Holden v. Balko

• Decision Date: 26 December 1996
• Docket Number: No. IP 96-0949-C-H/G.,IP 96-0949-C-H/G.
• Citation: 949 F.Supp. 704
• Parties: Rodney HOLDEN and Julie Holden, Plaintiffs, v. John BALKO, John Balko d/b/a Hearing Health Care Associates, and Industrial Audiological Services, Inc., Defendants.
• Court: U.S. District Court — Southern District of Indiana

949 F.Supp. 704

Rodney HOLDEN and Julie Holden, Plaintiffs, v. John BALKO, John Balko d/b/a Hearing Health Care Associates, and Industrial Audiological Services, Inc., Defendants.

No. IP 96-0949-C-H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

December 26, 1996.

James D. Johnson, Mattingly, Rudolph, Fine & Porter, Evansville, IN, for plaintiffs.

Peter H. Pogue, Locke Reynolds Boyd & Weisell, Indianapolis, IN, for defendants.

ENTRY ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

HAMILTON, District Judge.

Under Indiana common law, a tortfeasor cannot rely on a doctor's negligent treatment of the victim's injuries to avoid or reduce the tortfeasor's own liability, at least so long as the victim used reasonable care in selecting a doctor. Whitaker v. Kruse, 495 N.E.2d 223, 226 (Ind.App.1986); accord, Suelzer v. Carpenter, 183 Ind. 23, 107 N.E. 467, 470-71 (1915); Restatement (Second) of Torts § 457 (1965). Indiana, like most other states, treats the risks of medical treatment as foreseeable consequences of the wrong that caused the victim to need the medical treatment in the first place. The question in this diversity case is whether the Indiana Comparative Fault Act (Ind.Code § 34-4-33-1, et seq.) has superseded this doctrine of Indiana common law so as to permit a tortfeasor to reduce his own liability by asserting a nonparty defense against a doctor who negligently treated the injured person. The court concludes that the Comparative Fault Act did not modify or supersede the common law rule stated in Whitaker v. Kruse. Under Indiana law, an original tortfeasor may not use a nonparty defense under the Comparative Fault Act against doctors or others who provided allegedly negligent assistance to an injured person.

Plaintiffs Rodney and Julie Holden seek damages for alleged injuries suffered when Mr. Holden was fitted for custom ear plugs by defendants John Balko and employees of Hearing Health Care Associates and Industrial Audiological Services, Inc. Defendants have pleaded as an affirmative defense a nonparty defense under the Indiana Comparative Fault Act, Ind.Code § 34-4-33-10. That defense alleges that the doctor who treated Mr. Holden for the ear problem breached the applicable standard of care. Plaintiffs have filed a motion for partial judgment on the pleadings as to that defense. Both sides have filed affidavits in conjunction with the motion, so it has been converted to a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b).

Summary Judgment Standard

A motion for partial summary judgment as to specific claims or issues may help narrow the issues in a case. The standard for summary judgment is the same regardless of whether the motion addresses the entire case or only a portion of it. A genuine issue of material fact exists if there is sufficient evidence for a jury to find in favor of the non-moving party on the particular issue. E.g., Methodist Med. Ctr. v. American Med. Sec. Inc., 38 F.3d 316, 319 (7th Cir.1994). A party moving for summary judgment initially has the burden of showing the absence of any genuine issue of material fact in evidence of record. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party carries this burden, the opposing party then must "go beyond the pleadings" and present specific facts to show that a genuine issue exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The non-moving party is entitled to the benefit of all favorable inferences from the evidence, as long as they are reasonable. Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir.1994). In this case, plaintiffs' motion presents a question of law particularly appropriate for resolution on a motion for summary judgment.

A motion for partial summary judgment as to an affirmative defense presents a relatively unusual twist on the summary judgment procedures that are the daily fare of the federal district courts. When a defendant pleads most affirmative defenses, the defendant asserts, in essence, that even if the material factual allegations in the complaint are true, the defendant intends to prove additional facts that will defeat or reduce the relief sought by the plaintiff. E.g., Gwin v. Curry, 161 F.R.D. 70, 71 (N.D.Ill.1995); Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 736-37 (N.D.Ill.1982); see generally 5 Charles Allen Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice & Procedure § 1270 at 411-14 (2d ed.1990). That general description certainly applies to a nonparty defense under the Indiana Comparative Fault Act asserting that another person is partially responsible for at least some of the plaintiff's injuries.¹ Therefore, for purposes of deciding the plaintiffs' motion for partial summary judgment on this affirmative defense, the court will assume (as the defendants assume for purposes of pleading the defense) that plaintiffs can prove the essential elements of their negligence claims against the defendants. Then, the court will consider the evidence relating to defendants' nonparty defense in the light most favorable to defendants, as the nonmoving parties.

