The Indiana Court of Appeals issued an opinion in the case of Lange v. Sisters of St. Francis (pdf). A fine firm from the City of Lafayette won on appeal, so I can’t be too critical, but at the same time, I feel a little bad for the losing plaintiff — at least if the facts alleged by the plaintiff are accurate.

The plaintiff filed a complaint having to do with, as she characterized things, premises liability and medical malpractice at a hospital. The hospital moved to dismiss based on failure to comply with the medical malpractice act which requires you to jump through some procedural hoops before your claim can go forward. The plaintiff responded that, at least, her premises liability claim should go forward. The trial court held a hearing on March 26, 2008. As of May 5, 2008, the court had not issued its ruling. Counsel for the Plaintiff called the clerk and was notified that the court hadn’t yet ruled. The court did rule on May 7, 2008, two days later – granting the defendant’s motion to dismiss. The court’s docket said that the orders went out to parties. An aggrieved party has 30 days from a court’s order to file a notice of appeal. (You can see where this is going.)

Counsel for the Plaintiff says that it did not get a copy of the order until June 17, 2008 when Plaintiff’s lawyer called the court again. And, in fact, Plaintiff introduced evidence suggesting that the Defendant also did not get a copy of the notice until well after (approximately 30 days) the court issued the order. The gist of this sad tale is that Plaintiff did not get a chance to appeal the court’s order because, according to the Plaintiff, the court did not send out a copy of the order.

The Court of Appeals, essentially, said “tough luck” because the court’s docket says the order was mailed, that means it was mailed. And, in any case, Plaintiff waited 43 days between calls to the Clerk checking on the status. Montgomery County’s docket is available online through a private company called Doxpop. So, if you have a case pending there and you don’t want to purchase Doxpop’s product (no disparaging them — they are a fine company, but a party might not feel like buying from them as a condition of conducting business before that court), then your primary option, it would seem, is to call the clerk repeatedly. I’m sure court staffs and Clerk’s offices would be delighted to have a little extra work.

In Tippecanoe County, we have public, online access to the court docket, so this sort of thing isn’t ordinarily an issue for me unless I have something pending out of county. But, the fact is that sometimes it takes courts a little while to get around to issuing an order. And, sometimes, a piece of paper gets misdirected on its way out of the court. (Some courts, it must be said, seem to misdirect more items than others.) In this case, the two unfortunate events came together with pretty severe consequences (assuming, for the sake of argument, that the Plaintiff had a shot at getting the trial court’s order overturned on appeal.)

My personal inclination is not to be a pest. Sometimes a judge doesn’t get around to issuing an order because he or she has a hundred other things on his or her desk. And, most court offices have more work than they have staff to handle. So, if it’s not prejudicing my client, I’d prefer to let the court get around to issuing its orders in due course; calling the court from time to time to check in if its taking an unusual amount of time. (And, you don’t want to be the party pushing for an order to get issued for fear that this might incline a judge to look at your position unfavorably. I don’t have any evidence that this ever happens, but the fear is there.)

Bottom line – the Court of Appeals strictly enforces its time lines and you have to do everything in your power to make sure you don’t blow a deadline.

It looks like Eric D. Smith, inmate at the New Castle Correctional Facility, had a big day in the courts today. The Court of Appeals issued three separate opinions adverse to Mr. Smith.

#1- Appeal of summary judgment against him in 33D01-0808-PL-16 where he sued a mailroom employee and a grievance review officer at the prison in conjunction with the denial of his request to have various books on the subject of anarchy.

