2016 Defense Trial Counsel of Indiana amicus report

November 30, 2016

By Donald B. Kite Sr.

In 2016, the Defense Trial Counsel of Indiana’s Amicus Committee participated in a number of interesting appeals. The cases DTCI became involved in this year, as in past years, pertain to a variety of issues that are of significant interest to the defense bar.

While DTCI does not become involved as amicus in each case in which its involvement is requested, the Amicus Committee (and the board) carefully considers each request and values the opportunity to work with defense counsel throughout Indiana on the variety of issues that are presented on appeal.

By court and in reverse chronological order, the following decisions were handed down this past year in cases in which DTCI has participated as amicus.

Indiana Supreme Court cases

On Oct. 26, 2016, in April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle’s Sports Bar and Grill, Inc., 27A02-1407-CT-526, a unanimous Indiana Supreme Court (with Justice Rucker writing the opinion) handed down its opinion affirming the trial court’s grant of summary judgment in the defendant’s favor (and therefore reversing the Indiana Court of Appeals’ decision) on the ground that the shooting, which had occurred in the defendant bar, was not foreseeable as a matter of law. Goodwin, which involved the accidental shooting of three individuals at a bar in Marion, Indiana, addresses the issue of foreseeability in the context of a landowner’s duty to protect against criminal conduct that occurs on the landowner’s property. DTCI’s amicus brief in support of the defendant’s petition to transfer was drafted by Quarles & Brady LLP partner Lucy Dollens and associate Jacob Bradley, both of Indianapolis. Although DTCI did not participate in the Dec. 10, 2015, oral argument in the Indiana Supreme Court, which argument occurred after transfer was granted, DTCI attorneys (Dollens, Long and Kite) assisted in preparing defense counsel for the oral argument. Quoting DTCI’s amicus brief for the proposition that “significant confusion still exists in lower Indiana courts” on whether “reasonable foreseeability is a part of the duty analysis . . . .[,]” the Goodwin Court reasoned that “[t]he very scope of the duty a landlord owes its invitees — to take reasonable precautions to protect invitees from foreseeable criminal acts — necessarily calls for the court’s evaluation of foreseeability. In other words, the court must decide — in the context of duty — whether the criminal act is foreseeable.” The court went on to conclude that “although bars can often set the stage for rowdy behavior, we do not believe that bar owners routinely contemplate that one bar patron might suddenly shoot another.” Addressing the question of foreseeability as a matter of law, the court held that “a shooting inside a neighborhood bar is not foreseeable as a matter of law.”

On Oct. 21, 2016, in Patchett v. Lee, a unanimous Indiana Supreme Court (with Justice Slaughter writing the opinion and Justices Rucker and David concurring in the result in a separate opinion) held, in a case of tremendous importance to the bar, that the trial court had (1) misconstrued the court’s 2009 decision in Stanley v. Walker by reasoning that Stanley applied only to discounts negotiated at arm’s length between a medical provider and an insurance company; and (2) abused its discretion by excluding the reduced HIP reimbursements under Indiana Rule of Evidence 403. The Supreme Court concluded that Stanley “applies equally to reimbursements by government payers[,]” noting that “the medical provider has agreed to accept the reduced reimbursement as full payment for services rendered” which means that “the reduced amount is thus a probative, relevant measure of the reasonable value of the plaintiff’s medical care that the factfinder should consider.” A number of entities authored amicus briefs in support of and in opposition to transfer in Patchett including DTCI, ITLA, the Indiana Health Care Association, the Indiana Legal Foundation, and the American Tort Reform Association. The case was well argued by counsel on both sides. DTCI’s amicus brief in support of defense counsel’s petition to transfer was authored by Schultz & Pogue LLP partner Jon M. Pinnick and associates Angela J. Della Rocco and Michael F. Mullen. The undersigned, participating with a panel of attorneys from Bingham Greenebaum Doll and several other firms/entities, assisted attorney Karl Mulvaney by mooting the case before the oral argument.

