      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                                  FILED
      court except for the purpose of establishing                           Jan 30 2020, 8:55 am

      the defense of res judicata, collateral                                     CLERK
                                                                              Indiana Supreme Court
      estoppel, or the law of the case.                                          Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Robert F. Ahlgrim, Jr.                                   Katherine M. Marshall
      State Auto Insurance House Counsel                       Robert H. Ebbs
      Carmel, Indiana                                          Glaser & Ebbs
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David J. Christner,                                      January 30, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CT-1009
              v.                                               Appeal from the Hamilton
                                                               Superior Court
      Jon A. Ward,                                             The Honorable Jonathan M.
      Appellee-Plaintiff.                                      Brown, Judge
                                                               Trial Court Cause No.
                                                               29D02-1405-CT-4928



      Mathias, Judge.


[1]   David J. Christner (“Christner”) appeals the $500,000 judgment entered in Jon

      A. Ward’s (“Ward”) favor after a jury concluded that Christner negligently

      caused an automobile accident. Christner argues the Hamilton Superior Court

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020                Page 1 of 11
      tendered a jury instruction that invaded the province of the jury resulting in

      prejudicial error that warrants a new trial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 29, 2012, Christner’s vehicle rear-ended Ward’s truck. Ward had

      slowed his truck and was waiting to make a left-hand turn onto Lion’s Creek

      Boulevard in Noblesville, Indiana. Ward saw Christner’s vehicle approaching

      from behind and anticipated that he was going to be struck. However, there was

      nothing he could do to avoid the collision, and he braced himself before the

      impact occurred.


[4]   Twenty-four-year-old Ward did not seek medical treatment at the scene of the

      accident. The next day he sought treatment with his primary care physician

      because he was suffering from back pain. Ward’s back pain did not resolve, and

      he also developed sciatic nerve pain. Over the next several years, Ward saw

      several physicians and a chiropractor seeking treatment for continued nerve

      pain. Although various treatments were successful in providing Ward with

      some relief, the nerve pain never completely abated. The continued pain

      impacted Ward’s career as a welder because he was unable to bend and twist as

      required by that vocation. Ward was forced to change jobs and employment as

      a result. Ward was also unable to physically participate in certain recreational

      activities he had enjoyed before the accident.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020   Page 2 of 11
[5]   On May 23, 2014, Ward filed a complaint in Hamilton Superior Court alleging

      that Christner negligently operated his automobile causing injury to Ward and

      his vehicle. Christner denied the allegations, and in his answer, raised the

      affirmative defense of comparative fault. Christner also alleged that Ward

      sought unnecessary medical treatment and failed to mitigate his damages.


[6]   A jury trial commenced on January 15, 2019. Dr. John Ward,1 an

      anesthesiologist specializing in pain management, testified at trial. Dr. Ward

      testified that he first saw Ward on October 21, 2015. While treating Ward, Dr.

      Ward reviewed prior physician’s records including records from a spine

      surgeon, a neurologist, a neurosurgeon, and a chiropractor. Dr. Ward

      ultimately concluded that Ward sustained a right-sided L5 radiculopathy as a

      result of the collision.


[7]   While Christner was cross-examining Ward, Christner offered Exhibit J into

      evidence, which contained Ward’s records of medical visits at the Indiana Spine

      Group with Dr. Paul Kraemer. Dr. Kraemer did not testify at trial, but Dr.

      Ward did review his records while treating Ward. Ward objected to the

      admission of Exhibit J because it “contains inadmissible hearsay opinions of

      doctors who are not testifying in this case.” Tr. Vol. 3, p. 147. The trial court

      admitted the exhibit but gave the following limiting instruction:




      1
          The doctor is not related to Ward.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020   Page 3 of 11
              I’m just instructing the jury to let you know that you may see
              diagnoses from physicians that have not testified today. . . . [T]he
              medical records that were provided to Dr. Ward as he had
              testified today, that he said he had reviewed the medical records
              and he relied on them to some degree in order to make his own
              decisions.


              With that said, just because there’s a diagnosis in the record
              doesn’t mean that the diagnosis in the record is true. Because, for
              example, Dr. Ward didn’t meet with the Plaintiff until a couple
              years after the accident. Okay? So, he can’t say that this is what
              happened on such and such a day, but he can review a medical
              record, just like any of our doctors can rely on a medical record
              from a prior doctor, in trying to decide how to help treat all of us.
              Okay? So, it’s not whether it’s true, but it’s just there. So, you
              can’t treat that diagnosis as true that’s set forth in the medical
              record. All right?


      Tr. Vol. 3, pp. 150–51. Christner objected to the limiting instruction but did not

      specify the grounds for his objection. Id. at 151. Additional medical records that

      Dr. Ward relied on were also admitted into evidence.


[8]   Ward argued that as a result of the accident, he was entitled to receive $1.5

      million in damages. Christner argued that, if the jury determined that he was at

      fault, Ward proved that he suffered “between $12,500 and $17,500” in

      damages. Tr. Vol. 3, p. 215. Ultimately, the jury determined that Christner

      negligently operated his vehicle and caused the collision with Ward’s truck. The

      jury awarded Ward $500,000 in damages.


