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Monday, December 12, 2005

Ind. Decisions - Court of Appeals posts three, dealing with: Trial Rule 35, ineffective counsel, and trade secrets

In Kelly Stuff, et al. v. Zachary L. Simmons, a 15-page opinion, Judge Riley writes:

Appellants-Plaintiffs, Kelly E. Stuff (Kelly) and Ken B. Stuff (Ken) (collectively, the Stuffs), appeal the trial court’s decision to grant Appellee-Defendant’s, Zachary L. Simmons (Simmons), Motion to Compel Kelly to Submit for Neuropsychological Examination pursuant to Indiana Trial Rule 35. We reverse and remand for further proceedings.

ISSUE The Stuffs raise one issue on appeal, which we restate as follows: Whether the trial court properly exercised its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs’ personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury. * * *

Specifically, referencing the requirements of T.R. 35, the Stuffs assert that Simmons failed to affirmatively show that Kelly has put her mental condition in controversy and that he has good cause for requesting Kelly to undergo neuropsychological testing. * * *

The parties did not proffer, nor did our research discover any Indiana cases interpreting the “in controversy” and “good cause” language of T.R. 35. As such, the question presented by the Stuffs is a matter of first impression. Because Indiana’s Trial Rule 35 largely duplicates the language of its equivalent rule of the Federal Rules of Civil Procedure, the federal courts’ construction of Federal Rule 35 is helpful in our analysis of T.R. 35. * * *

Based on the evidence before us, we conclude that a mere routine allegation of damages for emotional distress does not place the party’s mental condition in controversy. The plaintiff must assert or defendant must show a mental injury that exceeds the common emotional reaction to an injury or loss. To permit Simmons to compel a mental examination in the instant case because the Stuffs make a garden-variety claim of damages for emotional distress would open the door to involuntary mental examinations in virtually every soft tissue injury case. We do not believe T.R. 35 was intended to authorize sweeping probes into a plaintiff’s psychological past merely because she has been injured and makes a claim for emotional distress damages without more. Accordingly, we find that the trial court’s decision ordering Kelly to submit to neuropsychological testing to be against the facts and circumstances of the case. * * * Thus, the trial court abused its discretion and therefore, we reverse the trial court’s decision. * * *

Even though we acknowledge that our inquiry may end due to Simmons’ failure to put Kelly’s mental condition in controversy, however, because of the issue’s novelty we will address the good cause requirement under T.R. 35. * * *

Furthermore, the Texas Supreme Court in Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988), reh’g denied, appears to have distilled the good cause requirement into three elements: (1) an examination is relevant to issues that are genuinely in controversy in the case; (2) a party must show a reasonable nexus between the condition in controversy and the examination sought; and (3) a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination.

CONCLUSION Based on the foregoing, we find that the trial court abused its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs’ personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury. Reversed and remanded for further proceedings.

In Ryan A. Specht v. State of Indiana, a 25-page opinion, Judge Vaidik concludes:
Ryan Specht appeals the post-conviction court’s partial denial of his petition for post-conviction relief. Specifically, Specht contends that the post-conviction court erred by finding that his counsel were not ineffective either at trial or on appeal in his prosecution on charges of murder, attempted murder, and robbery.1 Finding that Specht’s counsel were ineffective at the trial level regarding the attempted murder charge, we reverse that conviction. Because his counsel were otherwise not ineffective, we affirm the post-conviction court in all other respects. * * *

Specht’s counsel were ineffective at trial in failing to object to the jury instructions given on accomplice liability for attempted murder and in failing to tender a proper instruction. We therefore reverse Specht’s conviction for attempted murder. In all other respects we find that Specht’s counsel were not ineffective, and we affirm the post-conviction court’s partial denial of post-conviction relief. Affirmed in part, reversed in part.

In M.K. Plastics Corporation v. Anthony Rossi, a 22-page opinion, Judge Baker writes:
Appellant-plaintiff M.K. Plastics Corporation (M.K. Plastics) appeals from the trial court’s denial of its motion for preliminary injunction. Specifically, M.K. Plastics contends that the trial court erred in concluding that M.K. Plastics does not have protectible trade secrets under the Indiana Uniform Trade Secrets Act1 (IUTSA) and that Rossi’s actions did not constitute misappropriation of trade secrets under the IUTSA. Concluding that the trial court properly denied the motion for preliminary injunction, we affirm.

Posted by Marcia Oddi on December 12, 2005 10:32 AM
Posted to Ind. App.Ct. Decisions