ILNews

Judge sanctions Weinberger for noncooperation with insurer

Jennifer Nelson
September 17, 2012
Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

ADVERTISEMENT