Appellate Judge

Appellate attorneys may take it as a bad sign when their advocacy is described as "ostrich-like" by an appellate court and even worse when the court's opinion uses an unflaterring image like the one above to illustrate the point.

In a terse six-page opinion, Chief Judge Richard Posner of the U.S. Court of of Appeals for the Seventh Circuit criticized counsel for failing to address precedent directly applicable to the forum non conveiens issue presented in two appeals (addressed simultaneously by the Court). Judge Posner wrote:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. . . . Whatever the reason, such advocacy is unacceptable.

The ostrich is a noble animal, but not a proper model for an appellate advocate.

It is indeed difficult to imagine the reasoning underlying a strategy of ignoring applicable authority, whether cited by an opponent or not.  The Rules of Professional Conduct prohibit such a strategy, but beyond that it is poor advocacy. It may require thought and creativity, but in many instances plausible, if not meritorious, reasons can be articulated as to why existing precedent does not apply, or if all else fails, was wrongly decided.

The decision is in Monica Del Carmen Gonzalez-Servin, et al. v. Ford Motor Company, No. 11-1665, and was issued on November 23, 2011.

 What constitutes just cause for terminating an employee? The Indiana Court of Appeals recently decided that precise question. The Court assessed the employer’s attendance policy in order to determine if the employee was in fact terminated for just cause.

In P.M.T., Inc. v. Review Board of the Indiana Dept. of Workforce Development and L.A., No. 93A02-1105-EX-389, L.A worked as an ambulance dispatcher at P.M.T. P.M.T. had a strict attendance policy where an employee could only miss seven days in a twelve-month period, barring some narrow exceptions. In March 2010, L.A. requested leave through the Family Medical Leave Act (“FMLA) to take care of her terminally ill husband, which accumulated to six absences. After August 19, 2010, L.A. had two emergency absences; one was due to a personal health problem and the other occurred when she was informed by her son that her husband was lying unconscious on the floor at home. After that accident L.A. spent an additional two more days with her husband at the hospital. All of these absences exceeded her seven allowed under P.M.T.'s attendance policy. P.M.T. terminated L.A. due to excessive absences. The Administrative Law Judge awarded L.A. unemployment insurance benefits based on the unreasonableness of P.M.T.’s attendance policy and the insufficiency of evidence to prove that L.A. knowingly violated the attendance policy. P.M.T. appealed the ruling to the Review Board. The Review Board affirmed the Administrative Law Judge’s ruling.

P.M.T. argued on appeal that L.A.’s termination was for just cause because the attendance policy was reasonable and L.A. knowingly violated the attendance policy. Ind. Code § 22-4-15-1 requires “just cause for the termination if the employee is to be ineligible for unemployment insurance benefits.” The Review Board concluded that P.M.T.’s attendance policy was unreasonable because there were “no exceptions for verified emergencies or situations beyond the employee’s control.” The Court agreed and supplemented that personal and family health issues are considered valid reasons for missing work. As for the “just cause” issue, the Court stated that L.A.’s absences were a result of circumstances beyond her control and therefore there was not just cause for her termination. The Court affirmed the Review Board’s decision.

The Indiana Court of Appeals will hear oral argument on December 12, 2011, in a case of first impression in Indiana.  The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234, presents the novel question of whether a litigant can compel a non-party newspaper to disclose the identity of an internet user who posted an anonymous comment on the newspaper's website.

Jeffrey and Cynthia Miller allege they were defamed by anonymous user comments posted on the Indianapolis Star's website in response to 2010 news stories about a controversy involving a charitable project Mr. Miller had managed.  The Millers sued the charitable organization (Junior Achievement) and others for defamation in connection with Mr. Miller's ouster from the organization and sent nonparty discovery requests to the Indianapolis Star demanding that the paper identify anonymous authors of allegedly defamatory material posted on the newspaper's website.  (Under the Communications Decency Act, 47 U.S.C. sect. 230, the Star itself is immune from liability for defamatory material posted by third-party users of the Star's website.)  The Star objected to the subpoena, but the trial court ordered the Star to comply.

The Star's appeal will be heard by the following panel of Indiana appellate judges:  Hon. Carr Darden, Hon. Ezra Friedlander and Hon. Nancy Vaidik.  A decision could be expected by early 2012.

Maintaining medical records for a patient is within the scope of the Medical Malpractice Act. The Medical Malpractice Act generally requires that actions for medical negligence against health care providers must first be submitted to, and an opinion given by, a medical review panel before commencing an action in court.

In Howard Regional Health System, et al. v. Jacob Gordon, et al. , et al. No. 34S02-1009-CV-476, the plaintiff sought damages and moved for partial summary judgment for spoliation against a hospital for lost medical records. The trail court granted partial summary judgment by concluding that the defendant had a duty to maintain the records and their failure to maintain these records breached that duty under Indiana code section 16-3-7-1. The hospital appealed, arguing that maintaining medical records is within the purview of Medical Malpractice Act and thus a medical review panel must give is opinion before an action against the hospital may commence.

The Indiana Supreme Court reasoned that ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers. Thus, maintaining medical records falls inside within the scope of the Act and is considered a part of the practice of medicine. The Supreme Court also rejected the plaintiff's argument that it was asserting a third-party spoliation cliam, instead finding that the plaintiff's claim was essentially a first-party spoliation claim that is disallowed under Indiana law.

In an opinion dissenting in part and concurring in part, Judge Dickson was dissatisfied with the court’s view that the maintenance of medical records claim should be governed by the Indiana Medical Malpractice Act. Rather, the maintenance of records does not involve any exercise of professional medical judgment and thus should not be subject to the act.

In an action brought against a governmental entity, a complaining party must have suffered something more than a general concern or disagreement with a policy, the Court of Appeals held today. The holding extends to suits brought under Indiana statutes which expressly state who may bring a claim arising under the law.

In Klosinski v. Cordry Sweetwater Conservatory District, No. 07A01-1008-PL-429, the plaintiff complained that a county conservatory district was acting outside of its statutory duties and had failed to construct sanitary sewer facilities and keep the community lakes’ coves free of sediment. The plaintiffs lived within the district and the trial court found that they had standing to sue because “[t]he Klosinskis own property in the District; they and their property are subject to and affected by the District’s rules and regulations; and they pay assessments or fees for the services provided by the District.” After denying most of the plaintiff’s requests for injunctions, the trial court issued a general injunction against the conservatory, prohibiting it from establishing or enforcing any rule that does not further its statutory purpose, an issue the defendant conceded. Both parties appealed.

