                                                                   Sep 09 2015, 8:46 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
David W. Stone, IV                                         Nelson D. Alexander
Stone Law Office & Legal Research                          Kevin C. Schiferl
Anderson, Indiana                                          Blake N. Shelby
                                                           Frost Brown Todd, LLC
Todd A. Glickfield                                         Indianapolis, Indiana
Marion, Indiana

Josef D. Musser
Spitzer Herriman Stephenson Holderman
Musser & Conner, LLP
Marion, Indiana

Michelle Cobourn-Baurley
McNeely Stephension Thopy & Harold
Shelbyville, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Kolby O’Banion, Taylor                                     September 9, 2015
O’Banion, Tim O’Banion &                                   Court of Appeals Cause No.
Kelly O’Banion,                                            27A04-1411-PL-531
                                                           Appeal from the Grant Superior
Michael R. Roush, as Executor                              Court
of the Estate of Karen L. Roush,                           The Honorable Jeffrey D. Todd,
Deceased,                                                  Judge

                                                           Trial Court Cause No.
Indiana Farm Bureau Insurance                              27D01-1010-PL-946
Co. as Subrogee of Karen Roush,                            formerly 27D01-1107-CT-774
Deceased,                                                  formerly 27D01-1107-CT-779




Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015               Page 1 of 23
      Appellants-Plaintiffs,

              v.

      Ford Motor Company,
      Appellee-Defendant.




      Barnes, Judge.


                                              Case Summary
[1]   Kolby, Taylor, Tim, and Kelly O’Banion (“the O’Banions”), Michael Roush as

      Executor of the Estate of Karen Roush (“the Estate”), and Indiana Farm

      Bureau Insurance Company (“Farm Bureau”) (collectively “the Appellants”)

      appeal the trial court’s grant of summary judgment in favor of Ford Motor

      Company (“Ford”). We reverse and remand.


                                                      Issues
[2]   The Appellants raise three issues, which we consolidate and restate as:

              I.       whether the trial court erred in excluding the testimony of
                       David Zedonis; and
              II.      whether the trial court erred in excluding the testimony of
                       William Berg.




      Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015    Page 2 of 23
                                                       Facts
[3]   As background information, it is necessary to understand a car’s throttle

      assembly. There are five main parts of an assembly: the accelerator pedal, the

      throttle cable, a protective sheath through which parts of the cable run, a ferrule

      to bind the cable, and the throttle plate. The throttle cable itself is made of

      seven ropes, which are each made up of seven wires, meaning the throttle cable

      consists of forty-nine wires. As a driver applies pressure to the accelerator

      pedal, the throttle cable transmits force that causes the throttle plate to open.

      Full pressure on the pedal should cause the throttle plate to be “wide open,”

      and releasing pressure should cause the throttle plate to close and return the

      engine to idle.


[4]   On July 29, 2009, Karen was driving southbound on State Road 37 in a 2005

      Mercury Monterey. That road intersects with 26th Street in Marion at an

      intersection controlled by a traffic light. As she approached that intersection,

      the light in her direction was red. Kolby and Taylor were stopped in the

      northbound lane of traffic on State Road 37. Instead of stopping at the red

      light, Karen accelerated through the intersection, struck Kolby and Taylor’s car,

      then left the roadway and struck a light pole. Karen was killed in the accident,

      and Kolby and Taylor were severely injured.


[5]   On October 19, 2010, Farm Bureau, as subrogee of Karen, filed suit against

      Ford to recover proceeds it had paid for damages to the Monterey. Farm

      Bureau alleged that the accident had been caused by a defective throttle

      assembly that caused the Monterey to accelerate uncontrollably through the
      Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 3 of 23
      intersection. On July 20, 2011, the Estate filed a wrongful death action against

      Ford, making the same allegations regarding the throttle assembly. On July 26,

      2011, the O’Banions (brothers Kolby and Taylor and their parents Tim and

      Kelly) filed a third suit against Ford, as well as the Estate. The trial court

      consolidated all three cases for purposes of pretrial proceedings and trial.


