Caryl Rosen (Rosen) tripped and fell over a floor mat inside the main entrance of Community Hospital in Munster. A hospital security supervisor viewed video footage from three cameras in the area, but he only preserved a short clip of footage from one of the cameras which was approximately 75 feet or more away from the entrance. While the preserved video footage captured Rosen’s fall, it did not show the state of the mat where Rosen alleged she fell, as it was pixelated and obscured by an object, likely a wheelchair. Because the hospital’s security system automatically records over old footage after about 45 days, the footage from the other two cameras, as well as the footage from before and after the incident on the one camera, was destroyed.

Rosen claimed the hospital should have preserved more video footage, as such may have shown whether the mat was disheveled prior to Rosen’s fall. The trial court denied Rosen’s requests for spoliation sanctions, refused to give a spoliation instruction to the jury, and excluded any evidence of the unpreserved video footage. The jury returned a verdict in favor of the hospital. Rosen appealed and the Indiana Court of Appeals reversed the trial court and remanded for a new trial, reasoning that the destroyed footage might have shown the state of the mat before the fall.

In a 4-1 decision, the Indiana Supreme Court, emphasizing that appellate courts review trial court spoliation decisions only for an “abuse of discretion,” found the trial court made “reasonable judgment calls” within the trial court’s discretion. The Supreme Court found it was reasonable for the trial court to conclude the hospital had no duty to preserve more video. The Court noted the preserved video taken from 75 feet away was highly pixelated as Rosen reached the mat, making it reasonable to doubt that earlier footage of the mat would have been any more enlightening. Also, because the other cameras did not capture the fall, it was reasonable to conclude that they did not capture the allegedly raised portion of the mat, which Rosen claimed was only the size of her foot. The Court also found it was reasonable for the trial court to conclude that the hospital’s evidence preservation was reasonable, as the security supervisor followed his routine practice for preserving video after someone falls and there was no suggestion of bad faith in the preservation efforts. Lastly, the Court concluded it was reasonable for the trial court to exclude any evidence of the unpreserved video, as the unpreserved video that did not show the fall or mat was irrelevant.

In its decision, the Indiana Supreme Court noted that while a preservation letter helps trigger the legal duty to preserve evidence, preservation letters do not create a safe harbor for defendants, nor an outer limit for proper discovery requests. However, compliance with a preservation letter is a relevant consideration in evaluating the reasonableness of a party’s evidence preservation efforts. 

Justice Goff dissented, arguing the fact-sensitive nature of spoliation makes it an issue more appropriately decided by a jury rather than a judge. The Court found Rosen forfeited this argument on appeal by not raising it before the trial court. Justice Goff, however, credited Rosen with having proffered a spoliation jury instruction and noted there existed differing reasonable interpretations of the facts. He thought the jury should have been permitted to decide the spoliation issue.

You can read the full opinion here.

While proponents of the bill (backed heavily by business groups, hospitals, and the Kentucky Chamber of Commerce) argue that it will “modernize” Kentucky’s legal liability system and contain insurance costs, organizations like the Kentucky Justice Association warn that the legislation will create additional procedural requirements shifting the burden away from wrongdoers and onto injured victims and taxpayers. Here is a closer look at what SB 195 proposes and how it could severely impact your rights if you are injured in the Commonwealth.

Eliminating Accountability Through Changes to Comparative Fault 

Kentucky has long followed a pure comparative fault system. Under that framework, fault is apportioned precisely. A plaintiff who is 10% at fault recovers 90% of their damages. A plaintiff who is 70% at fault still recovers 30%. The guiding principle is straightforward: each party pays for the harm they caused.

That structure reflects a policy choice. Kentucky law recognizes that accidents are often messy. Multiple actors can contribute to an event. Under pure comparative fault, the focus remains on proportional responsibility rather than all-or-nothing outcomes.

SB 195 would replace that approach with a modified comparative fault bar. If a plaintiff is found 50% or more at fault, recovery would be eliminated entirely. This would fundamentally alter the structure of liability in Kentucky. In close cases that threshold creates a cliff effect. A single percentage point can mean the difference between substantial recovery remedying negligence found by a jury and no recovery at all. Kentucky’s current system promotes personal responsibility by ensuring you fix exactly what you break. 

Across the river in Indiana, under IC 34-51-2-6, if an injured individual is more than 50% at fault, they are unable to recover any damages whatsoever. If SB 195 were to be enacted, it would actually be slightly stricter than Indiana’s system in that under a 50% bar, even where a defendant is equally responsible for causing the harm, the plaintiff would recover nothing. And, interestingly, in such a case of equal fault where both drivers are suing one another, neither party owes the other anything and the liability insurers do not have to pay any judgment for either. 

The Kentucky Justice Association has illustrated the danger of the shift from pure comparative to modified comparative with this example: imagine a drunk driver runs a red light and crashes into your spouse, causing a totally disabling, lifelong injury. If your spouse happened to be traveling 60 mph in a 55-mph zone, a jury might split the fault 50/50. Under SB 195, the wrongdoer who chose to drive drunk and run a red light could avoid financial responsibility despite being equally responsible for the collision. This undermines accountability.

The “Empty Chair” Defense: Scapegoating Non-Parties 

Kentucky already allows juries to apportion fault among multiple parties under KRS 411.182 and Hilen v. Hays. In a negligence case, a jury may assign percentages of fault to the plaintiff, the defendant, and even certain properly identified non-parties. Each defendant then pays only the percentage of damages corresponding to their share of fault. This system reflects Kentucky’s shift away from joint and several liability and toward proportional responsibility.

However, Kentucky’s current framework requires that non-party fault be properly raised and supported by evidence. It operates within established comparative fault principles and existing case law.

SB 195 appears to broaden that structure in important ways.

Under the proposed bill, defendants could potentially ask juries to assign fault to third parties who cannot be sued or held financially responsible — including immune government entities, bankrupt companies, or other legally protected actors. While this may reduce a defendant’s percentage of fault on paper, the injured person may have no practical way to recover the portion attributed to that third party.

The practical result is significant. If a jury assigns 40% fault to a defendant and 60% to an immune entity, the defendant pays only 40%, and the plaintiff absorbs the remaining loss. In effect, liability is reduced without a corresponding source of compensation.

Supporters argue this promotes fairness by ensuring defendants pay only for their share. Critics respond that expanding third-party apportionment shifts financial risk from negligent actors to injured individuals.

Regardless of perspective, SB 195 represents a meaningful change to Kentucky’s existing comparative fault system that could materially affect how fault is allocated and how much compensation injured Kentuckians are ultimately able to recover.

“Healthcare Premium Theft” and Protecting Insurance Profits 

If you pay your hard-earned money for health insurance premiums, you expect those benefits to protect you. Under SB 195, defendants and their liability insurers would be the ones reaping the benefits of your foresight. Unfortunately, Indiana already allows this under the case of Stanley v. Walker, which allows the introduction of the billed amounts and paid amounts, allowing the jury to determine the reasonable value of services. SB 195 appears to limit recoverable medical expenses to amounts actually paid or owed, rather than the full value of the services rendered, intentionally ignoring the premiums and out-of-pocket costs the plaintiff has already paid themselves. Furthermore, it prevents juries from knowing the actual charges billed by doctors and hospitals. Even Indiana courts allow the introduction of billed charges, allowing the jury to exercise discretion. The Kentucky Justice Association refers to this as “Healthcare Premium Theft,” noting that previous attempts to pass similar measures were struck down by courts as unconstitutional.

The bill also makes it significantly harder for injured plaintiffs to pursue “bad faith” claims against insurance companies that unreasonably delay or deny legitimate payouts. All of this comes at a time when national statistics indicate that property and casualty insurance companies made staggering profits in 2024. According to an industry analysis by Verisk and the American Property Casualty Insurance Association, the U.S. property and casualty insurance industry generated roughly $170 billion in net income nationwide in 2024, making 2024 one of the highest profit levels ever recorded.

“Gotcha” Red Tape Designed to Dismiss Cases 

Perhaps one of the most concerning parts of SB 195 is the creation of complex, detailed new procedures for initiating and pursuing lawsuits. The bill mandates written notifications to defendants, full explanations of damages, signed authorizations for paperwork, and strict, unforgiving deadlines. According to Maresa Fawns, chief executive of the Kentucky Justice Association, this is nothing more than “gotcha red tape”. The underlying goal is not to seek the truth or promote fairness, but to trap plaintiffs in technicalities. If an injured person misses a notice deadline or fails to check a specific box, their entire case could be dismissed before a jury ever hears a single piece of evidence. This represents a significant procedural departure from existing Kentucky practice, as Kentucky already requires a lawsuit in non-MVA cases to be filed in one year and requires loss of consortium claims to be filed in one year. There can be little rational reason for such a provision other than simply hoping wrongdoers can avoid responsibility by running out the clock.

The Myth of the Litigation Crisis in Kentucky 

Supporters of the bill, including lobbyists for hospitals and corporate businesses, argue that the legislation is necessary because Kentucky allegedly ranks 40th nationally for its legal liability climate. However, this ranking is based entirely on subjective surveys of corporate in-house lawyers. These are the very individuals whose primary job is to avoid paying for corporate liability.

The actual numbers tell a very different story about the state of litigation in Kentucky. According to recent statistics cited by the Kentucky Justice Association, despite there being 139,663 traffic collisions in 2024, only 2% of those crashes resulted in a circuit court case filing. Similarly, out of approximately 12 million healthcare encounters annually, a mere 0.002% result in a medical negligence lawsuit.

Proponents also claim that every Kentucky family pays $2,800 a year in a “tort tax,” but this figure misleadingly lumps in insurance company profits, CEO compensation, advertising, and payouts for unrelated property issues like weather damage. Ironically, proponents’ own data reveals that this $2,800 figure makes Kentucky the third lowest among surrounding states for these costs, sitting well below neighbors like Illinois ($4,200) and Missouri ($3,400). The Kentucky Justice Association notes that the push for this bill is so corporately driven that its supporters are utilizing a 501(c)(4) dark-money fund to solicit anonymous contributions to push the legislation through the General Assembly. As critics point out, if this bill were genuinely good for Kentucky families, it wouldn’t require secret money to sell it.

Ultimately, the Kentucky Constitution clearly guarantees its citizens access to the courts when they are harmed and expressly prohibits the legislature from limiting the amount recovered for injuries or death. SB 195 attempts to circumvent these constitutional protections to the detriment of ordinary citizens.

SB 195’s Procedural Roadblocks: Destined to be Ruled Unconstitutional?

While proponents of SB 195 claim it merely updates the legal system, many of its provisions appear destined for a constitutional challenge, much like previous “tort reform” efforts in the Commonwealth. As we noted eight years ago in our blog, in 2018, the Kentucky Supreme Court delivered a landmark ruling in Commonwealth v. Claycomb, striking down a state law that mandated medical review panels for malpractice claims. The reasoning in that decision provides a clear blueprint for why the procedural hurdles in SB 195 may also be deemed unconstitutional.

Kentucky’s founders explicitly protected citizens’ rights to the civil justice system. 

