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Understanding the limitations of Indiana personal injury law is essential. A lack of understanding can result in filing a claim that is a waste of time and money. A state appellate court recently dismissed a personal injury case that the court found was filed two years too late. According to the court’s opinion, in June 2016, the plaintiff filed an amended complaint for damages that he claimed he sustained on about June 6, 2012.

Evidently, the plaintiff was climbing an attic ladder in a residential home in order to repair a leak when the ladder collapsed. The plaintiff alleged that the defendant construction company that built and sold the home and was negligent in failing to ensure that the ladder was secure and properly installed. The defendant argued that the suit was barred by the applicable ten-year statute of repose. Similar to statutes of limitations, statutes of repose limit the time during which a claim can be filed. Yet, unlike statutes of limitations, statutes of repose are construed more strictly to provide a finite period of time during which the claim must be filed.

The defendant claimed that in July 2003, it entered into an agreement with the home’s original owners, agreeing to build and sell the home to the owners. The construction was completed around April 30, 2004, and the owners took possession of the home on May 7, 2004. The plaintiff argued that the claim was not founded on the “construction of an improvement to real property.”

Nursing homes have been under fire lately for the poor level of care they provide to residents. Indeed, by some estimates, one in ten nursing home residents suffer some type of abuse or neglect. In theory, the legal system allows for the victims of Indiana nursing home abuse and neglect to sue the offending nursing homes. However, many Indiana residents are not able to do so because they signed arbitration agreements.

An arbitration agreement is a type of contract by which the parties agree not to file a case in court if a conflict within the scope of the agreement arises. Typically, nursing homes present residents with these agreements at the time of admission. While Indiana skilled care facilities will not necessarily force a resident to sign the agreement, it is not often apparent to the resident that they can decline to sign. If valid and enforceable, an arbitration agreement can prevent a nursing home resident from filing a case in court, forcing them to resolve the matter through the arbitration process.

The enforceability of arbitration contracts is currently a hot topic, and the subject of many court opinions. A recent case illustrates how courts analyze and give effect to arbitration agreements. According to the court’s opinion, the plaintiff filed a wrongful death claim against the defendant nursing home after his father died while in the home’s care. Before the plaintiff’s father was admitted into the home, he signed an arbitration agreement. The agreement contained a “delegation provision” under which the specific arbitrator would determine whether any claim fell within the scope of the arbitration clause.

 

 

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Parr Richey is pleased to announce that attorneys Paul Kruse and Tony Patterson have been named to the 2020 Edition of The Best Lawyers in America for their work in Personal Injury Litigation.

Best Lawyers is the oldest and most respected peer review publication in the legal profession. Best Lawyers uses a transparent peer review methodology to determine leading lawyers in their profession. The process is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical region and legal practice areas.

 

Recently, the Seventh Circuit Court of Appeals issued a ruling on a case stemming from an Indiana motorcycle accident. The two plaintiffs were embarking on a cross-country trip on their Harley-Davidson motorcycle. While going through Nebraska, the couples’ bike tire sustained a puncture and deflated. The quick deflation resulted in the husband losing control of the motorcycle and crashing into a median. The husband slid across the highway, and his wife was thrown off the bike. Unfortunately, although both people were wearing helmets, they sustained severe injuries, including traumatic brain injuries.

A few months after the accident, the couple received a recall notice for their helmets. The couple filed a products liability lawsuit against the companies that sold them their helmets, the motorcycle manufacturer, and several other entities. The couple alleged that that the helmets and tires had design and manufacturing defects. The couple did not provide any experts for their helmet claim, and the district court entered summary judgment in favor of the defendants. However, the plaintiffs did provide expert testimony for their defective tire claim. The tire defendants filed motions to exclude the plaintiffs’ expert testimony based on a lack of reliability under the Federal Rules of Evidence. The plaintiffs challenged this ruling; however, the appeals court ultimately affirmed the lower courts finding.

Indiana follows the Federal Rules of Evidence 702 and the Daubert standard. Under Daubert, a trial judge is responsible for ensuring that evidence is “reliable and relevant.” Typically, courts assess the reliability prong on a case-by-case basis; however, there are certain factors that courts analyze. Some general things that courts look to are whether the expert’s theory has been tested and peer-reviewed. Further, the court will examine whether the method they are putting forth has general acceptance in the relevant community.

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PARR RICHEY FRANDSEN PATTERSON KRUSE LLP is proud to announce that Tony Patterson has been recognized by Best Lawyers as its honoree for personal injury “Lawyer of the Year” in the Indianapolis metropolitan area which spans most of central Indiana including Indianapolis and the surrounding counties. This recognition is given to the lawyer receiving the highest overall peer ranking in his or her particular practice area. Only one lawyer in each practice and metropolitan area is honored with this award.

Best Lawyers is the oldest and most respected peer review publication in the legal profession. In addition to being named “Lawyer of the Year” for 2020, Mr. Patterson has been listed in Best Lawyers for the past twelve years for his work in Plaintiff’s Personal Injury Litigation and he, along with fellow Best Lawyer’s recipient Paul Kruse, were featured on the cover story of the 2018 edition of Indiana’s Best Lawyers. PARR RICHEY FRANDSEN PATTERSON KRUSE LLP has also been listed under Best Law Firms since 2010 with a Tier 1 ranking for its work in representing personal injury victims. The firm represents accident victims throughout Indiana and the Midwest and has two Indiana offices, one in downtown Indianapolis and one in Lebanon, Indiana and can be found at www.parrinjury.com.

