DAVID, Justice.
In this case, the jury returned a verdict for plaintiff in the amount of $1.75 million. The issues presented focus on two separate, but significant, matters.
The first is whether the trial court erred by denying defendants'
We affirm the trial court, as did the Court of Appeals, on the denial of defendants' motion for a new trial. Under the circumstances of this case, we defer to the judgment of the trial court. However, this decision does not lessen our dissatisfaction and frustration with the behavior of counsel during the trial, particularly plaintiff's counsel.
Professionalism and civility are not optional behaviors to be displayed only when one is having a good day. Professionalism and civility are the mainstays of our profession and the foundations upon which lawyers practice law. The public expects it. Fellow lawyers expect it. Our profession demands it.
Further, we affirm the trial court's decision to deny the discretionary award of prejudgment interest.
In 2001, Archie Laney was at work when she became dizzy, lightheaded, weak, and had difficulty walking. She was sixty-six-years old. Laney called her daughter, who drove her to the South Bend Clinic where Laney's primary care physician worked. When they arrived, Laney learned that instead of her primary care physician being on duty, Dr. Jacqueline Wisner was on duty that evening. Dr. Wisner conducted an examination consisting of an oral history of Laney's symptoms and an examination of Laney's eyes, ears, lungs, and stomach. Dr. Wisner further conducted an Accu-Check blood glucose test, as well as a hemocue test for anemia. Dr. Wisner observed considerable wax build-up in Laney's ears. Dr. Wisner diagnosed Laney with vertigo due to an inner ear infection, and discharged her with medication for the dizziness and an antibiotic. Dr. Wisner advised Laney the medication could take up to three days to work and instructed Laney to return to her primary care physician if the symptoms continued.
Two days later, Laney called her daughter and told her she could not move her right arm or right leg. Her daughter drove Laney to the Emergency Room at St. Joseph Medical Center. Laney was evaluated that evening and diagnosed as
The stroke has rendered Laney unable to use her right side, thus Laney now struggles with independent living.
On November 26, 2002, Laney filed a complaint with the St. Joseph Superior Court alleging negligence by Dr. Wisner and The South Bend Clinic on eleven different counts, generally relating to the failed diagnosis of a transient stroke, which later caused Laney to suffer a disabling stroke. The complaint also alleged that Dr. Wisner or the Clinic negligently failed to maintain the medical record from Laney's March 9, 2001 visit to the Clinic.
In 2006, the original complaint was dismissed without prejudice, pending the adjudication of the proposed complaint before the Indiana Department of Insurance, a statutory condition precedent to the filing of the court complaint, which plaintiff had not done here.
On August 6, 2007, Laney filed virtually the same complaint in the St. Joseph Superior Court, alleging negligence by the Clinic and Wisner. In March 2010, a five-day jury trial was held. The jury returned a verdict in favor of Laney and against Dr. Wisner and The South Bend Clinic in the amount of $1.75 million. The trial can best be described as hotly contested, not only as to the disputed facts but also to the rate of objection by the attorneys.
On March 12, 2010, Dr. Wisner and the clinic filed a motion for reduction of the verdict and judgment to the statutory maximum prescribed by the legislature in the amount of $1.25 million. Laney objected to the reduction and also asked for an award of $100,000 in prejudgment interest based on Indiana Code section 34-51-4-7. On March 18, 2010, the trial court granted the motion to reduce the award and entered judgment in favor of Laney for the amount of $1.25 million, the maximum allowable under Indiana Code section 34-18-14-3, but on April 14, 2010, denied the motion for prejudgment interest.
