Litherland v. McDonnell

• Decision Date: 10 October 2003
• Docket Number: No. 64A03-0303-CV-84.,64A03-0303-CV-84.
• Citation: 796 N.E.2d 1237
• Parties: Doris J. LITHERLAND, Appellant-Defendant, v. Amy McDONNELL, Appellee-Plaintiff.
• Court: Indiana Appellate Court

796 N.E.2d 1237

Doris J. LITHERLAND, Appellant-Defendant, v. Amy McDONNELL, Appellee-Plaintiff.

No. 64A03-0303-CV-84.

Court of Appeals of Indiana.

October 10, 2003.

Michael P. Blaize, State Farm Litigation Counsel, Merrillville, IN, Attorney for Appellant.

Bryan M. Truitt, Law Offices of Tsoutsouris & Bertig, Valparaiso, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Doris Litherland appeals the jury verdict in favor of appellee-plaintiff Amy McDonnell with regard to McDonnell's negligence action that was brought against her. Specifically, Litherland contends that the verdict must be set aide because the trial court erred (1) in denying her motion to exclude certain evidence, or, in the alternative, for a continuance of the trial; and (2) in allowing the deposition transcript of McDonnell's expert witness to be sent to the jury room during deliberations. Finding that the trial court was within its discretion in both instances, and further concluding that Litherland waived the issue with respect to her continuance motion and the request to exclude evidence, we affirm.

FACTS

On December 11, 1999, McDonnell and her now husband Kevin McCoy were traveling westbound in the left lane on U.S. Highway 30 in Merrillville. Just ahead of McDonnell and McCoy, Litherland and her husband were attempting to return a rental car at Enterprise Rental. Enterprise is located in a strip mall on the north side of U.S. 30. Litherland was attempting to exit by crossing the westbound lanes. No break in the median existed where Litherland was exiting. As McDonnell approached the access road, Litherland pulled out onto U.S. 30, crossed both westbound lanes and stopped in McDonnell's lane. McDonnell applied the brakes and attempted to swerve, but the front driver side of McDonnell's vehicle collided with the tail section of Litherland's vehicle.

As a result of the accident, McDonnell suffered a broken sternum, a contusion to the head, and upper neck and shoulder pain. The fractured sternum and upper back pain gradually subsided and healed, but the lower back pain persisted. For the lower back injury, McDonnell's family physician, Dr. Thomas Yerks, prescribed pain and anti-inflammatory medication. When that failed to reduce the pain, physical therapy was attempted. Dr. Yerks also referred McDonnell to Dr. Herbert Biel, an orthopedic surgeon, who ordered two MRIs. Even with medications, McDonnell had daily pain when she exerted herself or when she sat for long periods of time.

On December 7, 2001, McDonnell filed a complaint against Litherland alleging that she was negligent and had caused the collision. By mutual agreement, the parties set the discovery deadline for February 10, 2003, the date the trial was to commence. On February 3, 2003, Litherland filed an unverified motion to exclude evidence or, in the alternative, for a continuance of the trial. Specifically, Litherland alleged that she was not aware of the November 20, 2001 MRI report that supported Dr. Biel's diagnosis of facet joint syndrome until January 31, 2003, and thus she was deprived of any opportunity to prepare a defense. Litherland's motion did not include affidavits, attachments or other evidence to support her motion. The trial court denied Litherland's motion the same day it was made.

Four days later, Litherland filed a motion in limine asking the court to exclude "[a]ny and all evidence of the November 20, 2001, MRI" for the same reasons that she had previously asserted. Appellee's App. p. 2. The court denied the motion in limine "for the reasons stated in Plaintiff's response." Appellee's App. p. 21. Those reasons included: McDonnell signed an authorization to release medical information and provided Litherland with the identities and addresses of all her lifetime care providers; McDonnell had continually alleged permanent lower back injury; Litherland did not provide McDonnell copies of her Trial Rule 34 requests for production of documents and things; McDonnell disclosed in her deposition that she had two MRIs; and the results of the MRI were contained in the records Litherland had supplied to McDonnell on January 24, 2003. Appellee's App. p. 9-11. On February 7, 2003, Litherland and McDonnell entered into a pre-trial order that stipulated to all medical records and bills except that Litherland reserved objection to the November 20, 2001 MRI report. The parties also stipulated to the unavailability of Dr. Yerks and to the admissibility of all other medical records.

