Kathy Dotson v. Stryker Corporation, Brad Bolinger, Patrick Reagan, Jeffrey M. Sheedy, M.D., Rochester Orthopedics, P.C., and Woodlawn Hospital ( 2018 )

FILED
Aug 03 2018, 8:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES –
John Johnston STRYKER CORPORATION &
Johnston & Johnston, PC PATRICK REAGAN
Wabash, Indiana Douglas B. Bates
Chelsea R. Stanley
Stites & Harbison PLLC
Jeffersonville, Indiana
ATTORNEY FOR APPELLEE –
BRAD BOLINGER
Matthew W. Melton
Norris Choplin Schroeder LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES –
JEFFREY M. SHEEDY, M.D.,
ROCHESTER ORTHOPEDICS,
P.C., & WOODLAWN HOSPITAL
Jason A. Scheele
Dustin J. Tirpak
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 18A-PL-220 | August 3, 2018 Page 1 of 16
Kathy Dotson, August 3, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-220
v. Appeal from the Fulton Circuit
Court
Stryker Corporation, Brad The Honorable A. Christopher
Bolinger, Patrick Reagan, Jeffrey Lee, Judge
M. Sheedy, M.D., Rochester Trial Court Cause No.
Orthopedics, P.C., and 25C01-1610-PL-585
Woodlawn Hospital,
Appellees-Defendants.
Najam, Judge.
Statement of the Case
[1] Kathy Dotson appeals the trial court’s grant of summary judgment in favor of
Stryker Corporation (“Stryker”), Brad Bolinger, Patrick Reagan, Dr. Jeffrey M.
Sheedy, Rochester Orthopedics, P.C. (“Rochester”), and Woodlawn Hospital
(“Woodlawn”). Dotson raises three issues for our review, which we
consolidate and restate as the following two issues:
1. Whether the trial court abused its discretion when it
considered Dotson’s deposition on summary judgment when
Dotson had not reviewed or signed her deposition at the time of
its designation.
2. Whether the trial court erred when it entered summary
judgment on the grounds that Dotson had filed her complaint
outside of the relevant statute of limitations.
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[2] We affirm.
Facts and Procedural History
[3] In February of 2014, Dotson went to Woodlawn for knee-replacement surgery,
which was to be performed by Dr. Sheedy. Shortly before she went under
anesthesia, Dotson observed Bolinger and Reagan in her operating room with
Dr. Sheedy and other Woodlawn medical personnel. Dotson could tell from
their dress that Bolinger and Reagan were not medical personnel—they were in
fact employees of Stryker, and they were present in the room ostensibly to
discuss Stryker products with Dr. Sheedy as they related to knee replacements.
Their presence in the operating room made Dotson uncomfortable, but before
she could object she went under anesthesia.
[4] More than two years later, on October 20, 2016, Dotson filed suit against
Stryker, Bolinger, Reagan, Dr. Sheedy, Rochester, and Woodlawn. Her
complaint alleged that the defendants had committed invasion of privacy when
Bolinger and Reagan had been permitted in the operating room during her
February 2014 knee-replacement surgery. Dotson further alleged that she had
“first learned that [Bolinger and Reagan] were present during the left knee
replacement surgery . . . after Defendant [Woodlawn had] mailed copies of
[Dotson’s] medical records to [her] counsel on or after October 21, 2014.”
Appellant’s App. Vol. 2 at 18.
[5] In January of 2017, Dr. Sheedy and Rochester moved for summary judgment
on the grounds that, prior to her knee-replacement surgery, Dotson had signed
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an authorization form in which she had “authorized the presence of product
representatives . . . during her operation.” Id. at 32. Dr. Sheedy and Rochester
designated Dotson’s signed authorization form along with their motion for
summary judgment. The authorization form stated that Dotson “authorize[s]
and directs Dr. Jeffrey Sheedy, D[.]O[.] and/or associates or assistants of
his/her choice to perform the operation(s) or procedure(s) listed above
including whatever incidental procedures and/or additional services, involving
anesthesia, radiology, pathology, product representatives, use of biological agents
and the like as may be advisable for my well-being.” Id. at 39 (emphasis
added). Dotson objected to the admissibility of the authorization form, and, in
an affidavit she designated in response to the motion for summary judgment,
Dotson denied having signed the document.
