ILNews

Judge sanctions Weinberger for noncooperation with insurer

Jennifer Nelson
September 17, 2012
Back to TopCommentsE-mailPrintBookmark and Share

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.

 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  2. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  3. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

  4. My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake

  5. From the perspective of a practicing attorney, it sounds like this masters degree in law for non-attorneys will be useless to anyone who gets it. "However, Ted Waggoner, chair of the ISBA’s Legal Education Conclave, sees the potential for the degree program to actually help attorneys do their jobs better. He pointed to his practice at Peterson Waggoner & Perkins LLP in Rochester and how some clients ask their attorneys to do work, such as filling out insurance forms, that they could do themselves. Waggoner believes the individuals with the legal master’s degrees could do the routine, mundane business thus freeing the lawyers to do the substantive legal work." That is simply insulting to suggest that someone with a masters degree would work in a role that is subpar to even an administrative assistant. Even someone with just a certificate or associate's degree in paralegal studies would be overqualified to sit around helping clients fill out forms. Anyone who has a business background that they think would be enhanced by having a legal background will just go to law school, or get an MBA (which typically includes a business law class that gives a generic, broad overview of legal concepts). No business-savvy person would ever seriously consider this ridiculous master of law for non-lawyers degree. It reeks of desperation. The only people I see getting it are the ones who did not get into law school, who see the degree as something to add to their transcript in hopes of getting into a JD program down the road.

ADVERTISEMENT