Mr. Bults, Inc. v. Orlando

• Decision Date: 29 May 2013
• Docket Number: No. 56A04–1210–CT–515.,56A04–1210–CT–515.
• Citation: 990 N.E.2d 1
• Parties: MR. BULTS, INC. d/b/a MBI, Appellant–Defendant, v. Nathan ORLANDO, Appellee–Plaintiff.
• Court: Indiana Appellate Court

990 N.E.2d 1

MR. BULTS, INC. d/b/a MBI, Appellant–Defendant,

v.Nathan ORLANDO, Appellee–Plaintiff.

No. 56A04–1210–CT–515.

Court of Appeals of Indiana.

May 10, 2013.

Ordered Published May 29, 2013.

Michael R. Hartigan, Hartigan & O'Connor P.C., Chicago, IL, Eric L. Kirschner, Green & Kuchel, P.C., Schererville, IN, Attorneys for Appellant.

Jeffrey S. Wrage, Blachly, Tabor, Bozik & Hartman, LLC, Valparaiso, IN, Attorney for Appellee.

OPINION

MATHIAS, Judge.

Nathan Orlando (“Orlando”) sued Mr. Bults, Inc., doing business as MBI (“MBI”), for negligence after he was injured when a semi truck backed into the tipper machine he was operating. The jury returned a verdict for Orlando of $650,0000. MBI now appeals and raises two issues, which we restate as whether there was sufficient evidence to sustain a negligence finding and whether the jury award of $650,000 was excessive.

We affirm.

Facts and Procedural History

Orlando was the operator of a tipper machine for Newton County Development Corporation, an Allied Waste landfill site. A tipper machine lifts garbage trailers into the air via a ramp mechanism and dumps the garbage inside the trailer into the landfill. On October 1, 2008, while Orlando was in the cab of the tipper machine, a driver from MBI backed his semi truck into the tipper machine. Orlando was standing up in the cab at time, and he was knocked off his feet from the impact. The right side of his body and head struck the inside walls of the metal cab. Orlando crawled out of the tipper machine but was dizzy.

Orlando went to the Working Well medical clinic where Dr. Charles Mok, Jr. (“Dr. Mok”) treated him. Dr. Mok then transferred him to the emergency room for x-rays, but the x-rays were “unremarkable[.]” Ex. Vol., Plaintiff's Ex. 2. Orlando returned to work the following day, but he experienced problems with walking and with his kneecap shifting. Tr. p. 107. When the pain in his knee persisted, Orlando returned to Dr. Mok multiple times. Dr. Mok eventually ordered an MRI and referred Orlando to an orthopedic surgeon.

Dr. Keith Pitchford (“Dr. Pitchford”), an orthopedic surgeon, examined Orlando monthly from October 2008 to February 2009. In October and November 2008, Dr. Pitchford reviewed the MRI and concluded that Orlando had an anterior femoral bone bruise on his right knee, which Dr. Pitchford attributed to the October 1, 2008 accident due to Orlando's history and “the mechanism of injury [.]” Tr. p. 79; Ex. Vol., Plaintiff's Ex. 2. Dr. Pitchford also found that Orlando had patellar dislocation of his right knee, chondromalacia¹ of the right patella, sprain/strain of the right anterior cruciate ligament, sprain/strain of the right ankle, and a bone bruise on the right navicular. Id. Dr. Pitchford recommended physical therapy for Orlando two to three times a week for four to six weeks, prescribed hydrocodone-acetaminophen tablets, and stated that Orlando could return to work on November 4, 2008, but should not kneel, squat, push or pull, or climb stairs or ladders.

In December 2008, Dr. Pitchford noted that Orlando's ankle was improving and that therapy was helping. Dr. Pitchford suggested usage of a TENS unit to help alleviate pain and prescribed acetaminophen-codeine tablets. Dr. Pitchford again said it was okay to return to work but advised that Orlando should only do sit-down work. In January 2009, Dr. Pitchford noted that Orlando was “doing well[,]” that he had excellent strength in his ankle, and that his “knee is improved 5/5 in range and flexion.” Ex. Vol., Plaintiff's Ex. 2. Doctor Pitchford allowed Orlando to return to work without restrictions and recommended therapeutic range and strengthening exercises. On February 2, 2009, Dr. Pitchford again noted that Orlando was okay to go back to work without restrictions.

