Rentokil North America, Inc., and Hunter Horne v. Brenda Hendricks (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 15 2019, 9:57 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE R. Jay Taylor, Jr. Teresa L. Todd Scopelitis, Garvin, Light, Hanson & Indianapolis, Indiana Feary, P.C. Indianapolis, Indiana Richard P. Batesky, Jr. Batesky Law Office Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rentokil North America, Inc., August 15, 2019 and Hunter Horne, Court of Appeals Case No. Appellants-Defendants, 18A-CT-2731 Appeal from the Marion Superior v. Court The Honorable David J. Dreyer, Brenda Hendricks, Judge Appellee-Plaintiff. Trial Court Cause No. 49D10-1704-CT-16285

Barnes, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 1 of 18

Statement of the Case [1] Brenda Hendricks sued Rentokil North America, Inc., and Hunter Horne

(collectively “Rentokil”) for negligence in connection with an auto accident

involving Hendricks and Horne. The jury determined Rentokil was at fault and

awarded Hendricks $250,000 in damages. Rentokil appeals, and we affirm.

Issue [2] Rentokil raises three issues, which we consolidate and restate as: whether the

trial court erred in its evidentiary rulings prior to and during trial.

Facts and Procedural History [3] On the afternoon of September 13, 2016, Hendricks and Horne collided at the

intersection of Troy Avenue and Brille Road in Marion County. Hendricks was

driving east on Troy Avenue and had the right of way as she approached Brille

Road. Hendricks slowed down to less than thirty-five miles per hour as she

approached the intersection, but Horne drove into Hendricks’ path. Hendricks

swerved sharply to the left and used her brakes prior to striking Horne’s car.

Horne’s automobile was owned by her employer, Rentokil, and she was acting

within the scope of her employment at the time of the accident. [4] An ambulance arrived at the scene soon after the collision. Hendricks was in

pain but declined to go to the hospital. She went to the hospital later that night

after passing out and experiencing substantial pain and nausea. Doctors later

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determined she sustained significant tissue damage to her right breast as a result

of the collision. Some of the tissue damage is permanent.

[5] On April 24, 2017, Hendricks sued Rentokil, alleging: (1) Horne negligently 1 caused the accident; and (2) Rentokil was responsible for her injury. On

August 15, 2017, the parties filed a proposed joint case management order. In

the order, the parties agreed to procedures and deadlines for discovery

disclosures. For reasons not explained in the record, the trial court clerk failed

to place the order on the chronological case summary, and it was not

transmitted to or signed by the trial court prior to trial. [6] During discovery, Hendricks took a video deposition of one of her treating

physicians, Nicholas Vornehm, M.D., intending to present the deposition at

trial instead of live testimony. After the deposition, she filed a motion to strike

in part Dr. Vornehm’s recorded testimony. Specifically, Hendricks asked the

court to exclude from evidence any theories by Dr. Vornehm about the speed at

which Hendricks had been traveling at the time of the accident. Rentokil

responded to the motion during a court hearing, and Hendricks filed a reply to

Rentokil’s response. The court granted Hendricks’ motion. Rentokil filed a

motion to reconsider, which the trial court denied.

1 Hendricks also sued J.C. Erlich Co., Inc., but later stipulated to that party’s dismissal from the case.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 3 of 18 [7] The case was tried by jury over two days. Hendricks’ theory of the case was

that Rentokil was liable because Horne negligently failed to yield the right of

way to Hendricks. By contrast, Rentokil argued Hendricks was at fault because

she did not drive in a reasonable manner as she approached the intersection.

Among other witnesses, Hendricks presented Dr. Vornehm’s redacted video

deposition and live testimony from Dr. Michael Lutz and Officer Joshua

Kreutzberger. Dr. Vornehm and Dr. Lutz described Hendricks’ injury and

expressed expert opinions about the injury’s cause, extent, and duration. [8] On August 1, 2018, the jury returned a verdict for Hendricks, determining

Rentokil was 100% at fault. The jury awarded Hendricks $250,000 in damages,

and the trial court entered judgment in her favor. Rentokil filed a motion to

correct error, to which Hendricks responded. The motion was deemed denied,

and this appeal followed. [9] On April 29, 2019, Hendricks filed with the trial court a motion to correct the

chronological case summary to reflect that the parties had filed the proposed

joint case management order on August 15, 2018. The court granted the

motion and stated the proposed case management order had “governed the

proceedings in this case.” Appellee’s App. Vol. 2, p. 13.

