                                                                   Dec 31 2015, 9:20 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamen W. Murphy                                        Edward W. Hearn
Law Office of Ben Murphy                                  Susan K. Swing
Griffith, Indiana                                         Johnson & Bell, P.C.
                                                          Crown Point, Indiana
David A. Wilson
Steven J. Alvarez
Walter J. Alvarez
Walter J. Alvarez, P.C.
Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Carl Summerhill,                                          December 31, 2015
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          64A03-1503-CT-98
        v.                                                Appeal from the Porter Superior
                                                          Court
Craig Klauer,                                             The Honorable William E. Alexa,
Appellee-Defendant                                        Judge
                                                          Trial Court Cause No.
                                                          64D02-1209-CT-9714



Baker, Judge.




Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015                Page 1 of 21
[1]   Carl Summerhill sued Craig Klauer for negligence following a collision between

      Summerhill’s moped and Klauer’s motorcycle. Following trial, a jury declined

      to find Klauer liable. Summerhill now appeals that judgment, arguing that the

      trial court erred in excluding certain evidence and that he was prejudiced as a

      result. We agree with Summerhill that the trial court erred in excluding the

      testimony of an accident reconstructionist that Summerhill sought to call on his

      behalf. Accordingly, we must remand for a new trial. We discuss Summerhill’s

      other arguments to assist the trial court and the parties upon retrial.


                                                     Facts     1




[2]   On the evening of July 18, 2012, Carl Summerhill was riding his moped to his

      home in Crown Point after meeting with some friends in Valparaiso. As

      Summerhill headed south down route 2, it looked as though a heavy rainstorm

      was about to begin. Summerhill saw a building to his left and decided to turn

      into the parking lot and take shelter under the building’s overhang.


[3]   Craig Klauer and two of his friends, Ryan Patrick and Parry Brown, had been

      following behind Summerhill on their motorcycles. Patrick was traveling faster

      than Summerhill and passed Summerhill on the left side. Klauer followed

      behind Patrick and attempted to pass Summerhill in the same manner. While

      Klauer was passing Summerhill, Summerhill attempted to turn left. The rear




      1
        We held oral argument in this case on November 5, 2015, in Indianapolis. We would like to thank counsel
      for both parties for their exceptional oral advocacy.

      Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015                    Page 2 of 21
      left side of Summerhill’s moped collided with the front right side of Klauer’s

      motorcycle. The collision sent Summerhill off the road and into the parking lot

      where he ended up on the ground.


[4]   Officer LaMotte arrived at the scene and spoke with Klauer while paramedics

      attended to Summerhill. Officer LaMotte then filled out a crash report. As to

      the “Primary Cause” of the accident, Officer LaMotte checked a box labelled

      “Improper Turning.” Defendant’s Ex. 1. Summerhill had fractured his hip as a

      result of the accident and had to be taken to the hospital. Officer LaMotte later

      went to the hospital to speak with Summerhill. Summerhill had plates and

      screws placed on his hip as a result of his injuries and needed to use a walker

      and crutches for several months. He amassed over $80,000 in medical bills.


[5]   On September 21, 2012, Summerhill filed a complaint in the trial court alleging,

      among other things, that Klauer had failed to maintain reasonable care and

      control in the operation of his motorcycle, had followed too closely, and had

      driven at an unsafe speed under the conditions. Klauer filed an answer denying

      the allegations.


[6]   Summerhill planned to call upon Timothy Spencer, an experienced police

      officer and accredited accident reconstructionist, to testify at trial. After visiting

      the scene of the accident, speaking to Summerhill, and reviewing photographs

      of the damage to the vehicles involved, Spencer wrote up a report detailing his

      opinion as to the cause of the accident. In this report, Spencer criticized Officer

      LaMotte’s crash report as follows:


      Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 3 of 21
              Officer Lamotte’s crash report indicates that Mr. Summerhill was
              attempting a left turn at the time of the crash. The statements of
              both drivers ostensibly corroborate this, as they are written in the
              crash report. At this point, however, the statements of the two
              drivers begin to differ. Mr. Summerhill is listed in the crash
              report as having indicated that he was traveling in the “middle of
              the lane, signaled to turn left” when he began his turn into the
              warehouse complex. Mr. Klauer is listed as having made the
              claim that Mr. Summerhill was “driving on the fog line and
              made a sudden left turn.”


