                                                                   Jun 11 2015, 9:05 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Robert A. Durham                                           Nicholas C. Deets
Indianapolis, Indiana                                      Hovde Dassow & Deets, LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Roger D. Levy,                                             June 11, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           29A02-1407-CT-482
        v.                                                 Appeal from the Hamilton Superior
                                                           Court;
                                                           The Honorable Daniel Pfleging,
Elizabeth Jackson,                                         Judge;
Appellee-Plaintiff.                                        29C02-1204-CT-3751




May, Judge.




Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                   Page 1 of 11
[1]   Roger D. Levy appeals the trial court’s order granting a new trial.


[2]   We reverse and remand for the court to reinstate the jury verdict.

                                   Facts and Procedural History
[3]   On April 4, 2011, Levy ran his vehicle into the back of Elizabeth Jackson’s

      vehicle. Minimal damage was done to the vehicles. No airbags deployed in the

      accident. Jackson declined medical treatment at the scene but went to the

      emergency room later in the evening.


[4]   One month later Jackson sought treatment from a chiropractor. She continued

      this treatment until March 2012. Jackson then sought treatment from an

      orthopedic surgeon and had shoulder surgery in July 2012.


[5]   Jackson filed a civil negligence action against Levy requesting damages for her

      “medical expenses and lost income as well as other compensable damages.”

      (App. at 12.) The jury returned a verdict for Levy. Jackson filed a motion for a

      new trial pursuant to Trial Rule 59(J). The court granted Jackson’s motion.


                                       Discussion and Decision
[6]   Levy asserts the trial court’s grant of a new trial must be reversed because the

      court did not comply with the Trial Rule 59(J) requirement to set forth all the

      evidence in the order for a new trial. 1 That rule states:




      1
       Levy also asserts the trial court erred even if it complied with Trial Rule 59(J); however, we need not
      address that issue as the first is dispositive.

      Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                            Page 2 of 11
        (J) Relief granted on motion to correct error. The court, if it
        determines that prejudicial or harmful error has been committed, shall
        take such action as will cure the error, including without limitation the
        following with respect to all or some of the parties and all or some of
        the errors:
        (1) Grant a new trial;
                                               *****
        (5) In the case of excessive or inadequate damages, enter final
        judgment on the evidence for the amount of the proper damages, grant
        a new trial, or grant a new trial subject to additur or remittitur;
                                               *****
        (7) In reviewing the evidence, the court shall grant a new trial if it
        determines that the verdict of a non-advisory jury is against the weight
        of the evidence; and shall enter judgment, subject to the provisions
        herein, if the court determines that the verdict of a non-advisory jury is
        clearly erroneous as contrary to or not supported by the evidence, or if
        the court determines that the findings and judgment upon issues tried
        without a jury or with an advisory jury are against the weight of the
        evidence.
        In its order correcting error the court shall direct final judgment to be
        entered or shall correct the error without a new trial unless such relief
        is shown to be impracticable or unfair to any of the parties or is
        otherwise improper; and if a new trial is required it shall be limited
        only to those parties and issues affected by the error unless such relief
        is shown to be impracticable or unfair. If corrective relief is granted,
        the court shall specify the general reasons therefor. When a new trial is
        granted because the verdict, findings or judgment do not accord with
        the evidence, the court shall make special findings of fact upon each
        material issue or element of the claim or defense upon which a new
        trial is granted. Such finding shall indicate whether the decision is
        against the weight of the evidence or whether it is clearly erroneous as
        contrary to or not supported by the evidence; if the decision is found to be
        against the weight of the evidence, the findings shall relate the supporting and
        opposing evidence to each issue upon which a new trial is granted; if the
        decision is found to be clearly erroneous as contrary to or not
        supported by the evidence, the findings shall show why judgment was
        not entered upon the evidence.
Ind. Trial Rule 59 (J) (emphasis added).

