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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. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

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