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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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