                                                                          Jun 05 2015, 8:44 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
      Adam Lenkowsky                                             L. Alan Whaley
      Roberts & Bishop                                           Stephen E. Reynolds
      Indianapolis, Indiana                                      Ice Miller LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Bertram A. Graves, M.D.,                                   June 5, 2015

      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A05-1412-PL-560
              v.                                                 Appeal from the Marion Superior
                                                                 Court
                                                                 The Honorable Heather A. Welch,
      Indiana University Health, f/k/a                           Judge
      Clarian Health Partners, Inc.,
      Richard Kovacs, M.D., and                                  Trial Court Cause No. 49D12-1009-
                                                                 PL-39308-001
      Edward Ross, M.D.,
      Appellees-Defendants




      Bradford, Judge.



                                            Case Summary
[1]   On March 7, 2012, Appellant-Plaintiff Dr. Bertram A. Graves, M.D. filed a

      second amended complaint against Appellees-Defendants Indiana University
      Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015                     Page 1 of 31
      Health, f/k/a Clarian Health Partners, Inc., Dr. Richard Kovacs, M.D., and

      Dr. Edward Ross, M.D. (collectively, “the Appellees”). In the second amended

      complaint, Dr. Graves raised claims of breach of contract, violation of his civil

      rights, and intentional infliction of emotional distress. The Appellees

      subsequently filed for summary judgment. Dr. Graves then filed a motion

      requesting the trial court to compel the Appellees to respond to certain

      discovery requests. He also filed an amended affidavit which stated his

      opposition to the Appellees’ motions for summary judgment. The Appellees

      subsequently sought to strike certain portions of Dr. Graves’s amended

      affidavit.


[2]   On September 30, 2014, the trial court denied Dr. Graves’s motion to compel.

      The trial court also subsequently denied Dr. Graves’s motion to reconsider the

      denial of his motion to compel. On November 10, 2014, the trial court granted

      the Appellees’ motion to strike and their motion for summary judgment.


[3]   On appeal, Dr. Graves contends that the trial court abused its discretion in

      denying his motion to compel the IU Health to comply with certain discovery

      requests and in granting IU Health’s motion to strike portions of Dr. Graves’s

      amended affidavit. Dr. Graves also contends that the trial court erred in

      granting summary judgment in favor of the Appellees. Finding no abuse of

      discretion or error by the trial court, we affirm.



                             Facts and Procedural History

      Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015     Page 2 of 31
[4]   Initially, we note that this is the second time that the instant matter comes

      before this court on appeal. The underlying facts, as set-forth in our opinion on

      the parties’ first appeal, are as follows:

              Dr. Graves is a cardiologist who worked for Clarian Health Partners
              (“Clarian”), which later became known as Indiana University Health
              (“IU Health”), from 1992 through August 1, 2009.[1] On that date, [IU
              Health] revoked his cardiology privileges. Dr. Graves contends that
              Drs. Kovacs and Ross played a role in the revocation of his privileges,
              by providing false information to peer review committees and
              improperly reviewing allegations against Dr. Graves.
              On September 7, 2010, Indianapolis MOB, LLC (“MOB”), which is a
              corporate landlord, sued Dr. Graves for breaching his lease of office
              space by failing to pay rent. Dr. Graves, in turn, filed a third-party
              complaint against [IU Health] on November 30, 2010, alleging breach
              of contract when it did not renew his cardiology privileges, and
              alleging a substantial loss of income and the inability to pay his rent to
              MOB. Dr. Graves filed his first amended third-party complaint on
              December 27, 2010, to attach a copy of his contract with [IU Health].
              On January 27, 2011, the trial court granted MOB’s motion to sever
              the third-party complaint from its lawsuit against Dr. Graves. After
              over a year of delay regarding how the parties would proceed, on
              March 7, 2012, Dr. Graves filed a “Second Amended Complaint”
              against Clarian/IU Health under a separate cause number from the
              original MOB lawsuit. App. p. 116. This complaint for the first time
              named Drs. Kovacs and Ross as defendants. Under a caption heading
              that Dr. Graves labeled as “Breach of Contract,” he alleged that his
              employment by [IU Health] was governed by certain bylaws, a code of
              conduct policy, a peer review policy, and a corrective action policy.
              Id. at 117. Dr. Graves further alleged that, in 1995, his cardiology
              privileges were “summarily suspended” under the orchestration of Dr.
              Ross, using false allegations against Dr. Graves. Id. Dr. Graves also




      1
        Throughout this memorandum decision, we will refer to Indiana University Health, f/k/a
      Clarian Health Partners as IU Health.

      Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015           Page 3 of 31
        alleged that, in 2006 or 2007, Dr. Ross refused to assist Dr. Graves in
        having his privileges restored. As for Dr. Kovacs, Dr. Graves alleged
        that he “maliciously and in bad faith” reviewed allegations made
        against Dr. Graves during peer reviews of Dr. Graves and that he was
        “instrumental in the elimination” of Dr. Graves’s privileges. Id. at
        118. Finally, Dr. Graves alleged [IU Health] breached its contract
        with him by eliminating his privileges without cause and without
        adequate notice, and also that it breached various policies related to
        termination of his privileges.
        On September 6, 2012, Drs. Kovacs and Ross filed a motion for
        judgment on the pleadings. The sole argument in the motion was that
        Dr. Graves had failed to state any claim against them for breach of
        contract because they were not party to any contract with Dr. Graves.
        In response, Dr. Graves asserted that the facts alleged in the second
        amended complaint sufficiently stated a cause of action against Drs.
        Kovacs and Ross for tortious interference with a contract, namely
        between Dr. Graves and [IU Health]. On November 5, 2012, Drs.
        Kovacs and Ross filed a response to this assertion, arguing that any
        claim for tortious interference with a contract was barred by the two-
        year statute of limitations for such a claim. Dr. Graves did not have a
        chance to respond to this statute of limitations argument because the
        trial court granted the motion for judgment on the pleadings on the
        same day that it was filed, November 5, 2012. The trial court’s order
        mentioned only Dr. Graves’s alleged failure to state a claim and not
        the statute of limitations argument. On December 6, 2012, the trial
        court denied Dr. Graves’s motion to correct error. It also denied Dr.
        Graves’s motion to amend his complaint to more clearly state a claim
        against Drs. Kovacs and Ross for tortious interference with a contract.


Graves v. Kovacs, 990 N.E.2d 972, 974-75 (Ind. Ct. App. 2013) (footnote omitted).

