FOR PUBLICATION Jul 18 2013, 6:30 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JON C. ABERNATHY KATHLEEN A. KILAR ANDREW B. JANUTOLO ANDREW S. WILLIAMS Goodin Abernathy, LLP Fort Wayne, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA CHRISTOPHER HALTERMAN, ) ) Appellant-Plaintiff, ) ) vs. ) No. 01A04-1211-CT-558 ) ADAMS COUNTY BOARD OF ) COMMISSIONERS, ADAMS COUNTY ) SHERIFF, CHARLES PADGETT, ) ADAMS COUNTY SHERIFF’S ) DEPARTMENT and ADAMS COUNTY JAIL, ) ) Appellees-Defendants. )
APPEAL FROM THE ADAMS CIRCUIT COURT The Honorable Frederick A. Schurger, Judge Cause No. 01C01-1009-CT-8
July 18, 2013
OPINION - FOR PUBLICATION
MAY, Judge Christopher Halterman appeals a summary judgment for Adams County Sheriff
Charles Padgett.1 He presents two issues for our review:
1. Whether the trial court abused its discretion when it denied Halterman’s
motion to strike Dr. Bev House’s affidavit; and
2. Whether the trial court erred when it granted summary judgment in favor of
Sheriff Padgett.
We affirm.
FACTS AND PROCEDURAL HISTORY
Between March 19, 2009, and April 10, 2009, Halterman was incarcerated in the
Adams County Jail. On April 4, he submitted a medical request form concerning boils on his
buttock. On April 6, a nurse practitioner examined Halterman and determined he had a
“small raised area, with some redness extending approximately 1 cm from the raised area.
There was no drainage[.]” (App. at 99.)
Halterman submitted another medical request form on April 8, and the nurse
practitioner examined him the same day. She referred Halterman to Adams Memorial
Hospital for “outpatient surgery for incision and drainage of his right buttocks abscess.” (Id.
at 99-100.) On April 10, the nurse practitioner examined Halterman as part of a post-hospital
check, and sent Halterman to the emergency room, where it was discovered he had developed
1 Halterman does not appeal the grant of summary judgment in favor of the Adams County Board of Commissioners, Adams County Sheriff’s Department, and the Adams County Jail. However, a party of record at the trial court is a party on appeal, and therefore, these parties are included when referencing “Defendants” in this opinion.
2 a Methicillin-resistant staphylococcus aureus (MRSA) infection. Halterman ultimately
underwent multiple surgeries, including a colostomy.
On September 22, 2010, Halterman filed suit against the Defendants and Sheriff
Padgett, claiming negligence in the treatment of his abscess. Defendants and Sheriff Padgett
moved for summary judgment. Halterman filed a Motion to Strike the Affidavit of Dr. Bev
House, and Defendants and Sheriff Padgett filed a Motion to Strike a portion of Halterman’s
designated evidence.
The trial court denied Halterman’s Motion to Strike, granted Defendants’ and Sheriff
Padgett’s Motion to Strike, and granted summary judgment for all Defendants except Sheriff
Padgett. The trial court later granted summary judgment for Sheriff Padgett.
DISCUSSION AND DECISION
1. Motion to Strike
We review for an abuse of discretion a trial court’s decision on a motion to strike.
Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind. 2010). We will reverse only when the decision
is clearly against the logic and effect of the facts and circumstances. Id. Halterman argues
Dr. House’s affidavit should have been stricken because it was based on insufficient
evidence and the conclusions therein were speculative and based on inadmissible evidence.
We disagree.
“Affidavits submitted in support of or in opposition to a motion for summary
judgment may be stricken for a variety of reasons. But a difference of opinion is not to be
one of them.” Id. An expert witness must have sufficient facts or data on which to form an
3 opinion. Burp v. State, 612 N.E.2d 169, 172 (Ind. Ct. App. 1993). For an expert opinion to
be admissible, the expert must be qualified and “the scientific principles upon which the
expert testimony rests [must be] reliable” as determined by the trial court. Indiana Rule of
Evidence 702. Experts may testify to opinions based on inadmissible evidence if it is of the
type reasonably relied on by experts in the field. Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind.