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                Page 3 of 11
[7]   We review the trial court’s decision applying the following standard:

              A trial court has wide discretion to correct errors and to grant new
              trials. In determining whether to grant a new trial, the trial judge has
              an affirmative duty to weigh conflicting evidence. The trial judge sits
              as a thirteenth juror and must determine whether in the minds of
              reasonable men a contrary verdict should have been reached.
              When a trial court grants a new trial pursuant to Trial Rule 59(J), the
              granting of relief is given a strong presumption of correctness. We will
              reverse the grant of a new trial only for an abuse of discretion. This
              court neither weighs the evidence nor judges the credibility of the
              witnesses. An abuse of discretion will be found when the trial court’s
              action is against the logic and effect of the facts and circumstances
              before it and the inferences that may be drawn therefrom. An abuse of
              discretion also results from a trial court’s decision that is without
              reason or is based upon impermissible reasons or considerations.
      Leroy v. Kucharski, 878 N.E.2d 247, 250 (Ind. Ct. App. 2007) (internal citations

      and quotations omitted), trans. denied.


[8]   Our Indiana Supreme Court held the “substantive and procedural

      requirements” needed to grant a new trial under Trial Rule 59(J) are

      “paramount.” Weida v. Kegarise, 849 N.E.2d 1147, 1151 (Ind. 2006). When

      correcting errors, a trial court is required to “specify the general reasons

      therefor.” Ind. Trial Rule 59(J). However, when granting a new trial against

      the jury verdict, a court is required to make “additional special findings.”

      Weida, 849 N.E.2d at 1151. This task is intended to be difficult and onerous to

      ensure the trial court is not abusing its power over the will of the jury:

              Justice DeBruler explained that this “extraordinary and extreme”
              power can be properly used “only if it is based upon a complete
              analysis of the relevant facts and applicable law, and sets out on paper
              the constituent parts of that analysis.” Nissen, 265 Ind. at 464-65, 358

      Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015            Page 4 of 11
              N.E.2d at 978. Complete analysis is required because it is
              “compliance with the arduous and time-consuming requirements of
              the Rule which provides assurance to the parties and the courts that
              the judge’s evaluation of the evidence is better than the evaluation of
              the jury.” Id. Put another way, compliance with the requirement is
              necessary to assure the public that the justice system is safe not only
              from capricious or malicious juries, but also from usurpation by
              unrestrained judges.
      Id. at 1153.


[9]   The trial court granted Jackson’s motion for a new trial in an order that

      provided, in pertinent part:

              2.      At trial, Defendant Roger Levy admitted that he was negligent
              and at fault for the collision on April 4, 2011. As a result, the jury was
              instructed that the only issue it must decided [sic] is the amount of
              money that would fairly compensate Plaintiff Elizabeth Jackson for
              the injuries and damages sustained in the collision. (Parties’ Agreed
              Issue Instruction).
              3.      At trial, Plaintiff Elizabeth Jackson called three medical
              providers as witnesses: Jamie Vanderwielen, PAC, the physician’s
              assistant who saw her in the emergency room on the night of the
              collision; Mark Woloshin, D.C.; and Ralph Buschbacher, M.D. Each
              of these expert medical witnesses testified that they believed Plaintiff
              Elizabeth Jackson suffered injuries in the collision on April 4, 2011.
              4.     The parties stipulated to the cost of Plaintiff Elizabeth Jackson’s
              medical treatment, including the fact that the cost of her visit to the
              emergency on the night of the collision was $444.00. (Joint Exhibit
              Binder, Ex. 5).
              5.       Defendant Roger Levy did not call any medical witnesses at
              trial to provide expert testimony that Plaintiff Elizabeth Jackson was
              not injured in the collision on April 4, 2011.
              6.      At the conclusion of trial, the jury returned a verdict for the
              defense despite the fact that Defendant Roger Levy admitted fault of
              the collision on April 4, 2011. The jury did not award Plaintiff
              Elizabeth Jackson the amount for the medical bill for her visit to the

      Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015           Page 5 of 11
                emergency room on the night of the collision. This verdict is against
                the weight of the evidence presented at trial.
                                                         *****
                10.     The Court finds that the jury’s decision to render a defense
                verdict in this case is against the weight of the evidence. Liability was
                admitted. Every medical witness who testified at trial concluded that
                the Plaintiff suffered injuries in this collision. A medical bill for the
                Plaintiff’s medical treatment at the emergency room on the night of the
                collision was incurred.
       (App. at 7-10.)


