Category Archives: Uncategorized
Calling Out Meaningless Expert Disclosures in Medical Malpractice Cases
The defendant doctor’s style of disclosure is almost always generic in nature and could be used in virtually any case of medical malpractice (i.e. all care provided by Dr. “X” was within the appropriate standard of care and was not a factor in the outcome). No meaningful expert disclosures are made revealing the grounds and reasons for the conclusions reached, in other words, the “why” for the expert opinions.
Indiana Trial Rule 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness. This duty is absolute and is not predicated on either a Court order or repetitive discovery requests. Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the expert’s testimony, the substance of the facts to which the expert(s) will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D. Mass., 105 F.R.D. 147, a Defendant requested the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response, the Plaintiff noted for several of the expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:
The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.
Id. at 150.
The Trial Court specifically ruled it was improper to answer this interrogatory concerning experts on the basis that the witnesses’ opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. As a result of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.
This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
No meaningful expert disclosures have ever been in the present case revealing the grounds and reasons for the defense expert’s opinions concerning whether the defendant doctor has breached the standard of care.
A party cannot withhold expert disclosures even if the expert is being presented by way of rebuttal. McCullough v. Archbold Ladder Co, supra. Full disclosure of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion” must be made. Such is required in order for a Plaintiff patient to fairly address a defense doctor’s testimony and determine the areas of questioning required.
Allowing generic disclosures permits the defense to wait until trial and hide in the weeds. This not fair and violates the obligation to provide meaningful disclosures in advance of trial.
I recommend calling the defense out with a motion to compel or seek a protective order when the defense expert disclosures simply state the doctor’s treatment provided met the standard of care.
Read the rest of this entryDefense Medical Examinations – When Are They Allowed?
There is no automatic right to have an injured party examined by a doctor hired by the defense. Indiana Trial Rule 35(A)[1] requires the Defendant establish “good cause” for a requested medical examination. Stuff v. Simmons, 838 N.E.2d 1096, 1103-1104 (Ind. Ct. App. 2005), citing with approval, Womack v. Stevens Transport, Inc., 205 F.R.D. 445, 446 (E.D.Pa.2001). In this regard, the good cause requirement turns on the relevance and need for the defense medical examination. Id., citing to, Womack, 205 F.R.D. at 447. Good cause requires a showing that the examination could adduce specific facts relevant to the cause of action and is necessary to the defendant’s case. Id. The Court must decide as an initial matter whether the motion requesting a physical or mental examination adequately demonstrates good cause. Stuff v. Simmons, supra, at 1104. Indiana Courts have held that the specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b).
By adding the words “good cause,” the Rules indicate that there must be greater showing of need under Rule 35 than under the other discovery rules. A bare bones request is not enough. The good cause requirement is divided into three elements:
(1) an examination is relevant to issues that are genuinely in controversy in the case;
(2) a party must show a reasonable nexus between the condition in controversy and the examination sought; and
(3) a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination. [Emphasis Added].
Id. at 1104.
If a Plaintiff’s condition has already been evaluated by less intrusive means (a records review) and an opinion by other doctors and no depositions have been taken of these providers, a good argument can be made that other less intrusive means have not been exhausted. Also, what new information will be revealed that is not available from other objective sources such as tests, studies, lab results, EMGs, or radiographic studies?
Good cause does not exist if these sources have not first been exhausted. Ultimately, the defense has to carry its burden for a defense dental examination, not the Plaintiff. So keep these thoughts in mind next time you confront this issue.
[1] Indiana Trial Rule 35(A) provides in pertinent part as follows:
Order for examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. [Emphasis added]
Litigation Settlements Can Be Taxing
Often times in resolving a case issues can come up that give rise to questions about whether a settlement is taxable. There can also be issues regarding whether or not a Plaintiff can deduct attorney fees from the settlement in determining whether they will be tax on the gross recovery or the net recovery. These issues can turn on the type of claim being made and the underlying statutory basis for the claim. Likewise, the type of injury that forms the basis for your client’s claim can impact taxability. Is it a personal physical injury or physical sickness? Are punitive damages being sought? Is interest included in the recovery? How is does the language of the settlement agreement read? Is confidentiality a requirement of the settlement? How is that handled in the agreement? Is a qualified settlement fund being used? I could go on and on. My point is you need to familiarize yourself with these potential problems before you settle a case and commit the agreement to paper. This is especially true when dealing with employment related claims, attorney fees or punitive damages.