On appeal, the district challenged the plaintiffs’ standing to sue on the grounds that they had not been aggrieved by any actions of the district and the plaintiffs appealed the denial of several requested injunctions. In deciding the issue of standing, the Court of Appeals looked to the language of the statute which described the parties who may sue. The statute states that “[a]n interested person adversely affected by an action committed or omitted by the board in violation of this chapter may petition the court having jurisdiction over the district to enjoin or mandate the board.” After noting that no case had yet interpreted the phrase “[a]n interested person adversely affected,” the Court followed Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806 (Ind. 2004), which interpreted similar language in a different statute. The court in Huffman interpreted the phrase “aggrieved or adversely affected” and found that "to be ‘aggreived or adversely affected,’ a person must have suffered or be likely to suffer in the immediate future harm to a legal interest, be it a pecuniary, property, or personal interest.” After noting that the Klosinskis had identified “no specific controversy with the District,” the Court concluded that “[o]ur supreme court recognized in Huffman that general standing principles are inapplicable where a statute identifies who may pursue an administrative proceeding,” and that “[t]o be ‘adversely affected,’ the Klosinskis must have more than a generalized concern. They must identify a specific harm to a pecuniary, property, or personal interest. Simply arguing they are taxpayers is insufficient.” The Court reversed the trial court’s determination that the plaintiffs had standing to sue and affirmed its denial of injunctions.

In an opinion dissenting in part and concurring in part, Judge Baker expressed dissatisfaction with the Court’s determination that the plaintiffs were not an aggrieved party, as described in the statute, because as a resident of the district in question, they are directly affected by the actions of the conservatory and should be able to bring a claim against such an entity.

On Tuesday the Indiana Supreme Court reversed a Court of Appeals' decision that affirmed the granting of a new trial in a case involving a jury verdict that rewarded an accident victim damages for the costs of physical therapy sessions and initial medical consultations. In its opinion in Walker v. Pullen, No. 64S05-1101-CT-0006, the Supreme Court expressed the importance of a strict application of Indiana Trial Rule 56(J).

The case arose out of a car accident that occurred in the drive-through lane of a Dunkin’ Donuts in Valparaiso, Indiana, in which the defendant’s foot slipped off the brake pedal while in line and rear-ended the plaintiff’s car. Several days later, the plaintiff saw a doctor complaining of neck pain and had several treatments over the course of a few months. He wasn’t treated for neck pain again until three years later and there was conflicting testimony as to the relationship between the drive-through accident and the cause of the later pain. One expert testified that the pain could be related to the accident while another claimed that it was caused by walking on crutches after having unrelated knee surgery. The plaintiff sought damages of $25,000 and, while the jury ruled in his favor, it only awarded him just over $10,000 for “P.T. & inital [sic] medical assessment.” The plaintiff then filed a motion to correct error, citing that his physical therapy costs and medical assessments totaled $12,500. The trial court granted the motion and ordered a new trial on the issue of damages only. The Court of Appeals affirmed.

The Supreme Court, after granting transfer, reversed the decision and directed that the jury verdict be reinstated. The Court cited to Trial Rule 56(J), which states, “when granting a new trial because the verdict does not accord with the evidence, judges must ‘make special findings of fact upon each material issue…’” and “’[s]uch findings shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence….’” The trial court in this case granted the motion for a new trial because “it believed the verdict did not accord with the evidence.” This does not comply with the high standard of the rule that the verdict be “against the weight of the evidence” or that it was “clearly erroneous.” The Court made certain to explain the importance of giving due deference to the decisions of juries in this state, stating that the “arduous and time-consuming requirements [are] to assure the public that the justice system is safe not only from capricious or malicious juries, but also from usurpation by unrestrained judges.” Thus, because the jury could have reasonably believed that the damages granted were only those that were the result of the defendant’s negligence and that the remainder of the damages were unrelated to the accident, its verdict should be reinstated as the rule of the case.

On appeal from a bench trial judgment in favor of a purchaser who backed out of a condominium purchase because their inspection revealed that no power was being delivered to several outlets in the condo, the Court of Appeals reversed the trial court’s judgment and determined that the problem complained of did not constitute a major defect.

In Fischer v. Heymann, No. 49A04-1004-PL-231, the seller of a condo unit entered into a purchase agreement with a buyer that allowed for the buyer to conduct an inspection of the property before closing the deal and included that the buyer could terminate the agreement if it found what could be termed a “Major Defect” that the seller was unable or unwilling to remedy. After hiring an inspector and conducting the inspection, it was found that several outlets around the residence were not receiving power. The inspection report classified this problem as a “major concern” which was the highest level of alert on the report. The buyers presented the report to the seller who, through an agent, said that she would not be able to remedy to problem by the stated closing date and requested a two-week extension. The buyers did not grant the two-week extension and instead gave the seller several extra days to fix the problem. The day before the extension was to expire, the buyers entered into a new agreement with another seller and instructed their agent not to deliver their termination letter to the first seller until the extension period had ended. The seller eventually fixed the power issue in what turned out to be a minor repair but after receiving the termination letter, and sued the buyer for specific performance or, in the alternative, damages including attorney's fees and costs.

In its opinion, the Court of Appeals cited to the language in the contract, stating that termination could be sought for a “major defect” and determined that the buyers must have “reasonably believed” that the defect was major. The court held that the defect in the condo was not of the major variety and also held that the buyers were not able to claim that they held a reasonable belief because the inspection report, despite listing the power issue as a “major concern,” also stated that it might be easily fixed. Because the buyer did not hold a reasonable belief that there was a major defect, as defined within the contract agreement, the trial court’s decision was reversed and remanded to determine the seller's fees and costs.

In a dissenting opinion, however, Judge Brown focused on the fact that the seller did not remedy the issue until after the agreed upon closing date (and subsequent extension) had passed. Because the remedy did not take place within the time frame listed in the agreement, and because the contract also contained a “time is of the essence” clause, the dissent believed that the agreement should have been struck down and the trial court's decision should have been upheld.

In a medical malpractice action based on negligence, where a juror failed to initially disclose a potential bias but later admitted the possibility that one existed, the Court of Appeals held that, if a hearing is not granted at trial to investigate the juror’s prejudice, a new trial must ensue.

