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Monday, June 23, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Donald Bunger and Flora Bunger v. Jason A. Brooks, M.D., a 15-page opinion, Judge Najam writes:

Donald and Flora Bunger appeal the trial court’s entry of summary judgment in favor of Jason A. Brooks, M.D., on the Bungers’ complaint alleging medical malpractice that resulted in the rapid loss of vision in Donald’s left eye. The Bungers raise the following issues for our review:

1. Whether the trial court abused its discretion when it struck their expert witness’ affidavit.
2. Whether the trial court erred when it concluded that the Bungers had not established a genuine issue of material fact precluding summary judgment.

We reverse and remand for further proceedings. * * *

A careful reading demonstrates that there is no material discrepancy between Knopf’s deposition testimony and affidavit and that his testimony is not speculative. Dr. Knopf’s affidavit should not have been stricken under Gaboury, and his testimony was not inadmissible under Evidence Rule 702. Construing all factual inferences in the Bungers’ favor and resolving all doubts as to the existence of a material issue against Dr. Brooks, we hold that a genuine issue of material fact exists whether the surgery proximately caused Donald’s injuries. There is also a question whether and, if so, to what extent, Donald’s pre-existing condition contributed to his injuries, but that question is for the fact finder. A pre-existing condition or susceptibility, if aggravated by a defendant’s conduct, may result in a defendant’s full liability for the resulting injury and loss. Dunn, 516 N.E.2d at 56. However, if the pre-existing condition, standing alone, independently causes injury and loss, a defendant will not be liable for such damages. Id.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Godfrey Ikechukwu Egwu, Jr. v. State of Indiana (NFP)

Brandon Daniels v. State of Indiana (NFP)

Posted by Marcia Oddi on June 23, 2014 12:50 PM
Posted to Ind. App.Ct. Decisions