Current Feed Content from 19 Nov 08 13:27
Insurance at Trial: What Can You Say?
Thu, 13 Nov 2008 14:25:48 -0600In jury trials involving personal injuries, disputes often arise regarding what can be said about insurance during the course of proceedings. Unfortunately, many assumptions about about what can and cannot be said about insurance are based upon evidentiary rule misconceptions rather than upon the actual rules of evidence.
Obviously, what can be said will depend upon the nature of the case. If the claim is a first-party insurance case brought by an insured against her insurer, such as an uninsured or underinsured motorist claim, the insurance company is a party to the action and its identity should be appropriate for discussion as these claims are technically based upon contract. Malott v. State Farm, 798 N.E.2d 924, 926 (Ind. Ct. App. 2003). Under these claims, not only can you discuss the identity of the insurance company, but a plaintiff may introduce into evidence portions of the written insurance policy to establish the contract upon which the claim is based. See Ind. Trial Rule 9.2(A) (requiring written contracts to be filed with the complaint and made part of the record). . . . Continue reading Tony Patterson's article Insurance at Trial: What Can You Say? on Parr Richey Obremskey & Morton's Indiana Co-Counsel newsletter for October 2008.
Change in Expert's Testimony Found to be Grounds for New Trial
Fri, 07 Nov 2008 09:01:27 -0600The plaintiff in this case was injured in an automobile accident. The defendant retained a medical expert who offered opinions regarding the plaintiff's injuries during discovery. At trial, the expert testified for the first time that he diagnosed the plaintiff with a degenerative disc disease, which was a material deviation from his prior deposition testimony. As a result of this contradiction, the plaintiff requested a new trial.
The trial court found the defendant committed misconduct by not disclosing its medical expert's new diagnosis prior to trial and granted the plaintiff's motion for a new trial. On appeal, the trial court's ruling was affirmed, finding that the defendant should have supplemented its medical expert's opinion prior to trial. Nature's Link v. Przbyla, 885 N.E.2d 709, 719 (Ind. Ct. App. 2008).
Do the Indiana Trial Rules Distinguish Between "Trial" and "Discovery" Depositions?
Tue, 28 Oct 2008 15:41:13 -0600The Indiana Trial Rules do not distinguish between "trial" and "discovery" depositions. Trial Rule 30 allows either party to conduct a deposition provided that the party gives reasonable notice in writing to other parties to the action. If a deposition is properly taken in accordance with Trial Rule 30, the deposition may later be used at trial for evidentiary purposes if the witness is unavailable to testify at trial and the party against whom the testimony is offered had an opportunity and similar motive to examine the witness during the deposition. (Ind. Rule of Evidence 804(b)(1)) It does not matter that the deposition was not noticed as a "trial" or "evidentiary" deposition, as the "Indiana Rules of Trial Procedure do not recognize such a distinction." Hagerman v. Copeland , 697 N.E.2d 948, 953 (Ind. Ct. App. 1998).
Indiana Supreme Court Will Hear Oral Argument in Stanley vs. Walker
Mon, 13 Oct 2008 09:16:10 -0600The Indiana Supreme Court has granted petition to transfer in the case Stanley v. Walker. The Court is set to hear oral argument on the matter November 6, 2008 at 9:45 a.m. in the Indiana Supreme Court Court Room. It can be watched live via webcast at the IndianaCourts website.
In Stanley v. Walker, the Indiana Court of Appeals affirmed the Johnson Superior Court in preventing the defendant from introducing evidence at trial that the plaintiff's medical providers and health insurance company had negotiated a "write off" which reduced the amount plaintiff was initially billed after receiving medical services. The Indiana Court of Appeals held that Indiana's collateral source evidentiary statute precluded the evidence from being admitted.
Tragic Bus Accident Should Draw Attention to Increase in Moped use on Roadways
Fri, 03 Oct 2008 12:07:29 -0600By now, many people across Indiana have sadly learned of the heartbreaking school bus accident that occurred last Friday on U.S. 24 west of Logansport, that claimed the lives of four young special-needs students. At the time of the accident, the Twin Lakes School Corporation bus was in route from Logansport to Monticello after the school day had ended.
