Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CT-2937 | August 16, 2017 Page 1 of 31

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Brian J. Hunt

The Hunt Law Group, LLC

Chicago, Illinois

Lonnie D. Johnson

Samantha A. Huettner

Clendening Johnson & Bohrer, P.C.

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Robert A. Montgomery

Law Offices of Robert 

Montgomery

Munster, Indiana

Bradley Cosgrove

Clifford Law Offices, P.C.

Chicago, Illinois

I N T H E

COURT OF APPEALS OF INDIANA

Marten Transport, Ltd., a 

Foreign Corporation, and 

Caroline Hurst,

Appellants-Defendants,

v.

Kathleen E. Lucas,

Appellee-Plaintiff

August 16, 2017

Court of Appeals Case No.

45A03-1612-CT-2937

Appeal from the Lake Superior 

Court

The Honorable Bruce D. Parent, 

Judge

Trial Court Cause No.

45D04-1301-CT-12

Crone, Judge.
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Case Summary

[1] On a snowy, icy interstate Kathleen E. Lucas lost control of her vehicle and 

was hit by a tractor trailer driven by Marten Transport, Ltd., employee Caroline 

Hurst (collectively “Appellants”). Lucas suffered severe injuries and filed a 

personal injury claim against Appellants, alleging that Hurst’s negligent driving 

caused her injuries. A jury found that Lucas and Hurst were each fifty percent 

at fault in causing the collision and determined that Lucas’s damages were $5 

million. The trial court entered a judgment in favor of Lucas and against 

Appellants and awarded Lucas $2.5 million. Appellants filed a motion to 

correct error (“Motion to Correct Error”) on four separate issues, which the 

trial court denied.

[2] Appellants now appeal, raising the following claims of error: (1) the trial court 

erred by denying their summary judgment motion (“Summary Judgment

Motion”); (2) the trial court abused its discretion by denying their Motion to 

Correct Error regarding the denial of their motion to bifurcate the trial on the 

issues of liability and damages (“Motion to Bifurcate”); (3) the trial court 

abused its discretion by denying their motion to limit the opinion of Lucas’s 

liability expert Thomas Green (“Motion to Limit Green’s Opinion”); (4) the 

trial court abused its discretion by denying their Motion to Correct Error 

regarding the denial of their motion to limit the testimony of Lucas’s physician

Dr. Neil Allen (“Motion to Limit Dr. Allen’s Testimony”); (5) the trial court 

abused its discretion by refusing two of their tendered jury instructions; (6) the 

trial court abused its discretion by denying their Motion to Correct Error 
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regarding the jury’s allocation of fault; and (7) the trial court abused its 

discretion by denying their Motion to Correct Error regarding the jury’s 

determination of Lucas’s damages.

[3] Finding no error, we affirm.1

Facts and Procedural History

[4] On the morning of January 11, 2011, Lucas, a twenty-year-old college student,

was driving an Acura sedan southbound on I-65 near exit 249 in Lake County 

with her friend Lauren Ward as a passenger. It was windy and intermittently

snowing, and the road was icy and covered with patches of snow. The speed 

limit was sixty-five miles per hour. Tr. Vol. 3 at 23. Lucas was driving fortyfive to fifty miles per hour in the left lane. She saw a car coming up behind her 

in the left lane and moved slowly into the right lane to allow the car to pass. 

[5] As Lucas was changing lanes, Hurst was driving a tractor trailer in the right 

lane approximately a “football field” length behind Lucas. Tr. Vol. 4 at 104. 

Hurst was going forty-eight to fifty miles per hour. Hurst had been taught to 

reduce speed to one-half the speed limit in snowy conditions and to one-third in 

icy conditions. Tr. Vol. 2 at 117-18, 120.

[6] After Lucas moved into the right lane, the Acura “started fishtailing” but stayed

in the right-hand lane. Tr. Vol. 4 at 104-05. The Acura spun perpendicular to 

 

1

 Given that we find no error, we need not address Appellants’ argument that the cumulative effect of the 

trial court’s errors requires reversal.
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the road with the driver’s side facing north and came to a stop in the right lane. 

Ward saw Hurst’s tractor trailer coming toward them, and it did not appear to 

be slowing down or moving into the left lane or toward the shoulder on the 

right. Approximately fifteen to twenty seconds after the Acura started 

fishtailing, the tractor trailer crashed into the driver’s side door. 

[7] The tractor trailer had an electronic control module (“ECM”), which recorded

the vehicle’s speed and other data every second going back a minute and fortyfour seconds before the vehicle stopped. Tr. Vol. 3 at 13. The ECM data 

showed that the tractor trailer’s speed at impact was between twenty-three and

thirty-six miles per hour. Id. at 82. The ECM data indicated the tractor trailer’s 

speed at different times before the collision as follows: fifty miles per hour one 

minute before impact; forty-eight miles per hour twenty seconds before impact; 

forty-nine miles per hour fifteen seconds before impact; and fifty miles per hour 

twelve seconds before impact. Id. at 14, 17-18. The ECM also showed that 

Hurst did not take her foot off the gas pedal until ten seconds before impact and 

that she did not apply the brakes until a second or two before impact. Id. at 18-

19, 34-35. 

[8] Because of the accident, Lucas suffered multiple and permanent injuries, 

including several fractures to her pelvis, a lacerated bladder, three broken ribs, a 

collapsed lung, scalp lacerations, and a concussion. Initially, she was in a coma 

and not expected to live. She was put on a ventilator in the intensive care unit, 

where she remained for seven days. In total, she was hospitalized for ten days, 

although she did not require surgery. When she was discharged from the 
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hospital, she was unable to put any weight on her fractured pelvis, could not 

walk, and was admitted to a physical rehabilitation facility for two months. She 

had to use a wheelchair while she learned how to walk again and underwent

physical therapy.2 She continues to experience chronic pain in her hips and 

back and has not had a single day where she was not in pain. She also has 

balance problems and cannot sit or stand for long periods of time. 

