FRIULMAC INC v. CLUTTER (2026)

MEMORANDUM DECISION

Case Summary

[1] Tonya Clutter brought a products liability claim against Friulmac, Inc. (“Friulmac”).¹ Friulmac subsequently moved for summary judgment. Clutter responded to Friulmac's summary judgment motion, and Friulmac moved to strike Clutter's designated evidence. The trial court denied the motion to strike and concluded that the designated evidence demonstrated genuine issues of material fact precluding summary judgment. Friulmac brings this interlocutory appeal challenging both the order denying its motion to strike and the order denying its motion for summary judgment. Finding no error, we affirm.

Issues

[2] Friulmac presents two issues, which we restate as:

I.  Whether the trial court abused its discretion by denying Friulmac's motion to strike the evidence designated by Clutter in response to Friulmac's motion for summary judgment.

II. Whether the trial court properly denied Friulmac's motion for summary judgment.

Facts

[3] In 2019, Clutter was employed by Cana Cabinetry (n/k/a Patrick Industries). As part of her duties, Clutter operated a woodworking machine (“the Machine”) manufactured and sold by Friulmac. The Machine was delivered to Clutter's employer in January 2019 and was designed to create wooden cabinet doors. To create the doors, the Machine's operator would insert sheets of wood into the Machine, which would then cut and contour the wood to create a cabinet door.

[4] Clutter operated the Machine every workday for approximately three months. Clutter indicated that, after the Machine was delivered and installed, it took several weeks of adjustments before it was “up and running.” Appellant's App. Vol. II p. 211. Adjustments to the Machine were performed by Friulmac employee Stefano Braca. Specifically, the Machine had an issue with kicking back, or expelling sawdust and wood debris toward the operator. Clutter discussed this issue with Braca, and Braca decided that a guard needed to be placed on the Machine to stop the wood from hitting the operator. This guard, however, was not installed before Clutter's injury.

[5] On May 17, 2019, Clutter was operating the Machine when a piece of the wood she was feeding into the Machine “kicked back” and impaled Clutter's left arm. Id. at 205. Friulmac inspected the Machine after Clutter's injury. During the investigation, Friulmac's employees, including Braca, observed a stack of wood near the Machine ready to be fed into it. This wood had a humidity of six-to-seven percent, and wood with a humidity of less than ten percent was contraindicated for use in the Machine. Braca determined that the dry wood was too weak and would split under stress, causing pieces of wood to fly out of the Machine. To confirm this, Braca and another Friulmac employee, Tomat Francesco, placed force on a piece of the dry wood that was equal to the force exerted by the Machine; when they did so, the wood split. They also placed wood that was not dry in the Machine without any issue. Accordingly, Friulmac concluded that Clutter's injuries were caused by Patrick Industries’ use of wood that was too dry, not any malfunction in its Machine. An agent of Patrick Industries later signed a report stating that its use of the dry wood caused the malfunction in the Machine. And Patrick Industries later installed a scanner to check for cracks in wood before being used in the Machine.

[6] On May 4, 2021, Clutter filed a complaint against Friulmac under the Indiana Products Liability Act, to which Friulmac filed an answer denying the material allegations of the complaint. On November 22, 2024, Friulmac filed a motion for summary judgment, along with its designated evidence in support thereof. After obtaining an extension of time, Clutter filed her response to Friulmac's motion for summary judgment on January 21, 2025. Along with her response, Clutter filed her designated evidence, which consisted of her complaint and her answers to Friulmac's interrogatories. Friulmac subsequently filed a motion to strike Clutter's designated evidence and claimed that Clutter's designations were insufficiently specific. On February 21, 2025, the trial court entered an order denying Friulmac's motion to strike and denying Friulmac's motion for summary judgment.

[7] Friulmac filed a motion to certify the trial court's order for interlocutory appeal, and the trial court granted the motion. Friulmac then filed a motion requesting this Court to accept interlocutory jurisdiction, and we issued an order accepting jurisdiction.

