      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any
                                                                                   Mar 12 2020, 9:50 am
      court except for the purpose of establishing
      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                                   ATTORNEY FOR APPELLEE
      Michael W. Phelps                                        Blaire M. Evans
      Stewart Phelps Wood                                      State Farm Litigation Counsel
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Kimberly A. Stewart,                                     March 12, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-CT-2270
              v.                                               Appeal from the Marion Superior
                                                               Court
      Dianna N. Randle,                                        The Honorable James B. Osborn,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               49D14-1704-CT-14960



      Najam, Judge.


                                       Statement of the Case
[1]   Kimberly Stewart appeals the trial court’s denial of her motion to correct error

      after a jury entered a verdict in favor of Dianna Randle on Stewart’s complaint


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020                       Page 1 of 8
      alleging that Randle had negligently caused a car accident. Stewart presents a

      single issue for our review, namely, whether the evidence presented at trial

      supported the tender of two verdict forms to the jury, one finding for Randle

      and the other finding for Stewart. We affirm.


                                 Facts and Procedural History
[2]   On May 1, 2015, Stewart was stopped in traffic on Lafayette Road in

      Indianapolis when Randle failed to stop and collided with Stewart’s vehicle

      from the rear at low speed. The rear of Stewart’s vehicle was “a bit dented in”

      as a result of the impact. Tr. Vol. 2 at 53. Stewart felt “stunned” and

      “confused” after the accident, but she did not seek medical treatment that day.

      Id. at 59. The next day, which was a Saturday, Stewart had a “headache and

      just some pains.” Id. at 62. The following Monday, Stewart called her doctor,

      Dr. Allison Wright, and made an appointment for May 13. At that

      appointment, Stewart reported having a headache and neck pain. Dr. Wright

      diagnosed Stewart with whiplash and muscle spasms in her neck and trapezius

      muscles. Dr. Wright advised Stewart to take Aleve to treat her symptoms.


[3]   Prior to the May 2015 accident, in 2012 and 2013 Stewart had sought medical

      treatment for pain in her left shoulder and numbness in her left arm. An MRI

      of Stewart’s neck in October 2013 showed “mild spondylitis changes of the

      cervical spine most pronounced on the left at C6-C7” and “a minimal disc

      protrusion at C5-C6.” Id. at 24. At some point in 2014, Stewart began seeing a

      massage therapist, Karen Higgs. And just prior to the May 2015 accident,

      Stewart saw Higgs for massage treatments in February and March 2015, with
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 2 of 8
      reports of tightness in her upper back and neck. After the May 1, 2015,

      accident, Stewart saw Higgs for a massage on May 15 to treat her “neck in the

      upper shoulder area again.” Id. at 38.


[4]   Stewart saw Dr. Wright for a follow up visit on August 25, and Stewart

      reported that she was “still having left shoulder pain.” Id. at 12. And at a visit

      in April 2016, Dr. Wright instructed Stewart to get an MRI of her cervical

      spine. Dr. Wright described the MRI results as follows:


              [It shows] some arthritis but also looks like she had disc [sic]. So,
              you have the vertebrae and you have the discs that are in
              between. One was kind of pushing out at C5-C6. Then at C6-
              C7, she had some arthritis changes too, and then a little bit of the
              disc was kind of pushed out on the left, and that would
              correspond to where most of her pain—pain was both sides but
              mainly on the left. . . .


      Id. at 15. Dr. Wright referred Stewart to a pain specialist for further treatment.


[5]   On April 13, 2017, Stewart filed a complaint against Randle alleging injuries

      proximately caused by Randle’s negligence in the May 1, 2015, accident.

      During the ensuing jury trial, Stewart presented testimony from Higgs and from

      Dr. Wright, who testified that Stewart’s injuries were “probably related” to the

      accident. Tr. Vol. 2 at 19. Randle conceded that the accident was her fault, but

      she challenged Stewart’s evidence that Randle had proximately caused her

      alleged injuries. At the conclusion of the trial, over Stewart’s objection, the trial

      court tendered two verdict forms to the jury, one finding in favor of Stewart and

      the other finding in favor of Randle. The jury returned a verdict in favor of

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 3 of 8
      Randle. Stewart filed a motion to correct error, which the trial court denied.

      This appeal ensued.


                                     Discussion and Decision
[6]   Stewart contends that the trial court erred when it tendered to the jury two

      verdict forms, one finding in favor of Stewart and the other finding in favor of

      Randle. Stewart maintains that the evidence was undisputed that Randle

      proximately caused her injuries, and, therefore, the trial court was required to

      tender a single jury verdict form in Stewart’s favor with only the amount of

      damages to be determined by the jury. We review a trial court’s decision

      regarding jury verdict forms for an abuse of discretion. See Hrezo v. City of

      Lawrenceburg, 81 N.E.3d 1146, 1158 (Ind. Ct. App. 2017).


