                                                                            FILED
                                                                    Aug 09 2018, 9:09 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR
Nathaniel Lee                                              APPELLEE DR. SUNDARAM
Laura R. Crowley                                           Michael E. O’Neill
Lee Cossell & Crowley, LLP                                 Kelly K. McFadden
Indianapolis, Indiana                                      O’Neill McFadden & Willett LLP
                                                           Schererville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. Shaw, Administrator of                            August 9, 2018
the Estate and as Father of                                Court of Appeals Case No.
Jaymes G. Shaw, deceased,                                  49A02-1710-CT-2470
Appellant,                                                 Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable Heather A. Welch,
                                                           Judge
Chandra Sundaram, M.D., and                                Trial Court Cause No.
Kelli Metelues,                                            49D01-1311-CT-42340
Appellees



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                    Page 1 of 20
[1]   James Shaw (Shaw) brings this appeal as father of Jaymes Shaw (Jay) and as

      administrator of Jay’s estate. Jay died following an illness and a surgery, and

      Shaw filed a medical malpractice action stemming from Jay’s death. Following

      a lengthy discovery period that included the trial court entering two orders to

      compel and two sanctions awards against Shaw, the parties went to trial. The

      jury found in favor of Dr. Chandra Sundaram, who performed the surgery.

      Shaw now appeals, arguing that (1) the trial court made erroneous rulings

      regarding one of his expert witnesses; and (2) the trial court erroneously granted

      a motion in limine preventing Shaw from introducing an informed consent

      claim into the trial. Finding no error, we affirm.


                                                        Facts
                                           Jay’s Illness and Surgery

[2]   On October 20, 2009, nineteen-year-old Jay arrived at the emergency room

      with his mother, Kelli Metelues (Kelli). Jay had previously had a kidney

      transplant and was scheduled for a kidney stent placement to help relieve a

      blockage in the transplanted kidney. After evaluating Jay’s symptoms, hospital

      personnel admitted him to the hospital with dual diagnoses of pneumonia 1 and

      acute renal failure. Doctors believed that one of the contributory factors to

      Jay’s acute renal failure was the blockage in his transplanted kidney.




      1
       An infectious disease specialist later evaluated Jay and concluded that he might also have influenza, so he
      was also started on Tamiflu.

      Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                         Page 2 of 20
[3]   A nephrologist evaluated Jay’s condition and concluded that the placement of a

      stent was the best course of action. That doctor asked Dr. Sundaram, a

      urologist, to place the stent. The plan was discussed with Jay and Kelli. A

      surgical consent form was signed for a cystoscopy and transplant stent

      placement to be performed by Dr. Sundaram and his resident. The signature

      line bears Jay’s name and is witnessed by Kelli, whose name also appears on

      the lines for “Parent, Guardian, or Other Signature” and for “Name of Adult

      Witness.” Appellant’s App. Vol. VI p. 150. The document is also signed in the

      box labeled “Treating Practitioner,” which describes the information provided

      during the informed consent discussion with the patient and his family,

      including the risks, benefits, and alternatives to the procedure. Kelli later

      attested in a deposition that she signed the form on Jay’s behalf at his request:


              Q:       At the time, I believe Jay was 19?

              A:       Yes.

              Q:       Why did you sign this instead of him?

              A:       Because I was his caregiver, and he didn’t understand
                       what was going on.

              Q:       Okay. Were you—did you have documentation that you
                       were his legal representative?

              A:       I believe so. I don’t remember.

              Q:       Okay. So you had a power of attorney or something of
                       that nature?

              A:       I actually don’t remember. I know he gave consent to sign
                       for him.

      Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 3 of 20
      Appellant’s App. Vol. II p. 141.


[4]   On October 21, 2009, Dr. Sundaram performed a cystoscopy and stent

      placement on Jay. During the procedure, Jay went into cardiac arrest and died.


                                                 The Litigation

[5]   On October 20, 2011, Shaw filed a medical malpractice action against Dr.

      Sundaram and others with the Indiana Department of Insurance (IDOI).

