In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1312

MISCHELLE MUSSER and MICHAEL MUSSER,

Plaintiffs-Appellants,

v.

GENTIVA HEALTH SERVICES, f/k/a Olsten Health Services,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 01:01CV-0085—William C. Lee, Judge.

____________

ARGUED SEPTEMBER 15, 2003—DECIDED JANUARY 28, 2004

____________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. Plaintiffs Mischelle and Michael

Musser, parents of the deceased Maverick Musser, appeal

the district court’s grant of summary judgment in favor of

the defendant, Gentiva Health Services, in this medical

malpractice case. Because the expert medical testimony

proffered by the Mussers in response to the motion for

summary judgment was properly excluded as a sanction

under Federal Rule of Civil Procedure 37(c)(1), and because
2 No. 03-1312

under Indiana law a prima facie case in medical malpractice cannot be established without expert medical testimony, we affirm.

I. History

 Maverick Musser was born prematurely on January 10,

1998, at a gestational age of approximately twenty-two

weeks. Maverick’s premature birth led to serious health

problems. He suffered from a condition known as bronchopulmonary dysplasia, a chronic lung disease commonly associated with premature birth. Tragically, Maverick spent

his entire life either hospitalized or under twenty-four hour

nursing care at his home. Maverick died on August 18,

1999. 

Along with constant nursing attention, Maverick’s family

relied upon various medical devices to sustain his life.

Maverick was dependent on a type of ventilator called

a CPAP, which provided “continuous positive airway pressure” to Maverick’s lungs. The CPAP machine was connected to Maverick by plastic air hosing attached to a tracheotomy tube, a plastic tube inserted through an opening

in the neck that provides a superior airway to the lungs.

The tracheotomy tube was secured by velcro ties placed

around his neck that prevented “decannulation,” the accidental removal of the tube. 

In addition, three monitors—a pulse oximeter, an apnea

monitor, and a low pressure alarm attached to the CPAP

machine—were used to measure Maverick’s pulse rate and

breathing. The pulse oximeter measured oxygen saturation

and heart rate; if the measurements fell below or exceeded

set parameters, an alarm audible throughout the first level

of the Musser home would sound. The low pressure alarm

monitored air pressure in the CPAP circuit; if pressure
No. 03-1312 3

1 The Mussers also unsuccessfully sued the company, Apria

Healthcare, that provided them with Maverick’s monitoring

equipment, but the Mussers have not pursued this case on appeal.

outside the parameters occurred or if Maverick decannulated, an alarm audible throughout the house would

sound. The apnea monitor measured Maverick’s heart rate,

respiration rate, and the size and depth of the breaths he

took; an alarm audible throughout the house would sound

if his vital signs fell below or exceeded the proper parameters. 

The present appeal arises out of a medical malpractice action brought under Indiana law against the nursing service,

Gentiva, that provided care for Maverick.1

 Maverick’s

mother, Mischelle Musser, a registered nurse, provided

some care to Maverick, but Gentiva provided most of the

nursing service. Three Gentiva employees monitored

Maverick on alternating twelve-hour shifts: registered

nurses Jodi Inskeep and Johanna Marshall, and licensed

practical nurse Dawn Kinzer.

On the evening of August 18, 1999, Kinzer began her shift

at 6:00 p.m. Deposition testimony favorable to the Mussers

establishes that Kinzer appeared to be ill and was taking

medication, leading to the inference that she was not as

alert as she might have been in monitoring Maverick.

Furthermore, Kinzer testified at her deposition that Maverick’s physical condition was “good” when she arrived for her

shift.

 Kinzer did not have the apnea monitor attached to

Maverick during her shift. She did not observe any movement from Maverick for more than five minutes before realizing that there was a problem. At approximately 7:35 p.m.,

Kinzer recognized that Maverick was in distress. Kinzer

asserts that the pulse oximeter alerted her to this fact, but
4 No. 03-1312

the Mussers stated in their depositions that they did not

hear an alarm sound. The pulse oximeter registered zero

and showed no pulse. Kinzer assessed Maverick, and

recognized that he had decannulated. Kinzer called for help

from Mischelle Musser; after calling for help, Kinzer unsuccessfully attempted to reinsert the tracheotomy tube

that had fallen out. Mischelle successfully inserted a different emergency tracheotomy tube. Both women performed

CPR on Maverick, but Mischelle testified at her deposition

that she corrected Kinzer’s technique. Mischelle could not

immediately find a needle to inject Maverick with epinephrine. Emergency personnel arrived and took Maverick to the

hospital, where he was pronounced dead.

