MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Sep 20 2019, 8:56 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan L. Ciyou                                           Crystal G. Rowe
Indianapolis, Indiana                                    New Albany, Indiana

                                                         Erin A. Clancy
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Alexander d/b/a                              September 20, 2019
Crystal Tiger Holdings, LLC,                             Court of Appeals Case No.
Appellant-Plaintiff,                                     19A-CT-366
                                                         Appeal from the
        v.                                               Lake Superior Court
                                                         The Honorable
Djuric Trucking, Inc. and                                John M. Sedia, Judge
William H. Walden, as Special                            Trial Court Cause No.
Representative of the Estate of                          45D01-1705-CT-106
Mark Phillip Sikorski,
Appellees-Defendants



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019           Page 1 of 22
                                                Case Summary
[1]   As Mark Phillip Sikorski was driving a semi tractor-trailer truck in the course

      and scope of his employment with Djuric Trucking, Inc. (Djuric), he suffered

      cardiac arrest and the truck left the road and struck a building owned by

      Christopher Alexander d/b/a Crystal Tiger Holdings, LLC (Alexander).

      Alexander brought suit against Djuric and William H. Walden as Special

      Representative or the Estate of Mark Phillip Sikorski (the Estate) alleging,

      among other things, negligence. Alexander appeals the trial court’s entry of

      summary judgment in favor of Djuric and the Estate (collectively, Djuric

      Defendants), raising two issues that we consolidate and restate as whether the

      trial court properly determined that Djuric Defendants were entitled to

      judgment as a matter of law.


[2]   We affirm.


                                      Facts & Procedural History
[3]   At all times relevant to this appeal, Sikorski was a truck driver for Djuric. In

      November 2014, he underwent a commercial driver fitness examination by a

      certified medical examiner, as required by Federal Motor Carrier Safety

      Regulations. After requesting and receiving information from Sikorski

      regarding his use of a CPAP 1 machine for sleep apnea, the medical examiner

      determined that Sikorski was physically qualified to operate a commercial



      1
          CPAP stands for continuous positive airway pressure.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 2 of 22
      motor vehicle and issued to Sikorski a Medical Examiner’s Certificate effective

      for two years, through November 3, 2016. 2


[4]   Around 12:23 p.m. on May 15, 2015, forty-five-year-old Sikorski was driving a

      semi-tractor trailer westbound on U.S. Highway 30 near Pierceton, Indiana,

      when he suffered a cardiac event and either died or lost consciousness. The

      truck crossed the center line, went over the eastbound lanes, and crashed into a

      vacant commercial building, which was owned by Alexander, causing property

      damage. Sikorski was pronounced dead at the scene, but no one else was

      harmed in the accident. The next day, an autopsy was performed by

      pathologist Pramod K. Carpenter, M.D., who concluded that the manner of

      death was “Natural” and the cause of death was “Marked Myocardial

      Hypertrophy and Coronary Atherosclerosis.” Appellant’s Appendix Vol. II at 42.


[5]   On May 12, 2017, Alexander filed a Complaint for Damages alleging that

      Sikorski was negligent in a number of respects, including the following: he

      knew or should have known he was suffering from heart problems that resulted

      in heart failure on May 15, 2015; he should have known that it was medically

      necessary to obtain medical treatment in the weeks leading up to the heart




      2
       Under the Federal Motor Carrier Safety Regulations, a person “shall not drive a commercial motor vehicle”
      without a “medical examiner’s certificate that [the person] is physically qualified.” 49 C.F.R. § 391.41(a).
      Specifically, “the medical examiner is required to certify that the driver does not have any physical, mental,
      or organic condition that might affect the driver’s ability to operate a commercial motor vehicle safely.” 49
      C.F.R. § 391.43(f). A driver is physically qualified if, among other things, he has “no current clinical
      diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other
      cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive
      cardiac failure.” 49 C.F.R. § 391.41(b)(4).

