Published 11-3-23

November 2023 edition (24 IJVR 11) edition preview published . . .

Another month . . .another issue. We've got the issue preview for November 2023. Full issue out next week in PDF.

Order the Indiana Jury Verdict Reporter

The November 2023 Preview

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Published 10-25-23

Med Mal Death Case Tried in Jeffersonville -- Defense verdict on 10-4-23

A 62 year-old man visited a surgical facility to undergo a quadriceps tendon repair; after the man suffered a seizure and died while being prepped for the surgery, his estate blamed his death on an allergic reaction to an antibacterial medication (vancomycin) he had been given by an anesthesiologist. A Medical Review Panel had rejected the case, the plaintiff arguing error in administering the drug and responding to the crisis. The defendants denied fault and also contested causation suggesting the fatal event was related not an allergic event at all but a bronchospasm.

The case was tried seven days in Jeffersonville, IN (Clark Superior Court) and a defense verdict returned.

Plaintiff:  H. Philip Grossman, Grossman Green, PLLC., Louisville, KY; and Michael R. Hance, Hance & Srinivasan, PLLC., Louisville, KY

Defense:  Jeffrey L. Hansford, Boehl Stopher & Graves, LLP., New Albany; and John A. Sheffer, Sheffer Law Firm, PLLC., Louisville (both for Advanced Regional Surgery Center, LLC.); David S. Strite and Nicholas J. Davis, O’Bryan Brown & Toner, PLLC., Louisville, KY (for Dr. Daniel Kuo)

Judge Williams on the bench

Full report coming in the November edition of the Indiana Jury Verdict Reporter (link to subscribe)

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Published 10-19-23

Its been 20 years since the $60,000,000 Dram Shop verdict in Muncie against Outback Steakhouse

In the summer of 2003 a Muncie jury (that's 20 years ago) returned a record $60,000,000 dram shop verdict against Outback Steakhouse. At the Muncie location's grand opening the restaurant served free drinks and one of them got drunk and crashed into the plaintiffs.

Outback appealed in November of 2006 and the Indiana Supreme Court reversed and ordered a new trial. 

The Indiana Supreme Court Opinion (external link)

It is not clear how the case was resolved after the remand from the Supreme Court.

Here is our original verdict report from the summer of 2003:

1470 - Dram Shop - On its grand opening, the Outback served free drinks to invited guests; one got drunk and crashed into a couple on a motorcycle
Markley v. Outback Steakhouse, 18C01-9907-CP-0284
Plaintiff:    Donald K. McClellan, McClellan McClellan & Arnold, Muncie and Michael J. Alexander, Muncie
Defense:    Richard R. McDowell, Hill Fulwider McDowell Funk & Matthews, Indianapolis and Scott E. Shockley, DeFur Voran Hanley Radcliff & Reed, Muncie
Verdict:    $60,000,000 for plaintiffs less 35% comparative fault
County:    Delaware, Circuit
Court:       S.J. Roberts, 6-26-03
    On 7-21-97, Outback Steakhouse was opening a new store in Muncie; it has approximately 600 stores serving pseudo-Australian food.  Not a regular night, it was a grand opening for Outback.  As a part of that process, select persons were invited to attend a three-hour party.  During the party, free drinks were served -- the proof was somewhat inconsistent, others remembering that drinks cost a dime.
    In any event, the drinks flowed freely and as they were free or nearly free, no particular server had responsibility for any specific patron.  Against this backdrop, William Whitaker, who had worked in the restaurant business, came to the grand opening.  He had at least a Foster’s beer and five mixed drinks, Crown and Coke.  
    Leaving Outback, Whitaker next visited Van’s Bar near the airport.  However, he was so drunk that he was not served.  Leaving the bar, he drove away on CR 500N.  Minutes later, he approached a couple on a motorcycle.  They were David and Lisa Markley, age 37 and 31 respectively, out that night on a joy ride.  Whitaker crossed the centerline and crashed into them.
    Both were thrown into a cornfield.  David sustained leg and foot fractures, essentially breaking every bone in his leg from the hip down.  He later 
endured seven surgeries.  A long-time employee of a auto-parts manufacturer, he is totally disabled.  Lisa was seriously hurt, with massive internal injuries and an open book pelvic fracture.  She also sustained an eleven-inch abdominal tear.  Beyond enduring forty surgeries and unable to bear children, she has suffered post-traumatic stress.  The combined medicals were approximately $600,000, while $1.3 million was estimated for future care.  Impairment was valued at $1.25 million.  
    In this lawsuit, the Markleys did not target the uninsured Whitaker, but instead Outback on a dram shop theory.  It developed how free drinks were served with essentially no accountability.  In fact of the eight hundred or so patrons at the grand opening, not a single one was cut off.  
    In developing Outback’s knowledge, plaintiffs were buttressed by unusual proof at trial.  In deposition, a server from that night remembered Whitaker and that he seemed fine.  At trial, she reversed course, admitting her deposition testimony was a lie, conceding that Whitaker was drunk and she knew it. [The trial judge has since referred the witness for perjury charges to the prosecuting attorney.]
    Outback defended on a variety of grounds.  That included, the server notwithstanding, denying knowledge that Whitaker was intoxicated.  That tied to the second key defense, namely that there was a single tortfeasor in the case -- the drunk driver Whitaker.  Finally, there was proof that David was tested post-crash, revealing he had .07 BAC.  For his part, Whitaker’s BAC level was never known.  From the scene of the crash, he drove away.  Later, he was convicted of criminal charges and sentenced to a year of home detention, followed by two years of probation.
    At the conclusion of eight days of proof, the parties entered an agreement of sorts.  While the jury knew of David’s purported intoxication at .07, the Outback agreed to forego the imposition of comparative fault.  In return, plaintiffs dropped their count for punitive damages.
    While no verdict is in the record, it was mixed on liability.  The panel deliberated six hours, concluding just after midnight.   65% was assessed to Outback, remainder to the tortfeasor.  Jointly, the plaintiffs were awarded $60,000,000, which equaled $39,000,000 after a reduction for comparative fault.  A judgment in that sum followed and Outback has appealed.  According to published reports, Outback has explained that it is insured for the full amount of the award.

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Published 10-4-23

October 2023 (24 IJVR 10) preview published -- full issue out later this week

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Published 9-20-23

Indiana lawyers involved in a $43.825 million Truck Negligence verdict in Chicago, IL

The plaintiff, age 56 and an RN, suffered catastrophic and paralyzing injuries related to a C-5 fracture when rear-ended by a tractor-trailer on IN 49 in Chesterton, IN. At a 2021 trial she took damages of $43,051 million. The trial court granted a new trial.

At a second trial this summer the plaintiff prevailed again and this time the verdict was $43.825 million which some $800,000 more than the first trial.

While an Illinois verdict we will have more details in the October 2023 edition of the Indiana Jury Verdict Reporter.

Kenneth J. Allen and Otto Shragal, Allen Law Group, Chesterton

Kevin C. Schiferl and Adam Ira, Frost Brown Todd, Indianapolis; and Michael J. Mullen and Kyle Blair, Kralovec & Marquard, Chicago, IL, for Viper Trans. Inc.; Shimon B. Kahan, LaBarge Campbell Lyon & Kahan, LLC., Chicago, IL, for Radisavljevic and PR Rental, Inc.

Kroft v. Viper Trans. Inc., et al., 16 L 09466, Judge Powell Presiding, July 14, 2023 verdict

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Published 8-2-23

Elderly man fell down an open set of stairs at a house open for auction -- Defense verdict in Madison County

The plaintiff, age 86, attended an open house for a home that was being auctioned. He walked right in an down a set of open stairs that led the cellar. the plaintiff suffered a broken arm and wrist among other injuries. He sued the auction house for failing to warn of the hazard. The homeowner (also elderly) had already moved away to Florida. The auction house denied fault.

A jury in Madison County returned a defense verdict. Report coming in the September edition of the Indiana Jury Verdict Reporter.

