Articles Posted in Indiana

The Indiana high court ruled on Monday, agreeing that plaintiff’s claim in bike accident case should be dismissed against a local municipality because there is no liability if you get drunk and hit a pothole. I gotta tell you, I’m a personal injury lawyer but I have to agree with that one.

Plaintiff drove rode his bicycle to an Indianapolis bar and hung out long enough to get legally drunk. He drove home on the left side of the street, a violation of Indiana law, a hit a pothole on a downhill slope traveling at least 20 miles an hour. He suffered some injuries and was taken to the hospital, where his BAC was measured at .13.

No, I have no idea why I’m writing about this case. It is probably because I have a pro defense position which allows me to underscore my impartiality. But this was a crazy case.

The Indiana Supreme Court unanimously on Tuesday affirmed a trial court’s decision to reduce a wrongful death judgment consistent with the cap imposed by the Indiana Medical Malpractice Act.

The Indiana high court ignored the $64,000 question – the constitutionality of the act – by finding the constitutional challenge was not properly preserved for appeal because the plaintiff waived his right to do so. The reasons for it are pretty boring – Plaintiff supposedly did not notify the trial court of his intent to challenge the constitutionality of the cap before or during the trial.

So the Indiana malpractice cap lives on, for now, and will continue to impact the settlement value of malpractice cases. But there will be another reduced verdict in the near future and the court will be forced to face this issue head on.

The Indiana Supreme Court sent back to the trial court last week a wrongful death medical malpractice action involving the tragic death of a child after surgery for an undescended left testicle. The boy was just 13 months old. Just awful.

The issue in Alsheik v. Guerrero was something far less sad: prejudgment interest. This case went to trial and the jury awarded $1.165 million. The trial judge denied the plaintiff’s attorney’s request for pre-judgment interest. The plaintiff appealed this ruling.

In Indiana, for civil cases to qualify for prejudgment interest, the plaintiff must send a settlement letter. The purpose of the settlement letter is to give the defendant “notice of a claim and provide them with an opportunity to engage in meaningful settlement.”

Trying to tell the difference between a product and a service may not be harder than deciding if a glass is half full or half empty, or if a tomato is better characterized as a fruit than as a vegetable, but it is certainly not easy.”
Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998).

Is it a good or is it a service? This argument has been fought ever since the distinction between products’ cases and service arose. This distinction really mattered in a burn injury case in Indiana that was decided last week because the Indiana Product Liability Act does not apply to transactions that involve wholly or predominantly the sale of a service rather than a product. Barely, it would seem, a lawsuit against a maker of work shirts for burn injuries, allegedly caused because of the failure of a cotton uniform shirt to serve as expected, survived summary judgment last week in Indiana.

Here are the facts. Plaintiff was a welder/plasma torch operator who was operating a Pro Cut 80 plasma cutter made by the defendant. The Pro Cut 80 plasma cutter is used to cut through metal and steel. As you would expect, the plasma cutter fires off sparks when cutting metal. While using the plasma cutter, plaintiff’s shirt catches fire causing serious burns.

Plaintiff sued a number of folks, including the manufacturer of the shirts saying these shirts just shouldn’t catch fire like that because everyone knows what the people in these shirts are doing, and the defendant has an obligation to make them safe for the intended use. The plaintiff’s arguement that the negligence claim is not subject to the product liability act in Indiana because the relationship between the defendant and plaintiff’s employer was for the laundry service rather than the providing of work shirts.

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shutterstock_135614681You want to start off Monday with good news, right? But to get good news, there has to be good news. That’s the problem. Here’s some bad news for Indiana workers. The Indiana Department of Labor announced an increase – albeit small, thankfully – in fatal work accidents.

In 2011, occupational deaths rose to 122 from 118 in 2010. Statistically insignificant, sure, but if you ask me, we ought to be using technology and experience to get better. Viewed from that lens, having the same number of deaths year in and year out is going backwards. Thankfully, I think you are seeing that a little bit nationally. Fatal workplace accidents nationally dropped 2 percent in 2011 (4,609 deaths).