On appeal, we concluded that Dr. Graves was not given an adequate opportunity

before the trial court to address the statute of limitations issue. Id. at 978. We

therefore reversed the trial court’s order granting judgment on the pleadings in

favor of Drs. Kovacs and Ross without offering an opinion on the merits of the



Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015            Page 4 of 31
      statute of limitations issue, and remanded the matter to the trial court for further

      proceedings. Id.

[5]   On remand, the Appellees filed for summary judgment. On September 12,

      2014, Dr. Graves filed a motion to compel the Appellees to respond to certain

      discovery requests. On September 26, 2014, Dr. Graves submitted an amended

      affidavit in opposition to the Appellees’ motions for summary judgment. The

      Appellees subsequently sought to strike certain portions of Dr. Graves’s

      amended affidavit.


[6]   On September 30, 2014, the trial court denied Dr. Graves’s motion to compel.

      The trial court also subsequently denied Dr. Graves’s motion to reconsider the

      denial of his motion to compel. On November 10, 2014, the trial court granted

      the Appellees’ motion to strike and their motion for summary judgment.

      Specifically, the trial court determined that the Appellees were protected by

      peer-review immunity, Dr. Graves had not established discrimination, and the

      claims against Drs. Ross and Kovacs were time-barred. This appeal follows.



                                  Discussion and Decision
[7]   On appeal, Dr. Graves contends that the trial court abused its discretion in

      denying his motion to compel IU Health to comply with certain discovery

      requests, abused its discretion in granting IU Health’s motion to strike portions

      of Dr. Graves’s amended affidavit, and erred in granting summary judgment in

      favor of the Appellees.



      Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015    Page 5 of 31
                   I. Denial of Dr. Graves’s Motion to Compel
[8]    Dr. Graves contends that the trial court abused its discretion in denying his

       motion to compel IU Health to comply with certain discovery requests. Upon

       review, we review a challenge to a trial court’s discovery order for an abuse of

       discretion. See State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind.

       2012). “An abuse of discretion has occurred if the trial court’s decision is

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

       court, or if the court has misinterpreted the law.” Smith v. Ind. Dep’t of

       Correction, 871 N.E.2d 975, 987 (Ind. Ct. App. 2007) (citing McCullough v.

       Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)), trans. denied.


[9]    In September of 2014, Dr. Graves filed a motion requesting the trial court to

       compel IU Health to respond to certain discovery requests. Specifically, Dr.

       Graves requested that the trial court order IU Health to “provide

       documentation that is non-redacted in response to the discovery request.”

       Appellant’s App. p. 323. In making this request, Dr. Graves asserted that he

       could not properly respond to IU Health’s motion for summary judgment

       without “the proper completion of discovery.” Appellant’s App. p. 324.


[10]   IU Health subsequently filed a response in opposition to Dr. Graves’s motion to

       compel. In this response, IU Health outlined the history of the parties’

       discovery dispute, with the relevant portions reading as follows:

                                               INTRODUCTION
                      After having done nothing to advance his discrimination case
               against Defendants for nearly a year, Plaintiff has filed a Motion to
       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015          Page 6 of 31
        Compel raising issues with discovery in a transparent attempt to delay
        summary judgment. However, the majority of the documents Plaintiff
        requests have already been produced to him. Defendants have
        produced over 2,000 pages of documents including medical staff
        policies, exhibits and transcripts from the Health Care Provider Peer
        Review proceedings, Plaintiff’s medical staff file, Cardiovascular On
        Call Schedules, documents listing On-Call ECHO Readers, and Heart
        Station Weekly Reading Schedules for the heart lab that Plaintiff
        worked in. The remainder of the documents Plaintiff seeks are not
        relevant nor reasonably calculated to lead to the discovery of
        admissible evidence, and Defendants properly objected to these
        requests over a year ago. Plaintiff’s Motion to Compel should be
        denied.


                  HISTORY OF DISCOVERY REQUESTS AT-ISSUE
                Plaintiff paints an unclear and incomplete picture of the
        exchanges between the parties concerning Plaintiff’s discovery requests
        and Defendants’ responses. Defendants initially responded to
        Plaintiff’s discovery requests in August 2013 — producing hundreds of
        pages of documents while objecting to certain requests in seeking “all
        records” of some doctors for a 17-year period as overly broad, unduly
        burdensome, vague, and not relevant. After a brief discussion of the
        discovery dispute in November 2013, Defendants heard nothing from
        Plaintiff until after filing their Motion for Summary Judgment on the
        July 15, 2014 deadline for dispositive motions. Following Plaintiff’s
        renewed interest in discovery in late August 2014, Defendants have
        expeditiously responded to Plaintiff’s letters requesting documents,
        producing over 2,000 pages of documents within 16 days, including
        documents that had already been produced to Plaintiff’s counsel before
        his withdraw. The following is a chronology of the discovery activity
        in this case.
                On June 21, 2013, Plaintiff served his First Request for
        Production of Documents. (Ex. A, Plaintiff’s First Request for
        Production of Documents.) After Plaintiff, through counsel, agreed to
        an initial extension, Defendants responded on August 23, 2013,
        producing several pages of documents, stating additional documents
        would be produced upon entry of a protective order, and objecting to
        some of the requests in their entirety. (Ex. B, Letter from Stephen E.

Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015       Page 7 of 31
        Reynolds to Adam Lenkowsky, dated July 17, 2013; Ex. C, Letter
        from Stephen E. Reynolds to Adam Lenkowsky, dated August 23,
        2013; Ex. D, Defendants’ Response to Plaintiff’s First Request for
        Production of Documents.) After the Court’s entry of the Agreed
        Protective Order, on September 12, 2013, Defendants produced 679
        additional pages of documents responsive to Plaintiff’s discovery
        requests. (Ex. E, Letter from Stephen E. Reynolds to Adam
        Lenkowsky, dated September 12, 2013.)
                 On November 1, 2013, Plaintiff’s counsel sent a Rule 26(F)
        letter seeking the following: (a) the identities of doctors whose names
        were redacted from medical records; and (b) documents responsive to
        Plaintiff’s Request Nos. 15-19, which sought “all records” including
        work schedules of physicians assigned to the ECHO schedule,
        emergency room, catheter lab, and cardiology consult call between
        1992 and 2009. (Ex. F, Letter from Adam Lenkowsky to L. Alan
        Whaley and Stephen Reynolds, dated November 1, 2013.) In response
        to the letter, Defendants’ counsel called Plaintiff’s counsel on
        November 11, 2013 to obtain clarification as to which unredacted
        physicians’ names were being sought. (Ex. G, Affidavit of Reynolds
        ¶¶ 3 & 4.) Plaintiff’s counsel believed his client was only seeking the
        names of doctors on the peer review committees — not the treating
        physicians — but stated he would confirm with his client and confirm
        that with Defendants. (Ex. G, Affidavit of Reynolds ¶ 5.) After that,
        Defendants heard nothing from Plaintiff or his then-counsel regarding
        discovery until just recently. (Ex. G, Affidavit of Reynolds ¶[¶] 6 & 7.)
                On August 27, 2014, after being granted an extension of time to
        respond to Defendants’ Motion for Summary Judgment, Defendants’
        counsel received a letter from Plaintiff, dated August 25, 2014, seeking
        supplementation of Defendants’ discovery responses served over one
        year ago. (Ex. H, Affidavit of Whaley ¶ 3; Ex. I, Letter from Bertram
        Graves, M.D. to L. Allen Whaley dated August 25, 2014). That same
        day, Defendants’ counsel responded to Plaintiff, seeking clarification
        as to the supplemental documents he was seeking and stating that
        Defendants would respond to his other supplementation requests as
        quickly as reasonably possible. (Ex. J, Letter from L. Allen Whaley to
        Bertram Graves, M.D., dated August 27, 2014.) As promised, just a
        few days later, on September 3, 2014, Defendants’ counsel sent a
        follow-up letter via hand-delivery to Plaintiff addressing his specific
        discovery requests, offer to deliver or make the additional documents

Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 8 of 31
               available for pickup at Ice Miller’s offices given that most of the
               documents are sensitive and confidential, and asking that Plaintiff
               provide his email address and telephone number to facilitate quicker
               communication. (Ex. K, Letter from L. Allen Whaley to Bertram
               Graves, M.D., dated September 3, 2014.) Having received no
               response from Plaintiff, on September 5[, 2014,] Defendants’ counsel
               mailed Plaintiff another letter advising him that the additional
               documents were now ready to be delivered to him or picked up by
               him. (Ex. L, Letter from L. Allen Whaley to Bertram Graves, M.D.,
               dated September 5, 2014.)
                       On September 10, [2014,] Defendants received a letter from
               Plaintiff with a long recitation of his position regarding various
               discovery issues and finally providing his email address and telephone
               number. (Ex. H, Affidavit of Whaley ¶ 5; Ex. M, Letter from Bertram
               Graves, M.D. to L. Allen Whaley, dated September 5, 2010.) On
               September 12, [2014,] Defendants’ counsel called Plaintiff’s office and
               sent him an email, asking Plaintiff to contact Defendants’ counsel to
               arrange for delivery of the documents. (Ex. H, Affidavit of Whaley ¶
               6; Ex. N, Email from L. Allen Whaley to Bertram Graves, M.D.,
               Dated September 12, 2014.) Plaintiff did not respond to either of these
               messages, so Defendants’ counsel, on his own initiative, hand-
               delivered the documents to Plaintiff’s office, where they were accepted
               and signed for by the receptionist. (Ex. H, Affidavit of Whaley ¶ 7;
               Ex. O, Letter from L. Allen Whaley to Bertram Graves, M.D., dated
               September 12, 2014; Ex. P, Receipt of Rhonda Graves, dated
               September 12, 2014.) Despite having received these documents,
               Plaintiff filed his Motion to Compel on that same date.


       Appellant’s App. pp. 330-34 (emphases in original, footnotes omitted).

                                A. “Complete Medical Records”
[11]   In support of his contention that the trial court abused its discretion in denying

       his motion to compel, Dr. Graves argues that he was entitled to receive the

       complete medical records upon which any disciplinary actions were based, but

       that IU Health “simply produced the relevant portions of medical records that


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 9 of 31
       were used in peer review proceedings.” Appellant’s Br. p. 16. Dr. Graves

       argues that his request was for “‘complete medical records’ of the treatment of

       those patients, not just documents used in peer review proceedings.”

       Appellant’s Br. p. 16. Dr. Graves alleges that these documents, which he

       claims were “clearly relevant,” were never produced. Appellant’s App. p. 16.


[12]   In response, IU Health argues that the trial court acted within is discretion in

       denying Dr. Graves’s motion to compel because Dr. Graves had an opportunity

       to, and did, obtain and use whatever portions of the medical records that he

       thought were important while he was responding to the peer review

       committees’ concerns. At that time, as a member of the IU Health medical

       staff, he had access to the complete medical records of each patient case, and he

       could, and did, use any or all of those records in his responses to the peer

       review committees. Later, upon exercising his internal appeal rights, Dr.

       Graves received whatever medical records that he and IU Health thought were

       relevant to the hearing. As such, IU Health argues that the trial court correctly

       determined that IU Health should not be compelled to produce copies of

       documents, i.e., the complete medical records, which have “already been

       produced.” Appellees’ Br. p. 10. IU Health also argues that the trial court

       correctly determined that it should not be compelled to produce the complete

       medical records because Dr. Graves “did not demonstrate the relevance of or

       the need for the portions of the medical records that no one had relied on

       during the peer review proceedings.” Appellees’ Br. p. 10.




       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015   Page 10 of 31
[13]   Upon review, we cannot say that the trial court’s denial of Dr. Graves’s motion

       to compel IU Health to produce the complete medical records amounted to an

       abuse of the trial court’s discretion. As such, we conclude that the trial court

       did not abuse its discretion in this regard.


                                           B. Redacted Names
[14]   Dr. Graves also argues that the trial court abused its discretion in denying his

       request for the trial court to compel IU Health to produce copies of the medical

       records that did not redact the physicians’ names. In making this argument,

       Dr. Graves asserts that the physicians listed were not entitled to immunity

       under Indiana Code section 34-30-15-32 because the medical records in question

       were not documents created for the purpose of the peer review proceedings, but

       rather were documents created during the ordinary course of treatment of the

       patients. Dr. Graves also cites to our prior opinion in Ray v. St. John’s Health

       Care Corp., 582 N.E.2d 464, 473 (Ind. Ct. App. 1991). In Ray, we concluded

       that the hospital’s claim of privilege was not sufficient to sustain the broad

       finding that all the documents in question were privileged because it was

       unclear whether the hospital was motivated primarily by economic or

       professional service considerations. Id.