On April 12, 2016, the Indiana Supreme Court denied transfer in Sharpsville Community Ambulance, Inc. v. Gilbert. Four months earlier (on Dec. 23, 2015), which was after the 2015 DTCI Amicus Committee Report was published in the Indiana Lawyer, the Court of Appeals had handed down its unanimous decision rejecting the argument in Sharpsville Community Ambulance, Inc. which had been advanced by defense counsel (and supported by DTCI in an amicus brief written by the undersigned). The central issue in Sharpsville Community Ambulance was whether Indiana Tort Claims Act (as amended) and our Supreme Court’s holding in Ayres v. Indian Heights Volunteer Fire Dept., Inc., 493 N.E.2d 1235 (Ind. 1986), applied to privately owned ambulance companies which provide(d) emergency services. DTCI’s amicus brief took the position that the provision of ambulance services by an ambulance company that responded solely to 911 calls fulfilled an important governmental function entitling the ambulance company to the protection of the Act. While the Court of Appeals complimented counsel on their “outstanding written and oral advocacy[,]” the Court of Appeals ultimately rejected the argument that was asserted in the briefs filed by Skiles DeTrude attorneys Paul Fulkerson and Jarryd Anglin and DTCI.

Indiana Court of Appeals cases

On Oct. 4, 2016, the Indiana Court of Appeals handed down its decision in McKeen, M.D. v. Turner, 53A05-1511-CT-02047, holding, contrary to med-mal defense counsel Mike O’Neill and DTCI’s argument that the plaintiff’s allegations at trial had not been presented to the medical review panel, that “a medical malpractice plaintiff need only present the following to a medical review panel: (1) a proposed complaint that encompasses the theories of malpractice alleged in the subsequent litigation sufficiently to satisfy our notice pleading requirements; and (2) evidence relating to the theories of alleged malpractice that the plaintiff seeks to raise during the subsequent litigation.” At issue in McKeen was/is the application of the Court of Appeals’ 2011 decision in K.D. and Campbell v. Chambers, 951 N.E.2d 855, which held that a plaintiff cannot raise new allegations of negligence at trial if the allegations were not first presented to the medical review panel. DTCI’s brief in support of the position taken by defense counsel Mike O’Neill and Nathan D. Hansen, both of O’Neill McFadden & Willett LLP, was authored by Crystal Rowe of Kightlinger & Gray in New Albany. Defense counsel has timely filed a petition to transfer.

Cases awaiting decisions by the Supreme Court and Court of Appeals

In Llobet v. Gutierrez, 45A04-1605-CT-01133, DTCI’s amicus brief was authored by Amicus Committee member Crystal Rowe, who also authored DTCI’s amicus brief in McKeen. Like McKeen, the Llobet case hinges on the Court of Appeals’ 2011 decision in K.D. and Campbell v. Chambers, and the issue of whether a plaintiff may raise new allegations of negligence at trial — meaning allegations were not first presented to the medical review panel. As of the writing of this article, oral argument has not yet been scheduled.

In J.B. Hunt Transport, Inc. v. Guardianship of Kristen Zak, 45A03-1506-CT-00670, DTCI’s amicus brief in support of the defense counsel’s petition to transfer was drafted by longtime Amicus Committee member Phil Kalamaros. DTCI’s amicus brief, which was filed on Sept. 21, 2016, focused on the scope of the duty owed by Indiana drivers on our roadways, the law of proximate cause, the temporal connection necessary to constitute proximate cause (rather than a remote cause), and the continued importance of analyzing intervening and superseding cause.

C.S. v. Aegis Women’s Healthcare, P.C., 53A01-1607-CT-01657, is the third appeal DTCI has elected to participate in during calendar year 2016 that involves the issue whether new allegations of negligence or — more specifically in this case — allegations based on evidence that was not presented to the medical review panel, may be raised at trial if they were not first presented to the Medical Review Panel. DTCI’s amicus brief in the case is the third amicus brief filed by Amicus Committee member Crystal Rowe that addresses issues arising from the interpretation of K.D. and Campbell v. Chambers.

