Verdict Volume 35 No. 2

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INDIANA TRIAL LAWYERS ASSOCIATION

VERDICT

Published by

INDIANA TRIAL LAWYERS ASSOCIATION Editor JANET O. VARGO Volume 35 No. 2 2014

PREPARING EFFECTIVE DEMAND PACKAGES William J. Spalding

HOW TO EFFECTIVELY UTILIZE “ANCHORING” THROUGHOUT A TRUCKING TRIAL TO INCREASE DAMAGES Mike Phelps

TECHNOLAWGICAL Brad Catlin From left: Tom Doehrman, Daniel Chamberlain and Dan Buba.

Over 500,000 large truck and commercial vehicles were involved in accidents in 2010.

Truck collisions typically involve serious injuries and complex questions of law and fact. Semi drivers are trained professionals.

It is crucial these professionals, and the interstate carriers they work for, follow a complex set of rules known as the Federal

CLIENT/CASE MANAGEMENT AND TELLING YOUR “STORY” THROUGH DISCOVERY Fred Schultz

MEDICAL BILLING: THE CODE WAR Miles B. Cooper

Motor Carrier Safety Regulations (FMCSR). Our Indianapolis Truck Accident Attorneys have studied the FMCSR, lectured on the rules and regulations contained in the FMSCR to attorneys throughout the United States and have years of experience in the application of the FMCSR to truck crash lawsuits. In addition to their knowledge of the intricacies of the FMSCR, the attorneys at Doehrman Chamberlain have years of experience in handling cases involving life-changing injuries.

FEDERAL RULES CHANGES: ACCESS TO JUSTICE AT STAKE Arthur H. Bryant, Chairman of Public Justice

Call our office or visit our website for more information about referral and co-counsel opportunities.

CASE REPORTS

MEMBERSHIPS BRAIN INJURY ASSOCIATION OF INDIANA & BRAIN INJURY ASSOCIATION OF AMERICA BOARD OF DIRECTORS

Indiana Appellate Case Reporter • Verdicts & Settlements

CHAIR, AAJ TRAUMATIC BRAIN INJURY LITIGATION GROUP n CHAIR-ELECT, AAJ INTERSTATE TRUCKING LITIGATION GROUP

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Volume 35 No. 2 2014

Contents ARTICLES

IN EVERY ISSUE 2 3 23 42 43 44 55 56

ITLA Board of Directors ITLA Offic s and Executive Committee

Preparing Effective Demand Packages 5

by William J. Spalding

Technolawgical

to Effectively Utilize “Anchoring” 15 How Th oughout A Trucking Trial

Law-Pac of Indiana Contributors

Welcome New Regular and Sustaining Members

Management and Telling Your 26 Client/Case “Story” Th ough Discovery

Indiana Appellate Case Reporter Verdicts & Settlements Index of Advertisers

to Increase Damages

by Mike Phelps

by Fred Schultz

38

Medical Billing: The Code War

by Miles B. Cooper

Rules Changes: 40 Federal Access to Justice at Stake

by Arthur H. Bryant, Chairman of Public Justice

VERDICT is published by

150 West Market Street #210 Indianapolis, Indiana 46204

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OFFICERS AND EXECUTIVE COMMITTEE:

President President Elect Vice President Secretary Treasurer Treasurer Elect Immediate Past President

Steven L. Langer, Valparaiso James O. McDonald, Terre Haute John P. Young, Indianapolis Daniel S. Chamberlain, Indianapolis Franklin D. Julian, Jr. South Bend Thomas E. Hastings, Indianapolis Mark C. Ladendorf, Indianapolis

AT LARGE MEMBERS OF EXECUTIVE COMMITTEE:

Emily Guenin-Hodson, Wabash Thomas E. Hamer, Anderson Daniel A. Ladendorf, Indianapolis

Peter D. Palmer, New Albany Daniel H. Pfeifer, South Bend Fred Schultz, Bloomington

DIRECTORS:

Rex Baker, Avon Nick Baker, Indianapolis Thomas D. Blackburn, Fort Wayne Dan Buba, Indianapolis Edward J. Chester, Elkhart J. Aaron Cooke, Lafayette Kimberly H. Danforth, Indianapolis Gloria Danielson, Indianapolis Robert T. Dassow, Indianapolis Nicholas C. Deets, Indianapolis Robert H. Ebbs, Indianapolis G. Steven Fleschner, Terre Haute Christopher B. Gambill, Terre Haute Jerry Garau, Indianapolis Dennis Geisleman, Fort Wayne Barbara Germano, Indianapolis Caroline Gilchrist, Avon David S. Gladish, Highland Matthew M. Golitko, Kokomo R.T. Green, Fort Wayne Mark C. Guenin, Wabash Emily Guenin-Hodson, Wabash Thomas E. Hastings, Indianapolis George Hoffman, III, Indianapolis Monica L. Humphrey, Kokomo Robert Johnson, Indianapolis Franklin D. Julian, Jr., South Bend Daniel A. Ladendorf, Indianapolis Steven L. Langer, Valparaiso James F. Ludlow, Indianapolis

Sam Krahulik, Indianapolis Thomas A. Manges, Fort Wayne Mark A. Matthes, Goshen Jack E. Morris, Fort Wayne Jeff Oliphant, Indianapolis Peter D. Palmer, New Albany Terry Kaiser-Park, Indianapolis Anthony W. Patterson, Lebanon Daniel H. Pfeifer, South Bend Jason R. Reese, Carmel Gregory J. Sarkisian, Portage Kelly Scanlan, Indianapolis Matthew J. Schad, New Albany Fred Schultz, Bloomington Marc Sedwick, Indianapolis Jason Shartzer, Indianapolis Michael J. Stapleton, Lafayette Jeffrey J. Stesiak, South Bend David W. Stewart, Carmel Yasmin L. Stump, Indianapolis Jennifer L. Thompson, New Albany Bryan C. Tisch, Indianapolis John F. Townsend, III, Indianapolis Stephen M. Wagner, Carmel C. Dennis Wegner, Indianapolis William P. Woods, Evansville Tara M. Worthley, Valparaiso Jeff Wrage, Valparaiso Amanda Yonally, Indianapolis John P. Young, Indianapolis

J. Michael Antrim, Noblesville Bruce D. Aukerman, Terre Haute Edward E. Beck, Fort Wayne Charles L. Berger, Evansville Sandy L. Bryant, Indianapolis Daniel S. Chamberlain, Indianapolis C. Jack Clarkson, Rushville Lance D. Cline, Indianapolis Sherrill W. Colvin, Fort Wayne Neil R. Comer, Osgood Jeffrey A. Cooke, Lafayette P. Gregory Cross, Muncie Frederick W. Crow, Indianapolis Thomas C. Doehrman, Indianapolis Richard S. Eynon, Columbus David L. Farnbauch, Fort Wayne Kevin P. Farrell, Indianapolis John O. Feighner, Fort Wayne Mary A. Findling, Indianapolis W. Brent Gill, Bedford Robert F. Gonderman, Jr., South Bend George Clyde Gray, Indianapolis Lynette Gray, Franklin Betsy K. Greene, Bloomington Thomas E. Hamer, Anderson Daniel J. Harrigan, Kokomo Patrick W. Harrison, Columbus F. Boyd Hovde, Indianapolis Frederick R. Hovde, Indianapolis Max Howard, Anderson William W. Hurst, Indianapolis Samuel L. Jacobs, Indianapolis D. Bruce Kehoe, Indianapolis Paul S. Kruse, Lebanon

Mark C. Ladendorf, Indianapolis C. Max Layden, Lafayette Thomas M. Leatherman, Goshen Kathy A. Lee, Indianapolis Thomas F. Macke, Valparaiso C. Richard Marshall, Columbus James R. Martin, Kokomo James O. McDonald, Terre Haute W. Scott Montross, Indianapolis Peter L. Obremskey, Lebanon Stephen A. Oliver, Martinsville Roger L. Pardieck, Seymour Henry J. Price, Indianapolis Mary Beth Ramey, Indianapolis Michael Riley, Rensselaer Daniel A. Roby, Fort Wayne Timothy A. Rowe, Indianapolis David V. Scott, New Albany Mark A. Scott, Kokomo Theodore F. Smith, Jr., Anderson David T. Stutsman, Elkhart Roy T. Tabor, Indianapolis Teresa L. Todd, Indianapolis John F. Townsend, Jr., Indianapolis Karl N. Truman, Jeffersonville John D. Ulmer, Goshen Charles R. Vaughan, Lafayette Donald W. Ward, Indianapolis Stephen L. Williams, Terre Haute William E. Winingham, Indianapolis Robert W. York, Indianapolis Louis B. Yosha, Indianapolis James H. Young, Indianapolis Richard A. Young, Indianapolis

EMERITUS DIRECTORS:

VERDICT is published in the interest of the members of the Indiana Trial Lawyers Association Corp. and the legal profession to improve communications with the legal community.

Statements and opinions expressed in editorials or articles are not necessarily those of the ITLA. Publication of advertising does not imply endorsement of products, services or statements made concerning them. All advertising is subject to approval of the publisher; publisher reserves the right to reject advertising.

Contributions should be mailed to: VERDICT Indiana Trial Lawyers Association, Corp., 150 West Market Street, #210 Indianapolis, IN 46204 All editorial and article copy is subject to approval of the publisher; publisher reserves the right to reject editorial and article copy. This magazine will assume no responsibility for loss of or damage to such material. Any material accepted is subject to such revision as is necessary in our sole discretion to meet the requirements of this publication.

Material published in VERDICT remains the property of this magazine. No material, nor part thereof, may be reproduced nor used out of context without prior, specific approval of an proper credit to the magazine. hhh ATTENTION: VERDICT solicits scholarly articles of interest to the trial bar from its membership or the judiciary.

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Please submit typewritten manuscript to: Editor-VERDICT-ITLA 150 West Market St., #210 Indianapolis, IN 46204

HONORARY MEMBERS OF THE BOARD OF DIRECTORS: Glenn J. Tabor, Rochester

ASSOCIATE MEMBERS OF THE BOARD OF DIRECTORS: Richard L. Brown, Jr., Indianapolis Thomas A. Clements, Merrillville John C. Grimm, Auburn Susannah M. Hall-Justice, Lafayette Ronald F. Layer, Hammond Irwin B. Levin, Indianapolis Michael Miller, Indianapolis John Muller, Indianapolis

John Nichols, Terre Haute Bridget O’Ryan, Indianapolis Gayle Pettinga, Evansville William N. Riley, Indianapolis Stanley Rosenblatt, Fort Wayne Larry Schad, New Albany John Schuerman, Batesville Rusell Sipes, Indianapolis Charles Ward, Indianapolis Joseph Young, Indianapolis

2 • VERDICT

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2014-2015 ITLA OFFICERS and EXECUTIVE COMMITTEE

Steven L. Langer President Langer & Langer Valparaiso

Mark C. Ladendorf Immediate Past President Ladendorf & Ladendorf Indianapolis

John P. Young Vice-President Young & Young Indianapolis

Daniel S. Chamberlain Secretary Doehrman & Chamberlain Indianapolis

James O. McDonald President-Elect McDonald Law Office Terre Haute

Franklin D. Julian, Jr. Treasurer Sweeney Julian, P.C. South Bend

Thomas E. Hastings Treasurer-Elect The Hastings Law Firm Indianapolis

Thomas E. Hamer Attorney At Law Anderson

Emily Guenin-Hodson Guenin Law Wabash

Daniel A. Ladendorf Ladendorf & Ladendorf Indianapolis

Peter D. Palmer Palmer Thompson New Albany

Daniel H. Pfeifer Pfeifer Morgan and Stesiak South Bend

Fred Schultz Greene & Schultz Bloomington Summer 2014 ⁜ VERDICT • 3

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LADENDORF LAW PERSONAL INJURY TRIAL LAWYERS PERSONAL INJURY • AUTOMOBILE ACCIDENTS MOTORCYCLE ACCIDENTS • PRODUCT DEFECTS PREMISES LIABILITY CONSTRUCTION/WORK RELATED ACCIDENTS MEDICAL MALPRACTICE • WRONGFUL DEATH

7310 N Shadeland Avenue | Indianapolis, Indiana 46250 P: 317.842.5800 | TF: 888.925.3700 | F: 317.842.5858

4 • VERDICT

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William J. Spalding

PREPARING EFFECTIVE DEMAND PACKAGES I. Introduction Preparing an effective demand package cannot – and should not – be done overnight or over the course of a few days. Records from healthcare providers, employers, law enforcement agencies, and oftentimes the federal government (i.e., CMS and MSPRC) must be secured and reviewed. Client narratives must be written. Liens must be investigated. Photographs and statements must be obtained. Even in seemingly straightforward injury cases, an effective demand package should mark the culmination of careful consideration and investigation. Each case no doubt presents its own unique facts and circumstances; however, with a few exceptions (e.g., time constraints arising out of the statute of limitations), the same pre-suit process necessary for preparing effective demand packages should be followed for any number of reasons. The purpose of this article is to identify the elements of an effective demand package and to offer suggestions for succinctly and powerfully presenting this information.

II. Value of an Effective Demand Package An effective demand package accomplishes several important objectives. Providing the decision maker with all of the information necessary to evaluate your case is certainly the most obvious reason for preparing a demand package. But you are not merely producing factors and numbers to be plugged into one of the many computer programs and algorithms used by the insurance industry (e.g., Colossus, Claim Loss Underwriting Exchange, Automated Property Loss Underwriting System, ISO Index, etc.). You have the opportunity to frame your case and emphasize the unique and compelling facts about your client and the true impact of his or her injury. Th s is important for a few reasons. The programs and algorithms used by the insurance industry depend upon information selected by an adjuster or claims representative.

While the program or algorithm has no empathy or sympathy, this may not be (but often is) the case for the adjuster or claims representative. Most insurance companies also acknowledge the shortcomings of such programs and algorithms and give the adjuster or claims representative discretion to consider how a jury, not a computer, will ultimately value a case. Further, preparing a thorough and quality demand package will demonstrate to the adjuster or claims representative not just your commitment to the case, but also your overall capabilities. You get to set the tone.

An effective demand package will benefit you as well even if the case does not settle.

