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Fall 2015 newsletter

Firm Happenings
We are pleased to report that our firm is continuing to grow to meet the needs of its clients. This summer, Jackie R. Clowers started as an associate in the firm’s litigation section.  As the husband of associate, Carli A. Clowers, Jackie had already been part of our “firm family” for two years, but he did not let that scare him away!  Jackie is licensed in both Indiana and Kentucky, and is a great addition to the firm.
Rodney and Lisa Scott are thrilled to announce the arrival of their granddaughter, Evelyn Grace “Evey” Carlock on July 1.  Evey joins big brother, Jaxson Carlock.  Rodney and Lisa’s daughter, Meghan Carlock, and her husband Matt, have had to learn to play man-to-man in covering their kids, but they get a lot of help from Jaxson’s and Evey’s proud grandparents.  Evey is named in honor of Lisa’s beloved mother.
Jennifer Brown and her husband, Benji, had an exciting summer.  They celebrated their 20th wedding anniversary in July.  Not one to be outdone, their daughter, Bayley, graduated from Clarksville High School in June, ranked third in her class.  She is now attending Indiana University Southeast working toward her Bachelor of Science in biology, and plans to ultimately relocate to pursue her dream of working in marine biology.  Jenn and Benji could not be prouder.
Rodney Scott  took a well-deserved sabbatical (at least from the staff's perspective, as it was much quieter around here) from July 27th to August 27th.  He spent the entire time bouncing along U.S. highways and byways on his motorcycle with a friend.  They traveled through 17 states, toured about ten national parks including Yellowstone, Rocky Mountain National Park, Bryce Canyon, Zion National Park and Arches National Park, and drove through more national forests than he even knew existed.  They stayed in small towns:  Valentine, Nebraska; Moran, Wyoming; Pocatello, Idaho; Kremmling, Colorado; Gunnison, Colorado; Clovis, New Mexico; Farmington, New Mexico; Green River, Utah; Cedar City, Utah; etc.  He rode beautiful mountain pass after beautiful mountain pass in the Tetons, the Rockies, the San Juan Mountains, the San Carlos Apache reservation and the "Smoky" Mountain in southern Utah which included a pass near Escalante that he plans on never seeing again on a motorcycle (if you know him very well, you know how much he hates heights -- especially unguarded heights).  They stayed in a charming inn with all the amenities, an old inn without air conditioning or any updates since the '70s that was owned and run by an older couple that belonged in a movie, a teepee (yeah, that's its own story altogether) and multiple chain hotels.
In late August, Scott Waters presented an Estate Planning and Probate Avoidance seminar to 26 financial clients of Chris Hass, Hass Financial, Louisville, Kentucky.  The attendees enjoyed a nice lunch at Harvest Moon Restaurant on Lexington Road.  Noting that an estate plan, like a stool, needs at least three legs to stand up, Scott focused on the three "legs" of estate planning: 1.  Advanced Directives for Healthcare; 2.  Powers of Attorney, durable and/or springing; and 3.  Testamentary Intent - Designations of Beneficiaries, Last Will and Testaments and Revocable Living Trusts.  The group heard some horror stories of unintended consequences of poor or no estate planning, and heard a number of reasons why using a “Living Trust" is preferable to keep things private, confidential, and out of court, away from probate ("proving a will valid").
John and Tricia Hofmann's daughter, Casey Hofmann, graduated from Hayfield Montessori School (where she was one of four fifth graders) and started public middle school this autumn (as part of a sixth-grade class of over 400).  Despite the culture shock, Casey has adjusted well, has earned straight A's and was a member of the sixth grade field hockey team.  Who knew watching a middle school field hockey tournament was every bit as stressful as watching an NCAA tournament game?!  Casey's sister, Madison Hofmann, a fourth grader at Hayfield, has fallen in love with figure skating and has begun her competitive skating career with a first-place finish in her inaugural competition.  John and Tricia are hopeful that the current rate of one broken tooth for every six months of lessons does not continue into the future!
Rodney and Lisa Scott's daughter, Emma Scott, has just started her rounds as a third-year medical student at the University of Kentucky.  Her younger sister, Katie Scott, spent her summer at Denison University again after earning a research grant to compare and critique the divergent economic theories of Hayek and Keynes.  That is a paper only professors and parents can appreciate.
Scott Tyler, Tricia Hofmann and Carli Clowers continue the firm's work with the Floyd County Teen Court program as mentors and attorney advisors, and Jackie Clowers has begun to assist in that process, as well.  Teen Court has been active in Floyd County since the summer of 2008, and our firm has been actively involved since its inception.
