ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
C. WARREN HOLLAND MICHAEL G. GETTY
MICHAEL W. HOLLAND RORI L. GOLDMAN
Holland & Holland Hill Fulwider McDowell Funk &
Indianapolis, Indiana Matthews
(Attorneys for A. Patricia Harper, M.D.
and Indianapolis Breast Center)
JOHN DAVID HOOVER
J. SCOTT FANZINI
Hoover, Heath, Baker & Heath
(Attorneys for Carol C. Eisenhut, M.D. and
Diagnostic Cytology Laboratory, Inc.)
SUPREME COURT OF INDIANA
CHARLES G. REEDER, as Special )
Administrator of Estate of Denise C. Palmer, )
Deceased, and DENNIS W. PALMER, ) Supreme Court Cause Number
Appellants (Plaintiffs ), )
A. PATRICIA HARPER, M.D., )
INDIANAPOLIS BREAST CENTER, ) Court of Appeals Cause Number
CAROL C. EISENHUT, M.D., and ) 49A05-9909-CV-416
DIAGNOSTIC CYTOLOGY )
LABORATORY, INC., )
Appellees (Defendants ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick L. McCarty, Judge
Cause No. 49D03-9611-CT-1578
ON PETITION TO TRANSFER
May 30, 2003
Alleging three physicians failed to diagnose and treat her breast cancer, Denise Palmer
filed a complaint for medical malpractice against them and the clinic and laboratory
with which two of the physicians were associated. When Denise died, her
husband along with her estate amended the complaint to assert a survivorship claim
and a claim for wrongful death. The trial court granted summary judgment
in favor of the defendants on both claims. On review, the Court
of Appeals affirmed. Reeder v. Harper, 732 N.E.2d 1246 (Ind. Ct. App.
2000). Having previously granted transfer, we now reverse the trial courts entry
of summary judgment.
Facts and Procedural History
The record shows that Denise suffered from a history of benign masses in
her breasts. During a routine annual examination in July 1991, Denise complained to
her obstetrician-gynecologist about a lump in her left breast. The doctor, Timothy
Feeney, advised her there was nothing to worry about and made no recommendation
concerning further treatment. However, the lump increased in size, and Denise began
experiencing pain when moving her left arm. On December 13, 1991, Denise
called Dr. Feeneys office complaining about the lump and the pain. On
the advice of Dr. Feeneys nurse, Denise went to the office that day.
Conducting an examination and noting the lump, the nurse immediately called the Indianapolis
Breast Center to schedule an appointment for Denise with Dr. A. Patricia Harper.
Because Dr. Harper was very busy and did not think the matter
urgent, she did not see Denise until January 10, 1992. At that
time, Denise went to the Breast Center and underwent a bilateral mammogram.
In addition, Dr. Harper performed a needle aspiration biopsy on the lump in
Denises left breast. The specimen from the procedure was shipped to the
Diagnostic Cytology Laboratory. There, it was examined by Dr. Carol Eisenhut who
determined that the cells were benign.
The lump in Denises left breast continued to increase in size, and she
continued to experience pain when moving her left arm. After again consulting
Dr. Feeney, Denise was referred to Dr. Thomas Schmidt in February 1992.
Having little faith in needle aspiration biopsies, Dr. Schmidt performed a surgical excisional
biopsy on the mass in Denises left breast. This biopsy showed that
Denise had cancer. A second opinion by another doctor confirmed the diagnosis.
In July 1993, Denise filed a proposed medical malpractice complaint against Doctors Feeney,
Harper, and Eisenhut along with the Indianapolis Breast Center and the Diagnostic Cytology
Laboratory (referred to collectively as Healthcare Providers). The complaint alleged that Healthcare
Providers negligence in failing to diagnose and treat Denises cancer caused her physical
pain and mental anguish. Denises husband Dennis joined the complaint on a
loss of consortium claim. Between March 1992 and January 1994, Denise underwent
three rounds of chemotherapy, a modified radical mastectomy of her left breast, radiation
therapy, and surgery to remove a malignant tumor that had spread to her
right breast. Despite these efforts, Denise died on March 15, 1994, at
the age of forty.
