Whittington v. Magnante
2015 Ind. App. LEXIS 367
| Ind. Ct. App. | 2015Background
- Plaintiffs (personal representative and individually) sued ophthalmologist Dr. David Magnante and his practice for medical malpractice after exhausting the Medical Review Panel.
- Defendants sought to depose Plaintiffs’ expert ophthalmologist, Dr. Peter Hovland; dispute arose over who must pay for the expert’s deposition preparation time.
- Defendants moved to limit compensation to only time spent in the deposition (not preparation); Plaintiffs opposed.
- The trial court issued an order that is internally inconsistent: it denied Defendants’ motion but stated Defendants are not required to pay for Hovland’s preparation time.
- Plaintiffs appealed, invoking interlocutory appeal rules; the Court of Appeals examined whether it had jurisdiction to hear the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court order is appealable as of right under Indiana App. R. 14(A) ("for the payment of money") | The order effectively denies payment to Plaintiffs for expert preparation time and thus is an interlocutory appeal of right under Rule 14(A) | The order did not directly require payment or create an enforceable monetary obligation and therefore is not an appealable order under Rule 14(A) | The order is not an appealable "for the payment of money" order; Plaintiffs have no interlocutory appeal of right |
| Whether the Court of Appeals has jurisdiction (final judgment or interlocutory of right) | The appeal should proceed as an interlocutory appeal of right | The appellate court lacks jurisdiction because the order is neither final nor an interlocutory appeal of right; Plaintiffs needed to seek discretionary review under Rule 14(B) | Court lacks jurisdiction and dismisses the appeal |
Key Cases Cited
- Rowe v. Ind. Dept. of Correction, 940 N.E.2d 1218 (Ind. Ct. App. 2011) (discusses scope of interlocutory appeals "for the payment of money" and discretionary Rule 14(B) procedure)
- State v. Hogan, 582 N.E.2d 824 (Ind. 1991) (describes types of orders considered akin to payment-of-money interlocutory appeals)
- National Gen. Ins. Co. v. Riddell, 705 N.E.2d 465 (Ind. Ct. App. 1998) (examples of orders treated as payment-of-money category)
- Moser v. Moser, 838 N.E.2d 532 (Ind. Ct. App. 2005) (interlocutory appeals allowed only with express rule/statute and court may dismiss for lack of jurisdiction)