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Topp v. Leffers10/21/2005
timony, the jury could have inferred causation." Id. We recognized that "standing alone, an opinion which lacks reasonable probability is not sufficient evidence by itself to support a verdict." Id. However, we noted that '"an expert's opinion that something is 'possible' or 'could have been' may be sufficient to sustain a verdict or award' when rendered in conjunction with other, probative evidence establishing the material factual question to be proved." Id. (quoting Noblesville Casting Div. of TRW, Inc. v. Prince, 438 N.E.2d 722, 731 (Ind. 1982)). We concluded that
Smith's testimony about his injuries, together with the testimony of Wells and Dr. Pangan and Smith's medical records, established a prima facie showing that Smith's rib injuries were caused by the impact from Beaty's semi. Indeed, Smith and Wells' lay report of the facts went beyond a mere hypothesis of causation but was sufficient for the jury to infer without resort to speculation that Beaty caused Smith's injuries.
Id. at 1035. We determined that Smith had carried his burden on the element of causation "by presenting evidence of probative value that Beaty's breach of the duty to keep a proper lookout, which resulted in the semi's collision with the van, was a cause in fact of his injuries." Id. We ultimately held that the trial court erred in granting Beaty's motion for judgment on the evidence. Id.
Smith is distinguishable. The nature of Smith and Topp's injuries is different, which means that the type and quality of evidence they must introduce to prove causation is different. During the accident, Smith injured his ribs. This is an objective injury because it was directly observable by Smith's physicians and is reproducible through a physical exam. Based on this, we concluded that the jury could have inferred causation from Smith's testimony alone, and that the testimony of an expert witness was unnecessary. Id. at 1034. However, Topp's injuries were subjective in nature, and, thus, Topp's testimony alone, without any testimony from an expert medical witness, would not be sufficient to prove causation. Daub, 629 N.E.2d at 877-78. Because the nature of Smith and Topp's injuries is different and because the evidence they must introduce to prove causation is different, our conclusion that Smith presented sufficient evidence to prove causation does not indicate that Topp has also produced sufficient evidence to prove causation.
Furthermore, Topp's testimony, when considered in conjunction with Dr. Reecer and Dr. Schreier's opinions, was not sufficient evidence to prove that Leffers' actions caused the aggravation of Topp's pre-existing injuries. Dr. Reecer and Dr. Schreier's opinions, like Dr. Pangan's testimony in Smith, are insufficient to prove causation because they lack reasonable medical certainty. Topp's testimony, unlike Smith's, amounts to nothing more than her own hypothesis that the aggravation of her pre-existing injuries was caused by the November 2000 accident. Smith testified that immediately after his van was struck by Beaty's semi, he felt intense pain and told Wells that he thought his ribs were broken. Here, Topp testified that after Leffers' car hit her vehicle, she hit her head. Topp said she felt intense pain in her head, but did not indicate that she felt any pain in her neck, mid-back, or lower back. No third party present at the scene of the accident testified that after the accident Topp complained of pain in her neck, mid- back, or lower back. Unlike Smith, Topp refused to be taken to the hospital immediately after the accident, and none of the medical records she introduced concluded that the aggravation of her pre-existing injuries was due to the accident. The day after the acc
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