Musser, Michelle v. Gentiva Health

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1312
MISCHELLE MUSSER and MICHAEL MUSSER,
Plaintiffs-Appellants,
v.
GENTIVA HEALTH SERVICES, f/k/a Olsten Health Services,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 01:01CV-0085—William C. Lee, Judge.
____________
ARGUED SEPTEMBER 15, 2003—DECIDED JANUARY 28, 2004
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Plaintiffs Mischelle and Michael
Musser, parents of the deceased Maverick Musser, appeal
the district court’s grant of summary judgment in favor of
the defendant, Gentiva Health Services, in this medical
malpractice case. Because the expert medical testimony
proffered by the Mussers in response to the motion for
summary judgment was properly excluded as a sanction
under Federal Rule of Civil Procedure 37(c)(1), and because
2 No. 03-1312
under Indiana law a prima facie case in medical malprac-
tice cannot be established without expert medical testi-
mony, we affirm.
I. History
Maverick Musser was born prematurely on January 10,
1998, at a gestational age of approximately twenty-two
weeks. Maverick’s premature birth led to serious health
problems. He suffered from a condition known as broncho-
pulmonary dysplasia, a chronic lung disease commonly as-
sociated with premature birth. Tragically, Maverick spent
his entire life either hospitalized or under twenty-four hour
nursing care at his home. Maverick died on August 18,
1999.
Along with constant nursing attention, Maverick’s family
relied upon various medical devices to sustain his life.
Maverick was dependent on a type of ventilator called
a CPAP, which provided “continuous positive airway pres-
sure” to Maverick’s lungs. The CPAP machine was con-
nected to Maverick by plastic air hosing attached to a tra-
cheotomy tube, a plastic tube inserted through an opening
in the neck that provides a superior airway to the lungs.
The tracheotomy tube was secured by velcro ties placed
around his neck that prevented “decannulation,” the acci-
dental removal of the tube.
In addition, three monitors—a pulse oximeter, an apnea
monitor, and a low pressure alarm attached to the CPAP
machine—were used to measure Maverick’s pulse rate and
breathing. The pulse oximeter measured oxygen saturation
and heart rate; if the measurements fell below or exceeded
set parameters, an alarm audible throughout the first level
of the Musser home would sound. The low pressure alarm
monitored air pressure in the CPAP circuit; if pressure
No. 03-1312 3
outside the parameters occurred or if Maverick decan-
nulated, an alarm audible throughout the house would
sound. The apnea monitor measured Maverick’s heart rate,
respiration rate, and the size and depth of the breaths he
took; an alarm audible throughout the house would sound
if his vital signs fell below or exceeded the proper parame-
ters.
The present appeal arises out of a medical malpractice ac-
tion brought under Indiana law against the nursing service,
Gentiva, that provided care for Maverick.1 Maverick’s
mother, Mischelle Musser, a registered nurse, provided
some care to Maverick, but Gentiva provided most of the
nursing service. Three Gentiva employees monitored
Maverick on alternating twelve-hour shifts: registered
nurses Jodi Inskeep and Johanna Marshall, and licensed
practical nurse Dawn Kinzer.
On the evening of August 18, 1999, Kinzer began her shift
at 6:00 p.m. Deposition testimony favorable to the Mussers
establishes that Kinzer appeared to be ill and was taking
medication, leading to the inference that she was not as
alert as she might have been in monitoring Maverick.
Furthermore, Kinzer testified at her deposition that Maver-
ick’s physical condition was “good” when she arrived for her
shift.
Kinzer did not have the apnea monitor attached to
Maverick during her shift. She did not observe any move-
ment from Maverick for more than five minutes before real-
izing that there was a problem. At approximately 7:35 p.m.,
Kinzer recognized that Maverick was in distress. Kinzer
asserts that the pulse oximeter alerted her to this fact, but
1
The Mussers also unsuccessfully sued the company, Apria
Healthcare, that provided them with Maverick’s monitoring
equipment, but the Mussers have not pursued this case on appeal.
4 No. 03-1312
the Mussers stated in their depositions that they did not
hear an alarm sound. The pulse oximeter registered zero
and showed no pulse. Kinzer assessed Maverick, and
recognized that he had decannulated. Kinzer called for help
from Mischelle Musser; after calling for help, Kinzer un-
successfully attempted to reinsert the tracheotomy tube
that had fallen out. Mischelle successfully inserted a dif-
ferent emergency tracheotomy tube. Both women performed
CPR on Maverick, but Mischelle testified at her deposition
that she corrected Kinzer’s technique. Mischelle could not
immediately find a needle to inject Maverick with epineph-
rine. Emergency personnel arrived and took Maverick to the
hospital, where he was pronounced dead.