Discussion and Decision

I. Prima Facie Error

[8] We first note that Clutter did not file an appellee's brief. In such cases, “the appellate court need not develop an argument for the appellees but instead will ‘reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.’ ” Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (quoting Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). “Prima facie error in this context means at first sight, on first appearance, or on the face of it.” Id. (internal quotation omitted). This less stringent standard of review “relieves [us] of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee.” Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014) (citing Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002)). We are, nevertheless, still obligated to correctly apply the law to the facts in the record to determine whether reversal is required. Id. (citing Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). That is, a party will not prevail on appeal by default simply because the appellee has failed to file a brief.²

II. Motion to Strike Clutter's Designated Evidence

A. Standard of Review

[9] Questions regarding the admissibility of evidence are entrusted to the discretion of the trial court. Brown v. Charles Sturdevant Post of Am. Legion, 270 N.E.3d 962, 965 (Ind. Ct. App. 2025) (citing Webb v. City of Carmel, 101 N.E.3d 850, 856-57 (Ind. Ct. App. 2018)). This evidentiary discretion “includes ‘rulings on motions to strike affidavits on the grounds that they fail to comply with the summary judgment rules.’ ” Id. at 965-66 (quoting Webb, 101 N.E.3d at 857). A trial court abuses its discretion only when its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. “ ‘[T]he trial court's decision will not be reversed unless prejudicial error is shown.’ ” Id. (quoting Five Star Roofing Sys., Inc. v. Armored Guard Window & Door Grp., Inc., 191 N.E.3d 224, 234 (Ind. Ct. App. 2022)).

B. The trial court did not abuse its discretion by denying Friulmac's motion to strike Clutter's designated evidence.

[10] Friulmac argues that the trial court abused its discretion by denying its motion to strike Clutter's designated evidence. Friulmac notes that, in response to its motion for summary judgment, Clutter designated only her complaint and her response to Friulmac's interrogatories. Friulmac contends that both the complaint and response to interrogatories should have been stricken.

1. Designation of the complaint was proper.

[11] Regarding the designation of the complaint, Trial Rule 56(C) clearly allows for parties to “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of [a summary judgment] motion.” (emphasis added). And we have held that Trial Rule 56(C) “does not require that the pleadings be verified before the trial court may consider them.” Akin v. Simons, 180 N.E.3d 366, 375 n.2 (Ind. Ct. App. 2021).

[12] Still, Trial Rule 56(E) provides that “an adverse party may not rest upon the mere allegations or denials of his pleading ․” See also Steak N Shake Operations, Inc. v. Nat'l Waste Assocs., LLC, 177 N.E.3d 816, 826 n.10 (Ind. Ct. App. 2021) (noting that a party may not rely solely on the party's own pleadings to avoid summary judgment). Instead, the “response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” T.R. 56(E); see also McDonald v. Lattire, 844 N.E.2d 206, 215 (Ind. Ct. App. 2006) (noting that the party opposing summary judgment must “designate to the trial court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto”).

[13] Accordingly, although Clutter properly designated her complaint, she could not rely solely on the complaint to oppose Friulmac's motion for summary judgment. Moreover, Clutter did not specifically refer to her complaint in her response to Friulmac's motion for summary judgment. Thus, any error in the trial court's denial of the motion to strike the complaint did not prejudice Friulmac. We, therefore, conclude that the trial court did not abuse its discretion by denying Friulmac's motion to strike Clutter's complaint.

2. Clutter's designation of her interrogatory responses was sufficiently specific.

[14] Turning to the designation of Clutter's responses to Friulmac's interrogatories, we again conclude that the trial court did not abuse its discretion by denying Friulmac's motion to strike this evidence. Friulmac contends that the responses to the interrogatories should have been stricken because Clutter failed to designate specific portions of the responses.

Indiana Trial Rule 56(C) requires a party opposing a motion to designate to the trial court all parts of the materials on which he or she relies. The rule requires sufficient specificity to identify the relevant portions of a document, and so, for example, designation of an entire document is usually inadequate. However, it is sufficient to designate an entire document if the document is required in its entirety.

Ind. Reg'l Recycling, Inc. v. Belmont Indus., Inc., 957 N.E.2d 1279, 1287 (Ind. Ct. App. 2011) (citations omitted); see also Angel v. Powelson, 977 N.E.2d 434, 443-44 (Ind. Ct. App. 2012) (holding that defendants sufficiently designated “multiple deeds, drawings, maps, and affidavits” even though these items were referred to in their entirety because “there are occasions on summary judgment when including documents in their entirety may be necessary”) (internal quotation omitted).

[15] Here, Clutter did not designate an entire deposition spanning hundreds of pages. Cf. Kenworth of Indianapolis, Inc. v. Seventy-Seven Ltd., 134 N.E.3d 370, 382 n.5 (Ind. 2019) (agreeing that designation of two affidavits spanning over 400 pages was insufficient for purposes of Trial Rule 56(C)). Instead, Clutter designated her response to Friulmac's interrogatories, which consists of only sixteen pages. Although the better practice would be to designate specific pages of this document, we cannot say that the trial court abused its discretion by denying Friulmac's motion to strike Clutter's designation of her entire response to Friulmac's interrogatories. See Ind. Reg'l Recycling, 957 N.E.2d at 1287; Angel, 977 N.E.2d at 443-44.

III. Summary Judgment

[16] Friulmac next argues that the trial court erred by denying its motion for summary judgment. Again, we disagree.

A. Standard of Review

[17] Our Supreme Court has explained our review of rulings on motions for summary judgment as follows:

We review summary judgment decisions de novo, and Trial Rule 56(C) supplies the framework. The moving party is entitled to summary judgment only if the evidence it designates in support of its motion “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). Like a motion for judgment on the evidence, the purpose of summary judgment is to withdraw issues from the jury only when there are no factual issues for the jury to decide. Summary judgment is available when the nonmovant cannot prove its claim based on the undisputed evidence, and judgment on the evidence is available when the nonmovant has not proved its claim because no reasonable jury could find for it.

Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 685 (Ind. 2024) (citation modified) (emphasis in original).

[18] The summary judgment movant has the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020). The burden then shifts to the non-moving party, which must then show the existence of a genuine issue of material fact. Id. On appellate review, we resolve “[a]ny doubt as to any facts or inferences to be drawn therefrom ․ in favor of the non-moving party.” Id. “We limit our review to the materials designated at the trial level.” Gunderson v. State, Ind. Dep't of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018).

[19] With regard to our summary judgment standard, our Supreme Court has noted:

Summary judgment is a desirable tool to allow the trial court to dispose of cases where only legal issues exist. But it is also a blunt ․ instrument by which the non-prevailing party is prevented from having his day in court. We have therefore cautioned that summary judgment is not a summary trial, and the Court of Appeals has often rightly observed that it is not appropriate merely because the non-movant appears unlikely to prevail at trial. In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.

Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citation modified).

B. Indiana Product Liability Act

[20] Clutter brought her claims under the Indiana Product Liability Act (“the Act”), which “imposes liability upon sellers of a product in a defective condition unreasonably dangerous to any user or consumer.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 809 (Ind. 2007) (citing Morgen v. Ford Motor Co., 797 N.E.2d 1146, 1148 (Ind. 2003)). “The Act ‘governs all actions that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by a product ․ regardless of the substantive legal theory or theories upon which the action is brought.’ ” Id. (quoting I.C. § 34-20-1-1).

[21] Clutter brought claims under theories of both negligence and strict liability. To prevail on a claim of negligence, Clutter is required to prove: “ ‘(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.’ ” Id. (quoting Benton v. Oakland City, 721 N.E.2d 224, 232 (Ind. 1999)). With respect to her strict liability claims, Clutter must prove that: “ ‘(1) the product was defective and unreasonably dangerous; (2) the defective condition existed at the time the product left the defendant's control; and (3) the defective condition was the proximate cause of the plaintiff's injuries.’ ” Id. (quoting Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 527 (Ind. Ct. App. 2004)).

