Vernon Fitzwater, Appellant-Plaintiff v. Broadway Methodist Hospital a/k/a Methodist Hospital, Inc., Zeshan Hyder, Sanjeev Maniar, and Teofilo Vinluan, Appellees-Defendants (2025)

MEMORANDUM DECISION

Statement of the Case

[1] After a medical episode left him unable to walk without assistance, Vernon Fitzwater sued several medical providers for alleged medical malpractice. During the jury trial, at which Fitzwater represented himself, the trial court granted the providers’ motion for judgment on the evidence and entered judgment in their favor. Fitzwater now appeals and raises several issues for our review, one of which is dispositive: Whether the trial court erred by excluding certain evidence at trial.

[2] We affirm.

Facts and Procedural History

[3] In March 2016, Fitzwater was admitted to Broadway Methodist Hospital in Merrillville, Indiana, due to complaints of pain in his lower back and right leg. Fitzwater was diagnosed with moderate spinal stenosis—narrowing of the spinal canal—in his lower back and was discharged within a few days after steroids somewhat improved his condition; he received referrals for pain management and for an outpatient MRI to address the remaining issues with his right leg. Fitzwater was home for approximately a day before he went to a second hospital, where he later underwent surgery to decompress his spine. Since then, Fitzwater has regained strength in his right leg but cannot walk without the assistance of a cane, and he often uses a wheelchair or mobility scooter.

[4] In January 2019, Fitzwater sued Broadway Methodist Hospital as well as the doctors ¹ who treated him there (collectively, the “Providers”) for medical malpractice, among other claims. In December 2024, the case went to jury trial, at which Fitzwater represented himself. Toward the beginning of Fitzwater's case-in-chief, he offered into evidence the depositions of Dr. Shapiro and Dr. Yount, who he claimed had been hired early in the case to “evaluate” it but were unavailable to testify at trial, Tr. Vol. II at 136. The Providers objected to the admission of these depositions, contending that Fitzwater had not established Dr. Shapiro and Dr. Yount were unavailable under Indiana Trial Rule 32 ² and that Fitzwater had failed to list the doctors and their depositions on his final witness and exhibit list. The trial court declined to admit Dr. Shapiro's and Dr. Yount's depositions.

[5] Once Fitzwater rested his case, the Providers made a motion for judgment on the evidence pursuant to Trial Rule 50(A)(1),³ arguing that Fitzwater had failed to establish (1) the applicable standard of care, (2) that the Providers had breached that standard, and (3) that such a breach caused him injury or damages. The trial court granted the Providers’ motion and entered judgment in their favor. This appeal ensued.⁴

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion by Excluding Certain Evidence at Trial

[6] Fitzwater claims that the trial court abused its discretion by not admitting certain evidence at trial. We review rulings on admissibility of evidence for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864 (Ind. 2012)), cert. denied, 145 S.Ct. 424 (2024). We will reverse “only where the decision is clearly against the logic and effect of the facts and circumstances,” id. (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)), and “we may affirm the trial court's decision on any basis supported by the record,” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023) (citing Ramirez v. State, 174 N.E.3d 181, 190 n.2 (Ind. 2021)).

[7] Fitzwater specifically contends the trial court abused its discretion by excluding from evidence the depositions of Dr. Shapiro and Dr. Yount. Because Fitzwater is challenging the exclusion of evidence, he must show that (1) the exclusion “affects a substantial right of the party” and (2) he informed the trial court of the substance of the excluded evidence “by an offer of proof, unless the substance was apparent from the context.” Ind. Evidence Rule 103(a)(2). “An offer of proof allows the trial and appellate courts to determine the admissibility of the testimony, as well as the potential for prejudice if it is excluded.” Heckard v. State, 118 N.E.3d 823, 828 (Ind. Ct. App. 2019) (citing Dylak v. State, 850 N.E.2d 401, 408 (Ind. Ct. App. 2006), trans. denied), trans. denied.

[8] The Providers contend Fitzwater waived his claim for our review by failing to make an offer of proof for the depositions. “A valid offer to prove must explain three points: (1) the testimony's substance; (2) the testimony's relevance; and (3) the grounds for admitting the testimony.” Bedolla v. State, 123 N.E.3d 661, 666–67 (Ind. 2019) (citing Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998); Nelson v. State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003)).

