Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




      ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
      THEODORE W. WALTON                                RODNEY L. SCOTT
      Clay Frederick Adams PLC                          TRICIA KIRKBY HOFMANN
      Louisville, Kentucky                              Waters, Tyler, Hofmann & Scott, LLC
                                                        New Albany, Indiana


                                                                                    FILED
                                                                                 May 18 2012, 9:35 am
                                     IN THE
                           COURT OF APPEALS OF INDIANA                                   CLERK
                                                                                       of the supreme court,
                                                                                       court of appeals and
                                                                                              tax court




      MADELINE JONES,                                   )
                                                        )
              Appellant,                                )
                                                        )
                  vs.                                   )     No. 10A01-1108-CT-00348
                                                        )
      JOHN W. TOWNSEND,                                 )
                                                        )
              Appellee.                                 )

                             APPEAL FROM THE CLARK SUPERIOR COURT
                                 The Honorable Jerome F. Jacobi, Judge
                                    Cause No. 10D02-1002-CT-108



                                               May 18, 2012


                        MEMORANDUM DECISION – NOT FOR PUBLICATION

      MATHIAS, Judge
         Madeline Jones (“Jones”) filed a complaint in Clark Superior Court against John

Townsend (“Townsend”) alleging that he negligently caused a car accident resulting in

personal injury to Jones. A jury trial was held, and the jury found in favor of Townsend.

Jones now appeals and raises several issues, which we restate as:

         I. Whether the jury’s verdict must be set aside because Townsend admitted that his
         operation of his vehicle was a cause of the accident at issue, and

         II. Whether the trial court abused its discretion in instructing the jury that they
         could disregard certain evidence.

         We affirm.

                               Facts and Procedural History

         On January 23, 2008, Jones and Townsend were involved in an automobile

accident on U.S. 31 in Jeffersonville, Indiana. When the accident occurred, Townsend

was attempting to make a left-hand turn onto southbound U.S. 31 from Coopers Lane, a

roadway that intersects with U.S. 31. Traveling westbound on Coopers Lane, there is a

stop sign at railroad tracks located adjacent to U.S. 31 and another stop sign at the

intersection of U.S. 31 and Coopers Lane.         Approximately fifty yards south of the

intersection of U.S. 31 and Coopers Lane, another roadway named Old Potters Lane

intersects with U.S. 31. The portion of U.S. 31 where the accident occurred has one

travel lane in each direction and an emergency lane located to the outside of the travel

lanes.

         Before making his left-hand turn, Townsend stopped at the stop sign at U.S. 31

and Coopers Lane. He looked south (or to the left) and saw two large northbound trucks

pulling into the emergency lane so that the trucks could proceed eastbound on Coopers

                                              2
Lane. When he looked north (or to the right), he observed a school bus proceeding

southbound, but the bus had stopped and was waiting to make a left-hand turn onto

Coopers Lane. The bus driver waved to Townsend presumably indicating that he could

turn in front of the school bus.1 Townsend then quickly looked left and right once again

and did not see any oncoming traffic in either direction. He then began to turn left onto

southbound U.S. 31.

        As he pulled into the intersection, his vehicle was struck on the front driver’s side

by Jones, who was traveling northbound on U.S. 31. Townsend stated he never saw

Jones’s vehicle before impact and his approximate speed was five miles per hour when

the accident occurred.

        Jones’s vehicle suffered damage to the front bumper and hood closer to the

driver’s side. Jones did not request medical attention at the scene, but drove herself to the

emergency room shortly after the accident occurred with complaints of left knee pain.

Despite physical therapy, pain medication, injections, and surgery, Jones claims her knee

pain has never resolved. She also claims she suffered from neck and back pain following

the accident.

        On January 20, 2010, Jones filed a complaint in Clark Superior Court against

Townsend alleging that she suffered personal injury as a result of his negligent operation

of his vehicle. A jury trial was held on May 31, 2011. At trial, Jones testified that she

1
  Pursuant to a recent decision of our court, the school bus driver in this case could be held liable for
causing the accident at issue. Key v. Hamilton, 963 N.E.2d 573 (Ind. Ct. App. 2012), trans. pending. The
author of this opinion dissented from the majority’s opinion in Key and would have held that “a driver
who signals to another driver to proceed through an intersection owes no duty to a third party with whom
the signaled driver collides.” Id. at 592.

