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Spring 2015 newsletter

Firm Happenings
 
Several critical members of our firm family have milestone anniversaries upcoming in 2015. Teresa Summers, legal assistant to Rodney Scott, Rebecca Didat and Carli Clowers, will celebrate her ten-year anniversary in March. Teresa Lewis, paralegal for Scott Waters and Rick Bartlett, will have been with the firm ten years in June. We cannot believe it has been ten years already, and appreciate all the contributions they each have made and the team players they consistently prove themselves to be. Veteran office administrators Lisa Scott and Jennifer Brown are the only members of the staff who have been present longer than “the Teresas” (16 and 15 years, respectively). We are thankful for all the key members of our team who keep our schedules and work-lives moving and organized.
 
There are some milestones among the firm’s attorneys, as well. Eric Eberwine celebrated his fifth anniversary with the firm earlier this month, and John Hofmann’s five-year anniversary will occur in June. Eric practices primarily insurance defense, as well as some insurance coverage and fraud work, while John’s main practice areas are medical malpractice defense, fraud and insurance defense. We are fortunate to have Eric and John at the firm, with the talents they each bring to the table.  
 
The first of the year marked Tricia Hofmann’s fifteenth anniversary with the firm, as well. She is relieved everyone is willing to let her stick around and tolerates her sense of humor.
 
Scott Tyler, Eric Eberwine and Rebecca Didat are current members in the Sherman Minton American Inns of Court, the local chapter of a national association of attorneys.
 
Rodney Scott and Tricia Hofmann were invited to speak at the annual conference of the Defense Trial Counsel of Indiana in November of 2014 in French Lick, Indiana. Their presentation was entitled, “Why Lawyers Need Calculators – Calculating UM/UIM Exposure and Recent Developments in UM/UIM Law.”
 
Rodney and Lisa Scott decided that being grandparents once-over just was not enough. They are proud to announce that their daughter, Meghan Carlock, and her husband Matt are expecting their second bundle of joy this summer. The new family addition will be fortunate to have Jaxson Carlock as a big brother. Rodney and Lisa cannot wait to meet grandchild #2.
 
Scott Tyler,  Tricia Hofmann and Carli Clowers continue the firm’s work with the Floyd County Teen Court program as mentors and attorney advisors. Teen Court has been active in Floyd County since the summer of 2008, and our firm has been actively involved since its inception. 
 
Carli and Jackie Clowers recently bought their first house.  The two are quickly becoming expert painters, electricians and handy-people (Jackie, in particular), but are enjoying the joy and exhaustion of being first-time homeowners. 
 
Tricia Hofmann authored a case note which is being published in the upcoming issue of the Indiana Civil Litigation Review.  Entitled, "Justice v. American Family Mutual Insurance Co. and the Changing Landscape of UM/UIM Law in Indiana," the note discusses a 2014 Indiana Supreme Court opinion addressing whether UM/UIM carriers may reduce their exposure by payments made to or on behalf of workers compensation carriers and the enforceability of workers compensation policy exclusions and limitations.
 
Client Outcomes
 
Rodney Scott tried Miller v. Woertz in the Harrison Superior Court in August of 2014Both parties had been sitting across from each other at the same red light at a highly-traveled intersection in Corydon, Indiana late on a Wednesday night. Plaintiff was in the through lane. Defendant was in the left-turn lane. Plaintiff, by Defendant’s account and the account of an eyewitness, remained stopped at the intersection even after the light turned green. After waiting for her to take some action, Defendant concluded that she was either asleep or reading her phone. He proceeded to turn left, crossing her potential path of travel. Plaintiff and a couple of witnesses testified that Defendant made this maneuver in an overly-aggressive manner. In any event, his truck was hit just in front of the passenger’s side, rear wheel-well. Liability was the principal dispute. Plaintiff’s medical and wage specials of about $9,000.00 were not disputed. The jury deliberated the comparative fault issues and returned a defense verdict after concluding that Plaintiff bore 60% of the total fault for the accident. The Court also granted Defendant’s post-trial motion for $1,000.00 in attorneys’ fees and costs pursuant to Indiana’s Qualified Settlement Offer statute.
 
John Hofmann procured the dismissal of two professional licensure complaints on behalf of firm clients. In one case, our client was a certified nurse’s assistant at a nursing home who was alleged to have struck a patient. The other complaint was pursued by a psychologist who contended that she was improperly terminated by our client, her supervisor. Both complaints were administrative in nature and submitted to the appropriate governing boards for professionals in those fields. In the first case, John was able to persuade the Indiana Department of Health to withdraw its claims. In the second case, the licensure board agreed that there was no evidence of any wrongdoing on the part of our client. Both clients were pleased to have the matters against them successfully resolved.
 
