Monday, April 03, 2017
Ind. Decisions - Transfer list for week ending March 31, 2017
Here is the Clerk's transfer list for the week ending Friday, March 31, 2017. It is one page (and 18 cases) long.
No transfers were granted last week.
Ind. Decisions - McKeen v. Turner: "Hail Mary Passes & Banana Peels"
The March 23rd oral argument in McKeen v. Turner, a argument where the Supreme Court had not yet decided whether to grant transfer (watch the oral argument here and read the ILB summary of the Court of Appeals' Oct. 4, 2016 opinion here), is the subject of a good story by Norman Tabler, Jr., Faegre Baker Daniels, in JD Supra Business Advisor:
March 23 saw a rare spectacle in the courtroom of the Indiana Supreme Court: lawyers for a medical malpractice case plaintiff, supported by the Indiana Trial Lawyers as amicus, and lawyers for the physician defendant in the case, supported by Defense Trial Counsel of Indiana as amicus, argued for the same result: the Supreme Court should accept the petition for transfer of a case from the Indiana Court of Appeals.ILB: Here is the case docket. The most recent entry is:
But being lawyers, the two sides had diametrically opposed reasons for seeking that result. The defendant and defense bar want the Court to overturn the decision, while the plaintiff and trial lawyers want the Court to affirm it.
The decision at issue is McKeen v. Turner, which came down in favor of the plaintiff, ruling that the 2011 Court of Appeals case, K.D. v. Chambers, “was wrongly decided and/or has been misread.” That 2011 opinion has generally been read to prevent a medical malpractice plaintiff from raising a theory of liability in court that was not raised before the Medical Review Panel proceeding, which in Indiana precedes the court case.
The physician defendant in McKeen and the defense bar love K.D. and hate McKeen. The defendant’s lawyer argued that McKeen allows a plaintiff who is unhappy with the panel’s decision to “throw a hail Mary pass on the eve of trial,” raising a theory that neither the defendant nor the panel has considered.
The plaintiff in McKeen and the plaintiffs’ bar hate K.D. and love McKeen. They want the Court to grant transfer so that McKeen can be “summarily affirmed.” The Trial Lawyers representative told the Court that K.D. is “a banana peel on the floor” that everyone keeps slipping on. Whenever a plaintiff raises a new argument, the defendant yells “waiver” and cites K.D. The plaintiffs’ bar wants to Court to make it clear that K.D. is not good law.
Only lawyers could maneuver themselves into a position to completely agree in order to completely disagree.
Attorney: O'Neill, Michael
Party: Charles McKeen, M.D.
Notice of Inadvertent Misstatement During Oral Argument
Ind. Gov't. - More on: Approaching legislative deadlines
INDIANAPOLIS — The Indiana General Assembly is planning to adjourn for the year in just three weeks, leaving lawmakers little time to work out compromises on some of the biggest issues of the session. * * *Dispite the projected closing date just two weeks from Friday, Committee meetings are still occuring today, and one, Senate Veterans Affirms, is set for tomorrow.
Despite the numerous boxes that need checking on the Legislature's to-do list prior to its planned April 21 adjournment, House Speaker Brian Bosma, R-Indianapolis, is optimistic it will get done.
"I'm confident we're going to come to reasonable conclusions on all of these, and then deal with some other things," Bosma said. "If we didn't sell guns and alcohol in this state my job would be a lot easier."
Senate President David Long, R-Fort Wayne, also anticipates ending the four-month session several days before the mandatory April 29 deadline, but he said April 21 "is not necessarily the endgame if we can't come to yes."
"We're working hard to get there," Long said.
Ind. Law - "Is it ever good if lawmakers have to preface law w/ their intent?"
Niki Kelly of the Fort Wayne Journal Gazette tweets this morning: "Back at it this morning. Looking at new amendments on cold beer. Is it ever good if lawmakers have to preference law w/ their intent?"
Checking the current edition of the Drafting Manual for the Indiana General Assembly, page 51 [p. 65 in PDF]:
Avoid the use of preambles. A preamble is similar to a Concurrent Resolution; that is, it is a statement that does not have the effect of law but reflects the sentiment of the General Assembly at the time that it is passed. A preamble is permitted only in the rare instance when there is a need to express the reasons for legislation, the purpose of legislation, or findings related to legislation on the face of the bill itself. This material takes the form of "Whereas" clauses that are placed at the beginning of the bill following the title and before the enacting clause. Since a preamble appears before the enacting clause, the preamble is not printed as a part of the law in the Indiana Code but does appear in the session laws.See also page 62 [p. 76 in PDF]:
(2) Purpose Provisions (See also BILL PREAMBLE, page 51.)