The Mussers filed their malpractice complaint against
Gentiva in the Northern District of Indiana on February 20,
2001, properly invoking diversity jurisdiction. In due
course, as the case was pending, depositions of the wit-
nesses previously disclosed by the Mussers were taken—
though none of those witnesses had been identified as
experts. During a hearing on April 22, 2002, deadlines were
established for the parties to “make their expert disclo-
sures.” The deadline for the Mussers was set at June 1,
2002. Despite this deadline, the Mussers did not disclose or
identify any witness as an expert nor did they ever ex-
change or file expert reports.
Gentiva moved for summary judgment on October 15,
2002, arguing that the Mussers could not present any
competent evidence on breach of duty. The Mussers, in re-
sponse on November 19, 2002, presented the deposition
testimony of nurses Mischelle Musser, Dawn Kinzer, Jodi
Inskeep, Johanna Marshall, and Barbara Cromer (Gentiva’s
highest ranking employee in the Fort Wayne branch), as
well as the deposition testimony of William Smits, M.D.
(Maverick’s treating doctor), Harvey Bieler, M.D. (a doctor
who had treated Maverick during a stay at the hospital),
and Kevin Hinton (an Apria Healthcare employee). The
No. 03-1312 5
Mussers assert that, in the aggregate, the fact and opinion
testimony expressed by these witnesses raises a genuine
issue of material fact as to whether Kinzer breached her
duty of care through inattention to Maverick prior to his
death and incompetence in attempting to revive him.
Countering the Mussers’ response, Gentiva sought to
strike the expert testimony of those witnesses. Gentiva
pointed out that the Mussers had not identified as medical
experts any of the witnesses previously deposed. The dis-
trict court agreed, granted the motion to strike, and upon
the Mussers’ inability to show breach of duty, entered sum-
mary judgment in favor of Gentiva.
II. Analysis
Federal courts sitting in diversity cases such as this apply
the Federal Rules of Civil Procedure in procedural matters
and the state substantive law that applies to the cause of
action. Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
566 (6th Cir. 2001). Therefore, the first step here is to
assess whether, under the Federal Rules of Civil Procedure,
the district court properly excluded the expert testimony of
witnesses proffered by the Mussers. Only then can we
analyze how, under Indiana law, the lack of expert medical
testimony affects the Mussers’ claims.
A. The Exclusion of Expert Testimony
For failure to disclose any of their witnesses as experts,
the district court sanctioned the Mussers by disallowing any
expert testimony to counter the motion for summary
judgment. We review a trial court’s discovery determina-
tions, including the decision to exclude expert testimony,
under an abuse of discretion standard. Miksis v. Howard,
106 F.3d 754, 758 (7th Cir. 1997). “A court does not abuse
6 No. 03-1312
its discretion unless . . . (1) the record contains no evidence
upon which the court could have rationally based its deci-
sion; (2) the decision is based on an erroneous conclusion of
law; (3) the decision is based on clearly erroneous factual
findings; or (4) the decision clearly appears arbitrary.”
Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000) (quota-
tions omitted).
Our first inquiry will be to assess the district court’s
application of Rule 26 regarding expert witnesses. The dis-
trict court must apply the correct legal standards and not
reach an erroneous conclusion of law in forming the basis
for the sanction of exclusion. Salgado v. General Motors
Corp., 150 F.3d 735, 739 n.4 (7th Cir. 1998) (“A district
court would necessarily abuse its discretion if it based its
ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.”) (quoting Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). If the
district court incorrectly found a violation of the rules by
the Mussers, then excluding the evidence would necessarily
be an abuse of discretion.
The other three inquiries under the abuse of discretion
standard are guided by Federal Rule of Civil Procedure
37(c)(1), the rule relied upon by the district court in ex-
cluding the expert testimony. This rule states in pertinent
part:
A party that without substantial justification fails to
disclose information required by Rule 26(a) . . . is not,
unless such failure is harmless, permitted to use as
evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed. In addition to
or in lieu of this sanction, the court, on motion and after
affording an opportunity to be heard, may impose other
appropriate sanctions.