To properly prepare a demand package, you will in essence frontload much of the work that can be, and often is, set-aside during the initial phases of litigation. You will be forced to consider most, if not all, of the important aspects of your client Summer 2014 ⁜ VERDICT • 5

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PREPARING EFFECTIVE DEMAND PACKAGES

and his or her case. You will likely discover additional strengths of your case, not to mention your client’s “story” or the theme of the case. Perhaps more importantly, you will also identify the weaknesses of your case. Th s will allow you to go on the offensive and minimize these aspects of your case in your demand package. Again, this takes planning, organization, and a lot of time. It is worth it.

III. Contents of an Effective Demand Package An effective demand package need not adhere to any uniform rules. There are no page limits. The rules of discovery do not apply. Make your client stand apart from other claimants. Transform his or her claim from a stack of papers to a compelling story. Th s can be done in any number of ways. Be creative. Consider including in your demand package formats that cannot be easily scanned (e.g., three-ring binders, CDs, DVDs, etc.). Consider the tendencies of the insurance company and, if you know, who will be the ultimate decision maker (e.g., adjuster, claims representative, claims supervisor, in-house counsel, corporate manager, etc.). Know your audience.

When assembling your demand package, keep in mind the ultimate goal of providing the decision maker with everything that he or she will need to make a decision on your client’s claim. An effective demand package should at the very least include a detailed factual summary; a discussion of the insured’s liability; a description of your client’s injuries and damages; all relevant medical and billing records; proof of lost wages (if applicable); photographs of your client and his or her injuries; a summary of special damages; and a demand letter. Once more, there are no set rules for presenting this information to your decision maker. For instance, many of the aforementioned elements can be incorporated directly into the demand letter and then repeated in the attached materials. You can include any number of supporting documents, including police reports, drawings, and accident reconstructions. It is also a good idea to include verdict reports that demonstrate comparable verdicts and settlements.

A. Factual Summaries and Client Narratives

An effective demand package requires more facts than those identifi d in medical records or police reports. You need to fill in the gaps with factual details. Where had you client been prior to the collision? Where was she going? What did she do the previous day/evening? What medications was she taking and for what reasons?

Who was she with? What kind of clothing (including shoes) was she wearing?

What did the collision sound like? What did it smell like? Who else witnessed the incident? When and where did she feel pain? Had she ever suffered a similar injury? Why did she wait to see a physician? What were the benchmarks of her medical treatment? What could she do – and not do – after the collision? Who paid her medical bills? What were her out-of-pocket expenses? The list goes on and on.

Do not wait until you begin preparing the demand package to learn the relevant facts. Memories fade. No matter how long you initially met with your client, you

6 • VERDICT

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cannot rely solely on your notes from this meeting to adequately set forth the facts in an effective demand package. Most clients are nervous during such meetings and often leave out important facts. And not all of the facts may be known at that time, particularly if your client was still undergoing treatment for her injuries. To ensure that you know all of the relevant facts, ask your client early in the case to prepare a written summary of everything that occurred during the incident and in the course of her subsequent treatment. Explain that this is one of her few “homework” assignments in the case. Find out how electronically savvy she is and, if necessary, provider her with the necessary resources (e.g., paper, postage, etc.).

Discuss with your client the attorney/client privilege and encourage her to error on the side of including too much information. Consider providing your client with an introductory letter that sets forth the expected phases of a personal injury claim and how he or she can help you discover all of the relevant facts.

B. Photographs

It is unquestionably a new day when it comes to photographs and videos. Find out as soon as possible if any relevant pictures or videos exist of the scene or your client’s injuries. They likely do. Learn how to copy pictures and videos from a phone. Do not wait for your client to send her pictures or videos. Phones can break or be lost.

Ask your client if anyone else was present at the scene. If so, he or she likely had a phone and recorded something. Learn how to use Google Earth (including the street view option). And do not neglect to investigate the old-fashioned ways of recording. Most investigating offic s take pictures that are rarely included in the standard offic ’s report. Nearby businesses are often equipped with surveillance cameras. You may not be able to get the video without a subpoena, but you can send a spoliation letter or request that it be preserved. Otherwise these videos tend to quickly disappear.

C. Medical and Billing Records

Medical and billing records are an integral aspect of nearly every personal injury case. With few exceptions, you should have all of your client’s relevant medical and billing records before sending a demand package. Sending incomplete records looks lazy or, worse, like you are hiding something. Do not rely on your client’s memory of his or her providers. Most clients are unaware of how many providers they have seen, particularly during hospital admissions and trips to the ED (e.g., radiology, pathology, anesthesia, the ED group, ambulance/EMT service, etc.). In addition to the list provided to you by your client, keep track of the providers carbon copied on important records and do not forget to request records from secondary providers like physical therapists. If your client has health insurance, ask for a recent EOB to cross check the providers who have submitted claims. Medpay summaries are another helpful tool to identify all of your client’s providers.

Securing complete medical records can take several weeks (or months if your client treated at a VA facility). It is thus imperative to request medical records as soon as possible. For the most part, billing records are easier to secure than treatment 8 • VERDICT

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Spalding

records; however; if your client was on Medicare or received disability assistance, keep in mind that the insurance company will require a Conditional Pay Letter from CMS/MSPRC before it sends your client a check. Th s process can take months and should be initiated as soon as possible. Have your client execute the necessary releases and authorizations during the initial consultation. It is also a good idea to get your client’s consent to establish an online account with Medicare on his or her behalf. Th s will allow you to keep track of Medicare payments without having to spend hours on the telephone.

D. Demand Letters

As with the demand package, a demand letter need not adhere to any rules. Th s cannot be overemphasized. You do not have to include a beginning, middle, and end. Paragraphs do not have to start with a topic sentence. Bluebook citations are optional. While most effective demand letters include a discussion of certain fundamental aspects of the case (i.e., the facts, the insured’s liability, the applicable Indiana law, the client’s injuries and damages, and a settlement offer), there is no correct or uniform way to present this information. Moreover, most current word processing programs include several user-friendly options and capabilities previously unavailable to personal injury attorneys. Pictures can be easily resized and inserted into the composition of the letter. Diagrams, graphs, and charts can be customized with little effort. Maps and aerial photographs are readily accessible online and can likewise be inserted directly into the word document. Important sections of medical charts, police reports, or other records no longer need to be identifi d with block quotes. Instead, a cropped image of the actual document can be easily and seamlessly inserted directly into the demand letter.

Demand letters are not book reports and should never consist of only words. Pictures provide you with an opportunity to not only break up the monotony of prose, but also help the adjuster or claims representative remember your case. Strive to put a face with your client’s name. Do not be timid with graphic pictures of the scene or your client’s wounds, injuries, and/or scars. If the pictures are accurate and relevant depictions, they can and should be used in the demand letter itself as well as in an attachment. By contrast, be careful about including underwhelming pictures, particularly in mild impact soft injury cases. Since the insurance industry has long targeted these cases, providing the decision maker with such pictures can do more harm than good. As with factual narratives, ask your client for as many pictures as possible, including some that are ostensibly unrelated to his or her claim. A happy family photograph is often more persuasive than merely alleging that your client is a devoted father and husband.

Like pictures, consider including actual portions of your client’s medical records in the demand letter. Not every medical record is equally important; in fact, most cases involve only a handful of particularly important medical records. Consider attaching hard copies of these selected records to the demand letter along with a disk that contains the complete copies from the provider. You may also consider highlighting Summer 2014 ⁜ VERDICT • 9

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certain portions of the selected record to further emphasize its importance to your client’s case, but be sure to clearly indicate the origin of the highlighting to avoid any appearance that the records have been altered.

IV. Conclusion Preparing an effective demand package unquestionably takes time and effort. Given the frustrating direction of the insurance industry, it may be tempting to bypass this pre-suit process and simply file a complaint as soon as possible. Resist the urge. Send a shot across the bow. Even if your case does not get resolved pre-suit, assembling an effective demand package will not only force you to comprehensively consider your case at the outset, but will also send a strong message to the insurer and your client. Preparing an effective demand package is worth your time and effort.

WILLIAM J. SPALDING is the owner of Spalding | Law LLC. Will earned his undergraduate and law degrees from Indiana University Bloomington in 1998 and 2003, respectively. From 2003 to 2008, he practiced in Indianapolis and primarily represented physicians and other healthcare providers. He has since returned to Bloomington where he focuses his practice on personal injury claims and criminal defense, as well as probate and estate administration. Among other professional memberships, Will is a member of the Monroe County and Indiana State Bar Associations, as well as the Indiana Trial Lawyers Association.

He is an active volunteer for the District 10 Pro Bono Project and Indiana University’s Protective Order Project. Will also serves on the boards of several local non-profit agencies, including Big Brothers Big Sisters of South Central Indiana. Will lives in Bloomington with his wife, Errin, and their awesome children, Hud and Sadie Mae.

Have you used our Verdict and Settlements Database for information?

Make sure you contribute to it as well!

Visit www.indianatriallawyers.org/SubmitVerdict to share your verdicts and settlements with fellow ITLA peers. It only takes a couple minutes and could be the turning point in another member’s case. Currently the database has almost 700 cases to be utilized by members

… do your part and help your fellow trial lawyers!

10 • VERDICT

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Spalding James L. Whitlatch January 4, 2013 3|Page

James L. Whitlatch January 4, 2013 6|Page

did not “pass” the wingnut because it was not in her rectum. Instead, she continued to experience constant and increasingly worse abdominal pain. thus returned to the ED at Good Samaritan Hospital on July 13, 2012. Holly Dagney, D.O., the ED physician on duty at the time, ordered a KUB that showed a metallic radiodensity over the pelvis (see below). Dr. Dagney also ordered an outpatient ultrasound and instructed to schedule appointments with a gynecologist and gastroenterologist. In the meantime, was given analgesics to treat her pain.

This conclusion is supported by the endoscope photos that depict how deeply embedded the wingnut had become in ’s tissue. This can only happen over a long period of time. Further, while a wingnut may not seemingly be part of a common surgical instrument, the operation of most abdominal retractors includes the use of at least one wingnut:

underwent the ultrasound three days later on July 16, 2012. The study was obscured by bowel gas and body habitus, but showed a cyst within the lower uterine segment. On July 24, 2012, presented to Shalin Arnett, D.O., a gynecologist. She reported severe and persistent pain in her lower abdomen and pelvic region. As she had at the hospital, again denied ingesting or inserting any foreign body into her rectum, particularly a wingnut. Dr. Arnett was apparently skeptical and referred to Richard Walter, D.O., a gastroenterologist. presented to Dr. Walter as instructed on August 6, 2012. He recommended a colonoscopy. agreed and underwent the procedure four days later on August 10, 2012. The study was normal. Dr. Walter advanced the endoscope 5 inches into the terminal ileum, but saw no foreign bodies. There was nothing in ’s rectum or colon.

Travelers Insurance Attn: Erin Hahn March 20, 2013 2|Page

The closing instrument counts may have been correct after ’s laparotomy at Bloomington Hospital; however, this only means the circulator or scrub accounted for the abdominal retractors, not each wingnut of the assembly. One of the wingnuts must have been left behind. For the foregoing reasons, this was a deviation from the applicable standard of care that gives rise to a presumption that Bloomington Hospital was negligent.

B. Statute of Limitations I.C. § 34-18-7-1 provides that a claim against a health care profession, based upon treatment that was provided or should have been provided, must be filed “within two (2) years after the date of the alleged act, omission, or neglect.” As you know, the statute has been the subject of much litigation. While our supreme court has held that the occurrence-based limitations period is constitutional on its face, it has also decided that the statute denies any remedy and thus violates the Indiana Constitution if it is applied to bar the claim of a patient who could not reasonably be expected to learn of the injury within the two-year period. Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999.)

Michael D. Conner October 13, 2013 3|Page

As you know, did not tolerate the procedure well. His blood pressure dropped to 63/40 after he was transferred from the catheterization lab table to a cart.

He remained slightly sedated but responsive, at least initially. Normal saline was increased to 200 ml/hr. Narcan 0.2 mg was administered intravenously at 12:08 p.m., and then again at 12:11p.m., 12:16 p.m., and 12:20 p.m. blood pressure stabilized but he remained hypotensive (70/43). He also had diarrhea. Romazicon 0.2 mg was administered intravenously at 12:26 p.m., and then again at 12:30 p.m. and 12:34 p.m. (0.1 mg).

Thornton

No one (including Thornton and three witnesses) disputes what occurred. When Thornton pulled out onto Bloomfield Road, – who was wearing his seatbelt and driving the speed limit (45 mph) – applied his breaks but could not prevent his vehicle from colliding into the garbage truck. According to Thornton, he intended to turn left (east). Thornton saw approaching, but was unable to cross the westbound lane because his tires supposedly spun on the wet pavement.

suddenly stopped breathing at 1:16 p.m. A code was called and assisted ventilation with an Ambu bag was initiated. became asystolic without pacemaker capture. CPR was initiated. Epinephrine and Calcium Chloride were administered intravenously at 1:19 p.m. Within minutes, blood pressure increased to 240/165. At 1:24 p.m., blood was drawn for a blood glass study. An echocardiogram was started at 1:33 p.m. Dopamine and Lasix were given at 1:36 p.m. and 1:37 p.m., respectively. The echocardiogram ended at 1:40 p.m. In both his Discharge Summary and Code Note, Dr. Gering indicated that the echocardiogram showed “small” pericardial effusion without tamponade; however, as you know, the study actually showed moderate pericardial effusion and severely reduced left ventricular systolic function with an ejection fraction of only 5-10%. became asystolic a few minutes later. CPR was again initiated and repeat boluses of Epinephrine, Calcium Chloride, and Sodium Bicarbonate were administered.

A Lucas CPR device was placed at 1:46 p.m. When the device was turned off, was not breathing and had no pulse. Dr. Gering pronounced dead at 1:52 p.m. He then informed family about what had happened. The news overwhelmed . In an instant, the love of her life was gone. Her husband of sixty-six years was dead. broke down but nevertheless wanted to see body. Dr. Gering later prepared the following Code Note:

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Let us take a fresh look at your case.

Litigation is compLex. Appeals are different than trials.

We can provide effective assistance when and where you need it.

