ATTORNEY FOR APPELLANT                                               ATTORNEY FOR APPELLEE
Douglas A. Mulvaney                                                  Deborah A. Kapitan
Elkhart, Indiana                                                     Crown Point, Indiana
______________________________________________________________________________

                                              In the
                             Indiana Supreme Court
                                                                                 FILED
                                                                              Jan 31 2012, 11:39 am
                             _________________________________
                                                                                      CLERK
                                                                                    of the supreme court,
                                       No. 20S03-1110-CT-609                        court of appeals and
                                                                                           tax court




REGINALD N. PERSON, JR.,

                                                                     Appellant (Plaintiff below),

                                                 v.

CAROL A. SHIPLEY,

                                                             Appellee (Defendant below).
                             _________________________________

               Appeal from the Elkhart Superior Court, No. 20D01-0411-CT-739
                            The Honorable Evan S. Roberts, Judge
                          _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-1008-CT-463
                            _________________________________

                                         January 31, 2012

Sullivan, Justice.


       In Bennett v. Richmond, No. 20S03-1105-CV-293, ___ N.E.2d ___ (Ind. 2012), another
case handed down today, we hold that the trial court did not abuse its discretion under Indiana
Rule of Evidence 702 by admitting certain expert testimony that was offered by a personal injury
plaintiff in a rear-end collision case. In this case, we hold that the same trial court similarly did
not abuse its discretion by admitting expert testimony offered by a personal injury defendant in
yet another rear-end collision case.
                                           Background


       In November, 2002, Carol Shipley, while driving a Buick Park Avenue sedan, rear-ended
Reginald Person’s vehicle, an eighteen-wheel semi tractor-trailer – Shipley’s sedan, to repeat,
rear-ended Person’s eighteen-wheeler. In November, 2004, Person sued Shipley for injuries to
his neck and lower back that Person claimed he had sustained in the accident


       Shipley retained two experts, Charles Turner, Ph.D., and Thomas Lazoff, M.D., in de-
fense of Person’s claim that the rear-ending accident caused his injuries. In his deposition, Dr.
Turner opined that the change of speed or velocity of Person’s truck upon the rear-ending impact
was minimal, and as a result, that it was unlikely that the accident caused Person’s lower-back
injury. Dr. Lazoff similarly opined in his deposition that it was unlikely that the accident caused
this injury. These opinions form the basis of this appeal.


       Person filed motions to exclude the videotaped deposition testimony of both Dr. Turner
and Dr. Lazoff prior to the jury trial; Shipley filed a motion to strike in response. Finding that
Person’s motions had been filed untimely, the trial court granted Shipley’s motion to strike.
Nevertheless, because Person had made contemporaneous objections during the depositions to
the admissibility of the expert testimony, the trial court agreed to address admissibility during
trial. Person then renewed his objections to portions of their testimony at trial, which the trial
court overruled. The jury later returned a defense verdict in favor of Shipley and awarded no
damages to Person.


       Person appealed, contending that the trial court erred when it permitted Shipley’s experts
to testify that Person’s lower-back injury was not likely caused by the rear-ending accident be-
cause the impact on Person’s truck was minimal. The Court of Appeals agreed and reversed and
remanded the case. Person v. Shipley, 949 N.E.2d 386, 394 (Ind. Ct. App. 2011).


       Person sought, and we granted, transfer, Person v. Shipley, ___ N.E.2d ___ (Ind. 2011)
(table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).



                                                 2
                                                Discussion


        Person objected to Dr. Turner’s testimony under Rule 702 on the basis that Dr. Turner
was not qualified to offer an opinion on either accident reconstruction or the medical cause of
injury, and even if he were qualified, that his opinions were unreliable because he did not have
sufficient information necessary to give them. Related to this, Person argues that Dr. Lazoff’s
testimony should have been excluded by the trial court because it was based in part on Dr.
Turner’s unreliable testimony.


        As we reiterate today in Bennett, the trial court is considered the gatekeeper for the ad-
missibility of expert opinion evidence under Rule 702. Doe v. Shults-Lewis Child & Family
Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999). With regard to the admissibility of expert testi-
mony, Rule 702 provides:

        (a) If scientific, technical, or other specialized knowledge will assist the trier of
        fact to understand the evidence or to determine a fact in issue, a witness qualified
        as an expert by knowledge, skill, experience, training, or education, may testify
        thereto in the form of an opinion or otherwise.

