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Spring 2013 newsletter

Firm Happenings

 

The firm is pleased to announce the hiring of Mallery Waters,the daughter of Scott and Anne Waters, who isproviding invaluable paralegal services for our litigation and insurance clients. In addition to having her Bachelor of Arts degree from Cedarville University, Mallery also studied at Oxford University in England and at Au Sable Institute of Environmental Studies. Her subsequent time spent as a medical assistant and certified pharmacy technician have really prepared her for the detailed review of medical records required by the job. 

 

The firm has also just hired Carli Clowers, who will be clerking for us while studying for the July Indiana bar exam. Carli is a May, 2013, graduate of the University of Louisville Brandeis School of Law, where she graduated magna cum laude and was Articles Editor for the Law Review. We are confident that she will be working with you soon as an Indiana attorney.
Also new to the firm is Teresa “Tee” Cooley, who joined us in the autumn as a legal assistant. Tee is a native of Perry County and is working primarily with Tricia Hofmann and Gabrielle Paschall. We are pleased to have her on our team. 
Rodney and Lisa Scott just attended Emma Scott’s graduation ceremony at the University of Kentucky. She graduated summa cum laude with a Bachelor of Arts in Hispanic Studies and a Bachelor of Science in Biology. She will start medical school at UK in the fall. Rodney and Lisa are happy to have someone who might be able to handle all their complaints as they age (one of them more gracefully than the other).   
Gabrielle Paschall and Justin Trott are pleased to announce the impending birth of their second child, who is expected this autumn.  The new baby will join Gabrielle and Justin’s daughter, Isla Trott, who will undoubtedly enjoy being a big sister.
Rodney and Lisa Scott are proud to report that Katie Scott recently completed the Professional Training Program at Dell’Arte International School of Physical Theatre. She will be attending Denison University this upcoming academic year.
Teresa Summers’ daughter, Olivia Pacciano, has raised $250.00 for the Clark County Relay for Life through her non-profit business, Bracelets for Bravery. Olivia and a friend created Bracelets for Bravery in 2012, and she is tirelessly dedicated to the cause of fighting back against cancer. Olivia’s bracelets range from $3 to $6 each, with all profits going to Relay for Life. You can learn more about this project at facebook.com/Bracelets for Bravery or at braceletsforbravery.weebly.com.
 
Scott Tyler and Tricia Hofmann were recently invited to participate in Westfield Insurance Companies’ Regional Roundtable held in Louisville, Kentucky, in May.  Westfield has been a client for over 15 years.
Rodney and Lisa Scott are thrilled that Meghan Fitzgerald Carlock has found a great career at Floyd Memorial Medical Group – Floyds Knobs as a medical assistant. What a blessing for her and her young family.
Tricia Hofmann assisted No Kill Louisville by packing dog and cat food to supply No Kill Louisville’s pet food bank. The bank provides packages of dry food to pet owners in Louisville, Kentucky twice monthly upon proof of financial hardship.   Tricia was amazed at the number of dedicated pet owners who appeared, some of whom waited in line for hours to obtain healthy meals for their four-legged family members. 
Rodney and Lisa Scott helped pack 200,000 meals for Haiti as part of Northside Christian Church’s “serve day.” 1700 or so fellow church members joined in and provided assistance to individuals and groups in New Albany and for several international mission efforts. It was good to be a small part of a big effort. 
Scott Tyler, Tricia Hofmann and Gabrielle Paschall continue to work with the Floyd County Teen Court program as mentors and attorney advisors. This summer will mark Teen Court’s five-year anniversary, as well as our firm’s five-year involvement with the program.   
Chad and Renee Smith and John and Tricia Hofmann have survived their first year of involvement with the Champion Gymnastics booster club. Their older daughters, Samantha Smith and Casey Hofmann, competed for Champion throughout the 2012-2013 meet season, traveling to Greenwood, Indiana and Lexington, Kentucky for competitions. Samantha and Casey are excited for their second competitive season and the opportunity to continue shooting for personal bests. Samantha had her best meet at the Kentucky State competition, placing third in the all-around for her age division. Their parents are all contentedly resigned to another year of travel meets and booster club responsibilities. John and Tricia’s younger daughter, Madison Hofmann, continues pre-competitive gymnastics, while Chad and Renee’s younger daughter, Genevieve Smith, is contemplating a return to gymnastics after taking some time off to explore soccer.
 
Client Outcomes
Eric Eberwine tried Hobbs v. Everett and Younger in the Clark Circuit Court No. 1 in April 2013. This case involved two consecutive accidents on August 27, 2009 at the intersection of Crone Road and McClellan Road near Sellersburg, Indiana. At approximately 10:40 p.m., Plaintiff and her boyfriend were driving on Crone Road, a narrow two-lane country road, and planned to make a left turn on McClellan.  As they approached the intersection, co-Defendant made a right-hand turn from McClellan onto Crone.  Co-Defendant was intoxicated, and when executing the turn, his vehicle struck Plaintiff’s pick-up truck, causing minor damage. Co-Defendant left the scene, and Plaintiff and her boyfriend exited the vehicle to inspect the damage, leaving their vehicle in the roadway. When her boyfriend re-entered the vehicle to call the Sheriff’s department, Plaintiff remained standing in the unlit roadway and watched him make the call. The headlights on the truck were on, and neither Plaintiff nor her boyfriend watched for oncoming traffic. Several minutes after the first accident, our client approached on Crone from the opposite direction. While he saw the headlights on the truck, he could not see Plaintiff standing in the roadway in the dark behind those headlights. As he got closer to Plaintiff’s vehicle, he realized it was partially on or over the center line, and swerved slightly to the right to avoid striking it. However, his side mirror struck Plaintiff on the shoulder as he passed by. Our client returned to the scene to offer aid to Plaintiff. Co-Defendant subsequently returned to the scene and was arrested for DUI. Plaintiff contended that both Defendants were negligent in causing Plaintiff’s injuries and damages. Both Defendants denied liability. At trial, Plaintiff declined to introduce evidence of any medical records or bills, and asked the jury to award $50,000 in compensatory damages against both Defendants and $50,000 in punitive damages against co-Defendant only. The jury deliberated fault and damages and returned a verdicts for both Defendants. Rodney Scott’s cross-examination of Plaintiff’s treating physician during his video deposition proved to be invaluable at trial and significantly undermined Plaintiff’s injury claim.
Scott Tyler and Chad Smith recently tried the case of Foster v. Floyd Physicians Corporation in the Floyd County, Indiana, Circuit Court.  Ms. Foster, age 67, sustained a spiral fracture of her humerus when she tripped and fell on what she claimed waselevated concrete on a walkway near the entrance of a building owned by Floyd Physicians Corporation.  Her injury required a complicated surgery involving the need for a cadaver bone and substantial hardware.  She incurred medical expenses of $55,000 and her counsel requested that the jury award her damages of $165,000. Scott and Chad defended Floyd Physicians Corporation and maintained that Ms. Foster could not establish the elements of landowner liability to an invitee.  After three and half days of trial, the jury agreed and returned a verdict in favor of Floyd Physicians Corporation.
Rodney Scott tried Sage v. Mathis and NAPA in the Jackson Circuit Court in May, 2013. While there was some evidence that Plaintiff was speeding at the time of the accident, Defendant had made a blind left turn in front of Plaintiff. Rodney’s client insisted that he made the turn because he was waved across by a driver stopped at the intersection. Unfortunately, there were two lanes traveling the opposite direction and the stopped driver was only in one of those lanes. The jury assessed 100% fault to Defendant. It then assessed damages at $60,000.00. Plaintiff was a 17 year old at the time of the accident. He had incurred almost $19,000.00 in medical billings and claimed that the injury caused him to miss his senior season as a varsity football player. Dr. Anthony Alexander, a pain management specialist, testified on Plaintiff’s behalf and claimed Plaintiff still had documented muscle spasms in his lower back some 5 months after the accident. Plaintiff’s mother and grandmother also testified on his behalf. The nature and extent of Plaintiff’s injuries were subject to significant dispute. This is one of four larger-than-anticipated Plaintiff’s verdicts out of this Court that we know of in the last six months. 
Gabrielle Paschall recently represented the defendant in the case of Dennis v. Windell & Enterprise Rental, which was tried in Clark County, Indiana, Circuit Court 3.  Plaintiff sought to recover for property damage which occurred when an Enterprise rental car struck her car and pushed it into Mr. Windell’s vehicle.  The defense argued that Mr. Windell had done nothing to proximately cause the collision.  After an evidentiary hearing on the matter, the Court was in agreement and returned a defense verdict. 
Rodney Scott and Tricia Hofmann won partial summary judgment and defeated the opposing party’s summary judgment motion in Auto-Owners Insurance Company v. Premier Fleetcare, in the Clark Circuit Court number 4. We originally represented Premier Fleetcare and its principals in a business dispute. When they were subsequently sued by Auto-Owners in a coverage action to obtain a judicial determination of the insurer’s duties to defend and indemnify them with respect to the business dispute, we represented them in that case, as well. In its summary judgment motion, Auto-Owners contended the suit against our clients did not fall within the scope of its insurance policy and that, accordingly, there was no duty to defend or indemnify our clients. In our cross-motion for partial summary judgment, we asked the court to declare that a duty to defend was owed, as the allegations pleaded in the underlying suit qualified as “personal injury” as defined by the policy. The court agreed with our argument, holding that the claims against our clients were sufficient to trigger a duty to defend. Tricia subsequently defended Auto-Owners’ petition for leave to pursue an interlocutory appeal of the summary judgment rulings, which the trial court denied.
