ILNews

DTCI amicus makes impact in 2010

Back to TopCommentsE-mailPrintBookmark and Share
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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

  2. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

ADVERTISEMENT