Dollens: DTCI Amicus activity: Summary of key cases in 2021

This year, the Defense Trial Counsel of Indiana has participated as amicus in a variety of issues of significant interest to the defense bar. Although DTCI is unable to become involved in every case in which its participation is requested, the amicus committee and the board of directors carefully consider each request and welcome the chance to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts.

Arrendale v. Am. Imaging & MRI, LLC, et al.

This case addresses the issue of whether the Indiana Supreme Court’s holding in Sword v. NKC Hospitals, 714 N.E.2d 142 (Ind. 1999), and the doctrine of apparent or ostensible agency should be extended to apply to nonhospital health care facilities or medical centers, including independent facilities that have no relationship to or with a hospital.

Peter Pogue of Schultz & Pogue LLP and Beth Behrens, who was with Schultz & Pogue at the time the time but is now with Barnes & Thornburg LLP, authored the amicus brief on behalf of DTCI in support of the defense. In its amicus brief, DTCI argued for the court to decline expanding the doctrine of apparent agency established in Sword to nonhospital facilities.

On May 14, the Court of Appeals of Indiana held that Sword v. NKC Hospitals applies to a nonhospital facility — and specifically, a diagnostic imaging center (i.e., the defendant). Arrendale v. Am. Imaging & MRI, LLC, 171 N.E.3d 1004, 1009 (Ind. Ct. App. 2021). While the Sword court limited its holding to the hospital context, the Court of Appeals considered its own holding to constitute a natural progression of Sword that need not just be applied prospectively. Id.

Defense counsel appealed the decision, and the Indiana Supreme Court granted transfer on Aug. 5, thereby vacating the decision of the Court of Appeals. Id., 172 N.E. 3d 274. The Supreme Court conducted oral argument on Sept. 22, and the case remains pending.

Gladstone v. W. Bend Mut. Ins. Co.

This case addresses the issue of whether to admit medical expense evidence when a plaintiff does not seek special damages and instead seeks only general damages for pain and suffering. Keith Mundrick and Paul Mackowski of SmithAmundsen LLC authored the amicus brief on behalf of DTCI.

On March 24, the Court of Appeals agreed with the position advanced in DTCI’s amicus brief and declined to adopt a bright-line rule proposed by plaintiff-appellant that medical bills are never relevant to the question of pain and suffering if the plaintiff is not seeking medical expenses in the case. Gladstone v. W. Bend Mut. Ins. Co., 166 N.E.3d 362, 368-369 (Ind. Ct. App. 2021), trans. denied, 171 N.E.3d 609 (Ind. 2021). Instead, the court held that even if a plaintiff elects not to introduce evidence of their medical specials, a trial court retains discretion to permit defendants to introduce billed amounts and reductions into evidence. Id. In this case, the court held that the defendant established that plaintiff-appellant’s medical bills were relevant to pain and suffering damages and should be admitted. Id. The court also concluded that plaintiff-appellant failed to establish that the danger of unfair prejudice or juror confusion substantially outweighed the relevance of his medical bills in this case. Id. at 369.

Although plaintiff-appellant sought review by the Indiana Supreme Court, the court denied transfer on June 24. Id., 171 N.E. 3d 609 (Ind. 2021).

Blackford v. Welborn Clinic

This case addresses what qualifies as a statute of repose and whether such a statute can be equitably tolled due to active or constructive fraud. Lucy Dollens and Michael Couch of Quarles & Brady LLP authored the amicus brief on behalf of DTCI, arguing that the Indiana Business Trust Act should be interpreted consistently with its plain meaning, and that the judicially created exception allowing constructive fraud to toll the IBTA’s five-year bar to claims should be rejected due to detrimental consequences.

Although the Court of Appeals issued an opinion in favor of the patient-plaintiff, on Aug. 31, the Indiana Supreme Court agreed with arguments advanced in DTCI’s amicus brief and reinstated judgment in favor of the defendant-health clinic barring patient-plaintiff’s claims. Blackford v. Welborn Clinic, 172 N.E.3d 1219, 1231 (Ind. 2021). The court held that the IBTA’s five-year bar to claims constitutes a statute of repose and, as such, fraudulent concealment may not extend the time in which to file a claim. Id. at 1228. The court further held that even if this five-year limitation period was subject to tolling, patient-plaintiff’s claim would not succeed because the clinic’s constructive fraud precludes equitable relief or tolling. Id. at 1229-31.

Thanks to amicus committee members, brief authors, board

DTCI and the amicus committee appreciate and thank attorneys (and their firms/companies) who devote their time and talents to drafting requests for amicus involvement and authoring amicus briefs on behalf of DTCI. Thank you to the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure that the voice of the Indiana defense bar is heard in Indiana’s appellate courts: Jenny Buchheit (Ice Miller LLP); Phil Kalamaros (attorney/mediator/arbitrator/consultant); Keith Mundrick (SmithAmundsen LLC); Bob Palmer (May Oberfell Lorber); Peter Pogue (Schultz & Pogue LLP); Crystal Rowe (Kightlinger & Gray LLP); and Cathleen Shrader (Barrett McNagny LLP).

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to send the request as early in the appellate process as possible to [email protected] or 317-399-2815. The DTCI Amicus Committee and the board of directors welcome and endeavor to carefully consider each request.•

• Lucy Dollens, a commercial litigator and appellate practitioner, is partner in the Indianapolis office of Quarles & Brady LLP, chairs the DTCI Amicus Committee and is a member of the DTCI Board of Directors. Opinions expressed are those of the author.