By: Arend J. Abel, Attorney
You may remember just over a year ago when a partner in Barnes & Thornburg’s Chicago office was sanctioned for live-tweeting a trial. That event makes all the more surprising an Ethics Opinion that the Indiana Commission on Judicial Qualifications issued last month. According to the Commission, live-tweeting a trial does not amount to “Broadcasting,” which is barred by Rule 2.17 of the Code of Judicial Conduct, except in very narrow circumstances or with prior permission of the Supreme Court.
by: Jonathan Knoll, Attorney
On January 10, 2013, the United States Court of Appeals for the Ninth Circuit sitting en banc found that the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act (“FDCA”) did not preempt a plaintiff’s state-law failure to warn claim when the state-law duty “parallels” a manufacturer’s duty under federal law. In doing so, the Ninth Circuit reversed an earlier decision by a panel of the Court that had upheld the district court’s holding that the plaintiff’s claims were preempted by the MDA.
by: Edward B. Mulligan V , Attorney
On Friday August 10, 2012, the United States Court of Appeals for the Sixth Circuit overturned a district court’s decision to dismiss the claims filed by Rachel Krumpelbeck in a product liability suit against Breg, Inc., a manufacturer of pain pumps and other medical devices.
Like hundreds of others in the pain pump litigation, Ms. Krumpelbeck’s claims arose out of her use of Breg pain pump following arthroscopic surgery. Ms. Krumpelbeck’s surgery occurred in March 2005, when she was just seventeen. Pain pumps were designed–as an alternative to conventional narcotics–to manage post-operative pain by continuously injecting local anesthetic directly into a patient’s shoulder joint.
by: Daniel M. Witte, Attorney
We’ve all done it before – given a hand-signal to a driver in another car – at intersections, in parking lots, etc. But what does it mean if a collision would then result, could you then be responsible for the collision, at least in part, because of your “wave”? Our Indiana Court of Appeals recently looked at that question and answered, under the specific facts of the case before it, that yes, you can have fault for a collision as a result of a hand-signal to another driver. This decision creates new Indiana law.
by: David J. Cutshaw, Attorney
Is a doctor responsible for a motorist’s injuries when he or she fails to warn his patient that the medications he is giving the patient may cause the patient to black out while driving an automobile? The answer to that question was discussed by the Indiana Court of Appeals in the case of Manley v. Sherer, 960 N.E. 2d 815 (Ind. Ct. App. 2011).
by: David J. Cutshaw, Attorney
In an interesting case, the Indiana Court of Appeals recently ruled that adoptive parents could proceed with a medical malpractice case against a hospital for misrepresenting the health of a child the couple sought to adopt. In Jeffrey v. Methodist Hospital, adoptive parents asked the hospital for the health records of an infant to see if the infant had any major medical problems before they decided to adopt the infant. The hospital “neglected” to provide the adoptive parents and their attorneys with a sonogram report that showed the infant had a hole in his brain which was indicative of severe developmental issues.
by: Arend J. Abel, Attorney
On February 10, the Indiana Court of Appeals issued an opinion that has the potential to remake summary judgment procedure in the Indiana state courts. The opinion, Commissioner of the Indiana Department of Insurance v. Estate of Black, No. 64A05-1104-CT-240, holds that a party moving for summary judgment is not required to negate an element of the opponent’s case, but can simply assert that the opponent does not have enough evidence to create a jury question on one or more elements. That holding appears to conflict with the decision of the Indiana Supreme Court in Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), and review of the issue by the Indiana Supreme Court on transfer, either in Black or in another case now seems highly likely.
by:David Cutshaw, Attorney
The Indiana Court of Appeals recently ruled that a plaintiff in a medical malpractice case can have a hearing to determine whether the Indiana cap on medical malpractice damages is unconstitutional. In Plank v. Community Hospital, the plaintiff obtained a jury verdict of $8.5 million relative to the death of his wife who died when the defendant doctors failed to diagnose a bowel obstruction. The obstruction caused the bowel to leak into the patient’s abdominal cavity causing a deadly infection. The Indiana Medical Malpractice act limits damages to $1.25 million; so the trial judge reduced the $8.5 million verdict to $1.25 million.