Morgen R. Bosler v. John Goldenberg, M.D., and Otolaryngology Associates, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 21, 2020
• Docket: 19A-CT-612
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 21 2020, 8:53 am

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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES David J. Cutshaw Karl L. Mulvaney Gabriel A. Hawkins Margaret M. Christensen Cohen & Malad, LLP Bingham Greenebaum Doll LLP Indianapolis, Indiana Indianapolis, Indiana

Peter H. Pogue Beth A. Behrens Schultz & Pogue, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Morgen R. Bosler, January 21, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-612 v. Appeal from the Marion Superior Court John Goldenberg, M.D., and The Honorable Michael D. Keele, Otolaryngology Associates, Judge LLC, Trial Court Cause No. Appellees-Defendants. 49D07-1707-CT-27075

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 1 of 12 Statement of the Case [1] Morgen R. Bosler appeals the trial court’s judgment entered after a jury verdict

in favor of John Goldenberg, M.D. and Otolaryngology Associates, LLC

(collectively “Dr. Goldenberg”) on Bosler’s complaint alleging medical

malpractice for having misdiagnosed her and having performed unnecessary

sinus surgeries. On appeal Bosler claims to have been ambushed by the trial

deposition testimony of an expert witness. The question presented is whether

the trial court abused its discretion when it denied her motion to exclude the

challenged testimony. Finding no error, we affirm.

Facts and Procedural History [2] In February 2013, Bosler sought treatment at a Walgreen’s Healthcare Clinic

for acute sinusitis. She was given a prescription for antibiotics, and she was

instructed to take over-the-counter decongestants and to use a Neti pot. On

March 18, Bosler sought further treatment with her personal physician, Dr.

Robert Evard, who diagnosed her with acute sinusitis. Dr. Evard prescribed a

two-week course of a different antibiotic. On April 1, Dr. Evard found that

Bosler’s sinusitis had not improved, and he prescribed a ten-day course of a

third antibiotic. Dr. Evard also ordered a CT scan of Bosler’s sinuses. After

Dr. Evard reviewed the CT scan, he prescribed yet another round of antibiotics.

And on April 12, Dr. Evard prescribed a steroid nasal spray and a saline nasal

spray. Dr. Evard also referred Bosler to Dr. Goldenberg, an ear, nose, and

throat (“ENT”) specialist.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 2 of 12 [3] On April 15, Bosler first saw Dr. Goldenberg, and she told him that she had

“been on 4 rounds of antibiotics, steroids, [and] nasal steroid sprays and

inhalers.” Tr. Vol. 6 at 97. Dr. Goldenberg discussed with Bosler her

continued symptoms, and he reviewed her CT scan. Dr. Goldenberg then

talked to Bosler about the possibility of trying Functional Endoscopic Sinus

Surgery (“FESS”), and Bosler agreed to try the surgery. Dr. Goldenberg

performed the FESS on May 1, and, on September 6, he performed another

surgery on Bosler. Despite the surgeries, Bosler’s symptoms continued.

[4] On October 30, 2014, Bosler filed a proposed complaint alleging medical

malpractice against Dr. Goldenberg with the Indiana Department of Insurance.

Bosler alleged that Dr. Goldenberg had misdiagnosed her as having chronic

rhinosinusitis (“CRS”) and performed unnecessary surgeries. A unanimous

medical review panel issued an opinion in Dr. Goldenberg’s favor.

[5] On December 4, 2017, Dr. Goldenberg named Dr. James Stankiewicz as an

expert witness, and Bosler deposed Dr. Stankiewicz on August 15, 2018

(“discovery deposition”). Thereafter, Dr. Goldenberg gave Dr. Stankiewicz the

depositions of several witnesses to review, namely, Bosler; Bosler’s expert

witness, Dr. Victor Mokarry; Dr. Robert Youkilis; Dr. Stephen McTigue; and

Dr. Kyle Loy. And on October 4, Dr. Goldenberg supplemented his answers to

interrogatories.

[6] The court set the trial for February 26, 2019. Dr. Stankiewicz was unavailable

to testify in person during the trial, so, on January 29, Dr. Goldenberg took his

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 3 of 12 trial deposition (“trial deposition”). On February 5, Dr. Goldenberg filed a

motion to separate witnesses at trial, which also “preclude[d] any expert

witness to be called to testify from reviewing the preserved testimony of any

other witness.” Appellant’s App. Vol. 2 at 50. The trial court granted that

motion.