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019                Page 3 of 22
      failure and crash; and he “[f]ailed to follow guidelines related to medical

      conditions precluding the ability to drive a semi-tractor.” 3 Id. at 34. Alexander

      asserted that under respondeat superior Djuric was responsible for any and all

      actions of Sikorski, including his failure to seek or obtain medical care for chest

      pain and other signs of heart problems in the weeks before the crash. Alexander

      also asserted that Djuric was liable under theories of negligent hiring, retention,

      and supervision of Sikorski. Alexander asserted in his complaint that his

      building was totally destroyed, and he “has been unable to rebuild or use the

      building.” Id. at 36. Djuric Defendants’ answer asserted as an affirmative

      defense, among other things, that the accident “was the result of an

      unforeseeable sudden emergency that was not of Defendants [sic] own

      making.” Id. at 39.


[6]   In October 2018, Djuric Defendants filed a motion for summary judgment

      asserting that they were entitled to judgment as a matter of law on Alexander’s

      negligence claims because the collision and damages resulted from a sudden

      medical emergency, i.e., Sikorski’s “sudden, unforeseeable heart attack,” which

      Sikorski “did not know and could not have foreseen . . . was likely to occur on

      the date of the accident.” 4 Appellant’s Appendix Vol. II at 17.




      3
       Alexander also alleged that Sikorski operated the truck in violation of Federal and Indiana law by driving at
      an unreasonable speed under the circumstances. However, this does not appear to be at issue in this appeal.
      4
       In their motion for summary judgment, Djuric Defendants also asserted that, under Indiana law, “a
      Plaintiff cannot simultaneously bring claims for vicarious liability and for negligent hiring, retention, and/or
      supervision against a company when the company has admitted the alleged tortfeasor was acting in the
      course and scope of his employment at the time of the alleged negligence[,]” and because, here, Djuric

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019                   Page 4 of 22
[7]   In support of its summary judgment motion, Djuric Defendants designated the

      following evidence: Alexander’s complaint; Djuric’s answer; the autopsy

      report; the November 2014 Medical Examiner’s Certificate; and an affidavit of

      Sikorski’s wife, Terri Sikorski, averring that she spoke to Sikorski by phone

      about twelve minutes prior to the accident, as he was driving, and he sounded

      well and in good spirits and he did not complain or indicate that he felt ill,

      fatigued, or in pain, or that he was experiencing any symptoms of a heart

      attack. The autopsy report stated that Sikorski was forty-five years old, 6’ 2”

      and weighed 338 pounds, and the report included the following:


               ANATOMIC FINDINGS.


               1. No acute traumatic cause of death


               2. Myocardial hypertrophy (590 grams); marked coronary
               atherosclerosis with focal 85-90% narrowing


               3. Marked pulmonary congestion


               4. Compression fracture C4 vertebra with minimal hemorrhage




      admitted that Sikorski was driving in the course and scope of his employment, Sikorski’s claims for negligent
      hiring/retention/supervision are barred. Id. at 17, 29. Alexander appears to not dispute this proposition on
      appeal, stating, “The Djuric Defendants have admitted that Sikorski was in the course and scope of his
      employment, leaving the issue as one of negligence against the Estate and negligence against Djuric under a
      respondeat superior theory.” Appellant’s Brief at 6.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019                Page 5 of 22
              5. Deep laceration to right forehead and minor abrasions to face,
              chest, shoulders, arm, hands, and left lower leg with minimal
              hemorrhage


              6. Sleep apnea, history


              7. Obesity (BMI= 43.4)


              8. Moderate hepatosteatosis


      Appellant’s Appendix Vol. II at 42.


[8]   Alexander timely filed a Response in opposition to the motion for summary

      judgment, asserting that Sikorski crashed into the building “because of [his]

      heart failure stemming from medical conditions [he] knew about since 2007”

      and that the sudden medical emergency defense was not available where the

      person knew or should have known about the condition. Id. at 51. Alexander

      argued that Sikorski’s known medical conditions were a “ticking time bomb”

      that Sikorski could have prevented with proper care. Id. at 56. Alexander

      asserted that genuine issues of material fact precluded summary judgment and

      that, even if the sudden medical emergency doctrine was available as a defense,

      it was a fact determination for the jury. In support of his opposition to

      summary judgment, Alexander designated the following evidence: the

      Affidavit of David M. Fletcher, M.D.; VA medical records; Sikorski’s

      employment application; his death certificate; and the autopsy report.