I am not here to dispense advice, but rather to get you thinking about these issues. An attorney and prolific writer on such topics is Robert W. Wood, a tax attorney specialist from California. I reached out to him and he was kind enough to suggest the following articles to better educate myself:
When Mediating Legal Disputes, Think Taxes
Taxes and Settlement Agreement Wording Underscored Again
Taxing Emotional Distress Damages: Now What? Settlement Wording!
IRS Form 1099 Rules for Settlements and Legal Fees
Legal Settlements as Capital Gain: A Playbook to Avoid Ordinary Income
IRS Taxes Legal Settlements, But Some Are Capital Gain
12 Ways to Deduct Legal Fees Under New Tax Laws
New Tax on Litigation Settlements, No Deduction for Legal Fees
IRS Form 1099 Rules for Settlements and Legal Fees
Emotional Distress Damages Are Taxable, Physical Sickness Damages Are Not, How Come?
Taxing Emotional Distress and Physical Sickness: Chicken or Egg?
President Obama Was Right, PTSD Is Physical
President Obama and Damages for PTSD
New Tax on Litigation Settlements, No Deduction for Legal Fees
Lawyers, Clients Dance The ‘Taxes Two-Step’
Debunking 10 Myths About Tax Opinions
There are many additional articles on his firm’s website, which you can search here:
http://www.woodllp.com/Publications/Articles/articlesindex.htm
I wanted to publicly give him thanks for what he has written in an effort help other attorneys who are not well-versed in tax matters. I would encourage you to read articles available on his website. On a final note, having read all of the articles above and even some of the footnoted items and cases, I have come to the realization that the only things certain in life are death and taxes… but not tax opinions. When in doubt refer your client to a tax specialist for purposes of dealing with complex issues.
Summary Judgment by Stealth – How Get By Summary Judgment Without Ever Filing a Motion
So your opponent has decided to seek summary judgment on its affirmative defense against your client. This seems to happen often enough. However, if the defense is not careful in preparing their motion and does not properly support it with evidence, the surprise may be on them.
Indiana Trial Rule 56(B) can reverse the tables on your opponent when they file a motion for summary judgment. Indiana TR 56(B) provides as follows:
“(B) For defending party–When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”
Many attorneys are unaware of this provision. They mistakenly believe that the door can swing only one way… against the plaintiff as the non-moving party. However, this is incorrect. The door swings both ways.
I have used this provision to obtain summary judgment in favor of my client when the defendant moves for summary judgment on their affirmative defense.
A defendant has the burden of production when it comes to an affirmative defense. The plaintiff has no obligation to present any evidence in opposition to the affirmative defense unless and until it has been properly raised by producing evidence that shows the defense was facially valid.
An unsupported motion for summary judgment on an affirmative defense leaves the defendant open to an oral motion for summary judgment in favor of the plaintiff made at the time of hearing. Always wait until the actual hearing to make your motion as it will be too late to correct their mistake.
Next time you confront a defense attorney who fails to properly support their motion for summary judgment on an affirmative defense, do not be afraid to orally move at the hearing for summary judgment in your client’s s favor. If the defense has failed to produce admissible evidence in support of its position, then you are entitled to receive summary judgment. I have won summary judgment on affirmative defenses numerous times by using this tactic to the dismay and surprise of my opponent.
Good luck using this stealthy tactic. They won’t see you coming until it is too late.
An Unforeseen Value to Loss of Consortium Claims in Selecting a Jury.
As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium!
I was picking jury in a rural county and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.
To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.
