ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
David E. Ballard                                            Robert G. Vann
Clint A. Zalas                                              Merrillville, Indiana
South Bend, Indiana



                                                                                FILED
                                           In the                            Mar 15 2011, 10:40 am


                          Indiana Supreme Court                                       CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court
                              _________________________________

                                   No. 64S05-1101-CT-0006

DEBRA L. WALKER,
                                                            Appellant (Defendant below),

                                                v.

DAVID M. PULLEN,
                                                            Appellee (Plaintiff below).

                              _________________________________

                Appeal from the Porter Superior Court, No. 64D01-0603-CT-1883
                           The Honorable Roger V. Bradford, Judge
                           _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-1002-CT-127
                            _________________________________

                                        March 15, 2011

Shepard, Chief Justice.


        David Pullen sought damages for injuries he suffered when Debra Walker hit him from
behind in a restaurant drive-through lane. After winning a jury verdict, Pullen sought a new trial
asserting that the amount of damages awarded was against the weight of the evidence. The trial
court granted the motion, but its findings of fact under Trial Rule 59(J) were not sufficient to
demonstrate why the jury verdict should be cast aside. We reverse and remand with instructions
to reinstate the jury’s verdict.
                                  Facts and Procedural History


       On March 5, 2004, Debra Walker was behind David Pullen in the drive-through lane of a
Dunkin’ Donuts in Valparaiso. Walker’s foot slipped off the brake pedal and she rear-ended
Pullen’s car.      Walker and Pullen exchanged information and then left for their respective
workplaces.


       About eleven days after the accident, Pullen saw a Dr. Lakhani for neck pain. Dr.
Lakhani prescribed trigger-point injections and physical therapy. Pullen saw Dr. Lakhani for the
last time in August 2004. He did not see a doctor for neck pain again until 2007.


       In 2007, Pullen began receiving treatment for neck pain from Dr. Renata Variakojis at the
University of Chicago. There was conflicting evidence at trial about whether this pain was a
result of the 2004 collision. Pullen called Dr. Variakojis, who testified that Pullen’s pain in 2007
―could be‖ caused by the 2004 accident. (Variakojis Dep. at 17, 25.) Walker called an expert,
Dr. Robert Yount, who testified that Pullen’s 2007 pain was not caused by the accident but rather
was likely caused by walking on crutches following knee surgery in 2006. (Yount Dep. at 44–
45; Def. Ex. 5.)


       Pullen did not submit any medical bills at trial, but he did tender a list of damages:
$10,722 for physical therapy and other services at Porter Memorial Hospital; $1376 for office
visits with Dr. Lakhani; $422 to Radiologic Associates of Northwest Indiana; and $12,499.50 to
the University of Chicago. (Pl. Ex. 1.) The total damages Pullen requested were $25,019.50.
The jury returned a verdict for Pullen and awarded him $10,070. After the dollar amount, the
jury wrote ―for P.T. & inital [sic] medical assessment.‖ (App. at 8.)


       Pullen filed a motion to correct error, arguing that the jury verdict was incorrect because
Pullen’s bill for physical therapy alone was $10,722, and that his bills for physical therapy and
medical assessment totaled $12,500. Pullen’s lawyers contend that all the charges from Porter
Memorial Hospital were for physical therapy, but the record does not support their position. In




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fact, some charges from Porter were for Pullen’s initial x-rays and $2171 for an MRI.1 If one
subtracts the fees for the later MRI ($2171 for the MRI and $285 to have the MRI read) from
Pullen’s $12,520, the remaining expenses total $10,064. (See Pl. Ex. 1; Pl. Ex. 3.) This number
is the total for Pullen’s doctor visits, the initial x-rays, and the charges from Porter that are
actually attributable to physical therapy—in other words, this number represents the fees for
Pullen’s medical assessments and his physical therapy. It is presumably what the jury meant
when it awarded $10,070 ―for P.T. and inital [sic] medical assessment.‖


        The trial court granted Pullen’s motion to correct error. The full text of the court’s ruling
was:
                1. The undisputed medical testimony in this case established that
        Plaintiff’s medical bills from Porter Memorial Hospital, Dr. Lakhani, and
        Radiologic Associates of Northwest Indiana were for appropriate treatment of
        injuries suffered by Plaintiff as a result of the negligence of Defendant.
                2. Those medical bills totaled $12,520.00. The jury’s verdict was less than
        those medical bills.
                3. There was also undisputed medical testimony that Plaintiff endured pain
        and suffering for a minimum of five months. The jury’s verdict obviously
        contained no award for that, however minimal.

(App. at 6–7.) The Court of Appeals affirmed. Walker v. Pullen, 934 N.E.2d 1268 (Ind. Ct.
App. 2010) (table). We granted transfer and now reverse, directing that the jury verdict be
reinstated.


