                                                                             FILED
                                                                        Feb 28 2019, 10:21 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
David A. Singleton                                         Kelly A. Roth
Chad E. Romey                                              AMERICAN FAMILY INSURANCE
BLACKBURN & GREEN                                          LEGAL DEPARTMENT
Fort Wayne, Indiana                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

David Martin,                                              February 28, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-SC-1648
        v.                                                 Appeal from the Allen Superior
                                                           Court
Jose Ramos,                                                The Honorable Craig J. Bobay,
Appellee-Defendant.                                        Judge
                                                           The Honorable Thomas P. Boyer,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           02D01-1801-SC-1548



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019                            Page 1 of 16
                                             Case Summary
[1]   David Martin (“Martin”) filed a Notice of Claim in the Allen Superior Court

      Small Claims Division, alleging that he had sustained physical injuries in a

      vehicular collision with Jose Ramos (“Ramos”). The trial court found Ramos

      to be 100% at fault for the collision but denied Martin damages, concluding that

      Martin had not established causation. Martin filed a motion to correct error,

      which was denied, and he now appeals. We reverse and remand.



                                                       Issues
[2]   Martin presents two restated issues for review:


               I.       Whether expert medical testimony is unnecessary in small
                        claims proceedings designed to administer justice
                        expediently; and


               II.      Whether the trial court misapplied the law in determining
                        that Martin had not established causation.


                              Facts and Procedural History
[3]   Martin filed a Notice of Claim on January 30, 2018. A bench trial was

      conducted on April 30, 2018 but it was not recorded. Pursuant to Indiana

      Appellate Rule 31, the trial court certified a Statement of Evidence.1 We derive




      1
       Indiana Appellate Rule 31(A) provides in part: “If no Transcript of all or part of the evidence is available, a
      party or the party’s attorney may prepare a verified statement of the evidence from the best available sources,

      Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019                               Page 2 of 16
our recitation of facts from that Statement of Evidence, which provides in

relevant part:


         The Plaintiff testified that he was stopped while traveling on
         West Creighton Avenue in Fort Wayne, Indiana, when his
         vehicle was struck from the rear by a vehicle being driven by the
         Defendant, Jose Ramos.


         Plaintiff further testified that he received treatment as a result of
         the collision at Lutheran Hospital, where he complained of pain
         in the following areas:


                  a. at the base of the left side of the skull;


                  b. along the left side of his neck;


                  c. in the center of his neck;


                  d. in the mid axillary region under his left arm; and


                  e. in his left shoulder.


         He rated his pain as a seven (7) out of ten (10), with ten being the
         greatest amount of pain.


         Plaintiff further testified that a CT scan of his cervical spine
         showed some preexisting conditions. He testified that he had




which may include the party’s or the attorney’s recollection. The party shall then file a motion to certify the
statement of evidence with the trial court[.]”

Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019                               Page 3 of 16
        experienced pain in his neck prior to the wreck, but the wreck
        caused increased pain for a period of time.


        Prior to discharge from Lutheran Hospital, the Plaintiff had to be
        cleared by a neurosurgeon, Dr. Jeffrey Kachmann, because the
        CT scan of his head showed “left front post traumatic
        subarachnoid hemorrhage.”


        Plaintiff was released from the hospital after agreeing that he was
        required to have someone with him at all times. Dr. Kachmann
        told the Plaintiff to be on guard for any possible neurological
        changes, including seizures, weakness, numbness, or tingling in
        the legs. Plaintiff testified that this warning made him very
        worried as he left the hospital.


        Plaintiff testified that he later visited Parkview Physicians Group
        on January 11, 2017, due to ongoing back pain and neck stiffness
        since the collision. His pain was achy generally, but sharp if he
        bent forward. The pain was underneath his shoulder blades
        toward the middle of the back. He also complained of sharp pain
        in his left arm when he reached backwards. He was told to
        return in four weeks, but his pain remained intense and he
        returned on January 26 with continued complaints of neck pain.
        His back pain had improved by that time, but then flared again
        which caused him to visit Parkview Hospital on March 25, 2017.


        Plaintiff admitted he did have some pre-existing conditions, but
        that the collision aggravated those symptoms for a period of time.
        Overall, his symptoms went on for two (2) or three (3) months,
        after which the Plaintiff return[ed] to his baseline condition.


        Plaintiff admitted that in the past he had participated in various
        sporting activities and sustained injuries.



Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019        Page 4 of 16
              Plaintiff admitted that he suffers from bipolar disorder and
              receives Medicare benefits.


              Defendant admitted that he was at fault in causing the rear-end
              vehicle collision with Plaintiff.


              Defendant testified that he was traveling at five (5) to ten (10)
              miles per hour at the time of the collision.


              Defendant testified that Plaintiff and Defendant spoke to each
              other moments after the collision, and that Plaintiff did not make
              any complaints of pain at that time.


      Statement of Evidence, pgs. 1-2. Martin also submitted his medical records into

      evidence.


[4]   On May 14, 2018, the trial court entered an order providing in pertinent part:


              On December 8, 2016, Plaintiff was involved in an automobile
              collision on Lafayette Street. Defendant was 100% at fault in
              causing the collision.


              It is Plaintiff’s contention that the collision caused injuries
              (damages) to his head, neck, chest, back, and shoulder.


              Plaintiff has the burden of proving by a reasonable medical
              probability that the collision caused his injuries. Topp v. Laffers,
              838 N.E.2d 1027 (Ind. App. 2005).


              Prior to December 8, 2016, Plaintiff had a history of injuries to
              his neck and back regions.



      Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019          Page 5 of 16
              The results of Plaintiff’s CT scans and X-rays taken on December
              8, 2016 reflect multilevel degenerative changes in his cervical
              spine and mild arthritic changes in his left shoulder.


              The injuries that Plaintiff claims were caused by the collision are
              subjective in nature. A subjective complaint or injury is
              perceived or experienced by the patient and reported to the
              patient’s doctor but is not directly observable by the doctor.
              Foddrill v. Crane, 894 N.E.2d 1070 (Ind. App. 2008).


              In order to establish causation based on the facts and
              circumstances of this case Plaintiff needs an expert medical
              opinion. Daub v. Daub, 629 N.E.2d 873 (Ind. App. 1994); Topp v.
              Laffers, 838 N.E.2d 1027 (Ind. App. 2005).


              The medical records submitted into evidence and Plaintiff’s lay
              testimony regarding his injuries are not sufficient to establish
              within a reasonable medical probability that the collision on
              December 8, 2016 caused injuries to Plaintiff.


              Plaintiff has failed to meet his burden of proof on the issue of
              causation.


      Appealed Order at 1.


[5]   Martin filed a motion to correct error. He contended that the trial court had

      erroneously relied upon Topp and Daub “to determine that [he] needed to

      present expert medical opinion to establish causation” because those decisions

      involved jury trials. (App. at 92.) Martin also argued, “although a plaintiff in a

      small claims case still has the burden of proof for his claims, the evidentiary

      standard to meet that burden of proof cannot be equated to the standard


      Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019         Page 6 of 16
      applicable in a jury setting; otherwise, the entire purpose of the small claims

      process would be defeated.” Id. at 93-94. The motion to correct error was

      denied. Martin appeals.



                                  Discussion and Decision
                                         Standard of Review
[6]   Small claims judgments are “subject to review as prescribed by relevant Indiana

      rules and statutes.” Ind. Small Claims Rule 11(A). Martin had the burden of

      proof on his small claims action and now appeals a negative judgment. When a

      party appeals from a negative judgment, we will reverse only if the decision of

      the trial court is contrary to law. LTL Truck Service, LLC v. Safeguard, Inc., 817

      N.E.2d 664, 667 (Ind. Ct. App. 2004). A decision is contrary to law if the

      evidence and reasonable inferences lead to but one conclusion and the trial

      court has reached the opposite conclusion. Id. However, the deferential

      standard applied to findings of fact does not apply to the substantive rules of

      law, which are reviewed de novo. Hastetter v. Fetter Props., LLC, 873 N.E.2d

      679, 683 (Ind. Ct. App. 2007).


              Necessity for Expert Testimony in Small Claims
[7]   Martin claims that “expert medical opinion is not necessary to prove causation

      of a subjective personal injury in a small claims action.” Appellant’s Brief at

      15. He points out that small claims proceedings are intended to be informal,




      Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019      Page 7 of 16
      cost-effective, and expedient, even if complex issues are presented. In sum, he

      asserts that:


              Requiring expert medical opinion in a small claims action is
              contrary to public policy because it will defeat the purpose of the
              small claims court; it will create a chilling effect on those
              plaintiffs with small claims for subjective injuries; it will
              unnecessarily increase the burden on superior and circuit courts;
              it will result in an unjust windfall to tortfeasors; and it will create
              confusion for both plaintiffs and defendants alike.