              The Indiana Officer’s Standard Crash Report lists the primary
              cause of this crash as “Improper Turning” and attributes this as a
              Driver Contributing Circumstance to Mr. Summerhill. So, in
              common terms, the Officer listed Mr. Summerhill as being at
              fault for “Improper Turning.”


              In my opinion, listing Mr. Summerhill as being at fault in this
              crash was done in error.


                                                       ***


              [T]he implication seems to be that if a left turn was made from the
              right side of a travel lane, that turn would be “improper.” Title 9
              does not support this. It would seem more appropriate to list
              “Improper Passing” and/or “Following Too Closely” as primary
              cause/causes and attribute these to Mr. Klauer.


      Appellant’s App. p. 47-49. Spencer had also produced an animation of the

      crash, which Summerhill planned to present as well.


[7]   On April 14, 2014, Klauer filed a motion to exclude Spencer from testifying at

      trial. Klauer argued that Spencer’s testimony was inadmissible under Indiana

      Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 4 of 21
      Evidence Rule 702 because his opinions were not based on scientifically sound

      analysis. On July 17, 2014, the trial court granted Klauer’s motion, reasoning

      as follows:


              [T]he record indicates that Mr. Spencer merely took Plaintiff’s
              testimony, observations from a short amount of time at the
              approximate location of the accident, and a couple of
              photographs of one of the vehicles into account when reaching
              his opinion that, not only is Defendant at fault for the accident,
              but also what exactly occurred between the two parties leading
              up to the crash, in order to create his animation. Mr. Spencer
              has not explained in his expert report how he can be so sure that
              Defendant was at a certain position in his lane, how fast the
              parties were going, how closely one party was to the other, etc.—
              all of these being issues that Mr. Spencer cites as factors leading
              to the cause of the crash. There is a significant gap between the
              inputs used by Mr. Spencer and the opinion he reached as
              evidenced in his expert report and animation video. Therefore,
              Mr. Spencer has not exhibited the reliability of his expert opinion
              evidenced in both his Expert Report and animation.


      Id. at 66. Accordingly, the trial court determined that Spencer’s testimony and

      animation were inadmissible under Indiana Evidence Rule 702.


[8]   A jury trial commenced on March 2, 2015. The testimony of several witnesses

      to the accident differed significantly. Summerhill testified that he was in the

      center of the lane and had his left turn signal on before he attempted his turn.

      Another witness, Lindsay Sopcich, who claimed to have been following behind

      Summerhill in her car when she witnessed the accident, largely corroborated

      Summerhill’s version of events. On the other hand, Klauer testified that

      Summerhill was on the right side of the lane and had his right turn signal on
      Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 5 of 21
       before he attempted to turn left. Klauer also called Sopcich’s testimony into

       question, claiming that there was no car between him and Summerhill when he

       attempted his pass. Patrick and Brown both testified, largely corroborating

       Klauer’s version of events.


[9]    During trial, Officer LaMotte’s crash report was entered into evidence without

       objection. Tr. p. 362. Klauer also presented the testimony of Steven Neese, an

       accident reconstructionist. Neese used the testimony of different witnesses, as

       well as pictures of damage to the vehicles, to produce diagrams and animations

       showing how the accident could have happened. The diagrams and animations

       differed according to whose testimony Neese had used to produce them. All

       animations showed Klauer attempting to pass Summerhill, Summerhill turning

       left, and Klauer hitting the rear left side of Summerhill’s moped. They differed

       only as to Klauer and Summerhill’s initial positioning within the lane.

       Summerhill did not object to the introduction of Neese’s testimony. Id. at 394.


[10]   Klauer also called upon Officer LaMotte to testify at trial. During his

       testimony, the parties held a sidebar with the trial court regarding whether

       Officer LaMotte should be allowed to testify as to his opinion regarding the

       cause of the accident. Id. at 369-79. Summerhill objected, arguing that Officer

       LaMotte was not an accident reconstructionist and any opinion he gave would

       not be based upon scientifically sound principles. The trial court sustained

       Summerhill’s objection and Officer LaMotte was not allowed to testify as to

       what he believed the cause of the accident to be. Id. at 379.



