author: BARNES, Judge.

text:
    Ryan E. BEAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 91A02-1109-CR-906.
    Court of Appeals of Indiana.
    Aug. 22, 2012.

      Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

In this consolidated appeal, Ryan Bean appeals his convictions for two counts of Class A felony child molesting. We reverse and remand.

Issue

The dispositive issue we address is whether the two trial courts properly introduced into evidence Bean’s confession to police.

Facts

On September 28, 2010, at about 2:30 p.m., detectives from Carroll and White Counties went to Bean’s residence in Lafayette, wanting to speak with him about allegations made by his daughter, H.B., and his niece, M.S., that he had molested them in both counties. The detectives found Bean at home and told him that they were investigating possession of child pornography. Bean consented to a search of his computer and also agreed to accompany the detectives to the Lafayette Police Station to talk about the child pornography allegations and “something else.... ” Suppression Tr. p. 38. An officer drove Bean to the station. He was not placed in handcuffs or told he was under arrest.

Bean was taken into a room at the station at 4:22 p.m., according to the time stamp on the video recording of his interrogation. Initially, Bean was asked basic identifying information. The discussion then moved to pornography that he had been downloading on his computer, including possible child pornography that Bean claimed he had not intended to download. At approximately 5:00 p.m., a detective made a point of showing Bean that the door to the room he was in was unlocked and that he could leave the building if he wanted to. Bean then said, “Do I need a lawyer?” App. p. 218. The detective then informed Bean of his Miranda rights, showed him a waiver of rights form that listed those rights, and specifically pointed out to Bean, “you’ll understand that somewhere in here it also says that you can stop talking to me anytime you want.” Id. at 219. Bean signed the waiver of rights form at 5:10 p.m. and continued speaking with the detectives.

After continuing to discuss pornography, a detective told Bean he wanted to “switch gears a little bit” and talk about his daughter, H.B., namely that she had accused Bean of having molested her. Id. at 236. Bean professed to be shocked at this allegation and denied having had any sexual contact with H.B. At approximately 5:50 p.m., after repeated denials of having molested H.B., the detectives told Bean they were leaving the room for a little while. Bean said, “Can I leave yet?” and one of the detectives responded, “Well, if you want to leave — that’s—you can leave at any time. Is that — you understood — but we’d like to come back and talk to you for a second. Okay? All right.” Id. at 243. Bean agreed to stay.

Very soon thereafter, one of the detectives returned to the room and began vigorously questioning Bean regarding allegations by his niece, M.S., that Bean had molested her. The detective told Bean repeatedly that he believed M.S. had told the truth and asked Bean to be honest. Bean continued denying any molestation occurred but did admit that M.S. might have once accidentally seen him masturbating to internet pornography. Bean eventually began crying and said, after repeated questioning by the detective, “Ah, apparently I put my finger in her vagina.” Id. at 262. Almost immediately thereafter, however, he said, “I’m making this up because I don’t know.” Id. at 263.

At 6:21 p.m., Bean said, “I mean the only thing else I can say is I want a lawyer so that way, you know, I don’t have to worry about — you know — saying I don’t know for the fifty-millionth time.” Id. at 264. The detective initially sat in silence while Bean continued talking and crying without admitting that he molested either H.B. or M.S. After a few minutes, the detective said, “Well, Ryan, without knowing what you did because you’re not telling me what you did- — you made the comment — I want a lawyer. You know, do you want a lawyer or do you wanna tell me what you did so we know what help to get [M.S.]. I’m, I’m confused right now. You tell me.” Id. A few minutes later, after repeated questioning by the detective as to whether he wanted a lawyer or to keep talking, Bean said, “And I told you — I, I want this to be done with.” Id. at 265. Still, the detective continued asking Bean whether he truly wanted a lawyer or to “get it cleared up?” Id. Bean said, “I do wanna get it cleared up,” by which he meant he wanted the detectives to believe his denials. Id. at 266. Again, the detective asked if Bean really wanted a lawyer, and Bean said, referring to the waiver of rights form, “I mean it says in there I can stop talking....” Id. Bean repeatedly said he did not know if he wanted to continue talking, but he eventually did so with both detectives in the room.

Bean continued to deny for some time that he ever molested either H.B. or M.S. in the face of repeated aggressive questioning by one of the detectives. At one point Bean said, “And I need you guys to be honest with me. If I do say that I did all this kinda stuff, you gonna take me to jail?” Id. at 270. Neither of the detectives gave a straightforward response to this question, instead saying, “you knew that right after it happened, you knew that if somebody ever found out about it, there would be consequences. Right?” Id. at 271.

Finally, at approximately 7:00 p.m., Bean began confessing that he had molested H.B. He stated that on one occasion, he was masturbating while viewing internet pornography when she came downstairs and saw him, and he asked her to put her mouth on his penis. He also described a second occasion when he purportedly saw her masturbating, then decided to rub his penis on her bottom while he felt her vagina. Bean also eventually stated with respect to M.S. that on one occasion, he kissed her while she rubbed his penis and he rubbed her vagina. After writing a letter apologizing to H.S. (but not explicitly stating that he had molested her), Bean was arrested at approximately 9:30 p.m.

The State charged Bean in Carroll County with three counts of Class A felony child molesting of H.B. It also charged him in White County with one count of Class A felony child molesting and one count of Class C felony child molesting with respect to M.S. and one count of Class A felony child molesting of H.B. In White County, the trial court granted Bean’s motion to sever the charges related to M.S. from the charge related to H.B. In each of Bean’s two jury trials regarding H.B., he filed motions to suppress his September 23, 2010, confession to police, which were denied by both trial courts. Bean renewed his objection to the confession at both trials. Bean was convicted in Carroll County of one count of Class A felony child molesting but acquitted of the other two counts, and he was convicted in White County of the one count of Class A felony child molesting related to H.B. Bean now appeals both convictions in this consolidated appeal. The outcome of Bean’s trial regarding M.S., or even whether there was such a trial, is not before us.

Analysis

Bean challenges the admission into evidence of his confession to police. Bean preserved his claim of error on this point through pretrial motions to suppress and trial objections. Our review of rulings for the admissibility of evidence is essentially the same regardless of whether the challenge is made through a pretrial motion to suppress or by trial objection. Jackson v. State, 890 N.E.2d 11, 15 (Ind.Ct.App.2008). In either case, we will not reweigh the evidence and will consider conflicting evidence in a light most favorable to the trial court’s ruling. Id. We must also, however, consider any undisputed evidence that is favorable to the defendant. Id. Furthermore, when a defendant preserves a claim of evidentiary error by contemporaneous trial objection, we may consider foundational evidence introduced at trial in conjunction with any evidence from a suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005). In the present case, there is no conflict between the evidence presented at the motion to suppress hearings and the trial evidence regarding Bean’s confession, and that evidence is undisputed as to what occurred.

Bean asserts that his confession should have been suppressed because it was obtained after he had invoked his Fifth Amendment right to counsel, as protected by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The purpose of Miranda and the warnings it prescribes are to protect a suspect’s Fifth Amendment privilege against self-incrimination “ ‘by placing reasonable limitations on police interrogations.’” Hendricks v. State, 897 N.E.2d 1208, 1214 (Ind.Ct.App.2008) (quoting Sauerheber v. State, 698 N.E.2d 796, 801 (Ind.1998)). A person who is to be subjected to custodial interrogation by law enforcement must be informed, per Miranda, of the right to remain silent and to an attorney. State v. Hicks, 882 N.E.2d 238, 241 (Ind.Ct.App.2008). If a person in custody unequivocally invokes his right to counsel, police must immediately and “ ‘scrupulously’ ” honor that request and cease all further interrogation, unless the suspect initiates further communication with the police. Carr v. State, 934 N.E.2d 1096, 1106 (Ind.2010) (quoting Miranda, 384 U.S. at 479, 86 S.Ct. at 1630). The requirements of Miranda apply only in the context of custodial interrogations “because they are meant to overcome the inherently coercive and police dominated atmosphere” of such interrogations. Collins v. State, 873 N.E.2d 149, 155 (Ind.Ct.App.2007), trans. denied.

