ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Adam J. Sedia                                         Edward W. Hearn
Dyer, Indiana                                         Crown Point, Indiana




                                            In the
                        Indiana Supreme Court                                   Mar 12 2014, 3:26 pm




                                     No. 45S03-1309-CT-619

JOSEPH D. HARDIMAN AND JAKETA L.
PATTERSON, AS CO-ADMINISTRATORS OF
THE ESTATE OF BRITNEY R. MEUX,
DECEASED,
                                                             Appellants/Cross-Appellees
                                                             (Plaintiffs below),

                                                 v.

JASON R. COZMANOFF,
                                                             Appellee/Cross-Appellant
                                                             (Defendant below).


                  Appeal from the Lake Superior Court, No. 45D11-1209-CT-214
                         The Honorable Diane Kavadias Schneider, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1210-CT-437



                                         March 12, 2014

Massa, Justice.


       “Inevitably, in civil cases where related criminal charges are involved, tension will arise
between plaintiffs’ rights to a just and timely adjudication and defendants’ rights to refuse to
answer under the Fifth Amendment upon a reasonable fear of prosecution.” Nat’l Acceptance
Co. of Am. v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983) (internal citation omitted). The case
we address today involves just this sort of tension; the civil trial court granted a limited stay of
discovery against the defendant, but ordered him to respond to the plaintiff’s complaint. Both
sides appealed, and we now affirm the trial court in all respects.




                                     Facts and Procedural History


       On March 6, 2012, correctional officer Britney Meux was jogging with three co-workers
when she was hit by a car. The driver fled the scene, and Meux later died from her injuries.
Three days later, the State charged the alleged driver, Jason R. Cozmanoff, with thirteen crimes,
including one count of reckless homicide as a Class C felony and three counts of criminal
recklessness resulting in serious injury, all as Class D felonies.


       A few weeks later, Meux’s Estate sued Cozmanoff for wrongful death, alleging he was
“negligent, reckless, and guilty of gross negligence and/or willful and wanton misconduct.”
Appellant’s App. at 12.      The Estate began the discovery process on April 27 by serving
Cozmanoff with interrogatories and requests for production and by noticing his deposition.


       This put Cozmanoff in a difficult position; if he were to invoke the Fifth Amendment and
refuse to comply with the Estate’s discovery requests, the civil jury could infer he is liable for
causing Meux’s death. Gash v. Kohm, 476 N.E.2d 910, 913 (Ind. Ct. App. 1985) (“Although the
refusal to testify in a civil case cannot be used against the one asserting the privilege in a
subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the
trier of fact in a civil case from drawing adverse inferences from a witness’[s] refusal to testify.”
(internal citations omitted)).       On the other hand, if Cozmanoff were to provide discovery
responses and permit his deposition to be taken, the State could use his testimony and responses
against him in his criminal trial.


       Cozmanoff, seeking a middle ground between the rock and the hard place, moved to stay
the entire civil case pending the resolution of his criminal prosecution, citing his Fifth
Amendment privilege. The Estate opposed his motion, arguing (1) Cozmanoff’s criminal case


                                                   2
might not be finally resolved for years, (2) discovery was necessary to identify other potential
tortfeasors who must be joined before the running of the two-year statute of limitation, and (3)
the stay would offend Article 1, § 12 of the Indiana Constitution, which guarantees “Justice shall
be administered freely . . . and without delay.” After the hearing, the trial court granted a limited
stay of discovery as to Cozmanoff only, but it also entered an order requiring him to answer the
complaint within 30 days.


       Both parties moved to certify the trial court’s ruling for interlocutory appeal, and the trial
court so certified it. In a published opinion, the Court of Appeals reversed the stay but affirmed
the requirement that Cozmanoff file an answer. Hardiman v. Cozmanoff, 989 N.E.2d 799, 805
(Ind. Ct. App. 2013).


       We granted transfer, thereby vacating the opinion below. Hardiman v. Cozmanoff, 994
N.E.2d 732 (Ind. 2013) (table); Ind. Appellate Rule 58(A).




                                       Standard of Review


       We trust the trial court to exercise sound discretion in myriad matters, including whether
to grant or deny a party’s motion for stay, and we review its ruling on that motion for abuse of
that discretion. Fry v. Schroder, 986 N.E.2d 821, 822–23 (Ind. Ct. App. 2013). We will affirm
so long as we can find some evidence or reasoning to support the decision, and we will reverse
only if we find the decision “is clearly erroneous, against the logic and effect of the facts before
it and the inferences which may be drawn from it.” Id. at 823.




