ILNews

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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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