[6]   The trial court adopted a case management plan for the combined cases that

      required the Appellants to disclose any expert witnesses to Ford no later than

      September 1, 2013. Any discovery related to expert witnesses was to be

      completed by December 31, 2013. Trial originally was set for April 7, 2014. It

      later was continued to October 20, 2014, with the trial court indicating that no

      further continuances would be granted in the absence of an emergency of some

      type.


[7]   On June 19, 2012, Farm Bureau disclosed that it intended to rely upon the

      testimony of mechanical engineer David Zedonis and a report he had prepared

      on September 16, 2010, regarding the throttle of the Monterey having allegedly

      malfunctioned. On January 15, 2013, the Estate disclosed that it intended to

      rely upon both Zedonis and William Berg, Ph.D., another mechanical engineer.

      On September 3, 2013, Farm Bureau and the Estate filed a joint disclosure that

      they both intended to rely upon the expert testimony of Zedonis and Berg and

      reports they had prepared. The O’Banions did not file a separate expert witness

      disclosure list; on August 7, 2014, they filed a final witness list indicating that

      they would rely upon witnesses called by either Ford or the Estate.



      Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 4 of 23
[8]    On August 29, 2013, Zedonis wrote an updated report, based on additional

       examinations of the vehicle and other discovery. In the updated report,

       Zedonis opined among other things that the throttle cable had become stuck

       within the sheath and, “The worn and fraying condition of the throttle cable on

       the Roush’s 2005 Mercury Monterey represented an unreasonably dangerous

       vehicle defect for Mrs. Roush.” App. p. 105. Zedonis’s report also stated that

       other Ford vehicles from this time period were reported to have similar throttle

       issues but that Ford had taken little action in response to such reports. The

       report also noted, “The specific cause of the heavily worn throttle wear has not

       been specifically determined as of yet.” Id. at 113.


[9]    On October 9, 2013, Ford deposed Zedonis regarding the opinions expressed in

       his 2010 and 2013 reports. During the deposition, Zedonis stated that the

       throttle cable on Roush’s vehicle had fractured “near the nose tip of the throttle

       sheath and ferrule in the engine compartment.” Id. at 118. Counsel for Ford

       asked Zedonis whether he had measured the actual throttle cable, and he said

       he had not. Zedonis also stated, in response to questioning, that he could not

       specifically state where the throttle cable had stuck inside of the sheath, but he

       opined that the accident occurred when the throttle was at the wide open

       position.


[10]   Counsel for Ford also had the following exchanges with Zedonis:

               Q:      It’s very simple. If the fracture is not at a location where the
               throttle would be held open at or near wide open throttle, then your
               opinion that the cable bound at that location is inconsistent with the
               physical evidence; correct?
       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015        Page 5 of 23
        A:      I mean, I would consider all that to assess what you’re asking
        me the question to, but I—you know, right now, I see wear and
        fraying, and your discovery materials show wear and fraying can cause
        sticking throttles, as well as all the recalls. To me it’s let’s look at the
        most obvious situation here.
        Q:      Now, why is her not applying the wrong pedal a most obvious
        situation?
        A:       I mean, I can’t exclude that.
        Q:       You can’t exclude it.
        A:       No.
                                               *****
        Q:     And if it occurred at a location where the throttle plate would
        have been open less than [wide open throttle], which is what you’ve
        already told us that the accident took place at, then your theory that it
        bound at [wide open throttle] is not correct; right?
        A:     Again, you know, if we do additional work, we may draw that
        conclusion. But, you know, right here, as I sit here today, we’ve
        talked about a lot of things, you’ve given me some items to think
        about, and I’m not going to—I mean, my opinions are still the way
        they are today, as we sit here without doing any further work.
                                               *****
        Q:      Your hypothesis that you haven’t tested is that it would bind
        inside the sheath; correct?
        A:       Yes.
        Q:     And your hypothesis that you haven’t tested yet is that it would
        bind somewhere in the ferrule; correct?
        A.       Yes.
                                               *****
        Q:    And so now you’re thinking that it may have bound up there?
        You haven’t taken any issue with the Teflon sheath, have you?
        A:     No. Not that I know of. I mean, to me it’s one of those things
        where, you know, if we can actually cut this thing apart and actually
        look at it carefully and cut other parts, then we can try to ascertain
        exactly what the problem was. But right now I’ve got excessive wear

Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015         Page 6 of 23
               and—so I—I mean, that’s—and fraying, to me, it’s pretty simple. It
               wore a fray.
               And the other things is, I mean, we already covered this a little bit, is
               the wear area on the cable itself would be a transitioning portion of the
               cable that moved relative to the ferrule and the wiper; and so,
               therefore, what you have is, you know, that stuff would be then, under
               a wide open throttle scenario, would be basically translated into the
               cable itself—
               Q:       You haven’t measured the cable.
               A:       —into the core.
               Q:       You haven’t measured the cable; right?
               A:       I have not.
       Id. at 120, 121-22, 124, 125-26.