       2
         Indiana Code section 34-30-15-3(a) provides that “Information that is otherwise discoverable
       or admissible from original sources is not immune from discovery or use in any [health care
       provider peer review committee] proceeding merely because it was presented during
       proceedings before a peer review committee.”

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015            Page 11 of 31
[15]   For its part, IU Health argued that Dr. Graves “demonstrated no reason” why

       the names of the other physicians named in the medical records should have

       been left unredacted. Appellees’ Br. p. 10. In making this argument, IU Health

       asserted that the trial court acted within its discretion in denying Dr. Graves’s

       motion to compel because (1) it was appropriate to redact the physicians’ names

       to preserve the physicians’ confidentiality interests; (2) the medical records were

       the records of Dr. Graves’s patients, and the names of the other physicians

       would have been known to Dr. Graves because they would have participated in

       the patients’ care with Dr. Graves; and (3) the identities of the other physicians

       who also treated Dr. Graves’s patients had nothing to do with the concerns

       about the quality of care provided by Dr. Graves that were at issue before the

       peer review committees. Further, IU Health asserts that to the extent that Dr.

       Graves claims that he should have received more information because he

       alleged in his complaint that Dr. Ross “initiated the whole process,” Graves has

       presented no evidence that suggests that the peer review committees had any

       improper motivation and an unsupported allegation of improper motives does

       not justify the discovery of irrelevant information. Appellees’ Br. p. 11.


[16]   Upon review, we cannot say that the trial court’s denial of Dr. Graves’s motion

       to compel IU Health to produce unredacted copies of the medical records

       amounted to an abuse of the trial court’s discretion. As was the case in

       Subsection A, Dr. Graves has failed to establish that the trial court’s decision in

       this regard is clearly against the logic and effect of the facts and circumstances




       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015    Page 12 of 31
       before the trial court. As such, we conclude that the trial court did not abuse its

       discretion in this regard.


                              II. IU Health’s Motion to Strike
[17]   Dr. Graves also contends that the trial court abused its discretion in granting

       the Appellees’ motion to strike certain portions of his amended affidavit.

               The trial court has broad discretion in ruling on the admissibility of
               evidence. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773
               N.E.2d 881, 886 (Ind. Ct. App. 2002). This discretion extends to
               rulings on motions to strike affidavits on the grounds that they fail to
               comply with the summary judgment rules. Id.
               Indiana Trial Rule 56(E) provides in relevant part that affidavits
               submitted in support of or in opposition to a summary judgment
               motion “shall be made on personal knowledge, shall set forth such
               facts as would be admissible in evidence, and shall show affirmatively
               that the affiant is competent to testify to the matters stated therein.”
               Further, “[s]worn or certified copies not previously self-authenticated
               of all papers or parts thereof referred to in an affidavit shall be attached
               thereto or served therewith.” Id. “The requirements of T.R. 56(E) are
               mandatory—therefore, a court considering a motion for summary
               judgment should disregard inadmissible information contained in
               supporting or opposing affidavits.” Interstate Auction, Inc. v. Cent. Nat’l
               Ins. Group, Inc., 448 N.E.2d 1094, 1101 (Ind. Ct. App. 1983).


       Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).

[18]   The trial court issued an order striking several paragraphs of Dr. Graves’s

       amended affidavit, finding that the paragraphs in question contained

       inadmissible hearsay. In reaching this finding, the trial court determined that

       the statements contained in the paragraphs in question were not based on Dr.

       Graves’s personal knowledge but rather were statements not made by


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015             Page 13 of 31
       declarants other than Dr. Graves, i.e., comments made by other individuals

       either to or in front on Dr. Graves, which were offered by Dr. Graves for the

       purpose of proving the truth of the matter asserted.


[19]   Dr. Graves argues that the trial court abused its discretion in striking certain

       portions of his affidavit on hearsay grounds. In support, Dr. Graves cites to the

       Indiana Supreme Court’s opinion in Reeder v. Harper, 788 N.E.2d 1236 (Ind.

       2003), claiming that the case provides that any affidavit containing hearsay

       evidence should be considered during summary judgment proceedings so long

       as the evidence could be presented in an admissible manner at trial. We believe

       this to be an over-broad reading of the Indiana Supreme Court’s holding.


[20]   In Reeder, the affidavit in question was an affidavit that was made by a witness

       who died after creating the affidavit but prior to the summary judgment

       hearing. The statements contained in the affidavit were based on the now-

       deceased witness’s personal knowledge. In determining that the deceased

       witness’s affidavit could be considered by the trial court during the summary

       judgment proceedings, the Indiana Supreme Court held as follows:

               In essence, an affidavit speaks from the time it is made. Hence, an
               affidavit that would be inadmissible at trial may be considered at the
               summary judgment stage of the proceedings if the substance of the
               affidavit would be admissible in another form at trial. To hold
               otherwise and embrace the view that the death of an affiant renders an
               affidavit a nullity would result in summary judgment where the
               opposing party had the misfortune to select the one short-lived witness
               from among the many who may be able to testify to the same thing.
               We do not believe that Indiana Trial Rule 56(E) should be read so
               narrowly. As Moore’s Federal Practice points out in addressing the

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015       Page 14 of 31
               identically worded federal rule, Rule 56(e) requires that the affidavit be
               based on personal knowledge and “set forth facts as would be
               admissible at trial[.]” 11 James Wm. Moore et al., Moore’s Federal
               Practice § 56.14[1][e][i] (3d ed.1997) (emphasis added). The rule does
               not require that the affidavit itself be admissible. Id.


       Id. at 1241-42 (footnote omitted).

[21]   A plain reading of Reeder would seem to suggest that the Indiana Supreme

       Court’s holding did not change the fact that affidavits submitted either in

       support of or opposition to a motion for summary judgment must be based on

       personal knowledge. Rather, the Indiana Supreme Court’s holding seems to

       indicate that affidavits must both (1) be based on personal knowledge and (2) set

       forth facts that would be admissible in some form at trial. This reading of

       Reeder is consistent with the mandatory requirements of Indiana Trial Rule

       56(E) which explicitly states that “[s]upporting and opposing affidavits shall be

       made on personal knowledge, shall set forth such facts as would be admissible

       in evidence, and shall show affirmatively that the affiant is competent to testify

       to the matters stated therein. (Emphases added). Again, because the

       requirements of Trial Rule 56(E) are mandatory, “a court considering a motion

       for summary judgment should disregard inadmissible information contained in

       supporting or opposing affidavits.” Price, 832 N.E.2d at 1039 (citing Interstate

       Auction, 448 N.E.2d at 1101).