       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 6 of 21
[11]   The trial court made three more evidentiary rulings that were adverse to

       Summerhill. First, in an attempt to impeach Klauer’s credibility, Summerhill

       sought to introduce evidence that Klauer had been convicted of check deception

       in 1993. The trial court ruled that this evidence was inadmissible under Indiana

       Evidence Rule 609, as Klauer’s conviction was well over ten years old.

       Summerhill also sought to introduce the testimony of Dr. Erika Mitchell that,

       because Summerhill had fractured his hip, “[h]e is more likely to have post

       traumatic arthritis of that hip than someone who has never had a fracture of the

       hip socket.” Appellant’s Br. p. 20. The trial court determined that this

       evidence was speculative and, therefore, inadmissible.


[12]   Finally, Summerhill sought to introduce evidence that Sopcich called the police

       to report the accident the following morning. Summerhill believed evidence

       was necessary to rebut Klauer’s implicit assertion that Sopcich had not

       witnessed the accident. The trial court ruled that such evidence was

       inadmissible because it did not believe rebuttal was necessary. Tr. p. 517-18.


[13]   On March 5, 2015, the jury returned a verdict in favor of Klauer. Summerhill

       now appeals.


                                     Discussion and Decision

                          I. Exclusion of Spencer’s Testimony
[14]   Summerhill first argues that the trial court erred in granting Klauer’s motion to

       exclude Spencer’s testimony. Evidentiary rulings, including a decision to

       exclude expert testimony, lie solely within the discretion of the trial court and

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 7 of 21
       will be reversed only for an abuse of discretion. Estate of Borgwald v. Old Nat’l

       Bank, 12 N.E.3d 252, 256 (Ind. Ct. App. 2014).


[15]   Indiana Evidence Rule 702 governs the admissibility of testimony by expert

       witnesses. It provides that:

               (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 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.


       Evid. R. 702. The trial court acts as a gatekeeper when determining the

       admissibility of opinion evidence under Rule 702. Estate of Borgwald, 12 N.E.3d

       at 257.


[16]   An expert witness must meet two requirements to testify:


               First, the subject matter must be distinctly related to some
               scientific field, business, or profession beyond the knowledge of
               the average person. Second, the witness must have sufficient
               skill, knowledge, or experience in that area so that the opinion
               will aid the trier of fact.


       Turner v. State, 720 N.E.2d 440, 444 (Ind. Ct. App. 1999). “Once the

       admissibility of the expert’s opinion is established under Rule 702, ‘then the

       accuracy, consistency, and credibility of the expert’s opinions may properly be

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015    Page 8 of 21
       left to vigorous cross-examination, presentation of contrary evidence, argument

       of counsel, and resolution by the trier of fact.’” Estate of Borgwald, 12 N.E.3d at

       257 (quoting Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001)).


[17]   Accident reconstruction has been defined as “[t]he science of examining all

       evidence, including physical evidence, that exists as a result of an accident and

       analyzing it in line with established principles of mathematics and physics in

       order to re-create or otherwise reenact the event.” Black’s Law Dictionary

       (10th ed. 2014). To reconstruct the accident in this case, Spencer, as well as

       Neese, relied upon photographs and observations of damage to the vehicles as

       well as the statements of parties and witnesses. Klauer has never maintained

       that Spencer was not qualified and he does not take issue with the type of

       evidence Spencer relied upon in reaching his conclusion—nor could he, as it is

       exactly the same evidence relied upon by Neese. See Tr. p. 417-18.


[18]   Rather, Klauer takes issue with the scope of the evidence Spencer relied upon

       and the fact that he used it to draw any conclusion at all. He distinguishes what

       he believes to be Spencer’s inadmissible testimony from Neese’s admissible

       testimony by pointing out that Neese reconstructed several different scenarios,

       which varied depending on whose testimony was considered, and that Neese

       did not form an opinion as to who was at fault. Spencer, on the other hand, did

       not take into account other witnesses’ versions of events. Instead, he relied




       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 9 of 21
       upon conversations he had with Summerhill2 and Sopcich’s deposition

       testimony, which corroborated Summerhill’s version, and looked at physical

       evidence to reach the conclusion that Klauer was likely at fault.