The Mussers filed their malpractice complaint against

Gentiva in the Northern District of Indiana on February 20,

2001, properly invoking diversity jurisdiction. In due

course, as the case was pending, depositions of the witnesses previously disclosed by the Mussers were taken—

though none of those witnesses had been identified as

experts. During a hearing on April 22, 2002, deadlines were

established for the parties to “make their expert disclosures.” The deadline for the Mussers was set at June 1,

2002. Despite this deadline, the Mussers did not disclose or

identify any witness as an expert nor did they ever exchange or file expert reports. 

Gentiva moved for summary judgment on October 15,

2002, arguing that the Mussers could not present any

competent evidence on breach of duty. The Mussers, in response on November 19, 2002, presented the deposition

testimony of nurses Mischelle Musser, Dawn Kinzer, Jodi

Inskeep, Johanna Marshall, and Barbara Cromer (Gentiva’s

highest ranking employee in the Fort Wayne branch), as

well as the deposition testimony of William Smits, M.D.

(Maverick’s treating doctor), Harvey Bieler, M.D. (a doctor

who had treated Maverick during a stay at the hospital),

and Kevin Hinton (an Apria Healthcare employee). The
No. 03-1312 5

Mussers assert that, in the aggregate, the fact and opinion

testimony expressed by these witnesses raises a genuine

issue of material fact as to whether Kinzer breached her

duty of care through inattention to Maverick prior to his

death and incompetence in attempting to revive him. 

Countering the Mussers’ response, Gentiva sought to

strike the expert testimony of those witnesses. Gentiva

pointed out that the Mussers had not identified as medical

experts any of the witnesses previously deposed. The district court agreed, granted the motion to strike, and upon

the Mussers’ inability to show breach of duty, entered summary judgment in favor of Gentiva.

II. Analysis

Federal courts sitting in diversity cases such as this apply

the Federal Rules of Civil Procedure in procedural matters

and the state substantive law that applies to the cause of

action. Hayes v. Equitable Energy Res. Co., 266 F.3d 560,

566 (6th Cir. 2001). Therefore, the first step here is to

assess whether, under the Federal Rules of Civil Procedure,

the district court properly excluded the expert testimony of

witnesses proffered by the Mussers. Only then can we

analyze how, under Indiana law, the lack of expert medical

testimony affects the Mussers’ claims.

A. The Exclusion of Expert Testimony

For failure to disclose any of their witnesses as experts,

the district court sanctioned the Mussers by disallowing any

expert testimony to counter the motion for summary

judgment. We review a trial court’s discovery determinations, including the decision to exclude expert testimony,

under an abuse of discretion standard. Miksis v. Howard,

106 F.3d 754, 758 (7th Cir. 1997). “A court does not abuse
6 No. 03-1312

its discretion unless . . . (1) the record contains no evidence

upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of

law; (3) the decision is based on clearly erroneous factual

findings; or (4) the decision clearly appears arbitrary.”

Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000) (quotations omitted). 

Our first inquiry will be to assess the district court’s

application of Rule 26 regarding expert witnesses. The district court must apply the correct legal standards and not

reach an erroneous conclusion of law in forming the basis

for the sanction of exclusion. Salgado v. General Motors

Corp., 150 F.3d 735, 739 n.4 (7th Cir. 1998) (“A district

court would necessarily abuse its discretion if it based its

ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.”) (quoting Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). If the

district court incorrectly found a violation of the rules by

the Mussers, then excluding the evidence would necessarily

be an abuse of discretion. 

The other three inquiries under the abuse of discretion

standard are guided by Federal Rule of Civil Procedure

37(c)(1), the rule relied upon by the district court in excluding the expert testimony. This rule states in pertinent

part:

A party that without substantial justification fails to

disclose information required by Rule 26(a) . . . is not,

unless such failure is harmless, permitted to use as

evidence at a trial, at a hearing, or on a motion any

witness or information not so disclosed. In addition to

or in lieu of this sanction, the court, on motion and after

affording an opportunity to be heard, may impose other

appropriate sanctions.
No. 03-1312 7

Fed. R. Civ. P. 37(c)(1) (emphasis added). Thus, the text

of Rule 37(c)(1) guides our inquiry into whether the exclusion decision lacked evidence in the record, was based on

clearly erroneous factual findings, or was arbitrary. The

rule asks whether the sanctioned party had “substantial

justification” for the failure to comply with discovery rules

and whether the failure to comply is “harmless.” Fed. R.

