Steve Snyder, as Personal Representative of the Estate of Kimberly Snyder, Deceased, Appellant-Plaintiff,
Prompt Medical Transportation, Inc.; Humana Insurance Company; and St. Joseph Regional Medical Center, Appellees-Defendants
from the St. Joseph County Superior Court The Honorable Jenny
Pitts Manier, Judge Trial Court Cause No. 71D05-1311-CT-303
Attorneys for Appellant Jeffrey J. Stesiak Jerome W. McKeever
James P. Barth Pfeifer, Morgan & Stesiak South Bend,
Attorneys for Appellee Prompt Medical Transportation, Inc.
Sharon L. Stanzione Alan M. Kus Johnson & Bell, P.C.
Crown Point, Indiana
Attorney for Appellee St. Joseph Regional Medical Center
Robert J. Palmer May Oberfell Lorber Mishawaka, Indiana
Attorneys for Appellee Humana Insurance Company Kirstin B.
Ives Falkenberg Ives LLP Chicago, Illinois Michael P. Misch
Anderson Agostino & Keller, P.C. South Bend, Indiana
In 2013, Kimberly Snyder, a critically ill patient in need of
a lung transplant, was transported by ambulance from Indiana
to Pennsylvania. Along the way, the ambulance crew got lost,
and the lengthened trip caused the crew to run out of
Kimberly's sedation medication. She ultimately contracted
pneumonia and died a week later.
Her husband, Steve Snyder, as personal representative of her
estate (the Estate), filed a lawsuit against St. Joseph
Regional Medical Center (SJRMC), Prompt Medical
Transportation, Inc. (Prompt), and Humana Insurance Company
(Humana), alleging that their respective negligence resulted
in Kimberly's wrongful death. A medical review panel
unanimously found that Kimberly's death was not caused by
the actions of SJRMC and Prompt.
The trial court dismissed the Estate's claims against
Humana and granted summary judgment in favor of Prompt and
SJRMC. We affirm, finding as follows: (1) the trial court did
not err by striking the affidavits of the Estate's
untimely disclosed expert witnesses; (2) there is no genuine
issue of material fact with respect to the element of
causation; and (3) the Estate's claims against Humana are
preempted by federal law governing Medicare Part C.
On January 22, 2013, Kimberly was a cystic fibrosis patient
at SJRMC; she needed a lung transplant and SJRMC determined
that she should be transferred to a Pittsburgh hospital for
the transplant. Kimberly was insured under a Medicare
Advantage plan issued by Humana, which denied coverage for
air transportation to Pittsburgh. Therefore, SJRMC arranged
for Prompt to transport her by ambulance to the University of
Pittsburgh Medical Center (UPMC) for the transplant.
On January 23, 2013, Prompt employees arrived at SJRMC to
pick up Kimberly, who had been sedated, intubated, and put on
a ventilator in preparation for the trip. Throughout the
journey, Prompt continued Kimberly's sedation, regularly
checked her vital signs, and monitored the performance of her
Upon arrival to the Pittsburgh area, Prompt's employees
got lost because there was no hospital at the address they
had been given. They called UPMC for directions but the
hospital staff was unable to give directions from the
ambulance's location. The crew then called 911 for
directions to UPMC; the 911 operator was able to provide
directions and they got back on track. Traffic was very slow
due to rush hour. When the ambulance finally arrived at what
the crew believed was the correct hospital, they learned
that, in fact, they were at the wrong Pittsburgh hospital.
What should have been a 334-mile trip had turned into a 370-
to 395-mile trip.
During the lengthy ambulance transport, Kimberly's
condition had worsened significantly. She was not receiving
enough oxygen and began gagging on her breathing tube; there
is some evidence that they ran out of her sedation
medication. When Prompt arrived at the wrong hospital, a
physician on site evaluated Kimberly and decided to admit her
to the intensive care unit (ICU) at that location. The ICU
physician discovered a clot clogging Kimberly's breathing
tube and removed the clot; Kimberly then returned to stable
condition. The ICU staff told Prompt that they would arrange
for Kimberly's transfer to UPMC. Kimberly eventually
contracted pneumonia and died one week later, on January 30,
On November 26, 2013, the Estate filed a complaint for
wrongful death against Prompt. In its response, Prompt named
SJRMC and Humana as nonparties who may have contributed to
the Estate's damages. On May 12, 2014, the Estate filed
an amended complaint adding SJRMC and Humana as defendants.
The trial court stayed the litigation while a medical review
panel considered the Estate's claims against Prompt and
SJRMC. On September 14, 2016, the medical review
panel unanimously found that SJRMC complied with the
applicable standard of care and was not a factor in the
resultant damages. With respect to Prompt, one panel member
opined that Prompt breached the standard of care, but the
panel concluded unanimously that Prompt was not a factor in
the resultant damages.
