Dollens: 2023 DTCI amicus activity

This year, the Defense Trial Counsel of Indiana 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 opportunity to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts.

Daniels v. Drake

In the matter of Daniels v. Drake, Cause No. 22A-CT-00068, the trial court granted summary judgment in favor of the owners of a dog (a Great Dane) that, while never having exhibited dangerous tendencies before, bit a FedEx delivery driver. In opposition to the entry of summary judgment, the plaintiff submitted an affidavit of a canine behavioral expert and animal control officer, who claimed that Great Danes have a natural propensity to be territorial, which might endanger the safety of a stranger when the stranger approaches it on the owners’ property.

The Court of Appeals of Indiana reversed, finding that while the plaintiff did not designate any evidence that this Great Dane had previously exhibited any dangerous tendencies of which the owners were aware, the plaintiff had designated evidence that Great Danes as a class have dangerous territorial tendencies, at least under certain circumstances, thereby creating a genuine issue of fact to preclude the entry of summary judgment.

In DTCI’s amicus brief in support of transfer, authored by BJ Brinkerhoff and Olivia Daily (Jeselskis Brinkerhoff and Joseph LLC), DTCI argued that constructive knowledge should be attributed to dog owners only where there is evidence that the owner had reason to know of the alleged vicious propensities. DTCI advanced that the specialized knowledge of an expert is not probative of what an ordinary, reasonable person should know. Finally, DTCI asserted that public policy disfavors attributing opinions contained in third-party statements to defendants, particularly where the third party is an expert witness. On April 6, the Indiana Supreme Court denied transfer.

WEOC, Inc. v. Niebauer

In the matter of WEOC, Inc. v. Niebauer, Cause No. 22A-CT-1869, the trial court denied the defendants’ motion to dismiss the wrongful death claim, finding that the common law claim for the negligent furnishing of alcoholic beverages is not barred by Indiana’s Dram Shop Civil Provision (Indiana Code § 7.1-5-10-15.5), which was passed in 1986. DTCI’s amicus brief in support of transfer, authored by Brinkerhoff and Daily, argued that the Dram Shop Civil Provision is absolute in its limitation of liability, and common law claims for negligence are allowed only where a separate, legally recognized duty exists (such as an employment relationship), which is not in existence here. The Indiana Supreme Court granted transfer on July 13 and conducted oral argument on Sept. 27 at Trine University in Angola. The case remains pending.

Z.D. v. Community Health Network, Inc.

In the matter of Z.D. v. Community Health Network, Inc., Cause No. 22A-CT-0644, one of the defendant’s employees inadvertently mailed a letter intended for the plaintiff (containing her diagnosis) to someone else, the recipient. The plaintiff claims that the recipient then posted it on her own Facebook page and, through a twist of fate, the recipient attended school with the plaintiff’s daughter. The plaintiff asked the recipient to delete the Facebook post and the recipient did so. The plaintiff filed suit solely against the defendant (her health care provider), did not assert a claim of intentional infliction of emotional distress and did not name the individual who posted the health care information on Facebook.

The trial court entered summary judgment in favor of the defendant on all claims, finding the plaintiff’s emotional distress, or “privacy damages,” were not recoverable in a negligence-based claim. The court found the defendant did not proximately cause the alleged harm to the plaintiff because the plaintiff’s alleged injuries were not foreseeable to the defendant and the plaintiff had not pleaded a “disclosure” claim.

The Court of Appeals affirmed in part, reversed in part and remanded the case. The court concluded that plaintiff’s complaint pleaded the facts necessary for a disclosure claim and remanded. The court affirmed the trial court’s conclusion as to the plaintiff’s alleged emotional distress damages but reversed the trial court’s complete dismissal, finding that the plaintiff asserted pecuniary damages resulting from the defendant’s alleged negligence, which the court deemed recoverable. The court also reversed the trial court’s conclusion that the defendant was not the proximate cause of the plaintiff’s alleged damages, finding that the defendant failed to meet its burden “of establishing that only a single inference or conclusion regarding proximate cause and intervening cause could be drawn based on the designated evidence,” remanding the case for trial.

The defendant and the plaintiff both petitioned the Indiana Supreme Court to accept transfer. In its petition to transfer, the plaintiff asked the Indiana Supreme Court to eliminate the modified impact rule when determining whether plaintiffs may recover emotional distress damages in claims involving unintentional disclosures of medical information. In its amicus brief, authored by Peter Pogue and Michael Mullen (Schultz & Pogue LLP), DTCI argued that the Indiana Supreme court validated the application of the modified impact rule in claims to recover for negligent infliction of emotional distress and asserted that eliminating the modified impact rule would essentially create a new cause of action that would expose entities that handle private information (e.g., health care providers, law firms, government entities, pharmacies, schools and nearly all employers) to liability for the unforeseeable actions of unrelated individuals over whom those entities have no control.

The Indiana Supreme Court issued its opinion Sept. 25, affirming in part and reversing in part. As to the portion of the ruling regarding the modified impact rule, the Indiana Supreme Court’s opinion aligned with the position advanced in DTCI’s amicus brief. The court held that “plaintiffs like Z.D. may assert negligence-based claims when their private information is mishandled, but the modified impact rule precludes recovery for emotional distress unless the plaintiff sustained a direct physical impact from the negligence.” The court found the designated evidence revealed the plaintiff in this case suffered emotional distress as a result of the defendant health care provider’s alleged failure to maintain the confidentiality of her private information. The court concluded that because this alleged negligence did not produce a direct physical impact, the modified impact rule precluded the plaintiff from recovering emotional distress damages. The court also ruled on the other issues not addressed by DTCI as amicus.

Bojko, et al v. Anonymous Physician, et al.

In the matter of Bojko, et al. v. Anonymous Physician, et al., Cause No. 23A-CT-00185, the trial court granted defendants’ petition and ordered that the plaintiffs-patients remove non-evidentiary allegations from their medical review panel submissions — mainly allegations about the anonymous physician made in a separate medical malpractice complaint filed against other medical providers by the then-deceased anonymous physician’s wife. The plaintiffs-patients argued on appeal that the trial court lacked subject-matter jurisdiction to order the removal of those allegations from the medical review panel submissions, but the Court of Appeals disagreed and affirmed the trial court’s decision.

The plaintiffs-patients petitioned the Indiana Supreme Court for review. DTCI participated as amicus in support of defendants’ response to the petition for transfer. In its amicus brief authored by Crystal Rowe (Kightlinger & Gray LLP), DTCI argued that the relevant statutes (I.C. 34-18-10-14 and 34-18-10-17) are unambiguous and provide the trial court with subject-matter jurisdiction to mandate that the parties and/or medical review panel members comply with the evidentiary submission requirements of I.C. 34-18-10-17 (which requires the submission of evidence in written form). The case is fully briefed and remains pending before the Indiana Supreme Court.

Thanks to DTCI Amicus Committee members, brief authors, board

DTCI and its Amicus Committee appreciate and thank attorneys (and their firms/companies) who devote their time and talents to drafting requests for amicus involvement and authoring amicus briefs on behalf of DTCI. I extend a sincere thanks to the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure that the voice of Indiana’s defense bar is heard in Indiana’s appellate courts in such a way that is helpful to the courts and on the important issues: Jenny Buchheit (Ice Miller LLP); Patrick Eckler (Freeman Mathis & Gary LLP); Phil Kalamaros (attorney/mediator/arbitrator/consultant); Bob Palmer (May Oberfell Lorber); Peter Pogue (Schultz & Pogue LLP); Crystal Rowe (Kightlinger & Gray LLP); and Cathleen Shrader (Barrett McNagny).

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 Lucy Dollens ([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, a commercial litigator and appellate practitioner, is a partner in the Indianapolis office of Quarles & Brady, chairs the DTCI Amicus Committee and serves on the DTCI Board of Directors. Opinions expressed are those of the author.