[6] In April of 2017, Dotson testified in a deposition. On the first day of her
deposition, Dotson admitted that she knew at the time of her February 2014
surgery that Bolinger and Reagan were in her operating room, that they were
conspicuously not medical personnel, and that their presence in the room made
her uncomfortable. She further testified that she did not believe that she had
given informed consent to their presence, and that she did not have the
opportunity to object to their presence prior to the surgery because, shortly after
she had observed Bolinger and Reagan, she was anesthetized.
[7] The first day of Dotson’s deposition came to an abrupt end when she became
ill, and the second day of Dotson’s deposition did not occur until June of 2017.
However, in May, between Dotson’s two deposition days, Stryker filed its
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motion for summary judgment. In addition to relying on the authorization
form, Stryker also designated and relied on the first day of Dotson’s deposition.1
Relying on that evidence, Stryker argued that Dotson’s complaint had been
filed outside the relevant statute of limitations. On Dotson’s motion, the trial
court granted her an extension of time to August 11 to respond to Stryker’s
motion and designated evidence.
[8] Dotson’s second, and last, deposition day occurred on June 5, 2017. During
her testimony on that day, Dotson admitted that she had signed the
authorization form. However, she testified that she had signed it only after her
knee-replacement surgery had already occurred.
[9] On July 12, Reagan moved for summary judgment. Reagan argued both that
Dotson had authorized his and Bolinger’s presence when she had executed the
authorization form and that the statute of limitations had lapsed prior to
Dotson filing her complaint. Reagan designated the authorization form and
both days of Dotson’s deposition. Stryker, Dr. Sheedy, Rochester, and
Woodlawn moved to join Reagan’s motion for summary judgment, which the
trial court permitted. Bolinger later filed his own motion for summary
judgment in when he made the same arguments and designated the same
evidence.
1
Dr. Sheedy, Rochester, and Woodlawn—not Stryker—were the parties who had noticed Dotson’s
deposition. They did not file her original, signed, and sealed deposition with the trial court until October of
2017, though they had joined in filings that had been made prior to that date.
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[10] Along with Reagan’s motion for summary judgment and designation of
evidence, Reagan and Stryker jointly moved to publish Dotson’s deposition.2
The trial court granted Reagan and Stryker’s motion to publish the next day.
Dotson continued to have until August 11 to respond to Stryker’s motion for
summary judgment and designated evidence, and Dotson’s response to
Reagan’s motion and designated evidence was also due on August 11 pursuant
to Indiana Trial Rule 56(C).3
[11] Thereafter, while the defendants’ motions for summary judgment were still
pending, Dotson moved for an enlargement of time to August 21 in which to
read and sign her deposition transcript, which the trial court granted. On
August 21, Dotson read and signed her deposition transcript but attached errata
sheets in which she identified and corrected eleven errors in the transcript.4
2
To be sure, Indiana Trial Rule 5(E)(2)(b) required the parties to obtain the court’s permission to file the
deposition with the court, but, once the court granted that permission and the deposition was filed, under
Trial Rule 5(E)(5) the deposition was published. Ind. Trial Rule 5(E)(2)(b) (“No deposition . . . shall be filed
with the Court unless . . . [a] party desires to use the deposition . . . for evidentiary purposes . . . and the
Court . . . orders the filing of the original.”); T.R. 5(E)(5) (“The filing of any deposition shall constitute
publication.”); see 22 Ind. Prac. Civ. Trial Prac. § 22.21 (2d ed. June 2018) (“The requirement for publication
by separate motion was eliminated by the Indiana Supreme Court’s 1991 amendment” to our trial rules); see
also Walnut Creek Nursery, Inc. v. Banske, 26 N.E.3d 648, 653 (Ind. Ct. App. 2015) (noting that “publication of
a deposition is required in order to place the deposition before the court,” and that “[t]he essence of the
requirement is that[,] because a party need not object to [deposition] questions on the grounds of
admissibility” during the deposition, “the party can wait and make his objection at [the] trial or hearing when
the deposition is read into evidence or otherwise used.”) (quoting Drummond v. State, 467 N.E.2d 742, 746
(Ind. 1984)).
