, that is to be discovered.
57A Am. Jur. 2d Negligence § 123 (2025) (citations omitted, emphasis added).
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 14 of 24 [36] In the current case, Lawson struck McClendon’s vehicle from behind, causing
his head to whip forward and then strike the headrest. There is no dispute that
McClendon developed a concussion from the impact. And viewing the facts in
the light most favorable to the judgment, McClendon’s concussion developed
into rapid-onset dementia. Lawson may not have specifically anticipated the
extent of the harm here, that is, that he would strike a seventy-seven-year-old
person who, because of his age, was more susceptible to a traumatic brain
injury leading to rapid-onset dementia. But Lawson’s breach of his duty to
McClendon to drive safely was a substantial factor that led McClendon to
develop dementia. Put another way, McClendon’s dementia, although a more
severe injury than Lawson may have anticipated, was a natural and probable
consequence of the auto accident. See Sandberg Trucking, Inc. v. Johnson, 76
N.E.3d 178, 185 (Ind. Ct. App. 2017) (plaintiff provided sufficient evidence for
jury to determine trucker proximately caused accident; it was reasonably
foreseeable that truck pulling over without activating emergency lights would
lead to car rear-ending parked truck, resulting in extreme injuries to passenger
in car), overruled in part on other grounds by Progressive Se. Ins. Co. v. Brown, 182
N.E.3d 197, 203 (Ind. 2022); cf. Turner v. Davis, 699 N.E.2d 1217, 1220 (Ind. Ct.
App. 1998) (overturning jury verdict in auto accident case where plaintiff
claimed to have developed sleeping disorder after accident; plaintiff failed to
submit medical testimony to prove causation), trans. denied.
[37] Lawson and MGM contend that McClendon’s dementia was not a foreseeable
consequence because the only evidence to support the link between his
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 15 of 24 concussion and the development of his rapid-onset dementia was Dr.
Westcott’s expert testimony. They further contend that, here, the test for
foreseeability is whether prior to the accident an “ordinary prudent driver,” a
layperson, could have apprehended and realized that a rear-end collision
causing a traumatic brain injury could lead to rapid-onset dementia.
Appellants’ Br. p. 18. They argue, in effect, that McClendon-Campbell should
have presented lay testimony instead of or in addition to Dr. Westcott’s
testimony.
[38] Lawson and MGM not only failed to present this argument to the trial court,
but they made the opposite argument in the hearing on their post-judgment
motions, stating, “In cases such as this, medical testimony—competent medical
testimony is required to connect an accident or a tort to a medical condition
when it’s beyond the understanding of an ordinary layperson, and this is
certainly one of those cases.” Tr. Vol. 3, p. 209. At trial, Lawson and MGM
accepted the jury instructions on foreseeability and causation, which omitted
any reference to lay testimony. They did not tender different instructions and 5 did not preserve an alleged instruction error for appeal. Instead, they attempt 6 to redefine the foreseeability element post hoc. This is a new argument that
5 Final Instruction 14 states, “An injury is ‘foreseeable’ when a person should realize that his act or failure to act might cause harm.” Appellants’ App. Vol 2, p. 40. And Final Instruction 17 states: “A person’s conduct is legally responsible for causing an injury if . . . the injury would not have occurred without the conduct, and . . . the injury was a natural, probable, and foreseeable result of the conduct. This is called a ‘responsible cause.’” Id. at 43. 6 The two cases Lawson and MGM cite on the issue of lay testimony and causation do not support their argument. Murray v. Indianapolis Public Schools, 128 N.E.3d 450 (Ind. 2019) is about contributory negligence,
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 16 of 24 was not made or preserved at trial when jury instructions were tendered nor in
their post-judgment motions and is waived. In re N.G., 51 N.E.3d 1167, 1173
(Ind. 2016) (appellant waived claim by failing to argue it to trial court). A party
may not raise one argument in the trial court and a different argument on
appeal. In re Paternity of Baby W., 774 N.E.2d 570, 577 (Ind. Ct. App. 2002)
(claim waived for appellate review; party raised one argument in trial court and
different argument on appeal), trans. denied.
[39] Lawson and MGM also cite Renner v. Shepard-Bazant, 172 N.E.3d 1208, 1212
(Ind. 2021), in which the trial court denied the plaintiff’s motion to correct error
on damages arising from an automobile collision. Among other issues, our
Supreme Court was asked to determine “whether the trial court properly
concluded [the defendant’s] negligence was not the sole cause of all of [the
plaintiff’s] injuries.” Id. The Court, viewing the evidence in the light most
favorable to the trial court’s decision, affirmed the trial court, noting that the
plaintiff had suffered two other concussions in the year after the auto accident.
