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Court preserves woman's day in court despite delays

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The Indiana Court of Appeals has reversed a trial judge’s order to dismiss a woman’s medical malpractice case because of her failure to comply with discovery deadlines and trial rules, finding that the decision to deny her a day in court was too harsh.

In Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M. and Achilles Podiatry Group, No. 54A01-1107-CT-302, the appellate panel reversed a ruling by Montgomery Superior Judge David Ault and sent the action back for further proceedings.

Sharon Wright brought a medical malpractice claim against Dr. Anthony Miller and Achilles Podiatry Group in Crawfordsville for an allegedly negligently performed bunion surgery in 2004.

After the medical review panel found in her favor, Wright brought the case to court in 2009. Discovery began, but Wright asked for continuances because she was not able to secure her expert witnesses and for personal medical reasons. In January 2011, the defendants asked for dismissal because of the delays.

The trial court struck Wright’s expert witness and dismissed her claims under Indiana Trial Rule 37(B) for failure to comply with discovery orders and Indiana Trial Rule 41(E) for failure to prosecute and failure to follow court orders. Specifically, the court noted Wright did not identify her expert witness on time and would have to proceed without the expert testimony at trial, and that all led to a lack of evidence in her case and warranted dismissal.

Although on appeal the judges noted their typical deference to the trial judges and a local court’s right to run its calendar efficiently, the appellate panel weighed that obligation with the individual litigant’s right to have her day in court. The delays in her being able to secure an expert witness were ultimately out of Wright’s control because of medical reasons, the appellate court noted, and the trial court hadn’t issued an order compelling discovery or warning that dismissal was on the horizon. Wright also wasn’t trying to deceive anyone, the appellate court found.

The appellate court found this case is unlike past cases where delays and missed deadlines were egregious and the sole fault of the offending party.

“We do not mean to suggest or imply by our opinion that the timely observance of pre-trial deadlines is unimportant, only that when all factors are considered, the extent to which Wright failed to comply with several deadlines was not sufficiently onerous or egregious to justify striking her expert and dismissing her claims without warning,” Judge Nancy Vaidik wrote.

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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