Civ. P. 37(c)(1); see Sherrod, 223 F.3d at 612. Therefore, we

examine the rationale offered by the district court for exercising its discretion to exclude the Mussers’ expert testimony and decide—without substituting our own judgment

for that of the district court—if there is a reasonable basis

for the finding that the Mussers’ failure to disclose experts

lacked substantial justification and was not harmless to

Gentiva.

In reviewing an exclusion sanction, “we shall affirm

the judgment of the district court whenever we believe that

the district court chose an option that was among those

from which we might expect a district court reasonably to

choose.” Salgado, 150 F.3d at 739. Furthermore, “in a case

such as this where exclusion necessarily entails dismissal

of the case, the sanction must be one that a reasonable jurist, apprised of all the circumstances, would have chosen

as proportionate to the infraction.” Sherrod, 223 F.3d at 612

(quotations omitted). As an appellate court, our review of

the record is deferential, but where “no harm” can be found

to the non-sanctioned party, we will reverse. Id. at 613.

1. Expert Disclosure Under Federal Rule of Civil

Procedure 26

The Federal Rules of Civil Procedure divide potential

witnesses into three categories for the purposes of disclosure. The first group, fact witnesses, must be disclosed by

sending to the opposing party the name, address, and phone
8 No. 03-1312

number (if known) of each potential witness. Fed. R. Civ. P.

26(a)(1)(A). This includes anyone “likely to have

discoverable information that the disclosing party may use

to support its claims or defenses, unless solely for impeachment,” and the disclosure should identify the “subjects of

the information.” Id. 

The second and third groups, both consisting of witnesses

providing expert testimony, are differentiated by the

following rule:

(2) Disclosure of Expert Testimony

(A) In addition to the disclosures required [regarding fact witnesses] (1), a party shall disclose to

other parties the identity of any person who

may be used at trial to present evidence under

Rules 702, 703, or 705 of the Federal Rules of

Evidence.

(B) Except as otherwise stipulated or directed by

the court, this disclosure shall, with respect to

a witness who is retained or specially employed

to provide expert testimony in the case or whose

duties as an employee of the party regularly

involve giving expert testimony, be accompanied

by a written report prepared and signed by the

witness. The report shall contain a complete

statement of all opinions to be expressed and

the basis and reasons therefor; the data or

other information considered by the witness in

forming the opinions; any exhibits to be used as

a summary of or support for the opinions; the

qualifications of the witness, including a list of

all publications authored by the witness within

the preceding ten years; the compensation to be

paid for the study and testimony; and a listing

of any other cases in which the witness has
No. 03-1312 9

2 To the extent that this statement contradicts Richardson v.

Consolidated Rail Corp., 17 F.3d 213, 218 (7th Cir. 1994) (“A

doctor is not an expert if his or her testimony is based on . . .

observations during [treatment]; if testimony was not acquired or

developed in anticipation of litigation or for trial and if the

testimony is based on personal knowledge.”) (quotations omitted),

we note that Richardson was interpreting the pre-1993

Amendment Rule 26. Richardson relied on language in a case,

Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993), also decided

before the 1993 Amendment. More importantly, the text of the

current Rule 26(a)(2)(A) references the Federal Rules of Evidence

to determine what must be disclosed as expert testimony. Expert

testimony is designated as such by its reliance on “scientific,

technical, or other specialized knowledge.” Fed. R. Evid. 702.

Occurrence witnesses, including those providing “lay opinions,”

cannot provide opinions “based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid.

701. Thus, a treating doctor (or similarly situated witness) is

providing expert testimony if the testimony consists of opinions

based on “scientific, technical, or other specialized knowledge” regardless of whether those opinions were formed during the scope

of interaction with a party prior to litigation. Cf. O’Connor v.

Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14 (7th Cir.

1994) (noting that treating physicians are not exempt from the

requirements of Federal Rules of Evidence 702 and 703 because

“we do not distinguish the treating physician from other experts

when the treating physician is offering expert testimony regarding

causation”).

testified as an expert at trial or by deposition

within the preceding four years.

(C) These disclosures shall be made at the times

and in the sequence directed by the court. . . .

