MEMORANDUM DECISION
                                                                     Apr 23 2015, 9:23 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Stephen B. Caplin                                         CHRISTOPHER T. HAUGH, M.D.
Stephen B. Caplin, P.C.                                   AND EVANSVILLE SURGICAL
Indianapolis, Indiana                                     ASSOCIATES
Richard L. Schultheis                                     James W. Brauer
Indianapolis, Indiana                                     Katz & Korin, P.C.
                                                          Indianapolis, Indiana
                                                          ATTORNEYS FOR APPELLEE ST.
                                                          MARY’S MEDICAL CENTER
                                                          Patrick A. Shoulders
                                                          Steven K. Hahn
                                                          Allyson R. Breeden
                                                          Ziemer, Stayman, Weitzel & Shoulders,
                                                          LLP
                                                          Evansville, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Yovanda R. Vaughn,                                        April 23, 2015
individually and as special                               Court of Appeals Case No. 82A05-
representative of the Estate of                           1408-CT-393
Anderson Vaughn, Jr., deceased,                           Appeal from the Vanderburgh
                                                          Superior Court
Appellant-Plaintiff,                                      The Honorable Mary Margaret
                                                          Lloyd, Judge
        v.                                                Cause No. 82D03-1306-CT-2728




Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015        Page 1 of 14
      Christopher T. Haughn, M.D.,
      Evansville Surgical Associates,
      and St. Mary’s Medical Center of
      Evansville, Inc., d/b/a St.
      Mary’s Medical Center,
      Appellees-Defendants,




      Bradford, Judge.



                                            Case Summary
[1]   In 2008, Anderson Vaughn, now deceased, underwent surgery to remove a

      cancerous tumor from his esophagus. The surgery was performed at Appellee-

      Defendant St. Mary’s Medical Center (“St. Mary’s”) by Appellee-Defendant

      Christopher Haughn, M.D., a member of Appellee-Defendant Evansville

      Surgical Associates (collectively “Defendants”).1 As a result of complications

      during the surgery, Anderson suffered damage to his aorta. Anderson’s wife,

      Appellant-Plaintiff Yovanda Vaughn (“Vaughn”) brought a medical

      malpractice claim against Defendants. In support of her claim, Vaughn offered

      an expert witness affidavit from a sleep specialist who opined that Dr. Haughn

      suffered a “sleep attack” while performing Anderson’s surgery which caused

      Dr. Haughn to temporarily lose awareness and cause damage to Anderson’s




      1
        Dr. Haughn and Evansville Surgical Associates are represented separately from St. Mary’s, and will be
      referred to collectively as “ESA.”

      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015            Page 2 of 14
      aorta. The trial court granted ESA’s motion to strike Vaughn’s expert affidavit

      and granted Defendants’ motions for summary judgment. In this appeal,

      Vaughn argues that the trial court erred by granting the motion to strike and the

      motions for summary judgment. We affirm.



                              Facts and Procedural History
[2]   On the morning of March 18, 2008, Dr. Christopher Haughn, with the

      assistance of Dr. Bruce Adye, began a laparoscopic esophagectomy to remove a

      cancerous tumor from Anderson Vaughn’s esophagus (“the procedure” or “the

      surgery”).2 The goal of the procedure was to maneuver the trocar through

      Anderson’s body to the location of the tumor, evaluate the nature and extent of

      the cancer, and ultimately remove the tumor if it was operable. Regrettably, a

      complication occurred early in the procedure. As Dr. Haughn was inserting the

      trocar, the trocar went through the abdominal cavity, through the

      retroperitoneum, and punctured the aorta. Soon thereafter, Dr. Haughn saw

      blood in the trocar, recognized the complication, and immediately converted

      the procedure to an aortobiiliac bypass to repair the aorta. Dr. Adye




      2
       A laparoscopic surgery, or minimally invasive surgery, involves the insertion of an endoscopic trocar into a
      patient’s body through a small incision. The trocar is equipped with a small camera at the tip which relays
      video to monitors in the surgical suite allowing the surgeons to observe the location of the trocar within the
      patient’s body via the monitors. What is Laparoscopic Surgery, Center for Pancreatic and Biliary Diseases,
      University of Southern California.
      http://www.surgery.usc.edu/divisions/tumor/pancreasdiseases/web%20pages/laparoscopic%20surgery/W
      HAT%20IS%20LAP%20SURGERY.html (last visited April 10, 2015)

      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015              Page 3 of 14
      successfully repaired the injury to the aorta, although Anderson had some

      further health issues as a result of the injury. Anderson died on May 5, 2010.


