Franciose v. Jones
| Decision Date | 29 May 2009 |
| Docket Number | No. 64A03-0802-CV-00060.,64A03-0802-CV-00060. |
| Citation | 907 N.E.2d 139 |
| Parties | Mark P. FRANCIOSE and Ray Ramirez, III, Appellants-Defendants, v. Aaron A. JONES, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
While driving through snowy weather, Ray Ramirez, III, lost control of his truck and crashed into guardrails on both sides of an interstate highway. The truck became stuck in the passing lane of the interstate. The occupants of the truck made their way to the side of the interstate. After another motorist stopped her car to block traffic and two semi-trucks created a barrier between the stranded truck and approaching traffic, Aaron A. Jones, one of Ramirez's passengers, approached Ramirez's truck to push it off the interstate so that other motorists would not crash into it. Mark P. Franciose came upon the traffic jam, drove his car on the shoulder of the interstate, and hit Jones, causing injuries. Jones sued Franciose and Ramirez. During the jury trial, Franciose unsuccessfully objected to the testimony of Jones's expert witness. The jury found in Jones's favor and awarded damages against both defendants. Both defendants appeal. Among other things, we conclude that Franciose did not sufficiently alert the trial court that he desired an inquiry pursuant to Indiana Evidence Rule 702(b) on the admissibility of Jones's expert witness's testimony. Further, we conclude that the superseding cause doctrine does not require reversal of the jury's verdict against Ramirez. We affirm.
On the afternoon of December 13, 2003, Ramirez, Jones, and Ramirez's fiancee, Jamie Morris, were riding in Ramirez's pickup truck on Interstate 65 near Demotte, Indiana. Ramirez was driving. It began to snow, and the three observed a van and a car that had apparently slid off of the interstate. Ramirez slowed to about 55 miles per hour but left the truck's cruise control engaged as he drove onto a bridge. When the truck started to slide, Ramirez spun the steering wheel but lost control over the vehicle. The truck hit the concrete barrier on one side of the bridge, spun completely, struck the barrier on the other side of the bridge, and came to rest in the northbound passing lane of the interstate. The interstate had only two lanes running in each direction. The truck's airbags deployed, and the truck filled with smoke. Mistakenly believing the truck was on fire, Ramirez, Jones, and Morris rushed out of the truck after activating the emergency lights. They walked down the bridge to a grassy area in the median of the interstate.
From the median, the group witnessed semi-trucks skid by the disabled truck, missing it by "not even inches." Tr. Vol. I p. 49.1 A stranger named Danielle arrived to assist Ramirez, Jones, and Morris, stopping her car in the passing lane behind Ramirez's disabled truck and turning on her emergency lights. Danielle invited Morris, whose leg had been injured in the accident, to sit in her car. She also provided flares to Ramirez. Ramirez attempted to light the flares to alert approaching traffic of the crash, but the flares would not stay lit because of the snow and wind. It was dark, and the only light on the road was illumination from headlights.
Traffic backed up behind Danielle's car and Ramirez's truck in the passing lane and also in the driving lane of the interstate. Two semi-trucks, one in each lane, approached the crash site slowly with their flashing lights activated. Behind the semi-trucks, traffic was backed up "pretty far." Id. at 53. The semi-trucks created a temporary barrier across both lanes of the interstate. Id. at 54.
A man stopped and offered to help move the disabled truck off of the road. Jones decided to move the truck with him and walked into the passing lane where the truck was stranded. Danielle, with Morris as a passenger, pulled her car forward with the intent of passing the disabled truck and pulling off of the interstate. Suddenly, however, a car moving at approximately sixty miles per hour appeared on the left shoulder of the interstate. The car, driven by Franciose, struck Jones and then crashed into Ramirez's disabled truck. Jones sustained serious injuries to his foot.