Scott Tyler and Eric Eberwine secured a summary judgment for Innovative Roofing, Inc. in Board of Commissioners of the County of Jefferson v. Teton Corp., et. al. This case involved a devastating fire to a historic courthouse which occurred during the course of building renovations. The Plaintiff filed a subrogation Complaint seeking to recover its multi-million-dollar repair costs from the general contractor and two subcontractors. The AIA contract documents applicable to the project provided that the parties would mutually waive their subrogation rights against each other and also required the Plaintiff to procure builder’s risk insurance. Scott and Eric asked the trial court to find these provisions applicable and enforceable, and to dismiss the lawsuit. The trial court was persuaded by their argument and entered summary judgment in favor of the contractors. After its Motion to Correct Errors was denied, the Plaintiff filed an appeal, which is currently pending.
John Hofmann and Rodney Scott successfully defended Floyd Memorial Hospital in a medical malpractice case, Ballentine v. FMH, et. al.. Ms. Ballentine pursued claims before a medical review panel against both the hospital and a physician. However, John and Rodney were able to persuade her attorney to withdraw her claims against our client prior to the completion of the panel process, before the panel reached a decision in the matter.
Rebecca Didat and Gabrielle Paschall successfully secured summary judgment on behalf of an insured who had been sued by and on behalf of the half-sister of an adult-decedent. The issue, which had not been decided in Indiana, was whether she could recover for loss of love and companionship under Indiana’s Adult Wrongful Death Statute (“AWDS”). Plaintiff’s counsel argued that the AWDS permitted her to do so as a nondependent child and that interpretation was reinforced by Indiana’s intestate succession laws. The Jefferson County Circuit Court was persuaded by Rebecca’s and Gabrielle’s arguments and concluded that the half-sister was not entitled to any recovery under the AWDS. 
Eric Eberwine presented oral arguments before a panel of the Seventh Circuit of the United States Court of Appeals in Atkinson Candy Corp. v. Kenray Associates, Inc. et. al in January of 2013. Plaintiffs entered into an Agreed Judgment back in 2004. At the same time, they also signed a Covenant Not to Execute, which was drafted with the aid of their counsel. Plaintiffs have since argued that they were fraudulently induced into signing the Covenant, and asked the Court to set the Covenant aside and allow them to pursue the judgment directly against our client, the Defendant. The United States District Court judge held that Plaintiffs failed to establish that they were fraudulently induced to sign the Covenant Not to Execute, and Plaintiffs appealed. The parties are currently awaiting a decision from the Seventh Circuit.
Rodney Scott tried an underinsured motorists case, Armstrong v. Indiana Insurance, in the Harrison Circuit Court in January 2013, actually representing the Plaintiffs. The case proceeded to trial as Indiana Insurance refused to make any settlement offers. While liability was ultimately conceded and not at issue at trial, Indiana Insurance disputed the nature and extent of Plaintiff’s injuries in light of the inconsistent treatment and allegedly subjective complaints. Plaintiff, however, had employment gaps that explained his treatment history and supportive witnesses from his Church family. The jury awarded $60,000.00 to the Armstrongs. While it was Rodney’s first experience trying a case on behalf of a personal injury plaintiff, it was helpful and educational to address the jury from this perspective. Rodney got significant and important assistance from senior paralegal Tricia Woods.
Gabrielle Paschall recently defended the case of McIntyre v. Spencer and Progressive in Harrison County, Indiana, Superior Court.  The litigation arose from an accident which occurred at the intersection of Maple Street and High Street in Corydon, Indiana.  Plaintiff claimed that as he approached Defendant, she was stopped at the intersection with her right turn signal illuminated, so he proceeded around her vehicle to the left.  He claimed that she decided to turn left after he had begun his maneuver around her, failed to notice him, and negligently turned into his vehicle.  Plaintiff proffered testimony from the investigating officer, who testified that Plaintiff had attempted a legal maneuver.  However, Gabrielle was able to refute the officer’s testimony by citing an Indiana statute which prohibits passing within one hundred feet of an intersection.  The Court determined that it was, in fact, not a legal maneuver and returned a defense verdict on liability. 
Scott Tyler was retained to represent one of the Defendants involved in the wrongful death and personal injury litigation arising out of the widely publicized Sugarland concert stage collapse which occurred at the Indiana State Fair on August 13, 2011.  The collapse resulted in seven deaths and many serious injuries.  There are over sixty plaintiffs and in excess of twenty defendants.  Due to the complexity of the case, which has involved over 60 depositions to date, Rebecca Didat has been sharing defense responsibilities with Scott.
 