[3]   Sometime after the surgery, Vaughn filed a complaint against Defendants. On

      August 20, 2012, a medical panel determined that “[t]he evidence does not

      support the conclusion that the [Defendants] failed to meet the applicable

      standard of care as charged in the complaint.” Appellant’s App. p. 30-32. On

      June 13, 2013, Vaughn filed a complaint against Defendants in the

      Vanderburgh Superior Court. Both ESA and St. Mary’s filed motions for

      summary judgment designating the panel decision as evidence. In response,

      Vaughn designated as evidence an affidavit by Dr. Marvin Vollmer as well as

      portions of Dr. Haughn’s deposition.


[4]   Dr. Vollmer is a neurologist and sleep specialist. During his deposition, Dr.

      Vollmer testified that he believed Dr. Haughn suffered a “sleep attack” while

      performing the procedure which caused him to lose control of the surgical

      instruments and ultimately cause the injury to Anderson’s aorta. Appellee’s

      App. 8. Dr. Vollmer based his opinion on, among other things, medical records

      for Dr. Haughn and the depositions of Dr. Haughn and Dr. Haughn’s

      physician, Dr. David Cocanower.




      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 4 of 14
[5]   In 2006, Dr. Haughn began seeing Dr. David Cocanower for treatment of

      obstructive sleep apnea. As treatment, Dr. Haughn used a BiPAP3 machine

      each night while sleeping and took Concerta each morning.4 Dr. Haughn’s

      BiPAP machine had an electronic monitoring system which automatically

      catalogued data on the dates and periods of time when Dr. Haughn was using

      the machine. Dr. Cocanower testified that Dr. Haughn never had issues

      complying with treatment and that the electronic data, recorded between 2006

      and 2012, indicated that Dr. Haughn used his BiPAP machine ninety-eight

      percent of the time. Dr. Cocanower had no record of BiPAP data on Dr.

      Haughn for certain periods between 2006 and 2012 including the period

      between August 12, 2007 and June 18, 2008. Dr. Cocanower noted that gaps in

      patients’ BiPAP data are common because patients often forget or neglect to

      bring the information to their appointments.


[6]   On May 29, 2014, ESA filed a motion to strike Dr. Vollmer’s affidavit and in

      June of 2014, Defendants designated additional evidence in support of their

      respective motions for summary judgment, including the depositions of Dr.

      Adye, Dr. Vollmer, Dr. Haughn, and portions of Dr. Cocanower’s deposition.




      3
       BiPAP, or bilevel positive airway pressure, is a treatment that applies air pressure through a mask to keep a
      patient’s respiratory airways open.
      4
       Dr. Haughn was taking Concerta as treatment for both attention deficit disorder and the symptoms of sleep
      apnea.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015              Page 5 of 14
      On July 23, 2014, the trial court granted the motion to strike and the

      Defendants’ motions for summary judgment.



                                 Discussion and Decision
[7]   Vaughn raises two issues on appeal: (1) whether the trial court abused its

      discretion by striking the affidavit of Dr. Vollmer, and (2) whether the trial

      court erroneously granted Defendants’ motions for summary judgment.


                  I. Motion to Strike Dr. Vollmer’s Testimony
                                       A. Standard of Review
[8]           A trial court has broad discretion in ruling on a motion to strike.
              Generally, we review a trial court’s decision to admit or exclude
              evidence for an abuse of discretion. This standard also applies to
              decisions to admit or exclude expert testimony. We reverse a trial
              court’s decision to admit or exclude evidence only if that decision is
              clearly against the logic and effect of the facts and circumstances
              before the court, or the reasonable, probable, and actual deductions to
              be drawn therefrom.
      Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100-01 (Ind. Ct. App. 2005)

      (citations omitted).


[9]   Rule 702 of the Indiana Rules of Evidence provides as follows with regards to

      the admissibility of expert witness testimony:

              (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 | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 6 of 14
               (b) Expert scientific testimony is admissible only if the court is satisfied
               that the expert testimony rests upon reliable scientific principles.
       The party offering expert testimony bears the burden of establishing the

       foundation and reliability of the scientific principles and tests upon which the

       expert’s testimony is based. Tucker v. Harrison, 973 N.E.2d 46, 49 (Ind. Ct. App.