Ct. App. 1999). An expert witness “need not base her opinion on personal knowledge if the
opinion is based on evidence of a type normally found reliable and customarily relied upon
by others in the witness’s profession or area of expertise.” Id. at 849.
Dr. House stated in his affidavit he reviewed Halterman’s complaint for damages; the
Adams County Jail records, which included all of Halterman’s requests for medical
treatment, not just those related to the instant case; the Adams County Hospital Records; the
nurse practitioner’s records and deposition; and Halterman’s deposition. An expert’s
affidavit may be based on medical records and the depositions of the parties. Id. at 848-49.
Dr. House relied on the kinds of designated evidence we determined in Bunch was
appropriate in the medical field, and therefore the trial court did not abuse its discretion when
it denied Halterman’s motion to strike Dr. House’s affidavit.
2. Summary Judgment
The standard of review of a summary judgment is the same as that used in the trial
court: summary judgment is appropriate only where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Lean v. Reed, 876 N.E.2d
1104, 1107 (Ind. 2007). In determining whether summary judgment is appropriate, we
4 construe all facts and reasonable inferences in favor of the nonmoving party. Jackson v.
Scheible, 902 N.E.2d 807, 809 (Ind. 2009). Our review is limited to those materials
designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756
N.E.2d 970, 973 (Ind. 2001). We must carefully review a decision on summary judgment to
ensure a party is not improperly denied its day in court. Id. at 974. We affirm summary
judgment on any legal basis supported by the designated evidence. Cincinnati Ins. Co. v.
Davis, 860 N.E.2d 915, 922 (Ind. Ct. App. 2007). The appellant bears the burden of
persuading us summary judgment was erroneous. Id.
To prevail on a claim of negligence, a plaintiff must demonstrate: “(1) duty owed to
plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable
standard of care; and (3) compensable injury proximately caused by defendant’s breach of
duty.” Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind. Ct. App. 2004), trans.
denied. Summary judgment is appropriate in a negligence action where defendant
demonstrates “that the undisputed material facts negate at least one element of plaintiff’s
claim.” Jacques v. Allied Bldg. Servs. of Ind., Inc., 717 N.E.2d 606, 608 (Ind. Ct. App.
1999).
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FOR PUBLICATION Jul 18 2013, 6:30 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JON C. ABERNATHY KATHLEEN A. KILAR ANDREW B. JANUTOLO ANDREW S. WILLIAMS Goodin Abernathy, LLP Fort Wayne, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA CHRISTOPHER HALTERMAN, ) ) Appellant-Plaintiff, ) ) vs. ) No. 01A04-1211-CT-558 ) ADAMS COUNTY BOARD OF ) COMMISSIONERS, ADAMS COUNTY ) SHERIFF, CHARLES PADGETT, ) ADAMS COUNTY SHERIFF’S ) DEPARTMENT and ADAMS COUNTY JAIL, ) ) Appellees-Defendants. )
APPEAL FROM THE ADAMS CIRCUIT COURT The Honorable Frederick A. Schurger, Judge Cause No. 01C01-1009-CT-8
July 18, 2013
OPINION - FOR PUBLICATION
MAY, Judge Christopher Halterman appeals a summary judgment for Adams County Sheriff
Charles Padgett.1 He presents two issues for our review:
1. Whether the trial court abused its discretion when it denied Halterman’s
motion to strike Dr. Bev House’s affidavit; and
2. Whether the trial court erred when it granted summary judgment in favor of
Sheriff Padgett.
We affirm.
FACTS AND PROCEDURAL HISTORY
Between March 19, 2009, and April 10, 2009, Halterman was incarcerated in the
Adams County Jail. On April 4, he submitted a medical request form concerning boils on his
buttock. On April 6, a nurse practitioner examined Halterman and determined he had a
“small raised area, with some redness extending approximately 1 cm from the raised area.
There was no drainage[.]” (App. at 99.)