[11]   On August 13, 2013, Berg filed a report addressing the “engineering and human

       factors” connected with the accident. Id. at 84. Berg’s report relied upon

       Zedonis’s conclusion that Roush’s vehicle “had a throttle cable defect that

       precipitated the sudden/unwanted acceleration incident. Given the presence of

       that vehicle condition, the subsequent guidance and control actions exhibited

       by Ms. Roush were analyzed using engineering and human factors

       fundamentals and methods of analysis.” Id. at 88. Berg ultimately concluded:

               [T]here is no basis to conclude that Ms. Roush committed a pedal
               error, nor is there any basis to conclude that she did not respond to the
               situation involving the sudden/unwanted acceleration of her vehicle in
               a confined area in a manner that would be reasonably predictable
               based on typical driver knowledge and normal patterns of driver
               behavior.
       Id.




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015     Page 7 of 23
[12]   On December 27, 2013, Ford filed a motion for summary judgment and a

       motion to exclude any testimony by Zedonis. Specifically, Ford asserted that

       “Zedonis’ opinions regarding the Monterey’s allegedly defective throttle lack

       any viable engineering foundation and, thus, amount to pure speculation and

       conjecture.” Id. at 94. It also claimed Zedonis was “unable to distinguish in

       any legitimate engineering fashion whether the fray he found was ‘the cause’ as

       opposed to ‘the result’ of the collision. Further, Zedonis admits that the

       fractured cable was due to the force of the collision and not any defect.” Id.


[13]   In response to Ford’s motion for summary judgment and motion to exclude

       Zedonis’s testimony, Zedonis filed an affidavit in which he stated:

               It is my opinion, to a reasonable degree of engineering certainty, the
               cause of the accident was a stuck throttle cable with excessive wear
               failure in the stainless steel throttle cable rope that, in turn, resulted in
               some of the cable strands becoming disturbed and binding inside the
               cable assembly, preventing the throttle from returning to idle. I base
               this opinion upon my inspection of the subject vehicle, my
               examination of an exemplar vehicle, microscopic and x-ray analysis of
               the subject throttle cable and sheath, review of the materials produced
               by Ford in discovery, including a number of vehicle recalls, plus my
               extensive training and experience as a mechanical engineer and
               accident reconstructionist.
       Id. at 171. Zedonis also stated, “There can be no dispute that the throttle cable .

       . . shows signs of extensive wear, more extensive than one would anticipate in a

       car with 68,417 miles on the odometer.” Id. He asserted that his analysis did

       not depend upon pinpointing the exact cause of the fraying of the throttle cable

       and that it was clear from the evidence that the fray was not caused by the

       collision but pre-existed it. He further stated that the measurement of the

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015         Page 8 of 23
       throttle cable was irrelevant to his findings of excessive wear. Ford moved to

       strike Zedonis’s affidavit, claiming it stated new opinions and facts not related

       in his earlier reports and deposition.


[14]   On May 8, 2014, the trial court denied Ford’s motion for summary judgment

       and motion to exclude Zedonis’s testimony; it also denied Ford’s motion to

       strike Zedonis’s affidavit. On July 24, 2014, Ford renewed its motion to

       exclude Zedonis’s testimony and moved to exclude Berg’s testimony as well.

       This motion originally did not assert any new grounds for excluding Zedonis’s

       testimony. As for Berg, Ford asserted that he was unqualified to offer opinions

       on the mechanical or electrical functioning of an automobile, and that “his

       reliance on Zedonis’ inadmissible opinions renders his opinions inadmissible.”

       Id. at 463.


