The Indiana Court of Appeals has issued a decision that may have a large impact on summary judgment practice in Indiana. In Commr. of the Indiana Dept. of Ins. v. Black, ___ N.E.2d ___ (Ind. Ct. App. 2012), the Court essentially held that Indiana will apply the standard set forth in Celotex v. Catrett, 477 U.S. 317 (1986), at least in some circumstances.
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Tim Black alleged that Dr. Harris and others rendered negligent care to his wife after she complained of chest pain. The negligence allegedly resulted in severe cardiac arrest and resulted in the need for a heart transplant. The medical review panel unanimously concluded that Dr. Harris failed to comply with the applicable standard of care.

After the panel decision, Black filed a petition seeking payment of $1 million from the Patient's Compensation Fund and asserted that he had settled with Dr. Harris for $250,000, thereby satisfying the qualifying amount to get to the fund. The Commissioner sought discovery of the settlement agreement but Black refused to produce it, saying it was confidential. Black did produce a copy of an unauthenticated check in the amount $250,000 from the Medical Assurance Co., made payable to Black and his counsel. Black also produced some correspondence between counsel that discussed a prospective settlement.

The Commissioner moved to dismiss the petition claiming that he needed the settlement agreement in order to make payment. It was not clear from the check whether the payment was for settlement with Dr. Harris or other defendants. The trial court denied the motion to dismiss and after conducting a hearing on damages, ordered the Commissioner to pay Black $1 million. The Commissioner appealed.

In considering the motion to dismiss, the Court of Appeals observed that matters outside the pleadings were submitted in support of the motion to dismiss and were relied on by the trial court. In light of this fact, the Court of Appeals, pursuant to T.R. 12(B), treated the motion as one for summary judgment. In a footnote, the court recognized that T.R. 12(B) requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Although no such "opportunity" was given, the court found there was "no prejudice" and proceeded to consider the appeal as a summary judgment case.

The court noted that the Commissioner's position on the motion required him to prove a negative—-that there was no settlement with Harris for $250,000. In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), the Indiana Supreme Court rejected the view that a party seeking summary judgment could simply point to the opponent’s burden of proof at trial and prevail unless the non-movant produced evidence supporting its claim or defense. This ruling has for many years been perceived as being at odds with Celotex, in which the U.S. Supreme Court reached a different conclusion under the federal rules. In 2000, Justice Boehm, in dissenting from a denial of transfer in Lenhart Tool & Die, Inc. v. Lumpe, 722 N.E.2d 824 (Ind. 2000), expressed the view that a party who puts forward evidence that a non-movant will be unable to present evidence to prove an essential element of its claim or defense, should be entitled to summary judgment if the non-movant fails to present such evidence. In Black, the Court of Appeals held: "Today, we accept Justice Boehm's views on this subject expressed in his dissent."

Having adopted this new standard, however, the Court of Appeals found that in this case, based on the unauthenticated check and the settlement correspondence, there was a genuine issue of fact as to whether a $250,000 settlement on Black’s claim against Harris had been accomplished. So, the Commissioner was not entitled to summary judgment. Black was also not entitled to a judgment on his claim since it was not clear that the required settlement with Harris for $250,000 had been consummated.

The Court held that the Commissioner is entitled to discovery of the settlement agreement and that the confidentiality term in the settlement agreement would not trump the Commissioner's right to such discovery. The case was reversed and remanded for further proceedings.

http://www.indianalawupdate.com/entry/Proof-of-a-Negative-Not-Required-for-Summary-Judgment

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Today, the Indiana Court of Appeals issued a memorandum decision, uncitable as authority under App. R. 65(D), in which the Court disagreed over the extent to which admissions could be used against a party in a motion for summary judgment in Clark v. Clark, Cause No. 01A02-1007-CT-759. While the decision itself cannot be used as precedent, the disagreement is informative.

In this case, a father and son traveled in a car together to the home of another person. When they arrived, the son got out of the car to help the father parallel park. The son positioned himself in front of his father's vehicle, between it and another vehicle parked in the alley. When the father's vehicle was in the appropriate position, the son signaled for the father to stop by putting his hand up. The father hit the gas pedal instead of the brake, and the son was pinned between his father's vehicle and the parked vehicle. The son sustained serious injuries to his leg. He brought suit against his father for his injuries and the father asserted the Indiana Guest Statute as an affirmative defense.