        (b) Expert scientific testimony is admissible only if the court is satisfied that the
        scientific principles upon which the expert testimony rests are reliable.

Ind. Evidence Rule 702.1 Thus, Rule 702 guides the admission of expert scientific testimony by
requiring that trial courts be satisfied that expert opinions both assist the trier of fact and are
based on reliable principles. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind.
2001) (plurality opinion). “A trial court’s determination regarding the admissibility of expert
testimony under Rule 702 is a matter within its broad discretion and will be reversed only for

1
 We note that our Rule 702 differs from Federal Rule of Evidence 702, which provides:
        A witness who is qualified as an expert by knowledge, skill, experience, training, or edu-
        cation may testify in the form of an opinion or otherwise if:
        (a) 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) the testimony is based on sufficient facts or data;
        (c) the testimony is the product of reliable principles and methods; and
        (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.


                                                     3
abuse of that discretion.” TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind.
2010) (citations omitted). We presume that the trial court’s decision is correct, and the burden is
on the party challenging the decision to persuade us that the trial court has abused its discretion.
Id.


                                                   I


        With regard to Dr. Turner’s qualifications, he received an undergraduate degree in Me-
chanical Engineering in 1983 and a Ph.D. in Biomedical Engineering in 1987.2 He worked as an
assistant professor at Creighton University School of Medicine from 1987-1991 and has taught
courses at Purdue University and Indiana University-Purdue University Indianapolis since 1991.
He is currently a professor of Orthopedic Surgery and Biomedical Engineering and teaches a
course in biomechanics that covers the musculoskeletal system and the principles underlying the
calculations he used in this case. Dr. Turner has been reviewing cases like the present one for
twelve years.


        Dr. Turner testified that he had reviewed the crash report in this case as well as some
photographs of Shipley’s vehicle, depositions, and a summary of Person’s medical records. Dr.
Turner explained that the important measurement in this case was that of momentum, the calcu-
lation for which is mass times velocity. He calculated the momentum transfer in this case to
have been around 1.7-2.2 miles per hour, and he testified that this was a very small acceleration
or change in velocity of Person’s tractor-trailer. He further explained that a lower-back injury
was unusual in this type of case because the lower back is supported by the seat, unlike the head
and neck which are more commonly injured because they are not well supported even with some
headrests. Based on this, Dr. Turner testified that it was more likely than not that the accident
did not cause Person’s lower-back injury.


        We agree with the Court of Appeals that Dr. Turner was qualified under Rule 702(a) to
offer his opinions. Person, 949 N.E.2d at 391-92. First, we too conclude that Dr. Turner’s engi-


2
  In his deposition, Dr. Turner explained that his study of Biomedical Engineering “had to do mostly with
the types of force it would take to break a bone or to injure a joint.” Appellant’s App. 119


                                                   4
neering background, his knowledge of velocity and changes in speed upon impact, and his expe-
rience in reviewing these types of cases made him qualified to offer his opinion as to the change
in speed or velocity of Person’s tractor-trailer. Id. at 391. And we agree that Dr. Turner was
qualified to give his opinion that the accident did not cause Person’s lower-back injury. Id. at
391-92. But we do take note of the basis for its finding that Dr. Turner was qualified in this lat-
ter regard. The Court of Appeals acknowledged that Dr. Turner was not a medical doctor and
recounted the oft-cited statement that “[q]uestions of medical causation of a particular injury are
questions of science dependent on the testimony of physicians and surgeons learned in such mat-
ters.” Id. at 391 (citing Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App.
2000), trans. denied). It reasoned, however, that Dr. Turner’s testimony “focus[ed] on the sci-
ence of engineering and physics as opposed to the science of medicine,” id. at 391, and therefore,
his education, background, training, and knowledge of the effect of forces on the musculoskeletal
system made him qualified to render this causation opinion under Rule 702, id. at 391-92. The
Court of Appeals has made a similar distinction in at least one other case. See K.D. v. Cham-
bers, 951 N.E.2d 855, 861-62 (Ind. Ct. App. 2011) (noting that toxicologist’s testimony related
to the toxic effects of an overdose and whether those included a tremor, not to diagnosing or
treating a disease), trans. denied, ___ N.E.2d ___ (Ind. 2011) (table), disapproved on other
grounds by Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011). Although we find it un-
necessary in this case to expound upon Dr. Turner’s qualifications to offer an opinion on medical
causation, we note here as we noted in Bennett that neither the criteria for qualifying under Rule
702 (knowledge, skill, experience, training, or education) nor the purpose for which expert testi-
mony is admitted (to assist the trier of fact) seems to support disallowing an otherwise qualified
expert to offer an opinion regarding medical causation simply because he or she lacks a medical
degree.