On April 15, 2010, defendants filed a motion to correct error, requesting a new trial pursuant to Indiana Trial Rules 59(J) and 60(B)(3). Trial Rule 59(J) allows for the court to correct any error it determines to be "prejudicial or harmful." Ind. Trial Rule 59(J). Trial Rule 60(B)(3) allows for the court to relieve a party from a judgment for "fraud ..., misrepresentation, or other misconduct of an adverse party." T.R. 60(B)(3). Specifically, defendants alleged the following: (1) the trial court erred when it failed to order a mistrial based on the consistent, unprofessional and prejudicial conduct of plaintiff's counsel, which deprived defendants of a fair trial; (2) the trial court erred in allowing plaintiff to argue the missing 2001 record should be attributed to Dr. Wisner; (3) the trial court erred in allowing the testimony of plaintiff's expert witness, Dr. Campbell, after learning he violated a separation of witnesses order; and (4) the court erred in not admonishing plaintiff's counsel for asking voir dire questions that were in violation of the motion in limine order.
The trial court held a hearing and denied defendants' motion to correct error. Defendants appealed the trial court's denial of their motion to correct error, and Laney cross-appealed on the issue of the propriety of the trial court's order denying prejudgment interest. The Court of Appeals affirmed the trial court's order denying the motion to correct error, but reversed the trial court's order denying
Dr. Wisner and the clinic contend the behavior of plaintiff's counsel was so unprofessional and so permeated the entire trial that it tainted the proceedings and therefore the cumulative effect was prejudicial enough to warrant a mistrial. We review denial of a Trial Rule 60 motion for abuse of discretion. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006). When the motion is based on Trial Rule 60(B)(3), the appellant must show that (1) misconduct occurred; (2) the misconduct prevented the appellant from fully and fairly presenting the case at trial; and (3) the appellant has a meritorious defense. Id. at 73-74. An abuse of discretion occurs if the trial court's decision was against the logic and effect of the facts and circumstances before the court. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).
Dr. Wisner and the clinic argue the trial court's finding Laney's counsel in contempt of court on day three of the trial and instructing the jury to disregard certain statements made by Laney's counsel were insufficient remedies that failed to undo the cumulative effect and prejudice caused by such conduct. Defendants cite to several exchanges in the record that were particularly harmful to such a degree they claim that the harm could not be undone. The first are instances where Laney's attorney asked specific questions in front of the jury in violation of the trial court's order not to broach a certain subject.
While questioning plaintiff's daughter, plaintiff's counsel asked if Laney was still seeing a particular physician. This was met with an objection, which was sustained by the trial court. Immediately following the sustained objection, plaintiff's counsel asked another objectionable question and again the trial court sustained the objection and prohibited the inquiry.
Following an overnight break, counsel resumed questioning plaintiff's daughter along the very same lines that the trial court forbid the day before. Defendant's counsel objected, and a side bar conference was held where the trial court again found the desired testimony to be irrelevant. Undeterred by the trial court judge, immediately following the side bar conference, plaintiff's counsel once again went right back to the same line of questioning, drawing yet another objection from defendant's counsel and yet another side bar conference.
At the second side bar conference, the trial court made it clear that this prohibited area of inquiry would not be ventured into again by plaintiff's counsel. Nonetheless, plaintiff's counsel would pursue the prohibited testimony once again, this time attempting to solicit the prohibited testimony through the plaintiff herself. Ultimately, the court instructed the jury to disregard the previous questions and not to consider at all the questions that had been asked by plaintiff's counsel on this subject.
On the following day of trial, the trial judge held yet another side bar conference and warned plaintiff's counsel that if he brought up that particular issue again during the next witnesses cross-examination a fine of $500 would be imposed for contempt of court.
This example is one of many displays of inappropriate behavior of counsel. There were excessive objections by both counsel, over eighty by the defendant's counsel and over thirty by plaintiff's counsel. While objections are clearly permitted if made in good faith and on sound substantive grounds, repeated objections despite adverse
The record reveals at least five instances where the trial court judge had to admonish the attorneys about their behavior. Furthermore, by any conservative measure there were at least ten instances of questionable behavior by each attorney during the trial. Examples are bountiful throughout the record, but a few examples are highlighted below.
