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Articles Posted in Indiana Laws

Every month in America, plenty of bizarre lawsuits get filed (like suing Jessica Simpson for baby snatching) but Indiana has had one strange May, with three ‘unique’ cases making national headlines.

Funny Fuzz

The ACLU is stepping up to represent a Greenfield, Indiana police corporal attempting to exercise his constitutional right of speech. The police officer was attempting to exercise this freedom on his license plate through a vanity plate. Corporal Rodney Vawter had a sense of humor when he bought the vanity license plate “0ink” with the obvious humorous self-referencing slang “pig” for police officers. Vawter actually had acquired the license plate years ago, but only was recently denied renewal under a statute referencing Indiana Bureau of Motor Vehicles’ (BMV) right to refuse vanity license plates for “offensive or misleading content”.

The suit beginning with Vawter has developed into a full class action suit against the BMV. The vague content restriction is not constitutional, according to Vawter’s attorney. In furtherance of confusion and unfair enforcement, Vawter’s choice to use a zero for the “o” in oink was as a result of “oink” already have been taken by another Indiana driver.

Archaic Law’s Last CallNot all lawsuits in themselves are bizarre; rather, some attempt to take down the bizarre status quo. One does not need to live in Indiana for long to become familiar with the rather odd way the state of Indiana micro-manages beer sales. The temperature of beer to be sold has long been regulated by Indiana, with cold beer being banned to consumers. However, chilled wines, containing higher levels of alcohol could be sold cold. This archaic unnecessary statute has recently been modified to permit liquor stores to sell beer cold. With this one-sided exception, the Indiana Petroleum Marketers and Convenience Store Association has initiated a lawsuit to be treated equally.

Currently, alcohol ranks third for items purchased at convenient stores. However, according to store owners, if they are allowed to sell beer cold, the item would leap to the number two spot. This would lead to great gains for convenience stores, simplicity for consumers, constitutional fairness, and simply the abolishment of an outdated, silly law (Oklahoma is the only other US state which puts any sort of regulation on the temperature of beer).
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A nationwide outbreak of fungal meningitis, traced to medications from a Massachusetts compounding pharmacy, has prompted lawmakers and others to propose strengthening oversight and regulation of compounding pharmacies around the country. These pharmacies currently have no consistent system of federal oversight, although state governments have a wide range of regulations intended to promote drug quality and patient safety. Indiana’s Board of Pharmacy responded to the meningitis outbreak with reassurances about its oversight.

Two bills introduced towards the end of the last session of the 112th Congress sought to give the U.S. Food and Drug Administration (FDA) additional regulatory authority over certain compounding pharmacies, but neither bill made it out of committee. H.R. 6584, The Verifying Authority and Legality In Drug (VALID) Compounding Act, would have subjected compounding pharmacies that act as drug manufacturers to the same FDA regulations as drug manufacturing companies. It also would have required pharmacies to label compounded drugs to indicate that the FDA had neither inspected nor approved the drug, required reporting of adverse reactions to compounded drugs, and created a public “Do Not Compound” list.

H.R. 6638, the Supporting Access to Formulated and Effective (SAFE) Compounded Drugs Act, would have mandated FDA registration for all compounding pharmacies, labeling of all compounded drugs, and FDA production standards and training programs for state health officials. It also would have required disclosure to patients that they are receiving a compounded drug, and improvements to communication between federal and state health regulators. Both bills were referred to the House Subcommittee on Health, where they died at the end of the 112th Congress.
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Hundreds of people around the country die every year when they are hit by trains while walking on or along railroad tracks. Despite such a seemingly large number of fatalities, the issue received little attention by lawmakers or the justice system. Railroad companies view the issue as a matter of trespassing and take few, if any, measures to prevent deaths along their rail lines. Laws in many states, including Indiana, make it a crime to walk along the tracks, but put no responsibilities on railroads to avoid such incidents. The families of people killed by trains in this manner have little or no legal recourse.

Research by the St. Louis Post-Dispatch found that trains have killed over 7,200 pedestrians nationwide since 1997 and injured another 6,400. Trains kill more pedestrians each year than motor vehicles, when calculated based on number of miles traveled. On a single day, May 30, 2012, researchers found that trains killed four pedestrians in California, Illinois, Maryland, and Missouri. The death in Missouri, a fourteen year-old middle school student, was the twelfth fatality along that set of tracks since 1996, when another student from the same middle school was killed by a train there. The Missouri victim’s parents asked Union Pacific, the railroad operator, to install fences along the tracks or take other protective measures, but the railroad reportedly refused, even in the face of lawsuit threats.
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A welder filed a products liability lawsuit, claiming that defects in the shirt he was wearing caused it to catch fire while he was operating a plasma torch. The suit, Hathaway v. Cintas Corporate Services, Inc., also asserted causes of action for breach of warranty and negligence. The District Court for the Northern District of Indiana granted summary judgment for the defendant on the breach of warranty and products liability claims, but allowed the negligence claim to proceed.

