Fergerson was 63 years old and a chronic alcoholic. He also suffered from sciatica. He had a license but used IndyGo buses for transportation. In the morning on the day he was killed, Fergerson relapsed from an 8-day alcohol abstention and was briefly hospitalized for intoxication. He was released later that day. In the evening, after grocery shopping, Fergerson attempted to board an IndyGo bus to go home. One IndyGo bus driver refused to let him board because he had a liquor bottle. Later, another IndyGo bus pulled up to the bus stop. As two passengers exited the bus, Fergerson grabbed his two grocery bags and walked toward the front door of the bus. The bus driver checked his mirror for a “split second” and then pulled away from the curb. The driver did not remember checking his mirrors for proper alignment or having approached the stop in accordance with IndyGo’s policies. When the bus pulled away, Fergerson lost his balance and, with his arm outstretched towards the bus, fell off the curb and onto the road where he was run over by the bus’s rear wheels, causing his death two weeks later. His blood alcohol concentration was over three times the legal limit to drive. 

Fergerson’s mother, for his estate, filed a wrongful death lawsuit against IndyGo. A Marion County jury returned a jury verdict of $6 million dollars, which was reduced to $700,000 because of a limit on damages against governmental entities under Indiana law. At trial IndyGo argued Fergerson was contributorily negligent as a matter of law, referencing his intoxication and video footage of the incident. The trial court denied both of IndyGo’s motions, a motion for judgment on the evidence pre-verdict and a motion to correct error post-verdict. IndyGo appealed the denial of the post-verdict motion to correct error. A panel of the Indiana Court of Appeals reversed the trial court, with one judge dissenting. The Indiana Supreme Court granted transfer and ultimately affirmed the trial court’s denial of IndyGo’s motion to correct error.

As a preliminary matter, the Indiana Supreme Court first determined that its standard of review was de novo, that is, without deference to the trial court’s decision, as opposed to abuse of discretion, since IndyGo had asserted the jury’s verdict was clearly erroneous as contrary to the evidence. 

Next the Court reviewed whether the evidence supported a reasonable inference that Fergerson was not contributorily negligent, as a finding of contributory negligence as a matter of law is only proper when there exists only one inference to be drawn from the evidence, that of contributory negligence proximately causing the claimed injuries. Under Indiana law, a person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent person would exercise for their own protection and safety under similar circumstances. Evidence of intoxication alone is insufficient; there must be evidence that a person’s intoxication proximately caused the person’s injuries. Contributory negligence, that is, fault on behalf of a person injured, however slight, acts as a complete bar to recovery against governmental entities in Indiana.

The Indiana Supreme Court reviewed and dispensed with IndyGo’s two arguments: first, that the video footage showed Fergerson was contributory negligent in reaching out to touch a moving bus, particularly given his intoxication, and two, that Fergerson was contributory negligent for violating Indiana Code § 9-21-17-5, which states “[a] pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” and Indiana Code § 7.1-5-1-6, which prohibits a person from being intoxicated when using public transportation if the person’s intoxication endangers their own life.

As to IndyGo’s first argument, the Court noted that when the bus pulled away, the video footage did not show Fergerson’s legs and feet, and thus, a single, undisputed account of his conduct at the time of the incident. While noting one could certainly infer negligence finding Fergerson, possibly because of his intoxication or sciatica, lunged for or reached out to touch the moving bus, two other possible inferences also existed: first, that “Fergerson, through no unreasonable action and simply by accident, stumbled and then raised his arm in an involuntary attempt to brace himself as he fell,” and two, that “the bus’s sudden and unexpected momentum caused him to lose his balance as he carefully approached the bus and involuntarily reached out to stop himself from falling.” 

As to Fergerson’s intoxication, the Court noted that negligence cannot be presumed solely because an accident occurs and there was evidence Fergerson had ridden IndyGo buses many times while intoxicated without issue, chronic alcoholics can develop a tolerance to alcohol, and Fergerson’s mother could not say Fergerson “sounded drunk” when she spoke with him that evening. The Court reasoned, “[f]rom this evidence, coupled with the video footage, a reasonable jury could have inferred that Fergerson’s tolerance for alcohol minimized any impairment from his BAC level and thus concluded that his intoxication was not a proximate cause of his injuries.” 

As to IndyGo’s second argument, negligence per se based upon violation of Indiana law, the Court found a reasonable inference could be drawn from the video footage that Fergerson did not suddenly leave the curb by walking or running into the path of the bus under Indiana Code § 9-21-17-5 and, as noted with respect to IndyGo’s first argument, that his intoxication was not a proximate cause of his injuries endangering his own life under Indiana Code § 7.1-5-1-6. 

Finding “multiple, reasonable inferences” that the jury could have reached, the Indiana Supreme Court found IndyGo had not established Fergerson’s contributory negligence as a matter of law and therefore affirmed the trial court’s denial of IndyGo’s motion to correct error. While noting this was a “close case,” the Court recognized that its role is not to “stand in the place of the factfinder.” The Court noted the jury members were attentive, were properly instructed on the law, and found Fergerson was not contributorily negligent. Similarly, the Court noted the trial court and a judge on the Indiana Court of Appeals found Fergerson was not contributorily negligent as a matter of law. 

Justice Slaughter dissented with a separate opinion in which Justice Massa joined.

You can read the full opinion here.

Oukbu and Dhillon were both independent contractors/truck drivers. Neither of them had been to the fulfillment center before and neither were given instructions on how to access the facility’s premises. Amazon only gave them an address and a delivery time. Both Oukbu and Dhillon were injured in the early morning while it was still dark. The fulfillment center had three entrances along the county road. When approaching from the west, as Oukbu and Dhillon both did, the first two entrances had “no truck” signs. The third entrance was for deliveries, but it was 500 feet east of the facility. Oukbu and Dhillon both exited their trucks after passing the second “no truck” sign. Amazon had no signage at the first two entrances informing truck drivers where to go, and truck drivers were often seen getting out of their trucks in the same location. In fact, an Amazon employee told the police that “these lost truck drivers get out of their trucks at this spot every day.”

Oukbu and his wife and the estate of Dhillon filed lawsuits against Amazon. They alleged Amazon was negligent in its maintenance, design, and control of the fulfillment center’s entrances, including the layout and lack of lighting and signage at the entrances, which they claimed created a hazardous condition to business invitees such as Oukbu and Dhillon. Amazon filed motions for judgment on the pleadings, arguing that Amazon did not owe Oukbu and Dhillon any duty of care and that any negligence by Amazon was not the proximate cause of their injuries. The trial court granted Amazon’s motions, finding Amazon had no duty with respect to the negligent acts of someone over whom Amazon had no control and when the injury occurred off Amazon’s premises.

In negligence cases, claimants must prove (1) a duty owed by the defendant, (2) breach of that duty by the defendant, and (3) damages proximately caused by the defendant’s breach of duty. Premise liability is generally based upon control, and landowners are generally not liable to their invitees for the acts of third parties over whom they have no control and when the injuries occur off the premises. However, landowners may be liable for injuries off their premises when those areas have dangerous conditions created by their use of those areas, when invitees reasonably believe landowners control the areas, and when landowners know invitees customarily use the areas in connection with the invitation. Also, landowners may be liable when they use their premises in a way that affects the risk of foreseeable injuries off the premises.

On appeal, Amazon argued that the Indiana Supreme Court’s decision in Reece v. Tyson Fresh Meats, 173 N.E.3d 1031 (Ind. 2021), which we blogged about here, supported it having no duty to Oukbu and Kaur. However, the Indiana Court of Appeals noted that Reece was specifically limited to “visual obstructions” and did not involve duties owed to business invitees, and therefore, the Court found it inapplicable. Rather, the Court likened Amazon’s duty to that found in Lutheran Hosp. of Ind., Inc. v. Blaser, 634 N.E.2d 864 (Ind. Ct. App. 1994), a case in which the Indiana Court of Appeals found a hospital liable for a claimant’s injuries caused by the hospital’s funneling of pedestrian and vehicular traffic in an “exit” parking lot driveway often mistaken and used as an entrance. The Court also referenced Restatement (Third) of Torts, § 54 (2012) (Section 54), which provides in part that “[a] possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.”