On October 3, 2016, the trial court granted the Estate's
request to reinstate the court case. In October and November
2016, respectively, Prompt and SJRMC filed motions for
summary judgment. As part of its responses to these motions,
the Estate attached the affidavit of Dr. Joseph Pilewski, who
was one of Kimberly's treating physicians in Pittsburgh,
to rebut the opinion of the medical review panel. In December
2016, Humana filed a motion to dismiss, arguing that the
Estate's state law claim was preempted by the Medicare
Advantage preemption provision and that Humana was entitled
to official immunity.
On May 4, 2017, the trial court summarily granted
Humana's motion to dismiss and summarily denied the
motions for summary judgment. The Estate, Prompt, and SJRMC
sought to have the order certified for interlocutory appeal,
but this Court denied those requests.
The parties began preparing for a trial. On September 26,
2017, the trial court entered a pretrial order that included
a number of case management deadlines but did not include any
expert disclosure deadlines. On February 7, 2018, Prompt
filed a motion asking that expert disclosure deadlines be put
in place. The next day, the trial court entered an order
setting the Estate's expert disclosure deadline for April
12, 2018, and the defendants' expert disclosure deadline
for June 12, 2018. On April 12, 2018, the Estate disclosed
Dr. Pilewski as its only trial expert.
In the meantime, SJRMC and Prompt had filed a joint motion to
continue the trial; the Estate opposed the request. After
hearing argument, on May 3, 2018, the trial court vacated the
trial date, vacated the September 2017 pretrial order, and
reset the trial for April 2019. The order made no mention of
the expert disclosure deadlines. SJRMC and Prompt disclosed
their respective trial experts by the June 12 deadline.
In August 2018, Prompt and SJRMC both filed renewed motions
for summary judgment. The Estate opposed both motions. In its
response briefs, the Estate included affidavits of experts
that had not previously been disclosed to Prompt and SJRMC.
Prompt moved to strike those affidavits. On November 15,
2018, the trial court granted the motion to strike, noting
that "[n]o request from relief from the Court's
February 8, 2018 Order was filed by any party. That Order
remains in effect." Appellant's App. Vol. II p. 20.
Therefore, Dr. Pilewski's affidavit was the Estate's
only remaining expert evidence in opposition to summary
The Estate filed a motion to reconsider the order granting
the motion to strike the affidavits. The trial court denied,
reasoning as follows:
The Court's September 26, 2017 Pre-Trial Entry Order did
not contain deadlines for the disclosure of experts. . . .
[That order is] this Court's standard scheduling order.
This Court has used this template for over twenty (20) years
and "borrowed" it wholesale from the judge
previously occupying this office who, herself, used that
template for years. Plaintiff's counsel is familiar with
the template. Among its features is that . . . it does not
set expert disclosure deadlines. The Court will set expert
disclosure deadlines if asked. . . . By entering its separate
order of February 8, 2018, the Court established the manner
in which expert disclosures-and any request to [modify]
expert disclosure deadlines-would be addressed by the Court:
by way of separate order.
Moreover, the April 18, 2018 [fn 2] hearing on
Defendants' Joint Motion to Continue makes clear that
Plaintiff had one expert (whom Defendant's counsel
referred to at least twice at that hearing as
"Plaintiff's one expert"), without any
suggestion from Plaintiff that he intended to retain
additional experts. . . . Plaintiff argued repeatedly about
the need to get the matter tried, noting that the case had
been pending for a number of years. One would not
have concluded, listening to the arguments at that hearing,
that Plaintiff sought what would likely be further delay of a
trial by the addition of more experts.
[fn 2] It is noted that as of the date of this hearing,
Plaintiff's expert disclosure deadline had passed and the
Court had not entered its May 3, 2018 Order which . . .
Plaintiff argues vacated the expert disclosure deadline.
Thus, as of the April 18, 2018 hearing, Plaintiff had no
reason to believe he would be in a position to name
additional experts and made no request of the Court that he
be granted leave to do so.
. . . If Plaintiff sought . . . to bolster Dr. Pilewski's
testimony, and if Plaintiff believed the Court's orders
provided him yet with the time to disclose experts, one would
have expected Plaintiff to disclose those experts in the
manner that is typically done, not by first designating their
affidavits in his Opposition to the Renewed [Summary
Appellant's App. Vol. II p. 24-26 (emphasis original).
After briefing and argument was complete, on December 6,
2018, the trial court granted summary judgment in favor of
SJRMC and Prompt. In pertinent part, as to Prompt, the trial
court found that Dr. Pilewski's deposition testimony was
inadmissible with respect to the issue of causation because
it was speculative and unreliable. It also found that the
deposition testimony negated the existence of the necessary
foundation to support the opinions offered in his affidavit,
rendering that evidence also inadmissible. The trial court
focused on the following exchanges:
Dr. Pilewski testified to a period of instability experienced
by Kimberly  as a result of the sedative, the Versed,
wearing off. . . . Counsel, bringing Dr. Pilewski back to the
question of whether any period of instability on the
ventilator had "any effect or cause that led to her
death," draws the following response from Dr. Pilewski:
"Can I say that period of instability made her pneumonia
worse? No. I can ...