Plaintiff Rex Hathaway worked for Quik Cut, Inc. as a welder and plasma torch operator. His employer used uniforms provided by the defendant, Cintas Corporate Services. The rental agreement between Quik Cut and Cintas provided that Cintas would furnish work clothes and provide laundry and repair services. Hathaway was operating a plasma torch, a machine used to cut various types of metal, on February 12, 2009. Sparks from the plasma torch allegedly caused Hathaway’s shirt, a 100% cotton shirt provided by Cintas, to catch fire, and he suffered severe burns over much of his body.

Hathaway filed suit against Cintas, asserting causes of action for negligence, breach of warranty, and products liability. His wife also brought a cause of action for loss of consortium. Hathaway alleged that the shirt had both a manufacturing defect and a design defect, and he claimed that Cintas was liable for failure to warn of the risk of injury.

Cintas moved for summary judgment on the negligence, breach of warranty, and products liability claims. The court first ruled that the plaintiff’s breach of warranty claim was subsumed by his products liability claims. The court held that because the plaintiff did not claim economic damage for the loss of the shirt, the breach of warranty claims were based in tort, and were therefore part of the products liability claim under the Indiana Products Liability Act (IPLA).
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A Nebraska law allowing wrongful death claims for unborn children is getting its first test in a federal lawsuit. The suit, Baumann v. Slezak, et al, arises from a multi-vehicle accident that killed a family of four and their unborn child. It asserts causes of action for negligence and violations of federal trucking regulations. Several states, including Indiana, have passed statutes allowing wrongful death claims for unborn children at various stages of gestation, and courts in other states have recognized causes of action related to fetal death.

The accident giving rise to the lawsuit occurred on westbound Interstate 80 during the early morning of September 9, 2012. Traffic had become backed up for about a mile after two semi-trailers collided at about 4:30 a.m. One semi-trailer had become disabled and pulled onto the right shoulder. The driver, Vladimir Zhukov, however, allegedly left the trailer in a lane of traffic. Another semi-trailer driven by Keith Johnson reportedly collided with Zhukov’s trailer. The impact killed Johnson and caused his tractor to catch fire. The accident blocked all westbound lanes of the highway, creating a significant risk of further accidents for vehicles forced to stop on the highway.

Christopher and Diana Schmidt were traveling to California from Maryland with their two children, and Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. Diana Schmidt was driving a 2007 Toyota Corolla with the two children, and Christopher Schmidt was following her in a 2010 Ford Mustang. They were at the rear of the line of cars stopped because of the semi-trailer accident, with the Corolla stopped behind another semi-trailer, and the Mustang behind the Corolla. A semi-trailer driven by Josef Slezak approached the stopped traffic reportedly travelling at about seventy-five miles per hour. Allegedly without slowing or stopping, Slezak’s vehicle collided with the back of the Mustang at about 5:19 a.m., propelling it into the Corolla. This pushed the Corolla under the trailer in front of it. All four members of the Schmidt family and their unborn child died in the impact.
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Indiana has been one of the hardest-hit states in a nationwide fungal meningitis outbreak that has caused more than three hundred illnesses and over twenty deaths in eighteen states. Health officials believe an injectable medication from a Massachusetts pharmacy is the source of the infection. The pharmacy has recalled the medicine and ceased its facility’s operations. It is already facing lawsuits from victims alleging injury from a defective product, and Indiana state officials are seeking to suspend its license. Some victims may also be pursuing causes of action for medical negligence against the doctors and healthcare facilities that prescribed or administered the allegedly contaminated drugs.

At least forty-three reported cases, out of a national total, so far, of 328, are in Indiana. Three of the Indiana patients have died. The total death toll, as of October 25, 2012, is twenty-four. Investigations by the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) have determined that the fungal infection came from injections of methylprednisolone acetate, a steroid-based anti-inflammatory medication used to treat back pain. Authorities traced contaminated vials to the New England Compounding Center (NECC) in Framingham, Massachusetts. They suspect that the contamination occurred during the compounding process.

Victims are suffering from fungal meningitis, an infection affecting the spinal cord. Other types of meningitis may result from communicable viral or bacterial infections, but fungal meningitis is not contagious between people. It usually develops when an infectious fungus species gets into the bloodstream, such as through an injection, and spreads to the victim’s spine. The CDC believes it has identified the fungal species Exserohilum rostratum in at least fifty-two patients. The disease can be fatal, particularly in patients with compromised immune systems, and it can cause severe headaches, nausea, light sensitivity, and disorientation.
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An unexpected invocation of the Indiana Tort Claims Act (ITCA) led to the dismissal of an auto accident lawsuit in Schoettmer v. Wright, et al. The ITCA requires plaintiffs to serve written notice of a planned lawsuit against the state or one of its political subdivisions within 180 days of the loss. The defendant revealed in an amended pleading that it is a political subdivision of the state of Indiana, and the trial court granted summary judgment based on the plaintiffs’ lack of notice under the ITCA. The Indiana Court of Appeals affirmed the judgment with one dissent.