Halterman submitted another medical request form on April 8, and the nurse
practitioner examined him the same day. She referred Halterman to Adams Memorial
Hospital for “outpatient surgery for incision and drainage of his right buttocks abscess.” (Id.
at 99-100.) On April 10, the nurse practitioner examined Halterman as part of a post-hospital
check, and sent Halterman to the emergency room, where it was discovered he had developed
1 Halterman does not appeal the grant of summary judgment in favor of the Adams County Board of Commissioners, Adams County Sheriff’s Department, and the Adams County Jail. However, a party of record at the trial court is a party on appeal, and therefore, these parties are included when referencing “Defendants” in this opinion.
2 a Methicillin-resistant staphylococcus aureus (MRSA) infection. Halterman ultimately
underwent multiple surgeries, including a colostomy.
On September 22, 2010, Halterman filed suit against the Defendants and Sheriff
Padgett, claiming negligence in the treatment of his abscess. Defendants and Sheriff Padgett
moved for summary judgment. Halterman filed a Motion to Strike the Affidavit of Dr. Bev
House, and Defendants and Sheriff Padgett filed a Motion to Strike a portion of Halterman’s
designated evidence.
The trial court denied Halterman’s Motion to Strike, granted Defendants’ and Sheriff
Padgett’s Motion to Strike, and granted summary judgment for all Defendants except Sheriff
Padgett. The trial court later granted summary judgment for Sheriff Padgett.
DISCUSSION AND DECISION
1. Motion to Strike
We review for an abuse of discretion a trial court’s decision on a motion to strike.
Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind. 2010). We will reverse only when the decision
is clearly against the logic and effect of the facts and circumstances. Id. Halterman argues
Dr. House’s affidavit should have been stricken because it was based on insufficient
evidence and the conclusions therein were speculative and based on inadmissible evidence.
We disagree.
“Affidavits submitted in support of or in opposition to a motion for summary
judgment may be stricken for a variety of reasons. But a difference of opinion is not to be
one of them.” Id. An expert witness must have sufficient facts or data on which to form an
3 opinion. Burp v. State, 612 N.E.2d 169, 172 (Ind. Ct. App. 1993). For an expert opinion to
be admissible, the expert must be qualified and “the scientific principles upon which the
expert testimony rests [must be] reliable” as determined by the trial court. Indiana Rule of
Evidence 702. Experts may testify to opinions based on inadmissible evidence if it is of the
type reasonably relied on by experts in the field. Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind.
Ct. App. 1999). An expert witness “need not base her opinion on personal knowledge if the
opinion is based on evidence of a type normally found reliable and customarily relied upon
by others in the witness’s profession or area of expertise.” Id. at 849.
Dr. House stated in his affidavit he reviewed Halterman’s complaint for damages; the
Adams County Jail records, which included all of Halterman’s requests for medical
treatment, not just those related to the instant case; the Adams County Hospital Records; the
nurse practitioner’s records and deposition; and Halterman’s deposition. An expert’s
affidavit may be based on medical records and the depositions of the parties. Id. at 848-49.
Dr. House relied on the kinds of designated evidence we determined in Bunch was
appropriate in the medical field, and therefore the trial court did not abuse its discretion when
it denied Halterman’s motion to strike Dr. House’s affidavit.
2. Summary Judgment
The standard of review of a summary judgment is the same as that used in the trial
court: summary judgment is appropriate only where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Lean v. Reed, 876 N.E.2d
1104, 1107 (Ind. 2007). In determining whether summary judgment is appropriate, we
4 construe all facts and reasonable inferences in favor of the nonmoving party. Jackson v.
Scheible, 902 N.E.2d 807, 809 (Ind. 2009). Our review is limited to those materials
designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756
N.E.2d 970, 973 (Ind. 2001). We must carefully review a decision on summary judgment to
ensure a party is not improperly denied its day in court. Id. at 974. We affirm summary
judgment on any legal basis supported by the designated evidence. Cincinnati Ins. Co. v.
Davis, 860 N.E.2d 915, 922 (Ind. Ct. App. 2007). The appellant bears the burden of
persuading us summary judgment was erroneous. Id.
