Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be             Sep 15 2014, 6:36 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEES:

RICHARD A. JONES                                  CAROL A. DILLON
Indianapolis, Indiana                             Bleeke Dillon Crandall
                                                  Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

SHELLEY MURPHY,                      )
                                     )
     Appellant-Plaintiff,            )
                                     )
            vs.                      )                     No. 49A02-1311-CT-915
                                     )
INDIANA WOMEN’S PRISON and           )
CORRECTIONAL MEDICAL SERVICES, INC., )
                                     )
     Appellees-Defendants.           )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Cynthia J. Ayers, Judge
                            Cause No. 49D04-0905-CT-23167



                                      September 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

        Shelley Murphy appeals the trial court’s denial of her motion to set aside summary

judgment in favor of Indiana Women’s Prison (“the Prison”) and Correctional Medical

Services, Inc. (“CMS”) on Murphy’s complaint alleging medical malpractice. Murphy

presents a single dispositive issue for our review, namely, whether the trial court abused

its discretion when it denied her motion to set aside the summary judgment.

        We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On May 15, 2009, Murphy filed a complaint for damages 1 against the Prison and

CMS alleging that CMS committed medical malpractice which resulted in the premature

delivery of Murphy’s baby in 2008.2 More than two years later, on September 27, 2011,

CMS filed a motion for summary judgment, and on October 11, the Prison moved to join

CMS’ summary judgment motion.                   On October 21, Murphy filed a motion for

enlargement of time to respond to the summary judgment motion. The trial court granted

that motion and ordered Murphy to respond by December 30, 2011. On December 21,

Murphy filed a second motion for enlargement of time to respond to the summary

judgment motion. The trial court granted that motion over CMS’s objection and ordered

Murphy to respond after discovery had been completed or by May 1, 2012, whichever



        1
          This action is exempt from the Indiana Medical Malpractice Act because CMS is not a qualified
health care provider under Indiana Code Chapter 34-18-3.
        2
           We admonish Murphy for failing to include in her appendix on appeal a meaningful table of
contents. Instead of identifying by name each item included in the appendix, Murphy merely identified
parts of the appendix as “Part of Clerk’s Record” and listed dates and page numbers. The lack of a useful
table of contents is not consistent with the spirit of Indiana Appellate Rule 50(A)(2) and severely hindered
our review on appeal.
                                                     2
came first. And the trial court scheduled a hearing on the summary judgment motion for

May 23, 2012.

        Murphy did not submit a response to CMS’s summary judgment motion or request

an enlargement of time by the May 1 deadline. Regardless, on May 4, CMS filed a reply

in support of its summary judgment motion. And on May 15, the trial court vacated the

summary judgment hearing and entered summary judgment in favor of CMS and the

Prison.

        On July 20, Murphy filed a motion for relief from entry of summary judgment and

a motion to identify expert witness after expiration of the specified period. 3 In the motion

for relief from judgment, Murphy’s counsel alleged in relevant part that

        7.     Due to a mental stress condition suffered on April 29, 2012[,] by
        counsel for the Plaintiff caused by a combination of an acute mental shock
        experienced on April 29, 2012[,] as a result of the potentially fatal brain
        injury suffered by counsel for Plaintiff’s ten year old son, Sean, and recent
        family stressors in the form of fatal illness of counsel’s father, David Jones,
        counsel for Plaintiff failed to file the necessary third extension of time to
        respond to motion for summary judgment on April 30, 2012[,] as counsel
        planned, or May 1, 2012, and had done twice prior and had informed
        opposing counsel that extensions would be filed until discovery is
        completed with the taking of all necessary depositions after interrogatories
        have been completed.

        8.     Also, as a result of counsel for Plaintiff’s mental stress and mental
        shock condition, the traumatic injury to counsel for Plaintiff’s son, Sean,
        and the fact that counsel for the Plaintiff was in Birmingham, A[L,] dealing
        with the death of his father, counsel for the Plaintiff could not file a reply
        nor a belated third extension of time to respond to summary judgment
        before this court granted Defendant’s reply in support of the motion for
        summary judgment.



        3
            It is well-settled that a trial court may not alter the time limits in Trial Rule 56 if a nonmovant
fails to file a response or request an extension within the prescribed time. See, e.g., DeLage Landen Fin.
Servs., Inc. v. Comm. Mental Health Ctr., Inc., 965 N.E.2d 693, 699 (Ind. Ct. App. 2012).
                                                      3
9.    On June 25, 2012, Plaintiff filed a belated third extension of time to
respond to motions for summary judgment.

10.    Plaintiff and her counsel are still pursuing discovery to prove the
Plaintiff’s complex case. Plaintiff has issued multiple sets of Request for
Production and intend to issue others after Defendant has responded to all
Plaintiff’s Interrogatories.

