Weinberger v. Boyer
956 N.E.2d 1095
| Ind. Ct. App. | 2011Background
- Boyer sued Weinberger Entities for medical malpractice arising from a January 15, 2004 sinus surgery and subsequent post-operative care.
- Weinberger allegedly misread preoperative EKG results, concealing an abnormal reading to proceed with surgery.
- Boyer underwent multiple post-operative debridements without anesthesia, alleging harm and worsened congestion.
- Weinberger disappeared in late 2004; Boyer later learned he needed corrective care and that a second, non-Weinberger surgery was advised.
- A jury awarded Boyer $300,000 in damages; the trial judge denied a motion for change of judge and the parties appealed.
- Indiana Trial Rule 76 governs change-of-judge motions; the transfer to a new judge occurred four days before trial over objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Change of judge denial abuse | Weinberger delay warranted automatic change | Late knowledge did not justify automatic change | No abuse; denial proper under TR 76(C)(6) |
| Failure to strike for cause and peremptories exhausted | Dismissal for biased jurors denied | Exhaustion rule waived preservation | Exhaustion rule fatal; claim waived |
| Admissibility of breach testimony after stipulation | Allowing breach testimony necessary for damages | Testimony prejudicial after admission of breach | Admissible; not reversible error |
| Admission of Boyer's EKG abnormality | Abnormal reading properly presented via cumulative testimony | Hearsay error | Harmless cumulative error; no reversal |
| Flight/absence and other-patient evidence | Flight evidence shows consciousness of guilt and is probative | Prejudicial and irrelevant | Admissible; harmless and not reversible |
Key Cases Cited
- Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232 (Ind.2002) (challenge for cause; exhaustion of peremptories required to preserve error)
- Robinson v. State, 453 N.E.2d 280 (Ind.1983) (exhaustion rule for cause challenges)
- State ex rel. Prosser v. Lake Circuit Court, 565 N.E.2d 751 (Ind.1991) (issues closed on merits for change-of-judge timing)
- Waugh v. Kelley, 555 N.E.2d 857 (Ind.Ct.App.1990) (admission of judicial admissions weighed as evidence)
- Coffey v. Wininger, 296 N.E.2d 154 (Ind.1973) (evidence-admission harmless when cumulative)
- Gash v. Kohm, 476 N.E.2d 910 (Ind.Ct.App.1985) (Fifth Amendment inference in civil cases permitted)
- Harrod v. Bisson, 93 N.E.1093 (Ind.1911) (flight evidence linked to consciousness of guilt)
- Myers v. Moore, 28 N.E.724 (Ind.1891) (early authority on adverse inferences from conduct)
- Ritter v. Stanton, 745 N.E.2d 828 (Ind.2001) (standards for evaluating compensatory damages)
- Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624 (Ind.Ct.App.1992) (comparability analysis in damages disapproved)
- Witte v. Mundy ex rel Mundy, 820 N.E.2d 128 (Ind.2005) (invocation of invited error doctrine)
- Gash v. Kohm, 476 N.E.2d 910 (Ind.Ct.App.1985) (civil pleadings admissions considered evidence)
- Van Sice v. Sentany, 595 N.E.2d 264 (Ind.Ct.App.1992) (medical battery defined; informed consent)