Medical Assurance Company Inc The v. Weinberger MD et al

Filing 408

OPINION AND ORDER denying as moot 363 Motion to Stay; denying as moot 365 Motion to Expedite Briefing Schedule; denying 371 Motion to Stay or in the Alternative Motion to file Documents in Camera; granting 372 Motion to Appoint Special Master to Oversee Settlement Negotiations; Parties are DIRECTED to propose how any costs will be paid when a form order finalizing the process is presented to the court for approval; denying as moot 386 Motion for Leave to File Surreply and Statement of Supplemental Authority. Signed by Magistrate Judge Andrew P Rodovich on 4/26/12. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
THE MEDICAL ASSURANCE COMPANY,
INC.,
Plaintiff
v.
MARK S. WEINBERGER, M.D.,
et al.,
Defendants

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Case No. 4:06 cv 117

OPINION AND ORDER
This matter is before the court on the Motion of the Plaintiff, The Medical Assurance Company, to Stay Proceedings Until
the Court has Ruled on its Renewed Motion for Discovery Sanctions
as to the Weinberger Defendants [DE 363] filed on December 7,
2011; the Motion of the Plaintiff, The Medical Assurance Company,
for Expedited Briefing Schedule and Ruling on Its Renewed Motion
for Discovery Sanctions as to the Weinberger Defendants [DE 365]
filed on December 7, 2011; Stephen W. Robertson, Commissioner of
the Indiana Department of Insurance and Administrator of the
Indiana Patient’s Compensation Fund’s Motion to Stay or in the
Alternative, Motion to File Documents In Camera [DE 371] filed on
January 6, 2012; the Motion to Appoint Special Master to Oversee
Settlement Negotiations [DE 372] filed by the defendant, Stephen
W. Robertson, on January 6, 2012; and Stephen W. Robertson,
Commissioner of the Indiana Department of Insurance and Adminis-

trator of the Indiana Patient’s Compensation Fund’s Motion for
Leave to File Surreply and Statement of Supplemental Authority
[DE 386] filed on December 7, 2011.
Because the court has ruled on Medical Assurance’s motion
for sanctions, the Motion of the Plaintiff to Stay Proceedings
Until the Court has Ruled on its Renewed Motion for Discovery
Sanctions as to the Weinberger Defendants [DE 363] is DENIED AS
MOOT; the Motion of the Plaintiff for Expedited Briefing Schedule
and Ruling on Its Renewed Motion for Discovery Sanctions as to
the Weinberger Defendants [DE 365] is DENIED AS MOOT; and Stephen
W. Robertson's Motion for Leave to File Surreply and Statement of
Supplemental Authority [DE 386] is DENIED AS MOOT.
For the reasons set forth below, Stephen W. Robertson's
Motion to Stay or in the Alternative, Motion to File Documents In
Camera [DE 371] is DENIED, and the Motion to Appoint Special
Master to Oversee Settlement Negotiations [DE 372] is GRANTED.
Background
This matter arises from a contract dispute concerning
liability for approximately 350 pending medical malpractice
claims against Dr. Mark S. Weinberger and the business entities
he owned (the Weinberger defendants).

At the time the case was

filed, Weinberger could not be located and recently was arrested
on federal criminal charges.

2

Medical Assurance seeks a declaratory judgment that it does
not owe a duty to indemnify or defend the Weinberger defendants
in the underlying malpractice cases because Weinberger did not
participate in his defense, as required by the insurance policy.
To succeed, Medical Assurance is required to demonstrate that it
was prejudiced by Weinberger’s disappearance and lack of cooperation.
On May 2, 2007, the defendants moved to stay the case
pending resolution of the underlying malpractice cases.

The

district court granted the defendants’ motion to stay the litigation, finding that the prejudice inquiry depended on the facts
and defenses in the state court cases.

The district court

concluded that it would be impossible for Medical Assurance to
show actual prejudice without interfering with the state court
proceedings. On appeal, the Seventh Circuit lifted the stay,
explaining that it could "imagine ways in which Medical Assurance
might try to establish actual prejudice that would unacceptably
intrude on the state cases, but other ways might not run the
risk."