[9] Lucas also suffered debilitating migraines and headaches, and in September 

2012, she began treatment with Dr. Allen, a neurologist. Id. at 159. Lucas

continued regular biannual checkups with Dr. Allen. Id. At the time of trial, 

Lucas continued to suffer from headaches and migraines, and was taking four 

medications for her condition. Id. at 197. In addition, after the accident, Lucas 

experienced cognitive impairment such as trouble concentrating, thinking 

clearly, and remembering things. In Dr. Allen’s opinion, the migraines,

headaches, and cognitive impairment were caused by the accident. Tr. Vol. 4 at 

20. He believes that Lucas will continue to suffer from headaches and 

migraines for the rest of her life. Tr. Vol. 3 at 191.

[10] Lucas’s physical injuries and cognitive impairment affected many areas of her 

life. Before the accident, Lucas was an A student at Saint Louis University 

majoring in educational studies and music, and she played both the piano and 

the violin. After the accident, she had to take a semester off. Upon her return 

 

2

 Lucas avers that she underwent a year of physical therapy, but the pages of the transcript she cites do not 

indicate how long she was in physical therapy.
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to college, her grades fell to Cs and Bs, and she had to change her major in 

music to a minor. However, she was able to graduate with a grade-point 

average of 3.4 and went on to earn a master’s degree in jurisprudence from 

Loyola University Chicago. Lucas had wanted to become an attorney since she 

was eleven years old. She took the standardized law school entrance exam

twice, but her scores were poor, and her applications to law schools were

rejected. At the time of trial, Lucas lived alone and worked as a paralegal for a 

law firm in South Carolina. She moved from Chicago to South Carolina

because her parents lived there and would be able to help her. 

[11] In January 2013, Lucas filed a negligence action against Appellants, alleging 

that Hurst negligently drove the tractor trailer by driving too fast, failing to 

reduce her speed to avoid the collision, and failing to keep a proper lookout, 

and that her negligence caused her tractor trailer to collide with Lucas’s vehicle 

causing physical injuries, great pain and suffering, lost wages, loss of normal 

life, future medical bills, and other damages. Appellants’ App. Vol. 2 at 26-28. 

Appellants filed an answer denying all material allegations and alleged 

affirmative defenses of contributory negligence and that Lucas’s negligence was 

the sole proximate cause of her injuries and damages. Id. at 32-34. 

[12] In September 2015, Appellants filed their Summary Judgment Motion. 

Appellants argued that there was no breach of duty because Hurst was not 

driving too fast for the road conditions and did not negligently operate her 

vehicle and Lucas’s recovery was barred by Indiana’s comparative fault system. 

Following a hearing, in March 2016, the trial court issued an order denying 
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their Summary Judgment Motion. The trial court found that Appellants failed 

to designate evidence to establish a prima facie case that there was no genuine 

issue as to any material fact and that they were entitled to judgment as a matter 

of law. The trial court found that there were many issues of fact, including 

what a reasonable speed was considering the road and weather conditions, 

whether Hurst was operating the tractor trailer reasonably under the 

circumstances, and the degree to which Hurst contributed to the collision. Id. at 

45-46.

[13] In June 2016, the trial court held a pretrial conference. Appellants filed their

Motion to Bifurcate the trial on the issues of liability and damages and their

Motion to Limit Green’s Opinion. In July 2016, the trial court issued an order 

denying both motions. Id. at 76. 

[14] In July 2016, the five-day jury trial commenced. On the first day of trial, 

Appellants filed their Motion to Limit Dr. Allen’s Testimony. After hearing the 

parties’ arguments, the trial court denied the motion. Tr. Vol. 2 at 109-10. 

[15] During trial, Lucas’s witnesses included herself, her father, Ward, Dr. Allen, 

and the video testimony of Dr. Alberto Sanchez, who treated Lucas while she 

was in the intensive care unit. In addition, Lucas’s liability expert, Green,

testified that at a speed of fifty miles per hour, the tractor trailer would have had 

at least three different opportunities to stop if Hurst had applied the brakes. Tr. 

Vol. 3 at 24-26. He also opined that had Hurst been traveling at thirty-three 

miles per hour, or one-half the speed limit, she would have had seven 
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opportunities to avoid the collision because the stopping distance for the tractor 

trailer would have been shorter. Id. at 29-32. Green opined that the speed of 

the tractor trailer was the cause of the collision. Id. at 72.

[16] Hurst testified that before the collision, she was traveling with the flow of 

traffic, other cars were passing her, and she would have created a hazard if she 

had been driving too slowly. Tr. Vol. 2 at 135, 205. She testified that Lucas 

passed her and changed lanes about thirty feet in front of her and started to 

fishtail. Id. at 212. Hurst stated that she did not swerve to the right because she 

could have lost control of the tractor trailer. Id. at 213. Hurst admitted that she 

would have been able to stop the tractor trailer if she had had begun braking 

immediately when she saw Lucas’s Acura begin to fishtail. Id. at 224. She also 

testified that she would have been able to stop if she had been driving thirtythree miles per hour. Id. at 174-75.

[17] In closing argument, Lucas’s counsel told the jury that this case is about the 

“loss of potential,” and that every aspect of Lucas’s life, “physically, mentally, 

emotionally,” has been affected by the crash. Tr. Vol. 6 at 4. Lucas’s counsel 

told the jury that given the nature and extent of her injuries, $5 million was a 

reasonable amount of damages. Id. at 8. The jury returned a verdict assessing 

Lucas’s damages at $5 million and finding that Lucas and Hurst were each fifty 

percent at fault. The trial court entered judgment in favor of Lucas and against 

Appellants for $2.5 million. 
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[18] In August 2016, Appellants filed their Motion to Correct Error asserting that (1) 

the trial court erred by denying their Motion to Bifurcate; (2) the trial court 

erred by denying their Motion to Limit Dr. Allen’s Testimony; (3) there was 

insufficient evidence supporting the jury’s allocation of fault; and (4) the verdict 

was excessive and contrary to the weight of the evidence. Appellants’ App. 

