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COA affirms $550,000 med mal verdict; denies appellate attorney fees

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A Lake Superior judge did not err when he allowed a witness to testify on behalf of the party bringing a medical malpractice complaint against a doctor nor in excluding the testimony of the doctor’s expert witness due to untimely disclosure, the Indiana Court of Appeals held Tuesday.

The estate of John E. Robinson won a $550,000 jury verdict in a medical malpractice complaint filed against Dr. John O. Carter. John Robinson saw Carter with complaints of stress. Carter performed a physical exam and diagnosed Robinson with severe stress and insomnia and prescribed two drugs. That afternoon, Robinson died.

His wife, Loretta, whom he was separated from at the time of his death, hired Dr. James Bryant to perform an autopsy. Bryant concluded that John Robinson died from acute and chronic congestive heart failure. Loretta Robinson filed her proposed medical complaint with the Department of Insurance in 2004 and then filed her lawsuit in 2009.

Carter died unexpectedly several weeks before the June 2011 trial date. His estate sought to introduce an expert witness to rebut Bryant’s conclusions, but the Lake Superior Judge Jeffery Dywan denied his request. Dywan also allowed Bryant to testify over the estate’s objections.

In Mark Carter and John E. Carter, Co-Personal Rep. of the Estate of John O. Carter, M.D., Deceased v. Loretta Robinson, Individually and as Admin. of the Estate of John E. Robinson, Deceased, 45A05-1110-CT-563, the Court of Appeals rejected the estate’s contention that Bryant’s testimony as an expert witness should have been excluded under Ind. Evidence Rule 702. The estate argued that Bryant found one reason as to how John Robinson died and then did not rule out other possible causes. The judges found the autopsy report’s cause of death was derived by employing the differential etiology method, as Bryant did look at other causes and rule them out.

The COA judges also upheld the decision to not allow the estate’s expert witness, Dr. Michael Kaufman, to testify. Kaufman would have spoke about perceived flaws in Bryant’s methodology. The judges agreed that Kaufman was not timely disclosed as a witness. Bryant was deposed by Carter’s counsel in April 2011, although Carter knew he was an expert witness in July 2009. In May 2011, the estate hired Kaufman, but did not include Kaufman on a June 6, 2011, witness disclosure list. It wasn’t until just a few weeks before trial that the estate attempted to add Kaufman as a witness.

The judges pointed out that Carter’s attorney was still able to point out the weaknesses and perceived flaws within Bryant’s methodology and place those before the jury. They also affirmed the refusal to tender final jury instruction No. 3 with the phrase, “This determination should not be based on hindsight,” as another final instruction included language similar in form and substance.

Loretta Robinson’s request for appellate attorney fees was denied.
 

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  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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