[Tr. at 607, 98, 179, 192, 957, respectively.]
Defendants' counsel stated during the trial,
[Tr. At 14, 47, 737, 272, 286, respectively.]
We hope this is not the way attorneys conduct themselves at trial. As specifically found by the trial court judge, "the trial was replete with improper behavior, in this judge's opinion, by both attorneys." The trial court ultimately concluded there was no substantial prejudice resulting from counsel's actions. The trial judge is in the best position to gauge the behavior of the attorneys and whether or not it impacts the jury and in what context. Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 677 (Ind.Ct.App.2004). We cannot conclude this decision was against the logic and facts before the court. Here, defendants failed to show the alleged misconduct prevented them from fully and fairly presenting their case at trial.
The contentious nature of the relationship between plaintiff's and defendants' counsel was evident at the beginning of trial. It apparently began during depositions with defendants' counsel remarking that no competent lawyer would conduct a deposition in the manner plaintiff's counsel was. There were accusations of misrepresentations, lying, and not following the rules. The five-day jury trial was filled with unnecessary comments back and forth between counsel. Plaintiff's counsel did not care for defendants' counsel's unsolicited advice. The attorneys would frequently interrupt each other.
The trial judge even noted one time, "I don't want you both to behave like this and
Near the end of the trial, the trial judge even directed plaintiff's counsel to apologize to the jury for personal comments about defendants' counsel. Even during the subsequent hearing on the motion to correct error, some four months later, the lawyers could not behave civilly toward each other.
A jury trial is not a free-for-all. It is a civil forum in which advocates represent their clients before a panel of citizens, in front of a judicial officer who is responsible for enforcing the rules of procedure and rules of evidence and assuring the proper behavior of everyone in the courtroom. It is similar to an athletic event with two opposing teams competing and a referee observing to ensure all of the rules are followed. In this trial, both plaintiff's counsel and defendants' counsel committed fouls. Did plaintiff's counsel commit more fouls? Yes. However, defendants' counsel also committed fouls. It is important that attorneys not lose control of their passion for their client or cause and become too emotionally involved and make the cause personal. In such circumstances they risk harm to their client, their reputation, and our profession.
All attorneys in Indiana take an oath and each and every statement in the oath is sacred. One particular statement is, "I will abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged." Ind. Admission and Discipline Rule 22. Our law schools are trying to train our law students in certain core values of the legal profession, and some of the most important for the future of our profession are collegiality, professionalism and civility. At every trial, indeed at every moment of our practice, we have the opportunity to better our profession. Here, the trial judge presided over the entire trial and had the benefit of observing the overall conduct of both attorneys, not only in the presence of the jury, but outside their presence. The trial judge redirected both counsel on numerous occasions, admonished both counsel on occasions, and even used her contempt powers in an attempt to manage the conduct of counsel and ensure a fair trial. Again, the trial court judge is in the best position to determine when enough is enough and whether or not the behavior of counsel would warrant a new trial.
While we find that the judge did not abuse her discretion in denying the motion to correct error, we nonetheless express our displeasure with the conduct of counsel, particularly that of plaintiff's counsel.
Professionalism and civility must be the foundation of the practice of law. Upon this foundation we lay competency, honesty, dedication to the rule of law, passion, and humility. Every lawyer and every judge is charged with the duty to maintain the respect due to the courts and each other. Our clients and the public expect it. Our profession demands it.
Defendants also contend that the trial court erred in denying their motion to correct error relating to the closing argument of Laney's counsel. Their argument is that once the clinic was removed as an independent party from the case, any references to alleged misconduct in not producing the medical records should warrant a new trial, when taken together with the previous behavior by Laney's counsel. The relevant portion of plaintiff's closing statement is as follows:
We believe, as we have stated previously, the trial court was in a better position to determine any prejudicial affect from Laney's counsel's closing statements. We summarily affirm the analysis of the Court of Appeals, noting also that neither Wisner nor the Clinic objected to these statements and waived the issue. Wisner v. Laney, 953 N.E.2d 100, 108 (Ind.Ct.App.2011).
