Volume 39 Issue 5 February 3, 2012

McCaa v. State, No. 56A04-1107-CR-341, __ N.E.2d __ (Ind. Ct. App., Jan. 30, 2012).

Officer did not violate Fourth Amendment or Indiana Constitution by having defendant drive his truck two miles down the road to a gas station to continue the investigatory stop made on reasonable suspicion, when the truck was blocking the single lane of traffic, it was raining, and the defendant’s driving posed no severe risks.

Stark v. State, No. 49A05-1104-CR-152, __ N.E.2d __ (Ind. Ct. App., Jan. 31, 2012).

Although jacket possessor was out of vehicle and handcuffed, officer’s search of the jacket in the car did not violate Arizona v. Gant when three occupants remained in the vehicle, suspect had acted suspiciously about the jacket, and car was in high crime area.

Anderson v. State, No. 49A05-1105-CR-243, __ N.E.2d __ (Ind. Ct. App., Jan. 31, 2012).

DNA felony conviction swab statute’s “mistake” exception applied to probation officer’s taking of cheek swab from defendant when abstract of judgment officer had indicated a D felony conviction, with no mention of alternative misdemeanor sentencing.

Adams v. State, No. 29S02-1109-CR-542, __ N.E.2d __ (Ind., Feb. 2, 2012).

To impose the IC 35-48-4-15(a) mandatory license suspension for using a vehicle in the commission of a drug offense, the “State must demonstrate that a defendant made more than an incidental use of a motor vehicle in committing his offense”; evidence defendant “possessed a jar of marijuana by keeping the jar on the floorboard in front of him while he sat in the passenger seat” supported suspension; it was “not a situation in which a defendant merely happened to possess a small bag of marijuana in his pocket without making any direct use of the vehicle to do so.”

Person v. Shipley, No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind., Jan. 31, 2012).

Trial court did not abuse its discretion by admitting expert testimony offered by a personal injury defendant in a rear-end collision case.

Bennett v. Richmond, No. 20S03-1105-CV-293, ___ N.E.2d ___ (Ind., Jan. 31, 2012).

Trial court did not abuse its discretion by admitting expert testimony offered by a personal injury defendant in a rear-end collision case.



McCaa v. State, No. 56A04-1107-CR-341, __ N.E.2d __ (Ind. Ct. App., Jan. 30, 2012).

BRADFORD, J.

In this prosecution of Appellee-Defendant Johnnie McCaa for one count of Class A misdemeanor Operating a Vehicle While Intoxicated (“OWI”) in a Manner that Endangers Another Person, [footnote omitted] Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of McCaa’s motion to suppress evidence. After an initial stop of McCaa for erratic driving, police directed McCaa to move his semi-trailer truck to another location for further investigation. The State contends that the trial court erred in granting McCaa’s motion to suppress evidence generated following the initial stop. We reverse and remand with instructions.

. . . .

Deputy Shufflebarger had the driver, McCaa, exit the truck. Sergeant Cothran, who had parked behind the truck on the right side of the driving lane, approached and spoke with McCaa. Sergeant Cothran asked McCaa about his erratic driving, and McCaa said that he had been eating his lunch and had “spilled [his] pop,” which had caused him to drive off of the roadway. Tr. p. 16. Sergeant Cothran observed a sandwich wrapper and a spilled soft drink can on the floor in the cabin of the truck. During the initial encounter with McCaa, which lasted no more than one minute, Sergeant Cothran did not notice any slurred speech, glassy or bloodshot eyes, or manual dexterity problems. According to Sergeant Cothran, a typical stop of a truck due to the sort of erratic driving involved here would require approximately ten to fifteen minutes.

Sergeant Cothran decided to continue the investigation because he was not certain that McCaa’s explanation for his erratic driving was true and was concerned that McCaa might be suffering from a medical condition such as low blood sugar. Sergeant Cothran decided to move the investigation to a gas station approximately two miles farther down U.S. 41 because of “a downpour of rain[,]” the truck was blocking the only open lane of traffic, the gas station had adequate room to park the truck, and a medical crew was waiting there, having been called in to assist with the accident if necessary. Tr. p. 27. According to Sergeant Cothran, the truck would have been (1) in the way if it had been moved just ahead of the crash scene, (2) on the north side of a hill if it had been moved approximately one-eighth of a mile, and (3) on the south side of a hill if it had moved moved approximately one-half of a mile. During the drive to the gas station, Sergeant Cothran observed McCaa drive his truck off the roadway three more times.

Once inside the gas station, Sergeant Cothran conducted the horizontal-gaze-nystagmus, one-leg-stand, and walk-and-turn field sobriety tests (“FSTs”) on McCaa, all of which he failed. McCaa took a portable breath test for blood alcohol concentration, which registered 0.00. Sergeant Cothran detained McCaa at the gas station for approximately twenty minutes. Sergeant Cothran took McCaa to a hospital where, pursuant to a search warrant, a urine sample was ultimately collected.  [Footnote omitted.]

. . . .

Although we consider it a somewhat close call, we conclude that Sergeant Cothran was still entitled to detain McCaa for further investigation at the time he told McCaa to move his truck to the gas station. When Sergeant Cothran was speaking with McCaa for between thirty seconds and one minute, McCaa offered a seemingly plausible explanation for his erratic driving and exhibited no outward signs of impairment. A reasonable person, however, would have been entitled to doubt McCaa’s story. First, although plausible, the story was undeniably self-serving and therefore suspect. We will not adopt the rule that reasonable suspicion vanishes as soon as a suspect offers a plausible, innocent explanation for his seemingly criminal behavior.

. . . .

We also cannot conclude that the absence of obvious signs of impairment, at least in this case, was sufficient to dispel reasonable suspicion. First, Sergeant Cothran was in a position to observe McCaa for no more than one minute before telling him to move his truck, when a typical traffic stop for erratic driving of a semi-trailer truck takes approximately ten to fifteen minutes. It seems clear that Sergeant Cothran simply did not have enough time during the initial stop to fully investigate the cause of McCaa’s erratic driving, especially when his attention was divided by his concern for the blocked traffic on a major highway. Moreover, we cannot ignore the fact that there are many substances other than alcohol that can render one unfit to drive. The mere fact that evidence of alcohol is missing does not demonstrate that a person is not intoxicated on some other substance, such as heroin. We therefore conclude that, under the unusual circumstances of this case, reasonable suspicion justifying further investigation was not dispelled by Sergeant Cothran’s initial encounter with McCaa.