      Shaw’s proposed complaint included the following allegations:


              6.       [Jay] presented to the Emergency Room at I.U. Health
                       University Hospital on October 20, 2009 with flu-like
                       symptoms which included fever, chills, cough, weakness,
                       fatigue and diarrhea.


              7.       [Jay] was scheduled for elective surgery for a ureteral stent
                       placement on October 21, 2009.


              8.       Defendants determined that the non-emergent surgery
                       should proceed despite his presentation instead of
                       postponing the surgery.


              9.       [Jay’s] condition deteriorated in the Operative Room
                       leading to cardiac arrest and his expiration.


              10.      Defendants failed to act within the reasonable standard of
                       care and as a direct and proximate result of their actions,
                       Plaintiff has been injured.


      Id. at 189-90.



      Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018      Page 4 of 20
[6]   Shaw eventually presented his claims to a Medical Review Panel (MRP), which

      found in favor of Dr. Sundaram and the other defendants. On November 21,

      2013, Shaw filed a negligence action against Dr. Sundaram on behalf of Jay’s

      estate.2 In relevant part, the complaint repeats the allegations quoted above,

      merely changing the plural “defendants” to refer solely to Dr. Sundaram. Id. at

      73. The complaint states that its purpose is “to redress acts, conduct,

      omissions, negligence and medical malpractice committed by [Dr.

      Sundaram[.]]” Id. at 72.


                                          Expert-Related Discovery Issues

[7]   The discovery process was fraught with conflict largely caused by Shaw. On

      July 2, 2014, the trial court entered a proposed case management order. The

      order set a trial date of January 11, 2016,3 and ordered the parties to, among

      other things, provide a final witness and exhibit list no later than sixty days

      before trial. The order further required Shaw to file all expert disclosures no

      later than 120 days before trial (September 15, 2015). The proverbial wheels

      came off following this order.


             • On September 11, 2015, Shaw preliminarily identified two experts by
               name only. No disclosure of the opinions of the experts was provided 4



      2
       Pursuant to Indiana law on wrongful death actions filed by parents, Kelli was named as a defendant. Ind.
      Code § 34-23-2-1.
      3
          The initial case management order set an earlier trial date, but the trial was later reset for January 11, 2016.
      4
        In November 2011, Dr. Sundaram had propounded interrogatories asking, among other things, that Shaw
      identify each person expected to testify as an expert witness, the subject matter on which the expert is
      expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a

      Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                               Page 5 of 20
        and Shaw requested an extension of time to name additional experts.
        The trial court extended the deadline to September 30, 2015, over Dr.
        Sundaram’s objection.
    •   On September 30, 2015, Shaw provided a supplemental preliminary
        expert disclosure. This disclosure named, in relevant part, Dr. Joye
        Carter, and stated only that “[i]t is anticipated that Joye Carter, M.D.
        will testify as to cause of death[.]” Id. at 213.
    •   On November 5, 2015, Dr. Sundaram filed a motion to compel based
        upon Shaw’s failure to respond to discovery requests regarding expert
        witnesses.
    •   On November 10, 2015, Shaw filed his final witness and exhibit list,
        naming four doctors, including Dr. Carter, as experts.
    •   Dr. Sundaram moved to continue the trial based on Shaw’s failure to
        properly and timely disclose his expert witnesses and their opinions. On
        January 4, 2016, the trial court granted the motion to compel, ordering
        Shaw to respond to Dr. Sundaram’s outstanding expert discovery by
        January 29, 2016. The trial court also reset the trial date to April 17,
        2017. The trial court did not extend the expert disclosure deadlines
        based on the new trial date because both parties assured the court that no
        one needed additional time for expert disclosures. Id. at 37.
    •   On January 29, 2016, Shaw sent supplemental responses to Dr.
        Sundaram’s discovery requests that still failed to provide any information
        about his experts’ opinions.
    •   Thereafter, Dr. Sundaram filed a second motion to compel, which the
        trial court granted, ordering Shaw to answer discovery by May 9, 2016.
        The trial court also awarded monetary sanctions to Dr. Sundaram based
        on Shaw’s dilatory discovery practice.
    •   Following the second motion to compel, Shaw finally provided
        substantive answers regarding his experts’ opinions. As to each of the
        disclosed experts, their opinions dealt only with the alleged breach of the




summary of the grounds for each opinion. Appellant’s App. Vol. IV p. 142-56; see also Ind. Trial Rule
26(B)(4)(a)(i).

Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                       Page 6 of 20
               standard of care related to Dr. Sundaram’s decision to perform the
               surgery. No expert opinions related to informed consent were disclosed.

[8]    On September 19, 2016, Shaw served a supplemental final witness list. For the

       first time, Dr. Allen Griggs appeared on the list. Dr. Sundaram’s counsel

       responded to Shaw’s counsel in a letter, noting that this was the first inclusion

       of Dr. Griggs, that it was long past the deadline for disclosure of experts, and

       that Shaw had provided no information regarding Dr. Griggs’s opinions. Shaw

       did not respond. Dr. Sundaram’s counsel wrote another letter two weeks later,

       noting that the objection to Dr. Griggs still stood and asking that if Shaw

       intended to use Dr. Griggs at trial to please inform Dr. Sundaram immediately.

       Shaw did not respond.


[9]    In January 2017, Shaw began losing confidence that Dr. Carter would be

       willing and/or able to testify as an expert witness because of difficulties

       communicating with her. Therefore, he began focusing more attention on Dr.

       Griggs, who would give substantially similar testimony.


[10]   On February 24, 2017, Shaw served supplemental answers to interrogatories,

       which, for the first time, included cause of death opinions of Dr. Griggs. On

       February 28, 2017, Shaw moved the trial court to permit him to substitute Dr.

       Griggs for Dr. Carter, or alternatively, to extend the expert disclosure deadline,

       explaining that he had had significant difficulty contacting and communicating

       with Dr. Carter, who had moved out of state. On March 15, 2017, the trial

       court denied Shaw’s motion to substitute and barred Dr. Griggs from testifying,

       stating as follows:

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 7 of 20
                The Court finds it would be highly prejudicial to permit the
                Plaintiff to substitute Dr. Griggs as an expert witness for Dr.
                Carter just 47 days before a two week jury trial. The Plaintiff has
                had many previous opportunities to disclose its expert witnesses
                and that deadline has long expired. The Court further finds it
                would be highly prejudicial to the Defendant to extend the expert
                deadline as the two week jury trial starts on April 17, 2017 in
                41[5] days.


       Appellant’s App. Vol. V p. 53.


[11]   At the March 20, 2017, final pretrial conference, Shaw’s difficulty

       communicating with Dr. Carter came up again. Shaw’s counsel and the trial

       court had the following discussion:


                Court:              . . . You can find [Dr. Carter] because she was—I
                                    swear she was here. I—my court reporter will tell
                                    you what day. . . .


                Counsel:            Well, we’ll—we’ll track her down [be]cause we had
                                    sent her . . . I sent her some correspondence and she
                                    didn’t respond. But I can track her down but it—
                                    the point is that her testimony was anticipated to
                                    last about an hour on the cause of death. And from
                                    an economic standpoint if she’s not out of state
                                    that’s 2 days for her to be here so it goes about a
                                    $2500 expense to about a 15 to 20,000 expense . . . .




       5
         The trial court’s order states at one point that it is forty-seven days before trial and at another point that it is
       forty-one days before trial.

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                                Page 8 of 20
                  Court:             Well . . . we’ve had experts—we had one in that
                                     trial that testified by . . . video live.


                  Counsel:           Well we may—we may try to do something like that
                                     then.


                  Court:             You talk to [the court reporter]. She can make sure
                                     that happens.


                  Counsel:           That solves our problem then. . . .


