MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jan 21 2020, 8:53 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
David J. Cutshaw                                         Karl L. Mulvaney
Gabriel A. Hawkins                                       Margaret M. Christensen
Cohen & Malad, LLP                                       Bingham Greenebaum Doll LLP
Indianapolis, Indiana                                    Indianapolis, Indiana

                                                         Peter H. Pogue
                                                         Beth A. Behrens
                                                         Schultz & Pogue, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Morgen R. Bosler,                                        January 21, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CT-612
        v.                                               Appeal from the Marion Superior
                                                         Court
John Goldenberg, M.D., and                               The Honorable Michael D. Keele,
Otolaryngology Associates,                               Judge
LLC,                                                     Trial Court Cause No.
Appellees-Defendants.                                    49D07-1707-CT-27075




Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020                   Page 1 of 12
                                       Statement of the Case
[1]   Morgen R. Bosler appeals the trial court’s judgment entered after a jury verdict

      in favor of John Goldenberg, M.D. and Otolaryngology Associates, LLC

      (collectively “Dr. Goldenberg”) on Bosler’s complaint alleging medical

      malpractice for having misdiagnosed her and having performed unnecessary

      sinus surgeries. On appeal Bosler claims to have been ambushed by the trial

      deposition testimony of an expert witness. The question presented is whether

      the trial court abused its discretion when it denied her motion to exclude the

      challenged testimony. Finding no error, we affirm.


                                 Facts and Procedural History
[2]   In February 2013, Bosler sought treatment at a Walgreen’s Healthcare Clinic

      for acute sinusitis. She was given a prescription for antibiotics, and she was

      instructed to take over-the-counter decongestants and to use a Neti pot. On

      March 18, Bosler sought further treatment with her personal physician, Dr.

      Robert Evard, who diagnosed her with acute sinusitis. Dr. Evard prescribed a

      two-week course of a different antibiotic. On April 1, Dr. Evard found that

      Bosler’s sinusitis had not improved, and he prescribed a ten-day course of a

      third antibiotic. Dr. Evard also ordered a CT scan of Bosler’s sinuses. After

      Dr. Evard reviewed the CT scan, he prescribed yet another round of antibiotics.

      And on April 12, Dr. Evard prescribed a steroid nasal spray and a saline nasal

      spray. Dr. Evard also referred Bosler to Dr. Goldenberg, an ear, nose, and

      throat (“ENT”) specialist.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 2 of 12
[3]   On April 15, Bosler first saw Dr. Goldenberg, and she told him that she had

      “been on 4 rounds of antibiotics, steroids, [and] nasal steroid sprays and

      inhalers.” Tr. Vol. 6 at 97. Dr. Goldenberg discussed with Bosler her

      continued symptoms, and he reviewed her CT scan. Dr. Goldenberg then

      talked to Bosler about the possibility of trying Functional Endoscopic Sinus

      Surgery (“FESS”), and Bosler agreed to try the surgery. Dr. Goldenberg

      performed the FESS on May 1, and, on September 6, he performed another

      surgery on Bosler. Despite the surgeries, Bosler’s symptoms continued.


[4]   On October 30, 2014, Bosler filed a proposed complaint alleging medical

      malpractice against Dr. Goldenberg with the Indiana Department of Insurance.

      Bosler alleged that Dr. Goldenberg had misdiagnosed her as having chronic

      rhinosinusitis (“CRS”) and performed unnecessary surgeries. A unanimous

      medical review panel issued an opinion in Dr. Goldenberg’s favor.


[5]   On December 4, 2017, Dr. Goldenberg named Dr. James Stankiewicz as an

      expert witness, and Bosler deposed Dr. Stankiewicz on August 15, 2018

      (“discovery deposition”). Thereafter, Dr. Goldenberg gave Dr. Stankiewicz the

      depositions of several witnesses to review, namely, Bosler; Bosler’s expert

      witness, Dr. Victor Mokarry; Dr. Robert Youkilis; Dr. Stephen McTigue; and

      Dr. Kyle Loy. And on October 4, Dr. Goldenberg supplemented his answers to

      interrogatories.


[6]   The court set the trial for February 26, 2019. Dr. Stankiewicz was unavailable

      to testify in person during the trial, so, on January 29, Dr. Goldenberg took his


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 3 of 12
      trial deposition (“trial deposition”). On February 5, Dr. Goldenberg filed a

      motion to separate witnesses at trial, which also “preclude[d] any expert

      witness to be called to testify from reviewing the preserved testimony of any

      other witness.” Appellant’s App. Vol. 2 at 50. The trial court granted that

      motion.