Fed. R. Civ. P. 26(a)(2) (emphasis added). Thus, all witnesses who are to give expert testimony under the Federal

Rules of Evidence must be disclosed under Rule 26(a)

(2)(A);2

 only those witnesses “retained or specially employed
10 No. 03-1312

to provide expert testimony” must submit an expert report

complying with Rule 26(a)(2)(B). The commentary to Rule

26 supports this textual distinction between retained

experts and witnesses providing expert testimony because

of their involvement in the facts of the case: a “treating

physician, for example, can be deposed or called to testify at

trial without any requirement for a written report.” Fed. R.

Civ. P. 26, cmt. 1993 Amendments, subdivision (a), para (2).

All of these disclosures should be in writing, signed by

counsel, and served to opposing counsel. Fed. R. Civ. P.

26(a)(4). Furthermore, each disclosure should be delivered

by the deadline for expert disclosures set by the trial judge

under Rule 26(a)(2)(C). 

The Mussers properly disclosed all of the witnesses they

proffered under Rule 26(a)(1)(A). In fact, each of these

witnesses was deposed by Gentiva in the regular course

of discovery. The district court, however, did not exclude all

of the potential testimony of the Mussers’ witnesses; it

merely found that the witnesses identified by the Mussers

should not be permitted to testify as expert witnesses. The

district court explained that the error made by the Mussers

was in confusing Rules 26(a)(1) and 26(a)(2): “[d]isclosing a

person as a witness and disclosing a person as an expert

witness are two distinct acts.” (Dist. Ct. Op. at 14.) Thus,

the witnesses could still testify as fact witnesses, but they

could not testify as experts.

The Mussers, however, contend that they did comply with

Rule 26(a)(2)(A) because Gentiva was in fact made aware of

the identity and records of all of their witnesses, and

Gentiva had an opportunity to depose these witnesses as to

their opinions. The Mussers assert that it would be a

pointless formality to disclose in writing a list of names of

persons already known to Gentiva through prior discovery,

this time with the designation “expert witness.” The

Federal Rules of Civil Procedure, however, demand this formal designation, as discussed above. The district court set
No. 03-1312 11

3 We need not reach the disputed issue of whether an individual

who serves in the capacity of “treating physician” (or any analogous position) may nonetheless be required to submit a report

under Rule 26(a)(2)(B). It is clear that there is some expert

testimony in the nature of the treating physician’s testimony that

does not require a report. But some district courts have suggested

that if the Rule 26(a)(2)(A) testimony exceeds the scope of

treatment and ventures into more general expert opinion testimony, a report may be necessary. See, e.g., Zarecki v. Nat’l R.R.

Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996); Wreath

v. United States, 161 F.R.D. 448, 449-50 (D. Kan. 1995); contra

McCloughan v. City of Springfield, 208 F.R.D. 236, 240-42

(continued...)

a specific date (June 1, 2002) for the disclosure of all of the

Mussers’ expert witnesses. The Mussers failed to comply

with this deadline. 

Formal disclosure of experts is not pointless. Knowing the

identity of the opponent’s expert witnesses allows a party to

properly prepare for trial. Gentiva should not be made to

assume that each witness disclosed by the Mussers could be

an expert witness at trial. Cf. Patel v. Gayes, 984 F.2d 214,

217-18 (7th Cir. 1993) (affirming, under the pre-1993

Federal Rules of Civil Procedure, the exclusion of expert

testimony as to duty of care from treating physicians when

they were not disclosed as experts). The failure to disclose

experts prejudiced Gentiva because there are countermeasures that could have been taken that are not applicable to

fact witnesses, such as attempting to disqualify the expert

testimony on grounds set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), retaining

rebuttal experts, and holding additional depositions to

retrieve the information not available because of the

absence of a report. In sum, we agree with the district court

that even treating physicians and treating nurses must be

designated as experts if they are to provide expert testimony.3
12 No. 03-1312

3 (...continued)

(C.D. Ill. 2002). In this case, we do not rely on the absence of

Rule 26(a)(2)(B) reports from the Mussers’ proffered experts in

deciding that the Mussers violated Rule 26. 