Vol. 3 at 119-56. Following a hearing, in December 2016, the trial court denied 

Appellants’ Motion to Correct Error. Appellants’ App. Vol. 2 at 22-25. This 

appeal ensued. Additional facts will be provided below.

Discussion and Decision

Section 1 – Appellants have waived their summary judgment 

argument.

[19] Appellants first challenge the trial court’s denial of their Summary Judgment 

Motion. We review summary judgment de novo, applying the same standard 

as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary 

judgment is appropriate only when the pleadings and designated evidence 

reveal that there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Brill v. Regent 

Commc’ns, Inc., 12 N.E.3d 299, 308-09 (Ind. Ct. App. 2014), trans. denied. The 

moving party bears the initial burden of demonstrating the “absence of any 

genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d 

756, 761 (Ind. 2009). Once the moving party has met this burden with a prima 

facie showing, the burden shifts to the nonmoving party to come forward with 
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contrary evidence showing that a genuine issue does in fact exist. Cole v. 

Gohmann, 727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000).

[20] “Indiana’s distinctive summary judgment standard imposes a heavy factual 

burden on the movant to demonstrate the absence of any genuine issue of 

material fact on at least one element of the claim.” Siner v. Kindred Hosp. Ltd. 

P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). “Indiana consciously errs on the side 

of letting marginal cases proceed to trial on the merits, rather than risk shortcircuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. 

[21] In reviewing summary judgment rulings, we consider only the evidentiary 

matter that the parties have specifically designated to the trial court. Reed v. 

Reid, 980 N.E.2d 277, 285 (Ind. 2012). In determining whether issues of 

material fact exist, we do not reweigh the evidence. Daisy v. Roach, 811 N.E.2d 

862, 864 (Ind. Ct. App. 2004). Rather, “[w]e construe all factual inferences in 

the non-moving party’s favor and resolve all doubts as to the existence of a 

material issue against the moving party.” Reed, 980 N.E.2d at 285.

[22] “Summary judgment must be carefully considered in negligence cases because 

they are particularly fact sensitive and are governed by the objective reasonable 

person standard–one best applied by a jury after hearing all of the evidence.” 

Cox v. Stoughton Trailers, Inc., 837 N.E.2d 1075, 1079 (Ind. Ct. App. 2005). To 

recover on a theory of negligence, a plaintiff must establish three elements: “(1) 

a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) 
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injury to the plaintiff resulting from the defendant’s breach.” Rodriguez v. U.S. 

Steel Corp., 24 N.E.3d 474, 477 (Ind. Ct. App. 2014), trans. denied (2015).

[23] Appellants argue that “the record demonstrates that there is no genuine issue of 

material fact regarding the circumstances giving rise to the occurrence and 

because [Appellants] were not negligent,” and “even assuming [Appellants] 

were negligent, [Lucas’s] superseding negligence bars her recovery.” 

Appellants’ Br. at 22. Appellants maintain that Hurst was driving a reasonable 

rate of speed of forty-five miles per hour when Lucas began fishtailing, and 

Hurst took the safest action by gradually slowing down rather than braking 

suddenly and possibly losing control of the tractor trailer. They also contend 

that Lucas lost control of her vehicle while traveling in snowy conditions and 

that the accident would not have occurred but for her actions. Appellants’ onepage argument consists of bald assertions without any citations to the evidence 

they designated in support of their summary judgment. Their failure to support 

their argument with cogent reasoning and citations to the designated evidence

results in waiver of their argument. See Ind. Appellate Rule 46(A)(8)(a) 

(requiring that contentions in appellant’s brief be supported by cogent reasoning 

and citations to authorities, statutes, and the appendix or parts of the record on 

appeal); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) 

(failure to present cogent argument waives issue for appellate review), trans. 

denied. 

[24] Waiver notwithstanding, Appellants’ argument is unavailing. Appellants do 

not dispute that Hurst had a duty to use ordinary care to avoid injuries to other 
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motorists. See Wilkerson v. Harvey, 814 N.E.2d 686, 693 (Ind. Ct. App. 2004)

(“All operators of motor vehicles have a general duty to use ordinary care to 

avoid injuries to other motorists.”), trans. denied (2005). Appellants argue that 

Hurst was driving a reasonable speed and therefore did not breach her duty of 

care to Lucas. Generally, whether a particular act or omission is a breach of 

duty is a question of fact for the jury. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 

462, 466 (Ind. 2003). However, “[i]t can be a question of law where the facts 

are undisputed and only a single inference can be drawn from those facts.” Id. 

[25] Here, Appellants assert that Hurst was driving forty-five miles per hour in 

windy, snowy conditions, and there were patches of ice and snow on the road. 

Even assuming that these facts were undisputed, we are unpersuaded that they

lead to a single inference that forty-five miles per hour was a reasonable speed 

for a tractor trailer given the specific weather and road conditions. See 

Wilkerson, 814 N.E.2d at 694 (concluding that genuine issues of material fact 

existed regarding whether motorist drove at appropriate reduced speed when 

approaching intersection and when approaching special hazard). Thus, 

Appellants did not establish as a matter of law that Hurst did not breach the 

duty of care to Lucas. Likewise, the mere fact that Lucas lost control of her car 

did not establish as a matter of law that any negligence on her part bars her 

recovery. Accordingly, we conclude that the trial court did not err by denying 

Appellants’ Summary Judgment Motion.
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Section 2 – The trial court did not abuse its discretion by

denying Appellants’ Motion to Correct Error as to the issue of 

bifurcation.

[26] Appellants next challenge the denial of their Motion to Correct Error regarding 

the trial court’s denial of their Motion to Bifurcate. “We review a trial court’s 

denial of a motion to correct error for an abuse of discretion.” Hlinko v. Marlow, 

864 N.E.2d 351, 353 (Ind. Ct. App. 2007), trans. denied. “‘An abuse of 

discretion occurs when the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances before the court, or when the trial court has 

misinterpreted the law.’” Id. (quoting Pfaffenberger v. Jackson Cty. Reg’l Sewer 

Dist., 785 N.E.2d 1180, 1183 (Ind. Ct. App. 2003)). 

