Cheryle J. Himes v. Juanita Barnard

Automobile Accident - On December 5, 1995, plaintiff and defendant were involved in an automobile accident in Lafayette, Indiana. The plaintiff was traveling north, while defendant was traveling south on the same road. The defendant crossed the centerline on the road and hit the plaintiff's vehicle. It was snowing that day and the road was very slick. The plaintiff refused to go to the hospital, but later had complained of pain in her neck, head and lower back and went to a chiropractor. Plaintiff was then diagnosed with whiplash, tension headaches, paravertebral myositis/myofascitis and sacroilities.

The jury returned a verdict for Barnard; however, the jury failed to
apportion comparative fault between the parties and did not fill
in the percentages of fault attributable to each party on the
verdict form. Therefore, the trial judge directed the jury to
retire for further deliberations. The jury later returned a
completed verdict form finding Himes ninety-nine percent (99%) at
fault and finding Barnard one percent (1%) at fault for the
collision. Before the trial court entered a judgment in favor of
Barnard, Himes moved for a judgment notwithstanding the verdict or
a new trial, which the trial court took under advisement.

Anthony Pacelli, Chiropractor, Lafayette, Indiana

Norman Oestrike, Neurologist, Indianapolis, Indiana

On October 1, 1998, Himes filed her Motion to Correct Errors,
which was heard on November 10, 1998. On December 4, 1998, the
trial court entered its "Order on Motion to Correct Errors and for
Judgment on the Evidence" (Order). This Order granted Himes'
motion under Trial Rule 59(J)(1) and ordered a new trial on the
issues of damages and liability. Affirmed with direction of the Court of Appeals of Indiana. Going against a 3-0 unanimous decision by the Appellate Court, the defendant petitioned the Supreme Court for transfer of the case. The Supreme Court's decision to deny or accept transfer of the case is still pending. See: 719 N.E.2d 862 (Ind.App 1999). Note: The above date reflects that of the appellate court and not that of the original trial. Reported by jjb.