No. 03-1312 7
Fed. R. Civ. P. 37(c)(1) (emphasis added). Thus, the text
of Rule 37(c)(1) guides our inquiry into whether the exclu-
sion decision lacked evidence in the record, was based on
clearly erroneous factual findings, or was arbitrary. The
rule asks whether the sanctioned party had “substantial
justification” for the failure to comply with discovery rules
and whether the failure to comply is “harmless.” Fed. R.
Civ. P. 37(c)(1); see Sherrod, 223 F.3d at 612. Therefore, we
examine the rationale offered by the district court for exer-
cising its discretion to exclude the Mussers’ expert testi-
mony and decide—without substituting our own judgment
for that of the district court—if there is a reasonable basis
for the finding that the Mussers’ failure to disclose experts
lacked substantial justification and was not harmless to
Gentiva.
In reviewing an exclusion sanction, “we shall affirm
the judgment of the district court whenever we believe that
the district court chose an option that was among those
from which we might expect a district court reasonably to
choose.” Salgado, 150 F.3d at 739. Furthermore, “in a case
such as this where exclusion necessarily entails dismissal
of the case, the sanction must be one that a reasonable ju-
rist, apprised of all the circumstances, would have chosen
as proportionate to the infraction.” Sherrod, 223 F.3d at 612
(quotations omitted). As an appellate court, our review of
the record is deferential, but where “no harm” can be found
to the non-sanctioned party, we will reverse. Id. at 613.
1. Expert Disclosure Under Federal Rule of Civil
Procedure 26
The Federal Rules of Civil Procedure divide potential
witnesses into three categories for the purposes of disclo-
sure. The first group, fact witnesses, must be disclosed by
sending to the opposing party the name, address, and phone
8 No. 03-1312
number (if known) of each potential witness. Fed. R. Civ. P.
26(a)(1)(A). This includes anyone “likely to have
discoverable information that the disclosing party may use
to support its claims or defenses, unless solely for impeach-
ment,” and the disclosure should identify the “subjects of
the information.” Id.
The second and third groups, both consisting of witnesses
providing expert testimony, are differentiated by the
following rule:
(2) Disclosure of Expert Testimony
(A) In addition to the disclosures required [regard-
ing fact witnesses] (1), a party shall disclose to
other parties the identity of any person who
may be used at trial to present evidence under
Rules 702, 703, or 705 of the Federal Rules of
Evidence.
(B) Except as otherwise stipulated or directed by
the court, this disclosure shall, with respect to
a witness who is retained or specially employed
to provide expert testimony in the case or whose
duties as an employee of the party regularly
involve giving expert testimony, be accompanied
by a written report prepared and signed by the
witness. The report shall contain a complete
statement of all opinions to be expressed and
the basis and reasons therefor; the data or
other information considered by the witness in
forming the opinions; any exhibits to be used as
a summary of or support for the opinions; the
qualifications of the witness, including a list of
all publications authored by the witness within
the preceding ten years; the compensation to be
paid for the study and testimony; and a listing
of any other cases in which the witness has
No. 03-1312 9
testified as an expert at trial or by deposition
within the preceding four years.
(C) These disclosures shall be made at the times
and in the sequence directed by the court. . . .
Fed. R. Civ. P. 26(a)(2) (emphasis added). Thus, all wit-
nesses who are to give expert testimony under the Federal
Rules of Evidence must be disclosed under Rule 26(a)
(2)(A);2 only those witnesses “retained or specially employed
2
To the extent that this statement contradicts Richardson v.
Consolidated Rail Corp., 17 F.3d 213, 218 (7th Cir. 1994) (“A
doctor is not an expert if his or her testimony is based on . . .
observations during [treatment]; if testimony was not acquired or
developed in anticipation of litigation or for trial and if the
testimony is based on personal knowledge.”) (quotations omitted),
we note that Richardson was interpreting the pre-1993
Amendment Rule 26. Richardson relied on language in a case,
Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993), also decided
before the 1993 Amendment. More importantly, the text of the
current Rule 26(a)(2)(A) references the Federal Rules of Evidence
to determine what must be disclosed as expert testimony. Expert
testimony is designated as such by its reliance on “scientific,
technical, or other specialized knowledge.” Fed. R. Evid. 702.
Occurrence witnesses, including those providing “lay opinions,”
cannot provide opinions “based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid.
701. Thus, a treating doctor (or similarly situated witness) is
providing expert testimony if the testimony consists of opinions
based on “scientific, technical, or other specialized knowledge” re-
gardless of whether those opinions were formed during the scope
of interaction with a party prior to litigation. Cf. O’Connor v.
Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14 (7th Cir.
1994) (noting that treating physicians are not exempt from the
requirements of Federal Rules of Evidence 702 and 703 because
“we do not distinguish the treating physician from other experts
when the treating physician is offering expert testimony regarding
causation”).
10 No. 03-1312
to provide expert testimony” must submit an expert report
complying with Rule 26(a)(2)(B). The commentary to Rule
26 supports this textual distinction between retained
experts and witnesses providing expert testimony because
of their involvement in the facts of the case: a “treating
physician, for example, can be deposed or called to testify at
trial without any requirement for a written report.” Fed. R.
Civ. P. 26, cmt. 1993 Amendments, subdivision (a), para (2).
All of these disclosures should be in writing, signed by
counsel, and served to opposing counsel. Fed. R. Civ. P.
26(a)(4). Furthermore, each disclosure should be delivered
by the deadline for expert disclosures set by the trial judge
under Rule 26(a)(2)(C).
The Mussers properly disclosed all of the witnesses they
proffered under Rule 26(a)(1)(A). In fact, each of these
witnesses was deposed by Gentiva in the regular course
of discovery. The district court, however, did not exclude all
of the potential testimony of the Mussers’ witnesses; it
merely found that the witnesses identified by the Mussers
should not be permitted to testify as expert witnesses. The
district court explained that the error made by the Mussers
was in confusing Rules 26(a)(1) and 26(a)(2): “[d]isclosing a
person as a witness and disclosing a person as an expert
witness are two distinct acts.” (Dist. Ct. Op. at 14.) Thus,
the witnesses could still testify as fact witnesses, but they
could not testify as experts.
The Mussers, however, contend that they did comply with
Rule 26(a)(2)(A) because Gentiva was in fact made aware of
the identity and records of all of their witnesses, and
Gentiva had an opportunity to depose these witnesses as to
their opinions. The Mussers assert that it would be a
pointless formality to disclose in writing a list of names of
persons already known to Gentiva through prior discovery,
this time with the designation “expert witness.” The
Federal Rules of Civil Procedure, however, demand this for-
mal designation, as discussed above. The district court set
No. 03-1312 11
a specific date (June 1, 2002) for the disclosure of all of the
Mussers’ expert witnesses. The Mussers failed to comply
with this deadline.
Formal disclosure of experts is not pointless. Knowing the
identity of the opponent’s expert witnesses allows a party to
properly prepare for trial. Gentiva should not be made to
assume that each witness disclosed by the Mussers could be
an expert witness at trial. Cf. Patel v. Gayes, 984 F.2d 214,
217-18 (7th Cir. 1993) (affirming, under the pre-1993
Federal Rules of Civil Procedure, the exclusion of expert
testimony as to duty of care from treating physicians when
they were not disclosed as experts). The failure to disclose
experts prejudiced Gentiva because there are countermea-
sures that could have been taken that are not applicable to
fact witnesses, such as attempting to disqualify the expert
testimony on grounds set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), retaining
rebuttal experts, and holding additional depositions to
retrieve the information not available because of the
absence of a report. In sum, we agree with the district court
that even treating physicians and treating nurses must be
designated as experts if they are to provide expert testi-
mony.3
3
We need not reach the disputed issue of whether an individual
who serves in the capacity of “treating physician” (or any anal-
ogous position) may nonetheless be required to submit a report
under Rule 26(a)(2)(B). It is clear that there is some expert
testimony in the nature of the treating physician’s testimony that
does not require a report. But some district courts have suggested
that if the Rule 26(a)(2)(A) testimony exceeds the scope of
treatment and ventures into more general expert opinion tes-
timony, a report may be necessary. See, e.g., Zarecki v. Nat’l R.R.
Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996); Wreath
v. United States, 161 F.R.D. 448, 449-50 (D. Kan. 1995); contra
McCloughan v. City of Springfield, 208 F.R.D. 236, 240-42
(continued...)
