MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                       May 24 2017, 9:30 am

precedent or cited before any court except for the                      CLERK
purpose of establishing the defense of res judicata,                Indiana Supreme Court
                                                                       Court of Appeals
collateral estoppel, or the law of the case.                             and Tax Court




ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
David J. Cutshaw                                         Edward W. Hearn
Gabriel A. Hawkins                                       Alan M. Kus
Cohen & Malad, LLP                                       Johnson & Bell P.C.
Indianapolis, Indiana                                    Crown Point, Indiana

Barry D. Rooth
Holly S.C. Wojcik
William A. Theodoros
Theodoros & Rooth, P.C.
Merrillville, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Josephina Aguila on behalf of                            May 24, 2017
Pedro Aguila, Frederick Ard,                             Court of Appeals Case No.
Darren Bala, Robert Besler, Cella                        45A03-1609-CT-2069
King, and Larry Salinas as                               Appeal from the Lake Superior
Personal Representative of the                           Court.
                                                         The Honorable Calvin D. Hawkins,
Estate of Amelia Porras,                                 Judge.
Appellants-Petitioners,                                  Trial Court Cause No.
                                                         45D02-1604-CT-65
        v.

Anonymous Physicians 1 & 2,
Anonymous Medical P.C.,
Anonymous Hospital, G.
Anthony Bertig, and Stephen
Robertson, as Commissioner of


Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017         Page 1 of 10
      the Indiana Department of
      Insurance,
      Appellees-Respondents.




      Shepard, Senior Judge

[1]   The trial court determined Anonymous Hospital presented sufficient grounds to

      set aside the entry of default judgment. The appellants, who are patients or

      representatives of patients who were treated by the Hospital, challenge the

      court’s decision. We conclude the court did not abuse its discretion in setting

      aside the default.


[2]   The appellants, whom we will refer to as the Patients, were treated by

      Anonymous Physicians 1 and 2, Anonymous Medical P.C., and the Hospital.

      The Patients claim the physicians performed unnecessary surgeries and, further,

      that the Hospital negligently credentialed the physicians and were aware of the

      unnecessary surgeries but allowed them to continue.


[3]   Between July 31, 2014 and October 27, 2014, the Patients filed proposed
                                                                                                         1
      medical malpractice complaints with the Indiana Department of Insurance.

      The Department of Insurance assembled medical malpractice review panels for




      1
       Approximately 300 other patients filed similar complaints against Anonymous Physicians 1 and 2,
      Anonymous Medical P.C., and the Hospital.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017          Page 2 of 10
      the Patients’ cases, and G. Anthony Bertig was selected as the chairperson of

      each of the six panels.


[4]   Bertig set deadlines for the parties to submit evidence to the panels, and the

      Hospital failed to comply in all six cases. For example, in Salinas’ case, on

      April 16, 2015, Bertig instructed the Hospital to submit its submission no later

      than July 31, 2015. In Aguila’s case, on September 8, 2015, Bertig instructed

      the Hospital to file by January 15, 2016. The Hospital did not meet any of the

      deadlines. The physicians and the Medical P.C. failed to file submissions in

      four of the six cases.


[5]   On April 26, 2016, the Patients filed a Petition for Preliminary Determination

      and Default Judgment, asking the court to enter default judgment against all

      defendants for failure to timely submit documents to the panels. On May 2,

      2016, the court granted the default and entered judgment.


[6]   The court later set aside the May 2 order to allow the physicians, the Center,

      and the Hospital to respond to the Patients’ petition. The Hospital moved to

      dismiss, arguing the court lacked authority to rule on the Patients’ request. The

      Hospital also filed its submissions with the review panels in all six cases on July

      11, 2016, the day before a scheduled trial court hearing. Meanwhile, Physicians

      1 and 2 also filed their submissions in all six cases. Patients and the physicians

      later stipulated that Physicians 1 & 2 and the Center would be dismissed from

      the preliminary determination. The Patients and the Hospital did not reach a

      similar agreement.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 3 of 10
[7]    On July 13, 2016, the court entered default against the Hospital for a second

       time. The Hospital filed a motion to set aside the default pursuant to Indiana

       Trial Rule 60(B)(1), and the Patients asked to schedule a hearing on damages.

       After further briefing and oral argument, the court granted the Hospital’s

       motion, concluding it presented “a viable basis for relief under Trial Rule

       60(B).” Appellants’ App. Vol. II, p. 19.