Defendants next contend the trial court erred by not granting a new trial due to a violation of the separation of witnesses order. Indiana Rule of Evidence 615 states, "at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of or discuss testimony with other witnesses." Ind. Evidence Rule 615. We do not disturb a trial court's determination regarding a violation of a separation of witnesses order, absent a showing of a clear abuse of discretion. Jordan v. State, 656 N.E.2d 816, 818 (Ind.1995). A review of the record reveals that any violation was merely accidental. The alleged violation stems from a chance encounter of Dr. Campbell and Laney, and one merely asking how the other was feeling. At no time did Dr. Campbell ask about their testimony or anything related to trial. The trial court did not abuse its discretion in concluding no impropriety occurred. It is clear to this Court that no violation of separation of witnesses occurred. We are in agreement with the excellent analysis of the Court of Appeals.
Defendants further argue the trial court erred in not granting a new trial
Thereafter, a side bar conference was held to discuss the question before voir dire resumed, and defendants' counsel dropped the subject. Defendants' counsel did not move immediately for a mistrial or argue the jury pool had been tainted. He did not ask for any specific relief or otherwise give the judge an opportunity to cure any potential defect. For this reason, we believe this argument was ultimately waived. Notwithstanding waiver, we would note that "a question regarding a juror's relationship, financial or otherwise, with a specific insurance company on voir dire examination is not error if the question is asked in good faith." Stone v. Stakes, 749 N.E.2d 1277, 1281 (Ind.Ct.App. 2001). Again, the trial court was most certainly in the best position to make these determinations. In our review, absent any evidence of bad faith, the trial court's decision to deny a mistrial was not an abuse of discretion.
On cross-appeal, plaintiffs counsel challenges the trial court's refusal to grant prejudgment interest. At issue is the Tort Prejudgment Interest Statute (TPIS). Ind.Code § 34-51-4. An award of prejudgment interest is discretionary; accordingly, we review a trial court's ruling on a motion for prejudgment interest for abuse of discretion. Hupfer v. Miller, 890 N.E.2d 7, 9 (Ind.Ct.App.2008). The trial court abuses its discretion when its decision is "clearly against the logic and effect of the facts and circumstances before it." Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011).
Laney filed her original complaint with the trial court on November 26, 2002. She then filed a written settlement offer on April 6, 2005. In 2006, the original complaint was dismissed without prejudice. On August 6, 2007, Laney refilled her complaint in the St. Joseph Superior Court. The applicable statutory provision provides that for TPIS to apply, the plaintiffs (1) must make a written offer of settlement to a party against whom the claim is filed within one year of filing the claim in court; (2) the terms of the offer must provide for payment of the settlement offer within sixty
At issue is Laney's April 6, 2005 letter, which states:
Laney argues her letter is clearly an offer to settle within the guidelines of TPIS.
There are two lines of analysis at play in this case. The first is whether this letter met the requirements of Indiana Code section 34-51-4-6. The second is whether prejudgment interest must be awarded if the statutory requirements are met.
Laney's original complaint was filed November 26, 2002 and her settlement letter to Dr. Wisner was written on April 6, 2005. She then dismissed her suit in 2006, only to file it again on August 6, 2007. Laney argues we should not take into consideration the original complaint from 2002 in determining the timeliness of the letter because the lawsuit was dismissed without prejudice, and thus we should act as if the 2002 suit had never been brought at all. By doing this, plaintiff contends the letter of April 6, 2005 properly predated the subsequent lawsuit of 2007. This appears to be one way to attempt to bypass a failure to follow the prejudgment interest statute — dismiss the suit without prejudice, prepare a settlement letter, and file suit anew.