In January 1996, Dennis along with Denises estate (referred to collectively as the
Palmers) amended the proposed complaint to reflect that Denise had died. Count
I alleged a survivorship action for Denises physical pain and mental anguish prior
to her death as well as Dennis claim for the loss of his
wifes services prior to her death. Count II alleged an action for
Denises wrongful death on behalf of Dennis and the parties three minor children.
The Medical Review Panel issued its unanimous opinion in June 1996. The
Panel found that Dr. Harper and the Breast Center deviated from the appropriate
standard of care in failing to recommend surgical excisional biopsy of an enlarging
solid mass. R. at 34. The Panel also found that Dr.
Eisenhut and the Laboratory deviated from the appropriate standard of care by failing
to report that the patients lesion needed to be excised. R. at
34-35. However, the Panel concluded the evidence indicates such deviations were not
a factor in altering the course of the patients disease or in hastening
her death. R. at 35.
In August 1996, the Palmers filed a complaint in Marion Superior Court setting
forth the same claims as those in the amended proposed complaint. Thereafter,
Healthcare Providers moved for summary judgment, designating the Panel opinion among other things.
In opposition, the Palmers designated several items of evidence, including the affidavit
of Dr. William Alpern. His affidavit contradicted the Panels conclusion and opined
instead that Healthcare Providers actions altered the course of Denises disease and hastened
her death. After a hearing, the trial court denied Healthcare Providers motion
for summary judgment. Sometime in the summer of 1997 Dr. Alpern died.
Thereafter, in June 1999 Healthcare Providers renewed their motion for summary judgment.
In opposition, the Palmers again designated Dr. Alperns affidavit. This time, the
trial court granted the motion. On review, the Court of Appeals observed
that the only evidence the Palmers designated regarding causation for both the survivorship
and wrongful death claims was the affidavit of Dr. Alpern. According to
the court, because Dr. Alpern was now dead, the facts to which he
testified in his affidavit would be hearsay and thus inadmissible at trial. As
a result, the Court of Appeals affirmed the trial courts grant of summary
judgment in favor of Healthcare Providers. We reverse.
Standard of Review
On appeal, the standard of review for a summary judgment motion is the
same as that used in the trial court: summary judgment is appropriate
only where the evidence shows that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C); Tom-Wat, Inc. v. Fink, 741 N.E.2d 343,
346 (Ind. 2001). All facts and reasonable inferences drawn from those facts
are construed in favor of the non-moving party. Shell Oil Co. v.
Lovold Co., 705 N.E.2d 981, 984 (Ind. 1998). Review of a summary
judgment motion is limited to those materials designated to the trial court.
T.R. 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993).
We must carefully review a decision on a summary judgment motion to
ensure that a party was not
improperly denied its day in court. Estate of Shebel ex rel. Shebel
v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind. 1999).
Indiana Trial Rule 56(E) provides in pertinent part that [s]upporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. (emphasis added). We acknowledge that
the declarations of a decedent offered at trial as proof of their contents
are hearsay and thus inadmissible as such unless falling within one of the
exceptions to the hearsay rule. See Am. United Life Ins. Co. v.
Peffley, 158 Ind. App. 29, 301 N.E.2d 651, 658 (1973). Indeed, most
declarations of an unavailable witness, including affidavits, are not admissible at trial absent
an exception to the hearsay rule. However, this case presents a slightly
different issue, namely: in the context of summary judgment, is there a distinction
between a hearsay affidavit offered as evidence on the one hand versus the
facts established by the affidavit on the other. This Court has not
spoken on the issue,
See footnote but because the federal counterpart to Indiana Trial Rule
56(E) is identical, we look to the federal courts for guidance.
The United States Supreme Court has indicated that at least some forms of
inadmissible evidence can be considered at the summary judgment stage of the proceedings:
We do not mean that the non-moving party must produce evidence in a
form that would be
admissible at trial in order to avoid summary judgment.
Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Seizing in part on this declaration,
a number of federal courts have found that evidence that would be inadmissible
at trial may nevertheless raise a material issue of fact on summary judgment
if that evidence can be rendered admissible at trial. For example, in
Winskunas v. Birnbaum, 23 F.3d 1264 (7th Cir. 1994), the Seventh Circuit explained
that it is the substance of the affidavit and not the form that
The evidence need not be in admissible form; affidavits are ordinarily not admissible
evidence at a trial. But it must be admissible in content .
. . . Occasional statements in cases that the party opposing summary
judgment must present admissible evidence should be understood in this light, as referring
to the content or substance, rather than the form, of the submission.
Id. at 1267-68 (citation omitted) (italics in original); see also McMillian v. Johnson,
88 F.3d 1573, 1584 (11th Cir. 1996) (holding that evidence in an inadmissible
form may be considered at the summary judgment stage as long as the
evidence is submitted in an admissible form at trial), affd sub. nom, McMillian
v. Monroe County, Ala., 520 U.S. 781 (1997); Treff v. Galetka, 74 F.3d
191, 195 (10th Cir. 1996) (The nonmoving party is not required to produce
evidence in a form that would be admissible at trial, but the content
or substance of the evidence must be admissible.) (quotation omitted) (italics in original);
Petruzzis IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1234-35 n.9
(3d Cir. 1993) (holding that hearsay evidence may be considered on summary judgment
if the same evidence would be admissible in another form at trial).
We find particularly instructive the case of Oto v. Metro. Life Ins. Co.,
224 F.3d 601 (7th Cir. 2000). In Oto a dispute arose concerning
the authenticity of plaintiffs signature on a change of beneficiary form. Plaintiff
had signed an affidavit declaring that the signature was fraudulent. He also
gave a deposition consistent with the affidavit. While the case was pending
the plaintiff died. He was substituted in the action by an executor.
Relying on the affidavit as well as the deposition, the executor moved
for summary judgment, which the District Court granted. On appeal to the
Seventh Circuit the appellant argued, among other things, that the District Court should
not have considered the decedents affidavit in ruling upon the motion. According
to the appellant, the affidavit was inadmissible hearsay. Appellant also contended that
he did not have an opportunity to question the decedent on the substance
of the affidavit. The Seventh Circuit rejected this argument. We recite
its reasoning here in some detail:
[Appellants] other argument, that the affidavit should not have been considered by the
District Court in ruling on the motion for summary judgment because [the decedent]
is now unavailable to testify, is actually a challenge to the affidavits admissibility
at trial. To mix the two would require us to read a
cross-examination requirement into Rule 56 that is not there. Certainly, the affidavit
would not be admissible at trial unless he were able to cross-examine [the
decedent] as to its contents. A motion for summary judgment brought under
the Federal Rule of Civil Procedure 56, however, has no such requirement.
Rule 56 merely provides for the submission of affidavits in support of or
opposition to a motion for summary judgment. As long as the affidavit
meets the requirements of subsection (e), it can be considered by the District
Court in ruling on the motion . . . . Since [the
decedents] affidavit was in the precise form contemplated by Rule 56, was made
under oath and based upon his personal knowledge, we hold that the District
Court did not err in considering its contents in ruling on the motion
for summary judgment.
Id. at 604-05.
We find the foregoing authority persuasive and equally applicable to Indianas Trial Rule
56(E). In essence, an affidavit speaks from the time it is made.
Hence, an affidavit that would be inadmissible at trial may be considered
at the summary judgment stage of the proceedings if the substance of the
affidavit would be admissible in another form at trial.
See footnote To hold otherwise
and embrace the view that the death of an affiant renders an affidavit
a nullity would result in summary judgment where the opposing party had the
misfortune to select the one short-lived witness from among the many who may
be able to testify to the same thing. We do not believe
that Indiana Trial Rule 56(E) should be read so narrowly. As Moores
Federal Practice points out in addressing the identically worded federal rule, Rule 56(e)
requires that the affidavit be based on personal knowledge and set forth
as would be admissible at trial[.] 11 James Wm. Moore et al.,
Moores Federal Practice § 56.14[e][i] (3d ed. 1997) (emphasis added). The rule
does not require that the affidavit itself be admissible. Id.
In this case, the Dr. Alpern affidavit raised the question as to whether
Healthcare Providers conduct contributed to Denises pain and was causally connected to her
See footnote Although the affidavit would not be admissible at trial, there is nothing
in the record before us suggesting that the substance of the affidavit would
not be admissible at trial in another form - most likely, the testimony
of another expert witness. As such, the affidavit may properly be considered
in opposition to Healthcare Providers motion for summary judgment.
Concerning the Palmers wrongful death claim, the Wrongful Death Statute provides a cause
of action when the death of one is caused by the wrongful act
or omission of another[.]
Cahoon v. Cummings, 734 N.E.2d 535, 539 (Ind.
2000) (quoting Ind. Code § 34-23-1-1). The purpose of the Wrongful Death
Statute is not to compensate for the injury to the decedent but rather
to create a cause of action to provide a means by which the
decedents survivors may be compensated for the loss sustained by reason of the
death. Durham ex rel. Estate of Wade v. U-Haul Intl, 745 N.E.2d 755,
763-64 (Ind. 2001).
In support of their motion for summary judgment, Healthcare Providers designated the opinion
of the Medical Review Panel. Although the Panel found that Healthcare Providers
breached the applicable standard of care, the Panel concluded that Healthcare Providers conduct
w[as] not a factor in altering the course of the patients disease or
in hastening her death. R. at 35. In opposition to the
motion the Palmers designated the affidavit of Dr. Alpern on the issue of
causation. He opined that the conduct of Healthcare Providers was a factor
in the resultant damages, altered the course of the patients disease, and hastened
death. R. at 128. Because Dr. Alperns affidavit created a genuine
issue of material fact concerning whether Healthcare Providers conduct caused Denises death, the
trial court erred by granting Healthcare Providers motion for summary judgment on the
Palmers wrongful death claim.
With respect to the survivorship claim, the Survivorship Statute applies when a person
receives personal injuries caused by the wrongful act or omission of another but
subsequently dies from causes other than those personal injuries. I.C. § 34-9-3-4(a);
Cahoon, 734 N.E.2d at 544; Best Homes, Inc. v. Rainwater, 714 N.E.2d 702,
705 (Ind. Ct. App. 1999). In such actions, [t]he personal representative of
the decedent who was injured may . . . recover all damages resulting
before the date of death from those injuries that the decedent would have
been entitled to recover had the decedent lived. I.C. § 34-9-3-4(b).
The Palmers are seeking damages under this statute for the physical pain and
mental anguish that Denise suffered as a result of Healthcare Providers alleged negligence
in failing to diagnose and treat her cancer.
As we have already determined, the Dr. Alpern affidavit may properly be considered
in opposition to Healthcare Providers motion for summary judgment. The affidavit specifically
provides that the lump which Denise Palmer complained on July 24, 1991 was
the lump which continued to grow and become painful and which was diagnosed
as being carcinoma on March 4, 1992. R. at 127. This
representation is sufficient to create a genuine issue of material fact as to
whether the failure of Healthcare Providers to diagnose and treat an enlarging cancerous
lump in Denises breast caused her to suffer physical pain.
On the issue of mental anguish, the Rule 56 materials the Palmers presented
to the trial court included Dennis affidavit. He explained at some length
how and why Denise experienced mental anguish following her diagnoses. Among other
things, according to Dennis, Denise felt mislead into a course of unknowingly allowing
her breast cancer to remain untreated, a feeling that stayed with her until
her death. R. at 388. Determining whether Denise suffered mental anguish
is a purely subjective inquiry for which expert testimony is unnecessary. Dennis
affidavit was sufficient to create a genuine issue of material fact on this
point. Because the affidavits of Dennis and Dr. Alpern create a genuine
issue of material fact concerning the cause of Denises mental anguish and physical
pain, the trial court erred by granting Healthcare Providers motion for summary judgment
on the Palmers survivorship claim.
We reverse the trial courts entry of summary judgment in favor of Healthcare
Providers. This cause is remanded.
DICKSON and SULLIVAN, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.
BOEHM, J., dissents with separate opinion in which SHEPARD, C.J. concurs.
SHEPARD, Chief Justice, dissenting.
My colleagues have outlined their positions on the issues that divide us, can
a party prevail in a summary judgment proceeding by submitting an affidavit from
someone who is dead, and I line up with Justice Boehm on the
answer to that question.
I write briefly here to say that I think the rule embraced by
the majority must inevitably lead to multiple injustices.
To begin with, the rule announced today must surely be available to both
sides in a summary judgment proceeding. Trial Rule 56 treats all affidavits
in the same way: Supporting and opposing affidavits shall be made on
personal knowledge, and so forth. Even if Rule 56 did not so
read, it would be a matter of simple equity that both those who
move for summary judgment and those who resist it be treated alike.
Under the facts of the present case, of course, the majoritys decision means
that the parties and the court will proceed to the trial of a
case in which so far as is known now the claimant does not
have admissible evidence in support of the elements of the claim. While
it seems easy to surmise that the plaintiffs will ultimately be able to
find a medical witness that will make this possible, it is the very
office of Rule 56 to provide early resolution of whether this is so
or not. That is why Rule 56 says that a responding party
is not entitled simply to stand on the pleadings.
One can readily identify cases of a different posture in which the application
of the majoritys rule will not seem as humane as the outcome in
this case. Sooner or later, a party whose only witness has died
will obtain summary judgment even though it is clear that the responding party
would have prevailed at trial had he been afforded a trial. Say,
the injured plaintiff in an auto crash case who cannot say whether the
light was red or green will lose the chance to go to trial
against the estate of the other driver because the other driver gave an
affidavit saying she had the green light and then died before the matter
could go to trial. Or, the seller of goods will prevail against
the buyer even though the deliveryman who is the only person who can
testify about whether the goods were put on the dock has died since
his affidavit. The seller will win on summary judgment even though he
would have lost at trial.
There are doubtless other permutations that have not yet come to mind.
Suffice it to say that I think it would be simpler, and in
the long run more just to more people, simply to say that one
cannot seek or resist summary judgment based on the affidavit of someone who
BOEHM, Justice, dissenting.
It is important to understand the sequence of events in this case.
The significant ones may be easily summarized. The defendant filed a motion
for summary judgment supported by the panels opinion, admissible in evidence by statute,
that there was no causal relationship between the defendants acts and the plaintiffs
injury. The plaintiff responded with an affidavit from a physician that there
was causation. The motion was denied on the ground that there was
a genuine issue of material fact, namely, whether the defendant caused the plaintiffs
injury. So far, so good. The plaintiffs affiant then died.
The majority holds, and I agree, that this did not entitle the defendant
to summary judgment. As the majority points out, the unavailability of the
particular affiant to testify at trial does not establish that there is no
genuine issue of fact.
But the majority goes too far, in my view, and suggests that an
affidavit may raise a material issue of fact on summary judgment if that
evidence can be rendered admissible at trial. The majority explains that because
somebody else could express the same opinion, the affidavit from the now deceased
physician is sufficient. That is not correct in my view and is
not supported by most of the cases cited for that proposition.
