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Disgraced 'Nose Doctor' keeping lawyers busy

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Authorities found fugitive Indiana doctor Mark Weinberger camped in deep snow on a mountain in the Italian Alps in December 2009. Now attorneys are digging through the resulting avalanche of criminal charges and more than 350 malpractice lawsuits.

The complexities and volume of the work has tested the resources of two firms handling the bulk of the action and given young and veteran malpractice attorneys unprecedented opportunities to hone their jury trial skills.
 

weinberger-mark-mug.jpg Dr. Mark Weinberger vanished from a successful ear, nose and throat practice in 2004 and was found in Italy five years later.

Weinberger once was known as the jet-setting “Nose Doctor” of Merrillville, but he’s since been dubbed “America’s worst doctor” by some news organizations. Weinberger isn’t saying why he abandoned his thriving ear, nose and throat practice, according to attorneys who’ve deposed him for the first trials involving the malpractice suits. They say he isn’t saying anything.

“I would say of the thousands of questions asked of him, the only one he answered is ‘State your name,’” said Barry Rooth, a name partner of the Merrillville law firm Theodoros & Rooth. Weinberger takes the Fifth on subsequent questions such as where he went to school, attorneys who’ve deposed him said.

Weinberger’s defense attorney James Hough, of Merrillville, responded to requests for comment with an email. “At the present time, as these cases continue to be litigated, I believe it would be better for me to resist discussing the cases or our procedure for defending them.”

Rooth said that in 2004, he received referrals about potential malpractice suits involving Weinberger patients. Rooth suspected Weinberger might be performing unnecessary surgeries or outmoded ones, including drilling holes in patients’ sinuses, that might have worsened their conditions. Rooth said Weinberger disappeared a few months after the law firm requested additional patient records.


rooth-phil-mug.jpg Rooth

While a fugitive, Weinberger was charged with 22 federal counts of insurance fraud alleging that he billed his malpractice carrier for surgeries that he didn’t perform totaling about $350,000. He pleaded guilty and agreed to serve a four-year sentence, but a federal judge rejected the deal.

Meanwhile, Weinberger’s malpractice carrier has sued him, claiming he was uncooperative and his actions void their duty to defend. Weinberger in turn sued the carrier, claiming bad faith. Still to be untangled in the federal courts in northern Indiana is who will pay mounting judgments. The Indiana Patient’s Compensation Fund, which pays malpractice judgments up to $1 million above the insurance cap of $250,000, also is involved in the Weinberger cases in federal court.

Ultimately, Cohen & Malad in Indianapolis joined as co-counsel with Theodoros & Rooth as the malpractice claims poured in. Together, they are representing 297 claims against Weinberger, only two of which have been settled, both involving child patients. Seven have gone to trial – all with judgments for the plaintiffs – and 288 more cases are pending. The remainder of cases filed to date are represented by law firm Kenneth J. Allen & Assoc.

Plaintiffs have won judgments ranging from $40,000 to $390,000 and the average is about $177,000, according to Cohen & Malad partner David Allen.

‘Piece of Indiana history’

The load of Weinberger cases has given Cohen & Malad’s young lawyers rare experience. “Because of the number of cases,” said partner David Cutshaw, “young lawyers have to get in there and mix it up, and I think that’s good.”

Attorney Kelley Johnson is in her seventh year at Cohen & Malad. With her concentration in business litigation, she’d never had to present to a jury until the firm started handling the Weinberger cases. She’s been second chair in some trials so far, and she’s on the docket as lead counsel for two trials scheduled next year.

“No matter how long somebody practices, to get up and really think on your feet, defending those hearsay objections, willing the jury or getting the jury to understand your case and be on your side, that’s experience that’s hard to come by these days,” Johnson said.

Rarer still is the unprecedented scope of the body of litigation. “This is a piece of Indiana history,” she said. “To be able to work on this was just an absolute for me.”

Rooth, an attorney for about 29 years, said the Weinberger cases have sharpened his courtroom ability.

Because the defendant has been uncooperative, malpractice attorneys approach every case with the expectation that they will argue it before a jury.

Rooth usually tries one or two jury trials a year. He said he can expect to try 20 Weinberger cases in 2013.

“I’m afforded the opportunity to practice the art of litigation,” Rooth said. “The word I have for this is gratitude; gratitude to practice my art.” He’s been able to achieve a level of proficiency in preparing and trying cases that he would not have appearing on a more sporadic basis.

It takes a team

At Cohen & Malad, Allen, Cutshaw and Johnson work full time on Weinberger cases, and at least one other attorney works part time on them, Allen said. A full-time nurse assists with preparation and research, as do two paralegals.

At Theodoros & Rooth, Rooth is assisted by partner Perry Theodoros, attorney Holly Wojcik, three paralegals and two assistants who primarily are responsible for handling Weinberger cases.

About 200 cases are in various stages of the medical review board process. About 70 are in court with trial dates set or awaiting trial setting, Cutshaw said.

Allen said communication between the firms and assignments of specific duties and comprehensive case management have been a key part of dealing with the caseload.

“It’s amazing the amount of correspondence, pleadings, conferences with clients, depositions, and submissions that are written and submitted to the medical review panel,” Johnson said. “We have deadlines literally every day.”

And while each case against Weinberger has “similar scenes and frames,” as Rooth put it, each also has its own set of facts, and attorneys must prepare accordingly.

But the cases also have elements of repetition: deposing Weinberger, who takes the Fifth; and deposing typically the same small circle of expert defense witnesses.

“We have been mindful of rotating attorneys through those depositions so the same person isn’t always taking depositions or going to trial just to avoid some of those burnout issues,” Allen said.

Looking ahead

Attorneys said they hope global resolution of the Weinberger cases is possible, and some developments suggest such an outcome might be achievable.

U.S. Magistrate Judge Andrew Rodovich in the Lafayette Division of the U.S. District Court for the Northern District of Indiana in April recommended a special master be appointed to deal with the pending cases, and a ruling is anticipated.

The special master was requested on behalf of Indiana Department of Insurance Commissioner Stephen Robertson. A special master would have powers from the court to expedite resolution of the outstanding Weinberger cases through mediation. The patient compensation fund says that without a special master, disposing of the cases could take five to 13 years if all went to trial.

“The commissioner would really like to see all these cases resolved as quickly as possible,” said Tina Korty, general counsel for the Indiana Department of Insurance, which administers the fund.

It’s a sentiment the attorneys share.

“I think everybody should seriously take off the boxing gloves and resolve this and settle these cases,” Cutshaw said. “There’s a lot of money being paid to defend these cases.”•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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