      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Sep 08 2017, 8:33 am

      court except for the purpose of establishing                                  CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Edmond W. Foley                                          Edward L. Murphy, Jr.
      Douglas D. Small                                         Jason A. Scheele
      Foley & Small                                            Lauren R. Deitrich
      South Bend, Indiana                                      Rothberg Logan & Warsco L.L.P.
                                                               Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Judy Harper, Estate of Terry D.                          September 8, 2017
      Harper, II, ex rel. Judy Harper,                         Court of Appeals Case No.
      Appellants-Plaintiffs,                                   71A03-1611-CT-2523
                                                               Appeal from the St. Joseph
              v.                                               Superior Court
                                                               The Honorable Jenny Pitts Manier,
      Bruce Harley, M.D.,                                      Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               71D05-1601-CT-4



      Mathias, Judge.


[1]   Judy Harper (“Judy”), individually and on behalf of the estate of her husband

      Terry Harper (“Terry”), sued Dr. Bruce Harley (“Harley”) for medical


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017          Page 1 of 24
      negligence in connection with Terry’s death in 2012. After a four-day trial, a St.

      Joseph County jury returned a verdict for Harley. Judy now appeals the trial

      court’s exclusion of certain evidence relating to Terry’s medical history and the

      trial court’s denial of her motion for a directed verdict as to Terry’s cause of

      death. Harley cross-appeals, claiming the trial court erred in granting Judy’s

      motion for partial summary judgment.


[2]   We affirm as to Judy’s appeal. We therefore do not reach Harley’s cross-appeal.


                                 Facts and Procedural Posture
[3]   For several years before 2012, Terry suffered from atrial fibrillation, a heart

      condition he managed with the help of blood-thinning medication. The effect of

      the blood thinner was to suppress the coagulants in Terry’s blood, making it

      harder for Terry’s blood to clot normally and making Terry more vulnerable to

      bleeding. Terry suffered internal abdominal bleeds in 2008 and 2010 (“the 2008

      bleed,” “the 2010 bleed,” collectively, “the prior bleeds”). In both cases, doctors

      administered fresh frozen plasma, a substance extracted from donated blood

      that reverses the effect of the blood thinner by supplying the coagulants

      necessary to enable normal blood clotting, administration of which is indicated

      for bleeding coagulopathic patients. Terry recovered from both bleeds.


[4]   On the afternoon of January 25, 2012, Terry presented at the emergency room

      of a local hospital complaining of stomach pain. Harley, the responsible

      physician in the emergency room that day, examined Terry and ordered a CAT

      scan and blood work. The blood work showed Terry’s blood was too thin to

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 2 of 24
      clot, and, at around 9:00 p.m. that evening, the scan results indicated an

      abdominal bleed. Harley did not order fresh frozen plasma.


[5]   Terry was discharged from the emergency room and admitted to the

      nonemergency medical floor around midnight. By 5:00 a.m., Terry was in

      severe distress. Terry died shortly before 6:00 a.m. The death certificate listed

      the causes of death as “acute abdominal bleed,” “atrial fibrillation,” and

      “coronary artery disease.” Appellant’s App. Vol. II, p. 17. Terry suffered from

      several health problems in addition to atrial fibrillation and coronary artery

      disease, including hypertension, congestive heart failure, sleep apnea, obesity,

      and a prior heart attack.


[6]   As required by Indiana’s Medical Malpractice Act, Ind. Code § 34-18-8-4; Reck

      v. Knight, 993 N.E.2d 627, 630 (Ind. Ct. App. 2013), trans. denied, before filing a

      complaint for medical malpractice, Judy submitted a proposed complaint to a

      medical review panel of three physicians. In late November 2015, the panel

      unanimously concluded that Harley “failed to meet the appropriate standard of

      care” and that this failure “was a factor in a lost chance of survival.”

      Appellant’s App. Vol. II, pp. 41, 44, 47. Judy filed her complaint for Terry’s

      wrongful death and her loss of consortium in St. Joseph Superior Court on

      January 4, 2016.


[7]   On March 7, 2016, Judy moved for partial summary judgment on the issues of

      duty, breach, and causation. On September 7, 2016, the trial court ruled for

      Judy, finding no genuine issues of material fact “as to whether [Harley] failed to


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 3 of 24
      meet the appropriate standard of care” by failing to administer fresh frozen

      plasma to Terry, nor as to whether Harley’s negligence “was a substantial factor

      in [Terry] having lost a chance for a better outcome.” Appellee’s App. Vol. II,

      p. 2. The only remaining triable issue was Judy’s damages, resolution of which,

      the trial court noted, would “include a determination of [Terry’s] percentage

      chance of survival before [Harley’s] negligent acts or omissions, and [Terry’s]

      percentage chance of survival after [Harley’s] negligent acts or omissions.” Id.