The Indiana Department of Labor report also found that the best way to get yourself killed on the job in Indiana is to operate at commercial vehicle – cars, trucks, forklifts and construction equipment. This is also a national trend: fatalities in private truck transportation rose 14% in 2011.

shutterstock_91783064A fatal school bus accident last week has prompted a lawsuit alleging unsafe conditions for the bus’ lack of seatbelts.

The details here are sad. The 60 year old school bus driver and a five year old little girl were killed in the crash. The bus, which struck a bridge, was carrying approximately 50 children, ages 5-16.

A suit has now been filed by the family of three of the injured children, with injuries ranging from a broken leg to claims of post-traumatic stress. The suit claims that the bus company failed to inspect the school bus for defective and unsafe conditions, including the lack of seatbelts, though a state police investigation determined that the bus was in fine working condition. The suit further alleges that the company failed to “discover, determine, and /or monitor the health conditions” of the school bus driver, though an autopsy revealed no signs of a medical condition that may have caused the driver to strike the bridge.

This is obviously only one of many more suits to come. The accidental death of anyone, especially a child, prompts frustration and anger, but I’m not sure how the unsafe claim for the bus’ lack of seatbelts will play out.

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Jury Verdict Research has come out with some new data that underscores how hard it is to rely on verdict statistics in a particular jurisdiction to prove how that venue values cases.

JVR found that the median compensatory award for personal injury trials in Indiana is $25,036 and injured plaintiffs recover damages in 57 percent of cases that go to verdict. This is different – in opposite ways – from the national data. The national median is approximately $40,000 and the nationwide plaintiff recovery probability is 9% less. To be sure, the differences are statistically significant. Are we to believe that juries in Indiana are trusting people who take plaintiffs at their word but just don’t think their claims are worth as much? (Actually, this is possible when you think about it.)
But the statistics get even crazier. Indiana awards twice as much for head injuries ($30,000 v. $15,000) as the rest of the country but then awards only half of the national median for shoulder injuries ($25,000 v. $49,418). It makes no sense, really.

Indiana juries are more likely to issue a plaintiffs’ verdict, at least according to a recent Jury Verdict Research report that found that plaintiffs win damages in 57% of Indiana jury trials. The median money award for personal injury trials in Indiana is $25,036.

The Indiana comparisons to the national data are interesting: plaintiffs receive damages in 48% of cases that go to trial. So Indiana is more likely to find for the plaintiff. But they award less: the national median is $40,000. (Remember, this is a median, not an average, which excludes, by definition, large verdicts.)
Statistics mislead – there are a thousand clichés to prove it. Interstate comparisons are even more challenging because they are based on results created by different variables. States with higher thresholds to get a jury trial in the first place should – on average – be higher. But these statistics are still interesting.

An Indiana federal court judge awarded $15 million to the family of a man who was killed in a truck accident in 2005 caused by a drunk driver. The award included $6.3 million in punitive damages.

The verdict is probably “not real” in that I doubt there is anything resembling enough money to pay the judge’s verdict. No lawyer appeared for the trucking company which means there is little chance of insurance coverage. But it sounds like this case set up like a classic bad guy truck driver and trucking company case. Not only was the truck driver drunk, but he had been driving longer than federal regulations allow. The trucking company did what happens more frequently than you think in truck accident cases (and, by the way, less frequently than you think in malpractice claims); they doctored their logs to conceal their violation of federal trucking law.

Making matters worse, the trucking company then started hiding assets and selling property right after the accident. This is one more dastardly example of truck accident lawyers defending insurance companies and advising – even publicly lecturing – trucking companies on creative ways to limit liability.

An Indiana jury has ordered a group of highway contractors to pay $10.2 million to the family of a worker killed in a 2006 construction accident. In Plaintiffs’ lawsuit, attorneys contended that the contractors were negligent for allowing workers to ride on an uncovered flatbed trailer and not requiring them to wear hard hats.

Not surprisingly, an attorney for the contractors said suggested Defendants intend to appeal the verdict.