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Automobile accident

April 26, 2011
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Trial Report

Melissa Miller v. Crossroads Rehabilitation Center, Inc. and John Gocke
Marion Superior Court # 10
No. 49D10-0901-CT-002353
Injuries: Multiple physical symptoms that included headaches, dizziness, memory loss, nausea, bilateral ankle pain, right shoulder pain, mouth pain, cervical pain, thoracic pain, and lumbar pain.
Date: May 19, 2010
Judge or Jury Trial: Jury trial
Judge: Hon. David Dreyer
Disposition: Plaintiff verdict after reduction for comparative fault: $848,800
Plaintiff Attorney: Jason A. Shartzer, Louis Buddy Yosha, and Richard A. Cook, Yosha Cook Shartzer & Tisch
Defendant Attorney: Andrea Simmons, The Pollack Law Firm
Case Information: On Feb. 15, 2007, at approximately 9 a.m., plaintiff was driving her 2003 Chevy Impala northbound on North Arlington Avenue approaching East 21st Street in Indianapolis. The defendant was driving a 1997 Ford semi in the left northbound lane on North Arlington Avenue. As plaintiff was proceeding through the intersection in the right northbound lane, the defendant attempted to make a wide right hand turn onto East 21st Street. and collided with the driver’s side of the plaintiff’s vehicle.

Liability was in dispute. The plaintiff argued that defendant should have kept a proper lookout and that defendant swung so far wide to make the right turn that a portion of his trailer was actually in the dedicated left-turn lane. The plaintiff argued that had the defendant looked, he would have seen the plaintiff’s vehicle. The police officer that investigated the collision testified that a portion of the defendant’s trailer was in the dedicated left turn lane at the time of the collision. The defendant argued that the plaintiff should have seen the semi’s right turn signal and known that the defendant was making a wide, right turn. The defendant also implied in argument that the plaintiff was on her cell phone at the time of the collision and introduced evidence that she was running late for work.  

Plaintiff initially refused medical attention at the scene of the collision and went to her job as a nurse for a medical doctor. She did, however, report her complaints of pain to her employer when she arrived at work, and later that day she sought medical treatment at St. Francis Hospital. She followed up with her family physician.

Plaintiff underwent MRI testing that revealed a broad-based, central disc herniation at C5-C6 with no stenosis or effacement. She was diagnosed with right cervical radiculopathy and underwent a CT scan of her head which was ultimately negative. She continued to have multiple physical symptoms and continued to undergo treatment that included consultation with a neurologist and MRIs.

Plaintiff stated in her discovery responses and testified in her deposition that she suffered from multiple injuries to multiple parts of her body with the most severe injury, in her opinion, being a brain injury. Although Melissa experienced brain injury-type symptoms, the objective tests and the information from her treating physicians was insufficient to support a claim for a brain injury related to the collision. The plaintiff’s claim for damages at trial was focused on her herniated disc at C5-C6. One of plaintiff’s treating doctors testified in advance of trial that the herniation was caused by the collision and that it was a permanent condition.

Plaintiff incurred approximately $47,600 in medical expenses, almost half of which was diagnostic in nature. She did not make a claim for wage loss. Plaintiff was 34 at the time of trial and there was testimony from her doctor that she would have future medical expenses related to her herniated disc and that she would likely become a surgical candidate.

Prior to trial, plaintiff’s last demand was $148,000 (which was withdrawn prior to trial) and the defendant’s last offer was $50,000. After the first day of trial, defendant increased its offer to $100,000. Also, prior to trial, plaintiff had suggested high/low parameters of $465,000 and $75,000. The defendant rejected the high/low parameters.

At the conclusion of a two-day trial, the jury returned a verdict in favor of the plaintiff for $1 million, but the jury also allocated the plaintiff a little more than 15 percent comparative fault. The judgment for the plaintiff after the reduction for comparative fault was $848,800.

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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