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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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