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The majority knowingly disagreed with in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009), which had reached the opposite conclusion. Put simply, the McCabe court found that although the general wrongful death statute and the statute pertaining to the wrongful death of children specifically provided for the award of attorney fees, Indiana Code § 34-23-1-2, the Adult Wrongful Death Statute ("AWDS"), did not and that the Legislature's use of the phrase “include but not limited to” when describing recoverable damages did not expand the class of these damages to include attorney fees.

This case will be of particular attention to attorneys who litigate wrongful death cases, for obvious reasons. However, its lessons are deeper than that. Of particular note is the Court's description of its reasons why it would not harmonize all of the wrongful death statutes.


Thus, Judges Mathias and Bradford deferred to the intent of the legislature despite the fact that they found this result "troubling" and an earlier appellate opinion on the topic made a contrary conclusion. This gives us an insight into the jurisprudence of these judges, which can be used both in arguments to them and to trial courts in Indiana.

Brad A. Catlin
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Fromme sought records from Crisis Connection as discovery in a criminal case. Crisis Connection cited the victim-advocate privilege, characterized the privilege as "absolute," and refused to provide the requested records. The trial court ordered that Crisis Connection submit its records for an in camera inspection and Crisis Connection appealed from that order.

On appeal, the Court held that the privilege applied to Crisis Connection's records, but disagreed with Crisis Connection's characterization of that privilege as "absolute," noting that the privilege can be waived and that certain information must be disclosed to comply with abuse-reporting laws. It then considered the constitutional implications of applying the privilege to a criminal defendant seeking discovery in a criminal case under the confrontation and compulsory process clauses of the Sixth Amendment and the due process clause of the Fourteenth Amendment. The Court held the three-step analysis for determining whether information is discoverable in a criminal case outlined in In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998), applied to Crisis Connection's claim of privilege under Indiana Code § 35-37-6-9.


The Court's ultimate resolution of the constitutional question will resonate beyond the strict application of the victim-advocate privilege when a criminal defendant seeks privileged information because the Court's rationale and language on this issue are not limited to that specific privilege. However, this decision also informs how the victim-advocate privilege will be applied outside of this limited scope and provides insight into the methods that courts will use in order to construe a "clumsily drafted" statute in pari materia, so that all of its sections make sense and are in accordance with the rest of the Indiana Code.

Brad A. Catlin
Learn more about Brad and contact us
Download a copy of this article here