Issue of Past Concussions, One Arising from Cheerleading Accident, Are key Component in Indiana Supreme Court Decision

Oct 22, 2021

The Indiana Supreme Court has delivered a mixed ruling in a case involving a young woman, who suffered a head injury in a car accident and subsequently sued the other driver.

Complicating the case were the other two previous concussions that plaintiff Sydney Renner suffered, one when she fell on a swing set in 2013 and then another, in 2014, when she fell six to eight feet during a cheerleading routine, hitting her head on the floor.

The incident leading to the litigation occurred on April 20, 2016, when then-18-year-old Renner was stopped in traffic and Trevor Shepard-Bazant struck the back of her vehicle at a low speed, pushing her into the vehicle in front of her. Although shaken and upset by the accident, Renner did not strike her head, lose consciousness, or lose her ability to recount the accident. And she told a police officer dispatched to the scene that she was fine. Renner drove her car home, but soon noticed she had a severe headache. This concerned her mother because Renner had a history of two significant concussions (mentioned above).

In the previous concussions, Renner was treated by Dr. Timothy Mullally. After the second concussion, Dr. Mullally instructed her parents to take her to the hospital if she suffered another head injury and a headache. So, when Renner arrived home after the 2016 accident complaining of a severe headache, her mother took her to the emergency room right away.

At the emergency room, Renner told the doctor she had a headache, but no neck or back pain. The treating doctor prescribed medication and advised her to follow up with her personal physician. Renner visited Dr. Mullally the next day. Once again, he diagnosed Renner with, among other things, a concussion. He referred her to a physical therapist for further evaluation and advised her to rest.

Renner ‘s injuries occurred at a particularly inconvenient time for her. Both her senior prom and a post-prom trip to an amusement park were scheduled just days after the accident. And despite the protests of her parents and Dr. Mullally’s advice to rest, Renner attended both events. Both events caused her to develop severe headaches and the roller coasters resulted in memory loss.

During the following months, Renner was treated by several healthcare providers. Sometimes she followed their advice, other times she did not. Renner ‘s symptoms were much more prolonged than they had been in either 2013 or 2014. She also suffered two additional head injuries during the summer after her 2016 accident: the first when she lost her balance and struck her head on a doorknob, and the second when her brother accidentally kneed her in the head while wrestling. However, aside from her headaches, her symptoms had dramatically improved by the time she began college classes at Indiana University Northwest in the Fall of 2016.

Still, Renner did not perform well in her college classes. She attributed her headaches and difficulty concentrating to the accident and claims that these problems, in turn, caused her to struggle in school. Her parents also noticed her becoming forgetful. However, testimony at trial revealed several other factors that potentially affected her performance, including her poor study habits, excessive TV viewing, irregular sleep patterns, and job obligations.

Attributing her problems to the 2016 car accident, Renner sued Trevor for negligence. After he failed to timely answer her complaint, the trial court granted a default judgment. The court then held a seven-day trial on damages. Sydney requested over $600,000 in damages, while Trevor argued that she should not recover more than $20,000. The trial court ultimately awarded Renner $132,000 in damages. In reaching this figure, the court factored in all five concussions that Renner suffered from 2013 to 2016, along with her medical expenses and her failure to follow post-concussion protocols recommended by her treating physicians.

Renner filed a motion to correct errors, asking the court to increase the damages awarded. After a hearing, the trial court denied her motion, stating again that Renner ‘s injuries arose from the cumulative effects of at least five documented concussions, and all of these traumas contributed to her present condition.

Renner appealed and the Court of Appeals reversed. Renner v. Shepard-Bazant, 159 N.E.3d 1, 13 (Ind. Ct. App. 2020). The panel held the trial court erred in its calculation of damages because “(1) the court failed to apply the eggshell-skull doctrine; and (2) Trevor did not meet his burden of showing that Renner suffered separate harm, from either the head injuries sustained after the accident or from her failure to follow her healthcare providers’ advice. Id. at 10, 12. The Court of Appeals remanded to the trial court for retrial on the amount of damages. Id. at 13.