Discussion and Decision 1. Standard of Review [10] Rentokil challenges the trial court’s decisions on the admission and exclusion of

several witnesses’ statements. We review a trial court’s decision to admit or

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exclude evidence, including expert witness testimony, for an abuse of

discretion. Wilkerson v. Carr, 65 N.E.3d 596, 599 (Ind. Ct. App. 2015). A trial

court abuses its discretion when its decision “is clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Id. at 599-600. We

presume the trial court’s evidentiary decision is correct, and the party

challenging that decision bears the burden of demonstrating an abuse of

discretion. 5200 Keystone Ltd. Realty, Inc. v. Filmcraft Labs., Inc., 30 N.E.3d 5, 10

(Ind. Ct. App. 2015). [11] Even if an evidentiary decision is an abuse of discretion, we will not reverse if

the ruling amounted to harmless error. Kimbrough v. Anderson, 55 N.E.3d 325,

334 (Ind. Ct. App. 2016), trans. denied. An error is harmless when the probable

impact of the erroneously admitted or excluded evidence on the factfinder, in

light of all of the evidence presented, is sufficiently minor so as not to affect a

party’s substantial rights. Id.

2. Dr. Vornehm [12] Rentokil concedes Dr. Vornehm was a qualified expert witness and does not

dispute the admissibility of the doctor’s opinions. Instead, Rentokil claims the

trial court abused its discretion by striking the doctor’s video deposition

testimony about the speed at which Hendricks was driving at the time of the

accident. Rentokil argues Dr. Vornehm was qualified to estimate the speed at

which the accident occurred based on the severity of Hendricks’ injury. By

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contrast, Hendricks argues the doctor was qualified to discuss her injury but

lacked the expertise required to offer an expert opinion on her driving speed. [13] Indiana Evidence Rule 702 governs the admission of expert witness testimony,

and it provides as follows:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

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

[14] An expert in one field of expertise cannot offer opinions in other fields absent a

requisite showing of competency in that other field. Hannan v. Pest Control

Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied. In addition,

expert testimony admitted under Rule 702 requires more than subjective belief

or unsupported speculation. 5200 Keystone, 30 N.E.3d at 10. In 5200 Keystone,

the trial court barred an expert witness from expressing an opinion as to

whether lessees had contributed to soil contamination on a piece of property

after the witness conceded he did not know what chemicals the lessees had used

in their businesses. The Court affirmed the exclusion of the testimony,

concluding the expert’s testimony was “pure speculation” because, although the

expert was knowledgeable about environmental contamination issues, the

expert lacked knowledge of facts specific to the case. Id. at 11.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 6 of 18 [15] Dr. Vornehm is a board-certified general surgeon and co-director of a critical

care unit at a hospital. During Dr. Vornehm’s video deposition, he stated on

direct examination that Hendricks’ injury was similar to injuries resulting from

“high impact collisions.” Tr. Ex. Vol., Rentokil’s Ex. H, p. 7. On cross-

examination, when the doctor was asked to explain what he meant by a “high

impact collision,” the following exchange occurred:

[Dr. Vornehm] I mean the – the force transferred to her chest on impact was significant. This was not a low impact or – or slow head-on collision. There has to be a certain amount of force, and I can’t tell you the exact kinetics of it, the physics of it. But to sustain an injury that major, that soft tissue injury that major across the lap belt, across the shoulder, across the breast, in my clinical experience it’s a significant rate of speed when that happens.

[Rentokil] Can you be any more specific than using the word “significant”? [sic] Highway speeds?

[Hendricks] Well, I’m going to object -

[Dr. Vornehm] I don’t know.

[Hendricks] Excuse me, Doctor. I’m going to object to that for the reason that it’s vague and ambiguous. You can answer the question if you can.

[Dr. Vornehm] In my experience, you’re talking about speeds 40, 45, 50 miles per hour and higher, not -

[Rentokil] Okay.

[Dr. Vornehm] - not 20 or 30 miles an hour or less.

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[Rentokil] Okay.

[Hendricks] And we’re going to move to strike the doctor’s answer for the reason that he is not an expert on biomechanics, or a – nor has he seen the photographs depicting the damage to the vehicles in the wreck, nor does he have any other basis for giving an estimate as to the precise speeds of the vehicles.

Id. at 34-35. [16] On redirect examination, the following exchange occurred:

[Hendricks] Doctor, do you have any medical training, or any other type of training or experience in order to determine the speed at which a vehicle was traveling, when you see a patient for an injury?