[27] Appellants’ Motion to Bifurcate is governed by Indiana Trial Rule 42(B), which 

provides in relevant part, “The court, in furtherance of convenience or to avoid 

prejudice, or when separate trials will be conducive to expedition and economy, 

may order a separate trial of any claim.” In ruling on a motion for bifurcation, 

“‘[t]he trial court is granted a wide degree of latitude in exercising its proper 

discretion ..., and we will reverse the denial only for an abuse of that 

discretion.’” Dan Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1075 (Ind. 

Ct. App. 2011) (quoting Elkhart Cmty. Schs. v. Yoder, 696 N.E.2d 409, 414 (Ind. 

Ct. App. 1998)), trans. dismissed. 

[28] In deciding whether to bifurcate a trial and separately try the issues of liability 

and damages, the trial court should consider the following: 
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The avoidance of prejudice is more than sufficient reason for a 

separate trial. However, a separate trial should not be granted 

solely upon the movant’s speculation that it might be prejudiced 

by certain testimony. If an issue can be conveniently and 

expeditiously resolved, a separate trial may be ordered in the 

interest of judicial economy. If the proof of damages will be 

complicated and costly the issue of liability could first be 

separately tried. This was the specific purpose in adding 

subdivision (C) to T.R. 42 [(regarding submission of claims or 

issues to juries in stages)]. However, ... while the separation of 

trials can result in judicial economy when the defendant prevails 

on the issue of liability (by obviating the need for a trial on 

damages), the defendant must first convince the court that it has a 

persuasive argument on the question of liability in order to justify the 

potential risk and expense of two trials.

Id. at 1075-76 (quoting Frito-Lay, Inc. v. Cloud, 569 N.E.2d 983, 990 (Ind. Ct.

App. 1991)) (emphasis added).

[29] As to whether Appellants presented the trial court with a persuasive argument 

on the question of liability, they bluntly assert that they presented “a strong 

liability defense,” without further explication. Appellants’ Br. at 24. Because

they have failed to provide cogent argument on the threshold issue, they have 

waived their argument. See Loomis, 764 N.E.2d at 668.

[30] As for prejudice, they argue that Lucas’s injuries were so severe and she was 

such a sympathetic witness that the “evidence of her injuries caused the jury to 

overlook the law on the issue of liability in order to compensate her.” Id. at 25. 

Contrary to Appellants’ assertion, the fact that the jury found that Lucas was 

fifty percent at fault shows that it did not overlook the law on liability. The 
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jury’s assessment of fifty percent fault to Lucas “is a strong indicator that jurors 

were not unduly affected by the evidence of [her] damages.” Shafer & Freeman 

Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 483 (Ind. Ct. App. 

2007), trans. denied (2008).

[31] Furthermore, we are unpersuaded by Appellants’ claim that this case is 

comparable to Frito-Lay, 569 N.E.2d 983. In that case, another panel of this 

Court determined that bifurcation on the issues of liability and damages was 

necessary on retrial. Id. at 991. The Frito-Lay court explained that the potential 

for prejudice resulting from the plaintiff’s injuries amounted to much more than 

mere speculation because her injuries were so terrible: she was comatose for 

many months; sustained a number of broken bones in her pelvis and left leg,

which left her with a shorter left leg and marked limp; suffered from paralysis 

on the left side of her body, which distorted her facial muscles; had undergone 

two brain surgeries, which removed significant portions of her brain; suffered

severe learning and memory disabilities; could never be employed; and required

twenty-four hour supervision and residential care for the rest of her life. Id. at

985, 991. Even in light of such grave injuries, the Frito-Lay court observed that 

it would have been extremely reluctant to invade the province of the trial 

court’s discretion on the issue of bifurcation, if it had not already determined 

that reversal was warranted based on unrelated errors as to both liability and 

damages. Id. at 991. The court concluded that “the denial of a motion for the 

bifurcation on the issues of liability and damages in the retrial of this case 

would constitute an abuse of discretion.” Id. 
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[32] We observe that the Frito-Lay court expressed its extreme reluctance to 

encroach on the trial court’s discretion on the issue of bifurcation and was 

willing to do so only because there were other reversible errors and a retrial was 

going to be held in any event. In this case, the circumstances that would 

warrant reversal of the trial court’s decision regarding bifurcation are not 

present. Therefore, we conclude that the trial court did not abuse its discretion 

by denying Appellants’ Motion to Correct Error on the issue of bifurcation.

Section 3 –Appellants have waived any claim of error 

regarding their Motion to Limit Green’s Opinion.

[33] Appellants claim that the trial court abused its discretion by denying their 

Motion to Limit Green’s Opinion. Green’s written report contained the 

following opinions to which Appellants objected: (1) Hurst testified at her 

deposition that she had been applying her brakes and slowing down for at least 

thirty seconds prior to the collision, but the ECM data from the tractor trailer 

showed that Hurst was not braking or slowing down for nearly that long; (2) 

had Hurst reduced her speed by one-half, she would have been able to stop 

prior to crashing into the Acura; and (3) had Hurst reduced her speed, she 

should have been able to avoid the crash altogether or, at the very least, she 

would have reduced the severity of the collision. Appellants’ App. at Vol. 2 at 

56. 

[34] On appeal, Appellants argue that Green’s opinions violate Indiana Rule of 

Evidence 704(b), which provides that witnesses may not testify to opinions 

concerning whether a witness has testified truthfully. The parties’ briefs on this 
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issue take some interesting twists and turns. In their original brief, Appellants 

fail to cite to the portion of the transcript that contains Green’s allegedly 

inadmissible testimony. In her appellee’s brief, Lucas asserts that Appellants 

failed to object to the evidence at trial, and therefore waived any claim of error. 