Legal Updates
 
The Growing Role of Social Media in Litigation Practice
By Eric Eberwine
 
Social media evidence is relevant to nearly every case, and it has the potential to significantly impact outcomes at trial or mediation. In the context of litigation, social media sites can contain relevant information concerning a person’s employment and daily activities. In addition to first party admissions, social media sites can also include photos and videos which help substantiate or undermine a party’s claims or defenses. Information can be found through established social media sites such as Facebook (the site we encounter most frequently), Twitter, YouTube and Myspace, as well as new or increasingly popular sites like LinkedIn, Google+ and Instagram. 
 
Not surprisingly, there is a growing interest in obtaining—and protecting—such data during the litigation process. It is becoming increasingly common to see attorneys confront the opposing party – in deposition, at mediation or even at trial – with statements made and/or photos or videos posted on Facebook or other social media sites. This evidence can be devastating to a party’s claim and his or her credibility.
 
The SCA and Public-Versus-Private Information Distinction
 
The federal Stored Communications Act (“SCA”) of the Electronic Communication Privacy Act covers social media content, ranging from private YouTube videos, to wall posts and private messages on Facebook, as well as comments on restricted-access social media sides and electronic bulletin boards. In a nutshell, the SCA contains provisions which determine whether and how a service provider (i.e. Facebook) can divulge these private communications. The SCA protections apply only to private communications not readily accessible to the general public. 18 U.S.C. § 2511(2)(g). Thus, if a user’s privacy setting is such that the general public can view these comments, then the SCA does not apply, and the user is not entitled to the privacy protections of this federal law. Snow v. DirecTV, Inc., 450 F.3d 1314 (11th Cir. 2006). While there are some exceptions which allow service providers to disclose private communications, there is no exception for civil subpoenas. Consequently, it is not possible to simply subpoena private social media content directly from the providers. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010); In re: Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008). Public content, by contrast, can be the subject of a subpoena.
 
The most obvious way to obtain information protected by the SCA is to subpoena or otherwise obtain it directly from the user or subscriber. Such requests do not implicate the SCA. In cases where it is necessary to obtain protected information directly from the service provider, that typically can only be accomplished with the consent of the user. The SCA expressly permits service providers to disclose private communications once it receives the user’s consent to do so. 18 U.S.C. § 2702(b)(3). If voluntary consent is not provided, the requesting party may have to seek a court order compelling the user to provide the necessary consent. See, e.g., Defendant Wal-Mart Stores, Inc.’s Motion to Compel Production of Social Networking Sites, Case No. 1:06-CV-01958, 2009 WL 3061763 (D. Colo. 2009)(ordering plaintiffs to execute consents to allow the social networking sites they frequent to produce information requested in Wal-Mart’s subpoenas).
 
Facebook-Specific Application to Obtain Private Data
 
Historically, we have found Facebook to yield the greatest quantity of helpful information. One can look up a party on Facebook, but the amount of available information will depend on the party’s security settings. If a profile is non-restricted, all information is readily available to the public and can be obtained without implicating the SCA or requiring a consent. Of course, it is not permissible to “friend” a party (or a party’s friends) for the purpose of mining information. 
 