In Thompson v. Gerowitz, No. 49A05-1005-CT-296, a doctor was sued for the wrongful death of a patient after the doctor’s performance of a stem cell procedure. During voir dire, the process by which prospective jurors are questioned, attorneys for the doctor asked the pool of jurors if any among them held biases against medical professionals that would affect their decision-making processes. No juror spoke up during voir dire, but after voir dire had concluded and the trial court had announced the selected jury, a juror offered up the information that she was a widow and had tried to “go after the doctor for negligence.” The trial judge, after discussing this statement with the attorneys, referenced presiding over more than 250 jury trials and said “I think the jury is a good one, and I am sure it will be just fine for both sides . . . .” After trial, the jury returned a verdict for the plaintiff and the doctor appealed.

In its opinion, the Court of Appeals acknowledged that the juror’s statement “was specific, substantial evidence showing a juror was possibly biased,” and continued, “[a]t that point, it was incumbent upon the trial court to conduct a hearing, out of the presence of the remainder of the jury” to investigate further if the juror’s statement indicated bias and if such a hearing would itself create a bias in the juror. The trial court should have then allowed the doctor’s attorneys to challenge the juror for cause and declare a mistrial if bias was found. Because the trial court judge allowed the case to continue uninterrupted, the Court of Appeals remanded the case for a new trial.

     In insurance law, the insured has the initial burden to make accurate representations in the application.  If an insurance policy is issued, the insurer then has the burden to issue a policy with clear language and provide insurance according to the policy's terms.  Because the insurer is charged with writing an unambiguous policy, if a dispute between the insured and insurer turns on a term that is deemed ambiguous the policy is interpreted in favor of coverage. 

     In Allied Property & Casualty Ins. Co. v. Good, the Court of Appeals held that a policy is void ab initio and summary judgment should be entered in favor of the insurer when the insured makes a material misrepresentation on the application for insurance.  Specifically, the Court held:  "Because the uncontradicted evidence indicates Linda misrepresented the Goods' cancellation history on the application for homeowners insurance and Allied would not have issued the policy if it had known the truth about their history, the trial court erred by denying Allied's motion for summary judgment."

     Of note, Indiana appellate courts have stated that an ambiguity does not exist merely because the parties proffered differing interpretations of the policy language.  In this case, no ambiguity was found even though one of the three judges on the appellate panel interpreted the disputed language in the policy differently.  In dissent, Judge Bailey opined that the insured may not have provided misinformation in the application.  Judge Bailey further stated that, even if the insured provided misinformation, an insurer's use of a self-serving affidavit may not be sufficient to prove the materiality of the misrepresentation.

The Indiana Court of Appeals held, as a matter of first impression, that the definition of a “courthouse” for a notice statute can be a temporary courthouse in which the courts convene while a permanent county courthouse is undergoing repairs.

In August 2009, the Grant County Courthouse was undergoing repairs. Due to the repairs, the court was relocated to a temporary site. Around this time, Claudette Gee’s home was ordered into foreclosure. The Grant County Sheriff’s Department posted notice of the foreclosure on a bulletin board located next to the door of the temporary courtroom. A week after Gee’s property was purchased, Gee moved to set aside the sheriff’s sale. She argued that the sheriff’s office failed to post notice of the sale “at the door of the courthouse” as required by Indiana statute. The trial court denied Gee’s motion and Gee appealed to the Indiana Court of Appeals.

In Claudette Gee v. Green Tree Servicing LLC, No. 27A02-1003-MF-304, the issue on appeal was whether the sheriff followed the correct procedure when the sheriff posted notice of the sale at the temporary county court offices and not at the permanent county courthouse. The Court held that the sheriff complied with Indiana’s notice statute because a “courthouse” is defined as a place where judges convene to adjudicate disputes and administer justice. The Court relied on Black’s Law Dictionary for this definition, as it was not defined in a statute. Because the temporary courtroom was the place where three of the four county courts convened during renovations, the Court determined that the plain meaning of the statute also applied to temporary courtrooms. Therefore, the sheriff followed the proper notice procedure and the foreclosure sale was valid. The court noted, however, that Gee did not argue that the sheriff was required to post notice at both sites, and thus, the Court did not consider this issue. Affirmed.

           Our First Amendment right to express ourselves is one of our most cherished freedoms.  It is a right that is sometimes abused, but the law provides free expression ample breathing space to avoid stifling that right.

            The Indiana Supreme Court and the Indiana Court of Appeals recently addressed freedom of expression in two cases where it was claimed that speakers abused their free speech rights by making defamatory misstatements that harmed another person.

            In Dugan v. Mittal Steel USA Inc., No. 45S05-1002-CV-121 (June 17, 2010), the Indiana Supreme Court concluded that certain defamatory statements made about an employee during an employer’s investigation of the disappearance of company equipment were protected by a qualified privilege and therefore not a basis for the employee’s defamation claim.  Indiana law recognizes a “privilege” or legal protection in certain circumstances where it is particularly important as a matter of public policy to encourage speech.  When such a privilege applies, speakers are liable for defamation only if they knew their statement was false or had substantial doubt about the truth of the statement.

            In Dugan, an employee claimed she was defamed by a supervisor who told the company’s chief of security that the employee had defrauded the company and stolen its equipment.  The Supreme Court had no difficulty finding that the statements were defamatory per se, because they accused the employee of criminal conduct.  However, the Court recognized that the supervisor had a duty to cooperate with his company’s investigation of theft and report what he knew or heard to his employer.  It is sound public policy to encourage such communications and therefore Indiana law applies a privilege to protect and encourage those communications.

The employee argued that the supervisor’s statements should not be protected because they were based only on second-hand information he had received from others, rather than his direct, personal observation.  The Indiana Supreme Court expressly rejected that argument. The Court explained:

“It is unreasonable and contrary to sound policy for the common interest qualified privilege for intra-company communications about theft of company property to apply only for statements made on personal knowledge and to exclude the reporting of information received from others.”

It is not hard to imagine how an intra-company investigation of theft would be hampered if employees were not encouraged to report everything they knew or heard that could assist the investigation.   Application of the qualified privilege does not depend on the source of the speaker’s information, but rather whether the speaker “lacked any grounds for belief as to the truth of the statements.”

The Indiana Court of Appeals opinion in In re Paternity of K.D., No. 49A02-0907-JV-693 (June 29, 2010) addressed a different problem – under what circumstances may a Court order a person to refrain from speaking about a particular subject.  Government bans on speech are referred to as “prior restraints” because they seek to stop or silence people before they have expressed themselves.  Prior restraints are rarely appropriate under the First Amendment because they are in effect government censorship of expression.

