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Couple’s trial strategy worked against them

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A couple who consented to an entry of judgment on the evidence against them in a negligence claim in order to appeal the evidentiary rulings lost their case in the Indiana Court of Appeals.

Mary Barrix and her husband sued Kristopher Jackson and Graves Plumbing Co. Inc. for negligence after Barrix was involved in a car accident with Jackson while he was in the scope of his employment.

The Barrixes retained neurologist Dr. William Fulton to perform a medical evaluation of Barrix. He concluded Barrix suffered a 1 percent permanent partial impairment because of her ongoing pain. At a 2012 deposition of Fulton – who was unable to testify during trial – the defendants objected to the doctor’s testimony concerning the content of the medical records upon which he based his evaluation of Barrix’s condition. At trial, the defendants also objected to the admissibility of his deposition and the medical records and bills he relied upon.

After hearing oral argument and the Barrixes’ offer of proof, the trial court sustained the defendants’ objection, at which time the Barrixes rested their case and stated they would appeal the evidentiary ruling. The defendants moved for judgment on the evidence, which the court granted.

The appellate judges affirmed, finding the Barrixes couldn’t show reversible error as a result of the exclusion of Fulton’s deposition testimony from the evidence, and that any such error was invited. The Barrixes never directed the trial court to specific portions of the testimony that may have been admissible without the admission of prior doctors’ opinions and diagnoses, Judge L. Mark Bailey wrote.

In addition, the court didn’t abuse its discretion when it excluded Barrix’s medical bills from evidence, and the plaintiffs failed to submit even the minimal amount of evidence required to avoid entry of judgment on the evidence in this case.  

“Rather than seek a continuance or an interlocutory appeal, the Barrixes, through counsel, effectively consented to entry of judgment on the evidence against them in order to appeal the trial court’s evidentiary rulings. Here, the strategy worked to their peril,” he wrote.

 

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  1. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  2. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  3. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  4. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  5. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

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