Client Outcomes
On October 23, 2015, the Indiana Court of Appeals unanimously upheld the defense verdict our client was awarded by a jury in a dump truck/pedestrian accident in July of 2014.  Bishop v. Parks, 2015 WL 6410189 (Ind. Ct. App. 2015)(unpublished disposition).  The case was tried by Scott Tyler and Eric Eberwine and was discussed in the “Featured Trial Report” of our website’s Spring 2015 newsletter.  Following the jury’s verdict apportioning her 80% fault for the accident which operated as a complete bar to her recovery, Bishop filed a motion to correct error.  The trial judge denied the motion to correct error, and Bishop appealed.  The sole issue on appeal was whether the trial court erred in admitting into evidence the narrative page of the Indiana Officer’s Standard Crash Report.  The narrative included statements provided to the investigating officer by witnesses, including  Bishop herself.  Because the officer described in his trial testimony each of the statements provided to him by witnesses, without objection by Bishop, the Court of Appeals concluded that the narrative report was cumulative of evidence already admitted and did not prejudice Bishop’s substantial rights.
Tricia Hofmann secured the voluntary dismissal of a client who was sued in her capacity as a supervisor within a government agency in Chilton v. Lambring, et. al.  This lawsuit stated a number of causes of action against the agency, various agency employees and supervisors, and law enforcement representatives, including negligence, abuse of process and civil rights violations.  After confirming that our client played no role in the activities alleged, and thus had no personal liability, we explained to Plaintiff’s counsel why she could not be found liable either in a vicarious or supervisory liability capacity.  Plaintiff’s counsel agreed to dismiss all claims against our client, with prejudice, prior to discovery.
John Hofmann procured the prompt dismissal of a Kentucky subrogation action in GEICO et al v. Burnworth.  Following a three-vehicle motor vehicle accident, GEICO made PIP, property damage and uninsured motorist (UM) payments on behalf of its insured driver and passenger.  It filed suit against the other two drivers - our client, who was insured, and a third motorist, who was not insured - seeking reimbursement.  We demanded dismissal of the suit for several reasons.  First, because GEICO had not taken the steps required by the Kentucky Motor Vehicle Reparations Act, it was not entitled to reimbursement of its PIP payments.  Second, GEICO could not prevail against our client with respect to reimbursement of UM benefits because our client was insured, and therefore was not the operator of an "uninsured motor vehicle."  The other driver, however, was uninsured, and therefore any UM benefits paid must have been determined to have been due as a result of the actions of the uninsured motorist.  Indeed, that was consistent with the police report, which attributed liability only to the uninsured motorist.  Because there was no evidence to show that our client was at fault for the accident, GEICO also agreed to dismiss its claims for reimbursement of the sum it paid for property damage.
Rodney Scott and Carli Clowers secured a court order excluding Plaintiff’s proposed causation evidence in Mitchell v. Monday.  Several weeks after she was in a motor vehicle accident, Plaintiff was diagnosed with a unique medical condition involving fluid on the brain.  Plaintiff sought to have her treating chiropractor testify that this condition was caused by the accident.  We filed a motion to preclude this proposed testimony, because the unusual condition can only be diagnosed through medical tests which a chiropractor is not licensed to order and not authorized to interpret.  In addition, treatment of such a condition is not within the field of chiropractic as defined by Indiana statute.  Dr. Daniel Eichenberger submitted an affidavit as a defense expert, opining that medical training would be required to diagnose Plaintiff’s condition, and that Plaintiff’s medical records also contained evidence of other possible causes of the condition which the chiropractor had failed to consider.  Thus, there was a problem both with the expert’s qualifications to render the opinion and with the science behind the opinion itself.  Although Plaintiff sought to correct the problem by retaining a second, more extensively trained, chiropractor, the court ruled that the causation opinions of both the treating chiropractor and the retained testimonial chiropractor were outside the scope of their expertise, and entered an order precluding them testifying that the medical condition was causally related to the motor vehicle accident.
Tricia Hofmann also obtained the voluntary dismissal, with prejudice, of an underinsured motorist claim in Gramlin v. State Farm.  After confirming that co-Defendant’s per-person liability limits equaled the per-person UIM limits – the comparison to be used in a case involving one tortfeasor and one injury claimant – we demanded dismissal.  After reading our explanation of why the recent cases of Masten v. AMCO, 953 N.E.2d 566 (Ind. Ct. App. 2011)(multiple tortfeasors) and Lakes v. Grange Mutual Casualty Company, 964 N.E.2d 796 (Ind. 2012)(multiple claimants) were inapplicable to the facts of our case, Plaintiff’s counsel agreed to dismiss all claims against State Farm, with no summary judgment motion required.