Medical Assurance v. Hellman, 610 F.3d 371, 381 (7th Cir.

2010).

The Seventh Circuit determined that Medical Assurance

needed the opportunity to develop its position before the court
could determine to what extent the state court decisions might
affect the declaratory judgment action.

3

On January 13, 2011, Medical Assurance filed a motion for
summary judgment.

In its brief, Medical Assurance argued that it

was prejudiced by Weinberger’s refusal to cooperate because:
(1) Weinberger refused to give deposition
testimony, making it more difficult for Medical Assurance to defend any claims and entitling the malpractice plaintiffs to an instruction that the jury may draw an adverse
inference from Weinberger’s refusal to testify.
(2) Weinberger refused to respond to Requests
for Admission and any refusal constitutes an
admission of the substance, which may be used
against him.
(3) Weinberger pled guilty to a multi-count
federal felony scheme and the confession and
guilty plea can be used to impeach him.
(4) Because Weinberger fled the United
States, evaded law enforcement, and hid for
more than five years, the State of Indiana
Medical Licensing Board revoked his license
and entered findings that he had used his
medical practice to defraud numerous insurance companies by submitting bills for services which he never performed or by grossly
over-billing for the treatment which he rendered. This may be used against Weinberger
in the underlying cases.
(5) Weinberger has irreparably harmed his
defense by failing to participate in discovery matters, resulting in the issuance of two
court orders sanctioning the Weinberger Defendants:
i) On May 22, 2006, the Lake Superior Court sanctioned the Weinberger Defendants in 285 of the
underlying Claims brought by the
Verhoeve Claimants because of Wein4

berger’s refusal to respond to
written discovery and appear for
his deposition:
The Court finds that prejudice
to the [Claimants] by Weinberger’s discovery failures
will exist if Weinberger is
able to testify in the pending
panel actions, or in any subsequently filed civil cases
for damages once the proposed
complaints have progressed
through the panel process. . . .
That prejudice can be cured by
prohibiting Weinberger or any
of the Weinberger entities
from using Weinberger’s sworn
testimony to defend the cases
pending before the panels or
in any subsequently filed
civil actions. . . . In the
285 cases identified in Exhibit A to the [Claimants’
Motion for Default Judgment],
and the supplement thereto
filed January 12, 2006, the
Weinberger Defendants are not
permitted to offer any sworn
testimony of Weinberger in
defense of those cases as they
proceed through the medical
review panel process.
ii) On April 25, 2007, the Lake
Superior Court also sanctioned the
Weinberger Defendants in the underlying Claims brought by the Thomas
Claimants because of Weinberger’s
refusal to respond to written discovery and appear for his deposition:
As a result of Dr. Weinberger’s failure to participate in discovery, . . . Dr.
5

Weinberger is prohibited from
offering testimony in the
plaintiffs’ cases pending
before the Indiana Department
of Insurance and, to the extent the Court has the jurisdiction to do so, the plaintiffs’ medical malpractice
actions against Dr. Weinberger
that are filed after those
cases have been reviewed by,
and received opinions issued
by, a medical review panel.
The Weinberger Defendants now
are barred from offering Weinberger’s testimony in every
trial. (Statement ¶¶19-24) Not
only will they not be able to
have the key witness describe
and explain his actions and
thought processes, they will
not be able to rebut any such
evidence offered by the Claimants. Medical Assurance won’t
be able to refute either what
the Claimants say occurred or
what they say Weinberger said
to them. Also, as with Weinberger’s refusal to testify,
the Claimants now will argue
in every case that they are
entitled to instruct the jury
that the jury can draw an
adverse inference from Weinberger’s failure to testify.
(6) As a result of Weinberger’s intentional
disappearance and refusal to participate in
the defense of the claims, Medical Assurance
has been unable to evaluate and prepare
a defense of the claims in any meaningful
manner. His explanation of his diagnoses, the
need for surgery, and the standard of care
exercised in connection with performing the
various surgeries is imperative to the inves6