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 6 of 22
[9]    Particularly relevant to this appeal is the Affidavit of Dr. Fletcher, who

       Alexander retained “to render opinions concerning the medical [commercial

       driver’s license] qualifications of and the foreseeability of Mark Sikorski’s . . .

       acute health issue that occurred on May 15, 2015 that resulted in him crashing

       into a building.” Id. at 63. Dr. Fletcher is board certified in occupational and

       environmental medicine, and he is a Certified Medical Review Officer, with his

       practice including medical certification for commercial motor vehicle drivers,

       referred to as DOT medical examinations. Dr. Fletcher performs an average of

       1000 DOT physicals per year, and he averred that he is “intimately familiar

       with the regulatory requirements for medical certification for commercial motor

       vehicle drivers under the Federal motor carrier safety regulations, as well as

       FMCSA guidelines for determining fitness for driving.” Id. at 62. Dr. Fletcher

       identified materials that he reviewed and relied upon, which included industry

       regulations, various scientific, research, and reference materials, and documents

       related specifically to Sikorski including: Djuric’s driver qualification and

       personnel files on Sikorski; Sikorski’s DOT medical exams for the years 2012-

       2014; and VA medical records.


[10]   Dr. Fletcher averred that Sikorski “was erroneously given a two-year

       certification in November 2014 by [the medical examiner] when he was being

       treated for [obstructive sleep apnea].” Id. at 78. Dr. Fletcher also stated that

       Djuric violated federal regulations by allowing Sikorski to drive without

       providing documentation that his obstructive sleep apnea was controlled and




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 7 of 22
       that Djuric should have independently monitored Sikorski’s health conditions

       regardless of Sikorski’s medical certificate.


[11]   Referring to certain published research, Dr. Fletcher stated that having three of

       thirteen concomitant medical conditions would put an individual at a

       statistically elevated risk of crash and merited additional scrutiny during

       medical certification exams and that Sikorski had the following three

       conditions: obstructive sleep apnea, hypertension, and a BMI greater than 35.

       Dr. Fletcher also said that Sikorski, as part of his licensing and training, was

       required to learn the physical requirements to be fit for duty to drive a

       commercial vehicle and, at each DOT exam, Sikorski would have been

       reminded of these requirements as they are written on the DOT medical

       examination forms.


[12]   Dr. Fletcher’s Affidavit included the following opinions:


               IT IS MY OPINION TO A REASONABLE DEGREE OF
               MEDICAL CERTAINTY THAT THE SUDDEN CARDIAC
               ARREST AND LOSS OF CONSCIOUSNESS THAT
               OCCURRED ON MAY 15, 2015 WAS FORSEEABLE.


               The cause of Mr. Sikorski’s death was due to sudden cardiac
               arrest due to his underlying cardiovascular disease that had not
               been properly evaluated and treated before he drove on May 15,
               2015.


                                                       ***




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 8 of 22
        This fatal cardiac event was foreseeable and the prevention of
        such an episode is why commercial vehicle safety regulations are
        in place to prevent these high-risk drivers from being on the road.


        Mr. Sikorski’s cardiovascular condition disqualified him from
        operating a commercial vehicle. Mr. Sikorski had several
        medical conditions, when unmanaged individually and
        collectively contributed to his sudden incapacitation that was
        foreseeable.


        A person with a current clinical diagnosis of a cardiovascular
        disease of a variety known to be accompanied by syncope,
        dyspnea, collapse, or congestive cardiac failure is not physically
        qualified to drive a commercial motor vehicle according to
        industry standards and regulations cited in 4 CFR 391.41(b)(4).


                                                ***


        According to co-workers, Mr. Sikorski had classic signs of angina
        related to his severe untreated heart disease, but Mr. Sikorski
        ignored the recommendation to seek medical treatment.


                                                ***


        If Sikorski had sought treatment as recommended, this accident
        could have been prevented.


