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Appellate Court: $1.3 million awarded in minor vehicle accident not excessive

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Katie Stancombe ffor www.theindianalawyer.com

the Indiana Court of Appeals, which affirmed the verdict in light of the woman’s serious lifetime impairments.

As Dawn Manning, 31, was stopped at a stop sign preparing to turn right out of her apartment complex, Levetta Tunstall accidentally struck the left corner of Manning’s rear bumper, pushing Manning’s vehicle into the road. The low-speed collision caused minor damages to both vehicles, but Manning sustained ongoing neck and back pain.

After visiting a chiropractor, spine specialist and independent medical examiner during the following year, Manning found no pain relief. Medical expert Dr. Steven Paschall opined that Manning had reached maximum medical improvement and suffered from a permanent injury/chronic pain as a result of the collision, giving her a permanent partial impairment rating of 28 percent.

During a damages trial, Manning presented testimony that the pain limits her ability to stand or sit for extended periods of time, lift objects overhead or off the floor, and participate in her previously active lifestyle of exercising and modeling. Although she has been able to continue working in her father’s seasonal tax business and as a real estate agent, her pain has limited the number of hours she can work.

A jury ultimately awarded Manning $1.3 million and subsequently denied Tunstall’s motion to correct error. On appeal, Tunstall argued the $1.3 million verdict was excessive and requested the appellate court engage in a comparative analysis of jury verdicts in other cases involving “a very common type of accident (a fender-bender) with very common alleged injuries (neck and back pain).”

But the appellate court said the evidence showed although the collision was relatively minor, Manning was left with permanent impairments.

“In the months after the accident, Manning suffered headaches and significant neck/back pain, which caused her to stay in bed and become despondent,” Judge Robert Altice wrote for the court Monday. “She pursued various treatments and took prescribed medication, but she experienced little relief. Years after the accident, Manning continues to live with pain, has substantial, daily limitations on regular life activities, and in many ways, cannot live the life she enjoyed before the accident.”

Tunstall also argued the Marion Superior Court abused its discretion by refusing to admit evidence regarding Paschall’s disciplinary history with the Indiana Medical Licensing Board, which has disciplined him twice during his 30-year career. However, the appellate court found the information to be harmless, as Paschall was in good standing at the time of his testimony.

In a separate opinion, Judge John Baker dissented on that point, noting at the time Paschall examined Manning, he was facing a disciplinary complaint that ultimately resulted in the indefinite probation of his medical license for a minimum of one year.

“In sum, I believe that the exclusion of this line of questioning was both erroneous and not harmless,” Baker wrote. “Therefore, I would reverse on this basis and remand for a new trial.”

Tunstall’s remaining arguments focused on issues concerning the jury; the removal of a juror and juror misconduct, both of which were dismissed by the appellate court in Levetta Tunstall v. Dawn Manning, 49A04-1711-CT-2572.

When a juror asked to be dismissed because her legs were in pain and she couldn’t “take it any longer,” Tunstall’s counsel expressed no objection to her removal before reaching a verdict. Tunstall argued the trial court committed fundamental error by discharging the juror without creating the appropriate record. But the appellate court found Tunstall’s counsel was able to make a reasoned decision regarding the juror and whether to keep her on the jury.

Finally, Tunstall argued she was entitled to a new jury because of juror misconduct. A juror related her own experience working with Manning’s spine specialist to the deliberations, saying he would not have “ordered the MRI or prescribed injections unless he saw something,” but the panel found that statement did not prejudiced the ultimate verdict.

This Week at USI

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Welcome Week activities will continue through Wednesday, August 29 and a full schedule can be found on the USI website at USI.edu/welcomeweek.

10 a.m. Tuesday, August 21

USI – Vanderburgh County Sheriff’s Office Announcement

Representatives from USI and the Vanderburgh County Sheriff’s Office (VCSO) will hold a public announcement of an agreement and the start of work of full-time Vanderburgh County Sheriff’s deputies on the USI campus at 10 a.m. Tuesday, August 21 at the Rice Library Book Drop and Loading Dock area located on the south side of the library. Parking for media will be available in this same area, adjacent to the library off University Boulevard. Interviews with USI and VCSO spokespersons will be available immediately following the press conference.

