Mary and Ronald McDaniel, Individually and as Administrators of the Estate of Christopher L. McDaniel v. Stephen W. Robertson, Commissioner of the Indiana Department of Insurance (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 13 2017, 9:19 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Nathaniel Lee Peter H. Pogue
Laura R. Crowley Michael F. Mullen
Lee & Fairman, LLP Justin C. Kuhn
Indianapolis, Indiana Schultz & Pogue, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Mary and Ronald McDaniel, September 13, 2017
Individually and as Court of Appeals Case No.
Administrators of the Estate of 49A02-1610-PL-2298
Christopher L. McDaniel, Appeal from the Marion Superior
Deceased, Court
Appellants-Petitioners, The Honorable James B. Osborn,
Judge
v. Trial Court Cause No.
49D14-1510-PL-34509
Stephen W. Robertson,
Commissioner of the Indiana
Department of Insurance,
Appellee-Respondent.

Najam, Judge.

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 Statement of the Case
[1] Mary and Ronald McDaniel (“the McDaniels”), individually and as the

administrators of the estate of their deceased son, Christopher L. McDaniel

(“Christopher”), appeal the trial court’s judgment on their petition for excess

damages from the Indiana Patient’s Compensation Fund (“PCF”).1 The

McDaniels raise two issues for our review, which we restate as follows:

1. Whether the evidence presented by the PCF with respect
to Christopher’s life expectancy constituted an
impermissible new argument on the issue of liability.

2. Whether the trial court abused its discretion when it
admitted expert testimony on Christopher’s life
expectancy.

[2] We affirm.

Facts and Procedural History
[3] On May 15, 2007, Christopher, who was thirty-one-years-old and weighed

more than 500 pounds, was taken to the emergency room at Fayette Memorial

Hospital for evaluation based on symptoms of severe abdominal pain, nausea,

vomiting, and shortness of breath. When he arrived, Dr. Philip C. Lam

evaluated Christopher. After reviewing Christopher’s blood work, Dr. Lam

determined that Christopher had very low levels of potassium, which can cause

1
The McDaniels named Stephen W. Robertson, in his official capacity as the Commissioner of the Indiana
Department of Insurance, as the respondent to their petition.

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 cardiac arrhythmia. Dr. Lam gave Christopher 75 micrograms of potassium.

Shortly after he had administered the potassium, and without checking

Christopher’s potassium levels a second time, Dr. Lam discharged Christopher

with instructions to follow up with his primary care physician. Christopher was

morbidly obese, and he had mobility issues. As a result of those problems,

Christopher was transported from the hospital via ambulance. Christopher’s

condition did not improve and, while in the ambulance, he continued to

experience shortness of breath, abdominal pain, nausea, and vomiting. The

ambulance then transported Christopher to Reid Hospital where he later died.

The coroner determined that Christopher’s cause of death was cardiac

arrhythmia and morbid obesity.

[4] The McDaniels filed a proposed complaint with the Indiana Department of

Insurance. After a unanimous medical review panel decided that Dr. Lam was

negligent, the McDaniels filed a complaint with the trial court. The complaint

alleged that Dr. Lam had failed to adequately treat Christopher’s low potassium

levels, which caused Christopher’s death. On November 17, 2015, the

McDaniels and Dr. Lam settled their claim. The McDaniels then filed a

petition seeking excess damages from the PCF. The trial court held a bench

trial on that petition on June 15-16, 2016, to determine the amount of damages

that the PCF owed to the McDaniels. The trial court took judicial notice of the

life tables in the National Vital Statistics Report, which set the life expectancy

for Christopher, as a thirty-one-year-old white male in the United States, at 46.5

years. The court also admitted into evidence Christopher’s medical records.

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[5] At trial, the PCF moved to admit the video-recorded deposition of its expert

witness, Dr. Martin Tobin. The court admitted Dr. Tobin’s testimony over the

McDaniels’ objection. Dr. Tobin is a physician who is board certified in

internal medicine, pulmonary medicine, and critical care medicine. He has

been a practicing physician for forty-one years. Dr. Tobin testified that he had

reviewed Christopher’s medical records and determined that Christopher had a

number of serious diseases that would have negatively impacted his health.