                                                ***


        MR. SIKORSKI KNEW OR SHOULD HAVE KNOWN NOT
        TO OPERATE A COMMERCIAL VEHICLE DUE TO THE
        RISK OF A SIGNIFICANT CARDIAC EVENT.



Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 9 of 22
       Appellant’s Appendix Vol. II at 70-72, 74 (capitalization in original).


[13]   Djuric Defendants filed a Reply, arguing that Alexander failed to designate any

       admissible evidence to establish the existence of a genuine issue of material fact

       and that “the only admissible evidence” designated by Alexander was Sikorski’s

       employment application, death certificate, and autopsy report, “and none of

       this evidence creates a genuine issue of material fact as to the dispositive issue

       in this case, which is: Whether Mark Sikorski knew or could have foreseen that

       he would sustain a sudden medical emergency, that being heart failure, on May

       15, 2015 while operating his vehicle, such that he should have pulled over or

       not driven at all that day in order to prevent an accident.” Id. at 93.


[14]   Along with its Reply, Djuric Defendants filed a Motion to Strike, which asked

       the trial court to strike certain evidence that Alexander had designated in

       support of its Response and Opposition to Summary Judgment, namely Dr.

       Fletcher’s Affidavit and the VA records. With regard to the Affidavit,

       Alexander asserted that it “references and cites to numerous exhibits, including

       records” that “are not attached to his affidavit or authenticated in any way.”

       Id. at 104-05. Further, Djuric Defendants argued that the Affidavit “contains

       numerous inadmissible factual statements relating to Sikorski’s medical history

       of CPAP compliance, obstructive sleep apnea, hypertension, obesity, COPD,

       and smoking” that should be stricken “because they are irrelevant and/or

       constitute hearsay[.]” Id. at 105-06. Similarly, they argued that the Affidavit’s

       statement that, according to the coroner’s report, Sikorski had been

       complaining of chest pain to co-workers constitutes hearsay and is inadmissible

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 10 of 22
       pursuant to Ind. Evidence Rule 802. Also, Djuric Defendants asserted that

       “numerous . . . opinions relating to Sikorski’s health and the foreseeability of

       Sikorski’s sudden cardiac arrest” and “pure legal conclusions” were not

       admissible under Evid. Rules 702, 703, or 704(b). Id. at 108, 111.


[15]   Djuric Defendants also moved to strike VA records that Alexander had

       designated. The records were from November 2007, January 2009, and

       February 2014. Djuric Defendants argued that the records (1) were not

       authenticated as required by Evid. R. 901, (2) contained inadmissible hearsay,

       and (3) were “completely irrelevant to whether Sikorski knew or could have

       foreseen he would sustain heart failure while operating his vehicle on May 15,

       2015.” Id. at 112. Alexander filed an objection to Djuric Defendants’ Motion

       to Strike, maintaining, among other things, that under Evid. R 703, “[e]xperts

       may testify to opinions based on inadmissible evidence, provided that it is of the

       type reasonably relied upon by experts in the field.”


[16]   On January 24, 2019, the trial court held a hearing on pending matters,

       including Djuric Defendants’ Motion for Summary Judgment and their Motion

       to Strike. The following day, the trial court issued an Order granting Djuric

       Defendants’ request to strike Dr. Fletcher’s Affidavit 5 and granting summary

       judgment in favor of Djuric Defendants. The court began its Order by

       observing:




       5
           The Order does not expressly rule on Djuric Defendants’ request to strike Exhibit 2, the VA records.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019                 Page 11 of 22
        The issue before this Court cannot be better stated than by the
        Restatement (Second) of Torts, Section 283(C):


                 [A]n automobile driver who suddenly and quite
                 unexpectedly suffers a heart attack does not become
                 negligent when he loses control of his car and drives it in a
                 manner which would otherwise be unreasonable; but one
                 who knows that he is subject to such attacks may be negligent for
                 driving at all.