[7]   “In order to prevail on a claim of negligence the plaintiff must show: 1) duty

      owed to plaintiff by the defendant; 2) breach of duty by allowing conduct to fall

      below the applicable standard of care; and 3) compensable injury proximately

      caused by defendant’s breach of duty.” King v. Ne. Sec., Inc., 790 N.E.2d 474,

      484 (Ind. 2003). As Stewart correctly points out, Randle admitted liability in

      causing the rear-end accident on May 1, 2015. Accordingly, the only issue at

      trial was whether Randle proximately caused Stewart’s alleged injuries. As this

      Court has observed,


              it is well settled that “Indiana subscribes to the general principle
              of tort law that all damages directly attributable to the wrong
              done are recoverable.” Russell v. Neumann-Steadman, 759 N.E.2d
              234, 237 (Ind. Ct. App. 2001). A plaintiff has the burden to

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 4 of 8
              prove by a preponderance of the evidence that the medical
              expenses that he incurred were a proximate result of the
              defendant’s negligence. See Matovich v. Rodgers, 784 N.E.2d 954,
              958 (Ind. Ct. App. 2003). Once that burden is met, “the law
              allows an injured plaintiff to recover the reasonable cost of
              necessary medical expenses.” Russell, 759 N.E.2d at 237. The
              jury is not bound to award a plaintiff the exact amount of his
              medical expenses, but it may determine what amount is
              reasonable in light of the evidence. See Dee v. Becker, 636 N.E.2d
              176, 181 (Ind. Ct. App. 1994).


      Spaulding v. Cook, 89 N.E.3d 413, 421 (Ind. Ct. App. 2017), trans. denied.


[8]   Here, Stewart maintains that, in light of Dr. Wright’s testimony that Stewart’s

      injuries were caused by the May 1, 2015, accident, the trial court was required

      to submit a single verdict form to the jury in favor of Stewart. Stewart asserts

      that her medical testimony was “undisputed” and supported a damages award.

      Appellant’s Br. at 11.


[9]   But Stewart ignores Dr. Wright’s testimony acknowledging that Stewart’s

      injuries were similar to those she had had in 2012 and 2013. When Randle

      cross-examined Dr. Wright at trial about the similarities in Stewart’s symptoms

      pre- and post-accident, the following colloquy ensued:


              Q. . . . Does the indication [for the October 2013 MRI] say left
              arm and shoulder pain with numbness and tingling?

              A. Yes.

              Q. Okay. And it looks like they say on impression mild
              spondylitis changes of the cervical spine most pronounced on the
              left at C6-C7?
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 5 of 8
        A. [Yes].

        Q. And they say a minimal disc protrusion at C5-C6?

        A. [Yes].

        Q. Okay. Do those appear[] to be the same locations that are
        discussed in the MRI in July of 2016?

        A. Yes, those are the two areas that they comment on.

        Q. And in the July MRI it says progression of the mild disc
        degeneration. Would that be something you would expect to see
        some progression over the course of three years?

        A. Yeah, I guess it’s possible.

        Q. Because the degeneration isn’t something that gets better,
        correct?

        A. Right.

        Q. And an auto accident isn’t the only thing that could make
        degenerated disc disease progress or become symptomatic?

        A. Aging is usually what causes it.


Tr. Vol. 2 at 24. In addition, Dr. Wright was equivocal when she testified that

the May 1, 2015, accident had caused Stewart’s injuries, stating only that she

“surmise[d]” that the findings on the 2016 MRI were “probably related” to the

accident. Id. at 19. Finally, Higgs testified that she had provided massage

therapy to Stewart prior to the May 1, 2015, accident to treat tightness in her

shoulders, upper back, and neck.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 6 of 8
[10]   In light of the evidence that Stewart’s injuries might not have been caused by

       the accident, we reject Stewart’s assertion that the jury’s verdict was

       unsupported by the evidence. In Spaulding, as here, the plaintiff argued that

       “the jury verdict [wa]s inadequate as a matter of law because the zero damages

       award [wa]s contrary to the evidence.” 1 89 N.E.3d at 420. On appeal, we

       affirmed the verdict in light of: the low impact of the accident; plaintiff’s pre-

       existing conditions, which were similar to his alleged injuries caused by the

       accident; plaintiff’s failure to seek immediate medical treatment; and his

       doctor’s inability to testify “with absolute certainty that the accident” had

       caused plaintiff’s claimed injuries. Id. at 423. We held that “the jury’s

       determination that Spaulding was entitled to zero damages arising out of his

       accident with Cook [wa]s not outside the bounds of the evidence.” Id.


[11]   Likewise, here, we agree with Randle that the testimony of both Dr. Wright

       and Higgs supports a reasonable inference that Stewart’s injuries were the result

       of a pre-existing condition and not the May 1, 2015, accident. Thus, there is

       evidence to support the jury’s verdict for Randle. See id. Accordingly, we hold

       that the trial court did not abuse its discretion when it tendered both verdict

       forms to the jury, and the court did not abuse its discretion when it denied

       Stewart’s motion to correct error.




       1
          We note that, while Stewart asserts that the jury award of zero damages “warrants a new trial on
       damages,” her argument on appeal is narrowly focused on whether the trial court abused its discretion when
       it tendered both verdict forms to the jury. Appellant’s Br. at 9. Accordingly, we limit our analysis to that
       argument.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020                    Page 7 of 8
[12]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2270 | March 12, 2020   Page 8 of 8
