Rogers v. Quality Carriers Inc et al

Filing 126

OPINION AND ORDER GRANTING IN PART and DENYING IN PART 101 MOTION for Summary Judgment by Defendants Quality Carriers Inc, Kimberly Thietje; DENYING 105 MOTION (First) for Partial Summary Judgment by Plaintiff/Estate Plaintiff Benjamin Rogers; DE NYING 109 MOTION to Exclude Opinion Testimony of Nick Tumbas, Trooper Elwood, and Dr. E. Allen Griggs by Defendants Quality Carriers Inc, Kimberly Thietje; DENYING 124 MOTION (Belated) for Oral Argument by Defendants Quality Carriers Inc, Kimberly Thietje. The 101 Motion is GRANTED as to the claims of negligent infliction of emotional distress and punitive damages which are DISMISSED WITH PREJUDICE. The Motion is DENIED as to causation. Signed by Judge Rudy Lozano on 7/11/17. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
BENJAMIN ROGERS, individually
)
and as personal representative )
of THE ESTATE OF ASHLEY ROGERS, )
)
Plaintiff,
)
)
vs.
) CAUSE NO. 4:15-cv-22
)
QUALITY CARRIERS, INC., and
)
KIMBERLY THIETJE,
)
)
Defendants.
)
OPINION AND ORDER
This matter is before the Court on the: (1) Defendants’ Motion
for Summary Judgment, filed by Defendants, Quality Carriers, Inc.
and

Kimberly

Plaintiff’s

Thietje,
Motion

for

on

February

Partial

8,

Summary

2017

(DE

Judgment,

#101);
filed

(2)
by

Plaintiff, Benjamin Rogers, as personal representative of the
estate of Ashley Rogers, and individually, on February 28, 2017 (DE
#105); (3) Motion to Exclude Opinion Testimony of Nick Tumbas,
Trooper Elwood, and Dr. E. Allen Griggs, filed by Defendants,
Quality Carriers, Inc. and Kimberly Thietje, on March 2, 2017 (DE
#109); and (4) Belated Motion for Oral Argument Pursuant to Local
Rule 7.5, filed by Defendants, Quality Carriers, Inc. and Kimberly
Thietje, on June 26, 2017 (DE #124).
For the reasons set forth below, Defendants’ Motion for

Summary Judgment (DE #101) is GRANTED IN PART AND DENIED IN PART.
It is GRANTED as to the claims of negligent infliction of emotional
distress and punitive damages, which are DISMISSED WITH PREJUDICE.
It is DENIED as to causation.

Plaintiff’s Motion for Partial

Summary Judgment (DE #105) is DENIED.
Opinion Testimony (DE #109) is DENIED.

The Motion to Exclude
The Motion for Oral

Argument (DE #124) is also DENIED.
BACKGROUND
Plaintiff filed this wrongful death suit against Defendant,
Quality Carriers, Inc. (“Quality Carriers”) and its employee,
Kimberly Thietje (“Thietje”), in state court in 2014.

Defendants

removed the case to this Court on March 10, 2015. The case stems
from a car crash in December 2013, on southbound I-65, which killed
Ashley Rogers (“Rogers”).

The Jeep driven by Rogers was struck

multiple times, by multiple vehicles, including being struck by the
tractor-trailer driven by Thietje.

The parties have put forth

different versions of how the accident occurred, and where Ashley
Rogers was during the impacts.
On February 9, 2017, Defendants filed a motion for summary
judgment, arguing that Plaintiff failed to produce sufficient
evidence to create a genuine issue of material fact that Thietje’s
wrongful act or omission was the responsible cause of Rogers’
death.

(DE #101.)

Plaintiff filed a response in opposition on

March 1, 2017 (DE #107), and Defendants filed a reply (DE #110).
2

On February 28, 2017, Plaintiff filed a motion for partial
summary judgment arguing no genuine issues of material fact exist
so that a jury could find that Rogers was struck by an unknown nonparty.

(DE #105.)

Defendants filed a response on March 28, 2017

(DE #112), and Plaintiff filed a reply on April 10, 2017 (DE #113).
On March 2, 2017, Defendants filed the instant motion to
exclude opinion testimony of Plaintiff’s experts, Nick Tumbas,
Trooper Elwood, and Dr. E. Allen Griggs.
filed an opposition on March 16, 2017.

(DE #109.)

Plaintiff

(DE #111.)

Finally, Defendants filed a motion for oral argument on June
26, 2017.

(DE #124.)

June 26, 2017.

Plaintiff filed a response in opposition on

(DE #125).

As such, all four motions have been fully briefed and are ripe
for adjudication.
DISCUSSION
Motion for Oral Argument
At the outset, the Court will address Defendants’ Motion for
Oral Argument as to the motion to exclude testimony and motion for
summary judgment.

(DE #124.)

Pursuant to Local Rule 7-5., the

Court may “grant or deny a request for oral argument or an
evidentiary hearing in its discretion.” N.D. Ind. L.R. 7-5.(c)(1).
Here, the parties’ memoranda have sufficiently apprised the Court
of the issues at hand, and the Court does not believe that oral
argument is necessary.

