from the Porter Superior Court. The Honorable William E.
Alexa, Judge. Trial Court Cause No. 64D02-1209-CT-9714.
FOR APPELLANT: Benjamen W. Murphy, Law Office of Ben Murphy,
Griffith, Indiana; David A. Wilson, Steven J. Alvarez, Walter
J. Alvarez, Walter J. Alvarez, P.C., Crown Point, Indiana.
FOR APPELLEE: Edward W. Hearn, Susan K. Swing, Johnson &
Bell, P.C., Crown Point, Indiana.
Judge. Bailey, J., and Mathias, J., concur.
Carl Summerhill sued Craig Klauer for negligence following a
collision between Summerhill's moped and Klauer's
motorcycle. Following trial, a jury declined to find Klauer
liable. Summerhill now appeals that judgment, arguing that
the trial court erred in excluding certain evidence and that
he was prejudiced as a result. We agree with Summerhill that
the trial court erred in excluding the testimony of an
accident reconstructionist that Summerhill sought to call on
his behalf. Accordingly, we must remand for a new trial. We
discuss Summerhill's other arguments to assist the trial
court and the parties upon retrial.
On the evening of July 18, 2012, Carl Summerhill was riding
his moped to his home in Crown Point after meeting with some
friends in Valparaiso. As Summerhill headed south down route
2, it looked as though a heavy rainstorm was about to begin.
Summerhill saw a building to his left and decided to turn
into the parking lot and take shelter under the
Craig Klauer and two of his friends, Ryan Patrick and Parry
Brown, had been following behind Summerhill on their
motorcycles. Patrick was traveling faster than Summerhill and
passed Summerhill on the left side. Klauer followed behind
Patrick and attempted to pass Summerhill in the same manner.
While Klauer was passing Summerhill, Summerhill attempted to
turn left. The rear left side of Summerhill's moped
collided with the front right side of Klauer's
motorcycle. The collision sent Summerhill off the road and
into the parking lot where he ended up on the ground.
Officer LaMotte arrived at the scene and spoke with Klauer
while paramedics attended to Summerhill. Officer LaMotte then
filled out a crash report. As to the " Primary
Cause" of the accident, Officer LaMotte checked a box
labelled " Improper Turning." Defendant's Ex.
1. Summerhill had fractured his hip as a result of the
accident and had to be taken to the hospital. Officer LaMotte
later went to the hospital to speak with Summerhill.
Summerhill had plates and screws placed on his hip as a
result of his injuries and needed to use a walker and
crutches for several months. He amassed over $80,000 in
On September 21, 2012, Summerhill filed a complaint in the
trial court alleging, among other things, that Klauer had
failed to maintain reasonable care and control in the
operation of his motorcycle, had followed too closely, and
had driven at an unsafe speed under the conditions. Klauer
filed an answer denying the allegations.
Summerhill planned to call upon Timothy Spencer, an
experienced police officer and accredited accident
reconstructionist, to testify at trial. After visiting the
scene of the accident, speaking to Summerhill, and reviewing
photographs of the damage to the vehicles involved, Spencer
wrote up a report detailing his opinion as to the cause of
the accident. In this report, Spencer criticized Officer
LaMotte's crash report as follows:
Officer Lamotte's crash report indicates that Mr.
Summerhill was attempting a left turn at the time of the
crash. The statements of both drivers ostensibly corroborate
this, as they are written in the crash report. At this point,
however, the statements of the two drivers begin to differ.
Mr. Summerhill is listed in the crash report as having
indicated that he was traveling in the " middle of the
lane, signaled to turn left" when he began his turn into
the warehouse complex. Mr. Klauer is listed as having made
the claim that Mr. Summerhill was " driving on the fog
line and made a sudden left turn."
The Indiana Officer's Standard Crash Report lists the
primary cause of this crash as " Improper Turning"
and attributes this as a Driver Contributing Circumstance to
Mr. Summerhill. So, in common terms, the Officer listed Mr.
Summerhill as being at fault for " Improper
In my opinion, listing Mr. Summerhill as being at fault in
this crash was done in error.
[T]he implication seems to be that if a left turn was made
from the right side of a travel lane, that turn would be
" improper." Title 9 does not support this. It
would seem more appropriate to list " Improper
Passing" and/or " Following Too Closely" as
primary cause/causes and attribute these to Mr. Klauer.
