Indiana Law Review Volum e 50 2017 Num ber 4 A LOOK BACK: DEVELOPING INDIANA LAW POST-BENCH REFLECTIONS OF AN INDIANA SUPREME COURT JUSTICE SELECTED DEVELOPMENTS IN INDIANA TORT LAW (1993-2012) FRANK SULLIVAN, JR.*, **, *** As a Justice of the Indiana Supreme Court (“Court”) for almost nineteen years (from Novem ber 1, 1993, until July 31, 2012), I participated in the adjudication of many cases alleging physical, emotional, dignitary, and economic injuries that presented a panoply of common, statutory, and even constitutional law issues. In this Article, I will not attempt to cover everything that happened over those two decades. I will begin by discussing the evolution of tort law generally and some Indiana exemplars of that history. I will then identify two major areas where Indiana tort law differs from that of other jurisdictions. Beyond that, I will discuss some selected developments in Indiana tort law that I believe to be noteworthy. I will conclude with some observations about an unappreciated relationship between tort and workers’ compensation law. For the most part, my discussion and analysis ends as of my departure from the Court but in a few selected instances, I comment on decisions of the Court since that time.1 * Professor of Practice, Indiana University Robert H. McKinney School of Law. Justice, Indiana Supreme Court (1993-2012). A.B., 1972, Dartmouth College; J.D., 1982, Indiana University Maurer School of Law; LL.M., 2001, University of Virginia School of Law. ** This Article is dedicated to Donald W. Ward, a legendary lawyer, husband, and father and a generous friend and mentor to all who seek his aid or counsel. Three times the lawyers of Indiana elected him to serve on the Indiana Judicial Nominating and Qualifications Commission. *** I express my appreciation to Kevin H. VanDenBerg for his research assistance on Part I of this Article. I also acknowledge Jessica Dickinson, a research assistant in the library of the Indiana University Robert H. McKinney School of Law, for her help in compiling materials for this Article; and Peter M. Elliott, Justin B. McGiffen, Dylan A. Pittman, and Andrea Kochert Townsend for their helpful comments on this Article. Finally, a special word of thanks to Justice Brent E. Dickson, Ellen M. Bublick, Dan B. Dobbs Professor of Law at the University of Arizona James E. Rogers College of Law, and all of the other judges, lawyers, and professors from whom I have learned about tort law. 1. See discussion infra of Hughley v. State, 15 N.E.3d 1000 (Ind. 2014), Part II.A; Myers v. Crouse-Hinds Division of Cooper Industries, Inc., 53 N.E.3d 1160, 1165-66 (2016), reh’g denied, (Apr. 28, 2016), accompanying footnote 108; and Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), accompanying footnotes 182-87. http://doi.org/10.18060/4806.1176 1494 INDIANA LAW REVIEW [Vol. 50:1493 I ask the reader to appreciate that this Article contains some highly personal reflections. It is not an argument but neither is it entirely objective. I. INTRODUCTION: STATUTES IN A GES OF C OM M ON LAW ; C ONSTITUTIONAL LAW IN A GES OF STATUTES2 “Tort law is predominantly common law. That is, judges rather than legislatures usually define what counts as an actionable wrong and thus as a tort; they also determine how compensation is to be measured and what defenses may defeat the tort claim.”3 Among the central questions in tort law are whether some types of parties are better able to bear the costs of inevitable accidents (for example, businesses that can pay the damages and raise the prices of goods or services, thus spreading the costs), or are better able to insure against the risks of accidental injury, or are better placed to reduce injuries by prudent conduct.4 These are all questions on which political constituencies— workers, consumers, businesses, etc.— have views. And so it should not be surprising that from tim e to time, the political process in the form of the legislature intervenes to replace judge-made common law with statutes. Nevertheless, it will be judges who interpret those statutes. And the M arbury power of judicial review subjects not only the interpretation but the very validity of statutes to judicial scrutiny: “[T]he duty of the Court is imperative, and its authority is unquestionable, to declare any part of a statute null and void that expressly contravenes the provisions of the constitution, to which the legislature itself owes its existence.”5 To set this Article in historical context, this Introduction discusses several common law principles of tort law, examines legislation that overruled those principles, and then challenges to the interpretation and constitutionality of that legislation. It will do this in chronological order, using four basic time periods: 2. The title of this section borrows from the title of a book written by former Yale Law School Dean and Second Circuit Judge Guido Calabresi: A Common Law for the Age of Statutes (Harv. Univ. Press 1982). Calabresi argues that when interpreting statutes, courts should treat the statutes as if they were essentially common law. See generally id. The implications of this are at first glance startling—that judges can essentially modify statutes. But the constraints of stare decisis on common law are so strong that the prospect of a court making radical changes to statutes is not likely. In any event, this section of this Article has an entirely different purpose: it briefly surveys the evolution of tort law over the last century, identifying instances where common law has been supplanted by statutory law and then statutory law subjected to constitutional review. 3. Dan B. Dobbs et al., THE LAW OF TORTS § 1, at 2 (2d ed. 2011). 4. ANDREW L. KAUFMAN, CARDOZO 244 (1998). 5. City of S. Bend v. Kimsey, 781 N.E.2d 683, 696 (Ind. 2003) (quoting Dawson v. Shaver, 1 Blackf. 204, 206-07 (1822) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))). 2017] A LOOK BACK 1495 • A “Conservative Common Law Era” of “judge made” law that began with the English common law roots and that set the basis for developing law in the United States, early on in our country’s history. • The “Progressive Era” of American history— from the late 1800s through the early 20th century— in which state legislatures began to enact progressive statutes that were socially focused and primarily centered on consumer safety, employee well-being, and other social objectives. W e will see the interpretation and constitutional validity of these statutes were challenged in court and a quantum of these challenges were successful. • A “Progressive Common Law Era,” encompassing roughly the middle of the 20th century, where judges and courts rendered progressive decisions in tort cases, recognizing new theories of recovery for injured plaintiffs, consumers, and employees. • A “Tort Reform Era” of the last quarter of the 20th century and into the 21st century in which many legislatures began passing “tort reform” statutes designed to rein in the recently-recognized progressive common law. And— not surprisingly— the interpretation and constitutional validity of these statutes have been challenged in court and a quantum of these challenges too were successful. If we group the first two eras together as a “Historical Age” and the last two as a “M odern Age,” there are two m ajor similarities and a major difference between them. In each Age, the legislature reacted to court decisions with statutes that pointed in the opposite ideological direction— and then the interpretation and constitutional validity of these statutes were immediately challenged in court. The difference— perhaps even irony— between the two ages is that in the Historical Age, the legislature reacted to conservative court decisions with progressive legislation (which was then subjected to conservative challenge in court) whereas in the M odern Age, the legislature reacted to progressive court decisions with conservative legislation (which was then subjected to progressive challenge in court)! A. Conservative Common Law Compensation for workplace injuries is a good example of a com m on law doctrine with harsh consequences that was subsequently modified by legislative action— workers’ compensation statutes— during the era of progressive legislation. Three common law doctrines recognized in the United States in the late 1800s made it very difficult for a worker injured on the job to be awarded compensation from an unwilling employer. The doctrine of contributory negligence held that an employer had no legal fault or liability for a workplace injury where the injured employee was in any way responsible for the injury. 6 6. See Atlee v. Union Packet Co., 88 U.S. 389, 395 (1874); Brown v. Kendall, 60 Mass. 292, 1496 INDIANA LAW REVIEW [Vol. 50:1493 A second doctrine, the fellow servant doctrine, first recognized in Farwell v. Boston & Worcester Railway Corp., held an employer had no legal responsibility7 for any workplace injury caused by a fellow employee of the injured employee.8 A third doctrine, assumption of risk, provided an employer had no legal responsibility for any workplace injury where an employee knew of the risks or hazards of a particular job when entering the employment contract. 9 Professor K enneth S. Abraham, a scholar in this field, refers to the fellow- servant rule, contributory negligence, and assumption of risk as the “unholy trinity” of defenses because of their harshness.10 These three doctrines are good examples of conservative common law principles applied by courts at the end of the 19th and into the 20th century. Other tort examples (and examples in property, contract, and family law) could also be marshaled to demonstrate a general pro-property, pro-employer, conservative thrust to the law. This Conservative Common Law E ra was followed by one of progressive legislation. B. Progressive Legislation and the Courts’ Response During what historians now call the “Progressive Era,” which we might think of as starting around 1910, states began to pass legislation designed to protect workers in a particular way. Progressives like Louis D. Brandeis criticized the11 Conservative Common Law Era for: (1) favoring business and wealth over workers, consumers, and plaintiffs; (2) elevating national power over states’12 rights, impinging upon state sovereignty; (3) anti-democratically rejecting duly13 enacted legislation; and (4) relying on natural law when positivism was14 beginning to catch hold.15 297 (1850) (Shaw, C.J.). 7. 45 Mass. 49 (1842). 8. Id. at 60. 9. Dilan A. Esper & Gregory C. Keating, Abusing “Duty,” 79 S. CAL. L. REV. 265, 291 (2006). 10. KENNETH S. ABRAHAM, THE LIABILITY CENTURY: INSURANCE AND TORT LAW FROM THE PROGRESSIVE ERA TO 9/11 42 (2008). 11. The Progressive Era arguably began as early as the late nineteenth century when several states enacted statutes designed to abrogate the common law defenses that had often stymied railroad employees in their efforts to sue their employers for injuries suffered in the course of their employment. These statutes—known as ‘employers’ liability acts—abrogated the fellow servant rule. Most of them also “substantially modified defenses based on assumption of risk or contributory negligence. Clyde Spillenger, Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940, 62 UCLA L. REV. 1240, 1288 (2015). 12. EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 66 (2000). 13. Id. at 67. 14. Id. at 165-68. 15. Id. at 67-69. 2017] A LOOK BACK 1497 The state statutes enacted consistent with this progressive critique covered child labor, minimum wage, maximum hour, factory safety, employer liability, and workers’ compensation. W orkers’ compensation legislation is a particularly16 apt example because it eliminated the unholy trinity of an employer’s common law defenses discussed above. It did so by enacting a mandatory and exclusive strict liability-no fault regime in which employees are entitled to recover from their employers for workplace injuries— but only to the level set forth in a fixed benefits schedule. American constitutionalism gives statutes precedence over conflicting principles of common law. But the constitutional order also gives to judges the power to determine whether, in any particular case, common law and statute do in fact conflict and, as noted earlier, the M arbury power to pass on statutes’ constitutionality. The progressive statutes were subjected to challenges requiring courts to make just such determinations. One technique courts used to preserve the doctrines of the Conservative Common Law Era in the face of progressive legislation was to interpret the statues using the “derogation” canon of statutory construction: “[L]egislative enactments in derogation of common law must be strictly construed and narrowly applied.” The canon, in other words, recognizes the legislature has the power to17 change the common law. But if the legislature does undertake to change the common law by enacting a new statute, the court is going to be very strict in reading that statute so as to change the common law as little as possible. 18 O ne of the great progressive legal thinkers, Roscoe Pound, was skeptical of the derogation canon: [N]o statute of any consequence dealing with any relation of private law can be anything but in derogation of the common law, the social reformer and the legal reformer, under this doctrine, must always face the situation that the legislative act which represents the fruit of their labors will find no sympathy in those who apply it, will be construed strictly, and will be made to interfere with the status quo as little as possible.19 A second way in which courts held on to the doctrines of the Conservative Common Law Era in the face of progressive legislation was, of course, through the use of the M arbury power. Constitutional challenges were leveled at the 16. Melvin I. Urofsky, State Courts and Protective Legislation during the Progressive Era: A Reevaluation, 72 J. AM. HIST. 63, 63-64 (1985). 17. State Farm Fire & Cas. Co. v. Structo Div., King Seeley Thermos Co., 540 N.E.2d 597, 598 (Ind. 1989). 18. The policy justification for this narrow interpretation of statutory construction is rooted in the presumption that the legislature knows the existing common law prior to enacting a statute and therefore applying the statute narrowly should meet the intent of the legislature. Id. The idea is that when the legislature enacts a statute in derogation of common law, it is presumed that the legislature did not intend to make any change in the common law beyond what it declares either in express terms or by unambiguous implication. Id. 19. Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383, 387 (1908). https://doi.org/10.2307/1903737 https://doi.org/10.2307/1325404 1498 INDIANA LAW REVIEW [Vol. 50:1493 statutory reforms of the Progressive Era in both federal and state court, and although the consensus of historians is that the statutes by-and-large survived the challenges, there were exceptions.20 The basis of the constitutional challenges was that the statutes violated the substantive right to freedom of contract guaranteed by the Due Process Clause of the Fourteenth Amendment. First articulated in Allgeyer v. Louisiana, the21 United States Supreme Court said the proscription on states depriving a person of liberty without due process of law protects the right “to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”22 Allgeyer, invalidating a Louisiana ban on out-of-state insurance contracts,23 was the genesis of the substantive due process right of freedom of contract. Lochner v. New York, decided within a decade, was its apotheosis: Lochner24 famously invalidated a state limitation on the working hours of bakers over the classic dissent of Justice Oliver W endell Holmes, Jr. 25 State courts, too, subjected progressive legislation to M arbury review. Keeping with our general theme of workers’ compensation, the N ew Y ork Court of Appeals invalidated that state’s workers’ compensation act in 1911 on substantive due process grounds: “W hen our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another.”26 It is important not to overstate the point. There was substantial criticism during the Progressive Era itself of courts’ propensity to preserve the status quo of the Conservative Common Law Era. Theodore Roosevelt wrote extensively27 on this issue. But M elvin I. Urofsky, the great biographer of Brandeis, has28 written that scholarship (including his own) demonstrates that despite cases like Lochner, the U.S. Supreme Court “in fact upheld the vast majority of progressive statutes it reviewed.” And Urofsky has studied the attitude of state courts to29 20. Urofsky, supra note 16, at 63 n.2. 21. 165 U.S. 578 (1897). 22. Id. at 589. 23. Id. at 583. 24. 198 U.S. 45 (1905). 25. Id. at 74-76 (Holmes, J., dissenting). Justice Holmes’s dissent in Lochner “is probably the most famous dissent ever written.” BERNARD SCHWARTZ, A HISTORY OF THE SUPREME COURT 195 (1993). 26. Ives v. S. Buffalo Ry. Co., 201 N.Y. 285, 293 (1911). 27. Urofsky, supra note 16, at 63 & n.1 (citing examples, including Roscoe Pound and Louis D. Brandeis). 28. Id. (citing Theodore Roosevelt, Criticism of the Courts, OUTLOOK, Sept. 24, 1910, at 149- 53; Theodore Roosevelt, Right of the People to Review Judge-Made Law, OUTLOOK, Aug. 8, 1914, at 843-56; Theodore Roosevelt, Judges and Progress, OUTLOOK, Jan. 6, 1912, at 40-48). 29. Id. at 63 & n.2 (citing, inter alia, Melvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, in YEARBOOK OF THE SUPREME COURT 2017] A LOOK BACK 1499 progressive legislation and found, “with only a few exceptions, state courts moved consistently toward approval of a wide range of [progressive] reform legislation,” including, in particular, workers’ compensation statutes.30 31 Nevertheless, viewed broadly, the sweep of the Historical A ge shows conservative common law doctrines modified by progressive legislation, the effect of which was to some extent limited by courts employing techniques like the derogation canon and even the M arbury power. Now we turn to the M odern Age and see the converse: progressive common law doctrine modified by conservative legislation— and such legislation then limited by courts employing techniques like the derogation canon and even the M arbury power. C. Progressive Common Law One era does not necessarily end where the next begins. Instead, they overlap, sometimes for several decades. Such is the case with our Historical and M odern Eras. W hile courts made Lochner-like decisions well into the 1930s, one could trace the M odern Age and the Progressive Common Law Era back as far as 1916— when the New York Court of Appeals decided M acPherson v. B uick M otor Co., abolishing the requirement of privity of contract to recover for32 personal injury in tort.33 In discussing the Progressive Common Law E ra, I will focus on developments in products liability law. Other examples of progressive common34 law will be discussed later in this Article.35 In Judge Benjamin N. Cardozo’s famous M acPherson opinion, the plaintiff had purchased a car from a dealer and was then injured in an accident due to a defective wheel. M acPherson rejected Buick’s argument that there was no basis36 for the imposition of liability on a manufacturer to a third person who was not a party to the contract between the manufacturer and the actual seller of a dangerous product. M acPherson’s rule— which eliminated the need for privity37 HISTORICAL SOCIETY (1983)). 30. Id. at 64. “The majority of state court decisions, however, did go against laws that attempted to support unions.” Id. at 90. 31. Id. at 87. 32. 217 N.Y. 382 (1916). 33. Id. at 389. 34. Professor Priest argues the developments in products liability law about to be described are “among the most dramatic ever witnessed in the Anglo-American legal system” in the way they “render[ed] contract law obsolete and leapfrog[ed] existing negligence law entirely. The liability of manufacturers for product-related losses was vastly increased and the obligations of consumers vastly diminished.” George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461, 461-62 (1985). 35. See discussion infra of the collateral source rule at Part IV and the abrogation of sovereign immunity at Part V. 36. 217 N.Y. at 385. 