Article I, Section 14 of the Kentucky Constitution guarantees that “All courts shall be open,” and that every person who suffers an injury shall have a remedy by due course of law, with justice administered “without sale, denial or delay”. In Claycomb, the Kentucky Supreme Court emphasized that the right to access the courts for a remedy is “possibly the most important” right guaranteed by the state’s Bill of Rights. The Court found that forcing injured individuals through a mandatory medical review panel process before filing a lawsuit was an unconstitutional “mandatory process” that created an unlawful delay in accessing the courts.

SB 195 attempts to implement similar roadblocks under the guise of detailed new procedures for initiating lawsuits. The bill mandates written notifications to defendants, full explanations of damages, signed authorizations, and strict, unforgiving deadlines. If an injured person misses a tight deadline or fails to check a specific box, their entire case could be dismissed on a technicality. Just as the medical review panels forced a mandatory delay on claimants, SB 195’s “gotcha red tape” creates technical trapdoors that delay justice and threaten to deny it altogether.

Furthermore, the Kentucky Supreme Court noted in Claycomb that the constitutional guarantee of open courts restricts both the judiciary and the legislative branch. Section 28 of the Kentucky Bill of Rights explicitly states that these constitutional rights “shall forever remain inviolate” and that any laws contrary to the Constitution are void. According to this precedent, the legislature may not enact laws that conflict with constitutional guarantees of open courts.

If SB 195 passes, its intricate procedural requirements and “gotcha” dismissals will likely face immediate legal scrutiny. Under the strong precedent set by the Kentucky Supreme Court, citizens should be assured that legislation placing arbitrary roadblocks in the way of an individual wanting to seek redress in court “without delay” should continue to be found unconstitutional. Reasonable people can debate how to balance business costs and civil accountability. But when proposed reforms alter long-standing constitutional protections, careful scrutiny is warranted. You may read SB 195 here.

Barsumian Armiger Injury Lawyers is Here to Help 

At Barsumian Armiger Injury Lawyers, Todd Barsumian is licensed to practice in Kentucky and proudly serves clients throughout Indiana and Kentucky, including Henderson, Owensboro, and Madisonville. He understands the tactics used by insurance companies to deny liability and minimize payouts and remains committed to fighting for the maximum compensation our clients deserve, regardless of legislative hurdles.

Schultz grew up on his family-owned property next to Sandy Pines Golf Club (“Sandy Pines”) in Wheatfield, Indiana. His family owned the property for over 50 years. After moving away, Schultz returned in 2008 to take care of his aging mother. In 2018, Sandy Pines added a driving range, and thereafter thousands of golf balls began falling onto the property. Schultz had to park his car at the far end of the driveway and sit under a tent when in the backyard to avoid the falling golf balls. While Schultz complained to Sandy Pines and Sandy Pines took some steps to alleviate the situation, golf balls continued to regularly fall onto the property. In 2020, Schultz’s mother transferred title to the property to Schultz so that he would have clear legal standing to sue.

Schultz filed a lawsuit against Sandy Pines for negligent design, nuisance, and trespass. The trial court entered summary judgment in favor of Sandy Pines on Schultz’s negligent design and nuisance claims. As to his nuisance claim, the trial court applied the doctrine of “coming to the nuisance,” since Schultz took title to the property knowing golf balls landed on it. Since Indiana law does not have a similar “coming to the trespass” doctrine, however, the trial court held a bench trial with respect to Schultz’s trespass claim. The trial court found the thousands of golf balls falling onto Schultz’s property constituted trespass by Sandy Pines. However, the trial court found that Schultz was 95% at fault and incurred the risk of trespass by taking title to the property with knowledge of the golf balls, and therefore, based upon Indiana’s Comparative Fault Act, was entitled to nothing. Schultz thereafter appealed the trial court’s decision as to his comparative fault.  

Indiana’s Comparative Fault Act, with limited exceptions, applies to “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.” Ind. Code §§ 34-51-2-1, 2-2. As to the Act, “fault” is defined as “any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others,” and includes “unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2.1-68(b). The Comparative Fault Act provides for proportionate damages based on relative degrees of causation attributable to the responsible actors, and it bars recovery if the claimant’s fault “is greater than the fault of all persons who contributed to the injury.” Ind. Code §§ 34-51-2-5, 2-6.

On appeal the Indiana Court of Appeals distinguished intentional torts, such as trespass, from torts based on negligence. While three elements must be proven in negligence claims (duty, breach, and damages caused by the breach), with the required standard of care varying depending on the circumstances, intentional torts are not a matter of degree or circumstance. Intentional torts instead focus exclusively on whether the defendant intentionally committed a wrongful act, where the intentional wrongful conduct itself constitutes the injury. The Court noted that in trespass cases, for instance, “the unauthorized entry itself is the invasion of property rights” that establishes the tort. Additionally, the Court noted differences in moral culpability between negligence and intentional torts. 

After reviewing Indiana law, including prior precedent and Indiana’s Comparative Fault Act, the Court ruled that, while negligent and intentional acts can both be considered in comparative fault analysis in negligence cases, such analysis does not apply in cases of intentional torts to reduce liability for intentional torts. The Court reasoned that in intentional tort cases “there is no such thing as acting 20% intentionally” and the intentional conduct itself “wholly constitutes the injury,” leaving no one else (other than perhaps joint intentional tortfeasors) to contribute to the harm. Finding fault allocation under the Comparative Fault Act “conceptually incompatible with the nature of intentional torts,” the Court reaffirmed prior precedent that in cases of intentional torts the plaintiff cannot be assigned fault, and the defendant is 100% liable for the intentional tort. 

Applying its analysis to the facts of this case, the Indiana Court of Appeals found the trial court erred when it engaged in fault allocation after finding Sandy Pines liable for trespass. According to the Court, Sandy Pines should have remained 100% liable for the tort of trespass. The trial court could then have addressed any failure to mitigate damages by Schultz, which is a separate inquiry. As noted by the Court, comparative fault “concerns who caused the injury and allocates responsibility” to those contributing to the harm, whereas mitigation of damages “concerns the victim’s conduct after the tort occurs and affects only the amount of damages,” not liability. A claimant’s post-tort conduct, like failing to limit the extent of harm, may reduce damages, but that conduct does not reduce or shift liability for the tort. Accordingly, the Court reversed and remanded for additional proceedings with respect to Schultz’s damages for trespass and any failure to mitigate.

You can read the full opinion here.

From serving lawsuits via social media to the end of “general objections” in discovery, the amendments to Indiana’s Trial Rules make these 7 significant changes in 2026. 

1. No More “General Objections” in Discovery Responses

Parties can no longer rely on a preamble of boilerplate objections in their discovery responses. 

The 2026 amendments to Indiana Trial Rule 33 (Interrogatories), Trial Rule 34 (Production of Documents), and Trial Rule 36 (Requests for Admission) explicitly ban “general objections,” which the new rules define as objections that are not directed to a specific request, do not specifically state the grounds on which they are based, or apply globally. Under the new rules, “[g]eneral objections must not be made and will have no effect.”

2. Parties Must Identify Non-Produced Responsive Materials When Objecting to Discovery

Under the old and new rules, parties are required by Trial Rule 26(B)(5) to provide a privilege log when they withhold otherwise discoverable information claiming it is privileged or protected trial preparation material. The new rules add a related and somewhat broader requirement when objecting to requests for production. Under the new Trial Rule 34(E), parties objecting to a request for production, for whatever reason, must state whether any responsive materials are being withheld on the basis of that objection. Notably, though, the new Trial Rule 34(E) does not explicitly require that parties describe the nature of the documents withheld in a manner that will enable other parties to assess the applicability of the objection, unlike Trial Rule 26(B)(5). How parties will comply with this Rule’s new requirement in practice remains to be seen.

3. Parties Can Serve Lawsuits via Social Media and Other Technology

Indiana’s new trial rules provide flexibility when it comes to hard-to-locate defendants. For instance, Indiana Trial Rule 4.14, as amended, allows for service via social media, email, or other technology under some circumstances. Under the new rule, if a party files a verified motion with facts sufficient to show that prior attempts to obtain service under the rules have been unsuccessful, the court can order service in “any other manner that is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.” The new rule provides that “[s]uch other forms of service may include social media, email, or other technology.” 

The new rules also simplify service in other ways. For instance, registered agents can be served electronically if they have consented to it under Rule 4.6(B), and Rule 5(B)(2) now allows for service by mail via third-party commercial carriers, like FedEx or UPS, in addition to U.S. Mail. 

4. Requests for Admission Must be Served Separately

Indiana litigators often combine written forms of discovery and serve them together. It is commonplace, for instance, to see interrogatories combined with requests for production with both served on adverse parties in one document. Prior to the new amendments, parties could also include requests for admission, which can be a serious problem for responding parties who fail to recognize they were included, as requests for admission are admitted if not answered within 30 days. Trial Rule 36(B) now provides that requests for admission cannot be “combined in the same document with any other pleading and must be served separately from any other form of discovery.”

The new Trial Rule 36(B) also adjusts the timing of when requests for admissions can first be served to “not earlier than ten days after the issues are first closed on the merits or thirty days from commencement of the action in cases where no responsive pleading is required.”

5. Timelines for Non-Party Requests and Procedures for Objections Have Changed

The timing of service of non-party requests for production has changed under the new trial rules. Under the new Trial Rule 34(G)(2), a party need only wait 10 days (as opposed to 15 days) after serving a copy of a non-party request for production on an adverse party before serving the request on the non-party. Trial Rule 34(G)(3) also provides new procedures to follow when a party objects to a non-party request. A party must object to a non-party request within the 10-day waiting period, providing specific grounds for the objection and a proposed date and time to meet and confer under Indiana Trial Rule 26(F). If no agreement is reached, the objecting party must move to quash or modify the non-party request within 20 days of the objection, or the request can be served. 

6. Parties Must Confer in Good Faith 15 Days Before 30(B)(6) Depositions

Indiana Trial Rule 30(B)(6) governs depositions of persons designated by organizations to testify on their behalf. It is not uncommon for disputes to arise amongst the parties as to the matters for examination, which under the old and new rules are to be designated with reasonable particularity in the deposition notice. However, under the new rule, parties must now meet and confer in good faith about the matters of examination at least 15 days prior to the deposition.

7. There is a New Standard for Spoliation of Electronically Stored Information (ESI)

The 2026 amendments to Indiana Trial Rule 37 remove the “safe harbor” provision regarding the failure to preserve electronically stored information (ESI). Prior to the amendments, absent exceptional circumstances, courts could not impose sanctions on a party for failing to provide ESI lost as the result of “the routine, good faith operation of an electronic information system.” Under the amended Rule 37(D), courts can now impose sanctions on parties for “failing to take reasonable steps to preserve [ESI]” that is relevant, material, should have been preserved in anticipation of or during litigation and is lost because of the failure to take reasonable steps to preserve it, cannot be restored or replaced through additional discovery, and either prejudice results to another party or the party acted with intent to deprive another party of the information’s use in litigation. Sanctions can include a presumption and jury instruction that the lost information was unfavorable to the party, dismissal of the action, entry of default judgment, or other orders to cure any prejudice.