       2012) (citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997)).

               In determining whether expert testimony is reliable, the trial court acts
               as a “gatekeeper” to ensure that the expert’s testimony rests on a
               sufficiently reliable foundation and is relevant to the issue at hand so
               that it will assist the trier of fact. When faced with a proffer of expert
               scientific testimony, the court must make a preliminary assessment of
               whether the reasoning or methodology underlying the testimony is
               scientifically valid and whether that reasoning or methodology
               properly can be applied to the facts in issue.
       Id. (citations and quotations omitted). To be admissible, an expert’s opinion

       that an event caused a particular injury must be based on more than

       coincidence and supported by evidence in the record, establishing a standard of

       evidentiary reliability. Norfolk, 833 N.E.2d at 103.


                                                 B. Analysis
[10]   Defendants argue that Dr. Vollmer’s affidavit was properly stricken because his

       opinions are speculative and unsupported by facts in the record. The relevant

       portions of Dr. Vollmer’s affidavit, which Vaughn argues create a material issue

       of fact, are as follows:

               4. The Reviewed Documents reveal the following events and facts:
                                                   ***
               x. Dr. Haughn has no explanation as to how he pushed the trocar
               into the patient’s aorta.
       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 7 of 14
        xi. Dr. Haughn does not remember pushing the trocar through the
        retroperitoneum and into the aorta.
                                            ***
        xiii. Dr. Haughn was known to have problems with excessive
        sleepiness in the morning of sufficient severity to warrant-escalating
        doses of amphetamine-like medications, despite medical contradiction
        due to his hypertension.
        5. I hold the opinions that I express in this Affidavit to a reasonable
        degree of medical certainty. I am familiar with the standard of care
        required of physicians who have personal health and wellness
        problems such as Dr. Haughn. The standards require, among other
        things, that all physicians not allow their personal health and wellness
        problems interfere with a patient’s safety. It is my opinion that at time
        the Procedure was performed on March 18, 2008:
                                            ***
        b. Dr. Haughn was suffering from Obstructive Sleep Apnea Syndrome
        and attention deficit and significant problems waking up in the
        morning marked by excessive sleepiness.
        c. Because of his medical conditions, Dr. Haughn would have
        difficulty maintaining the attention necessary to control surgical
        instruments while performing the Procedure.
        d. Dr. Haughn could suffer from marked excessive sleepiness that
        would lead to the loss of awareness, memory, and control of
        instruments that happened during the Procedure.
        e. In view of his training, it is my opinion that Dr. Haughn’s loss of
        awareness, memory, and control of the surgical instruments during the
        Procedure was a result of his medical conditions.
Appellant’s App. pp. 61-64.5




5
 Vaughn does not argue that there was any negligence in the methodology by which Dr. Haughn’s
performed surgery, only that Dr. Haughn was negligent for performing surgery while impaired.

Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015       Page 8 of 14
[11]   Dr. Vollmer’s ultimate conclusion–that Dr. Haughn was impaired by his sleep

       apnea and suffered a “sleep attack” while performing surgery–is based on the

       purported facts listed in his affidavit above: Dr. Haughn does not remember,

       nor has any explanation for, pushing the trocar through Anderson’s abdominal

       cavity and into his aorta, and Dr. Haughn had problems with excessive

       sleepiness in the morning. However, these factual assertions are unsupported

       by the record. Dr. Haughn testified that he immediately became aware that the

       trocar had entered the aorta upon seeing blood in the trocar. Dr. Haughn went

       on to provide a detailed explanation for why he believed the trocar went deeper

       then intended and punctured the aorta.

               Q: What is your explanation as to the fact that you didn’t see
               abdominal cavity?
               A: I can’t say for certain why I never saw it. The – you know, on
               extensive reflection of this the best answer I could come up with was
               that the tissue of his anterior abdominal wall was lax or had a low
               compliance6 or high compliance that – and then with weight loss the
               fat in the abdomen that everybody has was decreased and this made it
               easier to push the contents of the abdominal cavity to the side so that
               the trochar instead of entering the abdominal cavity entered the
               retroperitoneum right after going through the anterior abdominal wall.
               Q: So it went through the anterior abdominal wall. Did it go through
               the anterior peritoneum?
               A: Yes. It would – so it went through the anterior fascia, the muscle,
               the posterior fascia, the peritoneum, and then the retroperitoneum. In
               other words, the abdominal cavity, instead of being a cavity with
               space, was compressed to the retroperitoneum.




