Pursuant to Ind. Appellate Rule 65(D),                                         Jul 16 2013, 6:56 am
this Memorandum Decision shall not be
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:                             ATTORNEYS FOR APPELLEE:

JAMES E. AYERS                                      PATRICK P. DEVINE
Wernle, Ristine & Ayers                             SCOTT B. COCKRUM
Crawfordville, Indiana                              Hinshaw & Culbertson LLP
                                                    Schererville, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BARBARA LASKOWSKI,                                  )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )     No. 20A03-1205-PL-235
                                                    )
AMER KAZI, M.D.,                                    )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                           The Honorable Evan S. Roberts, Judge
                              Cause No. 20D01-1104-PL-17


                                          July 16, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

        Barbara Laskowski (“Laskowski”) appeals the grant of summary judgment in

favor of Amer Kazi, M.D. (“Dr. Kazi”) on her medical malpractice claim.

        We affirm.

                                                  ISSUE

     Whether the trial court erred in granting summary judgment in favor of Dr. Kazi.

                                                  FACTS

        The designated evidence shows that Laskowski suffered from pain in her neck and

shoulder due to arthritis. In May of 2005, Laskowski sought treatment from Dr. Kazi, a

board certified neurologist and pain management physician. Dr. Kazi treated Laskowski

with a cervical epidural containing Depo Medrol, Marcaine, and Lidocaine. Dr. Kazi

performed the procedure using a fluoroscope to confirm the appropriate injection area,

aspirating the area with the needle of the syringe.1 When Laskowski’s arthritis pain

returned, she again sought another epidural from Dr. Kazi on November 14, 2006.

        In preparation for the procedure on the 14th, Laskowski laid on a table with her

head down waiting for Dr. Kazi to begin the injection. At some point, Laskowski began

to feel dizzy, complained of chest pain, and thought that she was going to pass out.

Laskowski claims that the symptoms began as soon as Dr. Kazi began the injection, and

she requested that he stop the procedure. However, Laskowski later testified during her


1
  A fluoroscope is “an instrument used to view the form and motion of the internal structures of the body
by means of roentgen rays.” BLAKISTON’S GOULD MEDICAL DICTIONARY 518 (4th ed. 1935). Roentgen
rays are essentially X-rays. Aspiration is “the withdrawal by suction of fluids . . . from a cavity as with an
aspirator. Id. at 126.

                                                      2
deposition that she was not sure when Dr. Kazi began the injection. Dr. Kazi testified

during his deposition that Laskowski did not begin to complain of symptoms until after

the injection was complete. Medical records designated by Laskowski revealed that after

the procedure, Laskowski’s vital signs were normal.       She had some complaints of

numbness in her arms, but her grip remained normal. Almost an hour later, Laskowski

complained of chest pains and dizziness after going to the restroom. She was wheeled

back to a recovery room and the medical staff noted that she had an elevated heart rate.

Another doctor who treats Laskowski was contacted and recommended transport to an

emergency room.

       Laskowski submitted a proposed complaint alleging that Dr. Kazi had negligently

performed the procedure to a Medical Review Panel (“the Panel”). On January 25, 2011,

the members of the Panel unanimously concluded that Dr. Kazi had not breached the

standard of care in his treatment of Laskowski.      Nonetheless, Laskowski filed her

complaint against Dr. Kazi in the Elkhart Superior Court on April 25, 2011, claiming that

Dr. Kazi failed to use ordinary skill, care, and diligence used by similar healthcare

providers. Dr. Kazi responded on June 6, 2011, admitting that he is a health care

provider as defined by law, that he performed a cervical epidural with Laskowski’s

consent, and denying that he violated the applicable standard of care or caused her

injuries.

       On June 30, 2011, Dr. Kazi filed a motion for summary judgment, claiming that

there was no genuine issue of material fact as to whether he violated the applicable

standard of care in his treatment of Laskowski. In support of his motion, Dr. Kazi

                                           3
designated the opinion of the Panel, which concluded that he had not breached the

standard of care. On October 31, 2011, Laskowski filed her response to Dr. Kazi’s

motion for summary judgment, designating the affidavit of Alexander Weingarten, M.D.

