COA: No material discrepancy between deposition, testimony

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The Indiana Court of Appeals reversed summary judgment in favor of a doctor in a lawsuit alleging medical malpractice, finding the trial court should not have stricken the affidavit of the plaintiffs’ expert witness.

Donald Bunger was 88 years old when Dr. Jason Brooks performed cataract surgery on his left eye. Bunger suffered from age-related macular degeneration and was able to see out of his left eye, but was functionally blind in his right eye due to the AMD. During surgery, Bunger experienced a capsular tear in the eye, which can occur in the absence of negligence during a cataract surgery. After surgery, the vision in Bunger’s eye rapidly decreased to the point he is now functionally blind in the left eye.

Bunger and his wife filed a complaint with the Indiana Department of Insurance alleging malpractice; the medical review panel ruled in favor of Brooks regarding surgery and treatment, but found a material issue of fact regarding the issue of informed consent.

In their lawsuit, the Bungers provided deposition testimony and an affidavit from their expert witness, Dr. Harry Knopf. Brooks moved for – and the court granted the motion – to strike the affidavit because Knopf’s statement that the surgery caused the visual loss differed from his statements in the deposition in which Knopf couldn’t conclude whether Bunger’s vision would be better or worse today if he hadn’t had the surgery.

The trial court granted summary judgment in favor of Brooks, but in Donald Bunger and Flora Bunger v. Jason A. Brooks, M.D., 45A03-1309-CT-360, the Court of Appeals reversed.

The judges found in reading Knopf’s deposition testimony, it was entirely consistent with his affidavit. The doctor was testifying regarding two separate topics. In his deposition, he testified to the likely natural progression of the AMD over the course of several years. And in his affidavit, he testified to the rapid progression of the AMD immediately following surgery, Judge Edward Najam wrote.

Also, at his deposition, Knopf testified at length regarding the apparent connection between the surgery and the sudden loss of vision thereafter. His affidavit corroborated that testimony. That evidence is sufficient to create a genuine issue of material fact, and the trial court erred when it entered summary judgment in favor of Dr. Brooks.

The judges found a genuine issue of material fact as to whether the surgery proximately caused Bunger’s injuries and whether – and to what extent – his pre-existing condition contributed to his injuries. The case goes back to the trial court for further proceedings.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

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  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.