The Order Amending Rules of Trial Procedure with annotations as to the changes can be found here. A full copy of the new Indiana Trial Rules can be found here.

In Gierek v. Anonymous 1, Linda Gierek (Gierek) was one of over a thousand patients who received a letter from healthcare providers (collectively referred to as the Hospital) informing them that a technician failed to fully sterilize surgical instruments, which may have exposed them to infectious diseases, including Hepatitis C, Hepatitis B, and HIV. Gierek and her husband filed a class-action complaint for negligent infliction of emotional distress, negligence, and medical malpractice in state court and before the Indiana Department of Insurance (IDOI) and moved for class certification for similarly situated patients and their spouses. The Indiana Patient’s Compensation Fund (the Fund) intervened and moved for partial summary judgment arguing Gierek’s claims sounded in ordinary negligence, not malpractice, and therefore Indiana’s Medical Malpractice Act (MMA) did not apply. While Gierek supported the Fund’s position, the Hospital cross-moved for summary judgment arguing the MMA did apply. The trial court ruled the MMA applied and it denied Gierek’s motion for class certification concluding it lacked subject matter jurisdiction to rule on class certification while the claims were pending before a medical review panel.

The Indiana Supreme Court first determined the MMA applied to Gierek’s claims. While noting the parties generally disputed the MMA’s applicability based upon whether the technician’s conduct constituted ordinary negligence versus medical malpractice, the Court focused instead on whether the MMA applied to Gierek’s claimed injury—emotional harm—as the MMA states, “a patient or the representative of a patient who has a claim under [the Act] for bodily injury or death on account of malpractice may… [f]ile a complaint in any court of law having requisite jurisdiction” and “exercise the right to a trial by jury.” Ind. Code § 34-18-8-1 (italics added). As noted by the Court, the term bodily injury generally means physical damage to a person’s body. 

Nonetheless, relying on the full text of the MMA, “decades of precedent,” legislative history, the overall purpose of the MMA, and the MMA necessarily having to cover potential bodily injury, not just contemporaneous bodily injury, for patients to comply with the MMA’s two-year occurrence-based statute of limitations, the Court concluded the MMA applies to all claims for “malpractice” by a “patient” against a “healthcare provider,” as those terms are defined by the MMA, and not just claims involving bodily injury or death. The Court also concluded that even if the MMA required “bodily injury or death,” Gierek’s emotional-distress claims sufficiently alleged bodily injury. The Court noted Indiana’s modified-impact rule, which allows a claimant to recover damages when the claimant suffers a direct impact by the negligence of another and because of that direct involvement suffers an emotional trauma serious enough to affect a reasonable person, and Indiana’s impact rule, under which “it took little to establish” a “physical injury.” The Court concluded “the Hospital’s alleged tortious conduct here—the use of unsterilized surgical instruments that potentially exposed [Gierek] to infectious diseases—sufficient to constitute a “bodily injury” under the impact rule governing claims for emotional distress.” 

Next, the Court determined the trial court had jurisdiction to preliminarily determine class certification. Under the MMA, trial courts have limited jurisdiction while a claim is pending before a medical review panel. Ind. Code § 34-18-8-7(a)(3). They are expressly prohibited from making a preliminary determination on “any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel,” Ind. Code § 34-18-11-1(b), including whether “[t]he evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint” and whether “[t]he conduct complained of was or was not a factor of the resultant damages,” Ind. Code § 34-18-10-22(b)(1), (4). However, trial courts have authority to, among other things, such as setting a trial date and compelling discovery, “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1(a)(1).

In concluding class certification is an appropriate preliminary determination under the MMA, the Court first distinguished the “overly narrow approach to preliminary jurisdiction” set forth by the Court in Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992), which limited trial court jurisdiction to preliminary determinations under Trial Rule 12(D). The Court noted prior precedent and the MMA’s reference to “the Indiana Rules of Procedure,” not just Trial Rule 12(D). As stated by the Court, “[t]he Act only prohibits a trial court from issuing a preliminary determination on an ‘affirmative defense or issue of law or fact’ reserved for the panel’s expert opinion—i.e., whether the defendant ‘failed to comply with the appropriate standard of care’ and whether the conduct factored into the ‘resultant damages.’” The Court found a class-certification determination does not dictate the substance of a review panel’s opinion, class certification aligns with the MMA’s overall purpose, and while class certification may tend to potentially chill disclosure by healthcare providers in similar circumstances as a policy consideration, “[a] healthcare provider must warn of a subsequently discovered medical error with potentially harmful consequences.”

Justice Slaughter concurred in the judgment in part and dissented in part with a separate opinion in which Justice Molter joined.  

You can read the full opinion here, Gierek v. Anonymous 1, 250 N.E.3d 378 (Ind. 2025).

Under Indiana law, insurance companies must offer uninsured (UM) and underinsured (UIM) insurance coverages to policy holders to provide a minimum level of compensation if they suffer injuries by someone with no insurance (uninsured motorists) or inadequate insurance coverage (underinsured motorists). Ind. Code § 27-7-5-2; Kearschner v. Am. Fam. Mut. Ins. Co., S.I., 192 N.E.3d 946, 954 (Ind. Ct. App. 2022).  The purpose of UM and UIM coverage is to promote the recovery of damages by innocent victims of auto accidents when the at-fault party either has no insurance coverage or limited insurance coverage. See 192 N.E.3d at 954. 

Under Michelle’s State Farm insurance policy, State Farm promised that it would “pay compensatory damages… for bodily injury… an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle,” provided that “the bodily injury… [was]… sustained by an insured… and… caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.” In Michelle’s insurance policy with State Farm, an uninsured motor vehicle was defined as “a land motor vehicle” the “ownership, maintenance, and use of which is… not insured… for liability at the time of the accident,” or which, with respect to bodily injury damages, “the owner and driver of which remain unknown and which causes bodily injury to the insured.”

On appeal, the Indiana Court of Appeals noted that insurance contracts are interpreted the same as any other contract, with courts giving contractual terms their plain and ordinary meaning. While “land motor vehicle” was not defined in the State Farm insurance policy, the parties agreed, as did the Court, that “land motor vehicle” unambiguously means a “motor vehicle” designed to operate on “land.” And there was no apparent dispute that “land” means “the solid part of the surface of the earth,” as defined by Merriam-Webster’s Online Dictionary. However, the parties disputed the meaning of “motor vehicle” and whether “motor vehicle” includes electric scooters. 

State Farm argued for the definition of “motor vehicle” under Indiana’s Motor Vehicle Code, which excludes electric foot scooters. Under the Code, “motor vehicle” means “a vehicle that is self-propelled” and does not include “a farm tractor, an implement of agriculture designed to be operated primarily in a farm field or on farm premises, an electric bicycle, an electric foot scooter, or an electric personal assistive mobility device.” Ind. Code § 9-13-2-105(a). However, the Court of Appeals referenced Merriam-Webster’s Online Dictionary, which defines “motor vehicle” as “an automotive [or self-propelled] vehicle not operated on rails,” the American Heritage Online Dictionary, which defines “motor vehicle” as “[a] self-propelled conveyance with wheels and a motor, such as a car or truck, for use on roads,” and Black’s Law Dictionary, which defines “motor vehicle” as “[a] wheeled conveyance that does not run on rails and is self-propelled, [especially] one powered by an internal-combustion engine, a battery or fuel-cell, or a combination of these.” 

The Court, noting that courts are to interpret insurance policies “from the perspective of an ordinary policyholder of average intelligence,” concluded the general dictionary definitions controlled and the scooter was a “land motor vehicle” under the term’s plain and ordinary meaning. While State Farm also argued that there was a genuine issue of material fact as to whether the scooter was “uninsured,” the Court of Appeals found State Farm waived that issue because it did not raise it in the trial court. Accordingly, the Court of Appeals affirmed the entry of partial summary judgment in Michelle’s favor, entitling her to uninsured coverage from State Farm for the injuries she suffered in the electric scooter crash. 

You can read the full opinion here.

Fergerson was 63 years old and a chronic alcoholic. He also suffered from sciatica. He had a license but used IndyGo buses for transportation. In the morning on the day he was killed, Fergerson relapsed from an 8-day alcohol abstention and was briefly hospitalized for intoxication. He was released later that day. In the evening, after grocery shopping, Fergerson attempted to board an IndyGo bus to go home. One IndyGo bus driver refused to let him board because he had a liquor bottle. Later, another IndyGo bus pulled up to the bus stop. As two passengers exited the bus, Fergerson grabbed his two grocery bags and walked toward the front door of the bus. The bus driver checked his mirror for a “split second” and then pulled away from the curb. The driver did not remember checking his mirrors for proper alignment or having approached the stop in accordance with IndyGo’s policies. When the bus pulled away, Fergerson lost his balance and, with his arm outstretched towards the bus, fell off the curb and onto the road where he was run over by the bus’s rear wheels, causing his death two weeks later. His blood alcohol concentration was over three times the legal limit to drive. 

Fergerson’s mother, for his estate, filed a wrongful death lawsuit against IndyGo. A Marion County jury returned a jury verdict of $6 million dollars, which was reduced to $700,000 because of a limit on damages against governmental entities under Indiana law. At trial IndyGo argued Fergerson was contributorily negligent as a matter of law, referencing his intoxication and video footage of the incident. The trial court denied both of IndyGo’s motions, a motion for judgment on the evidence pre-verdict and a motion to correct error post-verdict. IndyGo appealed the denial of the post-verdict motion to correct error. A panel of the Indiana Court of Appeals reversed the trial court, with one judge dissenting. The Indiana Supreme Court granted transfer and ultimately affirmed the trial court’s denial of IndyGo’s motion to correct error.

As a preliminary matter, the Indiana Supreme Court first determined that its standard of review was de novo, that is, without deference to the trial court’s decision, as opposed to abuse of discretion, since IndyGo had asserted the jury’s verdict was clearly erroneous as contrary to the evidence. 

Next the Court reviewed whether the evidence supported a reasonable inference that Fergerson was not contributorily negligent, as a finding of contributory negligence as a matter of law is only proper when there exists only one inference to be drawn from the evidence, that of contributory negligence proximately causing the claimed injuries. Under Indiana law, a person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent person would exercise for their own protection and safety under similar circumstances. Evidence of intoxication alone is insufficient; there must be evidence that a person’s intoxication proximately caused the person’s injuries. Contributory negligence, that is, fault on behalf of a person injured, however slight, acts as a complete bar to recovery against governmental entities in Indiana.

The Indiana Supreme Court reviewed and dispensed with IndyGo’s two arguments: first, that the video footage showed Fergerson was contributory negligent in reaching out to touch a moving bus, particularly given his intoxication, and two, that Fergerson was contributory negligent for violating Indiana Code § 9-21-17-5, which states “[a] pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” and Indiana Code § 7.1-5-1-6, which prohibits a person from being intoxicated when using public transportation if the person’s intoxication endangers their own life.

As to IndyGo’s first argument, the Court noted that when the bus pulled away, the video footage did not show Fergerson’s legs and feet, and thus, a single, undisputed account of his conduct at the time of the incident. While noting one could certainly infer negligence finding Fergerson, possibly because of his intoxication or sciatica, lunged for or reached out to touch the moving bus, two other possible inferences also existed: first, that “Fergerson, through no unreasonable action and simply by accident, stumbled and then raised his arm in an involuntary attempt to brace himself as he fell,” and two, that “the bus’s sudden and unexpected momentum caused him to lose his balance as he carefully approached the bus and involuntarily reached out to stop himself from falling.” 

As to Fergerson’s intoxication, the Court noted that negligence cannot be presumed solely because an accident occurs and there was evidence Fergerson had ridden IndyGo buses many times while intoxicated without issue, chronic alcoholics can develop a tolerance to alcohol, and Fergerson’s mother could not say Fergerson “sounded drunk” when she spoke with him that evening. The Court reasoned, “[f]rom this evidence, coupled with the video footage, a reasonable jury could have inferred that Fergerson’s tolerance for alcohol minimized any impairment from his BAC level and thus concluded that his intoxication was not a proximate cause of his injuries.” 

As to IndyGo’s second argument, negligence per se based upon violation of Indiana law, the Court found a reasonable inference could be drawn from the video footage that Fergerson did not suddenly leave the curb by walking or running into the path of the bus under Indiana Code § 9-21-17-5 and, as noted with respect to IndyGo’s first argument, that his intoxication was not a proximate cause of his injuries endangering his own life under Indiana Code § 7.1-5-1-6. 

Finding “multiple, reasonable inferences” that the jury could have reached, the Indiana Supreme Court found IndyGo had not established Fergerson’s contributory negligence as a matter of law and therefore affirmed the trial court’s denial of IndyGo’s motion to correct error. While noting this was a “close case,” the Court recognized that its role is not to “stand in the place of the factfinder.” The Court noted the jury members were attentive, were properly instructed on the law, and found Fergerson was not contributorily negligent. Similarly, the Court noted the trial court and a judge on the Indiana Court of Appeals found Fergerson was not contributorily negligent as a matter of law. 

Justice Slaughter dissented with a separate opinion in which Justice Massa joined.

You can read the full opinion here.

Areche sued the City of Indianapolis and other defendants for the injuries he suffered in the Indianapolis electric scooter crash. Indianapolis filed a motion to dismiss, which was eventually converted to a motion for summary judgment, based upon an Indianapolis ordinance prohibiting the operation of electric scooters on Indianapolis sidewalks. The Indianapolis ordinance, Indianapolis Revised Code § 441-320.1, provides: “It shall be unlawful for any person to operate an electric foot scooter on (1) A sidewalk, (2) A greenway, or (3) Any pedestrian or multimodal path [which does not include a path set aside for exclusive use of bicycles] that is paved or unpaved in the city.” The City of Indianapolis argued Areche was negligent per se for violating the scooter ordinance and was, therefore, contributorily negligent as a matter of law, thus barring his personal injury claim against Indianapolis.

Negligence arises from (1) a duty owed to the claimant/plaintiff, (2) breach of that duty by a failure to comply with the applicable standard of care, and (3) injury proximately caused by the failure. Negligence per se, which satisfies the second element, breach of duty, is the unexcused violation of a statute or ordinance if the statute or ordinance protects (1) the class of persons in which the claimant is included (2) against the type of harm that has occurred as a result of the violation. Importantly, while comparative fault applies to many Indiana lawsuits, for tort claims against governmental entities in Indiana, the common-law defense of contributory negligence applies, which bars any recovery when claimants have any fault at all.

The trial court granted summary judgment for the City of Indianapolis finding Areche negligent per se for violating the scooter ordinance and thus contributorily negligent as a matter of law, barring his claim. While not denying he violated the ordinance, Areche argued on appeal that (1) he did not owe any duty to himself, (2) he was not part of the class of persons the ordinance was meant to protect, and (3) he did not suffer the type of harm the ordinance was meant to protect.

The Indiana Court of Appeals quickly dispensed with Areche’s first argument. The Court noted that all claimants owe a duty of reasonable care to themselves—if that were not the case, no one could ever be contributorily negligent. As for Areche’s second argument, the Court found the ordinance protected, not only pedestrians, but also scooter operators, based upon the plain language of the ordinance and as a matter of common sense in protecting against foreseeable accidents. Lastly, the Court found the ordinance protected against the type of harm here, that is, a single scooter hitting a pothole (or any other obstacle such as a sign, bench, or stand) in the sidewalk, and not just the risk of harm occasioned by scooter-pedestrian collisions. 

Judge Scheele dissented with a separate opinion. He disagreed the ordinance protected against the type of harm Areche suffered: hitting a large hole with gravel while riding his electric scooter on the sidewalk. He felt the majority interpreted the ordinance too broadly to encompass a type of harm not contemplated by the ordinance. He distinguished foreseeable obstacles, like pedestrians, signs, benches, and stands, from the unforeseeable obstacle presented by the hole. 

You can read the full opinion here.

Barsumian Armiger Injury Lawyers advocates for clients in Indianapolis accident cases, including crashes and accidents involving motorized and electric scooters.

In Allen, a medical malpractice claimant filed a medical malpractice case against several providers. During the medical review panel process, the parties selected a medical review panel chairperson, who, after the medical review panel had been formed, set forth a schedule for the submission of evidence. The patient timely tendered his submission. The providers, however, failed to timely tender their submission, and the patient filed a petition in court seeking default judgment as a sanction for the providers’ failure to timely tender their submission. 

The Indiana Medical Malpractice Act provides that “[t]he panel shall give its expert opinion within one hundred eighty (180) days after the selection of the last member of the initial panel.” Ind. Code § 34-18-10-13. Medical providers in Indiana have been effective in using this 180-day timeline to get courts to dismiss patient claims. See, e.g., Quillen v. Anonymous Hosp., 121 N.E.3d 581 (Ind. Ct. App. 2019); Reck v. Knight, 993 N.E.2d 627 (Ind. Ct. App. 2013); Adams v. Chavez, 874 N.E.2d 1038, 1043-44 (Ind. Ct. App. 2007) (citing numerous cases in which patient claims were dismissed). However, there are no reported cases in which default judgment has been entered against medical providers for their failure to timely tender a submission.

Here, after months of delay, the medical providers tendered their submission to the medical review panel four days after the patient filed his petition seeking default judgment. While recognizing the providers’ delay, the trial court found “good cause” for the delay based upon defense counsel being “credible” in vaguely explaining “a misunderstanding” of the case’s status. The trial court also noted that even without good cause, default judgment, which is disfavored under Indiana law, was not an appropriate sanction. With the trial court noting no other sanction had been requested by the patient, the Court entered an order denying the patient’s petition for default judgment. After months of delay by the medical providers, and delay occasioned by the request for sanctions, which stayed the medical review panel process, the patient was left with the trial court’s “strong[] encourage[ment]” to the panel chairperson to expedite the remaining panel process.

On appeal the patient did not fare any better in holding the defense accountable. The Indiana Court of Appeals noted that the trial court’s decision was reviewable only for an abuse of discretion, a standard of review extremely partial to the decisions of trial courts. While sympathetic to the patient, the Court of Appeals ultimately affirmed the trial court’s decision declining to enter default judgment against the providers. Noting trial courts are to consider whether conduct is intentional or contumacious and whether prejudice resulted in deciding what, if any, sanctions are warranted, the Court of Appeals found it “cannot say” the trial court abused its discretion.

Thus, after months of delay occasioned by the defense, months of delay with litigation in the trial court, and around a year of delay appealing the trial court’s decision, the patient’s case will continue under Indiana’s medical review panel process, with no remedy provided to the patient. 

Judge Brown wrote a separate dissent, opining that the defense’s “repeated and ongoing failure to provide a timely submission to the medical review panel” warranted default as a sanction. Judge Brown thought the trial judge, who had some familiarity with the defense, “may have confused credibility as to counsel’s lack of intentionality with a showing of good cause,” and in any event, without regard to the lack of good cause shown, the defense’s “cavalier disregard for the statutory timelines and complete lack of communication” was intentional or contumacious conduct. Judge Brown noted that “[h]ealthcare provider defendants will continue to thumb their noses at the statutory requirements until and unless they are shown they will also be sanctioned appropriately for such behavior,” and  “it is unfair that our courts are quick to strictly hold plaintiffs accountable for their failures to adhere to evidentiary submission schedules but are reluctant or unwilling to hold defendant healthcare providers accountable for those same failures.” 

You can read the full opinion and Judge Brown’s dissent here.

Background: Improper IV Placement Leads to Severe Injury

In July 2015, Hetep Bilal Neter-Nu, a truck driver, visited the emergency department at Methodist Hospital with complaints of nausea and vomiting. After two IV lines became dislodged from his arms, a nurse—without a physician’s order and despite lacking training—placed an IV in Neter-Nu’s foot. Although he later complained of pain in the foot, and early signs of infiltration were documented, Neter-Nu was discharged two days later.

Several days later in Iowa, Neter-Nu was hospitalized with blackened toes and no blood flow in his foot. Doctors determined the foot was unsalvageable. On August 19, 2015, he underwent a below-the-knee amputation.

Neter-Nu submitted his claim to a medical review panel as required under Indiana’s Medical Malpractice Act. The panel unanimously found that the evidence did not support a conclusion that the healthcare providers failed to meet the applicable standard of care. Undeterred, Neter-Nu filed suit in Lake Superior Court against Methodist Hospital, Nurse Morgan Mittler, and Dr. Zainab Abbas, alleging that Mittler’s negligent IV placement and Abbas’s failure to recognize and respond to signs of injury led to the amputation of his leg, and that Methodist was vicariously liable for their conduct. Despite the unfavorable panel opinion, the case proceeded to a two-week jury trial in late 2022.

A jury found Nurse Morgan Mittler, Dr. Zainab Abbas, and Methodist Hospital liable and awarded Neter-Nu $11 million. The trial court reduced the award to $1.25 million under the then-applicable statutory cap imposed by the MMA (now $1.8 million) and awarded prejudgment interest on the then-applicable single $250,000 cap (now $500,000).

The Court of Appeals Reverses Jury Verdict and Remands for New Trial

The Indiana Court of Appeals had previously reversed the jury verdict and ordered a new trial, finding that the trial court erred in denying Methodist Hospital’s motion for judgment on the evidence and in instructing the jury that it could find the hospital liable for the actions of unnamed employees beyond the nurse and physician. The Court of Appeals also concluded the trial court should have given a superseding cause instruction and committed multiple evidentiary errors in excluding impeachment and habit evidence.

Supreme Court Affirms Verdict but Orders Correction on Prejudgment Interest

The Indiana Supreme Court granted transfer and vacated the Court of Appeals opinion, holding that while the trial court erred in some respects, those errors did not warrant a new trial given the application of joint-and-several liability, the adequacy of the jury instructions as given, and the defendants’ waiver of key evidentiary arguments. The Indiana Supreme Court largely upheld the trial court’s rulings and the jury’s verdict but found one key error: the trial court miscalculated prejudgment interest.