[8]   On August 29, 2016, a week before the court’s decision on Judy’s motion for

      summary judgment, Harley filed a motion in limine, seeking exclusion at trial of

      inter alia “[a]ny testimony by witnesses or argument by . . . counsel regarding

      Harper’s previous . . . bleeds [in 2008 and 2010] or that administering plasma

      would have prevented Harper’s death.” Id. at 220. On October 3, 2016, the

      court conditionally denied Harley’s motion on that point, ordering that Judy

      was permitted “to provide expert testimony concerning the matters addressed

      [by Harley’s motion], with the understanding that any such testimony should

      explain the rationale behind any such opinion and not simply be a conclusory

      statement.” Appellee’s App. Vol. III, p. 11.

[9]   Judy’s case was tried to a St. Joseph County jury over four days, from October

      11, 2016, through October 14, 2016. Before the jury was seated on the first day

      of trial, the court restated its ruling as to the prior-bleed evidence: “[A]gain I’m

      going to require that [Judy’s] witness be fully able to discuss the prior bleeds

      and how they do or do not differ from [the] one at issue, as well as how the



      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 4 of 24
       amount of fresh frozen plasma administered is or is not sufficient to . . . make a

       difference.” Tr. Vol. II, p. 10.


[10]   Judy called Dr. Robert Collins (“Collins”) and Dr. Stephen Johantgen

       (“Johantgen”), the latter a member of the medical review panel. After hearing

       their testimony on Terry’s prior bleeds, the trial court found no evidence that

       administration of fresh frozen plasma in 2008 “was . . . more probabl[y] than

       not the cause that he was able to walk out of that event[,]” Tr. Vol. III, p. 227,

       and concluded that the 2008-bleed evidence was therefore irrelevant and

       inadmissible. Judy’s Exhibit 1, Terry’s medical records from the 2008 bleed,

       were not admitted, and the jury was instructed that “the 2008 bleed is not

       relevant to any issue the jury is to determine. You[, the jury,] are to make no

       assumptions about [Terry] having survived that event.” Tr. Vol. IV, pp. 194–95.

       The trial court’s ruling covered only the evidence from 2008; evidence on the

       2010 bleed was admitted and not withdrawn from the jury.


[11]   Before closing argument, Judy sought a directed verdict that Terry’s cause of

       death was abdominal bleeding, which the trial court denied. The jury returned a

       verdict for Harley; judgment was entered thereon.

[12]   This timely appeal followed. Judy claims the trial court reversibly erred by

       excluding the 2008-bleed evidence, and by denying her motion for a directed

       verdict as to Terry’s cause of death. Judy seeks a new trial. If we grant the relief

       sought, Harley asks us to consider his cross-appeal: whether the trial court erred




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 5 of 24
       in granting Judy’s motion for summary judgment on duty, breach, and

       causation.


                                             Standard of Review
[13]   The decision to exclude evidence is within the trial court’s sound discretion,

       and we will reverse only for prejudicial abuse of that discretion. Linton v. Davis,

       887 N.E.2d 960, 965 (Ind. Ct. App. 2008), trans. denied. A trial court abuses its

       discretion by ruling contrary to the logic and effect of the facts and

       circumstances before it, or by misinterpreting the law. Id. But we will not

       reverse an erroneous evidentiary ruling if the error was harmless, that is, if the

       probable impact of the erroneously excluded evidence on the trier of fact, in

       light of all the evidence in the case, was sufficiently minor so as not to affect a

       party’s substantial rights. Kimbrough v. Anderson, 55 N.E.3d 325, 334 (Ind. Ct.

       App. 2016), trans. denied. Because Harley’s submission on this issue does not

       address Judy’s assignment of error,1 our review is for prima facie error, error that

       is apparent “at first sight, on first appearance, or on the face of it.” Trinity

       Homes, L.L.C. v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006).


