Indiana Supreme Court Decisions

August 30, 2012

Indiana Supreme Court Rules in Favor of Widow of Alleged Asbestos Victim, Allows Claim Against Contractor to Proceed

by Parr Richey Frandsen Patterson Kruse LLP

After her husband allegedly died from the effects of asbestos exposure, an Indiana woman filed suit against a company that provided services to his former employer. Her wrongful death lawsuit in Gill v. Evansville Sheet Metal Works, Inc. asserted claims for products liability and contractor negligence. Although the trial court dismissed both claims, and the Court of Appeals affirmed, the Indiana Supreme Court allowed the case to proceed on the contractor negligence claim.

Gale Gill worked for Aluminum Company of America, or Alcoa, at its plant in Newburgh, Indiana from approximately 1963 until 1986. As a “pot room worker,” he was tasked with the operation, maintenance, and repair of smelting pots. He allegedly experienced asbestos exposure during his time at the plant as a result of other people using and handling products that contained asbestos. In 2004, doctors diagnosed him with an asbestos-related illness. He died of lung cancer on May 4, 2005.

Sharon Gill, Gale Gill’s wife, filed suit against an Alcoa contractor, Evansville Sheet Metal Works, Inc. (ESMW), on May 4, 2007. ESMW allegedly provided services to Alcoa at the same work site where Gale Gill had all or part of his asbestos exposure. The exact time and location of ESMW’s alleged work remains undetermined, although all parties agree that any work that might have caused asbestos exposure occurred prior to 1989. The lawsuit went into the Mass Tort Asbestos Litigation Docket in Marion County, where it became subject to a stay.
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July 19, 2012

Indiana Court Allows Son’s Suit Against Father for Auto Accident Injuries to Proceed

by Parr Richey Frandsen Patterson Kruse LLP

The Indiana Supreme Court has ruled that a man who was injured when his father drove into him, pinning him between two vehicles, may sue for damages. A trial court dismissed the lawsuit in Robert L. Clark, Jr. et al vs. Robert L. Clark, Sr., based on a state law that bars suit between family members in certain circumstances. The Indiana Court of Appeals overturned the trial court’s dismissal based on a different reading of the state law, and the Indiana Supreme Court affirmed the appeals court’s decision.

Robert Clark, Sr. was driving a car on September 5, 2007, in which his son, 46 year-old Robert Clark, Jr., was a passenger. The son got out of the car when they got to their destination in order to direct his father into a parking spot. He stood several feet in front of the car and motioned his father forward into a parking space. Once the car was fully in the spot, the son motioned to his father to stop the car. The father pressed the accelerator instead of the brake pedal. The car lurched forward into Robert Clark Jr., pinning him between his father’s vehicle and the adjacent vehicle and causing extensive injuries to his legs.

Robert Clark, Jr. and his wife, Debra Clark, sued Robert Clark, Sr. for negligence. The trial court granted summary judgment for Robert Sr. based on his assertion of the Indiana Guest Statute as an affirmative defense. The Guest Statute bars suit for injuries against the operator of a vehicle by a family member of the operator, or a hitchhiker, provided the injury occurred while the person “was being transported without payment in or upon” the vehicle. The statute allows an exception for “wanton or willful misconduct” by the driver.
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June 12, 2012

Exploring the Limits of Indiana Rule of Evidence 702

by Parr Richey Frandsen Patterson Kruse LLP

More and more often, trial counsel try to impose the requirements of Indiana Rule of Evidence (“IRE”) 702 to limit and/or exclude expert testimony. Certainly, in the context of personal injury litigation, the parties can be expected to battle about who is qualified to render an expert opinion as to whether the collision, fall, etc. caused the plaintiff’s personal injuries. In recent cases handed down by the Indiana Supreme Court (Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012); Person v. Shipley, 962 N.E.2d 1192 (Ind. 2012)), we see challenges to expert testimony that went too far with arguments for more stringent requirements than are required under IRE 702. Fortunately, the Supreme Court has provided much needed guidance in this regard that will hopefully prevent unnecessary attempts to exclude proper expert testimony.

We have seen challenges to a psychologist/neuropsychologist’s qualification to testify as to the cause of a person’s brain injury. In Bennett, a psychologist testified that the plaintiff had a traumatic brain injury that was caused by the rear-end motor vehicle collision in which he was involved (plaintiff’s van was struck in the rear by a 42,000 pound truck). Defense counsel objected to this testimony, arguing the psychologist’s opinion was inadmissible under IRE 702.

It is clear that in Indiana a psychologist may testify as to the existence of a brain injury or the condition of the brain in general – the question addressed in Bennett was whether psychologists/neuropsychologists may testify as to the cause of a brain injury.

In Bennett, the Court of Appeals had agreed with the defense argument that psychologists who are not medical doctors, but otherwise qualified under IRE 702 to offer expert testimony as to the existence and evaluation of a brain injury, are not qualified to offer an opinion about causation without demonstrating sufficient medical expertise in determining the etiology of brain injuries. However, this standard goes beyond that which is required under IRE 702. Even though the psychologist did not have medical education or training regarding etiology of brain injuries, the Supreme Court held this was not fatal under an IRE 702 analysis because the psychologist demonstrated: his knowledge of how a brain injury might result from the whiplash motion experienced in a rear-ending accident; how such a brain injury results in symptoms similar to those experienced by the plaintiff; and how psychological and neuropsychological testing reveals the relationship between that brain injury and behavior.
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