By Marilyn Odendahl
The Indiana Citizen
May 11, 2023
The request Indiana Attorney General Todd Rokita’s office made in late April to delay the case against Caitlin Bernard pending before the Indiana Medical Licensing Board came after an apparent change in the state’s lead counsel and accompanied a push to reopen some of the previous discovery and depose additional individuals including a reporter for The Indianapolis Star.
In an order filed April 28, the medical licensing board denied the motion filed by the attorney general’s office to postpone the May hearing until August. The board also turned down Bernard’s motion to prevent the state from taking her deposition but did grant Bernard’s motion to shield her responses to the discovery from public disclosure.
Neither the attorney general’s office nor Bernard’s attorneys at Hoover Hull Turner in Indianapolis responded to a request for comment from The Indiana Citizen.
Bernard, an OB/GYN for IU Health, will appear before the MLB May 25. She will defend her medical license against the attorney general’s allegations that she failed to report child abuse and violated patient privacy laws.
The administrative action filed by the attorney general stems from revelations that Bernard performed an abortion in the summer of 2022 for a 10-year-old Ohio girl who was raped and became pregnant. After the story was reported by Star journalist Shari Rudavsky, Rokita made a series of public statements, accusing Bernard of violating the law and revealing his office was investigating her actions.
Rudavsky is among those whom Rokita’s office wants to depose. According to the attorney general’s April 25 motion for continuance, Rudavsky was notified that her deposition had been scheduled for April 20. When attorney Tracy Betz, partner at Taft Stettinius & Hollister in Indianapolis, told the attorney general April 19 she was representing Rudavsky, the parties agreed to scratch the deposition date.
Betz was given time to confer with her client and determine how she would respond to the deposition notice. According to the attorney general’s motion, the Taft attorney has not responded to the deposition notice.
Betz did not respond to a request for comment from The Indiana Citizen.
Bernard, in her April 26 response to the state’s continuance motion, argued, in part, the attempt to depose Rudavsky was not a valid reason to delay the hearing.
“The State should not be surprised if Rudavsky resists testifying as reporters often decline to testify about stories,” Bernard stated in her filing. “If the State believed this deposition was needed, it should have sought it anytime in December, January, February, or March.”
Changes in AG office
The motions filed by the attorney general’s office in April were submitted by the director of complex litigation, Cory Voight. Previously, the documents in the case had been filed by Mary Hutchison, who was chief of the licensing enforcement section.
Bernard’s April 26 motion, stated Hutchison is was one of four attorneys representing the state in this case. Two of the other attorneys are Gene Schaerr and Christopher Bartolomucci from Schaerr Jaffe, the Washington, D.C., boutique firm. The fourth attorney was not identified.
While Hutchison was the supervisor, the licensing enforcement section received the consumer complaints filed against Bernard which sparked the attorney general’s investigation. Many of the complaints referenced Bernard terminating the pregnancy of the 10-year-old girl.
However, Hutchison resigned in March, one of four deputy attorneys general handling the Bernard matters who left the attorney general’s office earlier this year, according to the Indiana Capital Chronicle. She is now listed on the Indiana Roll of Attorneys as working for the Hamilton County Prosecutor’s Office.
Since Hutchison’s departure, Voight has told the MLB more time is needed to prepare for the hearing. The attorney general’s office wants to reopen the written discovery process as well as conduct discovery on a document that Bernard said is from her employer and absolves her of wrongdoing.
Moreover, the attorney general’s office wants to depose additional individuals including the physician Bernard was speaking to at the reproductive rights rally in June 2022. Rudavsky overheard Bernard mention an Ohio girl needing an abortion and, after getting confirmation from the OB/GYN, included it in a story published in the Star in July.
“This Motion is not made for the purpose of delay but out of necessity so that the parties may develop and present a full case to the Board for its consideration and judgment,” Voight stated in the April 25 motion.
Bernard’s legal team opposed the request for a continuance, telling the board delaying the hearing would be harmful to Bernard.
“The State’s attorneys made decisions about the information they wanted to obtain and present before the Board in the almost five months since they filed the Administrative Complaint,” Bernard responded “The Parties can be ready for the hearing on May 25. To provide the State with additional time to seek discovery it chose not to seek earlier would be unfair to Dr. Bernard.”
In the April 28 order, the MLB did give the opposing side some leeway to conduct more dispositions. The board is allowing the parties to depose any individual who was either given a notice prior to April 24 or disclosed for the first time on the final witness list. Also any individual who both parties mutually agree upon can be deposed.
Bernard also resisted the attorney general’s request she sit for a deposition. According to court documents, the state’s top lawyer had scheduled the proceeding to begin April 21 then “continue from day to day until completed.”
The OB/GYN told the MLB she had already provided the information the attorney general was seeking. She maintained the answers she gave in the deposition and testimony as part of the Bernard v. Rokita, 49C01-2211-MI-038101, lawsuit would be the same responses she would give in the MLB proceeding.
Also, she said she had responded to the state’s questions including those about her training on reporting requirements; how she learned of the abuse of the 10-year-old victim; her communications with law enforcement; her practice for reporting child abuse; her training on patient privacy; and any other investigations into her professional conduct.
The attorney general disputed Bernard’s assertions, telling the MLB the doctor is trying to prevent the state and the board from “learning the extent and context of (her) conduct, as well as learning the existence of all witnesses.”
In particular, the attorney general argued Bernard did not testify, “in substantial part” about her education and training in patient privacy laws and regulations; her understanding of her employer’s policies on patient privacy and reporting of child abuse; her knowledge of the IU Health Risk Assessment document; prior communication with the reporter; all individuals who may have been in the vicinity when she talked to she reporter; and any communications she had with the social worker who reported to Ohio after the report was made.
Further, the attorney general stated the two-hour deposition Bernard gave for Bernard v. Rokita was inadequate. The deposition did not cover all the issues included in the MLB proceedings, according to the attorney general, and Bernard’s attorney objected about 30 times, instructing the doctor not to answer while the trial court “largely sustained the objections.”
In its response to Bernard’s motion to prevent or limit her deposition, the attorney general’s office asserted the state would be at an “unfair disadvantage” if the MLB did not allow Bernard to be deposed.
“… (The state’s) inability to depose (Bernard) on all potentially relevant topics and to vigorously question to obtain a full picture of each topic based upon (her) recollection will place (the state) in a position of not knowing the full scope of (Bernard’s) knowledge on the relevant issues before the Board,” the attorney general’s office told the MLB.
Bernard’s legal counsel countered the OB/GYN has already testified under oath specifically to the state’s allegations that she violated patient confidentiality laws and Indiana’s mandatory child abuse reporting law as well as to “other tangentially related subjects.”
“The State’s proposed, unrestricted deposition would keep Dr. Bernard away from her patients and her students to ask her questions to which she has already given an answer,” Bernard’s lawyers argued. “This is the epitome of duplicative and oppressive discovery ….”
In denying Bernard’s motion to prevent or limit her deposition, the MLB found limits were “not necessary to prevent duplicative or oppressive discovery.” However, the board did agree to limit the attorney general’s questions that are based upon the parties’ factual stipulations, finding those questions would be “unnecessarily duplicative.”
Bernard and the attorney general’s office were ordered to file a joint stipulation by May 23 of all the facts not in dispute.