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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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