                                                                         FILED
                                                                    Sep 20 2016, 8:40 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark D. Gerth                                              David W. Stone IV
Kightlinger & Gray LLP                                     Stone Law Office & Legal
Indianapolis, Indiana                                      Research
                                                           Anderson, Indiana
                                                           Michael W. Phelps
                                                           Rom Byron
                                                           Nunn Law Office
                                                           Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State Farm Mutual Automobile                               September 20, 2016
Insurance Company,                                         Court of Appeals Case No.
Appellant-Defendant,                                       18A02-1505-CT-292
                                                           Appeal from the Delaware Circuit
        v.                                                 Court
                                                           The Honorable Marianne L.
Sean Woodgett,                                             Vorhees, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           18C01-1302-CT-11



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016                 Page 1 of 16
[1]   State Farm Mutual Automobile Insurance Company (“State Farm”) appeals

      the trial court’s order on verdict and judgment in favor of Sean Woodgett. State

      Farm raises three issues, one of which we find dispositive and which we revise

      and restate as whether the court abused its discretion in excluding certain

      evidence. We reverse and remand.


                                       Facts and Procedural History

[2]   On September 20, 2011, at approximately 1:10 p.m., Woodgett was driving a

      van northbound on Batavia Avenue in Muncie, Indiana. While stopped

      waiting for the traffic signal to change at 7th Avenue, Woodgett’s van was struck

      from behind by a van being operated by Timmie Storms. The force of the

      collision caused Woodgett’s van to roll into the back of another automobile.

      Woodgett’s father Nicklaus arrived on the scene a few minutes after the

      accident, and about fifteen minutes later he followed Woodgett as they began to

      drive to the hospital. On the way, the bumper fell off the van, and they decided

      to first drive home and leave the van. After doing so, they proceeded to the

      emergency room where Woodgett was treated for neck pain and a headache.

      He was diagnosed with a cervical sprain and advised to take ibuprofen. At the

      time, Woodgett had uninsured/underinsured motorist coverage pursuant to a

      policy issued by State Farm.


[3]   On October 19, 2011, Woodgett saw his family physician, Dr. Mark Litz, for

      “intermittent stress headaches” and neck pain. Transcript at 135. Woodgett

      next visited Dr. Litz on January 17, 2012, again for intermittent stress

      headaches and neck pain, and Dr. Litz prescribed physical therapy. In
      Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 2 of 16
      February 2012, Woodgett underwent five physical therapy sessions, and

      afterwards he reported that he had slight headaches that came infrequently and

      was able to engage in all of his recreational activities with no neck pain at all.


[4]   In January 2013, Woodgett saw neurologist, John D. Wulff, M.D., Woodgett

      described two types of headaches he was experiencing, including a daily mild

      headache and a “very severe headache” about three or four times per week

      involving a “throbbing sensation over the left posterior head” that can be

      “unbearable.” Exhibits at 158. Woodgett noted that since the accident of

      September 20, 2011, his mild headaches “gradually got worse.” Id. Dr. Wulff

      diagnosed Woodgett with migraines.


[5]   On February 25, 2013, Woodgett filed a complaint for damages against Storms

      individually and State Farm pursuant to Woodgett’s uninsured motorist

      coverage.1 The court commenced a jury trial on April 7, 2015. At the outset of

      trial, Woodgett orally moved in limine to preclude State Farm from introducing

      any evidence concerning a second motor vehicle accident involving Woodgett

      occurring in the fall of 2012. In his oral motion, Woodgett’s counsel stated:


                 I would move in limine to prohibit the defense from discussing
                 an intervening cause. What we’re talking about is in the
                 deposition of Sean Woodgett, defense counsel raised were you in
                 any crashes after this crash concerning this case. Yes, in the fall
                 of 2012. Okay, what was it. It was a minor sideswipe crash.
                 Were you injured? No. Did you go to the hospital? No. Did



      1
          The complaint also named another insurer which was subsequently dismissed from the action.


      Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016                     Page 3 of 16
                 your headaches get worse after the fall of 2012? Yes. How did
                 your headaches get worse? Well, they were progressively getting
                 worse. The crash didn’t – in 2012 didn’t cause them to get
                 worse. They had been getting worse for a period of time and
                 they just kept on getting worse. In the depositions of Dr. Litz,
                 family doctor, and Dr. Wulff, neurologist, there’s no discussion
                 as to this crash or any potential impact on [Woodgett’s]
                 headaches.[2]


      Transcript at 13. Counsel for State Farm responded that Woodgett admitted

      that his pain increased after the second accident, that he did not tell his doctors

      about the second accident, and that the doctors testified during depositions that

      minor injuries can cause the sort of headaches that Woodgett experienced.