Have Brief. Will Travel. SM www.GueninLaw.com 260.569.7900

Mark Guenin

Emily Guenin-Hodson

12 • VERDICT

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Spalding William J. Spalding

Attorney at Law

will@spalding-law.com

October 13, 2013 VIA U.S. MAIL FOR SETTLEMENT PURPOSES ONLY Michael D. Conner SPITZER HERRIMAN STEPHENSON HOLDEREAD MUSSER & CONNER LLP P.O. Box 927 Marion, IN 46952 Re:

Estate of

v. Lawrence E. Gering, M.D.

Dear Mike: As you know, I represent the Estate of , particularly with regard to the care and treatment that he received from your client, Lawrence E. Gering, M.D. As you also know, Dr. Gering’s colleagues on the medical review panel agree that his care and treatment of deviated from the applicable standard of care and ultimately caused ’s wrongful death. The following is our formal settlement demand.

I. was born on the family farm in Bunker Hill on October 7, 1921.

After he graduated from high school, continued to work on and eventually took over the family farm. Like many farmers, was hardworking, humble, and honest. In 1943, he married his childhood sweetheart, . Together they had three sons. In addition to farming, was a member of the Pipe Creek Volunteer Fire Department and Pipe Creek Advisory Board. He was also a member of the Bunker Hill United Methodist Church. past medical history has been well documented. As you know, he suffered from atrial fibrillation, congestive heart failure, chronic renal insufficiency, coronary artery disease, diabetes, pulmonary hypertension, hyperlipidemia, and prostate cancer.

Despite his age and comorbidities, health was for the most part stable. In 2008, and moved into an assisted living facility located just a few miles from their farm.

100 S. College Ave., Ste. 220, Bloomington, Indiana 47404 Voice: (812) 650-4950 Facsimile: (888) 894-2345 www.spalding-law.com

diplopia, ataxia, and blurred vision in patients receiving carbamazepine with lamotrigine than in patients receiving other AEDs with lamotrigine [see Adverse Reactions (6.1)]. The mechanism of this interaction is unclear. The effect of lamotrigine on plasma concentrations of carbamazepine-epoxide is unclear. In a small subset of patients (n = 7) studied in a placebocontrolled trial, lamotrigine had no effect on carbamazepine-epoxide plasma concentrations, but in a small, uncontrolled study (n = 9), carbamazepine-epoxide levels increased.

The addition of carbamazepine decreases lamotrigine steady-state concentrations by approximately 40%.

Felbamate: In a study of 21 healthy volunteers, coadministration of felbamate (1,200 mg twice daily) with lamotrigine (100 mg twice daily for 10 days) appeared to have no clinically relevant effects on the pharmacokinetics of lamotrigine.

Folate Inhibitors: Lamotrigine is a weak inhibitor of dihydrofolate reductase. Prescribers should be aware of this action when prescribing other medications that inhibit folate metabolism.

Gabapentin: Based on a retrospective analysis of plasma levels in 34 patients who received lamotrigine both with and without gabapentin, gabapentin does not appear to change the apparent clearance of lamotrigine.

Levetiracetam: Potential drug interactions between levetiracetam and lamotrigine were assessed by evaluating serum concentrations of both agents during placebo-controlled clinical trials. These data indicate that lamotrigine does not influence the pharmacokinetics of levetiracetam and that levetiracetam does not influence the pharmacokinetics of lamotrigine.

Lithium: The pharmacokinetics of lithium were not altered in healthy subjects (n = 20) by James L. Whitlatch coadministration of lamotrigine (100 mg/day) for 6 days.

May 8, 2013 Olanzapine: The AUC and Cmax of olanzapine were similar following the addition of 9 | P a g e olanzapine (15 mg once daily) to lamotrigine (200 mg once daily) in healthy male volunteers (n = 16) compared with the AUC and Cmax in healthy male volunteers receiving olanzapine alone (n = 16). the co-administration of Lamictal and Trileptal does not affect the pharmacokinetics of were reduced average by 24% In fact, the In the same study, the AUC and Cmax of lamotrigine either drug compared to the administration of the drugs onindividually. andGuide 20%, respectively, following the addition of olanzapine tothe lamotrigine in healthy male Medication for Lamictal expressly addresses lack of interaction between the volunteers compared with those receiving lamotrigine alone.

This reduction in lamotrigine two medications: plasma concentrations is not expected to be clinically relevant.

Oxcarbazepine: The AUC and Cmax of oxcarbazepine and its active 10-monohydroxy oxcarbazepine metabolite were not significantly different following the addition of oxcarbazepine (600 mg twice daily) to lamotrigine (200 mg once daily) in healthy male volunteers (n = 13) compared with healthy male volunteers receiving oxcarbazepine alone (n = 13).

In the same study, the AUC and Cmax of lamotrigine were similar following the addition of oxcarbazepine (600 mg twice daily) to LAMICTAL in healthy male volunteers compared with those receiving LAMICTAL alone. Limited clinical data suggest a higher incidence of headache, dizziness, nausea, and somnolence with coadministration of lamotrigine and oxcarbazepine compared with lamotrigine alone or oxcarbazepine alone.

44

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14 • VERDICT

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Mike Phelps

HOW TO EFFECTIVELY UTILIZE “ANCHORING” THROUGHOUT A TRUCKING TRIAL TO INCREASE DAMAGES I. ARGUING DAMAGES IN PERSONAL INJURY TRUCKING CASES When the jury in a personal injury or wrongful death trial fi ds the defendant at fault, their next task is to determine the amount of damage caused by the defendant’s wrongs. Universally, plaintiff ’ counsel believe that this is a difficult task, and jurors always seem to get hung up on this issue in a trial, even as early as in voir dire.

The main problem arises from the lack of guidance the law provides in the determination of damages. Secondarily, the difficulty stems from the inherent uncertainty of the projections that jurors are asked to make concerning, for example, likely future medical bills and economic losses. Finally, jurors must try to calculate the value of the nebulous losses associated with pain and suffering that have no tangible life experience bases.

Confronted with the difficult task of determining damages by assessing the damage done to a plaintiff and then translating the injury into an award that will fairly compensate the plaintiff, jurors look for guidance from trial counsel. Counsel can use the psychology of “anchoring” to help, or push, the jury to an award.

It appears that jurors may latch onto an “anchor” that provides a starting point that will, in the end, help them reach an award.

In the courtroom jurors will listen to the most important “anchor,” trial counsels’ recommendations. Here in Indiana, the law permits, almost without limitation, trial counsel to argue for any monetary amount. In fact, a few years ago a defense attorney filed a Motion in Limine to attempt to prevent me from arguing damages on a “per diem” basis (something I NEVER do anyway). The Court’s response to the Motion was to tell the movant that, “Mr. Phelps can ask the jury for whatever he wants—if he asks for $100.00 and a unicorn, he may do so at his own peril.”

The Judge’s response was well taken, as all trial counsel must be critical of what she asks for—as it will be at her “own peril,” but beginning to anchor the damages starting with voir dire and opening statement will get the jury thinking about the severity (or lack thereof) of a case from the get-go.

II. ANCHORING IN THE REAL WORLD & THE COURTROOM In a classic study by Tversky and Kahneman in Judgment Under Uncertainty: Heuristics and Biases, 185 SCI., 1124 (1974), the authors point out the value and danger of anchoring.

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Phelps

In that study, the authors asked participants to estimate the percentage of African countries in the United Nations, after fi st guessing whether the percentage was higher or lower than an arbitrary number that ostensibly had been selected by spinning a wheel of fortune. When the wheel of fortune landed on 65 percent, the estimates by participants averaged 45 percent; when the wheel value (the anchor) landed on 10 percent, the average estimate was 25 percent. Thus, even this arbitrary and irrelevant anchor had a substantial impact on estimates, despite the fact that the participants could see that the spinner produced an arbitrary value. Other research on anchoring has demonstrated that the anchoring effect is extremely robust. Although anchors are more influential when decision makers are not confide t in their judgments, anchoring works even when participants are experts in the judgment domain and occurs even when participants are forewarned and highly motivated to remain uninfluenced.

As studies by authoritative psychologists have shown in the real world, anchors are used by everyone and can be grounded and ungrounded estimates. For example, the asking price for a house refl cts the characteristics of the property and the wishful thinking of the prospective seller. In the courtroom, the anchors that attorneys offer to the jury can also be derived from relevant information grounded in case facts and from ungrounded wishful thinking and blatant attempts to affect damage awards, which is the goal of the trial lawyer.

The types of damages we try to influence in the courtroom are past medical expenses and lost wages, future medical expenses and lost wages, and pain and suffering vary in the degree to which objective evidence presented at trial provides guidance for attorney requests and reduce the uncertainty of the jury or judge in assessing the appropriate level of damages. The focus on those evidentiary indicators is emphasized during jury instructions in which jurors are asked to decide the case based on the evidence presented at trial.

The evidence that provides the background for attorney requests will include testimony from doctors who render treatment and offer expert testimony about future medical needs.

Medical expenses may be presented as exhibits. Economists and vocational rehabilitation experts may offer testimony about the plaintiff ’s lost future earnings, basing those predictions in knowledge about labor markets and rehabilitation opportunities, as well as in subjective opinions of what the plaintiff is capable of doing. Thus, jury instructions will give the average life expectancy for the plaintiff, providing groundwork for assessing future damages.

That brings us to pain and suffering which has numerical value from testimony, exhibits, or fi al instructions. It’s in the attorneys’ arguments (and if done properly also during voir dire and opening statement) that the jury hear about a potential anchor for pain and suffering as trial counsel attempt to persuade the jury as to the value of that vital element of damage, pain and suffering. Th s lack of a quantitative

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Pete Palmer is as comfortable in Kentucky as a barrel of bourbon.

S

ure, he’s your go-to guy for malpractice and personal injury cases in Southern Indiana. But you might not know he’s spent a lot of time in Kentucky. And so has his law partner, Jennifer Thompson.

In Kentucky or Southern Indiana, there’s no better choice for your referrals.

Call the names you know.

404 E Main St • New Albany, IN 47150 • 812.704.1199

www.palmerthompsonlaw.com • www.facebook.com/palmerthompsonlaw • @PTAttorneys ppalmer@palmerthompsonlaw.com • jthompson@palmerthompsonlaw.com

18 • VERDICT

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Phelps

evidentiary bases make a pain and suffering damage suggestion particularly potent anchors.

III. ANCHORING STARTS IN VOIR DIRE Use voir dire to condition the jury in a catastrophic case by making sure you begin on a somewhat somber note. For example, I typically start voir dire on a soft- issue case by jokingly asking the jury, “Who doesn’t want to be here right now?” Usually a couple of hands go up. Then I remind the jury that they are under oath and, after a bit of jury chuckling, a few more hands go up.1 In the catastrophic case, I’ll explain to the jury that I usually start the process with a joke, but today I’m not because we’re here because my client is: dead, paralyzed, had his arm cut off, blind, etc. because of the incident (wreck, work injury…). Immediately you have begun to anchor your damages by conditioning the jury to understand that the case is catastrophic.

Also in voir dire in the catastrophic case, I will, usually at towards the end of my examination, pick a favorable juror tell them that jury verdicts are anonymous2 and follow up with this question: “Would you be comfortable with a verdict that might make (local, state, national, international) news?” Again, the jury is already thinking that the case is catastrophic. Once the jurors are assured they will remain anonymous, I’ve yet to have a juror state they would not be willing to serve.

Finally in voir dire, I thank the jury for their time and convey that this is the plaintiff ’s only chance for justice, emphasizing the importance of the trial on the life of the plaintiff. Usually, by this time, the jurors who are reluctant to serve see their own importance in our judicial system and lose the feeling that they “don’t want to be there.”

IV. ANCHORING CONTINUES IN OPENING STATEMENT Start off your opening statement with a bang. Tell the jury why we are there. An example would include, “When a truck driver drives down the road, he has a duty to everyone to stop at the red light. He’s required to do so by law. On July 15, 2010, ABC Corporation’s driver John Doe broke the law left Jane Black a widow and their three children fatherless,” or, “When a corporation designs a product, they have a duty to make it safe. We’re here because XYZ Corporation designed a product that left Jack Black confi ed to a wheelchair for the rest of his life, never able to play with his children again.”

Keep opening statement sharp, short, and fin sh with another bang. In catastrophic cases I usually end opening statement with a line like this, “Those are the facts, ladies and gentlemen, and by the end of this trial you will see why the evidence forces me to ask you for an eight figu e verdict.”3 Th ough voir dire and opening statement you have been anchoring an idea, now you have just, for the fi st time, 1 At which time I thank the jury for their service and explain the importance of jury duty in America rather than the way many parts of the world settle less serious disputes by taking to the streets with AK-47’s. That’s also a form of anchoring on a small case—it makes the case seem extremely important if other cultures will kill each other over a similar dispute.

2 Assuring them that the proceedings are not recorded and jurors’ names are not released to anyone. After trial, be sure to ask the Court to seal the verdict form so the presiding juror is not identifi d.

3 Or “seven figu e verdict;” “In excess of a half million dollars;” whatever is appropriate for your client’s damages.

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HOW TO EFFECTIVELY UTILIZE “ANCHORING” THROUGHOUT A TRUCKING TRIAL

anchored a damage award number that the jury will remember throughout the trial.

The anchoring you do in the beginning is a prelude to the anchoring you will do over and over again closing argument.

V. ANCHORING DURING CLOSING ARGUMENT4 Now that you have laid the groundwork from voir dire through opening and the evidence portion of the trial, continue to use the anchor throughout closing. The jury is now prepared to hear your eight figu e request (or whatever anchor value you used in opening statement).

When you get to damages, reconfi m your anchor by stating that the evidence has forced you to this point; remind the jury of your anchor in opening statement and say it again. “Remember in opening statement when I said the evidence would force me to ask you for an eight figu e verdict? Now I want to talk about why that number is appropriate.” Use the Court’s damage instruction and go down element by element.

I typically go through each element one by one, leaving pain and suffering or loss of love and affection (for a wrongful death case) last. On each element other than general damages, state what the numbers are and assure the jury that, while your client is entitled to recover each element, that’s NOT what the case is about. Finally, when you reach the general damage element, be it pain and suffering or loss of love and affection, use THAT element to validate your anchor. Examples: 1, You heard the evidence, ladies and gentlemen, that ABC Trucking company’s driver broke the law by running that red light. Had he killed my client I’d be up here asking you for a hundred million dollars. By the grace of God Jack lived— but he is and always will be in that wheelchair you see before you. Never to run with his kids, be intimate with his wife, walk on a beach again—and that’s why I believe a fair verdict is $50,000,000.5 2, While showing a photograph of a couple’s hands with their wedding rings on from their wedding: I know you all cringed at the thought of seeing a photograph of Jack’s lifeless body hanging from that defective safety harness. I understand, it’s the image his helpless wife sees every night before she goes to sleep and every day when she wakes up. But THIS is the way Jack deserves to be remembered.

