ATTORNEY FOR APPELLANT

Robert A. Durham

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Nicholas C. Deets

Hovde Dassow & Deets, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Roger D. Levy,

Appellant-Defendant,

v.

Elizabeth Jackson,

Appellee-Plaintiff.

June 11, 2015

Court of Appeals Case No.

29A02-1407-CT-482

Appeal from the Hamilton Superior 

Court; 

The Honorable Daniel Pfleging, 

Judge;

29C02-1204-CT-3751

May, Judge.

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 1 of 11
[1] Roger D. Levy appeals the trial court’s order granting a new trial.

[2] We reverse and remand for the court to reinstate the jury verdict.

Facts and Procedural History

[3] On April 4, 2011, Levy ran his vehicle into the back of Elizabeth Jackson’s 

vehicle. Minimal damage was done to the vehicles. No airbags deployed in the 

accident. Jackson declined medical treatment at the scene but went to the 

emergency room later in the evening. 

[4] One month later Jackson sought treatment from a chiropractor. She continued 

this treatment until March 2012. Jackson then sought treatment from an 

orthopedic surgeon and had shoulder surgery in July 2012. 

[5] Jackson filed a civil negligence action against Levy requesting damages for her 

“medical expenses and lost income as well as other compensable damages.” 

(App. at 12.) The jury returned a verdict for Levy. Jackson filed a motion for a 

new trial pursuant to Trial Rule 59(J). The court granted Jackson’s motion.

Discussion and Decision

[6] Levy asserts the trial court’s grant of a new trial must be reversed because the 

court did not comply with the Trial Rule 59(J) requirement to set forth all the 

evidence in the order for a new trial.1

 That rule states:

1 Levy also asserts the trial court erred even if it complied with Trial Rule 59(J); however, we need not 

address that issue as the first is dispositive.

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 2 of 11

 
(J) Relief granted on motion to correct error. The court, if it 

determines that prejudicial or harmful error has been committed, shall 

take such action as will cure the error, including without limitation the 

following with respect to all or some of the parties and all or some of 

the errors:

(1) Grant a new trial;

* * * * *

(5) In the case of excessive or inadequate damages, enter final 

judgment on the evidence for the amount of the proper damages, grant 

a new trial, or grant a new trial subject to additur or remittitur;

* * * * *

(7) In reviewing the evidence, the court shall grant a new trial if it 

determines that the verdict of a non-advisory jury is against the weight 

of the evidence; and shall enter judgment, subject to the provisions 

herein, if the court determines that the verdict of a non-advisory jury is 

clearly erroneous as contrary to or not supported by the evidence, or if 

the court determines that the findings and judgment upon issues tried 

without a jury or with an advisory jury are against the weight of the 

evidence.

In its order correcting error the court shall direct final judgment to be 

entered or shall correct the error without a new trial unless such relief 

is shown to be impracticable or unfair to any of the parties or is 

otherwise improper; and if a new trial is required it shall be limited 

only to those parties and issues affected by the error unless such relief 

is shown to be impracticable or unfair. If corrective relief is granted, 

the court shall specify the general reasons therefor. When a new trial is 

granted because the verdict, findings or judgment do not accord with 

the evidence, the court shall make special findings of fact upon each 

material issue or element of the claim or defense upon which a new 

trial is granted. Such finding shall indicate whether the decision is 

against the weight of the evidence or whether it is clearly erroneous as 

contrary to or not supported by the evidence; if the decision is found to be 

against the weight of the evidence, the findings shall relate the supporting and 

opposing evidence to each issue upon which a new trial is granted; if the 

decision is found to be clearly erroneous as contrary to or not 

supported by the evidence, the findings shall show why judgment was 

not entered upon the evidence.

Ind. Trial Rule 59 (J) (emphasis added).

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 3 of 11
[7] We review the trial court’s decision applying the following standard:

A trial court has wide discretion to correct errors and to grant new 

trials. In determining whether to grant a new trial, the trial judge has 

an affirmative duty to weigh conflicting evidence. The trial judge sits 

as a thirteenth juror and must determine whether in the minds of 

reasonable men a contrary verdict should have been reached.

When a trial court grants a new trial pursuant to Trial Rule 59(J), the 

granting of relief is given a strong presumption of correctness. We will 

reverse the grant of a new trial only for an abuse of discretion. This 

court neither weighs the evidence nor judges the credibility of the 

witnesses. An abuse of discretion will be found when the trial court’s 

action is against the logic and effect of the facts and circumstances 

before it and the inferences that may be drawn therefrom. An abuse of 

discretion also results from a trial court’s decision that is without 

reason or is based upon impermissible reasons or considerations. 

Leroy v. Kucharski, 878 N.E.2d 247, 250 (Ind. Ct. App. 2007) (internal citations 

and quotations omitted), trans. denied.

[8] Our Indiana Supreme Court held the “substantive and procedural 

requirements” needed to grant a new trial under Trial Rule 59(J) are

“paramount.” Weida v. Kegarise, 849 N.E.2d 1147, 1151 (Ind. 2006). When 

correcting errors, a trial court is required to “specify the general reasons 

therefor.” Ind. Trial Rule 59(J). However, when granting a new trial against 

the jury verdict, a court is required to make “additional special findings.” 

Weida, 849 N.E.2d at 1151. This task is intended to be difficult and onerous to 

ensure the trial court is not abusing its power over the will of the jury: 

Justice DeBruler explained that this “extraordinary and extreme” 

power can be properly used “only if it is based upon a complete 

analysis of the relevant facts and applicable law, and sets out on paper 

the constituent parts of that analysis.” Nissen, 265 Ind. at 464-65, 358 

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 4 of 11
N.E.2d at 978. Complete analysis is required because it is 

“compliance with the arduous and time-consuming requirements of 

the Rule which provides assurance to the parties and the courts that 

the judge’s evaluation of the evidence is better than the evaluation of 

the jury.” Id. Put another way, compliance with the requirement is 

necessary to assure the public that the justice system is safe not only 

from capricious or malicious juries, but also from usurpation by 

unrestrained judges. 

Id. at 1153.

[9] The trial court granted Jackson’s motion for a new trial in an order that 

provided, in pertinent part:

2. At trial, Defendant Roger Levy admitted that he was negligent 

and at fault for the collision on April 4, 2011. As a result, the jury was 

instructed that the only issue it must decided [sic] is the amount of 

money that would fairly compensate Plaintiff Elizabeth Jackson for 

the injuries and damages sustained in the collision. (Parties’ Agreed 

Issue Instruction).

3. At trial, Plaintiff Elizabeth Jackson called three medical 

providers as witnesses: Jamie Vanderwielen, PAC, the physician’s 

assistant who saw her in the emergency room on the night of the 

collision; Mark Woloshin, D.C.; and Ralph Buschbacher, M.D. Each 

of these expert medical witnesses testified that they believed Plaintiff 

Elizabeth Jackson suffered injuries in the collision on April 4, 2011.

4. The parties stipulated to the cost of Plaintiff Elizabeth Jackson’s 

medical treatment, including the fact that the cost of her visit to the 

emergency on the night of the collision was $444.00. (Joint Exhibit 

Binder, Ex. 5).

5. Defendant Roger Levy did not call any medical witnesses at 

trial to provide expert testimony that Plaintiff Elizabeth Jackson was 

not injured in the collision on April 4, 2011.

6. At the conclusion of trial, the jury returned a verdict for the 

defense despite the fact that Defendant Roger Levy admitted fault of

the collision on April 4, 2011. The jury did not award Plaintiff 

Elizabeth Jackson the amount for the medical bill for her visit to the 

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 5 of 11
emergency room on the night of the collision. This verdict is against 

the weight of the evidence presented at trial.

* * * * *

10. The Court finds that the jury’s decision to render a defense 

verdict in this case is against the weight of the evidence. Liability was 

admitted. Every medical witness who testified at trial concluded that 

the Plaintiff suffered injuries in this collision. A medical bill for the 

Plaintiff’s medical treatment at the emergency room on the night of the 

collision was incurred.

(App. at 7-10.)

