FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
MICHAEL E. O’NEILL TIMOTHY S. SCHAFER
RANDALL J. NYE TODD S. SCHAFER
MICHELLE P. BURCHETT TIMOTHY S. SCHAFER, II
O’Neill McFadden & Willett, LLP SCHAFER & SCHAFER
Dyer, Indiana Merrillville, Indiana
FILED
Oct 30 2012, 9:14 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MARK CARTER and JOHN E. CARTER, )
Co-Personal Representatives of the Estate of )
JOHN O. CARTER, M.D., Deceased, )
)
Appellants-Defendants, )
)
vs. ) No. 45A05-1110-CT-563
)
LORETTA ROBINSON, Individually and as )
Administratrix of the Estate of JOHN E. )
ROBINSON, Deceased, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffery J. Dywan, Judge
Cause No. 45D11-0906-CT-108
October 30, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendants, 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 Appellee-Plaintiff, Loretta Robinson,
Individually and as Administratix of the Estate of John E. Robinson, Deceased
(Robinson), following Robinson’s Complaint for medical malpractice.
We affirm.
ISSUES
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).
2
FACTS AND PROCEDURAL HISTORY
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.
3
(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
4
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.
5
DISCUSSION AND DECISION
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.6
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 the discovery of the first possible cause of death,
Dr. Bryant failed to adhere to the differential etiology methodology in which alternative
causes of death are excluded. In a related argument, Dr. Carter alludes to the scientific
foundational facts which serve as the basis of Dr. Bryant’s opinion. Pointing to Dr.
Bryant’s reliance on the medical symptoms obtained from Robinson, from whom John
was separated, and Dr. Bryant’s lack of review of John’s medical history prior to
commencing the autopsy, Dr. Carter argues that Dr. Bryant’s opinion with respect to
7
John’s cause of death of congestive heart failure is not supported by reliable scientific
facts. We will discuss each contention in turn.
A. Methodology
The brunt of Dr. Carter’s contention is reserved for Dr. Bryant’s methodology.
When faced with a proffer of scientific testimony, the court must make a preliminary
assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and reliable. Alsheik v. Guerrero, 956 N.E.2d 1115, 1126 (Ind. Ct.
App. 2011). Scientific knowledge admissible under Evid. R. 702 connotes more than
subjective belief or unsupported speculation. Hannan v. Pest Control Services, Inc., 734
N.E.2d 674, 679 (Ind. Ct. App. 2000). Thus, expert testimony must be supported by
appropriate validation or “good grounds” based on what is known establishing a standard
of evidentiary reliability. Id.Focusing on the lack of appropriate validation, Dr. Carter asserts that “[r]ather
than conduct a systemic analysis (or any analysis) to determine the scientifically reliable
cause of death, [Dr. Bryant] limited himself to identifying the first possible cause of death
he came upon on gross examination of the chest.” (Appellant’s Br. p. 26). In support of
his argument, Dr. Carter refers to Dr. Bryant’s testimony during voir dire of his
methodology. Specifically, when asked “that in arriving at a conclusion you stop your
analysis of the – the analysis after you find the first possible cause of death[,]” Dr. Bryant
responded, “That’s correct. When I see a cause of death, that’s what I conclude.” (Tr. p.
725). Highlighting Dr. Bryant’s answer, Dr. Carter maintains that Dr. Bryant failed to
formulate a differential etiology to rule out other possible causes of death and as such,
8
“Dr. Bryant’s methodology amounts to little more than unsubstantiated guesswork[.]”
(Appellant’s Br. pp. 29-30).
We recently discussed and adopted the methodology of a “differential etiology” in
Alsheik v. Guerrero, 956 N.E.2d 1115 (Ind. Ct. App. 2011). Referencing Myers v.
Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir. 2010), we stated in Alsheik that “[i]n a
differential etiology, the doctor rules in all the potential causes of a patient’s ailment and
then, by systematically ruling out causes that would not apply to the patient, the physician
arrives at what is the likely cause of the ailment or death.” Alsheik, 956 N.E.2d at 1127.
“There is nothing controversial about that methodology. The question is whether it is
reliable [] is made under a case-by-case basis, focused on which potential causes should
be ruled in and which should be ruled out.” Id. In essence, admissible expert testimony
need not rule out all alternative causes, but where a defendant points to a plausible
alternative cause and the doctor offers no explanation for why he or she has concluded
that it was not the sole cause, that doctor’s methodology is unreliable. Henricksen v.