In order to seek prejudgment interest, Indiana Code section 34-51-4-6(1) requires a party to make their written settlement offer within one year of a claim being filed. The trial court determined "within one year" meant the settlement offer could not be made until the claim was filed and that it must be made within one year thereafter. In other words, the trial court found a starting line existed with the filing of a claim and ended one year later at the deadline. We disagree with the trial
Wisner v. Laney, 953 N.E.2d 100, 113 (Ind.Ct.App.2011). Thus the Court of Appeals held there was no starting line, only a deadline, which was one year after the filing of a claim. If the statute is to be interpreted otherwise, it would serve to discourage settlement of lawsuits before a lawsuit is filed. Certainly the legislature did not intend to limit the effective use of the TPIS and settlement negotiations.
This position is further supported by the statute addressing when prejudgment interest begins to accrue. Under Indiana Code section 34-51-4-8(a), prejudgment interest may not exceed forty-eight months and "begins to accrue on the latest of the following dates:
Ind.Code § 34-51-4-8(a).
If subsection (3) permits prejudgment interest to begin accruing 180 days after the review panel is formed, regardless of the date a complaint is filed in court, then Indiana Code section 34-51-4-8 permits prejudgment interest to accrue before the filing of a complaint.
Thus, we hold today that a written settlement offer must be made within one year following the filing of a claim
In addition to whether or not the settlement letter is timely filed, we must also examine whether the letter identifies the sixty-day settlement requirement period. In other words, does the letter itself comply with the statute. The case most closely on point is Cahoon v. Cummings, 734 N.E.2d 535, 546 (Ind.2000), where a letter stated the plaintiff was "offering to settle this claim now for $75,001." This Court wrote on the sixty-day requirement,
Id. at 547. In our view, Laney's offer to "resolve this matter at this time" meets the same threshold as we discussed in Cahoon. The key is to include the time-limiting language in the offer. However,
Despite the fact that the letter itself satisfied the statutory requirements as to content, it was untimely sent in this case. The first complaint was filed with the trial court on November 26, 2002. Laney's counsel wrote a settlement letter two years and five months after the original claim was filed. This falls squarely outside the one year window as discussed previously. While plaintiff dismissed that original action, she failed to send a subsequent settlement letter and now attempts to rely on the settlement letter, which would have been untimely filed but for the dismissal of the previous lawsuit. Laney's counsel should have sent a new settlement letter after the dismissal of the first lawsuit, either prior to the filing of the second, or within a year of the filing of the second. Neither was done in this case. The TPIS is not intended to serve as a trap for the unwary. It is designed to put the adverse party on notice of a claim and provide them with an opportunity to engage in meaningful settlement and if they do not do so, they run the risk of incurring the additional obligation of prejudgment interest.
Finally, had the settlement letter been timely sent, we note Laney is not automatically entitled to prejudgment interest. TPIS permits the trial court to award prejudgment interest, but does not require an award of prejudgment interest. See Ind.Code § 34-51-4-7 ("The court may award prejudgment interest as part of a judgment."); Id. § 34-51-4-8 ("If the court awards prejudgment interest, the court shall determine the period during which prejudgment interest accrues") (emphasis added). Thus, an award of prejudgment interest is committed solely to the discretion of the trial court if the statutory prerequisites are satisfied. This is consistent with the TPIS serving as a tool for the trial court to encourage settlement and incentivize the expeditious resolution to cases.
Although plaintiff's counsel's behavior was most troubling, both attorneys should have acted in a manner more becoming of our profession. The duty to zealously represent our clients is not a license to be unprofessional. Here the trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The trial court did not abuse its discretion in denying defendants' counsel's request for a new trial. We also affirm the trial court denial of plaintiff's request for prejudgment interest. Laney's 2005 letter did not meet the requirements for awarding of prejudgment interest. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court. The trial court was most certainly within its proper discretion in declining such an award.
DICKSON, C.J., and RUCKER, MASSA, and RUSH, JJ., concur.