These included obesity, bipolar disorder, alcoholism, impaired mobility,

congestive heart failure, sleep apnea, low testosterone, lymphedema, previous

deep vein thrombosis, a diagnosis of pulmonary embolism, hypertension, and

hyperlipidemia. Dr. Tobin further testified that, during his tenure as a

physician, he has evaluated “thousands of patients and patients with the various

disorders” like those of Christopher. Appellants’ App. Vol. II at 64. In

addition to reviewing Christopher’s medical records, Dr. Tobin also testified

that he read “studies that have been performed where researchers have

estimated the effect of these different disorders on the projected life expectancy”

of patients. Id. Based on the medical records, his forty-one years of experience,

and the literature he had reviewed, Dr. Tobin estimated that Christopher’s life

expectancy would have been an additional two to four years had he not died.

[6] The McDaniels cross-examined Dr. Tobin to determine how he had reached his

estimate on Christopher’s life expectancy. The following dialogue occurred:

[McDaniels’ counsel] Q: But give me the math. Give me a
breakdown of how you come from 46.8 down to four? So—

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 A: Because—

Q: So 44 years, account for the 44 years that you say that he
would have died. So give me the condition out of those 44 years,
each one, step by step, to say that he would have died from this
condition in X amount of years based on my calculation?

A: But I’m telling you that based on—

Q: I know it’s about your experience. I just want you to give me
the math, just the math.

A: It is—it is taking into the account the influence of the various
conditions. As you, yourself have mentioned, there’s going to be
overlapping contributions of different conditions that [are]
occurring simultaneously. And so all of these various conditions
are happening simultaneously and in aggregate, then they come
down to shortening his life expectancy by two to four years.

Q: Okay. So the 44 years, which condition of the three will
shorten his life—give me the math of each medical condition and
the number of years that you cumulatively add up would shorten
his life expectancy? I’m only talking about the number 44 now.
44 is the—

A: I’ve . . . answered this a number of times to you, Mr. Lee.
I’m telling you—

Q: I know, but I’m saying specifically—

A: —that I’m taking into account the shortening of life
expectancy that results from his obesity. This is going to cause a
certain shortening of his life expectancy. Then the bipolar
disease, the alcoholism, impaired mobility, the congestive heart
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 failure, the sleep apnea, they are all going to overlap. And so in
terms of taking the aggregate of all these various conditions
together, then I calculate out that his life . . . .

***

THE WITNESS: Mr. Lee I pointed out to you that all of these
are occurring simultaneously. That’s why it doesn’t permit itself
to be added as adding each one separately individually. That’s
why—because they’re all occurring concurrently and
simultaneously. I’m taking all of the research that has been
conducted on these different studies, what has been the scientific
bas[is] of all the [sentence missing] combining that with my 41
years of experience of taking care of patients with these problems
and using both of these evidence bases to come up with my
calculation of a life expectancy [of] two to four years.

***

Q: Let’s try it this way, based on those tables, the greatest loss of
life expectancy from those tables you cited was alcohol abuse and
that reduced life expectancy by 22 years.

So how you then may have reduced the life expectancy further if
people that have alcohol disease also have concurrent morbidities
such as the bipolar disease, [being] overweight. That’s one of the
problems that alcoholism can cause. So the patient would have
the same concurrent conditions.

And secondly, none of these studies have the combined effect of
all these disease process in the mathematical computation,
correct?

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 A: So, Mr. Lee, I mean, this is exactly the point I keep making.
I mean, that all of these are occurring simultaneously in
[Christopher]. He is not somebody with simple alcoholism.
Therefore, doing a calculation simply based on alcoholism
doesn’t apply to him because he also has other conditions and
that is why I steered away from doing the – what you want me to
do is doing a simple addition. But I’m pointing out that that is
not germane in this condition because you have correctly pointed
out in your last question, these things are occurring
simultaneously. And it’s based on that recognition that they’re
occurring simultaneously, that’s why I did my aggregate
calculation of two to four years.

Id. at 96-97.

[7] During trial, the trial court also admitted the deposition of the PCF’s expert

witness, Dr. Robert Jeffrey Mara. Dr. Mara is an emergency physician who

has been licensed as a physician since 1995 and who is board certified in

emergency medicine. During his deposition, Dr. Mara testified that

Christopher’s “health was poor” and he “had multiple medical problems which,

at that time, did not appear to be adequately treated.” Id. at 31. Dr. Mara

testified that all of Christopher’s preexisting medical conditions were treatable

and that death would have been preventable. However, Dr. Mara did not

provide any testimony on what Christopher’s life expectancy would have been

had he not died on May 15, 2007.