      Id. at 23.


[8]   Martin correctly observes that small claims proceedings are to be informal.

      Indiana Small Claims Rule 8(A) provides: “The trial shall be informal, with the

      sole objective of dispensing speedy justice between the parties according to the

      rules of substantive law, and shall not be bound by the statutory provisions or

      rules of practice, procedure, pleadings or evidence except provisions relating to

      privileged communications and offers of compromise.” Nonetheless, despite

      the informality of the proceedings, the parties in a small claims court bear the

      same burdens of proof as they would in a regular civil action on the same

      issues. LTL Truck Service, 817 N.E.2d at 668. Although “the method of proof

      may be informal, the relaxation of evidentiary rules is not the equivalent of

      relaxation of the burden of proof.” Id. Thus, it remains incumbent upon the

      party who bears the burden of proof to demonstrate that it is entitled to the

      recovery sought. Id. The burden of proof with respect to damages is with the

      plaintiff. Id. (citing Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.


      Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019         Page 8 of 16
       Ct. App. 2002)). Martin’s public-policy arguments are unavailing; he was

       required to prove his negligence claim without deviation from the substantive

       law. We turn to consideration of whether the trial court properly applied the

       law when it determined that Martin failed to meet his burden.


                           Establishment of Negligence Claim
[9]    “The tort of negligence consists of three elements: (1) a duty owed to the

       plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3)

       injury to the plaintiff proximately caused by that breach.” Kincade v. MAC

       Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). Ramos conceded, and the

       trial court found, that he was at fault for causing the collision. The third

       element was in dispute. In reliance upon Daub v. Daub, 629 N.E.2d 873 (Ind.

       Ct. App. 1994), trans. denied, and Topp v. Leffers, 838 N.E.2d 1027, 1033 (Ind.

       Ct. App. 2005), trans. denied (finding necessity of expert witness testimony when

       the issue of causation is not within the understanding of a layperson), the trial

       court concluded that Martin’s testimony and medical records were insufficient

       to establish causation. Martin argues that the trial court erroneously relied

       upon decisions that he views as “inapplicable because the concerns presented in

       those cases regarding a lay juror’s ability to comprehend medical evidence are

       not present in a small claims setting.” Appellant’s Brief at 15. He observes that

       small claims courts are routinely required to resolve complex issues.


[10]   To the extent that Martin suggests the burden of proof is lessened in a small

       claims case, we have already rejected that contention. To the extent that he


       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019     Page 9 of 16
       suggests a small claims judge has specialized medical knowledge a layperson or

       juror does not, we find that argument unpersuasive. The trial court need not

       have disregarded the reasoning of Daub and Topp simply because the fact-

       finders were jurors in those cases.


[11]   That said, the cases do not create a rule of law that expert medical testimony is

       always required in personal injury cases. If a layperson can readily understand

       the causation, an expert opinion is not necessary. “An essential element in a

       cause of action for negligence is the requirement of a reasonable connection

       between a defendant’s conduct and the damages which a plaintiff has suffered.”

       Daub, 629 N.E.2d at 877. “When an injury is objective in nature, the plaintiff is

       competent to testify as to the injury and such testimony may be sufficient for

       the jury to render a verdict without expert medical testimony.” Id. But a

       “causal connection between a permanent condition, an injury, and a pre-

       existing affliction or condition is a complicated medical question.” Topp, 838

       N.E.2d at 1033 (citing Daub, 629 N.E.2d at 877-78)). Expert testimony is

       needed then because a layperson is unable to understand causation in those

       circumstances. Id.


