DTCI: 2019 amicus activity — summary of key cases

By Lucy Dollens

This year, the Defense Trial Counsel of Indiana has participated as amicus in a variety of issues of significant interest to the defense bar. Although DTCI is unable to become involved in every case in which its participation is requested, the Amicus Committee and the board of directors carefully consider each request and welcome the chance to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts. Please reach out to the DTCI Amicus Committee when an important issue arises to seek involvement, where appropriate, by DTCI as amicus.

International Business Machines Corp. v. State of Indiana on behalf of the Indiana Family & Social Services Administration
Brief written by James D. Johnson and Blair M. Gardner, Jackson Kelly PLLC

In International Business Machines Corp. v. State of Indiana on behalf of the Indiana Family & Social Services Administration, DTCI submitted an amicus brief addressing an award of post-judgment interest where the final judgment with setoffs was not determined until five years after the 2012 damages award. In 2009, the state terminated IBM for allegedly breaching a $1.3 billion contract to “modernize” FSSA’s delivery of welfare services. In 2012, the trial court (Dreyer, J.) entered judgment disposing of all claims that IBM and the state asserted against each other, denying the state’s claims and awarding $62.5 million to IBM. The Indiana Supreme Court reversed, holding the state was entitled to judgment on its claims; remanded to calculate the state’s damages; and directed the trial court to offset IBM’s damages ($49.5 million of which were upheld) in entering final judgment. On remand, the trial court (Welch, J.) calculated the state’s damages to be $128 million, offset IBM’s damages and entered a net judgment of circa $78.2 million for the state. The trial court rejected IBM’s claim to “post-judgment interest” dating to the trial court’s (Dreyer, J.) 2012 ruling on IBM’s $49.5 million damages offset. The Court of Appeals affirmed the damages award and judgment for the state but reversed on IBM’s interest claim and held that Indiana Code § 34-13-1-6 entitled IBM to “post-judgment interest” on $49.5 million of the trial court’s 2012 award.

DTCI submitted an amicus brief on Nov. 13, 2018, in support of FSSA’s petition to transfer. DTCI was granted leave to appear as amicus on Nov. 5, 2018. On June 26, 2019, the Indiana Supreme Court issued its decision, ruling in favor of DTCI’s position on the issue. See Int’l Bus. Machines Corp. v. State on behalf of the Indiana Family & Soc. Servs. Admin., 124 N.E.3d 1187 (Ind. 2019). The Indiana Supreme Court found the award of post-judgment interest going back to the date of the original judgment to be inappropriate. The court held that the post-judgment interest due to IBM runs from the date of the judgment on remand.

Noel v. Indiana University Health
Brief written by Robert J. Palmer, May Oberfell Lorber

In this case, the trial court addressed Indiana’s preferred venue rules, relying upon the Indiana Supreme Court’s decision in American Family Insurance Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006), which held that the principal office of a foreign corporation under Indiana Trial Rule 75(A)(4) is the county in which the resident agent is located. In its amicus brief filed with the Indiana Court of Appeals, DTCI argued this conclusion is no longer supported by legal grounds and, consequently, the location of the resident agent should no longer be considered a county of preferred venue. Indiana’s Legislature enacted a version of the Uniform Law Commission’s Model Registered Agents Act under Indiana Code § 23-0.5-4-12, which affirmatively states that the location of the resident agent is not a basis for venue. DTCI argued this adoption reflects current realities in the business world that registered agents are now commonly business entities that have no connection with a foreign or domestic corporation other than accepting service of process.

The Court of Appeals issued its ruling on Nov. 7, 2018, holding that I.C. 23-0.5-4-12 conflicts with T.R. 75(A)(4) as interpreted by the Indiana Supreme Court in American Family Insurance Co. and that the statute is, therefore, a nullity. The court found preferred venue lies in the county where the registered agent of the defendant is located.

However, on June 27, 2019, the Indiana Supreme Court granted transfer and issued its decision, ruling in favor of DTCI’s position on the issue and finding that a domestic organization’s actual principal office — and not the location of its registered agent — is the appropriate preferred venue. In doing so, the Indiana Supreme Court reversed the trial court’s ruling in Noel and held that in light of new business corporation statutes, the location of the registered agent no longer determines preferred venue for either domestic or foreign corporations.

