HOUSEMEYER v. BABCOCK (2023)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellants-Plaintiffs, Douglas Housemeyer (Housemeyer) and Diane Housemeyer (Diane) (collectively, Appellants), appeal the trial court's denial of their motion to correct error which affirmed the jury's verdict of zero dollars in favor of Appellee-Defendant, Kurt W. Babcock (Babcock).

[2] We affirm.

ISSUE

[3] Appellants present this court with one issue on appeal, which we restate as: Whether the trial court abused its discretion in denying Appellants’ motion to correct error and by affirming the jury's verdict which awarded zero dollars in damages after Babcock admitted fault following a vehicular collision and Appellants’ medical expert concluded that the car accident caused a brain injury which, in turn, caused Housemeyer to develop Lewy Body Dementia (LBD).

FACTS AND PROCEDURAL HISTORY

[4] On January 9, 2017, Housemeyer was driving southbound on Keystone Avenue in Hamilton County, Indiana. Traffic was stopped near the intersection of Keystone Avenue and 98th Street. Babcock, also traveling southbound, failed to notice that traffic was stopped and collided with the back of Housemeyer's vehicle while driving approximately fifty miles per hour. Following the accident, Babcock checked on Housemeyer to see if he was injured. Housemeyer, while talking on his cell phone, motioned that he was fine. He reported no injuries to the police or emergency medical services, and left for home with his wife and son, who had arrived at the scene of the accident, before going into work to retrieve some items.

[5] “[F]rom the moment she saw him at the scene of the accident,” Diane had “immediate concerns” about Housemeyer, which “never slowed down from that point.” (Transcript Vol. IV, p. 23). Housemeyer's condition did not improve during the two weeks following the collision and Diane “knew [she] just needed to step in” because Housemeyer's “eyes were dilated all the time, and he just couldn't put together numbers” or handle routine “billing for work.” (Tr. Vol. IV, pp. 7-8). Diane made an appointment with Housemeyer's family doctor, Timothy Hodges, M.D. (Dr. Hodges).

[6] On January 26, 2017, Housemeyer made his first visit to Dr. Hodges. During this visit, Housemeyer complained of anxiety, which had been gradually worsening, and described symptoms of decreased concentration, depressed mood, and excessive worry. Housemeyer indicated that the onset of these symptoms started “1 to 5 years ago” and had become “aggravated by family issues and specific phobias.” (Appellee's Exh. A, p. 2). No mention was made of the vehicular collision. On February 2, 2017, Diane made a phone call to Dr. Hodges to describe the effects of medication prescribed at Housemeyer's last visit. She did not mention any concerns about the changes in her husband's behavior following the car accident. On March 2, 2017, two months after the collision, Housemeyer returned to Dr. Hodges, again complaining of depression and anxiety. On March 17, 2017, Diane made another phone call to Dr. Hodges, at which time she confirmed that Housemeyer “has had anxiety for years” but also expressed concern that “he has become worse of late,” since his car accident, and “that he has difficulty with cognitive skills[.]” (Appellee's Exh. A, p. 11).

[7] Six months after the accident, Dr. Hodges referred Housemeyer for a neurology consultation with Dr. Raymond Horn (Dr. Horn). Dr. Horn noted that Diane was “particularly concerned about the motor vehicle accident and returned to this event numerous times during the interview. [R]eportedly, there was no indication of head injury, concussion, or other injury, although there was serious damage to the vehicle.” (Tr. Vol. III, p. 45). Dr. Horn concluded that Housemeyer had evidence of cognitive impairment. Two years later, in January 2019, Housemeyer was seen for neuropsychological testing with Dr. Ayca Byerley (Dr. Byerley). She concluded that Housemeyer did “not show a significant decline compared to his initial evaluation in 2017.” (Tr. Vol. III, p. 49). In July 2019, Housemeyer presented at the Mayo Clinic for a third round of neuropsychological testing. The Mayo Clinic diagnosed him with LBD.

[8] From the time of the accident in January 2017, until “mid to late September” 2019, Housemeyer continued to drive a car. (Tr. Vol. IV, p. 37). Into late December 2019, Housemeyer worked full-time “hosting a radio show[,]” he was “director of finance and sales[,] bringing in money for a station associated with the University of Indianapolis[,]” and did “interviews with artists.” (Tr. Vol. III, pp. 89, 152). During this same time period, Housemeyer received performance evaluations at work, indicating that he “exceed[ed] expectations” of his “overall level of performance” in June/July 2017, June/July 2018, and July 2019. (Tr. Vol. IV, pp. 46-49).

[9] In August 2021, four-and-a-half years after the car accident, Housemeyer was evaluated by Dr. Polly Westcott, Ph.D., a neuropsychologist (Dr. Westcott). In general, Dr. Westcott identified two general areas of brain injury: coup or contrecoup injuries, which are caused by blunt force trauma to the head, and diffuse axonal injuries, which are caused by whiplash injuries, like rear-end car collisions. Based on her examination, Dr. Westcott concluded that Housemeyer was predisposed to LBD, and that he had sustained a brain injury in the accident which had expedited the onset of LBD. Dr. Westcott confirmed that her assessment of traumatic brain injury was solely based on Diane's recall of Housemeyer “presenting symptoms immediately following this accident[.]” (Tr. Vol. III, p. 63). She specifically relied on statements made by Diane that Housemeyer had thirteen specific “acute progress changes in physical, cognitive and emotional functioning [that] were evident immediately following the collision.” (Tr. Vol. III, pp. 30-31).

[10] Dr. Westcott reached those conclusions based on three categories of symptoms: cognitive symptoms, which were reflected in Housemeyer's confusion and disorientation, physical symptoms, which were manifested by Housemeyer's dilated pupils, shuffling of feet, and vision changes, and the emotional symptoms, which were shown by “delusions or basically he wasn't seeing the world as other people do.” (Tr. Vol. II, p. 226). Dr. Westcott opined that “all of these things that I'm mentioning, started after the wreck. And not only did they start after the wreck, but they also happened all at once.” (Tr. Vol. II, p. 227). Her analysis focused largely on the neuropsychological testing performed by Dr. Horn, approximately six months after the car accident:

I looked at the test scores from that evaluation, it indicates [ ] one of two things are happening. One that there's been a dementia process going on for a very long time, years and years, to get to that level of severity of scores. Or that something else catastrophic in the brain has happened that set forward a dementia process.

(Tr. Vol. II, p. 58). She explained that the catastrophic injury was more likely because if there had been a longstanding dementia process, Housemeyer would have been noticeably struggling before the accident and he would have been unable to write and deliver the eulogy at his father's funeral two days prior to the collision.

[11] On December 18, 2018, Appellants filed their Complaint against Babcock sounding in negligence and requesting twenty million dollars in damages based on the allegation that the vehicle collision caused a brain injury that resulted in the development of LBD. Babcock admitted that he was the sole cause of the collision but disputed the nature and extent of Housemeyer's injuries. On May 16 through May 19, 2022, a jury trial was convened at which Drs. Hodges and Westcott testified, in addition to five lay witnesses. At the close of the evidence, the jury returned a verdict awarding zero dollars.

[12] On June 24, 2022, Appellants filed a motion to correct error, which was heard by the trial court on July 20, 2022. On August 15, 2022, the trial court denied Appellants’ motion, concluding, in pertinent part, that

The jury reached a conclusion in this case, but that is not to say there was only one conclusion that could have been reached in this case, what does matter is whether the conclusion reached by the jury was supported by the evidence that was presented at trial;

In this matter of the highest importance, this [c]ourt believes and holds that it did.

(Appellants’ App. Vol. II, pp. 26-27).

[13] Appellants now appeal. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[14] Appellants appeal from the trial court's denial of their motion to correct error. We review the grant or denial of a Trial Rule 59 motion to correct error under an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). On appeal, we will not find an abuse of discretion unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct. App. 1998).

[15] Appellants contend that the jury verdict is inadequate as a matter of law because the zero-dollar damages award is contrary to the evidence and the uncontradicted expert testimony presented at trial. As this court has observed, “[a] jury determination of damages is entitled to great deference when challenged on appeal.” Spaulding v. Cook, 89 N.E.3d 413, 420 (Ind. Ct. App. 2017), trans. denied. The applicable standard of review has been summarized as follows:

Damages are particularly a jury determination. Appellate courts will not substitute their idea of a proper damage award for that of the jury. Instead, the court will look only to the evidence and inferences therefrom which support the jury's verdict. We will not deem a verdict to be the result of improper considerations unless it cannot be explained on any other reasonable ground. Thus, if there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed.