It is well settled that “[o]nly trial objections, not motions in limine, are effective 

to preserve claims of error for appellate review.” Raess v. Doescher, 883 N.E.2d 

790, 796-97 (Ind. 2008). “A trial court’s ruling on a motion in limine does not 

determine the ultimate admissibility of the evidence; that determination is made 

by the trial court in the context of the trial itself.” Walnut Creek Nursery, Inc. v. 

Banske, 26 N.E.3d 648, 653 (Ind. Ct. App. 2015). “‘Absent either a ruling 

admitting evidence accompanied by a timely objection or a ruling excluding 

evidence accompanied by a proper offer of proof, there is no basis for a claim of 

error.’” Id. (quoting Hollowell v. State, 753 N.E.2d 612, 615-16 (Ind. 2001)). 

“The failure to make a contemporaneous objection to the admission of evidence 

at trial, so as to provide the trial court an opportunity to make a final ruling on 

the matter in the context in which the evidence is introduced, results in waiver 

of the error on appeal.” In re Guardianship of Hickman, 805 N.E.2d 808, 822 

(Ind. Ct. App. 2004), trans. denied.

[35] In their reply brief, Appellants attempt to avoid waiver and direct us to a 

portion of Green’s trial testimony to which they objected. Appellants’ Reply 

Br. at 7-8 (citing Tr. Vol. 3 at 78-79). The record shows that Lucas’s counsel 

was questioning Green regarding Hurst’s deposition testimony that she had 

been applying her brakes and slowing down for thirty seconds prior to the 
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collision. Lucas’s counsel asked Green, “We know that’s just a lie: isn’t it?” 

Tr. Vol. 3 at 79. Appellants objected, and the trial court sustained their 

objection. Lucas’s counsel then asked Green, “We know that’s false, correct?” 

Id. Appellants objected again, and the trial court sustained their objection. 

Lucas’s counsel withdrew the questions. Lucas’s counsel then asked Green if

Hurst’s testimony was inconsistent with the ECM data, and Green answered 

that it was. Appellants did not object. 

[36] To the extent that Appellants failed to object to testimony that was similar in 

substance to the opinions to which they objected to in their Motion to Limit 

Green’s Opinion, they have waived any claim of error. See Banske, 26 N.E.3d at 

654 (concluding that defendant’s motion in limine to exclude naprapath’s 

testimony regarding her treatment of plaintiff did not preserve claim of error

and defendant waived all issues as to the admissibility of naprapath’s testimony 

because defendant did not object at trial when naprapath’s deposition was read 

into evidence or when naprapath’s medical records were admitted). To the 

extent that Appellants objected, their objections were sustained, Lucas’s counsel 

withdrew the questions, and Green did not answer. No evidence was admitted. 

Therefore, there is no basis for a claim of error. 

Section 4 –Appellants have waived any claim of error 

regarding their Motion to Limit Dr. Allen’s Testimony.

[37] In their Motion to Limit Dr. Allen’s Testimony, Appellants argued that Lucas 

failed to comply with Indiana Trial Rule 26(E)(2)(b) by failing to supplement 

her response to requests for production of documents, specifically medical 
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records from her treatment with Dr. Allen after March 2013. Appellants’ App. 

Vol. 3 at 74-76. In support, they asserted that on November 19, 2013, Lucas 

provided her initial response to their request for production of documents. Her 

response included medical records from her treatment with Dr. Allen, which

showed that he had last treated Lucas on March 5, 2013. Id. at 75. Although 

Lucas had continued treatment with Dr. Allen after March 5, 2013, she had not

supplemented her medical records. Appellants requested that any exhibits or 

testimony from Dr. Allen regarding Lucas’s medical condition after March 5, 

2013, be excluded. Id. at 76. After hearing the parties’ arguments, the trial 

court denied the motion. Tr. Vol. 2 at 109-110. After trial, Appellants filed a 

Motion to Correct Error, which included a claim that the trial court erred by 

denying their Motion to Limit Dr. Allen’s Testimony. In addition to their 

argument that Lucas failed to supplement her response to requests for 

production of documents, they argued that Lucas failed to amend her answers 

to interrogatories. The trial court denied their Motion to Correct Error. On 

appeal, Appellants aver that the trial court abused its discretion by denying their 

Motion to Correct Error on this issue. 

[38] Lucas posits that Appellants waived their claim regarding Dr. Allen’s testimony

on several grounds, the first being that Appellants failed to object to the 

evidence during the trial. The record shows that on direct examination, Dr.

Allen testified that he had his initial visit with Lucas in 2012, that he had

continued to treat her every six months, and that her last visit was about a week 
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or two before trial. Tr. Vol. 3 at 159, 190. Appellants did not object, and 

therefore they have preserved no claim of error. See Banske, 26 N.E.3d at 654. 

[39] Lucas also contends that Appellants invited any error by introducing specific 

evidence regarding Dr. Allen’s medical treatment at trial. Under the doctrine of 

invited error, “‘a party may not take advantage of an error that she commits, 

invites, or which is the natural consequence of her own neglect or 

misconduct.’” Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) 

(quoting Evans v. Evans, 766 N.E.2d 1240, 1245 (Ind. Ct. App. 2002)). “Invited 

error is not subject to review by this court.” Berman v. Cannon, 878 N.E.2d 836, 

839 (Ind. Ct. App. 2007), trans. denied (2008). 

[40] The record shows that during their cross-examination of Dr. Allen, Appellants 

submitted all of Dr. Allen’s handwritten notes of his treatment of Lucas, 

including treatment after March 5, 2013. Tr. Vol. 3 at 206; Defendants’ Ex. 15. 

The record also shows that Appellants questioned Dr. Allen about the six times 

he treated Lucas after March 5, 2013. Tr. Vol. 3 at 245-Vol. 4 at 14. Appellants 

asked him expressly about each of the treatments, which occurred in July 2013, 

February 2014, September 2014, May 2015, November 2015, and July 2016. 

