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Timing of wrongful death claim disputed

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In a wrongful-death claim filed nearly five years after a nursing home death, the Indiana Supreme Court is considering whether in instances of fraudulent concealment the two-year limitation clock starts over or if giving plaintiffs “reasonable time” to file is an acceptable standard.

The five justices pressed opposing counsel on the concept of reasonable time and fairness during oral arguments Dec. 5 in Virginia E. Alldredge and Julie A. Luker, as co-personal representatives for the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363.

At issue is whether the doctrine of fraudulent concealment applies to nonclaim statutes. If so, does the plaintiff have a reasonable time to bring a claim or does fraudulent concealment toll the statute of limitations for two years?

Venita Hargis’ family was told three years after her death that the injury that led to her death was not because she fell, as The Good Samaritan Home had claimed, but was actually caused by another resident attacking her.

The plaintiffs filed a wrongful-death complaint against Good Samaritan, but the Vanderburgh Superior Court dismissed the claim as untimely. On appeal, the Indiana Court of Appeals reversed, ruling the estate has a full two-year period to file after the discovery of the wrongful death when the cause of the death has been fraudulently concealed.

Before the Supreme Court, the estate’s attorney, Robert King, argued the court should adopt a “bright line rule” by setting a specific deadline for wrongful-death claims to be filed in instances of fraudulent concealment.

Attorney Danny Glass, representing Good Samaritan, countered that the plaintiffs were making a bald-faced assertion that they were entitled to two years. He told the court the standard of reasonable time should remain in place.

After Hargis died Nov. 26, 2006, the nursing home told the family she had fallen and hit her head. However, on Nov. 24, 2009, family members were told by a former employee of Good Samaritan that their mother’s fatal head injury was the result of her being attacked by another resident.

The family subsequently filed a complaint Oct. 27, 2011, asserting the nursing home had been negligent and had fraudulently concealed the true cause of Hargis’ death.

Justice Robert Rucker quizzed Glass on what should happen when fraudulent concealment is discovered after the wrongful death filing time period has expired. He repeatedly asked the question, interrupting the Evansville attorney and pushing him to provide an answer.

“What should happen?” Rucker asked. “You mentioned earlier that it’s not tolling, it’s equitable something or other, and I’m asking you how does that play out?

Glass responded that once the plaintiffs find out, they would have a reasonable time to bring their claim. That i equitable, he said, and will not provide more of a remedy than is needed.

To King, Rucker asked why giving a plaintiff two years to file was better than using the reasonable time standard.

King responded that not granting a specific deadline in cases of fraudulent concealment would reward the parties who hide their wrongful conduct.

Rucker interjected the court was not rewarding the defendants. The Supreme Court could grant the plaintiffs the right to pursue the case, but he wanted to know why two years was better.

Pointing to the medical malpractice case Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999), King noted the opinion called for a set period of time to file a claim. Doing so avoids what Judge John Baker referred to in his opinion in Alldredge as the hairsplitting to determine what the deadline for filing would be.

“In essence, you’re starting from scratch just like you would be if it had never been concealed,” King said. “You get your full two years. And that’s what we’re saying about folks who have been lied to, why should they be punished with a shorter period of time?

Picking up on Rucker’s line of questioning, Justice Loretta Rush asked why a reasonable time would be shorter.

King responded that caselaw shows a reasonable time standard is “never good enough.”

After the oral arguments, King filed a notice of additional pertinent authorities and cited cases supporting his argument for two years rather than reasonable time. For example, Burks v. C.H. Rushmore, 534 N.E.2d 1101 (Ind. 1989), does not grant the full statutory period when fraudulent concealment is an issue.

In its opinion, the Court of Appeals relied upon Van Dusen. There, the Supreme Court granted another two years to file a claim in cases of medical malpractice where the long latency period of the medical condition prevented the patient from discovering the physician’s malpractice.

Accordingly, the Court of Appeals concluded when someone fraudulently conceals the existence of a wrongful death beyond the Wrongful Death Act’s two-year limitations period, the family can file a claim within the next two years.

Justice Steven David and Chief Justice Brent Dickson asked Glass how the shorter period that Glass was advocating for was fair when the plaintiffs would have had two years if not for the concealment.

Glass pointed to the Court of Appeals ruling in Tomika Johnson, et al. v. David Sullivan, M.D., et al., 82A05-1102-MI-108. In a footnote, the court noted no claimant in any Indiana case has ever been given a full two years to file a complaint following the discovery of concealment.

Justice Mark Massa then broached the issue of fairness, asking why wrongful death should be different from medical malpractice claims in terms of fraudulent concealment.

“I don’t think it is different,” Glass replied. “In medical malpractice cases where fraudulent concealment has been an issue, they haven’t gotten two years. In the cases where they got two years, fraudulent concealment wasn’t even an issue.”

Dickson asked King if he disagreed with Glass’ response to the question from Massa.

Again, King pointed to Van Dusen, which left for another day the question of how to handle reasonable time in medical malpractice cases within the doctrine of fraudulent concealment. Apparently, he told the court, that day might have arrived now.

King also responded to Glass’ reply to Justice Rucker’s question on what should happen once fraudulent concealment is discovered. The plaintiffs’ attorney described Glass’ solution as rushing to the courthouse without doing due diligence or collecting facts and evidence. Lawyers and litigants, he said, ought to have adequate time to research their claims, especially three years after the incident when witnesses have moved away.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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