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DTCI amicus makes impact in 2010

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james johnson Johnson

Although 2010 did not have the fireworks of the 2009 medical write-off cases, Defense Trial Counsel of Indiana has participated as amicus in several significant legal issues affecting the defense bar. It is involved in a certified question concerning the crash worthiness doctrine, and prepared a brief concerning whether failure to maintain medical records constitutes spoliation. Finally, the Amicus Committee is involved in two cases deciding whether plaintiffs in wrongful death cases are entitled to attorney fees. The Amicus Committee also welcomed a new member, Crystal Rowe of Kightlinger & Gray’s New Albany office.

Below are the 2010 cases.

Cases Decided at the Indiana Supreme Court:

Smith v. Champion Trucking Co., Inc., 925 N.E.2d 362 (Ind. 2010). This is a workers’ compensation case concerning I.C. § 22-3-2-13 and the termination of worker’s compensation liability of an employer and its insurer upon settlement of a third-party lawsuit obtained without consent of the employer. The court held that pursuant to the Worker’s Compensation Act, an employer’s worker’s compensation liability of an employee’s benefits terminate if the employee settles a claim against the third party for the same injury without first obtaining the employer’s consent. Rori Goldman and Ty Craver of Hill Fulwider McDowell Funk & Matthews wrote the amicus brief.

Indiana Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010). The court held that a father did not have a derivative claim under Indiana’s Medical Malpractice Act for the death of his son for emotional distress. Peter Pogue and Katherine Karres of Schultz and Pogue wrote the amicus brief.

Cases Decided by the Indiana Court of Appeals

Clarion Health Partners, Inc. v. Wagler, 925 N.E.2d 388 (Ind. Ct. App. 2010). The Court of Appeals found that there was no material issue of fact and reversed the trial court. It also found a nurse could not provide expert testimony on a physician’s standard of care. Peter Pogue and Katherine Karres of Schultz and Pogue wrote the amicus brief for DTCI.

Cases Pending at the Indiana Supreme Court

Nicholas Green v. Ford Motor Co., Certified Question from S.D. Ind. The issue is whether in a crash worthiness case alleging enhanced injuries under the Indiana Product Liability Act, the jury shall apportion fault to the person suffering physical harm when the alleged fault relates to the cause of the underlying accident. Ross Rudolph and James Godbold of Rudolph Fine Porter & Johnson prepared the amicus brief. Oral argument was held on Dec. 9, 2010.

Ashby and O’Brien v. Davidson, 930 N.E.2d 53 (Ind. Ct. App. 2010). The issue is whether a claims made policy of insurance requires notice by an insured prior to the expiration of the policy period. Don Kite of Dean-Webster Wright & Kite wrote the amicus brief. The court accepted transfer on Nov. 10, 2010.

Indiana Patients Compensation Fund v. Brown, 934 N.E.2d 168 (Ind. Ct. App. 2010). This case concerns whether the Indiana Adult Wrongful Death statute § 34-23-1-2 allows the recovery of attorney fees as damages. Robert Parker wrote the amicus brief.

Howard Regional Health Systems v. Gordon, 925 N.E.2d 453 (Ind. Ct. App. 2010). The issue is whether there is a spoliation cause of action for failing to comply with I.C. 16-39-7-1 against a healthcare provider who fails to maintain medical records. The amicus brief was written by Tom Bodkin of Bamberger Foreman Oswald & Hahn. The court granted transfer and conducted oral argument on Oct. 28, 2010.

Hematology-Oncology of Indiana, P.C. v. Fruits, 932 N.E.2d 698 (Ind. Ct. App. 2010). This case has been consolidated for oral argument purposes only with McCabe v. Comm’r, Ind. Dept. of Ins., 930 N.E.2d 1202 (Ind. Ct. App. 2010). The court denied consolidation with the Brown case listed above. The issue is whether plaintiffs are entitled to an award of attorney fees and expenses pursuant to the Adult Wrongful Death Act. Robert Parker prepared the DTCI amicus brief.

I would like to thank all the individuals and firms that supplied briefs in the above matters. This work is time consuming and challenging. The work of the brief writers is appreciated by everyone at DTCI.

Should anyone seek DTCI Amicus Committee’s involvement as a brief writer, do not hesitate to contact me. As usual, I speak for DTCI in expressing my thanks to the members of Amicus Committee: Michele Bryant (Bamberger Foreman Oswald & Hahn); Lucy Dollens (Frost Brown Todd); Michael Dugan (Dugan Voland & Meagher); Kelly Eskew (Cantrell Strenski & Mehringer); Daniel Glaven (Beckman Kelly & Smith); Phil Kalamaros (Hunt Suedhoff Kalamaros); Don Kite, Sr. (Dean-Webster Wright & Kite), and Crystal Rowe of (Kightlinger & Gray). Finally, I speak for the entire committee when I thank the DTCI Board of Directors and its members for their continued support of the Amicus Committee.•

__________

James D. Johnson is a partner in the Evansville firm of Rudolph Fine Porter & Johnson and chairs the DTCI Amicus Committee. He serves on the DTCI Board of Directors and has been elected the 2011 secretary of the association. He can be reached at jdj@rfpj.com. The opinions expressed in this column are the author’s.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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