Trevor petitioned this Court for transfer, which we granted, thus vacating the Court of Appeals opinion.

The Supreme Court wrote that “in resolving whether the trial court’s award of damages was inadequate, we consider three issues. First, we consider whether the trial court improperly reduced Sydney’s award for her post-accident failure to mitigate damages. See infra Section I.A. Second, we consider whether the trial court properly concluded Trevor’s negligence was not the sole cause of all of Renner ‘s injuries. See infra Section I.B. Finally, we consider whether the trial court improperly reduced Renner ‘s award for the two concussions she sustained before the accident. See infra Section II.”

On the first point, the court wrote that “the trial court properly reduced Sydney’s damages because she failed to mitigate her damages and failed to show the accident caused all of her injuries.”

The high court relied heavily on Humphrey v. Tuck, No. 20S-CT-548, __ N.E.3d __ (Ind., Sept. 8, 2020) in deciding this point.

“Overall, viewing the evidence most favorably to the trial court’s judgment, the trial court properly concluded that Trevor carried his burden to show both elements of his mitigation-of-damages defense,” wrote the court. “The evidence presented shows that Renner negligently disregarded her doctors’ recommendations to avoid physical activity and busy environments and to fill her eyeglass prescription to help with her headaches. Based on this evidence, it was reasonable for the trial court to infer that Renner ‘s failure to follow her doctors’ instructions exacerbated her symptoms and prolonged her recovery. Although Trevor could not quantify how much harm Renner suffered from her decisions to disregard her doctors’ orders, this evidence, as in Tuck, was sufficient for the finder of fact to reasonably conclude that Renner ‘s failure to follow her doctors’ orders caused ‘a discreet, identifiable harm.’ See Tuck, 151 N.E.3d at 1208 (quoting Willis, 839 N.E.2d at 1188).

On the second argument, that Renner failed to show that Trevor’s negligence caused all of her injuries, symptoms, and poor academic performance, the court agreed. “While Trevor presented no expert witnesses to rebut Sydney’s claims for damages, and while a failure to present such evidence will often prove fatal to a defense, the record provides ample support for his claims,” wrote the court.

The court elaborated, citing testimony that supported the trial court’s finding that “the two head injuries Renner sustained during the summer following the accident were concussions. And this finding supported, in part, the court’s reduction of Renner’s damages. Renner, however, contests this finding as unsupported by sufficient expert testimony. We disagree. While the medical testimony failed to show that Renner experienced new concussions because of her two post-accident head injuries, the evidence is sufficient to infer that both incidents at least caused a continuation or temporary aggravation of Renner ‘s existing concussion symptoms.”

However, on Renner’s argument that the trial court erred when it reduced her damages for her two pre-accident concussions, the court agreed with the plaintiff.

The ‘Eggshell Rule’

Under the “eggshell skull” rule, “a defendant ‘takes his victim as he finds him.’ Bailey v. State, 979 N.E.2d 133, 142 (Ind. 2012),” according to the high court. “This longstanding rule recognizes that ‘if one throws a piece of chalk’ at a ‘victim with an eggshell skull, and the chalk strikes the victim and fractures his skull, the perpetrator would be guilty . . . even though he did not intend to do great bodily harm.’ Defries v. State, 264 Ind. 233, 244-45, 342 N.E.2d 622, 630 (1976).

“A defendant is thus liable to the extent that their conduct aggravates a pre-existing condition, but is not liable for damages stemming from a pre-existing injury that independently causes harm. Dunn v. Cadiente, 516 N.E.2d 52, 56 (Ind. 1987).