[14]   The decision to deny a motion for a directed verdict, or for judgment on the

       evidence, is reviewed on appeal under the same standard as applied by the trial




       1
         Judy’s position is that the trial court applied the wrong legal standard to the admissibility of the 2008-bleed
       evidence, which she defends with cogent argument and citation to authority. Harley never addresses the legal
       standard applied by the trial court, and his brief on this issue is largely irrelevant and devoid of citation to
       authority but for one passing reference to Evidence Rule 403.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017            Page 6 of 24
       court. Hill v. Rhinehart, 45 N.E.3d 427, 435 (Ind. Ct. App. 2015), trans. denied.

       We consider only the evidence and reasonable inferences therefrom favorable to

       the non-movant. Id. A directed verdict is proper only where there is a total

       failure of proof by the non-movant as to an essential element, or where the

       evidence is without conflict and susceptible of only one interpretation, which is

       favorable to the movant. Id.


                                      Discussion and Decision
[15]   As an initial matter, we note that, from the opinion of the medical review panel

       to the trial court’s order on summary judgment, this case was conceived of as a

       “loss of chance for survival” case. See Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d

       129, 133 (Ind. 2012) (measure of damages); Alexander v. Scheid, 726 N.E.2d 272,

       276 (Ind. 2000) (situations where applicable), 278 (standard of liability); Mayhue

       v. Sparkman, 653 N.E.2d 1384, 1387 (Ind. 1995) (nature of causation analysis

       and how distinct from traditional proximate-cause analysis). The medical

       review panel was unanimous in concluding that Harley’s breach of the standard

       of care “was a factor in a lost chance of survival[,]” Appellant’s App. Vol. II,

       pp. 41, 44, 47, and the trial court unequivocally ruled that Harley’s negligence

       “was a substantial factor in [Terry] having lost a chance for a better outcome.”

       Appellee’s App. Vol. II, p. 2. Damages, which the trial court’s summary

       judgment order again unequivocally identified as the only remaining triable

       issue, would “include a determination of [Terry’s] percentage chance of survival

       before [Harley’s] negligent acts or omissions, and [Terry’s] percentage chance of

       survival after [Harley’s] negligent acts or omissions.” Id.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 7 of 24
[16]   But at some point between the trial court’s September 7, 2016, order on

       summary judgment, and submission of the case to the jury on October 14, 2016,

       plaintiff’s counsel elected to forgo a trial on loss-of-chance damages in favor of

       a trial on traditional proximate causation and full wrongful-death damages. The

       trial court’s preliminary instructions, given without recorded objection from

       either party, instructed the jury that Judy had to prove that Harley’s negligence

       “was a responsible cause”2 of Terry’s death. Tr. Vol. II, p. 22. The court’s final

       instructions, again given without recorded objection, were identical to its

       preliminary instructions in this respect. Tr. Vol. IV, p. 239. Defense counsel

       told the jury in opening statements, “We’re not here on a lost chance of survival

       case.” Tr. Vol. II, p. 51. Plaintiff’s counsel either chose this course or

       acquiesced in its being taken, but does not so much as acknowledge the

       variance in either of the briefs on appeal.


[17]   We review the trial as it was tried. Specifically, we review Judy’s appeal as a

       traditional claim for medical negligence proximately causing death, Scheid, 726

       N.E.2d at 279, rather than the loss-of-chance damages case contemplated by the

       trial court’s summary judgment order. Importantly, our review under the latter

       rubric would be of no use to Judy. Any error we might find would be harmless

       because there was not sufficient evidence presented on which the jury could

       have based a non-speculative loss-of-chance damages award, Wolfe v. Estate of




       2
        Our most recent model jury instructions use this term in place of “proximate cause.” Green v. Ford Motor Co.,
       942 N.E.2d 791, 796 n.1 (Ind. 2011).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017         Page 8 of 24
       Custer by Custer, 867 N.E.2d 589, 599 n.10, 602 (requiring some evidence

       permitting quantification of increased risk of harm), and no probability that the

       jury would have done so without being instructed to.


[18]   The parties accepted the trial court’s ruling that Harley’s failure to administer

       fresh frozen plasma to Terry fell beneath the standard of care. Judy then had to

       show (or rather, chose to have to show) that Harley’s negligence proximately

       caused Terry’s, and derivatively her injuries, Mayhue, 653 N.E.2d at 1386. In

       particular, because a proximate cause is a cause-in-fact, it was Judy’s burden to

       show that, but for Harley’s negligence, Terry probably would have survived the

       events of January 25 and 26, 2012.