Therefore, the Court denies Defendants’

3

Motion for Oral Argument (DE #124), and turns to the merits of the
motions.
Motion to Exclude Opinion Testimony of Nick Tumbas, Trooper Elwood,
and Dr. E. Allen Griggs
While

Defendants

entitle

this

motion

as

one

to

exclude

“opinion testimony,” they cite to Federal Rule of Evidence Rule
702, and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
in applying the legal standard for the admissibility of expert
testimony. Additionally, the two main cases they rely upon, Owens
v. Ford Motor Co., 297 F.Supp.2d 1099, 1105 (S.D. Ind. 2003), and
Clark v. Takata Corp., 192 F.3d 750 (7th Cir. 1999), both analyze
the admissibility of expert testimony under Rule 702 and the
guiding principles in Daubert.
Federal Rule of Evidence 702, which governs expert testimony,
provides the following:
A witness who is qualified as an expert by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is a
principles and methods; and

product

of

reliable

(d) the expert has reliably applied the principles
and methods to the facts of the case.
4

F.R.E. 702.

In addition, in Daubert, the Supreme Court fashioned

a two-prong test of admissibility for evidence based on the
“scientific knowledge” mentioned in Rule 702. Daubert, 509 U.S. at
592.

To

be

admissible,

evidence

must

be

both

relevant

and

reliable.

Id. at 589; see also Kumho Tire Co., Ltd. v. Carmichael,

526

137,

U.S.

152

(1999)

(noting

the

objective

of

court’s

gatekeeping requirement is to ensure reliability and relevancy of
expert testimony).
Under the reliability prong, scientific evidence must be
reliable in the sense that the expert’s testimony must present
genuine scientific knowledge.

Daubert, 509 U.S. at 592-93; Deimer

v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir.
1995).
the

Generally, the expert witness must employ in the courtroom

same

level

of

intellectual

rigor

that

practice of an expert in the witness’s field.
152.

characterizes

the

Kumho, 526 U.S. at

Specifically, a court may, but is not required to, consider

a nonexclusive list of four factors in assessing reliability: (1)
whether the expert’s theories and techniques can be verified by the
scientific method through testing; (2) whether the theories and
techniques have been subjected to peer review and publication; (3)
whether the theories and techniques have been evaluated for their
potential

rate

of

error;

and

(4)

whether

the

theories

and

techniques have been generally accepted by the relevant scientific

5

community.

Daubert, 509 U.S. at 593-94.

Under the relevance prong, the testimony must assist the trier
of fact to understand the evidence in the sense that it is relevant
to or “fits” the facts of the case.

Daubert, 509 U.S. at 591;

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

In

other words, the testimony must be such that the jury can apply it
in a meaningful way to the facts at hand.
essentially

represents

an

inquiry

This “fit” analysis

similar

to

if

not

indistinguishable from the basic evidentiary inquiries into whether
evidence is relevant and, if so, whether its probative value is
nonetheless substantially outweighed by, among others, the danger
of unfair prejudice and jury confusion.

See Daubert, 509 U.S. at

595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.
1995).
Here,

Defendants

move

to

strike

the

testimony

of

three

witnesses - Nick Tumbas, Trooper Danielle Elwood, and Dr. E. Allen
Griggs.

Ultimately, it comes down to this: Plaintiff’s theory of

the case is that Rogers was either inside or near her vehicle when
Thietje’s

truck

struck

Rogers’

Jeep.

On

the

other

hand,

Defendants’ theory of the case is that Rogers was struck as a
pedestrian by a vehicle other than Thietje’s. Thus, Defendants are
trying to bar Plaintiff’s experts from opining that Rogers was near
or inside her vehicle at the time of impact with Thietje’s truck.
This Court finds the expert testimony and opinions of Tumbas,

6

Elwood, and Dr. Griggs both reliable and relevant.
A.

Nick Tumbas

Nick Tumbas is Plaintiff’s accident reconstruction expert. In
his accident reconstruction report (DE #112-4), Tumbas lists the
case materials and field observations he used in reaching his
opinions - which include, inter alia, the officer’s crash reports,
Trooper Elwood’s traffic crash reconstruction, written statements
by witnesses, photographs, phone records, weather data, diagnostic
data for Thietje’s tractor, electronic data for Zdzislaw Karpik’s
tractor-trailer (another tractor-trailer that impacted Rogers’
Jeep), answers to interrogatories, medical records, the coroner’s
report, deposition testimony, and his personal examinations of the
accident site and Rogers’ vehicle.

(Id. at 3-4.)

As such, he

collected facts and data, analyzed it in accordance with his
specialized knowledge, and reached specific conclusions.
There are a number of opinions in Tumbas’ report about how the
accident occurred, including analysis of road conditions, light
conditions, damage sustained to Rogers’ vehicle, the initial loss
of control, and the impacts that Rogers’ vehicle sustained with the
other

vehicles.

Additionally,

Tumbas

opines

that

“Kimberly

Thietje’s vehicle continued in the right lane without moving to the
left or braking.

Her truck impacted the Rogers’ vehicle with

Ashley in or near the vehicle at the time of impact.”

(Id. at 3.)

Tumbas also opines that “Ashley’s location when her vehicle was

7

impacted by Thietje is not known for certain, as stated earlier. .
. Mrs. Rogers is assumed to be near or in her vehicle when the
impact occurred.”

(Id. at 10.)

Defendants argue Tumbas is not “qualified to offer opinions
involving principles of biomechanical engineering or occupant
kinematics.”

(DE #109 at 14.)

an expert in these areas.

Yet, Tumbas does not profess to be

He is trained in the field of accident

reconstruction (Tumbas Dep. at 6-9), and is offering opinions about
his conclusions arising from the investigation, based upon his
training

and

extensive

experience

in

the

field

of

accident

reconstruction.
Defendants

also

argue

that

Tumbas

did

not

conduct

an

investigation “to determine if Ashley Rogers could have been
ejected or propelled to the interior median barrier wall as a
result of the forces generated in the impact between the Jeep Grand
Cherokee and the Thietje tractor-trailer.”

