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Cole v. Bertsch Vending Co.

decided: July 1, 1985.


In the United States District Court for the Northn District of Indiana, Fort Wayne Division. No. 79 C 191 -- Gene B. Lee, Magistrate.

Cummings, Chief Judge, Coffey, Circuit Judge, and Haynsworth, Senior Circuit Judge.*fn* Haynsworth, Senior Circuit Judge, concurring specially in which Chief Judge Cummings joins.

Author: Coffey

COFFEY, Circuit Judge.

This appeal arises from a jury verdict finding that the defendants, Harold Cremeens and Bertsch Vending Company ("Bertsch"), were not liable for the alleged back injury suffered by the plaintiff, Henry Cole ("Cole"). We reverse and remand for a new trial.


The facts of this case are uncomplicated. On the cold, clear night of December 8, 1978, the plaintiff, Henry Cole, stopped his tractor-trailer truck at a red light at the intersection of U.S. Highway 30 and Indiana State Highway 109 outside of Fort Wayne, Indiana; his seat was in the highway position.*fn1 The defendant, Harold Cremeens, an employee of Bertsch Vending Company, testified during his deposition that while making business calls earlier that evening, he hoisted a few "rounds" at a local tavern. Unfortunately for Cole, Cremeens and his El Camino delivery truck were on the same road at the same time and smashed into the rear of Cole's tractor trailer traveling between 35 to 50 miles an hour. Cremeens was seriously injured and the El Camino was totally demolished. Cole testified that the force of the impact caused his seat to be thrown backward, causing his head to hit the sleeper rail in the cab of the truck with great force. The record reflects that immediately after the accident, Cole told an ambulance attendant on the scene that he did not believe he was injured. After calling into headquarters and arranging for a back-up truck to follow him to Chicago, Illinois, Cole continued his journey.*fn2 Cole noted that the back of the truck and its rear axles had been damaged by the impact and the truck required two tire changes before arrival in Chicago. At trial, Cole testified that approximately two to three hours after the accident he began to experience a stinging pain in the lower part of his back with the pain radiating down the left side of his back to his hip, down his leg, and to his foot. The following day Cole returned to his home in Ohio and went to bed. During the next month, in an attempt to ease the back pain and discomfort, he began to drink excessively; but, was forced to continue driving since he had recently purchased the truck and a home in Ohio and needed the money to make the monthly payments.*fn3

Cole testified that he quit driving one month after the accident because the pain became so unbearable and visited Doctor Manthey, a general practitioner. At trial, Dr. Manthey testified that he treated the plaintiff's back condition with various drugs and traction requiring extended hospital stays, and advised Cole to do no more truck driving or any type of work requiring heavy lifting. Dr. Manthey, Cole's treating physician since the accident, referred him to Dr. Kackley, an orthopaedic surgeon. Dr. Kackley examined the plaintiff in August of 1979 and diagnosed his injury as a herniated disk.*fn4 Both doctors, Manthey and Kackley, testified at trial that they believed to a reasonable degree of medical certainty that the accident of December 8, 1978 caused Cole's back condition. Damaging to Cole's case, however, was the fact that he had suffered a previous back injury in 1968, some eleven years earlier when employed as a laborer, but failed to disclose this injury to the doctors during his examinations. Nevertheless, after reviewing the 1968 doctor's report detailing Cole's earlier back strain, Doctors Manthey and Kackley were still convinced that Cole suffered a herniated disk injury as a direct result of the December 8, 1978 impact. The records submitted at trial showed that while the 1968 injury kept Cole from work for seven days, it was not severe enough to require hospitalization. The 1968 report also noted that while he suffered a severe strain, he suffered no permanent injury. Further, since that time and up until the time of the collision, the plaintiff had passed all physicals required for the performance of various physical labor jobs, including truck driving.*fn5

A Dr. Meyer and a Dr. Stastny, testifying for the defendants,*fn6 also examined Cole and had him perform various stretch and bending tests. According to these doctors Cole was not suffering from a herniated disk at the time that they examined him in 1981. Further, they believed his herniated disk, discovered in a myleogram scan less than one year later, could have been caused by a number of other factors besides the accident. Dr. Meyer, who examined Cole in May of 1980, testified that he did not notice any appreciable restriction in Cole's range of motion and, thus, he did not believe Cole to be suffering from a herniated disk at the time of his examination, but he did state that Cole was disabled from a "psychological overlay" or imagined pain. Dr. Stastny examined Cole in November of 1980 and also concluded that he did not suffer from a herniated disk. On cross-examination Doctors Meyer and Stastny did admit that many of the subjective symptoms that Cole exhibited were consistent with a herniated disk.*fn7 Also, both doctors confirmed that X-rays taken at their direction indicated a degenerative disk in the lower area of the back. They attributed this condition to wear on the back, but not to any single incident. Further, neither of these doctors requested either a myleogram or CT scan be performed to confirm their diagnosis.

