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Judge sanctions Weinberger for noncooperation with insurer

Jennifer Nelson
September 17, 2012
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A federal judge in Hammond has entered a default against former ear, nose and throat doctor Mark Weinberger and other defendants for their noncooperation with his medical malpractice insurance company regarding hundreds of pending malpractice claims.

U.S. Judge Jon E. DeGuilio ordered the default against Weinberger, The Nose and Sinus Center LLC, The Merrillville Center for Advanced Surgery LLC, and Subspecialty Centers of America LLC Sept. 12 after considering whether to adopt Magistrate Judge Andrew Rodovich’s recommendation that default judgment be entered against the Weinberger defendants.

The Medical Assurance Company Inc. sought discovery sanctions against those defendants stemming from Weinberger’s constant refusal to answer questions during deposition. Weinberger repeatedly asserted the Fifth Amendment to all 344 questions, including those about his background and education. After a warning in 2011 from the court that refusal to provide substantive responses would result in severe sanctions, the Weinberger defendants said they would cooperate. However, the defendants continued to assert the Fifth Amendment to the amended discovery responses.

The defendants claimed they would answer questions after Weinberger’s criminal trial wrapped up. He recently pleaded guilty to 22 counts. His plea is pending before Chief Judge Philip Simon, with sentencing set for Oct. 12.

The Indiana Patient’s Compensation Fund and Weinberger’s former patients who are pursuing malpractice claims against him – as well as the Weinberger defendants – objected to Rodovich’s report and recommendation. The non-Weinberger defendants believe the entry of default judgment would prejudice them more than Weinberger, and they sought clarification that the default judgment wouldn’t terminate the duty to defend or for the judge to instead impose lesser sanctions.

DeGuilio decided to impose lesser sanctions. He noted that the intent of the Weinberger defendants’ conduct so far has been to delay litigation rather than to assert constitutional privilege in good faith. While Weinberger has the right to assert the privilege and refuse some testimony, he has yet to provide a justification for a blanket claim of privilege, even on questions that have no bearing on the criminal charges, DeGuilio wrote.

The sanction will prevent them from participating in the case in any way “by treating them as if they had never appeared at all, and would also be consistent with other enumerated sanctions, such as ‘prohibiting the disobedient party from supporting or opposing designated claims or defense, or from introducing designated matters in evidence,’” he wrote.  

DeGuilio also ordered the Weinberger defendants, their attorney or both to pay reasonable expenses, including attorney fees caused by their failure to comply with the court’s discovery orders.

That Weinberger has pleaded guilty does not justify relief from the sanctions, he wrote, as it doesn’t make up for the repeated bad faith misuse of the Fifth Amendment, and the defendants have already once misrepresented their intent to provide discovery responses. There is also a chance that Simon will not accept the plea agreement and the criminal proceedings will continue beyond October.

The order came in The Medical Assurance Company Inc. v. Mark S. Weinberger, M.D., et al., 4:06-CV-117.

 

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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