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Wednesday, December 22, 2010

Ind. Decisions - Rare "for publication" dissent in order denying petition for rehearing

Recall the July 21 COA opinion in Indiana Dept. of Insurance v. Robin Everhart, summarized here by the ILB - 3rd case. The opinion was written by Sr. Judge Sullivan, CJ Baker and J. Robb concurred. The court reversed the trial court’s judgment and remanded for a recalculation of damages consistent with this opinion.

Late yesterday afternoon (Dec. 21, 2010, 2:50 PM) this 9-page "Dissent to order denying petition for rehearing - for publication" was posted. The dissent is authored by J Robb. It begins:

In Indiana Dep't of Ins. v. Everhart, 932 N.E.2d 684 (Ind. Ct. App. 2010), we addressed the issue of whether the Indiana Patient's Compensation Fund (the “Fund”) was liable for the full amount of excess damages when in the absence of a doctor's negligence, the decedent would have had a “better than 80% chance” of surviving injuries incurred in an automobile accident. The trial court awarded to the Estate of James Everhart the statutory maximum damages of $1,000,000 and the Fund appealed. We reversed, holding the trial court should have awarded damages only in proportion to the increase in risk of harm that was caused by the malpractice, relying on the approach set forth in Restatement (Second) of Torts § 323 (“section 323”) and adopted in Mayhue v. Sparks, 653 N.E.2d 1384 (Ind. 1995). Everhart, 932 N.E.2d at 689-90. Everhart has petitioned for rehearing, contending section 323 should not be applied under the facts of this case. Upon revisiting the case as a whole, I agree and would grant the rehearing. I therefore respectfully dissent from my colleagues' denial of Everhart's petition for rehearing.
Practitioners should also note the ending of soon-to-be-Chief Judge Robb's opinion:
And despite agreeing with Everhart that rehearing is warranted, I also note the overall tone of Everhart's petition for rehearing is not in general effective appellate advocacy. See Appellee/Plaintiff's Petition for Rehearing at 2 (“This Court's opinion destroys the foundation of our civil justice system . . . .”); and 11 (“If this decision stands, proximate cause is no longer meaningful, and the concept of a preponderance of the evidence is sitting on the window sill ready to fall. The potential for appellate issues is staggering.”). “Righteous indignation is no substitute for a well-reasoned argument.” WorldCom Network Servs., Inc. v. Thompson, 698 N.E.2d 1233, 1236-37 (Ind. Ct. App. 1998), trans. denied. I would caution counsel that future disagreement with this court can and should be addressed without unnecessary hyperbole. However, upon reconsideration, I agree with Everhart's basic assertion that the trial court's order for full excess damages should have been affirmed, and I would grant the rehearing and vacate our earlier opinion for the reasons expressed herein.

Posted by Marcia Oddi on December 22, 2010 09:45 AM
Posted to Ind. App.Ct. Decisions