      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be                                     Nov 20 2018, 6:52 am
      regarded as precedent or cited before any
                                                                                     CLERK
      court except for the purpose of establishing                               Indiana Supreme Court
                                                                                    Court of Appeals
      the defense of res judicata, collateral                                         and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Michael W. Phelps                                       Charles S. Smith
      Phelps Legal Group                                      Jon L. Bucher
      Bloomington, Indiana                                    Schultz & Pogue, LLP
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Kip Seidenstucker,                                      November 20, 2018
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              18A-CT-962
              v.                                              Appeal from the
                                                              Marion Superior Court
      Linda Ferguson,                                         The Honorable
      Appellee-Defendant.                                     Heather A. Welch, Judge
                                                              Trial Court Cause No.
                                                              49D01-1601-CT-4



      Kirsch, Judge.


[1]   This appeal arises from a negligence claim that resulted from an automobile

      accident that occurred between Kip Seidenstucker (“Seidenstucker”) and Linda

      Ferguson (“Ferguson”). Ferguson admitted fault at trial, and the case

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018                   Page 1 of 12
      proceeded to a jury trial to determine damages. The jury returned a verdict in

      favor of Seidenstucker in the amount of $34,105.09. He appeals and raises the

      following restated issues for our review:


              I.      Whether the trial court abused its discretion when it
                      denied, in part, Seidenstucker’s motion in limine regarding
                      the expert witness’s medical license suspension; and


              II.     Whether the trial court abused its discretion when it
                      denied Seidenstucker’s motion to correct error based on
                      Seidenstucker’s contention that the jury verdict was not
                      based on the evidence presented at trial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 30, 2014, Ferguson made a left turn from Kingsley Drive onto

      Kessler Boulevard in Indianapolis, Indiana and collided with Seidenstucker’s

      vehicle. Tr. Vol. II at 138-39. Shortly after the accident, Seidenstucker felt back

      pain and reported it to the police officer who had responded to the scene. Id. at

      226-27. Seidenstucker did not seek medical attention at that time and refused

      an ambulance, but he proceeded to seek medical attention at the Indianapolis

      Veterans Administration Hospital later that day when the pain worsened. Id. at

      232. Seidenstucker went to the emergency room where x-rays were taken. Id.

      at 161. For five or six weeks after the accident, Seidenstucker’s pain improved;

      however, he reached for something one day, and his pain worsened. Id. at 162,

      233; Appellant’s App. Vol. 2 at 25. Seidenstucker returned to the emergency


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 2 of 12
      room complaining that his back pain was radiating. Tr. Vol. II at 162. The

      emergency room staff diagnosed him with sciatica, and he received steroids,

      muscle relaxants, and hydrocodone and was told that he might need physical

      therapy. Id. Several weeks later, Seidenstucker went to his primary care

      physician and complained of back pain, and his doctor ordered physical

      therapy. Id. Seidenstucker did not complete his course of physical therapy. Id.

      at 162-63, 169, 188-89.


[4]   On December 21, 2015, Seidenstucker filed his complaint for negligence against

      Ferguson. Ferguson admitted fault, and the case proceeded to a jury trial on

      damages on February 13-14, 2018. On February 8, 2018, Seidenstucker filed a

      motion in limine regarding the admission of testimony about a criminal

      conviction and suspension of the medical license of his expert witness, Dr.

      Robert Gregori (“Dr. Gregori”), a pain management physician. The trial court

      granted in part and denied in part the motion, ruling that evidence of Dr.

      Gregori’s criminal conviction was not admissible, but that evidence of the

      suspension of his medical license was admissible. Appellant’s App. Vol. 2 at 12.


[5]   At trial, Dr. Gregori testified that Seidenstucker had two issues that were

      related to the accident: an aggravation of his degenerative disc condition and

      lumbar strain with a sacroiliac (“SI”) injury on the right side. Id. at 28; Tr. Vol.

      II at 173-78. Dr. Gregori opined that Seidenstucker would experience pain

      indefinitely. Tr. Vol. II at 182. Dr. Gregori testified that Seidenstucker would

      have benefited from more physical therapy and that patients who go through

      their “prescribed physical therapy and all their scheduled visits tend to do

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 3 of 12
      better” than those who do not. Tr. Vol. II at 169, 188. Dr. Gregori opined that

      Seidenstucker may need some additional treatment for the SI joint. Id. at 179.