Appellant’s Appendix Vol. II at 10 (emphasis added). The court found that Djuric

Defendants had met their initial burden to demonstrate that Sikorski was

medically qualified to operate a semi-tractor trailer that day and not negligent,

as he possessed a valid Medical Examiner’s Certificate on the day in question

and suddenly suffered a heart attack. The trial court explained that the burden

thus shifted to Alexander to come forward with evidence to show that Sikorski

knew that he was “subject to such attacks and was negligent for driving at all.”

Id. (quoting Section 283(C)). Alexander sought to do so with, primarily, Dr.

Fletcher’s Affidavit, which the trial court struck in its entirety, finding:


        None of the documents attached to Fletcher’s Affidavit are
        verified or authenticated pursuant to IRE 901 and are not self
        authenticated pursuant to IRE 902. He cannot rely upon them in
        the manner that they are attached to his Affidavit because they
        would be inadmissible into evidence as hearsay. Moreover, the
        opinions the Affidavit proffers are so rife with legal conclusions
        regarding legal duty, foreseeability, and causation contrary to
        IRE 704(3) that they cannot be considered by the Court.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 12 of 22
       Id. at 11. Concluding that “[t]here is no designated evidence that would

       establish a genuine issue of material fact that [Sikorski] was ‘ . . . negligent for

       driving at all[,]’” the court entered judgment in favor of Djuric Defendants. Id.

       Alexander now appeals.


                                        Discussion & Decision
[17]   Alexander asserts that the trial court erred when it granted summary judgment

       in favor of Djuric Defendants. The purpose of summary judgment is to

       terminate litigation about which there can be no factual dispute and which can

       be determined as a matter of law. Denson v. Estate of Dillard, 116 N.E.3d 535,

       539 (Ind. Ct. App. 2018). The party moving for summary judgment has the

       burden of making a prima facie showing that there is no genuine issue of

       material fact and that it is entitled to judgment as a matter of law. Id. If the

       moving party meets its burden, the burden then shifts to the nonmoving party

       whose response must set forth specific facts indicating that there is an issue of

       material fact. Id. Any doubts as to any facts or inferences to be drawn from

       those facts must be resolved in favor of the nonmoving party. Id. A fact is

       “material” if its resolution would affect the outcome of the case, and an issue is

       “genuine” if a trier of fact is required to resolve the parties’ differing accounts of

       the truth, or if the undisputed material facts support conflicting reasonable

       inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).


[18]   We review a summary judgment ruling de novo. Pelliccia v. Anthem Ins. Cos., 90

       N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 13 of 22
       conclusions offer insight into the rationale for the court's judgment and facilitate

       appellate review but are not binding on this court. Denson, 116 N.E.3d at 539.

       Moreover, we are not constrained to the claims and arguments presented to the

       trial court, and we may affirm a summary judgment ruling on any theory

       supported by the designated evidence. Id. The party that lost in the trial court

       has the burden of persuading us that the trial court erred. Id.


[19]   Here, Alexander’s claims against the Estate and Djuric are based on Sikorski’s

       alleged negligence in driving the truck on the day in question. To prevail on a

       negligence claim, a plaintiff must establish three elements: (1) a duty owed to

       the plaintiff by the defendant; (2) a breach of that duty by allowing conduct to

       fall below the applicable standard of care; and (3) compensable injury

       proximately caused by the breach of that duty. Ryan v. TCI

       Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). A defendant

       may obtain summary judgment in a negligence action when the undisputed

       facts negate at least one element of the plaintiff’s claim. Denson, 116 N.E.3d at

       539. Although the question of breach is usually one for the trier of fact, where

       the relevant facts are undisputed and lead to but a single inference or

       conclusion, the court as a matter of law may determine whether a breach of

       duty has occurred. Id. (citing Cox v. Paul, 828 N.E.2d 907, 911 (Ind. 2005) and

       King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)).