Appellant's App. p. 47-49. Spencer had also produced an
animation of the crash, which Summerhill planned to present
On April 14, 2014, Klauer filed a motion to exclude Spencer
from testifying at trial. Klauer argued that Spencer's
testimony was inadmissible under Indiana Evidence Rule 702
because his opinions were not based on scientifically sound
analysis. On July 17, 2014, the trial court granted
Klauer's motion, reasoning as follows:
[T]he record indicates that Mr. Spencer merely took
Plaintiff's testimony, observations from a short amount
of time at the approximate location of the accident, and a
couple of photographs of one of the vehicles into account
when reaching his opinion that, not only is Defendant at
fault for the accident, but also what exactly occurred
between the two parties leading up to the crash, in order to
create his animation. Mr. Spencer has not explained in his
expert report how he can be so sure that Defendant was at a
certain position in his lane, how fast the parties were
going, how closely one party was to the other, etc.--all of
these being issues that Mr. Spencer cites as factors leading
to the cause of the crash. There is a significant gap between
the inputs used by Mr. Spencer and the opinion he reached as
evidenced in his expert report and animation video.
Therefore, Mr. Spencer has not exhibited the reliability of
his expert opinion evidenced in both his Expert Report and
Id. at 66. Accordingly, the trial court determined
that Spencer's testimony and animation were inadmissible
under Indiana Evidence Rule 702.
A jury trial commenced on March 2, 2015. The testimony of
several witnesses to the accident differed significantly.
Summerhill testified that he was in the center of the lane
and had his left turn signal on before he attempted his turn.
Another witness, Lindsay Sopcich, who claimed to have been
following behind Summerhill in her car when she witnessed the
accident, largely corroborated Summerhill's version of
events. On the other hand, Klauer testified that Summerhill
was on the right side of the lane and had his
right turn signal on before he attempted to turn left. Klauer
also called Sopcich's testimony into question, claiming
that there was no car between him and Summerhill when he
attempted his pass. Patrick and Brown both testified, largely
corroborating Klauer's version of events.
During trial, Officer LaMotte's crash report was entered
into evidence without objection. Tr. p. 362. Klauer also
presented the testimony of Steven Neese, an accident
reconstructionist. Neese used the testimony of different
witnesses, as well as pictures of damage to the vehicles, to
produce diagrams and animations showing how the accident
could have happened. The diagrams and animations differed
according to whose testimony Neese had used to produce them.
All animations showed Klauer attempting to pass Summerhill,
Summerhill turning left, and Klauer hitting the rear left
side of Summerhill's moped. They differed only as to
Klauer and Summerhill's initial positioning within the
lane. Summerhill did not object to the introduction of
Neese's testimony. Id. at 394.
Klauer also called upon Officer LaMotte to testify at trial.
During his testimony, the parties held a sidebar with the
trial court regarding whether Officer LaMotte should be
allowed to testify as to his opinion regarding the cause of
the accident. Id. at 369-79. Summerhill objected,
arguing that Officer LaMotte was not an accident
reconstructionist and any opinion he gave would not be based
upon scientifically sound principles. The trial court
sustained Summerhill's objection and Officer LaMotte was
not allowed to testify as to what he believed the cause of
the accident to be. Id. at 379.
The trial court made three more evidentiary rulings that were
adverse to Summerhill. First, in an attempt to impeach
Klauer's credibility, Summerhill sought to introduce
evidence that Klauer had been convicted of check deception in
1993. The trial court ruled that this evidence was
inadmissible under Indiana Evidence Rule 609, as Klauer's
conviction was well over ten years old. Summerhill also
sought to introduce the testimony of Dr. Erika Mitchell that,
because Summerhill had fractured his hip, " [h]e is more
likely to have post traumatic arthritis of that hip than
someone who has never had a fracture of the hip socket."
Appellant's Br. p. 20. The trial court determined that
this evidence was speculative and, therefore, inadmissible.
Finally, Summerhill sought to introduce evidence that Sopcich
called the police to report the accident the following
morning. Summerhill believed evidence was necessary to rebut
Klauer's implicit assertion that Sopcich had not
witnessed the accident. The trial court ruled that such