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READERS FORUM FOR AUGUST 5th and 6th, 2016
WHATS ON YOUR MIND TODAY?
“IS IT TRUE†will be posted on this coming Monday
Todays READERS POLL question is: Should City Council Finance Chairman Dan McGinn and Controller Russ Lloyd Jr start speaking out on the 2017 budget shortfalls?
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Reversal: Kroger Must Face Claim For Filling Script In Wrongful Death Case
Reversal: Kroger Must Face Claim For Filling Script In Wrongful Death Case
Dave Stafford for www.theindianalawyer.com
Kroger must face a claim that its potential negligence in filling a prescription contributed to the death of a woman after she sought treatment for acute bronchitis, the Indiana Court of Appeals ruled Thursday in a reversal.
A doctor and his employer who are unnamed in the court record prescribed Levofloxacin to Sharon K. Clearwaters despite knowing she had a chronic heart condition for which she was taking Amiodarone and Warfarin, for which Levofloxacin is counter-indicated. The drug can cause interactions including causing the heart to beat out of rhythm.
The day the prescription was filled at a Kroger pharmacy in December 2012, Clearwaters went into cardiopulmonary arrest and died after taking the Levoflaxacin. Clearwaters’ estate filed a notice of suit in November 2013 against the health care providers and Kroger.
In August 2014, the doctor and his employer settled with David Shelton, the personal representative of Clearwaters’ estate, and they were later dismissed from the complaint. Kroger amended its answer to assert a non-party defense. Kroger argued it is entitled to a credit or set-off from the health care providers’ settlement. Kroger filed a motion for partial summary judgment that was granted by Marion Superior Judge James B. Osborn.
This was error, the Court of Appeals ruled on an interlocutory appeal that was accompanied by an amicus brief on behalf of the Indiana Trial Lawyers Association.
“In this case, the (Indiana Department of Insurance) determined that Kroger was not a qualified health care provider under the Medical Malpractice Act,†Judge Cale Bradford wrote for the panel, reversing in David Shelton, as Personal Representative of the Estate of Sharon K. Clearwaters v. Kroger Limited Partnership I, 49A02-1601-CT-75. “Kroger, therefore, was not exempted from the Comparative Fault Act.†As such, “Kroger was not entitled to receive a credit or set-off with relation to Shelton’s settlement.
“We further instruct the trial court that on remand, Kroger may only seek to limit its potential liability through its asserted non-party defense,†the panel concluded.
Rise Up Captures Tough Allowance
Preemptive Strike Wins 2yo RaceÂ
 HENDERSON, Ky. (Aug. 5, 2016) — Rise Up led all the way to take Ellis Park’s $42,000 seventh race by 3 1/4 lengths Friday in near track-record time under jockey Brian Hernandez Jr.
It was a money-won allowance race with a $50,000 claiming option. But it attracted what might have been the best group of older male horses in one race at Ellis Park in years, with five of the seven starters being stakes-winners.
“This was really a small graded race more than anything,†said Hernandez, who rode Rise Up for trainer Tom Amoss. “But our horse figured. He’s a millionaire. He’s a nice horse, and he’s fast. He had the 1 hole, and like Tom said, he needs the lead. We went ahead and put him on the lead and let him be fast.â€
Amoss watched the race while onset as a analyst on the New York Racing Association’s Saratoga Live broadcast.
“There’s no secret to the kind of horse Rise Up is,†Amoss said by phone during a commercial break. “He’s a horse whose heart gets big if he can make the lead out of the gate. We were able to do that today, and he ran a really good race. He ran them off their feet.
“I love this guy. I’m proud of him. It was his first win of the year, but he has to have things his way. And that makes him tough. It really does.â€
Rise Up got away with an uncontested first quarter-mile in 23.63 seconds, then picked up the pace with a 22.42 second-quarter. He had plenty left to down-gear to a final eighth-mile in 12.79 seconds to prevail comfortably while finishing the mile in 1:34.77. That was 36/100th of a second off Looking Cool’s 2014 track record. Rise Up paid $8 to win as the co-second choice.
“The track is quicker. But he ran fast as well,†Hernandez said. “Tom said he has a couple of issues where sometimes he gets a little nervous in the gate and that’s what gets him beat. But he stood in there like a perfect gentleman. And when he left there like he did, I just let him go on and be fast… Then you force whoever is behind you to get to chasing you a little bit and kind of rip the heart out of them more than anything.â€
Rise Up, a son of Lockport Harbor owned by Paul Van Doren, now is 9-3-5 in 26 starts, earning $1,074,925.
Ulanbator, winner of last year’s Schaefer Memorial at Indiana Grand, put on the closest heat but still was a couple of lengths back early on under Chris Landeros.Â
“I wish there was more speed, for somebody to go get him,†Landeros said of Rise Up. “I didn’t want to take anything away from my horse, because I was already in a position. But I also didn’t want to use it too early. Because I wanted him to finish today. He’s run against some tougher fields, but my main thing was to get his confidence and to let him run late. I wish there had been more pace. But regardless, he ran hard and fought to the end.â€
Raagheb and Joe Rocco Jr. rallied to finish another three-quarters of a length back in third, followed by Coin Broker, favored Cougar Ridge, Jessica’s Star and Far Right, last year’s late-running winner of Oaklawn Park’s Smarty Jones Stakes and Grade 3 Southwest and the Arkansas Derby runner-up to Triple Crown winner American Pharoah.
2-Year-Old Watch: Colebrook Strikes Again
Preemptive Strike, ridden by Joe Rocco, led all the way in his second start to capture Friday’s 5 1/2-furlong turf maiden race by a half-length over the promising Dig Charlie Dig in the field of eleven 2-year-olds.
Preemptive Strike is out the same mare as Surgical Strike, winner of the Grade 3 Arlington Classic on grass and Turfway Park’s John Battaglia on Polytrack. Both horses are trained by Ben Colebrook, who will run another one of their relatives, the 2-year-old debut-winning filly Caroline Test, in Saturday’s Ellis Park Juvenile against males.
In his first start, Preemptive Strike, a son of Florida Derby and Blue Grass winner Harlan’s Holiday, stopped badly to lose by 33 lengths on dirt at Churchill Downs.
“I couldn’t believe how bad he ran, because I really love the horse,†Colebrook said. “… He’s always trained like a really nice horse. The family says grass, and Harlan’s Holidays can go either way. But I think we’ll take him to Kentucky Downs and run him in the juvenile stakes down there.â€
The victory was particularly gratifying because Preemptive Strike had shipped to Toronto to run in a six-furlong Polytrack race while Colebrook had a filly running in a stakes at Woodbine.Â
“There was a hiccup: The Fed-Ex (registration) papers didn’t get there, and they scratched him. So we had to take him all the way back,†the Keeneland-based Colebrook said, adding with a self-deprecating laugh, “I was on thin ice. I needed to win this one for the owner, because that was a big screw up.â€
Owner-breeders Beverly Anderson and Ed Seltzer have 16 horses with Colebrook, making them the trainer’s biggest client.
Dig Charlie Dig encountered trouble on the turn before closing well. Afterward, Louisville-based trainer Greg Foley was philosophical. Foley said he didn’t know that Dig Charlie Dig, making his first start, would run well on grass. But he wanted to find out before Kentucky Downs’ short meet next month offers the highest purses in America.
“Maybe they did us a favor. At the three-eighth pole, he really couldn’t get through there. We had some tough luck, but he ran great,†Foley said, adding of Dig Charlie Dig’s likely next start in a Kentucky Downs maiden race, “Now we run for $140,000. I feel pretty good about it. They kind of have you experimenting now for races over there. If you got one you think can run, you’re silly not to test them a little†on grass.
Racing continues Saturday at 12:50 p.m. Central for Ellis Park’s showcase card featuring the Grade 3 Groupie Doll and the $75,000 Ellis Park Juvenile. As always, admission and parking are free.
For more information, contact Jennie Rees, Ellis Park publicity, at tracksidejennie@gmail.com.
Treat Your Family To A Show At The Old National Events Plaza!
Murderer deprived court record gets new shot at relief
Dave Staffor for www.theindianalawyer.com
A man convicted of killing a female co-worker whose skeletal remains were found in a Johnson County marsh was denied an opportunity to use the court record to plead his counsel was ineffective as he sought post-conviction relief, the Indiana Court of Appeals ruled Friday.
Jason Dean Hubbell was convicted in November 1999 of the strangulation murder of Sharon Myers, with whom he had worked at an Arvin Industries plant in Columbus. Myers had disappeared on the morning of May 13, 1997; her remains weren’t discovered until nearly six months later.
Hubbell’s convictions for murder and criminal confinement and his 75-year sentence were affirmed by the Indiana Supreme Court in 2001, after which he began the first of a number of post-conviction relief petitions.
In this case, he argued ineffective assistance of counsel, but prosecutors objected to his questioning of a former defender by referring to court records that were not certified. The judge sustained those objections and denied Hubbell’s request for the court to obtain the certified record – something Hubbell could not do from the Department of Correction.
“Rather than obtaining the Record of Proceedings for Hubbell, the post-conviction court imposed on Hubbell ‘the affirmative duty to get the [R]ecord [of Proceedings] to the PCR Court,’†Judge Elaine Brown wrote for the panel in Jason Dean Hubbell v. State of Indiana, 03A01-1511-PC-1927. “It is not apparent how Hubbell could have accomplished that task when he is not a licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there appear to be a published procedure that allows him to do so.â€
“Under these facts, it is difficult to see what more could be expected of Hubbell as he was attempting to present his post-conviction arguments,†Brown wrote. “Until such time as electronic transcripts and records make this issue moot for all petitioners, pro se petitioners need to know how they may ensure the Records of Proceedings from their direct appeals are available for a post-conviction hearing.
“For the foregoing reasons, we reverse the post-conviction court’s denial of Hubbell’s petition for post-conviction relief, order the court to obtain the direct appeal Record, and permit Hubbell to question his witnesses and present his arguments with the benefit of a certified Record of Proceedings.â€
Indiana State Fair
Dear Friend,
The Indiana State Fair kicks off yesterday!
For each day of the fair, there are opportunities for discounts — just visit indianastatefair.com for details.
[Click here to tweet about the many state fair discounts]
There are 200 free things to do at the state fair, so don’t let these opportunities go by without enjoying one of our state’s most celebrated activities.
Download the 2016 Indiana State Fair mobile app for Apple or Android to easily navigate the many things to do and see.
Gates open daily at 8 a.m., while closing times vary. The last day of the fair is Sunday, Aug. 21.
Come on out and enjoy the free stage shows, hundreds of events and programs, 2.5 miles of food concessions and 10 acres of fun rides.
Sincerely,
State Rep. Wendy McNamara
Adopt A Pet
 Hope is a 1 ½-year-old female hound mix. Her exact breeds are unknown, but she has beautiful coloring with an even sweeter face! She was transferred in from Hopkins County Humane Society in Kentucky when they ran out of space. She has gotten along well with many other dogs since being here! Hope’s adoption fee is $100 and includes her spay, microchip, vaccines, and more. Contact the Vanderburgh Humane Society at (812) 426-2563 or at www.vhslifesaver.org for adoption details!
VANDERBURGH COUNTY FELONY CHARGES
 Below is a list of the felony cases that will be filed by the Vanderburgh County Prosecutor’s Office tomorrow.
Kent Taderro Bailey Jr. Unlawful possession of a firearm by a serious violent felon, Level 4 felony
Resisting law enforcement, Class A misdemeanor
Possession of marijuana, Class A misdemeanor
Possession of paraphernalia, Class C misdemeanor
Krissie Kay Kirk Dealing in methamphetamine, Level 2 felony
Unlawful possession of a syringe, Level 6 felony
Resisting law enforcement, Class A misdemeanor
Mary Williams Assisting a criminal, Level 6 felony
False informing, class B misdemeanor
Steven Wayne Lohman Failure of a violent sex offender to possess identification, Level 6 felony
Andrew David Beasley Domestic battery resulting in serious bodily injury, Level 5 felony
Jeffrey Scott Wade Attempted battery by means of a deadly weapon, Level 5 felony
Theft, Class A misdemeanor
Interference with the reporting of crime, Class A misdemeanor
Criminal mischief, Class B misdemeanor
Battery, Class B misdemeanor
Kenneth Ryshaun Robertson Possession of a narcotic drug, Level 6 felony
Elmer Jewel Miley Jr. Domestic battery, Level 5
Criminal confinement, Level 6 felony
Criminal mischief, Class A misdemeanor
OTTERS SWEEP THE WILD THINGS
With the 6-2 victory the Evansville Otters swept the Washington Wild Things in their three game series. The Evansville Otters came out hot in the first when they scored five of their six runs. Nik Balog started the scoring with his RBI-double to score Rolando Gomez. Right after that, Chris Breen had himself his own double to score Balog. Jeff Gardner hit a line drive straight to center which would bounce over the wall for a ground- rule double. Denzel Richardson would hit a rocket line drive down third base to score Gardner. Richardson would be brought in with an error by the shortstop.
The Wild Things would put a run up in the second with a solo home run by Kyle Pollock. In the third, the Wild Things brought the score to 5-2 with a RBI-double by David Popkins, and after the outstanding defense of the Otters no more runs were put on the board. The key moment in the game came in the seventh, the Wild Things had bases loaded with zero outs. Ken Frosch was brought in and got three straight outs to help preserve the victory.
The Otters will be on the road as they start a three game series against the Windy City Thunderbolts. Game one is Friday, August 5. First pitch is at 7:05 P.M. at Standard Bank Stadium.
Otters return to Historic Bosse Field next Friday, August 12th for a three game home stand against division leader Southern Illinois Miners.