ATTORNEYS FOR APPELLANT

David E. Ballard

Clint A. Zalas

South Bend, Indiana

ATTORNEY FOR APPELLEE

Robert G. Vann

Merrillville, Indiana

In the

Indiana Supreme Court

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No. 64S05-1101-CT-0006

DEBRA L. WALKER,

Appellant (Defendant below),

v.

DAVID M. PULLEN,

Appellee (Plaintiff below).

_________________________________

Appeal from the Porter Superior Court, No. 64D01-0603-CT-1883

The Honorable Roger V. Bradford, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-1002-CT-127

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March 15, 2011

Shepard, Chief Justice.

David Pullen sought damages for injuries he suffered when Debra Walker hit him from 

behind in a restaurant drive-through lane. After winning a jury verdict, Pullen sought a new trial 

asserting that the amount of damages awarded was against the weight of the evidence. The trial 

court granted the motion, but its findings of fact under Trial Rule 59(J) were not sufficient to 

demonstrate why the jury verdict should be cast aside. We reverse and remand with instructions 

to reinstate the jury’s verdict.
2

Facts and Procedural History

On March 5, 2004, Debra Walker was behind David Pullen in the drive-through lane of a 

Dunkin’ Donuts in Valparaiso. Walker’s foot slipped off the brake pedal and she rear-ended 

Pullen’s car. Walker and Pullen exchanged information and then left for their respective 

workplaces. 

About eleven days after the accident, Pullen saw a Dr. Lakhani for neck pain. Dr. 

Lakhani prescribed trigger-point injections and physical therapy. Pullen saw Dr. Lakhani for the

last time in August 2004. He did not see a doctor for neck pain again until 2007. 

In 2007, Pullen began receiving treatment for neck pain from Dr. Renata Variakojis at the 

University of Chicago. There was conflicting evidence at trial about whether this pain was a 

result of the 2004 collision. Pullen called Dr. Variakojis, who testified that Pullen’s pain in 2007 

―could be‖ caused by the 2004 accident. (Variakojis Dep. at 17, 25.) Walker called an expert, 

Dr. Robert Yount, who testified that Pullen’s 2007 pain was not caused by the accident but rather

was likely caused by walking on crutches following knee surgery in 2006. (Yount Dep. at 44–

45; Def. Ex. 5.) 

Pullen did not submit any medical bills at trial, but he did tender a list of damages: 

$10,722 for physical therapy and other services at Porter Memorial Hospital; $1376 for office 

visits with Dr. Lakhani; $422 to Radiologic Associates of Northwest Indiana; and $12,499.50 to 

the University of Chicago. (Pl. Ex. 1.) The total damages Pullen requested were $25,019.50. 

The jury returned a verdict for Pullen and awarded him $10,070. After the dollar amount, the 

jury wrote ―for P.T. & inital [sic] medical assessment.‖ (App. at 8.) 

Pullen filed a motion to correct error, arguing that the jury verdict was incorrect because 

Pullen’s bill for physical therapy alone was $10,722, and that his bills for physical therapy and 

medical assessment totaled $12,500. Pullen’s lawyers contend that all the charges from Porter 

Memorial Hospital were for physical therapy, but the record does not support their position. In 
3

fact, some charges from Porter were for Pullen’s initial x-rays and $2171 for an MRI.1 If one

subtracts the fees for the later MRI ($2171 for the MRI and $285 to have the MRI read) from 

Pullen’s $12,520, the remaining expenses total $10,064. (See Pl. Ex. 1; Pl. Ex. 3.) This number 

is the total for Pullen’s doctor visits, the initial x-rays, and the charges from Porter that are 

actually attributable to physical therapy—in other words, this number represents the fees for 

Pullen’s medical assessments and his physical therapy. It is presumably what the jury meant 

when it awarded $10,070 ―for P.T. and inital [sic] medical assessment.‖

The trial court granted Pullen’s motion to correct error. The full text of the court’s ruling 

was:

1. The undisputed medical testimony in this case established that 

Plaintiff’s medical bills from Porter Memorial Hospital, Dr. Lakhani, and 

Radiologic Associates of Northwest Indiana were for appropriate treatment of 

injuries suffered by Plaintiff as a result of the negligence of Defendant. 

2. Those medical bills totaled $12,520.00. The jury’s verdict was less than 

those medical bills.

3. There was also undisputed medical testimony that Plaintiff endured pain 

and suffering for a minimum of five months. The jury’s verdict obviously 

contained no award for that, however minimal. 

(App. at 6–7.) The Court of Appeals affirmed. Walker v. Pullen, 934 N.E.2d 1268 (Ind. Ct. 

App. 2010) (table). We granted transfer and now reverse, directing that the jury verdict be 

reinstated. 