Indiana’s Supreme Court recently decided that a high school could not be held liable for failing to supervise a student after the student left without permission. The 16-year-old student left the school grounds of an Indianapolis high school without permission and was subsequently shot and killed. His estate filed a lawsuit against the school claiming that it was negligent in failing to monitor and supervise the student. The school argued the student was contributorily negligent and thus was not entitled to compensation from the school. The trial court granted summary judgment in favor of the defendants.

Under Indiana’s Comparative Fault Act, if a claimant is partially at fault for his injuries, he can still recover damages, although the award will be reduced by the percentage the claimant is found to be at fault. However, the Comparative Fault Act does not apply in cases against governmental entities. In cases against governmental entities, Indiana’s contributory negligence doctrine applies. Under the contributory negligence doctrine, a plaintiff cannot recover if the plaintiff is negligent and the negligence is even slightly the cause of the plaintiff’s injuries.

The court explained that absent special circumstances, children over the age of 14 are able to exercise reasonable care that an ordinary person would exercise in similar circumstances. It also stated that a plaintiff is contributorily negligence if the plaintiff’s actions fell below the standard necessary for his own protection and safety.

Many Indiana personal injury cases do not make it to trial. Instead, the parties agree to settle the case. Frequently, cases settle after the parties have progressed past the summary judgment stage. Parties often use the summary judgment stage as a barometer for how their case would fare if it were to go to trial.

The summary judgment stage occurs before a case is listed for trial, and is used by courts to weed out cases or claims that do not have merit. Typically, in a summary judgment motion, the judge will consider all the uncontested evidence and make a determination if the moving party is entitled to judgment as a matter of law. If there is conflicting evidence regarding a material issue in the case, summary judgment is not appropriate.

Every state is free to craft their own summary judgment standard, within reason. For example, the federal system uses what is called the “no evidence” approach. Under this standard, the moving party can succeed in their motion if they are able to show that the other party does not have any evidence supporting their claims. Defendants in personal injury lawsuits frequently file summary judgment motions in no-evidence jurisdictions because doing so is simple and there is little to lose (and potentially quite a bit to gain).

Recently, an appellate court issued an opinion in a case dealing with an evidentiary issue that is applicable to many Indiana personal injury lawsuits.  According to the court’s written opinion, the case stemmed from an accident after an employee was injured when he was operating a car-crushing machine. The plaintiff sued the car manufacturer and the company that leased the machine to his employer. The plaintiff argued that the parties were liable under a defective design theory. The lower court granted summary judgment in favor of the defendants based on a finding that the plaintiff’s expert witness testimony was not admissible. The plaintiff appealed the granting of the defendant’s summary judgment motion.

The court explained that the threshold criteria for an expert witness is that the “expert can reliably apply the principles and methods to the facts of the case.” In this particular case, the plaintiff presented the opinion of a professor of mechanical engineering. Although the professor had a Ph.D., had published articles, and had over three decades of experience, the court found that his testimony did not meet the basic expert witness requirements.

Typically, Indiana requires expert testimony be based on “scientific, technical, or specialized knowledge.” Expert witnesses can be used to understand complex issues, strengths, and weaknesses of a case, and to oppose adverse experts. Indiana product liability lawsuits often require expert witnesses. An expert witness must meet a threshold requirement under the Federal Rules of Evidence. The witness must be able to “reliably apply the principles and methods to the facts” of a case. Moreover, they must possess the training, education, skills, and knowledge to assist the trier of fact in determining an issue.

As a general rule, when one party’s negligence results in another’s injury, the injury victim can file an Indiana personal injury lawsuit against the negligent party in hopes of obtaining financial compensation for their injuries. However, the Indiana state legislature has carved out several exceptions in which certain activities cannot legally be the basis for a personal injury action. Equine activity is one such area of the law.

Equine activity is that which is related to horses and similar animals. Commonly, equine activities refer to boarding, caring for, showing, and riding horses. Under Indiana Code section 34-31-5-1, “an equine activity sponsor or equine professional” cannot be liable for the injury or death of any participant resulting from the risks inherent with the activity. A recent state appellate case illustrates the type of issues that can come up in an Indiana horseback riding accident.

According to the facts of the case, the plaintiff was watching a youth horse race. While the area where the race was held provided a space for spectators, the plaintiff watched the race from a different vantage point. Specifically, the plaintiff chose to watch the race by a barn that was closer to the exit of the area. From where the plaintiff watched the race, she was between five and 15 feet from the track.

In June, a state appellate court issued a written opinion in an Indiana car accident case discussing whether an expert witness’s disciplinary history is admissible in a personal injury trial. Ultimately, the court concluded that such an account is admissible, but that in this case, specific evidentiary rules prevented the admission of the reasons for the disciplinary action.

According to the court’s opinion, the plaintiff was sitting in her vehicle at a stop sign when the defendant rear-ended her. The plaintiff went to the hospital, and was released that evening with a neck brace and a prescription for pain medication. Later, the plaintiff filed a personal injury lawsuit against the defendant.

In support of her case, the plaintiff planned on presenting evidence from a treating physician who was going to be a medical expert at trial. The defendant asked the expert whether he was ever subject to any disciplinary proceedings, to which the expert responded affirmatively. However, the expert would not get into any details. Before trial, the defendant asked the court to compel the expert to disclose the reasons for the disciplinary action taken against him. The court denied the defendant’s request, holding that the fact that the expert was subject to prior disciplinary proceedings was not relevant because, at the time of trial, the expert’s medical license was valid. The jury ultimately returned a verdict in favor of the plaintiff, and the defendant appealed.