Transportation Law - 2021 -


1. What are the legal considerations in your State governing the admissibility or preventability in utilizing the self-critical analysis privilege and how successful have those efforts been?

Indiana does not recognize the self-critical analysis privilege.  Scroggins v. Uniden Corp. of Am., 506 N.E.2d 83, 86 (Ind. Ct. App. 1987).  In Scroggins, the Indiana Court of Appeals found that “no privilege against production of self-critical analysis exists in Indiana.”  Id. at 86.  The court reasoned that neither Congress nor the Indiana legislature had chosen to create a self-critical analysis privilege, and Indiana courts are reluctant to create common-law privileges.  Id. at 85–86.  As a result, the court refused to create one.  Id. at 86.

The Indiana Court of Appeals has also held that post-accident investigations are admissible, and evidence of post-accident investigations is not automatically excluded as subsequent remedial measures.  J.B. Hunt Transport, Inc. v. Guardianship of Zak, 58 N.E.3d 956, 967 (Ind. Ct. App. 2016).  However, information prepared in anticipation of litigation by the defendant, counsel for defendant, or agents of the defendant, is protected by work product and the attorney-client privilege.  Richey v. Chappell, 594 N.E.2d 443, 445 (Ind. 1992).  See also Ind. Code § 34-46-3-1(1).

2. Does your State permit discovery of 3rd Party Litigation Funding files and, if so, what are the rules and regulations governing 3rd Party Litigation Funding?

Third-party litigation funding is authorized by Indiana’s Civil Proceeding Advance Payments (“CPAP”) statute.  See generally Ind. Code § 24-12 et seq.  The statute extends the attorney-client privilege and work product doctrine to the funding companies and prevents parties from subpoenaing privileged information.  Id. § 24-12-8-1.  The Indiana statute is viewed as a consumer-friendly law because consumers only pay upon receipt of their money, and interest rates are capped with a 36% ceiling.  Id. § 24-12-4.5-2.  The transaction is also not considered to be a loan.  Id. § 24-12-6-2.  Licensing requirements are necessary for CPAP providers who enter into more than 15 transactions in any calendar year.  Id. § 24-12-9-1.  The statute calls for certain transaction requirements, including an attorney acknowledgement, as well as certain disclosure requirements.  Id. § 24-12-2-1.  It also lists a number of provider prohibitions and prevents attorneys from having financial interests in the CPAP providers.  Id. §§ 24-12-3-1, 4-1.

3. Who travels in your State with respect to a Rule 30(b)(6) witness deposition; the witness or the attorney and why?

Indiana State Court: The general rule is that, absent a court order, the plaintiff may not compel a non-resident defendant to attend a deposition outside the geographical limits specified in Trial Rule 45(D)(2). Season-Sash Manufacturing Co. v. Pancake, 421 N.E.2d 652 (Ind.Ct.App.1981). The rationale for this rule was discussed in Undraitis v. Luka, “a defendant may insist upon being deposed in the district where he resides … the defendant is an involuntary participant.” 142 F.R.D. 675 (N.D.Ind.1992).

According to Indiana Trial Rule 45(D)(2):

An individual may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the state and county wherein he is served with a subpoena, or within forty [40] miles from the place of service, or at such other convenient place as is fixed by an order of court. A non-resident plaintiff may be required to attend at his own expense an examination in the county of this state where the action is commenced or in a county fixed by the court.

As noted in Rule 45(D)(2), a party seeking the deposition may request a court order for relief from the general rule. Therefore, it remains in the discretion of the trial court to determine whether a non-resident defendant must attend a deposition in Indiana and which party should bear any travel expenses associated with attending that deposition. Trial Rule 26(C); Undraitis, 142 F.R.D. 675 (non-resident defendant was held to have waived right to challenge place of deposition by waiting too long to object). Obtaining a court order to require a witness to travel outside of Trial Rule 45’s parameters is a prerequisite for the party seeking the relief. See, Season-Sash Mfg. Co., 421 N.E.2d 652 (Trial court erred in failing to grant motion to quash subpoena for deposition of defendant corporation’s vice-president-general manager, who was resident of Kentucky, scheduled to be taken at plaintiffs’ lawyer’s office in Indiana, where location for deposition was not first fixed by court order. Rule TR. 45(D)(2)).