[20]   It is well settled that “[w]hen considering breach of the duty of care, we begin

       with the venerable legal concept of the ‘reasonable person,’” under which an

       actor must conform his conduct to that of a reasonable person under like

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 14 of 22
       circumstances. Denson, 116 N.E.3d at 539 (some internal quotations omitted)

       (citing Restatement (Second) of Torts § 283 (1965)). Section 283(C) of the

       Restatement explains that if “the actor is ill or otherwise physically disabled,

       the standard of conduct to which he [or she] must conform to avoid being

       negligent is that of a reasonable [person] under like disability.” As the trial

       court in this case recognized, Comment c to Section 283(C) provides the

       following illustration:


               [A]n automobile driver who suddenly and quite unexpectedly
               suffers a heart attack does not become negligent when he loses
               control of his car and drives it in a manner which would
               otherwise be unreasonable; but one who knows that he is subject
               to such attacks may be negligent for driving at all.


[21]   In Denson v. Estate of Dillard this court encountered a similar fact pattern as that

       of the present case and applied the above-cited principles. In that case, the

       plaintiff, Denson, was a passenger in a vehicle when the driver, Dillard, had a

       heart attack and died or lost consciousness, such that the vehicle veered off the

       road and crashed into a home. Denson was severely injured and brought suit

       against Dillard’s estate, alleging negligence, and the estate moved for summary

       judgment, claiming that Dillard’s sudden loss of consciousness or medical

       emergency negated the breach element of Denson’s negligence claim. The trial

       court entered judgment for the estate, and Denson appealed.


[22]   Applying Section 283(C) to those facts, the Denson court found:


               Here, the Estate presented prima facie evidence that Dillard
               suddenly suffered a heart attack and lost consciousness before
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 15 of 22
        losing control of the car and crashing. Because we determine as
        a matter of law that Dillard cannot be found to have acted
        unreasonably after he suffered the attack and was rendered
        unconscious, the issue becomes whether Dillard acted unreasonably in
        deciding to drive in the first place. That is to say, the question is
        whether Dillard’s sudden physical incapacity was reasonably foreseeable
        such that a reasonably prudent person in his position would not have
        risked driving.


116 N.E.2d at 541 (emphasis added). The designated evidence showed that

Dillard had suffered a prior heart attack about six weeks before the accident,

was prescribed home health care and, upon completing recovery goals, was

released without restriction on his driving. His follow-up appointments

indicated he was doing well. Denson urged that Dillard’s prescribed

medication for his heart and his prior heart attack would have put him on

notice that he suffered from coronary artery disease, but the Denson court

rejected that, stating,


        [T]his evidence does not equate to knowledge of peril or create
        an inference that a reasonable man in Dillard’s position would
        have altered his behavior regarding driving. This is especially
        true in light of the undisputed lack of driving restrictions or
        warnings not to drive by trained medical personnel. Moreover,
        there is no evidence that Dillard suffered any symptoms prior to
        his decision to drive on November 20, which would have alerted
        him of the impending physical incapacity


Id. at 542. Finding that the estate had made a prima facie showing that

Dillard’s sudden physical incapacity was not reasonably foreseeable – and,

therefore, the Estate met its burden as summary judgment movant to


Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 16 of 22
       affirmatively negate the element of breach on Denson’s negligence claim – and

       finding that the evidence designated by Denson was insufficient to create a

       genuine issue of material fact, the Denson court affirmed the trial court’s grant of

       summary judgment in favor of the estate. 6


[23]   We find that Denson’s reasoning is applicable to the present case. Here, in

       seeking summary judgment, Djuric Defendants submitted evidence that (1)

       Sikorski possessed a valid Medical Examiner’s Certificate that found him

       medically qualified to drive his commercial truck, (2) he suffered a cardiac

       event as he was driving for Djuric on May 15, 2015, and (3) he spoke by phone

       to his wife about ten minutes prior and at that time he did not indicate he was

       experiencing any symptoms of feeling ill or in pain. On this record, we, like the

       trial court, find that Djuric Defendants met their initial burden to show the




       6
        In its decision, the Denson court distinguished the sudden emergency doctrine from sudden medical
       emergency:

                [T]he sudden emergency doctrine is an application of the general requirement that one’s
                conduct conform to the standard of a reasonable person. . . . The doctrine was developed
                by the courts to recognize that a person confronted with sudden or unexpected
                circumstances calling for immediate action is not expected to exercise the judgment of
                one acting under normal circumstances. . . .[U]nlike the sudden emergency doctrine, the
                issue with sudden medical emergency is not whether the defendant responded reasonably
                to an emergency situation, but whether a reasonable person in the defendant’s position
                would have altered his conduct before the medical emergency occurred based on
                knowledge of peril.