[Dr. Vornehm] Just the experiences of – of seeing people come in the trauma bay after high speed motor vehicle accidents versus low speed ones.

[Hendricks] So is – is your estimate as to the speed of a vehicle based on an injury an estimate?

[Dr. Vornehm] It – it is. It’s just a rough, you know, low speed, high speed, you know, this – based on these injuries, this looks like it was high speed. Just like the caliber of a bullet, or – or the velocity of a bullet when it hits somebody, it can cause a lot more damage when it’s a higher caliber. I – I’m not in forensics, I don’t know – I don’t understand all that, but I can oftentimes tell you, looking at the – the - the amount of tissue destruction, Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 8 of 18

whether or not, you know, this was a high caliber or high velocity round.

[Hendricks] Is it possible that if the evidence in this case indicates that Brenda’s speed at impact was about 35 miles an hour, could that also produce the kind of trauma that she received to her breast?

[Dr. Vornehm] It must have. If that was – if that’s what – if that’s what the speed was, then it must have. I’m surprised she was going – I’m surprised that that was the speed, though, I would have expected it to be greater.

Id. at 41-42. [17] It is undisputed that Dr. Vornehm has no training in accident reconstruction,

and he admitted that he had only a “rough” estimate of Hendricks’ speed based

on observing other patients’ injuries. For purposes of Indiana Appellate Rule

702, he lacked the required specialized knowledge to provide opinions about

vehicle speed and auto accidents. Further, Dr. Vornehm had not been given

any information about the collision aside from Hendricks’ injury. His opinion

as to Hendricks’ driving speed was thus based on speculation, much like the

opinion of the expert witness in 5200 Keystone. For these reasons, the trial court

did not abuse its discretion by striking Dr. Vornehm’s deposition testimony as

to Hendricks’ driving speed.

3. Dr. Lutz [18] At the beginning of trial, Rentokil asked the court to bar Hendricks’ witness Dr.

Michael Lutz from stating any expert opinions, claiming Hendricks had failed

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to disclose during discovery that Dr. Lutz would serve as an expert witness as

well as a fact witness. The trial court overruled Rentokil’s objection. [19] Rentokil argues the trial court abused its discretion in allowing Dr. Lutz to

express expert opinions at trial because Hendricks had failed to timely disclose

that Dr. Lutz would be an expert. Hendricks disagrees, responding that she

fulfilled her disclosure obligations. [20] During the discovery process, parties are entitled to discover “facts known and

opinions held by experts.” Ind. Trial Rule 26(B)(4). Specifically, a party may

issue interrogatories requiring any other party to:

identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Id. [21] The Indiana Trial Rules also permit the parties to agree to modify their

discovery obligations: “Unless the court orders otherwise, the parties may by

written stipulation . . . modify the procedures provided by these rules for other

methods of discovery.” Ind. Trial Rule 29. A stipulation of facts is an express

waiver by a party or counsel of the intended issues. Ind. Dep’t of Envtl. Mgmt. v.

Adapto, Inc., 717 N.E.2d 646, 650 (Ind. 1999).

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 10 of 18 [22] On August 15, 2018, the parties filed a proposed joint case management order,

in compliance with Marion County’s local rules. See LR49-TR-16 Rule 207(B)

(“Within ten (10) days after [a parties’ case management conference] those

attending are to file a Joint Case Management Order . . . .”). The proposed

order, which both parties signed, states in relevant part:

Trial Rule 26(B)(4) Expert Disclosures

The parties agree that they will file their Trial Rule 26(B)(4) expert disclosures no later than 120 days prior to trial. After receiving each other’s expert disclosures, the parties will have an additional sixty (60) days to file any additional expert disclosures.

By “expert disclosures”, [sic] the parties mean that they will provide each other with the names of any expert witnesses they plan to use to testify in this case other than the plaintiff’s treating physicians, and with regard to each expert, a statement as to the general nature of their testimony and a statement of the opinions they will be rendering in the case. However, no expert disclosures will be required relative to the Plaintiff’s treating physicians or other treating health care providers.

Appellee’s App. Vol. 2, p. 6. [23] We now turn to Rentokil’s discovery requests. Rentokil issued one

interrogatory addressing expert witnesses, and Hendricks responded, as follows:

INTERROGATORY NO. 18: State the name, address and telephone number of each person you or your attorney consulted with or intend to call as an expert witness at trial of this cause. and for each expert, please state the expert’s general area of expertise; the subject matter on which the expert will testify at trial; the present occupation, address, and telephone number of each such expert witness; the schooling, training, and experience

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which you believe qualifies this person as such an expert (alternatively, attach a copy of the current curriculum vitae of said expert); a summary of the expert’s expected testimony, including the substance of facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

ANSWER: My attorneys advise me that at this point in time, they have not consulted with any experts.