Ronald Todd, Noblesville for the plaintiff

Josef Musser, Spitzer Herriman, Marion defending

Judge Dudley on the bench

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Published 8-2-23

August 2023 preview has been published -- 24 IJVR 8 will be out next week

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Published 7-24-23

Interesting Howard County Verdict

911 dispatcher sent EMS to the wrong address which was linked to the plaintiff's death

What a fascinating case! The plaintiff called 911 from her apartment in distress and because of a communication error, EMS was dispatched to the wrong address. By the time the error was corrected some eight minutes later, EMS arrived and the plaintiff was unresponsive and didn't have a pulse. She was pronounced dead.

The estate sued Howard County 911 and the sheriff and alleged their conduct in mishandling the call represented willful or wanton misconduct. Howard County defended that it was an honest mistake. The case was bifurcated, liability being tried first.

A Kokomo jury found for the defendants and the estate took nothing. The verdict was returned 3-1-23.

Full report coming in the August 2023 edition of the Indiana Jury Verdict Reporter.  Save 15% this month with the code July2023 in the Online Store.

Edward R. Reichert, Golitko & Daly, P.C., Indianapolis for the plaintiff

Daniel M. Witte and Adam S. Willfond, Traveler’s Litigation Counsel, Indianapolis defending

Judge Murray on the bench in Howard County

Ford v. Howard County Jury Verdict

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Published 7-19-23

The plaintiff, recovering from a spinal surgery at the hospital, reinjured his spine when his toilet seat shifted -- $507,000 (less 60%) verdict in Indianapolis

The plaintiff underwent a spinal surgery and was recovering at Franciscan Hospital. He went to the bathroom in his hospital room and as he sat down, the toilet shifted. This reinjured the plaintiff's spine which led to another repair surgery.

Plaintiff sued the hospital and alleged a premises liability theory regarding the defective condition of the toilet. The hospital denied fault and also sought to apportion fault to the plaintiff's surgeon. The plaintiff had separately sued the surgeon (in another county) and settled that claim.

An Indianapolis jury awarded the plaintiff $507,000 in damages. It assessed fault 40% to the hospital and 60% to the non-party doctor. The final judgment was for $202,800 and it has been satisfied.

Coming in the August 2023 edition (24 IJVR 8) -- Subscribe to the Indiana Jury Verdict Reporter -- Save 15% this month with code July2023

Joseph E. Allman, Allman Law, LLC., Indianapolis; and Gloria J. Danielson, Greenwood for the plaintiff

Michael Roth and Thomas J. Flynn, Eichhorn & Eichhorn, LLP., Indianapolis

Special Judge Welch on the bench

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Published 7-5-23

Indiana July 2023 Preview (24 IJVR 7) has been published

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Published 6-30-23

A star NCAA quarterback was dead at age 30 and after a posthumous CTE diagnosis, his estate sued the NCAA for failing to protect him from head injuries

Cullen Finnerty was a star quarterback for Grand Valley State and led his team to three NCAA D-2 championships from 2004 to 2006. Finnerty later played professionally both in the NFL and in international leagues.

Finnerty was dead at age 30 and an autopsy revealed he suffered from CTE. His estate (his wife and two young children) sued the NCAA and blamed it for having protocols in place to protect him from a head injury. The NCAA denied Finnerty's death was football-related and cited other causes including a pill-mill physician that had provided Finnerty with opioids.

The case was tried against the NCAA for several weeks in Indianapolis. A defense verdict was returned in Marion Superior Court.

Robert Dassow (Hovde Dassow & Deets) Indianapolis led the plaintiff's team.

Patrick Reilly (Faegre Drinker) Indianapolis led a large group for the NCAA.

Judge Welch on the bench.

Full report coming in the July 2023 edition of the Indiana Jury Verdict Reporter

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Published 6-5-23

Grant County Plastic Surgery Med Mal

The plaintiff blamed her plastic surgeon for technical error in performing a rhinoplasty and brow lift. The doctor denied fault. A defense verdict was returned 3-9-23.

