Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before                          Aug 15 2012, 8:51 am
any court except for the purpose of
establishing the defense of res judicata,                             CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
collateral estoppel, or the law of the case.                               tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEES:

STEPHEN B. CAPLIN                                  KARL L. MULVANEY
Caplin Sniderman P.C.                              NANAQUAY-SMITH
Carmel, Indiana                                    MARY H. WATTS
                                                   Bingham Greenebaum Doll LLP
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TRACY LYNN WESTON, as Personal                     )
Representative of the Estate of CLINTON            )
DALE WESTON, Deceased,                             )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )       No. 21A01-1112-PL-583
                                                   )
SCOTT D. LONGEVIN, M.D., and                       )
PREFERRED EMERGENCY                                )
SPECIALISTS, INC.,                                 )
                                                   )
       Appellees-Defendants.                       )

                      APPEAL FROM THE FAYETTE CIRCUIT COURT
                          The Honorable Beth Ann Butsch, Judge
                              Cause No. 21C01-0904-PL-108


                                         August 15, 2012


                 MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                     Case Summary and Issue

       After the death of Clinton Weston, Tracy Weston, acting as personal representative of

the Estate of Clinton Dale Weston, brought a medical malpractice action against Scott

Longevin, M.D., Preferred Emergency Specialists, Inc.,1 and Fayette Memorial Hospital.2

After the medical review panel issued its opinion, Dr. Longevin and Preferred (collectively,

the “Defendants”) moved for summary judgment, and the trial court granted their motion.

Thereafter the trial court denied Weston’s motion to correct error. Weston now appeals,

raising three arguments, one of which we find dispositive: whether the designated evidence

raises a genuine issue of material fact such that summary judgment is improper. Concluding

the Defendants failed to meet their burden of establishing that no genuine issue of material

fact exists and they are entitled to summary judgment as a matter of law, we reverse and

remand.

                                  Facts and Procedural History

           Pursuant to the Indiana Medical Malpractice Act, Weston’s complaint was presented

to a medical review panel. See Ind. Code § 34-18-8-4. The panel rendered a unanimous

expert opinion as to Dr. Longevin “that there is a material issue of fact, not requiring expert

opinion, bearing on liability for consideration by the court or jury.” Appellant’s Appendix at

92.


       1
          Weston contends Preferred Emergency Specialists, Inc., employs Dr. Longevin and is therefore
vicariously liable for his negligent treatment of Clinton Weston.
       2
          The medical review panel unanimously concluded “the evidence supports the conclusion that
Defendant, Fayette Memorial Hospital, failed to meet the applicable standard of care as charged in the
Complaint, but that such conduct was not a factor in the damages claimed.” Thereafter, Fayette Memorial
Hospital was dismissed from the case.

                                                  2
       Weston then filed a complaint with the trial court, asserting a wrongful death cause of

action. The Defendants filed a motion for summary judgment and, eventually, a request for a

hearing on their motion for summary judgment. On November 22, 2010, Weston filed a

motion for extension of time to respond to the Defendants’ motion for summary judgment

and to continue the scheduled hearing on the motion for summary judgment, which the trial

court granted. Thereafter, the Defendants filed a supplemental designation of evidence in

support of their motion for summary judgment, which included affidavits of Drs. Mark

Reiger, Ed Stone, and Julie Miramonti, all of whom served on the medical review panel in

this case. The affidavits of Drs. Reiger and Miramonti both state:

       4. As a member of the Medical Review Panel, I had access to and reviewed
       the submissions and all attached medical records and other exhibits of all
       parties regarding Clinton Dale Weston. I rendered the opinion . . . which
       found a question of fact with regard to Dr. Longevin. The question of fact was
       whether Dr. Longevin ordered Dopamine wide open for the duration of
       treatment at Fayette Memorial Hospital and when he was notified of a drop in
       Oxygen saturations by the nursing staff.
       5. It is my opinion that regardless of the Dopamine order and the timing of
       notification of a drop in Oxygen saturation, it is more probable than not that
       neither of these issues changed the outcome, which was that Mr. Weston’s
       death was caused by overwhelming sepsis.
       6. Dr. Longevin met the standard of care with regard to the other issues
       alleged by Plaintiff. Even if Dr. Longevin had been aware that Mr. Weston did
       not have a spleen, antibiotics would not be given upon presentation to the
       emergency department. Dr. Longevin’s workup and treatment of Mr. Weston
       were appropriate, and Dr. Longevin appropriately addressed Mr. Weston’s
       change in condition.