ConocoPhillips Co., 605 F.Supp.2d 1142, 1162 (E.D. Wash. 2009).
Looking at the totality of Dr. Bryant’s testimony, we find that the autopsy report’s
cause of death was derived by employing the differential etiology method. During his
testimony, Dr. Bryant concluded that
I examined the body. I come to the conclusion that there’s more than one
finding of congestive heart failure, which I listed on the final pathological
diagnosis below the diagnosis itself. There’s right atrial dilation, passive
congestion of the liver and the spleen, acute pulmonary edema and
congestion, bilateral pleural effusion, peritoneal effusion, left ventricular
dilation, right ventricular dilation. Those are all the anatomic findings that
support my diagnosis of congestive heart failure.
9
(Tr. p. 853). Besides the medical findings from his examination which correlated with a
diagnosis of congestive heart failure, Dr. Bryant also looked at other possible causes and
ruled those out. Specifically, the following colloquy occurred between Robinson and Dr.
Bryant:
[ROBINSON]: You, in fact, ruled pulmonary emboli out.
[DR. BRYANT]: Oh, I look for that. That’s one of the causes of sudden
death.
[ROBINSON]: And he talked about acute MI, or a heart attack?
[DR. BRYANT]: I looked for that. That’s not –
[ROBINSON]: You ruled that out, didn’t you?
[DR BRYANT]: Yeah.
***
[ROBINSON]: You actually looked at all the coronary arteries?
[DR. BRYANT]: Right.
(Tr. pp. 732-33). In addition, Dr. Bryant testified that he checked the valves between the
heart “for rheumatic fever and calcified valves that can affect the function of the heart.”
(Tr. p. 763). He checked the trachea-bronchial tree leading to both lungs for obstructions
as sudden aspiration can be one of the causes of sudden, unexpected death. He checked
the pancreas and alimentary tract, lymph nodes, and genitalia. He also ruled out hepatitis,
myocarditis, and pneumonia.
10
When being questioned about the possibility of John having incurred a cerebral
aneurism, seizures or heart arrhythmia, Dr. Bryant responded that because of the nature
of these potential causes, an autopsy could not detect these. Interrogated about the focal
abnormality in the heart muscle, Dr. Bryant answered that the scarring damage was too
small to contribute to a sudden heart attack.
In light of the totality of Dr. Bryant’s testimony, it is clear that based on the
medical findings, Dr. Bryant “reliably rule[d] out reasonable alternative causes” and
excluded all of them, except one. See Soldo v. Sandoz Pharmaceuticals Corp., 244 F.
Supp.2d 434, 567 (W.D.Pa. 2003). As such, we conclude that his expert opinion is based
on a proper use of the differential etiology methodology.
B. Foundational Facts
In a related argument, Dr. Carter asserts that Dr. Bryant’s opinion on the cause of
death is not supported by reliable facts. Specifically, Dr. Carter points to Dr. Bryant’s
reliance on Robinson’s account of John’s physical condition. Prior to commencing his
autopsy, Dr. Bryant contacted Robinson, as John’s wife, to get some background
information on John’s health. At that point, unbeknownst to Dr. Bryant, Robinson had
been separated from John for a year and she had no personal knowledge of John’s
condition on the days before his death. During the interview, Robinson informed Dr.
Bryant that John suffered from shortness of breath. Additionally, Dr. Carter alludes to
the fact that Dr. Bryant performed the autopsy without consulting John’s medical records,
failed to order a toxicology study, and did not weigh the organs or measure bodily fluids
during the autopsy but merely guessed their weight.
11
First, Dr. Bryant testified that he diagnosed John’s cause of death based on his
anatomic findings during the autopsy of the body, independently from and regardless of
his interview with Robinson. Moreover, as we noted in Alsheik, Ind. Evidence Rule
702(b) only pertains to the reliability of scientific principles underlying an expert’s
opinion, not to technical or other specialized knowledge or observations. See Alsheik,
