Congratulations to attorney Tony Patterson for being selected by his peers to be included in the 2011 edition of The Best Lawyers in America in the specialty of personal injury litigation. Selection to this list is based on evaluations by other lawyers across the country.
Law.com recently posted a short but helpful article regarding tax information relating to plaintiffs. Click this link to read "5 Things Every Plaintiffs Attorney Shiould Know About Tax Law."
In Rieth-Riley v. Gibson et al., 923 N.E.2d 472 (Ind. Ct. App. 2010), the Indiana Court of Appeals held the trial court erred when it applied the discovery rule to toll the statute of limitations for injury victim to file his amended complaint. The injury victim was involved in a motor vehicle accident and brought suit against the other driver. Through discovery and after the two-year statute of limitations had run, plaintiff found out the driver was working at the time of accident. He then amended his complaint to add the employer arguing the discovery rule tolled the statute of limitations.
In Rieth-Riley v. Gibson et al., 923 N.E.2d 472 (Ind. Ct. App. 2010), the Indiana Court of Appeals held the trial court erred when it applied the discovery rule to toll the statute of limitations for the injury victim to file his amended complaint. The injury victim was involved in a motor vehicle accident and brought suit against the other driver. Through discovery and after the two-year statute of limitations had run, plaintiff found out the driver was working at the time of accident. He then amended his complaint to add the employer arguing the discovery rule tolled the statute of limitations.
Under most circumstances, accident victims who are injured receive medical care as a result of these injuries. When obtaining that medical care, it is recommended that accident victims use all available resources to pay for that medical care. This would include submitting bills to their health insurance company, as well as to their own automobile insurance company if they have medical payments coverage.
It is important to remember that accident victims who receive the medical care are responsible for making sure their bills are paid, even if the treatment was caused by someone else’s fault. If the accident victim obtains a settlement or recovery from the at fault party, the injured victim’s insurance company may be entitled to reimbursement of the medical bills it paid on that person’s behalf. However, it is in the accident victim’s best interests to use all available insurance to pay their bills as they are incurred, including their own health insurance.
If an accident victim was operating a motor vehicle without a valid driver’s license at the time of their motor vehicle accident, they will likely receive a ticket and can be arrested in some circumstances. However, this does not mean they are not entitled to pursue a claim for their injuries.
Under most circumstances, if an injury victim is involved in an accident and suffers injury as a result of someone else’s negligence or fault, they are likely entitled to bring a claim for those injuries, even if they did not have a valid driver’s license at the time of the accident.
In Smith v. Champion Trucking Company, Inc., No. 93S02-0906-EX-276 (April 15, 2010), in a 5-0 decision, the Indiana Supreme Court held "an employer's worker's compensation liability for an employee's benefits terminates if the employee settles a claim against a third party for the same injury without first obtaining the employer's consent to the settlement." In reaching its holding, the Court relied on what is known as the "absolute bar" provision found in Paragraph 2 of I.C. Section 22-3-2-13.
In Smith, employee truck driver was injured by a third-party motorist. He then received worker's compensation benefits for his medical expenses from his employer. Following his departure from the trucking company, the employee filed an adjustment of his worker's compensation claim to receive benefits from his former employer in the form of additional medical expenses and for a permanent impairment.
Around this time, employee filed a lawsuit against the third-party. His attorney notified the employer of this lawsuit and the employer responded by stating he was entitled to a lien on any settlement proceeds. Employee ultimately settled the third-party lawsuit for $10,342. At that time, employee's lawyer paid the employer back out of the settlement for approximately $3,200 in medical expenses that the employer had paid. Subsequent to this, the employee received a 19% potential permanent impairment rating, which would entitle him to approximately $26,500 in additional worker's compensation benefits to be paid by his former employer.
In Sibbing v. Cave, the Indiana Supreme Court ("ISC") recently affirmed the trial court's decision to strike portions of the defense expert's videotape deposition testimony which challenged the medical necessity of some of the plaintiff's medical treatment she received as a result of a motor vehicle accident. Sibbing v. Cave, No. 49S02-0906-CV-00275, 2010 Ind. LEXIS 123 (March 4, 2010).
The defense expert testified that the nerve conduction studies and "passive care" treatment provided to the plaintiff four or more weeks after the accident was unnecessary. Defendant unsuccessfully argued a party can only recover damages for medical expenses that he/she proves are both reasonable and necessary. In reaching its holding, the ISC stated that defendant did "not assert that such treatment lacks causation in fact, that is, that plaintiff failed to establish that, but for the collision, the challenged treatment would not have occurred." Instead, the defendant attempted to use their expert's testimony to dispute "the medical judgment of the plaintiff's medical providers in choosing to administer the questioned studies and treatment," which "[defendant] may not do."
Super Lawyers magazine recently released its 2010 list of attorneys to be recognized in Indiana. Parr Richey Obremskey Frandsen & Patterson is proud to have six attorneys from its office recognized on this prestigious list. Attorneys Pete Obremskey, Paul Kruse and Tony Patterson were selected as 2010 Indiana Super Lawyers based on their excellence in representing personal injury victims. Parr Richey attorney Kent Frandsen was also selected as a 2010 Indiana Super Lawyer for the outstanding representation he has provided as a business litigator, while Larry J. Wallace and Jeremy Fetty were recognized as a 2010 Indiana Super Lawyer and Rising Star in the utilities practice area, respectively.
Super Lawyer candidates are evaluated based on a number of things, including verdicts, settlements and experience. The Super Lawyers list is limited to only 5% of the attorneys within their jurisdiction. Parr Richey has been represented on the Indiana Super Lawyers list by at least one of its attorneys every year since its inception.
In Spar v. Cha, M.D., No. 45S05-0906-CV-273 (Ind. 2009), plaintiff patient brought a medical malpractice claim against defendant doctor after the patient suffered complications and infections following laparoscopic surgery. The Indiana Supreme Court (“ISC”) held, in part, that the defense of incurred risk (assumption of risk) was not and could not be a defense to plaintiff patient’s lack of informed consent claim. In echoing the Indiana Court of Appeals prior decision in this case, the ISC explained that the defense of incurred risk has little to no applicability as a defense to a lack of informed consent claim or a claim of negligent performance of a medical procedure. In Spar, the trial court instructed the jury on the defense of incurred risk. The ISC concluded it was error for the trial court to do so, and it remanded the case for a new trial.
Continue reading "Med Mal - Cases to Know " »
The New York Times recently wrote an article about an Oklahoma woman who has filed a lawsuit against a major cellphone company. The woman's mother was killed in a motor vehicle accident last year when a pickup truck crashed into the mother's car. At the time of the collision, the driver of the pickup truck was using his cellphone and later explained to the police he had become distracted by talking on the cellphone, which caused him to run a red light causing the collision.
Based on the article, it appears the cellphone company involved is Sprint Nextel. The daughter is arguing in her claim that Sprint Nextel should have foreseen the danger causing her mother's death and provided adequate warnings to prevent the harm. The article reports this to be one of only a handful of such cases ever filed.
Indiana courts have ruled on a similar case. In Williams v. Cingular Wireless, a driver was injured in a two-car motor vehicle accident. 809 N.E.2d 473 (Ind. Ct. App. 2004), transfer denied. At the time of the collision, the other driver involved was talking on her cellphone serviced by Cingular Wireless.
IU-Indy law Professor Eleanor Kinney recently appeared on ABC's Good Morning America to weigh-in on the recent national debate surrounding patient care and medical malpractice reform. She was joined by U of Penn Professor Tom Baker who authored the book The Medical Malpractice Myth.
Click here to see a video of the discussion.
Parr Richey partner Paul Kruse obtained a jury verdict for his client for $75,000 in a trial held this month in Marion County, Indiana. Our client was a 54 year old dump truck driver whose vehicle was overturned when he was cut off by a driver insured by Allstate Insurance. Our client suffered neck and shoulder injuries, and had permanent pain and lost range of motion after therapy and exercise failed to resolve the injuries.
Allstate Insurance only offered $10,000 before trial to settle the matter, despite healthcare expenses and lost wages in excess of $14,000. Allstate admitted fault one week before trial and elected not to have the defendant driver appear at trial.
Of note in the trial was that plaintiff's healthcare was provided by a physician assistant (PA). Physician assistants are often utilized in busy medical practices and are allowed to examine, treat and prescribe healthcare, including prescription medication, under the supervision of a medical doctor. PAs have postgraduate schooling in medicine, although they do not participate in clinical training and do not receive a doctorate degree. We used the PA to testify in court regarding our client's condition and prognosis for the future and chose not to have a medical doctor testify. After the trial, jurors said they had no concern about the credibility of the PA, and several acknowledged that they had seen PAs for their own healthcare.
Jury trials for damages for personal injuries are difficult, especially in a political climate in which insurance companies try to poison public perception about lawsuits and claims. But we are lucky to have a constituion that provides for a trial by our peers in resolving civil disputes.
With police, schools and employers all utilizing Facebook as a resource to discover information about people, it is no surprise insurance adjusters are following suit. MSNBC.com posted an article by the Associated Press reporting that a woman lost her long-term sick leave benefits being paid an insurance company after one of the company's representatives discovered pictures of her in good health at a night club.
Insurance company adjusters and representatives handling disability claims, worker's compensation claims and personal injury claims have started to use social networking sites such as Facebook and MySpace as a resource to collect evidence of malingering injuries. However, some pictures may create the appearance that an injury victim is in better health than they actually are, or the picture was taken before their injury occurred. For the reason that some pictures displayed on social networking sites may inaccurately portray an injury victim's health and condition, it is important injury victims closely monitor the content accessible to others in their personal profile.
Below Parr Richey Obremskey Frandsen & Patterson Attorney Paul Kruse responds to an editorial published earlier this fall in the Lebanon Reporter. Mr. Kruse counters several myths relating to tort reform for medical malpractice lawsuits, citing studies supporting his argument that medical malpractice costs represent a small percentage of overall healthcare costs. Furthermore, Mr. Kruse explains why no further tort reform for medical malpractice claims is necessary.
------------------------------------------------------------------------------------------------------------------------------------------
Your recent editorial on September 17, 2009, authored by Chip Minemyer, titled “Without Tort Reform, There Should Be No Health Overhaul,” was misleading and inaccurate. It was simply an attempt to influence public opinion in favor of big corporations and insurance companies and harpoon injury victims’ claims.
Minemyer starts his column with the statement that litigation reform is an issue “central to improving the cost of healthcare and access to treatment.” In fact, the cost of medical malpractice is actually a tiny percentage of healthcare costs, in part because medical malpractice claims are far less frequent than insurance companies would lead people to believe. According to the Congressional Budget Office (CBO), malpractice costs amount to less than two percent of overall healthcare spending.
President Obama proposed to implement measures to limit the legal rights of severely injured persons as part of the healthcare discussion, apparently as a bargaining chip to reduce Republican opposition to his healthcare reform plan. His medical malpractice reform proposal will hurt patients and dump more cost on taxpayers. It would not eliminate death and injuries but merely shift costs of caring for malpractice victims from perpetrators of malpractice to hard pressed state Medicaid systems, for which state and federal taxpayers share the cost. In fact, according to the insurance industry’s own data, medical malpractice insurance claims and premiums have been trending downward for years.
Attorneys who represent personal injury victims or handle personal injury litigation should attend one of the periodic conferences conducted by the National Institute for Trial Advocacy. I had the privilege of serving on the faculty for the recent week-long NITA conference at the Indiana University School of Law at Indianapolis and I am proud to report that it was a wonderful success.
NITA provides training of legal advocacy skills for lawyers with all ranges of skills, but is particularly helpful to those attorneys who have less experience in the courtroom or wish to refine their skills. The conference seeks to teach advocacy skills in all facets of litigation, with a 4:1 student/faculty ratio and a volunteer faculty of judges, professors and practicing attorneys from around the country.
The conference in Indianapolis last week focused on examination of lay and expert witnesses, as well as opening statements and final arguments. It concluded with a mock trial by all participants. NITA conferences utilize a learn-by-doing method, with immediate feedback and demonstations by faculty members. Participants are welcomed into the NITA "family" and receive NITA certification at the end of the conference.
In Spaulding et al. v. Wishard Memorial Hospital et al., No. 49A02-0810-CV-954 (October 8, 2009), the Indiana Court of Appeals decided several issues stemming from a medical malpractice trial. One of those issues is whether the trial court erred by redacting the words "Department of Insurance" from the medical review panel's certified opinion. On appeal, the Indiana Court of Appeals held the trial court was correct in excluding the words "Department of Insurance" and using a redacted copy of the certified medical review panel opinion as evidence.
At trial, the plaintiff's counsel sought to introduce a copy of the medical review panel opinion, which had a stamp, seal and caption depicting the State of Indiana Department of Insurance. Indiana law provides that in medical malpractice cases, the report issued by the experts on the medical review panel is admissible at trial. IC 34-18-10-23. However, the defendant in this case argued Indiana Rule of Evidence 411 bars evidence being introduced that shows a person was or was not insured against liability, unless it is being offered to prove agency, ownership, control, or bias/prejudice of a witness.
In a recent not for publication memorandum decision* by the Indiana Court of Appeals, the court reversed the granting of a motion for summary judgment in favor of the Indiana Department of Transportation ("INDOT"), finding that INDOT owed a duty of care to a father and son who were subcontracted to complete some paving work for INDOT. Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, Deceased, and Robert L. Bunn vs. Indiana Department of Transportation, No. 50A03-0810-CV-504 (Indiana Ct. App. 2009).
While completing the work, the son was electorcuted after a dump truck made contact with overhanging power lines. The father was in close proximity, watching as it happened.
In a recent decision, the Indiana Court of Appeals affirmed a ruling from the Marion Circuit Court, holding that an Indiana father who watched his son die after he was prematurely sent home from the hospital without his injuries being properly treated could recover damages for negligent infliction of emotional distress independently from damages awarded under the Adult Wrongful Death Statute. Indiana Patient's Compensation Fund vs. Gary Patrick, Individually and as Personal Representative of the Estate of Christopher Patrick, Deceased, No. 49A02-0807-CV-614 (Ind. Ct. App. 2009).
A tragic set of circumstances surrounds this case. Back in 2002, a thirty-one year old man was involved in a motor vehicle accident and was transported to St. Mary's Medical Center in Evansville, Indiana, where he was treated for a broken wrist, broken nose, and abdominal trauma. He was discharged the following day after the accident.
At the time the man lived with his father. The evening of the day the son was released from the hospital, he began vomiting blood. His father called 911, but by the time EMTs arrived, the son had died from an untreated ruptured colon caused by seatbelt trauma during the accident.
Indiana Supreme Court has granted transfer of a case involving Indiana's workers' compensation statute and a farmer's insurance policy which aimed at excluding the farmer's liability coverage. Everett Cash Mutual Insurance Company vs. Rick Taylor and Katrina Taylor, No. 02A03-0808-CV-386 (Ind. Ct. App. 2009), transfer granted (September 3, 2009).
In Everett, a farmer employed an independent contractor business to paint his house, grain bin, and barn. The farmer did not check to see if the business carried workers' compensation insurance for its employees and in fact they did not. One of the business' employees came into contact with an electrical wire while painting and was injured.
The employee initially filed a workers' compensation claim against the independent contractor business, but he discovered the business had no such insurance. He then amended his complaint to name the farmer, alleging the farmer failed to verify whether the independent contractor business had workers' compensation insurance pursuant to Indiana Code 22-3-2-14(b). At no time did the employee file any tort-related claims against the farmer.
A recent article from JusticeNewsFlash.com reports that $6 million dollar jury verdict was recovered in a medical malpractice case by a family out of the St. Louis, Missouri area. The doctors of the family's six month-old baby were found liable for the wrongful death of the baby after failing to diagnose and treat a bacterial infection in the baby.
Continue reading "$6 MILLION VERDICT IN MISSOURI MEDICAL MALPRACTICE CASE" »
Personal injury victims in Indiana are required to use reasonable care to mitigate any damages or injuries they sustained as a result of an accident. Generally under this duty, the injured party must follow their doctor's orders following the accident. If a party's injuries are worsened as a result of the party's failure to follow his/her doctor's instructions, then that party's recovery for his/her injuries can be reduced.
But how far can this defense reach?
Continue reading "HOW FAR DOES THE "FAILURE TO MITIGATE DAMAGES" DEFENSE REACH?" »
In Stanley v. Walker, the two parties were involved in a car accident and the plaintiff filed a negligence complaint. The defendant asked the trial court to admit evidence that the plaintiff’s healthcare providers discounted the medical bill. The plaintiff objected, arguing that any evidence of write offs would violate Indiana’s collateral source statute, Ind. Code § 34-44-1-2. The Court discussed how, in Indiana, the proper measure of medical expenses is the reasonable value of such expenses. The court stated that this value is not based exclusively on the actual amount paid to the health care provider, or on the amount originally billed. The court thus held that the collateral source statute does not bar evidence of medical bills discounted by insurance providers in order to determine the reasonable value of medical services in calculating the plaintiff’s damages. The court cautioned that this may only be done if the admission of the write offs can be done without violating the collateral source statute. Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009).