[8] On July 5, 2016, the trial court entered its findings of fact and conclusions of

law. The trial court made the following findings of fact:

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 4. Christopher’s health problems intensified in 2006 and
continued through 2007. In January 2007, Christopher weighed
around 500 pounds. His legs were swollen. He could not get up
by himself. He did not take his med[ication]s regularly.

5. Prior to his death, Christopher had been diagnosed with
morbid obesity, bipolar disease, alcoholism, impaired mobility,
congestive heart failure, sleep apnea, low testosterone,
lymphedema, prior deep vein thrombosis, pulmonary embolism,
hypertension, and hyperlipidemia.

***

10. In a medical negligence action filed against Christopher’s
medical care providers by [the McDaniels] as Administrators of
Christopher’s Estate, it was determined that Dr. Phillip Lam
failed to meet the appropriate standard of care when treating
Christopher and that Dr. Lam’s failure was a factor in
Christopher’s death.

***

26. Based upon the 2007 United States Life Table National Vital
Statistics Report, the life expectancy of a 31[-]year[-]old white
male was 46.5 years. This life table is a “snapshot” of current
mortality experience and shows the long-range implications of a
set of age-specific death rates that prevailed in a given year. It
does not take into account the adverse effects of a particular
person’s specific health conditions.

27. Martin Tobin is a physician specializing in internal medicine,
pulmonary medicine, and critical care medicine. He has been
board certified in all three areas and remains board certified in
internal medicine and pulmonary medicine. He also is a critical

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 care specialist (an intensivist) who takes care of patients who are
admitted into intensive care units. He has been a physician since
1976.

28. Dr. Tobin is a professor of medicine in the division of
pulmonary and critical care medicine, Department of Internal
Medicine at Loyola University of Chicago Stritch School of
Medicine. In this position he takes care of patients, teaches
medical students, residents, and fellows, and conducts research.
All of Dr. Tobin’s time is spent in clinical medicine.

29. Dr. Tobin serves as a consultant to the Committee on
Promotion and Tenure for 44 universities including Dartmouth,
Duke, Harvard, Johns Hopkins, the Mayo Clinic, and Yale. He
has received several teaching awards, edited several books, and
written hundreds of printed and electronic articles on a host of
medical topics for peer-reviewed publications. He also has
served as a manuscript reviewer for 30 medical publications
including the New England Journal of Medicine and the Journal
of the American Medical Association.

30. Based upon a review of Christopher’s medical records, a
review of literature on life expectancies, his training, and his
experience taking care of thousands upon thousands of patients
with similar disorders over the period of 41 years, Dr. Tobin
concluded that, had Christopher received the proper medical care
on May 15, 2007, he could have expected to live another two to
four years.

31. Dr. Tobin expressly stated that his estimation of
Christopher’s life expectancy was based upon a “calculation” Dr.
Tobin performed. But Dr. Tobin could not describe the
calculation he used to make his estimate, thus making it
impossible to evaluate whether his calculation has ever been
tested within the scientific community. Therefore, no weight will

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 be placed upon Dr. Tobin’s calculations. Significant weight is
given, however, to Dr. Tobin’s opinion based upon his extensive
training, education, and 41 years of experience with patients like
Christopher.

32. Balancing the longevity associated with Christopher’s family,
Christopher’s positive efforts to address his health problems, the
National Vital Statistics Reports, and Dr. Tobin’s expert opinion,
it is more likely than not that Christopher could have survived six
more years.

Appellants’ App. Vol. VI at 5-6, 8-10. The trial court then concluded that

Christopher’s two children had been deprived of six years of his love, care, and

affection, and it awarded them each $300,000. The court also awarded $8,400

to Christopher’s estate for funeral and burial expenses. As such, the trial court

found against the PCF in the amount of $358,400.2

[9] On August 5, 2016, the McDaniels filed a motion to correct error and set aside

the judgment, which the trial court denied on September 12. This appeal

ensued.

