theory that avoids defense (Indiana) · Go Syfert
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theory that avoids defense in Indiana

30 Indiana opinions name it 2 courts 2000–2026 3 in the last five years

The cases below were cited by Indiana courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (11)

CaseFollowedCited
Boggs v. Tri-State Radiology, Inc.green
ind · 2000 · cited in 20 Indiana opinions naming this issue, 2001–2026
2 sentences

2026If established, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Id. (quoting Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)).

2020“Once the defendant has established that the action was filed outside the statute of limitation, the burden shifts to the plaintiff to establish ‘an issue of fact material to a theory that avoids the defense.’” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)); see also LeBrun v. Conner, 702 N.E.2d 754, 757 (Ind. Ct. App. 1998) (“The burden is on the plaintiff to establish that she has exercised reasonable diligence to discover the alleged malpractice.”).

720
Mary Alice Manley, and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C.green
ind · 2013 · cited in 4 Indiana opinions naming this issue, 2014–2020
2 sentences

2020“Once the defendant has established that the action was filed outside the statute of limitation, the burden shifts to the plaintiff to establish ‘an issue of fact material to a theory that avoids the defense.’” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)); see also LeBrun v. Conner, 702 N.E.2d 754, 757 (Ind. Ct. App. 1998) (“The burden is on the plaintiff to establish that she has exercised reasonable diligence to discover the alleged malpractice.”).

2014Because Dr. Kleckner established from the designated evidence that this action was commenced more than two years after the date of the alleged malpractice, the burden shifted to the plaintiff to show “an issue of fact material to a theory that avoids the defense.” Manley, 992 N.E.2d at 674 ; Herron, 897 N.E.2d at 448 ; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs, 730 N.E.2d at 695 ).

24
Herron v. Anigbogreen
ind · 2008 · cited in 4 Indiana opinions naming this issue, 2013–2020
2 sentences

2016If this is done, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind. 2008) (quoting Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016 Page 10 of 12 Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)).

2014Because Dr. Kleckner established from the designated evidence that this action was commenced more than two years after the date of the alleged malpractice, the burden shifted to the plaintiff to show “an issue of fact material to a theory that avoids the defense.” Manley, 992 N.E.2d at 674 ; Herron, 897 N.E.2d at 448 ; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs, 730 N.E.2d at 695 ).

24
Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David v. William Kleckner, M.D.green
ind · 2014 · cited in 3 Indiana opinions naming this issue, 2016–2026
2 sentences

2017Once the defendant meets that burden, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Id.

2016See David, 9 N.E.3d at 153 (once doctor established that the action was commenced more than two years after the date of the alleged malpractice, the burden shifted to plaintiff to show an issue of fact material to a theory that avoids the defense).

23
Booth v. Wileygreen
ind · 2005 · cited in 3 Indiana opinions naming this issue, 2013–2020
2 sentences

2020Our Supreme Court has explained that this burden shifting is appropriate because “the facts establishing any incapacity or the reasonableness of the plaintiff’s diligence in filing a claim are uniquely within the plaintiff's knowledge.” Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind. 2008) (plurality opinion). [18] “The Indiana Medical Malpractice Act’s two-year statute of limitations runs from the date of the negligent act or omission.” Herron, 897 N.E.2d at 448 (citing Ind. Code § 34-18-7-1 (b)). “[W]here the constitutionality of th[is] occurrence-based limitations period as applied to a given c

2018"Because this statutory time limit begins to run upon the occurrence of the alleged malpractice, without regard to the date of actual or constructive discovery of injury or malpractice by a person sustaining harm, literal application of the statute has been found unconstitutional in certain situations." Booth v. Wiley , 839 N.E.2d 1168 , 1170-71 (Ind. 2005).

23
Overton v. Grillogreen
ind · 2008 · cited in 3 Indiana opinions naming this issue, 2014–2026
2 sentences

2026If established, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Id. (quoting Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)).

2017If established, the burden shifts to the plaintiff to establish "an issue of fact material to a theory that avoids the defense." Id. (quoting Overton , 896 N.E.2d at 502 (quoting Boggs v. Tri-State Radiology, Inc. , 730 N.E.2d 692 , 695 (Ind. 2000) )). [20] The equitable doctrine of fraudulent concealment may operate to toll the statute of limitations in the medical malpractice context until the termination of the physician-patient relationship or until discovery of the alleged malpractice, whichever is earlier.

13
Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chairgreen
indctapp · 2013 · cited in 2 Indiana opinions naming this issue, 2018–2025
2 sentences

2025When, as here, “the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense.” Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013).

2018But when the summary judgment movant "asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Wininger , 998 N.E.2d at 751 . [8] Indiana Code Section 34-18-7-1"is an 'occurrence' statute as opposed to a 'discovery' statute." Brinkman v. Bueter , 879 N.E.2d 549 , 553 (Ind. 2008).