. . . .

While we have concerns regarding Sergeant Cothran’s actions in this case, we do not think they qualify as outrageously dangerous. Unlike in Osborne, police had a fair measure of control over this situation. Sergeant Cothran and another officer followed McCaa as he drove to the gas station, and there was no reason to believe that McCaa would attempt flight, as he had already stopped for police once. Also unlike in Osborne, there was very little chance of McCaa’s truck encountering other traffic as he drove to the gas station, because all other southbound traffic had been stopped behind him, and the traffic in front had had time to drive ahead. In other words, to the extent that McCaa’s driving posed a risk, it was essentially limited to the risk that he would run his truck off of the roadway but not that he would run it into another vehicle.  [Footnote omitted.]

KIRSCH, J., concurs.

BARNES, J., concurs with opinion:

I begrudgingly concur here. I respect Judge Bradford’s analysis, but write to emphasize that only the unique and rare circumstances at play in this case allow me to vote to concur. If police had not been forced to initially pull McCaa over at a location that caused him to block all traffic on a well-traveled highway, which necessitated having McCaa continue driving to a different location so that FSTs could safely be administered, my vote might not be the same. No mistake should be made that law enforcement officers could or should allow a person to drive a vehicle, observe the driver, and buttress their probable cause because of these observations. These circumstances are the proverbial “once in a lifetime,” fortunately for police.

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Stark v. State, No. 49A05-1104-CR-152, __ N.E.2d __ (Ind. Ct. App., Jan. 31, 2012).

BARNES, J.

Recently, in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), the Court considered the search incident to arrest exception where the defendant had been arrested, handcuffed, and placed in the back of a patrol car and officers searched his car, finding a gun and cocaine. There were no passengers in his car, and bystanders had also been arrested and placed in police cars. The Court noted that the search incident to arrest exception “derives from interests in officer safety and evidence preservation. . . .” Gant, 556 U.S. at 332, 129 S. Ct. at 1716 (citing in part Chimel, 395 U.S. at 763, 89 S. Ct. at 2040). The Court clarified that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 556 U.S. at 332, 129 S. Ct. at 1723. “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Id. at 332, 129 S. Ct. at 1723-24. The Court concluded that the search incident to arrest exception did not justify the search of the defendant’s vehicle.

Here, the State contends that Stark was “within reaching distance of the passenger compartment” and was “relatively unsecured,” but we do not find this argument convincing. Appellee’s Br. p. 6. At the time of the search, Stark was out of the car and was handcuffed. However, the circumstances here are different than the circumstances in Gant. In Gant, the defendant was alone in his car when he was arrested, and the vehicle was searched after he and some bystanders were handcuffed and placed in police cars. Here, although Stark was removed from the vehicle and handcuffed, three other unsecured persons remained in the vehicle. Indiana courts have not encountered a situation like this since the United States Supreme Court’s holding in Gant, but other courts have.

. . . .

Davis, Goodwin-Bey, and Young indicate that, where unrestrained passengers remain in a vehicle, a search of the vehicle incident to a defendant’s arrest is permissible to alleviate officer safety concerns and to prevent the destruction of evidence. We find this analysis persuasive. The Court in Gant emphasized the officer safety basis for the search incident to arrest exception. Gant, 556 U.S. at 332, 129 S. Ct. at 1716. The three passengers here were unsecured during Officer Shockey’s arrest of Stark, Stark had behaved suspiciously regarding his jacket, and they were in a high crime area. An objective officer considering these facts would have been warranted in conducting a search of the vehicle incident to Stark’s arrest under Gant’s officer safety considerations.  [Footnote omitted.]  . . . The search of the vehicle incident to Stark’s arrest was permissible under Gant, and the trial court properly denied Stark’s motion to suppress.

KIRSCH, J., and BRADFORD, J., concur.

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Anderson v. State, No. 49A05-1105-CR-243, __ N.E.2d __ (Ind. Ct. App., Jan. 31, 2012).

CRONE, J.

Next, we consider Anderson’s challenge to the admission of the DNA evidence at trial. Specifically, Anderson argues that the DNA evidence was obtained in violation of Indiana Code Section 10-13-6-10, which requires only convicted felons to submit DNA samples. Anderson maintains that the collection of his DNA was not a “mistake” within the meaning of subsection (c) of that statute.  . . . .

. . . .

Indiana Code Section 10-13-6-10 provides, in relevant part, that a person convicted of a felony, conspiracy to commit a felony, or attempt to commit a felony “shall provide a DNA sample” to the “agency that supervises the person, or the agency’s designee, if the person is on conditional release in accordance with Indiana Code Section 35-38-1-27.” Subsection (c) of the statute further states that “[t]he detention, arrest, or conviction of a person based on a data base match or data base information is not invalidated if a court determines that the DNA sample was obtained or placed in the Indiana DNA data base by mistake.” Ind. Code § 10-13-6-10(c).

We agree with the trial court that what happened in this case fits squarely within the “mistake” exception provided by Indiana Code Section 10-13-6-10. Ten months after Pepper was murdered, Anderson was charged with various crimes, including class D felony criminal confinement, in an unrelated case. Pursuant to a plea agreement, Anderson was sentenced according to the alternate misdemeanor sentencing statute, Indiana Code Section 35-50-2-7(b).  [Footnote omitted.]  Therefore, the resulting judgment of conviction entered by the trial court was for a class A misdemeanor. However, when Anderson appeared for his probation intake interview, probation officer Smith reviewed the order of probation received from the trial court. That document clearly indicated that Anderson had been convicted of criminal confinement as a class D felony with no mention of alternate misdemeanor sentencing. The record also reveals that the abstract of judgment received from the trial court stated that Anderson was convicted of criminal confinement as a class D felony with no mention of alternate misdemeanor sentencing. Unbeknownst to Smith, the information provided in those documents by the trial court was inaccurate. Smith relied on the information when he advised Anderson that, because he was convicted of a felony, he was required to submit a DNA sample. Anderson did not correct Smith or state that he had been convicted of only a misdemeanor. Instead, Anderson proceeded to another office and submitted to a buccal swab for DNA.