Open through Monday, September 10

USI to exhibit works by Stephen Pace to celebrate Art Center anniversary

Stephen Pace: An Artist’s Process, celebrating the 10th anniversary of the University of Southern Indiana McCutchan Art Center/Pace Galleries, will be on display through Monday, September 10 at the Art Center.  Stephen Pace (1918 – 2010) was an internationally recognized abstract expressionist and figurative painter.  Pace, along with his wife Palmina, was instrumental in the completion of the Art Center galleries, which opened to the public on September 7, 2008. This exhibition displays the series of related drawings, prints, paintings, and/or woodcut plates together to give the viewer deeper insight into Pace’s artistic process. The exhibition also provides a timeline reflecting the influences that determined the trajectory of Pace’s career and the development of his distinctive artistic style. Read More

Open through Monday, September 17

New Harmony Gallery to host exhibition by Denise Stewart-Sanabria

The New Harmony Gallery of Contemporary Art’s latest exhibition, Another Virtual Reality by Denise Stewart-Sanabria, will be on display July 21 through September 17. The exhibition is free and open to the public. Read More

Saturday, September 29

2018 USI Doggie Dash Dog Walk and Run

Registration is now open for the 2018 University of Southern Indiana Doggie Dash to be held on Saturday, September 29. This event allows whole families (including the four-legged children) an opportunity to walk and run on the beautiful University of Southern Indiana campus. Registration for the 3K and 5K runs is $25 for individuals or $20 for members of a team, and free for youth ages 10 and under. A portion of the proceeds from the Doggie Dash will be used to offer programming and provide professional development opportunities for student clubs within USI’s Pott College. Another portion of the proceeds will be given to It Takes A Village Pet Rescue. Read More

Saturday, November 3

Registration now open for the 17th annual Norwegian Foot March

Registration is now open for the 17th annual University of Southern Indiana Norwegian Foot March on Saturday, November 3. The march, an intense mental and physical challenge, will take participants 18.6 miles through the rolling hills of Evansville’s west side. Carrying a 25-pound rucksack, participants will begin and end on the USI campus, working to make it back to the finish line in under four and a half hours. ROTC cadets, soldiers and veterans, as well as civilians, may register individually or as part of a four-member team. Registration can be completed online or by calling USI Outreach and Engagement at 812-464-1989. Early registration is recommended, as the event sells out quickly. ROTC cadets from any school can register for $25 and all other participants can register for $45. Registration will close on October 15 or when the event is full at 500 participants. The Norwegian Foot March is sponsored by USI’s Student Veteran Association. Proceeds from the foot march enhance the training of the students in the USI ROTC Program. Funds are used to cover costs associated with training, travel, team development and additional equipment. Read More

 

Election of 1920 BY PAT SIDES

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Braving a chilly wind, voters eagerly made their way to the polls in Evansville on November 2, 1920, including these happy women sporting the radically shortened hems that became fashionable in the new decade.

The election was the first in which women voted nationally, a right granted them when the Nineteenth Amendment was passed on August 18 of that year.

The Evansville Courier reported that numerous couples “went hand in hand, like the animals into the ark, to take an equal part in creating the laws of the land.”

Despite fears that a larger number of voters might create problems, the newspaper noted that courtesy and a “good spirit” prevailed at the polls all day.

IT’S A NERDS NIGHT OUT AT TROPICANA EVANSVILLE!

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Let’s travel back to the advent of MTV with the latest and greatest geeks gone wild – the ‘80s tribute band — the RetroNerds!

Adorned in tube socks, pocket protectors and poindexter-style taped-up glasses, they’re live in concert at Tropicana Evansville’s 421 Casino Lounge for the first time this weekend!