Tr. Vol. 3 at 245, 246, 249; Tr. Vol. 4 at 6, 8, 9. “‘It is well settled that error in 

admitting evidence at the trial is not available on appeal where the complaining 

party submits evidence to substantially the same effect.’” Blocher v. DeBartolo 

Props. Mgmt., Inc., 760 N.E.2d 229, 235 (Ind. Ct. App. 2001) (quoting Hagerman

Constr., Inc. v. Copeland, 697 N.E.2d 948, 954 (Ind. Ct. App. 1998), opinion on 

reh’g, trans. denied), trans. denied (2002). Accordingly, any error in the admission 
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of Dr. Allen’s medical treatment of Lucas after March 2013 was invited and is 

not subject to appellate review.

[41] Further, Lucas claims that Appellants’ argument that she failed to amend her 

answers to interrogatories was improperly raised for the first time in their 

Motion to Correct Error. “A party may not raise an issue for the first time in a 

motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752 

(Ind. 2000). The record shows that Appellants did not raise this argument to 

the trial court at the hearing on their Motion to Limit Dr. Allen’s Testimony; in 

fact, Appellants’ counsel told the trial court, “I’m not complaining that they 

didn’t change their interrogatory answer.” Tr. Vol. 2 at 105. Therefore, this 

argument is waived. 

[42] In sum, the Appellants have failed to present any reviewable issue regarding the

trial court’s denial of their Motion to Limit Dr. Allen’s Testimony. 

Section 5 – The trial court did not abuse its discretion by

refusing Appellants’ tendered jury instructions.

[43] Appellants argue that the trial court erred by refusing two of their tendered jury 

instructions. “The purpose of an instruction ‘is to inform the jury of the law 

applicable to the facts without misleading the jury and to enable it to 

comprehend the case clearly and arrive at a just, fair, and correct verdict.’” 

Wilkerson v. Carr, 65 N.E.3d 596, 601 (Ind. Ct. App. 2015) (quoting JoynerWentland v. Waggoner, 890 N.E.2d 730, 733 (Ind. Ct. App. 2008)). We review a

claim of error based on the giving of an instruction for an abuse of discretion.
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Collins v. Rambo, 831 N.E.2d 241, 245 (Ind. Ct. App. 2005). “In reviewing a 

trial court’s decision to give or refuse a tendered instruction, this Court 

considers whether the instruction (1) correctly states the law, (2) is supported by 

the evidence in the record, and (3) is covered in substance by other 

instructions.” Willis v. Westerfield, 839 N.E.2d 1179, 1189 (Ind. 2006). Further, 

“‘[e]ven if the instruction is a correct statement of the law, is supported by the 

evidence, and is not covered by the other instructions, we will not reverse unless 

the failure to give the instruction substantially and adversely affects the rights of 

the complaining party so as to quite likely have affected the result.’” Wallace v. 

Rosen, 765 N.E.2d 192, 196 (Ind. Ct. App. 2002) (quoting Barnard v. Himes, 719 

N.E.2d 862, 868 (Ind. Ct. App. 1999), trans. denied).

[44] The first instruction tendered by Appellants, number 6(A), reads, “You are 

instructed that the duty imposed upon Defendants does not require them to use 

every possible precaution to avoid Plaintiff’s injury.” Appellants’ Br. at 37; 

Appellee’s Br. at 31.

3

 Appellants maintain that instruction 6(A) correctly states 

the law. In support, they cite Kostidis v. General Cinema Corp. of Indiana, 754 

N.E.2d 563 (Ind. Ct. App. 2001), trans. denied. In that case, the court concluded 

that the trial court did not abuse its discretion in giving the following 

instruction:

 

3 Both parties cite solely to the transcript volume 5 at 219 but that page does not reflect the parties version. 

However, because they are in agreement as to instruction 6(A), we have used their version.
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I instruct you that the duty imposed upon the Defendants did not 

require them to use every possible precaution to avoid the 

Plaintiff's injury; nor that the Defendants should have employed 

any particular means, which may appear after the accident, 

would have avoided it; nor were the Defendants required to 

make accidents impossible. The Defendants were only required 

to use such reasonable precaution to prevent the accident as 

would have been adopted by ordinarily prudent persons under 

the circumstances as they appeared prior to the accident.

Id. at 571-72. Appellants also cite Gamble v. Lewis, 227 Ind. 455, 465, 85 N.E.2d 

629, 634 (1949), in which the court concluded that an instruction similar to the 

one in Kostidis was improperly refused by the trial court. 

[45] Instruction 6(A) consists of a single sentence that is virtually the same as the 

first sentence in the Kotisdis and Gamble instructions. However, that single

sentence standing alone, as it does in Appellants’ tendered instruction, is 

incomplete and misleading. It could be read to mean that if there is a possible 

precaution that the defendant did not take, then the defendant is not liable. 

Accordingly, we conclude that the trial court did not abuse its discretion in 

refusing Appellants’ tendered instruction 6(A). 

[46] Appellants also challenge the trial court’s refusal of their tendered instruction 7, 

which reads, 

If you should find by the preponderance of the evidence, that the 

sole, proximate cause of the accident and the Plaintiff’s injuries 

was the actions of the Plaintiff, Kathleen Lucas, that caused her 

to lose control of her vehicle, and you further find that the 
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Defendant, Caroline Hurst, was not negligent, then your verdict 

should be for the Defendants and against Plaintiff.

Appellants’ Vol. 3 at 87.

