Partners Tom Schultz, Peter Pogue, Jon Pinnick, and David Field have been named 2017 Indiana Super Lawyers. Mr. Pogue, Mr. Pinnick, and Mr. Field were named Super Lawyers in the Medical Malpractice Defense section, and Mr. Schultz was name a Super Lawyer in General Litigation.
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Partner Charley Smith recently obtained a jury verdict in which the jury placed 40% of the fault on the plaintiff in a rear-end automobile collision. The plaintiff, William Reisa, and his wife Patricia, alleged that Mr. Reisa had come to a stop at the intersection of southbound Harding Street and the exit ramp from I-465 East. Our client, Nick Miracle, claimed that the plaintiffs had entered the intersection on a yellow light before suddenly slamming on their brakes. Mr. Miracle hit his brakes and tried to swerve, but was unable to avoid clipping the back passenger side bumper of Mr. Reisa’s truck. Mr. Reisa claimed that the impact was so severe that it threw his dog from the backseat of his truck into the center console. Mr. Smith noted that the only way the dog could have wound up in the front seat is if the plaintiff slammed on his brakes. The jury agreed and assessed Mr. Reisa with 40% of the fault.
Mr. Reisa had claimed he suffered a permanent neck and shoulder injury as a result of this collision. Mr. Smith argued that Mr. Reisa discontinued any treatment after five months, and therefore any damages to which he should be entitled should account for that return to normalcy at the end of five months. The jury awarded Mr. Reisa the exact amount of damages that Mr. Smith suggested, and then applied 40% fault to it. As a result, Mr. Reisa recovered less than the amount of his paid medical bills. Mr. Miracle’s insurer had offered $15,000.00 prior to trial, and plaintiffs’ counsel rejected that offer, wanting no less than $35,000.00.
Partner Charley Smith obtained a defense verdict in the matter of Faulkinbury v. Broshears tried to a jury before Judge Steven Nation in Hamilton County Superior Court 1. The case arose from an incident which took place on June 1, 2005. On that date, Mr. Smith’s client, Michael Broshears, was traveling northbound on Hazel Dell Parkway towards the intersection with 146th Street in Hamilton County, Indiana. Plaintiff Shane Faulkinbury was traveling behind him. Mr. Faulkinbury was estranged from his wife, Kelly Zinn, who was dating Mr. Broshears at the time. Mr. Broshears came to a stop at the intersection, and Mr. Faulkinbury ran into the back of Mr. Broshears’ car. When the two of them got out of the vehicles, Mr. Faulkinbury then sucker punched Mr. Broshears in the eye. Mr. Faulkinbury was arrested for driving under the influence and battery, and eventually pled guilty to operating a vehicle with a blood alcohol content of above .15.
Mr. Faulkinbury sued Mr. Broshears, claiming that Mr. Broshears passed him on Hazel Dell Parkway and then backed into his car at the intersection. Mr. Faulkinbury then alleged that while he was looking at the damage to his car, Mr. Broshears struck him in the head with a 2 x 4 or a rifle. Mr. Faulkinbury claimed that he suffered a traumatic brain injury as a result of this incident. The parties agreed to bifurcate the trial between liability and damages.
After a two day trial, the jury found in favor of Mr. Broshears as to not only Mr. Faulkinbury’s claim against him, but as to Mr. Broshears’ counter-claim against Mr. Faulkinbury. The court has set a damages hearing for Mr. Broshears’ claim for malicious prosecution for later this year.
Partner Charley Smith recently obtained summary judgment in an insurance coverage case in Judge Jane Magnus-Stinson’s Court in the United States District Court for the Southern District of Indiana. The case arose from a murder/suicide in Terre Haute in 2014, where Trustgard Insurance Company’s insured, Dr. George Samson, shot his wife and then killed himself. After deposing several of the investigating officers, the Vigo County forensic examiner, and several other witnesses, Mr. Smith filed a motion for summary judgment arguing that the intentional and criminal act exclusions in the policy barred coverage. The estate of the wife, as well as her son, were named as defendants in the case due to the lawsuits they had filed in state court. The estate and the son tendered an affidavit from an out of state psychiatrist who opined that Dr. Samson was criminally insane at the time of the incident, and therefore could not have acted intentionally. Mr. Smith moved to strike this affidavit as being based on speculation and otherwise insufficiently reliable under the Daubert standard to which expert testimony must comply in federal court. The judge agreed, and struck the psychiatrist’s affidavit as speculative. The court then granted Mr. Smith’s motion for summary judgment, finding that Dr. Samson acted intentionally as a matter of law.