        The Trial Court Did Not Abuse Its Discretion by Ordering the Limited Stay.


       Cozmanoff argues the entire civil case must be stayed to protect his right against self-
incrimination, while the Estate contends its own interest in an expeditious end to its lawsuit is


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paramount. It is a bedrock principle of our criminal justice system that “no person . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V; see also
Ind. Const. art. 1, § 14 (“No person, in any criminal prosecution, shall be compelled to testify
against himself.”).1    The Fifth Amendment, incorporated to the States by the Fourteenth
Amendment, Malloy v. Hogan, 378 U.S. 1, 6 (1964), “not only protects the individual against
being involuntarily called as a witness against himself in a criminal prosecution but also
privileges him not to answer official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate him in future criminal
proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). A civil defendant who chooses to
avail himself of this protection, however, does so at his peril: “the Fifth Amendment does not
forbid adverse inferences against parties to civil actions when they refuse to testify in response to
probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); see
also Morgan v. Kendall, 124 Ind. 454, 24 N.E. 143, 145 (1890) (holding a defendant’s invocation
of his Fifth Amendment privilege during his trial testimony “was a matter proper to be
considered by the jury”).


        But “even where privileges as important as the Fifth Amendment privilege against self-
incrimination are implicated, courts in civil proceedings have taken steps to ensure that the
litigation proceeds in a manner consistent with the interests of justice.” State v. Int’l Bus. Mach.
Corp., 964 N.E.2d 206, 211–12 (Ind. 2012). One such step is the exercise of the court’s inherent
power to stay its proceedings. Jones v. City of Indianapolis, 216 F.R.D. 440, 450 (S.D. Ind.
2003). Although it is under no constitutional obligation to do so, the court has discretion to




1
  Cozmanoff correctly points out that, if we thought it appropriate, we could perform a separate and
independent analysis of this issue under Article 1, § 14 of our state constitution. But as we resolve this
issue in his favor under the federal standard, we leave the idiosyncrasies of Section 14 for another day.
Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013).




                                                    4
impose a stay when the “interests of justice” so require. Id. at 450–51. When making that
determination, the court may consider

                (1) the interest of the plaintiff in proceeding expeditiously with the
                litigation or any particular aspect of it, and the potential prejudice
                to the plaintiff of a delay; (2) the burden which any particular
                aspect of the proceedings may impose on the defendant; (3) the
                convenience of the court in the management of its cases, and the
                efficient use of judicial resources; (4) the interests of persons not
                parties to the civil litigation; and (5) the interest of the public in
                pending civil and criminal litigation.2

Id. at 451; Fry, 986 N.E.2d at 823. The trial court is not limited to a consideration of only those
factors, however, and courts in other jurisdictions have noted the degree of similarity between
the issues in both cases is frequently the most important factor. See, e.g., Ex parte Weems, 711
So. 2d 1011 (Ala. 1998) (affirming the trial court’s denial of a stay because the civil and criminal
cases turned on different issues, where ex-husband was charged with murdering his ex-wife’s
private investigator and sued his ex-wife for negligent hiring/supervision).               Finally, courts
frequently consider the status of the parallel criminal proceeding in determining whether a stay is
warranted. See, e.g., Aspen Fin. Servs., Inc. v. Dist. Ct., 289 P.3d 201, 207 (Nev. 2012) (noting
pre-indictment stays are generally denied because the risk of self-incrimination is less while the
potential for lengthy delay is great); Ex parte Ebbers, 871 So. 2d 776, 790 (Ala. 2003) (listing, as




2
  The Estate argues, as a threshold matter, that Cozmanoff is not entitled to a stay because he “failed to
designate adequate facts that would demonstrate that any responses to pleadings and discovery would
necessarily result in compelled testimony.” Appellant’s Br. at 16. But that is the standard for asserting
the privilege. Bathalter, 705 F.2d at 927 (noting the “validity of the assertion” of the Fifth Amendment
privilege “hinges not on the witness’s say so alone: the trial judge must determine whether the witness’s
silence is justified.”). In contrast, the entire point of Cozmanoff’s motion for stay is to avoid having to
assert the privilege at all. Thus, Cozmanoff is not required to designate such facts in his motion for stay.




                                                     5
one of eight3 factors for consideration, the “status of the criminal case, including whether the
party moving for the stay has been indicted.”).