[47] Appellants contend that tendered instruction 7 is a correct statement of the law, 

citing Gates v. Rosenogle, 452 N.E.2d 467 (Ind. Ct. App. 1983). Although the 

Gates court found that a nearly identical instruction was a correct statement of 

the law, it went on to explain, 

We disagree with [defendant’s] assertion that it, in effect, 

represents a separate or special defense which requires the giving 

of an instruction. It is not and does not. It is merely an implication 

of the requirement that in order to recover from the defendant, the 

plaintiff must prove by a preponderance of the evidence that the defendant 

in question was guilty of a breach of duty (negligence) which proximately 

caused plaintiff’s injuries. If the defendant was not guilty of such an 

act of negligence, then the plaintiff was not entitled to recover 

from him regardless of whether anyone else was negligent. The 

court so instructed the jury through defendant’s tendered 

instruction No. 1 and the court’s other instructions concerning 

plaintiff’s burden of proof. Accordingly, there was no error in 

refusing defendant’s tendered instruction No. 3. 

Id. at 475 (emphasis added). As in Gates, other instructions in this case 

informed the jury regarding breach of duty (final instruction 15) and Lucas’s 

burden of proof (final instructions 5-6), comparative fault (final instructions 13-

14), and proximate cause (final instruction 18). Appellants’ App. Vol. 3 at 92-

93, 100-102, 105. As such, we find no abuse of discretion in the trial court’s 

refusal of instruction 7. 
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Section 6 – The trial court did not abuse its discretion by

denying Appellants’ Motion to Correct Error regarding the 

jury’s allocation of fault.

[48] Appellants argue that the trial court abused its discretion by denying their 

Motion to Correct Error regarding the jury’s allocation of fault. Specifically, 

they insist that the evidence does not support the jury’s determination that 

Lucas and Hurst are each fifty percent at fault and that no reasonable jury could 

have found that Lucas was less than fifty-one percent at fault. 

[49] In reviewing the jury’s allocation of fault, we observe,

The apportionment of fault is uniquely a question of fact to be

decided by the factfinder. At some point the apportionment of 

fault may become a question of law for the court. But that point 

is reached only when there is no dispute in the evidence and the 

factfinder is able to come to only one logical conclusion. In 

evaluating a jury’s allocation of fault, we may not reweigh the 

evidence, for such is not the function of a court of review.

Burton v. Bridwell, 938 N.E.2d 1, 6 (Ind. Ct. App. 2010) (quoting Dennerline v. 

Atterholt, 886 N.E.2d 582, 598 (Ind. Ct. App. 2008), trans. dismissed) (citations, 

brackets, and quotation marks omitted), trans. denied (2011).

[50] Appellants declare that (1) the undisputed evidence shows that Lucas’s decision 

to change lanes caused the accident; (2) she presented no evidence to dispute 

that she failed to exercise reasonable care, was traveling too fast, and lost 

control of her vehicle as a result of the lane change; (3) her liability expert, 

Green, testified that the accident would not have occurred had she not lost 
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control of her vehicle; (4) Hurst never lost control of the tractor trailer and 

reduced speed to avoid the collision; and (5) Officer Dale Morgan, the police 

officer who responded to the scene, testified that Hurst’s conduct was not a 

contributing circumstance to the accident. Lucas counters that there was 

evidence that Hurst was driving the tractor trailer faster than reasonable under 

the winter road conditions and that Hurst did not exercise reasonable care 

because she did not slow down or brake immediately upon seeing Lucas lose 

control of her vehicle and did not attempt to avoid the accident by steering 

toward the shoulder. We agree with Lucas.

[51] The evidence shows that the road conditions were snowy and icy. Hurst 

testified that she was driving forty-five to fifty miles per hour. She admitted that 

if she had begun braking when she saw Lucas’s Acura begin fishtailing she 

could have stopped. Green opined that at a speed of fifty miles per hour, the 

tractor trailer would have had at least three different opportunities to stop if 

Hurst had applied the brakes sooner. The ECM data showed that Hurst did not 

take her foot off the gas pedal until ten seconds before the collision and that she 

did not apply the brakes until a second or two before impact. 

[52] Hurst also testified that she was taught to reduce her speed by one half the 

speed limit in snowy conditions. The speed limit was sixty-five miles per hour,

half of which is thirty-three miles per hour. The ECM data showed that Hurst

had not reduced her speed by half within the minute prior to the collision other 

than at the point of impact. Tr. Vol. 2 at 26. Green opined that had Hurst been 

traveling at thirty-three miles per hour, she would have decreased the distance 
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she needed to stop and would have had seven opportunities to avoid the 

collision. Tr. Vol. 3 at 29-32. Officer Morgan testified that he did not know 

how fast Lucas was driving and that she could have lost control of her vehicle if 

she had been driving five miles per hour. Tr. Vol. 5 at 22. We cannot say that 

the evidence is undisputed and leads to only one logical conclusion. The 

Appellants argument is merely a request to reweigh the evidence, which we 

must decline. See Burton, 938 N.E.2d at 6. Accordingly, we find no abuse of 

discretion in the trial court’s denial of Appellants’ Motion to Correct Error on 

this issue.4

Section 7 – The trial court did not abuse its discretion by

denying Appellants’ Motion to Correct Error regarding the 

jury’s determination of Lucas’s damage award.

[53] Last, Appellants assert that the damage award of $5 million, of which Lucas 

received $2.5 million, is shockingly excessive and against the weight of the 

evidence. In general, a person injured by another’s negligence is entitled to 

reasonable compensation. Berman, 878 N.E.2d at 840. Reasonable 

compensation means “an amount that would reasonably compensate the 

plaintiff for bodily injury and for pain and suffering.” Id. at 841. Reasonable 

 

4

 Appellants compare this case to Warrick v. Stewart, 29 N.E.3d 1284 (Ind. Ct. App. 2015), but that case is 

substantially different from this one. There, defendant’s dog darted out into the street and collided with 

plaintiff-motorcyclist who was traveling below the speed limit. The jury found that plaintiff was seventy 

percent at fault, and plaintiff filed a motion to correct error. The trial court found that all the evidence 

indicated that plaintiff was traveling under the speed limit and the jury’s assignment of seventy percent fault 

to him was against the weight of the evidence and granted his motion to correct error. Defendant appealed, 

but we concluded that the evidence supported the trial court’s determination that plaintiff was not speeding 

and affirmed the decision of the trial court. Id. at 1289, 1292. 
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compensation also includes “past, present, and future expenses reasonably 

necessary or incidental to the plaintiff’s effort to alleviate [her] injuries and all 

pecuniary losses suffered, or to be suffered, as a result of inability to engage in 

[her] usual occupation.” Kavanagh v. Butorac, 140 Ind. App. 139, 145, 221 

N.E.2d 824, 828 (1966).