       I. The Trial Court Did Not Reversibly Err in Excluding the 2008-Bleed
                                    Evidence

[19]   We begin by defining the scope of the trial court’s ruling as to the 2008-bleed

       evidence. We next note the trial court’s basis for its ruling. We then conclude

       that Judy waived her claim on appeal by failing to raise it below, and that any

       error was harmless in any case.


                                              A. Scope of Ruling

[20]   First, Collins was not permitted to opine as to any causal connection between

       the administration of fresh frozen plasma in 2008 and Terry’s survival in 2008,

       nor to base his opinion as to Terry’s chances in 2012 on the 2008 evidence. But,

       very importantly, this ruling was not entered on alleged irrelevancy, but as a

       discovery sanction for plaintiff’s counsel’s failure to disclose until the first day


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 9 of 24
       of trial that Collins’s opinion on this matter would be sought. See Ind. Trial

       Rule 26(E)(1)(b) (continuing duty of proponent of expert testimony to

       supplement prior discovery responses as to “subject-matter” and “substance” of

       testimony expected); O’Banion v. Ford Motor Co., 43 N.E.3d 635, 646 (Ind. Ct.

       App. 2015), trans. denied (exclusion of new opinion appropriate remedy for late

       disclosure of newly formed expert opinions). The trial court further barred

       Collins from testifying as to how quickly fresh frozen plasma was administered

       to Terry in the 2008 bleed because those facts “support[ed] an opinion that

       [couldn’t] be admitted [because of the trial courts’s earlier ruling concerning the

       irrelevancy of the 2008 bleed as presented] . . . [namely] that rapid

       administration was what resulted in the positive outcome in 2008. Tr. Vol. II, p.

       122. Plaintiff’s counsel was permitted to elicit Collins’s testimony as to the

       sequencing and timing of administering fresh frozen plasma in general, without

       specific reference to the administration of fresh frozen plasma in 2008.


[21]   Second, the following testimony of Johantgen drew a conclusion from the

       administration of fresh frozen plasma in 2008 that the trial court would later

       prohibit the jury from applying to the 2012 bleed by the subject ruling:

               Q.               Do you have an opinion as to whether the fresh
                                frozen plasma given to . . . Mr. Harper in 2009 was
                                a causative reason for him being able to survive that
                                bleed?

               A.               Yes.

               Q.               What is your opinion?



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 10 of 24
               A.               Yes, certainly. Yes, I believe that that was
                                certainly—certainly helpful in his—in his survival.

               Q.               Okay.

               A.               Couldn’t actually predict what happened if he did
                                not get it, but it certainly was the thing to do, and
                                certainly further[ed] his chances of survival.


       Tr. Vol. II, p. 228. The trial court’s later ruling instructed the jury “to make no

       assumptions about [Terry] having survived” in 2008. Tr. Vol. IV, pp. 194–95.


[22]   Third, Dr. Gregory Henry (“Henry”), testifying for the defense, drew the

       opposite conclusion from the administration of fresh frozen plasma in 2008:


               Q.               Do you believe that the fresh frozen plasma that
                                [Terry] was given in 2008 was the reason he
                                survived the incident?

               A.               Unlikely. . . .

               Q.               [W]ould you draw any possible causal connection
                                between the administration of four units of fresh
                                frozen plasma to Mr. Harper in 2008 and the fact
                                that he survived[?] . . .

               A.               I think that he survived, he got the medicine.
                                There’s nothing that indicates that medicine
                                actually caused the survival. They . . . are
                                independently occurring events.


       Tr. Vol. III, pp. 38–40. The trial court would later also prohibit the jury from

       applying this conclusion to the 2012 bleed in its later ruling instructing the jury




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 11 of 24
       “to make no assumptions about [Terry] having survived” in 2008. Tr. Vol. IV,

       pp. 194–95.


[23]   Fourth, Judy’s Exhibit 1, Terry’s medical records from the 2008 bleed, was not

       admitted. The records described diagnoses of among other things,

       hypocoagulability due to the blood thinner and spontaneous bleeding, as well as

       Terry’s treatment with fresh frozen plasma and his subsequent recovery.

       Appellant’s App. II, pp. 18–30. Exhibit 1 did not make any express causal

       connection between the former and the latter. Exhibit 1 also recorded the

       timing of the various steps in Terry’s treatment.


[24]   Finally, the trial court permitted plaintiff’s counsel to rely on the rate of

       administration of fresh frozen plasma in 2008 so long as causation was not

       implied:


               [Court:]         I’m permitting [plaintiff’s counsel] to . . . only refer
                                to the rate evidence, not tie it up to [Terry’s]
                                survival, he walked out the door, anything. Just that
                                it’s possible—“You’ve heard evidence that it’s
                                possible to”—

               [Counsel:]       The rate? The rate? Okay. . . .