As private information cannot be subpoenaed, attorneys have typically drafted consents to be signed by the user, which were then forwarded to social media sites, including Facebook, to access private information. At some point, Facebook developed its own authorization, usable in all 50 states, to ensure continuity in the information requested and to be provided. However, presumably due to the crush of requests for records and Facebook information, Facebook now no longer accepts its own authorizations. Instead, it has created a new feature, entitled “Download Your Data,” through which a user can obtain a print-out of his or her entire Facebook history. That print-out can then be provided for litigation purposes. As this is a new feature, little has developed yet in the courts regarding the scope and sufficiency of the content provided via this feature; the resolution of disputes between the parties with respect to the availability or and right to this information; and its authentication and ultimate admissibility at trial. As technology itself develops, so, too, does case law regarding its use in courtrooms.
 
Evidentiary Questions
 
A number of jurisdictions, including Indiana and Kentucky, have already held that statements, photographs and videos obtained through social media are relevant evidence. See Clark v. State, 915 N.E.2d 126 (Ind. 2009)(holding that MySpace postings were admissible despite objection under Evid. R. 404(B)); Lalonde v. Lalonde, 2011 WL 832465 (Ky. Ct. App. 2011)(unpublished decision holding photographs published on Facebook were admissible). Wall posts, status updates and captions to photos and videos, if made by a party to a lawsuit, are statements made by a party opponent, and are not hearsay. They can also qualify as statements against interest. Photographs and videos, once authenticated as containing images of a litigant, can be used to impeach a party’s sworn testimony, for instance, about activities in which the party claims he or she can no longer engage.
 
At least one recent federal case suggested that a request for Facebook data should be limited with regard to time and scope.  See Held v. Ferrellgas, Inc., 2011 WL 3896513 (D. Kansas).  Certainly, for a party with extensive activity, a request for all content can necessitate the production of an extensive quantity of information. In such a case, it would not be surprising to see a judge limit a request to a particular time frame or certain categories of information, such as photographs and videos or status updates. In cases where opposing counsel’s requests for social media data from our clients are overly broad, we can seek to protect non-relevant data by use of protective orders or other motion practice. We anticipate state courts will soon be forced to confront a host of issues related to the scope of social media discovery.    
 
Spoliation of Evidence
 
Spoliation of evidence occurs where a party with exclusive control to evidence relevant to a claim or defense intentionally destroys it, or allows it to disappear or become altered or damaged. When one party is found to have knowingly allowed evidence to become spoliated, the opposing party is entitled to a variety of forms of relief. While spoliation most commonly involves the loss or destruction of tangible, physical evidence, it also applies to the intentional failure to preserve electronic evidence. Attempts to conceal or delete relevant social media data can result in spoliation claims and significant sanctions. 
 
In Lester v. Allied Concrete Co., a 2011 wrongful death auto accident case in Virginia, the plaintiff’s attorney instructed his client to “clean up” his Facebook account because he did not want “blow ups of other pics at trial.” The client subsequently deleted sixteen photos from the account and attempted to disable it. Plaintiff’s counsel also attempted to conceal the Facebook information from the defendants during discovery. The case was tried to a jury, which ultimately returned a combined verdict of $10,577,000.00 in favor of the Plaintiffs. After trial, the defendants requested, and obtained, sanctions against plaintiff’s counsel for $522,000.00 and the plaintiff for $180,000.00 related to the spoliation of Facebook evidence. The Virginia court reasoned that Facebook postings are no different from other traditional electronically stored information, and there was a duty to refrain from eliminating or destroying the information. We expect to see more cases addressing this type of issue arise over the next few years as social network sites proliferate and more litigants become regular users of these sites.
 
“Friend” Networks
 
In a somewhat unusual situation, it was ultimately discovered that two jurors who served in a Kentucky murder trial were “friends” with the mother of the murder victim. Sluss v. Com., 381 S.W.3d 215 (Ky. 2012). The jury ultimately convicted the defendant. Not surprisingly, once he learned of this situation, the criminal defendant moved for a new trial, alleging that the jurors were biased.

The Kentucky Supreme Court ultimately affirmed the guilty verdict, noting that social media friendships cover the gamut from close personal friends to passing acquaintances. It explained that social media “
 
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