Cutter v. Herbst

I respectfully dissent. As does the majority, I note the evidence supports the trial court’s determination that Herbst’s pre-negligence chance of survival was at least 50%.4 See op. at 250. Because his pre-negligence chance of survival was 50%, however I disagree with affirming the trial court’s use of the Mayhue /Restatement approach to calculate the damages. As I explained in greater detail in my dissent from the denial of rehearing in Indiana Dep’t of Ins. v. Everhart, 939 N.E.2d 1106 (Ind.Ct.App.2010), I believe the supreme court in Mayhue adopted the Restatement approach in which damages…