G.F. v. St. Catherine Hospital, Inc.
Brief written by Jenny R. Buchheit and Sean T. Dewey, Ice Miller LLP

In G.F. v. St. Catherine Hospital, Inc., the Indiana Court of Appeals held that a plaintiff’s claim for negligent or intentional disclosure of protected health information when in the presence of a third party is not subject to the Indiana Medical Malpractice Act, Indiana Code § 34-18-1-1 et seq. (MMA). Furthermore, the court held that a plaintiff was not estopped from challenging the applicability of the MMA after commencing and completing the medical review panel process. DTCI submitted an amicus brief in support of defense counsel’s petition to transfer, seeking guidance from the Indiana Supreme Court on the applicability of the MMA in such circumstances and on whether a medical malpractice plaintiff may challenge the applicability of the MMA after that plaintiff has sought and received a decision from the medical review panel. The court granted DTCI leave to appear as amicus on June 24, 2019. On Sept. 5, 2019, the Indiana Supreme Court denied transfer.

Golden Corral Corp. v. Lenart
Brief written by Richard K. Shoultz and Neal Bowling, Lewis Wagner, LLP

In Golden Corral Corp. v. Lenart, the Indiana Court of Appeals ruled that the expert testimony proffered by plaintiff was properly admitted because any flaws in its methodology (here, differential etiology) should go to the weight and not admissibility of such testimony. DTCI submitted an amicus brief in support of defense counsel’s petition to transfer, requesting that the Indiana Supreme Court clarify the gatekeeping requirements of Rule 702 for an expert’s use of differential etiology in reaching an opinion on causation. In its brief, DTCI sought guidance from the court that Rule 702 permits opinion testimony as to differential etiology only when that testimony applies it in a scientifically sound manner. The Indiana Supreme Court granted DTCI leave to appear as amicus on Aug. 8, 2019. On Nov. 7, 2019, the Indiana Supreme Court denied transfer.

River Ridge Development Authority v. Outfront Media, LLC, et al.
Brief written by Peter H. Pogue and Beth A. Behrens, Shultz & Pogue, LLP

In River Ridge Development Authority v. Outfront Media, LLC, plaintiffs filed a Rule 41 dismissal, and the trial court conducted an evidentiary hearing, awarding defense counsel’s request for fees against plaintiffs. However, the Indiana Court of Appeals reversed the trial court’s award of fees, finding that outside specific statutory authority or equitable exceptions, a trial court lacks inherent authority to award attorney fees, regardless of the factual circumstances, except in “certain circumstances” that include only “a party in contempt, violations of the discovery process, or violations of other court orders.”

DTCI submitted an amicus brief in support of the defense’s petition to transfer, addressing the issue of whether a trial court retains inherent authority to award fees where facts otherwise support them. In its brief, DTCI asked the Indiana Supreme Court to clarify that a trial court retains inherent discretionary authority to award attorney fees in cases it deems appropriate in the interest of justice and equity and that a trial court should not abuse that discretion. A ruling has not yet been issued by the Indiana Supreme Court.

Thanks to Amicus Committee members, brief authors and the board

DTCI and the Amicus Committee appreciate and thank attorneys (and their firms) who devote their time and talents to drafting requests for amicus involvement, authoring amicus briefs and working with attorneys for the parties with whom DTCI are aligned on appeal. Additionally, I want to specifically thank the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure the voice of the Indiana defense bar is heard in Indiana’s appellate courts: Jenny Buchheit (Ice Miller LLP), Phil Kalamaros (Hunt Suedhoff Kalamaros LLP), Keith Mundrick (Cantrell, Strenski & Mehringer, LLP), Jaime Oss (Huelat & Mack P.C.), Bob Palmer (May Oberfell Lorber), Peter Pogue (Schultz & Pogue, LLP) and Crystal Rowe (Kightlinger & Gray LLP).

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to send the request as early on in the appellate process as possible to the undersigned ([email protected] or 317-399-2815). The DTCI Amicus Committee and the board of directors welcome and endeavor to carefully consider each request.•

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• Lucy Dollens is the managing partner of the Indianapolis office of Quarles & Brady LLP, chairs the DTCI Amicus Committee and is a member of the DTCI Board of Directors. The opinions expressed are those of the author.