Spaulding v. Cook

• Decision Date: 12 December 2017
• Docket Number: Court of Appeals Case No. 02A03–1707–CT–1623
• Citation: 89 N.E.3d 413
• Parties: Joseph SPAULDING, Appellant–Plaintiff, v. Joseph COOK, Appellee–Defendant.
• Court: Indiana Appellate Court

89 N.E.3d 413

Joseph SPAULDING, Appellant–Plaintiff,

v.Joseph COOK, Appellee–Defendant.

Court of Appeals Case No. 02A03–1707–CT–1623

Court of Appeals of Indiana.

Filed December 12, 2017

Ordered Published December 21, 2017

Attorneys for Appellant : Diana C. Bauer, Bauer Legal LLC, Fort Wayne, Indiana, David L. Farnbauch, Sweeney Law Firm, Fort Wayne, Indiana

Attorney for Appellee : Patrick J. Murphy, State Farm Litigation Counsel, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Following an automobile accident, Joseph Spaulding sued Joseph Cook, and, prior to trial, Cook stipulated that he was 100% at fault for causing the accident. At the conclusion of a trial on damages, the jury awarded Spaulding no damages. Spaulding filed a motion to correct error in which he alleged, in essence, that the verdict was inconsistent with the evidence and inadequate as a matter of law. The trial court denied that motion. Spaulding appeals and claims that the trial court abused its discretion when it denied his motion to correct error. We affirm.

Facts and Procedural History

[2] On June 8, 2012, Spaulding was driving approximately thirty miles per hour westbound on Independence Drive in Fort Wayne. As Spaulding entered the intersection with Centennial Drive he had the right-of-way, as there was no stop sign or traffic signal for traffic on Independence Drive. Cook was driving a full-size van on Centennial Drive, stopped at a stop sign, did not see Spaulding's car approaching the intersection, and proceeded into the intersection with Independence Drive. Despite last-second evasive maneuvers by both drivers, Cook's van collided with Spaulding's car. Cook later described the force of the collision as "mild" or "moderate." Plaintiff's Ex. 31 at 31; Tr. at 49. Spaulding's car sustained damage to the front fender and front part of the driver's-side door, and the rearview mirror was broken. Other than the front right bumper coming loose on one side, Cook's van sustained no damage. Spaulding was wearing his seatbelt and no part of his body hit anything in the car as a result of the collision. Spaulding did not have any obvious injuries and did not seek medical attention that day.

[3] The next morning, Spaulding felt pain in his left shoulder when he tried to reach into his back pants pocket. Accordingly, that afternoon Spaulding went to the emergency room at Lutheran Hospital. Dr. Mary Wilger examined Spaulding's left shoulder and ordered X-rays, which "show[ed] nothing acutely." Plaintiff's Ex. 1 at 2. Dr. Wilger noted that Spaulding had "tenderness to palpation along the lateral aspect of the [left] shoulder" and "limited external rotation and very limited adduction" in the left shoulder. Id. at 1. Dr. Wilger gave Spaulding range of motion exercises to do at home and prescribed Vicodin

for pain. Dr. Wilger instructed Spaulding to follow up with his family doctor in three to five days.

[4] A few days later, on June 12, Spaulding saw his family doctor, Dr. Naren Patel. Dr. Patel examined Spaulding and noted that, while he had full range of motion in his left shoulder, "he was having pain doing the shoulder movements" during the examination. Plaintiff's Ex. 32 at 10. Dr. Patel also noted that Spaulding had tenderness of the left trapezius muscle and in the left shoulder area. Dr. Patel injected cortisone into Spaulding's left shoulder area, prescribed Percocet

and a muscle relaxer, and ordered physical therapy.

[5] Spaulding attended eleven physical therapy appointments between June 14 and July 23, and he followed up with Dr. Patel on June 26 and July 11. During the July 11 visit, Dr. Patel suspected that Spaulding had sustained a rotator cuff injury, and he referred Spaulding to Dr. John Pritchard, an orthopedic surgeon. Spaulding made an appointment to see Dr. Pritchard on August 3.

[6] In the meantime, on his way to a physical therapy appointment on July 27, Spaulding was in another car accident. The brakes on Spaulding's truck were not working properly, and he rear-ended a stopped vehicle. Spaulding was traveling approximately five or ten miles per hour at the time of the collision. He did not sustain any injury, and he did not seek medical treatment.

[7] When Spaulding returned to physical therapy on July 31, he reported that he did not have "any pain" at that time and that he was "doing better." Plaintiff's Ex. 4 at 1. And during physical therapy on August 2, Spaulding reported that he did not have "any pain" at that time and that he "th[ought] things [were] working because he [was] having less pain overall with all activity, including reaching behind his back." Plaintiff's Ex. 5 at 1.