Rodney Scott tried ANPAC v. Zins in the Martin Circuit Court in October of 2014The lawsuit arose out of two fires that occurred at a residence owned by Defendant’s parents. Defendant had accidentally caused a grease fire in the kitchen when he left food cooking on the stove while he went outside to smoke and/or play with the dog. After calling 911, he was overcome by smoke while trying to put out the fire and had to be rescued by the fire department. Approximately ten hours after the first fire started, a second fire was discovered that completely destroyed the residence and its contents. ANPAC insured the property and paid for its repairs. It filed suit against Defendant to recover approximately $290,000.00 as a result of the two fires on the theory that the second fire was the foreseeable rekindle of the first fire and was caused by the same original conduct. Defendant admitted to causing the first fire and the damage resulting from it but denied that he was the cause of the second fire and/or that the second fire was caused by the negligence of a non-party, the local volunteer fire department. Mark Boaz of Donan Engineering testified for ANPAC as its cause and origin expert. Greg Dietz, a former fire chief, testified as a fire fighting expert for Defendant. After deliberations, the jury returned a verdict against Defendant in the amount of $18,123.08 and further concluding that Plaintiff had failed to prove that Defendant was the cause of the second fire. In light of the jury’s verdicts no non-party fault analysis was necessary. The judgment has been satisfied. Mallery Waters, paralegal, provided lots of assistance to Rodney at trial.  
 
Tricia Hofmann opposed a motion for summary judgment filed by two co-defendants in Berry v. Shores et al, which motion was denied by the court in September of 2014. That case arises out of a vehicle-pedestrian accident in a shopping center parking lot. Our client was the vehicle operator. Plaintiffs sued our client, the property owner and the property manager. Co-Defendants sought to be on the basis that they did not owe a duty to protect Plaintiffs from motorists on the parking lot and, further, that even if they were negligent, such negligence was not the proximate cause of the Plaintiffs’ alleged injuries. The Court agreed with our argument that questions of fact precluded summary judgment and that the relative fault of all parties was a jury question, not one which could be determined as a matter of law.
 
John Hofmann received a favorable panel opinion in Austin v. Floyd Memorial Hospital, et. al.  The medical review panel unanimously concluded that our clients, Floyd Memorial Hospital and its physician, met the established standard of care in their treatment of the patient.  Our clients prevailed on both standard of care and causation. 
 
Rodney Scott argued his first case at the Indiana Supreme Court in November of 2014. After a favorable decision at the Court of Appeals in Earl v. State Farm Mutual Automobile Insurance Company, 3 N.E.3d 1009 (Ind. Ct. App. 2014), the Indiana Supreme Court granted transfer and scheduled oral arguments. Rodney received invaluable assistance from Amicus counsel Bryan Babb for the Indiana Insurance Institute and from Jim Strenski, Anna Mallon and Donald Kite of the Defense Trial Counsel of Indiana. Most importantly, he got great legal and brief support from his partner, Tricia Hofmann. 

 

 

Legal Updates

 

Medical Malpractice and Statute of Limitation Issues
By Carli Clowers
 
In David v. Kleckner, 9 N.E.3d 147 (Ind. 2014), the Indiana Supreme Court clarified its position on Indiana’s medical malpractice statute of limitations, and what events constitute the “trigger date” for the statute of limitations to run.  The Court further expounded on what constitutes a “reasonable time” within which to file an action if the “trigger date” falls within the two-year statute of limitations period, but the claimant cannot reasonably file the action before the expiration of the statute of limitations.
 
In Kleckner, the claimant went to her primary care physician of ten years for a routine pap smear.  The pap smear revealed abnormalities, and the radiologist recommended the primary care physician perform both an endocervical biopsy and an endometrial biopsy.  The claimant’s primary care physician performed only the endometrial biopsy, but not the endocervical biopsy, and informed the claimant everything was normal.  After experiencing various vaginal symptoms, the claimant sought treatment with a gynecologist five months later, who found the claimant had cervical cancer.  The claimant began treatment for her cervical cancer, but unfortunately, died from the cervical cancer in March, 2011.  In mid-February, 2011, the claimant’s husband became suspicious that the primary care physician did not discover the claimant’s cervical cancer, and obtained an attorney.  The attorney hired an expert to look at the claimant’s medical records in March, 2011, which revealed the primary care physician did not perform the recommended endocervical biopsy.  As a result, the claimant’s husband filed a complaint against the primary care physician in July, 2011––three months after the claimant’s death and over 28 months after the primary care physician’s alleged failure to perform the endocervical biopsy.
 
In Indiana, the medical malpractice statute of limitations is two years after the date of the alleged act, omission, or neglect.  I.C. 34-18-7-1(b).  Accordingly, the primary care physician filed a motion for summary judgment based on the passage of the statute of limitations.  The trial court granted summary judgment to the primary care physician, which the Court of Appeals affirmed.  The estate for the claimant appealed.
 