To prevail on a claim of negligence, a plaintiff must demonstrate: “(1) duty owed to
plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable
standard of care; and (3) compensable injury proximately caused by defendant’s breach of
duty.” Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind. Ct. App. 2004), trans.
denied. Summary judgment is appropriate in a negligence action where defendant
demonstrates “that the undisputed material facts negate at least one element of plaintiff’s
claim.” Jacques v. Allied Bldg. Servs. of Ind., Inc., 717 N.E.2d 606, 608 (Ind. Ct. App.
1999).
Causation may not be inferred merely from the allegation of a negligent act. Midwest
Commerce Bank Co. v. Livings, 608 N.E.2d 1010, 1013 (Ind. Ct. App. 1993). To prove
causation, a plaintiff must present specific facts that would demonstrate the defendant’s
allegedly negligent behavior caused the plaintiff’s injuries. Id. If the defendant establishes
the lack of that causation, summary judgment is appropriate. Id.
5 In granting summary judgment in favor of Sheriff Padgett, the trial court found
Halterman had not demonstrated any action by Sheriff Padgett caused the MRSA infection he
suffered as a result of the abscess. Halterman argues summary judgment was improper
because genuine issues of material fact regarding the element of breach of duty and causation
remain, including the date Bates first examined Halterman, the date Halterman first reported
his condition, and the size of Halterman’s abscess.
In deciding the Defendants’ actions did not cause Halterman’s injuries, the trial court
found:
[E]ven assuming arguendo that Halterman could create an issue of fact as to any supposed breach, Halterman cannot carry his burden on the element of “causation”. [sic] The Defendants have designated the Affidavit of Bev. P. House MD. Dr. House has opined: MRSA is spread through direct skin-to-skin contact. Mr. Halterman’s MRSA infection was not caused by any condition of the Adams County Jail; meaning, contrary to Mr. Halterman’s belief as stated during his deposition testimony that the Adams County Jail was “dirty”, [sic] that was not the cause of Mr. Halterman’s MRSA abscess, MRSA infection and the subsequent treatment that that condition required, specifically the hospitalizations(s) and the surgical procedures, which included performance of a colostomy. It cannot be stated with any degree of medical certainty that the outcome for Mr. Halterman would have been different if he had been examined at any time between Alicia Bates, NP’s examinations of April 6, 2009 and April 8, 2009 at 11:20am. [sic] It would be pure speculation to state that any treatment rendered to Mr. Halterman between April 6, 2009 and that rendered on April 8, 2009 would have prevented the development of the MRSA abscess, MRSA infection and the progression of that condition which later required surgical intervention and treatment, including performance of a colostomy. (House Affidavit, ¶¶ 14 and 15). In short, Halterman cannot establish that any act of the Defendants 6 caused his condition (the MRSA abscess/MRSA infection) or the injuries he suffered from the MRSA abscess/MRSA infection. The defendants have affirmatively designated evidence showing lack of causation. Halterman cannot prove “causation.” [sic] Absent factual evidence designated to the trial court, negligence cannot be inferred from the mere fact of an injury and summary judgment must be granted in favor of the Defendants where there is an absence of evidence.
(App. at 10-11.)
We agree with the trial court. Halterman has not directed us to any designated
evidence that would permit an inference that his injuries were caused by Sheriff Padgett. In
his response to Defendants and Sheriff Padgett’s motion for summary judgment, he alleged
the “dirty condition at the jail” (id. at 183), caused his MRSA infection, but did not indicate
how the allegedly unclean conditions did so. In addition, he did not designate any evidence
indicating earlier medical intervention or a different treatment strategy would have changed
the outcome of his situation. Summary judgment for the Sheriff Padgett was appropriate
because Halterman was unable to make out a prima facie case for negligence, i.e., Sheriff
Padgett has successfully negated the required causation showing.
CONCLUSION
The trial court did not abuse its discretion when it denied Halterman’s motion to strike
the affidavit of Dr. House, and Sheriff Padgett was entitled to summary judgment because
Halterman could not show any action or lack thereof by Sheriff Padgett caused Halterman’s
injury. Accordingly, we affirm.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
7 8