[15]   On September 4, 2014, Ford redeposed Zedonis. At that time, Zedonis

       revealed that he had been asked by the Estate’s attorney to conduct additional

       testing. During this deposition, Zedonis stated that he had now measured the

       throttle cable after it had been sealed in an evidence bag. He also had

       continued taking photographs up until the morning of the deposition. Zedonis

       stated, in response to questioning from Ford, that experiments conducted by

       him failed to cause a throttle cable to bind and that there was “no physical

       evidence” for his hypothesis that cable strands had become disturbed and

       bound inside of the throttle cable assembly. Id. at 490.




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 9 of 23
[16]   On September 15, 2014, Ford filed a supplement to its motion to exclude

       Zedonis’s testimony, based on his continuing to conduct tests after the previous

       deposition and affidavit and after the case management plan’s discovery

       deadline.1 In response to Ford’s motion to exclude, the Estate filed an affidavit

       from Berg stating in part:

                Contrary to Ford’s assertion, I do not purport to opine that the subject
                accident was caused by a stuck throttle cable. As I understand it, that
                analysis will be offered by plaintiff’s mechanical expert. What I have
                done, however, is to analyze the guidance and control actions
                exhibited by Mrs. Roush assuming the vehicle malfunctioned in that
                manner. Applying the principles of engineering and human factors, I
                found that there is no basis to conclude that Mrs. Roush committed a
                pedal error or that she did not respond in a way that was reasonably
                predictable based on typical driver knowledge and normal patterns of
                driver behavior.
       Appellee’s App. p. 172.2


[17]   On September 29, 2014, the trial court entered an order excluding all testimony

       of Zedonis and Berg. Ford thereafter renewed its motion for summary

       judgment. The trial court granted summary judgment to Ford. The Appellants

       now appeal.




       1
        With this supplement, Ford provided the trial court with limited excerpts from Zedonis’s most recent
       deposition. On appeal, Ford has included the entire deposition in its appendix without indicating that it was
       ever filed with the trial court. We limit our consideration on appeal to the pages of the deposition Ford
       provided to the trial court.
       2
        We have granted Ford’s motion to strike a different, unfiled version of Berg’s affidavit from the Appellants’
       Appendix, as well as portions of the Appellants’ Brief referring to the unfiled affidavit. Ford provided the
       actual, filed affidavit in its appendix, and that is the version we quote here.

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015                      Page 10 of 23
                                                     Analysis
[18]   We first address Ford’s assertion that the O’Banions lack standing to challenge

       the trial court’s ruling excluding the testimony of Zedonis and Berg because

       they did not disclose them as expert witnesses upon whom they intended to rely

       at trial until well after the trial court’s deadline for disclosing such witnesses. In

       order to have standing to pursue an appeal of an order, a party must have a

       “‘sufficient stake in an otherwise justiciable controversy.’” Simon v. Simon, 957

       N.E.2d 980, 987 (Ind. Ct. App. 2007) (quoting Indiana Civil Rights Comm’n v.

       Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999)). The point of the

       standing requirement is “to insure that the party before the court has a

       substantive right to enforce the claim that is being made in the litigation.” Id.

       “In order to have standing, the challenging party must show adequate injury or

       the immediate danger of sustaining some injury.” Id.


[19]   We are hard-pressed to discern why we should issue a ruling that the O’Banions

       lack standing in this appeal. They have joined a brief also signed onto by Farm

       Bureau and the Estate, and Ford makes no argument that Farm Bureau or the

       Estate lack standing. The O’Banions likewise are necessarily parties in this

       appeal under Indiana Appellate Rule 17(A) because they were parties of record

       below. To hold that the O’Banions had no standing in this appeal would have

       no practical effect on its outcome.


[20]   Additionally, we note that our supreme court has held that pretrial disclosure of

       witnesses fulfills the purpose of providing all parties “‘with information


       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 11 of 23
       essential to the litigation of all relevant issues, to eliminate surprise, and to

       promote settlement with a minimum of court involvement.’” McCullough v.

       Archbold Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993) (quoting Canfield v.

       Sandock, 563 N.E.2d 526, 528 (Ind. 1990)). Ford is making no argument that

       the trial court should have excluded the O’Banions from relying on Zedonis and

       Berg at trial, aside from the general reasons applicable to all of the Appellants.