Here, the Indiana Court of Appeals found the allegations made by Oukbu and Kaur were sufficient to show Amazon owed a duty of reasonable care and Amazon’s conduct created a dangerous condition making passage on the abutting road unsafe. The Court referenced the allegations that Amazon controlled how delivery drivers entered the premises; created an artificial hazard, i.e., the “no trucks” signage, on the premises; knew or should have known truck drivers trying to enter the fulfillment center were confused about how to do so and were stopping and exiting their trucks because of the layout, signage, and lighting of the facility’s entrances; used its premises in a manner that harbored a dangerous condition off its premises affecting the risk of injuries to others; and did not provide instructions to truck drivers. Accordingly, the Court reversed the trial court and remanded the case for further proceedings.

Judge Mathias concurred, writing separately to request the Indiana Supreme Court adopt the Restatement (Third) of Torts, § 54 (2012) to resolve the issues in these cases.

You can read the opinion in Oukbu here.

You can read the opinion in Kaur here.

The Indiana Court of Appeals first reviewed the nature of Indiana’s wrongful death statutes. Since there was no tort liability for another’s death at common law, recovery for wrongful death in Indiana is purely statutory and Indiana’s wrongful death statutes are strictly construed. Pecuniary loss, as opposed to loss of life itself, is the foundation of wrongful death claims in Indiana. Indiana has three wrongful death statutes: the General Wrongful Death Statute, applicable when there is a surviving spouse, dependent children, or dependent next-of-kin, the Child Wrongful Death Statute, applicable when there is the death of a child, and the Adult Wrongful Death Statute (AWDS).

When an adult unmarried individual without dependents dies due to a wrongful act or omission of another person, the personal representative of the adult person’s estate may pursue damages for wrongful death under the AWDS, Indiana Code § 34-23-1-2. Damages under the AWDS may include medical and funeral and burial expenses, which inure to the estate for the payment thereof, and damages for the loss of the adult person’s love and companionship, which inure to nondependent parents or children of the adult person. Attorney’s fees and expenses and loss of services are also available. However, damages cannot be obtained under the AWDS for a person’s grief, punitive damages, or lost earnings of the deceased, and damages for the loss of love and companionship suffered by nondependent parents and children are capped at $300,000.

Indiana NIED claims can be pursued under the impact rule, the modified impact rule, the bystander rule, and in cases involving sexually abused children. Recovery is available under the impact rule when a claimant suffers a direct physical impact that causes physical injury and emotional trauma. Recovery is available under the modified impact rule when there is an injury or death to a third party and the claimant sustains a direct physical impact and thereby suffers emotional trauma serious enough to affect a reasonable person. Recovery under the bystander rule, which Hyzy attempted to pursue his NIED claim under, is available when a claimant, without any direct impact, witnesses a relative’s severe injury or death or witnesses the immediate aftermath.

The Court in Hyzy ultimately affirmed the trial court’s order dismissing Hyzy’s claim holding “the trial court properly dismissed Hyzy’s [NIED] claim which was brought under the [AWDS] and pursuant to the procedures of the Medical Malpractice Act.” The Court based its decision on Indiana Supreme Court precedent in Indiana Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010) and Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005). The Supreme Court in Chamberlain concluded that “the MMA is procedural and [does] not create new causes of action” and the Supreme Court in Patrick found “damages for emotional distress are not available under the [AWDS], [and thus] a [claimant] cannot bring a derivative claim seeking such damages under the Medical Malpractice Act.” Patrick, 929 N.E.2d at 190; Chamberlain, 822 N.E.2d at 963.

Relying on Patrick and Chamberlain, the Indiana Court of Appeals in Hyzy found his claim for NIED “exists exclusively under the AWDS” and “Hyzy’s NIED claim cannot proceed under the AWDS.” While recognizing Indiana Supreme Court precedent that separate claims for NIED outside the wrongful death statutes are not precluded, the Hyzy Court nonetheless rejected Hyzy’s argument that his NIED claim was independent of the AWDS, with the Court reasoning—for some reason—that to be outside the AWDS Hyzy’s claim would necessarily also have to be outside the MMA (“whether Hyzy’s NIED claim… was brought ‘outside the wrongful death statutes,’ we acknowledge that to be outside these statutory parameters, ‘a health care provider’s actions must be demonstrably unrelated to the promotion of the plaintiff’s health or an exercise of the provider’s professional expertise, skill, or judgment.’”). The Court concluded Hyzy’s claim “[fell] within the statutory framework of the MMA and the AWDS” because there was an “absence of any necessary facts [in the Proposed Complaint] which could propel [the] claim outside the province of the MMA and AWDS and place it within the auspices of the bystander doctrine.”

You can read the full opinion here.

The CWDS governs actions involving injury or death to children, which the CWDS defines as unmarried individuals without dependents who are less than 20 years of age or less than 23 years of age and enrolled in a postsecondary educational institution or a career and technical education school or program. Ind. Code § 34-23-2-1(b), (c). Actions under the CWDS may be brought by (1) the father and mother jointly, or either of them by naming the other as a codefendant to answer as to his or her interest, (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded, and (3) a guardian, for injury or death to a protected person. Ind. Code § 34-23-2-1(c). In the case of death, damages awarded for loss of the child’s services, love, and companionship, reasonable expenses of psychiatric and psychological counseling of a surviving parent or minor sibling, and uninsured debts of the child inure to the benefit of (1) the father and mother jointly if both parents had custody of the child, (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court, or (3) a custodial grandparent if the child was not survived by a parent entitled to benefit under the CWDS. Ind. Code § 34-23-2-1 (f), (i). Importantly, a CWDS claim must be brought within two years from the date of the child’s death. Ellenwine v. Fairely, 846 N.E.2d 657, 666 (Ind. 2006).

On appeal the Court first noted the “odd procedural posture” of the case and standing issues with regards to the Mother alone appealing the dismissals of the Father’s and Grandmother’s claims. Nonetheless, recognizing it has allowed parties to raise arguments as to the dismissal of other parties when there is prejudice to a party and “some confusion” with regards to the CWDS itself, the Court addressed the merits of the parties’ arguments. The Court noted that service on the Father and his answer occurred more than two years after Isabelle’s death and the Grandmother was not added as a defendant within the two years and never appeared and answered in any case. While Mother argued that neither Father nor Grandmother were required to “bring a claim” to be entitled to an apportionment of damages under the CWDS, the Court found such inconsistent with Indiana’s trial rules and procedures requiring a claim for relief to be made by a party. As such, the Court concluded that, even though the CWDS sets forth an apportionment in their favor, Father and Grandmother were nonetheless required to assert a claim as to any damages, and the two-year time period for them to do so under the CWDS had passed, thereby making their claims properly subject to dismissal. The Court found the trial court did not abuse its discretion and affirmed on appeal.

You can read the full opinion here.

By way of background, Plaintiff, Zachary Miller (Miller) pleaded guilty but mentally ill to the voluntary manslaughter of his grandfather, which left his grandmother, Betty Miller, widowed. The conduct and killing arising out of Miller’s actions generated two previous appeals arising out of the same conduct. In Miller I, a case we previously blogged about here, the Court found that the federal Emergency Medical Treatment and Labor Act’s (EMTALA) statute of limitations did not preempt a state rule allowing for amendments relating back to an original pleading. Next, in Miller II, which opinion can be found here, the Indiana Court of Appeals, in reviewing Betty Miller’s claim arising out of her husband’s death, found Zachary Miller’s mental health providers were not immune from liability under two statutory provisions for failing to warn or take precautions to protect others from a patient’s violent behavior.

In the subject of this blog, Miller v. Patel, et al. decided on June 29, 2023 (Miller III), the Court first examined the case background. Miller, who suffered from severe mental illness, killed his grandfather in January 2017 after receiving allegedly negligent care from his mental health providers. Miller pleaded guilty but mentally ill to voluntary manslaughter and was sentenced to 20 years in prison, 12 executed. Miller filed a civil lawsuit against his providers, alleging that they failed to comply with the appropriate standard of care and caused him permanent injuries, pain, emotional distress, and loss of freedom from his incarceration. A medical review panel found that the providers were negligent, and their conduct was a factor of Miller’s damages. However, the trial court granted summary judgment for the providers, finding that Miller’s damages were not compensable under Indiana public policy and that he was estopped from relitigating his responsibility for the crime. The Court of Appeals reversed and remanded, holding that 1) the providers failed to show there were no genuine issues of material fact and 2) collateral estoppel did not apply to Miller’s guilty plea.

The Supreme Court affirmed the trial court’s summary judgment ruling finding Miller could not recover damages arising from the crime. Specifically, the Court found Miller was estopped from relitigating his legal responsibility under defensive issue preclusion, because his guilty plea has the same preclusive effect as a trial verdict, and he had a full and fair opportunity to litigate his legal responsibility in his criminal case. Moreover, the Court held that Miller could not recover damages that stem, in whole or in part, from his criminal conduct, because such damages are barred by Indiana public policy under the wrongful-acts doctrine, which prevents plaintiffs from imposing liability on others for the consequences of their own illegal or immoral acts. The Court also held that Miller waived his argument about his pre-criminal act damages, because he did not adequately raise or support it in his motion opposing summary judgment or in his appellate brief.

Writing separately, Chief Justice Rush concurred in part with the majority’s application of the wrongful-acts doctrine, noting she was “open to examining the tension between the doctrine and the principles of comparative fault in a future case.” She observed that under Indiana’s comparative fault scheme as applied to a wrongful-acts doctrine situation, “the issues of fault and causation may appear vexing, but the factfinder—not a detached appellate court—is best equipped to assess the array of factors” involved in the decision to allocate fault.

She dissented from the majority’s opinion, however, arguing she did not believe that Miller had waived his argument contesting the entry of summary judgment on his claims for pre-criminal act damages, because the providers did not move for summary judgment on those claims and Miller raised those claims before the trial court and on appeal. She asserted that “not only has Miller not waived his argument, but it is also meritorious,” citing Miller’s designation of the medical review panel’s unanimous finding that leading up to Miller’s criminal act, the Providers “failed to comply with the appropriate standard of care” and that the failure “was a factor” of Miller’s damages.

Finally, she dissented from the majority’s opinion that Miller’s claims for pre-criminal act damages were barred. She argued the claims should not be barred by Indiana public policy or collateral estoppel, because they are based on the providers’ negligence prior to the offense and do not rely on Miller’s criminal act. She concluded that summary judgment was inappropriate because there were genuine issues of material fact regarding Miller’s pre-criminal act damages and whether he was criminally insane when he killed his grandfather. Chief Justice Rush further criticized the majority for applying a rigid and unfair version of collateral estoppel that ignores the circumstances of Miller’s guilty plea that she found “antithetical” to the Court’s role in reviewing summary judgment to ensure a litigant is not deprived of his day in court.

You can read the majority’s decision and Chief Justice Rush’s concurrence and dissent here.

On appeal the Indiana Court of Appeals first explained that a dismissal based upon a plaintiff’s failure to substitute a personal representative of a defendant’s estate as a defendant should not be analyzed under Indiana Trial Rule 12, but rather Indiana Trial Rules 25 and 41(E). Under Indiana’s Survival Statute, “[i]f an individual who is… liable in a cause of action dies, the cause of action survives and may be brought… against the representative of the deceased party…” and it can also “be continued… against the legal representatives… of the deceased.” Ind. Code § 34-9-3-1. When a sole defendant dies in a case, the matter is stayed so that the proper parties can be substituted. Under Indiana Trial Rule 25, with the exception of a public official sued in an official capacity, a “motion for substitution may be made by the court, any party or by the successors or representatives of the deceased party…” Ind. R. Trial P. 25(A). Importantly, unlike Rule 25 of the Federal Rules of Civil Procedure, which states a case must be dismissed if the motion for substitution is not made within 90 days after service of a statement noting a party’s death, Indiana Trial Rule 25 does not include any time limitations for filing a motion to substitute. Nonetheless, a case is still subject to dismissal under Indiana Trial Rule 41(E) if a “Suggestion of Death” is filed putting everyone on notice that a defendant has died, and a plaintiff fails to comply with a court order setting a time to file a motion to substitute or otherwise fails to timely prosecute the action.

In this case, Wanda’s Estate did not file a Suggestion of Death but intervened in the action based upon Wanda’s passing. Contrary to Indiana Trial Rule 24(C), Wanda’s Estate did not note in its motion to intervene the claim, defense, or matter for which intervention was sought, and in its motion, Wanda’s Estate also referred to Wanda as “the original Defendant.” Jennifer and Tyler thought, reasonably so according to the Indiana Court of Appeals, that the intervention served as a substitution, but they also noted in their response to the motion to dismiss that Wanda’s Estate could be substituted if the trial court found such necessary. While noting that intervention and substitution are not the same thing, the Court of Appeals noted there is no reason an intervention cannot also serve as a substitution when the sole purpose of intervening is to replace a defendant. In any case, the Court of Appeals found Jennifer and Tyler did not fail to comply with any deadline under Indiana Trial Rules 25 or 41(E), and therefore, their case should not have been dismissed.

The Court of Appeals also found the trial court erred in granting the motion to dismiss based upon Indiana Trial Rule 12. As to Trial Rule 12(B)(2) (lack of personal jurisdiction), the Court noted that, while Wanda was no longer a party given her death, the trial court did not lose jurisdiction because the trial court had jurisdiction over Wanda while she was alive, there was no dispute as to the trial court’s jurisdiction over Wanda’s Estate, and the proceedings were merely suspended due to Wanda’s death. As to Trial Rule 12(B)(6) (failure to state a claim), which Wanda’s Estate argued was applicable because Jennifer and Tyler failed to name the real party in interest as a defendant under Indiana Trial Rule 17, the Court of Appeals noted (1) the complaint was facially sufficient and contained no facts relied upon by Wanda’s Estate, i.e., that Wanda had died, an estate had been opened for her, and personal representatives had been appointed, (2) Indiana Trial Rule 17 requires cases be prosecuted by plaintiffs that are the real parties in interest, not defendants, and (3) if a plaintiff has named the wrong defendant, the appropriate remedy is to name the right defendant, not dismiss the claim. As to Trial Rule 12(B)(7) (failure to join a necessary party), the Court of Appeals noted that Wanda’s Estate had already been joined as a party, and in any case, when joinder is feasible, the appropriate remedy is to join the missing party, not dismiss the case.

Accordingly, the Indiana Court of Appeals found the trial court erred when it dismissed Jennifer and Tyler’s complaint. The Court reversed the trial court’s dismissal and remanded the case to the trial court to allow Jennifer and Tyler an opportunity to substitute the personal representatives of Wanda’s Estate as defendants, with the trial court to review any subsequent failure of substitution under Indiana Trial Rules 25 and 41(E), not Trial Rule 12.

You can read the full opinion here.

Recently, in Progressive Southeastern Insurance Co. v Brown, the Indiana Supreme Court addressed whether an MCS-90 endorsement applies when a commercial truck crash occurs during an intrastate trip involving the transportation of non-hazardous cargo. In Brown, the commercial truck driver, Bruce Brown, an employee of B&T Bulk, a Mishawaka-based motor carrier out of Mishawaka, Indiana, was driving a truck and empty trailer when his truck crossed the centerline, striking another vehicle killing the driver, Dona Johnson.

Ms. Johnson’s surviving spouse brought a wrongful death case against Brown and B&T on his own behalf and on behalf of his widow’s estate. Progressive Southeastern Insurance Company then filed a separate declaratory judgment case against Johnson, B&T and Brown requesting a declaration from the court that it should not owe any duty to defend or indemnify B&T or Brown, because the insurance policy it had issued did not include the truck and trailer and, although Progressive had provided B&T with an MCS-90 endorsement, the endorsement should not apply. State Farm Mutual Automobile Insurance Company, Johnson’s insurer, intervened in the case and joined with Johnson’s widow and her estate, Brown, and B&T, in arguing that the MCS-90 endorsement should apply binding Progressive to pay any final judgment in the case. The trial court agreed with Progressive that the truck and trailer were not insured autos and that Progressive had no duty to defend or indemnify Brown. However, the trial court found the MCS-90 endorsement applied, which ruling Progressive appealed.

The undisputed evidence of the case was that Brown had been driving the truck and trailer to pick up cement—a non-hazardous property—in Logansport, Indiana, for delivery to South Bend, Indiana, without crossing over any Indiana State lines. If the MCS-90 applied, Progressive would have to pay the judgment, even though the insurance contract with Progressive had been determined to otherwise exclude coverage and Progressive would be left having to seek reimbursement from its insured. The issue for the Court was whether the MCS-90 applied as required under Section 30 of the Motor Carrier Act, 49 U.S.C. § 31139.

Section 30 of the Act provides that the minimum financial responsibility requirements provided by MCS-90 apply to motor carriers transporting property between 1) a place in a State and a place in another State, 2) a place in the same State through a place outside of the State, or 3) a place outside of the United States. The requirements also apply if the carrier is transporting hazardous property.

All parties agreed that Brown was not transporting hazardous property. So, the question was whether Brown was engaged in interstate commerce at the time of the crash. Federal law mandates the MCS-90; thus, the Court looked to federal law to answer the question of whether Brown was engaging in interstate commerce at the time of the crash. The Court noted there are three approaches courts have used to evaluate the interstate character of a trip: 1) the trip specific approach, which narrowly looks at whether the property was being transported on an interstate trip, 2) the shipper’s intent at the time of the shipment which could make an intrastate trip interstate if the goods were being transported to an interstate terminal, or 3) the broad, public-policy approach of whether the policy of the Motor Carrier Act would be advanced by applying the MCS-90.

The Court agreed with those courts that had rejected the broad, public-policy approach to the application of the MCS-90. It then concluded, without specifically choosing a preference for one of the remaining approaches, that the MCS-90 would not be applicable under either of the remaining two approaches. However, the Court noted that despite federal limitations, the question remained as to whether Indiana had created its own regulation governing insurance requirements for motor carriers transporting non-hazardous cargo within Indiana’s borders that would apply the MCS-90.

The Court found Indiana’s legislature had adopted federal regulations governing minimum motor carrier financial responsibility under Indiana Code § 8-2.1-24-18(a). Section 18(a) requires all intrastate motor carriers to comply with the minimum financial responsibility requirements under 49 C.F.R. § 387.3(b) if they are transporting hazardous property. But, the Court concluded the requirements do not apply if they are transporting non-hazardous property in spite of at least one prior Indiana Court of Appeals decision suggesting otherwise, Sandberg Trucking, Inc. v. Johnson. In Sandberg, the Court of Appeals reasoned it would be “absurd” to hold that Indiana’s legislature had incorporated the federal regulations, making them applicable to intrastate travel, while adopting a regulation that nullified the entire adoption. The Supreme Court overruled the Sandberg decision to the extent the opinion would require it to read each provision of the regulation and decide when to replace “interstate” with “intrastate.” Consequently, the Court reversed the trial court’s judgment that the MCS-90 endorsement applied. You can read the decision here.

The CWDS applies when a child dies because of a wrongful act or omission causing injury or death to the child. Ind. Code § 34-23-2-1. The CWDS defines child in subsection (b) as an unmarried individual without dependents who is less than 20 years old or less than 23 years old and enrolled in a postsecondary educational institution or a career and technical education school or program. The CWDS specifically states who may bring an action under the CWDS in subsection (c): (1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest, (2) the person to whom custody of the child was awarded in the case of divorce or dissolution of marriage (with the Indiana Court of Appeals noting in Johnson v. Harris that it had previously interpreted the CWDS to also permit non-custodial parents standing to bring an action for injury or death of a child), and (3) the child’s guardian. The CWDS also provides in subsection (d) that in the case of the death of a person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the child’s death.

Paternal Grandmother argued on appeal that she was entitled to bring the action under subsection (d) because of her son’s death and her appointment as his personal representative. She also argued she was entitled to bring the action under Indiana’s probate code, which allows personal representatives of deceased persons to maintain lawsuits for any demand due the decedent or his estate or for the recovery of property of the estate. However, the mother and maternal grandparents argued that the boy’s father was never awarded custody of the boy and no wrongful death lawsuit had been filed, thus making subsection (d) of the CWDS inapplicable.

Recognizing Indiana’s wrongful death statutes are purely statutory and strictly construed under Indiana law, the Court of Appeals agreed with the boy’s mother and maternal grandparents and held Paternal Grandmother did not have standing to sue under the CWDS.

First, the Court noted the plain language of the CWDS provided 3 categories of persons who can maintain a child wrongful death lawsuit, which did not include Paternal Grandmother. Second, as to subsection (d), the Court discerned from the plain language of the CWDS that the legislature intended parents to have the sole right to file a wrongful death lawsuit, except when both parents lack custody of the child at the time of the child’s death. For instance, the Court opined that in those cases in which both parents die before a lawsuit is filed and at least one of the parents had custody of the child, the CWDS does not allow anyone to file an action under the CWDS after the parents’ deaths. Here, the father had not filed a lawsuit under the CWDS and the mother had chosen not to. Lastly, the Court found Indiana’s probate code did not provide Paternal Grandmother standing because although Paternal Grandmother had the right to sue for damages owed to the father at the time of his death, the father’s right to file a lawsuit for his child’s death expired upon his death. Therefore, the Court affirmed the trial court’s grant of summary judgment finding Paternal Grandmother had no standing to sue for her grandson’s death under the CWDS.

You can read the full opinion here.

Derrick Duke and Dustin Duke, as co-personal representatives of the Estate of Tammy Lynn Ford (the “Ford Estate”), filed a lawsuit against the County alleging the County’s 911 delay caused Ford’s death and the County’s actions amounted to willful and wanton misconduct. Under Indiana law, governmental entities have immunity for losses resulting from the use of a 911 system, except to the extent of willful or wanton misconduct. Willful or wanton misconduct includes an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under circumstances known to the actor at the time, or an omission or failure to act when the actor has knowledge of the natural and probable consequence of injury and the actor’s opportunity to avoid the risk. To prove willful and wanton misconduct, a plaintiff must show (1) the defendant had knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury, and (2) the defendant’s conduct exhibited an indifference to the consequences of the defendant’s conduct. Typically, whether a defendant engaged in willful and wanton misconduct is a question of fact for the trier of fact to decide (e.g., a jury). However, in this case, the County filed a motion for summary judgment arguing that the trial court should find as a matter of law that it did not engage in willful and wanton misconduct, and as such, was entitled to the 911 immunity. The trial court denied the County’s motion and the County appealed.

On appeal, the Indiana Court of Appeals noted that to succeed in its motion for summary judgment, the County was required to show that there was no genuine issue of material fact as to whether it engaged in willful and wanton misconduct. The County argued its dispatchers’ actions were not willful and wanton, but merely a simple mistake. However, the Ford Estate designated evidence in response showing that there had been prior reported problems with the 911 dispatch reported by the Kokomo Police Department and the Kokomo Fire Department and the dispatchers’ failure played a “big role” in Ford’s death. As such, the Indiana Court of Appeals found there existed a genuine issue of material fact as to whether the County engaged in willful and wanton misconduct and the County was not entitled to the 911 immunity as a matter of law. The Court affirmed the trial court’s order denying the County’s motion and remanded the case for further proceedings.

You can read the full opinion here.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger. Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle. Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat. Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop. It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Jeffrey Cutchin, as personal representative of his wife and daughter’s estates, followed Indiana’s procedural requirement of filing a proposed complaint with the Indiana Department of Insurance alleging medical malpractice against the prescribing physician and clinic, as well as filing a malpractice claim in the United States District Court for the Southern District of Indiana, naming the prescribing physician and clinic anonymously. Cutchin alleged the provider breached the standard of care by failing to warn Watson of the dangers of operating a vehicle while under the influence of the prescribed medications, failing to screen her for the cognitive impairment caused while taking the medications, failing to adjust the medications to address potential muscle control issues, and by failing to ask the Indiana BMV to assess Watson’s driving ability. Cutchin subsequently amended his federal court complaint to request a declaration concerning the application of the Indiana Medical Malpractice Act (“MMA”) to his claim.

At the time of the alleged malpractice, the Act capped recoverable damages at $1.25 million, with the physician responsible for procuring $250,000 of coverage and paying a surcharge to the Patient’s Compensation Fund (“Fund”), which Fund may be accessed after collection of damages above the physician’s $250,000 exposure. The Fund intervened in the federal district court case, taking the position that the Act did not apply and that the Fund should not have to pay any excess damages.

Before the district court ruled on the applicability of the Act, the district court convened a settlement conference at which the Fund was represented. At the conference, the physician and Cutchin reached a settlement wherein the physician agreed to pay the maximum $250,000 for which he would have been responsible under the Act. Although the Fund did not contribute to the settlement, all parties, including the Fund, executed a memorandum of agreement “which acknowledge the settlement, called for termination of the medical review panel proceedings as to the Physician and Clinic…and noted Cutchin was reserving his right to pursue excess damages from the Fund.”

After the Physician and Clinic were dismissed from the case, Cutchin filed a petition for excess damages from the Fund in the still-pending district court matter. The parties then filed briefs addressing the Fund’s contention that the MMA did not apply. The district court rejected Cutchin’s argument that the settlement between the physician and Fund precluded the Fund from contesting applicability of the Act. And the court found that neither Cutchin, Claudine, nor Adelaide satisfied the definition of “patients” of the physician and clinic under the MMA. Thus, Cutchin was barred from seeking excess damages from the Fund.