Discussion and Decision
[10] The trial court entered findings of fact and conclusions thereon pursuant to

Indiana Trial Rule 52(A). This court has outlined the standard of review when

the trial court has issued such findings and conclusions:

2
As a matter of law, the PCF is not liable for the first $250,000 in damages.

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 In reviewing a judgment based on such findings, we must first
determine whether the evidence supports the findings and then
determine whether the findings support the judgment. Atterholt v.
Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). “[T]he
court on appeal shall not set aside the findings or judgment
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). “Findings are clearly
erroneous only when the record contains no facts to support
them either directly or by inference.” Randles v. Ind. Patient’s
Comp. Fund, 860 N.E.2d 1212, 1219 (Ind. Ct. App. 2007)
(citation omitted), trans. denied. A judgment is clearly erroneous
if it applies the wrong legal standard to properly found facts.
Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either
case, we must be left with the firm conviction that a mistake has
been made.” Id. (citation and internal quotation marks omitted).
When the specific issue on appeal relates to the award of
damages, we will affirm the damage award if it was “within the
scope of the evidence before the trial court.” Smith v. Washington,
734 N.E.2d 548, 550 (Ind. 2000). In conducting our review, we
consider only the evidence favorable to the judgment and the
reasonable inferences to be drawn therefrom. Samples v. Wilson,
12 N.E.3d 946, 950 (Ind. Ct. App. 2014). We do not reweigh the
evidence. Id.

Green v. Robertson, 56 N.E.3d 682, 691 (Ind. Ct. App. 2016).

Issue One: New Argument on Liability

[11] The McDaniels first contend that the evidence presented by the PCF regarding

Christopher’s life expectancy impermissibly amounted to a new argument on

the issue of liability and that, on the question of liability, the PCF was bound by

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 the settlement agreement between the McDaniels and Dr. Lam.3 The

McDaniels assert that “the theory of liability was established under proximate

cause.” Appellants’ Br. at 10. They then argue that the “PCF defense is

opposite of the position taken by its insured physician. The PCF cannot raise a

new defense that [Christopher] was going to die anyway because he was obese,

drank too much, and [was] bipolar.” Id. at 10-11.

[12] In support of their claim, the McDaniels rely on Indiana Code Section 34-18-

15-3(5), which provides:

If a health care provider or its insurer has agreed to settle its
liability on a claim by payment of its policy limits established in
IC 34-18-14-3(b) and IC 34-18-14-2(d), and the claimant is
demanding an amount in excess of that amount, the following
procedure must be followed:

***

(5) At the hearing, the commissioner, the claimant, the health
care provider, and the insurer of the health care provider may
introduce relevant evidence to enable the court to determine
whether or not the petition should be approved if the evidence is
submitted on agreement without objections. If the
commissioner, the health care provider, the insurer of the health
care provider, and the claimant cannot agree on the amount, if
any, to be paid out of the patient’s compensation fund, the court
shall, after hearing any relevant evidence on the issue of claimant’s

3
It is unclear exactly what the McDaniels argue in this issue on appeal. To the extent that they argue about
increased risk of harm, it does not apply in this case as liability had already been established by the settlement
agreement. See e.g. Robertson v. B.O. 977 N.E.2d 341 (Ind. 2012)

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 damage[s] submitted by any of the parties described in this section,
determine the amount of claimant’s damages, if any, in excess of
the health care provider’s policy limits established in IC 34-18-14-
3(b) and IC 34-18-14-3(d) already paid by the insurer of the
health care provider. The court shall determine the amount for
which the fund is liable and make a finding and judgment
accordingly. In approving a settlement or determining the
amount, if any, to be paid from the patient’s compensation fund,
the court shall consider the liability of the health care provider as
admitted and established.

(Emphasis added.) The McDaniels argue that the “PCF is precluded from

tendering Dr. Tobin’s new opinion testimony” pursuant to that statute.

Appellants’ Br. at 14.

[13] However, the McDaniels fail to take into consideration the part of the statute

that allows the court to hear relevant evidence to assist it in determining the

amount of damages owed by the PCF. The PCF introduced this evidence to

assist the trial court in determining the damages owed as a result of the

negligence, not to dispute liability. Thus, we conclude that the expert testimony

of Dr. Tobin did not constitute an impermissible new argument on the issue of

liability but was, instead, permissible evidence on the issue of damages. The

McDaniels’ contention on this issue is without merit.

Issue Two: Expert Testimony

[14] The McDaniels also assert that the trial court erred both when it admitted the

expert testimony of Dr. Tobin regarding Christopher’s life expectancy and

when it gave that testimony weight. We address each argument in turn.