Under Indiana’s then-applicable MMA caps, qualified healthcare providers were liable up to $250,000 individually (now increased to $500,000), with the Patient’s Compensation Fund paying amounts above the cap up to the statutory maximum (presently capped at $1.8 million). The trial court awarded prejudgment interest based on just one $250,000 cap, despite both Mittler and Abbas being separately liable.

The Supreme Court clarified that each provider’s full $250,000 liability is subject to prejudgment interest. In other words, where multiple providers are liable, prejudgment interest applies to each defendants’ pre-Fund cap individually. The Court remanded the case for the trial court to recalculate prejudgment interest accordingly.

This aspect of the ruling represents an important clarification for plaintiffs and trial courts alike, ensuring that interest compensation is not artificially limited when multiple defendants are involved.

Hospital Liability: No Direct Liability Without Expert Testimony

The Court agreed with the defendants that the trial court erred in instructing the jury that it could find Methodist Hospital directly liable or vicariously liable for the acts of unnamed agents. The plaintiff had not presented expert testimony showing that any Methodist employee other than Mittler or Abbas breached the standard of care.

Nevertheless, the error was found to be harmless. The hospital had conceded that it was vicariously liable for both Mittler and Abbas, and the jury was properly instructed on joint-and-several liability. Because the jury’s damages award was not apportioned among defendants and the hospital’s liability flowed through the two employees already at issue, the verdict stood.

Jury Instructions: Superseding Cause and Hindsight

The defense had also requested jury instructions on superseding cause (arguing that Neter-Nu’s delay in seeking care broke the chain of causation) and on avoiding hindsight in assessing the standard of care. The Court found no abuse of discretion in the trial court’s refusal to give these instructions.

The Court explained that the trial court’s standard instructions on proximate cause and reasonable care under the circumstances adequately covered these issues. Importantly, the Court reiterated that superseding cause requires an independent and unforeseeable intervening act—which was not established here. Neter-Nu had been discharged on narcotic medications and was not medically trained, making his delay in seeking additional care foreseeable as a matter of law.

Evidentiary Rulings: Defendants Waived Key Objections

A recurring theme in the decision was the defendants’ failure to preserve certain evidentiary arguments. The providers attempted to introduce past medical records to show that Neter-Nu had a tendency to remove IVs during prior hospitalizations, arguing this showed a habit and could be used to impeach his credibility.

However, the Court found the trial court properly excluded the records. The defendants failed to establish the frequency and consistency necessary for “habit” under Indiana Evidence Rule 406. The Court also found the records constituted inadmissible character evidence under Rule 404(b), and that their introduction posed a risk of unfair prejudice by inviting the jury to infer that Neter-Nu was responsible for the IV dislodgement based on prior conduct.

Crucially, while the defense later argued on appeal that the records could have been used to impeach Neter-Nu’s testimony that he was a “compliant patient,” they did not make that specific argument at trial. By failing to preserve this basis, the Court held the issue was waived.

The same waiver occurred in the defendants’ attempt to impeach Neter-Nu’s expert witness, Dr. Tripp, using an earlier email. The trial court excluded the email after finding the defense had not properly laid the foundation to use it to refresh the expert’s recollection. Although the defense later characterized the email as impeachment evidence, that argument, too, was not clearly raised at trial and was thus waived.

The Court’s ruling serves as a reminder that trial counsel must clearly articulate the legal grounds for evidence admission at the time of the objection or offer of proof—arguments raised for the first time on appeal will not be considered.

Takeaways for Medical Malpractice Litigants

This case provides meaningful guidance on multiple fronts:

• Prejudgment interest applies to each provider’s full statutory cap, not just one, when multiple providers are liable.
• Individual provider defendants are each responsible for a full statutory pre-Fund cap (now $500,000) even if agents or employees of the same healthcare entity.
• The doctrine of superseding cause does not apply to patient actions, but rather applies to an unforeseeable act of a third person or other force.
• A provider raising a defense of superseding cause or other causation-based defense has the burden of coming forward with expert testimony meeting the evidentiary standard for causation, not mere speculation.
• Preserving objections and evidentiary theories at trial is critical—appellate courts will not consider new arguments raised after the fact.

At Barsumian Armiger Injury Lawyers, we remain committed to monitoring and explaining key legal developments affecting personal injury and medical malpractice claims across Indiana. If you or someone you love has been harmed by negligent medical care, our attorneys are here to help you pursue the justice and compensation you deserve. You can read the Indiana Supreme Court’s full opinion here.

Kiera Isgrig (Isgrig), a student at Indiana University in Bloomington, suffered injuries when a window, including its frame and casing, in one of the university’s buildings fell out of the wall and landed on her head while she was studying for finals with friends. The building, Swain Hall, was open and accessible to students and the public at large. IU staff came and examined the window and found two broken sash springs, but no defect that would have caused it to fall. IU would perform reactionary maintenance, as opposed to proactive maintenance, on its windows when notified of issues with its windows. IU last serviced the window that fell on Isgrig in repairing its blinds a little over a year prior to the incident. No other damage was found at that time.

Isgrig filed a personal injury lawsuit against IU in which she asserted the legal doctrine of res ipsa loquitur, which translated from Latin means the “thing speaks for itself.” Res ipsa loquitur provides an inference of negligence when something happens that would not normally happen without someone’s negligence. IU moved for summary judgment, which the trial court granted. The Indiana Court of Appeals reversed. The Indiana Supreme Court accepted transfer.

Claimants attempting to use res ipsa loquitur must show the injuring instrumentality was under the “exclusive control” of the defendant and what happened does not normally happen if those who have control over the injuring instrumentality use proper care. Importantly, exclusive control “focuses upon who has the right or power to control and the opportunity to exercise it” and can be found even where there may be multiple defendants or multiple possible causes. It is not necessary that a claimant eliminate every other possible cause other than the defendant’s negligence. If the elements of res ipsa loquitur are shown, the inference of negligence remains in the case to be considered by the factfinder, even if the defendant has an explanation for what happened. 

In this case, IU argued that it cannot be held liable under Indiana’s premise liability standard because it did not have actual or constructive knowledge of any issue with the window, res ipsa loquitur is inapplicable when, as here, a claimant cannot establish the elements of premise liability, and it did not otherwise have exclusive control of the window, as required by res ipsa loquitur. In its decision, the Indiana Supreme Court framed the question before it as “whether a plaintiff can utilize the doctrine of res ipsa loquitur to infer negligence in a premise liability case.”

After examining Indiana premise liability law, the doctrine of res ipsa loquitur, and the application of res ipsa loquitur in premise liability cases, including prior case precedent, the Indiana Supreme Court held “res ipsa loquitur is appropriate in premise liability where the injuring instrumentality is a fixture and where such an incident would not normally occur absent negligence,” and importantly, a claimant need not first establish the elements of premise liability. The Court found duplicative and unnecessary its recent requirement in Griffin v. Menard, Inc., 175 N.E.3d 811 (Ind. 2021) that a claimant show a defendant’s actual or constructive knowledge under Indiana’s premise liability law before proving the elements of res ipsa loquitur. “[W]here the injuring instrumentality is a fixture and if the plaintiff is relying on res ipsa loquitur, they do not need to first establish that the defendant had actual or constructive knowledge of the fixture’s defect.” 

Analyzing the facts of this case, the Indiana Supreme Court found Isgrig could use res ipsa loquitur to defeat IU’s motion for summary judgment. The Court agreed that “the window was under the exclusive control or management of the University” and “windows do not ordinarily fall out of walls if those who have management or control have exercised proper care.” The Court reasoned, “[g]iven the well-established duty of care that landowners owe to invitees, it follows that landowners should bear responsibility if invitees are injured by defective fixtures in buildings on their land.” However, the Court noted that the inference of negligence supplied by the doctrine of res ipsa loquitur does not equate with a finding of negligence. While the inference of negligence supplied by res ipsa loquitur is enough for claimants to overcome summary judgment, ultimately, it is up to the trier of fact—a judge or jury—to determine whether a defendant was negligent.

You can read the full opinion here. 

McElhany filed a personal injury lawsuit against Jordan and Grisham claiming they were negligent in causing her injuries. Jordan filed a motion for summary judgment arguing that neither she nor anyone in her household knew of the dangerous propensities of pit bulls. She also argued she could not be held liable for what happened when she was not in control of Gus when it happened. The trial court granted summary judgment in favor of Jordan, and McElhany appealed that decision.

Under Indiana law, there is a presumption that all dogs, regardless of breed or size, are harmless domestic animals, which generally shields dog owners from liability for their dogs’ acts. However, that presumption can be overcome when there is evidence of a known or dangerous propensity as shown by specific acts of a particular dog. A dog may have a dangerous propensity if the dog has a tendency to do any act that might endanger the safety of persons or property.

Jordan adopted Gus from an animal shelter. Gus came to the shelter after animal control received a report of a stray pit bull-mix dog near a dumpster that had reportedly “lunged at people.” The animal control officer that responded noted Gus did not lunge when first approached, but did bark and make a low growl. Gus received trazadone for anxiety at the animal shelter. While Jordan had not done so for another pit bull she had adopted from the shelter, she hired a behavioral trainer for Gus, describing Gus as “puppy bitey, not aggressive.” The trainer marked down that Gus showed “Aggression toward People,” as Gus had barked and lunged toward the trainer and her dog while on his leash when they first came to Jordan’s home. The trainer provided five training lessons, including one at Rural King. During a veterinary visit, Gus “tried to bite” a technician and required a basket muzzle. A basket muzzle was also used at another visit with the vet noting Gus “still hates being touched on the left ear” and “started to bark a lot ang [sic] growl more.” 

The day before the incident in this case, Jordan’s other pit bull died. While Grisham did not ask Jordan for permission to take Gus to the Rural King, Jordan had never told Grisham not to take Gus out in public, and she admitted that she would not have objected to Grisham taking Gus to the Rural King. Before the incident, when Grisham was at the Rural King with Gus, Gus snarled or snapped at another Rural King employee with no warning. The employee had noted Gus had a cut to the left side of his face, which Grisham indicated came from him falling out of a truck. After the incident, Gus was initially quarantined, as he was not up to date on his rabies vaccinations, but then he was returned. Jordan and Grisham later took Gus to the veterinarian for “some anxious behavior,” noting what seemed to be a stressful time with Jordan’s other dog passing and changes at home. The vet ordered trazadone and recommended Gus be seen by a veterinarian behaviorist. 

On appeal, the Indiana Court of Appeals found there was a genuine issue of material fact as to whether Jordan knew, or should have known, of Gus’s dangerous propensities. While the Court noted there was some evidence that Gus did not exhibit dangerous propensities, there was also evidence otherwise, including the nature of Gus’s capture, his veterinary and training records, McElhany’s testimony, and the testimony of McElhany’s veterinarian expert, who testified by affidavit that “taking a dog with anxiety such as Gus into a public store makes it likely that he will escalate to aggressive behavior.” The Court also noted, citing previous precedent, that while not all pit bulls are aggressive, “pit bulls are known to exhibit dangerous or vicious tendencies.”