The record clearly establishes that Smith relied upon two court orders when advising Anderson that he was required to submit a DNA sample. As noted by the State, as a probation officer, Smith “serve[s] at the pleasure of the appointing court and [is] directly responsible to and subject to the orders of the court.” Ind. Code § 11-13-1-1(c). We disagree with Anderson’s contention that the buccal swab was taken with intentional or reckless disregard of his constitutional rights. Instead, the DNA evidence was obtained and placed in the DNA database by mistake.  . . . .

MAY, J., and BROWN, J. concur.

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Adams v. State, No. 29S02-1109-CR-542, __ N.E.2d __ (Ind., Feb. 2, 2012).

SHEPARD, C.J.

The question here is whether an automobile passenger riding down the highway with a jar of marijuana between his legs can be found to have “used the vehicle” in committing the offense of possessing marijuana. We conclude that he can.

. . . .

Returning to the passenger side of the vehicle to perform a search, Trooper Caddell could see a glass Ball Mason jar on the floorboard as he looked through the passenger-side window. (Tr. at 31–37.) Caddell later testified that if a person had been sitting in the passenger seat, the jar would have sat directly between his feet. (Tr. at 39.) In his opinion, the jar was in a position such that Adams could have taken possession of it. (Tr. at 39.) Although Caddell was carrying a flashlight, he could see the jar without it. (Tr. at 37.) Because the jar was in plain view and consisted of see-through glass, Caddell could see a “green, leafy plant material” inside it. (Tr. at 31, 39–40.) Testing later revealed that the jar contained about twenty-four grams of marijuana. (Tr. at 36.)

Trooper Caddell also found a large amount of money on both occupants (Adams had more than Johnson—a little over $2100). Caddell thought the amount of money was large enough to indicate the possible sale of marijuana. (Tr. at 36.)

At trial, Adams testified that he did not smell marijuana when he got into the vehicle, as Johnson was smoking a cigar at the time, nor did the two of them discuss Johnson smoking marijuana earlier that morning. (Tr. at 47–48.) Johnson testified that to his knowledge, Adams did not know about the marijuana in the vehicle. (Tr. at 43.)

Adams further testified that he did not notice the jar when he got into Johnson’s vehicle or at any other time before Trooper Caddell stopped the vehicle. (Tr. at 47.) Both Adams and Johnson testified that Adams got into the front seat with his backpack, and according to Johnson, the jar was underneath the seat. (Tr. at 43, 47.) As a rebuttal witness, however, Trooper Caddell testified that he could see a backpack in the back seat, but that the jar was on the floorboard in the front well, out from underneath the seat. (Tr. at 50.)

Acknowledging having placed his hand between the seat and the door when Trooper Caddell approached the passenger-side window, Adams testified that he was reaching down to get his identification after dropping it in between the seat and the door. He had dropped it after retrieving it from his backpack, anticipating the Trooper would ask for it. In contrast, Trooper Caddell testified that Adams did not produce his license from between the seat and the door, but rather handed over his license with his other hand.

Johnson, who had signed a pretrial diversionary agreement admitting to possessing marijuana, further testified that he told Trooper Caddell that the marijuana belonged to him, not Adams. (Tr. at 42, 45.)

The trial court found Adams guilty of possessing marijuana. At the sentencing hearing, the court imposed the State’s recommended sentence of 365 days in jail, with two days’ credit for time served and the remainder suspended to probation. In addition to imposing fines and administrative fees of $464, Judge Bardach suspended Adams’s driver’s license and registration for 180 days under Indiana Code § 35-48-4-15(a) (2008), believing that the driver’s license suspension statute left her no discretion in the matter even though Adams was not driving the vehicle. (Tr. at 55, 64–65.)

. . . .

A person commits possession of marijuana as a class A misdemeanor if he knowingly or intentionally possesses marijuana. Ind. Code § 35-48-4-11 (2008). When a defendant is convicted of possessing marijuana, the court must order the person’s driver’s license, existing motor vehicle registration, and ability to register new vehicles suspended for no less than six months and no more than two years if the court “finds that a motor vehicle was used in the commission of the offense.” Ind. Code § 35-48-4-15(a). The statute leaves the court discretion to decide the length of the suspension, but not whether to order it.

Adams argues that the trial court abused its discretion in suspending his driver’s license and registration because Adams was not using a motor vehicle in committing his offense. (Appellant’s Br. at 8–9, 12.) Instead, says Adams, he was merely riding in a vehicle owned and driven by Johnson. (Appellant’s Br. at 8–9, 12.) We understand this as a claim that the court erred as a matter of law in applying the statute to Adams at all.

In response, the State argues that finding any use of a vehicle, whether by a defendant or by some other party, requires the court to suspend the defendant’s driver’s license and registration. (Appellee’s Br. at 10) (“It does not matter who uses the vehicle, it [sic] just needs to be used.”).

Adams relies on the legislative history of Section 35-48-4-15(a) to discredit the notion that the Legislature intended subsection 15(a) to reach people in his situation. (Appellant’s Br. at 9–11.) Originally, the statute required a finding that “the offense is committed in a motor vehicle or a motor vehicle is used to facilitate the commission of the offense” and left a trial court the discretion to suspend a defendant’s license and registration. Ind. Code § 35-48-4-15(a) (Supp. 1990); see also Act of March 19, 1990, P.L. 67-1990, § 13, 1990 Ind. Acts 1555, 1571–72.

But in 1991, the Legislature removed the requirement that some nexus connect a motor vehicle to the offense, and made the suspension mandatory simply upon conviction for the underlying drug offense. Ind. Code § 35-48-4-15(a) (Supp. 1991); see also Act of May 5, 1991, P.L. 107-1991, § 3, 1991 Ind. Acts 1976, 1982. Finally, in 2004, the Legislature inserted the current requirement that a motor vehicle be “used in the commission of the offense.” Ind. Code § 35-48-4-15(a) (2008); see also Act of March 17, 2004, P.L. 76-2004, § 23, 2004 Ind. Acts 1070, 1085–86.

