108 N.E.3d 923
Ind. Ct. App.2018Background
- Jaymes Shaw (19) was admitted with pneumonia and acute renal failure; a cystoscopy and transplant ureteral stent placement by Dr. Chandra Sundaram was consented to (mother Kelli signed on his behalf); Jay arrested and died during the procedure.
- Shaw (father and estate administrator) pursued a medical-malpractice claim; a Medical Review Panel found for Sundaram; Shaw then filed suit.
- The case involved protracted discovery disputes: Shaw missed expert-disclosure deadlines, prompted two motions to compel, two sanctions awards, and multiple extensions.
- Shaw initially designated Dr. Joye Carter as a causation expert but later sought to substitute Dr. Allen Griggs shortly before trial; the court denied substitution and barred Griggs from testifying.
- Sundaram moved in limine to exclude any claim not presented to the MRP, including informed-consent claims; the trial court granted the motion after finding no informed-consent theory was presented to the MRP or disclosed by experts.
- At trial Shaw did not present Dr. Carter (though she was available by video), did not make offers of proof for Griggs or informed-consent evidence, and the jury returned a verdict for Sundaram.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying substitution of Dr. Griggs for Dr. Carter as plaintiff’s primary expert | Substitution was necessary because Carter became unreachable; Griggs would provide substantially similar causation testimony | Substitution was untimely and prejudicial after disclosure deadlines and repeated discovery orders; plaintiff had ample opportunity earlier | Denial affirmed: court acted within discretion given chronic late disclosures and discovery sanctions |
| Whether trial court erred in excluding Dr. Griggs as a rebuttal witness | Griggs could rebut unexpected testimony (creatinine fatal level) and thus should be allowed in rebuttal | Griggs was a known, anticipated witness whose late identification violated discovery and pretrial orders; nondisclosure is not excused | Denial affirmed: known witnesses must be disclosed; nondisclosure precluded rebuttal testimony |
| Whether court erred by granting motion in limine excluding informed-consent claim | Informed-consent theory could be tried (argued it met McKeen test) and jury should consider it | No informed-consent theory was presented to the MRP or disclosed by plaintiff’s experts; expert testimony required for informed-consent; late injection would prejudice defense | Denial affirmed: informed-consent evidence excluded due to lack of MRP/ discovery disclosure and absence of expert offer of proof |
| Whether exclusionary rulings warrant reversal absent offers of proof | Plaintiff contends rulings were erroneous and prejudicial | Defendant notes plaintiff never made offers of proof so appellate review is hampered | Affirmed: plaintiff’s failure to make offers of proof prevents evaluation of prejudice; no reversible error shown |
Key Cases Cited
- Horn v. Jara, 63 N.E.3d 1 (Ind. Ct. App. 2016) (standard of review for admission/exclusion of evidence)
- Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008) (assessing probable impact of erroneous evidentiary rulings)
- McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993) (known/anticipated rebuttal witnesses must be disclosed)
- McKeen v. Turner, 71 N.E.3d 833 (Ind. 2017) (permitting new theories post-MRP only if complaint and MRP evidence encompassed them)
- Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992) (expert testimony required to prove physician’s informed-consent obligations)
- Spar v. Cha, 907 N.E.2d 974 (Ind. 2009) (elements required for an informed-consent claim)
- Miller v. State, 716 N.E.2d 367 (Ind. 1999) (to preserve appeal of motion in limine, party must offer evidence at trial)