#2 – Appeal of dismissal of his complaint in 48D01-0709-PL-1315 where he sued the Department of Correction complaining of their use of tear gas in the segregation unit where other inmates had started a fire. Some of that tear gas caused him pain and suffering. I like that the Court of Appeals cited rationales in opinions from a couple of his previous cases to dismiss his complaint in this one. Smith v. Indiana Department of Correction, 883 N.E.2d 802 (Ind. 2008); and Smith v. Carrasco, 850 N.E.2d 868 (Ind Ct. App. 2006) were both prior cases of Mr. Smith’s. However, I do have a tenuous connection to this opinion — the court cited the case of Severson v. Bd. of Trustees of Purdue University, 777 N.E.2d 1181 (Ind. Ct. App. 2002) where I was an attorney for Tippecanoe County, another defendant in that case. But, I think it’s fair to say that Mr. Smith has made more case law than I have.

#3 – Appeal of dismissal of complaint in 33D01-0809-PL-20 against the Superintendent of the Department of Correction involving his alleged denial of access to an adequate law library and to a legal assistant to pursue his considerable litigation efforts.

It probably isn’t a coincidence that the Court of Appeals issued all three of these opinions on the same day. I have to guess that there is at least a subtext expressing some unhappiness with the Supreme Court striking down the “three strikes” statute adopted by the General Assembly. That statute basically closed the door on frivolous inmate-litigants except in cases involving immediate danger of serious bodily injury. The Supreme Court struck down this effort to limit frivolous litigation in a case filed by none other than Mr. Smith in Smith v. Indiana Department of Correction, 883 N.E.2d 802 (Ind. 2008). (See my prior discussion here.)

The Supreme Court has issued its opinion in Stanley v. Walker (pdf) which is sure to loom large in personal injury litigation. The case had to do with what kind of evidence can be given to a jury for purposes of determining the reasonable cost of a plaintiff’s medical treatment.

Currently, it’s common for a plaintiff’s medical bills to be used as the cost of the treatment. This isn’t especially fair because almost nobody pays sticker price for medical services. So, it doesn’t really bear much relationship to the “reasonable cost” for those services. However, defendants who would like to challenge the sticker price were stuck. The rules of evidence state flat out that a billing statement constitutes prima facie evidence that the listed price is reasonable.

There is another statutory rule of evidence known as the collateral source statute that says defendants can’t introduce evidence of, among other things, benefits from insurance paid for by the plaintiff. This makes some sense: why should the guy who hit me get a benefit from the fact that I planned ahead and paid my insurance premiums? But, this collateral source doctrine was used to prohibit introduction of evidence that a medical provider accepted not only payment from an insurance company, but also “wrote off” a chunk of the bill based on its agreement with the insurer. (For it to be a “write off,” one has to start from the premise that the starting price was something other than a fiction in the first place. A dubious proposition.)

So, what the case boils down to, as I read it, is whether the “write off” is properly characterized as a benefit purchased by the plaintiff/insured or as simply a more accurate reflection of what the “reasonable cost” of the service was in the first place. The Supreme Court, in a 3-2 decision, decided that the write-offs could be introduced as evidence of the reasonable value of the medical services — if the hospital agreed to accept the reduced amount as payment in full (regardless of whether the paid portion originated as insurance money or elsewhere), then that is evidence a jury should be able to consider along side the sticker price. The jury can then make its own decision about what the reasonable value is.

This is a bigger deal than it appears on its face because the amount of medical expenses incurred are often used as an aid to calculating the proper measure of general damages (pain and suffering, etc.)

The Plaintiff’s bar can’t be too happy about this. For some time now, they have been able to talk to the jury (or an insurance adjuster) about the sticker price, get a verdict or settlement based on that, turn around and pay back insurers for the lesser amount they actually paid, and then (along with their clients, of course) pocket the difference.

For this particular case, the court held that the trial court should simply reduce the judgment by the amount of the medical provider’s write off. Justice Dickson dissents with a number of cogent points, but then suggests that if the court is going down this path, trial courts should reduce judgments post-verdict. But, I’m fairly sure that’s not what the majority has required for future cases — juries, not just judges, can consider the reduction. This is important because it has an impact on the amount of general damages, so there is a multiplier effect involved.