Known for their quirky, period-correct geeky attire and amazing energy — which lead vocalist Jason Nelson claims comes from his “proprietary mix of peanut M&Ms, Swedish Fish and sugar” – the RetroNerds are astute musicians and eggheads of music to the max.

Between them, these rocket scientists of rhythm have performed for two Presidents, hold several music degrees, teach in various school districts, and have even played with the St. Louis Philharmonic.

And can they put on a unique show?  TOTALLY!  See them perform in sync with original MTV videos on multiple background screens featuring Prince, Culture Club, Devo, Queen, David Bowie, The Clash’s “Rock the Casbah” and Thomas Dolby’s “She Blinded Me With Science.”

Bassist Mike Steinkamp, sums it up, “You can’t fake enthusiasm.  People can tell right away if you’re going through the motions.  Our enjoyment comes through the music and the zany antics you’ll witness on stage.”

Catch the RetroNerds from 7PM-10:30PM, Friday and Saturday, August 24-25.  Then dance into the night with DJ Ace as he pulls you onto the dance floor with his polished mix of tunes from 11PM-2AM.  No admission fee, just a two-drink minimum for a night of geeky fun!

 

Adopt A Pet

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Mia is a 1-year-old female American Staffordshire (“pit bull”) mix! She is the mom to the “Spice Girls” puppies, who have all been adopted. Mia’s adoption fee is $110 and includes her microchip, vaccines, and spay – no more puppies for her! Contact Vanderburgh Humane at (812) 426-2563 for adoption details!

Otters to host Military Appreciation Night Saturday, August 25 at 6:35 p.m.

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The Evansville Otters will host Military Appeciation Night, presented by the Evansville VA Health Care Center, a Marion (IL) VA Health Care System Facility, on Saturday, August 25 at 6:35 p.m. when the Otters continue their series against the River City Rascals.
Fans are invited to attend and enjoy a night of Evansville Otters baseball at Bosse Field as the Otters welcome and recognize veterans and active members of all branches of the military.
The game will feature two free tickets for each veteran or active military member. Plus, retired and active military personnel will receive discounts in the gift shop.
The Otters will be wearing special-themed jerseys for Military Appreciation Night, and following the game, there will be a game-worn jersey auction.
Veterans and active military members can enter to win one of the special-themed jerseys.
The Otters will also host an on-field recognition for all retired and active military personnel during pregame ceremonies.
The Otters do not want any fan, veteran or active military member to miss out on Military Appreciation Night at Bosse Field.
First pitch from Bosse Field is set for 6:35 p.m. with gates opening an hour before gametime.
The Otters are looking forward to having fans join the affordable, family fun this season at historic Bosse Field.
The Evansville Otters are the 2006 and 2016 Frontier League champions. Season tickets, group outing packages, and single game tickets are on sale now for the 2018 season.
Tickets can be purchased online at evansvilleotters.com, by calling 812-435-8686, or at the Bosse Field box office.