956 N.E.2d at 1127 (quoting Malinski v. State, 794 N.E.2d 1071, 1084-85 (Ind. 2003)).
Here, Dr. Carter’s claim in essence amounts to the accepted conduct and procedures
followed during an autopsy, rather than a cluster of scientific principles. His contention
relates to the credibility and weight of Dr. Bryant’s testimony and is more appropriately
reserved for cross-examination. See Sears Roebuck and Co., 742 N.E.2d at 461 (Once
the trial court is satisfied that the expert’s testimony will assist the trier of fact and that
the expert’s general methodology is based on reliable scientific principles, then the
accuracy, consistency, and credibility of the expert’s opinions may properly be left to
vigorous cross-examination, presentation of contrary evidence, argument of counsel, and
resolution by the trier of fact.); Person v. Shipley, 962 N.E.2d 1192, 1198 (Ind. 2012)
(“the dissimilarities between the actual weights and speeds of the vehicles [], and the
[estimated] weights and speeds that [the expert] utilized in forming his opinion go to the
weight and credibility of his testimony, not its admissibility.”). In sum, Dr. Bryant’s
expert opinion on John’s cause of death was derived through the application of the
differential etiology methodology, a scientific reliable and valuable procedure, and the
trial court did not abuse its discretion by allowing Dr. Bryant’s testimony.
12
II. Dr. Carter’s Expert
Next, Dr. Carter asserts that the trial court abused its discretion when it excluded
the testimony of his expert witness, Michael Kaufman, M.D. (Dr. Kaufman), who would
have addressed the perceived flaws in Dr. Bryant’s methodology, because of Dr. Carter’s
untimely disclosure of this witness. A trial court enjoys broad discretion in determining
the appropriate sanctions for a party’s failure to comply with discovery orders. Vernon v.
Kroger Co., 712 N.E.2d 976 (Ind. 1999). “Discretion is a privilege afforded a trial court
to act in accord with what is fair and equitable in each case.” Id. at 982. The trial court
abuses its discretion if its decision is clearly against the logic and effect of the facts and
circumstances of the case, or if it misinterprets the applicable law. Id. at 976. One
sanction available in cases where a party seeks to introduce evidence that violates the trial
court’s discovery rules is the exclusion of that evidence. See Nyby v. Waste
Management, Inc., 725 N.E.2d 905 (Ind. Ct. App. 2000), trans. denied. Absent clear
error and resulting prejudice, the trial court’s determinations with respect to violations
and sanctions should not be overturned. Id.Dr. Carter contends that the admissibility of Dr. Kaufman as an expert witness is
to be analyzed in accordance with the principles set out in Wiseheart v. State, 491 N.E.2d
985 (Ind. 1985), where our supreme court outlined the factors appropriate for a trial court
to consider in determining its course of action when a party seeks to use the testimony of
a witness whose identity is disclosed to the opponent after discovery has been closed.
These factors include:
13
(1) Whether the nature of defendant’s violation was trivial or substantial.
The trial court should consider when the witness first became known to
defendant’s counsel.
(2) How vital the potential witness’ testimony is to the defendant’s case.
The trial court should determine the significance of the proffered testimony
to the defense. Is the testimony relevant and material to the defense or
merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a
deleterious impact on the case prepared by the State?
(4) Whether the less stringent sanctions are appropriate and effective to
protect the interest of both the defendant and the State.
(5) Whether the State will be unduly surprised and prejudiced by the
inclusion of the witness’ testimony despite the available and reasonable
alternative sanctions (e.g., a recess or a continuance) which can mitigate
prejudice to the State by permitting the State to interview the witnesses and
conduct further investigation, if necessary.
Id. at 991. In 2001, the Wiseheart standard was extended to civil cases by Davidson v.
Perron, 756 N.E.2d 1007 (Ind. Ct. App. 2001).
Dr. Bryant’s autopsy was initially disclosed on October 26, 2004, when Robinson
commenced the lawsuit and it was included in the medical review panel’s submission.
The autopsy report merely detailed Dr. Bryant’s findings and his diagnosis of the cause
of death without specifying his underlying methodology. On July 31, 2009, Robinson
identified Dr. Bryant as her expert witness. Throughout the proceedings, discovery was
difficult and Dr. Carter had to resort to motions to compel discovery or to complete
discovery requests on five separate occasions. Furthermore, despite eleven separate
requests by Dr. Carter, Robinson did not make Dr. Bryant available for deposition until
April 20, 2011, just six weeks before the scheduled trial. During the deposition, Dr.
14
Bryant was questioned at length about his methodology and procedures used during the
autopsy. On April 26, 2011, Dr. Carter unexpectedly died and the trial court rescheduled
the trial to September 26, 2011. In May of 2011, Dr. Carter consulted with Dr. Kaufman
and hired him to evaluate Dr. Bryant’s methodology and findings. On June 6, 2011, Dr.