                                          Standard of Review


        As a general matter, a decision to grant a new trial (often called ―acting as the thirteenth
juror‖) is reviewed for an abuse of discretion, and the trial court’s decision is given a strong
presumption of correctness. Weida v. Kegarise, 849 N.E.2d 1147 (Ind. 2006); see also Lake
Mortg. Co. v. Federal Nat’l Mortg. Ass’n, 262 Ind. 601, 321 N.E.2d 556 (1975). The strong


1
  In his brief, Pullen’s counsel stated that ―the [jury] award did not even match the physical therapy bill.
The physical therapy bill was $10,722.00 and the jury awarded only $10,070.00.‖ (Appellee’s Br. at 4
(citations omitted).) Pullen made a nearly identical assertion in his motion to correct error. (App. at 21.)
Our review of the record shows that Pullen’s physical therapy bill was only $8057, which was adequately
covered by the jury’s verdict.


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presumption of correctness only arises if the court’s decision is supported by the special findings
required by Trial Rule 59(J). Weida, 849 N.E.2d at 1154; Lake Mortg., 260 Ind. at 605–06, 321
N.E.2d at 559.




                          Treading Carefully as the Thirteenth Juror


       Indiana Trial Rule 59(J) authorizes trial courts to grant new trials to correct an error in
prior proceedings. In all cases where relief is granted, the court is required to ―specify the
general reasons‖ for granting relief. Setting aside a jury’s verdict and granting a new trial is not
to be done lightly, thus Rule 59(J) requires that, when granting a new trial because the verdict
does not accord with the evidence, judges must


       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 the judgment was not entered upon the
       evidence.

Ind. Trial Rule 59(J).


       We have long held that strict compliance with the substantive and procedural
requirements of Trial Rule 59(J) is of ―paramount‖ importance. Nissen Trampoline Co. v. Terre
Haute First Nat’l Bank, 265 Ind. 457, 464, 358 N.E.2d 974, 978 (1976). Specific findings are
necessary to temper the use of the ―extraordinary and extreme‖ power to overturn a jury’s verdict
by assuring that the decision is based on a complete analysis of the law and facts. Id. at 464–65,
358 N.E.2d at 978. In Weida v. Kegarise, we explained that the most important reason for Rule
59(J)’s ―arduous and time-consuming requirements,‖ Nissen, 265 Ind. at 464–65, 358 N.E.2d at
978, is ―to assure the public that the justice system is safe not only from capricious or malicious




                                                 4
juries, but also from usurpation by unrestrained judges.‖ Weida, 849 N.E.2d at 1153.2 In other
words, when a ―court overrides the jury in its special domain and substitutes its own verdict for
theirs without a clear showing that the ends of justice required it, it is likely that they did not.‖
State v. White, 474 N.E.2d 995, 1000 (Ind. 1985). When a court grants a new trial without
making the specific findings, the remedy on appeal is to reinstate the jury verdict. Weida, 849
N.E.2d 1147.


        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 59(J).


        This case provides a prime example of why special findings are required when the judge
acts as the thirteenth juror. Pullen claimed a total of $25,019.50 in damages for medical bills—
$12,520 for treatment in 2004 and $12,499.50 for treatment in 2007 and 2008. The jury
apparently did not agree that Walker’s negligence required all of those treatments and awarded
Pullen $10,070 ―for P.T. & inital [sic] medical assessment.‖ (App. at 8.) By our count, Pullen’s
expenses for physical therapy, appointments with his regular physician, and the initial x-rays
following his first appointment were $10,064. After hearing all the testimony, the jury may
apparently have believed these damages were the result of Walker’s negligence, and believed
Walker’s medical expert that the remainder of the expenses were either unnecessary or unrelated.


        The court’s statement that the evidence was ―undisputed‖ is not a sufficient special
finding to justify supplanting the jury’s verdict. The trial court’s findings do not suggest that this
was an unjust result.




2
  The court in Leroy v. Kuchaski, 878 N.E.2d 247 (Ind. Ct. App. 2007), stated that the purpose of Rule
59(J)’s special findings requirement ―is to provide the parties and the reviewing court with the theory of
the trial court’s decision.‖ As the decision in Weida indicated, this is not the primary reason for the Rule
59(J) requirements.


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                                            Conclusion


       We reverse and remand with direction to reinstate the jury verdict.


Sullivan, Rucker, and David, JJ., concur.

Dickson J., concurs in result with separate opinion.




                                                6
Dickson, Justice, concurring in result.


       The majority views the jury verdict as just, noting that the verdict was arguably
consistent with the jury’s apparent decision to award special damages only for the plaintiff’s
physical therapy and initial medical assessment. This rationale omits consideration of the jury’s
obvious failure to award any general damages for the inevitable pain and suffering associated
with the initial injuries necessitating such treatment. The omission of any award for general
damages undermines my confidence in the justness of the verdict.


       I agree with the majority, however, that the trial court’s order granting a new trial was not
compliant with the specificity requirements of Indiana Trial Rule 59(J). For this reason, I agree
that the order granting a new trial must be reversed and the jury verdict reinstated.




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