Jones filed suit against Franciose and Ramirez, alleging that they acted negligently and caused him injury.2 The case proceeded to a jury trial. During trial, the trial court made several rulings relevant to this appeal. First, the trial court allowed an expert witness to testify regarding Jones's future need for surgery in preemptive response to the anticipated testimony of another expert witness. Second, the trial court permitted an expert witness to testify whose methodology was challenged only once after the trial was underway. Third, the trial court excluded the testimony of a defense witness who failed to appear for his deposition and whose correct contact information had not been provided to Jones before trial. Finally, the court read a jury instruction that if Ramirez acted negligently in crashing his truck and Jones acted to protect human life or property when responding to Ramirez's negligence, Ramirez could be held liable for Jones's injuries.
The jury found in Jones's favor and awarded damages against both defendants. Specifically, the jury found total damages of $1,250,000 and apportioned 23% fault to Ramirez, 65% fault to Franciose, and 12% fault to Jones. Appellant Ramirez's App. p. 123. Franciose and Ramirez both filed motions to correct error, raising several issues, which the trial court denied. They now appeal, tendering separate briefs.
On appeal, Franciose and Ramirez raise a number of issues, which we restate and reorder as follows: (1) whether the trial court abused its discretion by refusing to strike testimony from an expert witness which preemptively rebutted the anticipated testimony of an expert witness for Franciose; (2) whether the trial court abused its discretion in admitting the testimony of an expert witness whose methodology Franciose challenged; (3) whether the trial court abused its discretion by excluding the testimony of defense witness Matthew Lackey; (4) whether the trial court erred in denying Ramirez's motion for a directed verdict because it improperly failed to recognize Franciose's actions as an intervening and superceding cause of Jones's injuries; (5) whether the trial court erred in its instruction to the jury regarding the rescue doctrine; and (6) whether the verdict against Ramirez is excessive.
Franciose challenges the trial court's admission of testimony from two expert witnesses and the exclusion of testimony from one defense witness. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100 (Ind.Ct.App.2005), trans. denied. This standard also applies to a trial court's decision to admit or exclude expert testimony. Id. We will reverse a trial court's decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 101. A trial court's decision to admit or exclude evidence will not be reversed unless prejudicial error is clearly shown. Id. Likewise, a trial court has broad discretion in ruling on a motion to strike. Id. at 100.
Franciose contends that the trial court committed reversible error by refusing to strike the testimony of Dr. Yarkony. As a preliminary matter, Jones contends that Franciose has waived this argument by failing to raise it in his motion to correct error. Appellee's Br. p. 33-34. Jones argues that Franciose's challenge to Dr. Yarkony's testimony is, at its heart, a claim that the jury's verdict is excessive. As such, according to Jones, Indiana Trial Rule 59(A) and (D) dictate that the argument be waived on appeal. We disagree. While Indiana Trial Rule 59(A) requires that a party wishing to appeal a jury verdict as "excessive" first file a motion to correct error with the trial court,3 and Indiana Trial Rule 59(D) requires the party to address the claimed error and bases with specificity, a challenge such as this to an evidentiary ruling by the trial court is not one of those matters that a party must argue in a motion to correct error in order to preserve the issue for appeal. We proceed to address Franciose's argument.
Before trial, the trial court entered an order requiring that Jones submit to an independent medical examination performed by Dr. Michael Owens. Appellant Franciose's App. p. 38-39. The order also provided Jones "the right to name a rebuttal witness to Doctor Owens." Id. at 39.4 During trial, Jones called Dr. Yarkony as an expert witness. Dr. Yarkony testified about Jones's future medical needs and the attendant costs stemming from his foot injuries. After Dr. Yarkony finished testifying, Franciose made an oral motion to strike his testimony, arguing that Dr. Yarkony, as a rebuttal witness, should have testified after Dr. Owens. Tr. Vol. II p. 174-75. The trial court delayed ruling on the motion. When Franciose reiterated his argument right before Dr. Owens testified, the trial court responded that its ruling Tr. Vol. IV p. 3. Franciose failed to raise the issue again after Dr. Owens testified.
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