      Woodgett’s counsel argued that State Farm had the opportunity “to do a Trial

      Rule 35 exam and have a doctor opine on whether it was more likely than not

      that the second wreck caused the exacerbation of the injuries,” and State Farm

      responded that it was not its duty to prove causation. Id. at 15. The court

      indicated that it would examine a case directed to its attention by State Farm,

      Walker v. Cuppett, 808 N.E.2d 85 (Ind. Ct. App. 2004), and then revisit the issue.


[6]   State Farm’s counsel directed the court’s attention to testimony given by Dr.

      Wulff at his first deposition of March 12, 2014, as follows:




      2
          Woodgett’s deposition is not contained in the record on appeal.


      Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 4 of 16
              Q. And given the trauma that’s associated when you say,
              perhaps, post-traumatic migraine or whatnot, does that trauma
              have to be major? Can it be minor?


              A. It can be pretty minor trauma. . . .


      Appellant’s Appendix at 90. State Farm argued that this testimony was

      “enough for the Walker v. Cuppett standard, possibility versus probability being

      the standard.” Transcript at 27. Woodgett’s counsel responded that Dr. Wulff

      was opining regarding the first accident, that the statement was being taken out

      of context, and that “without referencing the second accident, he can give no

      causal basis for that.” Id. When asked by the court whether the jury would be

      asked to speculate regarding injury from the second accident, State Farm’s

      counsel argued:

              Not at all, Your Honor. There’s even evidence, in addition to
              the ten (10) month gap between the visits, there’s evidence that
              there were different types of headaches. The first round of
              headaches, we’re just talking, the medical records note them as
              muscular stress headaches. The second round of treatment, it
              goes from migraine headaches. So there’s evidence there as to
              the difference between the two (2). They don’t have to speculate
              because they can look at the medical records and they can see
              that they’re different types of headaches. And they tie in nicely
              between the two (2) accidents.


      Id. at 32.


[7]   Following a recess, the court ruled that “there’s no medical evidence that

      directly speaks to the issues of the injury that [Woodgett] suffered as a result of

      Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 5 of 16
       the second collision,” that the jury would have to speculate as to the injury that

       the second collision caused,” that the case of Daub v. Daub, 629 N.E.2d 873

       (Ind. Ct. App. 1994), trans. denied, states that head injuries are not within a lay

       person’s understanding and expert testimony is required, and it ruled that

       “without expert testimony from a doctor by way of using [Woodgett’s] doctor

       or by having a Trial Rule 35 examination and a medical doctor’s opinion, then

       I would have to exclude the evidence as to the second collision,” and it granted

       Woodgett’s motion. Id. at 37.


[8]    On the second day of trial, April 8, 2015, State Farm moved the court to

       reconsider its ruling, which the court denied. Subsequently, State Farm made

       an offer to prove noting that Dr. Wulff’s deposition testimony was “enough to

       relate the accidents after that point to the headaches, particularly the migraine

       headaches complained of here, which were not documented into the records

       until January of 2013” and that Woodgett misled the doctors when he told

       them that he had experienced “no other trauma.” Id. at 172-173.


[9]    The jury returned a verdict in favor of Woodgett in the amount of $85,000, and

       the court entered judgment in Woodgett’s favor for that amount against Storms

       and State Farm.


                                                     Discussion

[10]   The dispositive issue is whether the trial court abused its discretion in excluding

       evidence of the second automobile accident. We review a trial court’s decision

       to admit or exclude evidence for an abuse of discretion. Lanni v. Nat’l Collegiate

       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 6 of 16
       Athletic Ass’n, 989 N.E.2d 791, 797-798 (Ind. Ct. App. 2013). We will reverse a

       trial court’s decision to admit or exclude evidence only if that decision is clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom. Id. at

       798. A trial court may also abuse its discretion if its decision is without reason

       or is based upon impermissible considerations. Walker v. Cuppett, 808 N.E.2d

       85, 92 (Ind. Ct. App. 2004). Even if a trial court errs in a ruling on the

       admissibility of evidence, this court will reverse only if the error is inconsistent

       with substantial justice. Id.