With respect to Jordan not being present when the incident occurred, the Court noted Gus’s history of anxiety around people and known sensitivity to being touched near his left ear, which the Court found gave rise to a genuine issue of material issue of fact as to her negligence in “tacitly allowing Grisham to take Gus into public.” The Court noted the common experience of people approaching and petting dogs in public and the common practice of cashiers at the Avon Rural King offering treats to dogs. Jordan had never instructed Grisham not to take Gus out in public, and she admitted after the fact that she would not have objected to Grisham taking Gus to the Rural King. 

Findings genuine issues of material fact as to whether Jordan knew or should have known of Gus’s dangerous propensities before the attack and whether Jordan was negligent in allowing Gus to be taken out in the public, the Court of Appeals reversed the grant of summary judgment in favor of Jordan and remanded the case for further proceedings in the trial court. 

You can read the full opinion here.

After the fall, a hospital security guard found Rosen lying face down on the floor mat. Rosen said she tripped over the floor mat. However, according to the security guard, the floor mat was flat and not disheveled or flipped up in any way. The next day, after receiving the security guard’s incident report, a hospital security supervisor viewed video footage from three cameras in or near the hospital’s main entrance lobby. Of the three hospital cameras, the supervisor only preserved 10-12 seconds of footage from one of the cameras, which was near a security desk pointing towards the entrance approximately 75 feet or more away from the entrance. While the preserved video showed Rosen’s fall, the portion of the floor mat over which Rosen fell was obscured by a wheelchair. According to the supervisor, the other two cameras did not show Rosen’s fall. As part of the hospital’s camera system, video footage not specifically saved was erased within 45-60 days.

Rosen filed a lawsuit against the hospital for injuries sustained in the fall. Prior to filing the lawsuit, Rosen obtained the preserved video from the hospital. After filing the lawsuit, Rosen learned about the other two video cameras. During litigation, Rosen filed a motion for sanctions for the hospital’s alleged spoliation of evidence. The trial court denied Rosen’s motion, finding the hospital did not engage in spoliation of evidence. At trial Rosen made an offer of proof regarding the hospital’s alleged spoliation of evidence and sought a jury instruction on spoliation of evidence, which the trial court refused to give. The jury returned a verdict in favor of the hospital and Rosen appealed. 

Under Indiana law, spoliation of evidence involves the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Anyone who anticipates being a party or is a party to a lawsuit has a duty to preserve what they know, or reasonably should know, is relevant to the action, reasonably calculated to lead to the discovery of admissible evidence, reasonably likely to be requested during discovery, and/or the subject of a pending discovery request. The duty to preserve relevant evidence can arise prior to a lawsuit being filed when a party knows, or should know, that litigation is possible and exists regardless of any request for preservation. A party making a claim for spoliation of evidence must show (1) a duty to preserve evidence and (2) the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Spoliation of evidence can result in sanctions and an adverse inference against the spoliator that the evidence would have been unfavorable to the spoliator.  

Here, the Indiana Court of Appeals found the hospital’s failure to preserve additional video from the one camera it preserved video from and video from one of the other two cameras, which was above the main entrance and showed the main lobby before, during, and after Rosen’s fall, was spoliation. The Court found the hospital had knowledge that litigation was possible—and thus a duty to preserve evidence—as early as the day after the fall, noting that was when the hospital security supervisor reviewed the video footage from the three cameras and preserved the 10-12 seconds of footage from the one camera. The Court reasoned that, had the hospital preserved earlier video from the one camera when the wheelchair was not obscuring the mat, that footage may have shown the state of the mat before Rosen’s fall, which would have been relevant to Rosen’s claim. Similarly, while the hospital security supervisor stated the other two cameras did not show Rosen’s fall, the Court noted that no evidence was presented by the hospital as to whether the footage from the camera above the entrance showed the state of the mat before Rosen’s fall.  

The Court found the hospital’s spoliation of the video footage, whether negligent or intentional, prejudiced Rosen’s case. Rosen was unable to prove negligent maintenance of the floor mat because the video the hospital preserved did not show the state of the mat, whereas the erased video may have. The Court noted that, while Rosen could not prove the erased video definitively would have shown the state of the floor mat, she did not have to prove that. She only needed to show the spoliated evidence was “relevant evidence that might be useful to an adversary.”

As to remedies for the hospital’s spoliation, the Court found the trial court should have at a minimum given Rosen’s proposed jury instruction on spoliation, which stated that, “If a party fails to produce a document or physical evidence under the party’s exclusive control, you may conclude that the documents or evidence would have been unfavorable to the party’s case.” The Court found this instruction to be an accurate statement of the law and the trial court’s refusal to give the spoliation instruction was an abuse of discretion and reversible error. The Court remanded the case for a new trial, directing the trial court to give the spoliation instruction and grant any other appropriate sanction for the hospital’s spoliation of evidence.

You can read the Court’s full opinion here.

Gerard Kirsch, a longtime member and board member of Calvary Temple Church in Evansville, Indiana, was injured in 2019 while helping construct a storage barn on the church’s nearly five-acre property. While climbing a ladder to attach a metal sheet to the barn’s roof, Kirsch lost his balance and jumped from the ladder. Kirsch landed on the sharp edge of the metal sheet, causing a deep cut to his right arm that required surgery. Despite the procedure, he continued to experience numbness in his arm and hand.

Kirsch sued the church for his personal injuries, alleging negligence in failing to provide safe equipment, adequate supervision, and proper training. The church moved for summary judgment, arguing that Indiana Code § 34-31-7-2 limited its liability. Specifically, the church contended that it only had a duty to warn Kirsch of hidden dangers it knew about and to refrain from intentional harm—duties it claimed it had not breached.

Kirsch countered that the statutory limitation on church liability only applied to areas of the property “used primarily for worship services.” He argued that because the storage barn construction site was not an area used for worship, the church still owed him a general duty of reasonable care. The trial court agreed and denied summary judgment, but granted the church’s motion to certify its order for interlocutory appeal.

The Indiana Court of Appeals accepted jurisdiction and affirmed the trial court’s decision. It found the statute ambiguous and in derogation of common law and, therefore construed it narrowly. It likewise held that the statute applied only to specific portions of a church’s property primarily used for worship. The appellate court reasoned those other areas of church-owned land, like the storage barn site, fell outside the statute’s scope, leaving churches liable for negligence claims in those areas. We previously wrote about the decision here.

The church sought transfer. Reversing the lower courts, the Indiana Supreme Court ruled in favor of Calvary Temple Church. The Court determined that the term “premises” in Indiana Code § 34-31-7-2 refers to an entire parcel of church-owned land, not just the portions specifically used for worship services. Because the statute applies to premises as a whole, the church was shielded from liability for Kirsch’s claim.

Because the statute did not define “premises,” the Court noted it was the Court’s responsibility to define the term in the plain, ordinary sense. Consulting the American-Heritage Dictionary and Merriam-Webster Dictionary definitions of premises, the Court concluded premises includes “any real property that one can enter,” whether improvements or the land itself. Thus, the Court explained that the law’s plain language supports a broad interpretation of “premises,” encompassing the full extent of church-owned property. The Court further noted that the legislative intent behind the statute was to limit a church’s exposure to premises liability, reinforcing that churches are only responsible for warning invitees of known hidden dangers and avoiding intentional harm.

This decision significantly limits the circumstances under which a church can be held liable for injuries on its property. Under the Court’s ruling churches are protected from general negligence claims so long as the injury occurs on property that is “owned, operated, or controlled” by the church and “used primarily for worship services.” Liability is limited to failure to warn of known hidden dangers and intentional harm, meaning individuals injured on church property face a high burden in pursuing a claim. And, finally, the definition of “premises” includes an entire parcel of land, rather than just buildings or areas specifically used for worship services.

For personal injury attorneys and claimants, this ruling reinforces the importance of evaluating whether it will be possible to prove that a church knew of a hidden danger and failed to warn, or that the injury resulted from intentional misconduct. General negligence claims against churches will now face significant hurdles. You can read the decision here.

Jennings filed a personal injury lawsuit against Smiley. In discovery, Jennings obtained Smiley’s phone records, which did not show Smiley was talking or texting on her phone. His accident-reconstruction expert downloaded data from Smiley’s vehicle, which also did not show anything of consequence. Jennings then sought access to Smiley’s iPhone to extract data that might show use of the smartphone. Jennings referenced his accident-reconstruction expert’s opinion that Smiley had been “inattentive and/or distracted” and Smiley’s deposition testimony that she had been using a navigation app earlier in the day and had “looked up” just before the accident. Smiley objected to producing her phone and Jennings filed a motion to compel, which the trial court ultimately denied, based upon Smiley’s privacy concerns. A jury trial was held, with the jury finding Jennings 90% at fault and Smiley 10% at fault, which barred Jennings from any recovery under Indiana’s comparative fault scheme since he was more than 50% at fault for the accident.  

On appeal the Indiana Supreme Court first reviewed the competing interests of open access to information and a party’s privacy interests under Indiana’s trial rules. While allowing for liberal discovery, Indiana’s trial rules do provide limitations, including limitations based upon relevance, burden, expense, embarrassment, privilege, and proportionality. Noting that Indiana’s trial rules limit the scope of discovery to matters that are both relevant and proportional, the Court concluded that invasion of privacy is a “burden” to be considered and weighed against the “likely benefit” of discovery. However, unlike privileged information protected from disclosure, privacy concerns are not a per se bar to the discovery of relevant information.

The Court then fashioned a new standard for discovery of smartphone data. First, the party seeking discovery of smartphone data must provide “some evidence” of the smartphone’s use by the person from whom the data is sought at a time when the use could have been a contributing cause. In the Court’s view, this requirement presents “a relatively low burden for the requesting party to overcome.” Second, the party seeking the smartphone data must “describe each item and category with reasonable particularity,” which applies to the subject matter of the information sought (e.g., navigation apps) and the temporal scope of the request (e.g., on the day of the accident). If a party provides “some evidence” of the smartphone’s use when it could have been a contributing cause and sets forth the data sought with “reasonable particularity,” then the trial court can order production of the smartphone data, unless the person from whom it is sought objects, in which case the trial court shall consider all proportionality factors to determine whether the burden or expense of producing the data outweighs its likely benefit under Indiana’s trial rules.

With this new standard, the Court reviewed Jennings’ request in this case. Ultimately, the Court found Jennings’ request lacked the necessary evidentiary support and was too broad. As to the necessary evidentiary support, the Court noted that although Jennings’ accident-reconstruction expert believed Smiley was “inattentive and/or distracted,” the expert admitted that Smiley “could not have seen [Jennings] before the truck passed by him as [Jennings was] waiting on the corner,” and while the expert claimed Smiley must have been distracted, the expert had no explanation for why Jennings similarly did not see Smiley’s vehicle after stepping out from behind the truck. The Court noted the witnesses corroborating Smiley’s claims and the investigating officers having found no evidence of speeding, reckless driving, or distracted driving. The Court discounted Smiley’s statement that she “looked up” prior to the accident, as one of the officers testified people commonly say that as a type of expression. Lastly, the Court noted Smiley testified she had closed the navigation app she had been using, Jennings did not show how he or his expert could show active use of any apps, and with regards to the navigation app, even if it were being used, Jennings could not show how it caused Smiley to be distracted. With regards to the scope of the request, the Court found it overbroad, with no limit on what data was encompassed in the request, and in part unreasonably cumulative or duplicative considering the other evidence in the case. According to the Court, Jennings failed to meet his burden of showing how any benefit of producing Smiley’s smartphone for inspection outweighed Smiley’s privacy interest, and therefore, the trial court did not abuse its discretion in denying his motion to compel.