When handling personal injury claims, plaintiffs’ counsel often address the resolution of subrogation liens, including those asserted by Medicare. Under federal statutes, Medicare is entitled to reimbursement when an injured Medicare recipient receives benefits which are later recovered through a settlement or judgment. New legislation has now given Medicare an effective – and harsh – means of recovering its subrogation lien.In 2007 the Medicare, Medicaid and SCHIP Extension Act (the “Act”) was signed into law, placing new and more detailed requirements on liability insurance companies in claims dealing with Medicare recipients. This 2007 Amendment, effective July 1, 2009, is the counterpart to the 2003 Amendment, which focused on plaintiffs and their attorneys. The 2007 Act increases the enforcement power for Medicare reimbursement by extending liability to insurers and adding damages, penalties and fines for noncompliance.
Continue reading "New Medicare Laws Impact Personal Injury Cases" »
The New York Times recently discussed a problematic new trend happening during jury trials. That trend being jurors using Blackberrys and iPhones to gain information through the internet about the case they are hearing. Read the article here.
On top of these devices distracting the jurors from focusing on the case, internet services provided through Blackberrys and iPhones allow jurors to research technical aspects involved in the trial they are hearing or simply find out information about the parties themselves. Information that can be prejudicial and prohibited from being considered pursuant to state and federal trial rules.
Continue reading "Blackberrys and iPhones Causing Problems in Court " »
This past January, the Indiana Court of Appeals ruled on a case coming out of Laporte County. The case dealt with a grandmother who signed the state required "financial responsibility form" for her grandson when he turned 16. At that time, the grandson was living with his grandmother and she was his legal guardian. She had bought her grandson a new car for his 16th birthday and registered the car in his name.
Pursuant to IC 9-24-9-3, Indiana requires that a minor's driver's license application be signed by a parent or legal guardian who promises to assume certain statutory obligations on behalf of the minor. Under IC 9-24-9-4(a), "[a]n individual who signed an application for a permit or license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”
I have been a personal injury attorney at the law firm Parr Richey Obremskey Frandsen & Patterson for the past 30 years. Insurance companies and their clients have ignored the facts about personal injury litigation and propagate the myth that frivolous claims threaten society. In fact, insurance companies only pay for harm caused by their insured. Claims that have no substance--if they exist--are dismissed by the court or are lost at trial.
I responded to a recent newspaper editorial written under the headline: "Lawyers, spurious lawsuits threaten a potential civic disaster". Too many newspaper editors have fallen prey to the propaganda campaigns of insurance companies who try to poison the perception of the public--and potential jurors in our community--about the impact of litigation on our society. In fact, our homes, cars, products and lives are safer because personal injury lawyers hold manufacuturers and others accountable for their misconduct.
Attached is my entire letter to the Editor for the Lebanon Reporter:
Continue reading "The myth about frivolous lawsuits--what insurance companies don't tell you" »
When accident victims receive medical payments coverage from their own auto insurance policy to pay their medical bills, the auto insurance carrier is usually entitled to assert a contractual lien against the insured’s third party recovery. Under Indiana lien reductions statutes, plaintiffs can reduce med-pay liens by a pro-rata share of expenses and attorney fees. IND. CODE § 34-53-1-2. Under the Comparative Fault Act, Plaintiffs are also able to reduce med-pay liens by the same proportion that the plaintiff’s recovery was reduced by comparative fault or limited liability insurance. IND. CODE § 34-51-2-19. These statutory reductions can result in considerable reductions to med-pay liens and can help maximize the plaintiff’s net settlement by reducing his or her reimbursement obligations.
In an effort to circumvent their insured’s statutory lien reduction rights, some aggressive med-pay lien holders attempt to collect reimbursement of one hundred percent of their liens directly from the negligent third party’s insurance carrier. These overt attempts to bypass the lien holder’s insured are not permissible. As recognized by the Indiana Supreme Court in Erie v. George, 681 N.E.2d 183 (Ind. 1997), a med-pay carrier’s contractual claim for reimbursement does not allow it to assert a direct claim against the third party in the absence of permission from the plaintiff. For this reason, plaintiff’s counsel should challenge any attempts by med-pay lien holders for reimbursement directly from third party carriers. Failure to do so can lead to a smaller net settlement for the plaintiff.
A southern Indiana bicycle rider who suffered serious injuries as a result of being hit by a motorist received some justice this week when the motorist plead guilty to attempted murder. The conviction arose out of a July 27, 2006 incident in New Washington Indiana when Justin Keith Simpson attempted to run over and kill the bicyclist Eric May. While May fortunately survived the crash, he reportedly suffered a head injury, and severe lacerations to his leg which may result in amputation.
According to the Clark County Prosecutor Jeremy Mull, the court has discretion as to Simpson's sentence, but the minimum recommended sentence for class A felonies in Indiana is 20 years in prison. The sentencing hearing is set for March 2, 2009.
In addition to the criminal prosecution, Simpson could face a civil lawsuit for injuries suffered by May in the bicycle/car accident. Under Indiana law, crime victims can sue the criminal for injuries they sustain, including damages for medical expenses, lost wages, pain, suffering and the loss of the enjoyment of life. While victims can sue criminals for damages, collecting damages for injuries arising out of criminal acts can prove difficult as most car insurance policies do not cover damages which their insured intentionally caused.
Most people have heard of punitive damages in accident and injury cases, but these damages are often misunderstood. Under Indiana law, personal injury victims can generally seek two types of damages. The first and most common type of damages sought are known as compensatory damages. The second and rarely obtained type of damages are punitive damages. The two types of damages are different in that they are used to accomplish different ends.
Continue reading "Punitive Damages-what are they?" »
When Indiana car accident victims file claims for their injuries, most people assume that the lawsuit will be filed against the negligent driver's insurance company. This is not the case. Under Indiana law, when an injury victim files a lawsuit against a negligent driver, the suit will be filed against the negligent driver, not his insurance company.