Finally, in John Green v. Stephen Robertson, Commissioner, Indiana Department of Insurance, 49A02-1509-MI-01487, DTCI’s amicus brief in support of the commissioner of the Indiana Department of Insurance’s opposition to transfer was submitted on Nov. 9, 2016. DTCI’s amicus brief, which focuses on the issue of the procedure by which damages are determined in a medical malpractice case post-settlement with the defendant health care provider, was drafted by attorney Michael Smith of the Indianapolis law firm of Wooden McLaughlin.

Thank you notes

The Amicus Committee appreciates and thanks the attorneys (and their firms) who devote their time and talents to the process of authoring amicus briefs and to working with the attorneys for the parties which DTCI supports. In addition, the undersigned thanks the members of the Amicus Committee for their diligence and continued commitment to our work. DTCI’s Amicus Committee consists of: Vice Chairperson Lucy R. Dollens (Quarles & Brady); member Michele S. Bryant (Wooden McLaughlin); member Michael P. Dugan (Dugan & Voland); member Phil Kalamaros (Hunt Suedhoff Kalamaros); member Peter H. Pogue (Schultz & Pogue); member Crystal Rowe (Kightlinger & Gray); member Jaime Oss (Huelat Mack & Kreppein); member Alexandra Deeley (Berry Plastics Corporation); and yours truly.

At the conclusion of the calendar year 2016, as their current terms are expiring, Amicus Committee members Michele S. Bryant (Evansville) and Michael P. Dugan (Indianapolis) will retire from the committee. Peter Pogue will remain on the committee for a second term. Michele has been a committee member since approximately 2008 and Michael has been a member since approximately 2001-2003. The Amicus Committee appreciates Michele and Michael having given so generously of their time and thanks them for their many contributions to the committee’s discussions and recommendations to the board over the years. We wish them well!

The Amicus Committee welcomes two new members, Jenny R. Buchheit (Ice Miller, Indianapolis) and Nabeela Virjee (Indianapolis). Incoming Amicus Committee Chair Dollens, in consultation with the board, will fill the remaining vacancy on the committee in the near future.

As the retiring chair of the Amicus Committee, I want to thank the talented past, current and incoming members of the committee, the talented folks who have written amicus briefs for DTCI through the years (not all of whom have been members of the Amicus Committee), the individuals who have served as president of DTCI during the time I have been Amicus Committee Chair — in particular Tom Schultz (who encouraged me to become involved with the Amicus Committee) and Jim Johnson (who was the Amicus Chair when I became an Amicus Committee member) — for their encouragement and support through the years, and DTCI’s talented and hard-working board of directors. DTCI is a wonderful organization which does a great deal to support its members. I have sincerely enjoyed serving as its Amicus Committee Chair for the past five years.

Defense counsel requesting DTCI’s participation as amicus in their appeal through the end of calendar year 2016 should not hesitate to contact me (don@wuertzlaw.com or 317-697-5046) to discuss requests for amicus assistance. Please note that it is always best to contact DTCI as early as possible in the appellate process so we can discuss the information that will be useful to the Amicus Committee and DTCI’s board in making the decision regarding whether DTCI will participate as amicus in your case.

If you wish to request DTCI’s participation as amicus in your appeal after Dec. 31, please contact incoming Amicus Committee Chair Lucy Dollens (Lucy.Dollens@quarles.com or 317-399-2815). Lucy, who is currently the Amicus Committee’s vice-chair, has been a valuable and hardworking member of the Amicus Committee for several years and will take over as chair on Jan. 1.•


Donald B. Kite Sr., of counsel with The Wuertz Law Office LLC in Indianapolis, is the retiring chair of DTCI’s Amicus Committee. The opinions expressed in this article are those of the author.