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State not allowed to intervene in Weinberger case

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Finding the law does not allow the state to become a party to otherwise private litigation at any stage of the proceedings, the Indiana Court of Appeals reversed its prior order granting the state’s motion to intervene in a settlement reached between former doctor Mark Weinberger and the estate of a patient.

In Mark S. Weinberger, M.D. v. Estate of Phyllis R. Barnes, Deceased, By Peggy Hood as Personal Representative, Joe Clinkenbeard, P.A., et al., 45A04-1107-CT-369, Phyllis Barnes filed a medical malpractice complaint against the nose, throat and ear doctor after discovering he performed an unnecessary surgery on her sinuses. After getting a second opinion, she learned she had advanced cancer, which could have been discovered at the time she saw Weinberger. After her death, her estate took over her claim.

A jury awarded $3 million in compensatory damages and $10 million in punitive damages, which was later reduced to $1.25 million in compensatory damages and $9 million in punitive damages. The parties then entered into a settlement agreement in which Weinberger agreed to pay $1.72 million and waived the estate’s interest in the punitive damages award.

The state sought to intervene because it would be entitled to 75 percent – $6.75 million – of the punitive damages award under state law.

The Court of Appeals concluded that I.C. 34-51-3-6 does not give the state power to intervene in otherwise private litigation, ostensibly to protect its interest in a punitive damage award. Because the only proper parties to the appeal have amicably resolved their dispute, the COA dismissed as there is nothing left for the judges to decide. Upon petition by the parties, the trial court shall vacate the damages judgment against Weinberger.

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  • Politics before practicality
    Nice job, AG's office. Now you have case law shutting you out of the settlement process entirely. All because you would not reasonably settle the Weinberger case. This is what happens when you put politics ahead of practicality. After all, it's not like Weinberger can pay you from the penitentiary. And, insurance does not cover punitive damages. What a silly position to have taken that resulted in this decision that you're sure not to like.

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  1. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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