Id. at 106-07, 126-27 (emphasis added). Dr. Stone’s affidavit, which is very similar, states:

       4. As a member of the Medical Review Panel, I had access to and reviewed
       the submissions and all attached medical records and other exhibits of all
       parties regarding Clinton Dale Weston. I rendered the opinion . . . which
       found a question of fact with regard to Dr. Longevin. The question of fact was


                                              3
       whether Dr. Longevin ordered Dopamine wide open for the duration of
       treatment at Fayette Memorial Hospital and at what time he was notified of a
       drop in oxygen saturations by the nursing staff.
       5. It is my opinion that regardless of the Dopamine order and the timing of
       notification of a drop in O2 sats [sic], that neither one of these issues were a
       cause of Mr. Weston’s death from overwhelming sepsis.
       6. Dr. Longevin met the standard of care with regard to the other issues
       alleged by Plaintiff; specifically . . . Mr. Weston presented with classic signs
       and symptoms of narcotic withdrawal. He did not have evidence of an
       infection upon presentation and the work up ordered by Dr. Longevin was
       appropriate. Even if Dr. Longevin had been aware that Mr. Weston did not
       have a spleen, antibiotics would not be given in this situation in the absence of
       evidence of an infectious process.

Id. at 117.

       On January 4, 2011, Weston filed her second motion for extension of time, which the

trial court also granted. Then, on January 11, 2011, Weston filed an unopposed third motion

for extension of time to respond to the Defendants’ motion for summary judgment, stating

“[c]ounsel for Preferred has requested to take the deposition of Dr. Brunett,” “[c]ounsel for

the parties have mutually agreed for a 15-day extension after Dr. Brunett’s deposition for the

Plaintiff to file her response to Preferred’s SJ Motion,” and “[t]he undersigned will inform

the Court immediately when the deposition of Dr. Brunett’s deposition has been set.” Id. at

148. The trial court granted Weston’s third motion for extension of time and stated in its

order, “[t]he Court hereby enlarges the time for the Plaintiff to file her Response to

Preferred’s SJ Motion, to and including 15 days after the deposition of Expert Witness,

Jeffrey L. Brunett, M.D.” Id. at 150.

       On May 23, 2011, Dr. Brunett was deposed. On June 21, 2011, Weston filed her

response to the Defendants’ motion for summary judgment and designated as evidence an



                                              4
affidavit of Dr. Brunett. The affidavit states Dr. Longevin failed to meet the standard of care

by failing to “visualize the patient’s abdomen” and failing to obtain an appropriate medical

history of Clinton Weston. Id. at 170-72. He concludes, “[i]t is my opinion that Dr.

Longevin breached that standard of care in his care of Mr. Weston on March 9, 2010, that his

substandard care delayed the treatment of Mr. Weston’s infection, and that his substandard

care was a cause of Mr. Weston’s death.” Id. at 172.

       On July 19, 2011, the Defendants moved to strike Weston’s response as untimely. In

its August 2, 2011, order, the trial court granted the Defendants’ motion to strike Weston’s

response, and concluded “there is no just reason for the delay in the entry of final judgment

and Defendants, Scott D. Longevin, M.D. and Preferred Emergency Specialists, Inc., are

hereby granted summary judgment on all issues in this matter.” Id. at 11. Weston then

moved for an extension of time to respond to the Defendants’ motion to strike, which the trial

court deemed moot and denied. The chronological case summary reveals the trial court

considered Weston’s response to the Defendants’ motion for summary judgment due on June

7, 2011, making her response filed on June 21, 2011 untimely.

       Weston then moved to correct error, contending the trial court erred 1) “when it ruled

on the Defendants’ Motion for Summary Judgment without holding a hearing as required by

Indiana Trial Rule 56(C)” and 2) “when it allowed the Defendants to untimely supplement

their Designation of Evidence.” Id. at 186. After a hearing on Weston’s motion to correct

error, the trial court denied her motion. Weston now appeals.




                                              5
                                  Discussion and Decision

                                   I. Standard of Review

       On appeal, we apply the same standard of review as the trial court: “summary

judgment is appropriate only where the evidence shows there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable

inferences drawn from those facts are construed in favor of the non-moving party.” Sheehan

Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685, 688 (Ind. 2010) (citations omitted). The

moving parties have the burden of establishing that no genuine issue of material fact exists.

Cole v. Gohmann, 727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000). “Once the moving party has

met this burden with a prima facie showing, the burden shifts to the nonmoving party to

establish that a genuine issue does in fact exist.” Id. (citation omitted). At the summary

judgment stage, it is not the role of the court to weigh evidence or judge the credibility of

witnesses. Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind. Ct. App. 2009). Where evidence

conflicts, or undisputed facts lead to conflicting inferences, summary judgment is

inappropriate even if it appears the non-movant will not succeed at trial. Id.