3
Bolinger filed his motion for summary judgment and designated evidence on August 15, which made
Dotson’s response to Bolinger due no later than September 14.
4
After she had read and signed the deposition transcript, and after she had subsequently moved to strike the
defendants’ designated versions of her deposition, Dr. Sheedy, Rochester, and Woodlawn—the parties who
had noticed Dotson’s deposition—moved to publish the signed deposition such that it would
“supplant . . . the materials designated in support of all Defendants’ dispositive motions.” Appellant’s App.
Vol. 3 at 139-40. Both days of Dotson’s deposition, as well as her signature and errata sheets, were filed with
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None of the errors identified and corrected by Dotson related to her observation
of Bolinger and Reagan in the operating room or her immediate suspicion that
they were not medical personnel. However, she did clarify that, when she had
signed the authorization form after her surgery, she “was in a lot of pain and
woozy from the surgery and all of the medication they had given me.” Joint
Appellees’ App. Vol. 2 at 12.
[12] After Dotson had read, signed, and corrected her deposition transcript, on
September 28 she moved for the first time to strike the defendants’ designation
of her deposition in support of their respective motions for summary judgment.
According to Dotson, her deposition was inadmissible because, “[w]hen
Defendants filed their motions for summary judgment, the time for Kathy
Dotson to make changes and sign the deposition had not expired,” and none of
the defendants redesignated Dotson’s deposition after she had read, signed, and
corrected it. Appellant’s App. Vol. 3 at 119. That same day, Dotson filed a
“supplemental memorandum in response to defendants’ motion[s] for summary
judgment.” Appellant’s App. Vol. 2 at 12. The defendants moved to strike
Dotson’s September 28 filings as untimely.
the court as exhibits to the renewed motion to publish. Although the record on appeal does not show that the
trial court ruled on the renewed motion to publish or otherwise affirmatively ordered that the sealed and
signed, original deposition be opened and filed, neither does the record show that Dotson objected to the
admissibility of the signed deposition, and she does not suggest on appeal that the signed deposition has been
improperly included in the record on appeal. See Appellant’s App. Vol. 2 at 13-14; Ind. Appellate Rule
46(A)(8)(a); see also Walnut Creek Nursery, 26 N.E.3d at 653 (recognizing that publication of a deposition is
required to put the deposition before the court, but that the essence of the publication requirement is to allow
parties to object to the deposition’s admissibility).
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[13] In December, the trial court held a hearing on the pending summary judgment
motions.5 Following that hearing, the court entered an order in which it:
granted the defendants’ motion to strike Dotson’s supplemental memorandum
in response to the defendants’ motions for summary judgment; denied Dotson’s
motion to strike the designated version of her deposition; and granted summary
judgment to each defendant on the grounds that Dotson’s complaint “is time
barred in that it was not filed within the applicable statute of limitations.” Id. at
146-47. This appeal ensued.
Discussion and Decision
Issue One: Admissibility of the Designated Deposition
[14] On appeal from the trial court’s entry of summary judgment, Dotson first
argues that the trial court abused its discretion when it considered her
designated deposition.6 Specifically, Dotson contends that her designated
deposition was inadmissible because she had not yet read and signed the
deposition transcript when the defendants designated it in support of their
respective motions for summary judgment.7 Although the deposition was
5
The transcript of the trial court’s summary judgment hearing has not been included in the record on appeal.
Thus, we do not consider Dotson’s comments in her Reply Brief with respect to statements or objections
purportedly made at that hearing.