       6
        Dr. Haughn later explained that “compliance” refers to “how stretchy the abdominal wall is,” appellant’s
       app. p. 214, and that Anderson’s abdominal wall had significant give due to weight loss and chemotherapy.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015           Page 9 of 14
               Q: Okay. That’s what you think happened?
               A: Yes.
       Appellant’s App. p. 208. When Dr. Adye was asked the same question, he

       provided a similar explanation that the trocar may have traveled further than

       was desired due to “[Anderson’s] deconditioned state[,] his weight loss, his

       adipose layer wasn’t as thick. Sometimes those things can happen without

       appreciable explanations, I think. It’s hard to know.” Appellant’s App. p. 237.

       Furthermore, Dr. Adye testified that he observed and spoke with Dr. Haughn

       prior to and during the surgery and described Dr. Haughn’s state of mind as

       “just like any other surgeon’s, focused on the case, entirely appropriate…. Just

       like any of my other partners would be.” Appellant’s App. p. 231. Contrary to

       Dr. Vollmer’s assertions, we have found no evidence in the record that indicates

       that Dr. Haughn lost consciousness, awareness, or control of his instruments at

       any time during the procedure.


[12]   Additionally, although Dr. Haughn did suffer from sleep apnea, he was actively

       being treated. There is no evidence that Dr. Haughn was suffering from

       excessive sleepiness or other symptoms of sleep apnea at the time of the

       surgery. Dr. Haughn testified that his sleep apnea has no impact on his ability

       to function so long as he is treated. He also testified that he had been using his

       BiPAP machine on the nights immediately preceding the surgery and had taken

       his medication that morning. Dr. Haughn’s assertions are supported by the

       testimony of Dr. Haughn’s treating physician, Dr. Cocanower. Dr. Cocanower

       indicated that the electronic data from Dr. Haughn’s BiPAP machine indicated

       that he was consistently using the machine. “[I]f you take all his compliance
       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 10 of 14
data as a whole and then even separate, it never looked like he had a problem

with compliance. He was way at the upper – using it ninety-eight percent of the

time.”7 Appellant’s App. p. 179. Dr. Cocanower went on to state that Dr.

Haughn’s treatment program was effective and that he had documented no

abnormal sleepiness levels since Dr. Haughn began treatment in 2006.8

        Q: Doctor [Cocanower], during the time period that you treated Dr.
        Haughn, did you feel that the treatment you were providing him for
        his obstructive sleep apnea was effective?
        A: Yes. Based on what he told me and based on the [BiPAP data] and
        based on a study night that we did.
        Q: Your answer is yes, you do feel it was?
        A: Yes.
        Q: You feel it was effective in reducing his symptoms that he was
        experiencing?
        A: Yes. And that’s actually documented in the record.
                                             ***
        Q: …[B]ased on that [October 28th, 2008] report, does he appear to be
        stable with his sleep apnea?
        A: Yes. And that was my impression noted on that [report] in number
        one.




7
 Dr. Cocanower had previously indicated that the generally accepted standard for minimally effective
BiPAP use is “[a]t least four hours 60 percent of the nights.” Appellant’s App. p. 178.
8
  Dr. Cocanower used a questionnaire known as the Epworth Sleepiness Scale to score his patients’
sleepiness levels each time he saw the patient. Dr. Haughn’s Epworth score was only in the abnormal range
on his first visit to Dr. Cocanower before beginning treatment.

Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015          Page 11 of 14
       Appellant’s App. p. 183. In addition to Dr. Cocanower and Dr. Haughn’s

       testimony, Dr. Adye testified that he has “[never] seen any evidence of [Dr.

       Haughn] being impaired from sleep apnea.” Appellant’s App. p. 240.


[13]   We have found no evidence in the record which supports Dr. Vollmer’s

       conclusions that “[b]ecause of his medical conditions Dr. Haughn would have

       difficulty maintaining the attention necessary to control surgical instruments

       while performing,” or that “Dr. Haughn could suffer from marked excessive

       sleepiness that would lead to the loss of awareness, memory, and control of

       instruments.” Appellant’s App. p. 64. Furthermore, there is no evidence that

       any individual present during Anderson’s surgery witnessed Dr. Haughn lose

       awareness, memory, or control of the surgical instruments as Dr. Vollmer

       asserts.