[7]   On February 13, Bosler filed a “Motion to Bar Testimony of Defendants’

      Expert, James Stankiewicz, M.D., or Alternatively, to Limit and Strike

      Portions of the Testimony of Stankiewicz and Exclude Plaintiff’s Expert Victor

      P. Mokarry, M.D. from Order for Separation of Witnesses.” Id. at 52. Bosler

      alleged that, in his trial deposition, Dr. Stankiewicz had changed his testimony

      in several respects from his discovery deposition. Bosler asserted that, without

      permitting her expert witness to review the new testimony, she would be unable

      to prepare adequately for trial. And Bosler argued that Dr. Goldenberg had

      violated Indiana Trial Rule 26(E) when he did not supplement his discovery

      responses to reflect Dr. Stankiewicz’ changed testimony. The trial court denied

      Bosler’s motion. At the conclusion of a six-day trial, a jury found in favor of

      Dr. Goldenberg, and the trial court entered judgment accordingly. This appeal

      ensued.


                                     Discussion and Decision
                                                    Overview

[8]   Bosler contends that the trial court abused its discretion when it denied her

      motion to exclude portions of Dr. Stankiewicz’ trial deposition. The decision to


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 4 of 12
       admit or exclude evidence lies within the sound discretion of the trial court, and

       we will not disturb the trial court’s decision absent a showing of an abuse of

       that discretion. Oaks v. Chamberlain, 76 N.E.3d 941, 946 (Ind. Ct. App. 2017).

       An abuse of discretion occurs when the trial court’s decision is against the logic

       and effect of the facts and circumstances before the court or if the court has

       misinterpreted the law. Id.


[9]    Bosler contends that Dr. Stankiewicz proffered new opinions in his trial

       deposition and that she was prejudiced by the admission of that testimony. In

       particular, Bosler maintains that Dr. Goldenberg violated Indiana Trial Rule

       26(E), which provides in relevant part that a party is under a duty to

       supplement his response with respect to any question directly addressed to the

       substance of an expert witness’ testimony. Bosler asserts that Dr. Goldenberg

       was required to notify her of changes in Dr. Stankiewicz’ testimony and failed

       to do so. Bosler contends that, as a result, “Bosler’s expert had no opportunity

       to respond” to the changed testimony, and Bosler was not able to prepare

       adequately for trial. Appellant’s Br. at 13.


[10]   Bosler sets out five instances of Dr. Stankiewicz’ alleged changed testimony,

       which we restate as follows:


               1. In his discovery deposition, Dr. Stankiewicz testified that “the
               surgery that would be planned in this circumstance would be an
               ethmoidectomy, maybe a partial ethmoidectomy, and opening
               the natural drainage to the maxillary sinuses.” Appellant’s App.
               Vol. 2 at 100. But, in his trial deposition, Dr. Stankiewicz
               testified that he was “changing” his testimony on this issue. Tr.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 5 of 12
        Vol. 6 at 57. He stated that the type of surgery he would have
        performed would “depend[] on what [he saw] in surgery.” Id.

        2. In his discovery deposition, Dr. Stankiewicz testified that
        Bosler’s symptoms post-surgeries were “related” to the surgeries
        performed by Dr. Goldenberg. Appellant’s Br. at 10. In his trial
        deposition, when asked whether he would “stand by that
        testimony,” Dr. Stankiewicz testified that he was “changing it.”
        Id. at 11.

        3. In his discovery deposition, Dr. Stankiewicz testified that he
        did not consider Bosler’s pre-surgery sinusitis “significant.”
        Appellant’s App. Vol. 2 at 98. But Dr. Stankiewicz changed his
        testimony in his trial deposition.

        4. In his discovery deposition, Dr. Stankiewicz testified that
        “optimal medical therapy” for CRS included a course of
        antibiotics and four weeks of nasal decongestants. Id. at 81. In
        his trial deposition, Dr. Stankiewicz testified that “optimal or
        maximal medical therapy is whatever you want it to be.” Tr.
        Vol. 5 at 185.

        5. At the time of his discovery deposition, Dr. Stankiewicz had
        not yet reviewed Dr. Youkilis’ deposition testimony, and Dr.
        Stankiewicz did not disclose any opinion about whether Dr.
        Youkilis’ records had indicated that Bosler had empty nose
        syndrome. In his trial deposition, Dr. Stankiewicz testified that
        Dr. Youkilis’ records did not indicate that Bosler had any
        symptoms of empty nose syndrome.