37. Id. https://doi.org/10.1086/467783 1500 INDIANA LAW REVIEW [Vol. 50:1493 between a manufacturer and an individual suffering personal injury from a defectively made product— became the majority rule in the United States and a fundamental principle of product liability law.38 Another example of a Progressive Common Law Era decision was the establishment of the concept of strict liability in tort. T his dates to 1944 and California Supreme Court Justice Roger Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno. A waitress, injured by an exploding Coca-39 Cola bottle she was carrying, acknowledged that she had no evidence of negligence on Coke’s part; the court allowed her lawsuit be allowed to proceed on the doctrine of res ipsa loquitor.40 Now the doctrine of res ipsa loquitor relieves the plaintiff of the obligation of proving negligence, but the factfinder still must find the defendant negligent in order for the plaintiff to recover. In his concurring opinion, Justice Traynor took the position that a finding of negligence should no longer be required for a plaintiff to recover in such a case. Thus was born the progressive common law41 principle of strict liability in tort— a plaintiff could recover in certain circumstances without any showing of fault on the part of the defendant. In 1965, Judge Jesse E. Eschbach, a distinguished federal district court judge in Indiana, was presented with the Escola question under Indiana law. In Greeno v. Clark Equipment Co., an employee had been injured on the job at Dana Corp.42 using a forklift manufactured by Clark E quipment Co. The forklift was43 defective. The plaintiff was not in privity of contract with Clark Equipment.44 45 Judge Eschbach starts by making clear his duty to apply the law the Indiana Supreme Court would apply. Beginning with M acPherson and Escola, he traces46 with some care the development of products liability. H e discusses the fact that47 the American Law Institute, the great explicator of American common law, relied on cases like M acPherson and Escola, in recognizing that a seller of an unreasonably dangerous product in a defective condition is liable for harm caused by the product without regard for either privity or negligence. And Judge48 38. KAUFMAN, supra note 4, at 274-75; BERNARD SCHWARTZ, MAIN CURRENTS IN AMERICAN LEGAL THOUGHT 478 (1993). 39. 150 P.2d 436, 440-44 (Cal. 1944) (Traynor, J., concurring). 40. Id. at 438 (majority opinion). 41. Id. at 440. 42. 237 F. Supp. 427 (N.D. Ind. 1965). 43. Id. at 428. 44. Id. at 428-29. 45. Id. at 428. 46. Id. at 429-30. 47. Id. 48. Id. at 430 (discussing RESTATEMENT (SECOND) TORTS § 402A (1966)). The Restatement Second § 402A provides: Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby 2017] A LOOK BACK 1501 Eschbach predicted the Indiana Suprem e C ourt would adopt the American Law Institute’s Restatement (Second) section 402A in such a circumstance. By doing49 so, Judge Eschbach firmly placed Indiana products liability law in the progressive common law camp.50 D. “Tort Reform” Legislation and the Courts’ Response Earlier we saw that progressives were critical of Conservative Common Law Era decisions because they saw the legal doctrine used by the courts as antithetical to their values and interests. So too with conservatives of Progressive Common Law Era decisions. First, conservatives criticized the tort system as rewarding greedy plaintiffs and unscrupulous “ambulance chasing” lawyers at the expense of largely blameless defendants for which it was cheaper to settle than to fight. Second, conservatives expressed alarm that tort risk was driving up51 insurance premiums for health care providers, manufacturers, and businesses in general. Third, some economists contended that tort costs produced52 inefficiencies that damaged American competitiveness. And fourth, much like53 the progressive critique of conservative common law, conservatives saw judge- made progressive common law as undemocratic.54 These criticisms took on partisan patina with Republicans embracing a “tort reform” agenda. In 1994, the Republican “Contract with America” platform included a com mitment to pass the “Common Sense Legal Standards Reform caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 49. Greeno, 237 F. Supp. at 433. 50. See Accord Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 92-93 (1973); Galbreath v. Eng’g Constr. Corp., 149 Ind. App. 347, 356-57 (1971). 51. Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L. REV. 717, 733, 747, 749 (1998) (citing, inter alia, Thomas J. Donohue, American Business: The Next Agenda, VITAL SPEECHES OF THE DAY, Dec. 1, 1997 (address to National Press Club, Wash. D.C., Oct. 1, 1997)). 52. Ronald Christensen, Behind the Curtain of Tort Reform, 2016 B.Y.U. L. REV. 261, 267. 53. PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES 15, 230 (1988); Dan Quayle, Civil Justice Reform, 41 AM. U.L. REV. 559, 560-61 (1992). 54. Sheldon H. Jaffe, What A Long Strange Trip It’s Been: Court-Created Limitations on Rights of Action for Negligently Furnishing Alcohol, 72 WASH. L. REV. 595, 610 (1997). But see, e.g., Richard L. Abel, Questioning the Counter-Majoritarian Thesis: The Case of Torts, 49 DEPAUL L. REV. 533 (1999). 1502 INDIANA LAW REVIEW [Vol. 50:1493 Act” that limited punitive damages; abolished joint and several liability; and arguably discouraged frivolous lawsuits by implementing a B ritish-style “loser pays” attorney fee regime.55 The conservative critique of progressive common law had tremendous influence and by 1991, nearly all fifty states had enacted some form of tort reform. Indiana has been part of the “tort reform” movement. The Indiana56 Products Liability Act, to be discussed in this Part of this Article, was initially57 passed in 1978. The Indiana M edical M alpractice Act, to be discussed in Part III of this Article, was adopted in 1975. The Indiana Collateral Source Statute, to58 be discussed in Part IV of this Article, became law in 1986. Other tort reform initiatives are described in the footnotes.59, 60 55. “Common Sense” Legislation: The Birth of Neoclassical Tort Reform, 109 HARV. L. REV. 1765, 1768 (1996). 56. Id. at 1768 n.35 (citing JAMES A. HENDERSON, JR. & AARON D. TWERSKI, PRODUCTS LIABILITY: PROBLEMS AND PROCESS 859-62 (2d ed. 1992) (describing state tort reform proposals from 1986 to 1991)). 57. Indiana Products Liability Act, Pub. L. No. 141-1978, § 28, 1978 Ind. Acts 1308 (codified at IND. CODE § 34-20 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see infra note 60. 58. Indiana Medical Malpractice Act, Pub. L. No. 146-1975, § 1, 1975 Ind. Acts 854 (codified at IND. CODE § 34-18 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see infra note 60. 59. The Indiana Punitive Damages Act, changing the burden of proof, was adopted in Pub. L. No. 172-1984, § 3, 1984 Ind. Acts 1462; punitive damage limitations and allocations were adopted in Pub. L. No. 278-1995, §§ 11-13, 1995 Ind. Acts 4051; these provisions are now codified at Indiana Code section 34-51-3. Though arguably not a tort reform statute, the Indiana Comparative Fault Act, was adopted in Pub. L. No. 317-1983, § 1, 1983 Ind. Acts 1930, now codified at Indiana Code section 34-51-2. The Indiana Tort Claims Act was adopted in Pub. L. No. 142-1974, § 1, 1974 Ind. Acts 599, now codified at Indiana Code section 34-13-3. For more information on the legislative history of this and other Indiana tort reform statutes, see infra note 60. 60. Note on Legislative History and Codification of Indiana Tort Reform Statutes. The Indiana General Assembly periodically “recodifies” portions of the Indiana Code and in the process of doing so, renumbers sections without changing their substance. This Article cites to the Indiana Code as in effect at the time this Article was written, thereby streamlining the discussion. In the opinion of the author, any changes in numbering and language over time is not material to the substantive discussion in the text. The following table sets forth, for each of the six tort reform statutes mentioned in this Article, the initial enactment and subsequent recodifications: https://doi.org/10.2307/1342030 2017] A LOOK BACK 1503 The Indiana Products Liability Act (“IPLA”) governs all product liability61 actions that are brought by a user or consumer against the manufacturer or seller alleging physical harm caused by a product, regardless of the substantive legal theory or theories upon which the action is brought. That is, if the claim is62 brought by a user or consumer against the manufacturer or seller for physical harm caused by a product, IPLA will govern the lawsuit whether the lawsuit is written up as a products liability claim, a negligence claim, or a breach of warranty claim— or any other legal theory. The A ct starts with the general notions of Greeno and Restatement Second section 402A but provides that certain circumstances do not give rise to liability.63 For example, the burden is on the plaintiff to show the defective condition existed at the time the product at issue left the defendant’s control. A plaintiff m ust64 establish actual negligence when alleging design defects or failure to provide65 Tort Reform Act Initial Enactment First Recodification Second Recodification Tort Claims IC 34-4-16.5 (PL 142-1974, § 1) IC 34-13-3 (PL 1-1998, § 8) Medical Malpractice IC 16-9.5 (PL 146-1975, § 1) IC 27-12 (PL 2-1993, § 153) IC 34-18 (PL 1-1998, § 13) Products Liability IC 33-1-1.5 (PL 297-1983, § 28) IC 34-20 (PL 1-1998, § 15) Comparative Fault IC 34-4-33 (PL 317-1983, § 1) IC 34-51-2 (PL 1-1998, § 47) Punitive Damages (Burden of Proof) IC 34-4-34 (PL 172-1984, § 3) IC 34-51-3 (PL 1-1998, § 47) Collateral Source IC 34-4-36 (PL 201-1986, § 3) IC 34-44-1 (PL 1-1998, § 40) Punitive Damages (Limitations and Allocations) IC 34-4-34 (PL 278-1995, §§ 11-13) IC 34-51-3 (PL 1-1998, § 47) Current codification shown in bold. 61. IND. CODE § 34-20-1 (2016). 62. Id. § 34-20-1-1. 63. See id. § 34-20-2-1; RESTATEMENT (SECOND) TORTS § 402A (1966). 64. IND. CODE § 34-20-4-1 (2016); Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). 65. IND. CODE § 34-20-2-2 (2016). 1504 INDIANA LAW REVIEW [Vol. 50:1493 adequate warnings. The Act protects a defendant where a plaintiff uses a66 defective product while aware of the defect and its danger; misuses the67 product; or modifies or alters the product.68 69 Particularly potent are IPLA’s statute of limitations, barring lawsuits filed more than two years after a cause of action accrues, and statute of repose,70 barring lawsuits filed more than ten years after a product has been sold or comes to rest in the hands of its first purchaser.71 In addition, IPLA has a special section for asbestos cases. A product liability action for damages from exposure to asbestos may be commenced within two years after the action accrues, without regard to the ten-year statute of repose.72 But the exception applies only to: (1) “persons who mined and sold commercial asbestos”; and (2) bankruptcy and similar funds created to pay asbestos damage claims.73 History repeats itself. In the Historical Age, we saw lawsuits filed challenging the reach of progressive statutes enacted to overrule conservative common-law decisions. So too in the M odern Age. Lawsuits have challenged the reach of tort reform statutes enacted, as we have just seen, to overrule progressive common law decisions. The repetition does not stop there. The theories of M odern Age attacks on tort reform statutes are pretty much the same as those of Historical A ge attacks on progressive statutes: the derogation canon and substantive due process! Several constitutional challenges to IPLA will be discussed here. Constitutional challenges to the Indiana Medical M alpractice Act will be discussed in Part III of this Article. And derogation canon and constitutional litigation involving the Indiana Collateral Source Statute will be discussed in Part IV of this Article. Prior to my appointment to the Court in 1993, the Indiana Supreme Court had twice (and the Indiana Court of Appeals (“Court of Appeals”)) at least once upheld the constitutionality of IPLA against challenges that the enactment violated various provisions of the Indiana Constitution. The biggest such case74 was M cIntosh v. M elroe Co., A Division of Clark Equipment Co., Inc. 75 The plaintiff had been injured in an accident involving a machine akin to a forklift, manufactured by the defendant and placed in service approximately thirteen years before the accident. The plaintiff did not dispute that his claim76 66. Id. § 34-20-4-2. 67. Id. § 34-20-6-3. 68. Id. § 34-20-6-4. 69. Id. § 34-20-6-5. 70. Id. § 34-20-3-1(b)(1). 71. Id. § 34-20-3-1(b)(2). 72. Id. § 34-20-3-2(a). 73. Id. § 34-20-3-2-(d)(1)-(2). 74. Dague v. Piper Aircraft Corp., 275 Ind. 520 (1981); State v. Rendleman, 603 N.E.2d 1333 (Ind. 1992); Beecher v. White, 447 N.E.2d 622 (Ind. Ct. App. 1983). 75. 729 N.E.2d 972 (Ind. 2000). 76. Id. at 974. 2017] A LOOK BACK 1505 had been brought outside the ten-year statute of repose, but maintained that the statute of repose violated the Indiana Constitution’s open courts and right to remedy clause by denying a remedy to those injured by defective products in77 service more than ten years, and the equal privileges and immunities clause by78 79 providing remedies to some persons injured by defective products but not to others.80 Justice Boehm’s plurality opinion concluded because the legislature had determined that injuries occurring ten years after a product is placed in service are not legally cognizable, the plaintiff was not entitled to a remedy under article 1, section 12, of the Indiana Constitution. “Thus, the statute of repose does not bar81 a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising.” Nor did the Court find a violation of article 1,82 section 23, finding the statute of repose was reasonably related to the inherent characteristics of the affected class and did not distinguish among members of the class.83 Justice Brent E. Dickson, joined by Justice Rucker, wrote a stirring dissent that began with what I find to be the most memorable assertion of judicial authority written by any member of the Court during my tenure: “T his case presented us with an opportunity to restore to Indiana’s jurisprudence important principles of our state constitution. By doing so, we could have vividly exemplified the Rule of Law notwithstanding the allure of pragmatic commercial interests.”84 The dissent went on to make a strong case that the ten-year statute of repose provision in IPLA violated both the open courts and right to remedy and the equal privileges and immunities clauses of the Indiana Constitution. As was his style,85 Justice Boehm methodically responded to each of the dissenters’ claims. A second case during my tenure implicated the asbestos provisions of IPLA. In AlliedSignal, Inc. v. Ott, a man alleged that he contracted lung cancer by86 exposure to asbestos-containing products while working for various employers from 1949 to 1983. His diagnosis came well after IPLA’s ten-year statute of87 repose had run and, unable to avail himself of the exemption from the statute of 77. IND. CONST. art. 1, § 12 (“All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”). 78. McIntosh, 729 N.E.2d at 974. 79. IND. CONST. art. 1, § 23 (“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”). 80. McIntosh, 729 N.E.2d at 980. 81. Id. 82. Id. at 978 (internal quotation marks and citation omitted). 83. Id. at 984. 84. Id. at 985 (Dickson, J., dissenting). 85. Id. at 985-94. 86. 785 N.E.2d 1068 (Ind. 2003). I was the author of this opinion. 87. Id. at 1069-70. 1506 INDIANA LAW REVIEW [Vol. 50:1493 repose that IPLA provides in some asbestos cases, the plaintiff maintained the88 IPLA operated to deprive him of his state constitutional rights to open courts and remedy and equal privileges and immunities under article 1, sections 12 and 23, of the Indiana Constitution.89 Now these were the same two provisions that had been at issue in M cIntosh. As had been the case in M cIntosh, Justice Dickson wrote a strong dissent.90 As to article 1, section 12, the plaintiff argued that he had been deprived of his right to remedy because, since cancer from asbestos has such a long period of latency, it would be impossible for a plaintiff ever to file suit within the repose time frame. The Court first said that if a plaintiff’s first exposure to asbestos is91 not until more than the ten years after the asbestos has been sold or come to rest in the hands of its first purchaser, the defendant will be protected by the statute of repose. This was a straightforward application of M cIntosh. B ut the Court92 acknowledged that because of the latency of asbestos-caused cancers, a plaintiff could develop the cancer within the ten-year time period, yet have had no reason to know of the condition until after the repose period. Applying the statute of93 repose in such a circumstance would, the Court said, violate article 1, section 12.94 Now the special asbestos provision of IPLA provides that an asbestos “product liability action . . . accrues on the date when the injured person knows that the person has an asbestos related disease or injury.” The Court said that95 88. The Court resolved a hotly debated issue of statutory construction on this point. The Court held the only asbestos cases to which the statute of repose did not apply were those in which the defendant “produce[d] raw asbestos—‘persons who mine[ ] and s[ell] commercial asbestos.’” Id. at 1073 (quoting IND. CODE § 34-20-3-2(d)(1) (2016)). Where defendants had only sold “asbestos-containing products” (as opposed to producing raw asbestos), the ten-year statute of repose applied. Id. This had been the position taken by Judge Michael P. Barnes in a particularly good opinion for the Indiana Court of Appeals. Jurich v. Garlock, Inc., 759 N.E.2d 1066 (Ind. Ct. App. 2001), rev’d, 785 N.E.2d 1093 (Ind. 2003). Justice Dickson in dissent in Ott and three other panels of the Indiana Court of Appeals interpreted the asbestos provision to apply to any defendant that mined or sold raw asbestos or asbestos products. Ott, 785 N.E.2d at 1078-79 (Dickson, J., dissenting); Harris v. A.C. & S., Inc., 766 N.E.2d 383 (Ind. Ct. App. 2002), rev’d, 785 N.E.2d 1087 (Ind. 2003); Allied Signal, Inc. v. Herring, 757 N.E.2d 1030 (Ind. Ct. App. 2001), rev’d, AlliedSignal, Inc. v. Herring, 785 N.E.2d 1090 (Ind. 2003); Black v. ACandS, Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001), rev’d, 785 N.E.2d 1084 (Ind. 2003). 89. Ott, 785 N.E.2d at 1070, 1073. 90. Id. at 1093 (Dickson, J., dissenting). 91. Id. at 1073-75 (majority opinion). Plaintiff’s argument here tracks Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), a challenge to the constitutionality under article 1, section 23, of the Medical Malpractice Act’s statute of limitations. Martin will be discussed infra in Part III.B. 92. Ott, 785 N.E.2d at 1074. 93. Id. at 1074-75. 94. Id. at 1075. 95. IND. CODE § 34-20-3-2(b) (2016) (emphasis added). 2017] A LOOK BACK 1507 this made it “difficult to reconcile science and law.” W hile the discovery-based96 statutory definition of “accrue” is the relevant point at which the statute of limitations is triggered, an earlier point in time is needed to determine whether the cancer developed before the statute of repose had run. For this purpose, the97 Court said that an asbestos product liability action accrues at the point the cancer could have been diagnosed. Having found that the IPLA statute of repose would98 violate article 1, section 12, in such a circumstance, the Court remanded for fact- finding on this issue.99 Justice Dickson’s dissent declared that article 1, section 12, is violated because the operation of the statute of repose closes courts to all asbestos claims. He quoted the findings of the trial court, Judge Stanley A. Levine, on100 this point: “[A]sbestos caused cancer takes between ten (10) and twenty-five (25) years to manifest itself. Even with the utmost amount of diligence [the plaintiff] would not have been able to meet the time restrictions of [the statute of repose]. No one would have.”101 Justice Dickson specifically challenged the Court’s diagnosis-based definition of “accrual,” emphasizing its deviation from the statute. This seems surprising102 since the Court’s definition permits some plaintiffs to pursue claims who would be unable to do so under the statutory definition. I think his point is that, for the reason just stated, the statute operates to preclude all claims; that it is so pernicious that no asbestos claims at all can be pursued. As to article 1, section 23, the plaintiff argued that he had been deprived of his right to equal privileges and immunities in that IPLA created a distinction between victims of asbestos and other victims of other defective products. The103 Court acknowledged the existence of the distinction, but found it unnecessary to determine whether the distinction is constitutionally permissible because, to the extent that asbestos plaintiffs were treated differently by the distinction, the classification worked in favor of asbestos plaintiffs, i.e., they received the benefit of no statute of repose.104 Justice Dickson responded that the Court had not described the plaintiff’s claim accurately. It was not asbestos and non-asbestos plaintiffs that105 constituted “the set of unequally treated classes identified in the plaintiff’s 96. Ott, 785 N.E.2d at 1075. 97. Id. 98. The Court defined “accrue” in this context to mean the “point at which a physician who is reasonably experienced at making such diagnoses could have diagnosed the individual with an asbestos-related illness or disease.” Id. at 1075. 99. Id. 100. Id. at 1081 (Dickson, J., dissenting). 101. Id. 102. Id. at 1082. 103. Id. at 1077 (majority opinion). 104. Id. Justice Dickson’s dissent framed the article 1, section 23, issue differently. Id. at 1083 (Dickson, J., dissenting). 105. Id. at 1083 (Dickson, J., dissenting). 1508 INDIANA LAW REVIEW [Vol. 50:1493 appeal,” he maintained. “To the contrary, the plaintiff allege[d] that . . . the106 statute of repose unconstitutionally grants unequal treatment to those employees who contract asbestos-related diseases from exposure to raw asbestos in contrast to those whose diseases result from exposure to asbestos-containing products.” 107 , 108 Justice Dickson then argued that that were “no inherent characteristics that distinguish workers with asbestos-related diseases caused by exposure to raw asbestos from those with the same diseases brought about by exposure to manufactured products containing asbestos. Thus,” he concluded, “the unequal109 treatment accorded to each class cannot be reasonably related to any inherent differences” and so violates article 1, section 23.110 As with his dissent on M cIntosh, Justice D ickson’s dissent in Ott was joined by Justice Rucker. That is, the IPLA survived both challenges to its constitutionality— but only by 3-2 votes. 106. Id. 107. Id. 108. Id. After I left the court, a major clash on this point erupted. In Myers v. Crouse-Hinds Division of Cooper Industries, Inc., the court adopted Justice Dickson’s position (indeed, Justice Dickson wrote Myers) that the “unequal treatment” accorded raw-asbestos and asbestos-related products claims did, in fact, violate article 1, section 23. 53 N.E.3d 1160, 1165-66 (Ind. 2016). Because the plaintiff in Ott had raised a different claim, Ott’s holding was not precedent, the court maintained. Id. at 1164. Justice Massa wrote a dissent on this point, excoriating the majority for insisting that stare decisis has not been offended, claiming it resolves the case on grounds not decided in Ott. But not only were those grounds raised in Ott, they were properly rejected as a matter of law. Through artful reasoning, the majority has engaged in stealth overruling, to the detriment of the public, confusing the law and eliminating transparency and predictability. Id. at 1172 (Massa, J., dissenting). Justice Massa also gives a thoroughly convincing analysis of why the “unequal treatment” asserted by the Court does not violate article 1, section 23. Id. at 1171. Contrary to Justice Massa’s view, I do not believe that majority opinion in Ott addressed whether treating raw-asbestos and asbestos-containing-products plaintiffs differently violated article 1, section 23, and so I think it was eligible for consideration in Myers. But I agree with Justice Massa that Justice Dickson was wrong to say in Myers that such claim had not been raised in Ott, id. at 1164, when, in fact, Justice Dickson himself had said exactly the opposite—that the claim had been raised—in Ott. Ott, 785 N.E.2d at 1083 (Dickson, J., dissenting). I think that Justice Dickson should have acknowledged in Myers that he had changed his mind and then explained why he had done so. And I agree with Justice Massa’s analysis and disposition of the substance of the article 1, section 23, issue. 109. Ott, 785 N.E.2d at 1083 (Dickson, J., dissenting). 110. Id. 2017] A LOOK BACK 1509 E. An Introduction Concluded This lengthy Introduction has viewed two periods of time arbitrarily called the Historical and M odern Ages and examined that in both periods there was legislative reaction to common law decisions of courts: Laws were passed that varied or directly overruled the common law decisions. In both Ages, courts were then called upon to interpret those statutes and using both the derogation canon and the constitution, sometim es did so, thereby limiting the reach of the legislative enactments. W e have seen, in other words, legal history repeating itself. But ironically enough, the ideology of the common law and the legislative enactments in these two Ages was reversed: In the Historical Age, courts rendered conservative common law decisions (e.g., claims barred by contributory negligence), the legislatures enacted progressive statutes (e.g., workers’ compensation acts), and then courts were asked to and sometimes did limit the reach of those progressive statutes using the derogation canon and substantive due process. But when it came to the M odern Era, courts rendered progressive common law decisions (e.g., recognizing strict liability), the legislatures enacted conservative “tort reform” statutes (e.g., IPLA), and then courts were asked to and sometimes did limit the reach of those “tort reform” statutes using the derogation canon and substantive due process. These themes will perm eate this entire Article and are returned to with particular emphasis in Parts III, IV, and V when examining medical malpractice, the use of collateral source evidence, and sovereign immunity, three areas of Indiana tort law in which there have been many com m on law decisions, tort reform enactments, and judicial review of such statutes. II. TW O O VERARCHING TOPICS IN INDIANA TORT LAW A. Summary Judgment: Hughley’s High Hurdle Although the deviation of Indiana’s summary judgm ent standard from the federal one is a matter of civil procedure, not tort law, the standard’s centrality in tort litigation is so pervasive that I need to start with it. In 1994, the Court decided Jarboe v. Landmark Community Newspapers of Indiana, Inc., a defendant’s request for summary judgment on the plaintiff’s111 promissory estoppel claim. Justice Dickson famously wrote:112 Under Indiana’s standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence. In this respect, Indiana’s summary judgment procedure abruptly diverges 111. 644 N.E.2d 118 (Ind. 1994). 112. Id. at 120. 1510 INDIANA LAW REVIEW [Vol. 50:1493 from federal summary judgment practice. Under the federal rule, the party seeking summary judgment is not required to negate an opponent’s claim. The movant need only inform the court of the basis of the motion and identify relevant portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).113 Justice Dickson continued: “The burden then rests upon the non-moving party to make a showing sufficient to establish the existence of each challenged elem ent upon which the non-movant has the burden of proof. Indiana does not adhere to Celotex and the federal methodology.”114 Chief Justice Randall T. Shepard and Justices Roger O. DeBruler and Richard M . Givan concurred. There were no dissents.115 116 The next big event was Lenhardt Tool & Die Co. v. Lumpe in 2000. By117 then the court had changed with the retirements of Justices DeBruler and Givan. Their seats were now held by Justices Theodore R. Boehm and Robert D. Rucker. The plaintiff had been injured in a workplace accident when a mold exploded. Because the mold had been destroyed and there were no records as118 to where the mold had originated, there was no way of establishing that the defendant had manufactured the mold. The trial court had denied summary119 judgment sought by the defendant and the Court of Appeals had affirmed.120 Justice Boehm argued summary judgment should have been granted. “[I]n my121 view under Indiana Trial Rule 56, as under federal practice, it is sufficient for summary judgment to establish on undisputed facts either: (1) the non-movant will be unsuccessful as a matter of law or (2) the non-movant will be unable at trial to establish an essential fact on which the non-movant carries the burden of proof.”122 However, only Chief Justice Shepard joined Justice Boehm in voting to grant 113. Id. at 123 (citation form modified). 114. Id. (citation omitted). Justice Dickson added that “Indiana is not the only state to take exception to the federal Celotex standard.” Id. at 123 n.3 (citing Berner v. Caldwell, 543 So.2d 686, 688 (Ala. 1989)). 115. Id. 116. I filed a cryptic “concurring in result” vote without writing a separate opinion. Id. (Sullivan, J., concurring in result without separate opinion). I do not remember what my thinking was at the time but it likely was that summary judgment was appropriately denied under the more relaxed Celotex standard and so it was not necessary to explicate a heightened standard in this case. 117. 735 N.E.2d 221 (Ind. 2000) (order denying transfer) (Rucker, J., not participating); see also Lenhardt Tool & Die Co. v. Lumpe, 722 N.E.2d 824 (Ind. 2000) (Boehm, J., dissenting from denial of transfer). 118. Lenhardt, 722 N.E.2d at 825. 119. Id. 120. Id. 121. Id. at 828. 122. Id. at 826-27. 2017] A LOOK BACK 1511 transfer and reversed the trial court and Court of A ppeals. Justice D ickson and123 I voted to deny transfer, not issuing (in accordance with custom) any written explanation. Justice Rucker did not participate in the vote.124 125 Now there are two ways to read what happened in Lumpe. Justice Boehm’s opinion can be read not as a call to overrule Jarboe but simply as an argument that on the facts of Lumpe, where it would be impossible for the defendant to prove it was not the manufacturer of the now-non-existent mold, it would be sufficient for the defendant to meet its burden by proving Lumpe would be unable to establish the defendant had manufactured the mold. In other words, Justice Boehm’s opinion can be read to distinguish Jarboe, not overrule it. The other way of reading Justice Boehm’s opinion is to say that he (and Chief Justice Shepard, who concurred in his dissent) thought Indiana should follow Celotex; and that at least Justices Dickson and Sullivan were content with the status quo. I think most observers walked away from Lumpe thinking Jarboe, not Celotex, was the Indiana rule. B ut nowhere in Justice Boehm’s opinion does he explicitly say Jarboe should be overruled and replaced by Celotex. The reason I make such a fine distinction is that in 2012, the Court of Appeals issued an opinion on this subject that had some absolutely startling language. In a medical m alpractice case, Commissioner of Indiana Department of Insurance v. Black, a panel of the Court of A ppeals consisting of Judges126 Patricia A. Riley, Ezra H. Friedlander, and Paul D. M athias, said Jarboe had been criticized over the years as requiring a movant for sum m ary judgment to prove a negative; and then described Justice Boehm’s Lum pe dissent, including his discussion of Celotex.127 Then the C ourt said this: “Today, we accept Justice Boehm’s views on this subject . . . as the better reasoned interpretation of Indiana Trial Rule 56 and explicitly adopt it to apply it to the unique circumstances before us.”128 Better reasoned than what? B etter than Jarboe? How could that be; how could the Court of Appeals overrule Indiana Supreme Court precedent? Yet if you were of the view that “Justice Boehm’s views on the subject” was that Jarboe should be replaced by Celotex, that is what the Court of Appeals seemed to be saying. But we were never to find out what the Court thought about all this. The 123. Id. at 828. 124. See generally id. 125. Justice Rucker had been a member of the panel of the Court of Appeals that had decided Lumpe and had concurred in the decision. Lenhardt Tool & Die Co. v. Lumpe, 703 N.E.2d 1079 (Ind. Ct. App. 1998). 126. 962 N.E.2d 675 (Ind. Ct. App.), trans. granted, opinion vacated, 969 N.E.2d 86 (Ind. 2012). 127. Id. at 680-81. 128. Id. at 681 (emphasis added). 1512 INDIANA LAW REVIEW [Vol. 50:1493 Court quickly granted transfer of the case but then, some months later,129 unanimously dismissed the appeal after the parties advised the court that a settlement agreement had been reached. The Black opinion has been “vacated130 and is not precedent.”131 On September 9, 2014, Chief Justice Loretta Rush authored Hughley v. State, about as full-throated an endorsem ent of Jarboe as one could possibly132 imagine. T he case is not a big tort dispute or high-dollar commercial matter. Instead, the State had sought civil forfeiture of some property owned by a man convicted of drug dealing. To be entitled to the property, the State needed to show the property— some cash and vehicles— were the proceeds of or used to facilitate the drug dealing. The State moved for summary judgment on this point and the133 defendant countered with an extremely flimsy affidavit. W as the flimsy134 affidavit enough to defeat summary judgment?135 Yes it was, wrote the Chief Justice of Indiana for a unanimous Court.136 Now sometimes it is hard to understand what an appellate court is saying but there is no misunderstanding Hughley. Chief Justice R ush began by reciting Indiana’s historic divergence from federal summary judgment practice under Jarboe and then acknowledged that the Jarboe standard has been criticized for137 allowing summary judgment to be defeated with a “self-serving affidavit.” And138 then she lets the reader have it, right between the eyes: That observation [that summary judgment can be defeated with a self-serving affidavit] is accurate, but using it as the basis for criticism overlooks the policy 129. Comm’r of Ind. Dep’t of Ins. v. Black, 969 N.E.2d 86 (Ind. June 4, 2012) (order granting transfer; no vote line shown). 130. Comm’r of Ind. Dep’t of Ins. v. Black, 973 N.E.2d 1116 (Ind. Sept. 11, 2012) (order dismissing appeal) (“[T]he Court of Appeals’ opinion, reported as Comm’r. of Ind. Dep’t. of Ins. v. Black, 962 N.E.2d 675 (Ind. Ct. App. 2012), remains vacated and is not precedent.”). All Justices concurred; the four members of the Court were Chief Justice Dickson and Justices Rucker, David, and Massa. There was one vacancy. 131. Id. Now-superseded Appellate Rule 11(B)(3) provided that when the Indiana Supreme Court granted “transfer” of a case from the Court of Appeals, the decision of the Court of Appeals was “vacated and held for naught.” Effective January 1, 2001, a new set of Indiana Appellate Rules were adopted that now provide “[i]f transfer is granted, the opinion or memorandum decision of the Court of Appeals shall be automatically vacated”; the “held for naught” language has been jettisoned. See IND. APP. R. 58(A). The Court’s order in Black explicitly provides that “the Court of Appeals’ opinion, reported as Comm’r. of Ind. Dep’t. of Ins. v. Black, 962 N.E.2d 675 (Ind.Ct.App.2012), remains vacated and is not precedent.” Black, 973 N.E.2d at 1116. 132. 15 N.E.3d 1000 (Ind. 2014). 133. Id. at 1002. 134. Id. 135. Id. at 1004. 136. Id. 137. Id. at 1003. 138. Id. 2017] A LOOK BACK 1513 behind that heightened standard. Summary judgment is a desirable tool to allow the trial court to dispose of cases where only legal issues exist. . . . W e have therefore cautioned that summary judgment is not a summary trial, and the Court of Appeals has often rightly observed that it is not appropriate merely because the non-movant appears unlikely to prevail at trial. In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.139 Turning to the merits, the Chief Justice wrote, [b]ecause Defendant designated competent evidence in response to the State’s motion for summary judgment, weighing it— no m atter how decisively the scales may seem to tip— was a matter for trial, not summary judgment. The trial court’s judgment is therefore reversed, and we remand this matter with instructions to deny the State’s motion for summary judgment.140 All Justices concurred.141 The debate between Jarboe and Celotex is over. Hughley has quickly become the lodestar of Indiana’s summary judgm ent law and any litigant or judge considering a motion for summary judgment today must clear Hughley’s high hurdle.142 B. The W ebb of Foreseeability M y predecessor on the Court, Justice Jon D. Krahulik, served only briefly but left an important legacy of opinions, including Webb v. Jarvis. Webb143 144 presented the knotty problem of the liability, as a matter of law, of a physician to a third person injured by the physician’s patient as a result of treatment. After145 having been shot by Dr. W ebb’s patient, Jarvis sought recovery from W ebb on the theory that the shooting had been caused by W ebb’s overprescribing of anabolic steroids which had turned his patient “into a toxic psychotic who was unable to control his rages.” 146 The four elements of a negligence action have long been recited by courts in Indiana and elsewhere as duty, breach, causation, and harm, and at issue in147 139. Id. at 1003-04 (internal quotations and citations omitted). 140. Id. at 1005-06. 141. Id. at 1006. 142. Since Hughley was decided on September 9, 2017, it has been cited in 164 Indiana appellate court decisions, an average of slightly more than one per week. (Statistics compiled by the author using Westlaw search conducted July 2, 2017.) 143. See Frank Sullivan, Jr., A Tribute to Justice Jon D. Krahulik, 39 IND. L. REV. 719 (2006). 144. 575 N.E.2d 992 (Ind. 1991). 145. Id. at 994. 146. Id. 147. Miller v. Griesel, 261 Ind. 604, 610-11 (1974). 1514 INDIANA LAW REVIEW [Vol. 50:1493 Webb was the element of duty. If W ebb did not have a “duty” to Jarvis, then148 W ebb had no liability to Jarvis. Justice Krahulik’s opinion set forth a149 methodology for determining whether a defendant had a duty to a plaintiff in a particular case. That methodology consisted of balancing three factors: (1) the150 relationship between the parties, (2) the reasonable foreseeability of harm to the151 person injured, and (3) public policy concerns.152 153 The methodology produced a slam dunk in favor of D r. W ebb. On the154 “relationship between the parties” factor, the Court erected a knowledge standard— a professional has no liability to a third person who relies on the professional’s conclusions or opinions unless the professional had actual knowledge of the third person’s reliance. As to the “foreseeability” factor, the155 Court concluded, “as a matter of law,” it was “not reasonably foreseeable that Dr. W ebb’s prescribing of the medication would put [his patient] in such a state that he would use a weapon to cause harm to another.” And on the “public policy”156 factor, the Court focused on not impinging upon a physician’s loyalty to the physician’s patient which, the Court said, must be undivided. It would be “untenable” and “unacceptable,” the Court said, to put a physician in the position of having to “weigh[ ] . . . personal risk of exposure to liability from third persons . . . against his patient’s need for the medication.”157 W hatever one might think of the Webb v. Jarvis test generally or the “relationship of the parties” and “public policy” factors in particular, treating158 148. Webb, 575 N.E.2d at 995. 149. Id. 150. Id. 151. Id. 152. Id. at 996-97. 153. Id. at 997. 154. Id. at 998. All justices concurred. Id. Justice Dickson wrote a concurring opinion in which he wrote that there might be circumstances where physicians could be found to have a duty to “unknown third persons foreseeably at risk of injury resulting from the negligent administration or prescription of medication.” Id. (Dickson, J., concurring). From the language of the Court’s opinion, it is very hard to see how this could ever be so. 155. Id. at 996 (majority opinion). 156. Id. at 997. 157. Id. 158. Immediately after it was decided, Webb v. Jarvis was severely criticized in a law review article written by Jay Tidmarsh. Jay Tidmarsh, Tort Law: The Languages of Duty, 25 IND. L. REV. 1419, 1425-27 (1992) (“In spite of its apparent simplicity, this new test for duty suffers from three serious flaws. The first is that the court provided less than two paragraphs of discussion and no precedential or theoretical analysis for its new test. The lack of analysis and justification robbed this new framework of much of its prescriptive power and force. The second weakness of the test is a problem shared by all multifactor balancing tests: lack of certainty and undue pliability. . . . [T]he third weakness of Webb [is] whether in fact the new test of duty will be taken seriously.”). Professor Tidmarsh’s third point was a little bit of a cheap shot; Webb v. Jarvis has been taken seriously. But, as I think was probably his actual point, Webb has not been followed consistently. 2017] A LOOK BACK 1515 the foreseeability factor as a matter of law was problematic. An early and highly significant articulation of this difficulty came from Judge James S. Kirsch of the Indiana Court of Appeals in the 1996 decision, Goldsberry v. Grubbs. Judge159 Kirsch observed there had been inconsistent application and results when applying the Webb three-factor balancing test— even on similar facts. He160 argued this occurred because of a failure to distinguish between foreseeability in the context of duty and foreseeability in the context of proximate cause.161 Judge Kirsch’s opinion explained: [T]he foreseeability component of the duty analysis must be something different than the foreseeability component of proximate cause. M ore precisely, it must be a lesser inquiry; if it was the same or a higher inquiry it would eviscerate the proximate cause element of negligence altogether. If one were required to meet the same or a higher burden of proving foreseeability with respect to duty, then it would be unnecessary to prove foreseeability a second time with respect to proximate cause. Additionally, proximate cause is normally a factual question for the jury, while duty is usually a legal question for the court. As a result, the foreseeability component of proximate cause requires an evaluation of the facts of the actual occurrence, while the foreseeability component of duty requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.162 W hen the Court of Appeals decided Goldsberry, it “entered a decision in conflict with another decision of the C ourt of Appeals on the same important issue.” The Court of Appeals had earlier decided North Indiana Public Service163 Co. v. Sell, which, as Judge Ezra H. Friedlander wrote in dissent in Goldsberry,164 compelled the opposite result. I voted to grant transfer but none of my165 colleagues joined me.166 In 2003, Justice Boehm would observe that Judge’s Kirsch view of foreseeability proposed in Goldsberry (which Justice Boehm called “schizophrenic” ) had “been embraced by some panels of the Indiana Court of167 See Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 387 (Ind. 2016); Hon. Theodore R. Boehm, A Tangled Webb-Reexamining the Role of Duty in Indiana Negligence Actions, 37 IND. L. REV. 1, 5 (2003). 159. 672 N.E.2d 475 (Ind. Ct. App. 1996). 160. Id. at 478. 161. Id. at 478-79. 162. Id. at 479 (citations omitted). 163. IND. APP. R. 57(H)(1). 164. 597 N.E.2d 329 (Ind. Ct. App. 1992). 165. Goldsberry, 672 N.E.2d at 481 (Friedlander, J., dissenting). 166. Goldsberry v. Grubbs, 726 N.E.2d 306 (Ind. 1999) (denying transfer from Goldsberry, 672 N.E.2d at 479) (all justices concurring except Sullivan, J., who voted to grant transfer). 167. Boehm, supra note 158, at 12. 1516 INDIANA LAW REVIEW [Vol. 50:1493 Appeals, rejected by others, and noted by some without taking sides.” The168 169 170 most interesting thing Justice Boehm tells us about this split in the Court of Appeals over Goldsberry is that in one of those cases, Bush v. NIPSCO, then-171 Court of Appeals Judge Robert D. Rucker dissented, expressly agreeing with Goldsberry.172 These observations from Justice Boehm about Goldsberry came not in an opinion of the Indiana Supreme Court but in a law review article in which he argued for excising the term “duty”— and the various baggage the term carries with it— from the analysis of negligence actions. 173 Justice Boehm’s argument to abandon the term “duty” is subtle and complex. He would neither increase nor reduce the difficulty of establishing liability for negligence. Rather, he maintained the term “duty” is misleading, “add[ing]174 nothing to the analysis of a negligence action.” Justice Boehm’s formulation175 of the negligence action would not use the word “duty” but would “incorporate the same principle” in what he maintains would be “a clearer line of reasoning.” And the principle is this: Policy considerations sometimes preclude176 imposing liability even where a defendant has not taken reasonable steps to avoid harm to others in an activity the defendant undertook and could control.177 Justice Boehm saw Goldsberry as an attempt to achieve the same clarifying objective. He quoted with approval Judge L. M ark Bailey’s characterization of Goldsberry as an effort to address “some of the confusion created by the W ebb decision.” If “foreseeability” is the same for both duty and proximate cause,178 Judge Bailey said, “deciding the duty question would subsume the entire law of negligence, i.e., duty, breach and proximate cause, into the duty question.” But179 with Webb distinguishing the two, Goldsberry was a worthy attempt, Justice 168. Id. at 12 n.80 (citing City of Gary v. Smith & Wesson, 776 N.E.2d 368, 386 (Ind. Ct. App. 2002); City of Indianapolis v. Pippin, 726 N.E.2d 341, 346 (Ind. Ct. App. 2000); Franklin v. Benock, 722 N.E.2d 874, 879 (Ind. Ct. App. 2000); King v. Northeast Sec., Inc., 732 N.E.2d 824, 834 (Ind. Ct. App. 2000)). 169. Id. at 12 n.81 (citing Hammock v. Red Gold, Inc., 784 N.E.2d 495, 501 n.10 (Ind. Ct. App. 2003); Bradtmiller v. Hughes Prop., Inc., 693 N.E.2d 85, 89 (Ind. Ct. App. 1998); Bush v. NIPSCO, 685 N.E.2d 174, 179 (Ind. Ct. App. 1997) (Rucker, J., dissenting)). 170. Id. at 12 n.82 (citing Ousley v. Bd. of Comm’rs of Fulton Cty., 734 N.E.2d 290 (Ind. Ct. App. 2000)). 171. 685 N.E.2d 174 (Ind. Ct. App. 1997) (Rucker, J., dissenting). 172. Id. at 179. 173. Boehm, supra note 158, at 12 n.82. 174. Id. at 18. 175. Id. at 12. 176. Id. at 17. 177. Id. at 19. 178. Id. at 11-12 (quoting Hammock v. Red Gold, Inc., 784 N.E.2d 495, 507 (Ind. Ct. App. 2003) (Bailey, J., dissenting)). 179. Id. at 11 (quoting Hammock, 784 N.E.2d at 507 (Bailey, J., dissenting)). 2017] A LOOK BACK 1517 Boehm said, “to explain how the two can coexist.”180 But, Justice Boehm said, “the logic of this situation drives us not to find two concepts of foreseeability, but rather to recognize that [the use of the term “duty”] adds nothing to the analysis of a negligence action.”181 Justice Boehm’s views were expressed in a law review article, never in an opinion of the Court. As he explained it, I see no point to writing separately in judicial opinions as to methodology. In the first place, because W ebb is existing precedent, the parties usually brief their cases in W ebb terms, and no one argues for the approach I suggest. M oreover, as already noted, the result in a given case is usually unaffected by choice of methodology. If I agree with the conclusion that the law does or does not permit the plaintiff to recover from the defendant under the circumstances, and the methodology of the opinion is consistent with existing precedent, I expect to concur without elaborating the points made in this Article.182 Justice Boehm’s formulation has not been adopted by the Court. Speaking for myself, I pretty much thought his analysis was correct but you had to call the principle he identified something and “duty” was as good a word as any, one with which lawyers and judges are well familiar. A nd Justice Krahulik’s achievement in Webb v. Jarvis has now limped along for a quarter century— not perfect but still useful, still on the books. But never did the Court address the Goldsberry issue: whether foreseeability means the same thing as a component of duty as it does as a component of proximate cause.183 There has been a recent development. In 2016, Justice Rucker authored Goodwin v. Yeakle’s Sports Bar & Grill, Inc., for a unanimous Court. Goodwin184 involved the persistent question of the duty of the proprietor of a place where people congregate— a store, mall, tavern— for criminal acts committed on the premises. Justice Rucker wrote the opinion and starts with what he calls the185 180. Id. at 12. As Boehm says, “Attempting to straighten things out is the most the court of appeals can do when faced with directly applicable Indiana Supreme Court precedent.” Id. 181. Id. 182. Id. at 19. Boehm did once—but only once—deploy his article to criticize the duty analysis in a majority opinion of the Court. Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1125 (Ind. 2010) (Boehm, J., concurring). 183. In Estate of Heck v. Stoffer, 786 N.E.2d 265, 269 (Ind. 2003), the Supreme Court, without citing Goldsberry, said, “We decline to take a narrow view of Webb’s foreseeability of harm prong and determine that this factor weighs in favor of the establishment of a duty.” This suggested rejection of the Goldsberry approach was sufficiently opaque that Goldsberry “remained resilient.” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 391 (Ind. 2016) (citing Sparks v. White, 899 N.E.2d 21, 29-30 (Ind. Ct. App. 2008); Barnard v. Menard, Inc., 25 N.E.3d 750, 755 (Ind. Ct. App. 2015)). 184. 62 N.E.3d 384. 185. Id. at 387. For other examples of this fact pattern, see Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1052 (Ind. 2003); Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind. 1518 INDIANA LAW REVIEW [Vol. 50:1493 “journey” from Webb v. Jarvis in determining the existence of duty. It is186 comprehensive and, to the extent the reader desires a detailed explication of the cases implicated by the duty principle, I commend it. After more than two pages of history, Goodwin turned to the question of foreseeability as a component of duty: “[B]ecause foreseeability is . . . a component of duty, and because whether a duty exists is a question of law for the court to decide, the court must of necessity determine whether the criminal act at issue here was foreseeable.”187 The Court took up the Goldsberry question and almost exactly twenty years after Goldsberry was decided, the Court adopted it, “distinguish[ing] between the analytical framework used to determine foreseeability in the context of duty and that used to determine foreseeability in the context of proximate cause.”188 Henceforth: In a negligence action, whether a duty exists is a question of law for the court to decide. And in those instances where foreseeability is an element of duty, this necessarily means the court must determine the question of foreseeability as a matter of law. W hen doing so the court is tasked with engaging in a general analysis of the broad type of plaintiff and harm involved without regard to the facts of the actual occurrence.189 III. M EDICAL M ALPRACTICE A. Indiana’s Signature Tort Reform: The Indiana M edical M alpractice Act Part I.D of this Article described how legislatures in the M odern Age responded to progressive common law decisions with “tort reform” statutes. One of the nation’s first and most important tort reform statutes was the Indiana M edical M alpractice Act (“IM M A”), enacted by the Indiana General Assembly190 in 1975 at the behest of Governor Otis R. Bowen. The statute created191 192 1999); and Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind. 1999). 186. Goodwin, 62 N.E.3d at 387. 187. Id. at 389. 188. Id. at 391. 189. Id. at 394. The actual resolution of Goodwin was interesting. The trial court had granted summary judgment for the defendant using the discarded methodology for determining foreseeability. But, the Court said, “we review questions of law de novo. Engaging in such review we conclude the trial court properly granted summary judgment in the [defendant’s] favor.” Id. The Court therefore affirmed the trial court’s judgment. Id. 190. IND. CODE § 34-18 (2016). 191. Pub. L. No. 146-1975, § 1, 1975 Ind. Acts 854 (codified at IND. CODE § 34-18 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see supra note 60. 192. Governor Bowen was a physician, went by the nickname “Doc,” and used his “M.D.” designation as part of his official signature. Otis R. Brown, IN.GOV, https://secure.in.gov/ governorhistory/2336.htm (last visited June 2, 2017) [https://perma.cc/J8NX-BGJG]. Following 2017] A LOOK BACK 1519 voluntary state-sponsored liability insurance for doctors and other health care providers, established a patient compensation fund, and subjected negligence claims against health care providers to special controls limiting patient remedies. The narrative advanced by G overnor Bowen and health care providers supporting IM M A was this. In the year or so prior to its enactment, seven of the ten insurance companies writing the m ajority of medical malpractice insurance policies in the State ceased or limited writing such insurance because of unprofitability or an inability to calculate an adequate premium. Premiums had increased as much as 1200 percent over a period of fifteen years [ostensibly] because of the increase in the number and size of claims. Physicians practicing high risk specialties such as anesthesiology were hard pressed or totally unable to purchase insurance coverage. . . . Emergency services were discontinued at some hospitals. Health care providers had become fearful of the exposure to malpractice claims and at the same time were unable to obtain adequate malpractice insurance coverage at reasonable prices. According to the Legislature’s appraisal, these conditions implicated the vital interests of the community in the availability of the professional services of physicians and other health care providers. The Legislature responded [by adopting the medical malpractice act] in an effort to preserve those services and thereby to protect the public health and well- being of the community.193 Now absent from this narrative is any reference to progressive common law decisions exposing healthcare providers to greater medical malpractice liability. But of course that was implicit in the entire rationale. Insurance premiums would not be going through the roof unless doctors were at risk of being held liable for significant damage awards. Here are four of the principal features of the Indiana medical malpractice regime: • First, a state-sponsored patient’s compensation fund (“PCF”) is established to pay medical malpractice claims against “qualified heath care providers” that exceed an annual aggregate amount for that provider. Qualified health care providers m ust meet statutory194 criteria, demonstrate financial responsibility, have malpractice195 196 two terms as governor from 1973-1981, he was appointed by President Ronald Reagan to be Secretary of Health and Human Services. Id. He served in that capacity in the Reagan cabinet from 1985 until 1989. Id. 193. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379 (1980). 194. IND. CODE § 34-18-6-6(a) (2016). 195. Id. § 34-18-2-14. 196. Id. §§ 34-18-3-2(1), 34-18-4. 1520 INDIANA LAW REVIEW [Vol. 50:1493 liability insurance, and pay a “surcharge” used to capitalize the PCF.197 198 • Second, the total amount of damages to be paid by a qualified provider (i.e., the aggregate annual amount) and the PCF combined is capped at $1,650,000, effective July 1, 2017, and at $1,800,000, effective July 1, 2019.199 • Third, no medical malpractice lawsuit can be filed until after a special medical review panel has reviewed the case and issued an opinion as to whether the health care provider complied with the applicable standard of care.200 • Fourth, the tim e in which a malpractice action may be brought is severely limited. These limitations are the principal focus of this201 section of this Article. Again following the historical pattern described in Part I, IM M A was subjected to court challenges testing its constitutionality, starting with the critically important 1980 decision of the Indiana Supreme Court, Johnson v. St. Vincent Hospital, Inc. 202 In a comprehensive opinion for a unanimous Court, Justice DeBruler held against the plaintiffs on their contention that IM M A violated multiple provisions of the Indiana Constitution. The Court took the position that203 197. Id. § 34-18-13-1. 198. Id. §§ 34-18-3-2(2), 34-18-5. 199. Id. § 34-18-14-3, as amended by Pub. L. No. 182-2016, § 9. 200. Id. § 34-18-8-4. 201. Id. § 34-18-7-1. 202. 273 Ind. 374 (1980). 203. See generally id. The plaintiffs’ claims that the following IMMA provisions violated the Indiana Constitution in the following respects: 1. Medical review panel process alleged to violate: (a) jury trial clause (art. 1, § 20); (b) open courts and right to remedy clause (art. 1, § 12); (c) “due process and equal protection clauses of . . . the Indiana Constitution”; (d) equal privileges and immunities clause (art. 1, § 23); (e) special legislation clauses (art. 4, §§ 22 and 23); and (f) separation of powers clause (art. 3, § 1). Id. at 380-81. 2. Cap on damages alleged to violate: (a) open courts and right to remedy clause (art. 1, § 12); and (b) “due process and equal protection clauses of . . . the Indiana Constitution”; (c) equal privileges and immunities clause (art. 1, § 23); and (d) jury trial clause (art. 1, § 20). Id. 3. Plaintiff attorney fee limitations alleged to violate: (a) “right to contract and to earn a living”; and (b) “due process and equal protection clauses of . . . the Indiana Constitution.” Id. at 401, 380. 4. Occurrence-based two-year statute of limitations alleged to violate “due process and equal protection clauses of . . . the Indiana Constitution.” Id. at 380-81. 5. Prohibition on plaintiff’s complaint asking for a specific amount alleged to violate: (a) free speech clause (art. 1, § 9); and (b) separation of powers clause (art. 3, § 1). Id. at 381. 6. Patient’s compensation fund alleged to violate: (a) special legislation clause (art. 4, § 23); 2017] A LOOK BACK 1521 [t]hroughout the State premiums for medical malpractice insurance were high and a large number of private companies were withdrawing their product from the market. These circumstances and conditions particularly affected health care providers and created the danger that health care services would not be maintained at their existing level contrary to the public interest.204 The Court held these facts to constitute a constitutionally sufficient basis for the legislation notwithstanding the claimed infringements of constitutional rights.205 B. The M alpractice Act’s Occurrence-based Statute of Limitations One of the toughest provisions of IM M A, alluded to above, was the limitation on the time in which a malpractice action could be brought. In contrast to standard tort statutes of limitation, which measure the time for filing from the date on which the plaintiff discovers the injury, the Act measured the time of filing from the date the injury occurred and then limited that time to two years.206 In Johnson, this “occurrence” statute of limitations was explicitly held not to violate the Indiana Constitution’s open courts and right to remedy clause. 207 The Indiana Supreme Court revisited the issue almost twenty years later in M artin v. Richey. In that case, the plaintiff had consulted a physician after self-208 detecting a lump in her breast and experiencing “shooting pains” from the lump. The plaintiff contended, after performing certain procedures, the209 physician advised her “he thought the lump was benign” and the plaintiff “had nothing to worry about.” Her version of the facts was corroborated by the210 physician’s nurse practitioner who testified she was in the room with the plaintiff and the physician when the foregoing conversation took place.211 The “nothing to worry about” conversation occurred on M arch 20, 1991.212 In April, 1994, the plaintiff experienced increased pain from the lump; a biopsy resulted in a diagnosis of breast cancer that required both surgery and chemotherapy.213 She filed her medical malpractice claim against the physician on October 14, 1994, well beyond the two year period from the M arch 20, 1991, “occurrence” of the malpractice and the physician sought dismissal of her complaint on that and (b) loaning state credit clause (art. 9, § 12). Id. 204. Id. at 408. 205. Id. 206. IND. CODE § 34-18-7-1 (2016). 207. 273 Ind. at 403. 208. 711 N.E.2d 1273 (Ind. 1999). 209. Id. at 1276. 210. Id. 211. Id. 212. Id. 213. Id. at 1277. 1522 INDIANA LAW REVIEW [Vol. 50:1493 basis. She replied that to enforce the statute in her circumstances would violate214 the Indiana Constitution’s open courts and right to remedy clause by denying215 a remedy to those who do not discover they have been the victims of malpractice until after the statute has run, and the equal privileges and immunities clause216 217 by providing rem edies to some persons injured by malpractice but not others.218 Justice M yra C. Selby wrote the opinion of the Court, holding that to enforce the occurrence-based statute of limitations in these circumstances would be unconstitutional. The Court concluded the equal privileges and immunities219 clause had been violated because the statute precluded this particular plaintiff, “unlike many other medical malpractice plaintiffs,” from pursuing a claim because her disease had a long latency period. And it concluded the open courts220 and right to remedy guarantees had been violated because the “plaintiff [had had] no meaningful opportunity to file an otherwise valid tort claim within the specified statutory tim e period because, given the nature of the asserted malpractice and the resulting injury or medical condition, [she had been] unable to discover that she ha[d] a cause of action.”221 Chief Justice Shepard dissented, taking the position that the outcome of the case was dictated by the precedent of Johnson v. St. Vincent Hospital. T he222 Court’s opinion in M artin suggested that Johnson had held the statute constitutional on its face and M artin was only an as-applied challenge. But,223 Chief Justice Shepard observed, “The statute’s purpose is to adopt an event-based limit rather than a discovery-based limit.” If M artin says the statute is224 unconstitutional if the event cannot promptly be discovered, that “seems like a facial unconstitutionality.” I think Chief Justice Shepard was clearly correct.225 226 214. Id. at 1282. 215. IND. CONST. art. 1, § 12 (“All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”). 216. Martin, 711 N.E.2d at 1279. 217. IND. CONST. art. 1, § 23 (“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”). 218. Martin, 711 N.E.2d at 1279. 219. Id. at 1277. 220. Id. at 1279-82. 221. Id. at 1284. 222. Id. at 1286 (Shepard, C.J., dissenting) (citing Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 403 (1980)). 223. See id. at 1279 (majority opinion). 224. Id. at 1286 (Shepard, C.J., dissenting). 225. Id. 226. Although I agreed with Chief Justice Shepard’s analysis of the constitutional issue, I concurred in the result of the Court’s opinion. Id. at 1285 (Sullivan, J., concurring in result). At issue in Martin was whether the trial court had properly granted summary judgment for the defendant. Id. at 1274. The Court’s decision on the statute’s constitutionality reversed the trial court’s order. Id. The plaintiff advanced a second theory that the Court did not address. In prior 2017] A LOOK BACK 1523 Following M artin, the Court had to work out the amount of time a plaintiff has to initiate a malpractice claim following discovery. In Van D usen v. Stotts,227 a companion case to M artin, the plaintiff also was unaware he had cancer and it had spread to his lymph nodes until more than two years following the alleged negligent act. The Court used the case to declare that persons “unable to228 discover the malpractice and their resulting injury within the two-year statutory period . . . [ may] file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.”229 Suppose alleged malpractice was discovered before the limitations period but within two years of its occurrence. Did the plaintiff only have until two years from the date of occurrence to file the claim? Or two years from the date of discovery? Although I did not agree with M artin, its holding, together with Van Dusen’s, seemed to constitutionalize a discovery-based, two year statute of limitations. M y reasoning, joined by Justice Rucker, in Boggs v. Tri-State Radiology, Inc., was230 that Van Dusen provided the statutory two-year time period within which to file claims to the members of that class of plaintiffs who do not discover malpractice until more than two years after occurrence. And the IM M A itself gives two231 years within which to file claims to the members of that class of plaintiffs who decisions, the courts had recognized a common law doctrine of “fraudulent concealment”: The doctrine of fraudulent concealment operates to estop a defendant from asserting a statute of limitations defense when that person, by deception or a violation of a duty, has concealed material facts from the plaintiff thereby preventing discovery of a wrong. Thus, equitable estoppel can arise either from active efforts to conceal the malpractice or from failure to disclose material information when a fiduciary or confidential relationship exists between the physician and patient. The physician’s failure to disclose that which he knows, or in the exercise of reasonable care should have known, constitutes constructive fraud. . . . Fraudulent concealment thus tolls the running of the statute of limitations until either the physician-patient relationship is terminated or the patient discovers the malpractice or learns information which in the exercise of due diligence would lead to the discovery of the malpractice. Hosp. Corp. of Am. v. Hiland, 547 N.E.2d 869, 873 (Ind. Ct. App. 1989) (citations omitted), trans. granted and opinion adopted in relevant part by Cacdac v. Hiland, 561 N.E.2d 758 (Ind. 1990). I was of the view that genuine issues of material fact existed as to whether the defendant was estopped from asserting the statute of limitations defense in accordance with these principles. Martin, 711 N.E.2d at 1285 (Sullivan, J., concurring in result). 227. 712 N.E.2d 491 (Ind. 1999); accord Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999); Halbe v. Weinberg, 717 N.E.2d 876 (Ind. 1999). 228. Van Dusen, 712 N.E.2d at 493. 229. Id. at 497. 230. 730 N.E.2d 692, 700 (Ind. 2000) (Sullivan, J., dissenting). 231. Id. at 700. 1524 INDIANA LAW REVIEW [Vol. 50:1493 discover malpractice at the time of occurrence. Therefore, the equal privileges232 and im munities clause demands two years within which to file claims for all remaining medical malpractice plaintiffs, i.e., that class of plaintiffs who discover the malpractice within two years of occurrence.233 But the Court’s majority saw no such impermissible distinction among these groups of m edical malpractice plaintiffs. In Booth v. Wiley, the last of the234 235 principal medical malpractice statute of limitations cases, Justice Dickson synthesized the holdings of the prior cases: • “If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action.”236 • “[I]f the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the tim e remaining after discovery and before the end of the statutory period.”237 • “In such cases where discovery occurs before the statutory deadline but there is insufficient time to file, . . . such claim ants must thereafter initiate their actions within a reasonable time.”238 C. Justice Dickson and Justice Rucker Debate “Wrongful Birth” and “Wrongful Life” In Cowe v. Forum Group, Inc., a case decided several years before I joined239 the Court, Justice Dickson’s unanimous opinion began by denom inating three types of claims: • “An action for ‘wrongful conception or pregnancy’ refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures or a defective contraceptive product.” 240 • The phrase “wrongful birth” applies to claims brought by the parents of a child born with birth defects alleging that due to negligent medical advice or testing were precluded from an informed decision about whether to conceive a potentially handicapped child or, in the event of 232. Id. 233. Id. 234. Id. at 697-98 (majority opinion). 235. 839 N.E.2d 1168, 1172 (Ind. 2005). 236. Id. 237. Id. 238. Id. 239. 575 N.E.2d 630 (Ind. 1991). 240. Id. at 633 (citation omitted). “This action is recognized in Indiana. Garrison v. Foy (1985). Ind. App., 486 N.E.2d 5.” Id. 2017] A LOOK BACK 1525 a pregnancy, to terminate it.241 • “W hen such action seeks damages on behalf of the child rather than the parents, the phrase ‘wrongful life’ instead of ‘wrongful birth’ is employed.”242 Cowe, the Court said, was a “wrongful life” claim arising from a most distasteful set of acts: the plaintiff was a child conceived by an intellectually disabled wom an unable to walk, talk, or care for herself after having been raped. Both mother and father were residents of a long-term care facility owned243 by the defendant. The specific claims at issue were that defendant’s failure to244 (1) protect the mother from rape proximately caused the child’s birth under circumstances where there was “no natural parent capable of caring for and supporting him” and (2) “detect the pregnancy until its fifth month proximately245 caused a failure of proper prenatal care resulting in physical injury to [the child].”246 The Court then turned to conventional “wrongful life” claims where children allege they were born with disabilities due to negligent medical advice or testing. Such claims, the C ourt said, were not cognizable in Indiana for two247 interrelated reasons set forth in the accompanying footnote. “[L]ife,” the Court248 concluded, “even life with severe defects, cannot be an injury in the legal sense.”249 Although the birth in Cowe was the result of rape and not negligent medical advice or testing, the Court saw that claim for relief as the same— damages as a consequence of the circumstances of the child’s birth. For that reason, the defendant was entitled to summary judgment.250 I think that the Court wanted to declare wrongful life claims non-cognizable 241. Id. (citations omitted). 242. Id. (citations omitted). 243. Id. at 632. 244. Id. 245. Id. (internal quotation marks omitted). 246. Id. 247. Id. at 633. 248. An overwhelming majority of other jurisdictions considering the issue have rejected claims for wrongful life by children born with congenital disorders. There are two interrelated grounds upon which the denial of recovery usually rests. The first is a general conceptual unwillingness to recognize any cognizable damages for a child born with a genetic impairment as opposed to not being born at all. . . . . . . . The second basis for rejecting wrongful life claims is the impossibility of calculating compensatory damages to restore a birth defective child to the position he would have occupied were it not for the defendant’s negligence. Id. at 634 (citations omitted). 249. Id. at 635 (internal quotation marks and citation omitted). 250. Id. at 635-36. 1526 INDIANA LAW REVIEW [Vol. 50:1493 in Indiana and this was the closest vehicle it had to do so. (The plaintiff did not call this a “wrongful life” case and in fact disputed that it was.) But the case did251 not end there. Remember the child had a second claim, alleging the defendant was negligent for failing to detect the pregnancy until its fifth month, thereby proximately caused a failure of proper prenatal care resulting in physical injury to the child. The Court permitted that claim to proceed. In other words, the Court had vanquished “wrongful life” claims but the plaintiff was still allowed to seek damages. Nine years later, the Court changed course. Bader v. Johnson was a252 straight-up wrongful life claim where defendant healthcare providers allegedly failed to recognize and advise a couple that a fetus would be born with serious disabilities. Yet the Court permitted the plaintiff parents to seek a variety of253 damages on grounds that the alleged failure to inform deprived the parents of the opportunity to terminate the pregnancy.254 Justice Rucker wrote the opinion and he makes several distinctions to get out from under the precedent of Cowe. First, he jettisons use of the moniker255 “wrongful birth” altogether, saying this is a medical malpractice case, plain and simple, and “[l]abeling the [appellees’] cause of action as ‘wrongful birth’ adds nothing to the analysis, inspires confusion, and implies the court has adopted a new tort.” Second, he distinguishes Cowe on the basis that “in Cowe, the injury256 was life itself. . . . Here, however, the injury is the lost opportunity and ability to terminate the pregnancy.”257 Justice Dickson would have none of it. His Cowe opinion had made clear that “wrongful birth” and “wrongful life” claims were distinguishable only by whether the parents or the child brought the claim and it did not matter whether the damages were sought for life itself or the inability to terminate a pregnancy.258 T herefore, exactly the same policy reasons that precluded recognizing claims of “wrongful life” should also operate to preclude claim s of “wrongful birth,” Justice Dickson argued. From my perspective, the Court had recognized in259 Justice Rucker’s opinion in Bader precisely the cause of action that Justice Dickson’s opinion in Cowe had declared as not cognizable. Justice Dickson would have the last word in Chaffee v. Seslar. In this case,260 plaintiff mother sought damages including the expenses of raising and educating her child born following an unsuccessful sterilization procedure. Justice261 251. Id. at 635. 252. 732 N.E.2d 1212 (Ind. 2000). 253. Id. at 1215. 254. Id. at 1220, 1222. 255. Id. at 1216, 1219. 256. Id. at 1216. 257. Id. at 1219. 258. Id. at 1222 (Dickson, J., dissenting). 259. Id. at 1223. 260. 786 N.E.2d 705 (Ind. 2003). 261. Id. at 706. 2017] A LOOK BACK 1527 Dickson wrote for the Court, quoting from his opinion in Cowe that “life . . . cannot be an injury in the legal sense.” Holding the damages sought by the262 plaintiff not available, the Court wrote “[a] child, regardless of the circumstances of birth, does not constitute a ‘harm’ to the parents so as to permit recovery for the costs associated with raising and educating the child.” The Court did hold263 “[r]ecoverable damages may include pregnancy and childbearing expenses, but,” to repeat, “not the ordinary costs of raising and educating a normal, healthy child conceived following an allegedly negligent sterilization procedure.”264 Now it was Justice Rucker’s turn to dissent. He reminded the Court his265 opinion in Bader treated the plaintiffs’ claim no differently than any other claim of medical negligence, thereby avoiding the thorny policy debate over “wrongful birth” and “wrongful life.” He bemoaned the fact that Chaffee “changes course,266 enters the debate, and retreats from the principle we announced in Bader.”267 Justice Rucker said the Court had “endorsed the view that an action for wrongful pregnancy exists in Indiana, and has decided that for policy reasons child-rearing expenses are not recoverable under such an action.” He argued268 that as in Bader, the same mode of analysis used for other medical malpractice cases should be used here. If the plaintiff proved negligence, “then she is269 ‘entitled to damages proximately caused by the tortfeasor’s breach of duty.’ The expense of raising and educating a child falls in this category.”270, 271 IV. THE C OLLATERAL SOURCE R ULE AND STANLEY V. W ALKER Shirley v. Russell and Stanley v. Walker — two decisions I wrote for the272 273 Court— involved the less-than-intuitive topic of the “collateral source rule.” W hat makes the collateral source rule difficult to understand is that the common law collateral source rule is very different— indeed, almost the reverse— of the 262. Id. at 708 (quoting Cowe v. Forum Grp., Inc, 575 N.E.2d 630, 635 (Ind. 1991)). 263. Id. 264. Id. 265. Id. at 709 (Rucker, J., dissenting). 266. Id. 267. Id. 268. Id. at 710. It would be more precise to say the Court adopted an earlier decision of the Court of Appeals in this respect. See Garrison v. Foy, 486 N.E.2d 5 (Ind. Ct. App. 1985). 269. Chaffee, 786 N.E.2d at 710 (Rucker, J., dissenting). 270. Id. (quoting Bader v. Johnson, 732 N.E.2d 1212, 1220 (Ind. 2000)). 271. My view on Chaffee was different from both Justice Dickson and Justice Rucker. I would have applied Restatement (Second) of Torts § 920 (1977), which requires that in situations where the defendant’s conduct has harmed the plaintiff or the plaintiff’s property but “in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.” Chaffee 786 N.E.2d at 709 (Sullivan, J., dissenting). 272. 663 N.E.2d 532, 533 (Ind. 1996). 273. 906 N.E.2d 852 (Ind. 2009). 1528 INDIANA LAW REVIEW [Vol. 50:1493 statutory collateral source rule in effect in Indiana today. The common law collateral source rule provided “compensation for loss which is received by a plaintiff from a collateral source independent of the wrongdoer [as from insurance] cannot be utilized by the wrongdoer in mitigation of damages.”274 Professor Lawrence P. W ilkins says courts used the common law collateral275 source rule to deny “defendant tortfeasors the ability to present evidence that the plaintiff has obtained compensation for the injuries from other sources and avoid liability by arguing that the plaintiff has no need for com pensation through the torts system.” As such, the rule was powerfully pro-plaintiff.276 As W ilkins discusses, the common law collateral source rule was grounded in a “philosophy of corrective justice”: one part retribution; one part deterrence. The tort system should correct the wrongdoer, and in so correcting deter that wrongdoer from further injurious conduct.277 There’s a good illustration of the animating principle of corrective justice in Sherlock v. Alling, an Indiana Supreme Court opinion from long ago— 1873.278 The heirs of a steamship passenger who had been killed in a collision with another boat, sued the owners of the steamship for negligence. The owners279 argued since the heirs received life insurance proceeds because the owners of the steamship caused the passenger’s death, the owners should get credit for the amount of life insurance paid!280 To allow such a defense would defeat actions under law, when the party killed had, by his prudence and foresight, made provision or left means for the support of his wife and children, and the wrong-doer would thus be enabled to protect himself against the consequences of his own wrongful act.281 W ilkins wrote that by the end of the 19th century, courts considered the rule to be “well settled” that the plaintiff could “recover his entire loss from [defendant] without regard to the amount of insurance he may have been paid thereon.” Twentieth century courts took to simply quoting the encyclopedic282 statement of the rule.283 274. Allegheny Airlines, Inc. v. United States, 504 F.2d 104, 112 (7th Cir. 1974); Powers v. Ellis, 231 Ind. 273, 279 (1952); Pittsburgh, C., C. & St. L. Ry. Co. v. Home Ins. Co., 183 Ind. 355 (1915). 275. William R. Neale Professor of Law Emeritus at the Indiana University Robert H. McKinney School of Law. 276. Lawrence P. Wilkins, A Multi-Perspective Critique of Indiana’s Legislative Abrogation of the Collateral Source Rule, 20 IND. L. REV. 399, 399 (1987). 277. Id. at 402-03. 278. 44 Ind. 184 (1873), aff’d, 93 U.S. 99 (1876). 279. Id. at 185-86. 280. Id. at 188. 281. Id. at 200. 282. Wilkins, supra note 276, at 405 (internal quotation and citation omitted). 283. See, e.g., Evans v. Breeden, 164 Ind. App. 558, 561 (1975) (“‘Compensation for the loss received by plaintiff from a collateral source, independent of the wrongdoer, as from insurance, 2017] A LOOK BACK 1529 Then, effective September 1, 1986, the Indiana General Assembly, abrogated the powerfully pro-plaintiff common law collateral source rule and replaced it with a Collateral Source Statute far friendlier to defendants.284 This was, as discussed in Part I.D of this Article, a manifestation of the pro- defendant tort reform movement. A nd it was the culmination of several285 criticisms of the collateral source rule that had been percolating for a century. W ilkins recounts that permitting a “plaintiff to benefit from a judgment that did not take into account the fact that the injury had already been compensated would permit a double recovery.” Now we can say to this criticism that double286 recovery is better than a wrongdoer enjoying a windfall merely because the wrongdoer’s victim had a collateral source available to it. And the law and287 economics literature smiles on the common law collateral source rule as preventing under-deterrence.288 B ut there is a second argument as well and that goes to the fact that under modern tort law, the defendant does not have to be a wrongdoer, or at least much of a wrongdoer, at all. In a strict liability case, the plaintiff need not prove fault and the defendant need not be guilty of any negligence at all. In a comparative289 fault regime— like Indiana has— a plaintiff can be as much as fifty percent at fault and still recover. 290 cannot be set up by the wrongdoer in mitigation of damages.’ 9 I.L.E. Damages s 86, p. 253- Insurance or other Collateral Compensation.”). 284. Pub. L. No. 201-1986, 1986 Ind. Acts 1959, § 3 (codified at IND. CODE § 34-44-1 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see supra tnote 60. 285. Joseph P. Poehlmann, Enduring Doctrine: The Collateral Source Rule in Wisconsin Injury Law, 99 MARQ. L. REV. 209, 224 (2015) (citing Wilkins, supra note 276, at 402-03). 286. Wilkins, supra note 276, at 407 (internal quotation and citation omitted). 287. Molzof v. United States, 6 F.3d 461, 465 (7th Cir. 1993) (“In choosing who should receive the windfall from the ‘surplus’ award, i.e., compensation over and above that necessary to compensate the plaintiff for the injuries sustained by the tortious conduct, the plaintiff is thought to be far more deserving than the defendant.”). 288. To permit [a] defendant to set up [the plaintiff’s] insurance policy as a bar to [an auto accident damages] action would result in underdeterrence. . . . [T]he defendant’s incentive . . . to prevent a similar accident in the future will be impaired. Less obviously, the double recovery is not a windfall to [the plaintiff]. [The plaintiff] bought the insurance policy at a price presumably equal to the expected cost of [the plaintiff’s] injury plus the cost of writing the policy. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 200 (6th ed. 2003). 289. Wilkins, supra note 276, at 408. “In many instances of strict liability, however, the defendant may be at fault in fact, even if the plaintiff has not proved it.” Dobbs et al., supra note 3, at § 3, 3. 290. IND. CODE § 34-51-2-6 (2016); see, e.g., Smith v. Beaty, 639 N.E.2d 1029, 1035 (Ind. Ct. App. 1994) (“[E]ven if the evidence established that [plaintiff’s] own negligence was a cause of his injuries, [plaintiff] was not necessarily precluded from recovery under Indiana’s Comparative 1530 INDIANA LAW REVIEW [Vol. 50:1493 The Collateral Source Statute enunciates a two-fold purpose: enabling the trier of fact in a personal injury or wrongful death action to determine the actual amount of the prevailing party’s pecuniary loss; and providing that a prevailing party not recover more than once from all applicable sources for each item of loss sustained. Note the contrast with the philosophy of corrective justice and its291 prongs of retribution and deterrence. Under the Collateral Source Statute, the general rule is that in personal injury and wrongful death actions, evidence of “proof of collateral source payments”292 is admissible. However, there are significant exceptions to the general rule. Not293 admissible is evidence of the following collateral source payments, which are made before trial to a plaintiff as compensation for the loss or injury for which the action is brought: (A) payments of life insurance or other death benefits; (B) insurance benefits that the plaintiff or members of the plaintiff’s family have paid for directly; or (C) payments made by: (I) the state or the United States; or (ii) any agency, instrumentality, or subdivision of the state or the United States[.]294 Did the Collateral Source Statute actually abrogate the common law collateral source rule? The presumption of the common law rule does seem to have been reversed. The com mon law rule said “no reference to collateral sources, with some exceptions”; the new statutory rule says “collateral sources shall be considered, with some exceptions.” W ilkins flat out says “the Indiana General Assembly . . . reversed the judicial rule of exclusion.”295 On the other hand, the exceptions to the new rule of inclusion are pretty broad: apparently any payments of life insurance or other death benefits, regardless of who paid the premiums; any other insurance benefits the plaintiff or members of the plaintiff’s family have paid for directly; and any government benefits. One way to compare the common law rule with the statutory rule is to go back and think about the fact pattern of that 1873 Indiana common law case, Sherlock v. Alling, where the Court refused to permit the tortfeasor to offer up296 the plaintiff’s life insurance as a defense. W e can say the common law rule297 used in Sherlock v. Alling was a general rule of exclusion: Payments from Fault Act. A plaintiff is barred from recovery only if his fault is greater than the fault of all persons whose fault proximately contributed to his damages.” (citation to statute omitted)). 291. IND. CODE § 34-44-1-1 (2016). 292. Id. § 34-44-2-1. 293. Id. § 34-44-1-2(1). 294. Id. § 34-44-1-2(1)(A)-(C). 295. Wilkins, supra note 276, at 400 (emphasis added). 296. 44 Ind. 184, 200 (1873), aff’d, 93 U.S. 99 (1876). 297. Id. 2017] A LOOK BACK 1531 collateral sources did not reduce the amount of damages a tortfeasor must pay, e.g., where the victim purchased life insurance. The Court said if the defendant298 were given credit for the life insurance, “the wrong-doer would thus be enabled to protect himself against the consequences of his own wrongful act.”299 Under the Collateral Source Statute, the facts of Sherlock v. Alling would constitute an exception from a general rule of inclusion: Payments from collateral sources would reduce the amount of damages a tortfeasor must pay, except where the victim purchased life insurance. But the result is the same: The defendant300 does not benefit where “the party killed had, by his prudence and foresight, made provision or left means for the support of his wife and children.”301 Ten years after the enactment of the Collateral Source Statute, the Court was presented with Shirley v. Russell. Loren Shirley, a retired teacher, had died in302 an automobile accident caused by the defendants and had recovered approximately $575,000 in damages in a bench trial. The defendants303 maintained the Court should have considered in making its award the present value of a “joint and survivor annuity” payable to the victim’s family under the Ohio teacher’s retirement plan.304 Under the common law collateral source rule of exclusion, I think it is clear, the annuity payments Shirley’s family received would have been excluded collateral source evidence. Shirley, however, is governed by the Collateral Source Statute’s rule of inclusion that allows into evidence proof of collateral source payments. But not all collateral source payments. As we have seen, payments305 of life insurance or other death benefits and insurance benefits that the plaintiff has paid for are not to be considered. The Court held the evidence was to be excluded: Shirley’s widow’s survivor annuity, though perhaps not insurance for tax or regulatory purposes, has sufficient hallmarks of insurance to be deemed such for purposes of the new collateral source rule statute. Shirley caused his monthly pension benefit to be reduced by the economic and functional equivalent of an insurance premium[.] . . . A nd had Shirley’s widow predeceased him, his obligation to pay the premium 298. Id. 299. Id. 300. IND. CODE § 34-44-1-2(1)(A) (2016). 301. Sherlock, 44 Ind. at 200. 302. 663 N.E.2d 532 (Ind. 1996). The trial in the case took place in federal district court. The opinion was in response to a “certified question” from the United States Court of Appeals for the Seventh Circuit. See IND. APP. R. 64 (authorizing federal courts to certify issues of Indiana law to the Indiana Supreme Court “when it appears to the federal court that a proceeding presents an issue of state law that is determinative of the case and on which there is no clear controlling Indiana precedent”). 303. Shirley, 663 N.E.2d at 533-34. 304. Id. at 534. 305. Id. at 534-35. 1532 INDIANA LAW REVIEW [Vol. 50:1493 would have ceased as the need for coverage would have ended.306 All five members of the Court agreed.307 Hearkening back to Part I.B of this Article, one might identify Shirley as308 an exemplar of the derogation canon at work. After all, the Collateral Source Statute had changed the common law collateral source rule, and so the derogation canon mandated it be strictly construed. Evidence of the survivor annuity would have been inadmissible at common law and the derogation canon, if it applied, would direct the Court construe evidence of the survivor annuity as inadmissible under the Collateral Source Statute unless its admissibility was required by the Statute either in express terms or by unmistakable implication. But if you were309 of the view that the legislature had completely reversed (remember “reversed” was the word W ilkins used ) the common law, perhaps the apparent intent of the310 legislature should be implemented without reference to the derogation canon. And, indeed, Shirley says the Collateral Source Statute “abrogated the common law collateral source rule.”311 In any event, there is no reference in Shirley v. Russell to the Collateral Source Statute being in derogation of common law, one way or the other. As already noted, the decision was unanimous. 312 I wrote Shirley v. Russell after I had been on the Court for about three years. About three years before I left, I wrote Stanley v. Walker. W hereas the Court313 had been unanimous in Shirley, it was divided 3-2 in Stanley, with a vigorous dissent from Justice Dickson and an equally vigorous concurring rejoinder from314 Justice Boehm. 315 Plaintiff Danny W alker was injured in an automobile accident caused by defendant Brandon Stanley. The hospital bill was approximately $11,600 but316 this amount was discounted by about $4800, meaning that plaintiff only paid $6800. The question was whether the defendant could introduce evidence the317 plaintiff’s bill had been discounted by $4800.318 An injured plaintiff is entitled to recover damages for medical expenses that 306. Id. at 536. 307. Id. 308. See supra note 17 and accompanying text. 309. Quakenbush v. Lackey, 622 N.E.2d 1284, 1290 (Ind. 1993) (citing State Farm Fire & Cas. Co. v. Strutco Div., King Seeley Thomas Co., 540 N.E.2d 597, 598 (Ind. 1989)). 310. Wilkins, supra note 276, at 400. 311. Shirley, 663 N.E.2d at 534. 312. Id. 313. 906 N.E.2d 852 (Ind. 2009). 314. Id. at 860 (Dickson, J., dissenting). 315. Id. at 859 (Boehm, J., concurring). 316. Id. at 853-54. 317. Id. at 854. 318. Id. 2017] A LOOK BACK 1533 were both necessary and reasonable. To determine actual medical expenses, we319 oftentimes need to know how much insurance pays. But does admitting evidence of how much insurance pays violate the Collateral Source Statute? Did, in other words, evidence of the $4800 discount constitute proof of a collateral source payment? And if so, was it a collateral source payment that was admissible or did it fall into one of the excluded categories? The Court’s majority opinion focused on the evidentiary need to establish the reasonable value of the medical services and concluded evidence of both the amount billed and the amount paid could be presented to the factfinder without violating the Collateral Source Statute. Different states had reached different320 results in answering this question but the Court chose to follow the approach taken by the Ohio Supreme Court. “The collateral source statute does not bar321 evidence of discounted amounts in order to determine the reasonable value of medical services,” our opinion held. “To the extent the adjustments or accepted322 charges for medical services may be introduced into evidence without referencing insurance, they are allowed.”323 Justice Dickson strongly disagreed. His dissent took the position that the trial court had been correct to exclude the evidence of the discount because it constituted “insurance benefits for which the plaintiff or members of the plaintiff’s family ha[d] paid for directly.” He buttressed his position by writing324 at some length about the derogation canon— a bedrock principle, he called it— and how its application here would favor exclusion of the evidence of the discount for the reasons given in my discussion above about the derogation canon in the context of Shirley. In this regard, Justice Dickson says that Shirley had325 been wrong to say that the Collateral Source Statute “abrogated the common law collateral source rule,” while saluting Shirley’s result in excluding the evidence of the survivor annuity. “Shirley is . . . entirely consistent,” Justice Dickson326 maintained, “with the trial court’s decision to exclude the discounted insurance benefit payments in the present case.” 327 Stanley v. Walker was controversial when it was decided. W ith the role of328 319. Id. at 855. 320. Id. at 856 (discussing IND. R. EVID. 413). 321. Id. (discussing Robinson v. Bates, 112 Ohio St. 3d 17, 23 (2006) (holding the jury may determine the reasonable value of medical services is the amount originally billed, the amount accepted as payment, or some amount in between)). 322. Id. at 858. 323. Id. 324. Id. at 861 (Dickson, J., dissenting) (quoting IND. CODE § 34-44-1-2(1)(B) (2016)). 325. See supra note 17 and accompanying text. 326. Stanley, 906 N.E.2d at 862 n.2 (Dickson, J., dissenting). 327. Id. (citing IND. CODE § 34-44-1-2(1)(B) (2016)). 328. In the immediately succeeding session of the legislature, opponents of the decision put forward a bill to overturn the decision by adding to the list of exclusions in the Collateral Source Statue “a writeoff, discount, or other deduction associated with a collateral source payment.” H. 1255, 116th Gen. Assemb. (amending Indiana Code section 34-44-2(1) by adding a new 1534 INDIANA LAW REVIEW [Vol. 50:1493 government payments under Obamacare, robust debate about the relationship of the collateral source rule to health payments has spread throughout the nation.329 It is a rich and nuanced subject, well worth continued study. V. G OVERNM ENTAL IM M UNITY AND POLICE C HASES A particularly noteworthy example of the rise of progressive common law of the sort discussed in Part I.C of this Article was the abolition of the doctrine of sovereign im m unity by state courts. W hile conservative common law had immunized governmental units from tort liability, that immunity was abrogated in Indiana in a series of decisions culminating in the Supreme Court’s 1972330 opinion in Campbell v. State. 331 In Campbell, the Court held establishing categories of governmental immunity was best left to the legislature. The decision abrogated the common332 law doctrine of sovereign immunity except (1) where a unit of government fails “to provide adequate police protection to prevent crime”; (2) where a333 government official makes “an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment”; and (3) where judicial decision making is334 subdivision (D)) (printing of Jan. 25, 2010). The Bill passed the House by a vote of 57-40, Roll Call 124, Ind. H.R. (Feb. 2, 2010), but the Bill died in the Senate. 329. See, e.g., Ryan Hart, A Grim Prognosis? The Collateral Source Rule in Pennsylvania Medical Malpractice Actions After the Affordable Care Act, 121 PENN ST. L. REV. 529 (2016); LaMar F. Jost & Marissa S. Ronk, The Affordable Care Act and Colorado’s Collateral Source Rule, 93 DENV. L. REV. ONLINE 1 (2016); Poehlmann, supra note 285; Christopher W. Blaylock, The Vital Role of the Collateral Source Rule in United States Healthcare Financing, 36 U. LA VERNE L. REV. 1 (2014); Todd R. Lyle, Phantom Damages and the Collateral Source Rule: How Recent Hyperinflation in Medical Costs Disturbs South Carolina’s Application of the Collateral Source Rule, 65 S.C. L. REV. 853 (2014); Ann S. Levin, The Fate of the Collateral Source Rule After Healthcare Reform, 60 UCLA L. REV. 736 (2013). 330. First, the courts held that while local governmental units were immune under common law from tort liability in the performance of “governmental functions,” they were not immune under common law in respect of “proprietary functions.” See Flowers v. Bd. of Comm’rs, 240 Ind. 668, 671 (1960). Then common law immunity in respect of governmental functions was abolished for municipalities, Brinkman v. City of Indianapolis, 141 Ind. App. 662, 668-69 (1967), and for county units of government, Klepinger v. Bd. of Comm’rs, 143 Ind. App. 178, 201 (1968). Next, common law immunity in respect of proprietary functions was abolished for state government in Perkins v. State, 252 Ind. 549, 558 (1969). Finally, common law immunity in respect of governmental functions was abolished for state government in Campbell v. State, 259 Ind. 55 (1972). 331. 259 Ind. 55. 332. Id. at 62. 333. Id. (citing Simpson’s Food Fair, Inc. v. City of Evansville, 272 N.E.2d 871 (Ind. Ct. App. 1971)). 334. Id. at 62-63. 2017] A LOOK BACK 1535 challenged.335 Before Campbell, the (conservative) common law general rule was that governmental units were immune from liability for their torts unless the courts had recognized an exception. Campbell reversed that. Henceforth, the336 (progressive) common law general rule would be that governmental units would be liable for any “breach of a duty owed to a private individual”— except for such claims as failure to prevent crime, appointment of an incompetent official, or an incorrect judicial decision.337 In response to Campbell’s conclusion that the interests— financial and otherwise— of governmental units in being protected from tort liability were “questions which properly belong to the legislature,” the Indiana General338 Assembly in 1974 enacted the Indiana Tort Claims Act (“ITCA”). The Tort339 Claims Act established limitations on the common law rights to sue and recover from governmental units and their employees through procedural mechanisms such as notice requirements and limitations on recovery. The Act also contained a list of immunity provisions that shield governmental units from liability in specific situations where a common law duty of care exists.340 Following the enactment of ITCA, plaintiffs pursuing tort claims against the government must navigate their way through these immunity provisions and 335. Id. at 62 (citing Pierson v. Ray, 386 U.S. 547 (1967)). 336. Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind. 1999). 337. Campbell, 259 Ind. at 63. 338. Id. at 61. 339. Pub. L. No. 142-1974, 1974 Ind. Acts 599 (codified at IND. CODE § 34-13-3 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see supra note 60. 340. The list contains twenty-four such specific situations, a number of which have required judicial interpretation. See, e.g., • King v. Northeast Security, Inc., 790 N.E.2d 474, 480-81 (Ind. 2003) (contract security service alleged to have failed to protect students at public school; interpreted Indiana Code section 34- 13-3-3(10), which provides immunity for “[t]he act or omission of anyone other than the governmental entity or the governmental entity’s employee”); • Davis v. Animal Control, 948 N.E.2d 1161, 1162 (Ind. 2011) (city animal control unit alleged to have failed to protect resident from dangerous dog; interpreted Indiana Code section 34-13- 3-3(8), which provides immunity for “[t]he adoption and enforcement of or failure to adopt or enforce: a law (including rules and regulations) . . . unless the act of enforcement constitutes false arrest or false imprisonment”); • Giles v. Brown Cty., 868 N.E.2d 478, 479 (Ind. 2007) (county emergency response unit alleged to have failed to provide ambulance; interpreted Indiana Code section 34-13-3-3(19), which provides immunity for “operation . . . of an enhanced emergency communication system”). • Noble Cty. v. Rogers, 745 N.E.2d 194, 196 (Ind. 2001) (county alleged to owe damages caused by enforcing housing code; interpreted Indiana Code sections 34-13-3-3(6)-(7), which provide immunity for “[t]he initiation of a judicial or an administrative proceeding” and “[t]he performance of a discretionary function,” respectively). 1536 INDIANA LAW REVIEW [Vol. 50:1493 through subsequent decisions that interpret the extent and scope of the various im munity provisions. In general, it is only after a determination is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a common law duty exists under the circumstances. Justice Roger O. D eB ruler neatly summed up the tort claim against a governmental unit: “A finding of im munity assumes negligence but denies liability. . . . However, if the court finds the government is not immune, the case may yet be decided on the basis of failure of any element of negligence. T his should not be confused with the threshold determination of immunity.”341 Perhaps most noteworthy of the governmental immunity cases have been those involving accidents caused during police chases. The first was a wrongful death claim, Seymour National B ank v. State, that grew out of a 100+ M PH342 chase by a state trooper of a fleeing suspect on I-65 near A ustin; the trooper’s cruiser collided with an innocent motorist’s vehicle. The State offered the343 following immunity provision in the ITCA in defense: A governmental entity or employee acting within the scope of the employee’s employment is not liable if a loss results from . . . [t]he adoption and enforcement of or failure to adopt or enforce: (A ) a law (including rules and regulations) . . . unless the act of enforcement constitutes false arrest or false imprisonment.344 The Supreme Court read the provision to hold “all acts of enforcement save false arrest and imprisonment now render the State immune,” and concluded345 the State was immune from liability for the negligence of the trooper. But the346 case was a 3-2 decision over the dissents of Justices DeBruler and Donald H. H unter and contrary to the decision of a unanimous panel of the Court of347 Appeals. Those five judges took the position that the legislature had not348 intended to grant immunity for the breach of what they called “a private duty” owed by governmental entities or employees to individual citizens. I will return349 to the meaning of “private duty”; for now, the reader can get a sense of it from the well-turned opening paragraph of Justice DeBruler’s dissent: Operators of motor vehicles upon the public streets and highways, 341. Greathouse v. Armstrong, 616 N.E.2d 364, 366 (Ind. 1993) (internal quotation marks omitted). 342. 422 N.E.2d 1223 (Ind.), modified on reh’g, 428 N.E.2d 203 (Ind. 1981). 343. Id. at 1225. 344. IND. CODE § 34-13-3-3(8) (2016). 345. Seymour, 422 N.E.2d at 1226. 346. Id. 347. Id. at 1226-29 (DeBruler, J., dissenting; Hunter, J., dissenting). 348. Seymour Nat’l. Bank v. State, 179 Ind. App. 295 (1979). The decision of the Court of Appeals was written by Judge Jonathon J. Robertson and joined by Judges Joe W. Lowdermilk and Robert B. Lybrook. See id. 349. Seymour, 422 N.E.2d at 1226 (DeBruler, J., dissenting); Seymour, 179 Ind. App. at 384. 2017] A LOOK BACK 1537 whether in the employ of another or not, owe a private legal duty to others using the streets, to use due care while driving. This duty is imposed upon governors, judges, legislators, public employees and private employees and citizens, alike, when taking the wheel. That the General Assembly should grant to any person a legal im m unity from liability when operating a motor vehicle upon a public street, is an astounding proposition, as it is totally at odds with the pervasive regulation of that activity by the State.350 A dozen years after Seymour National Bank, the Supreme Court again took up the question of governmental immunity for high-speed police chases in Quakenbush v. Lackey. This case involved an Indianapolis Police Department351 officer who, while driving to the scene of a domestic disturbance, collided in an intersection with an innocent motorist’s vehicle, injuring the four occupants.352 Sailing with Seymour National Bank at its back, the City offered up in defense the law enforcement immunity provision of ITCA.353 The issue was the same as in Seymour National B ank but this time the plaintiff prevailed. In a dramatic 3-2 decision, the Court overruled Seymour National Bank and held the law enforcement immunity provision of ITCA was intended to codify the common law as it existed at the time the Act was passed. The state of the common law was such that governments and their employees were subject to liability for the breach of private owed duties to individuals, but were im mune from liability for the breach of public duties owed to the public at large.354 The Court had now adopted the “private duty” notion that had animated the views of Judge Robertson and Justice DeBruler in Seymour National Bank. But355 just what was a private duty? Relying heavily on the analyses of Justice DeBruler and Judge Robertson in Seymour National Bank, Quakenbush said “governmental units were not liable for all acts or omissions which might cause damage to persons, but only those 350. Seymour, 422 N.E.2d at 1226 (DeBruler, J., dissenting). 351. 622 N.E.2d 1284 (Ind. 1993). 352. Id. at 1286. 353. Id. 354. Id. at 1290-91. 355. While Quakenbush rested in substantial part upon its public/private duty analysis, its holding was also separately based on a basic principle of statutory construction. Quakenbush pointed out that interpreting the immunity provision “to confer immunity in situations involving the operation of police vehicles on public streets conflicts with other statutes which regulate the operation of such vehicles.” Quakenbush, 622 N.E.2d at 1290. Identifying the statutory duty to operate emergency vehicles “with due regard for the safety of all persons,” (citing IND. CODE § 9- 21-1-8 (2016)), the opinion employs the canon of construction that “[w]here two statutes are in apparent conflict they should be construed, if it can be reasonably done, in a manner so as to bring them into harmony.” Id. 1538 INDIANA LAW REVIEW [Vol. 50:1493 involving the breach of a private duty owed to an individual.” The Court used356 a venerable Court of Appeals case, Simpson Food Fair v. City of Evansville, to357 illustrate. In Simpson, the City was held immune from a claim by a grocery corporation that city police negligently failed to halt a crime wave that had closed the store. W hy immunity? Because “the duty to provide police protection under358 those circumstances was a duty owed to the public at large, not to individual members of the public. On the other hand, governmental entities and employees were not immune for the breach of a duty owed to an individual.” 359 T he Quakenbush court then gave a list of cases in which the public duty/private duty had been applied; its list is set forth in the footnotes below 360 and illustrates the fact that questions of governmental immunity arose with frequency outside the context of police chases. These cases continued to arise and distinguishing private duty from public duty became increasing difficult. In 1999, B enton v. City of Oakland City took up what had become “admittedly confusing precedents governing this area of the law.” The Court361 candidly acknowledged these cases had produced “highly abstract, almost metaphysical debates over whether the duty alleged to have been breached was a ‘private’ one or a ‘public’ one.”362 Benton was itself a case that did not involve a police chase. Rather, the plaintiff alleged a city had breached a duty to warn him of danger after he was injured diving into shallow water at a city-owned beach. The case presented a363 nice opportunity for the Court to address common law principles of immunity 356. Quakenbush, 622 N.E.2d at 1288; Campbell v. State, 259 Ind. 55, 62 (1972). 357. 149 Ind. App. 387, 391 (1971). 358. Id. at 394-95. 359. Quakenbush, 622 N.E.2d at1288 (citing Simpson, 149 Ind. App. at 393-95) (citation omitted). 360. In Quakenbush, the Court set forth the following cases showing the application of the public duty/private duty test to various fact situations: • Lewis v. City of Indianapolis, 554 N.E.2d 13, 16 (Ind. Ct. App. 1990) (holding city owed no private duty to individual user of “911” emergency telephone system; city immune from liability for system malfunction). • State v. Flanigan, 489 N.E.2d 1216, 1218 (Ind. Ct. App. 1986) (holding duty to control traffic was owed to public; police immune from private suit for damages). • City of Hammond v. Cataldi, 449 N.E.2d 1184, 1187 (Ind. Ct. App. 1983) (describing duty to fight fires is a public duty; city immune for not responding). • Crouch v. Hall, 406 N.E.2d 303, 305 (Ind. Ct. App. 1980) (holding duty to apprehend suspect owed to public; police immune from failure to arrest suspect before he committed another crime). Quakenbush, 622 N.E.2d at 1288. 361. 721 N.E.2d 224, 225 (Ind. 1999). I was the author of this opinion. Among the “confusing precedents” discussed in Benton was another opinion of mine, Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994). 362. Id. at 230. 363. Id. at 225. 2017] A LOOK BACK 1539 because there was no contention the city was entitled to immunity under ITCA.364 In any event, the Court said in Benton that it was done with trying to com e up with tests to explain when government was entitled to immunity and when not. Rather, 365 we return to and reaffirm Campbell. W e hold that Campbell is properly applied by presuming that a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well. W e refuse to articulate a one-size- fits-all test for determ ining when a duty is so closely akin to one of the limited exceptions that it should be treated as one as well.366 “The best we can say as a general proposition,” Benton concluded, “is that because the duty of care is so pervasive, any additional exceptions will be rare and identified on a case-by-case basis.” For the most part, the Court said,367 exceptions would be left to the legislature.368 Several years later, King v. Northeast Security, Inc., reinforced the holding369 of Benton. In another immunity case not involving a police chase, the Court confronted a claim for damages from a public school student beaten up in the school parking lot by other students. The public school corporation argued it370 had no common law duty to protect against criminal activity of others. But to371 the Court, the school district’s duty that was implicated was that of taking reasonable steps for the protection of its students. “Benton,” the King Court372 said, “stands for the general proposition that common law immunity with respect 364. Id. at 226 n.2. 365. Id. at 230. 366. Id. 367. Id. The Court’s judicial self-criticism in Benton did not stop at public duty/private duty. The Court also took up “still another test for duty” that had been propounded by the Court of Appeals in Henshilwood v. Hendricks County, 653 N.E.2d 1062 (Ind. Ct. App. 1995). Henshilwood made a distinction between cases in which liability is asserted against a governmental unit for failing to take some action and where liability is asserted for taking some action. Id. at 1065. Henshilwood referred to the failure-to-act as “nonfeasance” and subsequent cases have referred to affirmative-acts-of-negligence as “malfeasance”; liability turned on the distinction. Id. Benton said, “It seems to us that the subsequent cases have had every bit as difficult a time distinguishing nonfeasance and malfeasance as the earlier cases had distinguishing private duty and public duty.” Benton, 721 N.E.2d at 231. The Court held that henceforth, a “governmental unit’s duty with respect to an alleged act of negligence does not depend on whether the negligence is claimed to be the result of nonfeasance or malfeasance.” Id. 368. Id. at 232. 369. 790 N.E.2d 474 (Ind. 2003). 370. Id. at 477. 371. Id. at 478. 372. Id. at 479. 1540 INDIANA LAW REVIEW [Vol. 50:1493 to all governmental activities is limited to activities ‘closely akin’ to the three Campbell areas.” The school district’s activities here did not fall into any of the373 three Campbell categories and so the school district was relegated to any statutory immunity that might be available.374 This brings us back to police chases. W ith the “private duty” theory espoused in Quakenbush now disapproved, what of Quakenbush’s holding of no immunity? The answer came three years after King in Patrick v. M iresso. Patrick375 reaffirmed Quakenbush’s result— no immunity— and did so in a unanimous opinion, demonstrating how firmly entrenched Quakenbush had become as376 precedent given that both of the two previous key police chase cases (Seymour National Bank and Quakenbush itself) had both been decided by 3-2 votes.377 Justice Dickson authored Patrick, where a Gary Police Department officer pursuing a fleeing burglary suspect collided with an innocent motorist’s vehicle. The defendant City did not give much stock to Quakenbush as378 precedent, dismissing its rationale as having been “abandoned in Benton v. City of Oakland City.” Justice Dickson’s opinion explains why Quakenbush379 remained undiminished. First, Benton was entirely about common law; it did not speak to the availability of the statutory law enforcement immunity that the City was claiming. Second, as to statutory law enforcement immunity, Quakenbush380 identifies the statutory duty to operate emergency vehicles “with due regard for the safety of all persons.” Quakenbush employed the harmonization canon of381 statutory construction to construe this statute consistent with holding that law enforcement immunity does not extend the operation of police vehicles on public streets.382 M ost importantly, Patrick says that while Benton concluded “the public/private duty test did not work,” Benton did not “thereby resurrect or383 increase immunity for government conduct. To the contrary, it offers the ‘general 373. Id. at 480. 374. As to statutory immunity, the school district sought relief on two grounds: it was entitled to immunity for the “enforcement of or failure to adopt or enforce . . . a law (including rules and regulations)” under Indiana Code section 34-13-3-3(8), and for “[t]he act or omission of anyone other than the governmental entity or the governmental entity’s employee” under Indiana Code section 34-13-3-3(10). After analysis, the Court held neither of these two immunities was available to the school district and remanded the case for trial. King, 790 N.E.2d at 480-84. 375. 848 N.E.2d 1083 (Ind. 2006). 376. See generally id. 377. See Seymour Nat’l Bank v. State, 422 N.E.2d 1223, 1226 (Ind. 1981); Quakenbush v. Lackey, 622 N.E.2d 1284, 1291 (Ind. 1993). 378. Patrick, 848 N.E.2d at 1084. 379. Id. at 1085. 380. Id. (citing Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999) (stating “whether the legislature has insulated [the defendant city] is not part of this appeal”)). 381. Id. (citing IND. CODE § 9-21-1-8 (2016)). 382. Id. 383. Id. at 1086 (citing Benton, 721 N.E.2d at 230). 2017] A LOOK BACK 1541 proposition . . . that because the duty of care is so pervasive, any additional exceptions will be rare and identified on a case-by-case basis.’”384 Patrick went on to hold ITCA’s law enforcement im m unity did not extend to police chase cases. A nd in doing so, reaffirmed the broader framework of385 governmental immunity articulated in C ampbell and Benton: the common law presumption that governmental units are bound by the same duty of care as non- governmental actors unit except for limited exceptions. VI. EM OTIONAL D ISTRESS: THE M ODIFIED IM PACT AND R ELATIVE BYSTANDER R ULES The availability in tort of damages for emotional distress evolved386 considerably in Indiana beginning in 1991. For a century prior, such damages were only available when the distress both was accompanied by and resulted from a physical injury caused by an im pact to the person seeking recovery. This387 principle was known as the “impact rule” because of the requirement that there be some physical impact on the plaintiff before recovery for emotional distress was allowed.388 The rationale for limitations on damages for emotional distress— limitations like the impact rule— are generally familiar. The following summary is a fair one: Behind these limitations lie a variety of policy considerations, many of them based on the fundamental differences between emotional and physical injuries. . . . “[C]ourts have been concerned . . . that recognition of a cause of action for [emotional] injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act.” The last concern has been particularly significant. Emotional injuries may occur far removed in time and space from the negligent conduct that triggered them. M oreover, in contrast to the situation with physical injury, there are no necessary finite limits on the number of persons who might suffer emotional injury as a result of a given negligent act. The incidence and severity of emotional injuries are also more difficult to predict than those of typical physical injuries because they depend on psychological factors that ordinarily are not apparent to 384. Id. (quoting Benton, 721 N.E.2d at 230). 385. Id. at 1087. 386. “Emotional distress” in this context means “is mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994). 387. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991) (citing cases back to Kalen v. Terre Haute & I.R.R. Co., 18 Ind. App. 202, 47 N.E. 694 (1897)). 388. Id. 1542 INDIANA LAW REVIEW [Vol. 50:1493 potential tortfeasors.389 In Cullison v. M edley, the Indiana Supreme Court was presented with a390 claim for damages for a variety of intentional torts (trespass, assault, and invasion of privacy) that the plaintiff alleged the defendants— five members of a single family— com mitted by entering his home and, with at least one family member bearing a holstered handgun, castigating and threatening him for fraternizing with a teenaged female member of the family. Specifically, the plaintiff claimed to391 have required psychological and psychiatric counseling and prescription medication as a result of the emotional distress he endured.392 To this point in time, the impact rule had applied to intentional torts as well as negligence. The plaintiff in C ullison had suffered no physical impact and so the traditional rule precluded his recovery. The Court examined the rationale393 for the impact rule set forth above and concluded the presence of physical impact did not logically make a claim of emotional injury any less speculative, subject to exaggeration, or likely to lead to fictitious claims. Nor did the Court fear that394 a relaxation of the rule would inundate the courts with claims. The Court,395 therefore, expressed a willingness to abrogate the impact rule in the “proper circumstances” and recognize liability for an intentional infliction of emotional distress. But these pronouncements turned out to be dicta; the Court said the396 facts in Cullison did not support a finding that the plaintiffs intended to cause emotional injury to the defendant.397 The big bang came six months later in Shuamber v. Henderson. This was398 an allegation of negligent infliction of emotional distress where the distress did not result from physical impact— and the Court not only recognized the availability of relief, it granted it!399 The facts were these: A mother was the victim of an automobile accident in which her young son was killed and young daughter injured. Plaintiffs (the400 389. Consolidated Rail Corp., 512 U.S. at 545-46 (quoting Maloney v. Conroy, 208 Conn. 392, 397-98 (1988); footnoting Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U. FLA. L. REV. 477, 507 (1982) (“The geographic risk of physical impact caused by the defendant’s negligence in most cases is quite limited, which accordingly limits the number of people subjected to that risk. There is no similar finite range of risk for emotional harm.”) (footnote citation omitted)). 390. 570 N.E.2d 27 (Ind. 1991). 391. Id. at 28-29. 392. Id. 393. Id. at 30. 394. Id. 395. Id. 396. Id. at 31. 397. Id. at 30. 398. 579 N.E.2d 452 (Ind. 1991). 399. Id. at 456. 400. Id. at 453. 2017] A LOOK BACK 1543 mother and daughter in the automobile accident) alleged suffering severe em otional distress from witnessing the death of the son and brother. But401 because the impact rule required the emotional distress both be accompanied by and result from a physical injury caused by an im pact to the person seeking recovery, plaintiffs’ claims were barred: their emotional distress was not the result of a physical injury they suffered.402 Invoking the dicta for abrogating the impact rule it had set forth in Cullison, the Court permitted the plaintiffs’ claims for emotional distress to proceed. But403 perhaps the bang was not quite so big; the Court limited the relaxation of the impact rule to the facts of Shuamber itself: W hen, as here, a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, we hold that such a plaintiff is entitled to m aintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff.404 W hen Shaumber was finished, the reach of the impact rule had been constricted only a little— but the Court showed no particular reluctance to further constriction in the future. The next case was Conder v. Wood. As two women walked across an405 intersection in downtown Indianapolis, one was knocked to the ground by a turning truck. Fearing the truck would run over the fallen woman, the other406 began pounding on the truck, trying to get the driver’s attention. The truck407 came to a stop just before the rear wheels ran over the fallen woman’s head. She died at the scene.408 The surviving woman sought damages for emotional distress. T he409 defendant argued such damages were not available because plaintiff had not suffered any direct physical impact from the driver’s negligence. The difference410 from Shaumber’s facts was that the Conder plaintiff had not herself suffered “direct im pact.” Did that matter? Not to the Court. “Direct impact,” it said, is411 nothing more than the “requisite measure of ‘direct involvement.’” A s such, it412 401. Id. 402. Id. at 454. 403. Id. at 455. 404. Id. at 456. 405. 716 N.E.2d 432 (Ind. 1999). I was the author of this opinion. 406. Id. at 433. 407. Id. 408. Id. 409. Id. at 433-34. 410. Id. at 434. 411. Id. at 435. 412. Id. 1544 INDIANA LAW REVIEW [Vol. 50:1493 was of little consequence how the physical impact occurred, “so long as that impact arises from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct.” Because the plaintiff sustained an impact as she pounded on the truck413 and alleged suffering mental and emotional traum a as a result of her direct involvement in the negligent conduct, the Court held the requirements of the (modified) impact rule had been met.414 In Groves v. Taylor, a six-year-old boy was struck and killed by a vehicle415 as he was collecting the mail at the end of his driveway. His eight-year-old416 sister was walking in the driveway at the time and heard but did not see the impact. She sought damages for negligent infliction of emotional distress,417 which the defendant opposed on grounds that there had been no direct physical impact.418 W ith Conder v. Wood holding that it was “direct involvement” rather than “direct impact” that was at issue in these cases, Groves now posed the question of whether there could be the requisite degree of direct involvement without the plaintiff having incurred any physical direct impact at all. The Court was419 prepared to answer in the affirmative but was worried about having some limiting principle to ward off “spurious” claims. The Court found a solution in Bowen420 v. Lumberm ens M utual Casualty Co., a decision of the W isconsin Supreme421 Court on facts similar to Groves. Bowen set forth a three factor test designed to meet the goals of “(1) establishing the authenticity of the claim and (2) ensuring fairness of the financial burden placed upon a defendant whose conduct was negligent.” The Indiana Supreme Court adopted the W isconsin “relative422 413. Id. 414. Id. 415. 729 N.E.2d 569 (Ind. 2000). I was the author of this opinion. 416. Id. at 571. 417. Id. 418. Id. 419. Id. at 572. 420. Upon reflection, “spurious” claims was probably not the best way to describe the Court’s concern. “Spurious” means illegitimate, false, or not genuine. Spurious, WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY (2d ed.). The concern here was more that beyond some point, it would simply be bad policy to permit such claims. Atlantic Coast Airlines v. Cook, 857 N.E.2d 989 (2006), to be discussed infra accompanying note 426, is a good illustration. 421. 517 N.W.2d 432 (Wis. 1994). 422. Groves, 729 N.E.2d at 572 (quoting Bowen, 517 N.W.2d at 443). The Bowen elements are: • “First, ‘[a] fatal injury or a physical injury that a reasonable person would view as serious can be expected to cause severe distress to a bystander. Less serious physical harm to a victim would not ordinarily result in severe emotional distress to a reasonable bystander of average sensitivity.’” Id. at 572-73 (quoting Bowen, 517 N.W.2d at 444). • “Second, emotional distress may accompany the death or severe injury of persons such as friends, acquaintances, or passersby. But the emotional trauma that occurs when one witnesses the death or severe injury of a loved one with a relationship to the plaintiff 2017] A LOOK BACK 1545 bystander rule” as an alternative theory of recovery to the “modified impact rule” of Conder v. Wood. “[W ]here the direct impact test is not met,” Groves held:423 a bystander may nevertheless establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or otherwise tortuous conduct.424 Groves was decided June 7, 2000; Cullison had been decided April 23,425 1991. In ten years, the availability of damages for emotional distress had been426 dramatically expanded as the impact rule was systematically constricted and an alternative to it was approved. Then the expansion stopped. In 2007, the Court decided two cases showing its unwillingness to go further in respect of either the modified impact rule or the relative bystander rule. The first of these two cases, Atlantic Coast Airlines v. Cook, involved the427 modified impact rule. A passenger on a flight from Indianapolis engaged in disruptive conduct (refusing to fasten seat belt; smoking; foot stomping; etc.) and made alarming pronouncements (“W orld Trade Center”; “Americans”; “N ew York City”; etc.). No physical violence occurred and the passenger was arrested428 when the plane landed.429 Two other passengers on the flight sued the airline, contending they suffered a direct physical impact from the alleged negligence of Atlantic Coast, resulting analogous to ‘a spouse, parent, child, grandparent, grandchild, or sibling is unique in human experience and such harm to a plaintiff’s emotional tranquility is so serious and compelling as to warrant compensation.’ Limiting recovery to those plaintiffs who have the specified relationships with the victim acknowledges the special quality of such relationships yet places a reasonable limit on the liability of the tortfeasor.” Id. at 573 (quoting Bowen, 517 N.W.2d at 444) (internal citations omitted). • “Third, ‘witnessing either an incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occurs is an extraordinary experience, distinct from the experience of learning of a’ loved one’s death or severe injury by indirect means.” Id. (quoting Bowen, 517 N.W.2d at 444-45). 423. Conder, 716 N.E.2d 432. 424. Groves, 729 N.E.2d at 573. As set forth in the text, for a plaintiff to recover damages for emotional distress under the relative bystander rule, that another person must be the victim of negligently-inflicted “death or severe injury.” Id. Note that the same is not required for emotional distress claims brought under the modified impact rule where recovery is permitted so long as the plaintiff personally sustains a physical impact and the requisite emotional distress damages. Spangler v. Bechtel, 958 N.E.2d 458, 467 (2011) (citing Bader v. Johnson, 732 N.E.2d 1212, 1215, 1222 (Ind. 2000)). 425. Groves, 729 N.E.2d 569. 426. Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991). 427. 857 N.E.2d 989 (Ind. 2006). 428. Id. at 992. 429. Id. 1546 INDIANA LAW REVIEW [Vol. 50:1493 in severe emotional distress. The Court rejected the claim but only after giving430 it extended treatment, reviewing each of the cases discussed above. In the end,431 the Court concluded: W e do not suggest that the [plaintiffs’] fear and anxiety during the flight were trivial. But there was simply nothing before the trial court, and by extension before this Court, suggesting that the [plaintiffs’] fear and anxiety were anything other than temporary. And it is pure speculation to assume that the [plaintiffs’] later feelings of being bothered, concerned, and nervous are causally related to the events aboard the flight. Because the physical impact in this case was slight to nonexistent, allowing an emotional distress claim to proceed based on the [plaintiffs’] lingering mental anguish would essentially abrogate the requirements of Indiana’s modified impact rule.432 Focus on the last sentence: The Court was unwilling to modify further the modified impact rule; the Court had done as much as it was going to do. In Smith v. Toney, the Court addressed the relative bystander rule. A man433 on his way home from visiting his fiancée was killed in a collision between his automobile and a semi-trailer. A pproximately two hours after the accident was434 declared a fatality and after the body had been placed in a body bag, the man’s fiancée, by now searching for her missing fiancé, drove by the scene of the accident at about the time his body was being moved to the coroner’s vehicle.435 She later sued, alleging severe emotional trauma and distress from the death of her fiancé.436 T he facts implicated two aspects of the relative bystander test enunciated in Groves v. Taylor: whether the plaintiff fiancée “came on the scene soon after the death” of her fiancé; and whether the victim’s relationship with the plaintiff was “analogous to a spouse.”437 The Court first addressed whether these determinations were questions of fact or law and, following the Bowen decision from W isconsin, held the latter.438 “These criteria are derived from the public policy considerations that underlie and define a claim for negligent infliction of emotional distress. They are therefore issues of law for a court to resolve.”439 430. Id. (“Recalling the events of September 11th, and recalling also a passenger’s attempt to detonate a shoe bomb aboard an airplane with the use of a match, the [plaintiffs] described their ordeal as one in which they ‘have never been so scared in their entire lives.’”). 431. Id. at 995-96. 432. Id. at 1000. 433. 862 N.E.2d 656 (Ind. 2007). 434. Id. at 658. 435. Id. 436. Id. 437. Id. at 657. 438. Id. at 658. 439. Id. at 660 (citing Bowen, 517 N.W.2d at 445-46). 2017] A LOOK BACK 1547 Next, the Court took up the question of whether engaged couples are in relationships “analogous” to marriage and held not.440 Lastly, the Court considered the “soon after the death of a loved one” element. “The scene viewed by the claimant,” the Court held, “must be essentially as it was at the time of the incident, the victim must be in essentially the same condition as immediately following the incident, and the claimant must not have been informed of the incident before coming upon the scene.”441 Consider these three holdings: The Court decided each in a way that circumscribed the relative bystander rule. The Court had done as much as it was going to do. VII. C ONCLUSION: A N U NAPPRECIATED R ELATIONSHIP BETW EEN W ORKERS’ C OM PENSATION AND TORT LAW Part I.B of this Article discussed the way in which progressives secured enactment of workers’ compensation statutes during the Historical Age, thereby am eliorating some of the harshest doctrines of the Conservative Common Law E ra. Even though workers’ compensation statutes are now a century old, their interpretation provides a steady diet of interesting cases for courts. M any of those cases are extremely interesting but are beyond the scope of this Article.442 That workers’ compensation laws provide injured employees a statutory rather than common law remedy for workplace injuries is well recognized and appreciated. Less so is that a great deal of common, statutory, and constitutional 440. Id. at 660-62. The Court spent a great deal of time on this point, giving three reasons for limiting recovery to married couples, including that “marriage affords a bright line and is often adopted by the legislature in defining permissible tort recovery.” Id. at 661. I was concerned the Court was the excising the “analogous to” language from the relative bystander test and wrote to protest that anything the Court said beyond engaged couples would be dicta. Id. at 663 (Sullivan, J., concurring). My concern, in the decade before the law recognized same-sex marriage, see Obergefell v. Hodges, 135 S. Ct. 2584, (2015), was that same-sex couples have the benefit of the relative bystander rule. 441. Smith, 862 N.E.2d at 663. 442. I will mention one particularly interesting workers’ compensation case, Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008 (Ind. 2010), of which I was the author. A farmer engaged an independent contractor to perform some work on farm property. Id. at 1010. An employee of the independent contractor was injured on the job. Id. As it turned out, the contractor did not have workers’ compensation insurance and so the employee sued the farmer under a provision in the workers’ compensation statute that imposes liability upon a person who hires a contractor without verifying the contractor carries worker’s compensation insurance to the same extent as the contractor for the injury or death of any of the contractor’s employees. Id. (quoting IND. CODE § 22-3-2-14(b) (2016)). What made the case particularly interesting to me was that although this requirement had been part of the workers’ compensation statute since its enactment in 1929, none of the lawyers—or, for that matter, judges—involved in the case was aware of the provision or of it having been utilized in the past. The discovery and deployment of the statute on behalf of a client in need strikes me as an example of lawyering at its best. 1548 INDIANA LAW REVIEW [Vol. 50:1493 law results from workplace injury cases where workers’ compensation laws do not apply. Indiana’s workers’ compensation law provides the exclusive remedy for recovery of personal injuries “arising out of and in the course of employment.”443 A lthough the law bars a court from hearing any common law claim brought against an employer for a workplace injury, it does permit an action for injury against a third-party tortfeasor provided the third-party is neither the plaintiff’s employer nor a fellow employee. W ithout going into too much detail, the444 statute does prohibit double recovery, i.e., both collecting workers’ compensation and recovering against a third party. For our purposes, the operation of these445 provisions creates an incentive for an injured worker to seek recovery from a potential third party tortfeasor for a workplace injury where there is some prospect the amount of the recovery will exceed by some measurable amount the value of the workers’ compensation benefits.446 There are many such cases. Here are five examples— some using cases discussed earlier in this Article and some for the first time here— of significant contributions to Indiana com m on law, statutory law, and constitutional law that arose from workplace injuries but were litigated outside the confines of workers’ compensation. And the important point is that the holdings in these decisions apply well beyond workplace injury cases. A. Constitutional Law It is not at all surprising that many workplace injury claims brought against third party tortfeasors are product liability claims, for workers are often injured on the job while using machines or other products manufactured by third parties. One such case, discussed at some length in this A rticle (M cIntosh v. Melroe Co., A Division of Clark Equipment Co., Inc. ), was a workplace injury claim that447 challenge the very constitutionality of the IPLA. In M cIntosh, a worker had been injured in an accident involving a machine akin to a forklift, manufactured by the defendant and placed in service approximately thirteen years before the accident. The injured worker contended448 that to bar his claim on grounds of the IPLA’s ten-year statute of repose violated his rights under the Indiana Constitution’s open courts and right to remedy and the equal privileges and immunities clauses. The Court divided 3-2 in449 443. IND. CODE § 22-3-2-6 (2016). 444. Id. § 22-3-2-13. 445. See DePuy, Inc. v. Farmer, 847 N.E.2d 160, 171 (Ind. 2006). 446. For a good discussion of the interplay between workers’ compensation and third-party actions, see Spangler, Jennings & Dougherty P.C. v. Indiana Insurance Co., 729 N.E.2d 117, 119- 22 (Ind. 2000) (Shepard, C.J.). 447. 729 N.E.2d 972 (Ind. 2000). See discussion supra accompanying note 75. 448. McIntosh, 729 N.E.2d at 973-74. 449. Id. at 974. 2017] A LOOK BACK 1549 upholding the statute’s constitutionality.450 B. Strict Liability Another case discussed earlier in this Article involving a products liability claim arising from a workplace injury is Greeno v. Clark Equipment Co. In that451 case, an employee had been injured on the job at Dana Corp. using a forklift manufactured by Clark Equipm ent Co. The forklift was defective. The452 453 plaintiff was not in privity of contract with Clark Equipment. The court adopted454 Restatement (Second) of Torts section 424A and recognized a seller of an unreasonably dangerous product in a defective condition is liable for harm caused by the product without regard for either privity or negligence.455 C. Summary Judgment Still a third case discussed earlier in this Article involving a products liability claim arising from a workplace injury is Lenhardt Tool & Die Co. v. Lumpe.456 In that case, the plaintiff had been injured at work when a mold exploded.457 Because the mold had been destroyed and there were no records as to where the mold had originated, there was no way of establishing the defendant had manufactured the mold. The defendant sought transfer on grounds that458 summary judgment had been wrongfully denied; it would be impossible for the plaintiff to prove its liability. The Court denied transfer but Justice Boehm459 wrote a lengthy dissent to the denial of transfer, which remains to this day the strongest argument in print against Indiana’s non-movant friendly summary judgment standard.460 D. Comparative Fault An important change in Indiana tort law not heretofore discussed was the 450. Id. at 978, 984. Justice Boehm’s opinion also contains an extraordinarily interesting comparative analysis of the “remedy by due course of law” guarantee of the Indiana Constitution and the “due process” guarantees of the federal Constitution, including discussions of their procedural and substantive prongs. 451. 237 F. Supp. 427 (N.D. Ind. 1965). See discussion supra accompanying note 42. 452. Id. at 428. 453. Id. 454. Id. 455. Id. at 433. 456. 735 N.E.2d 221 (Ind. 2000) (order denying transfer) (Rucker, J., not participating); see also Lenhardt Tool & Die Co. v. Lumpe, 722 N.E.2d 824 (Ind. 2000) (Boehm, J., dissenting from denial of transfer). See discussion supra accompanying note 117. 457. Lenhardt, 722 N.E.2d at 825 (Boehm, J., dissenting from denial of transfer). 458. Id. 459. Id. 460. See generally id. 1550 INDIANA LAW REVIEW [Vol. 50:1493 adoption in 1983 of the Indiana Comparative Fault Act (“ICFA”). In Control461 Techniques, Inc. v. Johnson, an employee at the LTV Steel Plant in East462 Chicago sustained serious burns while measuring the voltage of a circuit breaker. He sued the electric company that installed the breaker and the463 manufacturer that designed and built the circuit breaker.464 At issue was whether the ICFA had abrogated or otherwise modified the common law tort doctrine of “superseding” or “intervening” cause. The465 requirement of causation as an element of liability for a negligent act includes the requirement that the consequences be foreseeable. A superseding cause that466 forecloses liability of the original actor is, by definition, not reasonably foreseeable by that actor. Accordingly, the Court said, the doctrine of467 superseding cause is simply an application of the larger concept of causation in effect both before and after the adoption of the ICFA.468, 469 461. Pub. L. No. 317-1983, § 1, 1983 Ind. Acts 1930 (codified at IND. CODE § 34-51-2 (2016)). For more information on the legislative history of this and other Indiana tort reform statutes, see supra note 60. Some version of comparative fault has been adopted by statute in well over half of the fifty states, and several other jurisdictions have adopted comparative fault principles by judicial decisions. Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 107 (Ind. 2002). 462. 762 N.E.2d 104. 463. Id. at 106. 464. Id. 465. Id. at 107-08. 466. Id. at 108. 467. Id. 468. Id. 469. Justice Boehm’s opinion points out comparative fault statutes addressed two major concerns. First, they abolished the “harsh common law rule that a plaintiff contributorily negligent to any degree was barred from all recovery.” Control Techniques, Inc., 762 N.E.2d at 109. Second, they also abolished the rule of “joint and several liability” where “a defendant whose negligence contributed only slightly to the plaintiff’s loss could be required to pay for all of the plaintiff’s damages and the plaintiff could proceed against and collect from the defendant of choice.” Id. Justice Dickson took strong exception to the second of these two observations. In his view, the ICFA did not “alter[ ] the common law rule of joint and several liability among joint tortfeasors.” Id. at 110 (Dickson, J., dissenting). Invoking the derogation canon, see discussion accompanying footnote 17, Justice Dickson argued the ICFA “did not by express terms or unmistakable implication abrogate the common law principle of joint and several liability for joint tortfeasors.” Id. at 112. But see Edgar W. Bayliff, Drafting and Legislative History of the Comparative Fault Act, 17 IND. L. REV. 863, 867 (1984) (“[L]imiting recovery against each defendant to the percentage of his own fault . . . implicitly abrogates the traditional rule of joint and several liability for concurrent wrongs, but only in certain instances [not relevant in Control Techniques].”). 2017] A LOOK BACK 1551 E. Duty of Persons with M ental Disabilities In this last case, Creasy v. Rusk, a certified nursing assistant in a nursing470 home sued her patient, a person with Alzheimer’s disease, for injuries she suffered when he kicked her while she was trying to put him to bed.471 At issue was whether the general duty of care imposed upon adults with mental disabilities is the same as that for adults without mental disabilities. The472 defendant argued Indiana precedent dictated that an adult with a mental disability is held to a standard of care “proportionate to his or her capacity.” The473 controlling rule, the Court of Appeals agreed, was that “a person’s mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists.”474 Arrayed against this precedent was a rule generally accepted in other jurisdictions that mental disability does not excuse a person from liability for “conduct which does not conform to the standard of a reasonable man under like circumstances.” This was the position taken by the American Law Institute.475 476 In addition, there had been a host of statutory enactments since the 1970s that reflected policies to deinstitutionalize people with disabilities and integrate them into the least restrictive environment. National policy changes had led the way for some of Indiana’s enactments in that several federal acts either guarantee the civil rights of people with disabilities or condition state aid upon state compliance with desegregation and integrationist practices. 477 C reasy overruled precedent and adopted the A.L.I. position “that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tort-feasor’s capacity to control or understand the consequences of his or her actions.”478 These five examples illustrate how tort law extending well beyond the workplace often emanates from workplace injuries notwithstanding the existence of the workers’ compensation remedy. And, in point of fact, the tort law holdings 470. 730 N.E.2d 659 (Ind. 2000). I was the author of this opinion. I must acknowledge the extraordinary assistance of my law clerk, Kathy L. Osborn, in writing Creasy. 471. Id. at 660-61. 472. Id. at 661. 473. Id. at 663. 474. Id. (internal quotation marks omitted). 475. Id. (quoting RESTATEMENT (SECOND) TORTS § 283B). 476. Id. (citing RESTATEMENT (SECOND) TORTS § 283B). 477. Id. at 664-65 (citing, inter alia, Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 (1994) (requiring that children with disabilities receive a free appropriate public education in the least restrictive environment in states that accept allocated funds) and Americans with Disabilities Act, 42 U.S.C. § 12132 (1994) (providing a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities)). 478. Id. at 666-67. 1552 INDIANA LAW REVIEW [Vol. 50:1493 in each of these workplace injury cases have been used to resolve issues arising in other factual settings. As I have said, lawsuits against third-party defendants479 in workplace injury cases and the development of tort law generally is an unappreciated relationship but a profoundly important one. 479. See, e.g., Land v. Yamaha Motor Corp., 272 F.3d 514, 518 (7th Cir. 2001) (in a boating accident case, applying McIntosh’s holding on the constitutionality of the IPLA’s statute of repose); Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 300 (7th Cir. 1985) (in a motor vehicle accident case, applying Greeno’s holding adopting Restatement (Second) § 402A); Comm’r of Ind. Dep’t of Ins. v. Black, 962 N.E.2d 675, 681 (Ind. Ct. App.) (in a medical malpractice case, adopting Justice Boehm’s dissent in Lenhardt Tool & Die on the correct standard for summary judgment), trans. granted, opinion vacated, 969 N.E.2d 86 (Ind. 2012) (see discussion supra accompanying note 126); Hill-Jackson v. FAF, Inc., No. 1:10-CV-01296-TWP, 2011 WL 3902772, at *1 (S.D. Ind. Sept. 6, 2011) (in a multi-vehicle accident case, applying Control Techniques’ holding on the relationship between the ICFA and the common law tort doctrine of superseding or intervening cause); Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190, 1194 (Ind. 2007) (in a lawsuit by a student against a school corporation for injuries received during rehearsal of school play, applying Creasy’s holding that an individual over the age of fourteen must exercise the reasonable and ordinary care of an adult). A. Conservative Common Law D. “Tort Reform” Legislation and the Courts’ Response Turning to the merits, the Chief Justice wrote, III. Medical Malpractice IV. The Collateral Source Rule and Stanley v. Walker