Justice Molter dissented voicing his disagreement with the Court’s conclusion. He noted, “there is little evidence more relevant than whether a driver was distracted by their cell phone, which is the evidence Jennings sought here.” While the Court found Jennings did not have compelling enough evidence of Smiley using her phone at the time of the accident, Justice Molter noted that that is the whole reason behind discovery—parties do not have to “provide the information they seek before they are permitted to seek it.” He also noted Jennings’ request was not overbroad, as any kind of data showing any kind of phone use would be relevant. Lastly, he noted the request was not duplicative or cumulative, but supplemental, as the phone records showing calls and texts did not show any phone use. Justice Molter believed the benefit of information showing whether Smiley was using her phone outweighed her privacy interests, which could easily have been addressed with a protective order. 

You can read the full opinion and dissent here.

After using the restroom, Cardenas and his teammates went to look at drinks and were talking and laughing. Without thinking about it, Cardenas put his hoodie back on. Sedam started yelling and cursing at him from across the store, calling him names. Cardenas again removed his hoodie and he and his teammates went to leave, with Sedam continuing to curse at Cardenas.  As he was leaving, Cardenas put his hoodie back on. Sedam said, “oh, you want me to come take that [omitted] off,” and then he began pulling on Cardenas’ hoodie. When Cardenas broke free, Sedam pulled out a gun, placed Cardenas in a chokehold, and held the gun against Cardenas’ head, while using racial slurs and stating he would “kill this guy.” The police responded to a bystander’s call, and after reviewing surveillance video, released Cardenas. Sedam was arrested a few weeks later and ultimately pled guilty to felony intimidation, criminal confinement, and pointing a firearm.

Cardenas filed a civil lawsuit against CVS, Single Source Security d/b/a Protos Security (“Protos”), a security company that CVS had contracted with, Protos’ subcontractor and Sedam’s employer, Shield Protection Solutions, LLC (“Shield”), and Sedam. CVS moved for summary judgment arguing that it could not be held liable for Sedam’s actions because Sedam was not its employee but an independent contractor. Under the doctrine of respondeat superior, an employer can be held liable for the acts of an employee done within the course and scope of employment. However, there is generally no liability for the acts of independent contractors.

Here, CVS had entered into a service agreement with Protos, which provided that, among other things, Protos was to perform management of security guard services; security guards were to provide customer support, managerial support, brand support, and record-keeping; Protos could use its own employees and/or subcontractors, all of whom were characterized as independent contractors and not agents or employees of CVS in the service agreement; all employees or independent contractors of Protos would have the requisite knowledge, expertise, and qualifications to perform the work; and Protos would provide the security services in accordance with CVS’s requirements as determined in CVS’s sole discretion, including numerous stated standards, responsibilities, duties, and requirements for the security services. 

Under Indiana law, a person’s classification as an employee or an independent contractor is generally a question of fact, unless the facts are undisputed, in which case courts can determine the classification as a matter of law. In determining whether someone is an employee or independent contractor, courts look at ten factors, with no single factor being dispositive. However, the “leading factor” is the first factor—control, with the Indiana Supreme Court having noted that an employee is someone employed to perform services and subject to the other’s control or right to control with respect to the physical conduct in the performance of services.

The ten factors courts look at in distinguishing an employee from an independent contractor are: 

1. the extent of control which, by the agreement, the master may exercise over the details of the work;
2. whether or not the one employed is engaged in a distinct occupation or business;
3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
4. the skill required in the particular occupation;
5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
6. the length of time for which the person is employed;
7. the method of payment, whether by the time or by the job;
8. whether or not the work is a part of the regular business of the employer;
9. whether or not the parties believe they are creating the relation of master and servant; and
10. whether the principal is or is not in business.

Here, the Court went through each of the factors, with reference to prior case precedent. The Court found factors 1, 3, 4, 7, and 10 favored classifying Sedam as an employee, whereas factors 2 and 9 favored classifying Sedam as an independent contractor. The Court found factors 5, 6, and 8 were neutral as to whether Sedam was an employee or independent contractor. For example, as to the leading first factor, control, the Court found the numerous stated requirements in the service agreement showed that CVS controlled numerous details of the work the security guards were to perform, including how they were to perform their work and their schedules, location within the store, and interaction with customers. Ultimately, the Court of Appeals found a reasonable fact-finder could conclude that Sedam was, for respondeat superior purposes, an employee of CVS when he attacked and pointed a gun at Cardenas, therefore making CVS liable for his actions. The Court accordingly reversed the trial court’s entry of summary judgment in favor of CVS.

You can read the full opinion here.

The Indiana Supreme Court granted transfer, thus vacating the opinion of the Court of Appeals, and ultimately affirmed the trial court’s denial of the Fund’s motion for summary judgment, with the Court resolving three issues of first impression.

First, the Court concluded that the Fund can challenge the applicability of the Medical Malpractice Act in claims for excess compensation. While a healthcare provider’s liability is considered admitted and established in claims for excess compensation, the Court noted that there is a critical distinction between a healthcare provider’s liability and the Fund’s liability, with the Fund being responsible only for claims that fall under the Act. The Court distinguished factual questions of compensability, like whether a patient suffered an injury and what caused it, which the Fund cannot contest, from legal questions of compensability, like whether an injury is one for which the law recognizes a cause of action and which theory of recovery applies, which the Fund can contest. Here, the Court found the Fund’s challenge to the Does’ claims involved a legal question of compensability, namely, whether the claims constituted medical malpractice under the Act or ordinary negligence.

Second, the Court concluded that a negligent credentialing claim can fall under the Indiana Medical Malpractice Act only if the credentialed physician commits medical malpractice. Under the Court’s analysis, a negligent credentialing claim is a not a stand-alone claim, but a secondary claim of liability in which the credentialing hospital and the credentialed physician must have each committed malpractice. While the Court recognized that credentialing is integral to health care, the Court noted that not every act of misconduct by a credentialed physician necessarily constitutes health care. The Court reasoned that without an underlying act of malpractice by the credentialed physician, a negligent credentialing claim lacks the necessary connection to health care. 

Third, the Court concluded that a physician’s sexual assault of a patient during an authorized examination can constitute malpractice if the alleged misconduct stems from an inseparable part of the health care being provided. The Court noted Indiana’s Medical Malpractice Act defines “malpractice” as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. “Tort” is defined as “a legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.” Ind. Code § 34-18-2-28. And “health care” is defined as “an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind. Code § 34-18-2-13. Thus, under the Court’s statutory analysis, sexual assault is a tort of malpractice if it is based on an act or treatment performed or furnished by a health care provider for, to, or on behalf of a patient during their medical care, treatment, or confinement. Looking at caselaw, the Court noted that there must be a causal connection between the conduct complained of and the patient-healthcare provider relationship, which is absent when the conduct is demonstrably unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. The Court noted that the necessary connection is more likely to be present when, as in this case, a physician assaults a patient during an authorized medical exam that requires the touching of sensitive areas.

Having resolved these three issues, the Court examined the Does’ specific claims. The Court noted that the pediatrician’s sexual assault in this case arose out of an authorized examination that involved the touching of the child’s sensitive areas and the misconduct was based on the pediatrician’s behavior or practices while acting in his professional capacity as a provider of medical services. The Court noted that the misconduct itself does not have to be an “act of health care” to be malpractice, so long as it stems from an inseparable part of the health care being provided during an authorized medical examination. Here, the misconduct was not demonstrably unrelated to the promotion of the boy’s health or the exercise of the pediatrician’s professional expertise, skill, or judgment. The Court accordingly found the designated evidence failed to show the Fund was entitled to judgment as a matter of law. The Court affirmed the trial court’s denial of the Fund’s motion for summary judgment and remanded the case for further proceedings.

You can read the full opinion here.

The Core Allegations

The ultra-processed foods (UPF) lawsuit names several multinational corporations, including Kraft Heinz, Mondelez, Post Holdings, Coca-Cola, PepsiCo, General Mills, Nestle, Kellanova, WK Kellogg Co., Mars, and ConAgra Brands, as defendants. These companies are accused of:

• Creating Addictive Substances: The complaint argues that ultra-processed foods (UPF) are designed to be addictive, using techniques borrowed from the tobacco industry to manipulate consumer behavior and brain chemistry. This includes the use of specific additives and processing methods that enhance palatability and drive consumption far beyond what is healthy or necessary.
• Targeting Vulnerable Populations: There’s a strong focus on how these companies aggressively market their products to children, particularly those from minority communities, using tactics like cartoon characters, vibrant packaging, and integrated promotions with popular media. The ultra processed foods (UPF) lawsuit claims that this marketing is not only deceptive but also contributes to an environment where young consumers are disproportionately affected by diet-related diseases.
• Health Consequences: The complaint explains how the introduction of ultra processed foods (UPF) has coincided with dramatic increases in childhood obesity, Type 2 Diabetes, and Non-Alcoholic Fatty Liver Disease. These conditions, once rare among children, are now alarmingly common, suggesting a direct link to the consumption of these foods.

Historical Context and Industry Knowledge

The ultra processed foods (UPF) lawsuit paints a picture of an industry fully aware of the health detriments of its products:

• Historical Warnings Ignored: For decades, warnings from scientists, health professionals, and regulatory bodies about the dangers of ultra-processed foods have been documented. Despite this, the defendants have allegedly continued their practices, prioritizing profit over public health.
• The Minneapolis Meeting: A pivotal moment described in the lawsuit is a secretive 1999 meeting in Minneapolis where food industry CEOs were warned about the health impact of their products. Despite this knowledge, no meaningful changes were implemented, leading to what the suit describes as a “banquet of consequences” for public health.

Legal Theories and Claims

Martinez’s lawsuit relies on several legal grounds:

• Negligence and Gross Negligence: For failing in their duty to produce, market, and warn about their products responsibly.
• Failure to Warn: The companies are accused of not adequately informing consumers of the risks associated with ultra processed food (UPF) consumption, especially in children.
• Breach of Warranty: Both express and implied warranties are claimed to have been breached, as the products were not fit for their intended use without causing harm.
• Fraudulent Misrepresentation and Concealment: Allegations that these companies misrepresented the safety, healthiness, and nature of their products while concealing known risks.
• Unfair Trade Practices: Under Pennsylvania’s consumer protection laws, the companies are accused of deceptive marketing aimed at vulnerable populations.
• Conspiracy and Concerted Action: Specifically targeting Kraft Heinz, Mondelez, Post Holdings, General Mills, Coca-Cola, and Mars for allegedly working together to manipulate the food market and consumer behavior.

Why This Case Matters

This lawsuit could be a turning point in how food corporations are held accountable for public health outcomes:

• Public Health Impact: If successful, this case could lead to significant changes in how food is processed, marketed, and regulated, potentially reducing the prevalence of diet-related diseases.
• Consumer Awareness: It highlights the need for consumers to be fully informed about the food they consume, especially when it comes to products aimed at children.
• Legal Precedent: A victory here might set a precedent for similar lawsuits against food companies, encouraging stricter regulations or even product reformulations.

What You Can Do

If you or someone you know has suffered health issues potentially linked to ultra-processed foods, particularly if you’ve been diagnosed with conditions like Type 2 Diabetes or Fatty Liver Disease at a young age, you might have a claim. The implications of this lawsuit extend far beyond Martinez; many could benefit from a legal review of their case:

• Seek Legal Advice: Contact a law firm to discuss your case. We are actively investigating ultra processed food (UPF) cases. With our experience in the product liability and mass tort arena, our lawyers can help assess whether you or a loved one may have grounds to pursue legal action against food corporations for health damages caused by their products. 
• Join the Movement: One of the primary purposes of tort law is to deter the harmful, avoidable conduct of others in the community. If you or a loved one has a claim, by participating in a legal action, you not only seek justice for your own health issues but contribute to a broader movement for food industry accountability and reform.

For a free consultation about whether you or a loved one may have a legal claim relating to the consumption of ultra-processed foods, please reach out to us at 844-268-7775. We look forward to challenging these practices that have long gone unchecked, thus advocating for a healthier future for all.

Understanding Depo-Provera and Its Use

Depo-Provera, generically known as medroxyprogesterone acetate, is an injectable form of birth control that has been on the market for decades. It works by preventing ovulation, thus reducing the likelihood of pregnancy. Administered every three months, it’s favored for its convenience and effectiveness, especially among women who have difficulty with daily pill regimens or wish to avoid estrogen-based contraceptives.

The Allegations Against Depo-Provera

The core of these lawsuits revolves around recent studies and medical reports suggesting a link between long-term use of Depo-Provera and the development of meningiomas, a type of brain tumor that arises from the membranes surrounding the brain and spinal cord. Here are the key allegations:

• Increased Risk: Plaintiffs argue that Depo-Provera increases the risk of meningiomas. This claim is supported by research indicating that users of medroxyprogesterone acetate for contraception might have a higher incidence of these tumors compared to non-users.
• Failure to Warn: The lawsuits claim that Pfizer did not sufficiently warn patients and healthcare providers about the potential risks of brain tumors associated with long-term use of Depo-Provera. This includes not updating product labels or providing adequate safety information.
• Negligence in Research: It’s alleged that Pfizer should have conducted more thorough research or acted on existing data to understand and communicate the risks, particularly given the drug’s long-term use.

Key Points from the Lawsuits

Several aspects stand out in these legal actions:

• Personal Stories: Plaintiffs often recount personal health struggles, detailing how their lives were affected after diagnosis with meningiomas, including surgeries, long recovery periods, and changes in quality of life.
• Scientific Backing: The lawsuits cite scientific studies, including a significant one from France published in 2024, which found a dose-dependent association between medroxyprogesterone acetate use and meningioma risk.
• Legal Grounds: Claims include negligence, failure to warn, design defect, and breach of warranty, with demands for compensatory and punitive damages to cover medical expenses, pain and suffering, lost wages, and more.

What Does This Mean for Current and Former Users?

If you are a current or former user of Depo-Provera, here’s what you should know:

• Assessment of Use: If you’ve used Depo-Provera for an extended period, particularly over years, it might be prudent to consult your healthcare provider about the potential risks and consider alternative contraception methods.
• Health Monitoring: Watch for symptoms that might indicate a meningioma, such as persistent headaches, vision problems, or seizures, and seek medical attention if these occur.
• Legal Rights: If you’ve been diagnosed with a meningioma after using Depo-Provera, you may have legal recourse.

Why You Should Consider Legal Action

• Justice and Compensation: These lawsuits aim not only to seek financial compensation for those harmed but also to hold pharmaceutical companies accountable for their products’ safety.
• Preventing Future Harm: By bringing these issues to light, current litigation could lead to better-informed consent for users and potentially stricter regulations on pharmaceutical marketing and safety testing.
• Community and Support: Joining or following these lawsuits connects you with others who’ve had similar experiences, providing a support network and possibly contributing to broader awareness and research into drug safety.

Steps to Take if You Believe You Have a Claim

If you or a loved one have used Depo-Provera and subsequently developed a meningioma, consider these steps:

1.    Medical Documentation: Gather all medical records related to your Depo-Provera use and your diagnosis of a brain tumor. 

2.    Consult a Lawyer: All legal cases are time sensitive and the longer the case is delayed, the more likely it is to face a statute limitations defense that could lead to dismissal of the claim regardless of merit. In Indiana, the statute of limitations for a personal injury or product liability claim arising out of a pharmaceutical injury is two years barring rare exceptions. Therefore, it is important to speak with an attorney as soon as possible. At Barsumian Armiger Injury Lawyers, we offer:

• Free Case Evaluation: Contact us for a no-obligation review of your situation.
• Personalized Legal Strategy: We tailor our approach to your specific circumstances, seeking to ensure your case is handled efficiently and effectively.
• Contingency Fee Basis: We operate on a contingency fee, meaning you pay nothing unless your case results in a monetary recovery.

3.    Stay Informed: Keep up-to-date with the latest developments in Depo-Provera litigation, as new studies or legal precedents could impact your case.

Conclusion

The Depo-Provera brain tumor lawsuits are not just about individual compensation; they are about setting a precedent for how pharmaceutical companies should manage and communicate the risks associated with their products. Unfortunately, the failure by pharmaceutical companies to warn consumers of side effects of drugs has become an all-too-common occurrence. If you believe you or someone close to you might have been affected, don’t hesitate to reach out for legal guidance. Together, we can work towards ensuring that those responsible are held accountable, and that future users of such medications are better protected.

For further information or to discuss your potential claim, call Barsumian Armiger Injury Lawyers today at 844-268-7775. Let us help you navigate this complex legal landscape toward the justice and support you deserve. 

Fergerson was 63 years old. He was an alcoholic who had started drinking alcohol when he was eight years old. He suffered from sciatica, a painful condition of the spine that can affect one’s ability to stand up and walk. He lived with his mother and, while he had a license, he often used IndyGo buses for transportation. He had been eight-days sober prior to the date of his injury. However, the morning he was run over, he had started drinking again and was briefly hospitalized for intoxication, confusion, and incoordination. After being released from the hospital, still mildly intoxicated, Fergerson went to a grocery store. Later, Fergerson was drinking from a liquor bottle while seated at the Lafayette Square Mall bus stop. One IndyGo bus driver refused to pick him up, telling him “[y]ou’re not coming on here with that liquor bottle.” A little over thirty minutes later, another IndyGo bus, driven by David Ross (“Ross”), pulled up and stopped past the bench where Fergerson was seated. Fergerson stood up, collected his packages, and walked towards the door of the bus, while two passengers on the bus exited. When Fergerson was about two feet from the door, the bus pulled away. Fergerson raised his arm reaching towards the bus from the sidewalk. His arm contacted the bus, his body spun around, he fell from the sidewalk onto the street under the bus, and he was run over by the rear wheels of the bus. Fergerson died from complications of blunt-force trauma. His blood alcohol concentration was over three times the legal limit to drive.

As they approach bus stops, IndyGo bus drivers are supposed to assess bus stops, including who is at the bus stop and may want to ride the bus. IndyGo bus drivers are trained on safety rules, including the need to keep a safety perimeter around the bus while stopped and in motion. The driver of the bus that ran over Fergerson, Ross, acknowledged, among other things, that he occasionally encountered drunk or disruptive riders, it was his responsibility to ensure their safety, including making sure everyone was completely clear of the bus before moving the bus, and he was supposed to allow extra time for the elderly and disabled. Ross acknowledged IndyGo buses have blind spots and that he was trained to, and knew he had to, check mirrors to confirm the presence of persons. He was also aware that the window by the bus door was tinted, limiting his visibility, which he had to take into consideration for safety.

Ross stopped the bus at the bus stop for only fifteen seconds, which included the time it took for two passengers to exit the bus. He testified he checked his mirrors, but only for a “split second, I guess.” Ross did not see Fergerson at any time before or after the incident. Ross did not see Fergerson sitting at the bus stop, approaching the bus, standing next to the bus, falling under the bus, or being run over by the bus. Ross first learned of the incident later in the evening on the day of the incident during his break.

Fergerson’s estate filed a wrongful death lawsuit against IndyGo. IndyGo moved for a directed verdict during trial based upon video from the bus, which was the only evidence presented at trial as to Fergerson’s actions. IndyGo argued Fergerson was contributorily negligent as a matter of law. A person is contributorily negligent by failing to exercise reasonable care that an ordinary person would exercise in similar situations—by failing to exercise that degree of care and caution an ordinary, reasonable, and prudent person would exercise under similar circumstances. While contributory negligence is typically a question of fact, it can become a question of law for courts to decide if the facts are undisputed and only a single inference can be drawn from the facts.

The trial court denied IndyGo’s motion for directed verdict. While the jury was instructed that any contributory fault on Fergerson’s part barred any recovery, the jury returned a $6,000,000.00 verdict for Fergerson’s estate, comprised of damages for loss of love and companionship and medical bills. The verdict was lowered, by stipulation of the parties, to $700,000.00, based upon the damages caps under Indiana’s Adult Wrongful Death Statute, which caps damages for loss of love and companionship of an adult person without dependents to $300,000.00, and the Indiana Tort Claims Act, which caps damages against governmental entities at $700,000.00.

On appeal, IndyGo argued the trial court erred in denying its motion for directed verdict because the indisputable video evidence showed Fergerson was at least somewhat negligent for reaching out to touch a moving bus. When reviewing a motion for directed verdict, reviewing courts consider only the evidence and reasonable inferences most favorable to the nonmoving party, and like trial courts, do not weigh evidence or assess witness credibility. The majority panel of the Indiana Court of Appeals noted that when video evidence is indisputable, meaning no reasonable person could view the video and conclude otherwise, the Court can rely on such evidence and reverse the fact-finder’s findings, which does not constitute reweighing evidence.

Here, the Court found “the undisputed evidence inescapably leads to the reasonable inference that Fergerson acted unreasonably in the face of a clearly-visible threat: his conduct in reaching out toward a moving bus demonstrated a lack of reasonable care that an ordinary person would exercise in like or similar circumstances, particularly in light of the fact that he suffered from sciatica, which can affect a person’s mobility, and the fact that he was intoxicated at the time.” In her dissent, Judge Riley noted directed verdicts are only appropriate when there has been a complete failure of proof because there is no substantial evidence or reasonable inference supporting an essential element of a claim. She opined one reasonable inference is that, in light of the bus’s quick stop and sudden departure while Fergerson was right next to the bus, Fergerson, who suffered from sciatica, was startled and reached out to the nearest thing to steady himself, which was unfortunately the bus. Like the jury, she opined Fergerson acted reasonably in the situation for his own protection and safety.

You can read the majority opinion and dissent here.