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 Admission of Testimony

[15] The McDaniels contend that the trial court erred when it admitted the

testimony of Dr. Tobin as evidence because the “testimony lacked scientific

reliability.” Appellants’ Br. at 18. As the Indiana Supreme Court has held:

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.

The trial court is considered the gatekeeper for the admissibility
of expert opinion evidence under Rule 702. Doe v. Shults–Lewis
Child & Family Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999). With
regard to the admissibility of expert testimony, Rule 702
provides:

(a) If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if
the court is satisfied that the scientific principles
upon which the expert testimony rests are reliable.

Ind. Evidence Rule 702. “By requiring trial courts to be satisfied
that expert opinions will assist the fact-finder and that the
underlying scientific principles are reliable, Rule 702 guides the

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 admission of expert scientific testimony.” Sears Roebuck & Co. v.
Manuilov, 742 N.E.2d 453, 460 (Ind. 2001) (plurality opinion).
Once the admissibility of the expert’s opinion is established
under Rule 702, “then the accuracy, consistency, and credibility
of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of
counsel, and resolution by the trier of fact.” Id. at 461 (citation
omitted).

Bennet v. Richmond, 960 N.E.2d 782, 786-87 (Ind. 2012).

[16] The McDaniels do not dispute that Dr. Tobin has the credentials to satisfy Rule

702(a). They assert only that Dr. Tobin’s testimony was inadmissible because it

did not meet the “criteria with respect to Indiana Rule of Evidence 702(b).”

Appellants’ Br. at 18.

[17] In determining the admissibility of evidence under Rule 702, “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.” Bennet, N.E.2d at

791 (quoting Shafter & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877

N.E.2d 475, 484 (Ind. Ct. App. 2007), trans. denied). While there are relevant

factors to consider, “[t]here is no specific test or set of factors which must be

considered in order to satisfy Evidence Rule 702.” Hannah v. Pest Control Servs.,

Inc., 734 N.E.2d 674, 679-80 (Ind. Ct. App. 2000), trans. denied. In other words,

application of Rule 702 is not mechanical and is within the trial court’s

discretion.

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[18] Dr. Tobin testified that, had the malpractice not occurred, Christopher would

have lived another two to four years. The trial court properly recognized that

Dr. Tobin was not able to articulate a specific calculation he used to determine

Christopher’s life expectancy and, therefore, gave no weight to Dr. Tobin’s

calculations. Instead, Dr. Tobin relied upon his extensive past experience,

Christopher’s medical records, and other research he had reviewed. Based on

these factors, the trial court gave significant weight to Dr. Tobin’s opinion.

When expert testimony is based upon skill or experience rather than on a

specific scientific principal,

the proponent of the testimony must only demonstrate that the
subject matter is related to some field beyond the knowledge of
lay persons and that the witness possesses sufficient skill,
knowledge or experience in the field to assist the trier of fact to
understand the evidence or determine a fact in issue.

Norfolk S. Ry. v. Estate of Wagers, 833 N.E.2d 93, 102 (Ind. Ct. App. 2005), trans.

denied.

[19] The expert testimony at issue on this appeal concerns Christopher’s life

expectancy. A person’s life expectancy is beyond the knowledge of a lay

person. As discussed above, Dr. Tobin has been a physician for forty-one years

and is board certified in critical care medicine. During his tenure as a

physician, Dr. Tobin has treated thousands of patients who had conditions

similar to Christopher’s. Based on Dr. Tobin’s extensive experience, we cannot

say that the trial court abused its discretion when it admitted his video

deposition testimony into evidence.

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 Reliance on Testimony

[20] Finally, throughout their brief, the McDaniels assert that the trial court erred

when it gave weight to Dr. Tobin’s testimony. Specifically, the McDaniels

contend that the trial court erred when it relied on the expert testimony when it

determined that Christopher would have lived an additional six years had the

malpractice not occurred on May 15, 2007. However, the McDaniels’

argument is simply a request that we reweigh the evidence, which we cannot

do. See e.g. Green, 56 N.E.3d at 691.

[21] In sum, the PCF’s argument during the damages hearing did not amount to a

new defense, the trial court did not abuse its discretion when it admitted Dr.

Tobin’s expert testimony as evidence, and we cannot say that the trial court

erred when it gave weight to Dr. Tobin’s testimony. As such, we affirm the

trial court’s judgment.

[22] Affirmed.

Kirsch, J., and Brown, J., concur.

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