                                                   3
had been traveling northbound on U.S. 31 and the only vehicle she observed on the

highway at the time of the accident was the school bus traveling southbound. She stated

that she saw Townsend’s truck on Coopers Lane and observed that he failed to stop at the

intersection of Coopers Lane and U.S. 31. She testified that she slammed on her brakes

but there was nothing she could do to avoid the collision. Jones stated that she was

driving forty to forty-five miles per hour when Townsend struck her vehicle.

       After the one-day jury trial, the jury entered a verdict in favor of Townsend. Jones

then filed a motion to correct error alleging several errors in the jury instructions and that

the judgment was against the weight of the evidence and contrary to law. In response,

Townsend argued that even though he “admitted he was ‘a cause’ of the accident, he

introduced evidence disputing [Jones’s] contention that she possessed the right-of-way

and showing that [Jones] was negligent.” Appellant’s App. p. 197. On July 19, 2011, the

trial court denied Jones’s motion to correct error. Jones now appeals.

                                  I. The Jury’s Verdict

       Jones’s argues that the jury’s verdict that Townsend “was not at fault” is

inconsistent with Townsend’s admission that “his operation of his motor vehicle was a

cause of the January 23, 2008 accident. . . . The jury’s decision simply cannot be

reconciled with Townsend’s stipulation.” Appellant’s Br. at 7 (citing Appellant’s App.

pp. 8, 17). And Jones contends that even absent Townsend’s admission, Townsend was

at fault as a matter of law.

       To prevail on a claim of negligence, the plaintiff must prove (1) a duty owed by

the tortfeasor to the tort victim, (2) a breach of that duty, and (3) an injury to the tort

                                              4
victim proximately caused by the breach.” Spangler v. Bechtel, 958 N.E.2d 458, 467-68

(Ind. 2011). From our review of the record we surmise that Townsend presented two

defenses to Jones’s negligence claim: 1) that Jones’s operation of her vehicle was also a

cause of the accident and 2) that the accident did not proximately cause Jones’s injuries.2

        To prove a claim of negligence, the plaintiff must present evidence based upon

more than mere supposition or speculation. See Topp v. Leffers, 838 N.E.2d 1027 (Ind.

Ct. App. 2005), trans. denied.            Negligence cannot be established by inferential

speculation alone. Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216 (Ind. Ct. App. 1999).

Evidence that establishes a mere possibility of cause or that lacks reasonable certainty or

probability is insufficient evidence, by itself, to support a verdict. Topp, 838 N.E.2d at

1033.

        Jones’s complaints of knee pain were subjective in nature, i.e. pain “perceived or

experienced by a patient and reported to the patient’s doctor but [] not directly observable

by the doctor.” Id. (citing Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994), trans.

denied). Therefore, Jones’s testimony alone was not sufficient to prove causation without

medical expert testimony. Id.

        Jones did introduce testimony from her physician Dr. Arabella Bowens. Dr.

Bowens’s testimony established that Jones was suffering from arthritis in her knee on the

date of the accident. Consequently, the causal connection between the accident and

2
  The parties’ opening and closing arguments were not transcribed in the record on appeal. Townsend’s
counsel included an affidavit in the Appellee’s Appendix purporting to establish the statements made by
counsel during closing arguments. But his affidavit is not properly in the record before us because the
affidavit was not included in the record under the procedure described in Appellate Rule 31. For this
reason, we have not considered the improperly submitted document in this appeal.

                                                  5
Jones’s resulting injuries “is a complicated medical question that is not within the

understanding of a lay person.” See id.

       Evidence establishing a mere possibility of cause or which lacks reasonable
       certainty or probability is not sufficient evidence by itself to support a
       verdict. An expert medical opinion that lacks reasonable certainty, standing
       alone, is not sufficient to support a judgment. “[E]xpert medical opinion
       couched in terms less than that of a reasonable degree of medical certainty;
       such as ‘possible,’ ‘probable,’ or ‘reasonably certain,’ are admissible and
       do have probative value. However, such medical testimony standing alone,
       unsupported by other evidence, is not sufficient to support a verdict[.]

Id. (citations omitted).

       Dr. Bowens testified that Jones complained of neck, shoulder, and left knee pain

after the accident. The doctor examined her knee and did not observe any swelling and

no patella tenderness. But Jones had “light tenderness with light palpitation in the

popliteal area,” i.e. the area behind the knee. Id. at 38. Because her knee pain did not

resolve after a few weeks, the doctor ordered an MRI. The MRI showed possible myxoid

degeneration, a degenerative change that Dr. Bowen testified could be caused by arthritis,

trauma, or the aging process. Id. at 43-44. Jones eventually underwent a second MRI

one year later, which revealed a tear in her meniscus. Dr. Bowens stated that a meniscus

tear could be a progressive or an acute injury. When asked if the knee injury and

eventual surgery were a result of the January 23, 2008 accident, Dr. Bowens replied: “In

my opinion, because she never had any problems beforehand and it occurred after the

accident, I can only assume that it probably was related to that.” Ex. Vol., Plaintiff’s Ex.