2. The Exclusion of Expert Testimony Under Federal Rule of Civil Procedure 37(c)(1)

The exclusion of non-disclosed evidence is automatic and

mandatory under Rule 37(c)(1) unless non-disclosure was

justified or harmless. Finley v. Marathon Oil Co., 75 F.3d

1225, 1230 (7th Cir. 1996). After determining that the

Mussers failed to comply with Rule 26(a)(2)(A), the district

court appropriately inquired into whether the Mussers had

a “substantial justification” for failing to disclose their expert witnesses, and whether the failure was “harmless” to

Gentiva. Fed. R. Civ. P. 37(c)(1). After considering these

factors, the district court excluded the testimony:

Disclosing a person as a witness and disclosing a person

as an expert witness are two distinct acts. Obviously,

opposing counsel will question a witness differently

(during a deposition or at trial) if the witness has been

designated as an expert, and is also provided the

opportunity to challenge the expert’s qualifications. In

the present case, although Gentiva knew that the

nurses and doctors were witnesses, Gentiva was deprived of the opportunity to question them as expert

witnesses. Gentiva has clearly suffered a harm. Additionally, the Mussers have shown no justification for

their failure to designate expert witnesses, other than

their erroneous assumption that disclosing a witness is

the same as disclosing an expert witness.

(Dist. Ct. Op. at 14-15.) The issue, then, is whether the

sanction of the exclusion of all the Mussers’ expert testimony was one “that a reasonable jurist, apprised of all the
No. 03-1312 13

circumstances, would have chosen as proportionate to the

infraction.” Sherrod, 223 F.3d at 612; Salgado, 150 F.3d at

740. 

The district court did not abuse its discretion in finding

that the Mussers lacked substantial justification. A misunderstanding of the law does not equate to a substantial

justification for failing to comply with the disclosure deadline. In Sherrod, we reversed the district court’s exclusion

of medical expert testimony, even though the final reports

were not filed by the deadline set by the court. 223 F.3d at

612-13. There, however, the experts had been designated as

such, preliminary reports had been filed, and both sides had

delayed discovery such that late final reports were justified.

Id. at 613. This is not a case where the disclosure was late

by a trivial amount of time. In fact, the Mussers never

attempted to disclose any witnesses as experts until the

defendants moved for summary judgment. Moreover, that

the defendant could have obtained the undisclosed information through its own efforts does not provide substantial

justification. See Doe v. Johnson, 52 F.3d 1448, 1464 (7th

Cir. 1995) (affirming the district court’s exclusion of

portions of an expert’s opinion testimony formed after that

expert’s deposition because it was not disclosed before trial,

despite the appellant’s contention that the appellee could

have obtained the opinions by asking the proper questions

at deposition). Given the necessity for expert testimony in

medical malpractice cases under Indiana law, as discussed

in detail infra, the Mussers should have known that expert

testimony was “crucial” to their case, and “likely to be

contested;” in these circumstances, there is not a substantial justification for failing to disclose experts. Dura Automotive Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 616

(7th Cir. 2002) (affirming the exclusion of expert testimony).

The district court did not abuse its discretion in finding

harm to Gentiva. It was the district court’s opinion that, in
14 No. 03-1312

this particular case, Gentiva was denied the opportunity to

question the witnesses in their expert capacity. This choice

is not outside the range of reasonable options available to

the district court. Salgado, 150 F.3d at 741-42 (holding that

the district court did not abuse its discretion in finding that

the incomplete and late submission of expert reports was

not harmless). 

By the time the district court ruled on the summary

judgment motion on January 8, 2003, there was less than

three months to the March 24, 2003 trial date. If the trial

had proceeded as planned (and there had already been a

four-month delay from the original trial date), Gentiva may

have had to rely on depositions conducted without the

knowledge that each of the witnesses would be used as

experts. This is not a case where ample time remained for

further discovery. See Sherrod, 223 F.3d at 613 (reversing

the exclusion of medical testimony because a trial date had

not yet been set, it “appeared a long way off,” and there was

therefore “no harm” or “unfair surprise” in allowing the

testimony). Had the Mussers submitted their list of experts

on June 1, 2002, Gentiva could have taken new depositions

of the Mussers’ witnesses, or taken whatever steps it

considered necessary to oppose the expert testimony offered

by these witnesses in the original depositions. Fed. R. Civ.

P. 26(b)(4). It is certainly true that the district court could

have rescheduled the date for trial and allowed more time

for depositions and new motions for summary judgment.