11.    On December 16, 2011, Plaintiff issued a Third Set of
Interrogatories to Defendants.

12.    In Defendant [CMS]’s response to Plaintiff’s Third Set of
Interrogatories, the Defendant made a general objection as to the number of
Interrogatories in Plaintiff’s Third Set of Interrogatories. The Defendant
made the argument that the Third Set greatly exceeds the allowed amount
under Marion County Local Rules 213. Therefore, Defendant only
answered the first 25 of Plaintiff’s Interrogatories, including subparts,
which is through Interrogatory No. 10, subpart a, and objected to the rest.

                                    ***

16.    Since counsel for the Plaintiff had at least two additional sets of
interrogatories before Plaintiff’s counsel could begin scheduling
depositions on Defendant’s employees and medical experts, it was
impossible for counsel for the Plaintiff to file a response to Defendant’s
motion for summary judgment. Counsel planned to file his first
enlargement of time to name expert witnesses on Monday, April 30, 2012.
The deadline to respond to the Motion for Summary Judgment and to name
expert witnesses was May 1, 2012.

                                    ***

30.     At the end of March and the beginning of April counsel for the
Plaintiff had been working a lot of hours. Also, counsel for the Plaintiff in
the beginning of April had to travel to Birmingham, A[L.] to see his father
who had been dealing with some serious health issues. While in
Birmingham, A[L.] visiting his father in the beginning of April, counsel for
the Plaintiff contracted a virus and could not get out of bed for several days
upon returning to home. Counsel for the Plaintiff got very little sleep the
entire month of April and was extremely fatigued from the virus, work
load, driving to Birmingham, A[L.] to deal with issues concerning his
father’s health, and high dosage of over the counter medication for flu[-
]like symptoms and bad allergic reactions to the foliage in Alabama.


                                      4
                                           ***

       33.     Counsel for the Plaintiff returned to town on May 20, 2012[,] and
       counsel returned to the office on May 21, 2012. Because the order was
       granted less than twenty (20) days after the filing of the Defendant’s May 4
       pleading, counsel for the Plaintiff was not given due process to respond to
       the Defendant’s May 4 pleading requesting the court to grant the
       Defendant’s Motion for Summary Judgment because the opposing party
       failed to offer opposing affidavits or evidence.

       34.    Due to counsel for Plaintiff’s posttraumatic mental stress condition
       precipitated by the acute traumatic accident on April 29, 2012[,] combined
       with fatigue, counsel completely lost any memory of the May 1, 2012[,]
       filing deadline and lost the capacity to focus on work[-]related
       responsibilities temporarily.

Appellant’s App. at 34-43. Murphy then moved the trial court to set aside the summary

judgment because of her counsel’s alleged excusable neglect, mistake or surprise under

Trial Rule 60(B)(1).

       CMS filed a response to Murphy’s motion to set aside summary judgment. CMS

asserted in relevant part that, as of May 1, 2012, CMS had “responded to all of Plaintiff’s

discovery requests in a timely manner and the Co-Defendant’s discovery responses had

nothing to do with [CMS]’s Motion for Summary Judgment, which was based on expert

medical [testimony] about the standard of care and causation.” Appellee CMS’s App. at

20. CMS further stated, “This case has now been pending for over 3 years and Plaintiff is

still saying she needs more discovery to prove her case. This is simply unreasonable.”

Id. Finally, CMS averred as follows:

       Plaintiff claims that she should get relief from judgment under Trial Rule
       60(B)(1) because she needs yet more time to retain an expert and more time
       for the Co-Defendant, Indiana Department of Correction, to complete
       discovery, and more time to take depositions. Plaintiff’s counsel also
       claims that his family issues caused him to ignore his responsibilities in this
       case, which is “excusable neglect.” However, the Court should consider
                                             5
       that this case has been pending for over three years and Plaintiff never
       undertook what she claims was the necessary discovery, depositions, or
       expert retention to prove her case. The purpose of summary judgment is to
       cut off a case that does not need to go to a jury. That is precisely what
       [CMS] did in its September 27, 2011[,] Motion for Summary Judgment. In
       response to that Motion, Plaintiff needed to provide expert medical
       testimony from a doctor to show that there was an issue of fact regarding
       whether the standard of care was breached and whether that breach was the
       proximate cause of Plaintiff’s premature delivery. Plaintiff wants to excuse
       three years of inaction in prosecuting her case by showing the court that
       Plaintiff’s counsel’s son was injured two days before her response to the
       Motion for Summary Judgment was due; a Motion that Plaintiff had 8
       months to respond to. While Plaintiff’s counsel’s personal issues were no
       doubt problematic for him, they did not prevent Plaintiff’s counsel from
       doing what he needed to do to properly respond to [CMS]’s Motion for
       Summary Judgment.

Id. at 22-23 (emphasis original).

       Following a hearing on Murphy’s motion to set aside summary judgment, the trial

court denied that motion. Murphy filed a motion to correct error, which the trial court

also denied following a hearing. This appeal ensued.

