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Topp v. Leffers10/21/2005
in nature because Topp experienced them but they were not directly observable by any of her doctors. Because Topp's injuries were subjective in nature, her testimony alone was not sufficient to prove causation without expert medical testimony. Daub, 629 N.E.2d at 877.
Furthermore, because of Topp's pre-existing injuries, discerning the causal connection between the November 2000 accident and Topp's resulting injuries is a complicated medical question that is not within the understanding of a lay person. Id. at 877-78. Therefore, it was necessary for Topp to introduce the testimony of an expert medical witness on the issue of causation. Id. Here, Topp did introduce testimony from expert witnesses, namely the opinions of Drs. Reecer and Schreier. The question before us then is whether Dr. Reecer and Dr. Schreier's opinions are sufficient evidence of causation to permit Topp to survive Leffers' motion for a directed verdict and get her case to the jury.
A plaintiff's burden may not be carried with evidence based merely upon supposition or speculation. Id. at 877. Evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict. Id. An expert medical opinion that lacks reasonable certainty, standing alone, is not sufficient to support a judgment. Litera, 692 N.E.2d at 901. " xpert medical opinion couched in terms less than that of a reasonable degree of medical certainty; such as 'possible,' 'probable,' or 'reasonably certain,' are admissible and do have probative value. However, such medical testimony standing alone, unsupported by other evidence, is not sufficient to support a verdict . . . ." Colaw v. Nicholson, 450 N.E.2d 1023, 1030 (Ind. Ct. App. 1983).
The expert opinions of Dr. Reecer and Dr. Schreier, standing alone, are not sufficient to sustain Topp's burden on the element of causation because they lack reasonable medical certainty. In his written report, Dr. Reecer stated, "Ms. Topp had prior spine complaints which could possibly have been aggravated by the accident." Appellant's App. at 150 (emphasis added). He went on to say, "All things considered, Ms. Topp may have had an aggravation of her pre-existing spine complaints." Id. (emphasis added). During his deposition, Dr. Reecer again confirmed that he believed Topp may have had an aggravation of her pre-existing spine complaints. Id. at 211. In Litera, an expert medical witness testified that a patient's fall may have worsened his condition, and that it was possible that the patient would have reached his present condition at some point without the fall. We held that this testimony was not of sufficient certainty to sustain the judgment in favor of the injured patient. Litera, 692 N.E.2d at 901-02. Like the expert medical witness in Litera, Dr. Reecer uses the terms "possibly" and "may." Such testimony is not of sufficient certainty to show that Leffers' actions caused the aggravation of Topp's pre-existing injuries.
In a letter dated May 10, 2001, Dr. Schreier wrote, "This examination and history in this 54-year-old woman reveals evidence for subacute chronic mechanical spinal dysfunction, apparently due to the motor vehicle accident." Appellant's App. at 153 (emphasis added). Later, Dr. Schreier wrote that Topp "appears to have occipital neuralgia from a motor vehicle accident." Id. at 155 (emphasis added). On March 13, 2003, Dr. Schreier wrote, "I first saw Yvonne Topp in physical medicine clinic on 5/10/01 due to complaints suffered in a motor vehicle accident injury 11/24/00." Id. at 156. This last statement merely recounts facts and does not draw any conclusions regarding the cause of Topp's injuries. The first tw
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