See, e.g., Kotes v. Super Fresh Food Mkts., 157 F.R.D. 18, 21

(E.D. Pa. 1994). But it is not an abuse of discretion to

conclude that the additional costs to Gentiva of preparing

a new summary judgment motion and further delay in

extending the trial date are not harmless. See CTS Corp.,

285 F.3d at 616 (concluding that an extension of discovery

was harmful because it burdened the defendant unreasonably).
No. 03-1312 15

In affirming this judgment, we are mindful of our warning that “[i]n the normal course of events, justice is dispensed by the hearing of cases on their merits.” Salgado,

150 F.3d at 740 (quoting Schilling v. Walworth County Park

and Planning Comm’n, 805 F.2d 272, 275 (7th Cir. 1986)).

We do not hold that a district court should always exclude

evidence in similar factual scenarios; in fact, well-reasoned

cases have come to the opposite result. See Brandon v.

Village of Maywood, 179 F.Supp.2d 847, 860 (N.D. Ill.

2001); Spearman Indus., Inc. v. St. Paul Fire & Marine Ins.

Co., 138 F.Supp.2d 1088, 1094-95 (N.D. Ill. 2001). We urge

district courts to carefully consider Rule 37(c), including the

alternate sanctions available, when imposing exclusionary

sanctions that are outcome determinative. In the present

case, however, we affirm the exclusion of expert testimony

as an appropriate exercise of discretion.

B. The Requirement of Expert Testimony in Indiana

Law

The district court granted Gentiva’s motion for summary

judgment because, after excluding all of the Mussers’ expert

medical testimony, there was no genuine issue of material

fact on the key issue of breach of duty and Gentiva was

therefore entitled to judgment as a matter of law.

We review a motion for summary judgment de novo. Ross v.

Town of Austin, 343 F.3d 915, 917 (7th Cir. 2003). Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). Rule 56 mandates the entry of summary judgment

against a party “who fails to make a showing sufficient to

establish the existence of an element essential to the party’s
16 No. 03-1312

case, and on which that party will bear the burden of proof

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The Mussers brought their complaint as a medical malpractice tort under Indiana law. To show medical malpractice, a plaintiff must establish that the defendant (1) owed

a duty to the plaintiff; (2) breached its duty by conduct

falling below the standard of care; and (3) proximately

caused a compensable injury through the breach of duty.

Whyde v. Czarkowski, 659 N.E.2d 625, 627 (Ind. Ct. App.

1995). A plaintiff must present expert testimony to establish the applicable standard of care and to show whether

the defendant’s conduct falls below the standard of care. Id;

Narducci v. Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App.

2000). 

Indiana law does recognize a “common knowledge”

exception, rooted in the doctrine of res ipsa loquitur, to

the rule that expert testimony is necessary in medical malpractice cases. This exception applies when “the complained-of conduct is so obviously substandard that one

need not possess medical expertise in order to recognize the

breach” of the standard of care. Malooley v. McIntyre, 597

N.E.2d 314, 319 (Ind. Ct. App. 1992). The use of this

exception has been limited to cases in which obvious mistakes have been made in surgery. See, e.g., Gold v. Ishak,

720 N.E.2d 1175, 1183 (Ind. Ct. App. 1999) (“[E]xpert

testimony is not required because a fire occurring during

surgery where an instrument that emits a spark is used

near a source of oxygen is not beyond the realm of the lay

person to understand.”); Weinberg v. Geary, 686 N.E.2d

1298, 1302 (Ind. Ct. App. 1997) (exception has been “narrowly construed” and is “typically [ ] limited to cases

involving the failure of an operating physician to remove

some surgical implement or other foreign object from the

patient’s body”). 
No. 03-1312 17

4 We note, but do not consider, the district court’s alternative

analysis disposing of the case on summary judgment even if all of

the evidence from the depositions was admitted for consideration.

USCA-02-C-0072—1-28-04

This is not an appropriate case to apply the “common

knowledge” exception. Medical expertise is required to

understand the appropriate standard of care in observing

Maverick for signs of distress, including the use of the

electronic monitors. Furthermore, medical expertise is

required to understand the appropriate standard of care for

reviving Maverick.

Because of the district court’s proper exercise of the

sanction of exclusion, the Mussers cannot present any expert testimony. Thus, they cannot establish that Gentiva,

through their employee Kinzer, breached the applicable

standard of care. Since the Mussers cannot establish a

necessary element of the claim as a matter of law, summary

judgment is appropriate.4

III. Conclusion

For the foregoing reasons, we AFFIRM the grant of summary judgment by the district court.

A true Copy:

Teste:

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit