2011 update of DTCI amicus cases

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Indiana Lawyer Focus

This will be my final annual update of Defense Trial Counsel of Indiana’s participation in amicus cases. I have decided after over 10 years heading up the Amicus Committee, it is time for me to step aside. Beginning Jan. 1, 2012, Don Kite will assume the chair. I will stay on the committee for another year to help Don with the transition.

In 2011, DTCI has participated as amicus in several significant legal issues affecting the defense bar. It was involved in a certified question concerning the crash worthiness doctrine and prepared a brief concerning whether failure to maintain medical records constitutes spoliation. Finally, the Amicus Committee was involved in one of the cases deciding whether plaintiffs in wrongful death cases were entitled to attorney fees. The Amicus Committee also welcomed a new member, Edward Harney of Hume Smith Geddes Green & Simmons.

james johnson Johnson

Below are the 2011 cases:

Cases decided at the Indiana Supreme Court

Nicholas Green v. Ford Motor Co., 942 N.E.2d 791 (Ind. 2011), Certified Question from S.D. Ind. The court decided that in a crash worthiness case alleging enhanced injuries under the Indiana Product Liability Act, the jury can apportion fault to the person suffering physical harm when the alleged fault relates to the cause of the underlying accident. Ross Rudolph of Rudolph Fine Porter & Johnson and James Godbold of Kightlinger & Gray’s Evansville office prepared the amicus brief.

Ashby and O’Brien v. Davidson, 949 N.E.2d 301 (Ind. 2011). The court held a claims-made policy of insurance requires notice by an insured prior to the expiration of the policy period. However, the court held there was a material issue of fact on plaintiff’s estoppel claim (DTCI did not participate in the estoppel claim). Don Kite of Gonzalez Saggio & Harlan wrote the amicus brief.

Howard Regional Health Systems v. Gordon, 952 N.E.2d 182 (Ind. 2011). The court held there is no spoliation cause of action for failing to comply with a statute concerning maintenance of health care records against a health care provider who fails to maintain medical records. The amicus brief was written by Tom Bodkin of Bamberger Foreman Oswald & Hahn.

Hematology-Oncology of Indiana, P.C. v. Fruits, 950 N.E.2d 295 (Ind. 2011). The court held plaintiffs are entitled to an award of attorney fees and expenses pursuant to the Adult Wrongful Death Act. Robert Parker prepared the DTCI amicus brief.

Cases pending at Indiana Court of Appeals

Santelli v. Rahmatullah and Super 8 Motel, No. 49D04-0704-CT-14720. The issue is whether in a premises liability case where a person was murdered, the premises owner can name the criminal assailant as a nonparty. Lucy Dollens of Frost Brown Todd wrote the amicus brief.

I would like to thank all the individuals and firms that supplied briefs in the above matters. This work is time consuming and challenging. The work of the brief writers is appreciated by everyone at DTCI.

As usual, I speak for the DTCI board in expressing my thanks to the members of Amicus Committee: Michele Bryant (Bamberger Foreman Oswald & Hahn); Lucy Dollens; Michael Dugan (Dugan & Voland); Daniel Glavin (O’Neill McFadden & Willett); Phil Kalamaros (Hunt Suedhoff Kalamaros); Don Kite Sr.; Crystal Rowe (Kightlinger & Gray) and Edward Harney. I speak for the entire committee when I thank the DTCI board of directors and its members for their continued support of the Amicus Committee.

Finally, on a personal note, my time as Amicus chair has been one of the most professionally fulfilling experiences in my career. The combination of the intellectual debates on the committee, the policy discussions with the board and the work with the brief writers will never be duplicated. I hope Don has as great an experience as I have had over the last 10 years.•


James D. Johnson is a partner in the litigation department at Rudolph Fine Porter & Johnson in Evansville. Johnson will be vice president of DTCI beginning Jan. 1, 2012. The opinions expressed in this article are those of the author.


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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...