Carter’s attorney filed his witness disclosure list with the trial court, notifying the trial
court that he might call as a witness “any and all persons necessary for rebuttal or
impeachment purposes whose identity cannot be reasonably ascertained at this time.”
(Appellant’s App. p. 120). Dr. Carter did not disclose Dr. Kaufman at that time. On
August 19, 2011, Dr. Carter filed a notice of amendment to his trial witness list,
identifying Dr. Kaufman as a rebuttal witness to the expert testimony of Dr. Bryant,
along with a motion to bar Dr. Bryant’s testimony. Together with his notice of
amendment, Dr. Carter filed Dr. Kaufman’s affidavit, which stated
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 his 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
thorough 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 death cannot
be ruled out.
(Appellant’s App. p. 390).
On September 7, 2011, Robinson filed an objection to add Dr. Kaufman as a
witness and opposed barring Dr. Bryant’s testimony. After a hearing on September 12,
2011, the trial court denied both of Dr. Carter’s motions, concluding that:
15
The defense has known for many months, perhaps years of [Robinson’s]
intention to call Dr. Bryant as a witness. The defense has also had the
autopsy report and certificate of death containing Dr. Bryant’s opinions.
The late disclosure of Dr. Kaufman by the defense, coming just weeks
before trial, would work an undue prejudice to [Robinson].
(Appellant’s App. p. 18).
Applying the Wiseheart principles, we agree with the trial court’s exclusion of Dr.
Kaufman’s testimony. While we disapprove of Robinson’s delay in making Dr. Bryant
available for deposition, it should be noted that Dr. Carter did not request the availability
of Dr. Bryant for deposition until August 30, 2010—more than a year after Dr. Bryant
had been disclosed as an expert witness for Robinson. Furthermore, even though the
need for Dr. Kaufman’s testimony became evident to Dr. Carter on April 20, 2011 and
Dr. Carter hired Dr. Kaufman in May 2011, he failed to timely disclose Dr. Kaufman as
his expert witness on June 6, 2011 but instead waited until approximately five weeks
before trial to formally identify Dr. Kaufman and the content of his testimony. Although
Dr. Kaufman’s testimony was intended to place doubt on Dr. Bryant’s methodology,
during cross-examination of Dr. Bryant, Dr. Carter managed to achieve that exact result.
Dr. Carter pointed out the weaknesses and perceived flaws within Dr. Bryant’s
methodology and foundational facts and placed those squarely before the jury. In sum,
failing to find clear error and prejudice, we conclude that the trial court did not abuse its
discretion when it excluded Dr. Kaufman as a witness and we will not interfere with that
decision.
16
III. Jury Instruction
Lastly, Dr. Carter contends that the trial court abused its discretion when it refused
to tender his proposed instruction to the jury. Specifically, Dr. Carter requested the trial
court to give the jury the following final instruction:
DEFENDANT’S FINAL JURY INSTRUCTION NO. 3
You, the jury, are to determine whether [Dr. Carter] exercised reasonable
care for a family practice physician in light of the conditions as shown by
the evidence to have actually existed in 2002 when he was rendering care to
[John]. This determination should not be based on hindsight.
(Appellant’s App. p. 22). Robinson objected to the inclusion of the last sentence, which
was sustained by the trial court. Consequently, the proposed instruction was read to the
jury without reference to the use of hindsight.
Instructions serve to inform the jury of the law applicable to the facts presented at
trial, enabling it to comprehend the case sufficiently to arrive at a just and correct verdict.
Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229, 235 (Ind. Ct. App.
2001), trans. denied. Jury instructions are committed to the sound discretion of the trial
court. Id. In evaluating the propriety of a given instruction, we consider 1) whether the
instruction correctly states the law, 2) whether there is evidence in the record supporting
the instruction, and 3) whether the substance of the instruction is covered by other
instructions. Id. An erroneous instruction warrants reversal only if it could have formed
the basis for the jury’s verdict. Id.The propriety of referencing the applicability of hindsight in jury instructions was
first discussed in Dahlberg v. Ogle, 373 N.E.2d 159 (Ind. 1978). In Dahlberg, the trial
court tendered, over objection, a jury instruction which included an explicit hindsight
17
prohibition and which stated “[y]ou are to determine whether or not the defendant was
negligent in one of the ways charged by the plaintiff upon the conditions as they existed
in January 1971, as alleged by plaintiff. You are not to utilize retrospection or
hindsight.” Id. at 164 (emphasis added). After reviewing this instruction, our supreme
court stated:
This instruction is not in a form which we would recommend.