A well-drafted act requires no statement of what it seeks to accomplish or the reasons prompting its enactment. In general, do not include language stating the purpose of an act or reciting the facts upon which an act is predicated unless the included language would be useful in upholding the act against constitutional attack or is necessary to give meaning to a provision for liberal construction. Note that problems can arise if a purpose provision conflicts with other parts of the statute.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/3/17):
- No oral arguments scheduled.
- No oral arguments scheduled.
This week's oral arguments before the Court of Appeals (week of 4/3/17):
Friday, April 7
- 1:00 PM - Todd A. Stigleman v. State of Indiana (89A01-1608-CR-01783) The State charged Todd Stigleman with fourteen counts related to interactions with his estranged wife and alleged he was an habitual offender. A jury found him guilty of all charges, but the trial court entered judgment of conviction only on four counts of Class A felony kidnapping and two counts of Class C felony stalking. He was sentenced to forty years for each Class A felony conviction, to be served concurrently, and to six years on the Class C felony convictions, to be served concurrently with each other but consecutively to the Class A felony sentences. The trial court also imposed a thirty-year habitual offender enhancement, resulting in a total sentence of seventy-six years. Stigleman appeals his convictions and sentence, contending the trial court erred in admitting evidence of other acts in violation of Evidence Rule 404(b); the trial court erred in denying his motion to sever the counts; and his sentence is both erroneous and inappropriate. The Scheduled Panel Members are: Judges Baker, Robb, and Crone. [Where: Valparaiso University Law School, Valparaiso, IN]
Tuesday, April 11
- 10:00 AM - Indiana Gas Company, Inc., and Southern Indiana Gas & Electric Company v. Indiana Utility Regulatory Commission, et al. (93A02-1604-EX-00943) Appellants/Plaintiffs, Indiana Gas Company, Inc. and Southern Indiana Gas & Electric Company (collectively, “Vectren”), appeal the appellee, Indiana Utility Regulatory Commission’s (“the IURC”), denial of their petition to update their seven-year plan under the Transmission, Distribution, and Storage System Improvement. On appeal, the parties ask us to determine whether a utility may add qualifying new projects to its existing seven-year plan under the TDSIC statute’s update process. Vectren also raises the issue of whether the doctrine of res judicata prevents the IURC from revoking its earlier approval of Vectren’s update plan for its seven-year plan. Indiana Energy Association has filed a “friend of the court” brief that aligns with Vectren, and Industrial Energy Consumers, Inc. has filed a “friend of the court” brief that aligns with the Appellees-Defendants, the IURC and the OUCC.
The Scheduled Panel Members are: Judges Bradford, Pyle, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - B&R Oil Company, Inc., Empire Petroleum Partners, and EPP -Atlas Acquisition, LLC v. William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc. (71A04-1603-PL-00608) B&R Oil Company, Inc. (“B&R”) separately leased gas stations to William E. Stoler and Kathlyn Stoler (“Stoler”) and Jeffery A. Levy and Con-Serve, Inc. (“Levy”), and each lease had a “right of first refusal” provision. Subsequently, B&R sold substantially all of its assets to Empire Petroleum Partners, LLC and its affiliate EPP-Atlas Acquisition, LLC (“Empire”). Before closing the transaction with Empire, B&R notified Stoler and Levy, and a dispute arose about Stoler’s and Levy’s rights under the “right of first refusal” provision. Stoler and Levy sued, and the trial court granted partial summary judgment to Stoler and Levy. B&R and Empire now appeal the interlocutory order. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Melvin Wolf v. State of Indiana (10A01-1607-CR-01560) On April 27, 2008, a truck owned by Appellant-Defendant Sandberg Trucking, Inc., and driven by Appellant-Defendant Kamiel Horn struck a deer while southbound on I-65 in the dark. After striking the deer, Horn pulled his truck over to assess the damage to his truck but did not activate his flashers or deploy reflective devices. Shortly thereafter, a car in which Appellee-Plaintiff Brittany M. Johnson was a passenger approached the scene, swerved left to avoid the deer, and collided with Horn’s truck after overcorrecting right. The driver of the car was killed and Johnson was permanently injured. A jury found Appellants to have been 30% at fault for Johnson’s injuries and awarded her $2.13 million. Appellants contend that Johnson did not establish that any action by them proximately caused her injuries, the trial court erroneously allowed the jury to engage in impermissible speculation in reaching their verdict, erroneously concluded that a certain federal regulation applied even though Horn was not involved in interstate commerce, and that the jury’s award was not based on evidence admitted at trial. Johnson contends that the she did establish proximate cause, the trial court properly concluded that the federal regulation at issue applied in this case, and that the jury’s award was supported by ample evidence of permanent disability. The Scheduled Panel Members are: Judges Najam, Riley, and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.Past Court of Appeals oral arguments which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.