So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.
The Floor for the Value of a Human Life is Flying High
You have a wrongful death claim and need an indisputable source of information to determine the minimum value of a human life. Wouldn’t it be nice if the federal government published minimum values for the loss of a human life? Well, they have! The U.S. Defense Department has made a conscious decision on this very disputed issue of value.
The federal government has determined that the minimum value attributable to the loss of one life is $250,000,000 (a quarter of a billion dollars). How can this be? Where can the supporting information be reviewed? Well, the F-22 Raptor costs approximately $250 million per jet, replacing the F-15 Eagle which costs $65 million each.
The federal government installs pilot ejector systems on every F-22 Raptor Jet fighter. The government does this to protect the pilot, not the plane. In order to save the life of a pilot of a Raptor F-22, the government chooses to sacrifice our most expensive combat jet airplane to insure the pilot lives to fly another day. The F-22 jet airplane costs $250,000,000 to manufacture. In spite of this huge cost, the federal government has chosen to install an ejector system to save the pilot’s life even though the ejection of the pilot will result in the certain and immediate loss of a quarter of a billion dollar jet airplane.
How about that… This analogy was raised some time ago by a trial lawyer by referencing the Eagle F-15. Well the minimum value for the loss of a human life has just gone up… at least in the eyes of the federal government.
Why Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no!
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution. Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952). So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.
Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore
The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:
It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.
[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.
In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.
237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict. In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013). The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52. Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance. This Rule provides:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. [Emphasis Added].
Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:
Rule 616. Witness’s Bias
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries. By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:
[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.
Id. at 621.
Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund. The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members. The prohibition on mentioning insurance is not absolute. Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”. While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403. This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions). The attendant prejudice must substantially outweigh the probative value. A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:
Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].
Id. at 55. Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter. Bias can occur on an unconscious level and is not cured by being placed under oath. If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor? The Court of Appeals went on to observe:
[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).
Id. at 55. The Court of Appeals then held that:
When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.
Id. Ultimately the issue remains one for the trial court to resolve in its discretion. In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense. The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund. See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:
These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):
760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
Class 0
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80248 Nutrition
80249 Psychiatry (Including Child)
80250 Psychoanalysis
80251 Psychosomatic Medicine
80254 Allergy
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
Class 1
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
Class 2
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
Class 3
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
Class 4
ISO Code Specialty
80000 Family Practice – with OB
80101 Broncho-Esophagology
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
Class 5
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
Class 6
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
Class 7
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
Class 8
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics
The facts the Indiana Court of Appeals had to assume given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis. While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals! The actual potential for bias when viewing the real numbers is neither remote nor trivial. Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice.
Impeccable Impeachment and the Use of Prior Convictions
“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.” Gary Hamel
What are the limitations on the use of prior convictions in challenging a witness’s credibility? When are you allowed to use them? What are you allowed to reveal? This blawg note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
What are the limitations on the use of prior convictions? When are you allowed to use them? What are you allowed to reveal? This note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Below are some thoughts on some of the issues concerning the use and admissibility of prior convictions:
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
Do it for the love…
Today I learned Magistrate LaRue died after leaving legacy of doing justice on the bench as fine and fair jurist. As a private attorney she advocated for civil rights for the everyday man. She did it for the love.
A friend of my son Al, John Overton, released a rap/hip hop Album “While I Was Away” which contains a song my son collaborated with him on called “Do It for the Love” which carries this theme through it lyrics. They are pursuing their love making music.
I have always told my children all I want is “the love”. Life is short and uncertain. No matter what your goals in life are “do it for the love”, not the money. Your greatest chance for personal fulfillment is to do what you love. As the line goes “if you do a job you love, you’ll never work a day in your life”.
I am lucky because I am doing what I love… advocating for the everyday man sometimes against long odds and literally at times fighting City Hall. To those, such as myself, who are fortunate enough to have the privilege to practice law, pursue justice and strive for excellence, but above all else do it for the love. God bless…
The Barrister's Toolbox 