Continue reading "Are Indiana car accident cases filed agianst the insurance company?" »
Indiana car and motorcycle accident victims often want to know where their case will be filed if a settlement is not reached with the other driver's insurance company. Most motor vehicle accident cases are filed in state courts. The few cases filed in federal courts either involve a federal law which has been allegedly violated or the parties are from different states and the case value exceeds $75,000.
When cases are filed in state court, as the majority are, each state has different rules regarding what county the case can be filed in. In Indiana, the Indiana Trial Rules, adopted by the Indiana Supreme Court, sets forth what counties are the appropriate venue, or location, for cases to be filed. While the rules have several subparts and exceptions always exist, Indiana accident victims must generally file their cases in either the county where the accident occurred or the county where the defendant lives. The decision of which county to choose, if they are different, is left to the injury victim and his attorney filing the case.
A firefighter from Jamestown Indiana was seriously injured while responding to an accident scene on Interstate 74 in Boone County Indiana. The accident occurred on December 26, 2008 when a semi truck ran over the emergency response firefighter while he was at the scene of two accidents on I-74. The firefighter was reportedly pinned under the truck for approximately 30 minutes before being rescued and taken to Methodist Hospital in Indianapolis.
Newsday.com reported that the largest city in America paid $403 million to settle personal injury lawsuits in the fiscal year of 2008, which accounted for a 6% increase from the amount paid in the previous fiscal year. The highest settlement was $8.5 million, going to compensate a school guidance counselor who lost vision in one eye after having a broken door slammed in his face by a child.
In a lawsuit against Bridgestone Firestone North American Tire ("Bridgestone"), plaintiff brought suit against Bridgestone after her child was fatally injured in a rollover automobile accident, alleging that the accident was caused by a failed Bridgestone tire.
Plaintiff presented testimony from an expert witness who opined that the tire failure was caused by separation in the tread and upper steel belt from the body, it had insufficient fatigue strength/age deterioration/resistance to cracks, and it had an inadequate liner/wedge.
Bridgestone moved to have the negligence and strict liability claims against them dismissed, arguing under FRE 702, Daubert v. Merrell Dow Pharmaceuticals, and Kumho Tire Co. v. Carmichael that plaintiff's expert was unqualified to render a reliable expert opinion on the matter.
U.S. District Court Judge David G. Campbell from Arizona rejected Bridgestone's arguments holding that plaintiff's expert was qualified "by knowledge, experience, training and education to testify on the cause of the tire failure;" citing the expert's graduate training in mechanical engineering and 19 years of evaluating failed tires and consulting work on these matters.
See Andrews et al. v. Bridgestone/Firestone Inc. et al.
In jury trials involving personal injuries, disputes often arise regarding what can be said about insurance during the course of proceedings. Unfortunately, many assumptions about about what can and cannot be said about insurance are based upon evidentiary rule misconceptions rather than upon the actual rules of evidence.
Obviously, what can be said will depend upon the nature of the case. If the claim is a first-party insurance case brought by an insured against her insurer, such as an uninsured or underinsured motorist claim, the insurance company is a party to the action and its identity should be appropriate for discussion as these claims are technically based upon contract. Malott v. State Farm, 798 N.E.2d 924, 926 (Ind. Ct. App. 2003). Under these claims, not only can you discuss the identity of the insurance company, but a plaintiff may introduce into evidence portions of the written insurance policy to establish the contract upon which the claim is based. See Ind. Trial Rule 9.2(A) (requiring written contracts to be filed with the complaint and made part of the record). . . . Continue reading Tony Patterson's article Insurance at Trial: What Can You Say? on Parr Richey Obremskey & Morton's Indiana Co-Counsel newsletter for October 2008.
The plaintiff in this case was injured in an automobile accident. The defendant retained a medical expert who offered opinions regarding the plaintiff's injuries during discovery. At trial, the expert testified for the first time that he diagnosed the plaintiff with a degenerative disc disease, which was a material deviation from his prior deposition testimony. As a result of this contradiction, the plaintiff requested a new trial.
The trial court found the defendant committed misconduct by not disclosing its medical expert's new diagnosis prior to trial and granted the plaintiff's motion for a new trial. On appeal, the trial court's ruling was affirmed, finding that the defendant should have supplemented its medical expert's opinion prior to trial. Nature's Link v. Przbyla, 885 N.E.2d 709, 719 (Ind. Ct. App. 2008).
The Indiana Trial Rules do not distinguish between "trial" and "discovery" depositions. Trial Rule 30 allows either party to conduct a deposition provided that the party gives reasonable notice in writing to other parties to the action. If a deposition is properly taken in accordance with Trial Rule 30, the deposition may later be used at trial for evidentiary purposes if the witness is unavailable to testify at trial and the party against whom the testimony is offered had an opportunity and similar motive to examine the witness during the deposition. (Ind. Rule of Evidence 804(b)(1)) It does not matter that the deposition was not noticed as a "trial" or "evidentiary" deposition, as the "Indiana Rules of Trial Procedure do not recognize such a distinction." Hagerman v. Copeland , 697 N.E.2d 948, 953 (Ind. Ct. App. 1998).
The Indiana Supreme Court has granted petition to transfer in the case Stanley v. Walker. The Court is set to hear oral argument on the matter November 6, 2008 at 9:45 a.m. in the Indiana Supreme Court Court Room. It can be watched live via webcast at the IndianaCourts website.
In Stanley v. Walker, the Indiana Court of Appeals affirmed the Johnson Superior Court in preventing the defendant from introducing evidence at trial that the plaintiff's medical providers and health insurance company had negotiated a "write off" which reduced the amount plaintiff was initially billed after receiving medical services. The Indiana Court of Appeals held that Indiana's collateral source evidentiary statute precluded the evidence from being admitted.