The State contends that even if Bean made an unequivocal request for counsel, a point it does not concede, the police were not required to honor that request because he was not in custody at the time he made the request. If a person is not in custody, police are not required to honor a request for counsel and cease questioning. Kelley, 825 N.E.2d at 430. To be “in custody,” a suspect need not be placed under formal arrest. Morris v. State, 871 N.E.2d 1011, 1016 (Ind.Ct.App.2007), trans. denied. “Rather, a person is in custody if a reasonable person under the same circumstances would have believed that he or she was under arrest or not free to resist the entreaties of the police.” Id. We apply a totality of the circumstances test in determining whether a suspect was in custody, and “the mere fact that a person is not placed in handcuffs or otherwise physically restrained by the police does not necessarily mean a person is not in custody.” Id. at 1018. Conversely, the fact that an interrogation takes place at a police station or other “coercive environment” does not necessarily mean the suspect is in custody. See Luna v. State, 788 N.E.2d 832, 834 (Ind.2003).

The Seventh Circuit has compiled the following helpful list of factors commonly considered by courts in determining whether a person was in custody for purposes of Miranda: whether and to what extent the person has been made aware that he is free to refrain from answering questions; whether there has been prolonged, coercive, and accusatory questioning, or whether police have employed subterfuge in order to induce self-incrimination; the degree of police control over the environment in which the interrogation takes place, and in particular whether the suspect’s freedom of movement is physically restrained or otherwise significantly curtailed; and whether the suspect could reasonably believe that he has the right to interrupt prolonged questioning by leaving the scene. Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir.1996), cert, denied. Ultimately, the question of custody is an objective test based upon how a reasonable person in the suspect’s shoes would understand the situation and not upon the subjective views or beliefs of the interrogating officers and suspect. Loving v. State, 647 N.E.2d 1123, 1125 (Ind.1995).

Another factor present in this case is that Bean was advised of his Miranda rights well before he confessed. We recognize that some courts have held that the reading of Miranda rights to a suspect has no impact on a determination of whether the suspect was in custody for purposes of invoking those rights. See, e.g., United States v. Charles, 738 F.2d 686, 693 n. 6 (5th Cir.1984) (holding that “the precaution of giving a suspect Miranda warnings in a noncustodial setting does not either transform that setting into, or ‘help [ ] produce,’ a custodial interrogation for Miranda purposes”) (quoting United States v. Lewis, 556 F.2d 446, 449 (6th Cir.1977), cert. denied ), overruled on other grounds by United States v. Crawford, 52 F.3d 1303, 1307 n. 4 (5th Cir.1995). The Fourth Circuit has held that the reading of Miranda warnings does not “by itself create custody,” because “[i]t would convert admirable precautionary measures on the part of officers into an investigatory obstruction.” Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir.1985). However, the Davis court left open the possibility that there could be “circumstances where a clash of wills over a suspect’s desire to remain silent would create custody through overbearing police behavior.” Id. at 172 n. 1.

By contrast, the Seventh Circuit has said that “in the context of a prolonged detention where there is persistent, accusatory questioning by several officers, the fact that the police observed certain formalities of a custodial arrest,” such as the reading of the Miranda warnings, “does provide some support for an inference that [a suspect is] in custody for purposes of Miranda.” Sprosty, 79 F.3d at 642. Similarly, the Tenth Circuit has held, “Although giving a Miranda warning does not, in and of itself, convert an otherwise non-custodial interview into a custodial interrogation, it is a factor to be considered by the court.” United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir.1998), cert. denied. The Bautista court explained:

If the authorities are free to tell a suspect that he has the right to appointed counsel, but could, while continuing to interrogate him, refuse to provide such counsel on the grounds that the suspect was not actually in custody, the suspect would be led to believe that no request for counsel would be honored. “The coercive effect of continued interrogation would thus be greatly increased because the suspect would believe that the police ‘promises’ to provide the suspect’s constitutional rights were untrustworthy, and that the police would continue to violate those rights as they wished, regardless of assurances to the contrary.” We do not suggest that a person can invoke his Miranda rights anticipatorily in any situation, i.e., in a context other than custodial interrogation .... However, law enforcement officers are not free to give the Miranda warning and then blatantly ignore a suspect’s attempt to invoke any right thereunder.

Bautista, 145 F.3d at 1150-51 (quoting Tukes v. Dugger, 911 F.2d 508, 516 n. 11 (11th Cir.1990), cert. denied).

We find ourselves in agreement with the view of the Seventh, Tenth, and Eleventh Circuits. That is, we would agree that although the giving of Miranda warnings should not automatically render a suspect “in custody,” neither should the giving of such warnings be irrelevant in that analysis. In fact, it is unclear to us what purpose the reading of Miranda rights to a suspect should serve, if police did not intend to honor an invocation of those rights. One such possible purpose would be to encourage a suspect to incriminate him- or herself by providing a false sense of security that such rights existed, only to have the rug pulled out from underneath them when an attempt to invoke those rights is ignored. This would ten Miranda on its head and potentially eviscerate its core purpose of ameliorating the coercive nature of a police dominated atmosphere. See Collins, 873 N.E.2d at 155. Moreover, it is unclear what a suspect could be told, after he or she had already been read the Miranda warnings in the context of an adversarial interrogation in a police-dominated atmosphere but police ignored an earlier invocation of those rights. We strongly suspect that a re-reading of those warnings in such a situation, once a suspect was “truly” in custody, would be largely ineffective to protect the suspect’s Fifth Amendment rights.

In Luna, our supreme court addressed a scenario in which a suspect drove himself to a police station at an officer’s request to discuss molestation allegations that had been made against him. The suspect was told that he did not have to talk to the police, that he was not under arrest, and that he was free to leave at any time. Within about one hour’s time, the suspect admitted to molesting the child and was then permitted to leave the station. On appeal, a majority of this court reversed the defendant’s molestation conviction, holding he was “in custody” when he confessed and erroneously was not informed of his Miranda rights before he did so. Luna v. State, No. 79A02-0201-CR-33, 775 N.E.2d 404 (Ind.Ct.App. Sept. 17, 2002). Our supreme court granted transfer and affirmed the conviction, stating, “a person who goes voluntarily for a police interview, receives assurances that he is not under arrest, and leaves after the interview is complete has not been taken into ‘custody’ by virtue of an energetic interrogation so as to necessitate Miranda warnings.” Luna, 788 N.E.2d at 834 (citing Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). The Luna court also quoted from the dissent of the author of this opinion: “ T believe the proof is in the pudding here,’ ” meaning the police had kept their word that the defendant would be free to leave after making his statement. Id. at 833 (quoting Luna, No. 79A02-0201-CR-33, slip op. at 8 (Barnes, J., dissenting)). See also Fans v. State, 901 N.E.2d 1123, 1126-27 (Ind.Ct.App.2009) (holding mentally disabled suspect was not in custody where he voluntarily went to police station with mother, total interview lasted approximately two hours, and he was allowed to go home after confessing to molesting his daughter), trans. denied.

By contrast, we held that a child battery suspect in Moms was in custody when she finally made a confession and improperly was not advised of her Miranda rights. The suspect voluntarily went to the police station to give a statement regarding the death of a child she had been babysitting. She was initially informed that she was not under arrest, had no obligation to be there, and could leave at any time. She first was interviewed by one officer, denied any wrongdoing, and asked to leave. While she was starting to walk home and still in the police station parking lot, a different officer approached her and asked her to talk some more, and she agreed. After again denying wrongdoing, the suspect went to the police station lobby to wait for two other people to complete them interviews on the same topic. While waiting, a third officer approached the suspect and asked her to talk some more, and she agreed. During this third interview, conducted about four to five hours after first arriving at the station, the suspect confessed to having battered the child. It was only after this confession that the suspect was read her Miranda rights. We held that as of the third interview, the suspect was effectively in custody because “a reasonable person in [the suspect’s] position would not have felt free to resist the entreaties of the police at that time.” Morris, 871 N.E.2d at 1018.