      Specifically, Dr. Gregori stated that SI injections with steroid numbing

      medicine would serve two benefits: (1) diagnostic, in that if it helped

      significantly with Seidenstucker’s pain, it would identify the origin of the pain;

      and (2) lasting relief from pain. Id. Dr. Gregori stated that most patients

      benefit from these SI injections after doing it “for two or three months” and

      then repeating it. Id.


[6]   Dr. Gregori also testified that Seidenstucker might benefit from neural ablation

      therapy, a course of treatment where the doctor uses radio frequency to burn

      the nerves. Id. Dr. Gregori also testified that the neural ablation therapy could

      provide longer term relief, but that there could be some regeneration of the

      nerves. Id. at 180. Such regeneration could require a patient “to have [the

      neural ablation therapy] repeated in a couple of years.” Id. Dr. Gregori also

      testified that he believed that physical therapy could benefit Seidenstucker and

      could help with both the SI joint and his low back pain. Id. Evidence was

      presented that the cost of the two SI injections would range from $3,000.00 to

      $4,000.00 each (for a total of $6,000.00 to $8,000.00) and each subsequent

      neural ablation therapy would range from $4,000.00 to $6,000.00. Appellant’s

      App. Vol. 2 at 28. The cost for additional physical therapy would be between

      $1,200.00 to $1,600.00. Id. The trial court took judicial notice of the fact that

      Seidenstucker’s life expectancy was an additional fifty years. Tr. Vol. III at 23.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 4 of 12
[7]   Dr. Gregori’s medical license was suspended in 2007. Tr. Vol. II at 185. His

      license was reinstated with probationary status in 2009, and the probationary

      status was removed in 2012. Id. at 185, 186. At the time of trial, Dr. Gregori

      was still unable to prescribe opiate medications due to his lack of a Drug

      Enforcement Agency number. Id. at 184-85. Dr. Gregori testified that he

      provides independent medical examinations as 95% of his business, with the

      other 5% involving the treatment of patients. Id. at 184.


[8]   The jury returned a verdict in favor of Seidenstucker for a total amount of

      $34,105.09. Tr. Vol. III at 96. The trial court entered judgment consistent with

      that verdict on February 21, 2018. Appellant’s App. Vol. 2 at 8-10. On March 12,

      2018, Seidenstucker filed a motion to correct error, or in the alternative, a

      motion for additur, contending that the jury’s “verdict did not take into account

      the uncontroverted testimony of Dr. Gregori.” Id. at 13-17. The trial court

      denied Seidenstucker’s motion to correct error. Seidenstucker now appeals.


                                     Discussion and Decision

                                        I.       Motion in Limine
[9]   “The grant or denial of a motion in limine is within the sound discretion of the

      trial court and is an adjunct of the power of trial courts to admit and exclude

      evidence.” Terex-Telelect, Inc. v. Wade, 59 N.E.3d 298, 302 (Ind. Ct. App. 2016)

      (citing Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999), trans. denied),

      trans. denied. Therefore, when reviewing a grant or denial of a motion in limine,

      we apply the standard of review for the admission of evidence, which is


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 5 of 12
       whether the trial court abused its discretion. Id at 302-03. We will find that a

       trial court has abused its discretion when its decision is clearly against the logic

       and effect of the facts and circumstances before the court. Id. at 303 (citing

       Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1047 (Ind. Ct. App. 2007),

       trans. denied).


[10]   Seidenstucker argues that the trial court abused its discretion when it denied the

       part of his motion in limine regarding the suspension of Dr. Gregori’s medical

       license. Seidenstucker asserts that the evidence of the doctor’s medical license

       suspension should not have been admitted because it was not relevant, and it

       was unfairly prejudicial. Seidenstucker further claims that it was error to admit

       the evidence because it created a situation where he could only explain the

       license suspension and rehabilitate his expert witness by delving into the

       underlying facts of Dr. Gregori’s criminal conviction, which evidence is not

       admissible.


[11]   Prior to trial, Seidenstucker filed a motion in limine to exclude evidence of both

       Dr. Gregori’s prior criminal conviction and suspension of his medical license.

       After hearing argument, the trial court granted the motion in limine in part and

       denied it in part, ruling that evidence of Dr. Gregori’s criminal conviction was

       inadmissible, but that evidence of the suspension of his medical license could be

       admitted. Appellant’s App. Vol. 2 at 12. The Indiana Medical Licensing Board

       suspended Dr. Gregori’s license in 2007. Tr. Vol. II at 185. His license was

       reinstated with probationary status in 2009, and the probationary status was

       removed in 2012. Id. at 185, 186. At the time of trial, Dr. Gregori was still

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 6 of 12
       unable to prescribe opiate medications due to his lack of a Drug Enforcement

       Agency number. Id. at 184-85. Dr. Gregori testified that he provides

       independent medical examinations as 95% of his business, with the other 5%

       involving the treatment of patients. Id. at 184.


[12]   A panel of this court has found comparable evidence admissible for the purpose

       of impeaching an expert in Fridono v. Chuman, 747 N.E.2d 610 (Ind. Ct. App.

       2001), trans. denied. In that case, Fridono filed a medical malpractice action

       against Dr. Chuman alleging that he failed to comply with the applicable

       standard of care in performing a cervical laminectomy. Id. at 610. At trial,

       Fridono presented the testimony of an expert witness in support of his theory

       that the surgery performed by Dr. Chuman was unnecessary. Id. at 615. On

       cross examination, Dr. Chuman asked the expert if his privileges at a medical

       school had ever been restricted. Id. Dr. Chuman used a letter agreement

       between the expert and the medical school that imposed restrictions on his

       privileges as a result of the peer review process as a means of impeaching the

       expert and challenging his qualifications as an expert. Id. On appeal, this court

       found that, while the discussions of the peer review committee were protected

       by the applicable peer review statute, and were therefore not discoverable, the

       final action taken as a result of that peer review process was discoverable and

       admissible in judicial proceedings to impeach the expert witness. Id. at 620.


[13]   Likewise, in Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008), trans. denied,

       a defendant in a medical malpractice case was asked whether his conduct met

       the applicable standard of care. Id. at 965. After the doctor said his treatment

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 7 of 12
       did meet the applicable standard of care, plaintiff’s counsel questioned him

       about his medical license suspension. Id. On appeal, a panel of this court

       found that Davis could properly question Dr. Linton as to the standard of care

       and his opinion as to whether he met that standard. Id. at 968-69. Because he

       was properly questioned as to the standard of care, he was testifying as an

       expert and could therefore be impeached with his licensure status. Id. at p. 969.


[14]   Here, Dr. Gregori was testifying as an expert witness in support of

       Seidenstucker’s case against Ferguson. Because he was testifying as an expert,

       Dr. Gregori could, therefore, be impeached with the status of his medical

       license and the fact that it had been previously been suspended.


[15]   Seidenstucker argues that the only purpose for introducing the evidence about

       Dr. Gregori’s medical license suspension was to impeach him regarding his

       character for truthfulness. We disagree. The actual purpose of introducing

       such evidence was to question Dr. Gregori’s credentials as an expert.

       Seidenstucker presented Dr. Gregori’s testimony as expert testimony to

       establish his medical damages as a result of the automobile accident with

       Ferguson. Therefore, Dr. Gregori’s board certification was relevant to this case

       and, likewise, so was his medical license history. Dr. Gregori provided

       opinions about Seidenstucker’s condition and his treatment as an expert

       witness. And it was Dr. Gregori’s expert opinions that were impeached by his

       testimony regarding the suspension of his medical license.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 8 of 12
[16]   Seidenstucker also claims that the evidence of Dr. Gregori’s suspension was an

       attempt to admit evidence of Dr. Gregori’s criminal conviction for self-

       prescribing opioid medication because the license suspension was based on that

       conviction. Seidenstucker says that the only way of explaining the license

       suspension was to reveal the underlying facts of his criminal conviction.

       However, no actual evidence was introduced at trial that Dr. Gregori was

       convicted for self-prescribing medication, or that his license suspension resulted

       from such action. At no point during the questioning of Dr. Gregori was it

       suggested that his license suspension was the result of a criminal conviction,

       and Ferguson’s counsel did not introduce evidence that Dr. Gregori was

       suspended for the abuse of drugs or a conviction related to drugs. Instead,

       Ferguson’s counsel only asked limited questions about Dr. Gregori’s licensure

       status. Therefore, we conclude that Ferguson was not attempting to introduce

       evidence of a crime or evidence regarding Dr. Gregori’s character for

       truthfulness, but was only cross-examining an expert witness about the history

       of the credentials on which the witness relied for the authority to provide his

       expert opinion. We conclude that the trial court did not abuse its discretion

       when it denied Seidenstucker’s motion in limine regarding the admission of the

       suspension of Dr. Gregori’s medical license.