[11]   State Farm argues that evidence of the second accident was admissible to

       inform the jury as to a possible cause of Woodgett’s migraine headaches and

       that the court abused its discretion in excluding this evidence, ruling that it

       “was not admissible because it was not supported by any expert medical

       testimony to demonstrate a connection . . . .” Appellant’s Brief at 7. It argues

       that this court has previously rejected a rule that a defendant’s evidence on

       causation must be supported by expert testimony that such causation was likely,

       citing to Walker and Armstrong v. Gordon, 871 N.E.2d 287 (Ind. Ct. App. 2007),

       reh’g denied, trans. denied, for the proposition. State Farm asserts that “the heart

       of the matter which the jury was asked to decide was whether [Woodgett’s]

       ongoing migraine headaches were caused by the negligence of the defendant”

       and that the “court’s exclusion of evidence of the second motor vehicle collision

       directly implicated that issue,” which “was error and inconsistent with

       substantial justice.” Id. at 13.


       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 7 of 16
[12]   State Farm also points to Dr. Wulff’s testimony that posttraumatic or

       postconcussive headaches are “usually” caused when “[s]omething has jostled

       the head and brain to result in headache issues, you know, memory issues, and

       again, with him, perhaps some of the sleep issues as well,” and argues it should

       have been given the opportunity to question Woodgett about the second

       accident regarding whether it jostled Woodgett’s head and brain to result in

       headache issues. Appellant’s Reply Brief at 5. State Farm also argues that it

       was not required to address the second accident during cross-examination of

       Dr. Wulff nor offer its own expert testimony and instead was required only to

       present evidence that it was possible the second accident caused Woodgett’s

       migraines. It maintains that the timeline of events, in which Woodgett

       completed his first course of physical therapy in February of 2012, was involved

       in a second accident in the fall of 2012, and then sought further medical care in

       late January 2013, and that his migraines were not documented until three or

       four months after the second accident, met the applicable evidentiary burden.


[13]   Woodgett contends that State Farm seeks to assert a possible cause of the

       injuries without any evidence, medical or otherwise, establishing a causal

       connection which simply invites confusion and speculation by the jury. He

       argues Walker is distinguishable and that “State Farm’s offer of proof said

       nothing about the circumstances of the later accident either as to the force

       involved, vehicle damage or any areas of injury to Woodgett.” Appellee’s Brief

       at 9. He states that “State Farm failed to show the nexus or relationship

       between the later minor accident and the injuries sued for.” Id. at 10. He


       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 8 of 16
       maintains that State Farm could not connect the second accident to the injuries

       at issue because it did not ask Dr. Wulff about a possible connection between

       the development of migraines in connection to that accident and did not

       provide other expert testimony to show a connection. Woodgett argues that

       State Farm did not present evidence that the second accident broke the chain of

       causation and did not proffer evidence legitimately suggesting that the injuries

       were not caused by the first collision.


[14]   In Walker, this Court addressed whether the trial court abused its discretion in

       precluding the admission of certain evidence relating to defendant Joan

       Cuppett’s medical history. 808 N.E.2d at 89. In that case, on February 3,

       1998, Michael Walker rear-ended Cuppett’s car, and although she did not

       initially complain of injuries, while driving home she began experiencing neck,

       shoulder, and elbow pain, as well as severe headaches that evening that

       continued off and on. Id. Her neck and shoulder pain also continued

       intermittently. Id. Eight days later, Cuppett visited Dr. Patrick Foley, her

       family physician, who ordered x-rays and a CT scan, which revealed

       degenerative arthritic conditions in her cervical spine, and refilled a prescription

       for Fiorinal, a headache medicine she had been taking prior to the accident. Id.

       Cuppett also continued to see a chiropractor from whom she received treatment

       for her neck pain and headaches as well as for pain in other areas of her body.

       Id. at 89-90. She stopped seeing Dr. Foley at the end of 1998, and at her first

       visit to her new doctor in January 1999 she did not complain of neck pain. Id.

       at 90. She did mention neck pain at later visits, and she was also treated for


       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 9 of 16
       “allergies, hypertension, high cholesterol, asthma, gastroesophageal reflux

       disease, menopause, degenerative conditions in her knees, and obesity.” Id.

       She also had been diagnosed with fibromyalgia before the accident. Id.


[15]   In June 2000, Cuppett was referred to a pain management center for her

       continuing neck pain. Id. The first treating physician “opined that her chronic

       neck pain was consistent ‘with possible mild facet arthritis since that mediated

       the pain and/or some myofascial pain in the soft tissues in the right cervical

       paraspinal region,’” but a second physician, Dr. James Crawford, “believed her

       neck pain was caused solely by myofascial problems stemming from the 1998

       automobile accident and treated her accordingly.” Id. Cuppett visited physical

       therapists, an acupuncturist, and a pain psychologist for treatment of her neck

       pain. Id.


