Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
                                                            Dec 26 2012, 9:39 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEYS FOR APPELLANTS:                        ATTORNEY FOR APPELLEES:

RENEE J. MORTIMER                                ADAM J. SEDIA
SCOTT B. COCKRUM                                 Rubino, Ruman, Crosmer & Polen
Hinshaw & Culbertson LLP                         Dyer, Indiana
Schererville, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KARL KAPANKE, UNIVERSAL AM-CAN,                  )
LTD., and M.C. SCHMITT TRUCKING, INC.,           )
                                                 )
       Appellants-Defendants,                    )
                                                 )
               vs.                               )        No. 45A03-1201-CT-12
                                                 )
JAMES STOVALL and TRACY STOVALL,                 )
                                                 )
       Appellees-Plaintiffs.                     )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Diane Kavadias-Schneider, Judge
                              Cause No. 45D01-0808-CT-54



                                      December 26, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Karl Kapanke, Universal Am-Can Ltd. (“UACL”), and M.C. Schmitt Trucking,

Inc. (“M.C. Schmitt”) (collectively, “the Trucking Company”) appeal the judgment for

James Stovall and Tracy Stovall on the Stovalls’ claims of negligence and loss of

consortium following a jury trial. The Trucking Company raises four issues for our

review, which we restate as the following two issues:

       1.     Whether the trial court abused its discretion when it prohibited the
              Trucking Company from admitting certain evidence into the record;
              and

       2.     Whether the trial court abused its discretion when it permitted the
              Stovalls to argue punitive damages to the jury.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On April 11, 2000, James went to the Munster Community Hospital and met with

Dr. Pravin Gupta. James complained of “almost blacking out and felt like heart fluttering

while driving this AM at 0530,” “chest discomfort,” and being “light-headed.”

Appellants’ App. at 40. Dr. Gupta did not associate James’ complaints or symptoms with

“any type of seizure disorder.” Id. at 41. Three days later, James was taken to Morris

Hospital in Illinois by ambulance after he had been struck by a door in the side of his

head at a work site, pushing his safety glasses into his left eye. An unsigned triage report

from Morris Hospital stated that James “ha[d] been taking Lipitor until last Tuesday

[April 11], had seizure-like activity on Tuesday.” Id. at 42.

       More than seven years later, on the morning of November 14, 2007, James was

driving north on Cline Avenue in Gary. Kapanke was driving his semi-trailer directly
                                             2
behind James. At the time, M.C. Schmitt employed Kapanke, and he was working as a

leased driver to UACL.

       James approached stopped traffic in front of him and brought his vehicle to a stop.

Kapanke did not stop and rear-ended James’ vehicle, pushing it into the vehicle in front

of James and totaling James’ vehicle. James was taken to the emergency room at St.

Catherine’s Hospital in East Chicago, where he complained that something had “hit him

in the head.” Appellees’ App. at 363.1 James was dismissed from the hospital later that

day and instructed to see his regular doctor, Dr. Brechner.2 James did so, and Dr.

Brechner referred him to Dr. Richard Cristea, a neurologist.

       James saw Dr. Cristea on December 5, 2007. Based on Dr. Cristea’s examination

of James and review of James’ medical history, Dr. Cristea diagnosed James as having

traumatic brain injury (“TBI”) with cognitive issues and compulsions, namely, being

agitated and asking the same questions repeatedly. Dr. Cristea also diagnosed James with

lumbar spine pain with muscle involvement and vestibulopathy, or a change in balance

that causes dizziness. Dr. Cristea based his diagnosis of TBI in part on his objective

findings that James had nystagmus to the right lateral gaze, decreased vibration sensation,

and increased reflex in the knees. Dr. Cristea further noted that James’ emergency room

records from November 14 “confirm[ed the TBI] diagnosis” based on James “asking

[the] same questions over and over.” Id. at 93.




       1
           We appreciate the parties’ reproduction of relevant portions of the voluminous transcript in
their appendices.
       2
           Dr. Brechner’s first name is not in the record.
                                                      3
      Dr. Cristea referred James to Dr. Laatsch,3 a TBI rehabilitation psychologist at the

University of Illinois. James met with Dr. Laatsch thereafter, and Dr. Laatsch sent a

report back to Dr. Cristea. According to Dr. Laatsch, “[n]ot only did [James] have some

cognitive issues, but he had all the psychological issues associated with [TBI],

depression, anxiety, and then the pain issues as well.”                  Id. at 96-97.      Dr. Laatsch

recommended that James participate in cognitive rehabilitation, which he did.

