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 Thietje, on February 8, 2017 (DE #101); (2)

Plaintiff’s Motion for Partial Summary Judgment, filed 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. The Motion to Exclude

Opinion Testimony (DE #109) is DENIED. 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).

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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. (DE #109.) Plaintiff

filed an opposition on March 16, 2017. (DE #111.) 

Finally, Defendants filed a motion for oral argument on June

26, 2017. (DE #124.) Plaintiff filed a response in opposition on

June 26, 2017. (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’

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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 product of reliable

principles and methods; and

(d) the expert has reliably applied the principles

and methods to the facts of the case. 

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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 U.S. 137, 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). Generally, the expert witness must employ in the courtroom

the same level of intellectual rigor that characterizes the

practice of an expert in the witness’s field. Kumho, 526 U.S. at

152. 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. This “fit” analysis

essentially represents an inquiry 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,

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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.) Yet, Tumbas does not profess to be

an expert in these areas. 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. No one knew

where Rogers’ body was at the point of impact. 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. It is up to

the jury to weigh that expert evidence. 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 crossexamination 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 to serve as a

replacement for the adversary system.”). 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 of mechanical failures of any of the vehicles,

environmental conditions impacted the crash (light 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

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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

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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 Plaintiff’s experts for not conducting

scientific tests. 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. Owens, 297

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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 issue (whether Thietje’s truck

caused Rogers’ fatal injuries). 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). This type of

expert testimony is appropriate. 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). Not

every dispute between the parties makes summary 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. Grabach v. Evans, 196 F.Supp.2d

746, 747 (N.D. Ind. 2002). 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 party against whom the motion under

consideration is made. 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 225.5 on southbound

Interstate 65 in Jasper County, Indiana. 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. 

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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.) Rogers had

been following her husband, Ben Rogers, at the time. (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.” (Id. at 42.) Then, he called 911 to report the

accident. (Id.) Ben Rogers could not see what was going on with

her, and does not know what Ashley did after the phone call. (Id.

at 126.) 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. (Tumbas

Report at 3.) Thietje heard on the CB radio that there was a spinout 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. (Id. at 56-

57.) Thietje did not change lanes. (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. (DE #112 at 2-3; see

evidence cited therein). 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

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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. (Id. at 56-67.) Ben found

Ashley covered up with a blanket. (Id. at 51, 63.) 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 severe injuries and ultimately died at the

hospital. 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.” (Elwood Dep. at 86-87.) 

Trooper Elwood specifically 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.” (Griggs Dep. at

47.) 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

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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

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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

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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. What I was looking at,

that headlight, was gone. 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

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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 recover for bystander

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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

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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 Ashley Rogers and Benjamin Rogers to probable

injuries.” (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

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distress claim fails as a matter of law; and (2) punitive damages

are not recoverable through the adult wrongful death statute. (DE

#102 at 15.) 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

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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. (DE #110-2 at 10.) Dr.

Mkandawire lists extensive qualifications in his report, the

materials he reviewed (including deposition testimony and

photographs), and his ejection trajectory analysis. (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

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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. This is a classic question of fact for the

jury to decide. 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). Moreover, only the

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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. (Mkandawire Dep. at 165,

134-35.) Plaintiff notes that back 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

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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. The Motion to Exclude

Opinion Testimony (DE #109) is DENIED. The Motion for Oral

Argument (DE #124) is also DENIED. 

DATED: July 11, 2017 /s/ RUDY LOZANO, Judge

United States District Court 

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