Published 12-27-24

Netflix found liable for Invasion of Privacy in federal court -- $385,000 verdict for "Secret Child" exposed in a Netflix Documentary

There was an interesting and unusual verdict earlier this month (12-5-24) in Indianapolis. Two plaintiffs (so-called Secret Children) of a disgraced fertility doctor who fathered nearly 100 children alleged they were exposed in a Netflix documentary. Their names briefly appeared on the screen during the documentary (Our Father) and it was alleged they were exposed in the community.

The plaintiffs framed their case as one of Invasion of Privacy by the disclosure of this private fact. Netflix replied that (1) it was just a simple mistake (the proof burden was negligence), (2) the plaintiffs exposed themselves in Facebook groups and thus it was not private, and (3) there was no proof any person actually learned of their "Secret Child" status from the documentary. Plaintiff countered that millions saw the documentary including some 285,000 in Indiana alone and suffered damages because of it.

The jury verdict was mixed. One plaintiff (Kennard) prevailed and took damages of $385,000. The verdict was for Netflix as to the other plaintiff.

Robert D. MacGill, Matthew T. Ciulla, Jordan C. Satterwhite and Mackenzie Thompson, MacGill, PC, Indianapolis, IN for the plaintiff

Andrea R. Pierson and Kristina A. Coleman, Faegre Drinker Biddle & Reath, Indianapolis, IN  were local counsel for Netflix

Full report coming in the January 2025 edition, 26 IJVR 1.

It is time to order the IJVR 2024 Year in Review (the 25th edition) which will be out the first week of February. Print to follow shortly. 

Use Code Welcome2025 to save 30% in the online store. This special code ends on 12-31-24.
Happy New Year!

The Netflix verdict form below

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Published 11-22-24

$15,000,000 FELA verdict in South Bend returned yesterday

A conductor for Norfolk Southern was sitting in a train at the Elkhart yard when another remote control train crashed into his train. The remote control train was driving too fast in a restricted area. The court decided for the plaintiff on liability in this FELA action.

Plaintiff, age 43, has since treated for radiating low-back pain (L5-S1) and a shoulder injury, all of which left him permanently disabled. The railroad diminished the claimed injury with an IME expert (Jon Sieber, Indianapolis) and argued their were all kinds of light-duty jobs the plaintiff could perform.

Yesterday the jury awarded the plaintiff $15 million in damages, representing $3.2 million for lost earnings and $11.8 million for pain and suffering.

Robert F. Harrington, III and Colin H. Dunn, Dunn Harrington, Chicago, IL for the plaintiff

Barry F. Loftus and James F. Olds, Stuart & Branigin, Lafayette defending

Rookie Judge (on the federal bench at least) Cristal Brisco presiding after being assigned to the case this year.

Full report on Hardy v. Norfolk Southern coming in the December 2024 edition, 25 IJVR 12. 

Also note the 2024 Year in Review (the Golden 25th edition) is on sale this week for $419.00 (save $50.00 off the regular price).

Save 25% more with the code Indiana2024. That's a deal.
Order the 2024 Year in Review and save 25%!

The image is of the train involved in the accident

The Hardy v. Norfolk Southern verdict form

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Published 11-4-24

The November 2024 edition (25 IJVR 11) is out . . .

The November edition of the Indiana Jury Verdict Reporter (25 IJVR 11) is out.

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Published 10-11-24

$136,782 Title IX verdict returned in Indianapolis against Indiana University

A college student at Indiana University was suspended for three semesters after a disciplinary board found he had sexually assaulted a female student. He sued and alleged IU engaged in Title IX discrimination by conducting a biased hearing, denying him the right to cross-examine the accuser and have his own lawyer, among other deficiencies, all of which represented intentional discrimination based on his sex. His damages were limited strictly to economic loss.

An Indianapolis jury found for the plaintiff on 9-11-24 and awarded him $136,782 in damages. The plaintiff has since sought attorney fees of $217,800.

Full report coming in the November issue of the Indiana Jury Verdict Reporter.

Annemarie Alonso and Jonathan C. Little, Saaed & Little, Indianapolis
Defense:  Janika Pierce Tucker, Columbus, OH and Adam R. Mills, Indianapolis, both of Taft Stettinius & Hollister

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Published 9-17-24

$25.8 million med mal in Lake County in a missed cancer diagnosis case

An elderly man’s PSA test result was suggestive of prostate cancer, but a delay in communicating the test result to his doctors led to a delay of more than a year in discovering the cancer; by that time the cancer had developed to Stage IV and sent the man into renal failure.

The court entered a judgment for the plaintiff for $1.65 million consistent with Indiana's med mal tort scheme.