Trial Rule 56(E) requires that the moving party and the party opposing summary
judgment support their factual claims with affidavits that (1) are based on personal
knowledge, (2) set forth facts that would be admissible in evidence, and (3)
show affirmatively that the affiant is competent to testify to the matters stated
I agree that the death of an affiant opposing summary judgment does not
render the affidavit a nullity so that the moving party is entitled to
summary judgment. As the majority notes, there may be many witnesses who
can establish the same fact on personal knowledge, and the accident that fate
struck down the one chosen to file an affidavit should not, in itself,
entitle the opposing party to prevail. The death of the affiant is
not insignificant, however. The affidavit no longer meets the requirements of Rule
56(E) because a dead person is not a competent witness. Faced with
this situation, the moving party should be required to do exactly what the
defendant did in this caserenew the motion, supplemented by proof that the erstwhile
affiant is no longer with us. That requires the opposing party to
file a new affidavit or concede that the motion no longer can be
opposed by competent testimony at trial. Because the plaintiff here failed to
oppose the defendants renewed summary judgment with an affidavit from a competent witness
controverting the panels opinion that there was no causation, the defendant was entitled
to summary judgment on the renewed motion.
The authorities cited by the majority, with a single exception, do not support
the broad proposition that the majority advances. Judge Posners opinion in Winskunas
v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994), merely points out that
the affidavit itself is not required to be admissible in evidence. That
is of course true, but it is not a remarkable proposition. Indeed,
almost no affidavits offered in support of or opposing summary judgment motions are
themselves admissible. Rather, they are, standing alone, classic hearsay. Although the
affidavit need not be itself admissible, it must establish that there is admissible
evidence. The passage from Winskunas that the majority quotes does not mean
that it is sufficient if some other unspecified witness might be able to
fill the gap. The court said it is sufficient that the evidence
be admissible in some form. This means only that there is no
requirement that the affidavit itself be admissible. Indeed, Winskunas expressly requires that
the content of the affidavit, which includes proof that the affiant is a
competent witness, must be admissible. The omitted portion of the majoritys quotation
from Winskunas makes this clear. Judge Posner describes as an example of
a change of the form but not the content of an affidavit substitution
of oral testimony for a summary of that testimony in an affidavit .
. . . Id. This surely means the testimony of the
affiant, not just anyone.
Similarly, the cases cited by Judge Posner support only this narrow point, not
the claim that an affidavit from an incompetent witness, or an affidavit reciting
what somebody told the affiant, is sufficient because an affidavit from somebody else
might be adequate. Rather, it is up to the party seeking to
establish the fact to find the somebody else and present his or her
affidavit. That is precisely what McMillan v. Johnson, 88 F.3d 1573, 1584-85
(11th Cir. 1996), and Treff v. Galetka, 74 F.3d 191, 196 (10th Cir.
1996), cited by the majority, hold. They each reject as inadmissible hearsay
affidavits that recite statements told to the affiant.
In Oto v. Metro. Life Ins. Co., 224 F.3d 601 (7th Cir. 2000),
the affiant died but had been deposed and cross examined as to the
affidavit. The court held the affidavit and deposition were properly considered on
summary judgment. Only the deposition was needed to establish the facts, and
it was clearly admissible under Evidence Rule 804(b). The affidavit was a
proper exhibit to the deposition. To the extent the courts language suggests
the affidavit was properly considered as a freestanding item in opposition to summary
judgment, it is dicta and is simply incorrect in my view. Only
Petruzzis IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1234-35 n.9
(3d Cir. 1993), suggests, in a footnote, that the Third Circuit would allow
hearsay in an affidavit because another affiant could be produced. The Third
Circuit is out of step with the weight of authority on this point,
as far as I can tell, and should remain so.
The requirement that an affidavit establish evidence admissible at trial applies equally to
parties seeking summary judgment and those who oppose it. Just as it
would be improper to seek summary judgment based on an affidavit that says
I wasnt there but Sally told me the light was red, so also
is it insufficient to oppose an affidavit from a competent witness with such
a filing. An affidavit from the person who told the affiant the
reported fact would presumably do the job because that person could testify at
trial. But Rule 56 requires an affidavit from that person, who can
testify to the fact, not the affiant who cannot. The same problem
exists with affidavits from a person who cannot testify at all. An
affidavit reciting hearsay told to the affiant is insufficient because, although the reported
facts may be true, Rule 56 requires an affidavit setting forth admissible evidence
to establish those facts. Similarly, an affidavit from a witness who cannot
testify does not do the job because that person cannot establish the same
at trial. That is true whether the witness has no personal knowledge,
is dead, or cannot testify for any other reason.
