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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. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  2. Low energy. Next!

  3. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  4. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  5. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

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