ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Linda Y. Hammel George Hoffman, III
Yarling & Robinson Jones, Hoffman & Admire
Indianapolis, Indiana Franklin, Indiana
In The
INDIANA SUPREME COURT
ANTHONY BRANNON, )
Defendant-Appellant, )
)
v. ) Court of Appeals No.
) 41A01-9906-CV-225
CHRIS WILSON, Individually and as )
Executrix of the Estate of )
Danny L. Wilson, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable James K. Coachys, Judge[1]
Cause No. 41D01-9609-CT-311
________________________________________________
On Petition to Transfer
April 22, 2002
DICKSON, Justice, dissenting from denial of transfer.
In this automobile collision wrongful death action, the trial court
denied the defendant's summary judgment motion and certified its order for
interlocutory appeal. Accepting the case, the Court of Appeals, noting
that the deposition testimony of the plaintiff's physician was equivocal
regarding the causative relationship of the collision to the decedent's
death, reversed and remanded with instructions to grant the defendant's
motion for summary judgment. Brannon v. Wilson, 733 N.E.2d 1000 (Ind. Ct.
App. 2000). The plaintiff petitioned for transfer, but a majority of the
members of this Court prefer to deny transfer. While I realize that the
evidence at issue in this particular case is extremely close to pure
speculation, I would nevertheless grant transfer to acknowledge and apply
the applicable precedent of this Court that was not considered by the Court
of Appeals.
The opinion of the Court of Appeals is grounded upon its belief that
the plaintiff, in responding to the defendant's motion for summary
judgment, was required "not merely to advance some evidence that there was
a possibility of causal connection, but rather to advance some evidence to
demonstrate the existence of a genuine issue as to whether a causal
connection was probable." Id. at 1002 (emphasis added). Relying on Palace
Bar, Inc. v. Fearnot, 269 Ind. 405, 415, 381 N.E.2d 858, 864 (Ind. 1978),
the Court of Appeals concluded that the affidavit concerning proximate
cause submitted by the plaintiff's medical expert "is no evidence at all."
Brannon, 733 N.E.2d at 1002.
Palace Bar has been superceded. In Strong v. State, 538 N.E.2d 924,
931 (Ind. 1989), this Court approved and embraced Justice Hunter's
opinion[2] in Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722
(Ind. 1982). The Strong court observed that Justice Hunter's opinion
"provided a thoughtful and discerning analysis." Strong, 538 N.E.2d at
930. In Prince, Justice Hunter wrote:
[T]o hinge the question whether an expert's opinion is admissible and
probative on the willingness and ability to say that such-and-such is
"reasonably certain," as opposed to "probable" or "possible," is to
impose on the expert a question which elevates the law's demand for
certainty in language over the state of the particular art and the
value of the advances made therein. Medicine, for instance is not yet
an exact science; to demand reasonable certainty in medical opinions
places a sometimes insurmountable barrier in the fact of the candid
and straightforward medical expert.
. . . .
[N]o threshold level of certainty or conclusiveness is required in an
expert's opinion as a prerequisite to its admissibility. Assuming the
subject matter is one which is appropriate for expert testimony and
that a proper foundation has been laid, the expert's opinion or
conclusion that, in the context of the facts before the witness, a
particular proposition is "possible," "could have been," "probable,"
or "reasonable certain" all serve to assist the finder of fact in
intelligently resolving the material factual questions.
Prince, 438 N.E.2d at 727, 731 (quoted with approval in Strong, 538 N.E.2d
at 930-31).[3]
In the present case, the plaintiff's complaint alleged that the
collision worsened the plaintiff's decedent's liver disease, hastened his
death, and diminished his chances of receiving a liver transplant. In
response to the defendant's motion for summary judgment asserting the
absence of proximate causation, the plaintiff submitted the deposition of
the decedent's physician, who had worked with a committee that deals with
liver transplantation and selection of patients for liver transplants. In
response to the various questions related to the role of the automobile
accident and the plaintiff's decedent's injuries and death, the plaintiff's
medical expert provided these responses:
I can't really, you know – I can't really say – it's possible, but is
it probable? It's possible, but I can't say. [Record at 89.]
The committee and I decided that the single statement that we can make
is as follows: We cannot exclude the possibility that the physical
trauma sustained from the automobile accident on 8-18-95 would have
made [the decedent's] disease worse. We cannot exclude that
possibility. [Record at 89.]
It is possible that the process could have made his liver disease
worse. [Record at 91.]
I still can't say for sure either way. It could be possible. It
could be probable. [Record at 99 (emphasis added).]
All I can say is that between the—it was a significant accident. All
right? He had contusions to many body parts. It is possible that he
could have bled some. And if that were the case, it could explain
this single lesion to the right side of the liver that compressed
against the right bile duct system. It is a possibility. And whether
related to the accident or not, his condition did deteriorate between
the last time I saw him back in June of 1995 and the next time I saw
him, which was in June of 19—May of 1996. His condition was worse. I
really can't tell you a causal relationship or not. It's almost—very
difficult to say. It's possible. I mean, we were very careful in
saying what we want to say about the case, and I think I should adhere
to that. Basically, the committee and I decided the right thing to
say would be that it is possible. We cannot exclude the possibility
that the physical trauma sustained during the accident made Mr.
Wilson's disease worse. [Record at 119-20 (emphasis added).]
Under the principles established in Strong and Prince, the testimony
of the plaintiff's physician is certainly not "no evidence at all" as
opined by the Court of Appeals. Brannon, 733 N.E.2d at 1002. Whether it
created a genuine issue of material fact precluding summary judgment for
the defendant is a matter that I believe this Court should address. For
these reasons, I would grant transfer.
RUCKER, J., concurs.
-----------------------
[1] James M. MacAbee, Judge pro tempore, presided over the hearing.
[2] Justice Hunter was joined by Justice Prentice. Justice Pivarnik,
joined by Justice Givan, concurred in result. Justice DeBruler did not
participate in the decision.
[3] Strongly emphasizing that "possible" or "could have been" are
sufficient to permit admission of expert testimony, Justice Hunter also
noted that, while admissible, the degree of certainty "concerns the weight
to be accorded the testimony, which is a matter for the jury to resolve."
Prince, 538 N.E.2d at 731. As to the issue of sufficiency of evidence, he
wrote, "Of course, an expert's opinion that something is "possible" or
"could have been" may be sufficient to sustain a verdict or award when it
has been rendered in conjunction with other evidence concerning the
material factual question to be proved." Id.
Anthony Brannon v. Chris Wilson
Combined Opinion