Serengeti Empress in Debutante, Tobacco Road in Juvenile

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Corey Lanerie swept Ellis Park’s pair of 2-year-old stakes but in completely different fashion Sunday: Serengeti Empress led all the way to an electrifying 13 1/2-length blowout over the late-running Include Edition in the $75,000 Ellis Park Debutante. A race later, Tobacco Road wore down stablemate Whiskey Echo to take the $75,000 Ellis Park Juvenile by three-quarters of a length.
Lanerie won four races out of five mounts on the card to take the lead — 24-22 over Shaun Bridgmohan — in the jockey standings for the first time this meet, for which he missed the first six days following the death of his wife, Shantel.
“When I came back here, I didn’t know how well I would do after Shantel’s passing, just if people would give me back my mounts right away,” Lanerie said. “It’s been a blessing. I took off where I left, kind of kept on winning. My business didn’t seem to linger at all. Once I saw I had a little chance, I kind of made it a goal to try to do it and be leading rider for Shantel.”
Debutante: Serengeti Empress shows what she is in romp
Trainer Tom Amoss loved Serengeti Empress even before the 2-year-old filly won her first start by 5 1/2 lengths July 4 at Indiana Grand. He was extremely disappointed when the daughter of Alternation was fourth in Saratoga’s Grade 3 Schuylerville, a race in which Hall of Fame jockey Javier Castellano dropped the whip turning for home.
“We classified her as one of the best in the barn,” Amoss said by phone from New York after Serengeti Empress’ 13 1/2-length laugher over the late-running Include Edition in the $75,000 Ellis Park Debutante. “A big disappointment at Saratoga when Castellano dropped the stick on her and just quit riding her. I’ve never figured out what went wrong in that race. But she came back to show what she was today.”
Serengeti Empress rolled through testing fractions of 22.21 seconds for the first quarter-mile, 45.29 for the half and 1:09.66 for three-quarters of a mile before finishing the seven furlongs in 1:22.29. She paid $4.80 as the 7-5 favorite in the field of 11 two-year-old fillies.
“My filly broke really well right from the gate,” Lanerie said. “She was in hand pretty much all the way around there. When I got to the quarter pole, I kind of pushed the button and she went on and finished all the way to the wire. I had plenty left on the gallop-out. She was so far in front by herself that I think she was getting a little lost. I was keeping her busy. But she didn’t need any encouragement today. She was going to win.
“The sky’s the limit, I think. Tom has done a fantastic job with her, him and his team. I’m sure he’ll get her as far as he can go and do his best. She’s a good one.”
Vickie Foley, trainer of Alexis Harthill’s Include Edition, said she was “loving it,” seeing the fast pace. “But that filly didn’t come back at all,” she said wistfully. “She’s a runner.”
Include Edition trailed the field for half the race, having to come six-wide on the turn. She took second by 1 1/2 lengths over 107-1 shot Lucky Girasol, who won a $16,000 maiden-claiming race at Ellis Park July 29.
Said James Graham, rider Include Edition, who came from well back to win her debut July 15 at Ellis Park: “She tries. She’s just not that quick early. Like in her first race, you say, ‘Oh yeah, maybe a little green and stuff.’ Sent her away a little bit, couldn’t keep up. I tucked in, saved a little ground, made a huge run around the turn. I passed everybody and I looked up and Corey’s 15 in front!
“I think she’ll be better at two turns, and she’s in the growing stage. I like her, I like what she might be able to become. She got a little bit of an education. They were so bunched up in turn and said, ‘OK, I can’t wait and try to go on and hope to kick home.’ Because she’s not quick, she’s just steady. She ran her race, tried her butt off.”
Amoss bought Serengeti Empress for $70,000 for Joel Politi of Columbus, Ohio, at Keeneland’s 2017 September yearling sale. He said the filly will return to his Churchill Downs base and could be pointed for that track’s Grade 2, $200,000 Pocahontas Stakes, whose winner gets an automatic berth and entry fees paid in the $2 million Breeders’ Cup Juvenile Fillies on Nov. 2, also at the Louisville track.
Asked what he liked about Serengeti Empress before she ran, Amoss said, “