We address each alleged instance of Dr. Stankiewicz’ changed testimony in

turn.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 6 of 12
                                         Type of Surgery to Perform

[11]   With respect to her first allegation, that Dr. Stankiewicz changed his testimony

       regarding the type of surgery he would have performed, Bosler mischaracterizes

       Dr. Stankiewicz’ discovery deposition testimony by taking it out of context. In

       his discovery deposition, Dr. Stankiewicz was asked to explain why he would

       have performed surgery on Bosler, and he responded as follows:


               She’s got ethmoid sinus disease. . . . [An ethmoidectomy is]
               indicated as far as—if this patient had—at a theoretical [sic], had
               everything that we have talked about with maximal medical
               therapy, endoscopy, the surgery that would be planned in this
               circumstance would be an ethmoidectomy, maybe a partial
               ethmoidectomy, . . . and that’s part and process of what you do.

                                                       ***

               On top of that, if you go in and it’s three weeks later and there’s a
               whole bunch more swelling and disease present, then you attend
               to those sinuses as you need to—to do so. So that’s a judgment call
               at the time of surgery.


       Appellant’s App. Vol. 2 at 100 (emphases added). And in his trial deposition,

       Dr. Stankiewicz testified that he would have gone into surgery “planning” to

       perform a partial ethmoidectomy, but that the actual surgery he would perform

       was “totally dependent upon what [he] saw at surgery.” Tr. Vol. 6 at 56.


[12]   Thus, contrary to Bosler’s assertion on appeal, Dr. Stankiewicz’ testimony in

       both depositions was that he would have planned on one procedure but that

       that procedure was subject to change based on what he saw. While Dr.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 7 of 12
       Stankiewicz did state in his trial deposition that he was “changing” his opinion

       on this question, he was clearly mistaken. He only said that because Bosler’s

       counsel read an out-of-context excerpt from his discovery deposition and asked

       him whether he was going to “stick with that testimony” or “change it.” Id. at

       57. Because Dr. Stankiewicz did not, in fact, change his testimony, Bosler

       cannot show that she was prejudiced thereby.


                                     Bosler’s Symptoms Post-surgeries

[13]   In support of this contention on appeal, Bosler excerpts a portion of Dr.

       Stankiewicz’ trial deposition where he stated that he was “changing” his

       opinion on whether Bosler’s symptoms post-surgery were related to her

       surgeries. Appellant’s Br. at 11. But Bosler’s argument fails for two reasons.

       First, Bosler cites to a page of the transcript that does not include the alleged

       testimony. Second, and moreover, Bosler simply asserts, without any

       explanation or citation to the record, that Dr. Stankiewicz’ testimony changed

       when he gave his trial deposition. Accordingly, Bosler has not demonstrated

       that she was prejudiced by this alleged changed testimony.


                                              Significant Disease

[14]   Bosler also contends that Dr. Stankiewicz changed his testimony regarding

       whether her sinusitis was “significant.” In support of this contention on appeal,

       Bosler excerpts portions of Dr. Stankiewicz’ testimony from both his discovery

       and trial depositions that are entirely consistent and show no changed opinion

       regarding the significance of Bosler’s pre-surgery disease. For the first time in


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 8 of 12
       her reply brief, Bosler cites to a portion of Dr. Stankiewicz’ trial deposition

       purporting to show a changed opinion. The law is well settled that grounds for

       error may only be framed in an appellant’s initial brief and, if addressed for the

       first time in the reply brief, they are waived. Monroe Guar. Ins. Co. v. Magwerks

       Corp., 829 N.E.2d 968 977 (Ind. 2005). Because she raised this purported

       change for the first time in her reply brief, which deprived Dr. Goldenberg of an

       opportunity to respond to it, Bosler has waived this issue for our review.


                                         Optimal Medical Therapy

[15]   In support of her contention that Dr. Stankiewicz changed his testimony

       regarding optimal medical therapy in this case, Bosler again misconstrues Dr.

       Stankiewicz’ discovery deposition testimony by taking it out of context. In his

       discovery deposition, Dr. Stankiewicz was questioned about a textbook he had

       written and whether he stood by his opinion in that textbook that “[c]urrent

       optimal medical therapy includes at least a four-week course of antibiotics,

       nasal decongestants, topical nasal steroids, and, possibly, systemic steroids.”