This case falls in between Luna and Morris on the “in custody” spectrum. After considering all the facts and circumstances of this case, we conclude Bean was in custody when he finally confessed to having molested H.B., even if he was not formally arrested at that time and even if he had technically been told he was free to leave the station at any time and to not talk to police.

First, neither Bean nor an acquaintance of his drove him to the station — a police officer did. By itself, this does not establish that Bean was in custody, but it would have complicated his efforts to leave the station if he did not want to continue talking to police. This is unlike the situation in Luna, where the suspect appears to have agreed to transport himself to the police station at a pre-agreed time and was able to transport himself away from the station thereafter.

Second, the officers who spoke to Bean at his residence did not tell him the real reason they wanted to speak with him. Instead, they led him to believe he was under investigation for child pornography. Although that is a serious crime, it was only after Bean had been at the station for about an hour and a half that he was told of the real reason for the interrogation— an accusation by his daughter and niece that he had molested them. Such accusations were dramatically more serious than what he was led to believe would be discussed at the station and substantially changed the tenor of the interrogation. Such a “bait and switch” would most probably lead a reasonable person to feel much less likely to be permitted to simply walk out of the police station.

Third, the questioning in this case was clearly aggressive and fairly lengthy. Bean repeatedly denied molesting either H.B. or M.S., but the officers continued insisting that children would not make up molestation allegations. By the time Bean finally confessed, he had been at the station for nearly two-and-a-half hours and been subjected to questioning regarding criminal activity for approximately two hours. We also note that at one point, Bean asked if he could leave and one of the detectives responded, “Well, if you want to leave — that’s—you can leave at any time. Is that — you understood — but we’d like to come back and talk to you for a second. Okay? All right.” App. p. 243. This might not have compelled Bean to stay, but on the other hand it strongly encouraged him to do so.

Fourth, we note that unlike cases such as Luna and Faris, Bean in fact was not allowed to return home after he finally confessed. At one point before he confessed Bean tried to ask if he would be allowed to go home if he told the officers what they apparently wanted to hear, and they failed to provide a direct answer to that question. A reasonable person in Bean’s situation at that point might have felt he or she was in a “Catch-22”: to either continue denying wrongdoing indefinitely, with police refusing to accept those denials, or to confess and face immediate arrest. Thus, there was no “proof in the pudding” here — instead, he was arrested after having given his statement.

We need not decide whether these factors alone would have been enough to render Bean in custody at the time of his confession. The crucial factor here that leads us to believe that Bean was in custody when he finally confessed is that he had been advised of the Miranda rights to remain silent and to an attorney, that he had invoked those rights, and that police continued questioning him anyway. Indeed, this case differs from Luna, Morris, and many others in that the question in those cases was whether the suspect should have been advised of their Miranda rights; Bean, by contrast, was advised of those rights and tried to invoke them, albeit unsuccessfully.

After considering the totality of the circumstances, including but not limited to police informing Bean of the Miranda rights, we conclude that Bean was in custody when he finally gave his confession because a reasonable person would not have felt free to leave the police station at that point. The facts here are even more indicative of custody than those of Ackerman v. State, 774 N.E.2d 970, 979 (Ind.Ct.App.2002), trans. denied, where we found a suspect to be in custody where she was “transported from home with no obvious means of returning, had admitted possible illegal activity to police, and then finally was advised of her Miranda rights....” At the time of Bean’s confession, he was in custody but had either (a) not been meaningfully informed of his Miranda rights or (b) had earlier invoked those rights.

The State also argues that even if Bean was in custody when he confessed, he had not unambiguously invoked his right to counsel. An accused’s request for counsel must be unambiguous and unequivocal. Anderson v. State, 961 N.E.2d 19, 26 (Ind.Ct.App.2012), trans. denied. Cessation of police questioning is not required if a suspect’s reference to an attorney is ambiguous or equivocal, such that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel. Id. Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. Id. The request must be made with sufficient clarity such that a “reasonable police officer under the circumstances would understand the statement as a request for an attorney.” Id.

In Anderson, we found the invocation of the right to counsel unequivocal where the defendant said, “I really would like to talk to an attorney or something,” and his right to counsel should therefore have been “ ‘scrupulously honored.’ ” Id. (quoting Miranda, 384 U.S. at 479, 86 S.Ct. at 1630). Bean’s statement in the ease before us was equally unequivocal: Bean said, “I want a lawyer so that way, you know, I don’t have to worry about — you know— saying I don’t know for the fifty-millionth time.” App. p. 264. Questioning should have ceased at this point.

Additionally, the State asserts that Bean reinitiated conversation with the police after saying he wanted an attorney. Once a suspect invokes the right to counsel, further interrogation is allowed only when it is shown that the accused initiated further discussions and knowingly and intelligently waived the right to counsel he or she had earlier invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 493, 88 L.Ed.2d 488 (1984). Bean did continue speaking after saying “I want a lawyer.” However, these statements were rambling and made while Bean was crying. Contrary to the State’s assertion, Bean made no confession in these statements. Rather than cease further communications with Bean, the detective instead repeatedly attempted to prod Bean into either confessing or “clarifying” whether he really wanted counsel. These “persistent resumptions of communication after the defendant’s invocation of rights” were improper. See Carr, 934 N.E.2d at 1107. Moreover, after the detective made several attempts to “clarify” whether Bean wanted a lawyer, Bean stated, “And I told you — I, I want this to be done with.... Over.” App. p. 265. In combination with Bean’s earlier unequivocal invocation of his right to counsel, this unequivocal invocation of his right to silence should have been honored. But it was not. As such, we conclude that Bean’s ultimate confession was obtained in violation of Miranda and should have been suppressed.

The State further argues that even if the trial courts erred in admitting Bean’s confession, any such errors were harmless. A federal constitutional error in the admission of evidence may be harmless, but only if it can be deemed harmless beyond a reasonable doubt. Carr, 934 N.E.2d at 1107. It is not enough that there might be sufficient evidence of guilt without the erroneously admitted evidence; its admission must be harmless beyond a reasonable doubt. Koenig v. State, 933 N.E.2d 1271, 1272 (Ind.2010). To be harmless, the erroneously admitted evidence must be unimportant in relation to everything else considered by a jury on the issue in question. Anderson, 961 N.E.2d at 28.

We cannot reach that conclusion here. Aside from the confession, there was no evidence to support Bean’s convictions aside from H.B.’s testimony, which was vague in parts and lacked detail. It simply is impossible to say that a jury would not have considered Bean’s confession to be important in either trial. We note, moreover, that the Carroll County jury acquitted Bean of two of the molestation charges against him. Bean’s confession related one act of molestation against H.B. in Carroll County while H.B.’s testimony alleged several acts. We, therefore, reverse both of Bean’s molestation convictions. Because there is no claim of insufficient evidence to support those convictions, he may be retried. See Carr, 934 N.E.2d at 1109.

Conclusion

Bean’s confession was obtained in violation of Miranda protocol and should not have been admitted into evidence in either trial. Those errors were not harmless and must result in reversal of his molestation convictions in Carroll and White Counties. We reverse and remand for retrials, if the State so chooses.

Reversed and remanded.

FRIEDLANDER, J., and MAY, J., concur.

      . Given our resolution of this issue, we need not address Bean's argument regarding an unpreserved claim of improper vouching testimony and his claims of sentencing error.

      . A motion to suppress alone is insufficient to preserve a claim of error. Neukam v. State, 934 N.E.2d 198, 201 (Ind.Ct.App.2010).