[22]   Upon review, we determine that Dr. Graves’s affidavit is easily distinguishable

       from the affidavit of the deceased witness that was presented in Reeder. Dr.

       Graves presented his own affidavit in opposition to the Appellees’ motion for


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015          Page 15 of 31
       summary judgment. In this affidavit, certain paragraphs presented statements

       which were derived from various documents or were allegedly made by other

       individuals either to or in front of Dr. Graves. Dr. Graves then presented these

       statements in his affidavit for the truth of the matter asserted. Unlike the

       deceased witness in Reeder, Dr. Graves did not have personal knowledge of the

       truth of the challenged statements. As such, although these statements might

       have been admissible at trial in some other form, the trial court could not

       consider them as part of Dr. Graves’s affidavit during the summary judgment

       proceedings because Dr. Graves did not, himself, have personal knowledge of

       the truth of the matters asserted. We therefore conclude that the trial court did

       not abuse its discretion in striking the challenged paragraphs of Dr. Graves’s

       affidavit.


[23]   The trial court also found that certain other paragraphs should be struck from

       Dr. Graves’s amended affidavit because the paragraphs in question contained

       statements that were either irrelevant to Dr. Graves’s claims or were

       inappropriate for consideration because the actions referred to therein occurred

       outside of the applicable statute of limitations. Dr. Graves claims that the trial

       court abused its discretion in striking certain paragraphs, the contents of which

       he claims were simply biographical, involved continuing conduct, or

       demonstrated that he was being treated differently from other IU Health

       employees. Upon review, we cannot say that the trial court’s decision to strike

       the challenged statements was clearly against the logic and effect of the facts

       and circumstances before the trial court. Our review of the statements at issue


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015   Page 16 of 31
       shows that many of these statements were either previously struck for

       containing inadmissible hearsay, irrelevant to the claims levied against the

       Appellees, or allegedly occurred outside of the relevant time frame.


[24]   Further, to the extent that some of the stricken paragraphs may have contained

       statements that could potentially be relevant to Dr. Graves’s discrimination

       claim, one of these statements was properly struck for containing inadmissible

       hearsay, and the remaining statements reflect only generalized statements

       regarding the ways in which Dr. Graves believed he was treated differently than

       other physicians. These generalized statements do not appear to set forth any

       specific facts as to how his treatment allegedly differed from that of other

       physicians. Furthermore, to the extent the statements could be characterized as

       setting forth specific facts in support of his discrimination claim, the statements

       at issue do not include any indication as to why Dr. Graves was allegedly

       treated differently from other physicians. Again, upon review, we cannot say

       that the trial court’s decision to strike the challenged statements was clearly

       against the logic and effect of the facts and circumstances before the trial court.

       Accordingly, we conclude that the trial court did not abuse its discretion in this

       regard.


                                     III. Summary Judgment
[25]   Dr. Graves last contends that the trial court erred in granting summary

       judgment in favor of the Appellees. In raising this contention, Dr. Graves

       argues that the trial court (1) incorrectly found that the Appellees were entitled


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015    Page 17 of 31
       to immunity on the breach of contract, contractual interference, and emotional

       distress claims; (2) improperly granted summary judgment on the

       discrimination claim; and (3) improperly found that the claims levied against

       Drs. Kovacs and Ross were barred by the statute of limitations. For their part,

       the Appellees contend that the trial court properly granted their motion for

       summary judgment.


[26]   Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

       judgment is appropriate when there are no genuine issues of material fact and

       when the moving party is entitled to judgment as a matter of law. Heritage Dev.,

       773 N.E.2d at 887.

               “On appeal from the denial of a motion for summary judgment, we
               apply the same standard applicable in the trial court. Summary
               judgment is appropriate only if there is no genuine issue as to any
               material fact and the moving party is entitled to judgment as a matter
               of law. Ind. Trial Rule 56(C). We therefore must determine whether
               the record reveals a genuine issue of material fact and whether the trial
               court correctly applied the law. 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 material facts are capable of
               supporting conflicting inferences on such an issue. If the material facts
               are not in dispute, our review is limited to determining whether the
               trial court correctly applied the law to the undisputed facts. When
               there are no disputed facts with regard to a motion for summary
               judgment and the question presented is a pure question of law, we
               review the matter de novo.”


       Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting

       Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)

       (internal quotation marks and some citations omitted)).

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 18 of 31
               A party seeking summary judgment bears the burden to make a prima
               facie showing that there are no genuine issues of material fact and that
               the party is entitled to judgment as a matter of law. American
               Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. Ct.
               App. 1996). Once the moving party satisfies this burden through
               evidence designated to the trial court pursuant to Trial Rule 56, the
               non-moving party may not rest on its pleadings, but must designate
               specific facts demonstrating the existence of a genuine issue for trial.
               Id.


       Heritage Dev., 773 N.E.2d at 888 (emphasis added). “On appeal, the trial court’s

       order granting or denying a motion for summary judgment is cloaked with a

       presumption of validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct.

       App. 2007), trans. denied. However, we are not limited to reviewing the trial

       court’s reasons for granting or denying summary judgment but rather may

       affirm the trial court’s ruling if it is sustainable on any theory found in the

       evidence designated to the trial court. See Alva Elec., Inc. v. Evansville-

       Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind. 2014) (citing Wagner v. Yates,

       912 N.E.2d 805, 811 (Ind. 2009)).


                                                 A. Immunity
[27]   In challenging the trial court’s award of summary judgment in favor of the

       Appellees, Dr. Graves argues that the trial court erred in determining that the

       Appellees were entitled to immunity from his breach of contract, contractual

       interference, and emotional distress claims. For their part, the Appellees argue

       the following:

               To summarize: defendant IU Health is a professional review body
               under [the Health Care Quality Improvement Act (“HCQIA”)],

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 19 of 31
               conducting peer review activity through committees of its medical
               staff, and is entitled to immunity under that statute if certain statutory
               prerequisites are met. Drs. Kovacs and Ross are also immune because
               they were persons participating with the professional review body in
               the professional review action that affected Dr. Graves, as outlined in
               42 U.S.C. §§ 11111(a)(1) and 11112(a).


