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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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