Cases
Experience: Representative Cases: Lady Di's, Inc. v. Enhanced Services Billing, Inc.
654 F.3d 728
Blinn v. the Law Firm of Johnson, Beaman, Bratch, Beal
White, LLP
948 N.E.2d 814
Kovach v. Caligor Midwest, et al.
913 N.E.2d 193
Defense verdict by jury in case alleging race discrimination by physician against hospital in federal court
Lady Di's, Inc. v. Enhanced Services Billing, Inc.
654 F.3d 728
Dina M. Cox obtained summary judgment
order denying class certification on behalf of the nation's largest telecommunications billing clearinghouse in alleged cramming (i.e. unauthorized telephone billing) putative class action. On appeal, with oral argument to the Seventh Circuit, the court affirmed the district court's rulings that plaintiff's authorization of disputed charges on its phone bill precluded its claims of unjust enrichment
statutory deception,
that individual issues surrounding each customer's transaction precluded class certification. Additionally, the Seventh Circuit agreed with the defense that an alleged violation of Indiana's anti-cramming regulation could not serve as the factual predicate for its claims because Indiana's anti-cramming regulation does not apply to billing clearinghouses like Enhanced Services, which are not telephone companies or billing agents. This Opinion will likely have significant industry impact because it is one of the first published appellate opinions addressing class action cramming allegations
because it establishes favorable law on the application of state anti-cramming regulations.
Blinn v. the Law Firm of Johnson, Beaman, Bratch, Beal
White, LLP
948 N.E.2d 814 Dina M. Cox successfully defended a Law Firm in a legal malpractice action where Plaintiff claimed negligent representation by his defense lawyer in an underlying criminal case. Plaintiff alleged that that Law Firm was vicariously liable for the lawyer's conduct. Plaintiff voluntarily dismissed the Law Firm in hopes of obtaining a better settlement with the underlying defense attorney, who was also named individually in the suit. When the mediation failed, Plaintiff sought to reinstate his claims against the Law Firm. Ms. Cox successfully argued that the statute of limitations for Plaintiff's claims against the Law Firm had expired
therefore could not be reinstated. Ms. Cox also argued that the Journey's Account Statute did not apply to save Plaintiff's time-barred claim after voluntary dismissal, as asserted by the Plaintiff. The trial court agreed
denied Plaintiff's motion to reinstate the Law Firm. Plaintiff petitioned the Indiana Court of Appeals for certification of the issue of whether the Journey's Account Statute applied to save Plaintiff's time-barred claim, but the Court of Appeals denied Plaintiff's Motion for Certification. Undeterred, the Plaintiff re-filed the same claim against the Law Firm in another court. Ms. Cox argued collateral estoppel
obtained a dismissal of Plaintiff's claims. On appeal, the Indiana Court of Appeals affirmed the dismissal of legal malpractice claim.
Kovach v. Caligor Midwest, et al.
913 N.E.2d 193
In this medical device products liability case defended by Dina M. Cox, a minor child died of an accidental overdose of acetaminophen with codeine while recuperating from surgery. The cup used to administer the medicine was a plastic, translucent cup with a capacity of 30 milliliters. Just 15 milliliters was prescribed. The facts were undisputed that the administering nurse was familiar with the cup,
that the autopsy showed more than twice the prescribed level of medication in the minor's bloodstream. The nurse testified that she had filled the cup approximately half-way, although the minor's father testified that he witnessed the nurse administer a full cup of the medicine.
The minors' parents sued on the theory that the cup was not suitable for precision measurement,
that there should have been a corresponding warning. This argument was supported by the affidavit of an expert who testified that the cup had a 20 to 30% margin for error, but no warning with respect to that margin.
In this multi-defendant case, Dina was the first to move for summary judgment before the trial court on behalf of her product distributing clients
the other manufacturing defendants then followed suit. Dina deposed plaintiffs' pharmacy expert who was identified to defeat summary judgment
, thereafter, she moved to exclude his opinions in concert with the other defendants. Dina coordinated the joint summary judgment reply on behalf of the defense,
she participated in oral argument before the trial court. Summary judgment was granted in favor of the cup defendants. When this ruling was appealed by plaintiffs, Lewis Wagner led appellate briefing efforts before the Indiana Court of Appeals. Although the Court of Appeals revised the trial court ruling, the Indiana Supreme Court (on transfer) agreed that summary judgment was appropriate for the cup defendants.
In affirming summary judgment for the cup defendants, the Indiana Supreme Court reversed the Indiana Court of Appeals opinion which stood for the proposition that omitted warnings create a presumption of causation that defeats summary judgment
, in such cases, plaintiffs are not required to show that they would have read
heeded an adequate warning.
