Terra Ltd. Partners, Ltd. v. Delvecchio

172 N.E.3d 692 (Table)

TERRA LIMITED PARTNERS, LTD. and Stephen Gould Corporation, Appellants-Defendants,

v.Erin DELVECCHIO, as Wife and Administrator of the Estate of Michael Delvecchio, deceased, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CT-325

Court of Appeals of Indiana.

FILED July 14, 2021

Attorneys for Appellant-Terra Limited Partners, Ltd.: Bryce H. Bennett, Justin O. Sorrell, Riley Bennett Egloff LLP, Indianapolis, Indiana

Attorney for Appellee: Trevor J. Crossen, Crossen Law Firm, LLC, Carmel, Indiana

MEMORANDUM DECISION

Najam, Judge.

Statement of the Case

[1] Terra Limited Partners, Ltd. ("Terra") brings this interlocutory appeal from the trial court's denial of Terra's motion to limit or preclude the testimony of two expert witnesses on behalf of Erin Delvecchio, as the wife and administrator of the estate of Michael Delvecchio.¹ Terra raises a single issue for our review, namely, whether the trial court abused its discretion under the Indiana Rules of Evidence when it declined Terra's motion to limit or preclude the expert witnesses’ testimony.

[2] We affirm in part and reverse in part.

Facts and Procedural History

[3] In October of 2018, Erin filed her complaint against Terra, which she later amended.² In her amended complaint, Erin alleged that Terra employees had overserved alcohol to her husband, Michael, at a Ruth's Chris Steakhouse on the north side of Indianapolis in violation of Indiana's Dram Shop Act, Ind. Code §§ 7.1-5-10-15 to 15.5 (2020). As a result, Erin alleged, Michael "attempted to slide down a stair handrail in the restaurant and fell, which resulted in his injury and subsequent death." Appellant's Br. at 9.

[4] In 2019, Terra moved for the entry of partial summary judgment. The trial court granted Terra's motion and entered judgment for Terra as a matter of law on Erin's "claims under Indiana's Survivorship Statute." Appellant's App. Vol. 3 at 41. The court further restricted Erin's only remaining claim, for wrongful death, such that Erin was barred from seeking "attorneys’ fees, punitive damages, or damages for pain and suffering " under that claim. Id. at 41-42 (emphasis added).

[5] In late 2020, with a trial date set for September of 2021, Terra moved "to [l]imit or [p]reclude [t]estimony of [Erin's e]xperts." Appellant's App. Vol. 2 at 26. In particular, Terra sought to limit the testimony of Erin's expert toxicologist, Dr. Charles McKay, and her medical expert, Dr. Robert Gregori. In most relevant part, Dr. McKay would testify to the following conclusions:

[Michael's] likely BAC equivalent in excess of 0.26g% [at the time of the fall] indicated the consumption of more than 12 standard drinks, resulting in impairment in judgment, insight, visual perception, complex reaction time, balance, and motor coordination. It is likely that these impairing effects of alcohol, as well as the odor associated with alcohol consumption and metabolism, slurring of speech, and other visual evidence of alcohol intoxication were evident while [Michael] was being served alcohol....

Id. at 58. And Dr. Gregori would testify to the following conclusions:

I believe that more likely than not that the cause of [Michael's] death was due to the complications he sustained as a result [of his fall]. Moreover, there is no evidence that he died from any other condition....

It is not possible to know the extent of pain and suffering on the part of [Michael] because of his persistent vegetative state [between the fall and his death several months later]. However, the effects of this type of injury on a family or loved ones are often profound and heart wrenching.... Severe brain trauma has been described as losing a loved one but still having the body around as a constant reminder of what has been lost. It is an ordeal of despair versus hope and[,] oftentimes, the family of the individual is left emotionally devastated.

Id. at 194. The trial court summarily denied Terra's motion six days after Terra had filed it. The court then certified its order for interlocutory appeal, which we accepted.

Discussion and Decision

Standard of Review

[6] On appeal, Terra asserts that the trial court erred when it denied Terra's motion to limit or preclude the testimony of Dr. McKay and Dr. Gregori. Although not captioned as such, Terra's motion was in operation and effect a motion in limine to exclude or limit the testimony of Erin's expert witnesses. See, e.g. , Mitchell v. State , 742 N.E.2d 953, 956 (Ind. 2001). "We generally review a trial court's decision to admit or exclude evidence for an abuse of discretion." Patchett v. Lee , 60 N.E.3d 1025, 1028 (Ind. 2016). "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Sims v. Pappas , 73 N.E.3d 700, 705 (Ind. 2017).