Standard of Review

As a general matter, a decision to grant a new trial (often called ―acting as the thirteenth 

juror‖) is reviewed for an abuse of discretion, and the trial court’s decision is given a strong 

presumption of correctness. Weida v. Kegarise, 849 N.E.2d 1147 (Ind. 2006); see also Lake 

Mortg. Co. v. Federal Nat’l Mortg. Ass’n, 262 Ind. 601, 321 N.E.2d 556 (1975). The strong 

 

1

In his brief, Pullen’s counsel stated that ―the [jury] award did not even match the physical therapy bill. 

The physical therapy bill was $10,722.00 and the jury awarded only $10,070.00.‖ (Appellee’s Br. at 4 

(citations omitted).) Pullen made a nearly identical assertion in his motion to correct error. (App. at 21.) 

Our review of the record shows that Pullen’s physical therapy bill was only $8057, which was adequately 

covered by the jury’s verdict. 
4

presumption of correctness only arises if the court’s decision is supported by the special findings 

required by Trial Rule 59(J). Weida, 849 N.E.2d at 1154; Lake Mortg., 260 Ind. at 605–06, 321 

N.E.2d at 559. 

Treading Carefully as the Thirteenth Juror

Indiana Trial Rule 59(J) authorizes trial courts to grant new trials to correct an error in 

prior proceedings. In all cases where relief is granted, the court is required to ―specify the 

general reasons‖ for granting relief. Setting aside a jury’s verdict and granting a new trial is not 

to be done lightly, thus Rule 59(J) requires that, when granting a new trial because the verdict 

does not accord with the evidence, judges must 

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 the judgment was not entered upon the 

evidence.

Ind. Trial Rule 59(J).

We have long held that strict compliance with the substantive and procedural 

requirements of Trial Rule 59(J) is of ―paramount‖ importance. Nissen Trampoline Co. v. Terre 

Haute First Nat’l Bank, 265 Ind. 457, 464, 358 N.E.2d 974, 978 (1976). Specific findings are 

necessary to temper the use of the ―extraordinary and extreme‖ power to overturn a jury’s verdict 

by assuring that the decision is based on a complete analysis of the law and facts. Id. at 464–65, 

358 N.E.2d at 978. In Weida v. Kegarise, we explained that the most important reason for Rule 

59(J)’s ―arduous and time-consuming requirements,‖ Nissen, 265 Ind. at 464–65, 358 N.E.2d at 

978, is ―to assure the public that the justice system is safe not only from capricious or malicious 
5

juries, but also from usurpation by unrestrained judges.‖ Weida, 849 N.E.2d at 1153.2 In other 

words, when a ―court overrides the jury in its special domain and substitutes its own verdict for 

theirs without a clear showing that the ends of justice required it, it is likely that they did not.‖ 

State v. White, 474 N.E.2d 995, 1000 (Ind. 1985). When a court grants a new trial without 

making the specific findings, the remedy on appeal is to reinstate the jury verdict. Weida, 849 

N.E.2d 1147. 

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 59(J). 

This case provides a prime example of why special findings are required when the judge 

acts as the thirteenth juror. Pullen claimed a total of $25,019.50 in damages for medical bills—

$12,520 for treatment in 2004 and $12,499.50 for treatment in 2007 and 2008. The jury 

apparently did not agree that Walker’s negligence required all of those treatments and awarded 

Pullen $10,070 ―for P.T. & inital [sic] medical assessment.‖ (App. at 8.) By our count, Pullen’s 

expenses for physical therapy, appointments with his regular physician, and the initial x-rays 

following his first appointment were $10,064. After hearing all the testimony, the jury may 

apparently have believed these damages were the result of Walker’s negligence, and believed 

Walker’s medical expert that the remainder of the expenses were either unnecessary or unrelated. 

The court’s statement that the evidence was ―undisputed‖ is not a sufficient special 

finding to justify supplanting the jury’s verdict. The trial court’s findings do not suggest that this 

was an unjust result.

 

2 The court in Leroy v. Kuchaski, 878 N.E.2d 247 (Ind. Ct. App. 2007), stated that the purpose of Rule 

59(J)’s special findings requirement ―is to provide the parties and the reviewing court with the theory of

the trial court’s decision.‖ As the decision in Weida indicated, this is not the primary reason for the Rule 

59(J) requirements. 
6

Conclusion

We reverse and remand with direction to reinstate the jury verdict.

Sullivan, Rucker, and David, JJ., concur.

Dickson J., concurs in result with separate opinion.
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Dickson, Justice, concurring in result.

The majority views the jury verdict as just, noting that the verdict was arguably 

consistent with the jury’s apparent decision to award special damages only for the plaintiff’s 

physical therapy and initial medical assessment. This rationale omits consideration of the jury’s 

obvious failure to award any general damages for the inevitable pain and suffering associated 

with the initial injuries necessitating such treatment. The omission of any award for general 

damages undermines my confidence in the justness of the verdict.

I agree with the majority, however, that the trial court’s order granting a new trial was not 

compliant with the specificity requirements of Indiana Trial Rule 59(J). For this reason, I agree 

that the order granting a new trial must be reversed and the jury verdict reinstated.