       Appellee’s Br. p. 16. The Appellees argue that because the pertinent statutory

       prerequisites were met, the Appellees were immune from liability from Dr.

       Graves’s breach of contract, contractual interference, and emotional distress

       claims. We agree with the Appellees.


                    1. The Health Care Quality Improvement Act (“HCQIA”)

[28]   The question of whether the Appellees were entitled to immunity is governed

       by the HCQIA which is codified at 42 U.S.C. sections 11101 through 11152.3

       “Pursuant to 42 U.S.C. § 11111, except with respect to civil rights actions, a

       professional review body ‘shall not be liable in damages under any law of the

       United States or of any State (or political subdivision thereof) with respect to’

       ‘professional review actions.’” W.S.K. v. M.H.S.B., 922 N.E.2d 671, 689 (Ind.

       Ct. App. 2010). The immunity further extends not only to the professional

       review body, but also to (1) any person acting as a member or staff to the body,

       (2) any person under a contract or other formal agreement with the body, and




       3
         Indiana’s version of the HCQIA, the Indiana Peer Review Act, is codified at Indiana Code
       sections 34-30-15-1 through 34-30-15-23. However, our review will be limited to the federal
       version because Dr. Graves only raises a challenge to the trial court’s order based off its
       application of the federal version of HCQIA, which undisputedly applies in Indiana.

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015          Page 20 of 31
       (3) any person who participates with or assists the body with respect to the

       action. 42 U.S.C.A. § 11111(a)(1).


[29]   A “professional review action” is defined as follows:

               [A]n action or recommendation of a professional review body which is
               taken or made in the conduct of professional review activity, which is
               based on the competence or professional conduct of an individual
               physician (which conduct affects or could affect adversely the health or
               welfare of a patient or patients), and which affects (or may affect)
               adversely the clinical privileges, or membership in a professional
               society, of the physician. Such term includes a formal decision of a
               professional review body not to take an action or make a
               recommendation described in the previous sentence and also includes
               professional review activities relating to a professional review action.


       42 U.S.C.A. § 11151(9). Immunity attaches under the HCQIA when the review

       action was taken:

               (1) in the reasonable belief that the action was in the furtherance of
               quality health care,
               (2) after a reasonable effort to obtain the facts of the matter,
               (3) after adequate notice and hearing procedures are afforded to the
               physician involved or after such other procedures as are fair to the
               physician under the circumstances, and
               (4) in the reasonable belief that the action was warranted by the facts
               known after such reasonable effort to obtain facts and after meeting the
               requirement of paragraph (3).


       42 U.S.C.A. § 11112(a). “A professional review action shall be presumed to

       have met the preceding standards necessary for the protection set out in section

       11111(a) of this title unless the presumption is rebutted by a preponderance of

       the evidence.” Id. Accordingly, in this case, the burden fell upon Dr. Graves to

       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015           Page 21 of 31
       show that the Appellees failed to comply with the requirements and are thereby

       were not entitled to immunity.


                          2. Application of the HCQIA to the Instant Matter

[30]   In awarding summary judgment in favor of the Appellees, the trial court found

       as follows:

               10. Under the HCQIA, this Court finds that the [Appellees] are
               immune from [Dr. Graves’s] breach of contract, tortious interference
               with a contract, and emotional distress claims if IU Health’s peer
               review actions were taken in the reasonable belief that they furthered
               quality health care, and were based on reasonable investigation and on
               fair and adequate notice and hearing procedures. There is a statutory
               presumption that IU Health’s peer review actions have met these
               standards, which [Dr. Graves] must overcome if he is to avoid
               summary judgment. [W.S.K., 92 N.E.2d at 690].
               11. Based on the designated evidence, there is no doubt that the peer
               review actions of IU Health, Dr. Kovacs and Dr. Ross fully satisfy the
               HCQIA’s immunity standards. First, the actions were meant to
               further quality health care. The designation of evidence,
               recommendations to the Credentials Committee and the Medical Staff
               Executive Committee, the deliberations of those committees and their
               meeting minutes, the notice letters to [Dr. Graves] which describe the
               committees’ concerns, the committees’ recommendations, and the IU
               Health board’s decisions were all based on quality issues and a concern
               for patient safety.
               12. The designated evidence demonstrates that the [Appellees]
               satisfied the second requirement of the HCQIA immunity standards
               that there be a reasonable effort to obtain facts. The evidence shows
               that the IU Health peer committees did not rush to judgment, but
               thoroughly investigated the incidents and complaints when they arose,
               sought input from [Dr. Graves’s] co-chief, requested [Dr. Graves’s]
               written response, and even extended [Dr. Graves’s] provisional
               privileges while they investigated and evaluated the facts. (See
               Exhibits 6, 9, 10, 12, 15, 17, 20, 21, 22, and 23).


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015      Page 22 of 31
               13. The third requirement that “adequate notice and hearing
               procedures” be provided has been satisfied. [Dr. Graves] was first put
               on notice in December of 2008 when he was informed of his
               conditional six-month renewal. (See Exhibit 6). [Dr. Graves] received
               ample and detailed notice of the concerns about his manner of
               practicing and its negative effect on patient safety, he was given a fair
               and reasonable opportunity to respond to those concerns (including an
               extension of his conditional staff privileges); and was provided much
               more than adequate time to prepare for and participate in the IU
               Health internal appeal process.
               14. Finally, the fourth element requires that the peer review action be
               taken “in the reasonable belief that the action was warranted by the
               facts know[n] after such reasonable effort to obtain facts and after
               meeting the requirement of paragraph 3”. The designated evidence[]
               demonstrates that the participants in the peer review process
               reasonably thought their action was warranted and that their concerns
               about patient safety and quality of care issues were evidence[d] from
               the beginning when [Dr. Graves’s] staff privileges were conditionally
               issued for only six months.
               15. Because [Dr. Graves] has failed to rebut the presumption that the
               professional review action meets the preceding standards by a
               preponderance of the evidence, this Court finds that [the Appellees]
               are immune from [Dr. Graves’s] breach of contract, tortious
               interference with contract, and emotional distress claims as all the
               requirements of the HCQIA have been satisfied. Thus, the immunity
               provisions of § 11112(a) therefore apply to [Dr. Graves’s] breach of
               contract, tortious interference with contract and emotional distress
               claims. In addition, the immunity analysis under the Indiana Peer
               Review Act, I.C. § 34-30-15-1 to 34-30-15-23 is essentially the same as
               that under the HCQIA. [W.S.K., 922 N.E.2d at 690]. Thus, this
               Court finds that the [Appellees] are entitled to immunity under the
               Indiana statute also.


