Reeder v. Harper

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

Indianapolis, Indiana

(Attorneys for A. Patricia Harper,

M.D.

and Indianapolis Breast Center)

JOHN DAVID HOOVER

J. SCOTT FANZINI

Hoover, Heath, Baker & Heath

Indianapolis, Indiana

(Attorneys for Carol C. Eisenhut,

M.D. and

Diagnostic Cytology Laboratory,

Inc.)

IN THE

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

) 49S05-0101-CV-37

Appellants (Plaintiffs), )

)

v. )

)

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

RUCKER, Justice

Case Summary

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 court’s 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. Feeney’s office

complaining about the lump and the pain. On the advice of Dr. Feeney’s

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 Denise’s 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 Denise’s 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 Denise’s 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 Denise’s

cancer caused her physical pain and mental anguish. Denise’s 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 Denise’s estate (referred to

collectively as “the Palmers”) amended the proposed complaint to reflect

that Denise had died. Count I alleged a survivorship action for Denise’s

physical pain and mental anguish prior to her death as well as Dennis’

claim for the loss of his wife’s services prior to her death. Count II

alleged an action for Denise’s 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 patient’s 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 patient’s

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 Panel’s conclusion and

opined instead that Healthcare Providers’ actions altered the course of

Denise’s 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.[1] In opposition, the

Palmers again designated Dr. Alpern’s 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 court’s 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).

Discussion

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,[2] 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 controls:

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), aff’d

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); Petruzzi’s 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 plaintiff’s 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 decedent’s 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:

[Appellant’s] 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 affidavit’s 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 decedent’s] 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

Indiana’s 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.[3]

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

Moore’s 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 facts as would be admissible at trial[.]” 11

James Wm. Moore et al., Moore’s Federal Practice § 56.14[1][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 Denise’s pain and was

causally connected to her death.[4] 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

decedent’s survivors may be compensated for the loss sustained by reason of

the death. Durham ex rel. Estate of Wade v. U-Haul Int’l, 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 patient’s 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 patient’s disease, and hastened her

death.” R. at 128. Because Dr. Alpern’s affidavit created a genuine issue

of material fact concerning whether Healthcare Providers’ conduct caused

Denise’s 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.[5]

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 Denise’s 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 Denise’s mental anguish and

physical pain, the trial court erred by granting Healthcare Providers’

motion for summary judgment on the Palmers’ survivorship claim.

Conclusion

We reverse the trial court’s 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 majority’s

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 majority’s 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 has died.

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 panel’s opinion, admissible in

evidence by statute, that there was no causal relationship between the

defendant’s acts and the plaintiff’s 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 plaintiff’s injury. So far, so

good. The plaintiff’s 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 therein.”

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 case—renew 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 defendant’s renewed summary judgment with an affidavit from a

competent witness controverting the panel’s 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 Posner’s

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

majority’s 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 court’s 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 Petruzzi’s 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 wasn’t 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 evidence—his opinion to be given in live

testimony—that 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 panel’s 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 admissible evidence.

I would grant summary judgment in favor of the defendants on their

renewed motion for summary judgment.

SHEPARD, C.J., concurs with separate opinion.

-----------------------

[1] 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.

[2] 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.

[3] 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.

[4] Specifically, according to the affidavit the lump in Denise’s

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. Alpern’s 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 Denise’s risk of untimely death, was a factor in

the resultant damages, altered the course of the patient’s disease, and

hastened Denise’s 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 Denise’s lesion needed

to be excised also increased Denise’s risk of untimely death, was a factor

in the resultant damages, altered the course of her disease, and hastened

her death.

[5] 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).