6
Dotson does not delineate between the one-day, unsigned version of her deposition designated by Stryker
and the two-day, unsigned version designated by Reagan, which designation the other defendants later
joined, and so neither do we. The distinction, at least as it relates to the statute of limitations issue, is not
relevant to this appeal.
7
In their joint brief on appeal, Stryker and Reagan suggest that Dotson did not timely object to their
designation of her deposition, or to either of the motions to publish her deposition, and thus she cannot be
heard to complain about the trial court’s reliance on the designated deposition. The record on appeal appears
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designated on summary judgment rather than published at trial, the trial court
still had “broad discretion in ruling” on the admissibility of the evidence. Moryl
v. Ransone, 4 N.E.3d 1133, 1138 n.5 (Ind. 2014). An abuse of that discretion
“occurs only where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances.” Robinson v. State, 91 N.E.3d 574, 577
(Ind. 2018).
[15] Indiana Trial Rule 30 discusses depositions upon oral examination. In relevant
part, Rule 30 states:
(1) When the testimony is fully transcribed, the deposition shall be
submitted to the witness for reading and signing and shall be read to or
by him, unless such reading and signing have been waived by the
witness and by each party. . . .
(2) If the witness desires to change any answer in the deposition
submitted to him, each change, with a statement of the reason
therefor, shall be made by the witness on a separate form
provided by the [deposing] officer, shall be signed by the witness
to support Stryker and Reagan’s position. The trial court had given Dotson until August 11 to respond to
Stryker’s designation of her deposition, which was the same date she had under Trial Rule 56(C) to respond
to Reagan’s designation. She did not do so. She also did not timely respond to Bolinger’s similar
designation, and she did not specifically object to either the July or the October motions to publish her
deposition.
That said, while the trial court struck Dotson’s September 28 supplemental response to the summary
judgment motions as untimely, the court did not grant the defendants’ request to strike Dotson’s September 28
objection to the designated deposition even though her objection was similarly untimely. Instead, the trial
court denied her objection on the merits, and Stryker and Reagan do not argue on appeal that the trial court’s
decision to deny Dotson’s objection on the merits was an abuse of the court’s discretion. See App. R.
46(A)(8)(a). Accordingly, we decline to review the trial court’s judgment under a theory of waiver and
instead review it on the merits. E.g., Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 580 (Ind.
2017) (noting “our preference for deciding cases on their merits”). We also decline to review Dotson’s
argument that the trial court abused its discretion when it struck her supplemental response.
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and affixed to the original deposition by the officer. A copy of
such changes shall be furnished by the officer to each party.
(3) If the reading and signing have not been waived by the
witness and by each party the deposition shall be signed by the
witness and returned by him to the officer within thirty (30) days
after it is submitted to the witness. If the deposition has been
returned to the officer and has not been signed by the witness, the
officer shall execute a certificate of that fact, attach it to the
original deposition and deliver it to the party taking it. In such
event, the deposition may be used by any party with the same force and
effect as though it had been signed by the witness.
(4) In the event the deposition is not returned to the officer within
thirty (30) days after it has been submitted to the witness, the
reporter shall execute a certificate of that fact and cause the
certificate to be delivered to the party taking it. In such event, any
party may use a copy of the deposition with the same force and effect as
though the original had been signed by the witness.
Ind. Trial Rule 30(E) (emphases added). Trial Rule 32 adds the following
relevant language with respect to the effect of certain errors and irregularities in
depositions:
Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer
under Rules 30 and 31 are waived unless a motion to suppress
the deposition or some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have
been, ascertained.
T.R. 32(D)(4).
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[16] Our Supreme Court has recognized that, in light of the language of our trial
rules, “the lack of signature” is not necessarily “an impediment to admission”
of a deposition. Drummond v. State, 467 N.E.2d 742, 746 (Ind. 1984). In
Drummond, for example, the witness had “the opportunity to read and sign the
transcribed depositions” but, “for unknown reasons[, she] declined.” Id. The
court held that, “[u]nder these circumstances,” the trial court did not abuse its
discretion when it admitted the unsigned deposition into evidence. Id.[17] Similarly, we have recognized that, while our trial rules “require[] that the
witness be permitted to review the transcript of his deposition and then sign it,”
the rules nonetheless “provide for the use of a deposition at trial even though it
is unsigned.” Gallagher v. State, 466 N.E.2d 1382, 1387-88 (Ind. Ct. App. 1984).