        II. Weston’s Response to the Defendants’ Motion for Summary Judgment

       Weston argues her response was timely filed. The trial court’s order granting

Weston’s third motion for extension of time stated her response was due “to and including 15

days after the deposition” of Dr. Brunett. Appellant’s App. at 150. Weston does not dispute

that Dr. Brunett’s deposition occurred on May 23, 2011, nor does she dispute that she filed

her response on June 21, 2011, which is well beyond fifteen days after the deposition of Dr.



                                              6
Brunett. Trial Rule 56(C) provides that parties opposing a motion for summary judgment

have thirty days “after service of the motion to serve a response and any opposing affidavits.”

Rule 56(C) also requires the non-moving party to designate the evidence it will rely on in

establishing a genuine issue of material fact within the same timeline. Rule 56(I) provides a

trial court “may alter any time limit set forth in this rule upon motion made within the

applicable time limit.” However, “a trial court may not consider untimely filed materials

opposing summary judgment.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 96 (Ind.

2008).

         Weston attempts to argue that either her response was not late or the trial court’s order

establishing her response’s due date was improper because it created a “moving target” and

set a due date “that might never occur.” Brief of Appellant at 19.3 As to whether her

response was late, we disagree with Weston. The trial court ordered her response filed no

later than fifteen days after the deposition of Dr. Brunett, and she filed her response almost

thirty days after Dr. Brunett’s deposition. As to her claim that the trial court’s order was

somehow improper because it ordered her response due within a specific time period after a

deposition that was yet to be scheduled, rather than ordering it due on a specific date, Weston

points to no legal authority supporting the proposition that such an order is improper, nor do

we find any. See Ind. Appellate Rule 46(A)(8)(a) (“Each contention [in an appellant’s brief

on appeal] must be supported by citations to the authorities, statutes, and the Appendix or

parts of the Record on Appeal relied on . . . .”).


        Although Weston’s brief is actually titled Brief of Appellant on Appeal From Summary Judgment
         3

and Overruling Motion to Correct Errors, we will refer to it as Brief of Appellant for the sake of simplicity.

                                                      7
       Further, even if the trial court’s order was somehow in error for setting a “moving

target” date, Weston invited such error in her third motion for extension of time by requesting

“an enlargement to and including 15 days after the deposition of Plaintiff’s Expert, Jeffrey L.

Brunett, M.D., to file her Response to Preferred’s SJ Motion.” Appellant’s App. at 148; see

Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App. 2002) (“A party cannot invite error

and then request relief on appeal based upon that ground.”).

       Weston also contends that striking her response would be elevating form over

substance and allowing a “technicality” to rule the day. While we acknowledge and applaud

Weston for delivering the affidavit of Dr. Brunett to the Defendants earlier than required and

for agreeing to move for an extension of time so that the defendants would be able to depose

Dr. Brunett, that is not an excuse for having filed her response late. Rather, it solidifies the

fact that Weston was well aware of the due date for her response and had ample time to file

it. Further, our supreme court has concluded that trial courts do not have the discretion to

allow untimely filings in summary judgment proceedings. HomEq, 883 N.E.2d at 96. Thus,

the trial court did not err by granting the Defendants’ motion to strike Weston’s response.

                             IV. Genuine Issue of Material Fact

       Weston next argues genuine issues of material fact exist, rendering summary judgment

inappropriate. She contends the designated evidence, specifically the medical review panel’s

opinion and Dr. Brunett’s affidavit, create genuine issues of material fact concerning whether

Dr. Longevin committed medical malpractice in his care of Clinton Weston. Initially, we

note that when reviewing whether summary judgment is appropriate, we consider only



                                               8
evidence that was properly designated to the trial court. Dinsmore v. Fleetwood Home of

Tennessee, Inc., 906 N.E.2d 186, 190 (Ind. Ct. App. 2009). Thus, we will not consider the

evidence Weston attempted to designate with her response because such filing was untimely

and was stricken by the trial court. In other words, the affidavit of Dr. Brunett is not part of

our consideration on appeal. The opinion of the medical review panel and affidavits of each

panel member, however, were properly designated by the Defendants.

        The elements of a medical malpractice claim are: “(1) the physician owed a duty to the

plaintiff; (2) the physician breached the duty; and (3) the breach proximately caused the

plaintiff’s injuries.” Martinez v. Park, 959 N.E.2d 259, 268 (Ind. Ct. App. 2011) (citation

omitted). Summary judgment is appropriate only where 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).