[16]   Cuppett filed a complaint against Walker, who died prior to trial. Id. Also

       prior to trial the court granted Cuppett’s motion in limine to prevent the Estate

       from presenting “Any Evidence of a Pre-Existing Affliction or Condition Not

       Supported by Admissible Expert Medical Opinion,” “Any Evidence of

       Unrelated and Post-Collision or Subsequent Injuries/Occurrence Not

       Supported by Admissible Medical Opinion,” or “Any Evidence of Low Impact

       Collision and Relationship to Joan Cuppett’s Physical Injuries.” Id. This ruling

       “allowed [Cuppett] to redact from her medical records any reference to the

       arthritis or other non-accident related conditions in her neck, her diagnosis of

       fibromyalgia, and her pre-accident treatment for headaches,” and it prevented

       the jury “from hearing any reference to these matters in pre-trial evidentiary

       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 10 of 16
       depositions conducted of Dr. Crawford and one of her physical therapists, Dr.

       David Cross, or in the trial testimony of Dr. Foley,” as well as the videotaped

       testimony of Walker concerning the accident itself and his interaction with

       Cuppett afterward. Id. Cuppett also redacted any mention of other ailments in

       her medical bills submitted into evidence. Id. at 91. The court held a damages

       hearing and granted judgment on the evidence with respect to all of Cuppett’s

       claimed past medical bills, totaling $17,025.99, and a jury awarded another

       $10,000 for claimed future medical expenses. Id. She was ultimately awarded

       $81,808.79 after the court granted her motion for sanctions as well as additur.

       Id.


[17]   On appeal, this court discussed at length the evidence excluded by the court and

       observed:


               The sum effect of the trial court’s evidentiary rulings was that the
               Estate could make no mention of Cuppett’s arthritis and other
               conditions in her neck, her fibromyalgia, and her treatment for
               headaches predating the accident. The complete exclusion of
               Walker’s videotaped testimony also prevented the Estate from
               presenting evidence regarding the mildness of the accident and
               Cuppett’s condition immediately thereafter.


       Id. at 94. Cuppett argued that, since the Estate did not present its own expert

       testimony to contradict Dr. Crawford’s and show that “the right-side neck pain

       she complains of is being caused by the arthritic and other conditions [in] her

       neck, rather than injuries inflicted by the accident,” the court’s rulings were

       correct because such evidence was irrelevant. Id. Cuppett cited to Daub v.


       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 11 of 16
       Daub, 629 N.E.2d 873 (Ind. Ct. App. 1994), trans. denied, in which this Court

       noted that a negligence action requires “a reasonable connection between a

       defendant’s conduct and the damages that a plaintiff claims to have suffered”

       and that “the question of the causal connection between a permanent condition,

       an injury, and a pre-existing affliction or condition is often a complicated

       medical question,” and held accordingly that “when the issue of causation is

       not within the understanding of a layperson, testimony of an expert witness on

       the issue is necessary.” Id. (citing Daub, 629 N.E.2d at 877-878; Muncie State

       Transit Auth. v. Smith, 743 N.E.2d 1214, 1217 (Ind. Ct. App. 2001) (stating,

       “when the cause of the injury is not one which is apparent to a lay person and

       multiple factors may have contributed to causation, expert evidence on the

       subject is required”)).


[18]   This Court observed that Cuppett’s argument “confuses the issue of the burden

       of proof with the issue of the relevancy or admissibility of evidence and the

       proper scope of cross-examination,” noting that Daub addressed a plaintiff’s

       burden of proving causation. Id. It stated that Daub did not address “the

       relevancy of causation evidence that contradicts the only expert testimony or

       suggested in any way that such evidence is necessarily irrelevant or

       inadmissible,” and, “[i]nstead, it is evident that defendants in personal injury

       actions are entitled to thoroughly challenge a plaintiff’s expert with respect to

       that expert’s causation opinions.” Id. at 94-95. The court opined that

       “[d]octors and other expert witnesses are not oracles whose opinions, once

       stated, cannot be questioned or refuted by other evidence, even if that evidence


       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 12 of 16
does not come in the form of another expert’s testimony,” that juries are free to

accept or reject the opinion of an expert witness, and that


        [t]his rule would seem to have little meaning if, as in this case, a
        defendant cannot challenge or cast doubt upon the opinion of a
        plaintiff’s expert that the plaintiff was injured by the defendant
        with evidence that the plaintiff suffers from a pain-producing
        disease or mechanism, unrelated to the defendant’s negligence, in
        the precise area of the body where the plaintiff claims to suffer
        ongoing pain.


