Hail Mary Passes & Banana Peels

March 23 saw a rare spectacle in the courtroom of the Indiana Supreme Court: lawyers for a medical malpractice case plaintiff, supported by the Indiana Trial Lawyers as amicus, and lawyers for the physician defendant in the case, supported by Defense Trial Counsel of Indiana as amicus, argued for the same result: the Supreme Court should accept the petition for transfer of a case from the Indiana Court of Appeals.

But being lawyers, the two sides had diametrically opposed reasons for seeking that result.  The defendant and defense bar want the Court to overturn the decision, while the plaintiff and trial lawyers want the Court to affirm it.

The decision at issue is McKeen v. Turner, which came down in favor of the plaintiff, ruling that the 2011 Court of Appeals case, K.D. v. Chambers, “was wrongly decided and/or has been misread.”  That 2011 opinion has generally been read to prevent a medical malpractice plaintiff from raising a theory of liability in court that was not raised before the Medical Review Panel proceeding, which in Indiana precedes the court case.

The physician defendant in McKeen and the defense bar love K.D. and hate McKeen.   The defendant’s lawyer argued that McKeen allows a plaintiff who is unhappy with the panel’s decision to “throw a hail Mary pass on the eve of trial,” raising a theory that neither the defendant nor the panel has considered.

The plaintiff in McKeen and the plaintiffs’ bar hate K.D. and love McKeen.    They want the Court to grant transfer so that McKeen can be “summarily affirmed.”  The Trial Lawyers representative told the Court that K.D. is “a banana peel on the floor” that everyone keeps slipping on.  Whenever a plaintiff raises a new argument, the defendant yells “waiver” and cites K.D.   The plaintiffs’ bar wants to Court to make it clear that K.D. is not good law.

Only lawyers could maneuver themselves into a position to completely agree in order to completely disagree.


The case is McKeen v. Turner, 53A05-1511-CT-02047 (Ind. App. 2016).

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