While I am happy to report that the Indiana Supreme Court ruled in favor of my injured client in this specific case, I think the Court’s opinion does a very good job of unanimously affirming the importance of our civil justice system and the absolute need for our courts to be open to all. 

The Court’s opinion is 19 pages long so I thought I would provide you with some highlights from Chief Justice Rush’s opinion.  The opening sentence of the opinion reads: 

Indiana’s tort trials should be about making injured parties whole—not about federal immigration policies and laws. 

She then went on to address the constitutional implications this case raised: 

When Indiana law affords a remedy—like recovering decreased earning capacity—the Open Courts Clause does not permit us to close the courthouse door based solely on the plaintiff’s immigration status. We cannot read the Open Courts Clause’s “every person” guarantee to exclude unauthorized immigrants. [Citations omitted.]  And as long as decreased earning capacity remains recoverable in personal injury actions, it is part of administering justice “completely.” See Smith, 883 N.E.2d at 807 (“[The Open Courts Clause means], at a minimum, that to the extent the law provides a remedy for a wrong, the courts are available and accessible to grant relief.”).  Accordingly, Escamilla and similarly situated plaintiffs cannot be barred from pursuing decreased earning capacity claims. 

Chief Justice Rush even quoted from Chapter 40 of Magna Carta, writing “to no one will we sell, to no one deny or delay right or justice.” 

After distinguishing a federal decision that was based upon a conflict between two federal statutes and involved only federal congressional policy, the Court moved on to create an evidentiary framework addressing when evidence of an injured party’s immigration status might be admissible. 

After acknowledging that immigration status is relevant to a claim for decreased earning capacity, the Court went on to find that, in the vast majority of instances, such evidence should be excluded under IRE 403 because it would confuse the issues and be unfairly prejudicial.  After acknowledging the complexities and constantly shifting federal immigration laws and policies – including a recent Executive Order signed by President Trump – the Court wrote: 

The way complex immigration law has invaded this opinion demonstrates the way it would invade Escamilla’s tort case if his immigration status were admitted. Immigration arguments and evidence would “flood the courtroom.” See Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997) (quoting United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996)). Injecting such a specialized and complex mini-trial into Escamilla’s tort case creates too high a risk of confusing the issues.  

The Court ultimately concluded that it is the Defendant’s burden to show that the injured party more likely than not will be deported before the issue of their immigration status can become admissible.  In reaching this conclusion the Court observed: 

Finally, even though proof that a particular immigrant will more likely than not be deported may be a steep showing, it is still the least cumbersome alternative. Requiring plaintiffs to prove that they will not likely be deported would require them to prove a negative—a burden we rarely impose. [Citations omitted.] 

For these reasons, the admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence’s risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice. 

This case will prove helpful to all injured parties who have been an unauthorized immigrant either currently or at some time in the past. 

Most heartening to us as trial lawyers, the Court’s unanimous Opinion shows a deep and abiding respect for the rights of injured persons to have access to our courts and the seek compensation when they have been injured through the fault of others.  

Finally, I want to offer my deepest thanks to all who helped on this case including Alex Limontes and Tom Ruge for their excellent Amicus Briefs.

 

Timothy F. Devereux

NASCAR Driver Tony Stewart Hires Indianapolis Defense Attorney James Voyles

The motor sports world suffered a great loss on Saturday, August 9, 2014 when Kevin Ward, Jr. died of massive blunt force trauma after he was struck during a sprint car race by Tony Stewart’s vehicle.  As this perplexing and tragic event is being investigated, no criminal charges have been filed to date.  However, WTHR News reported that Stewart has retained seasoned Indianapolis defense attorney James Voyles just days after the fatal wreck.

Regardless of what the New York prosecutors decide to do as far as criminal charges are concerned, it is likely that Tony Stewart will face legal action in the civil arena. That is, even if New York authorities conclude that Ward Jr.’s death was entirely accidental, his family could conceivably pursue a wrongful-death civil case under a theory of negligence.

The differences between proving manslaughter in criminal court and proving negligence in civil court are significant.  For one, the level of intent is much lower for negligence, as a wrongful death plaintiff need only show that the defendant’s actions fell below a standard of reasonable care under the circumstances.  (By contrast, a prosecutor needs to prove the act that caused the death was intentional, or at minimum, severely reckless.)  Moreover, theburden of proof in a civil case requires the plaintiff demonstrate that it is more probable than not that the defendant was negligent and that the defendant’s negligence caused the plaintiff damage.  The time-honored criminal burden of proof is that all elements of a criminal charge be demonstrated “beyond a reasonable doubt,” a much higher bar to meet.

