MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 03 2016, 8:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
David W. Stone IV                                        Matthew J. Jankowski
Stone Law Office & Legal Research                        Kopka Pinkus Dolin PC
Anderson, Indiana                                        Carmel, Indiana
Michael W. Phelps
Rom Byron
Nunn Law Office
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cynthia Brown and                                        October 3, 2016
Gregory Brown,                                           Court of Appeals Case No.
Appellants-Plaintiffs,                                   49A04-1601-CT-177
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Heather Welch,
The Boeing Company,                                      Judge
                                                         The Honorable Therese Hannah,
Appellee-Defendant
                                                         Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49D01-1303-CT-8974



Baker, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016         Page 1 of 8
[1]   Cynthia and Gregory Brown sued The Boeing Company (Boeing) for

      negligence after Cynthia was injured in a car accident caused by a Boeing

      employee. The Browns appeal the jury verdict entered in favor of Boeing,

      raising two arguments on appeal: (1) the trial court erroneously excluded

      evidence regarding alleged bias of a Boeing expert witness; and (2) the trial

      court erroneously excluded evidence that Cynthia was no longer able to

      continue working with special needs children. Finding no error, we affirm.


                                                     Facts
[2]   On April 27, 2012, Cynthia was driving a vehicle in Indianapolis and was

      stopped at a traffic signal. Another vehicle, operated by Eric Haugse, struck the

      rear of Cynthia’s vehicle. Cynthia incurred ongoing pain in her left shoulder,

      left arm, lower back, right leg, and right ankle, as a result of the accident.


[3]   On March 5, 2013, the Browns filed a complaint against Haugse and Boeing,

      seeking to recover damages as a result of the accident. Haugse was a Boeing

      employee, and Boeing eventually stipulated that Haugse was working in the

      course and scope of his employment 1 and that Haugse’s negligence caused the

      accident.


[4]   A jury trial on the issue of damages took place from November 17 through 19,

      2015. At some point during the trial, Boeing filed a motion in limine, seeking




      1
       After Boeing conceded that Haugse was working in the course and scope of his employment, Haugse was
      dismissed from the lawsuit.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016       Page 2 of 8
      to prohibit the Browns from asking certain questions of Boeing’s expert witness,

      Dr. Alfred Bowles. Boeing also sought to exclude a number of documents that

      the Browns intended to submit into evidence. The trial court granted the

      motion.


[5]   Before the trial began, the Browns stipulated that Cynthia’s claim for lost

      income had been withdrawn. At trial, however, the Browns attempted to

      introduce evidence that Cynthia was no longer able to teach special needs

      children as a result of her injuries. Boeing objected to the evidence, arguing

      that it was confusing and irrelevant as her claim for lost income had been

      withdrawn. The Browns argued that it was relevant because it showed the

      emotional loss she sustained by no longer being able to do the work she loved.

      The trial court sustained Boeing’s objection and excluded the evidence. On

      November 19, 2015, the jury awarded Cynthia $25,000 and awarded Gregory

      $0 for his claim of loss of consortium. The Browns now appeal.


                                   Discussion and Decision
[6]   Both of the arguments raised by the Browns on appeal amount to a contention

      that the trial court erroneously excluded evidence. Decisions to admit or

      exclude evidence are within the sound discretion of the trial court, and we will

      reverse only where the ruling is against the logic and effect of the facts and

      circumstances before the court. Flores v. Gutierrez, 951 N.E.2d 632, 637 (Ind. Ct.

      App. 2011).




      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016   Page 3 of 8
                                         I. Expert Witness
[7]   First, the Browns contend that the trial court erred by excluding testimony and

      documents related to Dr. Bowles. The specific evidence sought to be admitted

      was as follows:


           Dr. Bowles works for a company called BRC and has been on BRC’s
            board of directors for approximately four years.
           During the years 1990-2005, State Farm insurance companies had paid
            BRC over $10 million and Ford Motor Company had paid BRC over $14
            million for the services of BRC’s expert witnesses.

      The trial court permitted evidence to be introduced regarding the identity of Dr.

      Bowles’s employer; the hourly rate paid to Dr. Bowles for his services; and any

      previous payments made to Dr. Bowles by the law firm for Boeing or Boeing’s

      insurance company (Ace American Insurance Company). The trial court

      excluded evidence regarding payments made by other corporations to BRC in

      the past.


[8]   The trial court permitted the Browns to make an offer of proof regarding the

      substance of testimony they sought to elicit from Dr. Bowles.


           First, they asked him about a document relating to payments made by
            State Farm to BRC between 1990 and 1995. He stated he was not
            employed by BRC during those years and had no personal knowledge
            regarding that information.
           Second, they asked him about a document relating to payments made by
            State Farm to BRC between 1995 and 2000. Dr. Bowles testified that he
            had no personal knowledge of that information because, while he was a
            consultant with BRC during those years, he was not yet on the board of


      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016   Page 4 of 8
            directors, so had no means of knowing whether that information was
            true or not.
           Third, they asked him about a document relating to payments made by
            Ford Motor Company to BRC between 2000 and 2004. Dr. Bowles
            again testified that he had no personal knowledge of that information
            because, while he was employed by BRC during those years, he was not
            yet on the board of directors, so had no means of knowing whether that
            information was true or not.