At trial, Litherland introduced, as her own exhibit, all medical records and bills of McDonnell, including the November 2001 MRI report. Dr. Yerks's deposition was read into evidence with no objection by Litherland. Dr. Yerks testified in his deposition that McDonnell's lower back pain was the result of soft tissue damage¹, which is not evident on an MRI. Dr. Yerks explained that he referred McDonnell to Dr. Biel, who ordered the November 2001 MRI. That MRI showed a facet proliferation in McDonnell's spine. Such a malady refers to the body's reaction to long-term inflammation, i.e., a soft tissue injury. The facets are spinal joints between the vertebrae that have narrow openings for the nerves coming out of the spinal cord. When the body suffers long-term inflammation, its natural response is to grow additional tissue over a period of time. Given the nature and location of McDonnell's injuries coupled with the location and timing of the onset of McDonnell's facet proliferation, Dr. Yerks testified that he believed beyond a medical certainty that the proliferation was related to the accident with Litherland.

Two hours into deliberations, the jury sent the following written questions to the court. "(1) Did Dr. Yerks say specifically that the back injury was a result of the car wreck? (2) From the transcript, can we see the doctor's testimony of the cause of her lower back injury? (3) Are we able to review the testimony of Dr. Yerks concerning his probable cause of the lower back injury? (4) Is the doctor's `opinion' evidence or fact?" Tr. p. 291. After hearing arguments from counsel, the court found the jury to be at an impasse, and, over Litherland's objection, the court sent the transcript of Dr. Yerks's deposition testimony to the jury room. The jury subsequently returned a verdict in favor of McDonnell in the amount of $128,888, and Litherland now appeals.

DISCUSSION AND DECISION

I. Litherland's Motion to Continue or to Exclude Evidence

Litherland first argues that the trial court erred in denying her motion to continue the trial or, in the alternative, to exclude evidence of McDonnell's November 2001 MRI report. Specifically, she contends that the trial court should have granted her motion because she was unaware of McDonnell's November 2001 MRI until January 31, 2003, a week before trial. Thus, Litherland maintains that she was prejudiced by the MRI report's admission.

In resolving this issue, we initially note that granting or denying a party's motion for continuance is left to the sound discretion of the trial court. We will only overturn the trial court's decision for an abuse of discretion. Scott v. Crussen, 741 N.E.2d 743, 746 (Ind.Ct.App.2000). An abuse of discretion occurs where the trial court reaches a conclusion that is clearly against the logic and effect of the facts of the case. Nat'l Eng'g v. C & P Eng'g, 676 N.E.2d 372, 375 (Ind.Ct.App.1997). In the context of a motion for continuance, "[t]he moving party must be free from fault and show that his rights are likely to be prejudiced by the denial." Scott 741 N.E.2d at 746 (quoting Danner v. Danner, 573 N.E.2d 934, 937 (Ind.Ct.App.1991)). Likewise, the admission and exclusion of evidence falls within the sound discretion of the trial court, and is reviewed only for abuse of discretion. Morequity, Inc. v. Keybank, N.A., 773 N.E.2d 308, 312 (Ind. Ct.App.2002).

In this case, the record reveals that it was Litherland who ultimately introduced evidence of McDonnell's medical records during her case-in-chief. These records included the disputed MRI report. Tr. p. 245. As a result, Litherland cannot be heard to complain, and any claim of error is waived with respect to admission into evidence of the MRI report. Thompson v. State, 728 N.E.2d 155, 161 n. 3 (Ind.2000) (holding that where defendant not only failed to object to the evidence, but moved in its admission at trial, any claim of error was waived)

II. Deposition Transcript

Litherland next argues that the trial court erred in allowing the jury during deliberation to review the deposition transcript of Dr. Yerks. Specifically, Litherland contends that the trial court abused its discretion because deposition transcripts are not permitted in the jury room.

In support of her contention, Litherland directs us to Thomas v. State, 259 Ind. 537, 289 N.E.2d 508 (1972). In that case, our supreme court adopted Section 5.1 of the American Bar Association Standards Relating to Trial by Jury, which states, "The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against Defendant and exhibits and writings which have been received in evidence, except depositions." (Emphasis added). The trial court in Thomas had allowed the jury to review in the jury room prior statements of witnesses that were used during the trial. Our supreme court held this to be an abuse of discretion because the statements were of little aid to the jury, because the jury might have considered the statements for the truth of the contents, and because the statements might have unduly influenced the jury. Thomas, 259 Ind. at 540, 289 N.E.2d at 509.

Historically, we have taken the position that once jury deliberations begin, the trial court should not provide the jury with a transcript of deposition testimony. See Thomas, 289 N.E.2d at 510,

259 Ind. at 541. However, as of January 1, 2003, we have "changed our...