MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           May 07 2018, 8:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Sandy L. Bryant                                          Larry A. Yeager
Indianapolis, Indiana                                    State Farm Litigation Counsel
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenitta K. Chandler,                                     May 7, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1706-CT-1346
        v.                                               Appeal from the Marion Superior
                                                         Court
Rhonda Bowser,                                           The Honorable John F. Hanley,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         49D11-1412-CT-39762



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018                  Page 1 of 10
                               Case Summary and Issues
[1]   Following a jury trial, Rhonda Bowser was ordered to pay $17,630.31 in

      damages to Kenitta Chandler for injuries arising out of a motor vehicle

      accident. The trial court denied Chandler’s motion to correct error requesting

      additur. Chandler appeals, raising the sole issue of whether the trial court erred

      as a matter of law in denying her motion. Bowser cross-appeals and raises one

      issue for review: whether Chandler waived her appeal for failing to provide this

      court with the entire transcript of the trial as required by Indiana Appellate Rule

      9(F)(5). Concluding there was no error, we affirm the judgment of the trial

      court.



                            Facts and Procedural History
[2]   On December 9, 2012, Bowser and Chandler were involved in a motor vehicle

      accident in which Bowser struck the back of Chandler’s car. Chandler visited

      the emergency room the day after the accident, and again on January 17, 2013.

      On her first visit to the emergency room, Chandler complained of low back

      pain and left side neck pain but had a full range of motion in her neck, hips,

      knees, and ankles, and both her upper and lower extremities exhibited good

      strength. Her second visit was prompted by a spasm in her neck causing pain

      and discomfort.


[3]   Chandler was then seen on three different occasions by Dr. Robert Cater, an

      internist. At her first visit on January 28, 2013, Dr. Cater found her to have


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 2 of 10
      significant neck spasm, a limited range of motion in her neck, pain in both

      shoulders and elbows, pain in her left knee, dizziness, and a palpable spasm in

      the muscles of her lower back, all of which Chandler said related to her

      accident. Dr. Cater did not review Chandler’s medical records from before the

      accident, but she reported no pre-existing history of injuries or ongoing pain,

      and Dr. Cater testified that the injuries he treated Chandler for “were directly

      related to her motor vehicle accident . . . .” Transcript, Volume II at 12. “If the

      trauma had not occurred, she would not have had symptoms, in my opinion.”

      Id. at 15. Dr. Cater recommended Chandler continue taking the pain

      medication prescribed in the emergency room and begin physical therapy.

      Chandler attended physical therapy from February 5, 2013 through April 9,

      2013. Dr. Cater noted “the subsequent physical therapy notes . . . showed

      improvement to definitely require physical therapy to maintain her normal

      function.” Id. at 20.


[4]   When Chandler returned to Dr. Cater in March, she still had daily pain in her

      shoulders and lower back but had an improved range of motion in her neck.

      And when she returned a month after that, her neck and knee pain had

      resolved, but she still had reduced mobility in her lower back and persistent

      pain in her back and shoulder. Dr. Cater intended for Chandler to continue

      with physical therapy, but a referral was not sent until August. Once the

      referral was made, Chandler began physical therapy again on August 29, 2013,

      continuing through November 2013. Chandler did not contact Dr. Cater’s

      office between April and August regarding the lost referral.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 3 of 10
[5]   In February 2014, Chandler began treating with Dr. Jonathan Shook, an

      orthopedic surgeon. He assessed Chandler’s most outstanding issue as

      persistent shoulder pain stemming from the accident and recommended

      additional physical therapy. Chandler began physical therapy again in June

      2014, attending regularly through September 2014.


[6]   Chandler filed a complaint for damages against Bowser on December 5, 2014,

      alleging Bowser was negligent in operating her motor vehicle and seeking

      damages for her personal injuries. Bowser admitted liability but challenged the

      nature, cause, and extent of Chandler’s injuries and damages. At a jury trial in

      April 2017, Chandler introduced into evidence a medical bill summary

      indicating total medical expenses of $24,857.22, incurred between December

      10, 2012, and September 30, 2014. These expenses included her two

      emergency room visits, treatment with both Dr. Cater and Dr. Shook,

      medications, and physical therapy from February 2013 to April 2013, from

      August 2013 to November 2013, and from June 2014 to September 2014.