In K.D., the court faced a harrowing situation involving allegations by a mother that her daughter had been sexually abused by her father.  The case involved a paternity action brought before the juvenile court.  Two different judges on two different occasions found the mother’s allegations of abuse against the father to be unsubstantiated.  After the second time the court rejected the mother’s allegations of abuse, she took her story to the press.  The mother repeated her allegations in a series of newspapers and harshly criticized the father's lawyer and the judges who handled the case.

In response to the articles, the father asked the court to find the mother in contempt for allegedly violating Indiana juvenile law by discussing the proceedings with the press.  The Indiana juvenile court declined to hold the mother in contempt, but the court did expressly bar the mother from talking any further with the news media or anyone else about the case.  The mother appealed from that order.

The Indiana Court of Appeals reversed the order as an overbroad and invalid prior restraint.  In doing so, the Court of Appeals applied the well-established First Amendment rule that:  “Any system of prior restraints of expression comes to the court bearing a heavy presumption against its constitutional validity.”  That rule was established in the famous “Pentagon Papers” case in which the United States Supreme Court struck down a court order prohibiting the New York Times from reporting information received from an informant about a top secret Defense Department study about the Viet Nam War.  New York Times Co. v. United States, 403 U.S. 713 (1971).

By George T. Patton, Jr. and Kellie M. Barr

      In May, the Indiana Supreme Court issued six civil opinions and granted transfer in two civil appeals. The Indiana Court of Appeals issued twenty-three published civil opinions, seven of which are briefly summarized in this column. The full text of each decision is available via Casemaker at www.inbar.org.    
 

INDIANA SUPREME COURT

Dispute between Internet marketing firm and company for website design is not for "goods and services" pursuant to Indiana's Article 2 of the Uniform Commercial Code and, under the facts of this case, the company could not sustain conversion claim for website's removal

      The Indiana Supreme Court tackled numerous issues of first impression to resolve a dispute between a company and an Internet marketing firm that created and hosted the company's website.  Conwell v. Gray Loon Outdoor Mktg. Group, Inc., 906 N.E.2d 805 (Ind. 2009). Although the parties fulfilled their obligations under their written agreement, the company later refused to pay for hosting fees and additional changes it requested to the website. The marketing firm sued the company for payment, and the company counterclaimed that the marketing firm committed conversion by taking down the original website for which the company had already paid.

      The Supreme Court first addressed whether Article 2 of Indiana's Uniform Commercial Code ("U.C.C.") or common law principles of contract law governed the parties' transaction. By applying the "predominant thrust" test to determine whether the transaction involved the transfer of goods or the performance of service, the Court held that "[a] website created under arrangements calling for the designer to fashion, program, and host its operations on the designer's server is neither tangible nor moveable in the conventional sense." Id. at 812. Because agreement of the parties "contemplated a custom design for a single customer and an ongoing hosting relationship[,]" the U.C.C. did not apply. Id.

      The Court examined the marketing firm's claim for payment under common law principles and determined that although the website modifications were not contemplated by the parties' original agreement, the company requested the changes without inquiring into the amount the changes would cost. The marketing firm's invoice was the only evidence submitted to the trial court regarding the reasonableness of the charges, and there was evidence that a representative of the company accepted the price after receiving the invoice. Because there was no evidence that the marketing firm "participated in an unconscionable effort to 'strong arm' [the company] into paying an unreasonable fee," the Court affirmed the trial court's decision to enforce the parties' agreement, even though the marketing firm had not provided a cost estimate. Id. at 813.

      Turning to the company's counterclaim that the marketing firm committed conversion by taking down the website for which the company paid, the Court analyzed how copyright law affected the legal status of the website. For the company's counterclaim to succeed, the website either had to be a "work made for hire" where the company was the original owner or the marketing firm had to have transferred ownership of the website to the company. The Court determined that the website was not a work made for hire because the marketing firm was an independent contractor, not the company's employee. The Court also concluded that language in the marketing firm's proposal that the company inherently owned the product was insufficient to transfer ownership of the website from the marketing firm to the company. The marketing firm did, however, have a nonexclusive license because the "parties intended to transfer a copyright, but failed to do so in writing." Id. at 816. Because a nonexclusive license is not an ownership interest under copyright law, however, the marketing firm did not commit conversion by removing the website, and the company's counterclaim failed.

      Concurring in result, Justice Boehm wrote separately to explain that, in his view, a website is "property" for the purposes of tortious or criminal conversion. Id. at 817. Although the company was a licensee that could not sustain a conversion claim, Justice Boehm emphasized that licensees are not without remedy. In this case, the marketing firm arguably "created the problem that the licensed code no longer existed" and "had no right to seize both phases [of the website design] as collateral for its unpaid work on the second phase." Id. 818-19. Although the company's damages were "a matter of speculation on this record," Justice Boehm noted that the company could have asserted breach of license as either an affirmative defense or set-off. Because it did not, he concurred with the majority's result.

Evidence of discounted payments healthcare providers accept from insurance carriers on behalf of injured plaintiffs can be introduced into evidence to determine the reasonable value of the services to the extent it can be done without referencing insurance

      The Indiana Supreme Court confronted "the question of how to determine the reasonable value of medical services when an injured plaintiff's medical treatment is paid from a collateral source at a discounted rate." Stanley v. Walker, 906 N.E.2d 852, 855 (Ind. 2009). In an opinion authored by Justice Sullivan, the Court held that evidence of a healthcare provider's acceptance of a reduced amount of compensation for services provided to a plaintiff may be introduced to help a jury determine the reasonable value of the services "[t]o the extent the discounted amounts may be introduced without referencing insurance." Id. at 853. The Court analyzed Indiana Rule of Evidence 413 and the "complexities of health care pricing structures[, which] make it difficult to determine whether the amount paid, the amount billed, or an amount in between represents the reasonable value of medical services." Id. at 857. Ultimately, the Court held that Indiana's collateral source statute does not bar evidence of discounted payments accepted by healthcare providers to determine the reasonable value of services. "Given the current state of the health care pricing system where . . . authorities suggest that a medical provider's billed charges do not equate to cost, the jury may well need the amount of the payments, amounts billed by medical providers, and other relevant and admissible evidence to be able to determine the amount of reasonable medical expenses." Id. at 858. 

      Justice Dickson authored a dissenting opinion, joined by Justice Rucker, arguing that the majority's rule "contravenes the express requirements of the collateral source statute." Id. at 860 (citing Ind. Code § 34-44-1-2). The dissent also disagreed that the collateral source statute abrogated the common law collateral source rule because "the statute's precise language appears to create a limited exception to the common law rule, which is otherwise left intact." Id. at 862. "Under today's new rule, the existence and extent of any improvement to the accuracy of verdicts seems overwhelmed by the significant probability of incompleteness, confusion, and resulting unfairness, all further compounded by detrimental effects on the fairness and efficient administration of justice." Id. at 865.