The moving party bears the initial burden of showing no genuine issue of material fact exists

and summary judgment is appropriate as a matter of law, and only after the movant has met

this burden does the burden shift to the non-moving party to establish that a genuine issue of

material fact does in fact exist.4 Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388,

392 (Ind. Ct. App. 2010), trans. denied. In assessing whether the first or second burdens

have been met, we review the designated evidence and any inferences therefrom in the light

most favorable to the non-moving party. Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223,

1230 (Ind. Ct. App. 2005).



        4
         Despite Weston having not properly designated any evidence, Trial Rule 56(C) provides “[s]ummary
judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or
evidence, but the court shall make its determination from the evidentiary matter designated to the court.”

                                                    9
       Reviewing the evidence in a light most favorable to the non-moving party, we

conclude the Defendants failed to meet their burden as the party moving for summary

judgment. “A factual issue is genuine if it is not capable of being conclusively foreclosed by

reference to undisputed facts.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. Ct. App.

2003). The evidence designated to the court, the medical review panel’s opinion and the

affidavits of each panel member, does not establish the absence of a genuine issue of material

fact. Rather, the evidence demonstrates a genuine issue of material fact.

       The medical review panel opinion as to Dr. Longevin concluded that there is a

material issue of fact “bearing on liability for consideration by the court or jury.” Appellant’s

App. at 92. In sworn affidavits given after the panel convened, two of the panel members

stated “it is more probable than not that neither of [the alleged negligent acts of Dr.

Longevin] changed the outcome, which was that Mr. Weston’s death was caused by

overwhelming sepsis,” id. at 107, 127, and the other panel member stated the alleged

negligent treatment performed by Dr. Longevin was not a cause of Weston’s death, but

rather, his death was caused by sepsis.

       The panel concluded a genuine issue of fact existed concerning Dr. Longevin’s

liability. While one panel member’s affidavit conclusively stated Clinton Weston’s death

was not caused by Dr. Longevin even if he performed below the standard of care, the other

two panel members’ affidavits are not conclusive. They assert it is “more probable than not”

that if Dr. Longevin performed below the standard of care, it would not change the fact that

Clinton Weston’s death was caused by sepsis. As our supreme court has previously stated,



                                               10
“[i]f there is any doubt as to what conclusion a jury could reach, then summary judgment is

improper.” Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind. 2001).

Evidence establishing it is more probable than not that the purported negligence of Dr.

Longevin did not cause Clinton Weston’s death does not eliminate all doubts as to what

conclusion a jury could reach regarding the cause of Clinton Weston’s death. Therefore, the

Defendants are not entitled to judgment as a matter of law at this stage because a genuine

issue of material fact remains.

                              V. Summary Judgment Hearing

       Weston also contends summary judgment was improper pursuant to Trial Rule 56(C)

because the Defendants properly requested a hearing on their motion for summary judgment

and the trial court made its determination without holding the hearing. Since we conclude a

genuine issue of material fact remains and we are remanding to the trial court for further

proceedings, this argument is unlikely to have any impact even if Weston is correct.

Nevertheless, we pause to consider the issue.

       Trial Rule 56(C) states a trial court “may conduct a hearing” on a summary judgment

motion, but “upon motion of any party made no later than ten (10) days after the response

was filed or was due, the court shall conduct a hearing on the motion which shall be held not

less than ten (10) days after the time for filing the response.” Here, the Defendants requested

a hearing on the same day they filed their summary judgment motion. After a series of

continuances and Weston’s failure to timely file her response to the Defendants’ motion for




                                              11
summary judgment, the trial court concluded “there is no just reason for delay in the entry of

final judgment” and granted the Defendants’ motion for summary judgment.

       Notwithstanding Trial Rule 56(C), we conclude the party who moved for the summary

judgment hearing is the party who can enforce the hearing, and here the movant is not

requesting that such a hearing be enforced. Additionally, we note that evidence presented at

a summary judgment hearing is supplemental to what has already been designated, and since

Weston had not designated any evidence, she would have been unable to supplement such

non-designated evidence had the trial court conducted a summary judgment hearing.

                                         Conclusion

       For the trial court to strike Weston’s response to the Defendants’ motion for summary

judgment and Weston’s accompanying designation of evidence was proper, but because the

Defendants failed to meet their burden of establishing there are no genuine issues of material

fact, we reverse and remand for further proceedings consistent with this opinion.

       Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.




                                             12