[12]   In Daub, Patricia Daub had slipped on snow and ice on her in-laws’ patio,

       feeling a jerk but not pain. See Daub, 629 N.E.2d at 877. The next day, she felt

       stiffening. She subsequently received chiropractic treatment and was

       hospitalized for ten days. She underwent two back surgeries, and then slipped

       and fell at a grocery store. Years earlier, she had been struck by a car and she

       had also sustained a whiplash injury. See id. Daub testified in the trial of her

       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019    Page 10 of 16
       personal injury action against her in-laws, but she was unable to distinguish

       between her various back problems. On appeal, we addressed the deficiency of

       her testimony relative to causation:


               [I]t is so lacking in probative value on the question of cause in
               fact that it offers the jury at best only the mere possibility that her
               back ailment was in fact caused by the slip Mrs. Daub
               experienced at her in-laws. The distinctions between Mrs.
               Daubs’ various back problems are not objectively discernible,
               even to Mrs. Daub. The temporal congruity which Mrs. Daub
               recognized between the slip and her lower back pain is
               admittedly some evidence of causation, which when coupled
               with a diagnosis of the nature of her ailment, and an application
               of scientific principles by one knowledgeable in the treatment of
               the ailment, may be sufficient to permit a jury to find for the
               Daubs without resort to speculation. But, in the absence of that
               additional evidence, Mrs. Daubs’ lay report of the facts which
               she experienced first-hand amounts to nothing more than her
               own hypothesis that her back ailment was caused by the slip.
               Alone, Mrs. Daub has established nothing more than the facts
               which make up her allegation.


       Id. at 878.


[13]   The Topp panel relied upon the reasoning of Daub and likewise concluded that

       the testimony of an expert medical witness was necessary to establish the

       element of causation in her claim for aggravation of pre-existing injuries. 838

       N.E.2d at 1033. Yvonne Topp was a passenger in a vehicle that was rear-

       ended; upon impact, she hit her head and experienced immediate intense pain.

       See Topp, 838 N.E.2d at 1029. The next day, she had pain in her neck and

       back. Topp, who had already been in several car accidents, sued for

       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019        Page 11 of 16
       aggravation of pre-existing injuries. Topp’s injuries were subjective in nature,

       rather than objective, because she perceived an injury and reported it to her

       doctor, but the injury was not one the doctor could observe. Id. at 1033.


[14]   The Court discussed the necessary burden of proof:


               Because Topp’s injuries were subjective in nature, her testimony
               alone was not sufficient to prove causation without expert
               medical testimony. Daub, 629 N.E.2d at 877. Furthermore,
               because of Topp’s pre-existing injuries, discerning the causal
               connection between the November 2000 accident and Topp’s
               resulting injuries is a complicated medical question that is not
               within the understanding of a lay person. Id. at 877-78.
               Therefore, it was necessary for Topp to introduce the testimony
               of an expert medical witness on the issue of causation. Id. Here,
               Topp did introduce testimony from expert witnesses[.] . . . A
               plaintiff’s burden may not be carried with evidence based merely
               upon supposition or speculation. Id. at 877. Evidence
               establishing a mere possibility of cause or which lacks reasonable
               certainty or probability is not sufficient evidence by itself to
               support a verdict. Id.


       Topp, 838 N.E.2d at 1033. Because Topp’s physicians could opine only that her

       injuries “possibly” or “may” have been aggravated in the accident, or had noted

       “apparent” aggravation, causation was not established. Id. at 1034.


[15]   Martin asserts that his medical records indicate an objective injury – a “left

       front post traumatic subarachnoid hemorrhage.” Statement of the Evidence at

       2. The hemorrhage noted in Martin’s medical records was “observable by the

       doctor” and discoverable independent of a patient report. See Topp, 838 N.E.2d

       at 1033. As such, Martin documented an objective injury. The salient inquiry

       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019    Page 12 of 16
       was then whether the “occurrence was a cause in fact of his injury.” Smith v.

       Beaty, 639 N.E.2d 1029, 1033 (Ind. Ct. App. 1994). In some circumstances,

       causation may be demonstrated without a medical expert stating an opinion to

       a degree of medical certainty. Id. at 1034.


[16]   In Smith, Larry Smith (“Smith”) had been involved in a rollover of his work van

       and he was trapped inside when a semi-tractor trailer impacted the van,

       allowing Smith to extricate himself. See id. at 1031. Smith was treated for five

       fractured ribs. His physician could not say whether the rollover or the impact

       of the semi caused those injuries. On appeal from the grant of judgment on the

       evidence to the semi driver, a panel of this Court examined the availability of

       proving causation by circumstantial evidence:


               Causation, or the requirement of a reasonable connection
               between a defendant’s conduct and the damages which a plaintiff
               has suffered, is an essential element in a negligence action. Daub
               v. Daub (1994), Ind. App., 629 N.E.2d 873, 877, trans. denied. …
               Causation in a negligence case need not always be proven by
               expert testimony. See Barrow v. Talbott (1981), Ind. App., 417
               N.E.2d 917, 923 n.3. Causation may be proven by circumstantial
               evidence if the evidence has sufficient probative force to
               constitute a basis for a legal inference rather than mere
               speculation. Id. When the issue of causation is within the
               understanding of a lay person, testimony of an expert witness is
               not necessary. See Daub, 629 N.E.2d at 878 (causal connection
               between permanent condition, injury and pre-existing condition
               ordinarily a complicated medical question requiring expert
               opinion).