(“Dr. Weingarten”), the depositions of Laskowski and Dr. Kazi, and portions of her

medical records.

       Wanting an opportunity to question Dr. Weingarten about his affidavit, the trial

court granted Dr. Kazi’s request to schedule a deposition on January 9, 2012. At his

deposition, Dr. Weingarten testified that, notwithstanding his declaration in the affidavit,

he had not reviewed Dr. Kazi’s deposition until two days prior to his own deposition.

Further, when asked if he was taking everything Laskowski said in her deposition as true,

Dr. Weingarten responded, “[a]gain I would have to say yes because hopefully it was

taken under oath, and I hope that everything that she said was true, yes.” (App. 106).

Conversely, when asked about Dr. Kazi’s testimony, Dr. Weingarten stated that “it would

depend on what one talks about. But obviously his version of the events are a little

different than her version of the events. So it would be questionable as to whether

everything he says, you know, is true.” Id. In addition, Dr. Weingarten testified that he

had no problem with the way Dr. Kazi performed the procedure up until Laskowski

developed symptoms. However, Dr. Weingarten declared in his affidavit that Dr. Kazi

violated the standard of care by not ceasing the injection when Laskowski directed him to

do so. On the other hand, Dr. Weingarten acknowledged in his deposition that there were

no medical records suggesting (1) that Dr. Kazi performed the procedure in the wrong

location; (2) that there was medication left in the syringe when Laskowski began

                                             4
complaining of symptoms; or (3) that Dr. Kazi continued with the procedure despite

Laskowski’s protests.     Furthermore, Dr. Weingarten’s initial review of Laskowski’s

treatment stated the following:

       I spoke with attorney. [sic] The patient was complaining of pain and
       dizziness during a cervical epidural injection. She went from office to
       hospital. There is no apparent evidence that the doctor did anything wrong
       other than completing the procedure which was done according to standard.
       Mr. Ayers will speak to his client, get more information and get back with
       me since there is no evidence that if she stopped sooner she would have
       avoided a hospital visit. Of note, no abnormalities found at the hospital.
       [sic]

(App. 85, 125).

       On, February 23, 2012, Dr. Kazi filed a motion to strike the affidavit of Dr.

Weingarten, claiming that his opinions were not admissible under Ind. Evidence Rule

702. On April 24, 2012, the trial court entered an order striking Dr. Weingarten’s

affidavit. The order stated in relevant part:

       Dr. Alexander Weingarten’s deposition testimony indicates that the
       opinions he expressed in his affidavit were based on speculation. Dr.
       Weingarten testified that he did not have any “major criticisms as to how
       the procedure was being performed up to the time that the patient
       developed, you know, the issues that she developed.” Dr. Weingarten then
       simply accepts as true the Plaintiff’s version of events which were not
       verified or supported by any facts contained in the medical records and
       further formed his opinions without a complete knowledge and
       understanding of the Plaintiff’s medical conditions as he failed to review
       the Plaintiff’s entire medical history.

       The Court is not satisfied that the opinion testimony provided by Dr.
       Weingarten in the affidavit provided to this Court is reliable under 702.
       Accordingly, the Court GRANTS Defendant’s Motion to Strike the
       Affidavit of Dr. Weingarten.

       A medical review panel was formed and rendered its unanimous opinion on
       January 25, 2011 finding that the evidence did not support the conclusion

                                                5
           that the Defendant failed to comply with the appropriate standard of care.
           The Plaintiff has not designated evidence that shows the Defendant failed
           to conform his conduct to the requisite standard of care required. After
           striking the Affidavit of Dr. Alexander Weingarten, M.D., no genuine issue
           of material fact remains and the Defendant is entitled to summary judgment
           as a matter of law. Accordingly, the Court GRANTS Defendant’s Motion
           for Summary Judgment.