Cutchin appealed the decision to the Seventh Circuit Court of Appeals. The Seventh Circuit examined Indiana law and found conflicting decisions as to both issues ruled upon by the district court. First, as to the question of whether a settlement with a medical provider bars the Fund from challenging the applicability of the Act, Cutchin argued that once a claimant has established an underlying limits settlement and is pursuing excess damages, the MMA specifically provides that “the court shall consider the liability of the health car provider as admitted and established.” The Fund argued that Indiana cases have recognized that claimants must first pass a threshold inquiry of whether the subject matter of the claim constituted medical malpractice in the first instance under the MMA. The Seventh Circuit noted Indiana decisions dismissing past claims against the Fund when the physicians who settled the case were determined not to have qualified as providers under the MMA for failing to pay the requisite surcharge (Wisniewski v. Bennett, 716 N.E.2d 892 (Ind. 1999)) and when the subject matter of the claim—for example, sexual molestation of a patient by a hospital technician or a patient’s loss of enjoyment of life for being imprisoned for killing for people when he was released from the hospital—did not “sound in malpractice” (Murphy v. Mortell, 684 N.E.2d 1185 (Ind.Ct.App. 1997) and (Rimert v. Mortell, 680 N.E.2d 867 (Ind.Ct.App. 1997)). However, the Court found language in decisions elsewhere, including Dillon v. Glover, 597 N.E.2d 971 (Ind.Ct.App. 1992), which had been followed by Rimert, suggesting to the Court that Glover had decided “by the express terms of the MMA, the Fund’s liability was established by the settlement with the physician; the matter of proximate cause could therefore not be litigated by the Fund.”

The Court noted it could understand how under these decisions the Fund could believe it could still raise the issue of applicability of the MMA, while at the same time noting that “there is no real doubt that Cutchin’s claim is one founded in malpractice…the Physician was providing medical care to Watson, Cutchin’s claim arises from that care and challenges the propriety of the Physician’s acts and omissions in providing that care, and in order to assess whether the Physician breached his professional obligations to Watson, a factfinder would necessarily have to reference the medical standard of care prevailing in the local community.” The Court further noted that “Indiana recognizes a physician does have a duty to warn and monitor his patient as to the side effects of prescribed medications that may foreseeably endanger not only the patient, but third parties.”

Having determined that clarification was needed as to the effect of the underlying settlement in stopping a threshold challenge by the Fund, the Court then noted some confusion under Indiana decisions as to who constitutes a “patient” under the MMA. Notably, the MMA definition of patient “includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Cutchin noted he falls within this broad definition of a patient and that “it would be ironic if the result of this case would be to limit the recovery of one who was actually treated by a provider (like Watson) while allowing unlimited recovery by third parties injured as a result of the same treatment (like C[l]audine and Adelaide).” The Court again found that although Indiana cases addressed the question of a physician’s duty to third parties and who constitutes a patient under the MMA, “they do not supply a clear answer as to whether Cutchin may pursue relief under the MMA.”

Judge Ilana Rovner’s opinion in Cutchin thoroughly navigates several Indiana cases which she ultimately and quite understandably deemed simply too conflicting to reconcile. In certifying the questions, Judge Rovner notes that questions are “likely to recur” as an accident caused by side effects from a prescription medication is “hardly unusual.” Moreover, she notes it will be quite helpful to third-party claimants, healthcare providers, and their insurers, as well as the “bench, bar, and citizenry of Indiana” to have correct answers to the certified questions. Indeed, it will be, and we look forward to discussing the Indiana Supreme Court’s ultimate opinion on these issues.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

Under Indiana’s General Wrongful Death Statute, damages inure to the benefit of the decedent’s estate for payment of reasonable medical, hospital, funeral and burial expenses, and the remainder of damages, which are uncapped, including damages for loss of love, care and affection, inure to the exclusive benefit of the surviving spouse, dependent children, or dependent next-of-kin. Ind. Code § 34-23-1-1. When an unmarried adult dies without dependents, a claim can be brought under Indiana’s Adult Wrongful Death Statute, which provides that damages for reasonable medical, hospital, funeral and burial expenses inure to the decedent’s estate, while other damages, including loss of love and companionship, inure to the nondependent parent or nondependent child of the decedent. Ind. Code § 34-23-1-2. Importantly, under the Adult Wrongful Death Statute, damages for loss of love and companionship are capped at $300,000.00. Ind. Code § 34-23-1-2(e).

Vaughn lived with Virginia in her home since 2005 until her death in March 2018. Virginia paid her own mortgage, home insurance, property taxes, utilities, and food. Vaughn lived with Virginia rent-free but paid his own bills. Although Vaughn had access to Virginia’s checking account, which he used to pay for items on her behalf, he had his own checking account and did not need any assistance from Virginia to pay his bills. Vaughn took care of himself with Virginia not providing any services, such as cooking, cleaning or other daily living tasks. Virginia bought Vaughn two cars, which he would not have been able to afford and which he needed for work and transporting Virginia, but he testified that these were gifts. After 2001 neither Vaughn nor Virginia claimed each other as a dependent on their taxes, which they both filed separately. From 2013 to 2017 Vaughn testified he could afford to live on his own and did not have any financial needs from his mother but chose to live with her to take care of her. When Virginia’s health deteriorated in 2017, Vaughn took medical leave to help her, and Virginia reimbursed him for his lost wages.

Although dependency is not defined in the General Wrongful Death Statute, Indiana courts have established a standard for dependency requiring proof of (1) a need or necessity of support on the part of the alleged dependent and (2) the decedent’s contribution to such support. A decedent’s support or contribution to a beneficiary must amount to more than a service or benefit to which a beneficiary has become accustomed, and such must go beyond merely helping family members, even as to family members who have relied on that assistance. Here, as to the first consideration, the Court found Vaughn did not have an actual need or necessity for Virginia’s support. He was financially stable and paid his bills and expenses without assistance since 2005 and from 2013 to 2017 he had the means to maintain an independent household. As to the second consideration, the Court found Virginia’s support amounted to gifts, donations and acts of generosity. The Court therefore held that no reasonable jury could find that Vaughn was dependent on his mother.

Under Indiana’s Survival Act, an action for personal injuries to the decedent can be maintained to recover damages to the decedent resulting before the decedent’s death, including damages for pain and suffering, but only if the decedent died of causes other than those personal injuries. Ind. Code § 34-9-3-4. The damages in a survival action, which are uncapped, compensate the decedent’s estate for the decedent’s injuries, whereas damages for wrongful death compensate decedent’s survivors for the loss resulting from the decedent’s death. While parties can alternatively assert claims for wrongful death and survivorship, a party can only recover under one theory. Here, the Court found the Defendants’ admissions in their answer constituted a judicial admission conclusive and binding on the trier of fact. Since it was established that Virginia died as a result of the Defendants’ negligence, the Court found Vaughn could not show that Virginia died of causes other than Defendants’ negligence, and therefore, had no cause of action under the Survival Act.

The Court of Appeals reversed the trial court’s denial of the Defendants’ motion for summary judgment and remanded the case for further proceedings consistent with the opinion.

You can read the full opinion here.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled. In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later. The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent. The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

The Supreme Court first analyzed its prior holding in the 2009 criminal case of Gabbard v. Commonwealth that in order to preserve error for the loss of a peremptory strike, a litigant “must identify on his strike sheet any additional jurors he would have struck.” The Court later held that Gabbard applied to civil cases as well. The Court noted that it had strictly applied Gabbard’s written strike requirement in two 2013 cases.

The problem, however, as the Court noted, is that in the 2014 case of Sluss v. Commonwealth, the Court granted a new trial to Sluss when he argued he “substantially complied” with Gabbard by identifying orally on the record the names of the jurors he would have struck had he been granted additional peremptory strikes, which names included a juror who ultimately sat on the jury. The Sluss Court specifically noted that “[w]e agree” the oral naming procedure utilized by Sluss was “enough to preserve his challenge under Shane and Gabbard.” Later, two Kentucky Court of Appeals cases and one Supreme Court case noted it was sufficient to preserve a juror challenge to state the challenge verbally or in writing.