       Ford fails to explain how it would be unfairly prejudiced by the O’Banions

       relying on the experts, where it has been fully aware of the existence of Zedonis

       and Berg and their opinions for some time and the O’Banions’ case has been

       fully consolidated with those of Farm Bureau and the Estate. And, although it

       is true that the O’Banions must separately prove their case against Ford, the

       evidence related to whether the crash resulted from a manufacturing defect

       would be identical to the evidence presented by Farm Bureau and the Estate.

       With that said, we address the merits of the Appellants’ claims.


                                            I. Zedonis’s Testimony

                          A. Admissibility under Indiana Evidence Rule 702

[21]   We first address the admissibility of Zedonis’s testimony, as the admissibility of

       Berg’s testimony is largely contingent upon that issue. Indiana Evidence Rule

       702 provides:

               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an opinion
               or otherwise if the expert’s scientific, technical, or other specialized
               knowledge will help the trier of fact to understand the evidence or to
               determine a fact in issue.


       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 12 of 23
               (b) Expert scientific testimony is admissible only if the court is satisfied
               that the expert testimony rests upon reliable scientific principles.
       Trial courts are the gatekeepers for expert opinion evidence. Akey v. Parkview

       Hosp. Inc., 941 N.E.2d 540, 543 (Ind. Ct. App. 2011), trans. denied. We will

       reverse a trial court’s decision regarding the admissibility of expert testimony

       only if it 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.


[22]   This case concerns the admissibility of a mechanical engineer’s testimony. The

       “specialized knowledge” referred to in Evidence Rule 702(a) includes more

       than just scientific knowledge, and expert testimony other than scientific

       testimony need not be proven reliable by means of “scientific principles.” Lyons

       v. State, 976 N.E.2d 137, 142 (Ind. Ct. App. 2012) (citing Malinski v. State, 794

       N.E.2d 1071, 1084 (Ind. 2003)). “Rather, such evidence is governed only by

       the requirements of Rule 702(a), and any weaknesses or problems in the

       testimony go only to the weight of the testimony, not to its admissibility, and

       should be exposed through cross-examination and the presentation of contrary

       evidence.” Id. (citing Turner v. State, 953 N.E.2d 1039, 1050 (Ind. 2011)).


[23]   This court has specifically held that mechanical engineering is specialized or

       technical knowledge, not scientific knowledge subject to the limits of Evidence

       Rule 702(b). Fueger v. Case Corp., 886 N.E.2d 102, 106-07 (Ind. Ct. App. 2008),

       trans. denied. We explained in Fueger:




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015       Page 13 of 23
               Where an expert’s testimony is based upon the expert’s skill or
               experience rather than on the application of scientific principles, the
               proponent of the testimony must only demonstrate that the subject
               matter is related to some field beyond the knowledge of lay persons
               and the witness possesses sufficient skill, knowledge or experience in
               the field to assist the trier of fact to understand the evidence or to
               determine a fact in issue.
       Id. at 105.


[24]   We acknowledge that other cases have seemed to assume that mechanical

       engineering is a scientific discipline for purposes of Evidence Rule 702. See, e.g.,

       WESCO Distrib., Inc. v. ArcelorMittal Indiana Harbor LLC, 23 N.E.3d 682, 696,

       699 (Ind. Ct. App. 2014), trans. dismissed. Even where scientific testimony is

       concerned, Evidence Rule 702 is not intended “to interpose an unnecessarily

       burdensome procedure or methodology for trial courts.” Sears Roebuck & Co. v.

       Manuilov, 742 N.E.2d 453, 460 (Ind. 2001). Although the rule authorizes the

       exclusion of purported scientific evidence if the trial court finds that it is based

       on unreliable principles, the adoption of the rule was intended “to liberalize,

       rather than to constrict, the admission of reliable scientific evidence.” Id.

               Once the trial court is satisfied that the expert’s testimony will assist
               the trier of fact and that the expert’s general methodology is based on
               reliable scientific principles, then the accuracy, consistency, and
               credibility of the expert’s opinions may properly be left to vigorous
               cross-examination, presentation of contrary evidence, argument of
               counsel, and resolution by the trier of fact.
       Id. at 461.