The Indiana Guest Statute provides that people with certain types of relationships, such as father-son, cannot sue each other for injuries arising out of the operation of a motor vehicle if the person is "in or upon" the vehicle at the time of the injuries. During the course of the litigation, the son sent requests for admissions to the father. Two of those requests and responses are reproduced below.


19. On September 5, 2007, at the time of the collision, Robert L. Clark, Jr. was not in the Chevrolet.

RESPONSE: At the moment of impact the plaintiff was not in the Chevrolet, whether he was a pedestrian is genuine issue for trial and therefore denied.

20. On September 5, 2007, at the time of the collision, Robert L. Clark, Jr. was not upon the Chevrolet.

RESPONSE: At the moment of impact the plaintiff was not upon the Chevrolet, whether he was a pedestrian is genuine issue for trial and therefore denied.

Based on those responses, the son moved for summary judgment. The father filed a cross-motion and the trial court granted the father's motion.

On appeal, the father argued that the admissions were not dispositive of whether the son was in or upon the vehicle at the time of his injuries because that is a legal conclusion that the Court would have to make after applying the law to the facts. The Court disagreed, holding that admissions can be directed to legal conclusions, not merely facts.

The dissent found the admissions ambiguous, because of the qualification about whether the son was a pedestrian and because there were questions concerning whether "in" and "upon" have the same generic meaning as they do as a legal term of art.

The lesson here is that requests for admissions can be powerful litigation tools and we lawyers must be careful when responding to them. You may find out that you have admitted something inadvertently.

Lesson:

1.Even a qualified response to a request for admission can count as an admission.

Brad A. Catlin
Price Waicukauski & Riley, LLC

http://www.indianalawupdate.com/entry/Indiana-Court-of-Appeals-Disagrees-Over-Effect-of-Admissions

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The Supreme Court said on Monday it would decide if the largest sex-discrimination class-action lawsuit in U.S. history against Wal-Mart Stores Inc can proceed, a case involving women workers who seek billions of dollars in damages.

The nation's highest court agreed to hear an appeal by the world's largest retailer and the largest private employer arguing the claims of as many as 1.5 million current and former female employees were too diverse to proceed as a single class-action lawsuit.

The justices decided to review a ruling by a appeals court in California that upheld the class-action certification in the lawsuit alleging discrimination against every woman employed over the past decade at the company's 3,400 U.S. stores.

The Supreme Court is expected to hear arguments in the case, which immediately became the most important business dispute before the justices this term, in March, with a ruling likely by the end of June.

The ruling could affect other class-action lawsuits. Anthony Sabino, a professor of law and business at St. John's University in New York, said the case "will test the very limits of class litigation."

Bentonville, Arkansas-based Wal-Mart said in a statement it was pleased the court granted review in the important case and it looked forward to the court's consideration of the appeal.

Max Mizejewski received his undergraduate degree from the University of California at Berkeley in 1993. In 1997, Max graduated from Northwestern School of Law of Lewis and Clark College and went on to work in the public sector before entering private practice. As Manager of the Oregon Department of Transportation Environmental Unit, Max gained valuable experience negotiating, problem solving and working through confrontational issues with emotionally charged individuals. Max brings this experience to his private practice which focuses on criminal defense and family law.



Max believes in taking the time to understand each clients unique situation and specific needs. Max represents clients in criminal prosecutions, administrative hearings, dissolution of marriage, custody matters and appeals. Max's tenacious attitude and strategic mindset make him the right advocate to have on your side.

Mr. Mizejewski believes everyone's rights should be protected, and everyone deserves the best possible defense. If you have been charged with a criminal offense, you need to know your rights.  We can defend you against your criminal charges, including the following:

• Drunk Driving (DUII, DUI, DWI) - including underage drinking and driving, refusing a breathalyzer test, driving under the influence of drugs or alcohol, and other drug or alcohol related driving offenses
• Criminal Driving Offenses - including manslaughter, criminally negligent homicide, assault, hit & run, attempting to elude police, reckless driving and licensure issues
• Drug Crimes - including possession
  
  , delivery, and manufacturing of marijuana, cocaine, methamphetamine, heroin, designer drugs and prescription drugs
• Property Crimes - including theft, embezzlement, forgery, fraud, computer crimes and burglary
• Violent Crimes - including menacing, stalking and assault
• Stalking - including criminal offenses and civil actions

For more information about Oregon criminal law, Oregon criminal courts,  the criminal process, or to discuss your criminal charges with an experienced criminal defense attorney, please call 541-505-9872 or contact us online.