In sum, the requirement of the Rule is that the affidavit establish that
there is admissible evidence supporting the fact advanced by the party offering the
affidavit. Before the affiant died, assuming his expertise was sufficiently shown, his
affidavit was not itself admissible, but it established that there was evidencehis opinion
to be given in live testimonythat would be admissible at trial. After
the death of Dr. Alpern was established by uncontroverted evidence, his affidavit no
longer served that purpose because all it proved was that a now incompetent
witness would, if still with us, have presented admissible evidence. It failed
to establish that there remained admissible evidence establishing causation. The undisputed facts
thus established that the defense would prevail at trial on the issue of
causation. Under these circumstances summary judgment should be granted.
I believe all of the foregoing is not only consistent with but demanded
by the purpose of summary judgment, which is to avoid unnecessary trials.
Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993) (noting that
the revisions to Trial Rule 56(C) promote the expeditious resolution of lawsuits and
conserve judicial resources . . . .). If the only evidence on
the causation issue at trial will be the panels opinion, there will be
literally no evidence to support a verdict for the plaintiff and a directed
verdict will be required. There is no reason for the parties or
the taxpayers to go through the expense and effort of a trial whose
result is foreordained. Indeed, the whole purpose of Trial Rule 56 is
to flush out claims and defenses that cannot be substantiated at trial by
I would grant summary judgment in favor of the defendants on their renewed
motion for summary judgment.
SHEPARD, C.J., concurs with separate opinion.
For the sake of consistency we continue to refer to the
Appellees/Defendants collectively as Healthcare Providers. However, Dr. Feeney did not renew his
motion for summary judgment. The cause against him is still pending before
the trial court, and he is not a party to this appeal.
Compare Spier v. City of Plymouth, 593 N.E.2d 1255, 1260 (Ind.
Ct. App. 1992) ([A] party resisting a motion for summary judgment may not
use an affidavit which consists of inadmissible hearsay to create a dispute as
to an issue of material fact.), trans. denied.
Not all federal circuits share the view that the substance rather
than the form of the affidavit controls whether the affidavit may be considered
at the summary judgment stage of the proceedings. See, e.g., Wiley v.
United States, 20 F.3d 222, 226 (6th Cir. 1994) ([H]earsay evidence cannot be
considered on a motion for summary judgment.); Garside v. Osco Drug, Inc., 895
F.2d 46, 50 (1st Cir. 1990) (Hearsay evidence, inadmissible at trial, cannot be
considered on a motion for summary judgment.). Nonetheless, we are persuaded differently.
Specifically, according to the affidavit the lump in Denises breast that
she complained of in July 1991 was the same lump that continued to
grow and become painful and which was diagnosed as being carcinoma in March
1992. In Dr. Alperns opinion the failure of Dr. Harper to see
Denise between December 13, 1991, and January 10, 1992, and her failure to
recommend open biopsy of the left breast after the negative needle biopsy in
January 1992 increased Denises risk of untimely death, was a factor in the
resultant damages, altered the course of the patients disease, and hastened Denises death.
Dr. Alpern further opined that the interpretation of the needle biopsy in
January 1992 by Dr. Eisenhut and the Diagnostic Cytology Laboratory and the failure
to report that Denises lesion needed to be excised also increased Denises risk
of untimely death, was a factor in the resultant damages, altered the course
of her disease, and hastened her death.
A tortfeasor may be held liable under either the Survivorship Statute
or the Wrongful Death Statute, but not both. Best Homes, 714 N.E.2d
at 705. However, Indiana trial rules expressly permit parties to plead inconsistent,
alternative claims. Id. at 704 n.1; see also T.R. 8(E).