With dignity. So now I think we’d all agree $100,000,000 doesn’t seem so outrageous. Jack died a horrible death, but Jane relives it every day of her life.6 3. From a case involving a client who was almost killed by a semi, but made a good recovery7: Ladies and gentlemen, you heard about the medical bills and lost wages, my client is entitled to recover for those. But that’s not what this case is about. Th s case is about the loss of 37% of her functioning. I suggest 37% PPI x $100,000 for that. Th s case is about 61.5 years of permanent pain and 4 I have included a closing argument transcript from a recent trial in which my clients were awarded a verdict of $8,000,000 (less 5% comparative fault and 20% non-party fault) where I utilized anchoring during closing.

5 Now you are using a nine figu e anchor number to validate your primary anchor of eight figu es.

6 In that case a Tippecanoe County Jury awarded $157,000,000. $57,000,000 more than my anchor.

7 I have attached itemization of the damage number suggestions I used in closing in this case. I used the “eight figu e” anchor in opening statement.

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suffering. I suggest $200,000 a year for that. Th s case is about a loss of work-life expectancy of 8.2 years. I suggest $22,090 for that.8 Th s case is about the scars and physical deformity this beautiful young lady has. I suggest $1,000,000 for that. Th s case is about being near death, not knowing if she’d ever see her two kids again. I suggest $5,000,000 for that. Th s case is about the trauma of five major surgeries. I suggest $1,000,000 a piece for that. Ladies and gentlemen, my client’s total damages are $27,452,259.56. Had she been killed by (the trucking company) I’d be asking for over $100,000,000, but the evidence here shows she’s entitled to $27,452,259.56.

By anchoring the damages from the beginning, it allows you to “blackboard” suggested damages awards that might otherwise be dismissed by the jury as excessive.

Finally, use your anchor discredit the defense as insensitive to your client. After asking for in excess of $27,000,000, in that case, the defense was forced to suggest a verdict that was twice as much offered before trial, and even that number turned the jury against the defendant in deliberation. The verdict wasn’t $27,000,000, but it was six times the offer before trial.

VI. CONCLUSION Successful use of anchoring throughout a trial can greatly increase the jury’s propensity to award a catastrophically injured plaintiff a good verdict. Use of this technique should bear fruit in any trial where there are serious injuries.

MIKE PHELPS is a litigation attorney with the Nunn Law Offic in Bloomington, Indiana. Mike’s practice is solely devoted to representing Plaintiffs in wrongful death and serious personal injury cases. Mike is a native of Richmond, Indiana, and a graduate of Indiana University-Bloomington and a graduate of The Capital University Law School in Columbus, Ohio, with Honors, Order of the Curia. In addition to his love of jury trials, Mike is also a semi-professional poker player and has won several regional poker tournaments and regularly travels to Las Vegas to play in some of the biggest games in Nevada as well as many of the World Series of Poker events each year. Mike is also active in the ASPCA and NRA. Within the last year, Mike’s jury verdicts have included verdict of $8,000,000; $5,600,000; and $3,000,000. Mike is a member of The Million Dollar Advocates Forum And Multi-Million Dollar Advocates Forum, a Super Lawyer and Top 100 Trial Lawyers In America. Prior to joining the Nunn Law Offi , Mike worked as a defense litigation attorney, representing several dozen insurance companies. Mike formerly practiced insurance defense litigation at Kopka, Pinkus, Dolin & Eads in Indianapolis; Kelley, Belcher and Brown in Bloomington; and spent six years as in-house counsel with State Farm and the Liberty Mutual Group. Mike has tried nearly 200 jury trials throughout the State of Indiana. While still on the “dark side,” Mike traveled across the country presenting seminars to insurance adjustors regarding Indiana Law and jury trials in Indiana.

8 Gross pay at time of wreck.

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People are at the heart of our work

Failure to diagnose A physician’s failure to properly diagnose a medical condition is a leading cause of serious injury or death from medical malpractice. We have over 33 years of successful trial experience helping injured people in complex medical malpractice claims. Our attorneys, paralegals, network of experts, and board certified physician attorney are ready to help you now.

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Medical Malpractice • Wrongful Death • Serious Personal Injury

22 • VERDICT

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Brad Catlin, Technology Section Chair

TECHNOLAWGICAL About a year ago, I bought a book that had been highly recommended to me: Typography for Lawyers by Matthew Butterick (its less than $25 on Amazon), a trained typographer and California attorney. He operates two websites— typographyforlawyers.com and practicaltypography.com—and I highly recommend a visit to either site.

Although I bought this highly recommended book, it took me a couple of months to begin reading, because it is about typography and typography didn’t strike me as the most engaging subject in the world. But I regret not reading it sooner, because it was engaging, enlightening, and has made me think about the design of my documents, emails, and presentations ever since.

The book contains a lot of insight that sounds obvious once you’ve read it. But the central point of the book is that we should design the things we are writing in a way to keep the audience engaged and attentive. And by “design,” I mean more than that the text should be well-written; rather, I mean that the layout of the document should enhance the content. There are lots of ways of accomplishing this task: letter spacing, line spacing, line length, point size, etc. But the one we will be discussing today is the one that we notice most often—the font.

Butterick is not a fan of the fonts that most lawyers use—Times New Roman— describing it as “gaz[ing] into the void” because it is “the absence of a font choice,” which “connotes apathy.” Likewise, the Seventh Circuit’s Requirements and Suggestions for Typography in Briefs and Other Papers strongly suggests that briefs be written in a font other than Times New Roman.

My fi m has begun to coalesce around an alternative that is built into Microsoft Word, Century Schoolbook, for documents to be filed in court, but this isn’t the right choice for all purposes. For example, you may want to use something different in a presentation or client letter, and you may not see what you are looking for in the fonts that came with your computer. I have a solution.

First, you can do what Butterick recommends—buy a font designed for attorneys.

There are many different online companies that sell fonts; Adobe Type, MyFonts, Linotype, and Fonthaus are just a few. But there are also free options for those of us who may not want to invest money in a font. For example, Google gives away hundreds of fonts away for free at www.google.com/fonts. I’ve used fonts from Google in my presentations (for example, I used Cantarell in a recent CLE presentation), and found them easy to install and use. Other sites that give away free fonts are Font Squirrel, 1001 Free Fonts, and Dafont. All of these paid and free websites allow you

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TECHNOLAWGICAL

to sort through their options in a variety of ways, so that you can fi d the font that you want to use for a particular purpose.

My takeaways here are simple: 1) buy AND read Butterick’s book, and 2) take the time to fi d the right font for the written product you are producing.

BRAD CATLIN is an associate at the Indianapolis based plaintiff ’ litigation fi m, Price Waicukauski & Riley, LLC. His practice focuses primarily on complex and class litigation, including matters involving insurer bad faith, pharmaceutical drug litigation, toxic tort litigation, product liability, professional malpractice, business disputes, and personal injury, in multiple jurisdictions within the United States. He is currently involved in multidistrict class litigation involving Vioxx, Actiq, Gabitril, and Provigil. Brad also has been assigned as Class Counsel in a lawsuit against State Farm for a breach of its duty to treat its insureds with good faith in the wake of hail storms, is involved in the ongoing nationwide asbestos litigation, and litigates consumer fraud class actions. Brad is admitted to practice in the States of Indiana and Ohio.

Brad is a native of Indianapolis and attended Wabash College as an Honor Scholar. He graduated from Wabash cum laude with an A.B. in Political Science and obtained his law degree from the University of Notre Dame School of Law.

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Medical Malpractice Time is of the essence.

A 36-year-old woman admitted for planned C-section, informed the nursing staff that her baby had not been as active since the previous day, but she did feel movement. WKW’s investigation found that the fetal heart moniter showed decreased longterm variability and variable decelerations with no accelerations. There were episodes of bradycardia and intermittent loss of tracing. Also during labor, the monitor paper was jammed for 40 minutes before being changed. The physician was not notified until scrubbing for the C-section that there had been no fetal heart rate present on the monitor since prior to the transfer to OR. An emergency C-section was performed. Upon delivery, the infant had no heart rate, tone, or respiratory effort. His Apgars were 0 and 2, with an arterial blood pH of 6.84. The pediatrician could not place an umbilical line in a timely manner, so precious time was wasted in administering code medications. As a result, the infant suffered severe and permanent neurological damage and requires 24/7 care to meet his needs.

We enjoy working with other attorneys on a referral or co-counsel basis and welcome your call to discuss any case involving medical malpractice or birth injuries.

Please call or email to discuss your case.

Bruce Kehoe kehoe@wkw.com

Bill Winingham winingham@wkw.com

Chris Stevenson cstevenson@wkw.com

Kelly M. Scanlan kscanlan@wkw.com

INJURY ATTORNEYS | RESTORING LIVES 2859 North Meridian Street, Indianapolis, IN 46208 | 317.920.6400 | WKW.com

Summer 2014 ⁜ VERDICT • 25

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Fred Schultz

CLIENT/CASE MANAGEMENT AND TELLING YOUR “STORY” THROUGH DISCOVERY Reported verdicts in automobile cases – especially soft tissue cases are fairly unpredictable. Some are high, some are low and many fall in the so-so range.

Often, the verdicts have far less to do with liability than with whether or not the plaintiff, and the plaintiff ’s lawyer, is credible to the jury. There is little doubt that the jury pool well has been poisoned by the insurance industry. Therefore, in order to properly advise your client and advocate on their behalf, there are a number of things you must consider.

SOFT TISSUE INJURIES First, it is important to understand the medicine of a soft tissue injury, and understand that some soft tissue injuries are worse than others. You must be able to cogently talk with your client, and your client’s treating physician (if necessary) about the mechanism of the injury, its duration, the reasonable treatment rendered by the physician, and the likely outcome for your client. There are numerous texts and online resources for you to use. I would recommend textbooks like “The Spine” and also online resources like www.pubmed.gov or www.webmd.com. However, any google search will produce dozens of great reference points.

There are several different names for soft issue injuries:

- Whiplash

- Hyper-extension/hyper-flexi n

- Sprain, strain

The basic component to a soft tissue injury is that there is a tearing, stretching and pulling to the muscles, tendons and ligaments at one or more location in your client’s body. When the soft tissue is torn, the tearing causes bleeding and inflammation which in turn, causes a great deal of pain and discomfort.

The body has a specific healing process to try and deal with soft tissue injuries.

Usually, the body builds scar tissue to try and stabilize the injured area. However, the scar tissue must be dealt with in order to return the joints in the body to their natural function. Good medical care with a physical therapist or chiropractor will emphasize trying to break up the scar tissue so that normal healthy tissue will grow in its place. Th s is often very painful for the injured person, but the therapy gets easier over time and, hopefully, restores full function to that part of the body that was injured.

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BEGIN AT THE BEGINNING – LITERALLY The fi st meeting is, by far, the most important one. Many auto injuries, such as soft tissue injuries are completely subjective in nature, meaning that the injured person reports pain but that there is little that a treating physician can do to objectively identify and confi m the source of the pain. Therefore, the fi st and foremost question you need to ask yourself before agreeing to represent someone in a soft tissue case is, “Is this person credible?” Sometimes, I put it this way, “Do I like this person?”

Remember, the hardest problem with soft tissue injuries is that they are, for the most part invisible. Sometimes, the doctor or physical therapist can feel the scar tissue and spasms, but they cannot really see them. Usually, there is no x-ray, like there are for broken bones, which objectively proves the injury. Therefore, your client’s credibility is CRITICAL. That’s why I say, if you don’t like the prospective client, then don’t take the case, because if you don’t like them, then you know that a claims adjuster, defense attorney and jury won’t either.

Once you decide that you both believe and like the client and are willing to go the distance with them, here are some other topics that need covered:

- Liability

- Date of crash and other details (location, witnesses, weather, etc.)

- Details of injury(s)

- When did they fi st receive treatment - and where

- What was the property damage, and has it been resolved

- Prior accidents or injuries

- Who is the defendant’s insurance company

- Who is the client’s auto carrier, and how much medpay do they have

- Does the client have health insurance and/or short-term disability insurance

- Does the client have access to medical providers and at least a rudimentary understanding of how they need to go about obtaining medical treatment

- Has the client given any statements to any insurance companies

Once you have obtained this information, you need to notify all insurance companies involved that you represent the client. Ask both the liability carrier and your client’s insurance company for a copy of their Declarations Page so that you know what kind of insurance coverage is available. Of course, the defendant’s carrier does not have to provide this information to you unless you file suit. However, they sometime will, depending on nature of the case and the adjuster involved.

Assuming your client has health insurance, make sure your client’s co-pays and

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CLIENT/CASE MANAGEMENT and TELLING YOUR “STORY” THROUGH DISCOVERY

deductibles are turned into his or her medical payments coverage. Th s will help keep your client from incurring out-of-pocket charges. It will also keep them happy with their lawyer.

If your client does not have health insurance, then use the medical payments coverage available to pay the bills incurred to date, and then you can offer a Letter of Protection to subsequent medical providers, which is simply a promise to pay out of a settlement with the liability company. Ultimately make sure your client understands that THEY and THEY ALONE are responsible for their medical bills.

All you can do is work to get the bills paid, but you CANNOT and WILL NOT be on the hook for their medical bills.

EVALUATION OF THE CASE BEFORE SUIT The biggest thing you need to know is that you cannot resolve your client’s case without knowing what you are dealing with. Do not assume your client just has a soft tissue injury just because that’s what it seems like to you and to them. Your client must get the treatment they need before you can evaluate their case. Therefore, once you’ve been retained by the client, and there is no statute of limitation problem, let your client know that what they need to do most of all is treat their condition, and let you know how they’re doing. Make sure to keep in contact with them and periodically send them a letter asking that they let you know if their treatment status has changed. You need to know if they’ve had an MRI, a CT scan, completed physical therapy, etc.