[10] That order sets out evidence in favor of a verdict for Jackson but does not 

mention any of the evidence in favor of a verdict for Levy. Our review of the 

record confirmed, as Levy’s brief alleged, the existence of significant evidence 

in the record supporting the jury’s verdict in favor of Levy.2

 Therefore, as the 

2 For example, at trial, evidence was presented of the minimal damage done to Jackson’s vehicle. 

(Joint Ex. 6.) Levy fixed the damage to his vehicle with touch up paint. (Tr. at 378.) Levy’s vehicle 

was travelling less than five miles per hour at impact. (Id. at 377.) No airbags deployed in either 

vehicle. (Id. at 348, 378.)

Jackson refused an ambulance at the scene. (Id. at 325.) When Jackson did go to the emergency room 

later that day, the emergency room physicians’ assistant found that Jackson had no discoloration, no 

swelling, and no signs of injury, and that Jackson had full range of motion. (Id. at 178-79.) Jackson 

did not pursue further treatment until a month after the accident. (Id. at 224.) Jackson told doctors 

and testified that Levy was going fifty miles per hour and “coming up like a maniac.” (Id. at 347-48.) 

Jackson reported to one doctor the symptoms started six to seven months after the accident. (App. at 

53.) Jackson reported to this doctor the cause of the problem was unknown. (Id.)

Dr. Ralph Buschbacher testified it was possible “for one car to rear end another and just simply not 

generate enough force to cause injury . . . [and] the more damage there is to the vehicle, the more likely 

it is that someone will get injured from it.” (Tr. at 291.) Buschbacher testified it was possible the 

shoulder injury was not caused by the accident, (id. at 281-82), but rather Jackson’s injuries were 

“largely caused by the normal wear and tear that goes along with aging,” (id. at 283), and neck pain is 

a very common complaint in people over age forty. (Id. at 290.) Buschbacher testified swimming and 

rowing could lead to Jackson’s injuries and working at a computer is the statistically most likely 

activity leading to neck pain. (Id. at 284-85.)

Jackson’s husband testified Jackson swam and kayaked prior to the accident. (Id. at 367.) Jackson 

worked at a computer. (Id. at 203.) Dr. Mark Woloshin testified Jackson’s work “keeps things 

irritated.” (Id.)

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 6 of 11

 
court’s order only states the evidence in favor of Jackson, and no evidence in 

favor of the jury verdict, the court’s order failed to comply with Trial Rule 

59(J). See Weida, 849 N.E.2d at 1155. 

[11] When a court fails to comply with Trial Rule 59(J)’s requirements, we have no 

choice but to reinstate the jury’s verdict because “[e]xplanations crafted after 

appellate remand - six months or a year after the trial court heard the evidence 

(or in this instance, two years) - represent an inadequate exercise of [the court’s]

obligation.” Id. at 1153. Accordingly, we reinstate the jury verdict.

[12] We reverse and remand for the court to reinstate jury verdict.

Mathias, J., concurs. Robb, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 7 of 11
IN THE

COURT OF APPEALS OF INDIANA

Roger D. Levy,

Appellant-Defendant,

v.

Elizabeth Jackson,

Appellee-Plaintiff.

Court of Appeals Case No.

29A02-1407-CT-482

Robb, Judge, dissenting

[13] At the outset of the decision in Weida, the court stated: 

Setting aside a verdict because the trial court concludes that it is 

against the weight of the evidence is a weighty but well-recognized 

power of common law judges. Our rules require a judge who exercises 

this power to describe the reasons in some detail. When the trial court 

acts without giving reasons, the verdict should be reinstated on appeal.

849 N.E.2d at 1148 (emphasis added). The trial court in that case had not only 

failed to make special findings, it “[did] not even ‘specify the general reasons’ 

why corrective relief was granted,” which was required even before the 

adoption of Rule 59(J). Id. at 1154 n.5; see also Walker v. Pullen, 943 N.E.2d 

349, 352 (Ind. 2011) (“In this case, the trial court granted a new trial because it 

believed the verdict did not accord with the evidence. It did not state whether 

the verdict was against the weight of the evidence or clearly erroneous. The 

court made only general findings and not the special findings required by Rule 

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 8 of 11
59(J).”); State v. White, 474 N.E.2d 995, 1000 (Ind. 1985) (where the trial court 

did not expressly state it was granting a new trial because the verdict was 

against the weight of the evidence and did not otherwise enter a statement of 

evidence supporting the grant of a new trial, the supreme court reversed and 

ordered the jury verdict reinstated, noting a trial court “may not overturn a jury 

verdict by a naked statement that it is erroneous”).