Congratulations to David Field in obtaining a defense verdict in a jury trial that took place in November 2016 in Indianapolis, Indiana. It was medical malpractice claim wherein plaintiff was alleging that her oncologist failed to work-up or otherwise refer her to a urologist following an incidental finding of an enlarged bladder on a PET scan. Although the oncologist successfully cured her cancer, plaintiff filed suit years later claiming the oncologist caused her kidney failure even though she was under the care of a urologist within months of the PET scan and chose not to return to the urologist for follow-up. After 5 days of testimony, the jury returned a verdict in favor of the defense.
Peter H. Pogue teamed with noted plaintiff's medical malpractice trial attorney Kathy A. Lee to present at an ICLEF seminar on closing arguments in medical malpractice cases. Mr. Pogue presented tips on closing and a mock closing argument for the defendant doctor in an agreed upon fact pattern. Ms. Lee presented for the plaintiff. The seminar was part of the ICLEF Master's Series on litigation.
Tom Schultz was recently asked by the Defense Trial Counsel of Indiana (DTCI) to appear before the Committee on Courts of the Indiana House of Representatives to testify in support of House Bill 1036. The Bill has been offered as a solution on how Marion County judges are selected. The current system was declared unconstitutional by the 7th Circuit Court of Appeals and Indiana has until 2018 in which to develop a new system. House Bill 1036 establishes a 14 member Marion County judicial selection committee as a key element of selecting new judges. This is the second year in a row that Mr. Schultz has been asked to speak on behalf of DTCI concerning judicial selection.
Michael F. Mullen was recently published in Volume XII of the Indiana Civil Litigation Review, an annual journal distributed to members of the Defense Trial Counsel of Indiana. The article analyzed the recent SCI Propane holding and its impact on medical malpractice claims. Mr. Mullen’s article, Why Med Mal Plaintiffs Asserting General Wrongful Death Claims Will Fail to Recover Attorneys’ Fees: Applying SCI Propane to the Indiana Medical Malpractice Act, is available to DTCI members.
Tom Schultz received the 2015 Diplomat Award by the Defense Trial Counsel of Indiana at its Annual Meeting. The Diplomat Award was presented: "For exceptional contributions to the representation of clients in the defense of litigation matters." Schultz is a past president of DTCI and a former recipient of its Defense Lawyer of The Year Award.
Jon M. Pinnick recently (October 20, 2015) served as a Faculty Member for an Indiana Continuing Legal Education Forum on Indiana Evidence, presenting on Evidentiary Trial Objections in Indianapolis, Indiana to and for trial attorneys from across the State of Indiana.
Jon M. Pinnick recently testified for The Indiana General Assembly Interim Study Committee on the Medical Malpractice Act. Mr. Pinnick’s testimony was focused on the Medical Review Panel process in Indiana, including its history, current logistics, and the fact that it works in its current form and serves a valuable purpose for patients and health care providers alike. Mr. Pinnick testified that in spite of some claims by the plaintiff’s bar, the medical review panel process is not “broken”. Moreover, the Medical Malpractice Act includes very specific legislation on time requirements and the like which, if actually requested or required by either the plaintiff or the defense, would shorted the perceived delays in a case progressing through the medical review panel process.
Tom Schultz presented in September to the North Dakota Defense Lawyers Association in Bismark, North Dakota. The presentation focused on preparing and delivering closing arguments in civil litigation for the defense. Tom continues to remain active in presenting to State and local defense bar organizations.
Congratulations to Tom Schultz on being elected to serve on the Board of Directors of the Carmel Swim Club in Carmel, Indiana. The Carmel Swim Club is the top swim club in the State of Indiana, and one of the top club teams in the United States. This represents the second time Tom has been elected to serve on the Board of Directors for the Carmel Swim Club.