First and foremost, you need to know if you are NOT dealing with a soft tissue injury. I have had numerous clients who thought they just had “whiplash” when it turned out that they had a herniated disc that required surgery or a mild traumatic brain injury. I’ve also had clients whose shoulder strains turned into rotator cuff surgery. That is why you need to track their medical treatment and be aware of the nature and extent of their condition BEFORE you try and settle their case.

Next, do not lump all soft tissue injuries into the same range with regard to monetary value. Some soft tissue cases are worth considerably more than others. Assuming your client has completed treatment and has either fully recovered or reached Maximum Medical Improvement (MMI), you need to consider the following factors when making a settlement demand:

- Was there an ER visit the day of the collision

- Was there a reasonable amount of property damage

- Is liability clear

- Did the client receive treatment from an MD

- Did the client receive treatment from a Chiropractor

- Did the client have PT

- Was there an MRI

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- Is your client experiencing symptoms, such as headaches, that are not going away after several months

Was your client diagnosed with a concussion, and if so, did your client follow up with a neurologist

- Was a Permanent Impairment Rating (PPI) given

- Did your client miss work, and if so, is it documented

- What are your client’s liens

- Has property damage already been resolved

- Is your client “likeable”

- Is there a statute of limitations that is beginning to make you nervous

If you have answered all these questions to your satisfaction, then you are ready to make a demand for settlement. Always consult with your client, fi st, and make sure you have talked with them about their expectations. Let your client know that, at the end of the day, their case is worth whatever six people in a jury box decide its worth. Some clients want to go the distance, but most want a good offer given to them and they will move on. Make your demand higher than what you expect the company to pay, but not so high that they don’t want to talk. Then, negotiate back and forth and let your client make the fi al decision whether to settle or not.

EVALUATION OF THE AUTO INJURY CASE ONCE A LAWSUIT IS FILED Once your client’s case is in suit, there are some additional factors that are involved.

Obviously, there will be a defense attorney and discovery. They will likely want to take your client’s deposition.

You need to make sure that your client understands that their deposition is a very important part of their case. The defense attorney is, both literally and figur tively, taking your client out for a test drive. It is important that your client be prepared for their deposition because ill-prepared clients are sometimes argumentative, sometimes defensive, and sometimes come across as just plain unsympathetic.

These types of behavior reduce the perceived value of your client’s case in the eyes of the defense attorney and insurance adjuster. Therefore, prepare your client.

Your client needs to understand that they must answer questions, and not worry about why they are being asked. You are there to keep the defense attorney under control. They are there to answer questions. They need to understand that they are being tested to see if they can answer questions in a reasonably informed, polite and professional manner. People who get defensive don’t make as good of witnesses as people who can “take it” and just answer the questions.

Make sure they know something about their medical treatment. They don’t need to have dates of treatment memorized, but they do need to remember who their doctors were, where they went for PT, and roughly how they were doing along the way. They don’t need to remember the name of the radiologist who read the MRI, but they need to remember they had one, and where they had it.

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Also, your client needs to remember about any prior medical treatment or preexisting conditions. It does not do any good to ignore them or pretend they don’t exist. It matters. If they minimize their prior treatment, it only makes it look like they’re hiding something or not being honest. Therefore, review prior records with them so that they don’t forget about the chiropractic treatment they had two years before this accident.

All of this is important because how your client performs in a deposition is a reasonably good estimate of how they will perform as a witness in front of a jury.

Therefore, re-evaluate your perceived value of their case after the deposition. I promise you that the defense attorney and insurance adjuster will. And, let your client know how you believe they performed.

Prior to the mediation, you may also need to consider paying a visit to your client’s treating medical provider. Th s is important if your client’s treatment has been extensive or unusual, or if there is a lot of pre-existing conditions that the defense is arguing about. In these situations, you need to know if your client’s medical provider is going to support the causation argument. If so, get them to write a “Narrative Report” wherein they outline your client’s condition, the treatment received, and their professional opinion that it is due to the accident. Th s will help you fi ht back against the defendant’s arguments about causation and damages, and hopefully provide for a more meaningful settlement offer.

If your client’s doctor is NOT going to support your client’s case, then you need to know that to and make sure to tell your client. You should put this in writing to your client. Moreover, you need to have this conversation with your client immediately upon fi ding this out from the doctor. They are going to have to make a very tough decision, which is to settle for far less than they’d been hoping. It sometimes takes time for people to come to grips with these kinds of facts.

Once the deposition is complete and once you have nailed down your client’s damages, you are ready to go to mediation. Mediation is often very helpful. Good mediators help client understand that they are taking a risk by going to trial, that this is a game of averages to the insurance company, not to them. To the client, its all or nothing.

In order to be ready for mediation, you need to have your assistant call all of your clients medical providers and make sure you know what balances are owed, if any.

Also, double check all liens, whether they are medical payments coverage, health insurance, or worker’s compensation. Also, confi m what your own file expenses are. You need to be able to tell the client what the insurance company’s offer means “net” to them, so that they are making informed decisions about negotiations.

Always remind your client that a settlement at mediation is binding both on the insurance company AND them. If your client agrees to a settlement, get them to sign off in writing. Don’t assume they won’t change their minds. Funny things happen when people go home and talk with their spouse, neighbor, family and best Summer 2014 ⁜ VERDICT • 33

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CLIENT/CASE MANAGEMENT and TELLING YOUR “STORY” THROUGH DISCOVERY

friend about their settlement. They may call the next day and decide that they no longer want to settle, or that they’re willing to settle for $___ more than what was offered.

LIENS Finally, you absolutely must know about your client’s medical liens. Do not settle the case without understanding what they are, and whether they will be required to reduce, or at least willing to do so. The subject of Liens could take up two or three entire days, so I am not going to give it much time here, but here are the liens you most need to be aware of: Medical Payments Coverage (MPC) Th s is your client’s own auto insurance company coverage. Generally speaking, they must reduce their lien by 1/3 plus a pro-rata share of expenses . See I.C. 34-531-1, et.seq. They will also reduce for comparative fault. See I.C. 34-51-2-19.

Health Insurance – Subject to State law Th s is your client’s health insurance company coverage. Generally speaking, they must reduce their lien by 1/3 plus a pro-rata share of expenses. See I.C. 34-53-1-1, et.seq. They will also reduce for comparative fault. See I.C. 34-51-2-19.

Health Insurance – ERISA Th s is your client’s own health insurance coverage, generally through an employee benefits plan. ERISA is a federal statute which, at the present, does not require the lien holder to reduce for attorney fees and expenses. However, many companies will consider a case-by-case reduction.

Worker’s Compensation If your client was injured while driving somewhere while on the clock, then they are usually covered by worker’s compensation. Worker’s comp is generally required to reduce their lien by 1/3 for attorney fees plus a pro rata share of expenses. See I.C. 22-2-3-13. They will also reduce for comparative fault. . See I.C. 34-51-2-19.

Medicare You must consider Medicare to be a “SUPER LIEN.” That is, if they don’t notify you, you must notify them of your client’s pending recovery. There are steps you must go through to follow through and determine what their lien is. Medicare’s right to recovery is governed by the Medicare Secondary Payer Act (MSP) 42 U.S.C. 1395y(b)(2). If a settlement is not paid to Medicare, then penalties can be assessed to both the client and the attorney. Generally, Medicare will reduce for attorney fees and for a pro-rata share of the expenses.

Medicaid Medicaid does not have a valid lien unless it files a notice of its lien with the Marion Circuit Court “before the party alleged to be liable has concluded a fi al settlement” with the injured party. See, I.C. 12-15-8-3. Medicaid must also send notice to 34 • VERDICT

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Schultz

the person, fi m, etc. by registered or certifi d mail. Recently, the Medicaid lien reduction statute was amended so that Medicaid will reduce by 1/3 for attorney fees, assuming the case is in litigation. If the case settles pre-suit, then Medicaid will only reduce their lien by 25%.

Hospital Lien Hospital liens are a creature of statute. Specifi ally, see I.C. 32-33-4-1 et.seq.

Hospitals must perfect the lien by filing it with the Recorder’s offic in the county where the hospital is located within 180 days of the injured person’s discharge form the hospital. Hospital liens are payable in full. However I.C. 32-33-4-3 allows for compromise where the full value of the claim is not recoverable, allowing the injured party to “net” 20% of the settlement. Also, it has been my experience that some, but not all, hospitals will negotiate their liens on a case by case basis.

Letters of Protection If you have offered a Letter of Protection, or LOP to a provider, you are responsible for paying that amount out of the settlement. Attorneys have been disciplined for refusing to pay the LOP. See, In re Norman, 708 N.E.2d 867 (Ind. 1999). However, when necessary, I often fi d that a medical provider with a Letter of Protection will work with my offic in reducing the amount owed, provided that a good explanation is given.

Unpaid Bills I always operate under the assumption that it is in the best interest of the client to pay all medical bills that are owed out of a settlement. After all, the provider gave important medical services to the client, and they deserve to be paid. Likewise, the client is better off because they will not be drawn into a collection battle with the provider and have to explain in Small Claims Court why the bill was not paid out of the settlement. However, assuming there is no lien, no LOP, and no promise of any kind to a provider, it is also the client’s money. Where a client instructs me that they want to be responsible for the bills to such a provider, I put in writing their instruction and have them sign off n it.

DISTRIBUTION OF FUNDS Finally, once a settlement has been reached, always make sure and prepare a distribution sheet that lays out where all the money is going. Make sure that attorney fees, expenses, liens, LOP’s and all other providers who are being paid are listed, as well as what the client is going to “net” out of the settlement. Also, make sure to put a statement that any medical bills not shown on the distribution sheet are also the responsibility of the client. The client must sign this document, giving their consent to the distribution as it has been outlined.

CONCLUSION Auto injury cases are important. They are the most common types of injury cases and they can be the foundation of a successful personal injury, Torts law Summer 2014 ⁜ VERDICT • 35

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CLIENT/CASE MANAGEMENT and TELLING YOUR “STORY” THROUGH DISCOVERY

practice. However, they must be handled carefully, thoughtfully, and with a sincere understanding that each case is unique and deserves individual attention. You cannot lump all auto cases into a single category or dollar value range, any more than you can any other type of injury.

FRED SCHULTZ graduated from Butler University in 1992 with a B.S. in Economics (with Honors) and received his J.D. in 1996 from Indiana University School of Law – Bloomington. He began his legal career as a Deputy Prosecuting Attorney in a rural Indiana county seat where he had immediate exposure to the courtroom. During the nearly two years there, Fred served as co-prosecution counsel on numerous criminal juries and also tried criminal jury trials as the sole prosecuting attorney, including several major felony cases.

In 1998, Fred joined the (then) law fi m of Nunn & Greene, Indiana’s largest personal injury advertising fi m. Fred spent seven years at Nunn & Greene and tried dozens of civil jury trials, ranging from so-called minor-impact-soft- issue (MIST) cases, to wrongful death cases involving highly complex road design issues.

In May of 2005, Fred left (now) Nunn Law Offic to join his long-time friend and mentor, Betsy Greene to form Greene & Schultz – Trial Lawyers, in Bloomington, Indiana. Since then, he has continued to trial personal injury cases, including fi st-party insurance claims and traumatic brain injury cases. To date, Fred has been lead counsel on nearly 50 jury trials in his career.

Fred is admitted to practice in all Indiana state courts, the U.S. District Courts for the Northern and Southern Districts of Indiana, the Seventh Circuit Court of Appeals (where he has conducted oral argument), and the United States Supreme Court. Fred serves on the Board of Directors for the Indiana Trial Lawyers Association (ITLA) and has also served on the Board of Governors for the American Association of Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA). He is also a member of the American Board of Trial Advocates (ABOTA).

In July of 2005, Fred received the F. Scott Baldwin Award from AAJ, which is given each year by the organization to the “Most Outstanding Young Trial Lawyer.” In November of 2005, Fred received the Max Goodwin Award from the Indiana Trial Lawyers Association, which is given each year to the most outstanding trial lawyer in practice less than 10 years in the State of Indiana.

In October of 2006, Fred became a Board Certifi d Civil Trial Advocate through the National Board of Trial Advocacy. Th s distinction required a rigorous peer review process including documentation of Fred’s civil jury trial experience, letters of recommendation from opposing counsel and trial court judges, a writing sample, and a full day written examination. Fred was also recognized as a “Super Lawyer” by Indianapolis Law & Politics magazine in both 2008 and 2009.

Fred focuses his legal practice on tort law litigation, including serious personal injury, wrongful death, and professional negligence cases. He also practices in the areas of product liability, premises liability, and consumer protection class actions.

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Th s article originally appeared in the Volume 40, Number 10, October 2013 issue of the Advocate. Copyright © 2013 Consumer Attorneys Association of Los Angeles. All rights reserved. Reprinted with permission.

October 2013 Issue

Miles B. Cooper

Medical billing: The code war

The ICD and why you should care about a big change on the horizon Coming soon to a courtroom near you

Code warriors

ICD-10’s third-party billing codes

“Mr. Expert, can you tell us what upcoding is and whether you found it in Dr. Smith’s billing for treating the plaintiff?” the defense lawyer asked her medical-coding expert.

“Upcoding is an industry term. We sometimes see doctors use more expensive billing codes, known as ICD codes.

Billing can be nuanced. Many procedures can be coded different ways. Here, I reviewed the treating doctor’s billing.

Prior to the injury, he performed a meniscal repair surgery on the plaintiff ’s left knee. It was coded under a standard insurance reimbursement rate. In this case, the doctor performed a meniscal repair surgery, which he opined was caused by the accident. He coded this surgery differently – with a code that is reimbursed at twice the prior rate. This triggers our suspicions.”

The plaintiff ’s lawyer squirmed. A treating doctor, typically above reproach, was being hammered.

Health-care providers chart information about a patient. The chart is then given to medical coding. The coding is not done by the treater who did the care.

Coders are separate professionals trained to read charts and code the treatment.

Coders work apart from medical professionals. Some coders work for a doctor’s practice group or a hospital. Others are outsourced. They have a set amount of records that they are expected to get through per day. They do not typically interact with the treater who charted the information. This creates an opportunity for errors.

ICD-10 also built-in cause codes and third-party billing codes. So now when your client presents at a hospital, the paramedics list the cause of injury as car crash, and the coders capture the data.

The lien notice hits the patient’s mailbox before she’s home.

Software used Coders use software to do their coding. About 200 different programs exist to do coding. The programs have an impact. If coding becomes an issue in your case, you will want to know the program used, the version and who does the coding.