Featured Trial Report
Caption:      Brown v. Baker and Erie Insurance Exchange
Cause Number:    47C01-1205-CT-641
Judge:   Hon. Andrea McCord, Lawrence Circuit Court
Carrier: Progressive Insurance Companies
Damages Awarded:   Defense verdict
Incurred Medicals:   $43,217.24 billed ($16,341.20 paid)
Trial Attorney: Scott Tyler
Our client, Jill Baker, was traveling north on U.S. 37 North when she became distracted and failed to notice the traffic ahead of her had stopped. She rear-ended a vehicle which was pushed into a vehicle which in turn was pushed in to a vehicle operated by Plaintiff, Sandra Brown.
Ms. Brown claimed that the four-vehicle accident caused low back pain, aggravated a pre-existing cervical neck condition (including disc herniations at two levels), and that changes noted on a cervical MRI from three months post-accident were caused by the accident. She underwent approximately three years of pain management care which included epidural injections and radio frequency nerve ablation.
At trial, Plaintiffs chose not to call any of Ms. Brown’s treating physicians. Instead, they retained Dr. Eric Weidenbener, Bloomington Bone & Joint, to perform an IME and called him to testify live at trial.
Prior to trial, we retained Dr. John Chambers, Southern Indiana Orthopedics, to perform a peer review and IME. Dr. Chambers testified in a video deposition for trial that, based on Ms. Brown’s history, she did sustain an aggravation of a pre-existing chronic neck condition. However, he also testified that, on average, such patients return to baseline in approximately six to eight weeks, although he did concede that some patients take longer.
At trial, our client acknowledged responsibility for the collision, and we defended the case solely on medical causation.  We had photographs of Plaintiff’s vehicle which showed minor damage, although photographs of the vehicles behind hers showed very substantial damage. However, the turning point in the case occurred during Scott Tyler’s cross-examination of Plaintiffs’ expert, Dr. Weidenbener.
First, Dr. Weidenbener conceded that there is a spectrum of reliability when it comes to medical causation opinions. For example, where a vehicle driver immediately complains of left arm pain after having been t-boned on the driver’s side, has an x-ray within hours which shows a fracture, and has no pre-accident history of similar symptoms, it can be said with near absolute certainty that the accident caused the arm fracture. In contrast, the level of uncertainly decreases where the accident occurs at low speed, the injury is subjective in nature, there is delay in report of symptoms/treatment, and there is a pre-accident history of similar symptoms.
Moving to the facts of our case, Dr. Weidenbener conceded that he would have expected Ms. Brown to have experienced neck pain within a short time after the accident for it to have aggravated her pre-accident condition. In fact, that was the history provided to Dr. Weidenbener by Ms. Brown during the IME. However, despite having been provided all of Ms. Brown’s medical records and claiming to have reviewed them and prepared his own chronology, he was unaware that Ms. Brown did not complain of pain at the accident scene, did not seek ER treatment or treatment of any kind for twenty days after the accident, and then, only complained of low back pain. Ultimately, Dr. Weidenbener acknowledged that such facts would cause him to doubt whether the accident aggravated Ms. Brown’s neck condition.
At the close of Plaintiffs’ case, we made a strategic decision not to call our IME orthopedist, Dr. Chambers. Instead, we argued in closing that Plaintiffs failed to meet their burden of proof and that Dr. Weidenbener’s causation opinion was built on a foundation of sand. Plaintiffs’ counsel initially sought leave from the Judge to re-open Plaintiffs’ case to play the video deposition of Dr. Chambers. The Judge recessed for a short time to allow counsel an opportunity to provide authorities supporting the request to re-open. Following the recess, Plaintiffs’ counsel withdrew the request.
A jury of four females and two males returned a verdict in favor of our client and awarded no damages. 
Attorney John Hofmann provided valuable assistance in drafting thorough pre-trial motions in limine, and paralegal Tricia Woods assisted with pinning down witnesses and preparing critical demonstrative exhibits for use at trial.
Plaintiffs subsequently filed a Motion to Correct Error asserting that the Court erred in submitting to the jury a “Verdict for Defendant” verdict form. Plaintiffs claimed that since our client admitted liability for the accident, the jurors had to award damages as a matter of law. We opposed Plaintiffs’ Motion and cited a number of Indiana decisions upholding the right of the jury to find for the defense in cases where plaintiffs had failed to establish medical causation. The Court agreed with our position and denied Plaintiffs’ Motion to Correct Error. Plaintiffs did not pursue an appeal, and the verdict of the jury is now final.