“Super intelligent. Went through all of her drills without blinking an eye. I mean, every time we challenged her she was up to it. So when we made her first start with her, it was more because that’s where the maiden race (at Indiana Grand) appeared at that time. We wanted to go to Saratoga, which we kind of pushed that issue together because they were close together. Just happened to have a maiden race at Indiana Grand as opposed to Ellis, so that’s where we ended up.”
Rounding out the field were Shanghai Rain, Somewhere, Profound Legacy, Kristizar, Bivian B, Spice It Up, Wakeeta and La Coyota.
Juvenile: Tobacco Road keeps up comparisons to Lookin At Lee
Corey Lanerie completed his sweep of the stakes by guiding Tobacco Road from eighth to a three-quarters of a length triumph over Whiskey Echo in the $75,000 Ellis Park Juvenile, with Hall of Famer Steve Asmussen training both horses. Manny Wah finished another head back in third in the field of 10 two-year-old colts and geldings.
“He had a completely different trip from the filly,” Lanerie said, referring to Serengeti Empress’ front-running 13 1/2-length romp over Include Edition in the $75,000 Ellis Park Debutante a race earlier. “He doesn’t have as much speed as she did. He broke really good, and then the speed just kind of ran away from him. I had to kind of keep him busy the first quarter of a mile. Once he found his stride around the turn, from the three-eighths to the quarter pole, I could tell I had a lot of horse. It was just trying to time it right and get him to the front at the right time.
“Actually at the quarter pole, I thought I had the two in front of me with ease. I hadn’t really asked my horse. I didn’t think the two in front, that they had that much. When I got to his (Whiskey Echo’s) hip, he proved me wrong. I got a little worried at the eighth pole. And then by the sixteenth pole I was kind of taking control and getting away from them.”
After three races, Tobacco Road has followed the identical path as Lookin At Lee, the 2017 Kentucky Derby runner-up ridden by Lanerie. Both horses are trained by Asmussen and owned by Lee Levinson’s L and N Racing. Both horses finished fifth at Churchill Downs in their first start, won at Ellis in their second and took the Ellis Park Juvenile in their third. Tobacco Road just now needs to run out $1.1 million and be at least second in a Triple Crown race to keep up the comparisons.
“It was a good day,” Levinson said by phone from Tulsa. “The comparisons continue. The best part was how he finished, because he was pulling away at the end. Boy, can you imagine at a distance? You never know but, boy, he sure looks like he’s got distance, doesn’t he?
“… When he came around the turn, you could just see him coming. He was catching them with every stride. We were pretty excited. We thought we had a great chance. But you never know, watching those races. How many times have you watched and they’re coming up like gangbusters and just stop?”
Mitch Dennison, Asmussen’s assistant trainer at Ellis Park, has had Tobacco Road in his care all summer and said the winner was showing a lot in his timed workouts in company.
“He’s very competitive and he always just has his ears up, is very happy and has kept very good weight,” he said.
Though the early pace (22.47, 45.66) was similar to what Serengeti Empress set in the Debutante, the boys finished much slower, with Tobacco Road wrapping up the seven furlongs in 1:23.99. after the six furlongs slowed down to 1:11.02. But there also was more competition for the lead, with Manny Wah and Whiskey Echo right up on the pace battling long shot S S. Trooper.
Whiskey Echo, the program favorite who went off second choice behind Tobacco Road, won his first start at Belmont Park and then was third in Saratoga’s Grade 3 Sanford Stakes. Asmussen said by phone that both colts will go to Churchill Downs and be considered for that track’s Grade 3, $150,000 Iroquois, whose winner receives an automatic berth and entry fees paid to the $2 million Breeders’ Cup Juvenile on Nov. 2 at the same track.
“They’re both really nice colts, obviously,” Asmussen said. “We felt good about our chances going in. Whiskey Echo off the third in the Sanford, I thought this was the perfect spot for him. And then when Tobacco Road ran so well there a couple of weeks ago, it was obvious to run him back at Ellis. But both colts ran well and handled more ground, and that’s kind of what it’s all about right now.”
Said Shaun Bridgmohan, rider of runner-up Whiskey Echo: “The horse tried really hard. He gave me what he had. The winner came on the outside and got us all. But me and Channing (Hill, on Manny Wah) were running right along. The winner just outgamed us today.”
Overanalyzer finished fourth, followed by Mine Inspector, S S Trooper, Shanghaied Roo, Pradar, Lady’s Weekend and Veritas.