      In March of 2009, James complained to Dr. Cristea of dizziness and balance

issues, and Dr. Cristea referred him to Dr. Lonnie Amico, a neurologist at the

Neurological Institute and Specialty Center who treated epileptic patients. Thereafter, on

April 21, James was admitted to the ICU at St. Anthony’s Hospital in Crown Point. Dr.

Amico’s partner, Dr. Louis Teodori, treated James and observed James having seizures,

which Dr. Teodori believed to be psychogenic.4 Dr. Teodori had James moved to the

epileptic monitoring unit of the hospital where he would be under Dr. Amico’s care. On

April 25, Dr. Amico observed James “posturing in the bed and thrashing.” Id. at 220.

Dr. Amico was initially unsure whether James’ seizures were psychogenic or epileptic,

but, based on subsequent treatment, Dr. Amico later concluded that there was “a high

probability” that James had frontal lobe epilepsy or focal epilepsy.5 Id. at 230. Based on

James’ medical history, Dr. Amico opined that the November 14 accident had caused

James’ seizures.



      3
          Dr. Laatsch’s first name is not in the record.
      4
          Unlike epileptic seizures, psychogenic seizures are psychological in origin rather than physical.
      5
          These terms appear interchangeable based on Dr. Amico’s testimony.
                                                      4
         Dr. Amico referred James to Dr. Nancy Foldvary-Schaefer, a neurologist at the

Cleveland Clinic specializing in epilepsy.          Dr. Foldvary-Schaefer conducted a

“comprehensive evaluation” of James throughout 2009 and 2010 “to clarify the nature of

his seizures.” Id. at 174. She concluded that he suffered from focal epilepsy as a result

of the November 14 accident. She further stated that James’ focal epilepsy was a

permanent injury.

         On April 18, 2008, the Stovalls filed suit against the Trucking Company alleging,

in pertinent part, negligence in the hiring, supervising, training, and retention of Kapanke.

The Stovalls later amended their complaint, further alleging that the Trucking Company

had committed willful and wanton misconduct in the hiring, supervising, training,

retention, and entrustment of the semi-trailer to Kapanke. The Stovalls requested relief in

the form of “compensatory damages . . . and any other proper relief.” Appellants’ App.

at 37.

         At the ensuing trial, Drs. Cristea, Amico, and Foldvary-Schaefer all testified on

behalf of the Stovalls. Specifically, each of those doctors testified that, based on their

medical opinions, James’ seizures were based on a permanent, physical injury that

occurred on November 14, 2007.

         The Trucking Company called Dr. Elizabeth Kessler, a neurologist; Linda

Dispenza, a registered nurse who had observed at least one of James’ seizures at St.

Anthony’s Hospital; and Dr. J. Preston Harley, a neuropsychologist. Dr. Kessler opined

that there was “no evidence” to support Dr. Cristea’s diagnosis of TBI or Dr. Amico’s

and Dr. Foldvary-Schafer’s diagnoses of frontal lobe epilepsy. Appellees’ App. at 394-


                                             5
96. On cross-examination of Dr. Kessler, the Stovalls asked her if James had “this kind

of behavior before the accident.” Appellants’ App. at 281. Dr. Kessler stated that he

had, and the Trucking Company then sought to have admitted into evidence James’ April

11, 2000, and April 14, 2000, medical records as proposed Exhibits 4 and 5, respectively.

After an offer of proof, the trial court denied the Trucking Company’s request to have

Exhibits 4 and 5 admitted on the ground that those records did not demonstrate “a history

of seizures” and that the documents’ relevancy was substantially outweighed by “the

likelihood of misleading or prejudicing the jury in understanding the event.” Id. at 296-

97.

      The Trucking Company also called Nurse Dispenza. Nurse Dispenza testified that

she observed at least one of James’ seizures at St. Anthony’s Hospital. During her

testimony, Nurse Dispenza stated that she had treated “close to a thousand” patients “who

had a seizure disorder.” Appellees’ App. at 419. Nurse Dispenza then described the

conditions she normally observes in patients having seizures and her observations of

James during his seizures:

      Q      Did [James] ever have a seizure when someone was not in the room
      with him?

      A      I don’t recall.

                                          ***

      Q      In the thousands of patients in whose care you’ve participated before
      [James], did you observe that they had any vital sign changes when they
      had a seizure?

                                          ***



                                           6
       [A] Most of the time there is an increase in the heart rate and
       respirations. And sometimes . . . you’ll see a pattern, you know, shaking
       from that, not always, but . . .