In spite of the ugliness of the scene that resulted in Ward Jr.’s death, there remain challenges for his estate if it seeks to bring a wrongful death claim. Ladendorf Law founding attorney Mark Ladendorf explained some of these challenges in an interview with WTHR (local NBC) on Monday.

From a claimant’s perspective, Mark’s first concern is whether Kevin Ward Jr. executed a waiver or release of liability prior to participating in the sprint race.  Athletic releases–which operate to bar a future civil claim in exchange for the athlete being allowed to participate–are pervasive in motor sports.  In many instances, the language of the release / waiver signed by a deceased individual can be binding upon his heirs in a wrongful death case.

Second, Mark discussed one of the critical differences between the substantive laws of New York, where the incident occurred, and Indiana, which is Tony Stewart’s home state.  Under the Indiana Adult Wrongful Death Statute (codified at I.C. 34-23-1-2), the estate of an emancipated adult who is killed through the fault of another can only collect at most $300,000 in “non-economic damages” — that is, damages that represent the loss of love, care and companionship.  This is only one type of “damage cap” created by the Indiana Legislature to limit a party’s recovery.  The State of New York, by contrast, does not cap wrongful death damages for the statutory survivors of the deceased.

To view portions of Mark Ladendorf’s interview with WTHR, click here.

Ladendorf Law will continue to follow this developing story. Our practice is devoted exclusively to representing victims of personal injury accidents, medical malpractice and wrongful death.  Please do not hesitate to call us if we may assist you, your friends or acquaintances with a case.

When technology and philanthropy come together, beautiful results can happen.  This video, taken by a drone hovering above the American Legion Post #10 in Marion, Indiana, followed the motorcycle riders who participated in the inaugural Lt. Michael Andry Memorial Ride on July 12, 2014.

The initial couple of minutes show the Legion grounds and the bikes departing.  The drone catches up with the riders en route on the 137 mile journey.  It concludes with still photos of former Grant County Sheriff’s Deputy Michael Andry on his bike and the cross at the scene of his untimely crash that led to his death.    Incredible aerial videography, particularly for those who have never seen what a drone can do.

A recap of the July 12, 2014  Lt. Michael Andry Memorial Ride, by Ladendorf Law attorney Dan Ladendorf:

Approximately two hundred people – volunteers and participants alike – stood under partly cloudy skies waiting for the formal invocation to kick-off the Lt. Michael Andry Inaugural Memorial Ride. A young lady was invited to the microphone where she acknowledged Lt. Andry’s selfless actions when he came upon the scene of a crash several years ago and played a role in making her presence at this event in his memory even possible.  In his work, Lt. Andry touched the lives of many people in unforeseen ways and made his community a better place until a senseless crash on July 12, 2013 claimed his own life at the young age of 49.

Despite Saturday’s stormy forecast, the only thunder overheard at American Legion Post #10 in Marion, Indiana was the roar of one hundred motorcyclist departing for a 137 mile ride in memory of Lt. Andry, a twenty-one year veteran of the Grant County Sheriff’s Department.  A law enforcement escort accompanied the procession of bikes over the Salamonie Reservoir with a scheduled stop at Brandt’s Harley Davidson in Wabash.  The ride continued across the Mississinewa Reservoir, through Converse and into the Town of Swayzee, where Lt. Andry began his career in law enforcement as the Town Marshall.   A second stop in Greentown provided a short respite before riders passed byKnox Chapel Cemetery where Lt. Andry is laid to rest.  Upon returning to the Legion, afternoon activities included food and a silent auction.

Ladendorf Law was the primary sponsor of the ride and is grateful the Andry family invited our participation in the event, which promoted driver and motorcycle safety.  Ladendorf Law attorney Dan Ladendorf was on-hand at the Legion in the hours before the 11:00 a.m. ride commenced.  Proceeds from this year’s inaugural ride are earmarked for the benefit of two law enforcement related charities including the Grant County Sheriff Department’s “Sheriff’s Gifts for Kids” program and the Marion Fraternal Order of Police “Cops and Kids” program. Both charities assist less fortunate children during the Christmas season and were supported by Lt. Andry before his untimely death.

The inaugural Lt. Michael Andry Memorial Ride ride was held on the one year anniversary of Lt. Andry’s death, which was caused by the negligence of another driver who executed a left turn directly into and across the path of Lt. Andry’s motorcycle on SR 13 just north of Elwood, Indiana.  Lt. Andry’s family intends to continue the event each year in celebration of his life and in support of his commitment to the community in which he lived and worked.  Ladendorf Law looks forward to being along for the ride.