        Here, the trial court heard argument and carefully considered the burden on each of the
respective parties. As to the plaintiff’s interest, at the hearing in July 2012, the Estate argued it
needed to depose Cozmanoff to determine whether he intended to assert a nonparty defense and
learn the identity of any potentially liable nonparties before the statute of limitation expired. But
Cozmanoff’s counsel pointed out his criminal trial was set for February 2013—more than one
year prior to the March 2014 expiration of the statute of limitation—giving the Estate more than
a year to conduct discovery and add any additional defendants. And Cozmanoff’s counsel also
stated the motion for stay was “concerned with protecting the Defendant himself” and did not
“address the other investigation that the Plaintiff might want to do.” Appellee’s App. at 31.
Indeed, the trial court noted that the limited stay left the Estate free to pursue discovery against
anyone except Cozmanoff. Finally, Indiana law requires Cozmanoff to plead any nonparty
defense at least forty-five days before the expiration of the statute of limitation, Ind. Code § 34-
51-2-16 (2008), so the Estate would have at least forty-five days to join any such nonparty as a
defendant.


        As to the burden on the defendant, Cozmanoff’s counsel stated Cozmanoff would assert
his Fifth Amendment privilege if deposed, and both parties acknowledged it could be used
against him at trial. That adverse inference—and the resulting increased risk of losing the civil
suit—is constitutionally permissible, but it is not, as the Estate argues, a minor matter.4 What is




3
  The eighth and final Ebbers factor is “the timing of the motion to stay.” Ebbers, 871 So.2d at 790. As
Cozmanoff’s motion was made only one month after the Estate served him with its initial discovery
requests, the Estate concedes it was prompt and thus timing is a neutral factor in this case. We agree.
4
  The Estate cites precedent from our Court of Appeals for the proposition that “the ‘increased possibility’
that a criminal defendant would be held liable in civil proceedings is not a detriment that penalizes the
criminal defendant.” Appellant’s Br. at 17 (quoting Gash, 476 N.E.2d at 913). In Gash, parents sued the



                                                     6
more, although the “normal rule in a criminal case is that no negative inference from the
defendant’s failure to testify is permitted,” Mitchell v. United States, 526 U.S. 314, 328 (1999),
Cozmanoff correctly points out his assertion of his Fifth Amendment privilege in civil discovery
could harm his defense in the criminal proceeding. For instance, if Cozmanoff were deposed and
asserted his privilege in response to certain questions but not others, a savvy prosecutor could
guess Cozmanoff’s defense strategy. Accord Jones, 216 F.R.D. at 451 (noting a limited stay was
necessary to prevent Plaintiff from “utilizing the liberal rules of civil discovery [to] obtain
information that may substantially harm Defendants’ interests if criminal indictments are handed
down.”); Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980)
(noting that “where a party under indictment for a serious offense is required to defend a civil or
administrative action involving the same matter,” failure to stay the noncriminal proceeding
“might undermine the party’s Fifth Amendment privilege against self-incrimination, expand
rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b),
expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise
prejudice the case.”).




defendant for the wrongful death of their daughter after the county prosecutor found the evidence
insufficient to support criminally charging the defendant. Id. at 911. At his civil trial, in open court, the
defendant refused to answer questions based on his Fifth Amendment privilege. Id. at 912. Accordingly,
the jury inferred he was liable and returned a verdict in plaintiffs’ favor. Id. The defendant appealed, and
a panel of our Court of Appeals affirmed, stating: “The only detriment suffered by [the defendant] was
the increased possibility that he would be found civilly liable for damages . . . To consider such a
detriment in the same light as the sanctions applied for exercising the fifth amendment privilege . . . is
simply too tenuous.” Id. at 913 (internal citations omitted).

        Thus, Gash stands only for the well-established rule that an increased risk of civil liability does
not rise to the level of an impermissible burden on a constitutional right—unlike the loss of a job, for
example. See Garrity v. State of N.J., 385 U.S. 493, 500 (1967) (“We now hold the protection of the
individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent
criminal proceedings of statements obtained under threat of removal from office, and that it extends to all,
whether they are policemen or other members of our body politic.”). We decline the Estate’s invitation to
adopt a broader reading of Gash that would prohibit our trial courts from considering the adverse
inference prejudicial to the defendant when considering a motion to stay civil discovery.