The Floyd Court, however, noted that in hindsight Sluss was really about different issue: “Sluss resulted in a major sea change in the Gabbard jurisprudence when at its core it was not even about Gabbard ,” but about juror rehabilitation. Thus, it declared, the issues surrounding its own approved alteration of Gabbard’s written strike requirement had not been “sufficiently fleshed out.” So, the Floyd Court set out to “establish a procedure structured enough to provide fairness to all parties, clear enough that litigants and courts may follow it without issue, and yet broad enough that each court can retain many of their own practices.” The enumerated procedure to preserve error for an improperly empaneled was described by the Court as follows:

• “First, the litigant must move to strike the problematic juror for cause and be denied the strike by the trial court.”
• Second, “the litigant must use a peremptory strike to remove the juror from the venire and show in writing on the strike sheet that the peremptory strike was used for that juror, and exhaust all other peremptory strikes.”
• Third, “the litigant is required to clearly write on her strike sheet the juror she would have used a peremptory strike on had she not been forced to use the strike on the juror that she believes should have been struck for cause.”
• Fourth, and never previously addressed by the Court, “the number of jurors a litigant identifies on her strike sheet must be the same number of jurors the litigant originally moved to strike for cause. Failure to abide by this rule will render the error unpreserved.”
• Fifth, a litigant must “make her would-be peremptory strikes known before the jury is empaneled. And…at least one of the jurors identified by the litigant must ultimately sit on the jury.”

The Floyd Court noted “we now overrule Sluss prospectively, only insofar as it holds that stating would-be peremptory strikes orally on the record constitutes substantial compliance with Gabbard and is therefore sufficient to preserve the error.” The Court noted that the revision was necessary because Sluss’s modification of Gabbard in this manner had “inadvertently opened the door for blatant unfairness to arise during the peremptory strike process.” This unfairness was opined to be:

“[a]llowing a litigant to forego writing her strikes down, and instead only identify them orally after the other party has, so to speak, shown its hand by identifying peremptory strikes. This allows a litigant to manufacture an appealable issue by choosing a juror who was not struck by the other party, thereby increasing the chances that the juror the litigant identifies ultimately sits on the jury.”

The dissent found this characterization itself to be unfair under existing precedent:

“Today, the majority imposes the rule Appellees advocate. The new rule requires litigants to identify precisely the same number of jurors they would have used peremptory challenges on as the number of jurors they challenged for cause. Nothing in our prior jurisprudence requires such a one-to-one ratio. It is inappropriate for the majority to impose the rule it creates today upon Neal. She properly preserved this issue for our review under our precedent as it existed at the time.”

The dissent emphasized Gabbard’s language suggested litigants were appropriate to name prospective strikes on more than a one-to-one raio: “in order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck.” The Court of Appeals had also believed the plaintiff had complied with the plain language of existing precedent: “We find that informing the court on the record of jurors the party would have peremptorily struck had they strikes remaining to be functionally identical to the instructions of the Kentucky Supreme Court outlined above and refusing to consider the issue on that basis would be a miscarriage of justice and against the spirit of established precedent.”

Finally, the dissent argued that the failure to grant the for-cause strike amounted to a structural error regardless of preservation and this deprived the plaintiff of her constitutional right to an impartial jury.

The Supreme Court found it to be significant that “we have no way of knowing which juror she would have picked if the proper procedure was followed.” Interesting in this debate over fairness, is that nowhere in either the Supreme Court’s or Court of Appeals’ opinion is there any suggestion that defense counsel objected on the record to plaintiff’s identification of two jurors she would have struck with peremptory strikes (arguably appropriate under Gabbard as the dissent points out) on the grounds that plaintiff only had one peremptory strike remaining. If a one-to-one ration was required and the overarching concern was one of fairness, why then was the defense not required to object to the plaintiff naming two jurors instead of one? In other words, if the defense itself had invited the error by not complaining at the time that the plaintiff had failed to pick a horse and this was, indeed, the “proper procedure,” why then should the defense benefit from circumstances to which it did not object given the then-existing approval of verbal strikes stated in Sluss and other more recent cases?

Regardless of the ultimate outcome and questions of fairness, litigants in Kentucky now have more detailed guidance to follow in this arena. And, it is certainly possible that the plaintiff in Floyd v. Neal will seek rehearing or pursue further review in the United States Supreme Court given the concerns over the propriety of retroactive application of a procedure affecting the substantial right to obtain a fair and impartial jury trial. Therefore, litigants should continue to monitor the case on appeal. The opinion can be read here.

The IPLA subjects a manufacturer of “a product or a component part of a product,” I.C. § 34-6-2-77, to liability for physical harm caused by a manufacturer placing “into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer,” I.C. § 34-20-2-1. A product is defective under the IPLA if it is defectively designed, if it has a manufacturing flaw, or if it lacks adequate warnings about dangers associated with its use.

Rickey Brewer was a construction foreman killed when a semi driver backed up a semi with an integrated PACCAR glider kit, did not see Rickey, and pinned him against a trailer, killing him. His widow and his estate asserted an IPLA claim against PACCAR. The claim asserted PACCAR’s glider kit was defectively designed because it lacked certain safety features to reduce the danger inherent in its forty-foot blind spot. (If you drive a vehicle with a rear camera and sensors, you can probably attest to the peace of mind and safety such devices add to our everyday life). Here, because a design-defect claim is based in negligence, Brewer would need to be able to prove at trial that (1) PACCAR owed a duty to Rickey; (2) PACCAR breached that duty; and (3) the breach proximately caused an injury to Rickey. The only element at issue in the case was duty—whether PACCAR lacked a duty, as a matter of law, to install certain safety features.

The Court noted the IPLA does not differentiate between a final manufacturer and a component-part manufacturer. Both are “manufacturers” for purposes of the IPLA, so both have a duty “to design … products which are reasonably fit and safe for the purpose for which they are intended,”

Prior Indiana product liability case law established that a component-part manufacturer has no duty under the IPLA to include safety features when three conditions are met: (1) the end product has multiple anticipated configurations, (2) the end manufacturer determines which configuration the product takes, and (3) the different anticipated configurations prevent the component-part manufacturer from reasonably knowing whether and how safety features should be included with the part.

The Court in Brewer found the designated evidence indisputably demonstrated that PACCAR’s sleeper-cab glider kit has one reasonably foreseeable use—to be combined with an engine, transmission, and exhaust system into an over-the-road semi. There was also no reasonable dispute that an over-the-road semi with a sleeper cab was, at some point, going to be used in reverse, and that the glider kit—both as supplied and as integrated—had a forty-foot blind spot. So, unlike the prior cases finding no duty, in Brewer the multiple, anticipated end configurations did not leave the component-part manufacturer without a duty, as a matter of law, to include safety features necessary to adequately abate inherent dangers.

The Supreme Court reversed and remanded for further proceedings, holding that whether PACCAR owed the decedent a duty to include the features was a question for the trier of fact. Brewer demonstrates the potentially complex factual and legal issues that may arise out of a workplace injury or death. Such workplace or construction site injuries and deaths may give rise to a viable product liability claim. Pursuing such claims may help deter unsafe practices, prevent future tragedies, and provide justice for those injured or killed. Read the opinion here.

Punitive damages are a creature of common law and have been allowed for under certain circumstances by Indiana’s legislature under Indiana law. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003); Ind. Code §§ 34-51-3-0.2 to 34-51-3-6. While the purpose of compensatory damages is to make a plaintiff whole and otherwise value a plaintiff’s injury, punitive damages serve to deter and punish wrongful activity and behavior. Cheatham, 789 N.E.2d at 471.

What is the standard for obtaining an award of punitive damages in Indiana?

The facts supporting an award of punitive damages must be established by clear and convincing evidence, as opposed to a preponderance of the evidence standard. Id.; Ind. Code § 34-51-3-4. Plaintiffs must show by clear and convincing evidence that a defendant acted with malice, fraud, gross negligence (better termed willful and wanton misconduct), or oppressiveness, which was not the result of a mistake of fact or law, mere negligence, or other human failing. Wohlwend v. Edwards, 796 N.E.2d 781, 784 (Ind. Ct. App. 2003). We have written previously about the possibility that punitive damages could be awarded against a serial texting driver. And, unlike a plaintiff’s claim for compensatory damages, juries are not required to award punitive damages even if the facts that might justify an award are found. Cheatham, 789 N.E.2d at 472.

Can the legislature limit the types of claims in which punitive damages are available in Indiana?

Yes. Under Indiana law, punitive damages, while recoverable, are subject to restrictions as set forth by Indiana’s legislature, which has the authority to modify, restrict or eliminate punitive damages. Pohle, 789 N.E.2d at 472. Indiana’s legislature has eliminated punitive damages in some cases, as is the case in wrongful death claims and in claims against governmental entities. See, e.g., Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 757 (Ind. 2001) (excluding punitive damages under the general wrongful death statute); Ind. Code § 34-23-1-2 (excluding punitive damages in adult wrongful death actions); Ind. Code § 34-13-3-4 (“A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages.”)

What limits are placed on the recovery of punitive damages in Indiana?