      . The Sprosty court held that the suspect was in fact in custody at the time of his interrogation by police, based in part (but not exclusively) on the fact that Miranda warnings had been read to him, but held there was insufficient evidence for habeas corpus purposes that the suspect had invoked his right to counsel. Sprosty, 79 F.3d at 643.

      . It is unclear to us that the meaningless giving of Miranda warnings when police will not honor an invocation of rights is an "admi-rabie precautionary measure[],” as stated by the Fourth Circuit. We are not sure "precautionary” is the correct or apt word.

      . Ackerman addressed whether a suspect was in custody for purposes of advising her of her right to counsel before consenting to a search under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). This court has noted that the same "custody” analysis applies to Pirtle questions as it does to Miranda issues. Morris, 871 N.E.2d at 1017-18.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    Ashley T. TUCKER, Appellant-Plaintiff, v. Michelle R. HARRISON, M.D., Appellee-Defendant.
    No. 79A05-1108-CT-404.
    Court of Appeals of Indiana.
    Aug. 22, 2012.

      Gloria J. Danielson, Daniel A. Laden-dorf, Ladendorf & Ladendorf, Indianapolis, IN, Attorneys for Appellant.
    Jon M. Pinnick, Schultz & Pogue, LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Ashley Tucker filed a medical malpractice complaint against Dr. Michelle Harrison, alleging Dr. Harrison’s negligence in performing a surgical procedure damaged her ovaries and left her infertile. A jury found in favor of Dr. Harrison and Tucker now appeals, raising three issues for our review: 1) whether the trial court abused its discretion in excluding testimony from one of Tucker’s expert witnesses; 2) whether the trial court abused its discretion in denying Tucker the opportunity to question witnesses about possible financial bias; and 3) whether the trial court abused its discretion in refusing to give the jury a res ipsa loquitur instruction. Concluding the trial court did not abuse its discretion in excluding Tucker’s expert testimony, limiting her questioning of a witness about possible bias, or in instructing the jury, we affirm.

Facts and Procedural History

On October 1, 2004, Dr. Harrison, a physician with a specialty in obstetrics and gynecology, performed an exploratory la-paroscopic surgery on then-twenty-year-old Tucker to try to determine the cause of Tucker’s severe abdominal pain and cramping. Dr. Harrison was specifically looking for endometriosis or adhesions, but had also discussed with Tucker the possibility of finding ovarian cysts. Dr. Harrison and Tucker agreed that if cysts were determined to be the problem, Dr. Harrison would remove them during the procedure. Dr. Harrison did not find any endometriosis or adhesions during the exploratory surgery, but she did find a small cyst on each ovary. As there appeared to be no other cause for Tucker’s pain, Dr. Harrison performed a bilateral ovarian cystectomy with monopolar electrocautery scissors, as she had in “hundreds” of other cystectomies. Transcript at 222. Dr. Harrison described nothing unusual during Tucker’s surgery, and at a follow-up appointment approximately three weeks later, Tucker reported that she was feeling well and her pain had resolved. Several months later, Tucker learned that her ovaries had failed and she was permanently sterile.

Tucker filed a medical malpractice complaint against Dr. Harrison, alleging that Dr. Harrison was negligent in performing the procedure and caused the ovarian failure. A medical review panel delivered a unanimous decision that Dr. Harrison did not breach the standard of care, and the case moved to the trial court. In May 2010, Tucker sent notice of her intention to serve non-party requests for production on the Indiana Patient’s Compensation Fund, the Indiana State Medical Association, and each member of the medical review panel, seeking to uncover evidence of possible financial bias. Dr. Harrison objected and filed a motion to quash. Following a hearing, the trial court granted Dr. Harrison’s motion to quash, finding that Tucker would not be allowed to question trial witnesses about financial bias of this nature and therefore the discovery would not lead to admissible evidence.

A multi-day jury trial began on July 18, 2011. Tucker tendered as evidence the videotape deposition of Dr. Michael Freeman, Ph.D., an epidemiologist, regarding the statistical probability that the surgery caused Tucker’s injuries. On Harrison’s motion, the trial court allowed the deposition to be read into the record, minus the probability testimony. At the conclusion of the testimony, Tucker requested the trial court give a res ipsa loquitur instruction to the jury. Dr. Harrison objected, and the trial court declined to give the instruction. The jury returned a verdict for Dr. Harrison and against Tucker. Tucker now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Expert Witness Testimony

Tucker first contends the trial court erred in excluding the probability testimony of her expert witness, Dr. Freeman. Dr. Freeman is a forensic epidemiologist, which he described as “the scientific field that deals with populations of people and the kinds of injuries or diseases they get and what causes those injuries and diseases [... ] doing statistical analysis of what you find in the populations in order to draw conclusions that are reliable.” Tr. at 149. Dr. Freeman has a Ph.D. in public health and some medical training, although he is not a medical doctor. Dr. Freeman gave a deposition for purposes of trial that was read into the record. Prior to doing so, Dr. Harrison objected to some of Dr. Freeman’s testimony, and the trial court ordered that certain portions of Dr. Freeman’s testimony were to be excluded. The trial court allowed Dr. Freeman’s testimony that “one in seven hundred procedures every year done in women in [Tucker’s] age group resulted in iatrogenic[] ovarian failure,” id. at 162, but excluded his testimony that one in 270,000 women in Tucker’s age group who have not had the procedure suffer ovarian failure and thus,

the risk of having this procedure versus the risk in an entire year that this condition would occur greatly favors the procedure. The procedure is far, far more likely, more than 99 percent more likely to be the cause of ovarian failure when it occurs after someone’s had that procedure, rather than it occurring coincidentally and not due to the procedure.

Appellant’s Appendix at 143 (quoting from Dr. Freeman’s complete deposition).

A. Standard of Review

The admissibility of an expert’s testimony is governed by Evidence Rule 702, which provides:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

In order for a witness to qualify as an expert, “(1) the subject matter [must be] distinctly related to some scientific field, business or profession beyond the knowledge of the average lay person; and (2) the witness [must be] shown to have sufficient skill, knowledge or experience in that area so that the opinion will aid the trier of fact.” Bacher v. State, 686 N.E.2d 791, 800 (Ind.1997). The proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles and tests upon which the expert’s testimony is based. McGrew v. State, 682 N.E.2d 1289, 1290 (Ind.1997). Once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.” Bennett v. Richmond, 960 N.E.2d 782, 786-87 (Ind.2012) (quotation omitted).

In determining whether expert testimony is reliable, the trial court acts as a “gatekeeper” to ensure that the expert’s testimony rests on a sufficiently reliable foundation and is relevant to the issue at hand so that it will assist the trier of fact. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809, 812 (Ind.Ct.App.2000), trans. denied. “When faced with a proffer of expert scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Hannan v. Pest Control Servs., 734 N.E.2d 674, 679 (Ind.Ct.App.2000), trans. denied. There is no specific test or set of factors which must be considered in order to satisfy Evidence Rule 702(b), but some relevant considerations include whether the theory or technique can be empirically tested, whether it has been subjected to peer review and publication, and whether it has gained widespread acceptance. Id. at 679-80. Ultimately, deciding whether expert testimony is admissible is a matter within the discretion of the trial court. Wallace, 730 N.E.2d at 812. We will reverse a trial court’s decision to exclude evidence only if that decision “is clearly against the logic and effect of the facts and circumstances before the Court, or the reasonable, probable and actual deductions to be drawn therefrom.” Id. (quotation omitted). We presume that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade us that the trial court has abused its discretion. Bennett, 960 N.E.2d at 786.

B. Excluding Dr. Freeman’s Testimony

Tucker contends the trial court abused its discretion in excluding Dr. Freeman's probability testimony about causation because Dr. Freeman satisfied all the requirements for offering his expert opinion. There seems to be no dispute that Dr. Freeman has sufficient education and experience in the field of epidemiology, a field beyond the knowledge of the average lay person. We therefore focus our discussion on whether his testimony is relevant to the issue at hand and would assist the trier of fact.