The Supreme Court also determined that the evidence showed the defendant’s
negligent driving was not the probable cause of the plaintiff’s poor performance
in college, noting that her high school grades were not exceptional, and in
college she may not have studied diligently.
makes no reference to proximate cause, and is otherwise inapposite. Likewise, Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992), a medical malpractice case in which the Supreme Court considered whether expert testimony was needed to demonstrate that a defendant physician had breached the standard of care, makes no reference to proximate cause or foreseeability.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 17 of 24 [40] In this case, we, like the Renner court, must view the facts in the light most
favorable to the trial court’s denial of Lawson and MGM’s motion for
judgment notwithstanding the verdict. Applying that standard of review here
reveals there is ample factual support for the trial court’s decision. The auto
accident caused McClendon’s concussion, which, according to Dr. Westcott led
him to develop rapid-onset dementia.
[41] Lawson and MGM claim that McClendon was actually suffering from
Alzheimer’s dementia, pointing to radiography on the day of the accident that
showed some cortical atrophy. They also cite McClendon’s February 2020
diagnosis of Alzheimer’s dementia. But the jury and the trial court (sitting as
the thirteenth juror) were not obligated to accept Lawson and MGM’s
perspective on the evidence, and we may not reweigh the evidence regardless of
whether we review the trial court’s decision de novo or for abuse of discretion.
The trial court did not err in denying Lawson and McClendon’s motion on
grounds of reasonable foreseeability.
B. “But-For” Causation
[42] To establish “but-for” causation, also known as “causation in fact,” “the
plaintiff must show that but for the defendant’s allegedly tortious act or
omission, the injury at issue would not have occurred.” Kovach, 913 N.E.2d at
197-98. A plaintiff “must present evidence of probative value based on facts, or
inferences to be drawn from the facts, establishing both that the wrongful act
was the cause in fact of the occurrence and that the occurrence was the cause in
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 18 of 24 fact of [the plaintiff’s] injury.” Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct.
App. 1994), trans. denied.
[43] Lawson and MGM argue that “[w]eighing the evidence eliminates but-for
causation.” Appellants’ Br. p. 25. They also argue, “the weight of the evidence
is against finding that Lawson’s negligent driving caused [McClendon’s]
permanent dementia.” Id. at 28.
[44] Their argument misapprehends our standard of appellate review, as discussed
above. On de novo review of a Trial Rule 50(A) motion, neither we nor the
trial court weigh evidence or assess witness credibility. Cosme, 232 N.E.3d at
1152. Under Trial Rule 59(J)(7), the trial judge may weigh the evidence
because the judge “hears the case along with the jury [and] observes witnesses
for their credibility, intelligence, and wisdom[.]” Precision Screen Machs., Inc. v.
Hixson, 711 N.E.2d 68, 70 (Ind. Ct. App. 1999). But we, as the reviewing court,
must consider the parties’ arguments based on a cold record, without observing
witness testimony directly. As a result, we do not second-guess the jury or the
trial court by reweighing the evidence. Chafin v. Grayson, 761 N.E.2d 474, 476
(Ind. Ct. App. 2002) , trans. denied.
[45] Viewing the record in the light most favorable to the judgment, there is
sufficient evidence that McClendon would not have developed dementia but for
the auto accident with Lawson. There is no dispute that Lawson struck
McClendon from behind, and Lawson and MGM concede McClendon suffered
a concussion from the accident. Dr. Westcott told the jury that McClendon
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 19 of 24 developed a rapidly-developing form of dementia, not Alzheimer’s dementia,
and “it is more probable than not” that the dementia was caused by the
concussion, which in turn was caused by Lawson’s negligent driving. Tr. Ex.
Vol. 11, p. 99.
[46] Lawson and MGM direct us to testimony from their expert witnesses and
McClendon’s medical care providers, none of whom linked his cognitive
decline to the concussion. Their experts instead stated that he developed
Alzheimer's dementia after the accident, based on factors that occurred before
the accident. Lawson and MGM also point out alleged flaws in Dr. Westcott’s
analysis. But the jurors heard all of this evidence, and they chose to accept Dr.
Westcott’s testimony. There was sufficient evidence to establish “but for”
causation that supports the trial court’s refusal to set aside the jury’s verdict.
On appeal, Lawson and MGM’s arguments amount to a request to reweigh the
evidence, which we cannot do under either applicable standard of review. The
trial court did not abuse its discretion in denying Lawson and MGM’s motion
for judgment notwithstanding the verdict.
II. Motion for Remittitur [47] Lawson and MGM argue the jury’s verdict is beyond the scope of the evidence 7 presented at trial and must have been based on “undue speculation.”