Under Indiana’s current punitive damages law, punitive damages are capped at the greater of (1) three times the amount of compensatory damages or (2) fifty thousand dollars ($50,000). Ind. Code § 34-51-3-4. The law also contains an allocation of the money received in payment of a punitive damages award, with the person to whom punitive damages are awarded receiving only twenty-five percent (25%) of the punitive damages award with seventy-five percent (75%) of the punitive damages award going to the Indiana Treasurer of State to deposit such funds into the violent crime victims compensation fund established by Indiana Code § 5-2-6.1-40. Ind. Code § 34-51-3-6. Under the law, juries are not to be advised of either the limit on punitive damages or the way in which the money received in payment of a punitive damages award is to be allocated. Ind. Code § 34-51-3-3. The Indiana Supreme Court has upheld Indiana’s current punitive damages law against constitutional challenge in Cheatham v. Pohle, 789 N.E.2d 467 (Ind. 2003) and State v. Doe, 987 N.E.2d 1066 (Ind. 2013) (dealing with a lawsuit against clergymen for sexual abuse).

Has the Indiana Legislature considered changing Indiana’s law of punitive damages recently?

Indiana legislators in the most recent session proposed changes to Indiana’s punitive damages law, which included more of the punitive damages award allocation going to claimants, allowing a jury to be advised of the allocation requirements, and higher limits in cases involving sexual misconduct. However, the proposed legislation did not ultimately pass. Considering the restrictions in place to recover punitive damages in Indiana, Indiana injury lawyers and their injured victims must weigh the pros and cons of pursuing punitive damages, which in many cases can be cost-prohibitive.

What is mesothelioma? Mesothelioma is a rare type of cancer that often develops years after exposure to asbestos, which is a naturally occurring mineral used in a variety of products manufactured for various industries and still found in many old buildings where it has not been removed through abatement. Mesothelioma can take different forms in tissues lining certain of the body’s organs or cavities including pleural mesothelioma (mesothelioma occurring in the pleura aka lining of the lung), peritoneal mesothelioma (mesothelioma occurring in the peritoneum aka lining of the abdominal cavity), and pericardial (mesothelioma occurring in the pericardium aka lining of the heart).

Turning to the decision in Myers, the Court examined Indiana’s Product Liability Act as applied to cases of the mesothelioma-inflicted plaintiffs. Chapter 3 of the Indiana Product Liability Act sets forth the statute of limitations for product liability actions in Indiana. Section 1 of Chapter 3 applies to product liability actions generally and includes a two-year statute of limitations and a ten-year statute of repose. Section 2 of Chapter 3 applies to asbestos-related actions and also includes a two-year statute of limitations. However, Section 2, unlike Section 1, does not include a ten-year statute of repose.

The issue in Myers concerned the constitutionality of the general ten-year statute of repose as applied to asbestos-related actions that did not fall within the ambit of Section 2 because they did not involve claims against defendants who both mined and sold commercial asbestos. In AlliedSignal v. Ott, 785 N.E.2d 1068 (2003), the Indiana Supreme Court held that Section 2 only applied to asbestos claims against defendants who both mined and sold raw asbestos and did not apply to defendants who only sold asbestos-containing products. The consolidated appeals in Myers concerned claims against defendants who did not both mine and sell asbestos.

The Indiana Supreme Court in Myers refused to alter its previous holding in Ott but instead held that Section 2 of Chapter 3 of the Indiana Product Liability Act was unconstitutional under the Equal Privileges and Immunities Clause, Article 1, Section 23 of Indiana’s Constitution. The Court held Section 2 was unconstitutional because (1) it prescribed disparate treatment between asbestos victims injured by defendants who both mined and sold raw asbestos and asbestos victims injured by other defendants who, for instance, only sold asbestos-containing products and because (2) such treatment was neither reasonably related to the inherent characteristics of the disparately treated classes nor uniformly applicable and equally available to all persons similarly situated. Furthermore, because the legislature included a non-severability clause in Section 2, the Court invalidated all of Section 2 of the Indiana Product Liability Act.

The Indiana Supreme Court in Myers recognized that asbestos-related diseases such as mesothelioma often have long latency periods of more than ten (10) years, which would be barred if the ten-year statute of repose were to be applied. Since the Court invalidated Section 2 of the Indiana Product Liability Act, the issues in this case were then to be analyzed under Section 1. While Section 1 governing the statute of limitations in product liability cases includes a ten-year statute of repose, the Court in Myers applied its previous holding in Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989) and held that the statute of repose is inapplicable in cases involving protracted exposure to an inherently dangerous foreign substance, such as asbestos in these cases, which caused mesothelioma-related injuries and illnesses.

In summary, the Indiana Supreme Court upheld its prior interpretation of Section 2 of the Indiana Product Liability Act as set forth in Ott, invalidated and voided Section 2 of the Indiana Product Liability Act as unconstitutional, and held that the general ten-year statute of repose did not apply to claims arising out of protracted exposure to asbestos-containing products.

Even though mesothelioma claims are still legally viable claims in Indiana, there are still many obstacles to bringing a successful claim including identification of the asbestos-containing product exposure(s) and how long the mesothelioma patient or their estate may have waited since learning of the mesothelioma diagnosis, which delay can still create statute of limitations concerns. While getting the necessary medical treatment is paramount for any mesothelioma patient, finding an asbestos or mesothelioma attorney who can advise on the availability of a legal remedy for this devastating disease should also be given due consideration as, unfortunately, the medical costs associated with treatment can be financially devastating and the survival rates for persons diagnosed with mesothelioma are very disheartening.

The Myers decision can be found here.

In Indiana, a plaintiff must establish three elements to prove negligence on behalf of a defendant: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by failing to comply with the applicable standard of care; and (3) a compensable injury proximately caused by the breach of that duty. Under Indiana law, individuals must conform their conduct to that of a reasonable person under like circumstances. Summary judgment is appropriate when the defendant negates at least one of the elements of the plaintiff’s claim. While the element of breach is usually a question for the jury, where the relevant facts are undisputed and lead only to a single inference or conclusion, the court may determine as a matter of law whether the defendant breached a duty.

The defendant estate in this case claimed it was entitled to summary judgment on the element of breach because the vehicle driver could not be found to have acted unreasonably in causing the collision when he suffered a heart attack and was rendered unconscious. The plaintiff passenger argued that the defendant driver was negligent for driving in the first place given his medical condition. While the vehicle driver had recently suffered a prior heart attack and undergone treatment related to his heart condition, at the time of the collision, he had been cleared to drive by his medical providers. Based upon this evidence, the Court found that the passenger plaintiff failed to create a genuine issue of material fact as to whether the defendant driver’s sudden physical incapacity was reasonably foreseeable, so as to hold him negligent for driving in the first place.

The Indiana Court of Appeals declined to formally adopt or recognize a specific doctrine or defense of “sudden medical emergency” or “sudden loss of consciousness,” in cases where individuals are alleged to have caused a personal injury through negligence, as in the Court’s view, general negligence principals were sufficient to decide the issues in this case. The Court differentiated the “sudden emergency doctrine,” which Indiana has adopted, not as an affirmative defense, but as a definition of the conduct expected of reasonable persons in emergency situations.

Under the “sudden emergency doctrine,” a person confronted with sudden or unexpected circumstances calling for immediate action are not expected to exercise the same judgment of one acting under normal circumstances. To take advantage of the “sudden emergency doctrine,” a defendant must not have created or brought about the emergency through the defendant’s own negligence, the danger confronting the defendant must appear so imminent as to leave no time for deliberation, and the defendant’s apprehension of the danger must itself be reasonable.

The issue in this case was different than those under the “sudden emergency doctrine” because the issue in this case was not whether the defendant responded reasonably to an emergency situation, but rather whether a reasonable person in the defendant’s position would have changed his or her conduct before the medical emergency occurred based on his or her knowledge of the danger. Thus, just because your vehicle has been struck by another through no fault of your own, does not always mean you will be able to recover from the party who caused the car accident to occur through their loss of control over their vehicle if it was a result of a sudden medical emergency they had no reason to anticipate.

Read the full Indiana Court of Appeals opinion in Denson v. Estate of Delmer Dillard and Indiana Farmers Mutual Insurance Company here.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely and without denial; speedily, and without delay.

Similarly, Article I, Section 14 of the Kentucky Constitution provides:

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

In 1980 the Indiana Supreme Court upheld the constitutionality of the Indiana Medical Malpractice Act and its medical review panel requirements in the case of Johnson v. St. Vincent Hospital. In 2018 the Kentucky Supreme Court found its own law, which was substantially similar to Indiana’s law, unconstitutional in Kentucky v. Claycomb.

