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FOUR SCHULTZ & POGUE PARTNERS NAMED "SUPER LAWYERS"
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.
SCHULTZ & POGUE OBTAINS SIGNIFICANT HOA APPELLATE VICTORY
Tom Schultz recently secured a favorable opinion by the Indiana Court of Appeals. In a case of first impression, the Court of Appeals addressed whether an exculpatory clause insulating a homeowner’s association (HOA) from liability for failure to carry out its duties was enforceable.
The case stemmed from a dispute between HOA and several residents. As part of the covenants and restrictions, the HOA was charged with the upkeep of common areas and with enforcement of the subdivision’s restrictions. However, an exculpatory clause in the covenants provided that the HOA could not be held liable for damages of any kind for failure to abide by or carry out any of the covenants. The residents filed suit against the HOA, claiming that the HOA was responsible for failing to remedy drainage problems which allegedly caused hundreds of thousands of dollars in damage to their homes. The defense team argued that the exculpatory clause barred the residents’ claim.
Ultimately, the Morgan Superior Court entered summary judgment in favor of the HOA, finding that the exculpatory clause barred the residents’ complaint. The residents appealed the decision, arguing that the exculpatory clause was unconscionable and unenforceable as against public policy. In a published opinion, the Court of Appeals agreed with the arguments of defense counsel, determining that the exculpatory clause was enforceable and affirming the award of summary judgment in favor of the HOA.
TOM SCHULTZ AND JON BUCHER OBTAIN FAVORABLE VERDICT IN RANDOLPH COUNTY
Tom Schultz and Jon Bucher recently obtained a favorable verdict in a difficult liability case. The case stemmed from a June 13, 2015, motor vehicle accident, in which the Defendant (represented by Mr. Schultz and Mr. Bucher) was accused of failing to yield the right of way to the plaintiff, driver of a semi-tractor trailer. Specifically, the Defendant’s automobile collided with the tractor-trailer as the Defendant merged into an eastbound, straightaway lane from an adjacent center turn lane. The Plaintiff fractured the fourth metacarpal in his left hand (ring finger) as a result of the impact. Based on the circumstances, the jury found the defendant was 100% at fault.
However, and prior to trial, the plaintiff made a demand of $100,000.00 for full and final settlement. This seemed excessive, as Plaintiff’s total billed medicals (without considering adjustments) was approximately $3,500.00, with lost wages at a value of around $5,000.00. This is in addition to the nature of the injury, as there was some question as to the true extent of the Plaintiff’s pain and suffering. Defense counsel knew liability was an uphill battle, as there was an issue of fact regarding whether the Defendant acted reasonably (under the circumstances) when changing lanes. Moreover, it was determined there was value in allowing the jury to see that the Plaintiff was driving a large semi-tractor trailer, while the Defendant was operating a small, mid-sized SUV.
Interestingly, the Plaintiff decided to not introduce evidence of his medical bills and lost wages. The crux of the Plaintiff’s case was based on liability and subsequent pain and suffering. Through cross-examination of the Plaintiff’s medical expert, among other pieces of evidence, defense counsel were able to persuade the jury that the extent of the Plaintiff’s pain and suffering was significantly less than the $100,000.00 demand. In fact, and in the event the Defendant was found liable, the jury was charged with “using common sense” in evaluating the Plaintiff’s claim. As a result, the jury returned a significantly reduced verdict and awarded $12,500.00 to the Plaintiff.
PARTNER CHARLES SMITH OBTAINS SIGNIFICANTLY REDUCED VERDICT IN JURY TRIAL
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 CHARLES SMITH OBTAINS DEFENSE VERDICT IN JURY TRIAL
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 CHARLES SMITH OBTAINS SIGNIFICANT SUMMARY
JUDGMENT IN INSURANCE COVERAGE CASE
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.
PARTNER DAVID FIELD OBTAINS DEFENSE VERDICT ON BEHALF OF
ONCOLOGIST IN MARION COUNTY
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 PRESENTS ON CLOSING ARGUMENTS IN MEDICAL
MALPRACTICE CASES FOR ICLEF
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 TESTIFIES BEFORE THE INDIANA LEGISLATURE ON
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.