(DE #109 at 15.)

Defendants fault Tumbas for not entertaining the hypothesis that
Rogers was struck as a pedestrian by another vehicle.

(Id.)

Yet,

Defendants do not point to any facts Tumbas failed to consider.
There is no witness testimony about where Rogers was when she was
struck, and not one person at the scene testified they saw a
pedestrian or saw Rogers get struck while she was a pedestrian,
walking.

(Elwood Dep. at 85-86; Madison Dep. at 77.) There is

nothing improper with Tumbas’ investigation, the facts and data he

8

relied upon, or his methods in this case.
Finally,

Defendants

argue

that

Tumbas

did

not

conduct

scientific tests to determine the forces acting on Rogers’ body,
and then concedes “nor could they because no one knew where she was
at the point of impact.”

(DE #109 at 17.)

Indeed.

where Rogers’ body was at the point of impact.

No one knew

This is the reason

testimony like that of Tumbas, giving his expert opinion as to what
happened in this complicated sequence of collisions, is helpful and
necessary to a jury.

Defendants have experts as well that will

testify about how they believe the accident happened.
the jury to weigh that expert evidence.

It is up to

See Smith, 215 F.3d at 719

(“[t]he question of whether the expert is credible or whether his
or her theories are correct given the circumstances of a particular
case is a factual one that is left for the jury to determine.”).
The criticisms voiced by Defendants about Tumbas’ testimony do
not go towards the admissibility of these relevant and reliable
opinions, but instead are more appropriate as topics for cross
examination.

See Daubert, 509 U.S. at 596 (recognizing cross-

examination and careful jury instructions, not the exclusion of
expert

testimony,

are

the

preferred

methods

of

dealing

with

challenged expert testimony); Lapsley v. Xtek, Inc., 689 F.3d 802,
805 (7th Cir. 2012) (“A Daubert inquiry is not designed to have the
district judge take the place of the jury to decide ultimate issues
of credibility and accuracy.

If the proposed expert testimony

9

meets the Daubert threshold of relevance and reliability, the
accuracy of the actual evidence is to be tested before the jury
with the familiar tools of vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of
proof.”); Spearman Indus., Inc. v. St. Paul Fire & Marine Ins. Co.,
128 F.Supp.2d 1148, 1150 (N.D. Ill. 2001) (“The rejection of expert
testimony is the exception rather than the rule, and the trial
court’s

role

as

gatekeeper

is

not

intended

replacement for the adversary system.”).

to

serve

as

a

While Defendants may

disagree with the some of Tumbas’ conclusions, this Court finds his
report and testimony is relevant and reliable.
B.

Trooper Danielle Elwood

Trooper Elwood is an accident reconstructionist with the
Indiana State Police Department.

She investigated the scene two

days after the crash, considered environmental conditions, received
information on the vehicle inspections, listed service violations
of vehicles, considered witness statements, crash mechanics, and
reached several conclusions in her report.

(DE #112-7 at 8-10.)

Elwood concluded the crash involved multiple impacts occurring in
close proximity, Thietje’s truck impacted Rogers’ Jeep, there was
no

evidence

environmental

of

mechanical

conditions

failures

impacted

of

the

any
crash

of

the

(light

vehicles,
snow

was

falling), no vehicular recalls had any bearing on the crash, and
there could have been visibility issues that contributed to the

10

crash.

(Id. at 11.)

While Defendants try to fault Elwood for not holding an
engineering degree, biomechanical degree, or kinematics degree,
Trooper

Elwood

is

qualified

to

give

an

opinion

as

to

her

conclusions arising from her technical investigation based upon her
qualifications, training, and experience as a State Trooper and
accident reconstructionist.

Elwood took a six week course in

accident reconstruction. (Elwood Dep., DE #112-6, at 11.) In those
classes, she learned how to look in depth at a crash and determine
what occurred based upon factual information.

(Id.

at 12.)

Additionally, Trooper Elwood learned by working with other officers
in the field.

(Id. at 14.)

She has a typical protocol (including

walking the scene, gathering her own information first, then
talking to other officers, seeing if there are other witnesses, and
taking measurements).

(Id. 19-21.)

Defendants do not challenge

her methods and methodology, but rather lists the many things she
did not determine or have an opinion on (including when or how
Rogers sustained her fatal injuries, how Rogers’ body came to the
resting place by the barrier wall, or whether she was struck as a
pedestrian).
Trooper Elwood is a trained police accident reconstructionist,
and her testimony and report is clearly relevant and reliable to
this case.

She has no motive for bias, and collected invaluable

data that has been considered and interpreted by other experts in

11

this case as well.

Defendants can explore any issues they have

with her testimony on cross-examination. See Lapsley, 689 F.3d at
805.
C.

Dr. E. Allen Griggs

Plaintiff also retained Dr. E. Allen Griggs, M.D., J.D., as an
expert witness. Dr. Griggs was the medical examiner that performed
Rogers’ autopsy and he is a coroner for the State of Indiana.

Dr.

Griggs examined the injuries sustained by Rogers and found them to
be more consistent with a body ejected from a vehicle. (Griggs
Dep., DE #112-9, at 47.)

Yet he admits that her bilateral femoral

fractures could have occurred as the result of being struck as a
pedestrian.

(Id. at 51-52.)

Defendants

don’t

question

Dr.

Griggs’

qualifications

to

determine the cause and manner of death, nor do they argue he used
unreliable principles when forming his opinions.

Dr. Griggs came

to his conclusions as part of his official duties, and is clearly
qualified to opine on the cause and manner of a person’s death.
Rather, Defendants try to point out information he did not have,
and things he did not know, during his autopsy.

(DE #109 at 6-8.)

There are a number of things no one knows with absolute certainty
in this case, including, but not limited to: whether Rogers was
inside her vehicle at the time of impact with Thietje’s truck; if
she was in the vehicle, where was she in the Jeep; if she was in
the Jeep at the time of impact, was she ejected; how precisely the

12

Jeep was struck by Thietje’s truck; and how exactly Rogers’ body
arrived at her final resting point. All of these unknown facts are
left for the jury to decide, and Dr. Grigg’s testimony will assist
the jury in their job. Dr. Grigg’s opinion that Rogers was likely
inside her vehicle is based upon sufficient facts and data that he
had available, and is relevant and reliable.

Again, Defendants’

issues with Dr. Grigg’s testimony may be explored on crossexamination.
Defendants cite Clark v. Takata Corp., 192 F.3d 750 (7th Cir.
1999), and Owens v. Ford Motor Co., 297 F.Supp.2d 1099 (S.D. Ind.
2003),

in

criticizing

scientific tests.

Plaintiff’s

experts

for

not

conducting

However, Clark was a product liability case

where the expert opined in a one and a half page report that had
the seat belt functioned properly, the plaintiff would have been
restrained from impacting the roof and had no serious injuries from
the car accident.

Clark, 192 F.3d at 754.

The Court faulted the

expert’s methodology which was based solely on his belief and
assumption without any testing data or research material in the
record. Id. at 758.

In this case, there is no product to test, and

the experts at issue used the available data to reach their
opinions. Similarly, Owens is also distinguishable, because it was
a product liability case in which the main issue was whether the
air bag fully deployed, and for purposes of the expert analysis,
the expert assumed the air bag did not fully deploy.

13

Owens, 297

F.Supp.2d at 1107. It is axiomatic that “an expert does not assist
the trier of fact in determining whether a product failed if he
starts his analysis based upon the assumption that the product
failed (the very question that he was called upon to resolve).”
Clark, 192 F.3d at 757.
In reaching their opinions in this case, which is quite
different than a product liability case, Plaintiff’s experts have
not assumed the central fact at
caused Rogers’ fatal injuries).

issue (whether Thietje’s truck
Rather, they have

given opinions

based upon their qualifications and expertise about the accident
reconstruction (Tumbas and Trooper Elwood), and Rogers’ injuries
and the likely cause of her death (Dr. Griggs).
expert testimony is appropriate.

This type of

Therefore, the motion to exclude

is denied.
Motions for Summary Judgment
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

FED. R. CIV. P. 56(a).

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every

dispute

between

the

parties

makes

summary

Not

judgment

inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude

14

the entry of summary judgment.”

Id.

In determining whether

summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

“However, our favor

toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”

Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in his own pleading, but
rather must “marshal and present the court with the evidence” that
he contends will prove the case.

Goodman v. Nat’l Sec. Agency,

Inc., 621 F.3d 651, 654 (7th Cir. 2010).

If the non-moving party

fails to establish the existence of an essential element on which
he or she bears the burden of proof at trial, summary judgment is
proper.

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

Where the parties file cross-motions for summary judgment, the
court must consider each motion.
746,

747

(N.D.

Ind.

2002).

Grabach v. Evans, 196 F.Supp.2d
With

cross-motions

for

summary

judgment, courts “look to the burden of proof that each party would
bear on an issue of trial; [courts] then require that party to be
beyond the pleadings and affirmatively to establish a genuine issue
of material fact.”

Santaella v. Metropolitan Life Ins. Co., 123

15

F.3d 456, 461 (7th Cir. 1997) (citation omitted).

With the cross

motions, the Court will construe all facts and inferences from the
facts

in

favor

of

the

consideration is made.

party

against

whom

the

motion

under

In re United Air Lines, Inc., 453 F.3d 463,

468 (7th Cir. 2006). “It is true that cross-motions for summary
judgment do not waive the right to a trial, but this rule does not
alter the respective burdens on cross-motions for summary judgment
- more particularly here, the responsive burden of a plaintiff who
moves for summary judgment and is confronted with a cross-motion
for

summary

judgment.

The

motions

are

treated

separately.”

McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 n. 4 (7th
Cir. 2008) (citations omitted).
Undisputed Facts
There are a number of disputed facts in this case.

The Court

will try to distill down the multiple briefs, and list the relevant
undisputed facts.
The parties all agree that Rogers was killed as a direct and
proximate result of the incident that involved multiple vehicles on
December

8,

2013,

close

to

mile

marker

Interstate 65 in Jasper County, Indiana.

225.5

on

southbound

Rogers was traveling

southbound in her Jeep Grand Cherokee, and Thietje was driving her
2007 Kenworth tractor with a tanker trailer in the course of her
employment with Quality Carriers, Inc., on the same route, a little
behind and to the north of Rogers’ vehicle.

16

It was nearing evening time (Tumbas Report, DE #112-4, at 2)
when Rogers lost control of her vehicle and it struck the bridge
wall on the western side of the southbound lanes of I-65 and came
to a stop.

(Ben Rogers Dep., DE #102-1, at 29-30.)

been following her husband, Ben Rogers, at the time.