[19]   It was Spencer’s failure to take into account more evidence than he did that, in

       the opinion of both Klauer and the trial court, resulted in a “gap between the

       inputs” he used “and the opinion he reached” and rendered his testimony

       inadmissible. Appellant’s App. p. 66. In reaching this conclusion, the trial

       court relied on this Court’s decision in Lytle v. Ford Motor Company, a case

       focused on expert testimony regarding possible seatbelt malfunction. 814

       N.E.2d 301 (Ind. Ct. App. 2004). We believe the trial court erred in applying

       Lytle’s reasoning to the facts of this case.


[20]   Lytle involved an automobile accident in which a passenger was thrown from a

       vehicle. Id. at 304. The plaintiff sought to introduce expert testimony that the

       passenger seatbelt may have inadvertently unlatched during the crash. Id. at

       310-15. The trial court determined that such testimony was inadmissible and

       granted summary judgment in favor of Ford. Id. at 307.


[21]   This Court affirmed on appeal, noting that there was a significant gap between

       the data used by the expert and the conclusion he reached. Id. at 313. We held




       2
         Klauer appears to attach some importance to the fact that Spencer relied upon Summerhill’s out-of-court
       statements in reaching his conclusion. However, we fail to see the significance of this point, as Indiana
       Evidence Rule 703 provides that “[e]xperts may testify to opinions based on inadmissible evidence,” and, in
       any event, Summerhill later testified to his version of events before the jury at trial.

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015                     Page 10 of 21
       that “proof of ‘inadvertant unlatch’ should require a specific scientific analysis”

       and that such analysis was lacking. Id. at 311. We noted that the expert had

       “simply twisted and pushed two seatbelts together without any evidence that

       the accident could have resulted in the same forces, direction, duration,

       rotations, or load conditions as his manipulations.” Id. Accordingly, we

       concluded that Lytle’s “purported expert testimony failed to comply with

       Indiana Evidence Rule 702(b), inasmuch as Lytle failed to show that his

       opinions were based upon reliable scientific principles.” Id. at 312.


[22]   We also distinguished the situation in Lytle from other cases in which expert

       witnesses “simply assisted the trier of fact based on [their] greater skill,

       knowledge or experience, to evaluate physical evidence that was already before

       the trial court.” Id. (discussing Malinski v. State, 794 N.E.2d 1071 (Ind. 2003);

       PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705 (Ind. Ct. App. 2004)). We

       noted that, unlike these other cases, there was “no way for a jury to determine

       whether what Lytle says happened in the vehicle during the accident sequence

       actually occurred.” Id. (emphasis original).


[23]   In contrast to Lytle, the principles of accident reconstruction employed by

       Spencer certainly meet Rule 702(b)’s reliability requirement. We reiterate that

       Klauer would have a hard time arguing otherwise, as his expert based his

       testimony on the very same principles. These principles have been described,

       and understood, by countless juries and are easily comprehended by people of

       ordinary intelligence. Lytle is therefore a far cry from the present case in this

       regard.

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 11 of 21
[24]   Furthermore, Lytle involved the admissibility of expert testimony as to a

       hypothetical scenario when there was no evidence as to whether that scenario

       actually described the facts of the particular case. This is in contrast to this

       case, where there seems to be no dispute over what the physical evidence

       indicates, and while the causative scenarios differ depending on whose

       testimony is considered, each scenario is nevertheless plausible and supported

       by some evidence. Furthermore, all of the evidence relied upon by both experts

       in this case was also before the jury. Thus, the jury was not being asked, as it

       would have been in Lytle, to simply guess whether a scenario proposed by an

       expert coincided with reality. Rather, it could look to the same evidence that

       the expert had and choose for itself the weight to assign to the expert’s opinion.


[25]   Nor do we believe that Spencer should have been precluded from testifying

       because he gave his opinion as to the cause of the accident. While Klauer’s

       negligence is ultimately a question for the jury, we have previously held expert

       opinion testimony admissible “even on the ultimate issue of the case, so long as

       the testimony concerns matters which are not within the common knowledge

       and experience of ordinary persons and the testimony will aid the jury.” Koziol

       v. Vojvoda, 662 N.E.2d 985, 991 (Ind. Ct. App. 1996).


[26]   For instance, among the statutes relevant to the jury’s determination in this case

       is Indiana Code section 9-21-8-5, which deals with overtaking and passing on

       the roadways. It provides:

               A person who drives a vehicle overtaking another vehicle
               proceeding in the same direction shall pass to the left of the other
       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 12 of 21
               vehicle at a safe distance and may not again drive to the right side
               of the roadway until safely clear of the overtaken vehicle.