Case styled, Knight v. Gillum, 27CO1-1604-CT-37

The Final Judgment

Michael Phelps (Hankey Marks & Crider) Indianapolis and Michael Koch (Brooks Koch & Sorg) Danville for the plaintiff

Jason Scheele and Ashley Gilbert-Johnson (Rothberg Logan & Warsco) Fort Wayne defending

Full details in the June 2023 edition. Subscribe to the Indiana Jury Verdict Reporter

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Published 6-2-23

June 2023 edition (24 IJVR 6) edition has been published -- PDF version will be in your inbox on Monday

The Indiana Jury Verdict Reporter started in February of 2000! Bill Clinton was President. We are still chugging along and today we published 24 IJVR 6! It will be out next. Here is a preview of the cover. Good issue with some interesting results.

Subscribe to the Indiana Jury Verdict Reporter

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Published 5-31-23

Court of Appeals reverses $4,000,000 slip and fall verdict against Menard as excessive

The plaintiff slipped and fell in a snowy Menard parking lot and suffered a broken ankle. A Hendricks County jury awarded her $4,000,000 in damages which was 99 times her special damages. Menard appealed that the damages were excessive.

The Court of Appeals affirmed on several evidence questions but reversed that the damages the damages were excessive and not "based on a reasoned assessment." The opinion was authored by Brown who was joined by Bailey and Wasserman. A new trial was ordered on damages and apparently liability is not in issue on remand.

The relevant portion of the opinion is clipped below:

The Court of Appeals Opinion (External) (Issued 5-15-23)

The original verdict report published by the Indiana Jury Verdict Reporter:
 

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Published 5-17-23

Forest River employee alleged age-related harassment so bad he was forced to quit -- South Bend jury rejects the case

Plaintiff, age 62.5, worked in manufacturing for RV giant Forest River. He alleged co-workers hurled insults at him (more than 1,000) about this age and this led him to resign. He then sued and alleged constructive discharge. Forest River argued it wasn't that bad, there were no physical threats and the plaintiff just wanted to retire anyway to begin taking Social Security.

Trial court initially granted summary judgment to Forest River. The 7th Circuit reversed. A federal jury in South Bend heard the case for three days (trial ended 5-4-23) and it returned a defense verdict.

Patrick O'Leary, Elkhart for the plaintiff. Mark Criniti and Patrick O'Rear (SouthBank Legal) South Bend defending

Damon Leitchy on the bench.

Details coming in the June 2023 edition of the Indiana Jury Verdict Reporter.

Case Documents:

7th Circuit Opinion

Pretrial Order

Jury Verdict

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Published 4-25-23

Estate of drunk man run over by an IndyGo Bus  takes $6,000,000

The plaintiff, Michael Fergerson, age 63, was drunk on 9-29-18 as he awaited an IndyGo city bus at 38th Street and Lafayette Road. His BAC was later measured at .28 and he'd been at the ER earlier that day for alcohol intoxication.

As the bus came by, Fergerson got up from a bench. The driver didn't see him. Fergerson fell into the bus as it pulled away quickly and he suffered serious injuries and had a leg amputated. He ultimately died.

Fergerson's estate alleged the bus had blind spots, the driver was in a hurry (they get breaks at the end of the route and have an incentive to blow through stops to get them) and otherwise didn't act as a professional driver. Because this was a case against a government entity, pure contributory negligence and if Fergerson was at fault at all, his case was defeated. IndyGo defended and blamed the accident on Fergerson's intoxication. Its intoxication expert was Vanessa Fitsanakis, Atlanta, GA.

After a three-day trial on 4-20-23, an Indianapolis jury found for the estate (representing Fergerson's elderly mother) and awarded medical bills of $661,283 and the odd number of $5,338,716 for love and affection for a round total of $6,000,000. This was twice what the estate asked. It is expected the award will be reduced to the $700,000 statutory limit.

Bradford Smith (pictured) (Ken Nunn Law Office) Bloomington for plaintiff

Evan Norris and Sean Devenny (Drewery Simmons Vornehm) Carmel defending IndyGo.

Judge Kurt Eisgruber behind the plate

The Verdict Form

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