                              DISCUSSION AND DECISION

       Murphy contends that the trial court abused its discretion when it denied her Trial

Rule 60(B)(1) motion for relief from judgment.4 Trial Rule 60(B)(1) provides that on

motion and upon such terms as are just the court may relieve a party or his legal

representative from an entry of default, final order, or final judgment, including a

judgment by default, for reasons including mistake, surprise, or excusable neglect. We

set out the applicable standard of review in Deutsche Bank National Trust Company v.

Harris, 985 N.E.2d 804, 813 (Ind. Ct. App. 2013):



       4
        Murphy also contends that the trial court erred when it entered summary judgment in favor of
CMS and the Prison, but she did not file a timely appeal from that judgment.
                                                 6
      The burden is on the movant to establish grounds for Trial Rule 60(B)
      relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). A
      motion made under Rule 60(B) is addressed to the equitable discretion of
      the trial court; the grant or denial of the Rule 60(B) motion will be
      disturbed only when that discretion has been abused. Id. at 740-741
      (citation and quotation marks omitted). An abuse of discretion will be
      found only when the trial court’s action is clearly erroneous, that is, against
      the logic and effect of the facts before it and the inferences which may be
      drawn therefrom. Id. at 741 (citation and quotation marks omitted). A
      motion for relief from judgment under Rule 60(B) is not a substitute for a
      direct appeal. Id. at 740. Rule 60(B) motions address only the procedural,
      equitable grounds justifying relief from the legal finality of a final
      judgment, not the legal merits of the judgment. Id.

      Here, Murphy points out, correctly, that “there is no general rule as to what

constitutes excusable neglect under Trial Rule 60(B)(1)” and “[e]ach case must be

determined on its particular facts.”     Appellant’s Br. at 21 (citing Kmart Corp. v.

Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999), trans. denied). Murphy also

points out that, in Kmart, we observed that the sickness of a party or the illness of a

family member has been held to constitute excusable neglect. See id. And Murphy

maintains that the death of her counsel’s father and the acute illness of her counsel’s son

prevented her counsel from timely responding to the summary judgment motion or

requesting a third enlargement of time to respond and constitute excusable neglect. We

cannot agree.

      Under some circumstances, death and serious illness within an attorney’s family

might well be grounds for relief from judgment based on excusable neglect, but not when

considering the procedural history of this case. As CMS contends, as of April 29, 2012,

two days before the May 1 deadline to file a response, Murphy’s counsel had not




                                            7
obtained an expert witness5 or otherwise prepared to file a response to the summary

judgment motion. Murphy’s counsel’s only plan was to request a third enlargement of

time to respond to the summary judgment motion, but, of course, there was no guarantee

that that request would have been granted. Indeed, the trial court granted the second

enlargement of time over CMS’s objection. We agree with CMS that there is no excuse

for Murphy’s counsel’s failure to have been prepared to respond to the summary

judgment motion by May 1, 2012, which was approximately seven months after CMS

filed its summary judgment motion and three years after Murphy filed her complaint.

The trial court did not abuse its discretion when it denied Murphy’s motion to set aside

the summary judgment.6

        Murphy also contends that the trial court erred when it denied her the opportunity

to present evidence at the hearing on her motion to set aside the summary judgment.

Trial Rule 60(D) provides in relevant part that, in passing on a Trial Rule 60(B) motion,

the trial court “shall hear any pertinent evidence[.]” But in her brief on appeal, Murphy

does not explain what evidence she would have presented at that hearing or how that

evidence was pertinent to her Trial Rule 60(B) motion.7                    Accordingly, Murphy has


        5
           As CMS points out, as a general rule, “[t]o determine whether the physician’s conduct fell
below the legally prescribed standard of care, the plaintiff must present expert testimony to establish what
a reasonably prudent physician would or would not have done in treating the plaintiff.” Bhatia v.
Kollipara, 916 N.E.2d 242, 245-46 (Ind. Ct. App. 2009). Failure to provide expert testimony will usually
subject the plaintiff’s claim to summary disposition. Id. at 246. We note that Murphy makes no
contention that she was not required to present expert testimony in opposition to CMS’s summary
judgment motion.
        6
         Accordingly, we do not reach Murphy’s contention that the trial court erred when it granted
summary judgment in favor of CMS and the Prison.
        7
           In her brief on appeal, Murphy directs us to her proffered witness and exhibit list in the
appendix, but she does not provide cogent argument to explain how the testimony of the listed witnesses
                                                     8
waived that issue for our review. Waiver notwithstanding, to the extent Murphy contends

she was denied an opportunity to present evidence pertinent to the meritorious claim

element of her Trial Rule 60(B) motion, any error was harmless. The trial court denied

Murphy’s motion to set aside the summary judgment solely based on her failure to show

excusable neglect, mistake, or surprise and did not reach the meritorious claim element,

and we affirm the trial court.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




or the exhibits would have been pertinent to her Trial Rule 60(B) motion. Murphy states only that the
trial court excluded “relevant and pertinent evidence on the material issues.” Appellant’s Br. at 23.
                                                 9