A brief history of the ICD

ICD-10’s expanded coding

The International Statistical Classification of Diseases and Related Health Problems (called ICD codes), classify medical events and treatment, and are used for billing. They date back to 1893 when a doctor introduced a list of cause of death classifications. His system expanded. In 1948, the World Health Organization took it over, releasing ICD6. Since then, the ICD has been updated several times. ICD-10 was released in 1994. Most countries use ICD-10. ICD11’s release is scheduled for 2015. But the U.S. is still using ICD-9.

Within a version are variants. These variants use abbreviations. For example, the U.S. uses ICD-9-CM, where CM stands for Clinical Modification. The U.S. was supposed to switch to ICD-10-CM in October 2013. The Department of Health and Human Services delayed the transition to ICD-10-CM to October 2014.

There is a greater selection of codes for a specific injury in ICD-10. For example, ICD-9 may have had one code for a femur fracture. ICD-10 has many: they specify the fracture location, distal or proximal, and type of fracture. Helpful, yes?

Yes and no. Medical charting is currently not detailed enough for coders to accurately code in ICD-10. A survey found one-third of records were sufficiently charted to code the record. This translates to significant growing pains when ICD-10-CM is implemented.

Treaters will have to take more time to chart (a good thing). Records will be kicked back when the information is lacking. The industry expects a six-month industry-wide slowdown – marginally – to adjust to ICD-10-CM’s impact (so if you think Kaiser’s billing takes a long time now, just wait.)

Upcoding Third-party billing codes are fertile ground for coding bias. Coding can be nuanced. Several codes might apply to the same injury. Hospitals are reimbursed at one rate by HMOs. But they are usually reimbursed at higher rates from third-party coverage like automobile insurance. The coder may experience a bias to upcode incidents where reimbursement rates might be higher.

Billing experts This brings us to billing experts.

Defense lawyers, particularly those with medical billing fraud exposure, have started using billing experts. These experts look for billing inconsistencies.

At first, they sought to reduce the past medical costs. Now, they aim to tarnish your treating doctor as a fraudster.

Neither is good news. When a medical billing expert appears on an expert disclosure, you have a problem.

Taking a stand Back to our squirming plaintiff ’s lawyer. On rebuttal, he called the doctor’s office manager. She demonstrated that all medical coding was outsourced to a company that the office did not directly contact. She acknowledged the error in the billing, apologized, and corrected the billed amount. Deflection and deflation.

The treating doctor’s reputation restored.

Miles B. Cooper is a partner at Rouda Feder Tietjen & McGuinn. He represents people with catastrophic injury and death claims. He has served as lead counsel, cocounsel and second seat.

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Summer 2014 ⁜ VERDICT • 39

7/3/14 11:40 AM

Arthur H. Bryant, Chairman of Public Justice

FEDERAL RULES CHANGES: ACCESS TO JUSTICE AT STAKE The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. They have been changing in the wrong direction. And changes to them often prompt changes in state rules, too.

Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.

He decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the Federal Rules’ ‘justice-seeking ethos” of “citizen access to the courts and in the resolution of disputes on their merits.”

Miller noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.” He expressed dismay that the latest changes to the Federal Rules had looked in a “philosophically different direction” and were all “designed to constrict discovery New proposed changes underscored Miller’s point. The Advisory Committee on Civil Rules proposed to limit discovery enormously: reducing the presumptive number of depositions and interrogatories, creating presumptive limits (for the fi st time) on the number of requests for production and admissions, eliminating the language describing the scope of discovery as “information reasonably calculated to lead to the discovery of admissible evidence,” and increasing the importance of both “proportionality” and potential “cost-shifting” in evaluating discovery requests.

After a wide range of lawyers and groups dedicated to preserving access to justice opposed these changes, the Committee revised them.

Now, three things are clear.

First, the revised changes are much better. The Committee unanimously withdrew all of the proposed new numerical limits on discovery. It amended its proposal to emphasize “the importance of the issues at stake” and “the parties’ relative access to relevant information” in evaluating proportionality. And it clarifi d both that costshifting should not become a “common practice” and that courts should “continue to assume” that those with the information bear the costs of providing it.

Second, some very bad proposals are still moving forward. Proportionality and cost-shifting will still be emphasized more, increasing the likelihood that access to

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Bryant

crucial information will be denied or be made too expensive to afford. Even worse, the Committee continued to propose deleting the “reasonably calculated” language – and the reason it gave for doing so is stunning.

The Committee said that the addition of this language in 1946 was never “intended to defi e the scope of discovery.” It acknowledged that “lawyers and courts often rely on this provision as an independent defin tion of the scope of discovery” and noted the “many comments” it received describing the “reasonably calculated” language as the “bedrock defin tion of the scope of discovery.” But it said that was precisely why the language had to go.

According to the Committee, this was all just a big misunderstanding: the “reasonably calculated” language was a drafting error that led everyone to believe incorrectly for almost 70 years that the scope of discovery was broader than intended. So the Committee continued to propose jettisoning that language. As a result, discovery will no longer be as broad as almost all lawyers practicing now have believed throughout their professional lives.

Thi d, everyone who cares about justice should pay attention to the rules changes and process. Access to justice is at stake. Advocates’ active involvement helped block and improve many dangerous proposals this time, but don’t be surprised if they return – or surface at the state level. And keep in mind that the rules can be changed for the better, too, if people get involved.

After canvassing the disturbing changes in our system of justice, Professor Miller said, “[O]ur courts should focus on how to make the civil justice system provide a level litigation fi ld that is receptive to enforcing our public policies – deterring those tempted to violate them – and providing effici t procedures to compensate those who have been damaged.”

That’s what we all need to focus on – and make happen.

ARTHUR H. BRYANT is the Chairman of Public Justice, a national public interest law fi m supported by and able to work with over 2,500 of the top plaintiff ’ lawyers in the country. For more information, see www.publicjustice. net. His email address is abryant@publicjustice.net

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ITLA would like to acknowledge those members who currently make substantial contri-

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42 • VERDICT

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Summer 2014 ⁜ VERDICT • 43

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Kelly M. Scanlan & Chris Wyant, Editor

INDIANA APPELLATE CASE REPORTER Cases Included in this Issue are from February & March 2014

INDIANA SUPREME COURT Issue of fact remained as to whether local fraternity breached a duty to fraternity member who was injured by the activity of another fraternity member Yost v. Wabash College, et al. (February 13, 2014) Yost filed suit for injuries against his college (Wabash College), his campus fraternity (Phi Kappa PsiIndiana Gamma Chapter), its national organization (Phi Kappa Psi Fraternity, Inc.), and a student (Cravens) following an incident at the fraternity house. Yost contended that his injuries resulted from a fraternity hazing incident. The college and two fraternity defendants sought summary judgment which the trial court granted and then ordered entry of fi al judgments thereon. The plaintiff appealed and the Court of Appeals affirmed. The Indiana Supreme Court then granted transfer.

Wabash College filed for summary judgment asserting it did not have a duty as a college or as a landlord to protect Yost from Cravens’ alleged negligence or criminal attack; it was not subject to vicarious liability for the actions of any co-defendants; and Yost’s claim for punitive damages fails as a matter of law. Yost’s claims against Wabash presented three theories of liability: (a) negligence as owner and landlord of the local fraternity house by failing to protect Yost from the alleged negligent or criminal act of Cravens; (b) negligent breach of assumed duty to supervise and regulate the activities and behavior of fraternities on its campus by failing to protect Yost from hazing; and vicarious liability for the negligence of the local fraternity and its members. The Court found that Wabash established that it was the lessor, and the local fraternity as tenant such that it had the exclusive right to possess and control the premises. Yost failed to designate any evidence to dispute that fact. The Court therefore held that Wabash did not have a duty to protect Yost from the injuries he claims that Cravens infli ted. The Court also found no evidence or reasonable inferences that Wabash deliberately and specifi ally undertook to control and protect Yost from the injuries he sustained or to generally prevent its students from engaging in injurious private conduct toward each other. On the issue of vicarious liability, the Court found no evidence of any agency relationship between the local fraternity and Wabash. As such, the Court affirmed summary judgment in favor of Wabash College.

Yost’s claims against the national fraternity were for (a) breach of general duty of care arising from the totality of circumstances relating to the national fraternity’s relationship with the local fraternity, (b) breach of assumed duty arising from affirmative steps to prohibit and prevent hazing, or (c) vicarious liability for the actions of the local fraternity.

The Court found no general duty to Yost owed by the national fraternity upon which a negligence claim could be based. As to Yost’s argument that the national fraternity assumed a duty to Yost, the Court used the same reasoning as to Wabash College in fi ding no assumed duty to Yost.

The arguments made by Yost against the local fraternity mirrored those made against the national fraternity. Yost argued that the duty of care arose not from the doctrine of in loco parentis, but rather because it had a duty to supervise its members in fraternity activities and to make sure that such activities did not cross the line into hazing. The Court held that the undisputed evidence did not preclude the possibility that Yost may show at trial that the local fraternity undertook to render supervisory services intended to reduce the risk of harm to members like Yost, that upon which supervision Yost relied, and that by failing to exercise reasonable care that local fraternity increased the risk of harm to Yost. Therefore, it held that summary judgment was not appropriate as to the local fraternity.

The Court next looked to Yost’s punitive damages claims. In tort actions punitive damages may be awarded upon a showing of willful and wanton misconduct such that the defendant subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences. Bud Wolf Chevrolet, Inc., v. Robertson, 519 N.E.2d 135 (Ind. 1988)

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Scanlan • Wyant The Court held that a genuine issue of material fact existed as to whether punitive damages against the local fraternity may be awarded.

Trial court did not abuse its discretion in issuing limited stay of civil proceedings against defendant charged with several criminal counts involving the same set of circumstances Hardiman and Patterson v. Cozmanoff ( arch 12, 2014) On March 6, 2012, correctional office Britney Meux was jogging with three co-workers when she was hit by a car. The driver fl d the scene, and Meux later died from her injuries. Th ee days later, the State charged the alleged driver, Jason R. Cozmanoff, with thirteen crimes, including one count of reckless homicide as a Class C felony and three counts of criminal recklessness resulting in serious injury, all as Class D felonies. A few weeks later, Meux’s Estate sued Cozmanoff for wrongful death, alleging he was negligent, reckless, and guilty of gross negligence and/or willful and wanton misconduct. The Estate began the discovery process by serving Cozmanoff with interrogatories and requests for production and noticing his deposition.

Cozmanoff moved to stay the entire civil case pending the resolution of his criminal prosecution, citing his Fifth Amendment privilege. The Estate opposed the motion arguing (1) Cozmanoff ’s criminal case might not be fully resolved for years, (2) discovery was necessary to identify other potential tortfeasors who must be joined before the running of the two year statute of limitations, and (3) the stay would offend Article 1 Section 12 of the Indiana Constitution which guarantees “Justice should be administered freely and without delay.” After a hearing, the trial court granted a limited stay of discovery as to Cozmanoff only, but it also entered an order requiring him to answer the complaint within 30 days. Both parties moved to certify the trial court’s ruling for interlocutory appeal, and the trial court so certifi d it. In a published opinion, the Court of Appeals reversed the stay but affirmed the requirement that Cozmanoff le an answer.

Cozmanoff argued the entire civil case must be stayed to protect his right against self-incrimination, while the Estate contended its own interest in an expeditious end to its lawsuit is paramount.

Even where privileges as important as the Fifth Amendment privilege against self-incrimination are implicated, courts in civil proceedings have taken steps to ensure that the litigation proceeds in a manner consistent with the interests of justice. When making that determination, the court may consider: (1) the interest of the plaintiff in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to the plaintiff of a delay, (2) the burden which any particular aspect of the proceedings may impose on the defendant; (3) the convenience of the court in the management of its cases, and the effici t use of judicial resources; (4) the interests of persons not parties to the civil litigation, and (5) the interest of the public in pending civil and criminal litigation.

The Estate argued it needed to depose Cozmanoff to determine whether he intended to assert a nonparty defense and learn the identity of any potentially liable nonparties before the statute of limitations expired. But Cozmanoff ’s counsel pointed out that the criminal trial was set for an entire year before expiration of the statute of limitations plus the Estate would not be prevented from conducting any discovery that did not involve Cozmanoff. After considering all factors, the Court held that the trial court did not abuse its discretion in ordering the limited stay. The Court also held that the trial court did not abuse its discretion in requiring Cozmanoff o Answer the Complaint.

Worker’s compensation benefits paid to claimant did not operate as a set off of any available underinsured motorist benefits as that provision in the policy would violate Indiana Uninsured and Underinsured Motorist Statute Justice v. American Family Mutual Insurance Company (March 13, 2014) Wagner, an underinsured motorist, collided with an IndyGo city bus driven by Howard Justice.

Justice received $77,469.56 in workers’ compensation from IndyGo’s insurer, GAB Robbins. The award included $51,829.81 to Justice’s medical providers, $18,939.75 for his lost wages and temporary disability, and $6,700.00 for his permanent partial impairment. Justice settled the workers’ compensation lien for $5,511.06, bringing his net workers’ compensation to $71,958.50. Justice also received $25,000 from Wagner’s insurer, bringing his total recovery to $96,958.50.

Justice carried an underinsured motorist policy issued by American Family Mutual Insurance Company that provided coverage up to $50,000 per person and $100,000 per accident. Justice submitted an underinsured motorist claim to American Family, which denied coverage. Justice subsequently sued American Family for breach of contract, arguing he was entitled, under the Summer 2014 ⁜ VERDICT • 45

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Scanlan • Wyant terms of the policy, to $25,000, the difference between Justice’s underinsured motorist policy limit of $50,000 and the $25,000 he received from Wagner’s insurer.

American Family moved for summary judgment arguing that Justice was not entitled to recover under the policy because the $71,958.50 he received in workers’ compensation benefits operated as a set off against the $50,000 policy limit, thus reducing American Family’s liability to zero. After a hearing, the trial court granted American Family’s motion.

The Court of Appeals agreed with Justice’s argument that even if the set off did apply, the plain language of the policy required it to apply against his total damages, not the policy limit. The Indiana Supreme Court granted transfer.