The elements of a medical malpractice case are that: (1) the physician owed a duty to the plaintiff; (2) the physician breached that duty; and (8) the breach proximately caused the plaintiffs injuries. Cutter v. Herbst, 945 N.E.2d 240, 247 (Ind.Ct.App.2011). The pertinent issue in this case is whether the surgery as performed by Dr. Harrison was a proximate cause of the ovarian failure and subsequent infertility suffered by Tucker. See Singh v. Lyday, 889 N.E.2d 342, 357 (Ind.Ct.App.2008) (“To hold a defendant liable for a plaintiffs injury, the defendant’s act or omission must be deemed to be a proximate cause of that injury.”) (internal quotation omitted), trans. denied.

The parties have not cited, and our research has not disclosed, any Indiana case directly addressing the admissibility of epidemiological evidence, in a medical malpractice case or otherwise. Tucker notes that epidemiological testimony has been accepted in litigation across the country, citing several cases from other jurisdictions, and urges that it be allowed here as well. For instance, in Mendes-Silva v. U.S., 980 F.2d 1482, 1485 (D.C.Cir.1993), the circuit court held epidemiological expert opinion testimony purporting to show a link between the plaintiffs encephalo-myelitis and the combined administration of two vaccines on the same day was admissible and sufficient to withstand summary judgment in a federal tort claims action. The circuit court in Ellis v. Int’l. Playtex, Inc., 745 F.2d 292, 305 (4th Cir.1984), held the district court committed reversible error in excluding as hearsay epidemiological studies indicating a statistically significant link between tampon use and Toxic Shock Syndrome in an action against a manufacturer alleging tampons caused the death of a user. Accord Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613, 620 (8th Cir.1983) (holding epidemiological studies analyzing statistical relationship between tampon use and incidents of toxic shock syndrome were admissible testimony over a hearsay objection in products liability action). Though not using the word “epidemiology,” several Indiana cases have considered the admissibility of expert testimony of causation in similar situations. See Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind.Ct.App.2005) (holding expert testimony that exposure to diesel fumes and asbestos at work played a significant role in decedent’s lung cancer was admissible), tram, denied; Hottinger v. Trugreen Corp., 665 N.E.2d 593 (Ind.Ct.App.1996) (holding expert testimony regarding correlation between plaintiffs injuries and herbicide exposure was admissible), overruled on other grounds by Dow Chem. Co. v. Ebling ex rel. Ebling, 753 N.E.2d 633 (Ind.2001).

None of these cases, however, are medical malpractice cases and they are therefore not directly applicable. As noted in DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941 (3d Cir.1990), which discussed epidemiological evidence of the statistical relationship between a morning sickness drug and birth defects, “[ejpide-miological studies do not provide direct evidence that a particular plaintiff was injured by exposure to a substance.” Id. at 945. The instrumentality in the cited cases was the same for the entire statistical population — administration of drugs, use of tampons, or exposure to a given substance — and the epidemiological studies were but circumstantial evidence of cause and effect. The question here, however, is not whether this type of surgery is associated with an increase in ovarian failure; the question is whether Dr. Harrison’s negligence in performing the surgery caused Tucker’s ovarian failure. See id. at 945 n. 6 (“Epidemiological evidence, like other generalized evidence, deals with categories of occurrences rather than particular individual occurrences. Epidemiological studies address questions such as ‘Does exposure to this chemical increase the incidence of cancer in a population?’ but not ‘Did exposure to this chemical cause a particular person’s cancer?’ ”) (quoting Dore, A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-in-Fact, 7 Harv. Envtl. L. Rev. 429, 436 (1983)).

Dr. Freeman’s testimony was based upon a statistical analysis of a population of women aged eighteen to twenty-two who had “a procedure on the ovaries of any kind” in a period of time encompassing Tucker’s surgery. Tr. at 162. He did not base his opinion upon any analysis of Tucker’s physical condition or of Dr. Harrison’s medical care. In fact, he testified that determining whether “any malpractice on the part of Dr. Harrison caused Ashley Tucker’s ovarian failure” is “beyond the scope of what I do and beyond the scope of my expertise.” Id. at 171. An expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field. Hannan, 734 N.E.2d at 679. In Bennett v. Richmond, 960 N.E.2d 782, 789 (Ind.2012), a psychologist who personally evaluated the plaintiff in a personal injury ease was qualified to offer his expert opinion that the plaintiff suffered a traumatic brain injury as a result of a car accident despite not being a medical doctor, because he “clearly demonstrated” his knowledge and experience with traumatic brain injuries and his familiarity with the specific facts of the case. Cf. Dan Cristiani Excavating Co., Inc. v. Money, 941 N.E.2d 1072, 1080 (Ind.Ct.App.2011) (holding certified nurse life care planner was properly allowed to testify as an expert regarding the life care plan — a list of anticipated future health and medical needs and expenses over the plaintiffs remaining life expectancy as determined from her review of reports and opinions of physicians about the treatments, procedures, and care the plaintiff would require — because it was clear she was not offering a medical opinion about future treatment and her testimony was limited to her specific area of expertise).

Dr. Freeman is not a medical doctor. He may be qualified to offer a mathematical opinion, but he was not shown to be qualified to offer a medical opinion as to causation. Tucker is required to show that Dr. Harrison was the proximate cause of her injuries. Testimony establishing that the fact of a surgery makes ovarian failure more likely could mean that Dr. Harrison did everything right and ovarian failure is simply a risk of having any sort of ovarian surgery. It does not establish a causal relationship between Dr. Harrison’s acts or omissions and Tucker’s injury. Although probability testimony may be appropriate in certain circumstances, here, allowing Dr. Freeman to testify it was ninety-nine percent more likely that the surgery caused ovarian failure than that it was coincidence is not relevant to nor would it assist the jury in making the determination of whether Dr. Harrison’s performance of the bilateral cystectomy caused Tucker’s ovarian failure, and it runs the substantial risk of misleading the jury. See Ind. Evidence Rules 401 and 403 (relevant evidence has any tendency to make the existence of a fact is in issue more or less probably but may be excluded if its probative value is substantially outweighed by the danger of confusion of the issues or misleading the jury).

In sum, Dr. Freeman may be qualified to offer expert epidemiological opinion testimony, but epidemiological testimony is not relevant to the issue of causation in this medical malpractice case and the trial court accordingly did not abuse its discretion in excluding part of his testimony.

II. Bias Testimony

Tucker contends the trial court erred in prohibiting her from questioning a witness about system-wide bias of qualified health providers in Indiana. Prior to trial, Tucker had sent notice of her intention to send non-party requests for production to various entities and individuals regarding “the inherent financial interest all of [Harrison’s] expert witnesses have in the outcome of this case.” Appellant’s App. at 121. On Harrison’s motion, the trial court quashed the requests, issuing the following order:

... The requests for production seek evidence concerning the five experts’ payments into the Patient Compensation Fund and the rebates they have received from the Patient Compensation Fund. The purpose of the discovery requests is to show bias in that each of the witnesses allegedly has an interest in minimizing the payments from the Patient Compensation Fund so that their payments into the Compensation Fund are smaller or their rebates from the Compensation Fund are larger.
The Court finds this particular argument of bias would not be admitted into evidence and therefore that the discovery requests are not likely to lead to admissible evidence. The issue of whether any party has insurance may not be presented to the jury. Similarly, the issue of whether the experts, who are medical providers, have insurance cannot be presented to the jury because, by implication, it implies that the defendants, also medical providers, have insurance. Indiana has a statutory procedure for obtaining expert testimony in any such case through a medical review panel. This procedure benefits both parties by establishing a standard procedure for determining whether there is evidence supporting either party’s position. While the opinion of the Medical Review Panel is not binding, it is useful to both plaintiff and defendants. Physicians are required to participate in panels. All physicians are required to obtain professional liability insurance.
The constitutionality of the medical malpractice laws has been regularly upheld over the course of several decades. Plaintiffs argument that a witness is biased because the witness is a participant in the Indiana Patient Compensation Fund is not a competent argument to present to the jury.