[14]   In addition to lacking a factual foundation on which to base his medical

       opinion, Dr. Vollmer’s lack of surgical expertise also raises questions regarding

       the reliability of his opinion as to the causation of the injury. “An expert in one

       field of expertise cannot offer opinions in other fields absent a requisite showing

       of competency in that other field.” Tucker, 973 N.E.2d at 51; (See e.g. Bennett v.

       Richmond, 960 N.E.2d 782, 789 (Ind. 2012) (despite not being a medical doctor,

       a psychologist was qualified to offer his expert opinion that the plaintiff suffered

       a traumatic brain injury as a result of a car accident because the psychologist

       demonstrated his knowledge and experience with traumatic brain injuries). Dr.

       Vollmer testified that he is not a surgeon, has never performed laparoscopic

       surgery or any other “major surgery,” and does not consider himself an expert

       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 12 of 14
       in surgery. Appellee’s App. 8. As such, Dr. Vollmer has no expert knowledge

       on the risks inherent in the type of laparoscopic surgery at issue here. Without

       such knowledge, Dr. Vollmer’s proffered opinion, that it was Dr. Haughn’s

       “sleep attack” which precipitated the injury to Anderson, seems nearer to

       dubious than reasonably reliable. When asked if an aortic perforation can

       occur during a laparoscopic procedure absent negligence, Dr. Vollmer said that

       that was “beyond [his] area of expertise to answer” and that he would “defer to

       a surgeon.” Appellee’s App. p. 27.


[15]   To be admissible under Rule 702, an expert witness’s testimony must offer

       knowledge based on more than subjective belief or unsupported speculation.

       Norfolk, 833 N.E.2d at 103. Based on the lack of facts supporting Dr. Vollmer’s

       opinions as well as his inexperience with laparoscopic procedures, we think his

       assertions amount to little more than unsupported speculation. As such, we

       find that the trial court did not abuse its discretion in striking Dr. Vollmer’s

       affidavit.


                                      II. Summary Judgment
[16]           On appeal, our standard of review is the same as that of the trial court:
               summary judgment is appropriate only where the evidence shows
               there is no genuine issue of material fact and the moving party is
               entitled to judgment as a matter of law. We construe all facts and
               reasonable inferences drawn from those facts in favor of the non-
               moving party. On appeal, the trial court’s order granting or denying a
               motion for summary judgment is cloaked with a presumption of
               validity. A party appealing from an order granting summary judgment
               has the burden of persuading the appellate tribunal that the decision
               was erroneous.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015   Page 13 of 14
       Roberts v. Sankey, 813 N.E.2d 1195, 1197 (Ind. Ct. App. 2004) (citations

       omitted). A court must grant summary judgment against a party who fails to

       establish the existence of an element essential to that party’s case, and on which

       that party will bear the burden of proof at trial. Briggs v. Finley, 631 N.E.2d 959,

       963 (Ind. Ct. App. 1994).


[17]   “In a medical negligence claim, the plaintiff must prove by expert testimony not

       only that the defendant was negligent, but also that the defendant’s negligence

       proximately caused the plaintiff’s injury.” Clarian Health Partners, Inc. v. Wagler,

       925 N.E.2d 388, 392 (Ind. Ct. App. 2010) (emphasis added) (citing Schaffer v.

       Roberts, 650 N.E.2d 341, 342 (Ind. Ct. App. 1995)). 9


[18]   Lacking the stricken Vollmer affidavit, Vaughn has no expert testimony

       supporting her negligence claim. Without expert evidence, Vaughn’s medical

       malpractice claim is unable to succeed. Accordingly, the trial court did not err

       in granting the Defendants’ motions for summary judgment.


[19]   The judgment of the trial court is affirmed.

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




       9
        Vaughn briefly points out the common knowledge exception to the expert evidence requirement which
       provides that a plaintiff in a medical malpractice case need not provide expert evidence when the alleged
       negligence is comprehensible to the jury without extensive technical knowledge. See e.g. Chi Yun Ho v. Frye,
       880 N.E.2d 1192, 1200 (Ind. 2008) (the common knowledge exception applied to a medical malpractice
       action in which patient’s oxygen match caught fire by an electrocautery unit.) The intricacies of laparoscopic
       surgery are clearly a complex subject matter that requires expert evidence. As such, we decline to apply the
       common knowledge exception to this case.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-CT-393 | April 23, 2015            Page 14 of 14