On May 10, 2010, Orlando brought suit against MBI alleging negligence. The jury trial commenced on May 21, 2012. MBI stipulated to the fact that it was 100% at fault for the accident and stipulated that the amount of the worker's compensation lien was $9,602.72. However, MBI argued that Orlando was not injured in the manner or extent claimed and denied that Orlando's injuries were permanent in nature. MBI also argued that the right knee pain was the result of a pre-existing medical condition. Tr. p. 61. Orlando argued that he suffered permanent impairment to his knee that was a direct and proximate result of MBI's negligence.

Orlando was thirty-one years old at the time of the accident, and the court took judicial notice that his reasonable life expectancy was another forty-three and a half years from the time of the trial. Tr. pp. 95–96. Orlando also presented evidence that due to his injuries, he missed work to attend doctor appointments and physical therapy, and he incurred medical expenses. Tr. pp. 61–62. He has difficulty with his right knee during every day activities such as climbing stars, riding in the car, playing with his children, and taking walks with his wife. Tr. pp. 112–13.

On May 22, 2012, the jury returned a verdict against MBI and found that Orlando was entitled to $650,000 in damages. On June 11, 2012, MBI filed a Motion to Correct Error.² The trial court denied this motion on October 12, 2012.

MBI now appeals. Additional facts will be provided as necessary.

I. Sufficiency

MBI argues that the jury's verdict that it was negligent was not supported by sufficient evidence. “When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. We consider only the evidence and reasonable inferences therefrom which support the jury's verdict.” Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct.App.1996) (internal citations omitted). We will reverse only “where there is no evidence or reasonable inference from that evidence on an essential element of the plaintiff's case.” Id.

“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.” Pelak v. Ind. Indus. Servs., Inc., 831 N.E.2d 765, 769 (Ind.Ct.App.2005), trans. denied. Here, MBI concedes that it was at fault for the accident; therefore, there is no dispute about MBI's duty and failure to meet this duty. However, MBI argues there was insufficient evidence that the October 1, 2008 accident was the proximate cause of Orlando's permanent injury to his knee.

To prove the causation element, the plaintiff had to establish that “the harm would not have occurred but for the defendant's conduct.” City of E. Chicago v. Litera, 692 N.E.2d 898, 901 (Ind.Ct.App.1998).

This element requires, at a minimum, causation in fact—that is, that the harm would not have occurred “but for” the defendants' conduct. The “but for” analysis presupposes that, absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm.

Hence, in order for the plaintiff to carry her burden of proof, she must present evidence of probative value based on facts, or inferences to be drawn from the facts, establishing both that the wrongful act was the cause in fact of the occurrence and that the occurrence was the cause in fact of her injury. The plaintiff's burden may not be carried with evidence based merely upon supposition or speculation. Standing alone, evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict. Civil liability may not be predicated purely upon speculation.

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. Ordinarily, however, the question of the causal connection between a permanent condition, an injury and a pre-existing affliction or condition is a complicated medical question. When the issue of cause is not within the understanding of a lay person, testimony of an expert witness on the issue is necessary. An expert, who has the ability to apply principles of science to the facts, has the power to draw inferences from the facts which a lay witness or jury would be incompetent to draw. But, even an expert's opinion, in conjunction with other evidence, may be so lacking in probative value as to be insufficient to support a verdict.

Daub v. Daub, 629 N.E.2d 873, 877–78 (Ind.Ct.App.1994) (internal citations omitted), trans. denied.

In this case, Dr. Pitchford testified that Orlando had a bone bruise on his right knee, a sprain/strain of his right anterior cruciate ligament, had chondromalacia of his right patella, and had patellar dislocation of his right knee. Ex. Vol., Plaintiff's Ex. 2. MBI does not appear to dispute that Orlando's knee was injured but does dispute that the accident caused permanent injury to the knee. MBI argues that “it was never established that the chondromalacia was either initially caused by the accident on October 1, 2008 or permanentlyaggravated as a result thereof.” Appellant's Br. at 11. Rather, MBI argues that this case is similar to City of E. Chicago, 692 N.E.2d at 901, because Dr. Pitchford's testimony was not sufficiently certain in regard to whether the accident was the proximate cause of the chondromalacia and whether the injury to the right knee was permanent. Appellant's Br. at 8–9, 12.

MBI is correct that “evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict.” Daub, 629 N.E.2d at 877. However, we disagree that Dr. Pitchford's testimony lacked reasonable certainty. While Dr. Pitchford testified that chondromalacia could be chronic or posttraumatic in nature[,]” he stated it was “[m]ost likely” a symptom of the bone bruise, and he attributed Orlando's bone bruise to the October 1, 2008 accident due to his...