(App. 9).

Laskowski filed her notice of appeal on May 23, 2012.


                                                  DECISION

           Laskowski claims that the trial court erred in striking the affidavit submitted by

Dr. Weingarten.           Specifically, Laskowski states the trial court “made a detailed, if

incorrect, evaluation of the issue of causation, and because the Trial Court does not agree

with Dr. Weingarten’s conclusions, as to causation it has ‘struck’ his Affidavit . . . .”2

(Laskowski Br. 9).            Laskowski also appears to claim that the trial court erred by

evaluating Dr. Weingarten’s affidavit under the standard for expert scientific testimony

provided in Evid. R. 702(b) instead of 702(a), allowing expert testimony based on skill

and experience.

                   When we review a trial court’s ruling on a motion for summary
           judgment, we are bound by the same standard as the trial court: we must
           consider all of the designated pleadings, affidavits, depositions, admissions,
           answers to interrogatories, and testimony in the light most favorable to the
           nonmoving party in order to determine whether a genuine issue of material
           fact remains for resolution by a trier of fact. A genuine issue of material
           fact exists where facts concerning an issue which would dispose of the
           litigation are in dispute or where the undisputed facts are capable of
           supporting conflicting inferences on such an issue. If we have any doubts,
           concerning the existence of a genuine issue of material fact, we must

2
    We note that the trial court’s order specifically stated that it made no findings on the issue of causation.
                                                         6
       resolve those doubts in favor of the nonmoving party. If no genuine issue
       of material fact exists, summary judgment is appropriate if the moving
       party is entitled to judgment as a matter of law.

              A medical malpractice case is rarely appropriate for disposal by
       summary judgment. To establish a prima facie case of medical malpractice,
       the plaintiff must demonstrate (1) a duty on the part of the defendant in
       relation to the plaintiff; (2) failure on the part of defendant to conform his
       or her conduct to the requisite standard of care required by the relationship;
       and (3) an injury to the plaintiff resulting from that failure. Generally, in
       order to establish a claim of medical malpractice, the plaintiff must
       establish by expert medical testimony (1) the applicable standard of care
       required by Indiana law, (2) how the defendant doctor breached that
       standard of care, and (3) that the defendant doctor’s negligence in doing so
       was the proximate cause of the injuries complained of. When the defendant
       doctor is the moving party and can show that there is no genuine issue of
       material fact as to any one of the aforementioned elements, the defendant
       doctor is entitled to summary judgment as a matter of law.

              When the medical review panel opines that the plaintiff has failed to
       satisfy any one of the elements of his prima facie case, the plaintiff must
       then come forward with expert medical testimony to refute the panel’s
       opinion in order to survive summary judgment. The opinion of the medical
       review panel is admissible as evidentiary matter for the purpose of
       summary judgment under Ind. Code [§ 34-18-10-21]. . . . .

Chambers by Hamm v. Ludlow, 598 N.E.2d 1111, 1116 (Ind. Ct. App. 1992) (emphasis

added).

       Here, Dr. Kazi submitted the certified opinion of the Panel finding that he had met

“the applicable standard of care as charged in the complaint.” I.C. § 34-18-10-22(b)(2).

As a result, Dr Kazi satisfied his initial burden of showing there was no genuine issue of

material fact as to one element of Laskowski’s claim -- the standard of care. See

Chambers, 598 N.E.2d at 1116. The burden then shifted to Laskowski to designate

expert testimony that created a genuine issue of material fact. See id.



                                             7
       Attempting to meet this burden, Laskowski designated the affidavit of Dr.

Weingarten who opined that Dr. Kazi had not met the applicable standard of care.

However, the trial court struck the affidavit as not being reliable under Evid. R. 702(b).

Laskowski argues that the trial court erred because Dr. Weingarten’s affidavit was

admissible under Evid. R. 702(a), as his testimony was based on his skill and experience

and not scientific principles.

       The decision to admit or exclude evidence is within the discretion of the trial

court, and this court reviews the trial court’s decision for an abuse of discretion.