12 No. 03-1312
2. The Exclusion of Expert Testimony Under Fed-
eral Rule of Civil Procedure 37(c)(1)
The exclusion of non-disclosed evidence is automatic and
mandatory under Rule 37(c)(1) unless non-disclosure was
justified or harmless. Finley v. Marathon Oil Co., 75 F.3d
1225, 1230 (7th Cir. 1996). After determining that the
Mussers failed to comply with Rule 26(a)(2)(A), the district
court appropriately inquired into whether the Mussers had
a “substantial justification” for failing to disclose their ex-
pert witnesses, and whether the failure was “harmless” to
Gentiva. Fed. R. Civ. P. 37(c)(1). After considering these
factors, the district court excluded the testimony:
Disclosing a person as a witness and disclosing a person
as an expert witness are two distinct acts. Obviously,
opposing counsel will question a witness differently
(during a deposition or at trial) if the witness has been
designated as an expert, and is also provided the
opportunity to challenge the expert’s qualifications. In
the present case, although Gentiva knew that the
nurses and doctors were witnesses, Gentiva was de-
prived of the opportunity to question them as expert
witnesses. Gentiva has clearly suffered a harm. Addi-
tionally, the Mussers have shown no justification for
their failure to designate expert witnesses, other than
their erroneous assumption that disclosing a witness is
the same as disclosing an expert witness.
(Dist. Ct. Op. at 14-15.) The issue, then, is whether the
sanction of the exclusion of all the Mussers’ expert testi-
mony was one “that a reasonable jurist, apprised of all the
3
(...continued)
(C.D. Ill. 2002). In this case, we do not rely on the absence of
Rule 26(a)(2)(B) reports from the Mussers’ proffered experts in
deciding that the Mussers violated Rule 26.
No. 03-1312 13
circumstances, would have chosen as proportionate to the
infraction.” Sherrod, 223 F.3d at 612; Salgado, 150 F.3d at
740.
The district court did not abuse its discretion in finding
that the Mussers lacked substantial justification. A mis-
understanding of the law does not equate to a substantial
justification for failing to comply with the disclosure dead-
line. In Sherrod, we reversed the district court’s exclusion
of medical expert testimony, even though the final reports
were not filed by the deadline set by the court. 223 F.3d at
612-13. There, however, the experts had been designated as
such, preliminary reports had been filed, and both sides had
delayed discovery such that late final reports were justified.
Id. at 613. This is not a case where the disclosure was late
by a trivial amount of time. In fact, the Mussers never
attempted to disclose any witnesses as experts until the
defendants moved for summary judgment. Moreover, that
the defendant could have obtained the undisclosed informa-
tion through its own efforts does not provide substantial
justification. See Doe v. Johnson, 52 F.3d 1448, 1464 (7th
Cir. 1995) (affirming the district court’s exclusion of
portions of an expert’s opinion testimony formed after that
expert’s deposition because it was not disclosed before trial,
despite the appellant’s contention that the appellee could
have obtained the opinions by asking the proper questions
at deposition). Given the necessity for expert testimony in
medical malpractice cases under Indiana law, as discussed
in detail infra, the Mussers should have known that expert
testimony was “crucial” to their case, and “likely to be
contested;” in these circumstances, there is not a substan-
tial justification for failing to disclose experts. Dura Auto-
motive Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 616
(7th Cir. 2002) (affirming the exclusion of expert testimony).
The district court did not abuse its discretion in finding
harm to Gentiva. It was the district court’s opinion that, in
14 No. 03-1312
this particular case, Gentiva was denied the opportunity to
question the witnesses in their expert capacity. This choice
is not outside the range of reasonable options available to
the district court. Salgado, 150 F.3d at 741-42 (holding that
the district court did not abuse its discretion in finding that
the incomplete and late submission of expert reports was
not harmless).
By the time the district court ruled on the summary
judgment motion on January 8, 2003, there was less than
three months to the March 24, 2003 trial date. If the trial
had proceeded as planned (and there had already been a
four-month delay from the original trial date), Gentiva may
have had to rely on depositions conducted without the
knowledge that each of the witnesses would be used as
experts. This is not a case where ample time remained for
further discovery. See Sherrod, 223 F.3d at 613 (reversing
the exclusion of medical testimony because a trial date had
not yet been set, it “appeared a long way off,” and there was
therefore “no harm” or “unfair surprise” in allowing the
testimony). Had the Mussers submitted their list of experts
on June 1, 2002, Gentiva could have taken new depositions
of the Mussers’ witnesses, or taken whatever steps it
considered necessary to oppose the expert testimony offered
by these witnesses in the original depositions. Fed. R. Civ.
P. 26(b)(4). It is certainly true that the district court could
have rescheduled the date for trial and allowed more time
for depositions and new motions for summary judgment.