Rogers had
(Id. at 16.)

Ben Rogers saw headlights start to swerve in his mirror, and could
see it was the Jeep his wife was driving.

(Id. at 29.) Ben Rogers

pulled over and called his wife. (Id. at 41.)

He asked her if she

was ok, she said yes, and she “said something to [Ben] that alluded
that she was potentially outside of the vehicle,” so he told her
“to either get on the other side of the ditch or back in the
vehicle.”
accident.

(Id. at 42.)
(Id.)

Then, he called 911 to report the

Ben Rogers could not see what was going on with

her, and does not know what Ashley did after the phone call.
at 126.)

(Id.

Ben Rogers remained in his car, with his minor son.

The parties do agree that Thietje’s truck struck Rogers’ Jeep.
Thietje was traveling approximately 58 miles per hour.
Report at 3.)

(Tumbas

Thietje heard on the CB radio that there was a spin-

out on a bridge.

(Thietje Dep. at 27.)

Thietje testified on the

night of the accident, as she came over the hillcrest, she saw a
reflection of something in the roadway to the right.
57.)

Thietje did not change lanes.

(Id. at 56-

(Id. at 62.)

Thietje

testified that the weather and the darkness prevented her from
changing lanes.

(Id. at 65.)

Thietje’s truck struck Rogers’

17

vehicle.

(Id. at 70.)

As discussed earlier in this opinion, the

parties dispute whether Rogers was inside her vehicle at the time
of the collision with the Thietje truck.
Another individual named Dana Niblett f/k/a Dana O’Brien, was
driving southbound on I-65 behind Ashley Rogers, and her vehicle
also struck the Jeep.

(Niblett Dep. at 36.)

The parties disagree

on whether Rogers’ Jeep collided with the Niblett vehicle before or
after the collision with Thietje’s truck.
evidence cited therein).

(DE #112 at 2-3; see

Plaintiff contends the Niblett vehicle

struck Rogers’ vehicle first; but Defendants believe after being
struck by Thietje, Rogers’ Jeep was struck by Niblett, then
propelled into the travel lanes of southbound I-65 and struck by
another vehicle driven by Zdzislaw Karpik.

(DE #112 at 2.)

No

witnesses reported seeing a pedestrian standing in or around the
road.

(Elwood Dep. at 85-86; Madison Dep. at 77.)
Ben Rogers did not see any vehicles impact his wife’s Jeep.

(Ben Rogers Dep. at 67.)

He saw vehicles going off the road and he

recalls seeing a semi in a field, so he called 911 for a second
time.

(Id. at 47.)

At some point, a young man came down to check

on him and told Ben that someone “was hurt really bad,” so Ben
decided he would be better off helping.

(Id. at 49-50.)

He backed

his car up, grabbed his pack, and started to run up the hill toward
the scene of the incident.

(Id.)

Ben Rogers saw people gathered next to the barrier wall and

18

ran over there.

(Ben Rogers Dep. at 51.)

His wife, Ashley, was

lying with her head closest to the wall, and her feet closest to
the road, perpendicular to the road.
Ashley covered up with a blanket.

(Id. at 56-67.)

(Id. at 51, 63.)

Ben found

A nurse told

him someone had put a neck brace on her, and they may have put her
on a board.

(Id. at 66, 121.)

The parties agree that as a result of the collisions, Ashley
Rogers

sustained

hospital.

severe

injuries

and

ultimately

died

at

the

Plaintiff originally filed a complaint alleging Rogers’

wrongful death was proximately caused, in whole or in part, by the
negligent actions of: Thietje, individually and as an agent or
employee of Quality Carriers, Inc.; Zdzislaw Karpik, individually
and as an agent or employee of B&B Cartage Company, Inc.; and/or
Dana O’Brien.

On March 2, 2015, Plaintiff dismissed his claims

against B&W Cartage Company, Inc., Zdzislaw Karpik, and Dana
O’Brien.

On March 10, 2015, Thietje and Quality Carriers filed

their notice of removal.

(DE #1).

On July 20, 2016, Plaintiff

filed his second amended complaint for damages.

(DE #77.)

Defendants’ Motion for Summary Judgment
With Defendants’ motion for summary judgment, the Court will
construe all facts and inferences from the facts in favor of
Plaintiff.

In re United Air Lines, Inc., 453 F.3d at 468.

However, to show a genuine issue of fact, Plaintiff must “do more
than simply show that there is some metaphysical doubt as to the

19

material facts,” and must “come forward with specific facts showing
that there is a genuine issue for trial.”

Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(quotation omitted) (emphasis in original).
A.

Causation

First, Defendants claim Plaintiff cannot offer any specific
facts on causation; therefore, summary judgment is appropriate on
the negligence claim.

It is well settled that to recover on a

negligence claim, a plaintiff must establish: (1) a duty owed by
the defendant to the plaintiff; (2) a breach of that duty; and (3)
injury to the plaintiff resulting from the defendant’s breach.
Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct.
App. 2008).

“A defendant is entitled to summary judgment by

demonstrating that the undisputed material facts negate at least
one element of the plaintiff’s claim.”

Rodriguez v. United States

Steel Corp., 24 N.E.3d 474, 477 (Ind. Ct. App. 2014) (quotation
omitted).

Under

Indiana

law,

negligence

cases

are

“rarely

appropriate” for summary judgment due to the fact that they are
fact sensitive.

Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.