          We conclude that the trial court did not abuse its discretion in finding that Dr. Turner was
qualified to offer his opinions.




                                                   5
                                                    II


        Admissibility under Rule 702 also depends on the reliability of the scientific principles
Dr. Turner employed in forming his opinions. In making this determination, “the trial court must
make a preliminary assessment of whether the reasoning or methodology underlying the testimo-
ny is scientifically valid and whether that reasoning or methodology properly can be applied to
the facts in issue.” Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d
475, 484 (Ind. Ct. App. 2007) (citation omitted), trans. denied.


        As noted by the Court of Appeals, Person does not challenge the reliability of the scien-
tific principles underlying Dr. Turner’s calculation of momentum transfer. Person, 949 N.E.2d at
392. Rather, he argues that in making this calculation, Dr. Turner made assumptions that were
without factual support. Accordingly, Person argues that Dr. Turner’s testimony was unreliable
and should have been excluded by the trial court.


        Dr. Turner explained in his deposition that he made calculations based on the speed and
weight of the vehicles in order to determine that the change in the velocity of Person’s tractor-
trailer upon impact was between 1.7-2.2 miles per hour. With regard to the speed of the vehi-
cles, he concluded that Person’s tractor-trailer was traveling at 55 miles per hour based on Per-
son’s own testimony. Further, based on photographs of Shipley’s vehicle taken after the acci-
dent, Dr. Turner determined that the difference in the two vehicles’ speeds was around 30 miles
per hour and therefore that the speed of Shipley’s vehicle was at least 85 miles per hour,3 alt-
hough he admitted that this was just an “educated guess” and that he was unable to “do a highly
detailed analysis from these pictures.”4 Appellant’s App. 124. As a result, he made calculations
based on Shipley driving either 30 or 40 miles per hour faster than Person’s tractor-trailer.



3
  Shipley testified that she knew the speed limit on the road was 65 miles per hour and that she always set
her cruise control for a couple miles per hour below the posted limit. Appellant’s App. 306.
4
  As noted, Dr. Turner based his determination of Shipley’s speed solely on his review of post-accident
photographs of Shipley’s vehicle. He performed no other investigation. Although Person highlights this
in his brief, he presents no legal argument challenging the reliability Dr. Turner’s determination of speed
based on his review of these photographs.


                                                    6
       With regard to the weight of the vehicles, Dr. Turner concluded that Person was driving a
semi tractor-trailer loaded with cargo for a combined weight of 80,000 pounds. He explained on
cross-examination his reasoning for this figure:

       [Person] didn’t recall the weight of the cargo, so I went to the – I reviewed typical
       cargo. And what – what we know is the Department of Transportation [(“DOT”)]
       sets a limit on gross weight in a tractor-trailer, and that limit is 80,000 pounds.

               Now, trucking companies like to be efficient and they typically like to run
       very close to their maximum weight when they’re – when they’re hauling cargo,
       because if they haul half of their maximum weight, they pay almost as much
       money, but they don’t get as much profit from it. So my assumption was that it –
       that this trailer was loaded to maximum so that they would make the DOT maxi-
       mum gross weight of 80,000 pounds.

               ....

       It’s my assumption that they were trying to operate as efficiently as possible.

Id. at 134-36. He also explained on cross-examination that if the weight of Person’s tractor-
trailer was less than 80,000 pounds, then his momentum calculation would change: “[I]f the
truck is lighter, it would have less – in this case it would be less inertia; in other words, it would
be easier to push forward than if it’s heavier.” Id. at 135. He determined the weight of Shipley’s
Buick Park Avenue sedan to be between 3,000-4,000 pounds and explained that this figure was
available from any number of sources that give gross weights for different vehicles.


