Marcia Oddi at the Indiana Law Blog has an excellent entry about the discussion of judicial mandates before the legislature’s Commission on Courts. The problem, generally, is this: county councils are restricted in their ability to raise funds. And, they have to fund a lot of competing departments, most of which would prefer more money.

One of the entities the councils have to fund are the local courts. However, unlike other department heads, judges are allowed to issue mandates — orders compelling the council to provide funds. There is a procedure by which mandates can be evaluated by other judges, but the track record runs pretty solidly in favor of judicial approval of judicial mandates. This good track record could well be because the mandates and the judges who issue them are, in most cases, quite reasonable. However, with other judges upholding judicial prerogatives, it’s hard to avoid at least an appearance of impartiality. One solution kicked about by the council is requiring the State to fund the courts. Another issue is that of attorneys fees. When a county challenges a judicial mandate, the county has to pay for the attorney fees of both sides. This gets expensive; especially given the tendency of both sides to run to the highest priced Indianapolis law firms for representation. There was some discussion of having the Attorney General’s office represent the judges as it does in other kinds of litigation.

I should know better than to think I know enough about a lawsuit to comment from reports in a newspaper, but this one caught my eye. A 2005 Fort Wayne festival at the attendee was shot by an unknown gunman. The attendee is now suing the midway company and the Memorial Coliseum’s board of trustees.

Without, as I said, knowing anything about the situation, I predict that the lawsuit will end up being a litany of coulda, shoulda, woulda’s from the plaintiff. Defendants are on the business end of a lawsuit because: a) plaintiff can’t find the wrongdoer; and b) the wrongdoer probably didn’t have any money anyway.

Likely as not, the defendants didn’t do anything particularly blameworthy but the plaintiff will list a bunch of stuff that, in hindsight, the defendants could have done better. The main goal will be to throw enough dust in the air to persuade a judge not to throw the case out of court and get it to a jury. In the meantime, the defendants will spend a bunch of money litigating the case; and then have to think long and hard about submitting to the potentially arbitrary decisions of a jury. Fear of what a jury might do is based upon the idea that plaintiff is an individual who suffered a tangible injury whereas the defendants are disembodied corporations (there is an oxymoron in there somewhere) with lots of money and/or healthy insurance policies.

But, like I say, I don’t know anything about this case. Maybe the Memorial Coliseum and the midway company got together to hand out free handguns and liquor before the plaintiff got shot.

The Indiana Commercial Foreclosure Blog has an interesting (to me, anyway) discussion about whether it is better to seek a summary judgment or a default judgment against a defendant who fails to respond to a complaint. The notion is that a summary judgment might be harder for a defendant to set aside later. Legally, I think this idea makes sense, but in practice, I suspect it would not make a great deal of difference. I suspect, without knowing, that trial court judges would bring their default judgment sensibilities (and these vary widely – from almost automatically setting them aside when challenged to almost never setting them aside) to bear when considering whether to set aside the judgment, regardless if it was obtained under the Trial Rule 56 summary judgment procedures.

Plaintiff’s personal injury attorneys won a pretty big decision from the Court of Appeals in Stanley v. Walker. The Court of Appeals upheld a trial court’s decision to exclude the defendant’s efforts to present evidence that medical providers had written down their medical bills.

If a defendant causes an injury, he is responsible for paying the plaintiff’s reasonable medical expenses. Indiana’s rules of evidence say that a party can make a prima facie showing of the reasonable cost of their medical expenses by simply presenting their medical bills. However, Indiana, like most states, have a “collateral source” rule that specifies that defendants can’t introduce evidence of insurance benefits by way of trying to escape their own liability. That’s reasonable as far as it goes. It shouldn’t make any difference to a defendant’s liability whether I wrote a check to the hospital or my insurance company wrote the check. In the latter case, you can be sure the insurance company is going to come after me for reimbursement if I get money from a defendant.

However, this decision also says that a defendant can’t present evidence that the hospital simply reduced the price of their service due to a negotiation with an insurance company. The court decided this was an “insurance benefit” and, therefore, had to be excluded from evidence.

The core question here is how a defendant can go about proving what constitutes a reasonable price for a medical expense. The plaintiff gets to set the bar by simply presenting a medical bill. More and more, however, it seems that the sticker price for medical bills are a lot like the sticker price for used cars — a starting point in negotiations. In some ways, I think the hospitals have to jack up the price in order to get a reasonable level of reimbursement from the government and the big insurers. Unlike with car sales, however, there doesn’t seem to be an equivalent of a Kelley’s Blue Book with which to provide the going rate for medical services.

In my view, the defense should be able to provide evidence that the medical provider took $x as payment in full and suggest to the jury that $x is, therefore, the market price for the services. The parties could then make any follow up arguments they thought necessary and the jury could consider the evidence and decide whether the sticker price, $x, or somewhere in between constituted the “reasonable expense.” This is not to say that the Court of Appeals necessarily decided this incorrectly. It was interpreting a statute. It may very well be time for the General Assembly to consider amending the statute to allow the defense an method that’s not overly burdensome by which to argue that the amount paid and not the amount billed constitutes the reasonable value of the services.

As it is, I don’t think it’s possible or at least feasible for a defendant to, for example, go to each provider and demand information on the amount paid by all patients for a particular service and then use the average to argue that the average is a more reasonable price. In any event, I expect that this issue will keep coming up the more the sticker price for medical services becomes divorced from the amount usually paid for those services.

The Court of Appeals, in State of Indiana v. Anthony Pollard, held that Indiana’s sex offender residency restriction; IC 35-42-4-11 was unconstitutional as it applied in Mr. Pollard’s particular case.

I have cases involving the same statute with facts that are not precisely analogous to those of Mr. Pollard, so I won’t comment too extensively here. However, it appears that the Court of Appeals generally took a rather dim view of the statute which prohibits registered sex offenders from residing within 1,000 feet of school property, a public park, or a youth program center. The particular holding of the case, however, seems to have hinged on the fact that Mr. Pollard owned the property in which he resided prior to implementation of the statute. This will almost certainly be taken up with the Supreme Court, if it will take the case, and is not conclusive for other fact situations — such as where the sex offender does not have an ownership interest in the property and/or acquired an ownership interest in the property after the statute went into effect.