Carter v. Robinson

Decision Date30 October 2012
Docket NumberNo. 45A05–1110–CT–563.,45A05–1110–CT–563.
PartiesMark CARTER and John E. Carter, Co–Personal Representatives of the Estate of John O. Carter, M.D., Deceased, Appellants–Defendants, v. Loretta ROBINSON, Individually and as Administratrix of the Estate of John E. Robinson, Deceased, Appellees–Plaintiffs.
CourtIndiana Appellate Court


Michael E. O'Neill, Randall J. Nye, Michelle P. Burchett, O'Neill McFadden & Willett, LLP, Dyer, IN, Attorneys for Appellants.

Timothy S. Schafer, Todd S. Schafer, Timothy S. Schafer, II, Schafer & Schafer, Merrillville, IN, for Appellees.


RILEY, Judge.


AppellantDefendants, Mark Carter and John E. Carter, co-personal representatives of the Estate of John O. Carter, M.D., deceased (Dr. Carter), appeal the verdict in the amount of $550,0000 in favor of AppelleePlaintiff, Loretta Robinson, Individually and as Administratix of the Estate of John E. Robinson, Deceased (Robinson), following Robinson's Complaint for medical malpractice.

We affirm.


Dr. Carter raises three issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion when it allowed Robinson's pathologist to testify as an expert witness pursuant to Indiana Evidence Rule 702;

(2) Whether the trial court abused its discretion when it excluded the testimony of Dr. Carter's expert witness because he was not timely disclosed to Robinson; and

(3) Whether the trial court properly instructed the jury.

On cross-appeal, Robinson presents us with one issue, which we restate as: Whether Robinson is entitled to appellate attorney fees pursuant to Indiana Appellate Rule 66(E).


On December 2, 2002, sixty-one year old John Robinson (John) saw Dr. Carter with complaints of stress. John seemed nervous and anxious, stated that he heard noises in his head, and he was jerking his hand. Upon questioning, John told Dr. Carter that he had been in a motor vehicle accident two weeks earlier and had trouble sleeping. He did not complain of any shortness of breath, nor did Dr. Carter observe any. After a physical exam, Dr. Carter noted that John had puffy eyelids but his ears, nose, and throat appeared normal. His heart was in a regular sinus rhythm and Dr. Carter did not hear any gallop, murmur, or other abnormal sound. John's lungs were clear and he did not have any lower extremity edema or abnormal abdominal bloating. Dr. Carter diagnosed John with severe stress and insomnia and prescribed him Xanax and Ambien.

That afternoon, John died. At the time of his death, John and his wife, Loretta, had been separated and were living apart. Robinson had not seen her husband since the week before and did not know that he had consulted Dr. Carter earlier that day. Following John's passing, Robinson hired James Bryant, M.D. (Dr. Bryant) to perform an autopsy to determine the cause of John's death.

On December 5, 2002, Dr. Bryant conducted the autopsy. The clinical summary of the autopsy states:

This patient was a 61 year old man who had high blood pressure, obesity problems and congestive heart failure. On the day of his death, he complained of shortness of breath and was shaking. He saw a physician who gave him Xanax and sent him home. He died at home a short time later. Other significant history includes obstructive sleep apnea and a recent auto accident with a fractured foot. There were no major surgeries or hospitalizations in the past.

(Exh. Tab 7, p. 1). During the autopsy, Dr. Bryant found fluid in John's chest cavities, in the heart cavity, and in the abdominal cavity. In addition, Dr. Bryant noted that the right atrium of the heart and its left and right ventricles were dilated, and the lungs, liver, and spleen showed fluid congestion. He concluded that John had died from acute and chronic congestive heart failure, which had been “ongoing for some time[,] probably longer than one day as judged by the extent of the fluid accumulation in the chest, heart, and abdomen and by the dilation of the left and right ventricles.” (Exh. Tab 7, p. 7).

On October 26, 2004, Robinson filed a proposed complaint with the Indiana Department of Insurance alleging medical negligence and wrongful death against Dr. Carter. On November 3, 2008, the Medical Review Panel issued its conclusion with two members of the panel finding a material question of fact bearing on liability and with the third panel member finding that Dr. Carter had failed to comply with the appropriate standard of care. On January 20, 2009, Robinson filed her Complaint alleging medical malpractice by Dr. Carter which resulted in John's death.