A Philadelphia court has awarded more than $4.5 million to a mesothelioma plaintiff and his wife of 57 years. Few mesothelioma plaintiffs live long enough to hear a final verdict in their cases, making the outcome of this reverse bifurcated trial especially significant.

Waters & Kraus, LLP, and the Shein Law Center, LTD, served as plaintiff’s counsel for former U.S. Navy engineman John Koeberle. The plaintiff was diagnosed with malignant pleural mesothelioma in April 2009. Under the reverse bifurcated system, Phase I requires a jury to first determine whether the plaintiff’s illness was caused by asbestos exposure. Neither the names of the manufacturers nor a suggested dollar amount for damages may be mentioned to the jury during this phase. According to Waters & Kraus attorney Demetrios Zacharopoulos, the team’s first order of business was to support the diagnosis of mesothelioma. Typically, the diagnosis is based on hard tissue samples, but Mr. Koeberle’s doctors advised that the physical risks associated with obtaining tissue samples from his lung were not in the plaintiff’s best interest. As a result, the diagnosis was made based on cytological examinations of fluids taken from Mr. Koeberle’s chest cavity — a diagnosis which was made by Mr. Koeberle’s treating physician and confirmed by Plaintiff’s medical expert Gordon Yu, M.D.

According to Mr. Koeberle’s testimony, his Naval duties from 1948 to 1957 included maintenance work on diesel engines, valves, and pumps requiring the replacement of asbestos-containing gasket and packing materials. Frequently, the removal of these materials involved scraping and wire-brushing, which generated conditions he described as “very dusty.” In addition, the process of inserting new gaskets and packing often involved cutting sheet material to fabricate a custom fit.

After a nine-day trial, the jury concluded that Mr. Koeberle’s exposure to asbestos was indeed a contributing cause of his mesothelioma. Mr. Koeberle was awarded $3 million under the Survival Act, and Mrs. Koeberle was awarded $1.5 million for loss of consortium, or deprivation of the benefits of a family relationship due to illness or injury.

The Phase II liability proceeding was a bench trial in which the court found John Crane Inc., the lone remaining defendant of seven original manufacturers in the case, liable for Mr. Koeberle’s illness under Section 402A’s strict liability rule. The plaintiff recalled seeing the name of the defendant and manufacturer, John Crane Inc., on the boxes he used while maintaining and repairing equipment for the Navy.

The judge ruled that Mr. Koeberle’s exposure to John Crane asbestos-containing gaskets and packing was a factual cause in the development of Mr. Koeberle’s mesothelioma. As a result, John Crane is liable for one-seventh of the amount of damages rendered by the Jury in Phase I.

Although Mr. Koeberle was too ill to be in the courtroom when the final decision was announced on June 3, WK attorney Demetrios Zacharopoulos said the plaintiff and his family are both pleased and relieved.

“These cases are never easy,” explained Mr. Zacharopoulos. “As with all of our cases, we pushed to expedite proceedings — and in this instance, Mr. Koeberle and his family were able to witness justice being rendered and having John Crane held accountable for its actions. They’re very pleased with the result, and they’re relieved that they can now move on and experience some closure.”

About Waters & Kraus, LLP
Waters & Kraus, LLP, is a plaintiffs’ firm concentrating on complex product liability and personal injury/wrongful death cases. The firm’s diverse practice includes toxic tort (asbestos and mesothelioma) litigation, pharmaceutical product liability, negligence, and consumer product liability, as well as qui tam (whistle-blower), and commercial litigation. With offices in Maryland, Texas, California, and Waters & Kraus has litigated cases in jurisdictions across the United States on behalf of individuals from all 50 states, as well as foreign governments.