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Monday, May 23, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Stephen Robertson, et al. v. B.O., et al. , a 14-page opinion, Judge Riley writes:

Issue. Whether the [Indiana Patient’s Compensation Fund] can introduce evidence concerning the existence and compensable nature of B.O.’s damages after B.O. entered into a settlement with the healthcare provider settling his claim of medical malpractice. * * *

Health care providers in Indiana may settle medical malpractice claims for a multitude of reasons, like concerns over the complexity of the case that might make it difficult for a jury to understand the issues, the weaknesses in a case that may be raised by members of the medical review panel notwithstanding a favorable opinion, and the relative cost of defending a medical malpractice claim through extensive scientific, medical, and other expert testimony. The admission of liability and acceptance of proximate cause by way of a settlement between the claimant and the health care provider does not obligate the Fund to compensate claimants for damages that are of a non-compensable nature. See Dillon, 597 N.E.2d at 973. As such, the Fund cannot be precluded from introducing relevant evidence on the compensable nature and event of a claimant’s injury merely because the health care provider elected to settle the underlying medical malpractice claim and liability has been established by operation of I.C. § 34-18-15-3. Holding otherwise would force health care providers to litigate the compensable nature and extent of the alleged injury in the underlying action or forfeit the Fund’s ability to present such evidence in calculating the amount of excess damages, if any, recoverable in the secondary action against the Fund. Therefore, we reverse the trial court and conclude that, here, the Fund can present evidence allegedly establishing that B.O. does not have spastic diplegia or that his symptoms are not due to an insult at birth.

In Jimmie E. Jones, Jr. v. State of Indiana , an 8-page opinion, Judge Bailey writes:
Jones’s theory of defense was self-defense. Nonetheless, he now argues that the jury, if properly instructed, could have found that he intended only to batter Takash, who died during the commission of that battery, or that he recklessly killed Takash, but did not do so knowingly. * * *

Although the State cannot draft an information that forecloses an instruction on an inherently lesser included offense of the crime charged, the State may foreclose instruction on a lesser offense that is not inherently included in the crime charged by omitting from a charging instrument factual allegations sufficient to charge the lesser offense. Wright, 658 N.E.2d at 569-70. See also Jones v. State, 438 N.E.2d 972, 975 (Ind. 1982) (observing that absolute discretion rests in the State to determine the crime(s) charged and that the State can through drafting foreclose to the defendant a tactical opportunity to seek a conviction for a lesser offense).

Jones was charged with knowingly killing Takash. The information did not assert a battery. In these circumstances, Involuntary Manslaughter was not a factually included lesser offense of Murder. Cf., Roberts v. State, 894 N.E.2d 1018, 1029 (Ind. Ct. App. 2008) (although the method of murder was choking and suffocation, it was within the State’s discretion to draft the charging information with no reference to a battery, foreclosing the opportunity for Roberts to seek a conviction on a lesser offense), trans. denied.

In Willie McCain, Jr. v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Willie McCain Jr. appeals his conviction for Class B felony dealing in cocaine. McCain was accused of selling cocaine to a confidential informant. The informant avoided drug charges of her own in exchange for her participation in this case. At trial, McCain sought to elicit the potential sentence avoided by the informant for her cooperation. The trial court precluded discussion of any specific sentence that the informant might have faced had she been convicted on her non-filed drug charges. In addition, the confidential informant had a prior theft conviction which was vacated pursuant to an agreed order shortly before McCain's trial. McCain sought to elicit and argue that the conviction was set aside to sweeten the informant's deal and to “clean up” her criminal background before she testified. The trial court prohibited any such discussion as unsubstantiated, potentially misleading, and unfairly prejudicial. We conclude that the trial court's rulings were erroneous and violated McCain's right to cross-examination, but we find the errors harmless beyond a reasonable doubt. We affirm the trial court's judgment of conviction.
NFP civil opinions today (1):

Quan Ning Huang v. Tanas B. Donev (NFP)

NFP criminal opinions today (7):

James Andrew Foxworthy v. State of Indiana (NFP)

Jack M. Estes, II v. State of Indiana (NFP)

Ronald Hollin v. State of Indiana (NFP)

Joseph Cree v. State of Indiana (NFP)

Johnny Baptiste v. State of Indiana (NFP)

Donald Mallard v. State of Indiana (NFP)

Russel F. Cowherd v. State of Indiana (NFP)

Posted by Marcia Oddi on May 23, 2011 10:57 AM
Posted to Ind. App.Ct. Decisions