       116 N.E.3d at 540 n.2. The Denson court recognized that in Holcomb v. Miller, 149 Ind. App. 46, 50, 269
       N.E.2d 885, 888 (1971) the court “acknowledged the status of sudden loss of consciousness while driving as
       an affirmative defense to a negligence action,” but found that Holcomb did not constitute “a formal adoption
       of the specific affirmative defense to negligence.” Id. at n.3. The Denson court explained, “We see no need to
       formally recognize a specific doctrine or defense and think that the application of general negligence
       principles adequately addresses the situation at hand.” Id. at 540. We agree.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019               Page 17 of 22
       absence of a genuine issue of material fact as to Sikorski’s alleged negligence.

       The burden thus shifted to Alexander to show that a genuine issue of material

       fact remained for trial.


[24]   In opposition to Djuric Defendants’ motion for summary judgment, Alexander

       designated, as is relevant here, the Affidavit of Dr. Fletcher. However, the trial

       court struck the Affidavit, finding that “[n]one of the documents attached to

       Fletcher’s Affidavit 7 are verified or authenticated . . . and are not self

       authenticated” and that Dr. Fletcher “cannot rely upon them in the manner that

       they are attached to his Affidavit because they would be inadmissible into

       evidence as hearsay” and that the Affidavit was “so rife with legal conclusions

       of legal duty, foreseeability, and causation contrary to [Evid. R.] 704(b)” that it

       could not be considered by the trial court. Appellant’s Appendix Vol. II at 12.

       Alexander asserts on appeal that the trial court erred when it struck Dr.

       Fletcher’s twenty-page Affidavit in its entirety.


[25]   We review a trial court’s decision on a motion to strike for an abuse of

       discretion. Halterman v. Adams Cty. Bd. of Comm’rs, 991 N.E.2d 987, 989 (Ind.

       Ct. App. 2013). We will reverse only when the decision is clearly against the

       logic and effect of the facts and circumstances. Id. Generally, “[i]n order to be

       used in a summary judgment proceeding, an affidavit must set forth such facts

       as would be admissible in evidence.” Ind. Trial Rule 56(E); Merrill v. Knauf



       7
        Dr. Fletcher’s Affidavit did not have any attachments or exhibits, although Alexander separately designated
       some VA medical records.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019             Page 18 of 22
       Fiber Glass GmbH, 771 N.E.2d 1258, 1264 (Ind. Ct. App. 2002), trans. denied.

       However, with regard to expert affidavits submitted at the summary judgment

       stage, our courts have recognized:


               An expert witness must have sufficient facts or data on which to
               form an opinion. Burp v. State, 612 N.E.2d 169, 172 (Ind. Ct.
               App. 1993). . . . Experts may testify to opinions based on
               inadmissible evidence if it is of the type reasonably relied on by
               experts in the field. Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind.
               Ct. App. 1999). An expert witness “need not base her opinion on
               personal knowledge if the opinion is based on evidence of a type
               normally found reliable and customarily relied upon by others in
               the witness’s profession or area of expertise.” Id. at 849.


       Halterman, 991 N.E.2d at 990-91.


[26]   Here, in seeking to strike Dr. Fletcher’s Affidavit, Djuric Defendants asserted,

       in part: (1) it was impermissible for Dr. Fletcher to review and rely on

       Sikorski’s prior medical records because they contained hearsay and were not

       authenticated, and (2) Dr. Fletcher’s statements and opinions regarding

       Sikorski’s health, including his sleep apnea, compliance with use of CPAP

       machine, hypertension, obesity, and smoking were irrelevant. We agree with

       Alexander, however, that Dr. Fletcher, in reaching his opinions, could review

       and rely on Sikorski’s medical records and that Dr. Fletcher’s opinions as to the

       condition of Sikorski’s health were not irrelevant. Ind. Evid. Rules 702, 703; see

       also Halterman, 991 N.E.2d at 990 (upholding trial court’s denial of motion to

       strike and stating “an expert’s affidavit may be based on medical records”). We

       thus find it was an abuse of discretion to strike the Affidavit in its entirety.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 19 of 22
[27]   We next address the other basis upon which Djuric Defendants sought to strike

       the Affidavit, namely that it contained impermissible legal conclusions. Evid.