[9] In his reply brief, Fitzwater asserts that he made a valid offer of proof because he “had the deposition, the substance of the evidence, he explained why it was relevant, and stated that the witnesses were unavailable.” Appellant's Reply Br. at 6 (citing Tr. Vol. II at 62, 123–24, 134–37, 139–41, 160). None of the 11 transcript pages to which Fitzwater cites in support of this assertion show that he explained the substance of Dr. Shapiro's and Dr. Yount's depositions. Nor do those pages show that Fitzwater explained the relevance of the doctors’ depositions; rather, those pages show he told the court only that Dr. Shapiro and Dr. Yount had been hired at the beginning of the case to “evaluate” it, Tr. Vol. II at 136; see also id. at 124. Finally, Fitzwater did not provide any evidence to the trial court demonstrating Dr. Shapiro's or Dr. Yount's unavailability. An unsupported statement from a pro se litigant that a witness who had not been subpoenaed is unavailable to testify at trial is not enough to establish unavailability under Trial Rule 32. Cf. In re Adoption of H.N.P.G., 878 N.E.2d 900, 905–06 (Ind. Ct. App. 2008) (deposition admitted where witness incarcerated, parties had discussed transporting witness, and trial court declined to issue transport order), trans. denied, cert. denied; Mroz v. Harrison, 815 N.E.2d 551, 554–55 (Ind. Ct. App. 2004) (deposition admitted where witness notified court and party who called him of unavailability and submitted affidavit explaining the circumstances), abrogated in part on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006).

[10] Based on the foregoing, Fitzwater failed to make a valid offer of proof and thereby failed to preserve for our review any alleged error in the trial court's decision to exclude those depositions from evidence. See Evid. R. 103(a)(2); Fowler v. State, 929 N.E.2d 875, 881 (Ind. Ct. App. 2010), trans. denied. Any alleged error in the exclusion of Dr. Shapiro's and Dr. Yount's depositions is therefore waived.⁵ See Bedolla, 123 N.E.3d at 667 (citing Roach, 695 N.E.2d at 939) (“[A]ppellate courts cannot duly review whether a lower court properly excluded evidence if the party below did not ․ make an offer of proof.”). So, we cannot say the trial court abused its discretion by excluding those depositions.⁶ We thus affirm the trial court on all issues raised.

[11] Affirmed.

FOOTNOTES

1.   Dr. Zeshan Hyder, Dr. Sanjeev Maniar, and Dr. Teofilo Veinluan.

2.   Indiana Trial Rule 32(A) allows a party to use a deposition provided certain requirements are met and provided that the trial court finds, among other things, that the witness is “outside the state” or that the witness is “unable to attend or testify because of age, sickness, infirmity, or imprisonment.”

3.   Trial Rule 50(A)(1) provides in relevant part as follows:Where all or some of the issues in a case tried before a jury ․ are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict. A party may move for such judgment on the evidence ․ after another party carrying the burden of proof or of going forward with the evidence upon any one or more issues has completed presentation of his evidence thereon ․

4.   Simultaneously with this decision, we have issued an order granting the Providers’ motion to strike those portions of Fitzwater's briefing that rely on and reference the substance of Dr. Shapiro's and Dr. Yount's depositions.

5.   Similarly, by failing to object to the trial court's handling of Dr. Shapiro's and Dr. Yount's depositions, Fitzwater has waived any error in the trial court's alleged failure to preserve those depositions in the record. Cf. Mitchell v. State, 535 N.E.2d 498 (Ind. 1989) (defendant waived, by failing to object, challenge to trial court's decision to send certain exhibits to deliberating jury); Lee v. State, 569 N.E.2d 717 (Ind. Ct. App. 1991) (defendant waived, by failing to object, challenge to trial court's decision to send certain exhibits to deliberating jury).

6.   Based on this conclusion, we need not address Fitzwater's argument that Dr. Shapiro's and Dr. Yount's depositions were not inadmissible hearsay. We also need not address Fitzwater's argument that the trial court erred in granting the Provider's Trial Rule 50(A)(1) motion because his entire argument hinges on the admission of those depositions. To the extent Fitzwater intended to challenge other grounds for the trial court's decision on that motion, he has waived such challenges for failure to present cogent argument. See Ind. Appellate Rule 46(A)(8)(a); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.