[25]   Here, there is no claim or argument by Ford that Zedonis lacked the necessary

       engineering qualifications to analyze and offer opinions regarding the throttle

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015       Page 14 of 23
       mechanism of Karen Roush’s Mercury Monterey. Instead, Ford takes issue

       with various particulars of Zedonis’s analysis and his ultimate opinion that the

       throttle cable inside the vehicle had excessive wear, leading to some of the

       strands that made up the cable binding inside of the cable assembly and

       preventing the throttle from returning to idle—thus leading to the crash when

       Karen drove through an intersection at high speed. Zedonis explained that he

       reached this hypothesis about the throttle cable based on examination of an

       exemplar vehicle, microscopic and x-ray examination of the Monterey’s throttle

       cable and surrounding sheath, review of documentary materials related to

       throttle cables and recalls of them, and his training and experience as a

       mechanical engineer and accident reconstructionist.


[26]   Ford points to what it asserts are two primary fatal weaknesses in Zedonis’s

       analysis. First, it claims that Zedonis could not specify precisely where the

       purported fraying and fracture of the throttle cable took place within the sheath

       surrounding the throttle cable, in part because he did not measure the cable. 3 If

       the cable did not become frayed or break within the sheath, then the throttle

       would not have become stuck. The second purported fatal weakness Ford

       identifies is that, as of Zedonis’s second deposition in September 2014, he had

       conducted testing of his theory that a single frayed wire making up part of the




       3
        Ford also asserts Zedonis could not rule out the possibility that Karen had pushed the wrong pedal before
       entering the intersection and that this caused the accident. Berg’s report found this possibility to be
       unlikely—based on the assumption that the throttle malfunctioned.

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015                    Page 15 of 23
       throttle cable could have caused the cable to stick within the sheath and testing

       had not proven his theory.


[27]   The Appellants respond to these claims as follows. First, Zedonis stated in his

       February 2014 affidavit that photographs taken of the throttle cable show that it

       was within the cable assembly before springing out upon Zedonis’s contact with

       it. Also, an x-ray of the cable assembly showed a worn and liberated wire of the

       cable within the assembly. Second, the Appellants deny that Zedonis’s theory

       of the accident was dependent on there being only one frayed wire within the

       cable that bound the cable inside the cable sheath, and so Zedonis’s failure to

       prove that one frayed wire could have caused the cable to stick is not fatal to his

       ultimate hypothesis. Among other things, Zedonis believed after examination

       that many of the exterior wires on the Monterey’s throttle cable had worn

       through or nearly through, effectively leaving the cable with only thirteen of its

       forty-nine strands, resulting in a reduction in strength of 70.4%.


[28]   This case is a quintessential example of a situation in which a trier of fact must

       be asked to sort out the evidence and any purported weaknesses in Zedonis’s

       testimony. He did not make bald assertions based upon no evidence; he

       examined the evidence in great detail and reached certain conclusions after

       application of engineering principles. Ford contests whether those conclusions

       are in fact adequately supported by the evidence and whether Zedonis properly

       applied standard engineering principles. This is why trials are held. That an

       expert’s opinion may ultimately be unaccepted by a fact finder is not a basis for

       rendering it inadmissible.

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 16 of 23
[29]   Our supreme court has clarified that an expert’s opinion under Evidence Rule

       702 does not require extensive and specific factual support. Person v. Shipley,

       962 N.E.2d 1192, 1197 (Ind. 2012). “Rather, it only requires the trial court’s

       satisfaction that the expert’s opinion is based on reliable scientific principles

       that can be properly applied to the facts in issue.” Id. “Moreover, . . . ‘[c]ross-

       examination permits the opposing party to expose dissimilarities between the

       actual evidence and the scientific theory. The dissimilarities go to the weight

       rather than to the admissibility of the evidence.’” Id. at 1198 (quoting Turner,

       953 N.E.2d at 1051) (alteration in Person). Once reliability has been established,

       alleged discrepancies between the evidence and an expert’s opinion go to the

       weight and credibility of the testimony, not to its admissibility. Id. These

       principles squarely apply to Zedonis’s opinions.