[7] On February 13, Bosler filed a “Motion to Bar Testimony of Defendants’

Expert, James Stankiewicz, M.D., or Alternatively, to Limit and Strike

Portions of the Testimony of Stankiewicz and Exclude Plaintiff’s Expert Victor

P. Mokarry, M.D. from Order for Separation of Witnesses.” Id. at 52. Bosler

alleged that, in his trial deposition, Dr. Stankiewicz had changed his testimony

in several respects from his discovery deposition. Bosler asserted that, without

permitting her expert witness to review the new testimony, she would be unable

to prepare adequately for trial. And Bosler argued that Dr. Goldenberg had

violated Indiana Trial Rule 26(E) when he did not supplement his discovery

responses to reflect Dr. Stankiewicz’ changed testimony. The trial court denied

Bosler’s motion. At the conclusion of a six-day trial, a jury found in favor of

Dr. Goldenberg, and the trial court entered judgment accordingly. This appeal

ensued.

Discussion and Decision Overview

[8] Bosler contends that the trial court abused its discretion when it denied her

motion to exclude portions of Dr. Stankiewicz’ trial deposition. The decision to

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 4 of 12 admit or exclude evidence lies within the sound discretion of the trial court, and

we will not disturb the trial court’s decision absent a showing of an abuse of

that discretion. Oaks v. Chamberlain, 76 N.E.3d 941, 946 (Ind. Ct. App. 2017).

An abuse of discretion occurs when the trial court’s decision is against the logic

and effect of the facts and circumstances before the court or if the court has

misinterpreted the law. Id.

[9] Bosler contends that Dr. Stankiewicz proffered new opinions in his trial

deposition and that she was prejudiced by the admission of that testimony. In

particular, Bosler maintains that Dr. Goldenberg violated Indiana Trial Rule

26(E), which provides in relevant part that a party is under a duty to

supplement his response with respect to any question directly addressed to the

substance of an expert witness’ testimony. Bosler asserts that Dr. Goldenberg

was required to notify her of changes in Dr. Stankiewicz’ testimony and failed

to do so. Bosler contends that, as a result, “Bosler’s expert had no opportunity

to respond” to the changed testimony, and Bosler was not able to prepare

adequately for trial. Appellant’s Br. at 13.

[10] Bosler sets out five instances of Dr. Stankiewicz’ alleged changed testimony,

which we restate as follows:

1. In his discovery deposition, Dr. Stankiewicz testified that “the surgery that would be planned in this circumstance would be an ethmoidectomy, maybe a partial ethmoidectomy, and opening the natural drainage to the maxillary sinuses.” Appellant’s App. Vol. 2 at 100. But, in his trial deposition, Dr. Stankiewicz testified that he was “changing” his testimony on this issue. Tr.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 5 of 12 Vol. 6 at 57. He stated that the type of surgery he would have performed would “depend[] on what [he saw] in surgery.” Id.

2. In his discovery deposition, Dr. Stankiewicz testified that Bosler’s symptoms post-surgeries were “related” to the surgeries performed by Dr. Goldenberg. Appellant’s Br. at 10. In his trial deposition, when asked whether he would “stand by that testimony,” Dr. Stankiewicz testified that he was “changing it.” Id. at 11.

3. In his discovery deposition, Dr. Stankiewicz testified that he did not consider Bosler’s pre-surgery sinusitis “significant.” Appellant’s App. Vol. 2 at 98. But Dr. Stankiewicz changed his testimony in his trial deposition.

4. In his discovery deposition, Dr. Stankiewicz testified that “optimal medical therapy” for CRS included a course of antibiotics and four weeks of nasal decongestants. Id. at 81. In his trial deposition, Dr. Stankiewicz testified that “optimal or maximal medical therapy is whatever you want it to be.” Tr. Vol. 5 at 185.

5. At the time of his discovery deposition, Dr. Stankiewicz had not yet reviewed Dr. Youkilis’ deposition testimony, and Dr. Stankiewicz did not disclose any opinion about whether Dr. Youkilis’ records had indicated that Bosler had empty nose syndrome. In his trial deposition, Dr. Stankiewicz testified that Dr. Youkilis’ records did not indicate that Bosler had any symptoms of empty nose syndrome.