As I said, Justice Dickson raised a number of valid concerns — not least of which is the notion that the General Assembly should be the one to fix this mess. Perhaps it should revisit the issue. But, until it does, it looks like the Supreme Court has done what it could to wrestle with the fundamental problem that health care prices are opaque and, all too frequently, the sticker price on a medical bill is essentially fictional.

The Court of Appeals has determined that it is permissible for a jury to conclude that a store is responsible to a customer for the criminal acts of a random third party who attacked the customer in the store parking lot.

I can’t say the Court of Appeals misapplied the law as stated for it by the Indiana Supreme Court, so maybe they are just doing their job on this one, but as a matter of policy, I think this decision stretches the line too far.

Because of procedural snafus, only the evidence designated by the store was permitted to be considered by the court. And, even with that evidence, in effect, the Court of Appeals is saying that a store’s duty to a patron is implicated by the mere fact that the patron was assaulted in the store’s parking lot, even if the person committing the assault is a complete stranger to and unconnected in any way with the store’s business. After that, it’s for the jury to decide whether the store was negligent in complying with its duty to protect its patrons from the criminal acts of third parties.

The store designated evidence to the effect that it had a pretty safe parking lot. The patron did not designate any evidence at all. And, even based on that evidence, the Court of Appeals has found that a jury could find that the store was liable for the patron’s injuries caused by the criminal acts of an unrelated third party.

(It bears mentioning that the Court of Appeals spent an awful lot of time talking about evidence that the patron attempted to but was unsuccessful in designating under the trial rules. Had this evidence been properly before the court, the proper legal determination would have been — in my mind anyway — a closer call. So, it’s hard to avoid the suspicion that this inadmissible evidence played a part in the outcome.)

Today, the Indiana Court of Appeals decided the case of Lewis v. Smith (pdf), an unpublished decision that analyzes the effect of Indiana’s comparative fault statute in the situation where the finder of fact (in this case, a trial court judge) finds both parties to be equally at fault.

The case involved a collision in a parking lot. Vehicle A sustained $3,885 in damages while Vehicle B sustained $2,664. Each sued the other for damages. The trial court apparently didn’t really believe the testimony of either side entirely and basically punted, finding that both sides were equally at fault and awarding nothing to either party.

While one can sympathize with the trial court’s inclinations on this one, the Court of Appeals reversed the decision because the Comparative Fault Act simply doesn’t allow a zero award in such a situation. A judgment against a claimant is appropriate only where the claimant’s fault exceeds 50%. With only two parties involved, both parties can’t have fault in excess of 50%. If both are equally to blame, then the Comparative Fault Act requires verdicts against both for 50% of the other party’s damages.

As I read the statute, Car A should have been awarded $1,942.50 and Car B should have been awarded $1,332. I think it’s probably appropriate to set off one against the other and enter a verdict in favor of the owner of Car A in the amount of $610.50.

On Friday, the Indiana Court of Appeals decided an unemployment benefits case of interest to me primarily because it contradicts a Court of Appeals decision from a couple of months ago. Beckingham v. Review Board of the Indiana Dept. of Workforce Development and Cenevo Corp. concerns the discharge of a woman under a “no fault” attendance policy. Basically, the employer says, in effect, we don’t much care why you weren’t at work, if you rack up so many unexcused absences, we’ll fire you. In terms of whether a person discharged under such a policy is entitled to unemployment benefits, this implicates IC 22-4-15-1(d)(2)-(3).

“Discharge for just cause” as used in this section is defined to include but not be limited to . . . (2) knowing violation of a reasonable and uniformly enforced rule of an employer; [or] (3) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness[.]

An employee “discharged for just cause” is not entitled to unemployment benefits. The question in this case is whether an employee that is discharged under a no-fault attendance policy (satisfying clause 2) but who has a good excuse for her absences (not satisfying clause 3) can be said to have been “discharged for just cause.” Today’s decision looked at the disjunctive “or” in the statute and concluded that they can. In January, a different panel of the Court of Appeals reached the opposite conclusion in Giovanoni v. Review Board.