Adams therefore argues that the Legislature intended the 2004 amendment to abrogate cases decided under the 1991 text and in which no nexus whatsoever connected a motor vehicle with the offense. See, e.g., Mitchell v. State, 659 N.E.2d 112, 114, 116 (Ind. 1995) (affirming suspension when parties stipulated no motor vehicle involved); see also Walker v. State, 661 N.E.2d 869, 870, 872 (Ind. Ct. App. 1996) (affirming suspension when officers found marijuana in defendant’s pocket after arrest for barroom brawl). As a result, whereas the State argues that anyone’s use of a motor vehicle in the commission of the offense should require suspending a defendant’s driver’s license and registration, Adams argues that only the defendant’s use of a motor vehicle “to contribute to the conduct of [the] crime” should require that result. (Appellant’s Br. at 11.) From that point, Adams seems to conclude that the defendant must therefore either have owned or have been driving the motor vehicle for Section 35-48-4-15(a) to apply. (Appellant’s Br. at 11–12.)

We think the State’s argument goes much too far in imposing criminal liability, and Adams’s not quite far enough.

. . . .

Reading the statute as a whole instead of reading the terms and phrases in isolation counsels in favor of Adams’s interpretation. Indeed, Section 35-48-4-15(a) states that a trial court must suspend the defendant’s driver’s license and registration whenever it finds “that a motor vehicle is used in the commission of the offense.” It is axiomatic that criminal liability attaches only to conduct, so we think the use of a motor vehicle must occur in the course of the conduct that gives rise to the defendant’s criminal liability in the first place. Accomplice liability aside, that will generally occur only when the defendant uses the motor vehicle. We therefore conclude that Section 35-48-4-15(a) requires proof that the defendant used a motor vehicle, at least in cases in which the defendant’s liability does not turn on an accomplice theory. The rule of lenity only strengthens this conclusion.

But even though we agree with Adams that the driver’s license suspension statute generally applies only when the defendant uses a vehicle in the commission of the offense, it does not follow that the defendant must therefore either own or be driving the vehicle when he commits the offense. Indeed, the question of whether someone “uses” some object will always raise the question of how one can “use” it. Compare Watson v. United States, 552 U.S. 74 (2007) (defendant who trades controlled substances for firearm does not “use” firearm within meaning of statute), with Smith v. United States, 508 U.S. 223 (1993) (defendant who trades firearm for controlled substances does “use” firearm within meaning of statute). Still, we are confident that thornier textual problems exist. See, e.g., In re Erickson, 815 F.2d 1090 (7th Cir. 1987) (grappling with whether modern, mechanized haybine constituted “mower” for purposes of exemption statute drafted in 1935).

. . . [A]s Adams’s counsel acknowledged at oral argument, a defendant could just as easily use the vehicle by hiding controlled substances in its glove box or trunk as by driving it and transporting controlled substances in the process. Or the defendant could use the vehicle by selling those substances out the window. Or the defendant could use the vehicle by selling those substances to a buyer inside the vehicle so as to conceal the transaction from prying eyes. In all these situations, the defendant would be employing or utilizing a motor vehicle for the purpose of engaging in conduct that constituted an offense involving controlled substances without actually driving or even necessarily owning the vehicle.

At oral argument, counsel for the State went further and asserted that a once a defendant enters a vehicle, his mere possession of marijuana somewhere on his person triggers the statute because he was using the vehicle while possessing marijuana. We caution that a showing that the defendant used a vehicle in committing the offense is a necessary precondition for suspending his driver’s license under the statute, not merely a perfunctory box to check as a matter of course after convicting the defendant of possession.

Indeed, it is in evaluating this particular argument of the State’s that we find reference to the civil forfeiture statute most helpful. The civil forfeiture statute allows the State to seize a motor vehicle if is “used or . . . intended for use by the person . . . in possession of [it] to transport or in any manner to facilitate the transportation of . . . [a] controlled substance for the purpose of committing, attempting to commit, or conspiring to commit” any number of different offenses. Ind. Code § 34-24-1-1 (2008).

We recently held that showing merely an incidental or fortuitous connection between a vehicle and an underlying offense was not a sufficient showing of use for the State to seize a vehicle under the civil forfeiture statute. See, e.g., Serrano v. State, 946 N.E.2d 1139, 1143–44 (Ind. 2011). In Serrano, the State sought forfeiture of a person’s truck based on a slight presence of cocaine residue on the truck’s carpet. Id. at 1140–41. We reversed the trial court’s judgment in favor of the State. Id. at 1141, 1143–44. In our view, the statute required that the person in possession used the vehicle to transport an illicit substance or item listed in the statute, and that he did so for the purpose of committing, attempting to commit, or conspiring to commit possession of that substance. Id. at 1143 (quoting Katner v. State, 655 N.E.2d 345, 349 (Ind. 1995)). The second requirement served to avoid forfeiture when the operator coincidentally possessed drug residue but was not transporting the residue or using the vehicle in any other way to further possession or conspiracy to possess. Id. (quoting Katner, 655 N.E.2d at 349)).

So we think it is with the driver’s license suspension statute. The State must demonstrate that a defendant made more than an incidental use of a motor vehicle in committing his offense, but once the State makes this showing, then a trial court must order the defendant’s driver’s license, registration, and ability to register other vehicles suspended. The court may exercise its discretion only in setting the length of that suspension.

Here, under the very rule Adams proposes, Adams used the vehicle in committing the offense of possessing marijuana. When viewed in the light most favorable to the judgment, the evidence shows that Adams possessed a jar of marijuana by keeping the jar on the floorboard in front of him while he sat in the passenger seat. As a result, this is not a situation in which a defendant merely happened to possess a small bag of marijuana in his pocket without making any direct use of the vehicle to do so. Indeed, the trial court could well have found that Adams used the floorboard of the front well to possess the jar so Trooper Caddell would not catch him holding it in his hands when Trooper Caddell came to the window.

As a result, we think the court properly ordered Adams’s driver’s license, registration, and ability to register other vehicles suspended, as the statute left the court no discretion in the matter.

Dickson, Sullivan, Rucker, and David, JJ., concur.

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Person v. Shipley, No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind., Jan. 31, 2012).

Sullivan, J.

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

….

Discussion

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

….