1, p. 16. But she also testified that she could not give an opinion “to any degree of




                                             6
medical certainty whether” the tear in Jones’s meniscus was caused by the automobile

accident. Id. at 47.

        Similarly, with regard to Jones’s neck pain and muscle spasms, Dr. Bowens

examined Jones’s neck approximately two weeks after the accident and observed that she

had full range of motion and normal flexion and extension. Id. at 37. The doctor ordered

x-rays of Jones’s neck and back, which revealed minimal arthritis in her neck and low

back.    Id. at 40.    And a subsequent MRI showed that Jones was suffering from

asymmetric disk disease, which is an arthritic condition. Id. at 49. Jones’s complaints of

neck pain were subjective and treated with pain medication, injections, and physical

therapy. Dr. Bowens again opined that because Jones was not complaining of any pain

prior to the accident, she “assume[d]” that the injuries are “related to the January 23,

2008 collision.” Id. at 20. But she admitted that she could not “say to any reasonable

degree of medical probability that the disk disease . . . was caused by the accident.” Id. at

51. She also testified that the disk disease by itself could be the cause of Jones’s neck

pain.

        Finally, Dr. Bowens was asked whether the treatment Jones received from her and

the VA Hospital was reasonable and necessary for the injuries Jones suffered as a result

of the collision. Dr. Bowens replied, “Yeah. I think so.” Id. at 27. But Dr. Bowens also

indicated that orthopedics were not her area of expertise.

        Before we consider whether Dr. Bowens’s testimony established that the accident

was the cause of Jones’s neck and knee injuries, we observe that “an opinion which lacks

reasonable probability is not sufficient evidence by itself to support a verdict.” Topp, 838

                                             7
N.E.2d 1035 (citation omitted). But, “‘an expert’s opinion that something is ‘possible’ or

‘could have been’ may be sufficient to sustain a verdict or award’ when rendered in

conjunction with other, probative evidence establishing the material factual question to be

proved.” Id. (citations omitted).

       Jones testified that immediately after the accident, she told the school bus driver

that she would be fine after the driver inquired about her welfare. Tr. p. 57. Jones also

did not report any injury or pain to the responding police officer. Tr. p. 88. Jones

testified that she refused medical treatment at the scene because she was required to seek

all medical care at the VA Hospital. Her knee was x-rayed in the VA’s emergency room

shortly after the accident, and the only treatment prescribed for Jones was pain killers.

Jones also stated that her neck did not start hurting until a couple days after the accident.

Tr. p. 72.

       The short period of time that elapsed between Jones’s complaints of pain and the

accident is some evidence of causation, but is not enough without additional expert

testimony establishing a causal connection between the accident and Jones’s injuries.

See Topp, 838 N.E.2d at 1033; Daub, 629 N.E.2d at 878. Unfortunately for Jones, even

her testimony in conjunction with that of Dr. Bowens was insufficient to prove causation.

       The doctor stated that she “assumed” that Jones’s knee and neck pain was related

to the accident because she did not have any complaints of pain prior to it. She also

testified that she could not give an opinion “to any degree of medical certainty whether”

the tear in Jones’s meniscus was caused by the automobile accident. She made a similar

statement with regard to the degenerative changes in Jones’s neck. Jones’s testimony

                                             8
simply establishes the possibility of causation and Dr. Bowens’s opinion lacks reasonable

medical certainty. Therefore, even if the jury believed that Jones’s complaints of pain

were credible, she did not present sufficient evidence to prove that the accident caused

her injury or the aggravation of a pre-existing injury. See Topp, 838 N.E.2d at 1036

(concluding that the plaintiff’s complaint of pain following the accident was not

sufficient to prove causation because her testimony established only the possibility of

causation and the treating doctors’ opinions lacked reasonable medical certainty).

      It was also quite possible, especially given the absence of any objective evidence

of injury on the date of the accident, that the jury concluded that Jones’s complaints of

knee and neck pain were not credible. After reviewing the record, it is clear to our court

that one of Townsend’s defenses to Jones’s negligence claim was that although Jones’s

operation of his vehicle might have caused the accident, Jones did not suffer any injury as

a result of Townsend’s breach of his duty to exercise reasonable care when operating his

vehicle on the roadway.