C. The trial court properly denied summary judgment to Friulmac.

[22] Friulmac argues that the trial court improperly denied its motion for summary judgment because the undisputed evidence shows that: (1) the Machine operated by Clutter had no manufacturing flaws; (2) the Machine was not defectively designed; (3) Friulmac provided adequate safety warnings regarding the use of the Machine; and (4) Clutter's own misuse of the Machine by using substandard wood acts as an affirmative defense to her claims. We address each of these arguments in turn.

1. Manufacturing Flaw

[23] Indiana Code Section 34-20-5-1 provides in relevant part:³

In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product:

* * * * *

(2) complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.

[24] In support of its motion for summary judgment, Friulmac designated the affidavit of its employee, Stefano Braca. This affidavit includes an averment that “[t]he [M]achine met all applicable federal and state regulations when it was delivered to [Clutter's employer] Patrick Industries.” Appellant's App. Vol. II p. 55. This was sufficient to give rise to the rebuttable statutory presumption that the Machine was not defective and that Friulmac was not negligent. See Miller v. Bernard, 957 N.E.2d 685, 695-96 (Ind. Ct. App. 2011) (holding that designated evidence that the medicine plaintiff alleged was defective conformed to FDA approved strength was sufficient to create a rebuttable statutory presumption).

[25] The trial court concluded, however, that the designated evidence, when construed in the light most favorable to Clutter as the non-moving party, was sufficient to establish a genuine issue of material fact as to whether the presumption was rebutted. We agree.

[26] Clutter's responses to Friulmac's interrogatories indicate that, after the Machine was installed, the Machine “had an issue with kicking back a significant amount of wood dust and debris toward the operator, while it was in use.” Appellant's App. Vol. II p. 211. Friulmac's technician Braca informed Clutter that “there needed to be a guard fabricated to eliminate the issue.” Id. A trier of fact could reasonably conclude from this that the Machine was not manufactured correctly and required additional modifications to be operated safely, thereby rebutting the statutory presumption.

[27] Friulmac's reliance on its designated expert evidence to establish that the Machine functioned properly overlooks our summary judgment standard. Even when expert evidence is presented, summary judgment is improper if the non-moving party offers evidence from which a reasonable fact-finder could draw competing inferences. See Femco, Inc. v. Colman, 651 N.E.2d 790, 794 (Ind. Ct. App. 1995) (holding that a party is not required “to match expert for expert the other side's evidence,” and instead “[w]hat is necessary is that the party seeking to defeat summary judgment demonstrate the existence of a material issue of fact by presenting competent evidence thereon”).⁴ Although Friulmac's expert concluded that the Machine operated correctly during their post-accident inspection, Clutter's interrogatory responses indicate that the Machine had ongoing issues with kicking back debris during operation and required modifications that were not completed prior to her injury. From this, the trier of fact could reasonably conclude that the Machine had a manufacturing flaw despite Friulmac's expert evidence. Accordingly, the trial court properly found that a genuine issue of material fact existed regarding this claim.

2. Design Defect

[28] We reach a similar conclusion regarding Friulmac's claim that Clutter failed to designate any evidence that there was a defect in the design of the Machine. “For actions based on an alleged product design defect ․, the Act departs from strict liability and specifies a different standard of proof: ‘[T]he party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product[.]’ ” TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind. 2010) (quoting Ind. Code § 34-20-2-2). Thus, claims of defective design under the Act are “based in negligence.” Brewer v. PACCAR, Inc., 124 N.E.3d 616, 627 (Ind. 2019).