Justice argued that the workers’ compensation setoff provision cannot apply to reduce benefits payable under his underinsured motorist policy because the policy expressly excludes coverage of injuries eligible for workers’ compensation. Justice claims American Family voided the workers’ compensation set off provision by excluding payments from applying to the benefit of a workers’ compensation insurer based on the provision that read: “Underinsured Motorists Coverage shall not apply to the benefit of any insurer or self-insurer under any workers’ compensation or disability benefits law or any similar law.”

Justice then argued that the Limits of Liability section of his policy is clear and requires the set off be applied not against the policy limit but against his total damages. The policy states that the “limits of liability of this coverage will be reduce by ….. payment made or amount payable by or on behalf of any person or organization which may be legally liable [and] …. Payment made or amount payable because of bodily injury under any workers’ compensation of disability benefits law.” The Court held that the phrase “limits of liability of this coverage” clearly referred to the $50,000 policy limit, not to Justice’s total damages. It held that the $50,000 limit will be reduced by the $25,000 payment Justice received from a “legally liable” entity, Wagner’s insurer, and by the $71,958.50 Justice received in workers’ compensation and disability benefits which would reduce the available limits to zero.

The Court then went into a review of the Uninsured/Underinsured Motorist Statute in Indiana to make sure the policy language in the American Family policy was consistent with the statute.

Justice’s policy limit was $50,000 which is the minimum amount the statute allows. The worker’s compensation set-off rovision operated to reduce that policy limit to zero.

The Court found that Justice did not receive the full statutory minimum from the tortfeasor’s insurer. The minimum was $50,000, but Justice received only $25,000. If the tortfeasor had carried the required amount of liability insurance, Justice would have received $50,000, and the purpose of the uninsured/underinsured motorist statute is to put Justice in that position. The Court held that Justice was entitled to recover the remaining $25,000 from American Family. It further held that any policy provision to the contrary is unlawful and unenforceable.

INDIANA COURT OF APPEALS TheCourt of Appeals dismissed the interlocutory appeal sua sponte for lack of jurisdiction due to plaintiff ’s failure to comply with Indiana Appellate Rule 14(B), which requires filing of a motion requesting certification of an interlocutory order within thirty days after the interlocutory order is noted in the chronological case summary Durall v. Weinberger, M.D., et al. (February 18, 2014) Robert Durall initiated a medical malpractice action against Dr. Mark Weinberger and three entities, arising out of numerous sinus surgeries performed by Dr. Weinberger in 2001 and subsequent years.

A medical review panel concluded that the defendants failed to meet the appropriate standard of care, and that there was a question of fact as to whether their conduct resulted in harm to Durall.

After Durall filed his complaint in state court, the defendants moved for summary judgment based on three primary grounds. After briefi g and a hearing, the trial court issued an order on November 19, 2012 granting in part and denying in part the dispositive motion. On January 7, 2013, Durall filed a motion to reconsider the November 19, 2012 order. A hearing was held on March 4, 2013, on which day the trial court certifi d its November 19, 2012 order for discretionary interlocutory appeal. On April 3, 2013, Durall filed with the Court of Appeals his request to accept jurisdiction of the interlocutory appeal.

No party raised the timeliness of the discretionary interlocutory appeal as an issue, but timeliness

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Scanlan • Wyant is an issue the appellate court should raise sua sponte if the parties do not. “The procedure for discretionary interlocutory appeals is governed by Indiana Appellate Rule 14(B), which providers, in relevant part: A motion requesting certifi ation of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion.”

Here, the chronological case summary does not show that Durall filed a motion for certifi ation of an interlocutory order, belated or otherwise. Thus, Durall failed to comply with Indiana Appellate Rule 14(B). The appellate court had no jurisdiction to entertain the interlocutory appeal, which it dismissed without prejudice to Durall’s right to appeal after the entry of fi al judgment.

Statute of limitations period was tolled when plaintiff filed its motion to amend its complaint to add new defendants, filed its proposed amended complaint, and filed its summons prior to the expiration of the statute of limitations Magic Circle Corporation, d/b/a Dixie Chopper v. Schoolcraft ( ebruary 20, 2014) On May 5, 2010, Schoolcraft was involved in an accident involving a mower manufactured by Magic Circle. He died three days later. On January 16, 2012, Schoolcraft’s estate brought a wrongful death action for products liability and negligence against Magic Circle. On May 4, 2012, the day before the statute of limitations period expired, the Estate moved to amend the claim to add defendants who manufactured parts of the mower, and it submitted to the court an amended complaint and summonses directed to the additional defendants. The motion was file stamped that day and entered as a public record the following Monday, May 7. The trial court granted the motion to amend on May 15, 2012, and summonses were issued to the new defendants.

The new defendants challenged the amended complaint on limitations grounds by moving to dismiss or for judgment on the pleadings. The trial court denied the motions, determining the limitations period was tolled at the moment the Estate filed its motion, the proposed amended complaint, and the summonses on May 4, 2012.

The Estate argued the Court should decline to follow A.J.’s Auto Sales, Inc., v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000). In A.J., a motion to amend adding A.J. as a party defendant was filed on the day the statute of limitations was expiring. Th ee days later the court conducted a hearing on the motion. In the chronological case summary, the entry stated that by agreement of the parties, the motion to amend the complaint was granted effective this date. Because the party was added after the limitation period expired, the Court of Appeals determined the complaint was time barred unless the amendment related back to the original filing date or unless the filing of the amendment within the statutory period tolled the statute until the court ruled upon the motion.

Under Trial Rule 15(C), a plaintiff may add an entirely new defendant after the statute of limitations has run only after demonstrating the conditions of the rule governing relation back of amendments have been satisfi d.

Schoolcraft argued that the Court should not apply the holding in A.J.’s. The Court agreed and decided to apply the rule used in the majority of state and federal jurisdictions, set out in The Children’s Store v. Cody Enters, Inc., 580 A.2d 1206 (Vt. 1990). That rule is that an action against a new party, brought in through amendment to a preexisting complaint, is commenced when the motion to amend, and the new complaint, is filed even though permission to make the amendment is given at a later date.

Therefore, the Court of Appeals affirmed the trial court’s ruling denying the new defendants’ motions to dismiss or for judgment on the pleadings.

Default judgment was properly set aside when plaintiff failed to comply with Rule 4.1(A)(1) and (2) for service of the summons and complaint upon a corporation Anderson v. Wayne Post 64, American Legion Corp. (February 28, 2014) On June 20, 2010, Anderson was injured when she slipped and fell on property owned by the American Legion in Marion County. On June 15, 2012, Anderson filed a complaint for damages against the American Legion in the Marion Superior Court. On that date, Robert Eakins was the registered agent for the American Legion. Anderson requested service on the American Legion through the Marion County Sheriff ’s Department. On June 20, 2012 Deputy Jefferson filed the

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INDIANA APPELLATE CASE REPORTER Sheriff ’s return of service with the clerk’s offi . According to the return of service, Deputy Jefferson left a copy of the complaint and summons at 601 South Holt Road, Eakins’ registered address. The deputy later testifi d that he left those documents attached to the door at 10:48 a.m. because Eakins was not present at that time, nor did it appear any other person was present. Deputy Jefferson also mailed a copy of the complaint and summons by fi st class mail to that address.

The American Legion failed to appear or respond so on July 24, 2012, the court entered a default judgment against the American Legion, which the court later amended to refl ct a judgment in the amount of $500,000. On April 26, 2013, the American Legion moved to set aside the default judgment pursuant to Trial Rule 60(B)(6) arguing that the judgment was void because Anderson had not served her complaint on the American Legion and, therefore, the court had not acquired personal jurisdiction over the American Legion. The American Legion submitted the affidavits of Eakins and Post Commander Glen Hawkins, who both testifi d that they had not received the summons and complaint.

On July 8, 2012, the court held a hearing on the American Legion’s motion to set aside the default judgment. Following that hearing, the court granted the American Legion’s motion to set aside the default judgment under Trial Rule 60(B)(6). Anderson then appealed.

A trial court’s ruling on a Rule 60(B)(6) motion is reviewed de novo. Anderson argued that leaving the summons and complaint at a building at the address listed for the registered agent, and following that attempt at service with copy service by fi st class mail, was reasonably calculated to inform the American Legion of her lawsuit. A party must provide notice reasonably calculated, under the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Munster v. Groce, 829 N.E.2d 52 (Ind. Ct. App. 2005) Whether the judgment is void turns on whether the defendant was served with process effective for that purpose under the Indiana Rules of Procedure. Glennar Mercury- Lincoln, Inc. v. Riley, 338 N.E.2d 670 (Ind. 1975) There was no dispute that Deputy Jefferson did not comply with Rule 4.1(A)(1) as he did not mail a copy of the summons and complaint by registered or certifi d mail or other means that would demonstrate Eakins’ receipt of those documents. There was also no dispute that Jefferson did not serve Eakins personally under Rule 4.1(A)(2) and that Rule 4.1(A)(4) does not apply to Eakins.

The Court of Appeals agreed with the trial court in that Deputy Jefferson could have effected service of process on Eakins and, thereby, the American Legion, by complying with Trial Rules 4.1(A)(1) or (2). Pursuant to Rule 4.6(C), Deputy Jefferson could also have left a copy of the documents at any American Legion offic in Indiana with the person in charge of that offic if he could not comply with Rule 4.1(A)(1).

Although Anderson did not comply with the Indiana Trial Rules, her attempt to serve process on the American Legion may still have been adequate if, in light of the facts and circumstances, her method was obviously better calculated to give notice. The Court of Appeals did not agree that Anderson’s method of leaving the summons and complaint at the outbuilding and following that up with copy service by fi st class mail to the registered agent’s address was reasonably calculated to inform the American Legion of her lawsuit.

Anderson attempted to rely on Trial Rule 4.15(F) to save her failure to adequately serve the American Legion. Rule 4.15(F) states “No summons or the service thereof shall be set aside or be adjudged insuffici t when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.” The Court of Appeals held that Anderson did not serve the American Legion as required either by Indiana’s Trial Rules or the Due Process Clause. As a result, she could not rely on Trial Rule 4.15(F). The Court of Appeals affirmed the trial court’s order setting aside the default judgment.

Claimants were not entitled to an award of attorneys fees and expert fees under the Indiana Crime Victims Relief Act because they had not met the criminal elements of fraud Wysocki v. Johnson (March 3, 2014) Joseph and Carmen Wysocki appealed the denial of their request for attorney fees and additional damages under Indiana’s Crime Victims Relief Act at Indiana Code 34-24-3-1. The case involved a sale of a home from Johnson to the Wysockis. The case had already been before the Indiana Supreme Court previously where it held that a seller may be liable for fraudulent misrepresentations made on the Disclosure Form when he or she had actual knowledge that the representation was false at

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INDIANA APPELLATE CASE REPORTER the time he or she completed the form. The Disclosures Statutes require actual knowledge that the representations in question were false at the time they were made. The trial court had previously held that the Johnsons were liable because certain defects should have been obvious to the Johnsons.

Therefore, the Indiana Supreme Court remanded with instructions to re-evaluate the Wysockis’ fraudulent misrepresentation claim, which was premised upon the allegation that the Johnsons made false statements on the Sellers Residential Real Estate Form, using the correct legal standard.

On remand, the trial court determined that the defects in question were clearly within the actual knowledge of the Johnsons at the time the disclosure form was completed, and therefore the court entered judgment in favor of the Wysockis with respect to the cost of performing the necessary repairs. But the trial court denied the Wysockis’ request for attorneys’ fees and expert fees under the Crime Victim Relief Act. That denial served the basis for this appeal.

The Court of Appeals examined Wysockis’ request for attorneys’ fees. It noted that Indiana generally follows the “American Rule” where parties pay their own attorneys fees. Attorneys’ fees are recoverable if there is an agreement between the parties to that effect, or where attorney fees are authorized by statute or rule. Estate of Kappel v. Kappel, 979 N.E.2d 642 (Ind. Ct. App. 2012) Although a trial court’s decision to grant attorneys fees is generally reviewed for abuse of discretion, the Court of Appeals applied a de novo standard of review with respect to any legal conclusions upon which the trial court based its decision.

The Wysockis sought a ruling that attorney fees are recoverable under the Crime Victim Relief Act whenever the request is premised upon a violation of the Disclosure Statutes. The CVRA applies to pecuniary losses resulting from violations of the following criminal statutes 35-42-3-3 (criminal confi ement), 35-42-3-4 (inference with custody), 35-43-5-0.1 to 5-20 (forgery, fraud, other deceptions), and 35-45-9-1 to 9-6 (criminal gang control). The Wysockis asked the Court to equate the common law tort of fraud with the criminal offense of fraud.

The five elements of common law fraud include: (1) a false statement of past or existing material fact, (2) made with knowledge that it was false or made recklessly without knowledge of its truth or falsity, (3) made for the purpose of inducing the other party to act upon the statement, (4) upon which the other party justifiably relied and acted, (5) proximately resulting in injury to the other party.

The elements of criminal deception are (1) knowingly or intentionally (2) made false or misleading written statements (3) with the intent to obtain property.

The elements of common law fraud and the criminal offense of fraud are different. The burden of proof is different. Therefore, the Court of Appeals held that the authorization of attorneys fees in the CVRA for victims of criminal offenses than can be categorized as fraud extends to the common law tort of fraud. It upheld the ruling of the trial court.

Summary judgment for defendants was reversed where Proposed Complaint found timely filed when timely deposited with private delivery service, FedEx Bonnie Moryl, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl v.

Carey B. Ransone, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, et al.

(March 10, 2014) Richard Moryl died on April 20, 2007, at LaPorte Hospital. On Sunday, April 19, 2009, plaintiff Bonnie Moryl sent her proposed complaint, alleging medical malpractice as to multiple defendants, to the Indiana Department of Insurance (“IDOI”) via FedEx, a private delivery service. The IDOI received the proposed complaint on Tuesday, April 21, 2009, one day after the expiration of the twoyear statute of limitations.

The defendant health care providers filed a motion for summary judgment, claiming that Moryl’s proposed complaint was not timely filed. After a hearing, the trial court granted the dispositive motion. Moryl appealed, claiming that because the Indiana Rules of Trial Procedure and the Indiana Rules of Appellate Procedure consider a pleading filed on the date that it is deposited with a thirdparty carrier, the best common sense resolution of the matter is to construe the Medical Malpractice Act (the “Act”) in the same fashion.