      During the offer of proof, the Browns were able to elicit certain information that

      they were permitted to introduce during cross-examination—but they elected

      not to do so. Specifically, Dr. Bowles testified that between 1995 and 2013, he

      or BRC had been retained by “insurance companies, corporations and defense

      lawyers” to give opinions “a couple of thousand times at least.” Tr. p. 401. He

      also testified that 75% of his work is done on behalf of defendants, while only

      25% is done on behalf of plaintiffs. Id. at 402.


[9]   The Browns argue that the evidence regarding State Farm and Ford Motor

      Company should have been admitted because it “show[s] the bias of Dr.

      Bowles to give favorable defense testimony because of the large sums paid to

      BRC for defense work.” Appellants’ Br. p. 9. We disagree. We find that this

      evidence is wholly irrelevant to the issue of alleged bias on the part of Dr.

      Bowles. Payments made to his employer—not to him or for work he had

      done—over the course of nearly two decades by corporations that have

      absolutely nothing to do with this case, and about which Dr. Bowles had zero

      personal knowledge, in no way suggest that Dr. Bowles is a biased witness.

      The trial court properly permitted questions regarding the work done by Dr.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016   Page 5 of 8
       Bowles (as opposed to his employer) in the past, Dr. Bowles’s compensation,

       and the nature of Dr. Bowles’s work. The trial court also permitted questions

       regarding the specific parties and law firms involved in this case. But there was

       no reason to admit the overly broad, irrelevant evidence regarding past,

       unrelated payments by unrelated parties having nothing to do with Dr. Bowles

       or his work. Consequently, we decline to reverse on this basis.2


                                II. Cynthia’s Inability to Work
[10]   Next, the Browns argue that the trial court should not have excluded Cynthia’s

       testimony regarding her inability to continue to teach children with special

       needs as a result of her injuries. As noted above, Cynthia withdrew her claim

       for lost income before the trial began. She argues that this evidence relates to a

       loss of the enjoyment she derived from working with the children rather than

       the lost income.


[11]   Indiana Rule of Evidence 403 provides that a trial court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of,

       among other things, confusing the issues or misleading the jury. In this case,

       because Cynthia had withdrawn her claim for lost income, the trial court was

       concerned that this testimony would confuse the jury: “once you put in




       2
         The Browns complain that the trial court was inconsistent by permitting Boeing to question the Browns’
       expert witness, Dr. Gregori, regarding the ongoing relationship between the Browns’ attorneys’ law firm and
       Dr. Gregori, pursuant to which Dr. Gregori receives almost $40,000 annually. This evidence, however,
       relates directly to the expert witness, a law firm involved in the case, and compensation received directly by
       the expert witness. As such, it is easily distinguishable from the evidence at issue with respect to Dr. Bowles.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016                Page 6 of 8
       evidence about her inability to work, then there’s no instruction saying not to

       compensate her for it either. I’ll sustain the objection.” Tr. p. 243. We agree

       with Boeing that the trial court reasonably concluded “that the jury would be

       confused by the prospect that it was being encouraged to award damages for her

       alleged loss of ability to function as a whole person for the loss of those jobs,

       but was forbidden from awarding damages for the alleged loss of income that

       necessarily accompanied the loss of those jobs.” Appellee’s Br. p. 39. While

       we believe this to be a close call, we cannot say that the trial court erred by

       excluding this evidence based on concerns about jury confusion.


[12]   Moreover, testimony and argument were presented to the jury highlighting

       Cynthia’s inability to work. Specifically, Cynthia testified that she is a

       substitute teacher and that, following the accident, she was unable to return to

       work full-time. Tr. p. 244. Following a sidebar, the trial court then

       admonished the jury that Cynthia was not making a claim for lost wages.

       Cynthia then testified that “I was talking about before when I used to do special

       care children. I can’t accept that job any longer because I can’t—I can’t run

       after them if they—if something happens. I can’t help lift them.” Id. at 247-48.

       Then, in the final argument to the jury, the Browns’ attorney stated, “What’s

       important is the way it’s affected her. The fact that she doesn’t get the joy of

       working with disabled children.” Id. at 452. While Cynthia did not get to

       testify fully regarding her inability to work and the loss of enjoyment she suffers

       as a result, it is apparent that there was sufficient evidence and argument before

       the jury to permit the jurors to consider the issue anyway. In any event,


       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016   Page 7 of 8
       therefore, even if there had been error in the exclusion of this evidence, it was

       harmless.


[13]   The judgment of the trial court is affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-CT-177 | October 3, 2016   Page 8 of 8