My attorneys also advise me that a determination has not yet been made as to all of the expert witnesses who may be called to testify at trial. However, they tell me that they anticipate that the doctors, physician’s assistants, nurse practitioners, physical therapists, occupational therapists, and other health care providers who have treated me both before and after the collision in which Hunter Horne and I were involved will give testimony which will include the history and symptoms that I have reported to them; their examination findings; the results of x-rays, MRI scans, CT scans and other diagnostic tests; their diagnoses for my symptoms and injuries; the treatment they rendered to me; their opinions as to the causal connection between the collision in which Hunter Horne and I were involved and the injuries and symptoms for which I have been treated since that wreck; their opinions as to the impact my injuries have had on my ability to do my normal daily activities; the impact my injuries have had on my ability to work and the time I have missed from work as a result of my injuries; their opinions as to the prognosis for my injuries; their opinions as to any permanent symptoms, problems with activities, impairment and/or disability which I am going to have as a result of my injuries; the medical treatment that I am going to require in the future as a result of my injuries; their opinions as to the effect my injuries will have on my ability to work in the future, including time I may miss from work in the future due to my injuries, the effect my injuries will have on the kind of work I can do, and my work life expectancy; the cost of the treatment that they have rendered to me to-date; and, the cost

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of the future medical treatment that I am going to require as a result of my injuries.

Appellants’ App. Vol. 2, pp. 59-60. [24] Rentokil claims Hendricks was required to identify Dr. Lutz by name and

disclose other pertinent information about his expert testimony. We disagree.

The proposed joint case management order explicitly releases Hendricks from

any obligation under Indiana Trial Rule 26(B)(4) to make expert witness

disclosures about her treating physicians. Hendricks fulfilled her responsibilities

by stating, in response to Rentokil’s interrogatory, that her treating physicians

may offer expert opinions at trial. Rentokil could have taken Dr. Lutz’s 2 deposition to clarify the nature of his testimony.

[25] Rentokil further claims the proposed joint case management order “controlled

no aspect of the case” because it was not signed and issued by the trial court.

Reply Br. p. 19. In support of its claim, Rentokil cites Trial Rule 16(J), which

states that a pre-trial order “control[s] the subsequent course of action” “when

entered” by the court. There is no dispute that the parties timely filed the order,

but it was not placed on the chronological case summary or transmitted to the

trial judge for reasons not provided in the record. After this appeal began, the

2 We acknowledge that in Hendricks’ discovery responses, she identified seven treating physicians, including Dr. Vornehm and Dr. Lutz, as potential trial witnesses. Upon discovering Hendricks had received treatment from a relatively large number of physicians, Rentokil could have asked Hendricks to revise their proposed joint case management order to provide more specific expert witness information. Rentokil also could have asked the trial court to address the issue.

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trial court issued an order clarifying that the parties’ proposed joint case

management order had “governed the proceedings in this case.” Appellee’s

App. Vol. 2, p. 13. The court did eventually sign the order. [26] In any event, regardless of whether the trial court timely signed and issued the

proposed order, Rentokil signed and jointly filed the order, and it agreed to be

bound by its terms, as a stipulation. See Adapto, Inc., 717 N.E.2d at 650 (a party

entered into a stipulation as to the sole issue remaining to be tried and was

barred from later attempting to add new issues). The first day of trial was too

late to change its position. The trial court did not abuse its discretion by

allowing Dr. Lutz to present expert testimony at trial.

4. Officer Kreutzberger [27] Officer Joshua Kreutzberger of the Indianapolis Metropolitan Police

Department was dispatched to investigate the parties’ accident and prepared a

report. He testified at trial. Rentokil claims the trial court abused its discretion

because the court allowed Officer Kreutzberger to state an expert opinion at

trial, even though: (1) Hendricks had not previously identified him as an expert

witness; and (2) the officer was not qualified to offer opinions in relation to the

cause of the accident. Hendricks claims, without citation to authority, that the

officer’s testimony was admissible because it was not opinion testimony, but

rather a description of the facts and circumstances of the case. [28] As noted, experts “may testify in the form of an opinion or otherwise if the

expert’s scientific, technical, or other specialized knowledge will help the trier

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of fact to understand the evidence or to determine a fact in issue.” Ind. Evid.