A myleogram procedure performed in April, 1981 established that Cole was in fact suffering from a herniated disk in his lower back. He subsequently underwent laminectomy surgery in August, 1982. Dr. Manthey, who assisted in the surgery, testified that he observed an "extruded disk" pressing against the spinal cord between the fourth and fifth level of the lower back.*fn8

Prior to trial, the defendants admitted that Cremeens was negligent and that his El Camino pick-up truck did in fact strike the rear of Cole's tractor-trailer. Cremeens also plead guilty in Indiana State criminal court to a charge of driving while under the influence of alcohol at the time of the impact. Under Indiana law, punitive damages are not available in a civil action where the defendant has been previously convicted of a criminal offense, see Taber v. Hutson, 5 Ind. 322, 324 (1854), and, thus, the district court granted the defendants' motion to strike the plaintiffs' claim for punitive damages. The magistrate also granted the defendants' motion in limine, prohibiting any reference to the fact that Cremeens had been drinking the night of the accident, since negligence and punitive damages were no longer contested issues and thus, according to the magistrate, any reference to Cremeens' drinking would be irrelevant and would only inflame the jury.

The trial was marked with numerous unusual and questionable events. Cremeens testified that prior to the impact, he believed he was traveling between 35 to 40 miles per hour, that he saw the plaintiff's truck, but was not sure how hard he had hit the truck nor was he sure whether or not he had attempted to apply his brakes before impact. The plaintiff's counsel attempted to impeach Cremeens by referring to testimony he had previously given during his deposition that was inconsistent with many of the facts and circumstances he related at trial. While this cross-examination was progressing, Cremeens suffered a heart attack on the stand. The magistrate asked both parties if they desired a mistrial be declared, but they declined. On the final day of trial, it was reported to the magistrate that one of the jury members may have been drinking during the lunch hour.*fn9 During jury deliberations that same day, the juror suffered what appeared to be an alcohol-related seizure. The magistrate again asked each party whether it wished the court to declare a mistrial and once again both parties declined. Finally, in closing argument, the defendant's counsel openly appealed to the jury for sympathy for his clients when stating that if any jury member should feel sympathy, it should be directed at Cremeens and his employer, Bertsch Vending. He also referred, on several occasions, to the fact that plaintiffs' witnesses were from Ohio. This case was tried before a jury of Fort Wayne, Indiana citizens and, at the time of the trial, International Harvester, the employer of 4,000 persons in Fort Wayne, was considering whether to close its plant in Fort Wayne or its plant in Springfield, Ohio. There was a heated battle between the cities of Fort Wayne and Springfield over the location of those 4,000 jobs.

At the close of trial, the jury returned a verdict in favor of the defendants, finding that Cole's back injury was not proximately caused by the accident on December 8, 1978. In a post-trial motion, Cole requested, but the court denied, judgment n.o.v. or, in the alternative, a new trial. On appeal, the plaintiff Cole requests this court to reverse the jury's verdict and the magistrate's order denying its motion for judgment n.o.v. reciting that the evidence presented at trial conclusively established that his injury was proximately caused by the accident and that the defendants failed to present any credible evidence contradicting the causal link between his back injury and the impact of the crash. In the alternative, Cole requests a new trial based upon the prejudicial impact of the trial court's exclusion of any reference to the defendant Cremeens drinking before impact and the defense counsel's prejudicial statements made during his closing argument.


Cole initially requests that we reverse the magistrate's order denying his motion for judgment n.o.v. In support of his argument, Cole notes that (1) two doctors testified that the plaintiff's condition was directly caused by the December 8, 1978 collision; (2) he felt pain shortly after the impact and the pain grew progressively worse; and (3) his present inability to do any further truck-driving or heavy work results directly from the collision. Cole also argues that the defendants failed to rebut the evidence establishing proximate causation since the doctors who testified for the defendants failed to state definitely that his ...

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