       R. 704(b) permits an expert’s opinions to embrace ultimate issues to be decided

       by the trier of fact, but it prohibits opinions as to legal conclusions, such as the

       existence of a duty. See, Merrill, 771 N.E.2d at 1264 (expert not permitted to

       testify in affidavit that defendant owed plaintiff a duty as such determination is

       a legal conclusion that invades province of court). In this case, the trial court

       determined that the Affidavit was “so rife with legal conclusions of legal duty,

       foreseeability, and causation contrary to [Evid. R.] 704(b)” that it could not be

       considered by the trial court. Appellant’s Appendix Vol. II at 12. Alexander urges

       on appeal that Dr. Fletcher’s Affidavit did not contain impermissible legal

       conclusions. Upon review of the Affidavit, we cannot agree.


[28]   We find that the Affidavit contains opinions throughout, and stated in various

       forms, that the sudden cardiac arrest and loss of consciousness “was

       foreseeable,” “this foreseeable acute cardiac event caused the [] collision,” and

       Sikorski “knew or should have known not to operate a commercial vehicle due

       to the risk of a significant cardiac event.” Id. at 70-71, 74-75. We agree with

       Djuric Defendants that “[w]ith these ‘foreseeability’ opinions, Dr. Fletcher is

       attempting to elucidate what duty, if any, was required by Sikorski and/or

       Djuric Trucking]”and “directly relate to the legal conclusion of whether

       Sikorski had a duty not to drive a commercial vehicle on the date and time of

       the accident.” Appellees’ Brief at 29-30. We find these opinions exceeded the

       bounds of Evid. Rule 704(b).


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 20 of 22
[29]   The question before us thus becomes whether, when excluding the

       impermissible legal conclusions in the Affidavit, Alexander met his burden to

       show the existence of a genuine issue of material fact for trial. We conclude

       that he has not. That is, even if we agree with Alexander (via Dr. Fletcher’s

       Affidavit) that, based on Sikorski’s cardiac profile, he was statistically at an

       elevated risk for sudden death due to cardiac disease, and he had three out of

       thirteen medical conditions that put him at a statistically higher risk of a vehicle

       crash – and even if, as Dr. Fletcher opines, Sikorski “was not medically fit to

       drive commercially at the time of the crash” and “he was erroneously given a

       two-year certification” – none of those matters create a genuine issue of

       material fact as to whether Sikorski should have known not to drive on the day

       and time in question and breached a duty by driving. Appellant’s Appendix Vol.

       II at 75, 78.


[30]   Rather, Sikorski held a valid medical examiner’s certificate to drive

       commercially through November 3, 2016. There is no evidence that anyone,

       including his employer or a medical professional, told Sikorski not to drive. He

       had never had a heart attack and he was not prescribed or taking any heart

       medication. He did not note any pain or illness when his wife spoke to him

       minutes before the accident. He drove a truck for a living and did not have any

       specialized medical knowledge. Although Sikorski was not in good health,

       suffering from hypertension, sleep apnea and cardiac disease, we find that “this

       evidence does not equate to knowledge of peril or create an inference that a

       reasonable man in [Sikorski]’s position would have altered his behavior


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 21 of 22
       regarding driving.” Denson, 116 N.E.3 at 542. That is, we do not find that “a

       reasonably prudent person in his position would not have risked driving.” Id. at

       541. Absent negligence on the part of Sikorski, Djuric may not be found liable

       under the respondeat superior doctrine. Based on the record before us, we find

       that summary judgment in favor of Djuric Defendants was proper.


[31]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-366 | September 20, 2019   Page 22 of 22