[29] Again, Friulmac notes that it designated evidence from its expert that the Machine was not negligently designed and that Clutter designated no expert testimony to counter its expert evidence. But expert testimony is not necessary to create a genuine issue of material fact in an ordinary negligence claim. See Femco, 651 N.E.2d at 794. Indeed, to support a claim for a design defect, expert testimony is not required. TRW Vehicle Safety Sys., 936 N.E.2d at 209 (“While the plaintiff was required to prove [a] breach of duty, the sufficiency of such proof is determined from the evidence itself and did not require an opinion witness's declaration thereof.”).

[30] Although Friulmac's designated expert evidence shows that the Machine was not improperly designed, Clutter's interrogatory responses indicate that the Machine repeatedly malfunctioned by expelling wood debris toward the operator. Whether a machine that repeatedly malfunctions in such a manner was reasonably designed is not an issue beyond the knowledge of jurors. Viewing the designated evidence in the light most favorable to Clutter, as we must, this presents a question of fact regarding the design of the Machine that a trier of fact must resolve.

[31] Friulmac essentially asks us to conclude, as a matter of law, that the Machine's design was reasonable because the Machine functioned properly when used with appropriate wood. But this begs the question: whether a reasonably designed Machine for industrial use should account for foreseeable variations in material quality, including wood with lower moisture. That is a factual question of reasonableness to be determined by the trier of fact that precludes summary judgment.

3. Failure to Warn

[32] With regard to Clutter's failure-to-warn claim, Friulmac contends that the warnings contained in its user manual for the Machine were sufficient. Under either theory of strict liability or negligence, “a product may be defective under the Act where the manufacturer fails in its duty to warn of a danger or instruct on the proper use of the product as to which the average consumer would not be aware.” Rushford, 868 N.E.2d at 810 (citing Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind. 1983)). “This duty is twofold: (1) to provide adequate instructions for safe use and (2) to provide a warning as to dangers inherent in improper use.” Id. In a failure-to-warn claim, the plaintiff “must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in ․ providing the warnings or instructions.” I.C. § 34-20-2-2. Although the nature of the duty to provide warnings is a question of law, the adequacy of the warnings—which implicates a breach of duty—is a question of fact for the jury—or the trial court acting as the trier of fact—to resolve. Rushford, 868 N.E.2d at 810.

[33] Friulmac first argues that Clutter “didn't even argue the adequacy of the warnings,” Appellant's Br. p. 18, and only devoted one sentence in her complaint to allege that Friulmac was “negligent in failing to warn [Clutter] that its product was defective.” Appellant's App. Vol. II p. 25. But Clutter did not move for summary judgment; Friulmac did. It was not Clutter's burden in her complaint to counter Friulmac's summary judgment arguments.

[34] Friulmac correctly notes that, “in the absence of any evidence that the product has been modified in some fashion and that the seller knew or should have known of any such modification, its duty to warn is discharged where the seller provides the buyer with the manufacturer's warning of the danger at issue.” Rushford, 868 N.E.2d at 811. And “ ‘[w]here warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.’ ” Id. (quoting Dias v. Daisy-Heddon, 390 N.E.2d 222, 225 (Ind. Ct. App. 1979)).

[35] Here, however, Friulmac admittedly manufactured and sold the Machine.⁵ And Friulmac conclusorily argues that it “provided adequate warnings to the buyer both on the Machine itself and in the User Manual.” Appellant's Br. p. 19. In its motion for summary judgment, Friulmac noted that the user manual for the Machine provides that “The following uses of the [M]achine are considered forbidden: ․ Use of non-sectioned workpieces, which do not contain parts of wood or that are wood derived, and could lead to risks for the machine's user during processing.” Appellant's App. Vol. II p. 86. Friulmac's employee, Braca, also personally trained Clutter regarding the safe use of the Machine. Friulmac's designation of evidence provides no indication, however, that it warned Clutter about using wood that had less than ten percent humidity. Thus, a trier of fact could find that these warnings did not adequately caution against the use of wood with a low-moisture content, and the trial court properly denied Friulmac summary judgment on this issue.