“IS IT TRUE” AUGUST 20 2018

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IS IT TRUE that the 138th Annual Indiana Democratic Editorial Convention held last weekend at the French Lick Resort was a rousing success?  …a record number of Democrats around the State attended this event?  …former State Repersentsentive Gail Riecken and past Evansville Mayor Jonathon Wienzapfel were seen talking with many State officeholders and party leaders attending this event?  …political watchers are speculating that the former Democratic Mayor of Evansville could be posturing to run for a State or Federal office in the future?

IS IT TRUE that Courier and Press writer Jon Webb is channeling the City-County Observer these days and we applaud his efforts?…he aptly pointed out that the ribbon cutter team that showed up at the new downtown medical school must have been on a full dose of adrenaline induced delusion?… Mayor Winnecke even stated that Evansville has “PEAKED” and Webb took him to task for such hyperbole?… Webb went so far as to opine that he surely hoped that Evansville is not at its PEAK since poverty is getting worse, shootings are at their 2nd highest ever behind 2017, heroin has replaced meth as the drug of choice, and utility bills are off the charts?…the truth is that the population of Evansville “PEAKED” about 60 years ago along with national economic relevance?… Jon Webb is exactly right that shiny baubles do not replace crumbling infrastructure and cultural degradation?…we at the CCO do think the IU Medical School does have transformative capacity if the powers that be at IVY Tech can find a way to include their nursing students in the downtown campus too?

IS IT TRUE that it is sometimes instructive to do some comparisons and the time has come to compare Evansville to Fargo, North Dakota that has such bad weather that it is virtually frozen 3 months every year?…in 1960 when Evansville really was “PEAKING” the population was 141,543 and Fargo was a sleepy little town of 46,662 making Evansville 3 times the size of Fargo?

IS IT TRUE that time Evansville also had triple the economy of Fargo?…since that time Fargo has expanded the state university, established a research arm in that university, assured that the entire city has bandwidth that exceeds 1Gbps, and grown to a population of 122,359 that exceeds Evansville’s current population of 119,477?…in a short 60 years Fargo that had nothing but wheat and Bison has blown by Evansville by concentrating on substance instead of fun and games?… Fargo is not the first city to leave Evansville in the dust and it will not be the last as long as the movers and shakers of Evansville deeply believe that silliness is transformative?

IS IT TRUE the silliest false claim ever made by local leaders was that moving Roberts Stadium from Boeke Road to the new downtown Ford Center would immediately constitute the creation of many new jobs?….to think that moving a job from point A to point B created a new job takes a special kind of stupid?

IS IT TRUE that a compliance audit was recently conducted by the Housing and Urban Development Office of the Inspector General concerning the Evansville Housing Authority?  …that the Federal auditors stated that the EHA did not comply with federal guidelines during the renovations of hundreds of low-income housing units?  …we find that the comment made by the EHA CEO to the Evansville Courier and Press that the audit issues will be settled with little or no consequence to the agency to be insulting to the people conducting the audit  …that an official from the Office of the Inspector General told the Evansville Courier and Press that EHA “lacked a sufficient understanding of HUD’s requirements for housing quality standards and conflicts of interest. It also lacked an adequate quality control process?”  …we are surprised that the EHA Executive Director Rick Moore had the gall to publically state he disagreed with the conclusions of the Housing and Urban Development Office of Inspector General? …several years ago Mayor Winnecke cut a quiet deal with an out-of-state for-profit entity to purchase the assets of the City of Evansville not-for-profit EHA with a promise that this transaction will allow EHA to make the major improvement to the housing units lived in by the economically disadvantaged citizens of Vanderburgh County?

IS IT TRUE that Evansville City Councilwoman Missy Mosby voluntarily locked herself in a big dog cage last Wednesday?  …that Missy Mosby is a long time volunteer at ‘It Takes a Village No Kill Animal Rescue,’ locked herself in a dog cage along with her own dog Lil’ Skipper to help raise money for “It Takes A Village” animal rescue shelter?  …Ms. Mosby set a goal of raising $3,000 in donations before she would be let free?  …we are happy to report that Missy was let out of the cage when she raised an astonishing $5,000 to help raise enough money will help the shelter improve the dog playground at “It Takes A Village” animal rescue shelter? …we give five (5) cheers to Missy Mosby for raising money for ‘It Takes a Village No Kill Animal Rescue”?

Todays“Readers Poll” question is: Are you concerned that the EHA did not comply with federal guidelines during the renovations of hundreds of low-income housing units?

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