In Gallagher, we held that “the absence of both a signature and formal waiver of
signature does not necessarily preclude the admission of a deposition . . . .” Id.
at 1388. We affirmed the admission of the deposition in Gallagher despite such
irregularities in part because the complaining party “never argue[d] that any
inaccuracy exists in the substance of the deposition.” Id.[18] Dotson has not demonstrated that the trial court’s reliance on the designated
deposition was so unreasonable as to constitute an abuse of the court’s
discretion. The Court in Drummond held that the trial court did not abuse its
discretion when it relied on an unsigned deposition after the witness had been
given the opportunity to sign the deposition transcript but did not do so. Here,
while the deposition was unreviewed and unsigned at the time of its
designation, there is no dispute that Dotson was subsequently given the
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opportunity to read and sign it, which she did. And she did so well before the
court’s hearing and order on the motions for summary judgment, even if the
trial court did not rely on the signed deposition when it entered its order. That
is, by the time the trial court actually heard and ruled on the motions for
summary judgment, Dotson’s formal approval of the original deposition
transcript was not an issue.
[19] And the substantive accuracy of the designated deposition, at least as it related
to the statute of limitations issue, was not seriously in dispute despite the fact
that the designated version had been prematurely filed with the court. 8 Just as
the complaining party in Gallagher was unable to demonstrate any inaccuracy in
the substance of the unsigned deposition, Dotson also has not shown any
inaccuracy in the designated deposition insofar as it was used to demonstrate a
lapse in the statute of limitations. Despite her bald assertions to the contrary in
her brief on appeal, our review of the designated deposition and her subsequent
errata sheets reveal that her corrections had no bearing on her testimony as it
related to the statute of limitations issue.
8
Stryker and Reagan argue on appeal that the signed deposition “was properly before the trial court for
consideration prior to its ruling on the motions for summary judgment.” Stryker and Reagan’s Brief at 17-19.
They are incorrect. The signed deposition was not included in the designated materials, and the trial court
did not rule on the October 2017 request to “supplant” the designated versions of the deposition with the
signed deposition. See Appellant’s App. Vol. 2 at 13-14. Rather, we consider the substance of the signed
deposition only insofar as it relates to Dotson’s argument that the trial court unreasonably relied on the
designated but unsigned deposition.
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[20] Still, Dotson argues that, on summary judgment, the trial court “is limited to
the designated evidence.” See Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.
2013). That is a correct statement, but Dotson has not shown either that the
trial court did otherwise or that, if it did, the court committed reversible error in
doing so. Again, the designated deposition and the signed deposition were
substantively identical on the dispositive statute of limitations issue.
[21] Dotson also argues that it would be “unjust to allow the moving party to
designate evidence . . . if the evidence was not admissible when it was
designated because it would require the non-moving party to speculate whether
it would be admissible when responding . . . .” Appellant’s Br. at 18. We
cannot agree. Parties frequently consider and plan for the likelihood that
arguably inadmissible evidence might nonetheless get into the record.
Moreover, Dotson’s argument that the designated deposition should be
inadmissible based solely on the timing of her signature to it seeks to elevate
form over substance, which we will not do. E.g., Moryl, 4 N.E.3d at 1139. We
cannot say that the trial court abused its discretion when it denied her motion to
strike the designated deposition.
