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J&B’s Indiana Office Secures Appellate Reversal of Plaintiff’s Verdict; New Trial Awaits

October 6, 2023

Shareholder, Susan K. Swing, Counsel, Michael A. Sarafin, and Associate Attorneys, Adam J. Sedia and Kyle Farris, of the Indiana office won a unanimous reversal of a plaintiff’s verdict in the Indiana Court of Appeals. The dispute will receive a new trial.

In this case, our defendant hospital client contracted with an outside employment agency for temporary workers.  One of the temporary workers hired was an ultrasound technician. The plaintiff in this case visited her mother, a patient at the hospital, when she tripped and fell on a cord near her mother’s bed that the temporary ultrasound technician had plugged in while preparing ultrasound equipment.

The plaintiff then sued our hospital client in Lake County, Indiana, as the only defendant, but failed to name the ultrasound technician’s employer as a defendant. At trial, the plaintiff moved in limine to exclude any argument by defense that the ultrasound technician was not an agent or employee of the hospital, arguing that it was the defendant’s obligation to assert a statutory nonparty defense. The trial court granted the motion, effectively cratering the defendant hospital’s main defense that it was not liable for the negligence, if any, of the ultrasound technician. During trial, the plaintiff presented no evidence establishing the temporary worker’s agency for the hospital, and the defense objected to the plaintiff’s proposed jury instructions regarding agency. The trial court overruled these objections based on the temporary worker’s testimony during an offer of proof (i.e. outside of evidence). The jury returned a verdict for the plaintiff and awarded her $32,500.

In reversing, the Court of Appeals held that evidence of the ultrasound technician’s status as an independent contractor was relevant to whether the defendant hospital was vicariously liable for his conduct, and the trial court improperly barred that evidence. It further held that the temporary worker’s testimony during an offer of proof was not evidence, and the trial court therefore improperly considered it in giving the plaintiff’s instructions on agency. The Court of Appeals determined that genuine issues of material fact precluded summary judgment based on defendant’s evidence that the ultrasound technician was an independent contractor and the hospital was not vicariously liable for any negligence he may have committed. Instead, the court remanded the case for a new trial.

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