See, e.g., Kotes v. Super Fresh Food Mkts., 157 F.R.D. 18, 21
(E.D. Pa. 1994). But it is not an abuse of discretion to
conclude that the additional costs to Gentiva of preparing
a new summary judgment motion and further delay in
extending the trial date are not harmless. See CTS Corp.,
285 F.3d at 616 (concluding that an extension of discovery
was harmful because it burdened the defendant unreason-
ably).
No. 03-1312 15
In affirming this judgment, we are mindful of our warn-
ing that “[i]n the normal course of events, justice is dis-
pensed by the hearing of cases on their merits.” Salgado,
150 F.3d at 740 (quoting Schilling v. Walworth County Park
and Planning Comm’n, 805 F.2d 272, 275 (7th Cir. 1986)).
We do not hold that a district court should always exclude
evidence in similar factual scenarios; in fact, well-reasoned
cases have come to the opposite result. See Brandon v.
Village of Maywood, 179 F. Supp. 2d 847, 860 (N.D. Ill.
2001); Spearman Indus., Inc. v. St. Paul Fire & Marine Ins.
Co., 138 F. Supp. 2d 1088, 1094-95 (N.D. Ill. 2001). We urge
district courts to carefully consider Rule 37(c), including the
alternate sanctions available, when imposing exclusionary
sanctions that are outcome determinative. In the present
case, however, we affirm the exclusion of expert testimony
as an appropriate exercise of discretion.
B. The Requirement of Expert Testimony in Indiana
Law
The district court granted Gentiva’s motion for summary
judgment because, after excluding all of the Mussers’ expert
medical testimony, there was no genuine issue of material
fact on the key issue of breach of duty and Gentiva was
therefore entitled to judgment as a matter of law.
We review a motion for summary judgment de novo. Ross v.
Town of Austin, 343 F.3d 915, 917 (7th Cir. 2003). Sum-
mary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). Rule 56 mandates the entry of summary judgment
against a party “who fails to make a showing sufficient to
establish the existence of an element essential to the party’s
16 No. 03-1312
case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Mussers brought their complaint as a medical mal-
practice tort under Indiana law. To show medical malprac-
tice, a plaintiff must establish that the defendant (1) owed
a duty to the plaintiff; (2) breached its duty by conduct
falling below the standard of care; and (3) proximately
caused a compensable injury through the breach of duty.
Whyde v. Czarkowski, 659 N.E.2d 625, 627 (Ind. Ct. App.
1995). A plaintiff must present expert testimony to estab-
lish the applicable standard of care and to show whether
the defendant’s conduct falls below the standard of care. Id;
Narducci v. Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App.
2000).
Indiana law does recognize a “common knowledge”
exception, rooted in the doctrine of res ipsa loquitur, to
the rule that expert testimony is necessary in medical mal-
practice cases. This exception applies when “the com-
plained-of conduct is so obviously substandard that one
need not possess medical expertise in order to recognize the
breach” of the standard of care. Malooley v. McIntyre, 597
N.E.2d 314, 319 (Ind. Ct. App. 1992). The use of this
exception has been limited to cases in which obvious mis-
takes have been made in surgery. See, e.g., Gold v. Ishak,
720 N.E.2d 1175, 1183 (Ind. Ct. App. 1999) (“[E]xpert
testimony is not required because a fire occurring during
surgery where an instrument that emits a spark is used
near a source of oxygen is not beyond the realm of the lay
person to understand.”); Weinberg v. Geary, 686 N.E.2d
1298, 1302 (Ind. Ct. App. 1997) (exception has been “nar-
rowly construed” and is “typically [ ] limited to cases
involving the failure of an operating physician to remove
some surgical implement or other foreign object from the
patient’s body”).
No. 03-1312 17
This is not an appropriate case to apply the “common
knowledge” exception. Medical expertise is required to
understand the appropriate standard of care in observing
Maverick for signs of distress, including the use of the
electronic monitors. Furthermore, medical expertise is
required to understand the appropriate standard of care for
reviving Maverick.
Because of the district court’s proper exercise of the
sanction of exclusion, the Mussers cannot present any ex-
pert testimony. Thus, they cannot establish that Gentiva,
through their employee Kinzer, breached the applicable
standard of care. Since the Mussers cannot establish a
necessary element of the claim as a matter of law, summary
judgment is appropriate.4
III. Conclusion
For the foregoing reasons, we AFFIRM the grant of sum-
mary judgment by the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
4
We note, but do not consider, the district court’s alternative
analysis disposing of the case on summary judgment even if all of
the evidence from the depositions was admitted for consideration.
USCA-02-C-0072—1-28-04