                                                     7
       Regarding the efficient use of judicial capital, we believe the civil court was
appropriately protective of its own calendar. During the hearing, the trial judge addressed the
possibility that a continuance in Cozmanoff’s criminal case would keep the stay in place longer
than anticipated: “we can’t drag this on down here because of delays upstairs in the criminal
division.” Appellee’s App. at 32. Indeed, the court made clear that it had the authority to revisit
the propriety of the stay at any time and, if necessary, to lift it. We note also that if Cozmanoff
were found guilty, his conviction may have some preclusive effect on the issue of his civil
liability, thus conserving judicial resources in that litigation. See Kimberlin v. DeLong, 637
N.E.2d 121, 125 (Ind. 1994) (holding, in a civil action for wrongful death, the trial court was
correct to grant summary judgment on the issue of the defendant’s liability based on the
application of offensive collateral estoppel, where the defendant had a full and fair opportunity to
litigate the charges against him in his criminal trial and subsequent appeals).


       Non-parties do have an interest in being promptly discovered and joined in the action, but
that interest can still be served under this limited stay. Although the Estate may not be able to
learn the identity of those nonparties by deposing Cozmanoff, it is still free to do so by
conducting other discovery, or by investigating outside the context of formal discovery. Thus,
the stay does not entirely prevent the Estate from pursuing its case.


       Public interest is, we find, a neutral factor; this is not the sort of case in which the public
has any special interest. See Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 529
(D.N.J. 1998) (“Courts have denied stays where the civil case, brought by a government agency,
was intended to protect the public by halting the distribution of mislabeled drugs . . . or the
dissemination of misleading information to the investing public” (citing United States v. Kordel,
397 U.S. 1, 11 (1970); Dresser Indus., 628 F.2d at 1377)). Here, as in Walsh, “there is no
tangible harm to the public from these alleged [acts] that could not be remedied by the criminal
investigation.” Id. at 529.


       The fact that both cases concern identical issues weighs strongly in favor of a stay. The
State charged Cozmanoff with thirteen crimes, including reckless homicide in relation to Meux’s


                                                 8
death. “A person who recklessly kills another human being commits reckless homicide.” Ind.
Code § 35-42-1-5 (2008 & Supp. 2013);5 see also Gibbs v. State, 677 N.E.2d 1106, 1108–09
(Ind. Ct. App. 1997) (“To sustain a conviction of Reckless Homicide, there must be evidence of
probative value supporting each of three elements[:] causation, that the act resulting in the
homicide was voluntary, and that the defendant’s conduct was reckless and not merely
negligent.” (quoting Taylor v. State, 457 N.E.2d 594, 597 n.6 (Ind. Ct. App. 1983))). In its
complaint, the Estate alleged Cozmanoff

                was the operator of a motor vehicle proceeding along 93rd Avenue,
                and was at fault, negligent, reckless, and guilty of gross negligence
                and/or willful and wanton misconduct in causing his vehicle to
                strike plaintiffs’ decedent . . .[,] fled the scene of the accident[,
                and] as a direct and proximate result of the Defendant’s acts or
                omissions, Plaintiffs’ decedent, Britney R. Meux, was critically
                injured and subsequently died.

Appellant’s App. at 12. Thus, the civil and criminal cases turn on the same three issues:
whether Cozmanoff hit Meux with his car, whether he was reckless when he did so, and whether
his action caused her death.


        Finally, the Estate claims the stay offends our Indiana Constitution, which provides “All
courts shall be open; and every person, for injury done to him in his person, property, or
reputation, shall have remedy by due course of law. Justice shall be administered freely, and
without purchase; completely, and without denial; speedily, and without delay.” Ind. Const. art.
1, § 12. When two adverse parties each assert different constitutional interests, the court must
consider each interest “in the light of the other, and in the context of the issues and interests at




5
  As part of the recent comprehensive criminal code revision, this section was amended effective July 1,
2014. P.L. 158-2013, § 415, 2013 Ind. Acts 1402. We cite herein to the version in effect at the time of
the incident giving rise to the litigation, but we note that the revision did not alter the statutory language
we quote above.




                                                      9
stake.” Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 332 (1964). Based upon
our analysis above, we are satisfied the trial court did that here, and we decline the Estate’s
invitation to hold that Article 1, § 12 curtails the trial court’s discretion to impose this limited
stay.




   The Trial Court Did Not Abuse Its Discretion By Requiring Cozmanoff to Answer the
                                            Complaint.