Wndu.com reported that the accident was caused after an eastbound dump truck on U.S. 24 quickly swerved into the westbound lane to avoid colliding with a moped making a left-hand turn into a driveway. As the dump truck swerved into the westbound lane, it collided with the school bus, sending it over on its side and into the eastbound lane. The school bus was then struck in its hood by a second dump truck following in the eastbound lane.
Mopeds and moter scooters have become increasingly popular in the last year due to our country's current fuel crisis and the rising gas prices that have resulted. Many mopeds and motor scooters gain over 100 miles per gallon of fuel, which makes them an attractive alternative to driving SUVs and four-door sedans. However, being that they are physically smaller means of transportation, mopeds and motor scooters provide additional safety concerns on our roadways. In most cases, mopeds and scooters are smaller than motorcycles and do not have the loud exhaust that alerts automobile and truck drivers to the presence of a motorcycle. As mopeds and motor scooters become a more and more familar sight on our roadways, it is necessary that all drivers take extra precautions in sharing the roadway and preventing accidents.
New Technology Recommended to Curb Trucking Accidents Caused by Fatigue
Fri, 26 Sep 2008 14:01:10 -0600Each year, thousands of people across the United States will suffer injury or death from their involvement in a semi-trailer trucking accident. One of the main causes of these accidents continues to be driver fatigue. Financial and other incentives prompt semi-trailer truck drivers to take on longer hauls for more hours at a time.
The Federal Motor Carrier Safety Administration ("FMCSA") has in place driver-related regulations that limit the maximum driving time for drivers of property-carrying vehicles (including, but not limited to semi-trailer drivers). The FMCSA has also promulgated regulations that require drivers of commercial motor vehicles, such as semi-trailers, to record their hours spent driving in order to ensure compliance with the maximum driving time limits.
Nevertheless, fatigue continues to be a major problem in causing semi-trailer trucking accidents. In an effort to reduce these accidents, the National Transportation Safety Board ("NTSB") has recently encouraged government officials to pass laws mandating alarm systems to be used in alerting truck drivers of their fatigue. A recent article posted on www.nationalsafetycommission.com details several options the NTSB offers to curb fatigue related trucking accidents.
These include: 1.) supporting development research and implementation of dashboard-mounted cameras that track a driver's eye and eyelid movements, alerting them when it senses fatigue; 2.) technology that warns of collisions and automatically engages the trucks braking system; 3.) technology that senses when a truck is veering from its lane and deploys a light or alarm signal to the driver; 4.) stricter oversight by the FMCSA in making commerical trucking companies comply with regulations; and 5.) further implementation of rumble strips on the edge of highways and interstates that have proven very effective in preventing trucking accidents.
Tony Patterson Chairs Recent Indiana Trial Lawyers Association Seminar
Mon, 08 Sep 2008 14:00:36 -0600This past Friday, September 5th, Indiana Trial Lawyers Association (“ITLA”) presented an all-day seminar entitled “Personal Injury Trials from Start to Finish” at the ISTA Conference Center in downtown Indianapolis.
Tony Patterson (seminar chair) and Paul Kruse, both attorneys from the law firm Parr Richey Obremskey & Morton, as well as six other central Indiana attorneys addressed roughly twenty attendees on a range of topics associated with personal injury trials. Topics included: motions in limine and pre-trial evidentiary issues; presenting compelling opening statements; effective uses of lay witness testimony and dealing with defense and surprise witnesses; trying a personal injury case from the defense perspective; utilizing technology exhibits on a budget at trial; choosing your experts and effectively presenting testimony; dealing with the defenses’ medical examiners; and effective use of testimony, jury instructions and demonstrative evidence during closing argument.
Proposed Contributory Negligence Instruction Denied in Indiana Medical Malpractice Case
Wed, 27 Aug 2008 10:16:43 -0600In an interesting case decided this past July, the Indiana Court of Appeals held that instructions on contributory negligence were not warranted where the plaintiff had failed to correctly disclose her mammogram history to her doctor before undergoing breast augmentation surgery.
In Joyner-Wentland vs. Waggoner, the plaintiff brought a medical malpractice suit against her doctor after she failed to order a mammogram before performing breast augmentation surgery on her. In her initial plastic surgery consultation, the plaintiff stated her last mammogram had come back clear and that it had been taken two years prior, when it had actually been five years prior. As a result, the defendant plastic surgeon proceeded with plaintiff's augmentation surgery. While operating, the defendant discovered the plaintiff was suffering from breast cancer and ultimately, the surgery caused plaintiff's cancer condition to significantly worsen.