               [Court:]         Not [in Terry’s particular case] even. That it is
                                possible to receive and administer fresh frozen
                                plasma, four units of it, within approximately 80
                                minutes. Okay? Don’t tie it up with him or the
                                survival.


       Tr. Vol. IV, p. 191.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 12 of 24
                                              B. Basis of Ruling

[25]   As outlined above, Collins’s opinion on causation with respect to the 2008

       bleed was excluded as a discovery sanction. Once Collins’s testimony had been

       so limited, the trial court, relying in part on its ruling on Harley’s motion in

       limine, required some other evidence of causation—specifically, evidence that

       constituted or permitted proof of causation by a preponderance of the

       evidence—to permit admission of the 2008-bleed evidence without limitation:


               [Court:]         [T]here was an objection that [Collins] was offering
                                an opinion—he was going to—wanted to offer an
                                opinion, about something that [plaintiff’s counsel]
                                hadn’t disclosed. And my feeling was if [Collins]
                                was allowed to testify to the facts and there wasn’t
                                some other expert who could support—supply the
                                causative element, that the jury would just be left to
                                believe it could infer on its own . . . .

                                [T]he problem is it’s—it’s—[the jury] can’t assess
                                what to make of th[e] factual data [from 2008].
                                They are not physicians. And nobody has testified
                                that the administration of fresh frozen plasma
                                would have, you know—was the reason—was
                                probably the cause of—more probabl[y] than not
                                the cause that [Terry] was able to walk out of [the
                                hospital in 2008]. So the jury can’t supply that. And
                                to have that data hanging out there to either directly
                                or suggest inferentially that the jury can make that
                                assessment is not proper. . . .

                                The only reason for having [the 2008 bleed] to be
                                considered by the jury is for them to draw the
                                inference that the fresh frozen plasma was the
                                reason [Terry survived in 2008]. And there’s got to

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 13 of 24
                                be medical or expert testimony that supports that.
                                And Dr. Collins, if he had th[e] opinion [that fresh
                                frozen plasma caused Terry’s survival in 2008],
                                hadn’t disclosed it. And this Dr. Johantgen was shy
                                of that [by testifying only that fresh frozen plasma
                                was a “causative reason,” rather than a “responsible
                                cause,” of Terry’s survival in 2008]. And it’s up to
                                the jury to then make that inference. And they can’t
                                do that. That’s not appropriate.


       Tr. Vol. III, pp. 225, 227–28.


                                       C. Waiver and Harmlessness

[26]   For her appeal, Judy claims that the trial court improperly required proof of

       causation by a preponderance of the evidence as a predicate to admission of the

       2008-bleed evidence; that the 2008-bleed evidence was relevant under Evidence

       Rule 401; that its probative value was not substantially outweighed by the

       dangers of Evidence Rule 403; and that exclusion “eviscerated” Judy’s case for

       causation as to the 2012 bleed. Appellant’s Br. at 14.


[27]   Judy waived this line of attack on the trial court’s ruling by failing to raise it

       below. See Perez v. Bakel, 862 N.E.2d 289, 295 (Ind. Ct. App. 2007). Specifically,

       plaintiff’s counsel never voiced a single note of opposition to proof of causation

       by a preponderance as a predicate for admission of the 2008-bleed evidence.

       Defense counsel proposed the standard on the first day of trial before the jury

       was seated and preliminarily instructed. Tr. Vol. II, p. 5. Plaintiff’s counsel was

       silent. The court then adopted defense counsel’s proposed standard: “I’m going

       to require that your witness be fully able to discuss the prior bleeds and . . . how

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 14 of 24
       the amount of fresh frozen plasma administered is or is not sufficient to be—at

       a level to make a difference.” Id. at 10 (emphasis added). Again plaintiff’s counsel

       was silent.


[28]   After Collins and Johantgen had testified, and the parties debated whether

       Johantgen’s testimony had laid a sufficient foundation for admission of the

       2008-bleed evidence, the court asked plaintiff’s counsel directly, “What

       consequence is to be made of the fact that Dr. Johantgen didn’t testify to the

       level of evidentiary significance that he needed to [by testifying that fresh frozen

       plasma in 2008 was a “causative reason” for Terry’s survival but not a

       “responsible cause”].” Tr. Vol. III, p. 224. Plaintiff’s counsel responded that it

       did not have “any effect” because Harley’s witnesses


               talked about all of the readings in the records. Now to not admit
               that stuff, it’s been discuss ed not only in our cases but with their
               own expert. . . . [N]ow it’s out there. And I think it’s only fair to
               put those records, both ’08 and ’10, in, Your Honor.