Like family.  Because we are.

dan + family

Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.
Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

 

Kickstands up! Time to roll out for the 100+ mile ride.

 

Lt. Michael Andry Memorial Ride volunteers… hard at work!
Lt. Michael Andry Memorial Ride volunteers… hard at work!

Check out this Northern Indiana news release on Dan Ladendorf’s recent recognition as 2013 Trial Lawyer of the Year, from Page A01 of The Rochester Sentinel, December 5, 2013:

Manitou resident top trial lawyer

The Sentinel report

An Indianapolis lawyer with a summer home on Lake Manitou is the Indiana Trial Lawyers Association 2013 Trial Lawyer of the Year.

Daniel A. Ladendorf, of Ladendorf and Ladendorf, received the award for his efforts to get the 2013 Indiana General Assembly to pass amendments to the state’s hospital lien statute.

“The changes will help to protect all future residents who find themselves in need of hospital services as a result of someone else’s wrongdoing,” Ladendorf said. “Prior to the changes, effective July 1, 2013, hospitals routinely ignored the benefits to which an injured patient was entitled under a private health insurance plan or Medicare, seeking instead to collect its full charges from those patients who, for example, were injured by a drunk driver.”

State Sen. Brent Steele, R-Bedford, introduced the legislatation and State Rep. Jud McMillin, R-Brookville, carried it through the House.

The changes stop hospitals from asserting liens against Medicare patients and require hospitals to give patients credit for any contractual adjustments or write-offs it agreed to under the patient’s health plan, according to the association’s press release. The release says Ladendorf’s work on the amendments followed a case involving the wrongful death claim for the estate of a woman who died of injuries from a car wreck. The release says the collision was caused by another driver who failed to yield.

Instead of collecting a reduced payment from Medicare, the hospital set a $155,000 bill for the patient and took out a lien against any recovery her estate made in the wrongful death claim against the driver who caused the crash. However, the estate could only collect $100,000 in damages, limited by the at-fault driver’s liability insurance coverage.

According to the release, Ladendorf also found many Indiana hospitals refused to credit an injured patient’s account for the write-off it agreed to accept as a condition of providing in-network services under a patient’s health plan.

He was also involved in testimony before Senate and House committees considering lien statute amendments, pointing out the lien statute was first adopted in the 1930s, before Medicare, Medicaid and private health insurance plans provided assurances to hospitals of payment for services.

Attorneys Stephen L. Williams, Terre Haute, and Thomas E. Hamer, Anderson, nominated Ladendorf for the award.

Ladendorf earned a bachelor’s degree in business administration in 1983 from Indiana University. He received his law degree from Indiana University in 1986.

 

Since the day our firm was founded by attorney Mark Ladendorf, Ladendorf Law has been exceptionally fortunate to represent so many good people over the years who have turned to us for a voice when they are hurt by the most unfortunate circumstances.  Without our clients, our work would be meaningless, and it is our clients who push us to want to work harder every day.  The greatest reward we can receive is a satisfied client who leaves our representation knowing we did all we could to restore his or her life in the only way we know possible–by navigating the complex legal system to obtain fair compensation from the responsible party.

Sometimes our efforts are recognized by people in our community other than our direct clients.  This past Thursday, November 7, 2013, was one of those days for Dan Ladendorf.

In his nearly fourteen years as a civil trial lawyer, Dan has always gone the extra mile to resolve claims for hundreds of personal injury victims who seek our counsel.  In addition to his “day job,” Dan has served for the last six years as the Chair or Co-Chair of the Government Affairs Committee for the Indiana Trial Lawyers Association (ITLA).  This Committee is charged with the extraordinary task of coordinating bipartisan efforts among ITLA membership to push for pro-civil justice legislation and oppose bills that would seek to diminish the fundamental rights of Hoosiers to trial by jury.

This past General Assembly legislative session was particularly significant for Dan and the ITLA, but more importantly, for our clients.  As a result of tireless research, bill drafting, lobbying, alliance building, vote counting, and a few breaks along the way, Dan’s relentless pursuit of changes to the Indiana Hospital Lien Statute came to fruition.  Effective July 1, 2013, hospitals no longer have a first-priority “super lien” for the full amount of their charged bill against a claim for bodily injuries resulting from a third party’s negligent conduct.   (The details of the changes to the Hospital Lien Statute will be explored in subsequent posts.)