[16] Id. at 420-21 (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994)). In addition, our supreme court has observed that:

Our inability to actually look into the minds of the jurors is, to a large extent, the reason behind the rule that we will not reverse if the award falls within the bounds of the evidence. We cannot invade the province of the jury to decide the facts and cannot reverse unless the verdict is clearly erroneous.

Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001) (quoting Annee v. State, 271 N.E.2d 711, 713 (1971)). Still, it is well settled that “Indiana subscribes to the general principle of tort law that all damages directly attributable to the wrong done are recoverable.” Russell v. Neumann–Steadman, 759 N.E.2d 234, 237 (Ind. Ct. App. 2001). A plaintiff has the burden to prove by a preponderance of the evidence that the medical expenses that he incurred were a proximate result of the defendant's negligence. See Matovich v. Rodgers, 784 N.E.2d 954, 958 (Ind. Ct. App. 2003). Once that burden is met, “the law allows an injured plaintiff to recover the reasonable cost of necessary medical expenses.” Russell, 759 N.E.2d at 237. The jury is not bound to award a plaintiff the exact amount of his medical expenses, but it may determine what amount is reasonable in light of the evidence. Spaulding, 89 N.E.3d at 421.

[17] Here, Appellants contend that there is no evidence to support the jury's verdict. In particular, Appellants point out that Dr. Westcott testified that the car accident caused a brain injury which expedited the onset of LBD. Appellants assert that because causation is a complicated medical question that requires the testimony of an expert witness, and Babcock did not present contrary medical expert testimony, the jury was required to believe Dr. Westcott and award damages for Housemeyer's injuries. We cannot agree.

[18] In Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. Ct. App. 2004), this court stated,

it is evident that defendants in personal injury actions are entitled to thoroughly challenge a plaintiff's expert with respect to that expert's causation opinions. It is axiomatic that the accuracy, consistency, and credibility of an expert's opinions may properly be challenged by vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.

Doctors and other expert witnesses are not oracles whose opinions, once stated, cannot be questioned or refuted by other evidence, even if that evidence does not come in the form of another expert's testimony. It is clear, for example, that a jury may reject unanimous medical expert testimony that a criminal defendant was legally insane at the time he or she committed a crime where there is evidence that tends to undermine such testimony. See Cate v. State, 644 N.E.2d 546, 547-48 (Ind. 1994) (holding jury was free to reject unanimous opinion of five psychiatrists that defendant was legally insane where psychiatrists’ assertions were not uncontroverted by other evidence). The law in Indiana is that “[e]xpert opinion regarding causation may be admissible and yet in conjunction with other evidence may be either sufficient or insufficient to support a verdict.” Strong v. State, 538 N.E.2d 924, 930 (Ind. 1989). “[A]s is virtually the unanimous rule in this nation's jurisdictions, the jury is free either to accept or reject the opinion of the expert witness; the finder of fact may supplant its own conclusion for that of the expert.” Id. at 931 (quoting Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722, 729 (Ind. 1982)). This rule would seem to have little meaning if ․ a defendant cannot challenge or cast doubt upon the opinion of a plaintiff's expert that the plaintiff was injured by the defendant with evidence that the plaintiff suffers from a pain-producing disease or mechanism, unrelated to the defendant's negligence, in the precise area of the body where the plaintiff claims to suffer ongoing pain.

And in Flores v. Gutierrez, 951 N.E.2d 632, 636-37 (Ind. Ct. App. 2011), trans. denied, we stated as follows:

It is true that “[t]he testimony of a trained physician who has examined and treated a patient concerning matters purely within the medical realm cannot be controverted by lay opinion or by judicial speculation or inference.” Beaman v. Hedrick, 255 N.E.2d 828, 830 (1970) (reversing trial court determination of paternity when expert medical witness's testimony was that paternity was improbable but not impossible). “However, on medical matters which are within the common experience, observation, or knowledge of laymen, no expert testimony is required to permit a conclusion on causation.” Willis v. Westerfield, 839 N.E.2d 1179, 1188 (Ind. 2006).

Thus, here, we must determine whether there is any evidence to undermine the medical expert testimony that Babcock proximately caused Housemeyer's brain injury which accelerated the onset of LBD and whether the proximate cause of Housemeyer's injuries concerns “matters purely within the medical realm” or matters “within the common experience, observation, or knowledge of laymen.” See id.