The Court of Appeals disagreed, holding that Moryl failed to demonstrate that the rules extend to the Act. More specifi ally, Section 34-18-7-3(b) states: “A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certifi d mail to the commissioner.” The Court noted that no provision suggests that a proposed complaint is considered filed when it is deposited with a third party carrier. Summary judgment for

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Scanlan • Wyant the defendants was affirmed, and the plaintiff sought rehearing citing Ind. Code Section 1-1-7-1, which the Court of Appeals denied without comment.

The Supreme Court of Indiana granted transfer to answer a question of fi st impression: whether, under Indiana’s Medical Malpractice Act, a proposed medical malpractice complaint is considered “filed” upon deposit with a private delivery service or upon receipt.

The Court considered plaintiff ’s argument, fi st raised on rehearing, that Section 34-18-7-3(b) confli ted with Indiana Code Section 1-1-7-1, which defi es compliance with requirements that matters be sent by registered or certifi d mail, and provides that any designated private delivery service (as defi ed by the United States Internal Revenue Service) may be used.

When two statutes on the same subject must be construed together, a court should attempt to give effect to both and must attempt to harmonize any inconsistencies or confli ts before applying any other rule of statutory construction. State v. Universal Outdoor, Inc., 880 N.E.2d 1188 (Ind. 2008) In harmonizing the two statutes, the court rejected the defendants’ arguments and held that a proposed medical malpractice complaint is filed upon mailing with a designated private delivery service – as well as the United States Postal Service – so long as it satisfies Indiana Code Section 1-1-7-1. Here, the provision was satisfi d, and the proposed complaint was timely filed. Summary judgment reversed.

Motorist owed a general duty of care to avoid injury to other motorists which prevented granting summary judgment for motorist who was alleged to have been following too closely Romero v. Brady and Advantage Tank Lines, LLC (March 13, 2014) Romero was driving her car southbound on I-65 in Scott County. Romero was traveling in the left lane, and Brady, who is employed by Advantage, was driving a tractor-trailer in the right lane behind Jonathan Stigler, who was driving a box truck. After Romero passed Brady, Stigler swerved into the left lane, causing Romero to drive off the left shoulder, lose control of her car, and drive perpendicularly into the right lane, in front of Brady’s truck. Brady’s truck collided with Romero’s car, and she suffered extensive injuries as a result of the collision.

Romero filed a complaint alleging that Stigler, Brady, and Advantage were negligent. Romero settled with Stigler, and she dismissed her claim against him. Brady and Advantage Truck Lines filed a motion for summary judgment, arguing that Brady did not owe Romero a duty to maintain a certain distance behind Stigler’s truck. Romero responded by arguing that Brady owed her a duty of reasonable care. The trial court granted the Defendants’ motion for summary judgment because Brady did not owe Romero a duty, Brady did not violate any duty owed to Romero, and the link in causation was simply missing between Brady’s following distance to Stigler and the impact of Brady’s vehicle with Romero when her vehicle entered his lane of travel. Romero then appealed.

Romero’s theory of liability against Brady was that he was traveling too closely behind Stigler. She argued that had Brady been 400 feet or more behind Stigler, she would not have crossed Brady’s path when she drove into his lane. Romero also argued that by following Stigler too closely, Brady did not allow himself enough time to react and avoid the hazard.

The Court started by pointing out the well established rule that all operators of motor vehicles have a general duty to use ordinary care to avoid injuries to other motorists. Because it is well established that Brady had a duty to use ordinary care to avoid injuring other motorists, including Romero, the duty analysis is unnecessary. The Court found that the Defendants failed to specifi ally address the issue of breach of duty in their summary judgment motion and therefore did not establish that only a single inference can be drawn from the facts.

The Court held that because Brady owed Romero a duty of care and the questions of breach and proximate cause are not undisputed, the entry of summary judgment in favor of the Defendants was improper. It reversed the trial court’s order granting summary judgment.

Release did not bar negligence claim against adoption facilitator and issue of fact remained as to whether adoption facilitator breached its duty to couple during pre-adoption placement Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (March 28, 2014) The Kramers alleged that Catholic Charities was negligence in facilitating a pre-adoption placement of a child with them. The trial court granted Catholic Charities’ summary judgment based on a release signed by the Kramers. The Kramers appealed.

The Kramers argued that the trial court erred when it concluded that the releases operate to bar

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INDIANA APPELLATE CASE REPORTER their negligence claims. They cite to Stowers v. Clinton Central School Corporation, 855 N.E.2d 739 (Ind. Ct. App. 2006) where it was held that an exculpatory clause will not act to absolve a party from liability unless it specifi ally and explicitly refers to the negligence of the party seeking release from liability. In this case, it was undisputed that the releases do not explicitly release Catholic Charities for its negligence. However, Catholic Charities argued that an exception applied to the rule in Stowers in that an exculpatory clause not referring to the negligence of the release may act to bar liability for those damages incurred which are inherent in the nature of the activity. Catholic Charities argued that the Kramers’ claimed damages, which stem from the discovery of R.M.’s (putative father) registration with the putative father registry weeks after E (child) had been placed with them, were inherent in the nature of the pre-adoption placement. Catholic Charities states the Kramers explicitly knew of that risk and went ahead with the placement despite that knowledge.

The inherent nature of the activity exception does not apply, and a specific release from negligence is required, where “the risk of harm is a latent danger” such as “the defendant’s own negligence.”

Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576 (Ind. Ct. App. 2006) Catholic Charities had a policy of checking the putative father registry twice before placing a child with a pre-adoptive family. Th s policy was unknown to the Kramers at the time they worked with Catholic Charities and, at best, Catholic Charities’ failure to comply with this policy presented a latent risk to the Kramers. The Court held that the trial court erred when it concluded that the releases signed by the Kramers barred their negligence claims as a matter of law.

The Kramers next argued that Catholic Charities failed to meet its burden on summary judgment with regard to their negligence claims. Catholic Charities limited its motion for summary judgment to the question of breach of duty. Catholic Charities argued only that it breached no duty to the Kramers because it fully complied with the mandate of Indiana Code 31-19-5-15(b)(1), which requires an adoption agency to search the putative father registry at least one day after a putative father is required to register with the ISDH. However, the Court found issues of fact as to whether Catholic Charities was negligent even if it complied with Indiana statute.

The Court overturned the ruling of summary judgment for Catholic Charities and remanded back to the trial court.

THOMAS R. RUGE LEWIS & KAPPES, PC (317) 639-1210 truge@lewis-kappes.com

• Representation of Foreign Nationals • Immigration • Criminal • Civil Litigation Over 30 years of experience Member-American Immigration Lawyers Association Former Adjunct Professor Of Immigration Law http://www.lewis-kappes.com 54 • VERDICT

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Verdicts & Settlements SETTLEMENT TRIP AND FALL BROKEN ARM, ROTATOR CUFF TEAR, LYMPHEDEMA Jane Doe v. Burger King Corporation Morgan Superior Court 1 55D01-1201-CT-000195 Facts -- Liability: Plaintiff was a 66-year-old, hard-working, family-oriented, devoted Christian grandmother, who did not cuss or drink and tithed to her church. On September 30, 2010, she attempted to enter a Burger King to buy a soft drink while on the way to her second job as a cleaning lady. Her sandal stuck on a metal screw sticking up from a loose door threshold, causing her to fall and fracture the upper humerus of her dominant arm. Multiple motions to compel led Burger King to admit liability two years after the fall.

Subsequent court-ordered discovery revealed Burger King knew about the dangerous threshold four months before the fall but failed to repair it.

Burger King claimed it could not find many important documents such as the incident report, inspection reports and personnel files. The on-duty manager and the manager who inspected the threshold before the fall were both fired for unrelated reasons. A videotaped 30(B)(6) deposition, for which Burger King provided a pretty 32-year-old real estate paralegal who learned of the case a week prior and had never testified, was devastating. Deponent knew little but parroted the company’s absurd denials of Plaintiff’s physical pain, mental suffering, humiliation, embarrassment, and lymphedema.

Facts – Damages: Plaintiff suffered a very painful and disabling comminuted fracture of the upper arm. She subsequently developed lymphedema, an incurable swelling resulting from damage to the lymphatic circulatory system. Treatment consisted of immobilization for two months, physical therapy and regular use of a

compression machine and garments to force drainage of lymph fluid. An initial PPI rating of zero by treating orthopedic, Dr. John Meding, was struck by the Court as scientifically unreliable because it did not comply with the AMA Guides. Extensive lymphedema workup was done by a physical therapist and physical medicine specialist, both experienced with the condition. Dr. Kelly Paul assessed a 29% PPI. Continuing arm and shoulder problems led to MRI and diagnosis in 2013 of a full thickness rotator cuff tear, for which Plaintiff underwent surgery, immobilization and therapy. This greatly improved the effects of lymphedema.

Lymphedema is a “notoriously debilitating progressive condition with no known cure.” The lifelong treatment is cumbersome and timeconsuming. The condition most commonly results from breast cancer surgery, but can result from trauma. Over time, the condition can worsen and cause complications.

Diagnosis was challenged by a rarely done radioactive tracer test called a lymphangiogram which the radiologist concluded did not show evidence of lymphedema. Burger King hired Dr. Louis Angelicchio, an orthopedist who never treated lymphedema, to claim Plaintiff had an “absolutely normal exam” and did not have lymphedema or any other residuals from the fall. He accused Plaintiff of lying, exaggerating and malingering (and lying about the use of the $10,000 compression machine used to treat lymphedema), contrary to the testimony of family and friends and medical care providers. Five weeks after his “normal exam,” MRI revealed a full thickness rotator cuff tear. Video of his “exam” showed involuntarily grimacing when he forcibly raised Plaintiff’s arm above her head.

Sanctions: Burger King was sanctioned three times by Judge G. Thomas Gray: $3,750 for evasive

discovery responses; $600 for not disclosing the existence of secondlayer excess insurance; and $7,500 plus interest for failing to pay the settlement when due.

Medical Bills: $53,000, about onethird paid. Potential future expenses of $163,000.

Lost Income: $10,725 from work as school bus driver and cleaning lady.

Future loss of $42,000 from quitting cleaning job of 30 years because of arm pain.

Experts for Plaintiff: Dr. Kelly Paul, physical medicine and rehabilitation; Sabrina Johnson, physical therapist; Dr. Dee Bonny, emergency medicine; Shirley Daugherty, life care planner.

Experts for Defendant: Dr. Louis J. Angelicchio. The Court reduced his charge for a one-hour deposition from $2,500 to $500.

Mediation History: First mediation ended with offer of $90,000 because “it’s just a broken arm.” Second mediation only after Defendant agreed to offer $300,000 before mediation and pay all costs. Adjuster left at 4 pm to catch plane. Third mediation led to motion for sanctions for failing to send representatives with settlement authority. Subsequent settlement two months before trial after Plaintiff turned 70. Mediator was James R. Williams of DeFur Voran.

Settlement Date and Amount: $850,000 in March, 2014.

Thanks: Jeff Cooke for his database on defense “experts”; and Ryan Farner for insightful consultation on reptile issues.

Plaintiff’s Attorney: James A. Mellowitz, Indianapolis.

Defendant’s Attorneys: Matthew J. Schafer of Drewry Simmons Vornehm, Carmel; and Peter R. Foley, Martinsville.

Submitting Attorney: James A. Mellowitz.

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Index of Advertisers Appeals •

Guenin Law...................................................... 12

Aviation Accidents •

Wilson Kehoe & Winingham.............................. 25

Brain Injury • • •

Doehrman Chamberlain........................Back Cover Montross, Miller, Muller, Mendelson & Kennedy... 22 Wilson Kehoe & Winingham.............................. 25

Business/Commercial Litigation • •

Price Waicukauski & Riley, LLC............................. 7 Williams Law Firm............................................ 46

Class Actions •

Price Waicukauski & Riley, LLC............................. 7

Construction Site Injury Litigation • •

Doehrman Chamberlain........................Back Cover Wilson Kehoe & Winingham.............................. 25

Fire/Explosion Injuries •

Wilson Kehoe & Winingham.............................. 25

Foreign Nationals – Representation Of •

Thomas R. Ruge, Lewis & Kappes, P.C............... 54

Immigration Law •

Thomas R. Ruge, Lewis & Kappes, P.C............... 54

Mediation •

Goodin Abernathy............................................. 37

Medical Malpractice • • • •

Montross, Miller, Muller, Mendelson & Kennedy... 22 Palmer Thomson Law....................................... 18 Williams Law Firm............................................ 46 Wilson Kehoe & Winingham.............................. 25

Document Retrieval •

Leading Technologies, LLC................................ 14

Expert Witnesses •

Leading Technologies, LLC................................ 14

Forensic Economics •

Leading Technologies, LLC................................ 14

•

Ronald T. Smolarski, MA.................................... 14

Functional Capacity Evaluations •

Ronald T. Smolarski, MA.................................... 14

Legal Nurse Consultants •

Leading Technologies, LLC................................ 14

Legal Staffin •

Home Front Legal Services LLC......................... 14

Life Care Planning •

Ronald T. Smolarski, MA.................................... 14

Professional Liability Insurance •

Ritman & Associates, Inc.................................. 48

Structured Settlements •

Morrow Settlement Services.............................. 16

•

Ringler Associates.....................Inside Front Cover

Videography •

Image Resources, Inc.............................28-29, 51

Vocational Expert •

Ronald T. Smolarski, MA.................................... 14

Out-of-State Attorneys/Attorneys Licensed in Other States •

Kentucky - Palmer Thompson Law..................... 18

Personal Injury and Wrongful Death • • • • •

Doehrman Chamberlain........................Back Cover Ladendorf Law................................................... 4 Palmer Thompson Law...................................... 18 Williams Law Firm............................................ 46 Wilson Kehoe & Winingham.............................. 25

Pharmaceutical Drug Litigation •

Price Waicukauski & Riley, LLC............................. 7

Product Liability • • •

Doehrman Chamberlain........................Back Cover Williams Law Firm............................................ 46 Wilson Kehoe & Winingham.............................. 25

Professional Malpractice •

Price Waicukauski & Riley, LLC............................. 7

Property Rights Litigation •

Price Waicukauski & Riley, LLC............................. 7

Securities Cases •

Williams Law Firm............................................ 46

Workplace Injuries •

Klezmer Maudlin, PC...................Inside Back Cover

56 • VERDICT

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