7 In their motion for remittitur, they also argued that the jury’s damage award was based on passion or prejudice. They do not make that argument on appeal.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 20 of 24 Appellants’ Br. p. 22. They filed their motion for remittitur under Indiana Trial
Rule 59. That rule provides, in relevant part, that a party may file a motion to
correct error to argue that “a jury verdict is excessive or inadequate.” Ind. Tr.
Rule 59(A)(2). Trial Rule 59 was intended “to govern requests that the trial
judge exercise the common law powers of additur and remittitur.” Tipmont
Rural Elec. Membership Corp. v. Fischer, 716 N.E.2d 357, 358 (Ind. 1999).
[48] “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. (quoting Raess v. Doescher, 883
N.E.2d 790, 795 (Ind. 2008) (internal quotation omitted)). Accordingly, we
review a trial court’s ruling on a motion to correct error for an abuse of
discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). We have
defined an abuse of discretion above. “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[.]’” Raess, 883 N.E.2d at 795 (quoting Sears Roebuck &
Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001)) (internal quotation omitted).
[49] “Damages in negligence actions are awarded to compensate the injured party
fairly and adequately for the loss sustained.” Menard, Inc. v. Terew, 210 N.E.3d
833, 840 (Ind. Ct. App. 2023), trans. denied. “Reasonable compensation refers
to an amount that would reasonably compensate the plaintiff for bodily injury
and for pain and suffering and also takes into account past, present, and future
expenses reasonably necessary to the plaintiff’s treatment.” Id. “Awards for
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 21 of 24 pain, suffering, fright, humiliation and mental anguish are particularly within
the province of the jury because they involve the weighing of evidence and
credibility of witnesses.” Hixson, 711 N.E.2d at 71.
[50] Here, the parties stipulated that “Plaintiff, his Guardian, or his Family have
incurred medical bills to date of $426,017.94.” Appellants’ App. Vol. 2, p 38.
Lawson and MGM argue that this number is not reliable because the jury’s
damage award is intended to compensate McClendon for his losses, not to
repay other family members for amounts they may have contributed. But
McClendon-Campbell testified she taught Berneda how to pay the bills after
McClendon could no longer manage the process, and Berneda testified about
outstanding bills for which she and McClendon were liable. There is no
evidence that McClendon-Campbell paid any bills out of her own pocket rather
than acting as guardian to ensure bills are being paid. Nor is there any evidence
that any other family members besides Berneda paid any of McClendon’s bills.
[51] Next, Berneda testified she was paying approximately $8,000 per month for
McClendon’s nursing home care. The jury was instructed that McClendon
could be expected to live for another 7.1 years, or 85.2 months. $8,000 per
month for 85.2 months adds up to $681,600 in future nursing home costs for
McClendon.
[52] Subtracting past medical bills and future nursing home costs from the $3.7
million damages award leaves $2,592,382.06. That amount reasonably
represents McClendon’s pain and suffering because it falls within the bounds of
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 22 of 24 the evidence presented at trial. Before the accident, he was an educated,
accomplished person who valued his independence. McClendon enjoyed his
retirement by spending time with family, exercising, and cooking. He managed
the family’s finances and was the primary driver in the family. In the months
after the accident, McClendon became angry and aggressive toward his family,
and he lost interest in food, exercising, and his favorite television shows. He no
longer knew how to operate the television or his phone, and he could no longer
remember directions, causing him great frustration.
[53] McClendon ultimately lost all of his independence and will be confined to a
nursing home for the rest of his life, up to seven years or more, mentally
incapacitated and unable to understand what has happened to him.
McClendon does not recognize Berneda, and neither Berneda nor McClendon-
Campbell will take him out of the nursing home to see other family members
because he may become violent. This evidence amply supports a large award
for his pain and suffering. Cf. Menard, Inc., 210 N.E.3d at 840-41 (reversing
damages award of $3.8 million in slip-and-fall case; plaintiff’s injuries healed
almost completely and her companion admitted she could perform same tasks
she had performed before fall). The trial court did not abuse its discretion in
denying Lawson and MGM’s motion for remittitur of the $3.7 million damages
award.
Conclusion [54] For the reasons stated above, we affirm the judgment of the trial court.
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 23 of 24 [55] Affirmed.
Vaidik, J., and Mathias, J., concur.
ATTORNEY FOR APPELLANTS Tiernan B. Kane SouthBank Legal South Bend, Indiana
ATTORNEYS FOR APPELLEE Brian N. Custy Andrew G. Brown Custy Law Firm Valparaiso, Indiana
Court of Appeals of Indiana | Opinion 25A-CT-182 | September 19, 2025 Page 24 of 24