       I.C. § 9-21-8-5 (emphasis added). While the question of whether Klauer

       attempted his pass at a safe distance is one for the jury, prior decisions of this

       Court make clear that qualified experts may give their opinion on such issues

       under certain circumstances.


[27]   This Court has previously allowed an investigating police officer to give his

       opinion as to the cause of an accident where “the jury knew the factual basis for

       his opinion,” which was “based on his experience and training” and “was of

       some use to the jury.” State v. Bouras, 423 N.E.2d 741, 746 (Ind. Ct. App.

       1981). Similarly, in Dorsett v. R.L. Carter, Inc., we held that an accident

       reconstructionist could testify as to who was at fault in an accident even though

       he was unable to adequately explain his reasoning. 702 N.E.2d 1126, 1128

       (Ind. Ct. App. 1998). We noted that “[t]he lack of facts and reasoning, which

       may be brought out on cross-examination of the expert, goes to the weight to be

       given to the expert’s opinion, not its admissibility.” Id. The situation we are

       presented with here is simply not distinguishable.


[28]   In sum, contrary to Klauer’s assertion, Rule 702 does not dictate that an

       expert’s opinion must be excluded in any case where there is evidence in the

       record that tends to contradict that opinion. Opposing parties can be expected

       to present conflicting expert testimony when advocating their respective

       positions and Rule 702 contains no general even-handedness requirement.

       Accident reconstruction commonly relies on witness statements and Klauer was
       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 13 of 21
       free to make the jury aware of this and probe the accuracy of Spencer’s

       conclusions insofar as they relied on those statements on cross-examination.3

       Furthermore, all of the evidence Spencer relied on in reaching his conclusions

       was before the jury. As Lytle presented the exact opposite set of circumstances

       in this regard, its holding is not applicable here. Simply put, Spencer was

       qualified to reconstruct the accident and give his opinion as to its cause, his

       opinion would have been helpful to the jury, and the exclusion of his testimony

       undoubtedly prejudiced Summerhill’s case.4


                                         II. Issues Upon Retrial
[29]   We next discuss several other evidentiary rulings that Summerhill believes were

       made in error to assist the trial court should these issues arise on retrial.


                      A. Exclusion of Klauer’s Prior Convictions
[30]   Summerhill contends that the trial court erred in preventing him from

       introducing evidence that Klauer had been convicted of check deception and

       theft by check in 1993. Indiana Evidence Rule 609, which governs the

       admissibility of evidence of prior convictions, provides:


                (a)      General Rule. For purposes of attacking the credibility of
                         a witness, evidence that the witness has been convicted of



       3
        Klauer could accomplish this in much the same way Summerhill did during his cross-examination of
       Neese. Summerhill was able to show the jury that Neese’s diagrams were dependent on certain testimony
       and would differ depending upon whose testimony was considered. Tr. p. 468-70.
       4
        This is especially true in light of the fact that Klauer was able to admit into evidence a police report, written
       by an officer not trained in accident reconstruction, which listed Summerhill as being at fault for the accident.

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015                          Page 14 of 21
                        a crime or an attempt of a crime must be admitted but only
                        if the crime committed or attempted is (1) murder, treason,
                        rape, robbery, kidnapping, burglary, arson, or criminal
                        confinement; or (2) a crime involving dishonesty or false
                        statement, including perjury.


               (b)      Limit of Using Evidence After 10 Years. The subdivision
                        (b) applies if more than ten (10) years have passed since
                        the witness’s conviction or release from confinement for it,
                        whichever is later. Evidence of the conviction is
                        admissible only if:


                        (1)      its probative value, supported by specific facts and
                                 circumstances substantially outweighs its prejudicial
                                 effect; and


                        (2)      the proponent gives an adverse party reasonable
                                 written notice of the intent to use it so that the party
                                 has a fair opportunity to contest its use.


[31]   Summerhill acknowledges that Klauer’s convictions are well over twenty years

       old and are therefore subject to analysis under Rule 609(b). We have previously

       observed that Rule 609(b) is biased against admissibility. Dowdy v. State, 672

       N.E.2d 948, 951 (Ind. Ct. App. 1996). However, this presumption may be

       overcome if the party seeking to introduce evidence of the aged conviction can

       show that its probative value substantially outweighs its prejudicial effect. Id.


