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ATTORNEYS FOR APPELLANTS Milford M. Miller Jason A. Scheele Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES David T. Stutsman Jonathan W. Slagh Elkhart, Indiana

______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 20S03-1105-CV-293 HENRY C. BENNETT AND SCHUPAN & SONS, INC.,

In the

FILED
of the supreme court, court of appeals and tax court

Jan 31 2012, 11:44 am

CLERK

Appellants (Defendants below), v. JOHN RICHMOND AND JENNIFER RICHMOND, Appellees (Plaintiffs below). _________________________________ Appeal from the Elkhart Superior Court, No. 20D01-0512-CT-700 The Honorable Evan S. Roberts, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-0906-CV-285 _________________________________ January 31, 2012 Sullivan, Justice.

The sole issue in this appeal is whether the trial court abused its discretion when it permitted a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury.1 Finding the trial court did not abuse its discretion in this regard, we affirm.

1

This case involves similar issues to those we address in another case decided today, Person v. Shipley, No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind. 2012).

Background

In May, 2004, Henry Bennett, while operating a roll-off container truck for Schupan & Sons, Inc. (referred to collectively as "Bennett"), rear-ended John Richmond's vehicle. Bennett's truck weighed 42,000 pounds; Richmond was driving a van. In December, 2005, Richmond and his wife sued Bennett for injuries Richmond sustained in the collision to his neck and back.2

In October, 2006, pursuant to a referral by his attorney, Richmond underwent a neuropsychological evaluation with Dr. Sheridan McCabe, a psychologist. Richmond had been experiencing headaches and memory loss since the accident but had not been diagnosed with a brain injury. Dr. McCabe reviewed Richmond's medical records and Richmond's deposition; he also interviewed Richmond and his wife and administered a battery of neuropsychological tests to Richmond. As a result of the evaluation, Dr. McCabe testified that Richmond had "experienced a traumatic brain injury in the accident." Appellant's App. 105. This testimony forms the basis of this appeal.

Bennett objected to Dr. McCabe as an expert witness on three separate occasions during this litigation, each time challenging the admissibility of Dr. McCabe's testimony that Richmond experienced a traumatic brain injury in the accident. Bennett first filed a pretrial motion to exclude Dr. McCabe as an expert witness. The trial court denied Bennett's motion.3 Bennett again objected to Dr. McCabe's testimony at trial, which the trial court overruled. Then, after the jury returned a $200,000 judgment in favor of Richmond, Bennett filed a motion to correct error on the basis that Dr. McCabe should not have been permitted to testify. The trial court also denied that motion.

2

Richmond also sustained a back injury in the course of his employment in December, 2004, which apparently exacerbated the injuries he had sustained in the May, 2004, accident. 3 The trial court also denied Richmond's motion to exclude Dr. David Kareken, a psychologist who had examined Richmond on behalf of Bennett. Bennett, however, did not call Dr. Kareken as a witness at trial.

2

Bennett appealed, contending that the trial court erred when it permitted Dr. McCabe to testify that Richmond had sustained a traumatic brain injury in the accident.4 The Court of Appeals agreed and reversed and remanded the case for a new trial. Bennett v. Richmond, 932 N.E.2d 704, 712 (Ind. Ct. App. 2010), reh'g denied.

Richmond sought, and we granted, transfer, Bennett v. Richmond, 950 N.E.2d 1209 (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).5 Discussion

I

While there is little dispute that a psychologist may testify as to the existence of a brain injury or the condition of the brain in general, the specific issue in this case

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