       Q     Did you ever observe any vital sign changes that [James] had when
       he was having a seizure?

       A     I never noticed any increase in heart rate or respirations when he was
       having his seizures.

       Q      Did you ever notice whether [James] was wiped out . . . after having
       a seizure?

       A      I don’t recall any time.

                                            ***

       Q      Ms. Dispenza, of the thousands of patients you treated with a seizure
       disorder prior to [James], did you ever observe that those patients spoke
       during their seizures?

       A      I don’t recall any.

       Q       When you participated in the care of [James], did he speak during
       his seizures?

       A      There w[ere] a few occasions, yes.

Id. at 416-19. The Trucking Company then requested a sidebar and asked the court to

allow it to ask Nurse Dispenza to opine on whether James had suffered seizures, despite

the court’s earlier ruling on a motion in limine prohibiting the Trucking Company from

doing so. The court refused to allow the Trucking Company to ask Nurse Dispenza that

question, stating that “[s]he’s not qualified to give that opinion.” Id. at 420.

       Dr. Harley testified that he had a doctorate in psychology and he specialized in

neuropsychology. He further stated that he had taken “medical courses in neurology,

neuroanatomy, neurochemistry, [and] neuropathy,” although he “didn’t take them for


                                              7
credit because [he] wasn’t seeking a medical degree.” Appellants’ App. at 325. The

Trucking Company asked Dr. Harley the following question: “Have you reached an

opinion in this case, as a neuropsychologist based upon the testing you’ve done [o]n

[James], and all the other information you have available to you, as to whether or not

[James] showed any evidence of [TBI]?” Id. at 336-37. The Stovalls objected to the

question on the basis of Dr. Harley’s educational foundation. The trial court sustained

the objection, stating that “this is too much.” Id. at 338.

       Nonetheless, during Dr. Harley’s immediately ensuing testimony, Dr. Harley

stated the following conclusions:

       Q     Okay. I want to ask you some questions about opinions you’ve
       reached in this case.

       A      Yes, sir.

       Q       . . . First of all, do you have an opinion as to whether or not [James]
       demonstrated any intact cognitive functioning, based upon your interview
       and testing of him?

       A      Yes.

       Q      And what’s your opinion?

       A      That essentially his cognition is intact.

       Q      All right. Did you have any opinion as to whether or not his self-
       report measures . . . were usual, unusual, or associated in any way with
       reporting of somatic or cognitive symptoms?

       A      Yes.

       Q      And what opinions did you reach in that regard?

       A      . . . on the self-report measures that we gave him . . . his level of
       infrequent responding is uncommon, and even in individuals with
       genuine[,] sever[e] psychological difficulties who report credible
                                              8
       symptoms. So he’s saying things that we just usually don’t see in a typical
       . . . population as well as atypical populations of individuals who have brain
       injuries.

       Q      Did you reach any opinion based upon what you’ve done in this
       case, and based upon your experience, and the literature that exists in terms
       of studying this topic as to whether or not there’s a possibility that [James]
       exhibited any . . . malingering?

                                           ***

       A      It’s my opinion that his profile is not compatible with a typical
       clinical profile that we would see in a[n] individual who has sustained a
       [TBI], but rather is typical and indicative of an individual who over-reports
       a whole . . . host of symptoms.

                                           ***

       A      Malingering is a very strong word, and I would say that—I would
       prefer to say that his profile is . . . not reasonable for any individual who’s
       had a brain injury. It’s more reasonable with an individual who has
       psychological issues.

Id. at 341-44.

       Following the conclusion of the trial, the jury returned a verdict for the Stovalls.

The jury awarded James $6,244,983 in compensatory damages and $0 in punitive

damages. The jury also awarded Tracy $1,500,000 in compensatory damages. The court

entered judgment on the verdict from the bench and denied the Trucking Company’s

ensuing motion to correct error. This appeal ensued.




                                             9
                                 DISCUSSION AND DECISION

                                Issue One: Admission of Evidence

        On appeal, the Trucking Company contends that the trial court erred in the

exclusion of evidence.6 Our standard of review of a trial court’s admission or exclusion

of evidence is an abuse of discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct.

App. 2007). A trial court abuses its discretion only if its decision is clearly against the

logic and effect of the facts and circumstances before the court. Id. In reviewing the

admissibility of evidence, we consider only the evidence in favor of the trial court’s

ruling and any unrefuted evidence in the defendants’ favor. Dawson v. State, 786 N.E.2d

742, 745 (Ind. Ct. App. 2003), trans. denied.

