
ATTORNEY FOR APPELLANT            ATTORNEY FOR APPELLEE
Linda Y. Hammel                         George Hoffman, III
Yarling & Robinson                           Jones, Hoffman & Admire
Indianapolis, Indiana                   Franklin, Indiana


                                   In The
                            INDIANA SUPREME COURT

ANTHONY BRANNON,                  )
      Defendant-Appellant,              )
                                       )
           v.                           )    Court of Appeals No.
                                       )     41A01-9906-CV-225
CHRIS WILSON, Individually and as       )
Executrix of the Estate of                   )
Danny L. Wilson,                        )
      Plaintiff-Appellee.                     )

              ________________________________________________

                   APPEAL FROM THE JOHNSON SUPERIOR COURT
                  The Honorable James K. Coachys, Judge[1]
                         Cause No. 41D01-9609-CT-311
              ________________________________________________

                           On Petition to Transfer


                               April 22, 2002

DICKSON, Justice, dissenting from denial of transfer.

      In this automobile collision wrongful death action, the trial court
denied the defendant's summary judgment motion and certified its order for
interlocutory appeal.  Accepting the case, the Court of Appeals, noting
that the deposition testimony of the plaintiff's physician was equivocal
regarding the causative relationship of the collision to the decedent's
death, reversed and remanded with instructions to grant the defendant's
motion for summary judgment.  Brannon v. Wilson, 733 N.E.2d 1000 (Ind. Ct.
App. 2000).  The plaintiff petitioned for transfer, but a majority of the
members of this Court prefer to deny transfer.  While I realize that the
evidence at issue in this particular case is extremely close to pure
speculation, I would nevertheless grant transfer to acknowledge and apply
the applicable precedent of this Court that was not considered by the Court
of Appeals.
      The opinion of the Court of Appeals is grounded upon its belief that
the plaintiff, in responding to the defendant's motion for summary
judgment, was required "not merely to advance some evidence that there was
a possibility of causal connection, but rather to advance some evidence to
demonstrate the existence of a genuine issue as to whether a causal
connection was probable."  Id. at 1002 (emphasis added).  Relying on Palace
Bar, Inc. v. Fearnot, 269 Ind. 405, 415, 381 N.E.2d 858, 864 (Ind. 1978),
the Court of Appeals concluded that the affidavit concerning proximate
cause submitted by the plaintiff's medical expert "is no evidence at all."
Brannon, 733 N.E.2d at 1002.
      Palace Bar has been superceded.  In Strong v. State, 538 N.E.2d 924,
931 (Ind. 1989), this Court approved and embraced Justice Hunter's
opinion[2] in Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722
(Ind. 1982).  The Strong court observed that Justice Hunter's opinion
"provided a thoughtful and discerning analysis."  Strong, 538 N.E.2d at
930.  In Prince, Justice Hunter wrote:
      [T]o hinge the question whether an expert's opinion is admissible and
      probative on the willingness and ability to say that such-and-such is
      "reasonably certain," as opposed to "probable" or "possible," is to
      impose on the expert a question which elevates the law's demand for
      certainty in language over the state of the particular art and the
      value of the advances made therein.  Medicine, for instance is not yet
      an exact science; to demand reasonable certainty in medical opinions
      places a sometimes insurmountable barrier in the fact of the candid
      and straightforward medical expert.
            . . . .
      [N]o threshold level of certainty or conclusiveness is required in an
      expert's opinion as a prerequisite to its admissibility. Assuming the
      subject matter is one which is appropriate for expert testimony and
      that a proper foundation has been laid, the expert's opinion or
      conclusion that, in the context of the facts before the witness, a
      particular proposition is "possible," "could have been," "probable,"
      or "reasonable certain" all serve to assist the finder of fact in
      intelligently resolving the material factual questions.


Prince, 438 N.E.2d at 727, 731 (quoted with approval in Strong, 538 N.E.2d
at 930-31).[3]
      In the present case, the plaintiff's complaint alleged that the
collision worsened the plaintiff's decedent's liver disease, hastened his
death, and diminished his chances of receiving a liver transplant.  In
response to the defendant's motion for summary judgment asserting the
absence of proximate causation, the plaintiff submitted the deposition of
the decedent's physician, who had worked with a committee that deals with
liver transplantation and selection of patients for liver transplants.  In
response to the various questions related to the role of the automobile
accident and the plaintiff's decedent's injuries and death, the plaintiff's
medical expert provided these responses:
      I can't really, you know – I can't really say – it's possible, but is
      it probable?  It's possible, but I can't say.  [Record at 89.]


      The committee and I decided that the single statement that we can make
      is as follows:  We cannot exclude the possibility that the physical
      trauma sustained from the automobile accident on 8-18-95 would have
      made [the decedent's] disease worse.  We cannot exclude that
      possibility.  [Record at 89.]


      It is possible that the process could have made his liver disease
      worse.  [Record at 91.]


      I still can't say for sure either way.  It could be possible.  It
      could be probable.  [Record at 99 (emphasis added).]


      All I can say is that between the—it was a significant accident.  All
      right?  He had contusions to many body parts.  It is possible that he
      could have bled some.  And if that were the case, it could explain
      this single lesion to the right side of the liver that compressed
      against the right bile duct system.  It is a possibility.  And whether
      related to the accident or not, his condition did deteriorate between
      the last time I saw him back in June of 1995 and the next time I saw
      him, which was in June of 19—May of 1996.  His condition was worse.  I
      really can't tell you a causal relationship or not.  It's almost—very
      difficult to say.  It's possible.  I mean, we were very careful in
      saying what we want to say about the case, and I think I should adhere
      to that.  Basically, the committee and I decided the right thing to
      say would be that it is possible.  We cannot exclude the possibility
      that the physical trauma sustained during the accident made Mr.
      Wilson's disease worse.  [Record at 119-20 (emphasis added).]


      Under the principles established in Strong and Prince, the testimony
of the plaintiff's physician is certainly not "no evidence at all" as
opined by the Court of Appeals.  Brannon, 733 N.E.2d at 1002.  Whether it
created a genuine issue of material fact precluding summary judgment for
the defendant is a matter that I believe this Court should address.  For
these reasons, I would grant transfer.
      RUCKER, J., concurs.

-----------------------
      [1] James M. MacAbee, Judge pro tempore, presided over the hearing.
      [2] Justice Hunter was joined by Justice Prentice.  Justice Pivarnik,
joined by Justice Givan, concurred in result.  Justice DeBruler did not
participate in the decision.
      [3] Strongly emphasizing that "possible" or "could have been" are
sufficient to permit admission of expert testimony, Justice Hunter also
noted that, while admissible, the degree of certainty "concerns the weight
to be accorded the testimony, which is a matter for the jury to resolve."
Prince, 538 N.E.2d at 731.  As to the issue of sufficiency of evidence, he
wrote, "Of course, an expert's opinion that something is "possible" or
"could have been" may be sufficient to sustain a verdict or award when it
has been rendered in conjunction with other evidence concerning the
material factual question to be proved."  Id.