[32]   In weighing the probative value of a conviction against the unfair prejudice to a

       witness, the trial court may consider a range of factors: including




       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015      Page 15 of 21
               (1) the impeachment value of the prior crimes; (2) the point in
               time of the convictions and the witness’ subsequent history; (3)
               the similarity between the past crime and the charged crime; (4)
               the importance of the witness’ testimony; and (5) the centrality of
               the credibility issue.


       Saunders v. State, 848 N.E.2d 1117, 1123 (Ind. Ct. App. 2006). This list is not

       exhaustive and other factors may be considered as well. 13 ROBERT LOWELL

       MILLER, JR., INDIANA PRACTICE § 609.202 (3d ed. 2007).


[33]   As the party seeking to admit the convictions, Summerhill “must support the

       argument for probative value with specific facts and circumstances upon which

       the trial court may base a finding of admissibility.” Id. He makes three main

       points in support of admissibility. First, he argues that the convictions are

       highly probative because they were for crimes of dishonesty, which reflects

       poorly on Klauer’s character for truthfulness. Second, he argues that witness

       credibility is central to this case as the witnesses present conflicting versions of

       events.


[34]   Third, and most importantly, he argues that the convictions are highly

       probative because Klauer was initially dishonest when asked about them during

       discovery. Prior to trial, Klauer answered an interrogatory indicating that he

       had no prior convictions involving fraud or dishonesty. This, of course, was

       untrue. Summerhill believes that this reflects poorly on Klauer’s credibility and

       that he should be able to introduce evidence of Klauer’s convictions as a

       foundation for demonstrating that Klauer gave false answers to interrogatories.



       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 16 of 21
[35]   We find this argument very persuasive. Regardless of whether the fact of

       Klauer’s pretrial dishonesty relates to any of the above-mentioned factors—we

       reiterate that the list is not exhaustive—we find such dishonesty highly

       pertinent to the Rule 609(b) analysis. Evidence that a witness lied under oath

       during the same proceedings in which he is now testifying is extremely relevant

       to that witness’s character for truthfulness. This fact dramatically increases the

       probative value of the prior convictions and tips the scales heavily towards

       admissibility. In fact, the Seventh Circuit has previously found no error in a

       trial court’s decision to admit a conviction over ten years old for this very

       reason. Stutzman v. CRST, Inc., 997 F.2d 291, 298-99 (7th Cir. 1993) (witness

       lied about prior convictions under oath during deposition; no error in admitting

       aged conviction when “the recent false statement under oath was quite

       probative” and “it could not be discussed without mentioning the underlying

       conviction”).


[36]   Thus, if the trial court finds that Klauer was dishonest, this factor would

       strongly favor admitting his convictions. Yet it still must be weighed alongside

       other factors, such as the five listed above and any others the trial court deems

       relevant. As this case now stands, there is no need to find that the trial court

       abused its discretion in excluding these convictions from evidence. The record

       does not make clear precisely what was argued before the trial court on this

       issue nor does it give us any insight into the reasons that lay behind the trial

       court’s decision. Tr. p. 257-59. As we have ordered a new trial in this case, the

       trial court will have an opportunity to rule on this issue once more and weigh


       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 17 of 21
       the admissibility of Klauer’s convictions, keeping in mind the points we have

       just discussed.


                    B. Exclusion of Expert Medical Testimony
[37]   Summerhill next argues that the trial court erred in excluding the testimony of

       Dr. Erika Mitchell, who would have testified as to Summerhill’s likelihood of

       developing post-traumatic arthritis. At trial, Summerhill sought to play Dr.

       Mitchell’s videotaped deposition for the jury, in which she testified to her

       opinion that Summerhill was more likely than a person who had not suffered a

       hip fracture to have post-traumatic arthritis in the future. Court’s Ex. 4 p. 51-

       53. The trial court found this testimony too speculative for the jury to hear.


[38]   We believe that the trial court erred in excluding this testimony. Evidence does

       not have to be conclusive to be admissible. Turner v. State, 953 N.E.2d 1039,

       1050 (Ind. 2011). “The weakness of the connection of [the evidence] to the

       defendant goes toward its weight and not its admissibility.” Id. While “a trial

       court does not necessarily abuse its discretion when it requires an expert to

       provide ‘some degree of certainty’ to support the expert’s opinion,” “absolute

       certainty is not required” for medical testimony to be admissible. Strong v. State,

       528 N.E.2d 924, 930 (Ind. 1989) (quoting Heald v. State, 492 N.E.2d 671, 679

       (Ind. 1986)).