We address each alleged instance of Dr. Stankiewicz’ changed testimony in

turn.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 6 of 12 Type of Surgery to Perform

[11] With respect to her first allegation, that Dr. Stankiewicz changed his testimony

regarding the type of surgery he would have performed, Bosler mischaracterizes

Dr. Stankiewicz’ discovery deposition testimony by taking it out of context. In

his discovery deposition, Dr. Stankiewicz was asked to explain why he would

have performed surgery on Bosler, and he responded as follows:

She’s got ethmoid sinus disease. . . . [An ethmoidectomy is] indicated as far as—if this patient had—at a theoretical [sic], had everything that we have talked about with maximal medical therapy, endoscopy, the surgery that would be planned in this circumstance would be an ethmoidectomy, maybe a partial ethmoidectomy, . . . and that’s part and process of what you do.

***

On top of that, if you go in and it’s three weeks later and there’s a whole bunch more swelling and disease present, then you attend to those sinuses as you need to—to do so. So that’s a judgment call at the time of surgery.

Appellant’s App. Vol. 2 at 100 (emphases added). And in his trial deposition,

Dr. Stankiewicz testified that he would have gone into surgery “planning” to

perform a partial ethmoidectomy, but that the actual surgery he would perform

was “totally dependent upon what [he] saw at surgery.” Tr. Vol. 6 at 56.

[12] Thus, contrary to Bosler’s assertion on appeal, Dr. Stankiewicz’ testimony in

both depositions was that he would have planned on one procedure but that

that procedure was subject to change based on what he saw. While Dr.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 7 of 12 Stankiewicz did state in his trial deposition that he was “changing” his opinion

on this question, he was clearly mistaken. He only said that because Bosler’s

counsel read an out-of-context excerpt from his discovery deposition and asked

him whether he was going to “stick with that testimony” or “change it.” Id. at

57. Because Dr. Stankiewicz did not, in fact, change his testimony, Bosler

cannot show that she was prejudiced thereby.

Bosler’s Symptoms Post-surgeries

[13] In support of this contention on appeal, Bosler excerpts a portion of Dr.

Stankiewicz’ trial deposition where he stated that he was “changing” his

opinion on whether Bosler’s symptoms post-surgery were related to her

surgeries. Appellant’s Br. at 11. But Bosler’s argument fails for two reasons.

First, Bosler cites to a page of the transcript that does not include the alleged

testimony. Second, and moreover, Bosler simply asserts, without any

explanation or citation to the record, that Dr. Stankiewicz’ testimony changed

when he gave his trial deposition. Accordingly, Bosler has not demonstrated

that she was prejudiced by this alleged changed testimony.

Significant Disease

[14] Bosler also contends that Dr. Stankiewicz changed his testimony regarding

whether her sinusitis was “significant.” In support of this contention on appeal,

Bosler excerpts portions of Dr. Stankiewicz’ testimony from both his discovery

and trial depositions that are entirely consistent and show no changed opinion

regarding the significance of Bosler’s pre-surgery disease. For the first time in

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 8 of 12 her reply brief, Bosler cites to a portion of Dr. Stankiewicz’ trial deposition

purporting to show a changed opinion. The law is well settled that grounds for

error may only be framed in an appellant’s initial brief and, if addressed for the

first time in the reply brief, they are waived. Monroe Guar. Ins. Co. v. Magwerks

Corp., 829 N.E.2d 968 977 (Ind. 2005). Because she raised this purported

change for the first time in her reply brief, which deprived Dr. Goldenberg of an

opportunity to respond to it, Bosler has waived this issue for our review.

Optimal Medical Therapy

[15] In support of her contention that Dr. Stankiewicz changed his testimony

regarding optimal medical therapy in this case, Bosler again misconstrues Dr.

Stankiewicz’ discovery deposition testimony by taking it out of context. In his

discovery deposition, Dr. Stankiewicz was questioned about a textbook he had

written and whether he stood by his opinion in that textbook that “[c]urrent

optimal medical therapy includes at least a four-week course of antibiotics,

nasal decongestants, topical nasal steroids, and, possibly, systemic steroids.”