       Appellant’s App. Vol. 2 at 81. In that deposition, Dr. Stankiewicz

       acknowledged that he agreed that the “optimal medical therapy” for CRS

       included “a course of antibiotics” and “a four-week course of nasal

       decongestants” and topical steroids. Id. at 81. However, he also testified that

       “the whole question of what is optimal medical therapy is basically on a

       guideline and is left up to the practitioner as far as how they want to approach

       that.” Id. at 80 (emphasis added). Accordingly, Dr. Stankiewicz’ trial

       deposition testimony stating that “optimal or maximized medical therapy is

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 9 of 12
       whatever [the physician] wants it to be” was not changed testimony, and Bosler

       has not shown that she was prejudiced thereby. Tr. Vol. 5 at 185.


                                            Empty Nose Syndrome

[16]   Finally, at the time of Dr. Stankiewicz’ discovery deposition, he had not yet

       reviewed Dr. Youkilis’ deposition testimony, so Dr. Stankiewicz did not have

       an opinion whether Dr. Youkilis’ records indicated that Bosler had empty nose

       syndrome. However, Dr. Stankiewicz was asked whether he had “any basis to

       disagree with Dr. Youkilis’ diagnosis” of empty nose syndrome, and he

       explained his reasons for “question[ing]” that diagnosis. Appellant’s App. Vol.

       2 at 91. Dr. Stankiewicz testified further that it was unlikely that Bosler had

       empty nose syndrome because “the criteria for [empty] nose [syndrome] in her

       circumstance [was] inapplicable . . . because her inferior turbinates were intact.”

       Id. In his trial deposition, Dr. Stankiewicz testified that he did not “notice”

       anything in Dr. Youkilis’ records to indicate that Bosler had symptoms of

       empty nose syndrome. Tr. Vol. 6 at 70. Bosler contends that that opinion

       given at trial prejudiced her because her expert “had no opportunity to

       respond.” Appellant’s Br. at 13. We cannot agree.


[17]   Bosler has not demonstrated that her ability to prepare her expert witness for

       trial was negatively impacted by Dr. Stankiewicz’ failure to disclose his

       opinions regarding Dr. Youkilis’ records prior to his trial deposition. First, Dr.

       Stankiewicz was clear in his discovery deposition that he disagreed with Dr.

       Youkilis and did not think that Bosler had empty nose syndrome. Bosler does

       not explain why Dr. Stankiewicz’ subsequent confirmation of that opinion after
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 10 of 12
       reviewing Dr. Youkilis’ records required any change in her trial preparation.

       Second, even Dr. Youkilis testified that, while his “impression” was that Bosler

       had empty nose syndrome, that was only a “possible diagnosis” and he could

       not “tell [Bosler] exactly what was wrong.” Tr. Vol. 5 at 158. Dr. Youkilis

       testified further that he did not have “a definitive diagnosis of anything” for

       Bosler. Id. at 159. Given Dr. Youkilis’ testimony, Bosler cannot show that she

       was prejudiced by Dr. Stankiewicz’ trial deposition testimony because it was

       consistent with his discovery deposition testimony. Indeed, Bosler does not

       explain how her expert witness would have prepared differently for trial if he

       had been apprised of Dr. Stankiewicz’ trial deposition testimony.


                                                   Conclusion

[18]   Bosler does not direct us to anything in the record to support her contentions

       that Dr. Stankiewicz changed his opinions with regard to four of the five

       instances she alleges in her brief on appeal. And with regard to the alleged fifth

       instance, Dr. Stankiewicz’ trial testimony that Dr. Youkilis’ records did not

       show that Bosler had empty nose syndrome is consistent both with Dr.

       Stankiewicz’ discovery deposition testimony and with Dr. Youkilis’ own

       testimony. Bosler’s appeal rests upon the premise that Dr. Stankiewicz changed

       his opinion between his discovery deposition and trial deposition and that the

       alleged changes were substantial and material. We conclude that there was no

       material change in Dr. Stankiewicz’ testimony that could have affected Bosler’s

       substantial rights. See Ind. Appellate Rule 66. Bosler has not shown that she

       was prejudiced by the trial court’s admission of Dr. Stankiewicz’ trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 11 of 12
       deposition testimony. Thus, we hold that the trial court did not abuse its

       discretion when it denied Bosler’s motion to exclude the challenged testimony.


[19]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020   Page 12 of 12
