Justices accept two cases

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The Indiana Supreme Court has granted transfer in two cases, one examining medical malpractice liability evidence for damages and another examining how Marion County’s mass tort litigation rules impact the overall goal of orderly and speedy justice in an asbestos case.

At its private conference on Friday, the justices denied transfer in 29 appeals and accepted two cases – Stephen W. Robertson, Indiana Commissioner of Insurance as Administrator of the Indiana Patient’s Compensation Fund, et al. v. B.O., a minor, by his parents and next friends, Lisa and Kevin C. Ort, No. 49S04-1111-CT-671; and Sharon Gill, on her own behalf and on behalf of the estate of Gale Gill, deceased v. Evansville Sheet Metal Works, Inc., No. 49S05-1111-CV-672.

In B.O., the Indiana Court of Appeals in May ruled on an issue of first impression about medical malpractice liability evidence being introduced to determine damages even after someone enters into a settlement with the healthcare provider on that underlying claim. A Marion Superior judge last year granted partial summary judgment for B.O. on grounds that the fund’s expert witness testimony couldn’t be introduced. But on interlocutory appeal, an appellate panel reversed that ruling based on language in the state’s Medical Malpractice Act and recent guidance from the Indiana Supreme Court in Atterholt v. Herbst, 907 N.E.2d 528 (Ind. 2009), which re-evaluated some precedent and held that the fund may introduce evidence of a claimant’s pre-existing risk of harm if it’s relevant to establishing the amount of damages.

The justices also accepted Gill, a case the Indiana Court of Appeals decided in December 2010. The appellate court found that a Marion County trial court shouldn’t have adhered to its local rule because it failed to achieve “the ultimate end of orderly and speedy justice,” when deciding that a woman’s claim against her deceased husband’s former employer was time-barred by a 10-year statute of limitations. Sharon Gill sued the contractor on claims that her husband had been exposed to asbestos on the job and that he died from a related disease. The appellate court noted its concern with the application of the Marion Circuit Court’s mass tort litigation rules and instructed the court not “blindly adhere” to all of the local rules without keeping the ultimate goal of orderly and speedy justice in mind.


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