       Appellant’s App. pp. 18-19A (brackets added).

[31]   Dr. Graves raises two procedural reasons on appeal outlining why he believes

       that the trial court erred in finding that the Appellees were entitled to immunity


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 23 of 31
       under the HCQIA. First, Dr. Graves argues that he did not receive a full

       opportunity to call, examine, or cross-examine witnesses because his hearing

       ran late. Specifically, Dr. Graves argues that he did not have an opportunity to

       present all of the witnesses that he wanted to. The designated evidence

       demonstrates that Dr. Graves did not raise any procedural objections to the

       hearing process or allege at the time of the hearing that the process was unfair.

       Further, Dr. Graves does not specify which witnesses that he was unable but

       intended to call, but rather merely claims that the witnesses had gone home.

       Dr. Graves has presented no designated evidence indicating that he requested a

       continuance for the purpose of presenting additional witness testimony on his

       behalf or that he made any other procedural objections at the time of the review

       hearing. As such, in light of the general rule that a party is responsible for

       securing his own witnesses and preserving any procedural objections, see

       generally Bledsoe v. State, 263 Ind. 265, 268-270, 329 N.E.2d 592, 594-95 (1975)

       (providing that the absence of a defense witness did not entitled the defendant

       to relief where there was no showing of reasonable diligence in procuring the

       witness at trial and no request for a continuance was made), we conclude that

       the trial court correctly determined that Dr. Graves failed to rebut the

       presumption that he received a fair hearing by a preponderance of the evidence.


[32]   Dr. Graves also argues that he did not receive a fair hearing because Dr.

       Kovacs responded to the review committees’ questions after only reviewing the

       relevant medical records but without discussing the relevant cases with Dr.

       Graves himself. Dr. Graves essentially argues that Dr. Kovacs could not


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015     Page 24 of 31
therefore present an informed opinion because the medical records presented a

version of events that differed from Dr. Graves’s version of the events in

question. Dr. Graves, however, cites to no authority which suggests that Dr.

Kovacs was required to discuss the matter with Dr. Graves personally, that the

normal course of action in similar circumstances would include discussing the

allegations with someone in Dr. Graves’s position, or that it was improper for

Dr. Kovacs to base his opinion on his review of the relevant medical records.

The designated evidence indicates that Dr. Graves had the opportunity to cross-

examine all witnesses who spoke before the review committees. Dr. Graves

fails to explain how he was harmed by Dr. Kovacs’s alleged failure to discuss

the relevant cases with Dr. Graves ahead of time, given that he had the

opportunity to explore whether Dr. Kovacs’s opinions would have changed

based on any potential information shared by Dr. Graves during his cross-

examination of Dr. Kovacs. Upon review, we again conclude that the trial

court correctly determined that Dr. Graves failed to rebut the presumption that

he received a fair hearing by a preponderance of the evidence. 4




4
   Furthermore, to the extent that Dr. Graves argues that the trial court erred in granting
summary judgment in favor of the Appellees because it failed to specifically address the merits
of his breach of contract and contractual interference claims, we find no merit in this argument
because the trial court properly found that the Appellees were immune from liability from these
claims and Dr. Graves has provided no authority indicating that these claims would supersede
the provisions of the HCQIA.

Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015              Page 25 of 31
                           B. Dr. Graves’s Discrimination Claim
[33]   In challenging the trial court’s award of summary judgment in favor of the

       Appellees, Dr. Graves argues that the trial court erred in determining that he

       failed to present a prima facie case of discrimination.

               In order to establish a prima facie case of discrimination, [Dr. Graves]
               must present by a preponderance of the evidence that: (1) he was a
               member of a protected class; (2) he was qualified for the job in
               question; (3) he suffered an adverse employment action; and (4) the
               defendant treated other similarly-situated employees who were not
               members of the class more favorably. [McDonnell Douglas Corp. v.
               Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973)]; [Gonzalez v. Ingersoll
               Milling Machine Co., 133 F.3d 1025, 1032 (7th Cir. 1998)]. If a prima
               facie case is established, the burden shifts to the defendant to produce
               evidence of a legitimate, non-discriminatory reason for its decision. Id.
               If the defendant produces such a reason, the plaintiff has an
               opportunity to show that the articulated explanation was in fact
               pretext. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817; Gonzalez,
               133 F.3d at 1032. A pretext is a “lie, specifically a phony reason for
               some action.” Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th
               Cir.1999).


       Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 794 (7th Cir. 2006) (emphasis in

       original).

[34]   In determining that the Appellees were entitled to summary judgment on Dr.

       Graves’s discrimination claim, the trial court found as follows:

               17. Here, [the Appellees] have produce[d] multiple exhibits providing
               legitimate, non-discriminatory reasons for its decisions. One example,
               Exhibit 21, a Quality and Performance Review Committee review of a
               previous meeting’s minutes, list its legitimate, non-discriminatory
               reasons for recommending denial of Dr. Graves[’s] staff privileges as
               including but not limited to: lack of responsiveness and appreciation
               for the need to quickly and accurately resolve immediate and urgent
       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015        Page 26 of 31
               patient care needs, persistent pattern of unprofessional behavior,
               failure to remedy concerns over lack of responsiveness, and potential
               for patient safety concerns. Because [Dr. Graves] has failed to provide
               evidence that the [Appellee’s] explanation was pretext, this Court
               grants summary judgment for [the Appellees] on [Dr. Graves’s] 42
               U.S.C. § 1981 claims.


       Appellant’s App. pp. 19A-19B (brackets added).

[35]   The appellate record indicates that, in addition to Exhibit 21, the Appellees

       designated a substantial amount of evidence outlining legitimate, patient-care

       related, reasons in support of the recommendation that IU Health not renew

       Dr. Graves’s staff privileges. In response to this overwhelming amount of

       designated evidence, Dr. Graves did not present any specific information

       relating to his claim that the stated reasons for recommending the nonrenewal

       of his staff privileges were pretext. Dr. Graves merely presented sweeping,

       unsubstantiated, and unsupported allegations which he claims created a prima

       facie showing that he was treated differently than his counterparts. However, as

       we stated above, these statements were so generalized in nature that they failed

       to indicate specifically how or why he was allegedly treated differently than

       other physicians. Upon review, we conclude that Dr. Graves failed to designate

       any evidence which would raise a genuine issue of material fact as to whether

       the reasons proffered by the Appellees for the recommendation that IU Health

       not renew Dr. Graves’s staff privileges were pretext.