2004)(quoting Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248,
249 (Ind. 1996)).
Defendants argue that Plaintiff cannot offer any specific
facts to support the allegation that Rogers received her fatal
injuries as a result of the impact between her Jeep and Thietje’s

20

truck.

(DE #102 at 7.)

To the contrary, Plaintiff does point to

evidence in the record to support this inference.

Trooper Elwood

determined that the first vehicle to impact the Jeep was Thietje’s
truck, and that “[Rogers] was outside of the vehicle during the
first impact near the rear portion of it, and during the impact it
would have been a substantial hit enough to force or throw her body
towards the inside of the roadway.”
Trooper

Elwood

specifically

(Elwood Dep. at 86-87.)

testified,

based

upon

her

investigation, that “[t]he force of the red semi coming through and
the way it hits and the way that vehicle is, whether she’s either
in the [driver] seat or she’s on the back panel of that, there’s
enough force that’s going to project her across the roadway.” (Id.
at 89.) Moreover, the autopsy found Rogers was in her Jeep at the
time she sustained the fatal injuries, and then ejected (Griggs
Dep. at 16), and Dr. Griggs testified that, based upon the nature
and severity of the injuries and his experience, Rogers’ injuries
were “more consistent with those of a person within an automobile,
rather than, say, being struck as a pedestrian.”
47.)

(Griggs Dep. at

Plaintiff’s expert, Nick Tumbas, determined that Thietje’s

truck “impacted the Rogers vehicle with Ashley in or near the
vehicle at the time of impact,” that the impact caused the Rogers
vehicle and Rogers to travel “along two divergent paths postimpact” and that Rogers “came to rest on the median shoulder near
the concrete barrier” and “was injured.” (Tumbas Report, DE #112-4

21

at 3.)
There is competent evidence in the record, including the
testimony of Plaintiff’s experts, to support a reasonable inference
of causation. See Kodish v. Oakbrook Terrace Fire Prot. Dist., 604
F.3d 490, 492 n.1 (7th Cir 2010) (at summary judgment, if there is
competent evidence on both sides of a factual question, “the nonmovant gets the benefit of the doubt”); Blood v. VH-1 Music First,
668 F.3d 543, 549 (7th Cir. 2012) (“drawing the line for proximate
cause is usually a task for the factfinder.”).

As the Court noted

in Wright v. General Motors Corp., 479 F.2d 52, 54 (7th Cir. 1973),
“since there is room for an honest difference of opinion, the issue
of proximate causation presents a question of fact for the jury to
resolve.”
B.

Negligent Infliction of Emotional Distress

Defendants also move for summary judgment on the claim for
negligent infliction of emotional distress.

The Supreme Court of

Indiana recently analyzed the bystander rule for a person who may
seek recovery for emotional distress, concluding it should not
expand

the

precedent,

and

that

the

requirements,

which

are

questions of law, “appropriately address the various public policy
concerns this particular tort implicates.”

Clifton v. McCammack,

43 N.E.3d 213, 219-20 (Ind. 2015). Aside from the relationship and
temporal requirements (which the parties concede Ben Rogers meets),
there are proximity requirements too: (1) the scene of the incident

22

must be “essentially as it was at the time of the incident”; (2)
the

victim

must

be

in

“essentially

the

same

condition

as

immediately following the incident”; and (3) the claimant must not
have been informed directly or indirectly of the incident before
coming upon the scene.

Id. at 218-223.

Plaintiff argues that Clifton is not controlling, because
Rogers was on the scene at all times, and it was evolving while he
was there.

(DE #108 at 7-9.)

Plaintiff seems to be confusing the

modified impact rule (which requires a direct physical impact to
recover damages for negligent infliction of emotional distress),
with the bystander rule.

Because Rogers did not incur a direct

physical impact, the only route under which he may recover for the
negligent infliction of emotional distress is the bystander rule.
See Ross v. Cheema, 716 N.E.2d 435, 437 (Ind. 1999); Atlantic Coast
Airlines v. Cook, 857 N.E.2d 989, 997-98 (Ind. 2006).

While

Plaintiff claims “[t]his is not the sort of situation that requires
a Clifton analysis” (DE #108 at 8), he cites no case law in support
of this bare assertion and offers no legal support for Ben Rogers
to recover on his emotional distress claim.
Defendants contend that neither Rogers nor the scene were in
essentially the same condition when Ben Rogers walked up to the
scene.

The evidence in the record shows that witnesses had placed

Rogers in a neck brace, covered her with a blanket, she was
surrounded by people, she did not have her coat or shoes on, and a

23

nurse told Ben Rogers she may have been put on a backboard. (Ben
Rogers Dep. at 51, 56-57, 63, 66.)

Ben Rogers testified in his

deposition that when he started to run up the hill, “at that point
things had changed. I can’t tell you at what point things changed.
I just know that at some point what I thought was the Jeep I no
longer could see.

So the light was out.

that headlight, was gone.

What I was looking at,

So I didn’t know where the Jeep was.”

(Ben Rogers Dep. at 50.) Ben Rogers testified that when he reached
his wife, “she had been lying there for a while.”

(Id. at 121.)

While Plaintiff claims the changing of her condition, including
efforts of good Samaritans to save her “are not and cannot be the
types of changes contemplated by a Clifton analysis” (DE #108 at
10),

he

cites

to

no

caselaw

whatsoever

in

support

of

this

contention.
The Clifton Court requires that:
to recover for emotional distress under a bystander
theory, a claimant has to view a scene that is
essentially as it was at the time of the incident
with the victim . . . in essentially the same
condition as immediately following the incident . .
. [otherwise] a claimaint will not have witnessed
the ‘gruesome aftermath’ . . .”
Clifton,

43

N.E.3d

at

221

(quotation

omitted).