[14] I acknowledge our supreme court precedent in Weida and the concerns it 

addresses as set forth by the majority. See slip op. at ¶ 8. However, I believe it 

is antithetical to the principles of due process to penalize a party for a trial 

court’s failure to follow protocol without at least offering the opportunity for the 

trial court to correct its failings. White acknowledged that “[i]t may be regarded 

as harsh treatment to deny the appellee the benefit of a ruling won at the trial 

court level when a remand might preserve it.” 474 N.E.2d at 1000; see also

American Family Home Ins. Co. v. Bonta, 948 N.E.2d 361, 366 (Ind. Ct. App. 

2011) (“[W]e understand that this result may seem harsh as a litigant may be 

disadvantaged not through his own fault but because a trial court failed to 

follow all the [procedural] requirements . . . .”). However, Weida, Walker, and 

White all addressed orders in which a trial court completely failed to even 

attempt to make special findings to support its decision. I would limit 

application of the rule announced therein to cases with those facts and would 

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 9 of 11
not extend it to cases such as this one, where the trial court at least tried to 

make the required findings.3

 

[15] In addition, Weida hearkens back to White, which in turn hearkens back to 

Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 Ind. 457, 358 N.E.2d 

974 (1976). In Nissen, the court noted that when a trial court has failed to 

comply with Rule 59, courts have responded in differing ways: some have 

made a rough judgment as to whether the trial court was correct based upon its 

own review of the evidence in the record; some have remanded to the trial court 

for additional findings; and some have reversed and ordered reinstatement of 

the judgment. Id. at 976, 358 N.E.2d at 460. “No single relief has been deemed 

appropriate in such cases.” Id. The court in Nissen ultimately reversed the 

order granting a new trial, but due to a motion to correct error pointing out that 

the trial court’s original order did not set forth the supporting and opposing 

evidence as required by the rule, the trial court had been afforded an 

opportunity prior to appeal to reconsider its findings and order in light of the 

rule’s requirements and was still unable to supplement the findings or set forth 

the supporting and opposing evidence. Id. at 977-78, 358 N.E.2d at 463-64. 

Because in Nissen, the parties were afforded the opportunity to point out the 

deficiencies of the trial court’s order and the trial court was afforded the 

3 I acknowledge another panel of this court recently decided a case similar to this one and held the trial 

court’s failure to include opposing evidence in its order granting a new trial pursuant to Trial Rule 59 

required reinstatement of the jury verdict. See Diehl v. Clemons, 12 N.E.3d 285, 294-95 (Ind. Ct. App. 2014), 

trans. denied. 

Court of Appeals of Indiana | Opinion 29A02-1407-CT-482 | June 11, 2015 Page 10 of 11

 
opportunity to correct the omissions in light of the requirements of the rule, 

Nissen does not necessarily lay the groundwork for the later, harsher rule, but 

supports the notion that the trial court can and should be allowed to reconsider 

its order when it comes up short.

[16] Here, the trial court gave the reasons why it believed the ends of justice required 

a new trial, describing in some detail the evidence supporting such a judgment 

but failing to specifically weigh it against the opposing evidence. If the trial 

court considered the opposing evidence in reaching its conclusion, then an 

amended order on remand would be a simple matter. And if the trial court did 

not consider the opposing evidence, then it has the chance on remand to fix the 

problem on its own accord and vacate the order for a new trial. I do not mean 

to imply that a trial court should not endeavor in every instance to fully comply 

with the requirements placed upon it by our rules and statutes. As White noted, 

“if the court overrides the jury in its special domain and substitutes its verdict 

for theirs without a clear showing that the ends of justice required it, it is likely 

that they did not.” 474 N.E.2d at 1000. When a trial court does not even 

attempt to make that showing, perhaps it is because it would be unable to do so. 

But when it appears that a trial court has endeavored to do so but has simply 

fallen short in some particular, I would allow the trial court an opportunity to 

supplement its order.

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