I

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

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

We agree with the Court of Appeals that Dr. Turner was qualified under Rule 702(a) to offer his opinions. Person, 949 N.E.2d at 391-92. First, we too conclude that Dr. Turner’s engineering background, his knowledge of velocity and changes in speed upon impact, and his experience in reviewing these types of cases made him qualified to offer his opinion as to the change in speed or velocity of Person’s tractor-trailer. Id. at 391. And we agree that Dr. Turner was qualified to give his opinion that the accident did not cause Person’s lower-back injury. Id. at 391-92. But we do take note of the basis for its finding that Dr. Turner was qualified in this latter regard. The Court of Appeals acknowledged that Dr. Turner was not a medical doctor and recounted the oft-cited statement that “[q]uestions of medical causation of a particular injury are questions of science dependent on the testimony of physicians and surgeons learned in such matters.” Id. at 391 (citing Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied). It reasoned, however, that Dr. Turner’s testimony “focus[ed] on the science of engineering and physics as opposed to the science of medicine,” id. at 391, and therefore, his education, background, training, and knowledge of the effect of forces on the musculoskeletal system made him qualified to render this causation opinion under Rule 702, id. at 391-92. The Court of Appeals has made a similar distinction in at least one other case. See K.D. v. Chambers, 951 N.E.2d 855, 861-62 (Ind. Ct. App. 2011) (noting that toxicologist’s testimony related to the toxic effects of an overdose and whether those included a tremor, not to diagnosing or treating a disease), trans. denied, ___ N.E.2d ___ (Ind. 2011) (table), disapproved on other grounds by Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011). Although we find it unnecessary in this case to expound upon Dr. Turner’s qualifications to offer an opinion on medical causation, we note here as we noted in Bennett that neither the criteria for qualifying under Rule 702 (knowledge, skill, experience, training, or education) nor the purpose for which expert testimony is admitted (to assist the trier of fact) seems to support disallowing an otherwise qualified expert to offer an opinion regarding medical causation simply because he or she lacks a medical degree.

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

II

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

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

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

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

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

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

. . . .

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

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

The Court of Appeals held that “[a]bsent any factual support for assigning a maximum weight to Person’s truck or the speed and weight of Shipley’s vehicle, any ultimate conclusion reached by Dr. Turner based upon those assumptions is unreliable and based wholly upon speculation.” Person, 949 N.E.2d at 393. But Rule 702 does not require such specific factual support for expert testimony. Rather, it only requires the trial court’s satisfaction that the expert’s opinion is based on reliable scientific principles that can be properly applied to the facts in issue. Stichnoth, 877 N.E.2d at 484. The facts in this case clearly support Dr. Turner’s momentum calculation: Shipley, who was driving a sedan, fell asleep at the wheel and, not knowing exactly how fast she was driving at the time, rear ended an eighteen-wheel semi tractor-trailer that was traveling about 55 miles per hour and hauling bananas. Thus, Dr. Turner squarely applied a reliable scientific method – calculating the momentum transfer as mass times velocity – to facts that occurred in this case – a sedan rear ending a semi tractor-trailer. [Footnote omitted.] Cf. Clarke v. Sporre, 777 N.E.2d 1166, 1170-71 (Ind. Ct. App. 2002) (expert opinion that hypoxic event caused mental impairment was speculative because there was no factual basis that hypoxic event occurred). To the extent Dr. Turner used his knowledge and experience to make reasonable estimates of speed and weight upon which to base his opinion, we note that this is, in fact, the purpose of an expert. Estate of Hunt v. Henry County Bd. of Comm’rs, 526 N.E.2d 1230, 1234 (Ind. Ct. App. 1988), trans. denied.

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

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

Conclusion

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

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

 

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Bennett v. Richmond, No. 20S03-1105-CV-293, ___ N.E.2d ___ (Ind., Jan. 31, 2012).

Sullivan, J.

The sole issue in this appeal is whether the trial court abused its discretion when it permitted a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury. [Footnote omitted.] Finding the trial court did not abuse its discretion in this regard, we affirm.

….

Discussion

I

While there is little dispute that a psychologist may testify as to the existence of a brain injury or the condition of the brain in general, the specific issue in this case – whether psychologists or neuropsychologists may testify as to the cause of a brain injury – is one that has divided jurisdictions. [Footnote omitted.] Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 886-87 (Iowa 1994); see also Landers v. Chrysler Corp., 963 S.W.2d 275, 280-81 (Mo. Ct. App. 1997) (discussing jurisdictional split), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223, 226 (Mo. 2003) (en banc); Joseph M. Desmond, Admissibility of Neuropsychological Evidence in New Hampshire, N.H. B.J., Winter 2007, at 12, 15 & n.40 (same). A majority of jurisdictions have allowed such testimony, basing their reasoning on relevant statutes or case law, evidence rules, common sense, or some combination of these. See, e.g., Fabianke v. Weaver, 527 So. 2d 1253, 1257 (Ala. 1988); Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 690-91 (Colo. 1998) (en banc); Valiulis v. Scheffels, 547 N.E.2d 1289, 1296-97 (Ill. App. Ct. 1989); Hutchison, 514 N.W.2d at 887-89; Landers, 963 S.W.2d at 281-82; Sanchez v. Derby, 433 N.W.2d 523, 525 (Neb. 1989) (per curiam); Adamson v. Chiovaro, 705 A.2d 402, 405-06 (N.J. Super. Ct. App. Div. 1998); Madrid v. Univ. of Cal., 737 P.2d 74, 76-78 (N.M. 1987); Cunningham v. Montgomery, 921 P.2d 1355, 1358-60 (Or. Ct. App. 1996) (en banc); Howle v. PYA/Monarch, Inc., 344 S.E.2d 157, 160-61 (S.C. Ct. App. 1986); Seneca Falls Greenhouse & Nursery v. Layton, 389 S.E.2d 184, 186-87 (Va. Ct. App. 1990); cf. Davison v. Cole Sewell Corp., No. 2:04-cv-852, 2006 U.S. Dist. LEXIS 52162, at *22-24 (S.D. Ohio July 28, 2006) (applying Fed. R. Evid. 702), aff’d on other grounds, No. 06-4079, 2007 U.S. App. LEXIS 16558 (6th Cir. June 29, 2007). Others have disallowed it, reasoning that psychologists are not medical doctors trained in the physiological aspects of the human body. See, e.g., Grenitz v. Tomlian, 858 So. 2d 999, 1001-03 (Fla. 2003) [Footnote omitted.]; Chandler Exterminators, Inc. v. Morris, 416 S.E.2d 277, 278-79 (Ga. 1992), overruled by statute as stated in Sinkfield v. Oh, 495 S.E.2d 94, 97 (Ga. Ct. App. 1997); Hicks v. Cummings, No. S-85-49, 1987 Ohio. App. LEXIS 7425, at *7-8 (Ohio Ct. App. June 12, 1987).