Lachenman v. Stice, 838 N.E.2d 451, 464 (Ind. Ct. App .2005), trans. denied. An abuse

of discretion occurs if the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before it, or the reasonable, probable and actual deductions to

be drawn therefrom. Id. The guidelines for the admission of expert opinion testimony

are found in Evid. R. 702, which provides the following:

       (a) If scientific, technical, or other specialized knowledge will assist the
           trier of fact to understand the evidence or to determine a fact in issue, a
           witness qualified as an expert by knowledge, skill, experience, training,
           or education, may testify thereto in the form of an opinion or otherwise.

       (b) Expert scientific testimony is admissible only if the court is satisfied
           that the scientific principles upon which the expert testimony rests are
           reliable.

Where expert testimony is based upon the expert’s skill or experience, the proponent of

the testimony must only demonstrate that the subject matter is related to some field

beyond the knowledge of lay persons and the witness possesses sufficient skill,

knowledge or experience to assist the fact finder to understand the evidence or decide a


                                             8
fact in issue. Lytle v. Ford Motor Co., 814 N.E.2d 301, 308 (Ind. Ct. App. 2004), trans.

denied. When an expert’s testimony is based on scientific principles, the proponent of

the testimony must also establish that those principles upon which the testimony rests are

reliable. Id. Thus “it is apparent that Indiana Evidence Rule 702 assigns to the trial court

a ‘gatekeeping function’ of ensuring that an expert’s testimony both rests on a reliable

foundation and is relevant to the task at hand.” Id. While there is no definite “test” to

satisfy the requirements of Rule 702(b), whether a theory or technique can be empirically

tested and has been submitted to peer review and publication are relevant considerations

in evaluating such expert testimony. Hannan v. Pest Control Services, Inc., 734 N.E.2d

674, 679 (Ind. Ct. App. 2000), trans. denied.

       In this case, Laskowski’s argument is similar to one made by the plaintiff in Lytle.

There, Lytle, his wife Kyong, and their daughter, Michelle, were travelling in their Ford

pickup truck when it was struck by another vehicle. Lytle claimed that Kyong wore her

seatbelt, yet she was ejected from the vehicle. Kyong suffered permanent brain damage,

while Lytle and Michelle, both restrained by seat belts, sustained minor injuries. Lytle

later filed a complaint against Ford alleging that Kyong’s injuries were caused by a

design defect in Ford’s seat belts. Specifically, Lytle claimed the buckle was defectively

placed so that it would come apart easily with contact from Kyong’s clothes or body.

Ford responded by claiming that their seatbelt design was not defective and that Kyong

was not wearing her seatbelt. Ford moved to exclude the testimony of all of Lytle’s

proffered experts on the grounds that their testimonies were neither scientifically reliable

nor based on other reliable analysis or knowledge and thus would not assist the jury. The

                                             9
trial court excluded the testimony of Lytle’s experts, finding that Lytle failed to present

sufficient evidence in accordance with Evid. R. 702(b). On appeal, Lytle asserted that

Evid. R. 702 applies different standards in evaluating testing based on scientific

principles versus expert testimony based on skilled observation and experience. Indeed,

this Court and our Indiana Supreme Court have evaluated expert testimony in the same

manner. See PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 741 (Ind. Ct. App.

2004), trans. denied; Malinski v. State, 794 N.E.2d 1071 (Ind. 2003); McGrew v. State,

682 N.E.2d 1289 (Ind. 1997). However, in Lytle, we ultimately found that “[u]nder

Indiana Evidence Rule 702(a), all expert testimony, and not merely scientific testimony

subject to Rule 702(b), must be reliable and relevant to the issues at hand. Lytle, 814

N.E.2d at 314. (emphasis in original). Using this framework, we found that Lytle’s

experts were not reliable under either section of Evid. R. 702. Id.

