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Tunstall v. Manning

Court of Appeals of Indiana

August 20, 2018

Levetta Tunstall, Appellant-Defendant,
v.
Dawn Manning, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable James B. Osborn, Judge Trial Court Cause No. 49D14-1602-CT-7366

          Attorneys for Appellant Brian J. Paul Harmony A. Mappes Jason M. Rauch Indianapolis, Indiana

          Attorneys for Appellee Ronald S. Todd Noblesville, Indiana Attorneys for Amicus curiae Indiana trial lawyers association Thomas C. Doehrman Daniel J. Buba Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] In 2014, Dawn Manning and Levetta Tunstall were involved in a minor vehicle collision. Tunstall admitted fault and the parties litigated the issue of damages at a three-day jury trial in 2017. The jury awarded Manning $1.3 million for her pain and suffering resulting from on-going neck and back pain caused by the accident. Tunstall now appeals, arguing that she is entitled to a new trial for four reasons: (1) the verdict is excessive; (2) the trial court abused its discretion by refusing to allow Tunstall to cross-examine Manning's expert witness about his disciplinary history with the Medical Licensing Board; (3) the trial court committed fundamental error by discharging a juror during deliberations without creating the appropriate record; and, (4) jury deliberations were improperly tainted by the comments of a juror.

         [¶2] We affirm.[1]

         Facts & Procedural History

         [¶3] On the afternoon of October 24, 2014, Manning - age thirty-one - was stopped at a stop sign preparing to turn right out of her apartment complex onto Georgetown Road in Indianapolis. Tunstall approached from behind, did not realize that Manning was still at the intersection, and hit her brakes and swerved just before colliding with Manning's vehicle. The right front of Tunstall's vehicle struck the left corner of Manning's rear bumper, pushing Manning's vehicle into Georgetown Road. Fortunately, no on-coming traffic was present. The low-speed collision caused damage to Manning's bumper and misalignment of Tunstall's vehicle. After moving her vehicle out of traffic, Manning called 911 and her mother.

         [¶4] Manning began experiencing a headache and neck pain at the scene. She refused an ambulance but had her boyfriend drive her to the emergency room that same day. The emergency room physician treated Manning for whiplash, prescribing pain medicine and a muscle relaxant. When the pain did not subside over the next couple days, Manning returned to the emergency room and was told to seek chiropractic treatment. On November 14, 2014, she went to a chiropractor, complaining of bilateral posterior neck pain that radiated to her head and shoulders, headaches, and mid-back pain. After months of biweekly treatments, Manning experienced little relief from her pain.

         [¶5] In June 2015, Manning saw another doctor for her on-going neck and back pain. X-rays taken of her cervical and thoracic spine were normal. The doctor prescribed pain medication and a muscle relaxant and referred her to a spine specialist, Dr. Rick Sasso of the Indiana Spine Group. Manning was treated at Dr. Sasso's office in July 2015. The impressions contained in the medical record of that visit indicate that Manning was suffering from significant cervical sprain, as well as an upper thoracic sprain. Dr. Sasso ordered an MRI, which returned unremarkable. Dr. Sasso recommended that Manning's pain be managed with injections, but Manning was unwilling - at least at that point - to start regular injections that would potentially last the rest of her life. Dr. Sasso also recommended physical therapy and prescribed a muscle relaxant.

         [¶6] On September 22, 2015, Manning met with Dr. Steven Paschall - the medical expert she later retained for trial[2] - for an independent medical examination. Manning complained of a constant ache in her neck, multiple daily neck spasms, and mid-back pain. Dr. Paschall inquired about the effects that her condition had on her activities of daily living. After a physical examination, which demonstrated a limited range of motion in her cervical spine, Dr. Paschall took several x-rays, including x-rays in flexion and in extension.[3] The x-rays in flexion demonstrated "a significant angular motion segment integrity change at C4/5" with a loss of motion integrity of over twenty degrees. Id. Based on his independent examination of Manning, Dr. Paschall diagnosed her with "cervical spine ligament laxity, with alteration of motion segment integrity; thoracic strain, and limited cervical range of motion." Id. at 11. Dr. Paschall opined that Manning had reached maximum medical improvement and suffered from a permanent injury/chronic pain as a result of the collision. He gave her a permanent partial impairment rating of twenty-eight percent.

         [¶7] Manning filed her complaint for damages on February 29, 2016. At the three-day trial in August 2017, in addition to Dr. Paschall's video deposition, Manning presented the testimony of her mother and father, her best friend, her boyfriend, and herself to establish the effect her chronic pain has had on her life since the accident. The pain limits her ability to stand or sit for extended periods of time, lift objects overhead or off the floor, wear heels, and participate fully in activities that she previously enjoyed, such as dancing, shopping, taking long walks, traveling, and high-adventure activities. Manning has become isolated and unable to enjoy her once-active lifestyle. Since the accident, she has become moody, depressed, and not her vivacious, outgoing self. Particularly devastating to Manning, she has been unable to continue her previously-active modeling career, and has gained a significant amount of weight due to her inability to work out and her mood. Although she has been able to continue working in her father's seasonal tax business and as a real estate agent, her pain has limited the number of hours she can work. Manning's long-term boyfriend emphasized that even three years after the accident, her quality of life was still negatively affected. He also noted the drastic change to their intimate relations since the accident, which has had an effect on their relationship.

         [¶8] Tunstall presented opposing expert testimony. Ana Barbir, a forensic biochemical engineer, testified that Manning's alleged long-term injuries were not "consistent…with what's known for biomechanical tests." Id. at 175. Manning subjected Barbir to vigorous cross-examination. Dr. David Steinman, a neurosurgeon specializing in the cervical and lumbar spine, testified regarding his own independent medical examination of Manning and his review of her past medical records. In Dr. Steinman's opinion, Manning had no permanent injuries and was a malingerer.

         [¶9] As set forth above, the jury returned a verdict in favor of Manning in the amount of $1.3 million. Tunstall filed a motion to correct error, arguing that the verdict was excessive and alleging juror misconduct. The trial court held a hearing on the motion to correct error on October 25, 2017, and then took the motion under advisement. On November 2, 2017, the trial court issued an order summarily denying the motion to correct error. Tunstall now appeals. Additional facts will be provided below as needed.

         Discussion & Decision

         1. Excessive Verdict

         [¶10] In considering whether a jury verdict is excessive, we do not reweigh the evidence and look only to the evidence and reasonable inferences that may be drawn therefrom that support the verdict. West v. J. Greg Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind.Ct.App. 2017), trans. denied. "If there is any evidence to support the amount of the award, even if it is conflicting, this court will not reverse." Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind.Ct.App. 2001), trans. denied. To warrant reversal, "the award must appear to be so outrageous as to impress the Court at first blush with its enormity." Id. at 644 (internal quotation marks omitted). Where the award is so outrageous that it indicates the jury was motivated by passion, prejudice, partiality, or the consideration of improper evidence, we will find the award excessive. Groves v. First Nat'l Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind.Ct.App. 1988), trans. denied. We will uphold a verdict if it "can be explained on any reasonable ground." Berman v. Cannon, 878 N.E.2d 836, 840 (Ind.Ct.App. 2007), trans. denied.

         [¶11] "[A]wards for 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." Ritter, 745 N.E.2d at 845. Because physical and mental pain are not readily susceptible to quantification and cannot be calculated with mathematical certainty, the jury is given "very wide latitude" in determining such damages. Id. "Our inability to look into the minds of jurors and determine how they computed an award is, to a large extent, the reason behind the rule that a verdict will be upheld if the award falls within the bounds of the evidence." Id.

         [¶12] Tunstall argues that the $1.3 million verdict in this case is excessive and urges us to engage in a comparative analysis of jury verdicts in other cases involving "a very common type of accident (a fender-bender) with very common alleged injuries (neck and back pain)." Appellant's Brief at 29. For the reasons thoroughly addressed in Ritter, we reject this approach. See Ritter, 745 N.E.2d at 845-49. "The nature and extent of pain and suffering are seldom, if ever, alike in any two cases." Id. at 849.

         [¶13] Here, the evidence favorable to the verdict reveals that although the collision in question was relatively minor, it resulted in painful injury to Manning and left her with a twenty-eight percent whole person permanent impairment. Manning, a young woman, now has chronic neck/back pain and neck spasms that limit her daily activities and have substantially affected her life. Before the accident, she was a successful model with several agencies and was extremely fit, working out at the gym on a near daily basis. She was extroverted, full of life, and had "energy…through the roof". Transcript Vol. II at 221. She enjoyed being active, traveling, all-day shopping trips, long walks, dancing, and adventure. All this changed, when at the age of thirty-one, she was struck from behind by Tunstall. In the months after the accident, Manning suffered headaches and significant neck/back pain, which caused her to stay in bed and become despondent. She pursued various treatments and took prescribed medication, but she experienced little relief. She learned to limit her daily activities and made other changes to her life in attempts to reduce the pain and frequent neck spasms. Manning could no longer model or workout. She experienced significant weight gain, changes ...


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