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




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 2 of 18
      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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 4 of 18
       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


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 5 of 18
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 7 of 18
               [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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019      Page 9 of 18
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 11 of 18
        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

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 12 of 18
               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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019                Page 13 of 18
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 14 of 18
       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

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




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2731 | August 15, 2019   Page 18 of 18