       Applying the same rationale used in Lytle, we find that the trial court did not abuse

its discretion in striking Dr. Weingarten’s affidavit. Dr. Weingarten stated repeatedly

throughout his deposition that he relied on Laskowski’s deposition to arrive at his

conclusions, while acknowledging that none of the medical records he reviewed

substantiated his findings. In fact, Dr. Weingarten went as far as subjectively judging the

credibility of the parties involved, assuming everything Laskowski stated was true,

despite questions raised by her deposition testimony and medical records she designated.

In addition, Weingarten speculated that Dr. Kazi injected the epidural “into an area of and

compromised a thoracic nerve root, a sympathetic ganglion or blood vessel, causing the

distress and ongoing symptoms.” (App. 94). Yet, the designated evidence reveals that in

                                            10
his initial review of Laskowski’s medical records and deposition, Dr. Weingarten found

that there was “no apparent evidence that the doctor did anything wrong other than

completing the procedure which was done according to standard.” (App. 85) (emphasis

added). Finally, though Dr. Weingarten claimed under the penalty of perjury that in

making his findings he reviewed Dr. Kazi’s deposition, Dr. Weingarten admitted that he

did not review Dr. Kazi’s testimony until two days before his own deposition on January

9, 2012; more than two months after Dr. Weingarten signed the affidavit. Based on the

facts and circumstances before the trial court, we find no error in striking Dr.

Weingarten’s affidavit.3

        Having upheld the trial court’s exclusion of Dr. Weingarten’s affidavit, there is no

admissible expert evidence to rebut the Panel’s finding for Dr. Kazi. Accordingly, we

affirm the trial court’s grant of summary judgment in his favor.

        Affirmed.

ROBB, C.J., concur.

MAY, J., dissent with separate opinion




3
  In a reply brief, Laskowski claims that her Exhibit 8, submitted as part of a supplemental designation of
evidence, is a “procedural note created at the time of the procedure . . . .” (Laskowski Reply Br. 14).
This is a mischaracterization of the record. In fact, Exhibit 8 is a portion of a form entitled
“EMERGENCY ROOM TRANSFER RECORD.” This form was previously designated by Laskowski in
her original response to Dr. Kazi’s motion for summary judgment. (App. 57) Further, when this record is
compared to the other medical records designated by Laskowski, it appears the record was created after
the procedure.

                                                    11
                              IN THE
                    COURT OF APPEALS OF INDIANA

BARBARA LASKOWSKI,                               )
                                                 )
       Appellant-Respondent,                     )
                                                 )
              vs.                                )    No. 20A03-1205-PL-235
                                                 )
AMER KAZI, M.D.,                                 )
                                                 )
       Appellee-Petitioner.                      )
                                                 )
                                                 )


MAY, Judge, dissenting with separate opinion

       I believe Dr. Weingarten’s affidavit should not have been stricken, as both the trial

court and the majority of this panel appear to have based their decisions on Dr.

Weingarten’s credibility. As determinations of credibility are inappropriate on summary

judgment, I must respectfully dissent.

       The majority opinion appears to be premised on the Evid. R. 702(a) requirement

that expert testimony be “reliable” and relevant to the issues at hand. (Slip op. at 10)

(citing Lytle v. Ford Motor Co., 814 N.E.2d 301, 314 (Ind. Ct. App. 2004), reh’g denied,

trans. denied). The majority notes Dr. Weingarten “speculated,” (id.), that Dr. Kazi

caused Laskowski’s symptoms by injecting the epidural in the wrong location. To the

extent the majority opinion holds the affidavit could be stricken on that ground, it misses

the mark.


                                            12
        I acknowledge Dr. Weingarten’s affidavit includes his statements that Dr. Kazi

might have injected the drugs into the wrong area and that might have caused

Laskowski’s problems. In light of the medical records, those opinions might, as the

majority says, have been based on speculation.