                            B. Exclusion for Purported Discovery Violation

[30]   Alternatively, the trial court also prohibited Zedonis from testifying at trial

       because of his examination of the throttle cable and conducting of tests after the

       discovery deadline in the case management order. Indiana Trial Rule

       26(E)(1)(b) provides:

               A party is under a duty seasonably to supplement his response with
               respect to any question directly addressed to . . . the identity of each
               person expected to be called as an expert witness at trial, the subject
               matter on which he is expected to testify, and the substance of his
               testimony.
       The duty to supplement under this rule is absolute and does not require a court

       order. Everage v. N. Indiana Pub. Serv. Co., 825 N.E.2d 941, 951 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015        Page 17 of 23
       2005). If a party fails to comply with Trial Rule 26(E) by not supplementing

       discovery responses, the trial court may, in its discretion, exclude the testimony

       of a witness. Id.


[31]   On appeal, trial court sanctions for failing to comply with discovery orders are

       reviewed for an abuse of discretion. Wright v. Miller, 989 N.E.2d 324, 330 (Ind.

       2013). Trial courts are presumed to “‘act in accord with what is fair and

       equitable in each case,’” and we will only reverse “‘if the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or if the trial court has misinterpreted the law.’” Id. (quoting McCullough,

       605 N.E.2d at 180). “The conduct and equities will vary with each case, and

       we thus generally leave that determination to the sound discretion of the trial

       courts.” Id.


[32]   That discretion is not absolute, however, as Wright made clear. In that case, the

       trial court in a medical malpractice case granted the defendant’s motion to

       exclude the testimony of the plaintiffs’ only expert witness and thus dismissed

       the case, where the plaintiffs’ attorney failed to disclose the witness before the

       trial court’s discovery deadline. Our supreme court acknowledged that trial

       courts, being closer to the litigation, have a better sense than appellate courts of

       what sanctions for discovery violations will adequately protect the litigants in

       any given case, and what sanctions are necessary to maintain the court’s

       dignity, secure obedience to its process and rules, rebuke interference with the

       conduct of business, and punish unseemly behavior. Id.



       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 18 of 23
[33]   In exercising this power, however, courts should attempt to apply sanctions that

       have a minimal impact on the evidence presented at trial and the merits of the

       case, nor should sanctions be imposed that are unjust. Id.; see also Ind. Trial

       Rule 37(B)(2) (“If a party . . . fails to obey an order to provide or permit

       discovery . . . the court in which the action is pending may make such orders in

       regard to the failure as are just[.]”). If offending conduct is primarily

       attributable to counsel and not the client, and there is little prejudice to the

       opposing party, courts should give due consideration to imposing sanctions

       directed primarily at counsel that minimize prejudice to the client and the

       merits of the case, while giving appropriate incentives to counsel to engage in

       proper behavior in the future. Id. The Wright opinion also effectively treated

       exclusion of a witness that necessitates dismissal of a case as the sanction of

       dismissal itself. See id. at 330-31.


[34]   We conclude it was too draconian a punishment in relation to the Appellants’

       alleged wrongdoing to entirely preclude Zedonis from testifying. Ford

       complains that Zedonis conducted additional testing following his October 9,

       2013 deposition, after the case management order’s discovery deadline, in

       response to questions from Ford’s attorney regarding the validity of his testing

       and conclusions. Ford has failed to adequately demonstrate how it was

       prejudiced by these actions; the mere fact that they occurred does not

       automatically translate into prejudice. One action that Zedonis undertook was

       to measure the throttle cable, after his failure to do so was questioned during

       the October 2013 deposition. But, Zedonis in any case discounted the


       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 19 of 23
       importance of such a measurement. It also is a measurement that Ford or its

       experts4 could have undertaken at any time.


[35]   Ford also seems to take great issue with Zedonis having conducted tests to

       determine if a single frayed wire within the throttle cable assembly could have

       bound the cable inside of the cable sheath. However, as Ford vigorously points

       out, those tests failed to prove that such an event could have occurred. If

       anything, this additional testing weakened, not strengthened, the Appellants’

       cases. The prejudice to Ford is difficult to discern.


