Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Aug 02 2013, 9:29 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES E. AYERS WILLIAM W. DRUMMY Wernle, Ristine & Ayers HOLLY A. REEDY Crawfordsville, Indiana Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP Terre Haute, Indiana
IN THE COURT OF APPEALS OF INDIANA
CAROLYN (HANSEN) MILLER, ) ) Appellant-Plaintiff, ) ) vs. ) No. 67A01-1301-PL-13 ) ROBIN MENDELSOHN, M.D., ) ) Appellee-Defendant, )
APPEAL FROM THE PUTNAM CIRCUIT COURT The Honorable Michael Rader, Special Judge Cause No. 67C01-0901-PL-56
August 2, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Carolyn (Hansen) Miller appeals a verdict entered in favor of Robin Mendelsohn,
M.D., after a jury trial, on her claim for medical malpractice. Miller raises several issues,
which we restate as follows: 1) whether the trial court abused its direction by denying her
motion for continuance of the jury trial based on her counsel’s medical condition; 2) whether
the trial court abused its discretion by denying her motion for mistrial based on her counsel’s
medical condition; and 3) whether there was a violation of her due process rights.
Concluding there was no abuse of discretion or due process violation, we affirm.
Facts and Procedural History
Mendelsohn, an orthopedic surgeon, performed surgery on Miller in January 2005. In
January 2009, Miller filed a complaint against Mendelsohn, alleging that she failed to use the
ordinary skill, care, and diligence used by similar healthcare providers and was therefore
negligent. After the trial date was continued several times and the presiding judge recused
himself, a special judge was assigned to the case and the jury trial was set for Monday,
October 1, 2012.
On Friday, September 28, Miller’s counsel contacted the judge’s court reporter to
request a continuance. The judge spoke to the attorneys from both sides that afternoon and
informed them that the motion for continuance would be heard on Monday morning prior to
the trial. On October 1, Miller’s counsel filed a written motion for continuance and the court
heard arguments on the motion. Counsel explained that his co-counsel was out-of-state due
to a family emergency and presented a note from his doctor stating that he was diagnosed
2 with “urinary tract infection with incidental headache and other cold symptoms.” Appellant’s
App. at 22. The note further stated that he had been prescribed a ten-day course of antibiotic
and that the physician hoped his symptoms would improve by the fourth or fifth day.
Mendelsohn’s counsel objected to the motion, noting, in part, that the case had been
continued before and delayed for a long time and that Mendelsohn had cancelled her
appointments for the entire week in anticipation of the trial. The court ultimately denied the
motion and stated the following:
Okay. Um, it seems to me is what’s fair here is to weigh your discomfort against um the substantial costs to the Defendants if we continue this. I, I think the best way to handle this is to go ahead and at least choose the jury today. We can have some opening statements and then maybe reassess and see where we are at, but I think to continue this is I think under the circumstances with what I am seeing here with these affidavits is probably not, um, not reasonable. So motion to continue is denied. Let’s go, uh, let’s go work on choosing this jury.
Transcript at 5. The trial commenced and a jury was selected.
On the morning of October 2, Miller’s counsel made an oral motion for a mistrial. He
informed the court that he had been to the hospital the night before and was diagnosed with
prostatitis and urinary retention. Mendelsohn’s counsel objected to the motion, asserting that
opposing counsel had functioned well the day before and had even scheduled a deposition
that evening. The court informed Miller’s counsel that “your client is certainly entitled to her
day in court and of course entitled to have you fully competent,” id. at 15, but ultimately
denied the motion, stating the following:
Okay, well I’m trying to find some kind of compromise here that is fair to both sides. It’s just this has been pending so long and um. Well I think that’s, I’m going to deny the motion for mistrial and uh we’ll, we’ll go ahead with um, um,
3 this plan to read depositions and show video depositions out of order, um and then try to reassess where you are tomorrow.
Id. at 18. The trial continued over the next few days and the jury returned a verdict in favor
of Mendelsohn on October 4. Miller filed a motion to correct error based on the trial court’s
denial of her motions for a continuance and mistrial. However, the trial court denied the
motion in an order stating, in part:
The Court finds that Counsel [for Miller] was attentive, competent, and effective in presenting his case to the jury. The Court further finds the medical excuses provided to the Court were at best superficial and conclusory. There is nothing in the record supporting Plaintiff’s Motion to Correct Error. The Motion is little more than a request for a second bite at the apple.
Appellant’s Appendix at 42. Miller now appeals.1 Additional facts will be provided as
necessary.
Discussion and Decision
I. Motion for Continuance
A. Standard of Review
“Upon motion, trial may be postponed or continued in the discretion of the court, and
shall be allowed upon a showing of good cause established by affidavit or other evidence.”
Ind. Trial Rule 53.5. The decision to grant or deny a motion for a continuance rests within
the sound discretion of the trial court. Thompson v. Thompson, 811 N.E.2d 888, 907 (Ind.
Ct. App. 2004), trans. denied. An abuse of discretion may be found in the denial of a motion
1 Mendelsohn filed a motion to strike portions of Miller’s appendix pursuant to Indiana Appellant Rule 42. Miller has responded to that motion; however her response and reply brief were filed a few days after the deadline and she therefore subsequently filed a verified motion to file these items belatedly. While we hereby grant Miller’s motion to file her response and reply brief belatedly, in light of our holding affirming the trial
4 for continuance when the moving party has shown good cause for granting the motion. Id. at
907-08. However, no abuse of discretion will be found when the moving party has not
demonstrated the he or she was prejudiced by the denial. Id. at 908.
B. Denial of Miller’s Motion for Continuance
Miller argues that the absence of one of her counsel and the medical condition of her
other counsel established good cause for continuance of trial, and that the trial court was
therefore required to grant her October 1 motion for a continuance. We disagree.
The trial court was faced, on the morning of trial, with two competing interests:
Miller’s right to be represented by effective counsel balanced against the costs and
inconvenience of rescheduling the trial for the other party. The court was within its province
when it balanced these competing interests and decided to move forward with jury selection
and reassess the situation the second day.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Aug 02 2013, 9:29 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES E. AYERS WILLIAM W. DRUMMY Wernle, Ristine & Ayers HOLLY A. REEDY Crawfordsville, Indiana Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP Terre Haute, Indiana
IN THE COURT OF APPEALS OF INDIANA
CAROLYN (HANSEN) MILLER, ) ) Appellant-Plaintiff, ) ) vs. ) No. 67A01-1301-PL-13 ) ROBIN MENDELSOHN, M.D., ) ) Appellee-Defendant, )
APPEAL FROM THE PUTNAM CIRCUIT COURT The Honorable Michael Rader, Special Judge Cause No. 67C01-0901-PL-56
August 2, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Carolyn (Hansen) Miller appeals a verdict entered in favor of Robin Mendelsohn,
M.D., after a jury trial, on her claim for medical malpractice. Miller raises several issues,
which we restate as follows: 1) whether the trial court abused its direction by denying her
motion for continuance of the jury trial based on her counsel’s medical condition; 2) whether
the trial court abused its discretion by denying her motion for mistrial based on her counsel’s
medical condition; and 3) whether there was a violation of her due process rights.
Concluding there was no abuse of discretion or due process violation, we affirm.
Facts and Procedural History
Mendelsohn, an orthopedic surgeon, performed surgery on Miller in January 2005. In
January 2009, Miller filed a complaint against Mendelsohn, alleging that she failed to use the
ordinary skill, care, and diligence used by similar healthcare providers and was therefore
negligent. After the trial date was continued several times and the presiding judge recused
himself, a special judge was assigned to the case and the jury trial was set for Monday,
October 1, 2012.
On Friday, September 28, Miller’s counsel contacted the judge’s court reporter to
request a continuance. The judge spoke to the attorneys from both sides that afternoon and
informed them that the motion for continuance would be heard on Monday morning prior to
the trial. On October 1, Miller’s counsel filed a written motion for continuance and the court
heard arguments on the motion. Counsel explained that his co-counsel was out-of-state due
to a family emergency and presented a note from his doctor stating that he was diagnosed
2 with “urinary tract infection with incidental headache and other cold symptoms.” Appellant’s
App. at 22. The note further stated that he had been prescribed a ten-day course of antibiotic
and that the physician hoped his symptoms would improve by the fourth or fifth day.
Mendelsohn’s counsel objected to the motion, noting, in part, that the case had been
continued before and delayed for a long time and that Mendelsohn had cancelled her
appointments for the entire week in anticipation of the trial. The court ultimately denied the
motion and stated the following:
Okay. Um, it seems to me is what’s fair here is to weigh your discomfort against um the substantial costs to the Defendants if we continue this. I, I think the best way to handle this is to go ahead and at least choose the jury today. We can have some opening statements and then maybe reassess and see where we are at, but I think to continue this is I think under the circumstances with what I am seeing here with these affidavits is probably not, um, not reasonable. So motion to continue is denied. Let’s go, uh, let’s go work on choosing this jury.
Transcript at 5. The trial commenced and a jury was selected.
On the morning of October 2, Miller’s counsel made an oral motion for a mistrial. He
informed the court that he had been to the hospital the night before and was diagnosed with
prostatitis and urinary retention. Mendelsohn’s counsel objected to the motion, asserting that
opposing counsel had functioned well the day before and had even scheduled a deposition
that evening. The court informed Miller’s counsel that “your client is certainly entitled to her
day in court and of course entitled to have you fully competent,” id. at 15, but ultimately
denied the motion, stating the following:
Okay, well I’m trying to find some kind of compromise here that is fair to both sides. It’s just this has been pending so long and um. Well I think that’s, I’m going to deny the motion for mistrial and uh we’ll, we’ll go ahead with um, um,
3 this plan to read depositions and show video depositions out of order, um and then try to reassess where you are tomorrow.
Id. at 18. The trial continued over the next few days and the jury returned a verdict in favor
of Mendelsohn on October 4. Miller filed a motion to correct error based on the trial court’s
denial of her motions for a continuance and mistrial. However, the trial court denied the
motion in an order stating, in part:
The Court finds that Counsel [for Miller] was attentive, competent, and effective in presenting his case to the jury. The Court further finds the medical excuses provided to the Court were at best superficial and conclusory. There is nothing in the record supporting Plaintiff’s Motion to Correct Error. The Motion is little more than a request for a second bite at the apple.
Appellant’s Appendix at 42. Miller now appeals.1 Additional facts will be provided as
necessary.
Discussion and Decision
I. Motion for Continuance
A. Standard of Review
“Upon motion, trial may be postponed or continued in the discretion of the court, and
shall be allowed upon a showing of good cause established by affidavit or other evidence.”
Ind. Trial Rule 53.5. The decision to grant or deny a motion for a continuance rests within
the sound discretion of the trial court. Thompson v. Thompson, 811 N.E.2d 888, 907 (Ind.
Ct. App. 2004), trans. denied. An abuse of discretion may be found in the denial of a motion
1 Mendelsohn filed a motion to strike portions of Miller’s appendix pursuant to Indiana Appellant Rule 42. Miller has responded to that motion; however her response and reply brief were filed a few days after the deadline and she therefore subsequently filed a verified motion to file these items belatedly. While we hereby grant Miller’s motion to file her response and reply brief belatedly, in light of our holding affirming the trial
4 for continuance when the moving party has shown good cause for granting the motion. Id. at
907-08. However, no abuse of discretion will be found when the moving party has not
demonstrated the he or she was prejudiced by the denial. Id. at 908.
B. Denial of Miller’s Motion for Continuance
Miller argues that the absence of one of her counsel and the medical condition of her
other counsel established good cause for continuance of trial, and that the trial court was
therefore required to grant her October 1 motion for a continuance. We disagree.
The trial court was faced, on the morning of trial, with two competing interests:
Miller’s right to be represented by effective counsel balanced against the costs and
inconvenience of rescheduling the trial for the other party. The court was within its province
when it balanced these competing interests and decided to move forward with jury selection
and reassess the situation the second day. See id. (holding that the trial court was within its
discretion when it denied a motion for continuance due to the competing interests of the
parties but confined the hearing to certain issues).
Moreover, beyond vague allegations that she was denied due process and her right to a
fair trial, Miller does not explain how she was prejudiced by the court’s decision to deny her
motion. See Danner v. Danner, 573 N.E.2d 934, 937 (Ind. Ct. App. 1991) (finding no abuse
of discretion when the trial court denied a motion for continuance because the party’s
conclusory allegations failed to show prejudice), trans. denied. In fact, the trial court found
that Miller’s counsel was “attentive, competent, and effective in presenting his case to the
court, we deny the motion to strike without reaching the merits therein.
5 jury.” Appellant’s App. at 42. This is in contrast to the out-of-state cases cited by Miller
where counsel was unable to proceed with trial and the trial court’s denial of a continuance
was reversed on appeal. See Nowaczyk v. Welch, 245 N.E.2d 894, 896-97 (Ill. App. Ct.
1969) (case dismissed for want of prosecution due to attorney being physically unable to try
the case); Turner v. Loomis, 125 N.W. 662, 663 (Iowa 1910) (default judgment entered due
to attorney absence); see also Smith-Weik Mach. Corp. v. Murdock Mach. & Eng’g Co., 423
F.2d 842, 845 (5th Cir. 1970) (finding the case fit within the exception to the general rule that
the refusal of a continuance is a matter of judicial discretion because “principal counsel was
ill, local counsel was relatively unprepared, the time for continuance was short, and the case
was complicated.”). We therefore hold that the trial court did not abuse its discretion by
denying Miller’s motion for a continuance.
II. Motion for Mistrial
The trial court’s determination of whether to grant a mistrial is afforded great
deference on appeal because the trial court is in the best position to evaluate the relevant
circumstances of an event. City of Indianapolis v. Taylor, 707 N.E.2d 1047, 1058 (Ind. Ct.
App. 1999), trans. denied. To prevail on appeal from the denial of a motion for mistrial, the
moving party must demonstrate that he was placed in a position of grave peril to which he or
she should not have been subjected. Id. Mistrial is an extreme remedy to be granted only
when no other less drastic measure can rectify the perilous situation. Id.
6 B. Denial of Miller’s Motion for Mistrial
Miller also contends that the trial court abused its discretion by denying her motion for
continuance and mistrial on October 2 for similar reasons discussed above. Once again, we
disagree.
The relevant inquiry when analyzing the issue of whether the moving party was placed
in a position of grave peril is “the probable persuasive effect . . . on the jury’s decision.” Id.
at 1059. As noted above, the trial court found that Miller’s counsel was “attentive,
competent, and effective in presenting his case to the jury.” Appellant’s App. at 42. Miller
was therefore not placed in a position of grave peril. Moreover, the court devised an
alternative resolution to rectify the situation. It allowed the parties to proceed with recorded
testimony, albeit out of order, so that Miller’s counsel could leave to see his doctor.
Moreover, it was agreed upon by both parties that if Miller’s counsel was not present in the
courtroom during the playing of the video testimony, Mendelsohn’s counsel would likewise
leave the courtroom. In sum, there was no abuse of discretion in the denial of Miller’s
motion for a mistrial.
III. Due Process
Finally, Miller contends that the trial court erred because the judge used his own
medical knowledge in ruling on her motions for continuance and mistrial, constituting a
violation of her due process rights. First, we note that there is no evidence that the judge
used his own medical knowledge in ruling on Miller’s motions. Moreover, Miller relies on
the case of Nowaczyk, 245 N.E.2d at 462, for the proposition that a court’s determinations
7 are limited to the record before it. However, in that case, the trial court had conducted its
own private investigation and arranged for a medical doctor to examine counsel, who was
allegedly ill, and report his findings to the court. Id. at 455. Here, there is no allegation that
trial court conducted its own private investigation. Instead, the record demonstrates that the
court examined the testimony and affidavits before it and found that the “medical excuses
provided to the Court were at best superficial and conclusory.” Appellant’s App. at 42. We
hold that there was no due process violation.
Conclusion
The trial court did not abuse its discretion by denying Miller’s motion for continuance
or her motion for mistrial. Further, there was no due process violation. We therefore affirm
the jury verdict entered in favor of Mendelsohn.
Affirmed.
RILEY, J., and KIRSCH, J., concur.