ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT