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).â€
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.â€
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.â€
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.