[8] On August 3, Spaulding saw Dr. Pritchard. Spaulding described the June 8 accident and stated that, since that accident, he had "experienced frequent left arm pain" but had improved with physical therapy. Plaintiff's Ex. 6 at 1. Spaulding described his pain as intermittent and said it was a six on a scale of one to ten. Spaulding did not tell Dr. Pritchard that he had been in another car accident on July 27. Dr. Pritchard suspected "some degree of rotator cuff pathology" and injected Spaulding's left shoulder with cortisone. Id. at 2. Dr. Pritchard instructed Spaulding to continue with physical therapy and to follow up with him in six weeks.

[9] On September 5, Spaulding returned to see Dr. Pritchard and reported "increased weakness and more discomfort" in his left shoulder. Plaintiff's Ex. 35 at 9. Accordingly, Dr. Pritchard ordered an MRI of Spaulding's left shoulder which revealed a "significant rotator cuff tear

," a possible biceps tendon tear, and "moderate acromioclavicular joint arthrosis." Id. at 10. Dr. Pritchard surgically repaired the rotator cuff and biceps tendon injury on September 27.

[10] On November 21, 2013, Spaulding filed a complaint against Cook alleging that Cook's negligence caused his injuries. Cook filed an answer. On July 14, 2014, Spaulding filed an amended complaint and alleged that Cook had caused him to suffer "permanent injury to his left shoulder and left bicep area that required surgical intervention." Appellant's App. Vol. 3 at 14. Prior to trial, the parties stipulated that Cook was "100% at fault[.]" Id. at 19. But Cook denied responsibility for any damages allegedly incurred by Spaulding.

[11] At a jury trial on damages, Spaulding testified, and he presented the deposition testimony of his physicians, Dr. Patel and Dr. Pritchard. Dr. Patel testified that Spaulding's left shoulder injuries were caused by the June 8 accident. On cross-examination, Cook asked Dr. Patel about a history of injuries to Spaulding's right shoulder, which had led to surgery for a significant rotator cuff injury in that shoulder.

[12] In his deposition testimony, Dr. Pritchard testified in relevant part as follows:

Q: All right. Now, Dr. Pritchard, while we're on this list here of the procedures that you performed back on September 27th, which of these surgical procedures, in your opinion, were related to or caused by the trauma of the motor vehicle accident?

A: Well, of these procedures, the actual acromioclavicular [ ("AC") ] joint arthritis

, which means a hypertrophy of the joint, that we saw on X-ray, those findings were probably pre-existing the injury. I mean, it's almost a form of arthritis. So, it certainly didn't occur just in a couple months. Unfortunately, any trauma or injury to the shoulder can exacerbate it, so although the actual arthritis of the AC joint was pre-existing, you know, its subsequent removal still, I feel, has bearing on the injury, as does the rotator cuff and as does the biceps tendon, both which more than likely occurred at the time of injury.

Q: All right. Can a patient, particularly one who's, first of all, is it unusual for a seventy-six year old patient to have some degree of arthritis in an AC joint? Is that an unusual finding?

A: Not particularly.

Q: Okay. Can a patient have arthritis that shows up on an X-ray if you take an X-ray or an imaging study of the AC joint? Can a person have arthritis that shows up on an X-ray and be asymptomatic?

A: Absolutely.

Q: Okay. And "asymptomatic" means that they don't have any—

A: No pain.

Q: —stiffness or pain or whatever?

A: Correct.

Q: All right. And can trauma like the trauma that this gentleman had in this motor vehicle accident, can that cause arthritis in the AC joint to become symptomatic and painful?

A: Yes, it can.

Q: All right. And in your opinion, is that what happened in this case?

A: From the best of my records, again, this is the first time that I'm aware that he complained of pain of the shoulder subsequent to the accident. I had treated him for other things, but, again, to the best of my recollection, he had never had problems with the left shoulder before he had the accident. He tried various therapies, medications, and I would say that it is a result of the accident.

* * *

Q: ... Do you believe that his trip to the emergency room the day after this collision, that that trip to the emergency room was necessitated by the trauma of the motor vehicle accident?

A: I do.

Q: Okay. And how about the visits to Dr. Patel after he went to the emergency room, leading up to the referral to you complaining of left shoulder pain? Do you believe those visits to his family physician were necessitated by the trauma of the wreck?

* * *

A: It seems to me that after, you know, a patient of this age was injured in a situation that he went to the emergency room, followed up with his family physician, you know, had some treatment and then ultimately sent to me is consistent with him having had the injury.

Q: All right. And how about the same question. Dr. Pritchard, with regard to the physical therapy that he had at ONE prior to the time that you saw him? Do you believe that therapy was necessitated by the trauma of the collision?

A: Yes, I would say so.

Q: All right. And how about your charges for office visits and also the surgery that he had on September 27th? Do you believe those

...