Undisputed Facts

Rodney Holden worked at Omco Cast Metals, Inc. in Winchester, Indiana. On May 10, 1995, John Balko and employees of Hearing Health Care Associates and Industrial Audiological Services, Inc. were on site at Omco to make custom ear mold impressions for Omco employees, including Mr. Holden. To create each custom ear mold impression, defendants inserted a foam sponge into an ear and then filled the ear cavity with a blue silicone material. The silicone material would fit the form of the individual ear. By use of an attached string, the sponge and silicone material would then be extracted from the ear for use as a mold to create custom ear plugs.

When one of defendants' employees extracted the form from Mr. Holden's ear, some of the silicone material leaked behind the sponge and remained in Mr. Holden's ear canal. Defendants, including Mr. Balko, attempted unsuccessfully to remove the silicone substance from Mr. Holden's ear. Mr. Holden was then referred to a hospital for removal of the remaining silicone substance. On May 11, 1995, Mr. Holden visited an ear, nose, and throat specialist ("ENT doctor") at a hospital. The next day, the ENT doctor surgically removed the silicone material from Mr. Holden's right ear.

On July 3, 1996, Rodney and Julie Holden filed a negligence complaint against the defendants seeking damages for Mr. Holden's injuries and Mrs. Holden's loss of consortium. On September 3, 1996, defendants filed their answer including their nonparty defense, alleging that plaintiffs' claims were caused in whole or in part by a non-party, the ENT doctor, who is or could be liable to the plaintiffs for their damages and injuries pursuant to Ind.Code § 34-4-33-10. In responding to plaintiffs' motion, defendants have submitted an affidavit from another doctor asserting that the ENT doctor who treated Mr. Holden breached the applicable standard of care and that his breach proximately caused injuries to Mr. Holden. The ENT doctor who treated Mr. Holden is not a party to this action and has not yet been offered an opportunity to defend his treatment of Mr. Holden. Solely for purposes of deciding plaintiffs' motion for partial summary judgment, the court must assume that the ENT doctor's treatment of Mr. Holden was negligent and proximately caused some aggravation of Mr. Holden's injuries.

Discussion

Plaintiffs' motion raises an issue that is, at its root, a matter of statutory interpretation. The question is whether and to what extent the Comparative Fault Act has superseded the common law rule that a tortfeasor cannot reduce his own liability by showing that those who came to the aid of the injured victim were negligent in providing that aid. This issue has not been addressed by the Indiana courts, nor have the parties directed the court's attention to cases in other states addressing the same issue under other comparative fault statutes. The court will consider first the role of the nonparty defense under the Indiana Comparative Fault Act and then the common law background against which the Comparative Fault Act was adopted. See generally Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 673 (Ind.1991) (construing Comparative Fault Act strictly as a statute in derogation of the common law). The court will then turn to the arguments for the proposed interpretations of the Act as applied to this situation.

I. Indiana's Doctrine of Intervening Cause and the Nonparty Defense Under the Comparative Fault Act

Indiana's Comparative Fault Act applies, with certain enumerated exceptions, to damages actions based on fault that accrued on or after January 1, 1985. Ind.Code § 34-4-33-1(a)(2). Medical malpractice actions are excluded from coverage and continue to be governed by the Medical Malpractice Act. Ind.Code § 34-4-33-1(a)(1). The Comparative Fault Act authorizes defendants to assert a defense that the claimant's damages were caused in full or in part by a nonparty. Ind.Code § 34-4-33-10. At the time of the events in question, the Act defined "nonparty" as follows: "a person who is, or may be, liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant." Ind.Code § 34-4-33-2(a)(2) (West Supp.1994).² A defendant must affirmatively plead the nonparty defense, and the defendant carries the burden of proof on the defense. Ind.Code § 34-4-33-10(b). If a defendant knows of a nonparty defense when the first answer is filed, the defense must be asserted in the first answer. Ind.Code § 34-4-33-10(c). Defendants in this case satisfied these requirements by pleading the nonparty defense in their first answer.

The comparative fault system...