tigation, understanding, or evaluation of any
possible defenses to the claims, as well as
any evaluation of damages and exposure. Without Weinberger’s testimony regarding his
thought processes, evaluations, and diagnoses, no meaningful defense of the claims is
possible.
(7) Weinberger’s refusal to cooperate has
made arms-length settlement negotiations
impossible.
(8) Weinberger’s refusal to cooperate in the
defense of the Weinberger Defendants also
has made preparation of a defense of the
claims more costly to Medical Assurance.
Medical Assurance will have to hire an independent consulting expert in virtually every
case to try to determine what Weinberger
actually did. This would not be necessary
under normal circumstances where the insured
cooperates in his or her defense. An expert
witness also will be necessary to explain
Weinberger’s treatment in order to present
some meaningful defense to issues involving
Weinberger’s actions or his judgment.
(9) Finally, Medical Assurance has "irretrievably lost" the opportunity to ascertain
from Weinberger the facts relating to his
treatment of the claimants, including the
identification of those claims which are
either outside of the scope of its insurance
coverage or are exempted from coverage by
policy exclusions – such as for criminal
behavior, fraudulent billing practices or
fraudulent consents to unnecessary surgeries.
(Pltf. M.Summ.J. pp. 5-7)
PCF now asks the court to stay proceedings on the issue of
prejudice, arguing that it is apparent from the arguments Medical
Assurance raised in its motion for summary judgment that Medical

7

Assurance intends to show actual prejudice by interfering with
the state court proceedings and that the state court proceedings
will be intertwined with its defense of Medical Assurance’s
motion for summary judgment.

PCF explains that some of the

evidence it intends to file in response to Medical Assurance’s
motion for summary judgment may be detrimental to Weinberger’s
malpractice claims which it may have to defend if this court
determines that Medical Assurance does not owe a duty to defend
or indemnify.

Specifically, PCF could defend itself here by

arguing that Weinberger’s claims are indefensible.

However, if

PCF later has to defend Weinberger’s malpractice claims, these
arguments may be used against it and to its detriment.
PCF also complains that continued discovery may harm Weinberger’s defense in the underlying malpractice cases.

Medical

Assurance conducted an interview of Weinberger and that video
already has been used against him in the underlying malpractice
suits.

PCF fears that additional discovery similarly may be used

to Weinberger’s detriment.

After PCF filed its motion to stay

the proceedings, the district court dismissed the pending motions
for summary judgment without prejudice.
PCF also requests the court to appoint a special master to
oversee settlement negotiations and suggests the appointment of
John Van Winkle because he assisted in settlement negotiations

8

for some of the pending claims.

PCF explains that it will take

years to resolve all of the underlying malpractice cases by
trial.

The Verhoeve defendants agree that a special master

should be appointed, but oppose Van Winkle, and the Thomas
defendants object to the appointment of a special master, but
agree to Van Winkle if the court chooses to appoint a special
master over their objection.
Discussion
PCF asks the court to stay the proceedings pending resolution of the malpractice cases filed in state court. On appeal,
the Seventh Circuit explained that the very terms of the Declaratory Judgment Act give the district court the discretion to
decline to hear cases.

Hellman, 610 F.3d at 378.

The Declara-

tory Judgment Act states that the court "may declare the rights
and legal relations of any interested party seeking such declaration".

28 U.S.C. §2201(a).

When determining whether to stay an

action for declaratory judgment, the proper inquiry for the court
to ask is "'how real [is the prospect]' that 'the declaratory
action may present factual questions that the state court has
also been asked to decide.'" Hellman, 610 F.3d at 379 (citing

Nationwide Insurance v. Zavalis, 52 F.3d 689, 693 (7th Cir.
1995)).

The court must review the overlap of the proceedings,

including

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whether the declaratory suit presents a question distinct from the issues raised in the
state court proceeding, whether the parties
to the two actions are identical, whether
going forward with the declaratory action
will serve a useful purpose in clarifying the
legal obligations and relationships among the
parties or will merely amount to duplicative
and piecemeal litigation, and whether comparable relief is available to the plaintiff
seeking a declaratory judgment in another
forum or at another time.

Nationwide Insurance, 52 F.3d at 692
The stay should be granted only when the issues are substantially
the same, and "[s]uch a declaratory judgment would control the
underlying suit, thus prejudicing a party to the action." Minne-

sota Lawyers Mutual Insurance Co. v. Larson, 2007 WL 2688443, *3
(S.D. Ill. Sept. 11, 2007).
To succeed on its claim, Medical Assurance would have to
show that the breach (1) was intentional, (2) that the insurer
has made a diligent effort to obtain cooperation, and (3) that
the failure to cooperate prejudiced the defense.

Smithers v.

Mettert, 513 N.E.2d 660, 662 (Ind. App. 1987); Wood v. Allstate
Insurance Company, 21 F.3d 741, 745 (7th Cir. 1994) (quoting
Miller v. Dilts, 463 N.E.2d 257, 261 (Ind. 1984))("[A]n insurance
company must show actual prejudice from an insured’s noncompliance with the policy’s cooperation clause before it can avoid
liability under the policy.").

Prejudice is established by

demonstrating that the underlying cases would have resulted in a
10

different outcome if the insured cooperated.

Cincinnati Insur-

ance Company v. Irvin, 19 F.Supp.2d 906, 915 (S.D. Ind. 1998).
The Seventh Circuit acknowledged that although the scope of
Weinberger’s insurance coverage is not at issue in the underlying
malpractice cases, to show actual prejudice Medical Assurance may
intrude on the state cases.

Hellman, 610 F.3d at 381.

The

Seventh Circuit concluded that at the time the district court
granted the stay it was too early to determine whether Medical
Assurance would prove its case "through an excursion into the
factual questions that the state courts have been, or will be,
asked to address."

Hellman, 610 F.3d at 381.

PCF argues that

Medical Assurance chose to make this excursion, and that a stay
is now appropriate to prevent discovery that may be detrimental
to Weinberger’s underlying malpractice defense and for PCF to
avoid "shipwrecking" its defense of the underlying malpractice
claims should it be determined that Medical Assurance does not
owe a duty to defend and indemnify the Weinberger defendants in
the pending malpractice cases.
In Old Republic Insurance Co. v. Chukak & Tecson, P.C., 84
F.3d 998 (7th Cir. 1996), a law firm’s malpractice insurer
brought an action for declaratory judgment, asking the court to
conclude that it did not have a duty to defend two pending legal
malpractice actions in cases an attorney accepted before joining

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the firm.

The insurer wanted to conduct discovery on the details

of the attorney’s relationship to his law firm to establish that
the attorney was not acting in the scope of his employment at the

Old Republic, 84 F.3d at 1000.

time of the alleged malpractice.

In the underlying malpractice suits, the plaintiff also needed to
prove that the attorney was acting within the scope of his
employment when the acts giving rise to the claim were committed.

Old Republic, 84 F.3d at 1003.

The Seventh Circuit explained

that if the pretrial discovery the insurer wanted to conduct
showed that the attorney had been acting within the scope of his
employment with the firm, this could shipwreck the defense of the
underlying malpractice claim and would put the attorney in the
position of having to defend himself in two suits at his own
expense. Old Republic, 84 F.3d at 1003.

The Seventh Circuit

approved the stay, concluding that discovery should not go behind
the complaint to avoid shipwrecking the defense of the underlying
suit. Old Republic, 84 F.3d at 1002.
PCF complains that further discovery may likewise undermine
its possible defenses in the underlying malpractice claims and
that the position it intends to take in this matter runs contrary
to the position it intends to take in the underlying malpractice
case.

To avoid choosing between defending this declaratory

judgment action or the malpractice claims, PCF argues that this

12

matter should be stayed on the issue of prejudice, including
further discovery.
The Seventh Circuit has instructed that the first inquiry
the district court should make when determining whether to issue
a stay of a declaratory judgment pending resolution of the
underlying malpractice cases is the degree of overlap between the
questions presented to the state court in the underlying cases
and the questions presented in the declaratory judgment action.
Although the court in Old Republic did not delve into a lengthy
discussion of the requisite inquiry, it acknowledged that the
plaintiff in the underlying malpractice cases would have to prove
that the attorney was acting within the scope of his employment,
which was the same question presented to the court in the declaratory judgment action.

The Seventh Circuit stated that "[t]his

analysis confirms the good sense of the general rule that the
insurer’s declaratory judgment suit is not a proper vehicle for
resolving factual issues in the underlying suit against the
insured."

Old Republic, 84 F.3d at 1003.

At this point, the court first must assess the degree of
overlap between the underlying malpractice cases and the present
matter.

In the underlying malpractice cases, the plaintiffs must

show that "the defendant owed a duty to the plaintiff, that he
breached his duty by conduct falling below the standard of care,

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and that the breach proximately caused a compensable injury."

Hellman, 610 F.3d at 380 (citing Musser v. Gentiva Health Servs.,
356 F.3d 751, 760 (7th Cir. 2004)).

To succeed in the present

matter, Medical Assurance will have to show that Weinberger did
not cooperate with the defense of the malpractice claims and that
Medical Assurance suffered actual prejudice, meaning that the
results of the underlying cases would have been different had
Weinberger cooperated.
916.

Cincinnati Insurance, 19 F.Supp.2d at

The issue of prejudice is not raised in the underlying

malpractice cases, but, PCF argues that Medical Assurance will
delve into issues presented in the malpractice cases to establish
prejudice.

In its brief in support of its motion for summary

judgment, Medical Assurance has advanced several theories to show
how it was prejudiced by Weinberger’s refusal to cooperate.
Medical Assurance first has pointed to well established
rules of evidence and procedure that may or already have operated
against it when defending the underlying malpractice cases.
Specifically, Medical Assurance complains that the jury can draw
negative inferences from Weinberger’s refusal to testify and
provide information.

This is a well established principal, and

Medical Assurance’s reliance on this as evidence of prejudice
does not force this court to determine any issues before the
state court.

See National Acceptance Co. Of America v. Bath-

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alter, 705 F.2d 924, 929 (7th Cir. 1983) ("[T]here is no longer
any doubt that at trial a civil defendant's silence may be used
against him, even if that silence is an exercise of his constitutional privilege against self-incrimination."); Gash v. Kohm, 476
N.E.2d 910, 913 (Ind. App. 1985) (citing Baxter v. Palmigiano,
425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976); In

re Meredosia Harbor & Fleeting Service, 545 F.2d 583, 591 (7th
Cir. 1976)).
Medical Assurance also seeks to establish prejudice by
referring to the sanctions the state court already has imposed
because of Weinberger’s unwillingness to cooperate in discovery.
The state court prohibited Weinberger from submitting his sworn
testimony in defense of the malpractice cases.

Again, this court

is not being asked to evaluate the appropriateness of the sanctions, and there is no overlap between the issues the courts are
called on to decide.

Rather, Medical Assurance is pointing to

decisions the state court previously made to show how it was
negatively affected by Weinberger’s actions.
Additionally, Medical Assurance complains that Weinberger’s
refusal to cooperate has increased its expenses.

Weinberger’s

conduct has made arms-length negotiations difficult and increased
litigation expenses because Medical Assurance was forced to hire

15

an expert to explain Weinberger’s treatment.

Medical Assurance’s

expenses are relevant to the underlying actions.
Medical Assurance’s recitation of the events that it alleges
have caused prejudice in mounting a defense are not so substantially intertwined with the questions before the state court to
warrant a stay.

The state court is not asked to determine

whether Medical Assurance suffered prejudice, and to establish
prejudice, Medical Assurance has not presented any questions
that, if decided by this court, would interfere with decisions
the state courts must make.

PCF has not pointed to one conflict

between what the state court must decide and what this court is
being asked to consider.
The fact that PCF may desire to take two different approaches to the pending law suits – arguing here that the underlying malpractice claims are indefensible and then facing the
possibility of having to defend the cases – is a different
quandary than faced in Old Republic.

Here, the federal and state

courts are not being called on to answer the same question.

PCF

has not pointed to any cases to show that a matter should be
stayed so that one party may proceed on the theories most favorable to it.

Rather, the proper inquiry is whether a decision in

the declaratory judgment action will impede on the state court

16

proceedings, and here there is no evidence of an overlap between
the decisions the courts must make.
It is true that discovery may overlap between the underlying
cases and the declaratory judgment action.

However, the issues

presented to the state court differ from those presented here,
and there is no clear threat that allowing discovery to continue
will reveal information that will decide an identical issue pending in state court.

PCF has not demonstrated that ongoing dis-

covery may turn up information that is not subject to discovery
in the underlying malpractice cases.

Federal Rule of Civil

Procedure 26 permits discovery of all relevant, non-privileged
matters.

The fact that the evidence may be revealed that is

detrimental to the defendants’ position in the underlying cases
is irrelevant if the information is currently subject to discovery in both forums, regardless of whether the stay is issued.
When determining whether to stay a declaratory judgment
action, the court is required to review other factors in addition
to whether the question presented is distinct from the state
court proceeding, including whether the parties are identical,
whether the declaratory judgment will clarify legal obligations
and relationships among parties, and whether comparable relief is
available to the plaintiff seeking the declaratory judgment.

Nationwide Insurance, 52 F.3d at 692.

17

Although the parties are

identical in this action and the underlying malpractice claims,
the second and third inquiries are answered in favor of denying
the stay.

The declaratory judgment action will clarify the

relationship among the parties, resolving who is responsible for
defending the underlying malpractice claims and who is liable for
any judgments obtained by the malpractice plaintiffs.

If this

court declines to hear the declaratory judgment action pending
resolution of the underlying malpractice cases, Medical Assurance
will incur a significant expense defending the underlying suits
that it may not be contractually obligated to provide.

Medical

Assurance seeks to avoid this expense and does not have another
avenue for pursuing such relief.
The Seventh Circuit has made it clear that the standard by
which to judge whether a stay of a declaratory judgment action is
appropriate is to ask whether this court will decide issues that
will be presented in the underlying action.

The issue of preju-

dice is distinct from the issues presented in the state court,
and PCF has not demonstrated that Medical Assurance is attempting
to show prejudice by forcing this court to decide issues that the
state courts must decide.

Rather, Medical Assurance has pointed

to decisions and events that have occurred in the underlying
litigation and has shown the increased burden it has suffered
from Weinberger’s failure to cooperate in his defense.

18

The fact

that PCF may be in the predicament of having to choose between
defending this matter by arguing that the malpractice cases are
indefensible, and then facing the threat of having to defend the
cases, does not demand staying the litigation.

This question of

prejudice is solely for the federal court to resolve, and absent
any overlap between what the state court and this court must
decide, staying this action is inappropriate.
Given the number of underlying medical malpractice cases
that are pending, PCF requests the court to appoint a special
master to oversee settlement negotiations.

"[A] court may

appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be decided
without a jury if appointment is warranted
by:
(i) some exceptional condition; or
(ii) the need to perform an accounting
or resolve a difficult computation of
damages; or
(C) address pretrial and posttrial matters
that cannot be effectively and timely addressed by an available district judge or
magistrate judge of the district.
Federal Rule of Civil Procedure 53(a)
The rule begins with a presumption against the appointment of
special masters. See Federal Rule 53, cmt. 2003 ("A pretrial
19

master should be appointed only when the need is clear.");

Williams v. Lane, 851 F.2d 867, 884 (7th Cir. 1988) ("We fully
acknowledge that the appointment of a special master is the
exception and not the rule and that there must be a showing that
some exceptional condition requires such an appointment.")
(internal quotations omitted). The Supreme Court has made clear
that routine considerations such as the general complexity of the
litigation, the projected length of trial, and the congestion of
the court's calendar, do not constitute exceptional circumstances. La Buy v. Howes Leather Company, 352 U.S. 249, 259, 77
S.Ct. 309, 315, 1 L.Ed.2d 290 (1957).
Referring limited matters to masters is more frequent with
environmental law and mass tort litigation.

Active Products

Corp. v. A.H. Choitz & Co., Inc., 163 F.R.D. 274, 283 (N.D. Ind.
1995) "Recently, many courts have expressly appointed special
masters to achieve settlements in complex litigation."

Products, 163 F.R.D. at 282-283.

Active

When determining whether to

appoint a special master, the court should consider the number of
parties and the amount of time it would take to resolve all
claims.

Active Products, 163 F.R.D. at 283.

When both are

sizeable, the parties may be best served by appointing a special
master to oversee settlements.

See Active Products, 163 F.R.D.

20

at 284 (appointing master to oversee settlement in case with 23
plaintiffs and 1,181 defendants).
PCF argues that this matter should be referred to a master
to oversee settlement negotiations because of the high volume of
underlying malpractice defendants.

PCF states that it would take

five to 13 years to resolve all of the underlying cases at trial.
The Verhoeve defendants agree that a special master should be
appointed, but oppose PCF’s suggestion of John Van Winkle without
reason.

The Thomas defendants oppose the appointment of a

special master, arguing that "having a court sanctioned protocol
without genuinely knowing what that protocol may be runs a strong
risk of prejudicing parties who have already waited years to
adjudicate their claims", but acquiesce to Van Winkle if the
court decides to appoint a special master.

(Thomas Defts Br. p.

2)
It is not clear how the Thomas defendants would be prejudiced by appointing a special master to facilitate settlement.
The parties, of course, would not be forced to settle, and
settlement of some of the claims likely will result in an earlier
resolution of the others.

There are over 350 underlying claims

that would take years to resolve without settlement.

Given the

high volume of malpractice defendants and the sluggish progress

21

of this matter, the court finds that it is in the best interest
of the parties to facilitate settlement.
The defendants have not given any explanation why Van Winkle
would be an inappropriate choice to appoint as master.

Van

Winkle previously conducted settlement conferences and has
familiarity with this matter.

For these reasons, the Motion to

Appoint Special Master to Oversee Settlement Negotiations [DE
372] is GRANTED.

The parties are DIRECTED to propose how any

costs will be paid when a form order finalizing the process is
presented to the court for approval.
_______________
Based on the foregoing, the Motion of the Plaintiff, The
Medical Assurance Company, to Stay Proceedings Until the Court
has Ruled on its Renewed Motion for Discovery Sanctions as to the
Weinberger Defendants [DE 363] filed on December 7, 2011, is
DENIED AS MOOT; the Motion of the Plaintiff, The Medical Assurance Company, for Expedited Briefing Schedule and Ruling on Its
Renewed Motion for Discovery Sanctions as to the Weinberger
Defendants [DE 365] filed on December 7, 2011, is DENIED AS MOOT;
Stephen W. Robertson, Commissioner of the Indiana Department of
Insurance and Administrator of the Indiana Patient’s Compensation
Fund’s Motion to Stay or in the Alternative, Motion to File
Documents In Camera [DE 371] filed on January 6, 2012, is DENIED;

22

the Motion to Appoint Special Master to Oversee Settlement
Negotiations [DE 372] filed by the defendant, Stephen Robertson,
on January 6, 2012, is GRANTED; and Stephen W. Robertson, Commissioner of the Indiana Department of Insurance and Administrator
of the Indiana Patient’s Compensation Fund’s Motion for Leave to
File Surreply and Statement of Supplemental Authority [DE 386]
filed on December 7, 2011, is DENIED AS MOOT.
ENTERED this 26th day of April, 2012

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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