On appeal, the Indiana Supreme Court rationalized that although the claimant learned of the potential cervical cancer in February, 2009, her primary care physician’s assurances that she was “fine” extended the period for reasonable discovery of the alleged malpractice.  The Court further reasoned that, depending on the case, the “trigger date,” may not just be when the claimant learns of the underlying illness or medical condition, but also might be when the claimant knew, or in the exercise of reasonable diligence should have known, of the alleged malpractice.  The Court held that if the date the claimant knew or should have known of the alleged malpractice falls within the two-year statute of limitations (within two years after the occurrence of the alleged malpractice), then the statute of limitations bars the claim, “unless it is not reasonably possible for the claimant to present the claim in the remaining time, in which case the claimant must do so within a reasonable time after the discovery or trigger date.  If such date is more than two years after the occurrence of the malpractice, the claimant has two years within which to commence the action.”
 
The Court reasoned that in the present case, the alleged malpractice occurred on February 27, 2009, when the physician did not perform the endocervical biopsy.  Due to the physician’s alleged assurances that the claimant did not have cervical cancer, the Court held that there was an issue of fact as to when the claimant knew, or in the exercise of reasonable diligence should have known, of the alleged malpractice.  The Court explained that the claimant’s husband did not become suspicious of the malpractice until February, 2011, but filed a complaint approximately three months later.  Accordingly, the Court held that there is a reasonable inference that  February, 2011 is the first time that the claimants, in the exercise of reasonable diligence, should have discovered the alleged malpractice.  February, 2011 would have been within the two-year statute of limitations, so the claimants had to file their complaint “within a reasonable time” after expiration of the two-year statute of limitations.  The Court held there was a question of fact as to when the trigger date was, and also whether the claimant filed his complaint “within a reasonable time” after the trigger date.  Accordingly, the Court reversed the trial court’s award of summary judgment.
  

Featured Trial Report

 

Caption:     Virginia Bishop v. Dennis Parks d/b/a Parks & Son Trucking

 

Cause Number:    39C01-1012-CT-702
Judge:   Hon. Darrell Auxier, Jefferson Circuit Court
Carrier:   Progressive Insurance Companies
Damages Awarded:   Defense verdict on liability
Incurred Medicals:   $342,139
Attorneys:   Scott Tyler and Eric Eberwine
Synopsis: 
  
The lawsuit arose from an accident on April 16, 2010 on the site of a construction project for the widening of State Road 62.
 
Our client, Dennis Parks, arrived at the construction site with his tri-axle dump truck to be loaded with dirt. While he was in the process of backing, his dump truck ran over Virginia Bishop, an employee of Dave O’Mara Contractor, Inc. Bishop was airlifted to University of Louisville Hospital for the treatment of numerous orthopedic injuries including a crushed pelvis, right femur fracture, left S1 fracture, right L5 transverse process fracture, and L7 and 9 rib fractures. Ms. Bishop underwent multiple surgeries, but only made a partial recovery. The femur fracture left her with a shorter right leg which required a shoe lift. She also lost much of her right gluteal muscle, which resulted in her having to sit on her sciatic nerve. Her orthopedic surgeon testified that she was totally disabled and would likely suffer from chronic pain the remainder of her life. At trial, she had to walk with the assistance of a quad cane and was only able to attend a fraction of the proceedings due to her inability to sit for more than hour or so at a time. Bishop’s past medical expenses totaled over $342,000, and her future medical expenses, based upon her age of fifty-seven years, ranged from $765,906 to $823,471. 
 
At trial, Ms. Bishop’s counsel requested that the jury award her the sum of $5.6 million dollars. The case was tried over four days, and Plaintiff’s liability expert was accident reconstructionist Henry “Sonny” Cease. He testified that our client should have located Virginia Bishop on the construction site before he started to back his dump truck. Wendell Rust, an OSHA safety expert, testified for the defense that our client acted within the standard of care required by OSHA and, in contrast, Virginia Bishop acted contrary to her OSHA safety training administered by her employer in standing behind our client’s dump truck.
 
We were advised by several of the jurors after the trial that most of the time spent in deliberations was deciding whether our client should be apportioned any fault at all for the accident.  Virginia Bishop was represented by Roger Pardieck and Nicholas Eddy of the Pardieck Law Firm.
 
Post-Verdict:
 
Plaintiff filed a motion to correct errors, arguing that it was reversible error for the trial court to have allowed the narrative portion of the police report into evidence.  We filed a response, objecting to the motion, and the motion was denied.  Subsequently, Plaintiff filed a notice of appeal.  The court reporter is in the process of preparing the transcript, and the appellate issues have not yet been briefed.
 
 
 

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