Each year, thousands of people across the United States will suffer injury or death from their involvement in a semi-trailer trucking accident. One of the main causes of these accidents continues to be driver fatigue. Financial and other incentives prompt semi-trailer truck drivers to take on longer hauls for more hours at a time.
The Federal Motor Carrier Safety Administration ("FMCSA") has in place driver-related regulations that limit the maximum driving time for drivers of property-carrying vehicles (including, but not limited to semi-trailer drivers). The FMCSA has also promulgated regulations that require drivers of commercial motor vehicles, such as semi-trailers, to record their hours spent driving in order to ensure compliance with the maximum driving time limits.
Nevertheless, fatigue continues to be a major problem in causing semi-trailer trucking accidents. In an effort to reduce these accidents, the National Transportation Safety Board ("NTSB") has recently encouraged government officials to pass laws mandating alarm systems to be used in alerting truck drivers of their fatigue. A recent article posted on www.nationalsafetycommission.com details several options the NTSB offers to curb fatigue related trucking accidents.
These include: 1.) supporting development research and implementation of dashboard-mounted cameras that track a driver's eye and eyelid movements, alerting them when it senses fatigue; 2.) technology that warns of collisions and automatically engages the trucks braking system; 3.) technology that senses when a truck is veering from its lane and deploys a light or alarm signal to the driver; 4.) stricter oversight by the FMCSA in making commerical trucking companies comply with regulations; and 5.) further implementation of rumble strips on the edge of highways and interstates that have proven very effective in preventing trucking accidents.
In an interesting case decided this past July, the Indiana Court of Appeals held that instructions on contributory negligence were not warranted where the plaintiff had failed to correctly disclose her mammogram history to her doctor before undergoing breast augmentation surgery.
In Joyner-Wentland vs. Waggoner, the plaintiff brought a medical malpractice suit against her doctor after she failed to order a mammogram before performing breast augmentation surgery on her. In her initial plastic surgery consultation, the plaintiff stated her last mammogram had come back clear and that it had been taken two years prior, when it had actually been five years prior. As a result, the defendant plastic surgeon proceeded with plaintiff's augmentation surgery. While operating, the defendant discovered the plaintiff was suffering from breast cancer and ultimately, the surgery caused plaintiff's cancer condition to significantly worsen.
On appeal, the Indiana Court of Appeals found there to be "overwhelming" evidence that plaintiff's untruthfulness as to the date of her last mammogram did not contribute to her injuries. It further explained that the standard of care was that mammograms should be performed annually for women over fifty years old and even though plaintiff misrepresented the date of her last mammogram, the information she presented the defendant with still called for a pre-surgery mammogram under the standard. Consequently, it held that the trial court did not abuse its discretion in prohibiting an instruction that plaintiff was contributory negligent in giving incorrect information on her pre-surgery intake form.
Joyner-Wentland v. Waggoner, 890 N.E.2d 730 (Ind. Ct. App. 2008).
On a rehearing of the matter, the Indiana Court of Appeals recently affirmed its decision in Estate of O'Neal v. Bethlehem Woods Nursing Rehab. Ctr., LLC, 878 N.E.2d 303, 314 (Ind. Ct. App. 2007), that the Indiana Wrongful Death Act's ("WDA") two-year statute of limitation, which begins at the date-of-death, controls over Indiana's professional services two-year statute of limitation, which begins at the time of the occurrence. See Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., LLC (Estate of O'Neal), (Ind. Ct. App. 2008) (June 10, 2008) (opinion on rehearing), 2008 WL 2346138.
In its petition for rehearing, the petitioners argued, among other things, that the similarities in text and purpose between the Indiana professional services statute of limitation and the Indiana Medical Malpractice Act's ("MMA") two-year, occurrence based statute of limitation requires the Indiana Court of Appeals to conclude that the Indiana professional services statute of limitation controls over the Indiana WDA's statute of limitation.
The Indiana Court of Appeals disagreed, holding that even though the professional services statute of limitation has similarities in its text and purpose to the Indiana MMA's statute of limitation, the legislative goals of the MMA constitute a far more comprehensive means of accomplishing certain legislative goals. Thus, even though the MMA's statute of limitation controls over the WDA's statute of limitation, the professional services statute of limitation does not control over the WDA's statute of limitation.
Click here to read the opinion.
In deciding two matters of first impression, the Indiana Supreme Court recently held that a trampoline may constitute an attractive nuisance and that a parent/landowner may be liable for injuries of a minor sustained on the parent/landowner's property, when the parent/landowner's minor child invites the other minor onto the property. Click here to read the Indiana Supreme Court's opinion in Kopczynski v. Barger.
In Kopczynski, a twelve-year-old girl was invited by her neighbor's minor child to jump on a trampoline in the neighbor's back yard and subsequenlty injured her knee while on the trampoline. The trampoline was located in an unenclosed area behind the neighbor's house and the children were jumping on the trampoline without adult supervision.
The trial court granted the parent/landowner's motion for summary judgment on the injured girl's claim for liability under the attractive nuisance doctrine and premises liability, determining that the girl was a trespasser and that the attractive nuisance doctrine was not applicable. The Indiana Court of Appeals affirmed the trial court's determination.
The Indiana Supreme Court reversed the trial court's grant of summary judgment, holding that there is a genuine issue of material fact as to whether the injured girl was an invitee on the property, opposed to a trespasser. Additionally, the Court used expert testimony that stated unenclosed trampolines on private property "are particularly attractive to children," that knee injuries are a common result of trampoline use and additional testimony stating the injured girl was not warned of the dangers of the trampoline in determining that a genuine issue of material fact existed as to whether the trampoline in this case constitued an attractive nuisance.
Indiana's Hospital Lien Statute, IC 32-33-4-1 et seq., allows a hospital to hold a lien against an injury claim. When properly perfected, this lien applies to any amount recovered by the patient.