Id. at 95. We then noted the “standard of admissibility for a personal injury

defendant to introduce evidence of a plaintiff’s medical problems that are

unrelated to the defendant’s negligence,” first stated in Rondinelli v. Bowden, 155

Ind. App. 582, 586, 293 N.E.2d 812, 814-815 (1973), as follows:

        The general rule is that cross-examination and other evidence is
        admissible to lay a basis for impeachment or show that the injury
        complained of is due to some other cause where the present
        injury and the prior injury or condition are similar, or where a
        causal relationship between them can be shown. If the cross-
        examiner fails to come forward with evidence showing a logical
        nexus or causal relationship between the injury sued on and the
        unrelated injury or condition, the evidence may be excluded.
        The test of admissibility is not probability, but the possibility that
        a plaintiff’s claimed damages resulted from a condition or event
        unrelated to the defendant’s negligence.


Id. at 95-96 (internal quotations and citations omitted). It ruled that the Estate’s

proffered evidence of Cuppett’s medical issues unrelated to the accident




Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 13 of 16
       provided “a possible logical nexus to her complaints and meets the Rondinelli

       standard of admissibility.” Id. at 96.


[19]   Here, Woodgett moved in limine to exclude evidence of a second automobile

       accident which occurred in the fall of 2012. The trial court ruled that such

       evidence was inadmissible based upon Daub. However, as explained in Walker,

       the rule in Daub concerns a plaintiff’s burden of proof and not the relevancy

       standard applicable to the admission of evidence a defendant wishes to present

       in a personal injury action. As stated in Rondinelli, the applicable test is whether

       it is possible that a plaintiff’s claimed damages resulted from a condition or

       event unrelated to the defendant’s negligence, where a logical nexus or causal

       relationship between the conditions or events exists.


[20]   Evidence at trial was presented by way of Dr. Wulff’s deposition in which he

       testified that post-traumatic migraine headaches can be the result of “pretty

       minor trauma.” Appellant’s Appendix at 90. The medical records admitted at

       trial indicated that Woodgett had been treated for intermittent stress headaches

       and neck pain following the September 20, 2011 accident, that he underwent

       physical therapy in February 2012, after which reporting that he had slight

       headaches that came infrequently and was able to engage in all of his

       recreational activities with no neck pain at all, and that he began seeing Dr.

       Wulff, the neurologist, in January 2013 for two types of headaches, including a

       daily mild headache and a “very severe headache” about three or four times per

       week. Exhibits at 158. At his deposition, Woodgett testified that he had been

       involved in a second automobile accident in the fall of 2012 which was

       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 14 of 16
       described as a minor sideswipe crash. State Farm sought to question Woodgett

       at trial regarding this second accident. Recognizing that Woodgett’s

       complained injuries were allegedly the result of an automobile accident in the

       fall of 2011, that he stopped medical treatment in February of 2012, that he was

       involved in another accident in the fall of 2012, and that he again sought

       medical treatment for headaches in January 2013, we find that a logical nexus

       exists between the second accident and the migraine headaches sufficient such

       that the second accident was a possible cause of such headaches and that the

       court abused its discretion in excluding any evidence of the second accident.


[21]   Having concluded that the court abused its discretion in refusing to permit State

       Farm to question Woodgett regarding the second accident, we must now

       address whether this error was inconsistent with substantial justice. We

       conclude that it was. This exclusion went to the heart of the matter that the

       jury was asked to decide—the extent to which Woodgett’s accident with Storms

       caused the headaches experienced by Woodgett and, in particular, the severe

       migraine headaches.


                                                    Conclusion

[22]   The court abused its discretion when it excluded evidence of a second

       automobile accident involving Woodgett, which was inconsistent with

       substantial justice. We reverse the court’s judgment and remand for




       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016   Page 15 of 16
       proceedings consistent with this opinion.3 See Armstrong, 871 N.E.2d at 296

       (holding that a logical nexus between the injury sued upon and an unrelated

       prior condition satisfied the Rondinelli test requiring only the possibility that the

       plaintiff’s claimed damages in whole or in part resulted from a condition or

       event unrelated to the defendant’s negligence).


[23]   For the foregoing reasons, we reverse the court’s judgment and remand.


[24]   Reversed and remanded.


       Baker, J., and May, J., concur.




       3
         Because we reverse and remand, we need not address State Farm’s arguments related to the jury
       instructions given by the court.

       Court of Appeals of Indiana | Opinion 18A02-1505-CT-292 | September 20, 2016                 Page 16 of 16