4. Misuse

[36] Lastly, Friulmac claims that it was entitled to summary judgment on the issue of whether Clutter misused the Machine. Indiana Code Section 34-20-6-4, which is part of the Act, provides:

It is a defense to an action under [the Act] ․ that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.

Misuse is a complete defense under the Act. Superior Oil Co., Inc. v. Labno-Fritchley, 207 N.E.3d 456, 462 (Ind. Ct. App. 2023) (citing Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d 953, 956 (Ind. 2018)), trans. denied. Although “[m]isuse is typically a question of fact for a jury to decide,” “summary judgment based on misuse is appropriate when the undisputed evidence proves that the plaintiff misused the product in an unforeseeable manner.” Campbell/Hausfeld, 109 N.E.3d at 959 (citations omitted). “ ‘Misuse is established as a matter of law when the undisputed evidence proves that plaintiff used the product in direct contravention of the product's warnings and instructions.’ ” Superior Oil Co., 207 N.E.3d at 462 (quoting Campbell Hausfeld, 109 N.E.3d at 956).

[37] Friulmac argues that the undisputed evidence proves that Clutter misused the Machine by using wood that was too dry to be safely processed in the Machine and that this misuse is what caused her injuries, not any problem with the Machine. Friulmac also notes that Clutter's employer, Patrick Industries, signed off on Friulmac's report indicating that the use of the dry wood was the cause of the accident and put in place remedial measures.

[38] As noted above, however, Friulmac refers us to no evidence that it warned Clutter—or Patrick Industries for that matter—that use of dry wood was contraindicated in the Machine prior to Clutter's injuries. Under these circumstances, we cannot say that the evidence undisputedly establishes that Clutter misused the Machine. Instead, whether she did is a question of fact for the fact-finder to decide. Campbell/Hausfeld, 109 N.E.3d at 959.

Conclusion

[39] The trial court did not abuse its discretion by denying Friulmac's motion to strike the evidence Clutter designated in response to Friulmac's motion for summary judgment. The trial court also properly denied Friulmac's motion for summary judgment because, construing all inferences in favor of Clutter as the non-moving party, there are genuine issues of material fact regarding whether the Machine had manufacturing flaws or design defects, whether Friulmac provided adequate safety warnings, and whether Clutter misused the Machine. Accordingly, we affirm the trial court's decision.

[40] Affirmed.

FOOTNOTES

1.   Clutter's complaint misspelled Friulmac's name as “Fruilmac,” and this is how Friulmac's name appears on the captions below. We have updated our caption to reflect the proper spelling of the appellant-defendant's name.

2.   Accordingly, by separate order issued contemporaneously with this opinion, we deny Friulmac's Second Amended Motion for Ruling on Appellant's Unopposed Appeal.

3.   Subsection (1) of this statute provides that the rebuttable presumption also applies if the product “was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled.” I.C. § 34-20-5-1(1). This subsection appears not to be at issue in this case.

4.   In medical malpractice cases, however, “a unanimous opinion of the medical review panel that the physician did not breach the applicable standard of care is ordinarily sufficient to establish prima facie evidence negating the existence of a genuine issue of material fact entitling the physician to summary judgment.” Stafford v. Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015). In such situations, the burden shifts to the plaintiff, who may rebut with expert medical testimony. Id.; see also 23 Ind. Law Encyc., Physicians and Surgeons § 28 (“[W]hen a medical review panel renders an opinion in favor of the physician, the patient must then come forward with expert medical testimony to rebut the panel's opinion”). There are exceptions to this general rule when “the defendant's conduct is so obviously substandard that a jury need not possess medical expertise in order to recognize the defendant's breach of the applicable standard of care.” St. Mary's Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144, 1150 (Ind. Ct. App. 2018).

5.   Patrick Industries apparently installed the “cutting head” on the Machine. Appellant's App. Vol. II p. 55.

Tavitas, Chief Judge.

Bailey, J., and Kenworthy, J., concur.