12
LeBrun v. Connergreen
indctapp · 1998 · cited in 1 Indiana opinions naming this issue, 2020–2020
1 sentence

2020“Once the defendant has established that the action was filed outside the statute of limitation, the burden shifts to the plaintiff to establish ‘an issue of fact material to a theory that avoids the defense.’” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)); see also LeBrun v. Conner, 702 N.E.2d 754, 757 (Ind. Ct. App. 1998) (“The burden is on the plaintiff to establish that she has exercised reasonable diligence to discover the alleged malpractice.”).

11
Nancy McDaniel, as Personal Representative of the Estate of Fred C. McDaniell, III v. William C. Erdel, M.D., and Indiana Gastroenterology, Inc.green
indctapp · 2017 · cited in 1 Indiana opinions naming this issue, 2020–2020
1 sentence

2020See McDaniel v. Erdel, 91 N.E.3d 617, 624 (Ind. Ct. App. 2017) (“Because the evidence shows that the action was commenced more than two years after the date of the alleged [wrongdoing], the burden shifts to the [non-movant] to establish an issue of fact material to a theory that avoids the defense.”), trans. denied.

11
Jacobs v. Manhartgreen
indctapp · 2002 · cited in 1 Indiana opinions naming this issue, 2007–2007
1 sentence

2007When a party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the other party to show “an issue of fact material to a theory that avoids the defense.” Jacobs v. Manhart, 770 N.E.2d 344, 352 (Ind.Ct.App.2002) reh’g denied.

11
Conard v. Waughgreen
indctapp · 1985 · cited in 1 Indiana opinions naming this issue, 2000–2000
2 sentences

2000Conard v. Waugh, 474 N.E.2d 130, 134-35 (Ind.Ct.App.1985).

2000Conard v. Waugh, 474 N.E.2d 130, 134-35 (Ind.Ct.App.1985).

11

Distinguished, questioned or overruled (0)

CaseNegativeCited
No negative-treatment citations attached to this issue in Indiana. Read the followed side critically anyway.

Also cited on this issue (7)

CaseCitedYears
Jason T. Myers v. Thomas D. Maxson Amy L. Hutchison Bruce W. Graham and Trueblood & Graham (In their Official and Individual Capacities) (mem. dec.) green
indctapp · 2016
2 sentences

2026However, when the opposing party moves for summary judgment based on the statute of limitations as an affirmative defense and makes a prima facie showing that the action was commenced after the statutory period, “the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense.” Id. (quoting Myers, 51 N.E.3d at 1276 ).

2018But when the party moving for summary judgment "asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Myers , 51 N.E.3d at 1276 . [16] The Biedron Defendants established that Theresa's wrongful death action was commenced well beyond the two-year statutory period that ended, at the latest, on July 31, 2007, two years after Biedron's death.

22018–2026
Theresa Biedron v. Anonymous Physician 1 green
indctapp · 2018
1 sentence

2026However, when the opposing party moves for summary judgment based on the statute of limitations as an affirmative defense and makes a prima facie showing that the action was commenced after the statutory period, “the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense.” Id. (quoting Myers, 51 N.E.3d at 1276 ).

12026–2026
Heaton & Eadie Professional Services Corp. v. Corneal Consultants of Indiana, P.C. green
indctapp · 2006
1 sentence

2025The non-movant must “set forth specifically designated facts that establish a dispositive dispute of fact, or where there are undisputed material facts, conflicting inferences on an issue.” Heaton, 841 N.E.2d at 1185 . [16] Taggart contended in its motion for summary judgment that Aegean’s complaint was untimely as a matter of law because it was filed outside the two- year statute of limitations.

12025–2025
Brinkman v. Bueter green
ind · 2008
1 sentence

2018But when the summary judgment movant "asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Wininger , 998 N.E.2d at 751 . [8] Indiana Code Section 34-18-7-1"is an 'occurrence' statute as opposed to a 'discovery' statute." Brinkman v. Bueter , 879 N.E.2d 549 , 553 (Ind. 2008).

12018–2018
Van Dusen v. Stotts green
ind · 1999
1 sentence

2014And we applied the principle that, once a defendant — as the party moving for summary judgment — has established that the medical malpractice action was filed outside the statute of limitations, the plaintiff then has the burden to establish “an issue of fact material to a theory that avoids the defense.” Id. (quoting Boggs, 730 N.E.2d at 695 ).

12014–2014
Workman v. O'BRYAN green
indctapp · 2011
1 sentence

2013Id.

12013–2013
Jurich v. John Crane, Inc. green
indctapp · 2005
1 sentence

2006Id.

12006–2006

Statutes the citing opinions construe

IN § Ind. Code § 34-18-7-1 (16) IN § Ind. Code § 34-11-2-4 (6) IN § Ind. Code § 34-18-11-1 (3)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

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