                                      C. Statute of Limitations
[36]   Dr. Graves also argues that the trial court erred in finding that an award of

       summary judgment was appropriate for Drs. Kovacs and Ross because, with
       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015       Page 27 of 31
       respect to Drs. Kovacs and Ross, the tortious interference with a contract claim

       levied by Dr. Graves was barred by the applicable statute of limitations.

       Initially, we note that it seems unnecessary to address Dr. Graves’s challenge to

       summary judgment on the statute of limitations grounds in light of our

       conclusion that Drs. Kovacs and Ross were entitled to statutory immunity from

       Dr. Graves’s tortious interference with a contract claim. However, to the extent

       it is necessary to address the merits of this challenge, we will now do so.


[37]   It has long been established that “[t]he claimant bears the burden to bring suit

       against the proper party within the statute of limitations.” Wathen v. Greencastle

       Skate Place, Inc., 606 N.E.2d 887, 894 (Ind. Ct. App. 1993). We noted in our

       prior opinion relating to the parties that Dr. Graves did not dispute that his

       claim for tortious interference with a contract was governed by a two-year

       statute of limitations. Graves, 990 N.E.2d at 978.


[38]   In determining that Drs. Kovacs and Ross were entitled to an award of

       summary judgment in this regard, the trial court found as follows:

               18. Last, [Appellees] assert that Richard Kovacs, M.D. and Edward
               Ross, M.D. are specifically entitled to summary judgment on [Dr.
               Graves’s] tortious interference with [a] contract claim because the
               applicable statute of limitations has expired. This tortious interference
               claim has a two-year statute of limitations. C&E Corp. v. Ramco
               Industries, Inc., 717 N.E.2d 642, 643-56 (Ind. Ct. App. 1999).
               19. [Dr. Graves’s] tortious interference with [a] contract claim is
               barred by the two-year statute of limitations because the claim was
               brought on March 7, 2012, and Drs. Kovacs[’s] and Ross[’s]
               involvement with the contract ended on March 2, 2010, and the claim
               does not relate back to the claims against [IU Health].


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 28 of 31
               20. Under Indiana law, “[t]he claimant bears the burden to bring suit
               against the proper party within the statute of limitations.” [Wathen,
               606 N.E.2d at 894]. In Seach v. Armbruster, 725 N.E.2d 875, 877 (Ind.
               Ct. App. 2000), as a result of injuries from a child birth on May 10,
               1995, the plaintiffs filed their initial complaint on April 29, 1997[,]
               alleging negligence against a hospital, several doctors, a nurse
               identified as Deanna Floyd, and “currently unidentified attending
               nurses Jane Does numbers one and two. A little over a month later,
               on June 3, 1997, the plaintiffs amend[ed] their claim to name labor
               and delivery nurse Deborah Armbruster as a defendant for the first
               time. Id. Nurse Armbruster moved for summary judgment, arguing
               that the action against her was barred by the statute of limitations
               because she was not notified within two years of the date the alleged
               injury occurred. Id. The Court [of] Appeals affirmed the trial court’s
               granting of summary judgment for the Nurse finding that actions
               against the nurse did not relate back to the filing of the complaint
               against the hospital. Id. at 878-879. Similarly, in Conrad v. Waugh, 474
               N.E.2d 130 (Ind. Ct. App. 1985), the Court of Appeals reversed the
               trial court’s denial of summary judgment to a doctor who was
               belatedly added as a defendant to a complaint against a hospital.
               21. As in Seach and Conrad, in this case, Dr. Graves’[s] second
               amended complaint does not relate back to his earlier complaint
               against IU Health. Thus, this Court finds that [Dr. Graves] failed to
               timely file his complaint within the two year statute of limitations
               against Dr. Kovacs and Dr. Ross. Drs. Kovacs[’s] and Ross[’s] last
               involvement with the contract at issue ended on March 2, 2010[,] and
               the Plaintiff did not file his Amended Complaint adding Drs. Kovacs
               and Ross to the complaint until March 7, 2012. Thus, this Court finds
               that [] Drs. Kovacs and Ross are specifically entitled to summary
               judgment on [Dr. Graves’s] tortious interference with [a] contract
               claim because [the claim was] not filed within the statute of limitations
               period.


       Appellant’s App. pp. 19B-19C (all but the ninth set of brackets added).

[39]   With respect to whether an amended complaint relates back to an original

       complaint, Indiana Trial Rule 15(C) provides that “[w]henever the claim or

       defense asserted in the amended pleading arose out of the conduct, transaction,
       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015         Page 29 of 31
       or occurrence set forth or attempted to be set forth in the original pleading, the

       amendment relates back to the date of the original pleading.” However, Trial

       Rule 15(C) goes on to provide the following:

               An amendment changing the party against whom a claim is asserted
               relates back if the foregoing provision is satisfied and, within one
               hundred and twenty (120) days of commencement of the action, the
               party to be brought in by amendment:
               (1) has received such notice of the institution of the action that he will
               not be prejudiced in maintaining his defense on the merits; and
               (2) knew or should have known that but for a mistake concerning the
               identity of the proper party, the action would have been brought against
               him.


       (Emphasis added). In the instant matter, there is no allegation that Dr. Graves

       was mistaken as to the identity of the proper party, i.e., the identity of Drs.

       Kovacs and Ross. As such, we conclude that the trial court properly

       determined that Dr. Graves’s Second Amended Complaint, which was filed

       after the expiration of the applicable two-year statute of limitation, did not

       relate back to Dr. Graves’s original complaint against IU Health. We therefore

       further conclude that the trial court did not err in determining that Drs. Kovacs

       and Ross were entitled to an award of summary judgment with respect to Dr.

       Graves’s tortious interference of a contract claim.



                                                 Conclusion
[40]   In sum, we conclude that the trial court acted within its discretion in denying

       Dr. Graves’s motion to compel and in striking certain paragraphs from Dr.


       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015             Page 30 of 31
       Graves’s affidavit. We also conclude that the trial court did not err in granting

       summary judgment in favor of the Appellees. Accordingly, we affirm the

       judgment of the trial court.


[41]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1412-PL-560 | June 5, 2015   Page 31 of 31