Issue Two: Entry of Summary Judgment
[22] We thus turn to Dotson’s challenge to the entry of summary judgment. As our
Supreme Court has stated:
This Court reviews summary judgment orders de novo. Summary
judgment is appropriate if the designated evidence shows there is
no genuine issue as to any fact material to a particular issue or
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claim, and the moving party is entitled to judgment as a matter of
law. In viewing the matter through the same lens as the trial
court, we construe all designated evidence and reasonable
inferences therefrom in favor of the non-moving party. Legal
questions, such as contract interpretation, are well-suited for
summary judgment. The party appealing the trial court’s
summary judgment determination bears the burden of persuading
us the ruling was erroneous. Nonetheless, we “carefully
scrutinize[] the trial court’s decision to assure that the party
against whom summary judgment was entered was not
improperly prevented from having its day in court.”
Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 912-13 (Ind.
2017) (citations omitted; alteration original to Ryan).
[23] Dotson asserts that the trial court erred when it entered summary judgment
because the designated evidence creates a genuine issue of material fact with
respect to whether the statute of limitations had lapsed prior to the date on
which Dotson filed her complaint.9 In particular, Dotson asserts that her
complaint creates a genuine issue of material fact on this issue because she
stated in her complaint that she did not know that Bolinger and Reagan were
present in the operating room until October 21, 2014, which was one day less
than two years before she filed her complaint. She also argues that “[i]t is
reasonable to infer” from her deposition that “Dotson was unconscious during
9
Throughout her brief on this issue, Dotson repeatedly refers to and relies on the authorization form, her
deposition testimony with respect to that form, and an affidavit she had executed. But we agree with Stryker
and Reagan that that evidence is neither here nor there on the question of whether the statute of limitations
had lapsed prior to when Dotson filed her complaint.
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the surgery and had no way of knowing who was present in the operating
room . . . .” Appellant’s Br. at 22.
[24] The parties do not dispute that Dotson’s claim for invasion of privacy was
controlled by a two-year statute of limitations. See Ind. Code § 34-11-2-4(a)
(2017); Johnson v. Blackwell, 885 N.E.2d 25, 31 (Ind. Ct. App. 2008). “In
general, the cause of action of a tort claim accrues and the statute of limitations
begins to run when the plaintiff knew or, in the exercise of ordinary diligence,
could have discovered that an injury had been sustained as a result of the
tortious act of another.” Filip v. Block, 879 N.E.2d 1076, 1082 (Ind. 2008)
(quotation marks omitted).
[25] Dotson’s deposition shows that on February 25, 2014, she actually knew that
Bolinger and Reagan were in her operating room, though she did not know
who they were.10 She testified that she had observed Bolinger and Reagan in
her operating room with Dr. Sheedy and other Woodlawn medical personnel
prior to the administration of her anesthesia. She further testified that it was
immediately apparent to her in the operating room that Bolinger and Reagan
were not medical personnel. And she testified that their presence in the
operating room made her uncomfortable.
10
That Dotson “did not determine until over two years later the actual identity of the part[ies] causing the
injury did not suspend the running of the statute of limitations.” Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d
496, 498 (Ind. Ct. App. 1998).
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[26] Accordingly, the designated evidence establishes that the statute of limitations
for Dotson’s claim for invasion of privacy began to run on February 25, 2014.
However, Dotson did not file her complaint until more than two years later, on
October 20, 2016. Thus, her complaint was barred by the statute of limitations.
[27] Further, we reject Dotson’s argument that her contrary statement in her
complaint with respect to when she had learned that Bolinger and Reagan were
present in the operating room creates a genuine issue of material fact. See T.R.
56(E) (“When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of his pleading . . . .”). We also reject Dotson’s assertion that her
deposition lends itself to an inference that she did not actually observe Bolinger
and Reagan in the operating room because she had been anesthetized.
Dotson’s testimony is expressly to the contrary.11
[28] In sum, the designated evidence demonstrates as a matter of law that the statute
of limitations had lapsed before Dotson filed her complaint. Thus, we affirm
the trial court’s entry of summary judgment for each of the defendants.
[29] Affirmed.
Crone, J., and Pyle, J., concur.
11
Insofar as Dotson has attempted to argue a theory of concealment on appeal, that argument is not
supported by cogent reasoning or citations to the record, and we do not consider it. App. R. 46(A)(8)(a).
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