        But the method and location of the injection were not the violation of the standard

of care Dr. Weingarten asserts in his affidavit, so the affidavit should not have been

stricken on that basis. The violation of the standard of care Dr. Weingarten explicitly

asserted in his affidavit was that Dr. Kazi did not stop the procedure when Laskowski

told him to: “[I]t is my opinion that Dr. Kazi failed to meet the standard of care and

failed to appropriately treat Ms. Laskowski by failing to stop the cervical epidural steroid

injection immediately when she first complained of symptoms.” (App. at 40) (emphasis

added).4

        The majority finds it significant that Dr. Weingarten “relied on Laskowski’s

deposition to arrive at his conclusions, while acknowledging that none of the medical

records he reviewed substantiated his findings.” (Slip op. at 10.) It does not surprise me

that no “medical record” reflects Laskowski told Dr. Kazi to stop but he did not, and I do

not believe an affidavit should be stricken at the summary judgment phase simply

because an expert chose to believe the plaintiff. We should not affirm the trial court

solely on the grounds Dr. Weingarten disregarded “medical records” and believed

Laskowski.


4
  The majority characterizes Laskowski’s argument as one based on the trial court’s disagreement with
Dr. Weingarten’s conclusions as to “causation.” (Slip op. at 6.) But as explained above, the violation of
the standard of care about which Dr. Weingarten opined did not implicate “causation.”
                                                   13
       In reviewing this summary judgment we must consider the pleadings and evidence

without deciding weight or credibility, and we must construe all evidence in favor of

Laskowski. See, e.g., Indiana Dep’t of Transp. v. McEnery, 737 N.E.2d 799, 801-02

(Ind. Ct. App. 2000) (in determining whether there is a genuine issue of material fact, we

accept as true all facts alleged by the nonmoving party, consider the pleadings and

designated evidence without determining weight or credibility, construe all evidence in

favor of the nonmoving party, and resolve all doubts as to the existence of a material

issue against the moving party), trans. dismissed. The majority appears instead to judge

Dr. Weingarten’s credibility, concluding he was not credible because he chose, in the

face of conflicting evidence, to believe Laskowski.


       While the majority does not suggest Dr. Weingarten was biased, I think our

reasoning in Mitchell v. State, 813 N.E.2d 422, 431 (Ind. Ct. App. 2004), trans. denied, is

helpful. There, we noted that, under Rule 702, a witness may be qualified as an expert by

virtue of “knowledge, skill, experience, training, or education,” and only one of these

characteristics is necessary to qualify an individual as an expert. Moreover, Rule 702(a)

does not require that the witness be unbiased. Id.

       Mitchell was charged with battery on a child and he offered his wife, a medical

doctor, as an expert witness. The State objected on the ground she was not “an unbiased

third party,” id., and the trial court decided she could not testify as an expert. We held

that was error (though harmless in that case) because “the revelation of any actual bias




                                            14
should have gone to the weight of [the doctor’s] testimony rather than to her ability to

testify -- assuming she was otherwise qualified -- as an expert witness.” Id.

       There does not appear to be any allegation or argument Dr. Weingarten is not

qualified by virtue of “knowledge, skill, experience, training, or education,” or that he

might be biased. Instead, the majority appears to permit his affidavit to be stricken solely

because he believed one party and not the other. As in Mitchell, his choice to believe

Laskowski goes, at most, to the weight to be afforded that evidence by the trier of fact,

and should not serve as a basis for striking his affidavit and depriving Laskowski of her

day in court. See also Scott v. City of Seymour, 659 N.E.2d 585, 592-93 (Ind. Ct. App.

1995) (to the extent expert’s statement was conclusory, “any lack of detail in the affidavit

goes to the weight and credibility of the affidavit and not to whether it is adequate to

create a genuine issue”).

       I believe the Weingarten affidavit creates a genuine issue as to Dr. Kazi’s violation

of the standard of care, and we have, at most, a question of the weight and credibility to

be assigned to that affidavit. That question should be resolved by a trier of fact. Pursuant

to Mitchell, Dr. Weingarten’s credibility is not a basis for striking his statement that Dr.

Kazi violated the standard of care because he did not stop the procedure when Laskowski

told him to.

       I must accordingly dissent.




                                            15