       Appellee’s Br. p. 16-17.6


[12]   On April 12, 2017, Shaw filed another motion requesting that the trial court

       allow him to substitute Dr. Griggs for Dr. Carter or, alternatively, that the trial

       be continued. The trial court denied the motion, emphasizing that at the final

       pretrial conference, “the attorneys for the parties said they were ready to

       proceed to jury trial on a case scheduled for 2 weeks.” Appellant’s App. Vol. II

       p. 21. The same day, the trial court issued a second sanctions order awarding

       sanctions to Dr. Sundaram for Shaw’s discovery practice, noting that “the

       Plaintiff’s counsel has on multiple occasions failed to comply with the trial rules

       and orders of this court.” Appellee’s App. Vol. V p. 173.


[13]   On April 13, 2017, the trial court notified the parties that Dr. Carter had

       contacted the court and would be able to testify for Shaw on April 20, 2017, via




       6
           We were not able to find the transcript of this hearing in the record on appeal.


       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018              Page 9 of 20
       video conference. On April 17, 2017, the first day of trial, counsel for Shaw

       stated that he reserved the right to call Dr. Griggs as a rebuttal witness and did

       not plan to call Dr. Carter—even though she was available to testify via video

       conference. Counsel stated that “we determined that it would cause more of a

       prejudice to our case if we were to call that witness than benefit. So therefore,

       we had to withdraw that particular witness.” Tr. Vol. II p. 7. Counsel did not

       ask during trial that Dr. Griggs be permitted to testify as a primary expert

       witness, nor did counsel make an offer of proof regarding what the testimony

       would have been.


[14]   Shaw’s counsel later requested to call Dr. Griggs as a rebuttal witness. Tr. Vol.

       VI p. 223-24. Counsel stated that he planned to use Dr. Griggs to rebut Dr.

       Sundaram’s testimony regarding what level of creatinine is fatal.7 Id. Counsel

       explained that “this was unanticipated evidence by a witness” and that “it’s a

       very narrow reason that we want to offer a rebuttal testimony [in] that

       regard[.]” Tr. Vol. VII p. 63. Dr. Sundaram’s counsel objected, noting that

       “[t]his is the third or fourth time they’ve tried to back door Dr. Griggs into—

       into this trial.” Id. at 69.




       7
        After Dr. Sundaram testified, a juror asked Dr. Sundaram, “What level number of creatinine is fatal in a
       patient?” Tr. Vol VI p. 93-94. Dr. Sundaram’s response is the testimony Shaw intended Dr. Griggs to rebut.
       Neither attorney objected to the question or the answer, though the trial court later indicated it would have
       sustained such an objection had one been made. Tr. Vol. VII p. 79 (“I can guarantee you if either party
       would have objected to this question, I would not have permitted it.”).

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                       Page 10 of 20
[15]   The trial court denied the request to call Dr. Griggs as a witness, noting that

       known and anticipated witnesses, even if presented in rebuttal, must be

       identified pursuant to a court order or to a proper discovery request. Id. at 76.

       The trial court went through the lengthy discovery history of the litigation,

       noting the many hard and clear deadlines that had been put in place throughout

       the proceedings and the many extensions of those deadlines it had afforded to

       Shaw. The trial court observed that


               we’ve been over this and over this and I feel like it is a run
               around the Court’s prior order which I issued on March the 15 th,
               not permitting Dr. Griggs[’s] testimony. I don’t know what the
               issues are with Dr. Carter and you, [counsel for Shaw]. . . . So,
               I’m denying the request for Dr. Griggs to testify. He’s not an
               unanticipated rebuttal witness.


       Id. at 82-83. Although afforded the opportunity to do so, Shaw did not make

       an offer of proof regarding Dr. Griggs’s testimony.


                            Motion in Limine Regarding Informed Consent

[16]   On March 13, 2017, Dr. Sundaram filed multiple motions in limine. Relevant

       to this case is Motion in Limine B, which sought to bar any new claim not

       submitted to the MRP, including any undisclosed claim regarding informed

       consent. At the March 20, 2017, final pretrial conference, the trial court noted

       that Shaw had not designated any expert opinion or evidence related to the

       issue of informed consent:


               [The cases are] all clear that you—you have to—you have to put
               on notice that one of the issues—you don’t have to go into detail.