For its part, the Court of Appeals in this case held that psychologists are not per se unqualified to opine on issues of medical causation, but rather, under Indiana Evidence Rule 702, they may be qualified to give such an opinion based on certain knowledge, skill, experience, training, or education. Bennett, 932 N.E.2d at 710 n.3.

Although we disagree with the result reached by the Court of Appeals, we do agree with its general approach in this case, and in doing so, align ourselves with those jurisdictions analyzing the issue of whether a psychologist may testify in this regard under the various Rule 702 analogs. See, e.g., Davison, 2006 U.S. Dist. LEXIS 52162, at *22-24; Huntoon, 969 P.2d at 690; Hutchison, 514 N.W.2d at 887-88; Cunningham, 921 P.2d at 1360. Neither the criteria for qualifying under Rule 702 (knowledge, skill, experience, training, or education) nor the purpose for which expert testimony is admitted (to assist the trier of fact) supports a per se rule banning psychologists’ testimony in this manner. See Hutchison, 514 N.W.2d at 887-88 (criteria too broad to allow distinctions based on profession or degree); Madrid, 737 P.2d at 77 (blanket disqualification of those with specialized knowledge in psychology would not assist the jury). [Footnote omitted.] Thus, we are faced with the specific issue of whether the trial court erred in admitting Dr. McCabe’s causation testimony under Rule 702.

II

Bennett objected to Dr. McCabe’s testimony under Rule 702 on the basis that Dr. McCabe was “not qualified to render an opinion regarding a medical diagnosis of a brain injury,” Appellant’s App. 104, which, as noted in footnote 4, supra, we view as a challenge to Dr. McCabe’s testimony as to the cause of Richmond’s brain injury. “A trial court’s determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion and will be reversed only for abuse of that discretion.” TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (citations omitted). We presume that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade us that the trial court has abused its discretion. Id.

….

A

With regard to his qualifications, Dr. McCabe obtained a Masters degree in General Psychology in 1956 and a Ph.D. in Counseling Psychology in 1958. [Footnote omitted.] He taught in the psychology department at the University of Portland from 1958 to 1967 and taught courses in performing psychological assessments at the University of Notre Dame from 1967-1997. Dr. McCabe served as a psychological consultant for Elkhart General Hospital. He has been in clinical practice since 1981, in which he primarily performs psychological assessments. He has continued his education by attending professional workshops specializing in forensic applications of psychology, which “touched on subjects that relate to evaluation of traumatic brain injuries.” Appellant’s App. 69. Dr. McCabe also testified that he has had patients referred to him by medical doctors. Specifically, two neurologists referred cases to him for “specific aspects of brain behavior relationship questions,” id. at 70, and other general practitioners referred cases to him for insight into the “relationship between the presenting psychological problems and . . . underlying medical is-sues,” id.

With the assistance of a video, Dr. McCabe testified extensively about the physiological aspects of the brain and how a closed head injury might occur from a rotational impact or whiplash motion. [Footnote omitted.] He explained that

when the head is forced either forward and backward or somehow side to side . . . the brain, which is the consistency maybe of jello or oatmeal, moves at a different pace than the hard shell of the skull. And as that kind of whiplash-kind of motion occurs, the brain tissues are dragged across those bony protuberances and that’s the source of the difficulty in many closed head injuries.

Id. at 79. Dysfunction, he explained, may result from this rotational motion.

Dr. McCabe also thoroughly described the methodology he used to reach his conclusion that the accident caused Richmond’s brain injury. He interviewed both Richmond and his wife, reviewed both Richmond’s medical records and deposition, and conducted a series of tests. Dr. McCabe drew conclusions from each of the tests he performed on Richmond. From the Wechsler Adult Intelligence Scale-III, which he explained was a “widely used test, almost universal” and “very good from a scientific point of view,” id. at 88, he noted a disparity between Richmond’s verbal and performance tests that he attributed to “some sort of interference with his cognitive processing that [he called] kind of cognitive inefficiency,” id. at 90 (emphasis omitted). From the Wechsler Memory Scale, “another widely used clinical memory test,” id. at 90, Dr. McCabe also noted a pattern of discrepancy or inefficiency that led him to conclude that there were “difficulties . . . getting in the way of [Richmond’s] smooth memory function,” id. at 90. Lastly, from the Halstead Neuropsychological Test Battery, again “a very widely used battery,” id. at 91, Dr. McCabe concluded that Richmond’s impairment index suggested that he had “mild to moderate brain damage,” id. at 91-92. Dr. McCabe summarized his results and conclusions as follows:

So we put all this information together and relate it to the facts of the injury and the manifestation in his life of these growing cognitive processing difficulties. And that’s how I arrived at the hypothesis that I did; namely, that in the course of this rear-ending accident, he sustained what we saw in that video: diffuse axonal injury; that is to say, that kind of motion to the head caused damage to the connections between the cells of the brain through the axons. They were sufficiently messed up to provide him with these processing problems that he has manifested – by the time I saw him two years later.

Id. at 92.

Over Bennett’s objection, Dr. McCabe then testified that it was his opinion that Richmond “experienced a traumatic brain injury in the accident.” Id. at 105. He explained that “[g]iven the absence of any of the symptoms of this condition prior to the accident, either in his report, the medical record, or the observations of his wife, it seems evident that the accident pro-duced the brain injury.” Id. at 105-06. According to Dr. McCabe, Richmond’s experiencing “chronic headaches, a loss of cognitive efficiency, difficulties in information processing, and some adverse personality changes” appeared to be a result of his brain injury. Id. at 106.