[8]    Indiana Trial Rule 60(B)(1) states:

                (B) Mistake-Excusable neglect-Newly discovered evidence-
                Fraud, etc. On motion and upon such terms as are just the court
                may relieve a party or his legal representative from a judgment,
                including a judgment by default, for the following reasons:
                (1) mistake, surprise, or excusable neglect; . . . .

       A party who files a motion under Rule 60(B)(1) must demonstrate “a

       meritorious claim or defense.” Id.


[9]    A Rule 60(B) motion is addressed to the equitable discretion of the court, and

       we reverse only upon an abuse. Brimhall v. Brewster, 864 N.E.2d 1148 (Ind. Ct.

       App. 2007), trans. denied. An abuse of discretion occurs if the court’s decision is

       clearly against the logic and effect of the facts and circumstances or if the court

       has misinterpreted the law. Baxter v. State, 734 N.E.2d 642 (Ind. Ct. App.

       2000).


[10]   The trial court’s discretion is necessarily broad in this area because any

       determination of excusable neglect, surprise, or mistake must turn upon the

       unique factual background of each case. Kmart Corp. v. Englebright, 719 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 4 of 10
       1249 (Ind. Ct. App. 1999), trans. denied. Any doubt of the propriety of a default

       judgment should be resolved in favor of the defaulted party. Coslett v. Weddle

       Bros. Constr. Co., Inc., 798 N.E.2d 859 (Ind. 2003). Reinstatement of a case is

       ultimately a matter of equity. Baker & Daniels, LLP v. Coachmen Indus., Inc., 924

       N.E.2d 130 (Ind. Ct. App. 2010), trans. denied.


[11]   The Patients raise several claims in support of their argument that the court

       should not have set aside the default. They claim the Hospital is erroneously

       attempting to litigate the merits of the case rather than present equitable

       considerations. They also claim the Hospital erroneously submitted new

       evidence in support of its motion for relief, and the evidence was inadmissible

       because it could have been presented prior to default.


[12]   The Patients also argue the Hospital’s failure to timely file its submissions was

       sufficiently egregious that the entry of a default was appropriate and well within

       the court’s discretion. They claim the Hospital’s noncompliance is “more

       egregious than that found in every case disclosed by petitioners’ research.”

       Appellants’ Br. p. 32. The Patients conclude vacating the default was an

       inappropriate response to such misfeasance.


[13]   They further contend the Hospital has failed to show good cause for setting

       aside the default judgment, stating the Hospital erroneously chose to focus on

       its late discovery responses rather than its late evidentiary submissions, and

       must be held accountable for that choice. They say they warned the Hospital

       about the late submissions several weeks before moving for preliminary


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 5 of 10
       determination. They also argue that the January 24, 2016 death of the spouse

       of the Hospital’s primary attorney does not amount to good cause because they

       had agreed to extend case deadlines because of the death, but the Hospital was

       unreasonably late months after the fact. Finally, the Patients say that the one-

       year delay in each of their cases was severely prejudicial.


[14]   In response, the Hospital states this case would be the first to hold that a court

       abused its discretion by vacating a grant of default judgment. This is not quite

       accurate. A panel of this Court reversed a court’s vacatur of a dismissal for

       failure to prosecute, determining the court abused its discretion. Munster Cmty.

       Hosp. v. Bernacke, 874 N.E.2d 611 (Ind. Ct. App. 2007).


[15]   The Hospital states the evidence shows excusable neglect because Bertig’s

       deadlines were flexible and the death of the spouse of the Hospital’s primary

       attorney on these cases prevented the Hospital from completing the

       submissions. The Hospital also claims Patients’ counsel gave it the impression

       that Patients wanted the Hospital to prioritize responding to discovery requests

       in all the malpractice cases instead of filing evidentiary submissions with the

       review panels. The Hospital reasons that, at best, the choice to prioritize

       discovery responses over panel submissions based on discussions with the

       Patients was a mistake that does not warrant the sanction of default. The

       Hospital further claims its submissions were delayed in part because the

       Patients were slow to respond to the Hospital’s discovery requests.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 6 of 10
[16]   In addition, the Hospital argues the Patients never took steps in the context of

       the review panel process to resolve the issue of the Hospital’s overdue

       submissions, such as asking the review panels to decide the cases without the

       Hospital’s submissions. To the contrary, the Hospital notes that after the

       spouse of Hospital’s attorney died, Patients agreed to work with the Hospital on

       pending issues such as discovery and the submissions. Instead, the Hospital

       argues, they surprised the Hospital by moving for preliminary determination. 2


[17]   The Hospital disputes the Patients’ claim that it is inappropriate to cite evidence

       in support of a motion for relief from judgment if the evidence could have been

       submitted prior to the entry of default judgment. In any event, the Hospital

       also argues that most of the evidence it submitted with its motion for relief from

       judgment had already been submitted to the court in other parties’ documents.