On appeal, the Indiana Court of Appeals found there to be "overwhelming" evidence that plaintiff's untruthfulness as to the date of her last mammogram did not contribute to her injuries. It further explained that the standard of care was that mammograms should be performed annually for women over fifty years old and even though plaintiff misrepresented the date of her last mammogram, the information she presented the defendant with still called for a pre-surgery mammogram under the standard. Consequently, it held that the trial court did not abuse its discretion in prohibiting an instruction that plaintiff was contributory negligent in giving incorrect information on her pre-surgery intake form.
Joyner-Wentland v. Waggoner, 890 N.E.2d 730 (Ind. Ct. App. 2008).
Failure to Mitigate Damages through Surgery
Thu, 14 Aug 2008 15:24:49 -0600In Simmons v. Erie Ins. Exchange, the defendant insurance company argued that plaintiff failed to mitigate his damages due to his failure to undergo surgery to treat his plantar fasciitis, which resulted from his involvement in an automobile accident. Plaintiff had received full insurance policy limits from the individual that was 100% at fault in causing the collision and was seeking to recover from defendant insurance company whom plaintiff held an underinsured motorist policy with. On appeal, the Indiana Court of Appeals held “that whether a plaintiff has a duty to submit to surgery requires a ‘reasonable person’ analysis.” The Court further concluded that even though the question of whether a reasonable person would submit to surgery is one for the jury, “under some circumstances, courts will be able to answer the question as a matter of law.” When judges or juries are making a reasonable person inquiry regarding surgery, the Court held they should consider the following factors: 1) the likelihood that the surgery will correct or improve the condition; 2) the risk involved in the surgery; 3) the pain or inconvenience caused by the surgery; and 4) the ability of the plaintiff to bear the cost of surgery. Following the Indiana Supreme Court’s opinion in Willis v. Westerfield, the Court noted that even though normally expert medical opinion would be necessary in regard to the first three factors, “no bright-line rule exists on this point.” Simmons v. Erie Ins. Exchange, 2008 WL 3271552 (Ind. Ct. App. 2008).
Indiana State Police Seek Driver in Fatal I-65 Hit-and-Run Accident in Clark County
Fri, 08 Aug 2008 07:18:41 -0600Wave3.com has reported that police are seeking the driver of a S-10 truck that was involved in a hit-and-run accident early morning on August 2. Indiana State Police reported that the truck, identified by state police to look nearly identical to the truck shown in the picture below, collided with a motorcycle, leaving the operator fatally injured. The truck subsequently left the scene of the accident after the collision occurred.
Police ask that you call the Indiana State Police or Crime Stoppers with any information relating to this accident.
Picture Courtesy of Wave3.com and Indiana State PoliceTreating Physician's Testimony Going to the Standard of Care in Indiana Medical Malpractice Case is Treated as Expert Testimony
Wed, 06 Aug 2008 07:26:28 -0600In a recent medical malpractice case, the Indiana Court of Appeals affirmed a $800, 000 judgment against a doctor after a family had brought a claim relating to the stillbirth of their daughter.
On appeal, the doctor argued that the trial court "improperly excluded opinion testimony" from two of the patient's treating physicians, who were giving favorable testimony to the doctor that went to the standard of care. At trial, two treating physicians' testimony were objected to, as they had not been disclosed as experts under Indiana Evidence Rule 702. On appeal, Defendant doctor's counsel unsuccessfully argued that the treating physicians' testimony relating to the standard of care were based on personal perceptions under Indiana Evidence Rule 701. However, the Indiana Court of Appeals held that "knowledge of the standard of care was not based on physician's perception, rather, it was based on the physician's expert knoweledge." Consequently, the Indiana Court of Appeals held that it was not an abuse of discretion for the trial court to exclude the treating physicians' testimony as to whether the defendant deviated from the standard of care as an undisclosed expert opinion.
See Cain v. Back, 889 N.E.2d 1253 (Ind. Ct. App. 2008).
