stating “the facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, affidavits, admissions, answers to interrogatories, or testimony presented at the hearing”
How later courts described this case
- stating “the facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, affidavits, admissions, answers to interrogatories, or testimony presented at the hearing”
- upholding summary judgment against one of several defendants because plaintiff failed to provide expert testimony rebutting opinion of medical review panel
Written by the judges who cited it.
The opinion
ON CIVIL PETITION TO TRANSFER
GIVAN, Justice,
dissenting.
I respectfully dissent from the majority opinion in this case. I cannot agree with the rationalization in the majority opinion that because the medical review panel decision was not properly certified, the improperly certified affidavits of the plaintiff's experts also should be considered.
In the first place, I find nothing in this record to indicate that the authenticity of the medical review panel's decision was ever challenged or questioned. In the see-ond place, even if we would assume for the sake of argument that the panel's decision was not properly certified, such is not a valid reason to ignore the existing law followed by both the Court of Appeals and the trial court.
As stated in the Court of Appeals slip opinion at 6, "An unsworn statement or uncertified exhibit does not qualify for consideration in a summary judgment action," citing McMahan v. Snap On Tool Corp. (1985), Ind.App., 478 N.E.2d 116, 122, n. 4 ; Freson v. Combs (1982), Ind.App., 433 N.E.2d 55, 59 ; and Pomerenke v. National Life and Accident Insurance Co. (1968), 143 Ind.App. 472, 474 , 241 N.E.2d 890 , 892. The Court of Appeals also refers us to Ind. Trial Rule 30(F).
This is a hard case and one would feel much more comfortable if appellant's physicians' statements had been properly entered in evidence. However, I cannot justify ignoring the well-established rules because we wish they had been followed.
I believe the Court of Appeals reached the correct decision in this case. I would deny transfer.