In Johnston the Indiana Supreme Court found that the constitutionally guaranteed “without delay” should be qualified when it comes to healthcare providers, because healthcare providers occupy a special place in our society according to the legislature. The Indiana Supreme Court noted then that “we do not sit to judge the wisdom or rightness of its underlying policies” when “dealing with the constitutionality of a statute of our state.” The Court observed the law’s aim to “preserve health care services for the community,” the “threatened loss to the community of health care services,” physicians purportedly being “totally unable to purchase insurance coverage,” surgeries being cancelled in rural areas, emergency services being discontinued at some hospitals, and healthcare providers “[becoming] fearful of the exposure to malpractice claims.”

In focusing on Indiana’s constitutional guarantee that individuals have a remedy for injury, the Indiana Supreme Court started with a discussion of a pronouncement by the Supreme Court of the United States that a person has no common law right to any rule of the common law. Presumably the Indiana Supreme Court was establishing with this discussion that the legislature, as opposed to the Court, has the right to decide the importance of an individual’s right when it comes to the common law right to a remedy in spite of the explicit guarantee contained in Indiana’s Constitution.

In marked contrast, the Supreme Court of Kentucky observed that while there is no federal common law right to seek redress for harm, there most certainly is a State right if a State chooses to guarantee one, noting “the law governing rights, duties, and liabilities between individuals with respect to the protection of ‘person, property, or reputation’ was deemed to be committed or reserved to the states.”

After noting that an individual’s right to seek redress is not absolute, the Indiana Supreme Court noted that there are already delays associated with legal process in court. Therefore, the further restrictions placed upon individuals to go through medical review panels before being allowed to proceed in court was “not so restrictive as to violate the right to access to courts guaranteed by Art. I, § 12 of our Constitution.”

The Kentucky Supreme Court saw it differently in Claycomb. The Court started its opinion with the importance and significance of the Kentucky Bill of Rights, noting “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.” The Court noted the medical review panel process was “a mandatory process to delay certain medical-malpractice claimants’ ability to access immediately the courts of the Commonwealth.”

With these two observations, the Court turned its focus solely to the right of redress guaranteed by the Kentucky Constitution. The Court noted that the guarantee applies to both the judiciary and the legislative branch of government and that to characterize the guarantee as only applying to the judiciary and not the legislature

is to ignore the common understanding of the original framers and the original meaning of the words they employed—all branches of government can oppress the people and such oppression must be guarded against.

Of importance to the Kentucky Supreme Court’s decision was Kentucky’s explicit constitutional guarantee and over-arching principle regarding legislation found in Section 28 of Kentucky’s Bill of Rights (originally Section 26):

To guard against transgressions of the high powers which we have delegated, WE DECLARE, that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to this Constitution, shall be void.

Interestingly, Indiana does not have the same explicit constitutional provision even if the Indiana framers were providing individual citizens with a “Bill of Rights.”

Ultimately, the Indiana Supreme Court implicitly decided that “without delay” means without unreasonable delay and that submitting claims to a medical review panel “is one reasonable means of dealing with the threatened loss to the community of health care services in this situation,” even if it adds further delay and prevents an individual from filing a lawsuit against a medical provider for many months, if not years.

Presumably, then, in Indiana it is theoretically possible that the construction industry, manufacturing industry, automotive industry, trucking industry, financial industry, and insurance industry could lobby the legislature to pass legislation allowing review panels for many other types of claims. Under the reasoning of the Indiana Supreme Court in Johnston, such a law should pass constitutional muster, so long as the law’s proponents could provide evidence that further restrictions on a Hoosier’s right to seek a remedy would be reasonable based upon the impact to the community and those industries of having to defend themselves against lawsuits.

With the strong pronouncement by the Kentucky Supreme Court in Claycomb, Kentucky citizens should be assured that their Court will strike down legislation that places any roadblock in the way of an individual wanting to seek immediate redress in court “without delay,” regardless of the inherent delays that may already be associated with seeking redress in courts.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.

Under the doctrine of fraudulent concealment, however, a defendant cannot assert the 2-year occurrence-based statute of limitations as a defense if the defendant, by deception or violation of a duty, concealed material facts from the plaintiff that prevented discovery of the malpractice.

If the concealment was passive, or constructive, which can result from mere negligence, then the statute begins to run when the patient-physician relationship ends, or until the discovery of the malpractice, whichever is earlier.

If the concealment was active, that is, involving affirmative acts of concealment intended to mislead or hinder the plaintiff from obtaining information concerning the malpractice, then the statute does not expire until a reasonable time after the plaintiff discovers, or with reasonable diligence could have discovered, the existence of the malpractice.

Similar to the doctrine of fraudulent concealment, defendants also cannot use the 2-year statute of limitations as a defense if a plaintiff did not know of the malpractice and resulting injury and had not discovered facts that, in the exercise of reasonable diligence, should have led to the discovery of the malpractice and resulting injury. When a patient does not know of, and could not have discovered, the malpractice and resulting injury within the 2-year statute of limitations, then the patient has two (2) years from the date of the discovery thereof to file.

However, if within the 2-year statute of limitations a plaintiff knows of the malpractice and resulting injury, or learns facts that, in the exercise of reasonable diligence, should lead to the discovery thereof, then the plaintiff must file within the 2-year statute of limitations or within a reasonable period of time after discovery thereof if a lawsuit could not have been filed in the exercise of due diligence within the 2-year period.

In this case, the plaintiffs were unable to establish fraudulent concealment by the defendant healthcare providers, or that they filed their lawsuits within the appropriate timeframe after they discovered, or could have discovered, the malpractice and resulting injury.

Barsumian Armiger has offices in Newburgh, Indiana, Evansville, Indiana and Fishers, Indiana, serving the greater Evansville and Indianapolis areas. In addition to handling medical malpractice cases, our injury lawyers handle cases arising from car accidents, truck accidents, motorcycle accidents, defective products, premise liability, and nursing home negligence.

The biggest concern for Valsartan users appears to be an elevated risk of cancer, although other concerns are possible organ damage or tumors. Nonetheless, and importantly, at this time, the FDA is warning those taking Valsartan do not stop taking the medication unless and until you have consulted with your prescribing physician. It is also important to note that not all Valsartan medication was contaminated with NDMA. The FDA has published a list of the recalled and non-recalled medications, which can be found here. Valsartan lawsuit lawyers will continue to monitor the information being developed by the FDA and companies participating in Valsartan recalls.

According to the FDA, taking the highest Valsartan does (320 mg) from the recalled batches daily for the full four years may increase the risk of cancer to the point one additional case of cancer occurs in the lifetimes of a hypothetical group of 8000 such Valsartan takers. This may seem like a relatively insignificant risk compared to the risks of developing cancer published by the American Cancer Society. However, this is additional risk and one additional case of this terrible disease is one too many and may very well warrant a Valsartan law firm to file a product liability or failure to warn lawsuit supported by admissible scientific and epidemiological evidence.

The FDA announced the original Valsartan recall on July 13, 2018. Since then, the FDA has been vigilant in posting updates to its website, as well as important information for those who have taken Valsartan. It is not currently known how soon certain NDMA-contaminated Valsartan manufacturers may have become aware of their product being contaminated. According to the FDA’s recalled-product list, those pharmaceutical companies recalling certain Valsartan products include Teva, Prinston, Solco, AvKARE (Teva / Actavis), Brant Ranch Prepack, H J Harkins, Northwind (Teva / Actavis) RemedyRepack (Prinston / Solco), A-5 Medication (Teva / Actavis & Prinston / Solco), Hetero Labs (Camber), NuCare (Prinston / Solco), Preferred (Hetero / Camber), and Torrent. But, as the investigation continues, if lawsuits are filed and information and documents are obtained from suppliers and manufacturers, the FDA and Valsartan lawyers will have much more information to review.

It can be a difficult decision for a company to decide when a product has reached the point of being potentially-defective and dangerous. However, given that NDMA has been found to increase the occurrence of cancer in animal studies, not recalling contaminated product would be unconscionable until more information can be obtained and reviewed by the government, medical and legal community. If you or a loved one has concerns about your Valsartan prescription, first consult with your physician. If after your consultation you are unable to alleviate your concerns or confirm you were taking a recalled Valsartan product, then it is important to consult with a lawyer or law firm handling Valsartan cases, especially if you have developed organ damage or cancer since beginning your Valsartan prescription, as legal claims can be time sensitive. If you would like to speak with one of our attorneys investigating Valsartan, call one of our offices today.