       Id. at 224. At best, counsel’s response was a simple failure to object in the terms

       now argued on appeal.

[29]   We acknowledge that this standard did not appear in the trial court’s order on

       Harley’s motion in limine. Defense counsel cited no authority for its application

       when it was proposed, and the trial court did not disclose the legal basis for its

       adoption. But it was precisely for this reason that contemporaneous objection

       was required to preserve the issue properly for review. Particularly in a case

       such as this, where the claims to be tried—and thus the grounds of evidentiary

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 15 of 24
       relevancy and admission—shifted repeatedly without notice or explanation in

       the record, we are not in a position to review the trial court’s exercise of its

       discretion in light of the facts and circumstances before it, because we do not

       have a full account of those facts and circumstances before us absent a record

       developed by contemporaneous objection. In short, if plaintiff’s counsel thought

       the trial court was applying an incorrect standard, he ought to have afforded to

       the trial court the opportunity to correct or explain its application. Judy will not

       be heard on this issue for the first time on appeal.


[30]   Waiver notwithstanding, however, review on the merits would be of no help to

       Judy because any error was harmless in light of all the evidence actually

       admitted in the case. What she characterizes as the “eviscerat[ion]” of her case

       was no such thing. Appellant’s Br. at 14.


[31]   Judy argues that the trial court’s ruling precluded her from presenting evidence

       on the rate of administration of fresh frozen plasma, specifically evidence that

       Terry could have received enough fresh frozen plasma in time to save his life. It

       was one of Harley’s chief arguments that Terry’s bodyweight was too high, and

       his general health too fragile, for sufficient amounts of fresh frozen plasma to be

       administered rapidly enough to prevent Terry’s death. In 2008, Terry received

       four units of fresh frozen plasma in one hour and twenty-one minutes. But this

       and other evidence of timing and rate of administration, per the trial court’s

       order permitting it from Collins and per plaintiff’s counsel’s examination of

       witnesses other than Collins, was put before the jury at closing argument:



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 16 of 24
        Dr. Harley admitted that if he had chosen to give fresh frozen
        plasma . . . Terry could have gotten it in two to three hours. Dr.
        Johantgen estimated it would take 60 to 90 minutes. Dr. Collins .
        . . was questioned by [defense counsel] in his deposition and he
        agreed . . . that the best you could hope for in 2012 was 45
        minutes from the time of ordering to [infusion]. . . .

        If you . . . take their 45 minutes to 90 minutes, . . . that would
        have given Terry at least six hours of exposure. And even under
        their own expert’s testimony he could have survived . . . .

        [Collins] said that [Terry] was healthy enough to have received
        the fresh frozen plasma. He says that the vital signs suggest
        [Terry] would have done very well with that[.] . . .

        [Henry, one of Harley’s experts,] said if you hang a couple of
        those bags[, i.e., units of fresh frozen plasma,] you can process it
        maybe in a couple of hours. He also talked about that it’s possible
        to get . . . four units infused within an hour and 21 minutes.

        Even if you use their own documentation on [the timing
        question], it was clear that if Dr. Harley . . . had ordered [fresh
        frozen plasma] when he should have, after the CAT scan results,
        he had enough time go get the fresh frozen plasma and to make it
        therapeutic. Dr. Collins said that clearly. Dr. Johantgen said that
        clearly.

        Henry . . . said that you can get four units of fresh frozen plasma
        within an hour and 21 minutes. So if you—if you say the CAT
        scan’s at 9:15. . . . Go from 9:15 to 10:30. . . . [T]here’s four
        units. Then you go from 10:30 . . . to 12:00, now he’s got eight
        units. . . . And then [by] 1:30 to 3:00, he’s got 16 units. . . . It’s
        only three o’clock in the morning, two hours before he dies. He
        clearly, under their own evidence, could have gotten enough
        fresh frozen plasma to have survived.


Tr. Vol. IV, pp. 201–02, 205, 207, 231–33 (emphasis added).


Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 17 of 24
[32]   In light of all the evidence as to timing received by the jury, we cannot perceive

       what material facts were actually withheld from it. Judy responds that

       “argu[ing] in general terms” about four units in circa eighty minutes was not the

       same “as being able to argue that this particular patient” could withstand that rate

       of administration, Appellant’s Reply Br. at 11, but, as recited above, Judy did

       present evidence from Collins about Terry’s capacity to receive plasma. And

       Terry’s capacity to tolerate administration of fresh frozen plasma at a certain

       rate in 2008 was only weakly probative of his same capacity in 2012, as it was

       not seriously contested that Terry’s comorbidities had worsened significantly in

       that period.


[33]   Finally, we see no or only minimal probability that the outcome in this case

       would have been different had the jury been permitted to draw an inference as

       to Terry’s death in 2012 from Terry’s survival in 2008. As contemplated by the

       trial court’s subject ruling, Terry’s survival in 2008 was relevant to his death in

       2012 only if the administration of fresh frozen plasma in 2008 played a role in

       his survival, and only to the extent that a similar outcome could have been

       expected in 2012. The only evidence for the former was Johantgen’s testimony

       that administration of fresh frozen plasma in 2008 was “certainly helpful” to

       Terry. Tr. Vol. II, p. 228. Particularly in the absence of evidence that Terry was

       in mortal danger in 2008 (i.e., without medical intervention, Terry probably

       would have died in 2008), Johantgen’s testimony was only weakly probative of

       the effect fresh frozen plasma would have had in 2012. And there was little

       evidence supporting direct comparison between 2008 and 2012: the bleeds were


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 18 of 24
       of different natures, the protocols for administering fresh frozen plasma had

       changed, and Terry was a changed patient. The question was never whether

       fresh frozen plasma can be life-saving in the abstract; the only question was

       whether fresh frozen plasma would have saved Terry’s life on January 25 and

       26, 2012.


[34]   In sum, the 2008-bleed evidence, to the extent that it was relevant, probative,

       and then actually excluded, was cumulative of Judy’s strongest evidence: the

       opinions of Collins and Johantgen, established through extensive direct

       testimony and defended by plaintiff’s counsel’s extensive cross-examination of

       Harley’s experts, that administration of fresh frozen plasma in 2012 more likely

       than not would have prevented Terry’s death. But the jury was not persuaded.

       Judy has not carried her burden in this appeal to show any reasonable

       likelihood of a different outcome had the jury been permitted to consider that

       fresh frozen plasma was “certainly helpful” to Terry in 2008. Tr. Vol. II, p. 228.


       II. The Trial Court Did Not Err in Failing to Grant Judy’s Motion for
                                a Directed Verdict

[35]   Judy claims next that the trial court reversibly erred in failing to grant her

       motion for a directed verdict as to Terry’s cause of death. Because the evidence

       was neither without conflict nor susceptible of only one interpretation favorable

       to Judy, we disagree. Specifically, a reasonable jury could have concluded that

       Judy had not proved by a preponderance of the evidence that intra-abdominal

       bleeding was the sole cause of Terry’s death.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 19 of 24
[36]   There was no autopsy, and the medical review panel was unable to determine a

       cause of death. The death certificate listed Terry’s three causes of death as

       “acute abdominal bleed,” “atrial fibrillation,” and “coronary artery disease.”

       Appellant’s App. Vol. II, p. 17. Collins and Johantgen testified that the cause of

       death was the abdominal bleed. But Henry testified that it was not possible to

       identify one probable cause of death in Terry’s case, and that the “most

       probable cause of death” was some combination of the abdominal bleed,

       ventricular fibrillation, and medication-induced suppression of cardiac function.

       Tr. Vol. III, p. 102. Dr. James Walter, another expert for Harley, testified that

       the “two most likely causes of death” were the abdominal bleed and myocardial

       infarction. Tr. Vol. IV, p. 31.


[37]   This evidence at least permits a reasonable inference that the abdominal bleed

       was not the sole or sufficient cause of Terry’s death, but was only fatal in

       combination with other factors. Moreover, the evidence given by the expert

       witnesses as to the facts underlying their opinions could have led the jury to

       reasonably favor another causal factor over the abdominal bleed. It was not

       error for the trial court to leave the question where it was: within the province

       of the jury.


                                                 Conclusion
[38]   Judy waived her challenge to the trial court’s exclusion of the 2008-bleed

       evidence, and any error was harmless. The trial court properly denied Judy’s

       motion for a directed verdict on Terry’s cause of death. Its judgment is therefore

       affirmed, and Harley’s cross-appeal is moot.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 20 of 24
[39]   Affirmed.