[54] “A jury determination of damages is entitled to great deference when 

challenged on appeal.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 462 

(Ind. 2001). “We will not substitute our idea of a proper damage award for that 

of the jury.” Berman, 878 N.E.2d at 841. “[W]hen the evidence is conflicting, 

the jury is in the best position to assess the damages.” Cox v. Matthews, 901 

N.E.2d 14, 23 (Ind. Ct. App. 2009), trans. dismissed. Thus, when reviewing a 

damage award, we will not reweigh the evidence and will consider only the 

evidence and the reasonable inferences arising therefrom that support the jury’s 

award. Reed v. Bethel, 2 N.E.3d 98, 113 (Ind. Ct. App. 2014). Our supreme 

court has explained that a damage award is not excessive “where (1) the award 

was not based upon jury prejudice, partiality, or corruption, (2) the jury has not 

misunderstood or misapplied the evidence, (3) the award was not based upon 

consideration of an improper element such as liability insurance, and (4) the 

award was within the parameters of the evidence.” Kimberlin v. DeLong, 637 

N.E.2d 121, 130 (Ind. 1994), cert. denied (1995). We will uphold the damage 

award if it “can be explained on any reasonable ground.” Berman, 878 N.E.2d 

at 840. “‘Our inability to actually look into the minds of the jurors is, to a large 

extent, the reason behind the rule that we will not reverse if the award falls 
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within the bounds of the evidence.’” Sears, 742 N.E.2d at 462 (quoting Annee v. 

State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971)).

[55] Appellants liken this case to Lucero v. Lutheran University Ass’n, 621 N.E.2d 660 

(Ind. Ct. App. 1993), but that case is distinguishable. There, Lucero slipped 

and fell on icy stairs at a university campus. Lucero’s physical injuries were 

minor and his medical bills totaled $1200 to $1300. His major claim for 

damages stemmed from his allegation that he was unable to participate in 

military combat activities because he was not medically qualified. The jury 

awarded Lucero $240,000. The university filed a motion to correct error, 

contending that the damage award was excessive and unsupported by the 

evidence. The trial court agreed. It found that Lucero’s actual medical 

expenses were only $1300; and although the evidence indicated that Lucero had 

physical conditions that rendered him unable to engage in military activities, 

the evidence was undisputed that these were preexisting conditions and not a 

result of the accident. Id. at 663. The evidence was undisputed because Lucero 

presented no evidence to support any causal link between the accident and his 

inability to participate in the military, and in fact his own medical expert 

testified that there was no causal link between the accident and his inability to 

participate in the military. Id. at 663-64. Accordingly, the trial court found that 

the award of $240,000 was shockingly and outrageously excessive, granted the 

university’s motion to correct error, and ordered a new trial. Id. at 664.

[56] Lucero appealed, arguing in relevant part that the trial court erred when it 

determined that the verdict was against the weight of the evidence. This court 
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rejected his argument. Id. The Lucero court explained that Lucero’s inability to 

qualify to serve in the army was due to his preexisting medical conditions, and 

therefore he failed to prove that his fall was the proximate cause for damages 

related to his military career. Id. Thus, the Lucero court concluded that “the 

trial court did not abuse its discretion in determining the verdict was against the 

weight of the evidence and granting a new trial.” Id.

[57] Here, there is ample evidence to support the damage award. As a result of the 

accident, Lucas was in a coma in the intensive care unit and not expected to 

live. She received multiple permanent injuries and will experience chronic, 

lifelong physical pain. Due to her injuries, she was in wheel chair and required 

rehabilitation followed by physical therapy to learn how to walk again. Lucas 

had to give up running and playing the piano and the violin. She will also 

suffer headaches and migraines, for which she will require medication. The 

cognitive impairment she experiences because of the accident has made it 

difficult or impossible for her to pursue her dream of becoming an attorney. 

[58] This case is similar to Reed, 2 N.E.3d 98. There, another panel of this Court 

upheld the jury’s damage award of $3.9 million where a student was struck by a 

bus. Id. at 115. He suffered severe injuries that required a sixteen-day hospital 

stay and multiple surgeries and skin grafts. The jury found that the student’s 

total damages were $5 million, but that he was twenty-five percent at fault, 

resulting in a damage award of $3.9 million. The bus driver and her employer 

appealed arguing in relevant part that the verdict was excessive because the 

student failed to introduce evidence of permanent impairment or any need for 
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further medical treatment, and that his evidence of permanent scarring and pain 

was not compelling. The Reed court observed that the student presented 

evidence that he suffered fractures to his spine and right ankle, a spleen 

laceration, and a degloving injury to his left foot, required a sixteen-day hospital 

stay, and underwent multiple surgeries and skin grafts. Id. It further noted that 

he presented evidence that he was in good physical condition before the 

accident and was limited in his ability to participate in the same activities after 

the accident. Thus, the Reed court concluded that the defendants’ argument 

was merely a request to reweigh the evidence, and affirmed the jury’s award. 

Id.

[59] Here Appellants seem to be arguing that the jury placed an unreasonably high 

value on what it would take to compensate Lucas for her inability to engage in 

all the activities she had before the accident and to pursue the career she had set 

her sights on. They also argue that they disputed the extent and permanency of 

her injuries and that there is insufficient evidence that the accident was the 

proximate cause of her inability to pursue her desired profession. These 

arguments amount to nothing more than invitations to reweigh the evidence, 

which we must decline. See id. at 113. We conclude that the jury’s damage 

award falls within the bounds of the evidence, and therefore affirm it.

[60] Affirmed.

Baker, J., and Barnes, J., concur.