[7]   Although Dr. Cater testified that Chandler’s medical treatments all stemmed

      from the accident, he conceded that back pain, neck pain, and spasms can be

      caused by things other than motor vehicle accidents, such as sleeping wrong, for

      instance. He also noted that the notes from Chandler’s first emergency room

      visit indicate she had low back and neck pain but a full range of motion and

      good strength in her upper and lower extremities. Dr. Cater further testified

      that there was evidence Chandler had degenerative changes between the fifth

      and sixth vertebrae in her neck. Finally, Dr. Cater acknowledged that his

      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 4 of 10
      opinions about whether the accident caused Chandler’s injuries and pain were

      based primarily upon the three visits she made to him, but the subsequent visits

      with Dr. Shook and physical therapists “were further indication that she

      continued to have pain and symptoms.” Id. at 63.


[8]   Ultimately, Dr. Cater testified that the medical bill summary reflected “the

      involvement of multiple medical professionals, all of whom felt that the patient

      had significant pain and disability[,]” and therefore the treatment was necessary

      based on her injuries. Id. at 27. Based on his experience and review of

      Chandler’s medical records, Dr. Cater concluded the charges in the medical bill

      summary “are reasonable charges considering the course of her illness and the

      length.” Id.


[9]   Apparently,1 Chandler argued for damages in the amount of $125,000 to

      account for her medical bills and pain and suffering. Bowser posited that

      Chandler could be entitled to as little as $0 damages, given she failed to seek

      medical care on the date of the accident, to as much as $11,331.49, to account

      for her medical care through her first round of physical therapy. The jury

      awarded Chandler damages in the amount of $17,630.31. Chandler

      subsequently filed a motion to correct error, requesting additur pursuant to

      Indiana Trial Rule 59(J)(5) to award her a judgment in the amount of her




      1
        As will be discussed below, Chandler requested that only Dr. Cater’s testimony be transcribed. Although
      Bowser requested additional parts of the transcript be prepared, neither party requested the entire trial be
      transcribed, and the record therefore includes only Dr. Cater’s testimony and Bowser’s closing argument.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018                Page 5 of 10
       medical bills. The court denied Chandler’s motion to correct error. Chandler

       now appeals the denial of this motion to correct error.



                                 Discussion and Decision
                                                 I. Waiver
[10]   We begin by addressing Bowser’s waiver argument. Bowser argues that

       Chandler waived her argument regarding the sufficiency of the verdict by not

       requesting and providing the entire transcript of the two-day jury trial. Indiana

       Appellate Rule 9(F)(5) states that a party’s Notice of Appeal shall include


               [a] designation of all portions of the Transcript necessary to
               present fairly and decide the issues on appeal. If the appellant
               intends to urge on appeal that a finding of fact or conclusion
               thereon is unsupported by the evidence or is contrary to the
               evidence, the Notice of Appeal shall request a Transcript of all the
               evidence.


       (Emphasis added.) Although a failure to include a transcript is “not fatal to the

       appeal, failure to include a transcript works a waiver of any specifications of

       error which depend upon the evidence.” Lifeline Youth & Family Servs., Inc., v.

       Installed Bldg. Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (quoting

       In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).


[11]   Chandler has chosen to rest her appeal on the testimony of Dr. Cater alone,

       requesting only the “[t]rial testimony of Dr. Robert Cater and Stipulated

       Medical Bill Exhibit of jury trial conducted on April 18 & 19, 2017” be


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 6 of 10
       prepared. Notice of Appeal at 2. In her reply brief, she recommits to that

       decision, stating she need not provide a transcript of the entire trial as she has

       provided the “only evidence as to the amounts of medical specials” which is all

       that is needed to “fairly present and decide the issue of additur.” Appellant’s

       Reply Brief at 5-6. Chandler’s argument on appeal, however, is that the jury’s

       verdict is “contrary to the evidence.” Pursuant to Appellate Rule 9(F)(5), she

       should have requested a transcript of all the evidence. The failure to comply

       with Appellate Rule 9(F)(5) could therefore be found to constitute a waiver.

       Waiver notwithstanding, we are nonetheless inclined to address the merits of

       Chandler’s argument. However, she is bound by the consequences of that

       choice. In other words, we can only decide the issue on the record presented to

       us. “It is a cardinal rule of appellate review that the appellant bears the burden

       of showing reversible error by the record, as all presumptions are in favor of the

       . . . judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468-69 (Ind.

       Ct. App. 2006).