Indiana Federal Court: In federal court, the general presumption is that the depositions of a corporation through its agents should be taken at the corporation’s principal place of business. Fed. Rules Civ. Proc. Rule 30(b)(6); 28 U.S.C.A; Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333 (N.D. Ind. 2000). However, this is not an unyielding rule. For example, in a foreign corporation, subject to the in personam jurisdiction of the district court, can be ordered under the Federal Rules of Civil Procedure to produce its officers, directors, or managing agents in the United States to give deposition testimony. Custom Form Mfg., Inc., 196 F.R.D. 333

4. What are the benefits or detriments in your State by admitting a driver was in the “course and scope” of employment for direct negligence claims?

One benefit to admitting that a driver was in the course and scope of employment is that it can prevent plaintiff from pursuing claims for negligent hiring, retention, or supervision and all relevant “bad facts” that follow.  In Sedam, the Indiana Supreme Court ruled that respondeat superior and negligent hiring, training, and/or supervision claims cannot be brought simultaneously if the employer admits that an employee was acting within the course and scope of his or her employment.  Sedam v. 2JR Pizza Enters., LLC, 84 N.E.3d 1174, 1176–77 (Ind. 2017).  The court reasoned that the two claims are inconsistent as the former is within the scope of employment whereas the latter requires an act outside the scope of employment.  Id. at 1177.  Thus, admitting an employee was acting within the course and scope of employment precludes the other negligence claims as prejudicial to the employer, inconsistent, and duplicative.  Taken together with the comparative fault act, this ruling effectively allows the employer to absorb the employee’s apportionment of fault while limiting the employer’s fault to that of its employee.  Id. at 1178–79.

5. Please describe any noteworthy nuclear verdicts in your State?

Binkowski v. Grand Island Express, et al. (2018).  A jury in Valparaiso, Porter County, Indiana awarded $16.5 million.


In Binkowski, plaintiff was stopped at a red light and rear-ended by a semi-truck driver traveling approximately 65 mph who was texting his employer at the time of the accident and failed to brake.  Plaintiff was severely injured with moderate brain damage and spent 10 days in a coma.  At trial, plaintiff argued the trucking company failed to implement a policy prohibiting unlawful cell-phone use by its drivers or otherwise take corrective action despite knowing such conduct by its drivers was taking place.  Plaintiff also sought adverse jury instructions related to the driver allegedly deleting his personal cell phone data following a court order requiring retention of such information as well as defendants’ failure to produce a video recording of the crash from the driver’s dash camera.  Defendants admitted liability for the accident but contested all other allegations.

The jury awarded $9.5 million in compensatory pain and suffering and $7 million in punitive damages.  Punitive damages were awarded based upon the jury finding that the driver sent text messages to his employer while driving, and the company failed to implement policies or train drivers against texting while driving despite knowing such unlawful conduct was occurring.

6. What are the current legal considerations in terms of obtaining discovery of the amounts actually billed or paid?

In Indiana, a Plaintiff can seek both the amount charged by the medical provider or the amount paid to the medical provider. An injured plaintiff is entitled to recover damages for medical expenses that were both necessary and reasonable. See Cook v. Whitsell-Sherman, 796 N.E.2d 271, 277 (Ind. 2003). Statements of charges for medical, hospital, or other health care expenses for diagnosis or treatment are admissible into evidence and are prima facie evidence that the charges are reasonable. Ind. R. Evid. 413. However, the opposing party may produce contradictory evidence to challenge this prima facie showing of reasonableness of the proffered medical bills. Cook, at 277.  The actual amount charged to the plaintiff or the amount actually paid by him may tend to prove the reasonable and fair value of the services rendered to the plaintiff but are not conclusive on the issue. Chemco Transp., Inc. v. Conn, 506 N.E.2d 1111, 1115 (Ind. Ct. App. 1987) (quoting Herrick v. Slayer, 160 F. Supp 25, 29 (N.D. Ind. 1958)).

However, the Indiana Supreme Court decision in Stanley v. Walker held that amounts paid by private health insurance providers in full satisfaction of medical services are admissible to determine the reasonable value of the medical services that were performed. Stanley v. Walker, 906 N.E.2d 8852, 855 (Ind. 2009). The court noted that an injured plaintiff is entitled to recover damages for medical expenses that were both necessary and reasonable. Id. at 855 (citing Cook v. Whitsell-Sherman, 796 N.E.2d 271, 277 (Ind. 2003)). It found that this measure of damages cannot be read as permitting only full recovery of medical expenses billed to the plaintiff nor can it be the amounts actually paid. Id. at 856. The Court reasoned that the focus is on the reasonable value, not the actual charge. Id. at 856-57. As a result, the Court held that the collateral source statute does not bar evidence of discounted amounts in order to determine the reasonable value of medical services. Id. at 858.

In 2016, the Indiana Supreme Court reaffirmed its holding in Stanley and expressly held that the principles set forth in Stanley, which permit the admission of both the amounts billed and those accepted by medical providers, apply with equal force to government benefits such as Medicare and Medicaid. Patchett v. Lee, 60 N.E.3d 1025, 1032 (Ind. 2016). The Court further stated that its decision solidified Indiana’s desire to “chart a middle course by admitting billed charges and accepted amounts.” Id. at 1032.

With respect to post-judgment reductions or off-sets, evidence of an advance payment is not admissible until there is a final judgment in favor of the plaintiff. In this case, the court shall reduce the judgment to the plaintiff to the extent of the advance payment. The advance payment inures to the exclusive benefit of the defendant or the defendant’s insurer making the payment. Ind. Code § 34-18-16-2. If the advance payment exceeds the liability of the defendant or the insurer making the advance payment, the court shall order any adjustment necessary to equalize the amount that each defendant is obligated to pay, exclusive of costs. An advance payment in excess of an award is not repayable by the person receiving the advance payment. Id.

7. How successful have efforts been to obtain the amounts actually charged and accepted by a healthcare provider for certain procedures outside of a personal injury? (e.g. insurance contracts with major providers)

As this only arises in limited instances, the opportunities to seek the amounts actually charged and accepted by a healthcare provider for certain procedures outside of a personal injury are few. When this information is sought efforts have been mostly unsuccessful due to uncooperative providers citing arguments concerning proprietary information, outside the scope of discoverable information to a nonparty, and that said information is irrelevant if not directly related to a personal injury claimed by a party.

8. What legal considerations does your State have in determining which jurisdiction applies when an employee is injured in your State?

Generally, the Indiana Workers’ Compensation Act applies to every employer and employee whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country. I.C. §22-3-2-20. Also, Hagenbeck v. Leppert, 117 N.E. 531 (Ind. App. 1917)

Where injuries occur outside of the state of Indiana, jurisdiction may exist nonetheless to file a claim under the Indiana Workers’ Compensation Act when (1) the employee resides within the state of Indiana; (2) there is an employment contract (written, oral or implied), Elkhart Sawmill Co. v, Skinner, 42 N.E. 2d 412 (Ind. App. 1942); (3) the employee performs work in the state, Finkel v. General Acci Fire & Life Assurance Corp., 231 F.2d 307 (7th Cir. 1956); or (4) the employer insured workers compensation liability through contract of insurance in the state, Ben Wolf Truck Lines v. Bailey, 1 N.E. 2d 660 (Ind. App. 1936).

The employee may have the right to file a claim for benefits in all states in which there might be coverage. However, it is unlawful for an employee to receive benefits under the Indiana Workers’ Compensation Act at the same time the employee receives workers compensation benefits for the same injury under laws of any other state. See, 8 A.L.R. 628 (Voluntary payment of compensation under statute of one state as bar to claim or ground for reduction of claim of compensation under statute of another state.)

9. What is your State’s current position and standard in regards to taking pre-suit depositions?

Indiana’s Standard for Pre-Suit Deposition: Depositions before an action is filed (or pending an appeal) are governed by Indiana Trial Rule 27, which clearly outlines the standard for the same, and states:

(A) Before Action

(1) A person who desires to perpetuate the person’s own testimony or that of another person regarding any matter that may be cognizable in any court in which the action may be commenced may file a verified petition in any such court in Indiana. The petition shall be entitled in the name of the petitioner and shall state facts showing:

(a) that the petitioner expects to be a party to an action cognizable in a court of this or another state;

(b) the subject-matter of the expected action and his interest therein;

(c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;

(d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and

(e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty [20] days before the date of hearing the notice shall be served in the manner provided in Rule 4 for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(C) apply.

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject-matter of the examination or written interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the court of the state in which it is taken, it may be used in any action involving the same subject-matter subsequently brought in a court of this state in accordance with the provision of Rule 32.

(C) Perpetuation by Action. This rule does not limit the power of a court to entertain an         action to perpetuate testimony.

(D) Filing Deposition. The filing or custody of any deposition or evidence obtained under this rule shall be in accordance with Trial Rule 5(E)

Indiana’s Position on Pre-Suit Depositions:

Courts have made it clear that litigants should not use the rule under which depositions may be taken in advance of litigation as a “fishing expedition” to discover grounds for a lawsuit, and, if found, to determine against whom the action should be initiated. Cleveland Range, LLC v. Lincoln Fort Wayne Associates, LLC, App.2015, 43 N.E.3d 622, transfer denied 43 N.E.3d 244. Rather, the rule authorizing depositions in advance of litigation is to be used when a certain witness’ testimony might become unavailable over time, and not to provide a method of discovery to determine whether a cause of action exists; in other words, the rule may be invoked to memorialize evidence that is already known, rather than as a pre-trial discovery device. Id.

It is worth noting that the Court of Appeals reviews for an abuse of discretion a trial court’s decision to grant or deny a petition to perpetuate testimony in advance of litigation. Id.

10. Does your State have any legal considerations regarding how long a vehicle/tractor-trailer must be held prior to release?

Indiana does not have any specific rulings on specifically how long a vehicle/tractor-trailer must be held prior to release. However, existing case law would suggest that a transportation company should have and follow a written retention policy regarding this potential evidence. If the company follows a written retention policy the chances of sanctions are mitigated.

Even where the court finds an intentional spoliation, it is not mandatory that sanctions be imposed. Rather, the trial court should implement an approach by which it balances the nature of the offense against the harm suffered by the non-offending party because lost evidence is not available. Factors the court may consider include the culpability of the spoliating party; the prejudice to the non-offending party; the degree of interference with the judicial process; whether lesser sanctions are available to remedy any harm and deter future acts of spoliation; the amount of time lapsing from the date the spoliating party took possession of the evidence and the date of its loss or destruction; protocols adopted and followed by the spoliating party to prevent the loss of evidence, such as a document retention policy; whether evidence has been irretrievably lost and, if so, the circumstances of that loss; the existence of available alternatives that would allow the non-offending party to prove its case without the lost evidence; and whether sanctions will unfairly punish a party for the misconduct or mistake of his attorney or expert. §27.9.Spoliation of evidence; sanctions, 22 Ind. Prac., Civil Trial Practice § 27.9 (2d ed.)

11. What is your state’s current standard to prove punitive or exemplary damages and is there any cap on same?

Standard to prove punitive damages: For a tort action, punitive damages may be awarded only where there is clear and convincing evidence that a defendant subjected others to probable injury with an awareness of such impending danger and with heedless indifference of the consequences. Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019, 1023 (Ind. 1986). The purpose of punitive damages is to deter a defendant and others from similar conduct in the future. Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173, 180 (1976). However, punitive damages cannot be recovered against the estate of a defendant because the purpose of punitive damages to punish the wrongdoer and prevent future misconduct is no longer achievable against the defendant, instead, the punitive damages would punish the presumably innocent heirs. Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135 (Ind. 2005).

Cap on punitive damages: For cases where compensatory damages are recoverable, under the Indiana Tort Reform Act, a punitive damage award may not be more than the greater of: (1) three (3) times the amount of compensatory damages awarded in the action, or (2) fifty thousand dollars ($50,000). Ind. Code § 34-51-3-4. If the trier of fact awards punitive damages that exceed the statutory limits, the court must reduce the punitive damage award with regard to the statutory limits. Ind. Code § 34-51-3-5.

12. Has your state mandated Zoom trials? If so, what have the results been and have there been any appeals.

No, in fact, jury trials have been periodically suspended by the Indiana Supreme Court due to the COVID-19 pandemic.  At the time this Compendium was authored, the most recent suspension expires March 1, 2020. However, most courts are proceeding with other hearings and conferences either virtually or telephonically.

In response to COVID-19, emergency petitions for administrative orders under Administrative Rule 17 have been filed by trial courts, and the Supreme Court has issued orders in these matters. The Supreme Court ordered trial courts to submit their transition plans for expanded operations, and as they are approved, they are posted here:

There have yet to be any appeals concerning virtual/Zoom trial in Indiana.

13. Has your state had any noteworthy verdicts premised on punitive damages? If so, what kind of evidence has been used to establish the need for punitive damages? Finally, are any such verdicts currently up on appeal?

Indiana does not recognize an independent cause of action for punitive damages.  Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135, 137–38 (Ind. 2005).  This means that compensatory damages are a prerequisite to an award of punitive damages.  First Bank of Whiting v. Schuyler, 692 N.E.2d 1370 (Ind. 1998).