38-Year-Old Mother and 4-Year-Old Son Critically Injured in Interstate 65 Accident Near Roselawn
Tue, 29 Jul 2008 07:18:50 -0600The Post-tribune.com has reported that Monday afternoon two trucking accidents occurred on Interstate 65 near the Roselawn, Indiana interstate exit. Both accidents combined to injure 4 people total, which included leaving a 38-year-old mother and her 4-year-old son critically injured, and also caused traffic to be backed up on Interstate 65 for hours.
Initially, a semitrailer rear-ended the motor vehicle carrying a mother and her son, who were slow moving due to construction work on the interstate. The semitrailer pushed the family's car into a guard rail, ultimately pinning it between the rail and the semi, while hitting two other motor vehicles in the process.
Indiana State Police blocked off the roadway as rescue and emergency teams dealt with the first accident scene. As traffic built up, a second semitrailer jacknifed at a location further south of the initial Interstate 65 accident scene, which resulted in a second closure. Indiana State Police closed Interstate 65 for more than 4 hours dealing with the two accidents.
Indiana Court of Appeals Upholds Award of Prejudgment Interest in Medical Malpractice Case
Thu, 24 Jul 2008 07:38:06 -0600The Indiana Court of Appeals upheld the trial court's award of prejudgment interest in a medical malpractice case earlier this month in Hupfer v. Miller, 2008 WL 2600021 (Ind. Ct. App. 2008). In Hupfer, a jury returned a verdict in favor of the Plaintiff for $75, 000 against a podiatrist who was found liable for committing malpractice. Following the verdict, the Plaintiff filed a motion for prejudgment interest. The trial court granted the motion and awarded the plaintiff $24, 000 after applying an interest rate of 8%.
The Indiana Court of Appeals affirmed the trial court's decision on appeal. In doing so, it stated that the initial award of prejudgment interest was made pursuant to the Tort Prejudgment Interest Statute ("TPIS") (or IC 34-51-4-1 et. seq.), which was enacted to "encourage settlement and to compensate the Plaintiff for the lost time value of money." Moreover, TPIS preempts comomon law prejudgment interest in tort cases.
On appeal, the Defendant argued that Plaintiff's written settlement offer did not comply with TPIS because it failed to specify the exact Plaintiff and Defendant to whom the offer applied. The Court disagreed stating the it was clear who the offer was directed at when the letter was sent from the individuals who filed the claim to the person whom the claim was filed against.
The Defendant also argued that the prejudgment award violated TPIS as it was more than one and one-third (1 1/3) the amount of the total judgment. The Court again disagreed explaining that the TPIS states the prejudgment interest award must not exceed one and one-thid the total amount of the judgment and in the case at hand the prejudgment interest award was exactly one and one-third.
Lastly, the Defendant unsuccessfully argued that the trial court erred in awarding prejudgment interest when it applied a prejudgment interest rate of 8%. The Court, however, noted that the TPIS allows a trial court to award a prejudgment interest rate of not less than 6% and no more than 10% per year. Consequently, the trial court was within its discretion to award 8%.
2 Dead in Boone County/Interstate 65 Car Accident
Mon, 21 Jul 2008 15:08:40 -0600Msnbc.msn.com has reported that early Saturday morning a 33-year-old Indianapolis man accessed Interstate 65 northbound in the wrong direction, causing a motor vehicle accident killing both himself and the driver of another car. Mark Cabbell, Jr. was identified as the driver of the car headed in the wrong direction that collided with the car driven by 22-year-old Samatha Burke, as she was headed northbound near the State Road 39 exit. Burke was heading home from her shift as a nurse at Riley Children's Hospital.
Both drivers were pronounced dead at the scene of the accident. Police are investigating whether Cabbell was under the influence of alcohol at the time of the accident.
American Association for Justice Releases Study on U.S. Insurance Industry
Thu, 17 Jul 2008 09:59:01 -0600The SunHerald.com reported that the American Association for Justice ("AMJ") recently released a report ranking the United States "worst" insurance companies based on factors such as: refusal to pay just claims, the company employs harball tactics against policyholders, rewarding of company executives with extravagant salaries, and the raising of premiums while stockpiling excessive profits.
Researchers for the AMJ spent six months gathering information to base the report on. According to the SunHerald.com, researchers used "court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters" to draw their conclusions.
The top five "worst" companies listed in the report are:
1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco
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