[10]   That order sets out evidence in favor of a verdict for Jackson but does not

       mention any of the evidence in favor of a verdict for Levy. Our review of the

       record confirmed, as Levy’s brief alleged, the existence of significant evidence

       in the record supporting the jury’s verdict in favor of Levy. 2 Therefore, as the




       2
         For example, at trial, evidence was presented of the minimal damage done to Jackson’s vehicle.
       (Joint Ex. 6.) Levy fixed the damage to his vehicle with touch up paint. (Tr. at 378.) Levy’s vehicle
       was travelling less than five miles per hour at impact. (Id. at 377.) No airbags deployed in either
       vehicle. (Id. at 348, 378.)
       Jackson refused an ambulance at the scene. (Id. at 325.) When Jackson did go to the emergency room
       later that day, the emergency room physicians’ assistant found that Jackson had no discoloration, no
       swelling, and no signs of injury, and that Jackson had full range of motion. (Id. at 178-79.) Jackson
       did not pursue further treatment until a month after the accident. (Id. at 224.) Jackson told doctors
       and testified that Levy was going fifty miles per hour and “coming up like a maniac.” (Id. at 347-48.)
       Jackson reported to one doctor the symptoms started six to seven months after the accident. (App. at
       53.) Jackson reported to this doctor the cause of the problem was unknown. (Id.)
       Dr. Ralph Buschbacher testified it was possible “for one car to rear end another and just simply not
       generate enough force to cause injury . . . [and] the more damage there is to the vehicle, the more likely
       it is that someone will get injured from it.” (Tr. at 291.) Buschbacher testified it was possible the
       shoulder injury was not caused by the accident, (id. at 281-82), but rather Jackson’s injuries were
       “largely caused by the normal wear and tear that goes along with aging,” (id. at 283), and neck pain is
       a very common complaint in people over age forty. (Id. at 290.) Buschbacher testified swimming and
       rowing could lead to Jackson’s injuries and working at a computer is the statistically most likely
       activity leading to neck pain. (Id. at 284-85.)
       Jackson’s husband testified Jackson swam and kayaked prior to the accident. (Id. at 367.) Jackson
       worked at a computer. (Id. at 203.) Dr. Mark Woloshin testified Jackson’s work “keeps things
       irritated.” (Id.)

       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                             Page 6 of 11
       court’s order only states the evidence in favor of Jackson, and no evidence in

       favor of the jury verdict, the court’s order failed to comply with Trial Rule

       59(J). See Weida, 849 N.E.2d at 1155.


[11]   When a court fails to comply with Trial Rule 59(J)’s requirements, we have no

       choice but to reinstate the jury’s verdict because “[e]xplanations crafted after

       appellate remand - six months or a year after the trial court heard the evidence

       (or in this instance, two years) - represent an inadequate exercise of [the court’s]

       obligation.” Id. at 1153. Accordingly, we reinstate the jury verdict.


[12]   We reverse and remand for the court to reinstate jury verdict.


       Mathias, J., concurs. Robb, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015   Page 7 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Roger D. Levy,                                             Court of Appeals Case No.
                                                                  29A02-1407-CT-482
       Appellant-Defendant,

               v.

       Elizabeth Jackson,
       Appellee-Plaintiff.




       Robb, Judge, dissenting

[13]   At the outset of the decision in Weida, the court stated:

               Setting aside a verdict because the trial court concludes that it is
               against the weight of the evidence is a weighty but well-recognized
               power of common law judges. Our rules require a judge who exercises
               this power to describe the reasons in some detail. When the trial court
               acts without giving reasons, the verdict should be reinstated on appeal.
       849 N.E.2d at 1148 (emphasis added). The trial court in that case had not only

       failed to make special findings, it “[did] not even ‘specify the general reasons’

       why corrective relief was granted,” which was required even before the

       adoption of Rule 59(J). Id. at 1154 n.5; see also Walker v. Pullen, 943 N.E.2d

       349, 352 (Ind. 2011) (“In this case, the trial court granted a new trial because it

       believed the verdict did not accord with the evidence. It did not state whether

       the verdict was against the weight of the evidence or clearly erroneous. The

       court made only general findings and not the special findings required by Rule


       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                Page 8 of 11
       59(J).”); State v. White, 474 N.E.2d 995, 1000 (Ind. 1985) (where the trial court

       did not expressly state it was granting a new trial because the verdict was

       against the weight of the evidence and did not otherwise enter a statement of

       evidence supporting the grant of a new trial, the supreme court reversed and

       ordered the jury verdict reinstated, noting a trial court “may not overturn a jury

       verdict by a naked statement that it is erroneous”).