According to the Indiana Supreme Court, although cause-in-fact is typically a factual question reserved for determination by the jury, it becomes a question of law for the court where reasonable minds cannot differ. The Supreme Court held that summary judgment was appropriate based upon the cause-in-fact issue because the minor was administered more than twice the prescribed dose of the medication, whereas the plaintiffs' expert testified that the cup had just a 20 to 30% margin for error. Thus, even a warning about the cup's purported 20-30% margin of error would not prevented the harm caused by a presumed double-dose. As stated by the Court, the 'read-
-heed' presumption does not completely dispose of the causation issue in a failure-to-warn case. The most the presumption does is establish that a warning would have been read
obeyed. It does not establish that the defect in fact caused the plaintiff's injury. The Kovach opinion has since been cited numerous times in subsequent appellate opinions expounding upon the causation requirement in tort cases.
Defense verdict by jury in case alleging race discrimination by physician against hospital in federal court
Plaintiff physician claimed a contractual relationship with hospital based on having privileges at the hospital
alleged race discrimination under Section 1981
damage to his reputation exceeding $50 million. Jury entered verdict in favor of the defendant hospital after seven day federal trial.
Pro Hac Vice Admissions: Saline County Circuit Court, Arkansas
U.S. District Court, Eastern District of Arkansas
Los Angeles Superior Court of California
U.S. District Court, Central District of California
U.S. District Court, Eastern District of California
U.S. District Court, Northern District of California
Circuit Court of Jackson County, Missouri
Bergen County Superior Court of New Jersey
U.S. District Court, Southern District of New York
Court of Common Pleas of Mercer County, Ohio
Court of Common Pleas of Van Wert County, Ohio
U.S. District Court, Western District of Pennsylvania
U.S. District Court, Eastern District of Tennessee
U.S. District Court, Middle District of Tennessee
U.S. District Court, District of Vermont
Published Appeals: Magee v. Welke , 31 N.E.3d 1044, Indiana Court of Appeals, 2015.
Branham Corp. v. Newl
Resources, LLC , 17 N.E.2d 979, Indiana Court of Appeals, 2014.
Jason T. Myers v. Charles R. Deets, et al , 968 N.E.2d 299, Indiana Court of Appeals, May 29, 2012.
Lady Di's, Inc. v. Enhanced Services Billing, Inc., 654 F.3d 728, U.S. Circuit Court for the Seventh Circuit, August 16, 2011.
Blinn v. the Law Firm of Johnson, Beaman, Bratch, Beal
White, LLP , 948 N.E.2d 814, Indiana Court of Appeals, April 29, 2011.
Kovach v. Caligor Midwest , 913 N.E.2d 193, Indiana Supreme Court 2009.
Kovach v. Alpharma, Inc. , 890 N.E. 2d 55, Indiana Court of Appeals 2008.
Georgos v. Jackson , 790 N.E.2d 448, Indiana Supreme Court 2003.
Inlow v. Henderson Daily Withrow & DeVoe , 787 N.E.2d 385, Indiana Court of Appeals 2003.
Elmer Buchta Trucking, Inc. v. Stanley , 744 N.E.2d 939, Indiana Supreme Court 2001.
Minisan v. Danek Medical, Inc ., 79 F.Supp.2d 970, U.S. District Court for Northern District 1999.
Ross v. Cheema , 716 N.E.2d 435, Indiana Supreme Court 1999.
Wells v. Stone City Bank , 691 N.E.2d 1246, Indiana Court of Appeals 1998.
A Woman's Choice v. Newman , 671 N.E.2d 104, Indiana Supreme Court, 1996.
Trials (all jury except as noted): Talal S. Hamdan v. Indiana University Health North, LLC
Clarian Health North Hospital, LLC d/b/a Clarian North Medical Center , United States District Court, Southern District of Indiana, July 7-10, 2015.
Federal Trade Commission v. Hold Billing Services, Ltd., et al., United States District Court, Western District of Texas, Cause No. 5:98-cv-00629-FB-HJB (November 4-15, 2013) (bench trial before Magistrate Judge on government's motion for contempt).
Temp-Masters, Inc. v. Marsh Supermarkets, LLC , Judge Daniel Pfleging, Hamilton County Superior Court, Cause No. 29D02-0604-PL-326 (December 6-10, 2010) (resolved prior to verdict).
Neil Lucas v. Riley, Bennett & Egloff, Judge Larry J. McKinney, United States District Court, Southern District of Indiana, Indianapolis Division, Cause No. 1:07-cv-534-LJM-JMS (March 8-10, 2010).
Cathy Sitarz v. South Bend Knights, Inc. d/b/a Knights Inn , Special Judge David T. Ready, St. Joseph County Circuit Court, Cause Number 71C01-0007-CT-00123 (May 10-13, 2004).
Hattie Shaw v. Payless Supermarkets, Inc., Judge Dennis Carroll, Madison County Superior Court, Cause Number 48D01-0106-CT-0483 (September 23-29, 2003).
Tracie Bentley vs. Richard L. Wilken , Judge Michael Scopelitis, St. Joseph County Superior Court, Cause Number 71D07-0110-CT-00210 (March 17-19, 2003).
Betty Jacques v. Allied Building Services, Inc.
Marsh Supermarkets, Inc ., Judge Diana LaViolette, Putnam County Circuit Court, Cause Number 67C01-9709-CT-310 (November 14-16, 2000).
Pamela K. McCracken v. Indiana American Water Company, Inc ., Special Judge John P. Stelle, Vigo County Superior Court, Cause Number 84D02-9608-CT-1348 (July 12-14, 1999).
Tyler G. Williams v. Marsh Supermarkets, Inc ., Judge Bruce Bade, Blackford County Circuit Court, Cause Number 05C01-9604-CP-00053 (April 20, 1999).
Sami Maaita v. Kore Enterprises, Inc., d/b/a The Mine Shaft Saloon
Louis Huffman , Special Judge William Hughes (Hamilton County), Marion County Superior Court, Cause Number 49D03-9412-CT-1896 (February 16-18, 1999).
Berniece Wickersham v. Supervalu Holdings, Inc., d/b/a Cub Foods , Judge Houston, Marion County Superior Court, Cause Number 49D10-9605-CP-0654 (January 25-27, 1999).
Marlene Freeman v. Supervalu, Inc., d/b/a Cub Foods , Judge Price, Marion County Superior Court, Cause Number 49D11-9612-CT-1794 (April 20-21, 1998).
Tammie L. Adkins v. Rebecca L. Houston , Judge Bruce Bade, Blackford County Circuit Court, Cause Number 05C01-9608-CP-094 (January 13-14, 1998).
American States Insurance v. Joseph Loughmiller , Judge Houston, Marion County Municipal Court No. 8, Cause Number 49F08-9404-CP-0670 (October 20, 1997).
Julie Ann Arnett v. Clancey's, Inc., d/b/a Grindstone Charlie's , Judge Christopher Monroe, Bartholomew Superior Court, Cause Number 03D01-9608-CT-744 (September 2-4, 1997).
Willie B. Trammel v. Supervalu, Inc., d/b/a Cub Foods , Judge Houston, Marion County Superior Court, Cause Number 49C10-9412-CT-307 (April 21-22, 1997).
Mary Gilley v. Supervalu, Inc., d/b/a Cub Foods , Judge William Lawrence, Marion County Circuit Court, Indiana, Cause Number 49C01-9402-CT-0430 (February 11-12, 1997).
Catherine S. Townsend & William Townsend v. Gene A. Hamm & Supervalu Transportation, Inc ., Judge Pflum, Fayette County Circuit Court, Indiana, Cause Number 21C01-9512-CT-0370 (January 27-29, 1997).
Significant Class Action & Government Enforcement Cases: Obtained summary judgment
order denying class certification on behalf of the nation's largest telecommunications billing clearinghouse in alleged cramming (i.e., unauthorized telephone billing) putative class action. After oral argument to the Seventh Circuit, the court affirmed the district court's rulings that plaintiff's authorization of disputed charges on its phone bill precluded its claims of unjust enrichment
statutory deception,
that individual issues surrounding each customer's transaction precluded class certification. The Seventh Circuit also agreed that an alleged violation of Indiana's anti-cramming regulation could not serve as the factual predicate for class action claims because the regulation does not apply to billing clearinghouses. This opinion has had significant industry impact as one of the first published appellate opinions addressing class action cramming allegations
the application of state anti-cramming regulations.
Leveraged voluntary dismissal of putative class action lawsuit filed against telecommunications billing clearinghouse using favorable Seventh Circuit opinion discussed above.
As national counsel, defended putative class action lawsuit filed in Arkansas state court - where the st
ard for certification of class actions is notoriously lenient -
litigated removal
rem
under Class Action Fairness Act where the representative plaintiff attempted to avoid federal court by stipulating to alleged damages in an amount less than the jurisdictional amount in controversy ($5 million).
Guided client through class action settlement process
claims challenge process in two nationwide class actions in which client was major indemnitor of settling defendants, including mounting challenge to proposed class counsel fee award.
Served as lead counsel in trial against the FTC in Federal Trade Commission v. Hold Billing Services, Ltd., et al. , United States District Court, Western District of Texas, Cause No. 5:98-cv-00629-FB-HJB (November 4-15, 2013). After trial on FTC's motion for contempt, the FTC significantly reduced its damages claims from more than $56 million to approximately $30 million,
it withdrew several liability theories, including its theory that the defendants had engaged in false
misleading advertising.
Significant Drug & Medical Device Cases: Obtained summary judgment for distributor of medicine dispensing cup in a medical device product liability case where a minor child died of an accidental overdose of acetaminophen with codeine while recuperating from surgery. Summary judgment was affirmed on appeal in an oft-cited opinion by the Indiana Supreme Court. Kovach v. Caligor Midwest, et al , 919 N.E.2d 193 (Ind. 2009).
Obtained summary judgment in favor of a manufacturer of pedicle screw fixation device by demonstrating that the plaintiffs failed to produce the requisite expert support for their product liability claim. Dina's defense team also successfully argued that plaintiffs failed to produce evidence that the manufacturer's warning was inadequate, thus precluding plaintiffs from recovery based on failure to warn. Minisan v. Danek Medical, Inc. , 79 F. Supp. 2d 970 (N.D. Ind. 1999).
Obtained summary judgment in favor of a manufacturer of a laser used in prostatic vaporization procedure by demonstrating that the plaintiffs failed to produce the requisite expert support for their product liability claim. Dina's defense team also successfully excluded the opinions of the Medical Review Panel urologists on the issue of product defect. Plaintiffs filed but then withdrew their appeal of the summary judgment award.
Obtained voluntary dismissal of a product liability claim against the manufacturer of a catheter where plaintiff claimed that the catheter broke during the patient's arthrectomy surgery allegedly resulting in the need for emergency surgery to locate
remove the device. After extensive discovery during which no device defect could be revealed, Dina
her defense team persuaded plaintiff to dismiss his claim without payment from the defendant manufacturer.
Significant Legal Malpractice Cases: Beneficiaries of a high-profile, $180 million estate asserted a complex, eight-count complaint against a very reputable Indiana law firm
eighteen attorneys in their individual capacities. Dina's defense team was able to garner immediate dismissal of five out of eight counts of the complaint on initial motions practice. The beneficiaries then amended their complaint alleging claims of negligence, intermeddling,
legal malpractice. Dina's team was able to get the remaining claims dismissed by arguing that the beneficiaries lacked st
ing, the trial court lacked jurisdiction to hear the claims, the beneficiaries were not real parties in interest,
the amended complaint failed to state claims upon which relief could be granted. The trial court granted the defense motions to dismiss with prejudice in favor of all of Dina's attorney clients. The beneficiaries exhausted all appeal efforts which Dina
her team successfully resisted at every level.
In a case where the attorney-defendants had been sued by a non-client, Dina's team filed a comprehensive motion to dismiss which argued no duty
failure to state a claim. While this motion was pending, the defense team leveraged an attractive settlement of the plaintiff's multi-million dollar claims of fraud
tortious interference with contract
business relationship against the law firm
its individual partners.
Defended law firm
individual attorney serving as successor custodian
then receiver in action brought by shareholders of corporation in receivership. This highly contentious case involved conflict of interest issues, as well as various claims of mish
ling corporate assets against the attorney defendants. Dina's defense team was able to narrow the numerous conflict
mish
ling claims down to a single issue for trial involving the sale of corporate stock. This resulted in a greatly reduced damage award following a three-day jury trial in federal district court.
Obtained judgment on the pleadings in favor of law firm
individually named attorney where underlying matter involved dissolution of marriage. The attorney defendants were accused of breach of contract, fraud, abuse of process, legal malpractice,
bad faith. Plaintiff sought punitive damages. Plaintiff opted not to appeal the judgment on the pleadings.
Dina successfully defended a law firm in a legal malpractice action where plaintiff claimed negligent representation by his defense lawyer in an underlying criminal case. Plaintiff alleged that the law firm was vicariously liable for the lawyer's conduct. Plaintiff voluntarily dismissed the law firm in hopes of obtaining a better settlement with the underlying defense attorney, who was also named individually in the suit. When mediation failed, plaintiff sought to reinstate his claims against the law firm. Dina successfully argued that the statute of limitations had expired
therefore plaintiff's claims could not be reinstated. Dina also argued that the Journey's Account Statute did not apply to save plaintiff's time-barred claims. The trial court agreed,
plaintiff petitioned for interlocutory appeal. Undeterred after the Indiana Court of Appeals declined to hear the appeal, plaintiff re-filed the same claim against the law firm before another trial court. Dina obtained dismissal of plaintiff's claims by arguing collateral estoppel
the trial court's Order of dismissal was affirmed on appeal.
Significant Insurance Coverage & Bad Faith Cases: Defended $45 million claim of bad faith against insurer resulting in settlement for a fraction of dem
. In defending this complex case, Dina led
collaborated with a team of lawyers
law firms pursuing interdependent actions for coverage, breach of contract,
fraud which directly led to successful settlement. Pending for more than seven years, Dina managed this extremely document-intensive case by utilizing the latest technology to implement document management software
digital communication features such as document share
remote database hosting to reduce travel expense
the expense associated with paper copies. Throughout the course of the case, Dina
her team litigated multiple issues, including choice of law, disqualification of counsel as necessary witnesses, agency duties
negligence, third-party beneficiary of insurance contract theories, insurance contract reformation,
numerous privilege issues impacting the joint interest privilege, the insurer-insured privilege, as well as attorney-client privilege
work product protections implicated in insurance claim files, coverage counsel files
sensitive company financial information. Dina's team also worked with several nationally recognized insurance experts in the areas of claims h
ling, underwriting, bad faith
insurance defense counsel ethics
professional responsibility.
Obtained summary judgment in favor of a professional liability insurance carrier who had been sued by its lawyer-insured for bad faith
punitive damages. Successfully advocated for application of the prior acts exclusion
denial of coverage for failure to timely provide notice of the potential claim under a claims-made policy. The issue of contract rescission on the basis of material misrepresentations on the policy application was also litigated.
In underlying case involving wrongful death claims stemming from the death of a freshman college student during a fraternity rush event, two carriers disagreed over defense
indemnity obligations to an insured who leased the fraternity house to the fraternity organization. After litigating which policy was primary vs. excess, whether the underlying death arose out of use of the premises, whether the underlying death resulted from an occurrence or accident, whether two Liquor Liability Endorsements excluded coverage, whether an exclusion based upon the lack of prompt medical care applied, whether a Special Events Endorsements excluded coverage,
whether an exclusion based upon failure to supervise precluded coverage where alcohol was involved in the underlying event, Dina obtained a declaration of coverage on summary judgment on behalf of the insurer who had defended
indemnified the realty corporation, including a judgment for the sums expended in defending
settling the underlying wrongful death case. The case was then favorably settled at mediation before a trial on damages.
With co-counsel John C. Trimble, Dina obtained an order requiring the insured to submit the issue of repair/replacement cost of damaged curtainwall of downtown Indianapolis skyscraper (estimated to be in the range of $15 million to $49 million) to appraisal, despite the insured's arguments that the applicable policy language was ambiguous
that the insurer had committed bad faith in the claims investigation process. After umpire reached decision favorable to insurer, the case was settled at mediation for a fraction of the replacement cost sought by the insured,
all claims of bad faith were dismissed.
Defended an insurer in a breach of contract/bad faith case, who had issued a miscellaneous professional liability policy to a company that produced
bred laboratory animals. The insured sought coverage under the policy with respect to a dispute with the U.S. Government based upon the False Claims Act, where the Government contended the insured supplied federally funded researchers with genetically non-conforming lab mice raised under two contracts held with the National Institutes for the Aging. After the insurer declined to defend
indemnify, the insured
the Government reached a settlement wherein the insured agreed to pay $7.2 million to settle the False Claims Act claims. In the subsequent breach of contract
bad faith case by the insured against the insurer, Dina argued that the U.S. Government's False Claims Act claims against the insured arose from false billings rather than professional services such that they were not covered by the policy. She also argued that multiple exclusions barred coverage. The case was favorably resolved at an early mediation.
Defended a lawsuit involving claims of breach of contract, bad faith, fraud
constructive fraud by a hog farmer against his insurance carrier. The case arose after the insurer
insured (who had retained a public adjuster) disagreed over the replacement value
business interruption loss associated with the total destruction by fire of one of the insured's hog confinement barns. In this case, Dina successfully warded off the insured's attempts to depose high-level executives of the insurance company. She also litigated issues associated with the insurance broker's negligence in the procurement of insurance on behalf of the insured. The case was favorably resolved on the eve of trial after Dina's defense team uncovered the insured's probable insurance fraud in manufacturing fake invoices for repair
clean-up costs.