“Gruesome

aftermath” refers to the “uninterrupted flow of events following
closely on the heels of the accident.”

Id. (quoting Smith v.

Toney, 862 N.E.2d 656, 662 n.3 (Ind. 2007)).

As the Court noted,

This is not to trivialize emotional trauma that
occurs after either the scene or a victim’s
24

condition has materially changed. . . genuine
emotional distress can certainly occur even after
the ‘gruesome aftermath’ of an accident has passed.
But the important policy reasons undergirding our
bystander test are key considerations, so we have
drawn parameters in defining who may recover. . . .
As we stressed in Smith: “‘Bystander’ claims are
not meant to compensate every emotional trauma.”
862 N.E.2d at 663.
“Rather they are limited to
those that arise from the shock of experiencing the
traumatic event.” Id.
Clifton, 43 N.E.3d at 222 (emphasis in original).
In Clifton, Ray Clifton and his son Darryl lived together and
were very close.

Darryl left home on his moped one morning, and

shortly after, was struck by a car and suffered fatal injuries.
Id. at 215.

Ray Clifton was home watching television, heard there

was a fatal accident with a moped, and feared his son may have been
involved.

He drove to the scene, and from a distance of about 20-

25 feet, saw Darryl’s moped, and his body on the ground covered by
a white sheet.

Id.

In that case, the Court found although Ray

arrived to the scene in a fairly short amount of time after his
son’s death, he did not experience “the uninterrupted flow of
events following the collision” because there were significant
changes to the scene and Darryl’s body.

Id. at 222. Similarly, in

this case, Rogers’ body was not in the same condition (she had a
blanket

on

her,

a

neck

brace,

and

she

may

have

been

on

a

backboard), and the scene was changed, as other people were
present, and other accidents had taken place.
Additionally,

Ben

Rogers

cannot

25

recover

for

bystander

emotional

distress

because

he

fails

the

third

circumstantial

factor, that “the claimant must not have been informed of the
incident before coming upon the scene” and must not have knowingly
exposed themselves to the accident.

Clifton, 43 N.E.3d at 222. As

explained by the Court:
This circumstantial factor involves a degree of
fortuity: it requires a bystander to arrive to an
incident
unwittingly
and
bars
claims
where
bystanders
knowingly
and
willingly
expose
themselves to the scene of an accident.
The
trigger for the emotional distress must not be some
prior knowledge of the incident before arriving to
the
scene,
but
rather
the
happenstance
contemporaneous or near-contemporaneous sensory
experience of the incident itself.
To put it
another way, the compensable emotional trauma must
be unmediated, and there should be no period of
time during which a bystander can brace himself or
herself.
Clifton, 43 N.E.3d at 222.

In Clifton, the Court found that Ray

Clifton was informed of the incident before arriving to the crash
scene

(while

watching

television),

and

because

his

emotional

distress began as he was watching the news story, he could not
recover because he was informed of the incident indirectly before
his arrival to the crash site. Id. at 222-23.
Similarly, in this case, Ben Rogers was informed of the
incident before he arrived at the crash site. Ben Rogers knew that
his wife had been involved in some sort of incident due to her
telephone call, and then later, a man approached his vehicle and
told him that there was an accident and someone had been hurt
really badly. (Ben Rogers Dep. at 50.) As a matter of law, he was
26

informed of the incident before his arrival to the crash site.
Additionally, Ben Rogers voluntarily left his vehicle and knowingly
walked to the accident scene - it cannot be said that he arrived
unwittingly.
This Court does not diminish what is certainly horribly real
anguish that Ben Rogers suffered; however, “pragmatism demands that
the line be drawn somewhere. And our precedent has drawn that line
by setting our straightforward limits for recovery under this
tort.”

Summary judgment is warranted on the claim for negligent

infliction of emotional distress. Clifton, 43 N.E.3d at 223.
C.

Punitive Damages

Plaintiff’s second amended complaint alleges Ben Rogers is
entitled to punitive damages as a result of Kimberly Thietje’s
actions.

(Sec. Am. Compl. ¶ 28.)

He also alleges that “Defendant

Thietje’s willful and wanton decision to operate her motor vehicle
with amphetamines and marijuana metabolites in her body was done
with heedless indifference towards the rights and safety of others,
and

subjected

injuries.”

Ashley

Rogers

and

Benjamin

Rogers

to

probable

(Id. ¶ 29.) It seems the second amended complaint

attempts to state a cause of action for punitive damages under the
negligent infliction of emotional distress theory and the wrongful
death theory.
Defendants argue that punitive damages are not available to
Ben Rogers because: (1) his negligent infliction of emotional

27

distress claim fails as a matter of law; and (2) punitive damages
are not recoverable through the adult wrongful death statute.
#102 at 15.)

(DE

Plaintiff fails to address this argument in his

response, and has therefore waived any argument on these points.
See Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003)
(“because [plaintiff] failed to delineate his negligence claim in
his district court brief in opposition to summary judgment or in
his

brief

to

this

Court,

his

negligence

claim

is

deemed

abandoned”); Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d
1195, 1197 (7th Cir. 1999) (stating that arguments not presented to
the district court in response to summary judgment motions are
deemed waived).
The Indiana Supreme Court has directly ruled that punitive
damages are not recoverable under the Indiana Adult Wrongful Death
Statute.