        Cozmanoff, on cross-appeal, argues the trial court erred by ordering him to answer the
Estate’s complaint. He makes a compelling case that filing an answer exposes him to the same
sort of prejudice that deposing him would.            Indeed, courts in other jurisdictions have
acknowledged a stay of discovery is frequently coupled with a stay of responsive pleadings or of
the entire civil case pending resolution of the criminal prosecution. See, e.g., Crawford & Sons,
Ltd. v. Besser, 298 F. Supp. 2d 317, 320 (E.D.N.Y. 2004) (granting a stay “of all the proceedings
in this action, including the service of the defendants’ answers, pending the resolution of the
criminal action.”); Holden Roofing, Inc. v. All States Roofing, Inc., 06-3406, 2007 WL 1173634
(S.D. Tex. Apr. 18, 2007) (granting a stay of all proceedings).


        But the trial court’s decision in this case—to stay discovery against Cozmanoff but still
require him to file an answer—is not unprecedented. See Bridgeport Harbour Place I, LLC v.
Ganim, 269 F. Supp. 2d 6, 11 (D. Conn. 2002) (finding, where defendant argued he would “be
put at risk not only by being subject to discovery . . . but also by having to answer the
complaint,” that a stay of discovery was adequate to protect his interest and a stay of the entire
civil matter was unnecessary).      “While sometimes it is appropriate to stay an entire civil
proceeding, rather than just as to the party moving for the stay, there are also situations where the
right against self-incrimination can be adequately protected while the civil case proceeds in some
limited way.” Ebbers, 871 So. 2d at 788. The trial court concluded this case fell into the latter
category, and we are not convinced that conclusion was an abuse of discretion.



                                                 10
        Even if the answer requirement does not offend the federal constitution, Cozmanoff
argues, we may nevertheless find it incompatible with our own state constitutional protection
against self-incrimination. But we have stated before that

                [e]ven if no national consensus has emerged on this point,
                interpretation of a provision of our state constitution consistent
                with precedent under its federal counterpart is appropriate where
                the tools for constitutional interpretation point in that direction.
                This is true of the core value of the right not to incriminate oneself.

Ajabu v. State, 693 N.E.2d 921, 932 (Ind. 1998) (internal citations and footnote omitted).6 Thus,
we decline Cozmanoff’s invitation to revisit this conclusion, and we affirm the trial court’s order
that Cozmanoff answer the complaint.




                                                Conclusion


        After making its decision, the trial court acknowledged the stay was not a perfect
solution: “I’m not at all satisfied with this ruling. But I think it’s the best I can do right now.”




6
  To support his argument, Cozmanoff quotes one of our prior decisions, in which we said: “In order for
the privilege [against self-incrimination] to be fully realized, it is essential that no aspersions whatsoever
be cast upon the accused for his failure to testify.” Hill v. State, 267 Ind. 480, 485, 371 N.E.2d 1303,
1306 (1978) (quoting Gross v. State, 261 Ind. 489, 491, 306 N.E.2d 371, 372 (1974)). Hill was a criminal
case in which the defendant challenged his conviction for armed robbery by arguing, among other things,
that the following jury instruction was improper: “In this case the defendant has not testified in his own
behalf. It is your duty under our law not to comment upon, refer to, or in any manner consider this fact in
making of any verdict you may return in this cause.” Id. at 484, 371 N.E.2d at 1305. We noted the
federal courts at the time were split as to whether such an instruction constituted reversible error, so we
relied upon our own precedent, Gross, and reversed the conviction. Id. at 484–85, 371 N.E.2d at 1305–
07. Although Hill refers to both the federal and state protections against self-incrimination, it is unclear
which underlies our holding. But because that holding was predicated upon Gross, which dealt solely
with the federal Fifth Amendment, we conclude Hill was also a Fifth Amendment case rather than a
Section 14 case. And Hill did not address “aspersions” outside the criminal context, so we do not find its
reasoning particularly instructive here.




                                                     11
Appellee’s App. at 34. In light of all the circumstances we have discussed above, we cannot
disagree. Our ruling today does not mean the trial court was constitutionally required to impose
the stay;7 simply that it did not abuse its discretion by so doing. Indeed, were we to hold
otherwise, it would be hard to imagine a set of circumstances in which it would be an appropriate
exercise of a trial court’s discretion to order a stay for a defendant in Cozmanoff’s position.


       We therefore affirm the trial court and remand this case for further proceedings consistent
with our opinion today.


Dickson, C.J., Rucker, David, and Rush, JJ., concur.




7
  Cozmanoff urges us to adopt this rule, pointing out that although our federal colleagues have not done
so under the Fifth Amendment, we may nonetheless do so under the Fifth Amendment or under Article 1,
§ 14 of our own Indiana Constitution. Hill, 267 Ind. at 485, 371 N.E.2d at 1305. We find such a broad
holding unnecessary to resolve the issues before us today.




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