[19] In Spaulding, 89 N.E.3d at 420, the plaintiff argued that “the jury verdict [wa]s inadequate as a matter of law because the zero damages award [wa]s contrary to the evidence.” On appeal, we affirmed the verdict in light of: the low impact of the accident; plaintiff's pre-existing conditions, which were similar to his alleged injuries caused by the accident; plaintiff's failure to seek immediate medical treatment; and his doctor's inability to testify “with absolute certainty that the accident” had caused plaintiff's claimed injuries. Id. at 423. We held that “the jury's determination that Spaulding was entitled to zero damages arising out of his accident with Cook [wa]s not outside the bounds of the evidence.” Id.

[20] Here, the jury was presented with testimony by Appellants’ expert, Dr. Westcott, who evaluated Housemeyer four and a half years after the car accident and who concluded that due to Housemeyer's predisposition to LBD and his brain injury from the accident, Housemeyer's LBD was expedited, with all of LBD's cognitive, physical, and emotional symptoms, as reported by Diane, starting “all at once” after the accident. (Tr. Vol. II, p. 226). In contrast, the jury also heard evidence from Dr. Hodges, Housemeyer's family practitioner. Beginning two weeks after the accident, Housemeyer complained of anxiety symptoms, which had started “1 to 5 years” ago and which had recently been worsened by certain family issues. (Appellee's Exh. A. p.2). Dr. Westcott admitted that these anxiety symptoms, which started 1 to 5 years prior to the accident, were consistent with LBD symptoms. Despite another visit and a phone call from Diane, Dr. Hodges was not informed of the car accident. Only on March 17, 2017, approximately two months after the collision was Dr. Hodges made aware of the car accident through a phone call from Diane and he referred Housemeyer for a neurology consult. During this phone call, Diane also confirmed Housemeyer's earlier statement that he “has had anxiety for years.” (Appellee's Exh. A, p. 11). The neurology consultation with Dr. Horn, approximately six months after the collision, concluded that Housemeyer had evidence of cognitive impairment. The neurology testing did not reflect a brain injury nor was there evidence of accelerated onset of LBD. Neuropsychological testing two years after the accident indicated that there was no significant decline compared to Housemeyer's evaluation in 2017. Again, there is no mention of any brain injury or LBD. It was not until 2019 that the Mayo Clinic officially diagnosed Housemeyer with LBD.

[21] Although Dr. Westcott insisted that Housemeyer's LBD symptoms would have immediately been present after the accident, the jury was presented with evidence indicating that Housemeyer continued to drive a car until “mid to late September” 2019. (Tr. Vol. IV, p. 37). Until late December 2019, Housemeyer worked full-time “hosting a radio show[,]” he was “director of finance and sales[,] bringing in money for a station associated with the University of Indianapolis[,]” and did “interviews with artists.” (Tr. Vol. III, pp. 89, 152). His performance evaluations placed him at “exceed[ing] expectations” of his “overall level of performance” in June/July 2017, June/July 2018, and July 2019. (Tr. Vol. IV, pp. 46-49).

[22] Accordingly, in light of Housemeyer's onset of anxiety symptoms which mimic LBD symptoms 1 to 5 years prior to the 2017 accident, his failure to inform his family practitioner of the collision until two months later, the absence of any diagnosed brain injury besides Dr. Westcott's conclusion four and a half years after the accident which relied solely on Diane's reporting, the existence of two neurological consultations that found cognitive issues but did not mention a brain injury or LBD, and Housemeyer seemingly living his daily life without issues until December of 2019, we conclude that the issue of causation is “outside the purely medical realm requiring expert testimony to controvert it.” Flores, 951 N.E.2d at 637; see Ferdinand Furniture Co. v. Anderson, 399 N.E.2d 799, 807-08 (Ind. Ct. App. 1980) (affirming verdict contrary to expert witness engineer's testimony because vigorous cross-examination undermined his conclusions). Thus, the jury's determination that Housemeyer was entitled to zero damages arising out of his accident with Babcock is not outside the bounds of evidence. Therefore, the trial court did not abuse its discretion when it denied Appellants’ motion to correct error.

CONCLUSION

[23] Based on the foregoing, we hold that the trial court did not abuse its discretion in denying Appellants’ motion to correct error and by affirming the jury's verdict which awarded zero dollars in damages.

[24] Affirmed.

Riley, Judge.

[25] Altice, C. J. and Pyle, J. concur