        And not all error is reversible error. As our supreme court has explained:

        errors in the admission of evidence are to be disregarded as harmless error
        unless they affect the substantial rights of a party. Likewise, reversible
        error cannot be predicated upon the erroneous admission of evidence that is
        merely cumulative of other evidence that has already been properly
        admitted. To determine whether the admission of evidence affected a
        party’s substantial rights, we assess the probable impact of the evidence
        upon the jury.

Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010) (quotations and citations omitted).

        The Trucking Company asserts that the court committed three substantial errors in

ruling on the admissibility of the evidence. Namely, the Trucking Company asserts that

the court erred when it (1) “prevent[ed the Trucking Company] from presenting any


        6
           The Trucking Company also complains about the court’s related orders on the various motions
in limine, but a motion in limine is not a final ruling on the admissibility of evidence, and a ruling on the
motion does not preserve the error for appeal. See Simmons v. State, 760 N.E.2d 1154, 1158 (Ind. Ct.
App. 2002). Rather, “[i]n order to preserve error in the overruling of a pre-trial motion in limine, the
appealing party must object to the admission of the evidence at the time it is offered.” Id. Insofar as the
Trucking Company preserved its arguments by objecting during trial, we consider them in that context.
                                                     10
evidence of [James’] pre-existing seizures or spells,” Appellants’ Br. at 14; (2) “excluded

Nurse Linda Dispenza’s observations and impressions about the odd nature of [James’]

seizures after the motor vehicle accident,” id. at 15; and (3) refused to allow Dr. Harley to

“render a medical/neuropsychological diagnosis,” id. at 16. We address each of the

Trucking Company’s arguments in turn.

                             The April 2000 Medical Records

       The Trucking Company first asserts that the trial court abused its discretion when

it excluded James’ April 2000 medical records. The trial court excluded those records

under Indiana Evidence Rule 403, which provides: “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .” We agree with the trial

court’s decision.

       The probative value, if any, of the April 2000 medical records was minimal. In

reviewing his April 11, 2000, report during his deposition, Dr. Gupta expressly testified

that James’ complaints and symptoms from that visit were not “evidence of any type of a

seizure disorder.” Appellants’ App. at 41. Insofar as either of the April 2000 reports

indicated to the contrary, Dr. Gupta’s testimony unambiguously clarified that James’

April 11, 2000, symptoms did not have the probative value claimed by the Trucking

Company.

       On the other hand, the danger of unfair prejudice, confusion of the issues, or

misleading the jury from the April 2000 medical records was substantial. The April 14,

2000, report is not signed by anyone yet refers ambiguously to “seizure-like activity”


                                             11
from April 11. Id. at 42. This isolated comment from an unknown person more than

seven years before the November 2007 automobile accident is unsubstantiated,

uncorroborated, and remote in time from the events the jury was asked to consider.

       Further, the facts in the case law cited by the Trucking Company are inapposite to

this case. In particular, the Trucking Company asserts that Reliable Development Corp.

v. Berrier, 851 N.E.2d 983 (Ind. Ct. App. 2006), is “controlling.” Appellants’ Br. at 22.

We cannot agree. In that case, the plaintiff claimed to have injured his lower back when

he was running on the defendant’s treadmill and the machine came to a sudden stop. The

trial court excluded the defendant’s attempt to introduce into evidence the plaintiff’s

nearly ten-year history of back injuries and pain. We reversed. Berrier, 851 N.E.2d at

989-90. However, we cautioned that evidence of a person’s medical history that does not

show “a logical nexus or causal relationship between the injury sued on and the unrelated

injury or condition . . . may be excluded.” Id. at 988-89.

       Here, in light of Dr. Gupta’s deposition testimony that the April 11, 2000, medical

report was not evidence of any type of seizure, the Trucking Company cannot

demonstrate that that medical record—or the April 14, 2000, record that purports to

describe what happened on April 11—had a logical nexus or causal relationship to

James’ November 14, 2007, injuries. Accordingly, we cannot say that the trial court

erred when it concluded that the probative value, if any, of the April 2000 medical

records was substantially outweighed by the danger of unfair prejudice, confusion of the




                                             12
issues, or misleading the jury. See Ind. Evidence Rule 403. We affirm the trial court’s

exclusion of those records.7

                                   Nurse Dispenza’s Testimony

        The Trucking Company next asserts that the trial court abused its discretion when

it refused to allow Nurse Dispenza to state her opinion on James’ condition based on her

observations. In particular, the Trucking Company sought to have Nurse Dispenza testify

that James’ behavior during a seizure she had observed was “odd,” thereby implying that

James was faking his symptoms. See Appellants’ Br. at 30.

        We need not discuss whether Indiana law permits registered nurses to give

medical opinions because any error in the court’s exclusion of this part of Nurse

Dispenza’s testimony was harmless. As detailed above, Nurse Dispenza’s testimony

included the conditions she normally observes in patients having seizures and that James

did not exhibit many of those conditions during the seizures she observed.                           The

reasonable inference from her testimony was that James’ seizure was not consistent with

Nurse Dispenza’s extensive experience with seizure patients. The probable impact on the

jury of the excluded portion of her testimony is insignificant and, therefore, harmless. 8

See Sibbing, 922 N.E.2d at 598.


        7
          For the same reasons, we do not consider the Trucking Company’s assertion that it should have
been permitted to introduce the April 2000 medical records while cross-examining the Stovalls’ witnesses
or that reversal is required in the interests of substantial justice. Further, insofar as the Trucking
Company also asserts that the trial court’s errors in the admission of evidence were pervasive or
cumulative, we note that that argument is predicated on the admissibility of the April 2000 medical
records. Because the trial court properly excluded those records, we need not consider the Trucking
Company’s additional argument.
        8
         For the same reason, the trial court did not commit reversible error when it refused to allow the
Trucking Company to introduce this evidence in response to the Stovalls’ examination of Nurse
Dispenza. See Appellants’ Br. at 32.
                                                   13
                                      Dr. Harley’s Testimony

       Finally, the Trucking Company contends that the trial court erred when it refused

to allow Dr. Harley to render a medical diagnosis for James. As with Nurse Dispenza’s

excluded testimony, the trial court’s exclusion of this portion of Dr. Harley’s testimony is

harmless error, if any error.9

       Dr. Harley testified that James’ cognitive functioning was intact after the collision,

that James’ psychological profile was inconsistent with someone who suffers from a

brain injury, and that James, in essence, faked his self-reporting responses. Further, Dr.

Kessler opined that there was “no evidence” to support the diagnosis of either TBI or

frontal lobe epilepsy resulting from the collision, which is the same conclusion the

Trucking Company sought to have Dr. Harley state to the jury. Appellees’ App. at 394.

Thus, the probable impact of the excluded portions of Dr. Harley’s testimony on the jury

was minimal and, as such, harmless. See Sibbing, 922 N.E.2d at 598.

                                 Issue Two: Punitive Damages

       Finally, the Trucking Company argues that the trial court erred for multiple

reasons when it permitted the Stovalls to request punitive damages from the jury. We

need not address these arguments. The jury awarded the Stovalls zero dollars in punitive

damages. Thus, any error by the trial court in permitting the Stovalls to argue punitive

damages to the jury is harmless. See, e.g., Handrow v. Cox, 575 N.E.2d 611, 613 n.1

(Ind. 1991) (holding that, while it was error to allow the jury to consider the percent fault

       9
           We acknowledge the holding in Bennett v. Richmond, 960 N.E.2d 782, 791 (Ind. 2012), in
which our supreme court concluded that a psychologist was qualified to offer his opinion as to the cause
of the plaintiff’s brain injury. But the specific question here is whether the exclusion of Dr. Harley’s
testimony affected the outcome. Thus, we need not decide whether the trial court erred in not following
Bennett.
                                                  14
of a dismissed party, that error was harmless in light of the jury’s assessment of zero

percent fault to that party); Ridgeway v. Teshoian, 699 N.E.2d 1156, 1161 n.3 (Ind. Ct.

App. 1998) (noting that any error in the trial court’s entry of judgment for the defendant

was harmless in light of the jury’s award of zero damages for the plaintiff).

       Further, the Trucking Company’s assertion that the Stovalls’ arguments on

punitive damages caused the jury to enter an award for compensatory damages that was

higher than justified is pure speculation, which we will not consider. The compensation

awarded by the jury was within the evidence before it—a fact the Trucking Company

does not dispute—and we will not reweigh the evidence underlying that award.

                                     CONCLUSION

       In sum, the trial court did not abuse its discretion in the exclusion of the April

2000 medical records, and any error by the trial court in limiting the testimony of Nurse

Dispenza or Dr. Harley was harmless. Likewise, any error by the trial court in permitting

the Stovalls to argue punitive damages to the jury is harmless in light of the jury’s award

of zero dollars for punitive damages. Thus, we affirm the trial court’s judgment.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                            15