      Justice Boehm, joined by Chief Justice Shepard, wrote separately to respond to points made by the dissent and emphasized that "we hold today only that the discounted price actually paid for medical services is admissible evidence as to the reasonable value of those services. We do not hold that it is conclusive." Id. at 859.

Although claim against mother's estate was timely, daughter failed to rebut presumption that services rendered to her incapacitated mother were gratuitous because no evidence that daughter had an express or implied contract with mother's guardian

      The Indiana Supreme Court unanimously reversed the trial court's denial of an estate's motion for summary judgment on a daughter's claim against her mother's estate for reimbursement for various expenses and personal services that the daughter rendered to her mother while the mother was subject to a guardianship. Estate of Prickett v. Womersley, 905 N.E.2d 1008 (Ind. 2009). First, the Court addressed the Estate's argument that the daughter's reimbursement claim was time-barred because she had not filed her claim in the guardianship proceeding. Interpreting the Guardianship Code, the Court held that Indiana Code § 29-3-10-1(d) does not require a claim to be filed against the guardianship estate and "in the absence of legislative direction mandating a guardian's approval, we are apprehensive of the administrative and other practical consequences of ordering a guardian's review of all claims filed in a probate estate that accrue during a decedent's guardianship." Id. at 1012. Therefore, the daughter's claim for reimbursement was not time-barred because she was not required to pursue it in the guardianship proceeding and she properly filed it against her mother's estate.

      The Court reaffirmed the rebuttable presumption that services rendered by a family member are gratuitous. Although the daughter designated evidence that her mother signed a statement in front of two witnesses that she wanted her estate to compensate her daughter for her services, the Court held that the mother could not enter into a contract at the time she executed the statement and, consequently, "when the provider is a family member the implied contract must exist between that person and the incapacitated person's guardian." Id. at 1013. Because the daughter failed to produce evidence that she had an express or implied contract with her mother's guardian, she failed to rebut the presumption that her services were gratuitous as a matter of law.

An insurance company's policy was consistent with Indiana's uninsured motorist statute and insureds were not entitled to uninsured motorist benefits for the death of their unmarried adult son because they did not suffer bodily injury

      The Indiana Supreme Court unanimously held that named insureds who brought an action against their automobile insurer to recover uninsured motorist benefits for the death of their unmarried adult son were not persons "legally entitled to recover damages" for their son's death. Bush v. State Farm Mut. Auto. Ins. Co., 905 N.E.2d 1003, 1008 (Ind. 2009). For purposes of its uninsured motorist coverage, the parents' insurance policy defined "insured" to include the named insureds and their relatives, which were defined as related persons primarily residing with the named insureds. Because their adult son no longer lived with his parents, he was not an insured under his parents' policy.

      The insured parents argued that they were entitled to uninsured motorist benefits because their policy was inconsistent with Indiana's uninsured motorist statute-Indiana Code § 27-7-5-2-and, thus, unenforceable. The Court disagreed and emphasized that "the statute itself makes clear that it contemplates uninsured motorist coverage only for the 'insured's' bodily injury." Id. at 1005. The insurance company's policy was "consistent with the uninsured motorist statute by requiring that the insured sustain bodily injury to trigger uninsured motorist coverage." Id. Reaffirming a previous holding, the Court held that the definition of bodily injury includes emotional distress "only if it arises from a bodily touching." Id. (citing State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008)). "Indiana's uninsured motorist statute requires coverage only for bodily injuries sustained by an insured." Bush, 905 N.E.2d at 1007-08. Because the parents did not suffer bodily injury, they did not have uninsured motorist coverage for their adult son's death.

For purposes of the Family and Medical Leave Act, the 1250-hour requirement applies to an employee's overall service, not service in any particular position, and a trial court's exercise of equitable jurisdiction to award an employee front pay had to be discounted to reflect present day value

      The Indiana Supreme Court addressed issues of first impression surrounding a full-time teacher, part-time football coach's claims against his school corporation employer under the Family and Medical Leave Act ("FMLA"). Gary Cmty. School Corp. v. Powell, 906 N.E.2d 823 (Ind. 2009). Although the school reinstated the employee to his full-time teaching position after his medical leave, it did not reinstate him to his head coaching position. Additionally, the school rejected him as head football coach in subsequent years, which the teacher argued was retaliatory conduct for comments he made to a local newspaper regarding the school's failure to restore him to his coaching position following his medical leave.

      The Court held as an issue of first impression that "an employee filling multiple positions with the same employer is eligible for FMLA leave as to all positions if that employee has completed 1,250 total hours of service to that employer in the twelve months preceding the request for leave." Id. at 828. As the Court noted, "the test for [FMLA] eligibility is phrased in terms of 'hours of service' to an 'employer,' not service in any particular position." Id. Therefore, because the 1,250-hour requirement applies to an employee's overall service, the school corporation was required to reinstate the employee to both the full-time teaching position and the part-time coaching position. Additionally, the Court concluded that the employee presented sufficient evidence to support the jury's conclusion that the school corporation retaliated against him for voicing his complaints to a local newspaper, which were not permissible grounds for retaliation under FMLA.

      The school corporation presented numerous arguments challenging the trial court's award of damages. As an issue of first impression, the Court concluded that although the trial court did not abuse its discretion by exercising equity jurisdiction and awarding front pay, "front pay should be discounted to present value. Without discounting, [the employee] would receive a windfall in the form of the use of the money years before it would have been earned." Id. at 834. The Court remanded the action to the trial court to discount the front pay award to present day value, but otherwise affirmed the trial court in all respects.

Employees' damages award for backpay after employer's violation of Indiana Civil Rights Act should not have been reduced by amount of unemployment benefits received

      Two employees filed a complaint with the Michigan City Human Rights Commission ("Commission"), alleging that their employer violated the Indiana Civil Rights Act when it discriminated against them on the basis of race and terminated them for timecard fraud. Filter Specialists, Inc. v. Brooks, 906 N.E.2d 835 (Ind. 2009). The Commission concluded that race was the motivating factor behind the firings and awarded the employees damages for backpay and fringe benefits. The Indiana Supreme Court concluded that the employees proved their claim even though they did not introduce evidence of the ordinance establishing the Commission because the ordinance "has no bearing on whether [the employer] discharged [the employees] on the basis of race in violation of the Indiana Civil Rights Act." Id. at 845. Additionally, the employees presented substantial evidence to support the Commission's conclusion that they had suffered unlawful discrimination, even though there was "no smoking gun" regarding the employer's mental processes. Id. at 848.