On July 31, 2009, during the course of discovery, Robinson identified Dr. Bryant as an expert witness and on April 20, 2011, six weeks before the scheduled trial date, Dr. Carter deposed Dr. Bryant. On April 26, 2011, Dr. Carter unexpectedly died and the scheduled June 2011 trial was continued to September 26, 2011. On August 19, 2011, Dr. Carter's Estate filed a notice of amendment to his trial witness list, attaching the affidavit of Michael Kaufman, M.D. (Dr. Kaufman). Dr. Kaufman's affidavit addressed the scientific methodology underlying the conclusions reached by Dr. Bryant, stating

In my professional opinion, Dr. Bryant's conclusion that [John] died of “chronic and acute congestive heart failure” is scientifically unsound and unreliable because, in arriving at this conclusion, Dr. Bryant failed to rule out other possible competent causes for [John's] sudden death, including: a pulmonary embolism, a ruptured cerebral aneurysm, an acute myocardial infarction, a drug overdose or a hemorrhagic cerebral infarction. Without the autopsy slides and paraffin blocks from the autopsy, and a more through autopsy examination and toxicology screen, Dr. Bryant's conclusions regarding the cause of [John's] death cannot be tested or confirmed and other possible alternative competent causes of the death cannot be ruled out.

(Appellant's App. p. 390). Also that same day, Dr. Carter filed his motion to bar expert testimony of Dr. Bryant. On September 12, 2011, the trial court conducted a hearing on Dr. Carter's amended witness list and his motion to bar Dr. Bryant's testimony. The following day, the trial court rejected the addition of Dr. Kaufman as an expert witness and denied Dr. Carter's motion to bar Dr. Bryant's testimony. On September 20, 2011, Dr. Carter filed a motion to reconsider his request to add Dr. Kaufman as his witness; the trial court again denied his request.

On September 26–30, 2011, a jury trial was conducted. During trial, Dr. Carter renewed his objection to Dr. Bryant's testimony but the trial court sustained its earlier ruling and permitted Dr. Bryant to testify. Before Dr. Carter rested, he made an offer of proof on the proposed impeachment testimony that would have been offered by Dr. Kaufman. On September 30, 2011, the jury returned a verdict in favor of Robinson, awarding damages in the amount of $550,000.

Dr. Carter now appeals and Robinson cross-appeals. Additional facts will be provided as necessary.

I. Indiana Evidence Rule 702

Dr. Carter contends the trial court should have excluded Dr. Bryant's testimony as an expert witness for Robinson pursuant to the directives of Ind. Evidence Rule 702. Indiana Evidence Rule 702 defines the guidelines for admission of expert testimony as follows:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form or an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

The rule assigns to the trial court a gatekeeping function of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. McCutchan v. Blanck, 846 N.E.2d 256, 260–61 (Ind.Ct.App.2006) (quoting Lytle v. Ford Motor Co., 814 N.E.2d 301, 309 (Ind.Ct.App.2004), trans. denied ). As with the admission of other evidence, the trial court's determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion and will be reversed only for abuse of that discretion. See Lytle, 814 N.E.2d at 309. When faced with a proffer of expert scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Id.

Indiana Evidence Rule 702 is not intended to interpose an unnecessary burdensome procedure or methodology for trial courts. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind.2001). The adoption of Evid. R. 702 reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence. Id. As the Supreme Court instructed in Daubert, [v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Cross-examination permits the opposing party to expose dissimilarities between the actual evidence and the scientific theory. Turner v. State, 953 N.E.2d 1039, 1055–56 (Ind.2011). These dissimilarities go to the weight rather than to the admissibility of the evidence. Id.

Focusing on the second prong of the rule, Dr. Carter's main argument contests the methodology underlying Dr. Bryant's autopsy. Seizing upon a partial statement uttered by Dr. Bryant during voir dire, Dr. Carter contends that by simply stopping the autopsy investigation in the cause of death upon...

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