[14]   I acknowledge our supreme court precedent in Weida and the concerns it

       addresses as set forth by the majority. See slip op. at ¶ 8. However, I believe it

       is antithetical to the principles of due process to penalize a party for a trial

       court’s failure to follow protocol without at least offering the opportunity for the

       trial court to correct its failings. White acknowledged that “[i]t may be regarded

       as harsh treatment to deny the appellee the benefit of a ruling won at the trial

       court level when a remand might preserve it.” 474 N.E.2d at 1000; see also

       American Family Home Ins. Co. v. Bonta, 948 N.E.2d 361, 366 (Ind. Ct. App.

       2011) (“[W]e understand that this result may seem harsh as a litigant may be

       disadvantaged not through his own fault but because a trial court failed to

       follow all the [procedural] requirements . . . .”). However, Weida, Walker, and

       White all addressed orders in which a trial court completely failed to even

       attempt to make special findings to support its decision. I would limit

       application of the rule announced therein to cases with those facts and would




       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015      Page 9 of 11
       not extend it to cases such as this one, where the trial court at least tried to

       make the required findings. 3


[15]   In addition, Weida hearkens back to White, which in turn hearkens back to

       Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 Ind. 457, 358 N.E.2d

       974 (1976). In Nissen, the court noted that when a trial court has failed to

       comply with Rule 59, courts have responded in differing ways: some have

       made a rough judgment as to whether the trial court was correct based upon its

       own review of the evidence in the record; some have remanded to the trial court

       for additional findings; and some have reversed and ordered reinstatement of

       the judgment. Id. at 976, 358 N.E.2d at 460. “No single relief has been deemed

       appropriate in such cases.” Id. The court in Nissen ultimately reversed the

       order granting a new trial, but due to a motion to correct error pointing out that

       the trial court’s original order did not set forth the supporting and opposing

       evidence as required by the rule, the trial court had been afforded an

       opportunity prior to appeal to reconsider its findings and order in light of the

       rule’s requirements and was still unable to supplement the findings or set forth

       the supporting and opposing evidence. Id. at 977-78, 358 N.E.2d at 463-64.

       Because in Nissen, the parties were afforded the opportunity to point out the

       deficiencies of the trial court’s order and the trial court was afforded the




       3
         I acknowledge another panel of this court recently decided a case similar to this one and held the trial
       court’s failure to include opposing evidence in its order granting a new trial pursuant to Trial Rule 59
       required reinstatement of the jury verdict. See Diehl v. Clemons, 12 N.E.3d 285, 294-95 (Ind. Ct. App. 2014),
       trans. denied.

       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015                          Page 10 of 11
       opportunity to correct the omissions in light of the requirements of the rule,

       Nissen does not necessarily lay the groundwork for the later, harsher rule, but

       supports the notion that the trial court can and should be allowed to reconsider

       its order when it comes up short.


[16]   Here, the trial court gave the reasons why it believed the ends of justice required

       a new trial, describing in some detail the evidence supporting such a judgment

       but failing to specifically weigh it against the opposing evidence. If the trial

       court considered the opposing evidence in reaching its conclusion, then an

       amended order on remand would be a simple matter. And if the trial court did

       not consider the opposing evidence, then it has the chance on remand to fix the

       problem on its own accord and vacate the order for a new trial. I do not mean

       to imply that a trial court should not endeavor in every instance to fully comply

       with the requirements placed upon it by our rules and statutes. As White noted,

       “if the court overrides the jury in its special domain and substitutes its verdict

       for theirs without a clear showing that the ends of justice required it, it is likely

       that they did not.” 474 N.E.2d at 1000. When a trial court does not even

       attempt to make that showing, perhaps it is because it would be unable to do so.

       But when it appears that a trial court has endeavored to do so but has simply

       fallen short in some particular, I would allow the trial court an opportunity to

       supplement its order.




       Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015     Page 11 of 11