      Regarding damages, the Court agreed with a majority of federal circuit courts that "unemployment benefits should not be deducted from backpay awards in discrimination cases." Id. at 849. Consequently, the trial court erred by ordering the case remanded to the Commission because "the damages awarded to [the employees] should not have been affected by their receipt of unemployment compensation." Id. at 850.

INDIANA COURT OF APPEALS

> Father had independent cause of action against Indiana Patient's Compensation Fund for negligent infliction of emotional distress after he witnessed the death of his son, which was caused by the negligent conduct of healthcare providers. Ind. Patient's Comp. Fund v. Patrick, 906 N.E.2d 194 (Ind. Ct. App. 2009).

> Oral findings and conclusions that are "thoroughly detailed in the record" satisfy the purpose of special findings under Indiana Trial Rule 52(A). Nunn Law Office v. Rosenthal, 905 N.E.2d 513 (Ind. Ct. App. 2009). Additionally, an attorney employed under a contingency fee contract who is discharged prior to occurrence of the contingency is limited to quantum meruit recovery. 

> Trial court should have granted party's request for a hearing on motion to change venue pursuant to Indiana Trial Rule 75(A) because of conflicting evidence and the lack of evidence regarding the location of plaintiff's principle office. Painters Dist. Council 91 v. Calvert Enter. Electronic Servs., Inc., 906 N.E.2d 254 (Ind. Ct. App. 2009).

> The Indiana Motor Vehicle Protection Act, commonly known as the Lemon Law, "obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt." Metro Health Profs., Inc. v. Chrysler, LLC, 905 N.E.2d 1026, 1033 (Ind. Ct. App. 2009). Once a consumer has met the four-repair requirement and files a claim shortly after the fourth attempt, as a matter of law, the automobile manufacturer is obligated to either refund the amount the buyer paid or provide a replacement vehicle of comparable value.

> Employee's claim against political subdivision employer is governed by the three-year statute of limitations contained in the Federal Employers' Liability Act instead of the two-year statute of limitations governing Indiana personal injury claims. Januchowski v. N. Ind. Commuter Trans. Dist., 905 N.E.2d 1041 (Ind. Ct. App. 2009).

> Bureau of Motor Vehicles' policy of revoking driving privileges after class members whose recorded personal information did not match information on file with the Social Security Administration violated federal due process because the BMV failed to articulate ascertainable standards for current identification holders. Leone v. Ind. Bureau of Motor Vehicles, 906 N.E.2d 172 (Ind. Ct. App. 2009). The policy did, however, have the rational basis of preventing identity theft, and the trial court properly denied the class members' request for a preliminary injunction because the class failed to show an injunction would be in the public interest. 

> Jim Mansfield was initially declared the winner of the Muncie mayoral election but his opponent, Sharon McShurley, was declared the winner after a recount. Mansfield v. McShurley, --- N.E.2d ---, No. 18A02-0804-CV-375 (Ind. Ct. App. 2009). The trial court dismissed Mansfield's statutory challenge to the election as well as his amended complaint asserting a quo warranto action. On appeal, the Court of Appeals held that a statutory contest action "may not be brought outside the statutorily prescribed time frames even if, as in the case before [the Court of Appeals], the election result changes by virtue of a recount." Additionally, the trial court did not err by dismissing the quo warranto complaint because the recount commission did not act unlawfully by declining to count certain absentee ballots.

TRANSFER ORDERS

> Babes Showclub v. Lair, 901 N.E.2d 44 (Ind. Ct. App. 2009) (whether a police officer's claims for injuries he suffered responding to a complaint on the club's premises were barred by the Fireman's Rule), transfer granted on May 7, 2009.

> Ind. Family & Soc. Servs. Admin. v. Meyer, 900 N.E.2d 74 (Ind. Ct. App. 2009) (whether the trial court had discretion to respond to procedural error by granting a belated extension of time), transfer granted on May 14, 2009.

      George T. Patton, Jr., is a partner at Bose McKinney & Evans LLP, Indianapolis/Washington, D.C. and co-chair of its Appellate Group. He was the first chair of the ISBA Appellate Practice Section, served as an Adjunct Assistant Professor of Appellate Advocacy and Procedure at the Indiana University School of Law-Bloomington for five years, and has written four articles on recent developments in Indiana appellate procedure for the Indiana Law Review. George's book on the 2001 Indiana Appellate Rules is 24 Indiana Practice-Appellate Procedure (3d Ed. West Publishing Co. 2001 & 2006 Supp.). 

      Kellie M. Barr is an associate at Bose McKinney & Evans LLP, Indianapolis, and works on business, commercial, and appellate litigation. Upon graduating from the Indiana University School of Law-Bloomington, Kellie served as a law clerk to Chief Judge John G. Baker at the Indiana Court of Appeals. Kellie is the co-author of an article on recent developments in Indiana appellate procedure to be published in the Indiana Law Review later this year.

By Steven M. Badger

Whether a law suit involves a zoning dispute, property appeal or business litigation question, the Indiana law firm handling the matter must be familiar with the unique procedural aspects of Indiana law.  Two decisions issued this week by the Indiana Appellate Courts focus on questions of Indiana procedure when a property owner initiates a court challenge to a decision by a local Board of Zoning Appeals.
 
In Thomas v. Blackford County Area Board of Zoning Appeals and Oolman Dairy, LLC, the Indiana Supreme Court affirmed the trial court's conclusion that Thomas, a property owner who remonstrated against locating a confined animal feeding operation one-third of a mile from Remonstrator Thomas' property, failed to show she had standing to challenge a Board of Zoning Appeals' ("BZA's") decision granting a special exception for the feeding operation. 
 
The standing question itself and the Indiana Supreme Court's affirmance of the trial court's findings are neither novel nor surprising to an Indiana appellate lawyer.  The interesting aspect of the decision is the Supreme Court's approval of the procedure followed by the trial court to reach the result.
 
The question of Thomas' standing was first raised by the owner of the feed operation in a motion to dismiss under Indiana Trial Rule 12(B)(6).   The trial court correctly denied that motion because it was based on matters outside the four corners of the Complaint.  The trial court, nevertheless, held an evidentiary hearing on the question of whether Thomas had standing as an aggrieved party.  Based on the testimony and evidence at the hearing (principally relating to the impact of the feeding operation on the value of Thomas' property), the trial court determined that Thomas failed to establish she had standing to challenge the BZA's decision.