Appellant’s App. Vol. 2 at 81. In that deposition, Dr. Stankiewicz

acknowledged that he agreed that the “optimal medical therapy” for CRS

included “a course of antibiotics” and “a four-week course of nasal

decongestants” and topical steroids. Id. at 81. However, he also testified that

“the whole question of what is optimal medical therapy is basically on a

guideline and is left up to the practitioner as far as how they want to approach

that.” Id. at 80 (emphasis added). Accordingly, Dr. Stankiewicz’ trial

deposition testimony stating that “optimal or maximized medical therapy is

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 9 of 12 whatever [the physician] wants it to be” was not changed testimony, and Bosler

has not shown that she was prejudiced thereby. Tr. Vol. 5 at 185.

Empty Nose Syndrome

[16] Finally, at the time of Dr. Stankiewicz’ discovery deposition, he had not yet

reviewed Dr. Youkilis’ deposition testimony, so Dr. Stankiewicz did not have

an opinion whether Dr. Youkilis’ records indicated that Bosler had empty nose

syndrome. However, Dr. Stankiewicz was asked whether he had “any basis to

disagree with Dr. Youkilis’ diagnosis” of empty nose syndrome, and he

explained his reasons for “question[ing]” that diagnosis. Appellant’s App. Vol.

2 at 91. Dr. Stankiewicz testified further that it was unlikely that Bosler had

empty nose syndrome because “the criteria for [empty] nose [syndrome] in her

circumstance [was] inapplicable . . . because her inferior turbinates were intact.”

Id. In his trial deposition, Dr. Stankiewicz testified that he did not “notice”

anything in Dr. Youkilis’ records to indicate that Bosler had symptoms of

empty nose syndrome. Tr. Vol. 6 at 70. Bosler contends that that opinion

given at trial prejudiced her because her expert “had no opportunity to

respond.” Appellant’s Br. at 13. We cannot agree.

[17] Bosler has not demonstrated that her ability to prepare her expert witness for

trial was negatively impacted by Dr. Stankiewicz’ failure to disclose his

opinions regarding Dr. Youkilis’ records prior to his trial deposition. First, Dr.

Stankiewicz was clear in his discovery deposition that he disagreed with Dr.

Youkilis and did not think that Bosler had empty nose syndrome. Bosler does

not explain why Dr. Stankiewicz’ subsequent confirmation of that opinion after Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 10 of 12 reviewing Dr. Youkilis’ records required any change in her trial preparation.

Second, even Dr. Youkilis testified that, while his “impression” was that Bosler

had empty nose syndrome, that was only a “possible diagnosis” and he could

not “tell [Bosler] exactly what was wrong.” Tr. Vol. 5 at 158. Dr. Youkilis

testified further that he did not have “a definitive diagnosis of anything” for

Bosler. Id. at 159. Given Dr. Youkilis’ testimony, Bosler cannot show that she

was prejudiced by Dr. Stankiewicz’ trial deposition testimony because it was

consistent with his discovery deposition testimony. Indeed, Bosler does not

explain how her expert witness would have prepared differently for trial if he

had been apprised of Dr. Stankiewicz’ trial deposition testimony.

Conclusion

[18] Bosler does not direct us to anything in the record to support her contentions

that Dr. Stankiewicz changed his opinions with regard to four of the five

instances she alleges in her brief on appeal. And with regard to the alleged fifth

instance, Dr. Stankiewicz’ trial testimony that Dr. Youkilis’ records did not

show that Bosler had empty nose syndrome is consistent both with Dr.

Stankiewicz’ discovery deposition testimony and with Dr. Youkilis’ own

testimony. Bosler’s appeal rests upon the premise that Dr. Stankiewicz changed

his opinion between his discovery deposition and trial deposition and that the

alleged changes were substantial and material. We conclude that there was no

material change in Dr. Stankiewicz’ testimony that could have affected Bosler’s

substantial rights. See Ind. Appellate Rule 66. Bosler has not shown that she

was prejudiced by the trial court’s admission of Dr. Stankiewicz’ trial

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 11 of 12 deposition testimony. Thus, we hold that the trial court did not abuse its

discretion when it denied Bosler’s motion to exclude the challenged testimony.

[19] Affirmed.

Vaidik, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-612 | January 21, 2020 Page 12 of 12