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Judge sanctions Weinberger for noncooperation with insurer

Jennifer Nelson
September 17, 2012
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A federal judge in Hammond has entered a default against former ear, nose and throat doctor Mark Weinberger and other defendants for their noncooperation with his medical malpractice insurance company regarding hundreds of pending malpractice claims.

U.S. Judge Jon E. DeGuilio ordered the default against Weinberger, The Nose and Sinus Center LLC, The Merrillville Center for Advanced Surgery LLC, and Subspecialty Centers of America LLC Sept. 12 after considering whether to adopt Magistrate Judge Andrew Rodovich’s recommendation that default judgment be entered against the Weinberger defendants.

The Medical Assurance Company Inc. sought discovery sanctions against those defendants stemming from Weinberger’s constant refusal to answer questions during deposition. Weinberger repeatedly asserted the Fifth Amendment to all 344 questions, including those about his background and education. After a warning in 2011 from the court that refusal to provide substantive responses would result in severe sanctions, the Weinberger defendants said they would cooperate. However, the defendants continued to assert the Fifth Amendment to the amended discovery responses.

The defendants claimed they would answer questions after Weinberger’s criminal trial wrapped up. He recently pleaded guilty to 22 counts. His plea is pending before Chief Judge Philip Simon, with sentencing set for Oct. 12.

The Indiana Patient’s Compensation Fund and Weinberger’s former patients who are pursuing malpractice claims against him – as well as the Weinberger defendants – objected to Rodovich’s report and recommendation. The non-Weinberger defendants believe the entry of default judgment would prejudice them more than Weinberger, and they sought clarification that the default judgment wouldn’t terminate the duty to defend or for the judge to instead impose lesser sanctions.

DeGuilio decided to impose lesser sanctions. He noted that the intent of the Weinberger defendants’ conduct so far has been to delay litigation rather than to assert constitutional privilege in good faith. While Weinberger has the right to assert the privilege and refuse some testimony, he has yet to provide a justification for a blanket claim of privilege, even on questions that have no bearing on the criminal charges, DeGuilio wrote.

The sanction will prevent them from participating in the case in any way “by treating them as if they had never appeared at all, and would also be consistent with other enumerated sanctions, such as ‘prohibiting the disobedient party from supporting or opposing designated claims or defense, or from introducing designated matters in evidence,’” he wrote.  

DeGuilio also ordered the Weinberger defendants, their attorney or both to pay reasonable expenses, including attorney fees caused by their failure to comply with the court’s discovery orders.

That Weinberger has pleaded guilty does not justify relief from the sanctions, he wrote, as it doesn’t make up for the repeated bad faith misuse of the Fifth Amendment, and the defendants have already once misrepresented their intent to provide discovery responses. There is also a chance that Simon will not accept the plea agreement and the criminal proceedings will continue beyond October.

The order came in The Medical Assurance Company Inc. v. Mark S. Weinberger, M.D., et al., 4:06-CV-117.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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