       Finally, the Hospital disagrees with the Patients that it was barred from

       discussing the merits of the litigation in its motion for relief from judgment.


[18]   In reply, the Patients argue the Hospital failed to demonstrate it was worthy of

       the equitable remedy provided by Rule 60(B)(1) because it inappropriately

       argued substantive law instead of equitable considerations. They say the

       Hospital could not have reasonably understood there was indefinite flexibility

       in the panels’ deadlines because the Hospital requested extensions of the




       2
         The Hospital also argues it had meritorious defenses to the Patients’ claims, a requisite showing to support
       relief from judgment. Whelchel v. Cmty. Hosps. of Ind., Inc., 629 N.E.2d 900 (Ind. Ct. App. 1994), trans. denied.
       At the hearing on the Hospital’s motion for relief from judgment, the Patients declined to contest that issue,
       stating, “It’s correct we’re not challenging that they had a meritorious defense.” Tr. Vol. 2, p. 65.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017                  Page 7 of 10
       deadlines in June 2016, which was after the Patients filed their petition for

       preliminary determination. In addition, the Patients reiterate they told the

       Hospital its submissions were late several weeks before they filed the petition.


[19]   Regarding discovery, the Patients note that the Hospital filed the submissions

       the day before a court hearing even though discovery was not complete. They

       conclude from these circumstances that the Patients’ delayed discovery

       responses could not have been a significant impediment to the Hospital’s filing

       of evidentiary submissions with the review panels.


[20]   On the question of prejudice, Patients claim that the Hospital’s filing of its

       submissions with the review panels one day before a court hearing was

       inadequate to cure the delay. They say the Hospital should not be allowed to

       attack the underlying sanctions determination and is barred from presenting

       evidence in support of its motion for relief from judgment if the evidence could

       have been raised prior to default.


[21]   We must consider the parties’ arguments in accordance with our standard of

       review by determining whether the court’s decision to set aside the default was

       clearly against the logic and effect of the facts and circumstances before the

       court. Our answer is no. We cannot agree with the Patients that the Hospital

       was barred from presenting evidence that could have been presented prior to

       default. Per the plain language of Trial Rule 60(B), only motions filed under

       60(B)(2) are subject to such a limitation.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 8 of 10
[22]   In addition, we cannot agree that the Hospital should not have discussed the

       merits of the parties’ claims while seeking relief from default. It is true that a

       Trial Rule 60(B)(1) motion does not attack the substantive, legal merits of the

       judgment but rather addresses the procedural, equitable grounds justifying the

       relief from the finality of a judgment. Kmart Corp., 719 N.E.2d 1249. Some

       discussion of the merits is unavoidable because a movant must demonstrate a

       meritorious claim or defense in relation to the parties’ allegations. Ind. Tr. Rule

       60(B). In this case, the Hospital also presented to the court equitable arguments

       in favor of setting aside the default.


[23]   Ultimately, the trial court’s decision was well within its discretion. The court

       balanced the prejudice to the Patients against the Hospital’s right to present a

       defense. See Tr. Vol. 2, pp. 79-80. The Hospital, which was defending against

       300 malpractice cases, demonstrated that the death of its attorney’s spouse

       delayed its responses. The Patients expressed a willingness to work with the

       Hospital due to this tragedy. When the Hospital’s new attorney contacted the

       Patients’ attorney in April 2016, he asked the Patients to state their priorities for

       the various cases. The Patients’ attorney mentioned that the evidentiary

       submissions were overdue but stated that receiving discovery responses from

       the Hospital was the highest priority.


[24]   Although the Patients were not required to seek lesser sanctions before

       requesting default, it is relevant to the facts and circumstances that the Patients

       did not first seek lesser sanctions, such as asking the panel chairperson to

       consider the cases without the late submissions. Cf. Ross v. Bachkurinskiy, 770

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 9 of 10
       N.E.2d 389 (Ind. Ct. App. 2002) (no abuse in denying motion for relief from

       default; court warned plaintiff that failure to comply with discovery deadlines

       could result in default).


[25]   Finally, it is curious that both the Anonymous Physicians and the Hospital

       were tardy in filing submissions, but when the physicians and the Hospital filed

       their submissions after the court proceedings began, the Patients were willing to

       dismiss only the Anonymous Physicians from the trial court proceedings.

       Considering these facts and circumstances, we find no abuse of discretion.


[26]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2069 | May 24, 2017   Page 10 of 10