B

The Court of Appeals concluded that Dr. McCabe was not qualified under Rule 702 to offer his opinion as to the cause of Richmond’s brain injury. Specifically, it held that a psychologist who is not a medical doctor but is otherwise qualified under Rule 702 to offer expert testimony as to the existence and evaluation of a brain injury is not qualified to offer his or her opinion as its cause without demonstrating some medical expertise in determining the etiology of brain injuries. Bennett, 932 N.E.2d at 709-10. Its basis for requiring medical expertise in etiology apparently stems from prior statements of that court that “questions of medical causation of a particular injury are questions of science generally dependent on the testimony of physicians and surgeons learned in such matters.” Id. at 709 (citing Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied). [Footnote omitted.] The reasoning behind these statements, as explained by the Court of Appeals in another recent case, is that “physicians are uniquely qualified to diagnose and treat disease.” K.D. v. Chambers, 951 N.E.2d 855, 861 (Ind. Ct. App. 2011) (citing Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 396-97 (Ind. Ct. App. 2010), trans. denied, 940 N.E.2d 822 (Ind. 2010) (table)) (discussing and applying pertinent legal principles without reference to the present case in light of our granting transfer), trans. denied, ___ N.E.2d ___ (Ind. 2011) (table), disapproved on other grounds by Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011). As for our part, we recently let stand a trial court’s admonishment to the jury during trial and subsequent jury instruction that only a medical doctor is legally competent to offer an opinion on the medical causation of physical injuries. TRW Vehicle Safety Sys., 936 N.E.2d at 211 & n.3, 212 (holding the admonishment to be within the trial court’s discretion and the challenge to the instruction not available for appellate review).

We note here that Dr. McCabe’s testimony on causation relates to his opinion as to the existence and evaluation of a brain injury that he in fact was uniquely qualified to offer, especially considering his testimony that brain injuries such as Richmond’s often go undiagnosed by medical professionals for various reasons. See Bennett, 932 N.E.2d at 709-10 (noting that the evaluation of a brain injury was within Dr. McCabe’s field of expertise and that he had demonstrated his qualifications to opine that Richmond sustained a brain injury from an unknown cause). Moreover, the patterns of impairment that Dr. McCabe observed through his testing were those associated with a traumatic brain injury. Traumatic brain injuries occur in the course of closed head injuries, and closed head injuries can occur in rear-ending accidents. Thus, the possible causes of Richmond’s brain injury were narrowed down by his testing (testing that both Bennett and the Court of Appeals would agree Dr. McCabe was qualified to perform). [Footnote omitted.]

In any event, we think that the Court of Appeals imposed more stringent requirements on Dr. McCabe than are required under Rule 702. Rule 702 requires that Dr. McCabe demonstrate his knowledge, skill, experience, training, or education in order to be qualified as an expert, and in fact, only one of these characteristics is necessary. See Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003) (citing Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000)). Even if we were to conclude that Dr. McCabe had not had any specific “education or training relevant to determining the etiology of brain injuries,” Bennett, 932 N.E.2d at 709, he clearly demonstrated his knowledge of how a brain injury might result from the whiplash motion experienced in a rearending accident, how such a brain injury results in symptoms similar to those experienced by Richmond, and how psychological and neuropsychological testing reveals the relationship between that brain injury and behavior. [Footnote omitted.] He further testified to his experience in working with trained medical doctors on issues related to “brain behavior relationship questions” or the “relationship between the presenting psychological problems and . . . underlying medical issues.” Appellant’s App. 70. To the extent that Dr. McCabe (1) has had no real “education or training relevant to determining the etiology of brain injuries” or took continuing education courses that only “‘touched on subjects that relate to evaluation of traumatic brain injuries,’” Bennett, 932 N.E.2d at 709-710 (citation omitted), (2) has worked with a limited number of neurologists on brain behavior relationship questions, id. at 710, (3) evaluated Richmond almost two-and-a-half years after the accident, or (4) did not have any baseline data for which to compare Richmond’s results, these matters go to the weight and credibility of his testimony, not to his qualification to give it.

Other jurisdictions analyzing this issue under various analogs to our Rule 702 have not required specific qualifications in determining the etiology of brain injuries before allowing psychologists or neuropsychologists to testify in this regard. They have allowed experts to testify as to the cause of a brain injury based on qualifications similar to Dr. McCabe’s. In Huntoon, the Supreme Court of Colorado held that a neuropsychologist was qualified to testify that a rear-ending accident caused the plaintiff’s brain injury. 969 P.2d at 685, 691. The witness had an “extensive educational background, including three degrees in psychology, master’s and doctoral degrees, and further study in neuropsychology including understudy with experienced neuropsychologists,” and he had explained “the way in which neuropsychological testing reveals the impact of an injurious event on an individual’s ability to carry out every day activities, and the manner in which neuropsychologists use the tests and other clinical data to diagnose brain injury as manifested by cognitive impairment.” Id. at 691. The Huntoon court concluded that the expert “had demonstrated the knowledge and experience necessary to render an opinion as a neuropsychologist, and that he did not exceed the scope of his expertise by addressing issues of causation.” Id. Similarly, in Hutchison, the Supreme Court of Iowa held that a neuropsychologist was qualified to testify that a rear-ending accident did not cause the plaintiff’s brain injury, but rather that her injuries were pre-existing. 514 N.W.2d at 884, 886. The witness had a “doctorate in clinical psychology . . . [and] extensive postdoctoral training and professional experience.” Id. at 888. He had opened a head trauma rehabilitation program and developed a head injury severity scale. Id.; see also id. at 887 (declining to adopt Pennsylvania’s approach requiring psychologist to establish that his methods expose the cause of the injury and not merely its existence). But cf. Davison, 2006 U.S. Dist. LEXIS 52162 at *23 (requiring specialized knowledge or experience in brain injuries, but then appearing to differentiate between expertise to diagnose brain injury and to state an opinion about its cause).

Lastly, Bennett argues that the proper qualifications to testify as to the cause of a brain injury are those of a “neuropsychologist,” and because Dr. McCabe has not claimed to be a neuropsychologist and has not presented any credentials identifying himself as a neuropsychologist, his qualifications are distinguishable from those psychologists that were qualified to testify to the medical cause of brain injuries in other cases. But even if we were to require under Rule 702 qualifications similar to those of a neuropsychologist to testify in this manner, our understanding of “neuropsychology,” see footnote 6, supra, as well as the description of that term in cases, leads us to conclude that Dr. McCabe’s practice was in fact related to neuropsychology even though he did not describe himself as a neuropsychologist. See Huntoon, 969 P.2d at 685 (providing that “neuropsychologists perform the ‘study of brain behavior relationships and use a battery of psychological and neuropsychological tests that are standardized in order to elicit observations of relevancy of various aspects of the brain in terms of cognitive and intellectual function’”); Cunningham, 921 P.2d at 1357 (explaining that neuropsychology focuses on the relation-ships between brain impairment and behavior of individuals due to head injury or brain disease).[Footnote omitted.] Nor does the fact that he lacks credentials as a neuropsychologist preclude a finding that he is qualified in this regard. Cf. Hutchison, 514 N.W.2d at 886 (reasoning that lack of board certification in neuropsychology goes to weight of testimony, not admissibility); Cunningham, 921 P.2d at 1360 (holding that neuropsychologist who was not board certified still a qualified neuropsychologist).

