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Diehl v. Clemons

Court of Appeals of Indiana

June 25, 2014

LLOYD J. DIEHL, Appellant-Defendant,
v.
LARRY J. CLEMONS, Appellee-Plaintiff

Page 286

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Diane Kavadias Schneider, Judge. Cause No. 45D11-1110-CT-194.

ATTORNEY FOR APPELLANT: SHAWN C. SWOPE, Swope Law Offices, LLC, Schererville, Indiana.

ATTORNEY FOR APPELLEE: ADAM J. SEDIA, Rubino, Ruman, Crosmer & Polen, Dyer, Indiana.

VAIDIK, C.J., and BROWN, J., concur.

Page 287

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Lloyd J. Diehl appeals the trial court's order granting Larry J. Clemons' motion to correct error, following a jury trial, and ordering a new trial on the question of damages owed by Diehl to Clemons. Diehl raises three issues for our review, which we restate as the following two issues:

1. Whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the basis that the jury verdict was inadequate; and
2. Whether the court abused its discretion when it ordered a new trial on the basis of juror misconduct.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On August 26, 2010, Diehl drove his vehicle into the rear of Clemons' vehicle. On October 18, 2011, Clemons filed a complaint

Page 288

alleging injuries as a result of the collision. On January 28, 2013, Diehl admitted fault in causing the collision but denied that the collision had caused Clemons any damages. The trial court held a two-day jury trial on the question of damages only on May 20 and 21, 2013. See Transcript at 5.

At trial, Clemons' counsel called Allen Loser, the paramedic who responded to the scene of the collision and who treated Clemons in the ambulance on the way to the hospital. According to Loser, upon his arrival at the scene Clemons complained about neck and back pain, which resulted in Loser placing Clemons in a cervical collar and on a spine board. Loser also checked Clemons' vital signs and found that Clemons had an elevated blood pressure, which Loser testified was " expected" following a vehicular collision and in light of Clemons' " history of having high blood pressure." Id. at 171-72. Nonetheless, Loser was " [c]oncern[ed] enough that [he] started an IV." Id. at 173.

But, on cross-examination by Diehl's counsel, Loser testified that he had described the vehicular collision in his notes as " minor," which was " based on what [Loser] observed as [he] approached the truck [and] on what [he] could expect for injuries." Id. at 178. Loser then stated that his records from the scene indicated that Clemons displayed " [g]ood . . . [r]ange of motion" and that Clemons had " denie[d] any other . . . complaints" aside from pain in his neck and back. Id. at 179. Loser also answered " [n]o" when asked whether " there [was] anything ...


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