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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. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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