      For all of these reasons, we reject Jones’s argument that Townsend was negligent

as a matter of law. There is certainly evidence in the record that could establish that

Townsend breached his duty to Jones, thereby causing the accident at issue. But to

prevail on her negligence claim, Jones was also required to prove that her injuries were

proximately caused by Townsend’s breach of that duty. See Spangler, 958 N.E.2d at

467-68. Because there was evidence from which the jury could reasonably conclude that

the accident was not the proximate cause of Jones’s knee and neck injury, we affirm the

jury’s verdict in Townsend’s favor.

                                            9
                                   II. Jury Instructions

       Finally, we consider Jones’s challenge to following instruction that was tendered

to the jury over her objection:

       If the evidence simply establishes that it is only a mere possibility that the
       automobile accident caused the injury in question, you are instructed that
       such evidence should be disregarded and may not be considered by you in
       rendering your verdict.

Appellant’s App. p. 38. Jones argues that the quoted instruction “misstated the law,

singled out causation for a different level of proof, and erroneously mandated the jury

disregard evidence.” Appellant’s Br. at 12.

       The manner of instructing a jury is left to the sound discretion of the trial court.

Callaway v. Callaway, 932 N.E.2d 215, 222 (Ind. Ct. App. 2010). Its ruling will not be

reversed unless the instructional error is such that the charge to the jury misstates the law

or otherwise misleads the jury. Id. Jury instructions must be considered as a whole and

in reference to each other. Id. at 222–23. In reviewing a trial court’s decision to give or

refuse a tendered instruction, we consider: (1) whether the instruction correctly states the

law; (2) whether there is evidence in the record to support the giving of the instruction;

and (3) whether the substance of the tendered instruction is covered by other instructions

that are given. Id. at 223. To determine whether sufficient evidence exists to support an

instruction, we will look only to that evidence most favorable to the appellee and any

reasonable inferences to be drawn therefrom. Foddrill v. Crane, 894 N.E.2d 1070, 1078

(Ind. Ct. App. 2008), trans. denied. Finally, “when a jury is given an incorrect instruction

on the law, we will not reverse the judgment unless the party seeking a new trial shows ‘a


                                              10
reasonable probability that substantial rights of the complaining party have been

adversely affected.’” Id. (citations omitted).

        The challenged jury instruction is a correct statement of law to the extent that it

informs the jury that the causal connection between the accident and Jones’s alleged

injuries must be supported by evidence establishing more than a mere possibility of cause

because evidence which lacks reasonable certainty or probability is not sufficient

evidence by itself to support a verdict. See Topp, 838 N.E.2d at 1033. But the trial court

erred when instructing the jury “that such evidence should be disregarded and may not be

considered by you in rendering your verdict.” Appellant’s App. p. 38. As we stated

above, “‘an expert’s opinion that something is ‘possible’ or ‘could have been’ may be

sufficient to sustain a verdict or award’ when rendered in conjunction with other,

probative evidence establishing the material factual question to be proved.” Id. (citations

omitted). See Topp, 838 N.E.2d at 1035. Therefore, instructing the jury to disregard

such evidence was improper.

        But as we concluded above, Jones did not present sufficient evidence to prove that

the accident caused her injury or the aggravation of a pre-existing injury.3 “We will

assume that the erroneous instruction influenced the jury’s verdict unless it appears from

the evidence that the verdict could not have differed even with a proper instruction.”

Estate of Dyer v. Doyle, 870 N.E.2d 573, 584 (Ind. Ct. App. 2007), trans denied


3
  Jones also complains that the trial court abused its discretion when it denied her motion for a directed
verdict on the issue of comparative fault. Because we have concluded that Jones did not present sufficient
evidence to support her negligence claim, and because the jury entered a verdict solely in Townsend’s
favor, we need to address the issue of comparative fault in this appeal.

                                                   11
(emphasis added). Because Jones failed to present sufficient evidence that her injury was

proximately caused by the January 23, 2008 accident, we can reasonably conclude that

the jury verdict would not have differed had the jury been properly instructed. For this

reason, Jones has not established that she is entitled to a new trial.

                                         Conclusion

       Although the trial court improperly instructed the jury to disregard certain

evidence, we conclude that the jury properly entered a verdict in Townsend’s favor

because Jones failed to present sufficient evidence that her injury was proximately caused

by the January 23, 2008 accident.

       Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




                                              12