Congratulations to Tom Schultz and Angela Della Rocco in obtaining a defense verdict in a jury trial that recently took place in Terre Haute, Indiana. It was a premises liability case that presented with damaging testimony against the client, and an indemnity claim asserted by the landlord. Plaintiff suffered significant injury to his shoulder resulting in surgery and medical bills in excess of $60,000.00. The matter was tried over 3 days in Vigo County Superior Court, and the jury returned its verdict in forty minutes. Vigo County is the 26th different County in Indiana in which Tom Schultz has had a jury trial.
On May 13, 2015, Attorney Jon M. Pinnick presented a continuing legal education program for the Indianapolis Bar Association. The progarm was part of the Indy Bar's Litigation Trial Skills Series and focused on In-Trial Motions. A representative of the Plaintiff's bar also participated, and Jon presented In-Trial Motions from the defense perspective.
Congratulations to Tom Schultz who recently obtained a defense verdict in an underinsured motorist case tried in Lawrence Circuit Court in Southern Indiana in April 2015. The case involved a rear-end collision in which plaintiff claimed over $50,000.00 in medical bills. A qualified settlement offer of $30,000.00 was previously been made prior to trial by jury. This marked the 60th jury trial for Tom and the 24th different county in the State of Indiana in which he has tried a case to a jury. We congratulate Tom on his acheivement and another defense verdict.
Congratulations to Jon Pinnick. Represented Board Certified Emergency Department Physican and his Emergency Department Group. Case involved a 26 year old male who presented to our emergency department with history of chest pain and discomfort, shortness of breath, and headache. He had other generalized complaints as well. ED physician conducted complete and thorough examination and work up, including EKGs, cardiac enzymes and chest x-ray. All were essentially within normal limits, except for some mild cardiomegaly. Ultimately, ED physician appropriately diagnosed patient with pleuritic chest pain due to URI and jaw pain due to existing TMJ syndrome and discharged him with appropriate follow up instructions. 8 days later this patient re-presented to same ED, but this time had complaints of almost passing out three times, a one hour coughing fit, shortness of breath, and a popping sensation to back of neck while in the shower just prior to presentation. He was admitted. There was an incidental finding of an ascending aortic arch dissecting aneurysm. He was taken to surgery and died in the OR after an approximate 14 hour surgery. Plaintiff Estate claimed our clients failed to timely diagnose this aneurysm and caused the death of the 26 year old. Plaintiff hired two experts. We hired expert ED physician and expert Cardiothoracic Surgeon, both of whom testified persuasively at trial. DEFENSE verdict in Marion Superior Court.
January 2015: Congratulations to Jon Pinnick and Michael Mullen. Infant brought to ED by parents with complaints of fever, cough and stridor with difficult breathing. ED physician institutes appropriate steroids and breathing treatment. ED physician appropriately orders lateral x-ray of neck, and he results confirmed the ED physician’s suspicion of epiglottitis. ED physician secures STAT ENT consult and infant is emergency taken to the OR. Successfully obtained dismissal of ED physician pre-panel.
January 2015: Congratulations to Jon Pinnick. We represented Fort Wayne Orthopedic Surgeon Dr. W in claim before a medical review panel. Plaintiffs claimed Dr. W negligently performed total hip arthroplasty. In fact, Dr. W. performed the total hip arthroplasty appropriately. He obtained appropriate informed consent and performed the procedure with standard technique. We successfully obtained dismissal of claim, with prejudice, before the matter even proceeded to an Indiana Medical Review Panel.
November 2014: Congratulations to Jon Pinnick and Julia Condict. We defended Board Certified OB/GYN in Lafayette, Indiana. Dr. H performed da Vinci trachelectomy and bilateral salpingo-oopherectomy and lysis of adhesions. Plaintiff claimed Dr. H. negligently injured her bladder and rectum. We hired well respected Indianapolis OB/GYN who concluded Dr. H. had met the applicable standard of care. Medical Review Panel found unanimously in favor of Dr. H. Despite panel opinion, plaintiff secured expert from east coast. At the final pre-trial conference—one week prior to scheduled 4 day jury trial—Tippecanoe Superior Court granted our motion to dismiss.