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 11 of 20
               It’s [sic] doesn’t have to be formal or anything. But—you
               know—there’s lack of informed consent. But that was not heard
               by the medical review panel. Because you have to have expert
               testimony on that issue.


       Appellee’s Br. p. 16. The trial court took the issue under advisement and later

       issued a lengthy order granting Motion in Limine B. It explored relevant

       caselaw and noted that a claim of informed consent is separate and apart from a

       claim of medical negligence. The court reviewed Shaw’s complaints filed with

       the IDOI and the trial court, discovery responses, and submissions to the MRP,

       and found that Shaw had


               never made any mention that the issue of lack of informed
               consent was something the MRP should consider when
               determining if there was practice below the standard of care. . . .
               This Court finds that the operative facts plead could not lead one
               to possibly infer that Plaintiffs were alleging a claim of lack of
               informed consent.


       Appellee’s App. Vol. IV p. 146.


[17]   At the trial, Shaw’s counsel asked Kelli questions regarding informed consent.

       Dr. Sundaram objected and the trial court sustained the objection. Shaw did

       not make an offer of proof. Following the close of evidence, the parties and the

       trial court discussed the final jury instructions. The parties agreed that the

       following instruction could be given to the jury:


               Throughout the course of this trial, you have heard evidence
               regarding informed consent for the treatment Dr. Sundaram
               provided to [Jay] and you have heard evidence regarding

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 12 of 20
               decisions of the medical team. You are instructed that informed
               consent and the negligence of other members of the medical team
               are not issues to be decided in this case. Therefore, you should
               not consider this in your deliberations.


       Tr. Vol. VII p. 96-97.


[18]   On April 25, 2017, the jury found in favor of Dr. Sundaram and the trial court

       entered judgment in his favor. Shaw later filed a motion to correct error, which

       the trial court denied in relevant part in a thirty-eight-page order. Shaw now

       appeals.


                                     Discussion and Decision
                                                I. Dr. Griggs
[19]   Shaw first argues that the trial court erred in two respects related to Dr. Griggs:

       (1) by denying his request to substitute Dr. Griggs for Dr. Carter as a primary

       expert witness; and (2) by denying his request to call Dr. Griggs as a rebuttal

       expert witness. The decision to admit or exclude evidence, including expert

       testimony, is a matter within the discretion of the trial court. Horn v. Jara, 63

       N.E.3d 1, 3 (Ind. Ct. App. 2016), trans. denied. We will reverse only if the trial

       court’s 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. Even if the trial court’s ruling is

       erroneous, we will reverse only if the error is inconsistent with substantial

       justice. Id. To determine whether this test is met, we must assess the probable



       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 13 of 20
       impact upon the trier of fact. Linton v. Davis, 887 N.E.2d 960, 965-66 (Ind. Ct.

       App. 2008).


                                A. Substitution for Dr. Carter
[20]   Shaw argues that the trial court should have permitted him to substitute Dr.

       Griggs for Dr. Carter as a primary expert witness after he began experiencing

       communication difficulties with Dr. Carter.


[21]   In the trial court’s order denying Shaw’s motion to correct error, it first went

       through the lengthy history of Shaw’s dilatory discovery practice, which

       included two orders to compel and two sanctions awards to Dr. Sundaram. It

       then explained that it would not condone Shaw’s tardy attempts to proffer Dr.

       Griggs as a substitute witness for Dr. Carter:


               The Plaintiff’s attorney had many opportunities from November
               of 2013 when the complaint was filed until May 9, 2016 to
               disclose his expert witnesses and their opinions. In this case, the
               Plaintiff’s counsel did not disclose or inform the Court or
               Defendant’s counsel until September 19, 2016 he might want to
               use Dr. Griggs but never provided Dr. Grigg’s opinions until 47
               days before the jury trial. In addition, he wanted Dr. Griggs to
               testify instead of Dr. Carter. At first, Plaintiff’s counsel informed
               the Court he could not locate Dr. Carter then the Court informed
               the Plaintiff’s counsel that Dr. Carter had testified in this Court
               in January of 2017. Then Plaintiff’s counsel said he did not want
               to incur the costs to transport Dr. Carter from Texas to Indiana
               and the Court permitted her to testify via video conferencing over
               the Defendant’s objection. Ultimately, the Plaintiff’s counsel
               elected not to call Dr. Carter in his case to testify as to the cause
               of death.