Report coming in the October 2024 edition, 25 IJVR 10.

Jack A. Kramer and Hunter J. McKee, Allen Law Group, LLC., Chesterton for the plaintiff
Michael A. Sarafin and Kelsie M. Farris, Johnson & Bell, Ltd., Merrillville

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Published 7-17-24

Interesting Civil Rights Verdict from Lake County

Plaintiff alleged the police lied in a probable cause affidavit

After plaintiff was pulled over for a traffic violation by the Hobart Police and found to have an outstanding warrant for possession of marijuana, the police wanted to search his vehicle. Plaintiff resisted this effort, and a scuffle ensued with one officer claiming to have been injured, which led to criminal charges being filed against plaintiff over the alleged injury. The criminal case was ultimately dismissed when a video confirmed plaintiff’s account that he had not injured the officer at all. Plaintiff then sued the police for lying about the injury in a probable cause affidavit.

The case was tried to a Lake County jury and a defense verdict returned.

Steven P. Lammers, Mandel Rauch & Lammers, P.C., Carmel for the plaintiff
Defense:  Shaw R. Friedman, Laura M. Nirenberg, and Jeremy M. Noel, Friedman & Associates, LaPorte defending

Judge Hawkins on the bench

Report coming in the August 2024 edition.

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Published 7-8-24

The July 2024 edition (25 IJVR 7) is out this week and features a $2,359,268 million verdict from Carroll County

This month's issue features a $2.359 million auto negligence results from Carroll County. Here is the heading on the story. Full report in the issue:

Auto Negligence - Plaintiff was seriously injured in a failure-to-yield crash that happened when defendant ran a stop sign at the intersection of two state roads
Alanis v. Bullard, 08C01-1704-CT-4
Plaintiff:  Anthony W. Patterson and Katherine M. Moore, Parr Richey Frandsen Patterson Kruse, LLP., Lebanon; and James D. Moore, Ryan Moore Cook Triplett & Albertson, LLP., Frankfort
Defense:  Thomas E. Rosta, Metzger Rosta, LLP., Noblesville

Verdict:   $2,359,268 for plaintiff
County:   Carroll, Circuit
Judge:      Laura W. Zeman, 6-4-24

Subscribe to the Indiana Jury Verdict Reporter for all the details.

The July table of contents and first page:

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Published 6-19-24

$215,000 Truck Negligence verdict in Indianapolis -- Plaintiff complained rear-ender exacerbated a pre-existing shoulder injury 

The plaintiff was stopped at a red light in a fully-loaded tractor-trailer. A moment later the defendant rear-ended him. The defense was driving an also loaded dump truck.

The crash damaged the plaintiff's trailer as depicted below. The dump truck took a harder hit.

The plaintiff subsequently claimed the aggravation of a pre-existing shoulder injury. The incurred medical bills were $57,838. A defense accident reconstructionist argued the crash was too minor to have caused an injury.

An Indianapolis jury returned a general verdict on 6-7-24 for the plaintiff for $215,000. A consistent judgment was entered.

See the July 2024 edition (25 IJVR 7) for the full report.

John Smith and Brandon Smith, Morgan & Morgan for the plaintiff

Matthew J. Jankowski, Kopka Pinkus Dolin defending

An image of the plaintiff's truck trailer after the crash

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Published 3-14-24

Monster $60.687 million verdict less 30% fault against Tesla yesterday in Marion County - Tesla repairman ran over a motorcyclist who suffered very serious injuries

The verdict form

An image from the plaintiff's opening statement

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Published 2-19-24

$159,000,000 Quadriplegia verdict in Boone County 

The plaintiff was struck by a drunk driver (BAC .142) and was left a quadriplegic. The jury awarded the plaintiff $84 million and her husband $75 million more for a total of $159 million. The entire sum was compensatory damages. This is easily the largest Auto Negligence verdict we have reported since we began in 2000.

The verdict was returned 1-11-24 in Boone County.

Case report in the February 2024 edition of the Indiana Jury Verdict Reporter, 25 IJVR 2.

Ann Marie Waldron, Brandon E. Tate, and Katherine A. Piscione, Waldron Tate Bowen Land, LLC., Indianapolis; and Michael E. Simmons, Hume Smith Geddes Green & Simmons, LLP., Indianapolis for the plaintiff

Benjamin G. Stevenson, Threlkeld Stevenson, Indianapolis defending

Judge Matthew C. Kincaid presiding

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Published 12-29-23

 The year is almost over . . .24th edition done . . .25th edition is out early next week and here is a preview

The January 2024 Preview

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Published 12-11-23

 The December issue is out . . .and January 2024 will begin the 25th volume! Our first issue was in February of 2000.

The December 2023 preview

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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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