Indiana Evidence Rule 702

[7] Much of Terra's arguments on appeal are centered around Indiana Evidence Rule 702, which discusses expert testimony. Specifically, Rule 702 provides:

(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.

As the Indiana Supreme Court has explained:

Daubert [v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993),] concerns the application of Federal Rule of Evidence 702 which, like Indiana Evidence Rule 702, permits qualified expert opinion testimony related to "scientific, technical, or other specialized knowledge" where such testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702 ; Ind. Evid. R. 702(a). The Indiana rule further requires that "expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable." Ind. Evid. R. 702(b) (emphasis added); seeMalinski v. State , 794 N.E.2d 1071, 1084 (Ind. 2003) ....

Although Indiana courts are not bound by Daubert , we have previously noted that " ‘[t]he concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved.’ " Malinski , 794 N.E.2d at 1084 (quoting McGrew v. State , 682 N.E.2d 1289, 1290 (Ind. 1997) ). Though we may consider the Daubert factors in determining reliability, there is no specific "test" or set of "prongs" which must be considered in order to satisfy Indiana Evidence Rule 702(b). We therefore find Daubert helpful, but not controlling, when analyzing testimony under Indiana Evidence Rule 702(b) ....

Indiana's Rule 702 is not intended "to interpose an unnecessarily burdensome procedure or methodology for trial courts." Sears Roebuck & Co. v. Manuilov , 742 N.E.2d 453, 460 (Ind. 2001). "[T]he adoption of Rule 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." 509 U.S. at 596, 113 S. Ct. 2786. Evidence need not be conclusive to be admissible. "The weakness of the connection of the item [of evidence] to the defendant goes toward its weight and not its admissibility." Owensby v. State , 467 N.E.2d 702, 708 (Ind. 1984). Cross-examination permits the opposing party to expose dissimilarities between the actual evidence and the scientific theory. The dissimilarities go to the weight rather than to the admissibility of the evidence. SeeLytle v. Ford Motor Co. , 696 N.E.2d 465, 476 (Ind. Ct. App. 1998), trans. denied.

Turner v. State , 953 N.E.2d 1039, 1050-51 (Ind. 2011) (some citations and quotation marks omitted). For example, where expert testimony "would ‘help the trier of fact’ " and was based on stated "calculations and methodology," our Supreme Court held, in a succinct analysis, that the opposing party's challenge to the expert testimony went to the "weight, not admissibility," of that testimony. Escamilla v. Shiel Sexton Co., Inc. , 73 N.E.3d 663, 676-77 (Ind. 2017). With that background in mind, we turn to Terra's arguments on appeal.

Dr. McKay's Proffered Testimony

[8] We first address Terra's challenge to Dr. McKay's proffered testimony. There is no dispute that Erin's wrongful death claim against Terra under Indiana's Dram Shop Act requires Erin to show, among other things, that Terra had "actual knowledge" that Michael was "visibly intoxicated" when Terra continued to serve him alcohol. I.C. § 7.1-5-10-15.5(b)(1). The essence of Dr. McKay's testimony would be that, given Michael's likely BAC at the time of his fall, he was likely to have been visibly intoxicated while being served alcohol shortly before the fall.

[9] Terra asserts that Dr. McKay's testimony is inadmissible under Evidence Rule 702 because it is not based on reliable scientific bases. In particular, Terra levies the following criticisms of Dr. McKay's testimony:

• Terra alleges that Michael was an alcoholic and therefore had a high tolerance for alcohol.

• Terra asserts that Dr. McKay's reliance on one study to reach a conclusion on Michael's likely blood-alcohol levels based on video-recordings of Michael at the restaurant is not scientifically reliable because the subjects in that study had a different blood-alcohol level than Dr. McKay attributed to Michael. Terra also complains that that study "had many limitations." Appellant's Br. at 20.

• Terra offers other studies to challenge Dr. McKay's conclusions.

• Terra challenges Dr. McKay's conclusion

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