John Schoettmer sustained injuries in a November 24, 2008 automobile accident with Jolene Wright. Wright was acting in her capacity as an employee of South Central Community Action Program, Inc. (SCCAP) at the time of the accident. SCCAP is a private nonprofit corporation designated by the state as a “community action agency.” This makes it a political subdivision of the state, although SCCAP did not reveal this until several months into the eventual lawsuit.

Schoettmer corresponded with a claims adjuster for SCCAP’s insurer for several months after the accident. He rejected the insurer’s settlement offer in August 2009 and retained counsel. After his attorney could not negotiate a settlement, they filed suit against SCCAP and Wright in October 2010. SCCAP answered in November, and amended its answer with the court’s leave in February 2011 to add an affirmative defense of non-compliance with the ITCA. The trial court granted summary judgment for the defendants, finding that Schoettmer failed to serve the required notice by the 180-day deadline, which would have been around May 24, 2009.
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A Shelbyville man has submitted a tort claim to the Indiana Attorney General, indicating his intention to file a wrongful death lawsuit against the state’s Department of Child Services (DCS) over the death of his one year-old son. He alleges that DCS ignored warnings that the child’s mother and her boyfriend were abusing the child, and that the agency’s failure to intervene and protect the child contributed to his death. The man also notified the hospital that treated his son of his intent to file a medical negligence lawsuit.

According to Jerraco Noel, he reported the abuse of his son, Jayden, to DCS in July 2011. Jayden was treated in the emergency room of Major Hospital in Shelbyville on July 15, 2011 for injuries resulting from abuse by his mother and her boyfriend. DCS reportedly found Noel’s claims at the time “unsubstantiated.” Jayden died on January 18, 2012 from “multiple blunt-force traumatic injuries to the head.” Prosecutors have charged the mother and her boyfriend with neglect of a dependent causing death. Both have pleaded not guilty.

Noel claims that DCS “failed to conduct a reasonable investigation” after he reported his suspicions of abuse. He also alleges that the agency failed to consult with any of the medical professionals who treated Jayden, and that those medical professionals failed to report the injuries to DCS. He is demanding $700,000, the maximum amount of damages allowed by statute from DCS, for “loss of love and affection.”
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Drivers have dealt with distractions since the invention of the automobile. The explosive growth in the use of cell phones, however, has compounded the risks presented by distracted driving. Drivers who use their cell phones to talk, send text messages, or even read e-mail or web pages cause thousands of accidents around the country every year. A member of the National Transportation Safety Board (NTSB), the federal agency that investigates accidents and recommends safety regulations, went so far as the call distracted driving an “epidemic.” People injured by a distracted driver generally have a clear claim for damages from that driver. While courts have rejected attempts to recover damages from cell phone companies, plaintiffs have recovered from drivers’ employers, when the driver was engaged in work-related activities.

Distracted driving accounted for as many as 3,092 deaths in traffic accidents in 2010, according to the federal government. It was a factor in up to eighteen percent of all injury accidents that year. The government identifies three types of distraction:

Manual: where the driver takes one or both hands off the wheel.
Visual: where the driver is not watching the road.
Cognitive: where the driver’s attention (or mind) is not on the road.

Studies have suggested that even the use of a hands-free device like a headset does not improve overall safety, because it does not reduce cognitive distraction.

Indiana, like most states, has enacted laws restricting the use of cell phones while driving. Thirty-nine states, including Indiana, and the District of Columbia prohibit text messaging while driving. Indiana also prohibits drivers under the age of eighteen from any cell phone use while driving. Other laws include a ban on all handheld cell phone use (ten states and D.C.), and handheld cell phone use by school bus drivers (nineteen states and D.C.) No state has a ban on all cell phone use, including hands-free devices, although the NTSB recommended such a ban last year.
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Indiana ranks in the middle of the fifty states and the District of Columbia when it comes to injury prevention, according to a recent study. The study, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report,” is the work of the Trust for America’s Health (TFAH), a health care policy organization, in partnership with the philanthropic Robert Wood Johnson Foundation. The study ranks states and D.C. based on ten “key indicators” relating to injury prevention laws or regulations. Indiana has five of the ten. It also ranks the states based on the total number of annual injury-related deaths per 100,000 people. With a rate of 60.4, Indiana ties Kansas for the twenty-seventh highest rate.

The study analyzed injury data, which it says account for 180,000 deaths per year in America. The lifetime costs of injuries in the U.S., which includes both immediate costs and ongoing care needs, as well as lost income and productivity, exceeded $406 billion in 2000. Injuries, as compared to communicable and non-communicable disease, are the leading cause of death for Americans between the ages of one and forty-four. At 97.8 njury-related deaths per 100,000 people, New Mexico has the highest annual rate. New Jersey, with 36.1, has the lowest. Indiana and Kansas, tied at twenty-seventh, are almost exactly in the middle.
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