We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe was qualified to offer his opinion as to the cause of Richmond’s brain injury.

C

Admissibility under Rule 702 also depends on the reliability of Dr. McCabe’s causation testimony. In making this determination, “the trial 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.” Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007) (citation omitted), trans. denied. “[T]here is no specific ‘test’ or set of ‘prongs’ which must be considered in order to satisfy . . . Rule 702(b).” McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). The proponent of the expert testimony bears the burden of establishing the reliability of the scientific principles on which it is based. Kubsch, 784 N.E.2d at 921 (citation omitted).

First, Bennett argues that the scientific basis of Dr. McCabe’s testimony should have been examined through means of a Daubert hearing and that the trial court erred in not holding such a hearing. [Footnote omitted.] But we note that Bennett never requested that the trial court hold a Daubert hearing and never raised an objection in the trial court on this basis. Moreover, the substance of such a hearing was by and large served during the hearing on his pretrial motion to exclude, at which time Bennett offered and the trial court admitted Dr. McCabe’s deposition testimony. Cf. TRW Vehicle Safety Sys., 936 N.E.2d at 212 (declining to find error in the absence of a formal Rule 702 inquiry which was not requested by either party and the substance of which was served in large part by an extended bench colloquy). Dr. McCabe testified in his deposition to his educational background, training, and experience; to his definition of traumatic brain injury; and to studies showing the relationship between vehicular accidents, their damaging effects on tissue within the brain, and how the damage to the brain sustained in vehicular accidents produces the symptoms associated with traumatic brain injury. In turn, Bennett pointed out that Dr. McCabe had no real medical training; that traumatic brain injury is not defined by the American Psychiatric Association; and that Dr. McCabe could not recall the names of the publications in which he had read about the studies involving vehicular accidents and brain damage. Dr. McCabe also testified in his deposition to the tests he performed on Richmond and to the methodology he used to opine that Richmond had suffered a brain injury in the rear-ending accident. Accordingly, the trial court in its pretrial order concluded that Richmond had made a “good case that McCabe’s testimony could be based upon scientific principles,” Appellant’s App. 30, but it reserved the right to rule to the contrary at trial. [Footnote omitted.]

We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe’s testimony was based on reliable scientific principles. Rule 702(b) “directs the trial court to consider the underlying reliability of the general principles involved in the subject matter of the testimony, but it does not require the trial court to re-evaluate and micromanage each subsidiary element of an expert’s testimony within the subject.” Sears Roebuck, 742 N.E.2d at 461. As demonstrated in his testimony at trial, the general principles underlying Dr. McCabe’s testimony – that rotational motion or whiplash can cause brain injuries and that brain injuries can be evaluated through the testing he performed – were scientifically valid. Indeed, Bennett does not really challenge the validity of these general principles but more so the specific science underlying Dr. McCabe’s conclusion that Richmond experienced a traumatic brain injury in the accident. But we note that Dr. McCabe’s methodologies in opining on the cause of Richmond’s injury were similar to those employed by other qualified experts. Like Dr. McCabe, the neuropsychologist in Huntoon had administered tests that were “part of a standardized battery described as the most respected and widely documented in the neuropsychology profession” and had “prepared a far-reaching background and case history to use as a backdrop for his analysis of the test results” to reach his conclusion as to the cause of the plaintiff’s brain injury. 969 P.2d at 691. Similarly, the neuropsychologist in Cunningham had performed “a battery of cognitive tests including intelligence tests, memory tests, tests for concentration and attention, [and] tests for verbal skills and for visual perceptual abilities” to reach her conclusion as to the cause of the plaintiff’s brain injury. 921 P.2d at 1357.

Related to the reliability of his testimony, the Court of Appeals concluded that even if Dr. McCabe were qualified to opine as to the cause of Richmond’s brain injury, his testimony lacked probative value because he did not testify regarding the mechanics of the accident or describe the force or speed of the impact. Bennett, 932 N.E.2d at 711. We disagree. Dr. McCabe’s opinion was based on the undisputed fact that a rear-ending accident occurred in this case. Cf. Clarke v. Sporre, 777 N.E.2d 1166, 1170-71 (Ind. Ct. App. 2002) (expert opinion that hypoxic event caused mental impairment was speculative because there was no factual basis that hypoxic event occurred). Richmond himself testified that his one-ton van, which was in a stopped position, was hit by Bennett’s truck, which according to Bennett’s testimony weighed 42,000 pounds; as a result, Richmond’s van was propelled forward 300 feet. Dr. McCabe’s testimony was unequivocal that whiplash motion such as that occurring in a rear-ending accident may cause brain injury and that such a brain injury may cause the symptoms experienced by Richmond. And, as discussed supra, Dr. McCabe employed reliable methodologies to reach his conclusion that Richmond sustained a brain injury in the accident. Thus, we disagree with the Court of Appeals that Dr. McCabe’s testimony was “‘nothing more than “subjective belief” and “unsupported specula-tion.”’” Bennett, 932 N.E.2d at 711 (quoting Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216, 235 (Ind. Ct. App. 1999)).

We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe’s testimony was based on reliable scientific principles that could be applied to the facts at issue.

Conclusion

Our review of the record, read in conjunction with the requirements of Rule 702, leads us to conclude that the trial court did not abuse its discretion in admitting Dr. McCabe’s causation testimony. The trial court extensively and thoughtfully considered the admissibility of Dr. McCabe’s testimony on three separate occasions during this litigation. Mindful that the trial court is afforded broad discretion in these matters, we decline to find any abuse of it. The judgment of the trial court is affirmed.

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

 

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