The decision was first reviewed by the Indiana Court of Appeals, which reversed the trial court's decision.  The Court of Appeals reasoned that the trial court should have treated the Motion to Dismiss as a Motion for Summary Judgment.  See Ind. Trial Rule 12(B) (when "matters outside the pleading are presented to and not excluded by the court" on a motion under Rule 12(B)(6), "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.").  That procedural determination by the Court of Appeals was outcome determinative because the evidence as to Thomas' standing (i.e., the impact the feeding operation would have on her property's value) was conflicting, thereby creating genuine issues of material fact.

The Indiana Supreme Court granted transfer, vacated the Indiana Court of Appeals decision, and affirmed the trial court's decision finding Thomas lacked standing.  The Indiana Supreme Court agreed with the trial court and Court of Appeals that dismissal was not appropriate under Indiana Trial Rule 12(B)(6).  However, departing from the Court of Appeals' analysis, the Supreme Court concluded that the procedure for summary judgment under Trial Rule 56 did not apply.  Instead, the Supreme Court compared the situation to a motion to dismiss for lack of personal jurisdiction in which a trial court may hold an evidentiary hearing to determine the jurisdictional question.  Thus, the Supreme Court approved of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether the Plaintiff had standing based on the conflicting evidence presented.
 
There is no specific provision in Trial Rule 12(B) that the Indiana Supreme Court relied upon in holding that the trial court may determine the Plaintiff's standing on a motion to dismiss.  Implicit in that result is the notion that standing is a legal issue for the judge, not the jury, to decide.
 
A novel procedural issue was also addressed in Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Indianapolis-Marion County.  In Edward Rose, an apartment owner challenged the Indianapolis-Marion County BZA's denial of a variance sought by the apartment owner to maintain a pole sign on the premises of the apartment complex.  Like Thomas, the decision is noteworthy for the Indiana property law attorney not because of the Court's conclusion that the variance was properly denied to the apartment owner, but rather for the Court of Appeals' dictum regarding the procedure followed by the trial court.
 
Specifically, the Indiana Court of Appeals addressed under what circumstances a landowner who had unsuccessfully petitioned for a variance in the local BZA may challenge that decision based on evidence the landowner failed to offer in the zoning hearing.  The issue hinged on an Indiana statute that provides in relevant part:  "If the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but the review may not be by trial de novo."  Indiana Code section 36-7-4-1009.  The apartment owner sought to buttress its case in court with testimony and evidence that had not been submitted to the BZA.  The trial court admitted that testimony and evidence, but ruled nevertheless that the BZA's decision was not clearly erroneous or illegal.
 
Although the Indiana Court of Appeals affirmed the trial court's decision on the merits finding no clear error in the BZA's decision, the Court disagreed with the trial court's decision to hear new evidence offered by the apartment owner.  The Indiana Court of Appeals reasoned that allowing the apartment owner to present new evidence was "tantamount to conducting a trial de novo" -- in essence relitigating the merits of the variance petition from scratch.  Such an approach would directly violate Indiana Code section 36-7-4-1009's proscription that the trial court's review of BZA decisions "may not be a trial de novo."
 
The Indiana Court of Appeals elaborated to provide guidance in future cases by listing circumstances when it may be appropriate for a trial court reviewing a BZA decision to consider new evidence.  Such situations arise, for example:
 

1) when the record before the BZA is incomplete because the aggrieved party was refused an opportunity to be fully heard or the BZA excluded relevant evidence;

 2) when good and sufficient cause is shown for the failure to have offered the evidence to the BZA;

 3) when the record presented to the trial court does not contain all the evidence actually presented to the BZA;

 4) when the BZA’s record fails to present the hearing in sufficient scope to determine the merits of the appeal; and 

 5) when new evidence is discovered after the BZA’s proceedings.

An Indiana litigation law firm's understanding of Indiana procedure can be as important as knowledge of the substantive law in obtaining a positive outcome in Indiana litigation matters.  The Indiana appellate decisions summarized above guide Indiana lawyers on important procedural questions in Indiana property appeals.

by Steven M. Badger

In all litigation, but particularly in Indiana business litigation, it is important for the litigants to know the reasons for the judge's decision on the merits of the dispute.  Those reasons also become a focal point in any appeal to the Indiana appellate courts.  Indiana Trial Rule 52 serves these purposes by requiring that upon the timely written request of any party, "the court in all actions tried upon the facts without a jury or with an advisory jury . . . shall find the facts specially and state its conclusions thereon."

In Nunn Law Office v. Rosenthal, the Court of Appeals of Indiana addressed whether Trial Rule 52(A) is satisfied when a trial court makes findings orally rather than in writing.  At issue was the share of plaintiff's attorney fees that should be paid to the attorney who originally filed a personal injury action, but who was discharged by the plaintiff before the case was resolved.

The Court of Appeals observed that nothing in Trial Rule 52(A) specifies that the trial court's findings and conclusions must be in written form, although the Court of Appeals notes that written findings and conclusions are preferred.  Further, the Court reasoned that oral findings and conclusions serve the purposes of Trial Rule 52(A) "so long as they are thoroughly detailed in the record."  Therefore, the Indiana appellate court held that the trial court's failure to enter written findings and conclusions, in and of itself, does not constitute reversible error.

As to the sufficiency of the trial court's oral findings, the Indiana appellate court determined that the trial judge's oral explanation of how she determined the amount of attorneys' fees awarded to co-plaintiff's counsel was sufficient.  Among other things, the trial judge stated the number of hours, billable rates and service descriptions of the professional services for which the fees were earned.

Finally, the Court of Appeals affirmed the trial court's use of a quantum meruit or equitable measure to determine the amount of the fees, rather than a contingency basis, because the fee contract in question failed to specify the measure of fees upon a pre-contingency termination of the representation.

This aspect of the case relating to how the fee award was determined, however, merely reaffirms existing Indiana law.  The real lesson for the Indiana appellate lawyer is that a trial court's failure to enter written findings and conclusions even when properly requested may not constitute reversible error if the trial court stated somewhere in the record the reasons for its decision.

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Per Curiam.

This matter comes before the Court as a result of judicial disciplinary actions initiated on April 9, 2008, by the Indiana Commission on Judicial Qualifications ("Commission") against Grant W. Hawkins, Judge in the Marion Superior Court, Criminal Division 5 ("Court 5") and against Nancy Broyles, a Commissioner serving in Court 5. Judge Hawkins and Commissioner Broyles are charged with various violations of the Code of Judicial Conduct arising out of excessive delays in issuing rulings on prisoners’ petitions for post-conviction relief, which in one case resulted in a prisoner’s incarceration being unnecessarily prolonged by nearly two years, and other issues that arose during the Commission’s investigation of these delays.