       Altice, J., concurs.


       Kirsch, J., dissents with opinon.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 21 of 24
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Judy Harper, Estate of Terry D.                          Court of Appeals Case No.
       Harper, II, ex rel. Judy Harper,                         71A03-1611-CT-2523

       Appellants-Plaintiffs,

               v.

       Bruce Harley, M.D.,
       Appellee-Defendant.



       Kirsch, Judge, dissenting.


[40]   In 2008, Terry Harper (“Terry”) who had atrial fibrillation, a heart condition

       managed with blood-thinning medication, suffered an abdominal bleed and

       went to the hospital emergency room. There, he was treated with fresh frozen

       plasma. Fresh frozen plasma is extracted from donated blood. It supplies the

       coagulants necessary to enable normal blood clotting, thus mitigating the effect

       of the blood thinner medication. Terry survived.


[41]   In 2010, Terry continued to suffer from atrial fibrillation. He, again, suffered an

       abdominal bleed, and again, he went to the hospital emergency room where,

       again, he was treated with fresh frozen plasma. Terry again survived.


[42]   In 2012, Terry suffered another abdominal bleed. He went to the emergency

       room with the same symptoms as in 2008 and 2010, but he received different

       medical treatment. On this occasion, he was treated in the hospital emergency
       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 22 of 24
       room by Dr. Bruce Harley, the defendant in this action. Dr. Harley did not

       treat Terry with fresh frozen plasma. Rather, he discharged Terry from the

       emergency room to a non-emergency medical unit where Terry died a few

       hours later. The death certificate listed the causes of death as “acute abdominal

       bleed,” “atrial fibrillation,” and “coronary artery disease.” Appellant’s App.

       Vol. II at 17.


[43]   In 2015, a medical review panel of three doctors convened under Indiana’s

       Medical Malpractice Act unanimously concluded that Harley “failed to meet

       the appropriate standard of care” and that his failure “was a factor in a lost

       chance of survival.” Appellant’s App. Vol. II, at 41, 44, 47.


[44]   Terry’s wife, Judy, filed a Complaint for medical malpractice and a motion for

       partial summary judgment on the issues of duty, breach, and causation. The

       trial court entered partial summary judgment finding no genuine issues of

       material fact “as to whether [Harley] failed to meet the appropriate standard of

       care” by failing to administer fresh frozen plasma to Terry, nor as to whether

       Harley’s negligence “was a substantial factor in [Terry] having lost a chance for

       a better outcome.” Appellee’s App. Vol. II at 2. The only remaining triable

       issue was Judy’s damages which, the trial court noted, would “include a

       determination of [Terry’s] percentage chance of survival before [Harley’s]

       negligent acts or omissions, and [Terry’s] percentage chance of survival after

       [Harley’s] negligent acts or omissions.” Id.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 23 of 24
[45]   Harley filed a motion in limine, seeking to exclude “[a]ny testimony by

       witnesses or argument by . . . counsel regarding [Terry]’s previous . . . bleeds [in

       2008 and 2010] or that administering plasma would have prevented [Terry]’s

       death.” Id. at 220. The trial court conditionally denied Harley’s motion,

       ordering that Judy was permitted “to provide expert testimony concerning the

       matters addressed [by Harley’s motion], with the understanding that any such

       testimony should explain the rationale behind any such opinion and not simply

       be a conclusory statement.” Appellee’s App. Vol. III at 11.


[46]   Prior to trial, the court restated its ruling as to the prior-bleed evidence:

       “[A]gain I’m going to require that [Judy’s] witness be fully able to discuss the

       prior bleeds and how they do or do not differ from [the] one at issue, as well as

       how the amount of fresh frozen plasma administered is or is not sufficient to . . .

       make a difference.” Tr. Vol. II at 10. At trial, the court excluded the evidence

       of the decedent’s prior abdominal bleed in 2008 and its treatment.


[47]   I believe that the trial court erred in excluding the evidence of Terry’s 2008

       abdominal bleed. The evidence of this bleed, and its treatment, like that

       suffered by Terry in 2010, was relevant to the circumstances of Terry’s 2012

       abdominal bleed which led to his death. The jury should have heard and

       considered this evidence in order to reach its verdict.


[48]   Accordingly, I respectfully dissent.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2523 | September 8, 2017   Page 24 of 24