Id. at 134-35.

At trial, Tucker called Dr. David McLaughlin, a gynecologist, as an expert witness. Dr. McLaughlin first testified to his review of Tucker’s medical files and his opinion of Dr. Harrison’s performance of the surgery. Tucker’s counsel then asked him if he had served on medical review panels before, which he had, and whether it was true that medical review panelists “don’t have any bias.” Tr. at 35. Harrison objected and the following discussion occurred out of the jury’s presence:

[Harrison’s counsel]: ... [Dr. McLaughlin’s] service on panels is completely irrelevant to this case. It’s not the three doctors that served on this panel. He doesn’t know whether the doctors in this case were biased or not and this is absolutely irrelevant and unduly prejudicial.
[Tucker’s counsel]: [Harrison’s counsel] told the jury that these were unbiased panel members and if allowed Dr. McLaughlin will say that every doctor in Indiana has a bias on the medical review panels....
[The Court]: I’m going to sustain the objection. This is an area — it’s an issue that you raised that I’ve ruled on is not to be before the jury and I’ll tell the jury to disregard the question.... [Tucker’s counsel]: Well, yeah, I probably should make an offer to prove then. [The Court]: Okay.
* * *
[Tucker’s counsel]: ... As I said before his answer would have been that, yes, every doctor in Indiana does have an interest and are biased.... If allowed to testify Dr. McLaughlin will testify that there is a financial interest in that the physicians [sic] surcharges go down as a result of less payouts than are intended. That is an actuarial thing that’s done every year. He didn’t discuss that (inaudible) probably doesn’t know, but he does know and he will answer, if he was allowed to testify that that is an effort by the physicians in Indiana to keep these — to keep the recoveries down so that their surcharges will go down.

Id. at 35-38. Tucker contends the trial court erred in excluding this evidence from the jury’s consideration.

Essentially, Tucker’s proffered evidence alleges bias on the part of every Indiana physician because they are all participants in the Patient’s Compensation Fund, which acts as a sort of supplemental mutual insurance provider for all qualified health care providers licensed in Indiana, and therefore have a financial interest in whether payouts are made from the Fund. Indiana Evidence Rule 411 provides:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

The purpose of Rule 411 is “to prevent juries from inferring fault or calculating damages based on parties’ liability coverage or lack thereof.” Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind.Ct.App.2009), trans. denied. Although Rule 411 generally bars insurance evidence, it may be admitted for some purpose other than implying fault or influencing a damage award. Id. “If the evidence is offered for a purpose not prohibited by Rule 411, admissibility is governed by the balancing test of Rule 403, and exclusion may be appropriate if the fact to be proven is not in genuine dispute.” Id. (quotation and citation omitted). Evidence Rule 403 provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Rulings concerning the relevancy of evidence are within the trial court’s discretion and we will not disturb such rulings unless they are clearly erroneous. Wineinger v. Ellis, 855 N.E.2d 614, 618 (Ind.Ct.App.2006), trans. denied.

We begin with a brief overview of the obligations of doctors with respect to the Patient’s Compensation Fund and medical review panels. Any amount due from a medical malpractice judgment or settlement in excess of the total liability of all liable health care providers is paid from the Patient’s Compensation Fund, up to the statutory limit. Ind.Code § 34-18-14-3. The Patient’s Compensation Fund is funded by an annual surcharge levied on all qualified health care providers in Indiana. Ind.Code § 34-18-5-1. “The amount of the surcharge shall be determined based upon actuarial principles and actuarial studies and must be adequate for the payment of claims and expenses from the patient’s compensation fund.” Ind. Code § 34-18-5-2(c). The minimum annual surcharge is $100, and is to be determined not later than July 1 of each year. Ind.Code § 34-18-5-2(e), (f). The Indiana Medical Malpractice Act provides a mechanism by which medical malpractice complaints are first considered by a medical review panel. The panel is comprised of one attorney and three health care providers. Ind.Code § 34-18-10-3. “[A]U health care providers in Indiana ... who hold a license to practice in their profession shall be available for selection as members of the medical review panel.” Ind.Code § 34-18-10-5. A health care provider may only be relieved from serving on a panel by serving an affidavit on the panel chairman setting out facts showing that service “would constitute an unreasonable burden or undue hardship.” Ind.Code § 34-18-10-12(c). Each member of the panel is required to take an oath in writing that, among other things, he or she will “render my opinion without bias[.]” Ind.Code § 34-18-10-17(e). Tucker contends that because all doctors participate in the Patient’s Compensation Fund, all doctors have a financial interest in the outcome of every medical malpractice case in order to keep their annual surcharges to a minimum, and therefore, the members of the medical review panel were biased against Tucker’s claim, evidence of which is relevant and not unduly prejudicial. We disagree.

Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias ... of the witness for or against any party to the case is admissible”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. Tr. at 79-80. Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. Id. at 364-65.

Despite Tucker’s contention that she was prohibited from countering this evidence that the medical review panel doctors were unbiased, see Brief of Appellant at 18, Tucker’s proffered evidence does not directly contradict this testimony. It does not allege specific bias on the part of the specific expert witnesses involved in this trial; it alleges system-wide bias, which runs the risk of confusing the issues and misleading the jury without adding any probative evidence to the question of whether or not Dr. Harrison was negligent. Tucker’s proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana — all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, Tucker has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34-18-5-2(e).

When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. See Wallace v. Leedhanachoke, 949 S.W.2d 624, 628 (Ky.Ct.App.1996) (after reviewing cases from numerous jurisdictions, agreeing with the majority that the “mere fact that two physicians shared a common insurance carrier — absent a more compelling degree of connection — does not clearly evince bias by the expert, and its arguable relevance or probative value is insufficient to outweigh the well-established rule as to the inadmissibility of evidence as to the existence of insurance.”). The trial court did not clearly err in excluding the proffered bias testimony.

III. Res Ipsa Loquitur Instruction

Tucker also contends the trial court erred in refusing to give her proposed jury instruction regarding res ipsa loquitur:

You may assume that an act of medical negligence took place if Plaintiff Ashley Tucker proves the following by the greater weight of the evidence:
(1) Plaintiff was under Dr. Harrison’s care when the harm occurred;
(2) Dr. Harrison had exclusive control of Plaintiff Ashley Tucker’s actions or reactions when the harm occurred;
(3) the harm was of a kind that would not have occurred unless an act of medical negligence took place; and
(4) Defendant Dr. Harrison had exclusive control of the instrument which caused the harm.
If you conclude that an act of medical negligence took place, you must then consider that fact with all other evidence in deciding whether [defendant] was liable.

Brief of Appellant at 20. Dr. Harrison objected, specifically to the lack of evidence supporting element three. The trial court found that res ipsa loquitur “does not apply to the facts of this case” and declined to give the instruction. Tr. at 327.

The decision to give or deny a tendered jury instruction is largely left to the sound discretion of the trial court. St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 282 (Ind.Ct.App.2002). We review the trial court’s decision only for an abuse of that discretion. Johnson v. Wait, 947 N.E.2d 951, 957-58 (Ind.Ct.App.2011), trans. denied. On review, we will reverse the trial court’s refusal to give a tendered instruction when the instruction is a correct statement of the law; it is supported by the evidence; and it does not repeat material already covered by other instructions. Id. at 958.