This past summer, Dan received multiple nominations from his peers for the high honor of the ITLA’s 2013 Trial Lawyer of the Year.   Although there were several other distinguished attorneys nominated for this year’s award, Dan received a large majority of the ballots, and on November 7, 2013, he was presented with the award by none other than his older brother and 2013-2014 ITLA President Mark Ladendorf.

2013-2014 ITLA President Mark Ladendorf congratulates Dan Ladendorf with the Trial Lawyer of the Year plaque
2013-2014 ITLA President Mark Ladendorf congratulates Dan Ladendorf with the Trial Lawyer of the Year plaque
The plaque presented to Dan Ladendorf
The plaque presented to Dan Ladendorf

“We are members of the Indiana Trial Lawyers Association.  It is the only statewide association dedicated to open access to the courts and preservation of your right to a jury trial.  I am very humbled by this award, which might be best expressed in this: Even if we are occupied with important things, even if we attain honor or fall into misfortune, still let us remember how good it once was here, when we were all together, united by a good and a kind feeling which made us perhaps better than we are.’”

Congratulations, Dan, on this prestigious award and what it represents: A life of service to the improving our system of justice in Indiana.

For more photos from the Awards Ceremony and post-event reception at Loughmiller’s Pub in downtown Indianapolis, enjoy the following:

Dan Ladendorf dines with family and friends at Table 1
Dan Ladendorf dines with family and friends at Table 1
(Left to Right): Amy Van Ostrand; Dustin Fregiato; Tim Devereux; Cheryl Brockman; Lance Ladendorf; Dan Ladendorf; Julie Weiler; Mark Ladendorf
(Left to Right): Amy Van Ostrand; Dustin Fregiato; Tim Devereux; Cheryl Brockman; Lance Ladendorf; Dan Ladendorf; Julie Weiler; Mark Ladendorf
Dan Ladendorf entertains his audience with musings about growing up, mentoring, and the “architects” of the changes to the Indiana Hospital Lien Statute.
Dan Ladendorf entertains his audience with musings about growing up, mentoring, and the “architects” of the changes to the Indiana Hospital Lien Statute.
Lance (left), Dan (center), and Mark Ladendorf (right)
Lance (left), Dan (center), and Mark Ladendorf (right)
Ladendorf Law spends a night on the town to celebrate the Trial Lawyer of the Year
Ladendorf Law spends a night on the town to celebrate the Trial Lawyer of the Year
A living tribute to Bob and Shirley Ladendorf
A living tribute to Bob and Shirley Ladendorf

 

On the heels of his induction as 2013-2014 President of the Indiana Trial Lawyers Association (ITLA), Mark Ladendorf caught up with Dave Stafford of The Indiana Lawyer to discuss law and life.  The full article can be viewed here.  

Regarding his role as ITLA President:

Q. What are some major practice concerns for trial lawyers that you’ll talk about during your term as president? 

A. I view my role as a facilitator for the growth of the ITLA in the many endeavors in which we already partake. Our outreach includes legislative, administrative, PAC, interaction with the judiciary, fundraising, CLE seminars and social events. All of these efforts are undertaken with the promotion of a strong civil justice system in mind. With the pervasive overview of the ITLA in the many aspects of the legal profession, I will attempt to balance many roles and bring my 33 years of legal experience to the table.

I feel fortunate to serve my administration under the guidance of Micki Wilson, Jason Bell, Lindsay Meyer and Bridget Gross as well as the executive committee who steer this great organization.

On being a trial lawyer:

Q. What is your favorite thing about being a trial lawyer? 

A. I take great pride in being a trial lawyer, not for myself, but for being able to serve others who seek representation when the odds are stacked against them. Not that I have a “Robin Hood” persona, but it is always gratifying to assist someone who needs you most, especially against some of our society’s most powerful interests.

His most challenging case?

Q. Is there one particular case you’ve worked on that stands out as the most difficult?

A. By far, the toughest case I worked on was seeing my friend and fellow attorney, Joan Irick, pass as a result of malpractice. To everyone who knew Joan, she was a terrific person and consummate professional. My representation of her in the last years of her life was one of the most heartbreaking and wrenching experiences I have been part of. She will be endeared and missed forever.

Mark’s advice to new lawyers: “[T]here are enormous opportunities for a person who holds a legal degree as it is the most versatile degree in society. Go forth and serve and good things will happen.”

For the rest of The Indiana Lawyer‘s interview with Mark Ladendorf, check out http://www.theindianalawyer.com/ladendorf-takes-helm-as-itla-president/PARAMS/article/31612.