Nevertheless, its import is sufficiently clear and we do not believe it would
have confused or misled the jury.
Id.
Here, the trial court sustained Robinson’s objection to Dr. Carter’s proffered
instruction, which included the hindsight language now at issue, and declined to instruct
the jury as to an explicit hindsight prohibition. We find no text in Dahlberg articulating a
requirement for a hindsight jury instruction. Therefore, there was no error in the trial
court’s omission of the explicit hindsight prohibition from Final Instruction No. 3.
Nevertheless, even if there were error here, it would be harmless. Final Instruction
No. 8 included the caution that:
In providing health care to a patient, a family practitioner must use the
degree of care and skill that a reasonably careful, skillful, and prudent
family practitioner would use under the same or similar circumstances.
(Appellee’s App. pp. 30-31) (emphasis added). As such, Final Instruction No. 8 included
language similar in form and substance to the general prohibition on the use of hindsight
found within the totality of Final Instruction No. 3.
18
CROSS-APPEAL
On cross-appeal, Robinson requests this court to award her appellate attorney fees
pursuant to Indiana Appellate Rule 66(E), claiming that Dr. Carter’s appeal was
undertaken in bad faith. Indiana Appellate Rule 66(E) provides, in pertinent part, that we
“may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the
[c]ourt’s discretion and may include attorney’s fees.” Our discretion to award attorney
fees under this rule is limited, however, to instances when an appeal is permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.
Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while
Indiana Appellate Rule 66(E) provides this court with discretionary authority to award
damages on appeal, we must use extreme restraint when exercising this power because of
the potential chilling effect upon the exercise of the right to appeal. Id. A strong
showing is required to justify an award of appellate damages and the sanction is not
imposed to punish mere lack of merit but something more egregious. Harness v. Schmitt,
924 N.E.2d 162, 168 (Ind. Ct. App. 2010).
Indiana appellate courts have formally categorized claims for appellate attorney
fees into substantive and procedural bad faith claims. Id. To prevail on a substantive bad
faith claim, the party must show that the appellant’s contentions and arguments are
utterly devoid of all plausibility. Id. Substantive bad faith implies the conscious doing of
a wrong because of dishonest purpose or moral obliquity. In Re Estate of Carnes, 866
N.E.2d 260, 269 (Ind. Ct. App. 2007). Procedural bad faith, on the other hand, occurs
when a party flagrantly disregards the form and content requirements of the rules of
19
appellate procedure, omits and misstates relevant facts appearing in the record, and files
briefs written in a manner calculated to require the maximum expenditure of time both by
the opposing party and the reviewing court. Harness, 924 N.E.2d at 168.
In her request for appellate attorney fees, Robinson relies on the substantive prong
of the bad faith requirement, contending that “it is quite clear that Dr Carter simply made
up preposterous arguments for the sole purpose of delaying payment to Robinson and
causing Robinson and her counsel to expend the maximum amount of time and money in
order to collect the compensation which she has been entitled to since December 2, 2002,
the date of her husband’s death.” (Appellee’s br. pp. 26-27). Robinson advances two
instances of purported substantive bad faith: (1) a meritless appeal and (2) the omission
in Appellant’s Appendix of the June 6, 2011 witness disclosure list.
Although we ultimately find Dr. Carter’s claims unpersuasive, however, because
he supported his challenge with pertinent legal authority from which an argument could
have been made and phrased it in a cogent manner, we do not find his contentions utterly
devoid of all plausibility. His challenge is consistent with reasonable advocacy and we
cannot find any evidence that Dr Carter deliberately presented such issues so as to delay
Robinson’s receipt of an award. We conclude that Dr. Carter’s appeal possesses
sufficient merit to withstand an award of attorney fees. Therefore, we deny Robinson’s
request for appellate attorney fees.
CONCLUSION
Based on the foregoing, we hold that (1) the trial court did not abuse its discretion
when it allowed Robinson’s pathologist to testify as an expert witness pursuant to Indiana
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Evidence Rule 702; (2) the trial court appropriately excluded the testimony of Dr.
Carter’s expert witness because he was not timely disclosed to Robinson; and (3) the trial
court properly instructed the jury. With respect to Robinson’s cross-appeal, we deny his
request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E).
Affirmed.
BAILEY, J. and CRONE, J. concur
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