jeffrey-riggs-and-mark-ashmann-v-mark-w-weinberger-md-mark ( 2012 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DAVID J. CUTSHAW JAMES L. HOUGH
GABRIEL ADAM HAWKINS AMI ANDERSON NOREN
KELLEY J. JOHNSON Spangler, Jennings & Dougherty, P.C.
TaKEENA M. THOMPSON Merrillville, Indiana
Cohen & Malad, LLC
FILED
Indianapolis, Indiana
Oct 12 2012, 8:40 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JEFFREY RIGGS and MARK ASHMANN, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 45A03-1109-CT-394
)
MARK S. WEINBERGER, M.D., )
MARK WEINBERGER, M.D., P.C., )
MERRILLVILLE CENTER FOR )
ADVANCED SURGERY, LLC, and )
NOSE AND SINUS CENTER, LLC, )
)
Appellees-Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffery A. Dywan, Judge
Cause No. 45D11-1011-CT-0210; 45D11-1009-CT-0175
October 12, 2012
OPINION ON REHEARING
BAKER, Judge
This case comes before us on rehearing. In this interlocutory appeal, appellants-
plaintiffs Mark Ashmann and Jeffrey Riggs appealed the trial court’s grant of a Motion
for a Trial Rule 35 Psychological Examination filed by appellees-defendants Mark S.
Weinberger, M.D.; Mark S. Weinberger, M.D., P.C.; Merrillville Center for Advanced
Surgery, LLC; and Nose and Sinus Center, LLC (collectively, the Weinberger Entities).
Ashmann and Riggs contended that the Weinberger Entities did not show that Ashmann
and Riggs placed their mental condition in controversy. Moreover, Ashmann and Riggs
asserted that the Weinberger Entities did not have good cause for requesting the
examinations.
In our memorandum decision, we affirmed the trial court’s decision and remanded
this cause for further proceedings. Riggs v. Weinberger, M.D., No. 45A03-1109-CT-394
Ind. Ct. App. May 31, 2012). Ashmann and Riggs now petition for rehearing, requesting
that we clarify whether we determined “that a trial court ‘may’ or ‘must’ order an
involuntary psychiatric examination when confronted with the facts and circumstances of
this case.” Appellants’ Petition for Rehearing p. 2. We grant rehearing for the limited
purpose of clarifying our original opinion.
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FACTS
In resolving the question that Riggs and Ashmann present on rehearing, we
incorporate below the relevant facts and discussion set forth in our original memorandum
decision.1
Ashmann and Riggs filed their respective medical malpractice complaints
against the Weinberger Entities on September 16, 2010, and November 24,
2010. Ashmann alleged that he became Weinberger’s patient on April 3,
2003. Ashmann further alleged that Weinberger failed to comply with the
applicable standards of care and that as a direct and proximate result of
Weinberger’s acts and omissions, Ashmann had suffered and would
continue to suffer in the future “great pain, emotional distress and mental
trauma.” Appellants’ App. p. 165. Ashmann described his emotional
injuries as follows in his Reply Submission to the Medical Review Panel:
Emotional injuries are also clearly relevant to this discussion.
It is not unreasonable for Dr. Weinberger’s patients, after
Weinberger fled the country and appeared on “America’s
Most Wanted,” after learning that Dr. Weinberger drilled
holes in their maxillary sinuses in the wrong place, and after
hearing that Dr. Weinberger did not do the surgeries that he
said he would do, to be emotionally distraught and injured
with feelings of being “duped.” Emotional damages are
particularly relevant in a case such as this, where Dr.
Weinberger disappeared while actively treating [Ashmann].
Most recently, Dr. Weinberger’s former patients, including
[Ashmann], have had to relive the nightmare of his
disappearance as news broke that Dr. Weinberger was found
living in a tent on the side of the mountain in Italy in the
middle of winter and, upon arrest, that he tried to harm
himself to avoid extradition to the United States.
Appellants’ App. p. 211-12.
1
In light of our decision to incorporate the relevant portions of our unpublished memorandum decision
into this published opinion on rehearing, we deny the Weinberger Entities’ motion to publish as moot.
3
Riggs alleged that he became Weinberger’s patient on January 30,
2003. Like Ashmann, Riggs further alleged that Weinberger failed to
comply with the applicable standards of care and that as a direct and
proximate result of Weinberger’s acts and omissions, Riggs had suffered
and would continue to suffer in the future “great pain, emotional distress
and mental trauma . . . .” Appellants’ App. p. 4. Also like Ashmann, Riggs
described his emotional injuries as follows in his Reply Submission to the
Medical Review Panel:
Emotional injuries are also clearly relevant to this discussion.
It is not unreasonable for Dr. Weinberger’s patients, after
Weinberger fled the country and appeared on “American’s
Most Wanted,” after learning that Dr. Weinberger drilled
holes in their maxillary sinuses in the wrong place, and after
learning that Dr. Weinberger did not do the surgeries that he
said he would do, to be emotionally distraught and injured
with feelings of being “duped.”
Appellants’ App. p. 215.
In June and July 2011, the Weinberger Entities filed respective
Motions for Trial Rule 35 Psychological Examinations asking the trial court
to compel Ashmann and Riggs to attend psychological examinations. On
July 14, 2011, the trial court granted the Weinberger Entities’ motion as to
Riggs. The trial court’s order provides in relevant part as follows:
The Plaintiff’s claims of emotional distress in this case
exceed those of the typical Plaintiff who claims emotional
injuries arising from physical trauma as a result of another’s
negligent conduct. The emotional distress claim in this case
arises not only from the date of the surgery at issue, but from
a Defendant’s alleged activities long after the surgery was
concluded. The nature of the emotional distress is more akin
to negligent infliction of emotional distress, and is not the
typical claim for emotional injuries which is evaluated by a
jury without the assistance of expert testimony. The Court
therefore finds that Plaintiff’s claim of emotional distress in
this case is more complicated than that presented by the usual
injury claim and that the Defendants’ request for a
psychological examination to evaluate that claim has
demonstrated good cause for the evaluation.
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Appellants’ App. p. 29.
On July 18, 2011, the trial court also granted the Weinberger
Entities’ motion as to Ashmann. That order provides in relevant part as
follows:
The circumstances in this case are quite similar to those
addressed by this Court’s order . . . in . . . [Riggs’s] case. The
Court has also been made aware that a different decision on
this issue has been entered in a different case in another
Room of the Superior Court. . . .
Each plaintiff’s claim must be evaluated separately. As was
the situation in the prior case before this Court, the Plaintiff’s
claims of emotional distress in this case exceed those of the
typical Plaintiff who claims emotional injuries arising from
physical trauma as a result of another’s negligent conduct.
The emotional distress claim in this case arises not only from
the surgery at issue, but from Defendant Weinberger’s alleged
activities sometime after the surgery was concluded. The
nature of the emotional distress is more akin to negligent
infliction of emotional distress, and is not the common claim
for emotional injuries that is evaluated by a jury without the
assistance of expert testimony. The Court therefore finds that
the Plaintiff’s claim of emotional distress in this case is more
complicated than that presented by the usual injury claim and
that the Defendants’ request for a psychological examination
to evaluate that claim has demonstrated good cause for the
evaluation.
Appellants’ App. p. 193.
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DISCUSSION AND DECISION
On appeal, we addressed the issue of whether the trial court erred in compelling
Ashmann and Riggs to submit to psychological examinations in accordance with Indiana
Trial Rule 35.2
We concluded that Ashmann and Riggs put their mental condition in controversy
and that the Weinberger Entities established “good cause” for requesting the
examinations. Slip op. at 10. More particularly, we pointed out that
Ashmann and Riggs both alleged past and future pain, emotional distress,
and mental trauma. Further, their replies to the Medical Review Panel
emphasized the uniqueness of their emotional distress and injuries where
Dr. Weinberger allegedly did not do the surgeries that he said he would do,
fled the country, appeared on ‘America’s Most Wanted’ and was found
more than five years later living in a tent on the side of a mountain in Italy.
Id. at 9-10. As a result, we determined that based on such claims of unusually severe
emotional distress, the trial court did not abuse its discretion in finding that Ashmann and
Riggs put their mental condition in controversy. Id.
2
Indiana Trial Rule 35 provides that
[w]hen the mental or physical condition (including the blood group) of a party, or of a
person in the custody or under the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit to a physical or mental
examination by a suitably licensed or certified examiner or to produce for examination
the person in his custody or legal control. The order may be made only on motion for
good cause shown and upon notice to the person to be examined and to all parties and
shall specify the time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made. (Emphases added).
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Similarly, we determined that the trial court did not abuse its discretion in
concluding that the Weinberger Entities established good cause for requesting the mental
examination. We reached that result because
the plaintiffs allege[d] on-going mental trauma that began over eight years
ago and is related to Dr. Weinberger allegedly drilling holes in the wrong
places in their sinuses, fleeing the country, appearing on “America’s Most
Wanted,” being found living in a tent on the side of a mountain in Italy, and
attempting to commit suicide when apprehended, a mental examination is
relevant to emotional damages issues that are genuinely in controversy in
the case. In addition, the Weinberger Entities have shown a reasonable
nexus between the Plaintiffs’ emotional distress and damages and the
mental examination. Lastly, because the information obtained has to be
properly processed and evaluated by a professional, the Weinberger Entities
have demonstrated that it is not possible to obtain the desired information
through means that are less intrusive than a compelled examination.
Slip op. at 10-11. In light of the above, we concluded that the trial court did not abuse its
discretion in granting the Weinberger Entities’ Motions for Trial Rule 35 Psychological
Evaluations. Id. at 11.
At this juncture, we clarify our holding, yet reaffirm our conclusion that the trial
court properly exercised its discretion in this matter. An abuse of discretion occurs when
a decision is clearly against the logic and effects of the facts and circumstances of the
case. Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 742 (Ind. Ct. App. 2006).
That said, we in no way intimate that a trial court must compel an involuntary psychiatric
examination anytime that a plaintiff alleges that he or she has suffered “great pain,
emotional distress, and mental trauma” and that there is something “unique” about the
case. Indeed there are unique facts in every case. In short, when a trial court is
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confronted with facts and circumstances like those before us, it may compel an
involuntary psychiatric examination in accordance with Indiana Trial Rule 35. There is
no requirement that it must do so.
Having granted rehearing and provided clarification of our holding, we reaffirm
our original opinion in all respects.
BRADFORD, J., and DARDEN, S.J., concur.
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