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Court rules on tort claims and wrongful death

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The Indiana Supreme Court tackled the issue of the interaction of the statute of limitations provision under the state's Wrongful Death Act and the statute of limitations provision for an underlying substantive tort claim in two opinions released Dec. 24. In both opinions, the high court relied on its ruling in Ellenwine v. Farley, 846 N.E.2d 657, 666 (Ind. 2006).

In Therese Newkirk, personal representative of the estate of Martha O'Neal, deceased v. Bethlehem Woods Nursing and Rehabilitation Center, LLC, No. 90S05-0812-CV-168, the Supreme Court affirmed the trial court's grant of summary judgment in favor of Bethlehem Woods in the estate's complaint under the WDA after Martha O'Neal died. O'Neal went to Bethlehem Woods for rehab following surgery and was the victim of medical malpractice. She died in November 2001. More than two years after the medical negligence occurred, but within two years of her death, the estate filed the complaint alleging Bethlehem providing negligent medical care that led to O'Neal's death.

Citing Ellenwine, the Supreme Court ruled the wrongful death claim was required to be filed within two years of the malpractice. The provisions of the Medical Malpractice Act don't apply in this case because Bethlehem doesn't meet the applicable qualifications and the claim is subject to the provisions of the state's Professional Services Statute. Ellenwine still applies because the substantive tort claim underlying the wrongful death action is precisely the same as it was in the Ellenwine scenario, wrote Justice Frank Sullivan. If a death is caused by malpractice, the malpractice claim terminates at the patient's death and a wrongful death claim must be filed within two years of the occurrence of the malpractice. O'Neal's wrongful death claim should have been filed within two years of the occurrence of the malpractice since her death is alleged to have been caused by the malpractice, Justice Sullivan wrote.

In Technisand Inc. v. Jessie Melton, personal representative of the estate of Patty Melton, deceased, No. 30S01-0801-CV-28, the Supreme Court ruled Jessie Melton couldn't use the Indiana Products Liability Act's statute of limitations as an alternative to the statute of limitations within the WDA. Melton's wife, Patty, developed a form of leukemia and died in July 2002. Patty may have been exposed to a carcinogen at work through a resin-coated sand made by Technisand. In February 2005, Melton added Technisand as a defendant in his lawsuit against Patty's employer and another company.

The trial court denied Technisand's motion for summary judgment. The Indiana Court of Appeals held the PLA provided the relevant limitations period for Melton to file his claim against Technisand. However, since Patty died from personal injuries allegedly caused by Technisand, Melton's claim was a claim for wrongful death once Patty died, wrote Justice Sullivan. Again looking to Ellenwine, the high court reversed the denial of Technisand's motion for summary judgment.

The injuries forming the basis of Melton's substantive tort claim caused his wife's death and pursuant to Indiana's Survival Statute, her products liability claim against the company ended at her death, leaving only the WDA claim. The WDA requires an action be filed within two years of the decedent's date of death, and since Melton didn't bring the suit against Technisand within two years, his suit wasn't timely filed.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. 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!!!

  3. 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?

  4. 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?

  5. 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.

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