[9]   Christner filed a motion to correct error and argued that the trial court

      committed prejudicial error by tendering the limiting instruction to the jury.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020   Page 4 of 11
       Christner also claimed that the jury’s damage award was against the weight of

       the evidence. The trial court held a hearing on the motion on March 25, 2019.


[10]   Ward argued that Christner waived his claim of error by failing to raise a

       specific objection to the limiting instruction during trial. Christner argued that

       the limiting instruction was prejudicial because it invaded the province of the

       jury as the exclusive fact-finder. Christner claimed that the limiting instruction

       gave the jury the impression that Dr. Ward’s opinion was “accurate and all the

       other physicians were wrong.” Tr. Vol. 4, p. 2.


[11]   On April 5, 2019, the trial court issued an order denying Christner’s motion to

       correct error. In pertinent part, the order provides:


               7. Plaintiff correctly notes Defendant did not state a basis for
               objecting to the instruction;


               8. Further, at the time of the limiting instruction, the trial was
               still ongoing, final instructions had not been read to the jury, the
               jury had not begun deliberations, and neither party sought an
               additional instruction with regards to the opinion testimony
               contained in the medical records for purposes of final instructions
               for the jury;


               9. With regards to the limiting instruction, this Court believes,
               that if there was error, it was harmless error, as Defendant could
               have stated his objection with more particularity or take[n]
               corrective action during the trial by requesting an additional final
               instruction prior to the jury beginning deliberations[.]




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020   Page 5 of 11
       Appellant’s App. p. 22. The trial court also concluded that the damage award

       was supported by the evidence.


[12]   Christner now appeals.


                                         Discussion and Decision
[13]   Christner only challenges the limiting instruction on appeal arguing that it

       “invaded the province of the jury and violated defendant’s right to a trial by jury

       as protected by the Constitution of the State of Indiana.” Appellant’s Br. at 7.

       Christner claims that


                The information in the medical records was crucial to the defense
                of the litigation. The impact of [the] Trial Court’s instruction
                affected the defendant’s entire case, including the other medical
                records presented to the jury, the cross-examination of treating
                physicians which focused upon the medical records, as well as
                the jury’s perception of the defense.


       Id. at 7–8.


[14]   Christner did not make this argument during trial, but simply stated that he

       objected to the limiting instruction.2 Tr. Vol. 3, p. 151. It is well-settled that

       “[a]n objection which is not specific preserves no error on appeal.” Hill v.

       Rhinehart, 45 N.E.3d 427, 440 (Ind. Ct. App. 2015) (citation omitted), trans.

       denied. “Objections to instructions must state why the instruction is misleading,




       2
        Christner’s claim that the trial court gave the instruction “without consulting the affected party” is not
       supported by the record. See Appellant’s Br. at 15; Tr. Vol. 3, pp. 150–51.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020                    Page 6 of 11
       confusing, incomplete, irrelevant, not supported by the evidence, or an incorrect

       statement of the law.” Id. (citing Carrier Agency, Inc. v Top Quality Bldg. Products,

       Inc., 519 N.E.2d 739, 744 (Ind. Ct. App. 1988), trans. denied.


[15]   Christner acknowledges that he failed to make a specific objection at trial but

       argues that the trial court’s limiting instruction constitutes fundamental error.

       Our courts apply the fundamental error doctrine sparingly in civil cases. See

       Johnson v. Wait, 947 N.E.2d 951, 959 (Ind. Ct. App. 2011), trans. denied.

       Because the doctrine “is extremely narrow and applies only when the error

       constitutes a blatant violation of basic principles, the harm or potential for harm

       is substantial, and the resulting error denies the defendant fundamental due

       process,” the doctrine is typically applied only in cases where a person’s liberty

       or parental rights are at stake. Id.; Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct.

       App. 2010), trans. denied. Because this case involves only monetary damages,

       Christner has not persuaded us that the doctrine applies. See Johnson, 947

       N.E.2d at 959. See also United Farm Bureau Family Life Insurance Co. v. Fultz, 176

       Ind. App. 217, 230–31, 375 N.E.2d 601, 611 (1978) (explaining that

       “[f]undamental or plain error results only where a statement is made or an act is

       done which results in prejudicial error that goes to the very heart of a party's

       case and where that statement or act is wholly outside of the preventive or

       corrective powers of that party”).3




       3
        In Farm Bureau, the trial court gave a jury instruction without objection that shifted the burden of proof. On
       appeal, Farm Bureau argued that shifting the burden of proof deprived it of a fair trial and due process of law.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020                   Page 7 of 11
[16]   Christner also argues that the limiting instruction prejudiced his defense, which

       he claims


               was based upon the difference between the diagnosis made by
               John Ward, M.D., in 2015 of a right sided L5 radiculopathy, as
               compared with the diagnosis and treatment rendered by Paul
               [Kraemer], M.D., in 2013, for ‘nonspecific left leg complaints’,
               the negative results on the MRI’s, as well as the subsequent
               opinions and information contained within the medical records
               of the plaintiff’s previous physicians. The difference in the
               location of the symptoms as well as the difference in the
               diagnoses was the foundation of the argument that Plaintiff’s
               subsequent complaints in 2014 and 2015 were likely related to
               the physical demands of his employment rather than the minor
               motor vehicle collision.


       Appellant’s Br. at 8–9 (emphasis in original).


[17]   Dr. Ward testified that he relied on plaintiff Ward’s prior medical records and

       had no reason to question the physicians’ opinions contained therein. Tr. Vol. 3

       pp. 69–70. And the trial court’s limiting instruction advised that it was

       appropriate for Dr. Ward to rely on the previous records. The trial court’s

       limiting instruction, relating only to prior physicians’ diagnoses, was irrelevant

       to the MRI results, other test results, and Ward’s right-sided and left-sided




       Our court concluded that “the error complained of by Farm Bureau was not fundamental error because it
       could easily have been corrected or, at least, preserved for appeal, if Farm Bureau had made a timely
       objection.” Id. at 231, 375 N.E.2d at 611.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020             Page 8 of 11
       complaints of pain, which were all noted in the medical records admitted into

       evidence.


[18]   The trial court’s admonishment to the jury that they should not treat the prior

       physicians’ diagnoses as true was proper because the physicians did not testify

       at trial and were not subject to cross-examination.


               [F]or medical opinions and diagnoses to be admissible, they must
               meet the requirements for expert opinions set forth in Indiana
               Evidence Rule 702. Pursuant to Rule 702, the subject matter
               must be distinctly related to some scientific field, business, or
               profession beyond the knowledge of the average person. In
               addition, the witness must have sufficient skill, knowledge, or
               experience in that area so that the opinion will aid the trier of
               fact. Importantly, “‘[e]xpressions of opinion within medical or hospital
               records historically have not been admissible under the business records
               exception because their accuracy cannot be evaluated without the
               safeguard of cross-examination of the person offering the opinion.’”


       Flores v. Gutierrez, 951 N.E.2d 632, 640 (Ind. Ct. App. 2011) (internal citations

       omitted) (emphasis added), trans. denied; see also Walker v. Cuppett, 808 N.E.2d

       85, 97–98 (Ind. Ct. App. 2004) (stating that “[o]pinions and diagnoses

       contained in medical records, although they constitute an exception to the

       hearsay rule pursuant to Indiana Evidence Rule 803(6), still must meet the

       requirements for expert opinions set forth in Indiana Evidence Rule 702 in

       order to be admitted into evidence”).


[19]   Ward’s prior medical records were admitted into evidence, and Christner has

       not established that Dr. Kraemer or the other treating physicians were
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020   Page 9 of 11
       unavailable witnesses.4 Christner claims that the diagnoses by other treating

       physicians were crucial to his defense, but he did not present those witnesses at

       trial. Moreover, Ward’s medical records detail his complaints of both right and

       left leg pain after the accident. And the trial court’s limiting instruction did not

       prevent Christner from arguing that after Ward was released from physical

       therapy in March 2013, his “new onset of symptoms” were “more consistent

       with his physical activity at work and the physical labor.” Tr. Vol. 3, p. 214.

       Christner relied on Ward’s testimony, the physical nature of his employment,

       his medical records, and the chiropractor’s testimony to support his defense and

       request for a limited damage award. See id. at 216–17.


[20]   The trial court’s limiting instruction was a correct statement of law because the

       physicians did not testify at trial. Christner utilized other, properly admitted

       evidence to support his defense. For all of these reasons, we are not persuaded

       that the trial court’s limiting instruction prevented him from adequately

       presenting his defense at trial.5 We therefore affirm the judgment of the trial

       court.




       4
        In his brief, Christner attempts to support his argument by citing cases that involve the admission or
       exclusion of evidence. See e.g. Appellant’s Br. at 13 (citing Walker, 808 N.E.2d 85). Those cases have minimal
       persuasive weight in this appeal because we are only considering the effect of a limiting instruction.
       5
         Without citation to the record, Christner claims that the trial court’s limiting instruction “influenced the
       jury’s perception of defendant’s counsel.” Appellant’s Br. at 13. Christner claims the jury must have
       concluded that the “Trial Court’s instruction that the jury, ‘[C]an’t treat the diagnosis as true that’s set forth
       in the medical record’ left the jury with only one logical conclusion; that the information was false.” Id. at 14.
       This argument is simply speculative. And we do not agree that the instruction, particularly when it is
       considered in the context of the entire trial, created an impression that defense counsel was misleading the

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020                    Page 10 of 11
[21]   Affirmed.


       Robb, J., and Pyle, J., concur.




       jury. Moreover, counsel could have avoided this issue by presenting the testimony of Ward’s prior treating
       physicians at trial.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1009 | January 30, 2020               Page 11 of 11