The doctrine of res ipsa loquitur is an exception to the general rule that the mere fact of an injury will not create an inference of negligence. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind.Ct.App.2005). Res ipsa loquitur is a rule of evidence which allows an inference of negligence to be drawn based on the facts and circumstances of the injury. Johnson, 947 N.E.2d at 960. The doctrine may be applied and negligence inferred when the plaintiff establishes that the injuring instrumentality was within the defendant’s exclusive management and control and the accident is of a type that does not ordinarily happen if those who have the management and control exercise proper care. Ross v. Olson, 825 N.E.2d 890, 893 (Ind.Ct.App.2005), trans. denied. In determining if the doctrine is applicable, the question is whether the incident more probably resulted from the defendant’s negligence than from another cause. Rector v. Oliver, 809 N.E.2d 887, 890 (Ind.Ct.App.2004), trans. denied. The plaintiff may show, by common knowledge or expert testimony, that the injury is one that would not ordinarily occur in the absence of due care on the part of those controlling the instrumentality. Ross, 825 N.E.2d at 894.

As our supreme court has explained:

[T]here are some situations in which a physician defendant’s allegedly negligent act or omission is so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not need an expert to help them conclude, say, that it is malpractice to operate by mistake on the wrong limb ...

Wright v. Carter, 622 N.E.2d 170, 171 (Ind.1993). Thus, our appellate courts have found res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v. Manning, 884 N.E.2d 335, 339 (Ind.Ct.App.2008), Gold v. Ishak, 720 N.E.2d 1175, 1184 (Ind.Ct.App.1999), trans. denied; or when foreign objects are left in the body following surgery, see Wright, 622 N.E.2d at 172 (wire left in breast following biopsy); see also Ziobron v. Squires, 907 N.E.2d 118, 126-27 (Ind.Ct.App.2008) (citing similar cases).

Application of this exception in such cases is appropriate when limited to situations in which the complained-of conduct is so obviously substandard that one need not possess medical expertise in order to recognize the breach. It is otherwise when the question involves the delicate inter-relationship between a particular medical procedure and the causative effect of that procedure upon a given patient’s structure, endurance, biological makeup, and pathology.

Malooley v. McIntyre, 597 N.E.2d 314, 318 (Ind.Ct.App.1992). As the trial court found, this case is one of the latter.

Tucker’s ovarian failure and subsequent infertility is not a situation that jurors could look at and know from common experience was obviously caused by substandard conduct. The expert witnesses disagreed as to whether the laparoscopic surgery Dr. Harrison performed with mo-nopolar scissors was the cause of Tucker’s ovarian failure. The medical review panelists opined during the review process as well as testified during trial that Dr. Harrison was not the cause of the ovarian failure. See Tr. at 61 (Dr. Murphy, medical review panelist, testifying that in her opinion, ovarian failure following the surgery was a coincidence); id. at 397 (Dr. Miser, medical review panelist, testifying that in her opinion, Tucker had been in ovarian failure prior to the surgery masked by her use of birth control pills and Dr. Harrison did not cause the ovarian failure). Tucker’s experts Dr. McLaughlin and Dr. Denniz Zolnoun each testified that Tucker’s ovarian failure was caused by Dr. Harrison’s negligence in performing the cystectomy. Dr. McLaughlin also testified, however, that destruction of the ovaries through electrosurgery is a possible risk, although “a really rare risk,” of a cystectomy even if it is done properly. Id. at 24; see also id. at 202 (Dr. Harrison testifying that infertility was not a high risk of the surgery). On this evidence, it cannot be said that Tucker’s injury was one that would not have occurred in the absence of negligence.

As the trial court stated in rejecting the res ipsa loquitur instruction: “the contentions are harm occurred during surgery, harm did not occur during surgery, harm occurred independently of surgery. I don’t think that’s a res ipsa loquitur case.” Id. at 327. From the expert testimony presented, the jury could have drawn an inference that Tucker suffered harm because Dr. Harrison was negligent, or it could have drawn an inference that Tucker suffered harm even though Dr. Harrison exercised the appropriate standard of care and skill.

Accordingly, Tucker was not entitled to a res ipsa loquitur instruction and the trial court did not abuse its discretion in denying the tendered instruction.

Conclusion

The trial court did not abuse its discretion in excluding Tucker’s expert epidemiological probability testimony, in excluding testimony concerning system-wide bias, or in instructing the jury. Accordingly, the judgment for Dr. Harrison is affirmed.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.

      . "Iatrogenic” means "as a result of the procedure.” Tr. at 162.

      . Lee v. A.C. & S. Co., Inc., 542 A.2d 352 (Del.Super.Ct.1987), provides the following excellent description of epidemiology, particularly in reference to its use in the legal context:
      Epidemiology has been defined as:
      The science of dealing with the occurrence and distribution of diseases, especially of epidemic and endemic diseases.
      It is also defined as:
      The field of science dealing with the relationships of the various factors which determine the frequencies and distributions of an infectious process, a disease, or a physiological state in a human community-
      Hence, a person who testifies as an expert in epidemiology provides information concerning the frequency and distribution of the occurrence of a particular disease or malady. The focus of the expertise is upon the frequency in which a particular disease is likely to occur within a segment of the population who have lived under a particular condition. The epidemiologist’s function does not extend to determination of the physical condition or symptoms of an individual.

        Id. at 354 (citations omitted).

      . This is not to say epidemiological evidence is irrelevant and could never be admitted in a medical malpractice case. In the appropriate case, it could certainly bolster other testimony of medical causation, but it does not replace it.

      . This instruction is reproduced as it appears in Tucker’s brief. It appears without citation to the record.


author: MAY, Judge.

text:
    Robert DOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 09A05-1201-CR-36.
    Court of Appeals of Indiana.
    Aug. 27, 2012.
    Jim Brugh, Logansport, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Robert Dowell appeals his conviction of Class A felony robbery resulting in serious bodily injury. He argues the trial court erred when it gave the jury an additional instruction after deliberations began, but did not call the jury back into the courtroom or re-read the rest of the instructions. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

The State charged Dowell with robbery resulting in serious bodily injury, a Class A felony, after he, his girlfriend Mindy Boehme, and Dustin Rush beat and robbed Roman Nusbaum. The three saw Nusb-aum in a Logansport tavern. Nusbaum appeared drunk and was carrying a large amount of cash. The three went to another bar, where they drank, smoked methamphetamine, and developed a plan to rob Nusbaum. Boehme would lure Nusbaum from the tavern and take him to an agreed-on location, where the two men would rob him.

Boehme returned to the tavern and found Nusbaum. They left the tavern together, and Boehme drove him to the designated location. Dowell and Rush removed Nusbaum from the car and beat him. Dowell hit Nusbaum with a baseball bat. Rush took Nusbaum’s money, then met Boehme at Rush’s home. There Do-well and Rush helped Boehme remove Nusbaum’s blood from her car. Dowell and Rush placed their clothing in a bag for disposal and threw away their shoes.

The trial court instructed the jury as to the elements of robbery, but there was no instruction concerning accomplice liability. The robbery instruction read in part:

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant, Robert Dowell
2. knowingly or intentionally
3. took property from Roman Nusb-aum
4. by using or threatening the use of force on Roman Nusbaum
5. and the commission of elements 1 through 4 resulted in serious bodily injury to Roman Nusbaum.

(App. at 20.)

After deliberations began, the jury foreman gave the bailiff a handwritten note:

The jurors would like additional definition to know:
To meet the qualifications for element 5, would the defendant have had to directly caused [sic] the injuries with the baseball bat or could he have just been directly involved in the incident (i.e. holding the victim, but not striking the victim with a weapon.)? [sic]
To meet the qualifications for element 3, would the defendant have had to have explicitly taken the property off of the victim’s person or could he have just been directly involved in it?

(Id. at 60.)

The trial court responded by returning the note with the handwritten statement “Indiana law provides that a person who aids another person to commit an offense commits that offense.” (Id.) The judge did not call the jury back into the courtroom, stating that procedure would be “unduly cumbersome.” (Id. at 53.) Nor did he reread all the instructions including the new one on accomplice liability.

DISCUSSION AND DECISION
Ind.Code § 34-36-1-6 provides: If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case; the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

But once deliberations commence, the trial court should not give additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind.1982). This rule prevents the trial court from giving special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility that the additional instruction might tell the jury what it ought to do concerning that issue. Id.