       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 14 of 20
                During this case, the Court was merely trying to ensure both
                parties would receive a fair trial and attempting to require that
                the Plaintiff’s counsel comply with the discovery deadlines in this
                case. . . . This Court provided Plaintiff’s counsel three extensions
                of time beginning on September 11, 2015 through May 9, 2016 to
                disclosure [sic] his expert witnesses and their opinions. . . . This
                Court has acted fairly and provided Plaintiff’s counsel ample
                opportunity to disclose his expert witnesses and their opinions.
                This Court was required to enforce the deadlines set to insure the
                litigants both received a fair trial.


       Appellant’s App. Vol. II p. 60-62.


[22]   In reviewing the order, it is apparent that the trial court was not only frustrated

       with counsel for Shaw for his discovery tactics but also questioned counsel’s

       credibility. We decline to second-guess the trial court’s assessment in this

       regard.


[23]   In any event, Shaw first listed Dr. Griggs as an expert witness in September

       2016—months before he began experiencing the alleged communication

       problems with Dr. Carter. As the expert disclosure deadline had come and

       gone a year earlier on September 30, 2015, the untimely disclosure of Dr.

       Griggs was a problem to begin with.8 The trial court evidently concluded that




       8
         Shaw argues that the July 2, 2014, case management order permitted him to file expert disclosures no later
       than 120 days before trial, and that the deadline was later moved to 90 days before trial as part of a January
       4, 2016, pretrial order. What he neglects to recognize, however, is that at the pretrial conference precipitating
       the January 4, 2016, order, the trial court “was provided assurances from both attorneys that no one needed
       additional time for expert disclosures. The attorneys agreed they had the experts they needed, so the Court
       did not need to extend the expert disclosure deadlines based on the new trial date.” Appellant’s App. Vol. II
       p. 37. In other words, the expert disclosure deadline was never extended beyond September 30, 2015. Shaw does

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                          Page 15 of 20
       Shaw’s later attempt to substitute Dr. Griggs for Dr. Carter was an improper

       attempt to bootstrap an untimely-disclosed witness into the trial, and we decline

       to second-guess that conclusion.


[24]   Given the lengthy history of discovery violations by Shaw, we find that the trial

       court acted within its discretion to deny Shaw’s request to substitute Dr. Griggs

       for Dr. Carter as a primary expert witness. We also note that even if we had

       found the decision erroneous, we would have no way of determining whether

       the error was reversible or not as Shaw did not make an offer of proof regarding

       what Dr. Griggs’s testimony would have been; consequently, we could not

       evaluate its probable impact on the jury. In all respects, therefore, this

       argument is unavailing.


                             B. Dr. Griggs as Rebuttal Witness
[25]   Next, Shaw argues that even if the trial court did not err by refusing to permit

       Dr. Griggs to testify as part of Shaw’s case-in-chief, it should have permitted the

       physician to testify as a rebuttal witness.


[26]   Our Supreme Court has squarely held that “the nondisclosure of a rebuttal

       witness is excused only when that witness was unknown and unanticipated;

       known and anticipated witnesses, even if presented in rebuttal, must be identified

       pursuant to a court order, such as a pre-trial order, or to a proper discovery




       not dispute the trial court’s recitation of events, though he does contend that the deadline was implicitly
       extended. We disagree.

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                          Page 16 of 20
       request.” McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993)

       (emphasis added). Here, Dr. Griggs was obviously both known and

       anticipated, as Shaw spent a great deal of time and effort attempting to have

       him testify as part of Shaw’s case-in-chief. Therefore, Shaw’s failure to timely

       identify both Dr. Griggs and his opinions pursuant to the trial court’s case

       management order and Dr. Sundaram’s discovery requests prevented his ability

       to call Dr. Griggs as a rebuttal witness. The trial court did not err by denying

       this request.


[27]   Furthermore, yet again Shaw did not make an offer of proof regarding what Dr.

       Griggs’s rebuttal testimony would have been. We therefore have no way of

       evaluating what the probable impact of that testimony would have been on the

       jury. Shaw is not entitled to relief on this basis.


                                        II. Informed Consent
[28]   Shaw also argues that the trial court erroneously granted Dr. Sundaram’s

       motion in limine, thereby preventing Shaw from litigating any claim related to

       informed consent. As above, the decision to admit or exclude evidence is

       within the trial court’s sound discretion, and we will reverse only if the 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.

       Hora, 63 N.E.3d at 3.


[29]   In McKeen v. Turner, our Supreme Court approved of this Court’s holding that

       “‘a plaintiff may raise any theories of alleged malpractice during litigation

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 17 of 20
       following the MRP process if (1) the proposed complaint encompasses the

       theories, and (2) the evidence relating to those theories was before the MRP.’”

       71 N.E.3d 833, 833 (Ind. 2017) (quoting McKeen v. Turner, 61 N.E.3d 1251,

       1262 (Ind. Ct. App. 2016)). The parties spend a great deal of time arguing

       about whether Shaw’s informed consent claim meets this test, but we need not

       address that issue and will assume solely for argument’s sake that the informed

       consent claim meets the McKeen test.


[30]   It is well settled that expert testimony is required to establish whether a

       physician has or has not complied with the standard of a reasonably prudent

       physician with respect to informed consent. Culbertson v. Mernitz, 602 N.E.2d

       98, 103-04 (Ind. 1992). As exhaustively set forth herein, the discovery process

       in this case stretched out for years. Shaw ended up naming five expert

       witnesses, including Dr. Griggs. When Shaw finally elected to comply with the

       trial court’s discovery orders by explaining the opinions each of his experts

       would testify to and the general bases therefor, not once did he state that any of

       his experts would testify regarding informed consent. Injecting the issue of

       informed consent into the case at the eleventh hour, having given Dr.

       Sundaram no indication whatsoever that it would be addressed by any of the

       experts, would have been improper even if the McKeen test had been met.

       Under these circumstances, the trial court did not err by granting the motion in

       limine.


[31]   Moreover, at no point during the trial did Shaw make any offers of proof

       regarding an informed consent claim. See Spar v. Cha, 907 N.E.2d 974, 979-80

       Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018   Page 18 of 20
(Ind. 2009) (a successful informed consent claim requires proof of nondisclosure

of required information, actual damage resulting from the risks of which the

patient was not informed, that the patient would have rejected the medical

treatment had he known the risk, and that reasonable persons if properly

informed would have rejected the proposed treatment); see also Miller v. State,

716 N.E.2d 367, 370 (Ind. 1999) (holding that to preserve an error in a ruling on

a motion in limine for appellate review, a party must do more than challenge

the ruling itself; the party must offer the evidence at trial to give the trial court

an opportunity to rule on its admissibility at that time). Shaw failed to make an

offer of proof as to what information was not disclosed, what damages resulted

from the risks of which the patient was not informed, and whether Jay would

have rejected the medical treatment had he known the risk. He also failed to

make an offer of proof as to expert testimony regarding what a reasonably

prudent physician should tell a patient for a proper informed consent. At the

close of the evidence, the trial court gave the parties the opportunity to make a

record on any issue they desired. Shaw declined. 9 Therefore, our ability to

review this claim is substantially limited, if not nonexistent. Shaw is not

entitled to relief on this basis.




9
  We also note that Shaw agreed to a final jury instruction explicitly removing the issue of informed consent
from consideration.

Court of Appeals of Indiana | Opinion 49A02-1710-CT-2470 | August 9, 2018                         Page 19 of 20
[32]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




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