Conclusion (slip op. at 22):  Because a majority of the Court favors a suspension without pay for a period of at least sixty (60) days, that is the effective disposition reached today in this matter.

Key Analysis (slip op. at 11, 13):  As to Judge Hawkins, the Masters found that his "handling of PCR cases in general and the Buntin case in particular caused not only personal harm to Buntin, it brought disrespect to the judiciary as a whole and caused the public to lose confidence in our courts" . . . The Masters faulted Judge Hawkins for failing to correct the misimpressions he and his staff gave to the Commission and for failing to give Buntin, the Commission, and the public an accurate and complete accounting of what happened in the Buntin case, including what exactly caused the almost two-year delay in ruling. The Court concurs with the Masters on these points.

Shepard, Chief Justice, dissenting:  "A suspension of sixty days without pay is not an adequate sanction for a judge whose disorganization and indifference caused a man wrongly to sit in prison for two years . . ."

Sullivan, Justice, dissenting:  "I believe that Judge Hawkins should be suspended from office for one year . . ."

Boehm, Justice, dissenting:  "In my view a thirty day suspension is a very substantial sanction and the most that these facts warrant . . ."

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Per Curiam.

This matter comes before the Court as a result of a judicial disciplinary action brought by the Indiana Commission on Judicial Qualifications ("Commission") against Respondent herein, Thomas J. Felts, Judge in the Allen Circuit Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter.

Conclusion (slip op. at 2):  Thomas J. Felts, Judge in the Allen Circuit Court, is hereby reprimanded.

Key Anlaysis (slip op. at 2):  Respondent and the Commission have agreed that driving with a blood alcohol concentration of 0.15 constitutes a violation of Canons 1(A) and 2(A) of the Code of Judicial Conduct, and that Respondent has violated these Canons. The parties have also agreed that Respondent has cooperated with the Commission throughout these proceedings, and that the appropriate sanction under the circumstances of this case is a public reprimand.

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Appellants-defendants Larry Cox and Tube City, LLC d/b/a Olympic Mill Services (collectively, "Tube City"), appeal from the trial court‘s judgment holding Tube City liable for negligence and ordering it to pay $4,126,529 in damages to appellee-plaintiff Allen Matthews. Specifically, Tube City argues that the trial court erred by allowing the expert testimony of Anthony Gamboa, Ph.D. In addition, Tube City maintains that the jury‘s verdict and allocation of damages is clearly against the weight of the evidence. Furthermore, Tube City asserts that the trial court improperly instructed the jury regarding the absence of Cox and documents relating to Cox‘s employment. Finally, Tube City maintains that the trial judge was improperly appointed in violation of the Indiana Trial Rules.

Conclusion (slip op. at 2):  Finding no error, we affirm the judgment of the trial court.

Key Analysis (slip op. at 14, 17, 19):  Dr. Gamboa based his opinion on the medical findings of Dr. Fortson, who had previously testified. Therefore, we cannot conclude that the trial court abused its discretion in determining that the findings of a medical doctor were a sufficiently reliable basis for a specialist‘s opinion under Rule 702(b) . . . The jury deliberated and assessed damages in the amount of $4,382,000, which is within the range put forth by both parties. Although the figure is much closer to the one proposed by Matthews, Tube City‘s proposed figure did not include damages for physical injuries and disability . . . Because Cox was Tube City‘s employee and acting within the scope of his employment at the time of the incident, the negative inference that applied to Cox for his failure to appear and testify at two depositions and the trial also applied to Tube City, and the trial court did not abuse its discretion by giving the instruction.
 

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We once again turn the page and delve into another chapter of the saga surrounding the renovation and expansion of the Central Library Project in Indianapolis.

Appellant-plaintiff Indianapolis-Marion County Public Library (Library) appeals the trial court's entry of summary judgment in favor of appellees-defendants Charlier Clark & Linard, PC, (CCL), Thornton Tomasetti Engineers (TTE), and Joseph G. Burns (collectively, the appellees). Specifically, the Library argues that the judgment entered for the appellees on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine as espoused by our Supreme Court in Gunkel v. Renovations, Inc.

Conclusion (slip op. at 28):  We conclude that the negligence claims that the Library brought against the appellees are subject to the economic loss doctrine and are best relegated to contract law in accordance with Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005). Moreover, the purported exceptions to the economic loss doctrine do not apply. As a result, the trial court properly entered summary judgment for the appellees on the Library's negligence claims.

Key Analysis (slip op. at 2):  Perhaps our discussion below may best be summarized as follows -- When only economic harm is involved, the question becomes whether the consuming public as a whole should bear the cost of economic losses sustained by those who failed to bargain for adequate contract remedies. And, as New York Court of Appeals Chief Judge Benjamin Cardozo recognized: If liability for negligence exists, a thoughtless slip or blunder . . . may expose [one] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. . . . [I]f there has been neither reckless misstatement nor insincere profession of an opinion, but only honest blunder, the ensuing liability for negligence is one that is bounded by the contract, and is to be enforced between the parties by whom the contract has been made.

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UNPUBLISHED

Tammy Stewart and Aydrian Howard were involved in an automobile accident. At trial, the jury found for Tammy and awarded her $10,000 in damages. Tammy appeals the jury’s award and asks for a new trial. Tammy contends that the trial court abused its discretion by refusing to allow the chiropractor she called as an expert witness testify on cross-examination regarding evidence of a spinal surgeon’s diagnoses and opinions as preserved in the surgeon’s notes. Tammy also contends that the trial court abused its discretion by denying her request for a mistrial on the ground that she had appeared before the trial judge previously in a criminal matter.

Conclusion (slip op. at 2):  Because we find that the trial court properly excluded the spinal surgeon’s opinions and diagnoses and that Tammy has failed to show any actual bias or prejudice, we affirm the trial court.

Key Analysis (slip op. at 7, 10, 11):  Our Court has decided that chiropractors are not qualified to serve as experts in cases involving physicians’ opinions . . . We have held multiple times that it was reversible error and inconsistent with substantial justice for the trial court to exclude evidence that a prior injury or condition caused the plaintiff’s claimed damages . . . A defendant in a personal injury action is entitled to challenge a plaintiff’s claim as to the nature, extent, and source of her injuries through cross-examination and argument.