       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019   Page 13 of 16
       Smith, 639 N.E.2d 1033-34. In that case, Smith had been able to testify that,

       after the rollover, he had been able to move his arm through a harness without

       rib pain and had felt pain only after the semi impact. We concluded that a lay

       person would be able to determine that the driver’s conduct “was a cause of

       Smith’s injuries.” Id. at 1034 (emphasis in original).


[17]   The question of proximate cause is generally one left to the factfinder. Rhodes v.

       Wright, 805 N.E.2d 382, 388 (Ind. 2004). “This tends to be the case because the

       question of causation often requires a weighing of disputed facts.” J.B. Hunt

       Transport, Inc. v. Guardianship of Zak, 58 N.E.3d 956, 972 (Ind. Ct. App. 2016).

       However, causation may be resolved as a matter of law when only a single

       conclusion can be drawn from the facts. Id.


[18]   Absent a jury, a trial court acts both as gatekeeper of the evidence to be

       considered and the fact-finder. Martin testified that he experienced an increase

       in pain after the vehicular collision. But here in addressing the question of

       causation, the court foreclosed from its consideration evidence that was not

       expert medical testimony. Yet, as we observed in Daub, the “temporal

       congruity” between an event and experiencing pain is “admittedly some

       evidence of causation.” 629 N.E.2d at 878. It was therefore error for the trial

       court to conclude as a matter of law that Martin failed to present evidence on

       the issue of causation.


[19]   It is the plaintiff who determines the injuries for which he will seek

       compensation. And, it is true that the more complex the causal relationship is


       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019    Page 14 of 16
       to the injury claimed, the greater the need for expert testimony on the issue

       presented in order for the plaintiff to meet his burden of proof. But Martin’s

       claim was not for complex or permanent injuries – he simply sought

       compensation for pain associated with the rear-end automobile accident.


[20]   Martin had previously experienced pain in his neck and back. He testified that

       he felt increased pain after the collision, and the degree and persistency of that

       pain caused him to seek medical treatment at a hospital. Like the plaintiff in

       Smith, Martin reported to Lutheran Hospital staff a pain that he had not

       complained of before the accident (i.e., pain at the base of the skull). A CT

       scan revealed a post traumatic subarachnoid hemorrhage. Martin’s medical

       records included documentation that Martin was considered at medical risk

       such that he could be discharged only under supervision. He was advised to be

       alert to any neurological changes.


[21]   In addition to his submitting medical records, Martin was a competent witness

       to testify regarding his pain. Daub, 629 N.E.2d at 877. As in Smith, the

       evidence of record in this non-complex claim for temporary injury is such that a

       layperson could readily understand whether or not the collision was a cause of

       injury to Martin.2 Martin presented circumstantial evidence having “sufficient

       probative force to constitute a basis for a legal inference rather than mere




       2
           “The defendant’s act need not be the sole cause of the plaintiff’s injuries.” Smith, 639 N.E.2d at 1034.


       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019                               Page 15 of 16
       speculation.” Smith, 639 N.E.2d at 1034. Martin did not fail to meet his

       burden of proof on causation.


[22]   Martin testified and presented documentation regarding injury

       contemporaneous with the collision for which Ramos was at fault. The lack of

       complexity is such that a factfinder can determine issues of causation and

       damages without expert testimony. We remand for such determinations by the

       fact-finder.



                                                 Conclusion
[23]   Martin was required to prove his negligence claim without deviation from the

       substantive law. However, the trial court’s conclusion that Martin failed to

       establish causation as a matter of law is contrary to the evidence. We remand

       for further consideration consistent with this opinion.


[24]   Reversed and remanded.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-SC-1648 | February 28, 2019   Page 16 of 16