I think you really have to strain at the text of the statute to reach the conclusion of the Giovanoni panel of the Court of Appeals. Not only do you have the disjunctive “or” making either a policy or unjustified absences independent bases for discharge with cause, you also have the initial text stating that the list of discharges for cause is not exhaustive. My own experience dealing with the Department of Workforce Development leaves me with the feeling that the Department of Workforce Development and to a lesser extent, the courts, really try to err in favor of giving terminated workers unemployment benefits. While I sympathize with the sentiment, I think that to do so in this case, where the employer had an attendance policy and the employee clearly violated the attendance policy, would require a very strained interpretation of some reasonably clear statutory language.

Incidentally, in Friday’s decision, you could tell fairly early on that the Court of Appeals was going to split with itself. Frequently, when referencing a prior decision, the Court of Appeals will refer to “this court.” However, this time, they referred to “a panel of this Court” which gives away that the author of the decision didn’t think the prior decision was properly decided.

From time to time, the dysfunctional town of Roseland, Indiana barges into my consciousness. Today, the Indiana Court of Appeals issued an opinion (pdf) having to do with the difficulties of town councilman David Snyder to pay his child support obligations.

The case was on appeal of a contempt finding by the St. Joseph Circuit Court. During one hearing, Snyder claimed his only asset was his potential winnings in a claim against Roseland Town Marshall. (Presumably stemming from the incident wherein he was ejected from a town council meeting.)

The Circuit Court found him in contempt for not paying his child support obligation and ordered him to serve 90 days in jail or pay $25,000 to reduce his arrearage. The Court noted previous contempt purge amounts that Mr. Snyder had apparently managed to pay and the court’s belief that Mr. Snyder still had not seemed to take the orders of the court seriously – coming into court with only vague assertions that he had been looking for work without bothering to bring his calendar which he said would likely document his attempts.

Snyder challenged the merits of the contempt order, arguing that contempt was only appropriate where the parent had the ability to pay but willfully refused to do so. The Court of Appeals held that the trial court was acting within its discretion by not believing Snyder’s testimony; noting Snyder’s previous ability to come up with large sums of cash to avoid jail time and his ability to assist his wife in purchasing property.

Huge disclaimers here – I haven’t read the judge’s opinion and I haven’t read the case law upon which he presumably relies. But that won’t stop me from holding forth with an opinion of my own. Jon Murray, writing for the Indianapolis Star, reports on a case out of Marion County where judge David Dreyer declared unconstitutional Indiana’s statutory cap which limits punitive damages to three times the compensatory damages or $50,000, whichever is greater.

Compensatory damages is that money necessary to make the plaintiff whole – to compensate the plaintiff for damages actually sustained. Punitive damages are damages used to punish the defendant – hopefully as a deterrent.

As his rationale, Dreyer cited the separation of powers between the legislative and judicial branches as well as the right to a trial by jury that is among the core values of the state constitution.

“The Statute’s two provisions . . . interpose the will of the General Assembly to supersede otherwise valid jury verdicts,” Dreyer wrote in the decision.
. . .
Some legal experts think the ruling will be overturned. They say lawmakers exercised a valid power when they restricted punitive damages and did not infringe on the authority of the courts.
. . .
The ruling came Friday in case where a jury had awarded a Greene County man $5,000 in compensatory damages in his sexual abuse lawsuit against a priest. Jurors also added $150,000 in punitive damages, which would have to be reduced under the cap to $50,000.

For my part, because I don’t think the General Assembly has to permit an award of punitive damages in the first place, I don’t think it’s likely that a court has much room to strike down legislation that limits the award of punitive damages. But, the higher courts and I have not always seen things eye-to-eye, and they get the last word. I would expect this one to be appealed.