When confronted with a question from a jury that has commenced deliberation, the trial judge must respond in k manner that accords with the legal requirements for final instructions and is fair. Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind.1981). The “path is extremely hazardous” for the court that would depart from the body of final instructions and do other than reread the final instructions in responding to jury questions. Id. Such a departure will be warranted in only the most extreme circumstances. Id. It must serve to amend the final instructions by adding a necessary one previously omitted or correcting an erroneous one, and must be fair to the parties in the sense that it should not reflect the judge’s view of factual matters. Id.

It is only when the jury question coincides with an error or “legal lacuna” in the final instructions that a response other than rereading from the body of final instructions is permissible. Id. A “lacuna” is an “empty space or missing part; a gap.” Downs v. State, 656 N.E.2d 849, 852 n. 4 (Ind.Ct.App.1995) (quoting The American Heritage Dictionary of the English Language 732). If the trial court decides to give an additional instruction because the question relates to a “legal lacuna,” the trial court must reread all of the instructions so that the additional instruction will not be over-emphasized. Graves v. State, 714 N.E.2d 724, 726 (Ind.Ct.App.1999).

In Graves, we addressed a situation almost identical to that in the case before us. There, we reversed and remanded for a new trial when the trial court gave the jury an accomplice liability instruction after deliberations had begun, but did not re-read all the final instructions. The jury sent a note to the court asking: “Did [Graves] have to personally take the property to be guilty of robbery?” Id. at 725. Counsel for Graves told the court he believed the proper procedure would be to re-read the entire set of final instructions, including any additional instructions. Instead, as in the case before us, the court read to the jury only an instruction on accomplice liability. Graves was convicted of robbery and other offenses.

In Graves, both parties agreed the jury’s question concerned a point of law and the trial court complied with the mandates of Ind.Code § 34-36-1-6. Nevertheless, we noted, our Supreme Court has long recognized that once jury deliberations commence, the trial court should not give any additional instructions. Id. at 726 (citing Crowdus, 431 N.E.2d at 798). We further noted the “one limited and narrow exception” to that “strict rule,” id.: that when the jury’s question coincides with an error or “legal lacuna” in the final instructions, the trial court may respond in a manner other than simply re-reading the entire set of final instructions. Id. at 726. “This prohibitive rule exists to protect against giving special emphasis to a particular issue and to guard against the possibility that the additional instruction might suggest to the jury a resolution to an issue.” Id. (citing Crowdus, 431 N.E.2d at 798).

In Graves, as in the case before us, the jury sent a note asking specifically about the charge of robbery and then, after receiving the additional instruction on accomplice liability, returned with a verdict of guilty as to that charge. As we explained in Graves:

In this situation the potential for prejudice is great. The evidence reveals that Graves’ companions searched Jones’ house and removed items from the residence, but it does not show that Graves actually removed any of the objects from the house. Therefore, when the trial court instructed the jury on accomplice liability, without re-reading the entire set of final instructions, it not only placed special significance on the particular issue of Graves’ culpability with regard to the charge of robbery, but also the lone, additional instruction suggests a resolution to the jury’s predicament evidenced by their note. The jury was instructed as follows: “[A] person who knowingly or intentionally aids, induces or causes another person to commit an offense, commits that offense.”

Id. at 726-27 (footnote added).

We found the Graves procedure gave “the type of improper emphasis that the rule of Crowdus aims to alleviate.” Id. at 727. Even though there was a “legal lacuna” in the form of the omitted instruction on accomplice liability such that the trial court properly could provide the jury with the additional instruction, we held the trial court committed reversible error because it did not re-read the entire set of final instructions contemporaneously with the giving of the additional instruction. Id. Cf. Hero v. State, 765 N.E.2d 599, 603 (Ind.Ct.App.2002), trans. denied, where we noted “[i]t may be true that when the trial court gives a special instruction on one particular issue, it tends to emphasize that issue as being of primary importance and tends to tell the jury what it ought to do.” In Hero, the trial court was aware of that danger, and “took all precautions to avoid such an emphasis. When the new instruction was added, it was one of nineteen instructions. It was not inserted first or last — a position where it would stand out— but fourth, a natural and logical position amongst the other instructions.” Id.

In Brannum v. State, 267 Ind. 51, 57, 366 N.E.2d 1180, 1184 (1977), our Supreme Court characterized as a “prejudicial act of the trial court” the “giving of a special instruction to the jury in the middle of their deliberations.” After eight and one-half hours of deliberation, it appeared the jury was having difficulty arriving at a verdict “because of legal questions being discussed among them.” Id. at 57, 366 N.E.2d at 1184. The record on appeal did not reflect what those questions were. The State and the defense agreed the court would reread the instructions previously given. The trial court then indicated it was going to give to the jury a further instruction it had prepared, which instruction addressed a decision Bran-num’s counsel quoted in final argument. Our Supreme Court held the additional instruction was error, not because of its content about the decision counsel quoted, but

the question, rather, is one of the court’s adding an instruction at this juncture of the trial in which he commented on final argument of defense counsel, emphasizing one aspect of the decision the jury was to make. The court apparently emphasized the aspect he felt the jury was troubled about. This possibility seems to be borne out by the fact that the jury found the defendant guilty of first degree murder in a very short time after the special instruction was given, previously having been in deliberation for eight and one-half hours.

Id. at 57-58, 366 N.E.2d at 1184. By giving the special instruction sua sponte, “the court emphasized this provision as one of primary importance to the jury, and tended to tell them what they ought to do.” Id. at 59, 366 N.E.2d at 1185.

In the case before us, as in Graves, the jury was apparently not prepared to conclude its deliberations until its question was answered. The court gave it the additional instruction on accomplice liability without re-reading the rest of the instructions, and the jury then returned a guilty verdict. That procedure gave that instruction “the type of improper emphasis that the rule of Crowdus aims to alleviate.” Graves, 714 N.E.2d at 727, because the trial court did not re-read the entire set of final instructions contemporaneously with the giving of the additional instruction. Id. As such an additional instruction tended to “emphasize that issue as being of primary importance and ... to tell the jury what it ought to do,” Hero, 765 N.E.2d at 603, we must reverse and remand for a new trial.

Reversed and remanded.

KIRSCH, J., and NAJAM, J., concur.

      . Ind.Code§ 35-42-5-1.

      . We remind the State that a Statement of Facts in an appellate brief "shall describe the facts relevant to the issues presented for review." Ind. Appellate Rule 46 (emphasis added). The State's Statement of Facts describes Dowell’s offense in great detail, but is devoid of any facts relevant to the only issue presented for our review.

      . Similarly, in the case before us it appears there was no evidence Dowell directly took the money from Nusbaum. In its Statement of Facts, the State asserts "The two [Dowell and Rush] took Nusbaum’s money” when they beat Nusbaum, (Br. of Appellee at 3), but the pages of the transcript to which the State directs us do not support that statement. One reference is to Boehme’s testimony that she was told days after the robbery that Rush "ended up with all the money.” (Tr. at 187.) The other reference is to testimony by an acquaintance of Rush that Rush showed him the money that had been stolen from Nusb-aum. {Id. at 266.) We admonish the State to refrain from so misrepresenting the record.

      . The State acknowledges Graves, but appears to argue the Graves rule does not apply to the case before us because of our Supreme Court's statement in Ronco v. State, 862 N.E.2d 257, 259 (Ind.2007) that "[u]nder our recently adopted jury rules, Indiana trial courts have greater leeway to facilitate and assist jurors in the deliberative process, in order to avoid mistrials.” (Internal quotation omitted). We decline to hold that such greater "leeway” now permits a trial court to subject a defendant to a "prejudicial act of the trial court” in the form of the “giving of a special instruction to the jury in the middle of their deliberations,” Brannum, 267 Ind. at 57, 366 N.E.2d at 1184, or to the "great” potential for prejudice we noted in Graves, 714 N.E.2d at 726.