                                    II.     Motion to Correct Error
[17]   Generally, a trial court’s ruling on a motion to correct error is reviewed for an

       abuse of discretion. Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384

       (Ind. Ct. App. 2017). An abuse of discretion occurs when the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 9 of 12
       decision is against the logic and effect of the facts and circumstances before the

       court or if the court has misinterpreted the law. Id.


[18]   Seidenstucker argues that the trial court erred in denying his motion to correct

       error, in which he requested additur or a new trial. He contends that, based on

       the totality of the evidence presented at trial, the jury’s verdict was inadequate.

       Specifically, Seidenstucker asserts that the testimony of Dr. Gregori established

       that Seidenstucker suffered a permanent SI injury and that he would experience

       pain indefinitely. Seidenstucker alleges that, because of this injury, he will need

       SI injections followed by neural ablation therapy, which could be required

       every one to two years for the rest of his life. Based on the cost of the SI

       injection, the neural ablation therapy, and future physical therapy,

       Seidenstucker maintains that the cost of his future treatment is likely between

       $210,200.00 to $300,400.00, which does not include his past medical bills of

       $8,105.09 or any pain and suffering. Seidenstucker claims that, therefore, the

       jury’s verdict was inadequate and not supported by the evidence presented at

       trial.


[19]   When reviewing a jury’s damage award that the appellant claims is inadequate,

       we apply a strict standard. Liter’s of Ind., Inc. v. Bennett, 51 N.E.3d 285, 299

       (Ind. Ct. App. 2016), trans. denied. “Specifically, we ‘consider only the evidence

       that supports the award together with the reasonable inferences therefrom.’” Id.

       If there is any evidence to support the amount of the award, even if it is

       conflicting, this court will not reverse. Id. “This standard reflects the premise

       that damages ‘are particularly a jury determination.’” Id. (quoting Sears Roebuck

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 10 of 12
       & Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001)). We, therefore, do not

       substitute our idea of a proper damage award for that of the jury. Id. (citing

       Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied)).

       “Because appellate courts are unable ‘to actually look into the minds of the

       jurors, . . . we will not reverse if the award falls within the bounds of the

       evidence.’” Id. (quoting Sears Roebuck, 742 N.E.2d at 462).


[20]   Based on our review of the record, we conclude that the jury’s damage award

       was supported by the evidence presented. Evidence was presented that, at the

       time of the trial, Seidenstucker had incurred past medical expenses in the

       amount of $8,105.09. Tr. Vol. III at 23-24. Dr. Gregori testified that

       Seidenstucker would benefit from further physical therapy and that the cost for

       additional physical therapy would be between $1,200.00 and $1,600.00.

       Appellant’s App. Vol. 2 at 28. Dr. Gregori also testified that Seidenstucker would

       likely need two SI injections to assist with his pain and that the cost of these

       two SI injections would range between $3,000.00 and $4,000.00 each for a total

       of between $6,000.00 and $8,000.00. Id. Dr. Gregori testified that, after the SI

       injections, Seidenstucker could receive neural ablation therapy, which could

       provide longer term relief, but that there could be some regeneration of the

       nerves that could cause a patient to “have to have [the neural ablation therapy]

       repeated in a couple of years.” Tr. Vol. II at 180. Evidence was presented that

       each subsequent neural ablation therapy would range from $4,000.00 to

       $6,000.00. Appellant’s App. Vol. 2 at 28. Although Dr. Gregori testified that

       Seidenstucker may need subsequent rounds of neural ablation therapy

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 11 of 12
       indefinitely, his testimony was that it was only a possibility and not a definite

       requirement. Tr. Vol. II at 180.


[21]   Additionally, Seidenstucker requested damages for pain and suffering.

       Although Dr. Gregori opined that Seidenstucker would experience pain

       indefinitely, evidence was also presented that he was able to work full time as

       an occupational therapist, was able to go to the gym four or five days a week,

       and “[p]hysically . . . was able to do most things”. Tr. Vol. II at 182, 236, 240;

       Tr. Vol. III at 17-18. Assessing the value of damages for pain and suffering,

       because it involves the weighing of evidence and credibility of witnesses, is

       particularly within the jury’s discretion. Gary Cmty. Sch. Corp. v. Lardydell, 8

       N.E.3d 241, 250 (Ind. Ct. App. 2014), trans. denied. The jury is in the best

       position to award damages for pain and suffering. Id. We, therefore, conclude

       that the jury’s award of damages was within the evidence presented at trial, and

       the trial court did not abuse its discretion when it denied Seidenstucker’s

       motion to correct error.


[22]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-962 | November 20, 2018   Page 12 of 12