Rule 702. “Testimony in the form of an opinion or inference otherwise

admissible is not objectionable just because it embraces an ultimate issue.” Ind.

Evid. Rule 704. The cause of an automobile accident is a type of ultimate issue.

See State v. Bouras, 423 N.E.2d 741, 745 (Ind. Ct. App. 1981) (state trooper

deemed competent to state expert opinion on cause of car accident). [29] Rentokil challenges the following portion of Officer Kreutzberger’s testimony:

[Hendricks’ Counsel] And did your investigation reveal anything that Brenda Hendricks did that caused or contributed to cause the wreck.[sic]

[Rentokil’s Counsel] Objection, inappropriate opinion and undisclosed opinion.

[Hendricks’ Counsel] Your Honor, I’m asking him if his investigation revealed any facts that indicated that Brenda did anything wrong that caused or contributed to cause the wreck.

The Court: Overruled, he can answer.

[Ofc. Kreutzberger] No Ma’am.

Tr. Vol. 2, p. 40. [30] This excerpt demonstrates that Hendricks asked Officer Kreutzberger to give his

opinion on an ultimate issue of fact, namely the cause of the accident. This

question necessarily called upon specialized training and expertise in accident

investigation. We reject Hendricks’ claim that the officer was merely testifying

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about facts because we conclude the officer was instead presenting an expert

opinion. See Bouras, 423 N.E.2d at 746 (trooper’s conclusion about the cause of

the accident was an expert opinion, based on experience and training). [31] We thus turn to Rentokil’s challenges to Officer Kreutzberger’s expert

testimony. We disagree with Rentokil’s claim that the officer was not qualified

to express expert opinions on the cause of auto accidents. Officer Kreutzberger

had been a patrol officer for over two years at the time of the accident. He has

an associate’s degree in applied science, with coursework designed for a career

in law enforcement. Officer Kreutzberger spends thirty percent of his day

dealing with auto accidents and has investigated “hundreds” of them. Tr. Vol.

2, p. 38. This is sufficient evidence to establish the officer as having specialized

training and knowledge about accident investigation. See Bouras, 423 N.E.2d at

746 (trooper qualified as expert on accident investigation; was trained by the

state and had two years of experience investigating accidents). [32] On the other hand, it is undisputed that Hendricks did not disclose Officer

Kreutzberger as a potential expert witness prior to trial, despite Rentokil’s

interrogatory requesting such disclosures, and Rentokil unsuccessfully objected

to the officer’s testimony on the cause of the crash as an “undisclosed opinion.”

Tr. Vol. 2, p. 40. A trial court has broad discretion to determine appropriate

sanctions for a party’s failure to comply with discovery orders. Carter v.

Robinson, 977 N.E.2d 448, 455 (Ind. Ct. App. 2012), trans. denied. Absent clear

error and resulting prejudice, the trial court’s determinations with respect to

violations and sanctions should not be overturned. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 16 of 18 [33] In Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 136 (Ind. 2005), a police

officer investigated a collision involving a bicyclist that had been hit by a car.

The officer testified that the driver was not at fault for the accident. The

Indiana Supreme Court determined the trial court erred in allowing the officer

to testify as an expert witness because the party presenting the officer’s

testimony had failed to establish that the officer qualified as an expert. The

Supreme Court further determined that admission of the officer’s testimony as

to the cause of the accident was harmless because: (1) the officer’s opinion was

based on what the parties to the accident told him; and (2) the officer did not

claim expertise in accident reconstruction. Id. [34] In the current case, Officer Kreutzberger’s investigation of the accident largely

consisted of discussions with Hendricks and Horne. During his testimony, he

did not describe inspecting the cars or the intersection. As Rentokil

acknowledged, the officer’s conclusions were based on “what the parties told

him had happened.” Appellants’ Brief, p. 31. In addition, Officer Kreutzberger

testified that he had investigated hundreds of auto accidents, but he did not tell

the jury he was an expert in accident reconstruction. We conclude, as the Witte

court concluded, that admission of Officer Kreutzberger’s comment about

causation was harmless error at best. As a result, in the absence of prejudice,

the trial court did not abuse its discretion by permitting the officer’s testimony.

Conclusion [35] For the reasons stated above, we affirm the judgment of the trial court.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019 Page 17 of 18 [36] Affirmed.

Bailey, J., and Mathias, J., concur.

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