[36]   We further observe that Zedonis has been listed as an expert witness since June

       2012, and the general nature of his opinions and expected testimony were long

       known. This was not a situation in which an expert was disclosed for the first

       time shortly before trial, or where an expert devised entirely new theories or

       opinions shortly before trial. Even if Zedonis’s additional testing had led him to

       develop new theories, a more appropriate remedy for these late disclosures

       would be to exclude testimony related to such testing and theories, not

       complete exclusion of all of his testimony. See Brown v. Terre Haute Reg’l Hosp.,

       537 N.E.2d 54, 58-59 (Ind. Ct. App. 1989) (affirming trial court’s exclusion

       only of expert witness’s testimony regarding opinion undisclosed before trial,

       not all of the testimony). We also note that Ford deposed Zedonis regarding his

       additional testing on September 4, 2014, or approximately six weeks before the



       4
         It is not clear from the record before us whether Ford has hired any experts of its own; Ford’s witness list is
       in neither of the appendices provided to us.

       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015                         Page 20 of 23
       scheduled trial date of October 20, 2014. Ford fails to adequately explain why

       the nature of the additional testing Zedonis undertook could not be addressed

       by it or its own experts in that six-week period.


[37]   Finally, we observe that none of the Appellants appear to have been involved in

       any misconduct in this case and that exclusion of Zedonis’s testimony is fatal to

       their case. Without Zedonis’s testimony, there is no evidence of a throttle cable

       malfunction; also, Berg’s opinion regarding human driving factors is entirely

       dependent upon Zedonis’s testimony. Indeed, it is clear Ford was correctly

       granted summary judgment in the absence of Zedonis’s and Berg’s testimony.

       We conclude, as did the Wright court, “that the circumstances of the present

       case warranted some lesser, preliminary, or more pointed sanction fashioned to

       address counsel’s unsatisfactory conduct in this case without depriving the

       plaintiffs of their ability to present the merits of their case at trial.” Wright, 989

       N.E.2d at 331. We reverse the exclusion of Zedonis’s testimony as a discovery

       sanction.


                                          II. Berg’s Testimony
[38]   We now turn to the exclusion of Berg’s testimony. On appeal, Ford really only

       has two challenges to Berg’s testimony. First, it asserts that it is inadmissible

       because it relies upon Zedonis’s inadmissible expert opinions. Having ruled

       that the trial court erred in fully excluding Zedonis’s testimony, this necessarily

       moots the argument that Berg’s testimony must be excluded.




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 21 of 23
[39]   Additionally, Ford contends that we ought not address the Appellants’

       arguments regarding Berg because they improperly included in their appendix

       an affidavit purported to be from Berg but which in fact was never signed by

       him or filed with the trial court. We have granted Ford’s motion to strike that

       portion of the appendix and parts of the brief relying upon that affidavit.

       However, there is no indication that this was a deliberate misrepresentation by

       the Appellants, as explained in their response to the motion to strike. We have

       been provided with the appropriate affidavit in Ford’s appendix. Any

       differences between the filed and unfiled affidavits are largely unimportant to

       the central issue on appeal regarding Berg’s testimony—namely, whether it is

       inadmissible because Zedonis’s testimony is inadmissible.


[40]   We will find issues waived on appeal for failure to comply with the appellate

       rules where the violation substantially impedes us from reaching the merits of

       the appeal. Ramsey v. Review Bd. of Indiana Dep’t of Workforce Dev., 789 N.E.2d

       486, 490 (Ind. Ct. App. 2003). Given the limited appellate issue regarding the

       admissibility of Berg’s testimony, we decline to waive the Appellants’ challenge

       to the trial court’s exclusion of his testimony.


[41]   On a final note, Ford’s motion for summary judgment was entirely premised on

       the assumption that Zedonis’s and Berg’s testimony would be inadmissible at

       trial. Because we have ruled otherwise, this necessarily negates the grant of

       summary judgment in Ford’s favor.




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 22 of 23
                                                  Conclusion
[42]   The trial court erred in excluding the testimony of Zedonis, either as a question

       of admissibility under Evidence Rule 702 or as a sanction for a purported

       discovery violation. Because Zedonis’s testimony was erroneously excluded,

       Berg’s testimony was as well. With Zedonis’s and Berg’s testimony, it is clear

       that Ford is not entitled to summary judgment. We reverse and remand for

       further proceedings consistent with this opinion.


[43]   Reversed and remanded.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 27A04-1411-PL-531 | September 9, 2015   Page 23 of 23