The hospital must record its lien in the county where the hospital is located within 180 days after the patient is discharged, and, within 10 days of recording, must provide notice of the lien to (1) the tortfeasor, (2) the patient's attorney, and (3) the Indiana Department of Insurance.
Despite the statute explicitly requiring a hospital to provide the patient's attorney with actual notice of the lien's existence, the Indiana Supreme Court has determined that, in certain situations, constructive notice will suffice. To avoid personal liability, search the Recorder's Office for any hospital liens prior to disbursing any funds in a personal injury claim.
A Greyhound bus carrying 41 passengers crashed on Interstate 65 in northwest Indiana. According to the Chicago Tribune, 29 of the passengers required medical treatment. The bus was on its way from Chicago to Nashville Tennessee when it flipped on its passenger's side and came to rest near the median. It is unsure why the crash occurred, although witnesses said the bus appeared to be traveling at a high rate of speed and it is suspected that the driver may have fallen asleep.
The Indiana Court of Appeals handed down a decision on Monday, in Stanley v. Walker, holding write-offs constitute insurance benefits for purposes of the collateral source rule. In its opinion, the Indiana Court of Appeals reasoned "that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed [to] introduce evidence of write-offs to reduce damage awards" pursuant to Indiana's collateral source statute. The majority concluded that these benefits "should inure to the benefit of the plaintiffs," as they had the forethought to carry insurance and make the required premium payments.
In Stanley, the plaintiff was involved in a motor vehicle accident and sustained medical bills stemming from his injuries in the amount of $11,569.99. However, due to write-offs negotiated by his insurance company, this gross amount was significantly adjusted downward. At trial court, defendant acknowledged he could not introduce evidence of or ask plaintiff about the amount of his medical expenses that were being paid for through his insurance coverage. However, defendant sought to introduce evidence of the write-offs arranged by plaintiff's insurance coverage. Plaintiff objected and the trial court sustained the objection citing Indiana's collateral source statute.
Click here to see the Indiana Court of Appeals opinion in Stanley v. Walker.
In Scheible v. Jackson, the plaintiff argued that both a purchaser and a vendor owe a duty to the traveling public to maintain property which is the subject of a land-sale contract in a reasonably safe condition. On appeal, the Indiana Court of Appeals noted that, as a general rule, a vendor in a land-sale contract avoids liability on the subject real estate by relinquishing possession and control to the purchaser, at least where the purchaser has a reasonable opportunity to address a known defect. However, the Indiana Court of Appeals also stated, that where a vendor retains control of the subject premises, liability may attach.
As a result, the Indiana Court of Appeals determined the existence of a land-sale contract is not itself dispositive as to the vendor's non-liability for a dangerous condition of the land. Instead, the Indiana Court of Appeals held that it must look to both the terms of the land-contract and the conduct of the contracting parties to determine who actually exercised control over the property. 881 N.E.2d 1052 (Ind. Ct. App. 2008).
In Bailey v. State Farm Mut. Auto. Ins. Co., the Indiana Court of Appeals held that Indiana does not recognize a first-party cause of action for negligent entrustment of a motor vehicle to a voluntarily intoxicated adult. The Indiana Court of Appeals reasoned that denying those who drive another's vehicle while intoxicated the ability to be compensated by the entrustor properly distributes the incentive to control irresponsible drinking between the entrustor and the entrustee, and will encourage personal autonomy and responsibility rather than dependency and paternalism. 881 N.E.2d 996 (Ind. Ct. App. 2008).
In Smith v. Auto-Owners Ins. Co., the plaintiffs automobile insurer argued that IC 27-7-5-4 and the terms of the insurance policy prevented the plaintiffs from making an uninsured motorists claim more than two years after an accident. Upon review, the Indiana Court of Appeals held that although IC 27-7-5-4 requires the tortfeasor's insurer to become insolvent within two years of the date of the accident in order for a party to be able to claim uninsured motorists coverage from their insurer, the statute does not require the claim to be filed within two years after the accident, only within two years after the tortfeasor's insurer becomes insolvent and the insured has knowledge of the insolvency. 877 N.E.2d 1220, 1224 (Ind. Ct. App. 2007).
Most litigating attorneys will agree that obtaining fair settlements in injury cases can be challenging. For this reason, once settlement is reached, the temptation exists to simply execute the release the defendant's attorney encloses with the check. Unfortunately, many releases contain un-negotiated terms or language which leads to unintended results; therefore they must be carefully scrutinized prior to signing.
The first fundamental issue is to be sure the release only discharges intended defendants. Indiana law historically held that a release of one torfeasor released all tortfeasors. However, in Huffman v. Monroe County Community Sch. Corp., 588 N.E.2d 1264 (Ind. 1992), the Indiana Supreme Court abrogated the common law release rule and held that the release of one wrongdoer does not release all unless the agreement was to release all, as in any contract for the release of joint tortfeasors.
In Pelo v. Franklin College of Indiana, 715 N.E.2d 365 (Ind. 1999), the Indiana Supreme Court extended this holding to derivative actions, reversing the prior Indiana Court of Appeals opinion in United Farm Bureau Mut. Ins. Co. v. Blossom Chevrolet, 668 N.E.2d 1289 (Ind. Ct. App. 1996). The Indiana Supreme Court held that a settlement agreement only released those specifically identified and not other defendants, including those whose liability is derivative. Pelo, 715 N.E.2d at 366-67.
In a case in which several individuals have been named as parties to the case, there is little difficulty in identifying the individuals who are not released. However, in a case in which there is an early settlement and there is time to file subsequent claims, it is not always known who the later defendants will be. Pelo was significant in allowing plaintiffs to release one defendant while continuing on with investigation to determine if there were other tortfeasors.
While Pelo provides some protection to plaintiffs, it is still important to review the release document to ensure that it does not release other individuals the plaintiff may wish to remain as defendants in the case. In Esate of Spry v. Greg & Ken, Inc., 749 N.E.2d 1269 (Ind. Ct. App. 2001), the deceased's estate filed a claim against a drunk driver who negligently caused the deceased's death. The estate reached a settlement with the drunk driver and executed a release discharging the drunk driver "and any other party who is or may be liable" for the death.