       The Court of Appeals held that “[a]bsent any factual support for assigning a maximum
weight to Person’s truck or the speed and weight of Shipley’s vehicle, any ultimate conclusion
reached by Dr. Turner based upon those assumptions is unreliable and based wholly upon specu-
lation.” Person, 949 N.E.2d at 393. But Rule 702 does not require such specific factual support
for expert testimony. Rather, it only requires the trial court’s satisfaction that the expert’s opin-
ion is based on reliable scientific principles that can be properly applied to the facts in issue.
Stichnoth, 877 N.E.2d at 484. The facts in this case clearly support Dr. Turner’s momentum cal-
culation: Shipley, who was driving a sedan, fell asleep at the wheel and, not knowing exactly
how fast she was driving at the time, rear ended an eighteen-wheel semi tractor-trailer that was
traveling about 55 miles per hour and hauling bananas. Thus, Dr. Turner squarely applied a reli-



                                                   7
able scientific method – calculating the momentum transfer as mass times velocity – to facts that
occurred in this case – a sedan rear ending a semi tractor-trailer.5 Cf. Clarke v. Sporre, 777
N.E.2d 1166, 1170-71 (Ind. Ct. App. 2002) (expert opinion that hypoxic event caused mental
impairment was speculative because there was no factual basis that hypoxic event occurred). To
the extent Dr. Turner used his knowledge and experience to make reasonable estimates of speed
and weight upon which to base his opinion, we note that this is, in fact, the purpose of an expert.
Estate of Hunt v. Henry County Bd. of Comm’rs, 526 N.E.2d 1230, 1234 (Ind. Ct. App. 1988),
trans. denied.


        The Court of Appeals also concluded that “because underlying factual support was lack-
ing in Dr. Turner’s calculations, this is not a case in which effective cross-examination could
cure any credibility issues.” Person, 949 N.E.2d at 394. Again, we disagree. As we just ex-
plained, Dr. Turner applied a reliable scientific method squarely to the facts of this case. As for
his inability to testify to the exact weights or speeds of the vehicles, the trial court itself aptly
concluded: “that’s cross-examination stuff, that’s not exclusion stuff.” Appellant’s App. 84.
Once the admissibility of Dr. Turner’s testimony was established under Rule 702, “then the accu-
racy, consistency, and credibility of [his] opinions [were properly left] to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and resolution by the trier
of fact.” Sears Roebuck, 742 N.E.2d at 461 (citation omitted). Moreover, we recently explained
in that “[c]ross-examination permits the opposing party to expose dissimilarities between the ac-
tual evidence and the scientific theory. The dissimilarities go to the weight rather than to the
admissibility of the evidence.” Turner v. State, 953 N.E.2d 1039, 1051 (Ind. 2011) (citation
omitted); see also West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (noting that any discrepancy in
actual shoe size and an expert’s estimate of shoe size goes to weight and not admissibility). As


5
  We note that of particular concern to the Court of Appeals was Dr. Turner’s assigning the maximum
weight to Person’s tractor-trailer. See Person, 949 N.E.2d at 393 (stating that this was “not just some in-
significant detail to Dr. Turner’s conclusion as to the change in velocity of the truck upon impact”). But
Dr. Turner did not develop this 80,000 pound figure out of whole cloth. It is undisputed that Person’s
vehicle was an eighteen-wheel semi tractor-trailer that was in fact hauling a load of bananas, whether full
or partial. In other words, Dr. Turner did not assign a weight of 80,000 to a tractor-trailer hauling no car-
go, nor did he conclude that it weighed more than the maximum allowed by the DOT. His reasoning for
assigning a weight of 80,000 pounds to Person’s tractor-trailer demonstrates that this figure was not based
on speculation. And Person, the party in the best position to know the actual weight of the truck he was
driving, did not offer any evidence to contradict Dr. Turner’s assumption.


                                                     8
applied to this case, once reliability was established, the dissimilarities between the actual
weights and speeds of the vehicles, whether known or unknown, and the weights and speeds that
Dr. Turner utilized in forming his opinion go to the weight and credibility of his testimony, not
to its admissibility.


        We conclude that the trial court did not abuse its discretion in finding that Dr. Turner’s
opinions were based on reliable scientific principles that could be applied to the facts at issue.
And, because we conclude that Dr. Turner’s testimony was properly admitted, we reject Ship-
ley’s argument that Dr. Lazoff’s causation opinion should have been excluded by the trial court
because it was based in part on Dr. Turner’s calculation of momentum transfer.


                                            Conclusion


        Again, mindful that the trial court judge is afforded broad discretion in these matters, we
decline to find any abuse of it. The judgment of the trial court is affirmed.


Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.




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