                                  II. Motion to Correct Error
                                       A. Standard of Review
[12]   On appeal, we review a trial court’s rulings on motions to correct error for

       abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048,

       1055 (Ind. 2003). We will reverse only where “the trial court’s judgment is

       clearly against the logic and effect of the facts and circumstances before it or

       where the trial court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d

       758, 761 (Ind. 2013).
       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 7 of 10
[13]   Pursuant to Indiana Trial Rule 59(J)(5), if the trial court determines on a

       motion to correct error that prejudicial or harmful error has occurred, it “shall

       take such action as will cure the error,” including, “[i]n the case of excessive or

       inadequate damages, enter[ing] final judgment on the evidence for the amount

       of the proper damages, grant[ing] a new trial, or grant[ing] a new trial subject to

       additur or remittitur.” “Trial courts must afford juries great latitude in making

       damage award determinations.” Childress v. Buckler, 779 N.E.2d 546, 550 (Ind.

       Ct. App. 2002). Only the evidence favorable to the award is considered and the

       court “must not reverse a damage award so long as the damages fall within the

       scope of the evidence.” Palmer v. Comprehensive Neurologic Services, P.C., 864

       N.E.2d 1093, 1103 (Ind. Ct. App. 2007), trans. denied. A verdict will be reversed

       only if the amount of damages awarded indicates “the jury was motivated by

       prejudice, passion, partiality, corruption, or consideration of some improper

       element.” Id.


                                        B. Award of Damages
[14]   Chandler argues that her medical bill summary and Dr. Cater’s testimony

       established her undisputed medical bills are $24,877.22 and that her damage

       award should have been at least that amount. To recover damages for medical

       expenses, the expenses must be both reasonable and necessary. Sibbing v. Cave,

       922 N.E.2d 594, 600 (Ind. 2010). Reasonable and necessary “means (1) that

       the amount of medical expense claimed must be reasonable, [and] (2) that the

       nature and extent of the treatment claimed must be necessary in the sense that it

       proximately resulted from the wrongful conduct of another . . . .” Id. at 604.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 8 of 10
[15]   Chandler is correct that Indiana Evidence Rule 413 provides that statements of

       charges for health care expenses “are prima facie evidence that the charges are

       reasonable.” (Emphasis added.) Despite this, Chandler still has the burden of

       proving that “the treatment claimed [was] necessary in the sense that it

       proximately resulted from the wrongful conduct . . . .” Sibbing, 922 N.E.2d at

       604.2 Although Dr. Cater did testify that he found all of the charges in the

       medical bills summary to be reasonable and necessary, “[d]amages are

       particularly a jury determination.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d

       453, 462 (Ind. 2001). “[T]he jury is free to either accept or reject the opinion of

       the expert witness; the finder of fact may supplant its own conclusion for that of

       the expert.” Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. Ct. App. 2004) (noting

       that this rule means the defendant in a personal injury case can challenge the

       opinion of the plaintiff’s expert regarding causation: “Doctors and other expert

       witnesses are not oracles whose opinions, once stated, cannot be questioned or

       refuted . . . .”).


[16]   Considering the breaks in Chandler’s physical therapy, the testimony of Dr.

       Cater that Chandler had degenerative changes in her neck, his testimony that

       spasms can be caused by factors other than a motor vehicle accident, and the




       2
         The medical bill summary was admitted into evidence by stipulation of the parties. Chandler contends
       Bowser’s “unqualified stipulation” of the summary into evidence means Bowser could not then, nor can she
       now, challenge the reasonableness and necessity of the medical bills summarized therein. Appellant’s Reply
       Brief at 8. Although the medical bill summary provides some evidence that the charges therein were
       reasonable, Bowser rigorously contested whether the charges were necessary during her cross-examination of
       Dr. Cater. Contrary to Chandler’s assertion, Bowser did not waive her right to challenge the necessity of the
       charges by her stipulation that the summary represented medical bills Chandler had incurred.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018               Page 9 of 10
       fact that the medical bill summary shows bills for over a year after Dr. Cater

       last treated Chandler, it was within the scope of the evidence adduced from Dr.

       Cater for the jury to reject the necessity of some of the stipulated medical costs.

       Additionally, despite Chandler’s assertion that the jury must have considered

       some improper element, there is no indication in the record provided by

       Chandler that “the jury was motivated by prejudice, passion, partiality,

       corruption, or consideration of some improper element.” Palmer, 864 N.E.2d at

       1103. Finally, the trial court heard all of the evidence from this two-day trial

       and determined that no prejudicial or harmful error was committed in the

       award of damages. Given our standard of review and the state of the record on

       appeal, Chandler has not shown that the trial court abused its discretion in

       denying her motion to correct error.



                                               Conclusion
[17]   Concluding that the trial court did not abuse its discretion in denying

       Chandler’s motion to correct error, we affirm.


[18]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018   Page 10 of 10