“In its order denying Renner ‘s motion to correct error, the trial court noted that Trevor ‘is not excused from liability just because Renner had suffered previous concussions.’ Appellant’s App. Vol. 2, p. 28. However, the following paragraph shows that, at a minimum, the court did not properly apply the eggshell-skull rule. ‘The extent of [Trevor]’s liability,’ the order states, ‘is determined by causation. Renner’s injuries arose from the cumulative effects of at least five documented instances of mild traumatic brain injury.’ Id. at 29. The court concluded that ‘[a]ll of these traumas contributed to her present condition’ and, therefore, denied Renner ‘s motion to correct error. Id.

“Expert testimony established that concussions are cumulative, meaning that the ‘more concussions you have, the more likely you are going to have permanent . . . brain damage.’ Tr. Vol. 3, p. 48 (testimony of Dr. Salberg). Expert testimony likewise established that Sydney’s prior concussions made her more vulnerable to concussions in the future. But this testimony did not show that her two pre-accident concussions proximately caused her injuries after the accident, or that she failed to recover from the concussions. No one testified that Renner continued to experience any effects of her two earlier concussions prior to the accident. To the contrary, Dr. Salberg stated that Renner ‘had made a hundred percent recovery’ from the two concussions. Id. at 52. And according to Dr. Fink, Sydney’s current cognitive inefficiencies ‘seem[ed] to start following . . . the car accident.’ Tr. Vol. 2, p. 74.

“To be sure, while Dr. Salberg opined that Renner had fully recovered from her concussions, he acknowledged that Renner likely wouldn’t have shown the same symptoms following the accident had she not experienced the two prior concussions. And Dr. Mullally testified that it was ‘possible’ for ‘a person that sustains her third concussion to experience a prolonged recovery [from the third concussion] more so than someone who would sustain a first or a second.’ Tr. Vol. 5, p. 69. But this testimony merely suggests that the accident aggravated her pre-existing condition, not that she failed to recover from her two earlier concussions. This situation is nearly identical to the scenario of a victim with an eggshell skull. In the moments before the accident, Renner had no injuries resulting from her two previous concussions. But, like the man with an eggshell skull, her prior concussions meant that small impacts that wouldn’t ordinarily have detrimental effects could cause severe symptoms. Because a defendant must take the plaintiff as he finds her, Bailey, 979 N.E.2d at 142, Trevor is liable to ‘the extent to which his conduct has resulted in an aggravation of the pre-existing condition,’ see Dunn, 516 N.E.2d at 56.

“In arguing that the trial court permissibly considered Renner ‘s prior concussions, Trevor relies on the Court of Appeals decision in Spaulding v. Cook, 89 N.E.3d 413 (Ind. Ct. App. 2017), trans. denied. But this case is distinguishable from Spaulding. The plaintiff there, who suffered from preexisting conditions, failed to inform his doctor of an earlier accident that could have also caused his symptoms, and his doctor ‘could not state with absolute certainty that the accident’ had caused the plaintiff’s injuries. Id. at 423.

“Here, Sydney’s doctors were aware of her previous concussions. And while Renner ‘s prior concussions may have made her more vulnerable to future injury, none of the testimony presented at trial showed that she failed to recover from her two earlier concussions. Instead, it shows that the accident aggravated her pre-existing condition, which made her more susceptible to future concussions. And the trial court recognized as much when it observed that ‘the effects of multiple concussions upon an individual are cumulative.’ Judgment Order at 1.

“Because the evidence, taken favorably to the trial court’s judgment, did not show that Renner ‘s prior concussions independently caused the harm she suffered after the accident, the trial court should have applied the eggshell-skull rule and should not have reduced Sydney’s damages on account of her two prior concussions.”

Renner v. Shepard-Bazant; S Supreme Court of Indiana; Case No. 21S-CT-138; 8/31/21

Attorneys of Record: (ATTORNEYS FOR APPELLANT) David W. Westland, Nicole A. Bennett, Westland & Bennett, P.C., Hammond, Indiana. (ATTORNEYS FOR APPELLEE) Martin J. Gardner, Andria M. Oaks, Christopher J. Uyhelji, Gardner & Rans, South Bend, Indiana.

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