[39]   Klauer argues that because Dr. Mitchell “did not provide any testimony as to

       what degree Summerhill’s chances of developing post-traumatic arthritis had

       increased,” her testimony was mere speculation and was “not stated with any

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 18 of 21
       degree of certainty.” Appellee’s Br. p. 20 (emphasis original). However,

       Klauer fails to point us to any authority standing for the proposition that a

       medical expert needs to specify a degree or percentage regarding the likelihood

       that future symptoms will develop for such testimony to be admissible. Here,

       Dr. Mitchell simply sought to testify as follows:


               What I would say is [Summerhill] is more likely than a person
               who has not had an acetabulum fracture to suffer from arthritis of
               that hip.


                                                        ***


               I can only say more likely than a patient who has not had an
               acetabulum fracture.


                                                        ***


               There are several studies that actually show that outcomes in
               patients with significant acetabulum fractures have an increased
               risk of post traumatic arthritis. I based my opinion on that.


       Court’s Ex. 4 at 51-53.


[40]   While expert opinion may be excluded as speculative when it is found to be

       without factual basis, that cannot be said of this testimony. See Clark v. Sporre,

       777 N.E.2d 1166, 1171 (Ind. Ct. App. 2002). Dr. Mitchell based her opinion on

       the nature of Summerhill’s injuries and medical studies on the subject. Klauer

       does not challenge the validity of Dr. Mitchell’s methodology, the studies upon

       which she relied, or her qualifications as an expert. Accordingly, we conclude

       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 19 of 21
       that the trial court erred in excluding portions of Dr. Mitchell’s testimony, as

       questions of the remoteness and the likelihood of future symptoms go to the

       weight that the jury will assign to such evidence and not to its admissibility.


                    C. Evidence that Sopcich Called the Police
[41]   Finally, Summerhill argues that the trial court erred in not allowing him to

       introduce evidence that Lindsay Sopcich, who purportedly witnessed the

       accident, had called the police to report the accident the following morning.

       Summerhill claims that Klauer had called into question whether Sopcich had

       actually witnessed the accident. Summerhill points to Klauer’s opening

       statement, where Klauer asserted that Sopcich was confused as to a number of

       things regarding the accident as well as to the testimony of Klauer, Patrick,

       Brown, and Officer LaMotte, none of whom recalled seeing Sopcich at the

       scene. Summerhill also points out that the jury questioned whether Sopcich

       was at the scene, asking Officer LaMotte if there was a record of Sopcich calling

       the police department. Court’s Ex. 9. When the trial court asked Officer

       LaMotte this question, Officer LaMotte responded that he did not know. Tr. p.

       390.


[42]   Summerhill had a call log indicating that Sopcich had called the station the

       following morning. The call log could have been admitted under Indiana

       Evidence Rule 803(6) had it been authenticated. Summerhill tried to introduce

       the call log during Officer LaMotte’s testimony, but the trial court did not

       permit this line of questioning as Officer LaMotte had not seen the call log


       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 20 of 21
       before. Summerhill then attempted to call C.J. Witmer, the director of the

       Porter County 911 call center, to authenticate the call log and testify that it

       indicated that Sopcich had called. Klauer objected because Witmer had not

       previously been listed as a witness. The trial court did not allow Witmer to

       testify in rebuttal because it did not believe there was anything to rebut.


[43]   We need not consider whether this evidence should have been admitted as we

       cannot see how Summerhill was harmed by its exclusion. Even had

       Summerhill proved that Sopcich called the police the day after the accident, this

       fact does not tend to prove that she was there to witness the accident the day

       before. As such, any error that may have been committed was harmless.

       However, if Summerhill believes this evidence is necessary, he is free to lay a

       proper foundation and introduce it upon retrial.


[44]   The judgment of the trial court is reversed and the cause is remanded for a new

       trial.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 64A03-1503-CT-98 | December 31, 2015   Page 21 of 21