Thereafter, the estate filed a dram shop claim against the bar that served the drunk driver. Upon reviewing the release document, the Indiana Court of Appeals held that the bar was released by the language discharging "any other party who is or may be liable." This case highlights the importance of reviewing the release language to ensure that only intended parties are released.
Continue Reading What's in a Release? in Newsletter
The Indiana Supreme Court held that a county in which a passenger's damaged property was regularly located was not a county of preferred venue in an automobile accident case. The Indiana Supreme Court disapproved two prior Indiana Court of Appeals decisions in which the plaintiffs were allowed to use a claim for personal property damaged in an automobile collision to establish preferred venue in the plaintiff's home county, rather than the county in which the accident occurred or the defendant's home county. In disapproving the prior Indiana Court of Appeals cases, the Indiana Supreme Court refused to broadly interpret Indiana Trial Rule 75(A)(2) to allow preferred venue in the plaintiff's county of residence, where it would ordinarily have secondary status.
R&D Transport, Inc. v. A.H., 859 N.E.2d 332 (Ind. 2006).
Tony Patterson was named Indiana Trial Lawyer of the Year at the November 1, 2007, Indiana Trial Lawyers Association ("ITLA") 43rd Annual Institute at the Indiana Roof Ballroom in Indianapolis. The annual award is given to an attorney who exemplifies the foundation of ITLA's mission and who has shown distinguished service to the citizens of Indiana and the United States as a leading member of the Indiana Trial Bar and dedication to the rights of the injured under the laws of the State of Indiana and the United States of America. Congratulations Tony!
The Court may take judicial notice of a party’s pleadings. In doing so, any admission contained in the pleading is admissible into evidence and is conclusively established as to that party, without any further proof. See Lutz v. Erie Insurance Exchange, 848 N.E.2d 675 (Ind. 2006).
If you are contacted regarding a case involving a potential traumatic brain injury, several steps should be taken to insure that the injuries are fully explored and that proper evidence is developed. Among the steps are as follows:
• Obtain the police report and photographs, interview all accident witnesses regarding the nature of the incident and the facts surrounding it.
• Closely review and gather all medical records, including the ambulance run and emergency room reports.
• Gather all medical imaging, including CT Scans, MRI and SPECT Scans. Obtain the DICOM studies so that interactive slice choosers and three-dimensional imaging can be reviewed.
• Interview family, friends and co-workers to identify the client’s behavior, personality or cognitive changes.
• Consult with or retain a neurologist and neuropsychologist to perform testing for measurable brain injury.
• Gather all pre-injury academic, military, employment and medical records to help establish a pre-accident baseline.
• Retain the services of a forensics psychiatrist to determine the psychological impact of the traumatic brain injury.
While each case should be reviewed independently, most traumatic brain injuries require that these issues be addressed in order to fully develop and explore your client’s injuries.
In a medical malpractice action, evidence that a party expressed a communication of sympathy (a statement, gesture, act, conduct or writing that expresses sympathy, an apology, or a general sense of benevolence) is not admissible into evidence if the statement relates to causing or contributing to an injury, loss, pain, suffering, death or damage to property, unless it relates to fault.
An Indiana restaurant patron suffered injuries when a man driving on a nearby highway had a heart attack, crossed over two lanes of oncoming traffic and several parking lots and crashed into a restaurant. Plaintiffs argued that the defendant’s failure to erect barriers in front of the building was a breach of its duty to the plaintiffs to exercise reasonable care.
The Indiana Court of Appeals disagreed and found that the incident was not foreseeable and therefore held there was no breach of duty on the restaurant’s part and granted summary judgment in its favor. See Schoop’s Restaurant v. Hardy, 863 N.E.2d 451 (Ind.App.2007).
Anyone who has dealt with health insurance companies either on a personal or a professional level is probably familiar with the insurance “write-off” for medical expenses. In a nutshell, the write-off is a contractual reduction in the amount that an insurance company is required to pay a medical care provider for services rendered on behalf of the insured. For the unsuspecting plaintiff’s attorney, however, the insurance write-off can be a potential stumbling block. It is important to be wary of attempts by the defense to limit the evidence of medical expenses to the net amount paid, rather than the gross medical expense charged by the provider. Although the specific issue of insurance write-offs has not been addressed by Indiana Courts, the existing statutes and caselaw support the proposition that the admission of insurance write-offs into evidence is improper, and that such evidence should be excluded.
At trial, the plaintiff should introduce the total medical bills into evidence in order to establish the reasonable cost of medical services; further, the plaintiff should attempt to keep the defense from putting in the insurance write-offs. A motion in limine is a useful pre-trial tool to accomplish this, and it can prevent the possibility having to argue about these issues in front of the jury. In the motion, the plaintiff should first argue that the Collateral Source Rule prohibits the introduction of insurance write-offs because they are a part of the insurance benefit for which the plaintiff has paid. In the absence of specific Indiana caselaw that addresses the insurance write-off, the plaintiff should also refer to Indiana cases which hold that the measure of damages for medical treatment is the reasonable value of the services, and not the actual amount paid. These cases complement the statutory analysis and strengthen the argument that the introduction of the insurance write-off is improper.
Additionally, the plaintiff may make policy arguments that the principles of subrogation help to defray any purported windfall to the plaintiff for damages recovered above and beyond the actual amounts paid by the insurance company. More importantly, the existence of a contractual relationship between an insurer and an insured plaintiff is wholly independent of the defendant tortfeasor, and the defendant should not be exculpated from the full extent of liability on that basis. To hold otherwise would have the effect of punishing the plaintiff who has obtained medical insurance and would deprive the plaintiff of a fair and reasonable award for damages.