See Durham ex rel. Estate of Wade v. U-Haul Int’l, 745

N.E.2d 755, 763 (Ind. 2001) (“punitive damages are not recoverable
under the wrongful death statute.”). Moreover, because Ben Rogers’
claim for negligent infliction of emotional distress fails as a
matter of law, Plaintiff cannot recover punitive damages under that
theory either.

Therefore, summary judgment on the issue of

punitive damages is granted in favor of Defendants.
Plaintiff’s Motion for Summary Judgment
Plaintiff argues that it is entitled to summary judgment
because Defendants’ expert, Dr. Mkandawire, has an unreliable

28

opinion as to Rogers’ final rest position, and that his opinion
that

Rogers

was

struck

as

a

pedestrian

is

speculative

and

unreliable.
Dr.

Mkandawire

is

a

Principal

Engineer

in

Exponent’s

biomechanics practice (DE #110-1 at 2), and he determined that the
final resting position of Rogers was along the interior median
barrier wall, just south of the diagonal seam on the second bridge
deck, where he believed blood and personal items (a stroller) were
depicted in photograph Exhibit 26.
Mkandawire

lists

materials

he

extensive

reviewed

(DE #110-2 at 10.)

qualifications

(including

in

deposition

his

report,

testimony

photographs), and his ejection trajectory analysis.

Dr.
the
and

(DE #110-2.)

Plaintiff points out evidence to oppose Dr. Mkandawire’s
expert opinions including: Trooper Madison testified the photograph
taken two days later does not depict the stroller in the same
location that it was on the night of the accident (Madison Dep. at
159), Trooper Elwood did not note the presence of blood in her
accident reconstruction report (Elwood Dep. at 63), there is no
mention in the autopsy of lacerations or skin punctures on Rogers
that would cause the pattern of blood loss, and the snow had been
plowed by the time the picture was taken (Elwood Dep. at 65).
However, Defendants also have set forth facts upon which Dr.
Mkandawire’s belief of Rogers’ resting spot is based: he considered
the deposition testimony of Ben Rogers, Trooper Madison (who

29

testified that Rogers was found on the inside median barrier wall
within four feet of her personal items), Trooper Elwood (Rogers was
found along the inside median barrier wall), Nick Tumbas (Rogers
was found along the inside median barrier wall near her personal
items), and Dan Frittanto (another defense expert who determined
Rogers was found on the inside median barrier wall just north of
her personal items).

(DE #110-2, at 9-13.)

Dr. Mkandawire also

reviewed photographs (he believes one shows her blood in the snow
where Rogers’ body was found) (Mkandawire Dep. at 109), and Dan
Frittanto’s report (Defendants’ accident reconstruction expert),
which placed Rogers’ final resting position just south of a
diagonal seam in the second bridge deck. (Daniel Frittanto Report,
at 13-15.)

Dr. Mkandawire’s testimony is supported by credible

evidence, and is not merely speculative.
Clearly the final resting position of Rogers is a disputed
fact in this case.

There are several different theories of where

her body came to rest, and there is evidence on both sides of those
theories, and the experts on both sides are qualified and followed
a proper methodology.
jury to decide.

This is a classic question of fact for the

Plaintiff will have the opportunity to challenge

Dr. Mkandawire’s opinions on cross examination at trial.

See

Lapsley, 689 F.3d at 805; Walker v. Soo Line R.R. Co., 208 F.3d
581, 591 (7th Cir. 2000) (failure to consider evidence or flaws in
an investigation are for cross examination).

30

Moreover, only the

jury can decide if the impact with Thietje’s truck proximately
caused Rogers’ fatal injuries.
Dr. Mkandawire relies upon published test results of lateral
throw distances in pedestrian accidents in opining that Rogers was
not ejected from her vehicle. (DE #110-2 at 10-11.)

Additionally,

Dr. Mkandawire proposes an alternate theory about how Rogers may
have

received

her

injuries.

He

believes

her

injuries

were

consistent with being struck as a pedestrian by a light truck or an
SUV in a “wrap-around” type of accident.
134-35.)

Plaintiff

notes

that

back

(Mkandawire Dep. at 165,
in

September

2016,

the

Magistrate Judge in this case granted an unopposed motion to strike
affirmative defense number 8, claiming Plaintiff’s injuries were
caused by unknown non-parties.

(DE #87.)

Yet the parties have

provided no citations or legal arguments to this Court on how the
dismissal of the affirmative defense might affect this case, or the
ability for Dr. Mkandawire to put forth his alternative theory at
trial that Rogers was struck as a pedestrian by another vehicle.
This is a motion for summary judgment that is currently pending
before the Court.

Defendants have marshaled their evidence and

shown that there are disputed issues of material fact as to whether
the collision with Thietje’s truck caused Rogers’ injuries, and
this renders summary judgment inappropriate.

As such, the Court

need not address in this order Dr. Mkandawire’s alternative theory.
CONCLUSION

31

For the reasons set forth below, Defendants’ Motion for
Summary Judgment (DE #101) is GRANTED IN PART AND DENIED IN PART.
It is GRANTED as to the claims of negligent infliction of emotional
distress and punitive damages, which are DISMISSED WITH PREJUDICE.
It is DENIED as to causation.

Plaintiff’s Motion for Partial

Summary Judgment (DE #105) is DENIED.
Opinion Testimony (DE #109) is DENIED.

The Motion to Exclude
The Motion for Oral

Argument (DE #124) is also DENIED.

DATED: July 11, 2017

/s/ RUDY LOZANO, Judge
United States District Court

32