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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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