Indiana Court Decisions — July 5-18, 2018

7th Circuit Court of Appeals

July 9

Civil – Disability benefits

Anthony Kaminski v. Nancy A. Berryhill 17-3314

Judges must rely on expert opinions instead of determining the significance of particular medical findings themselves, the 7th Circuit Court of Appeals ruled in a case where it found a judge “played doctor” to review limitations caused by a traumatic brain injury.

In 2000, Anthony Kaminski suffered a severe head wound after falling down the stairs, causing a traumatic brain injury and a seizure disorder. Doctors reported that because of the fall, Kaminski had severe cognitive deficits including problems with memory and a change in personality, as well as an inability to understand the severity of his injury.  

Thirteen years after his fall, Kaminski applied under the Social Security Act for disability insurance benefits and supplemental security income, alleging he became disabled on the date of the fall. His neurologist, Dr. Richard Cristea, submitted evidence that Kaminski had “frequent falls” and opined that seizures could be triggered by physical activity, stress, inadequate sleep and dehydration, so Kaminski was incapable of performing even low-stress work.

However, the Social Security Administration denied his applications for disability benefits, so Kaminski took his claim to an administrative law judge. He and his sister testified that his injuries had negatively impacted his cognitive and social abilities, while a vocational expert testified that a person with Kaminski’s capabilities could not hold a full-time job if Cristea’s limits were considered.

But the ALJ also denied Kaminski’s request for disability benefits, finding Kaminski’s mental limitations were not as severe as had been reported and that Cristea’s opinions about his functionality were not consistent with the treatment he offered or Kaminski’s testimony. On appeal, Kaminski argued the ALJ misconstrued his own statements as inconsistent with Cristea’s opinions when they were symptomatic of his frontal-lobe injury, and that the judge did not understand that the physical limits his doctor imposed were meant to prevent seizures. Kaminski also argued the judge was cherry-picking evidence and “playing doctor” instead of heeding the opinion of an actual physician.

The 7th Circuit agreed with Kaminski, finding the judge improperly discounted Cristea’s opinion on all counts. It found that despite sufficient medical evidence to prove limitations caused by Kaminski’s brain injury, the judge relied on his own interpretation to reach a conclusion.

“Where a judge rejects a treating physician’s opinion because it does not align with the judge’s own ‘incorrect interpretation of the medical evidence,’ that decision is not supported by substantial evidence,” Judge David Hamilton wrote on July 9.

The 7th Circuit also found the ALJ had cherry-picked evidence, overlooking a consulting psychologist’s report that Kaminski had diminished cognitive abilities. Instead, the judge relied heavily on the reports of doctors who did not examine Kaminski but who opined that he could work with some restrictions. 

Finally, the 7th Circuit found the judge erred in relying on his own interpretation of Kaminski’s MRI instead of Dr. Cristea’s, citing Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014), which held that administrative law judges are required to rely on expert opinion, not their own.

“Once the treating physician’s opinions are given the proper weight, the record compels the conclusion that Kaminski was unable to work and thus was disabled under the relevant statutes and regulations,” Hamilton wrote.

Failure to give controlling weight to the doctor’s opinion was an error requiring remand, Hamilton concluded. The ALJ’s decision was, thus, reversed, and remanded with instructions to calculate and award benefits to Kaminski.

The case is Anthony Kaminski v. Nancy A. Berryhill, 17-3314.

Civil – Attorney fees/Statutory Interpretation

Scott Robinett v. City of Indianapolis 


In a case involving an Indianapolis Metropolitan police officer trying to recoup attorney fees, a split 7th Circuit Court of Appeals illustrated that taking a plain reading of a statute does not always make things clear.

Indianapolis police officer Scott Robinett and the city of Indianapolis were named defendants in a lawsuit filed by the estate of Kimberlee Carmack. Her estranged ex-husband, Ryan Anders, harassed and intimidated Carmack before killing her, then himself.

Both Carmack and Anders were also Indianapolis police officers. The department had opened an investigation into Anders’ actions and attached a GPS tracking device to his car so Carmack would be alerted when he was near.

However, while Anders got Robinett to confirm the device had been put on his car, Robinett did not inform the investigators. Ten days later, Anders drove his grandmother’s car to Carmack’s house and ended both their lives.

The estate filed claims against Robinett, arguing he failed to intervene to protect Carmack. The U.S. District Court for the Southern District of Indiana granted summary judgment to Robinett and the other defendants.

Robinett subsequently filed a motion for the City of Indianapolis to pay his attorney fees and costs under Indiana Code section 34-13-4-1. But the district court denied the motion, ruling Robinett was acting outside the scope of his employment.

The majority of the 7th Circuit affirmed that ruling on July 9 in Scott Robinett v. City of Indianapolis, 17-2609.

Based on its own reading the statute, known as the public-employee indemnification statute, the majority held Robinett was taking too broad of an interpretation. The majority determined that indemnification is mandatory for a compensatory-damages judgment, but discretionary for paying a settlement or a punitive-damages judgment.

“Read naturally, the word ‘also’ tells us that indemnification of defense costs is subject to the same terms as indemnification of a judgment or settlement: it is available only in a civil-rights action when the government defends or has the opportunity to defend and the public employee was acting within the scope of his employment at the time of the act or omission in question,” Judge Diane Sykes wrote for the majority, joined by Judge William Bauer.

The majority then pointed to Kapitan v. City of Gary, 12 F.3d 678(7th Cir. 1993). There, the appellate court addressed an earlier version of the statute, but held that “payment of costs and legal fees follows from the decision to indemnify the substantive liability; a governmental entity that decides not to indemnify also need not pay these ancillary expenses.”

“In short, the statute protects public employees who act within the scope of their employment from having to foot the bill for defense costs in a civil-rights action regardless of the outcome,” Sykes concluded. “Win or lose, however, the employee must have been acting within the scope of his employment; a mere allegation to that effect is not enough to put the public employer on the hook for the cost of the defense. Both the statutory text and precedent make this clear.”

Judge Ilana Rovner dissented, noting that had the Indiana General Assembly intended to impose the same conditions on the obligation to pay costs and fees that it did on the duty to pay damages, it would have listed the fees and costs in the statute. But it did not, choosing instead to list the duty separately and broadly without similar limitations.

“The majority hangs its interpretation on the word ‘also,’ a rather heavy load for such an unassuming word,” Rovner wrote. “In this context, where it would have been so easy to list fees and costs under the third enumerations, making clear that the conditions precedent applied to that particular obligation, I find it too onerous a burden for the word ‘also’ to carry.”

Rovner also faulted the majority for its reliance on Kapitan. She noted nothing in that decision addresses the issue in the present case of whether fees are covered only for acts taken within the scope of employment and not for acts alleged to be outside of that scope.

July 11

Civil – Warranty

Nicholas Knopick v. Jayco, Inc.


Even though the buyer of the recreational vehicle described it as a “jalopy,” the 7th Circuit of Appeals found the warranty was built solidly enough to prevent the RV manufacturer from having to cover the repairs.

Nicholas Knopick bought a $414,583 Jayco RV at a dealership in Iowa in July 2012, but he signed the purchase documents and took title on behalf of Montana Freedom Rider LLC, a company he controlled. Almost immediately after the sale was complete, Knopick began having trouble with the unit. He said it leaked, smelled of sewage and the features were poorly installed.

Although Jayco repaired the RV twice at its manufacturing facility in Indiana, Knopick was not satisfied and sued the company. The U.S. District Court for the Northern District of Indiana granted summary judgment to Jayco, and Knopick appealed to the 7th Circuit.

District Court Judge Jon DeGuilio ruled Knopick had no rights under the warranty because the RV was actually purchased by a business. The language in the two-year limited manufacturer’s warranty specifically states it does not cover any RV used for commercial purposes or purchased in a business’s name.

Before the appellate panel, Knopick argued Jayco waived the “business-purpose RV” exclusion by performing some repairs at no charge. The company was treating the vehicle as if it were covered by the warranty. But the 7th Circuit disagreed in Nicholas Knopick v. Jayco, Inc., 17-2285, pointing out the warranty also included a provision that stated any fixes done on an RV bought by a business would be considered “good will” repairs and would not alter the terms of the warranty.  

Under Knopick’s waiver argument, the appellate court said, merchants who go beyond their contractual duties would risk obliging themselves to perform new and broader duties. This could discourage amicable resolutions to minor commercial disputes.

“In business generally and in consumer markets, a contracting party’s willingness to go beyond her strictly enforceable legal obligations is a key commercial lubricant,” Judge David Hamilton wrote. “It facilitates trust, long-term relationships, repeat customers, and referrals.”

July 18

Civil – Disability Benefits/Sufficiency of the Evidence

Kelly Chavez v. Nancy Berryhill


A lack of substantial evidence led the 7th Circuit Court of Appeals to remand a social security case filed by a woman who was denied benefits despite being severely impaired by a brain tumor. In 2007, Kelly Chavez was diagnosed with a brain tumor and underwent five surgeries at the age of 21. As a result, Chavez suffers from severe impairments that limit her abilities to performing only simple, routine tasks, with significant restrictions imposed on how much she can lift and carry. 

After applying for supplemental security income in 2010 and receiving a hearing with an administrative law judge, Chavez’s request for benefits was denied at the last step of the process.  Specifically, the vocational expert enlisted by the Social Security Administration to estimate the number of jobs suitable for Chavez offered two vastly different projections, testifying that for one specific job there were either 800 or 108,000 existing positions. The expert preferred the larger estimate, and the ALJ agreed with that choice.

However, the 7th Circuit vacated the district court’s decision, finding it was not supported by substantial evidence because the ALJ failed to ensure the vocational expert’s job estimates were reliable.

“To the contrary, the vocational expert offered no affirmative explanation for why his estimates (or the method that produced them) were reliable and instead reached that conclusion through a process of elimination,” Judge Michael Scudder wrote for the court on July 18.

The 7th Circuit found the ALJ relieved the agency of its evidentiary burden at the final step of the disability analysis and impermissibly shifted the burden to Chavez when it gave such broad deference to the vocational expert’s chosen estimates. For example, when asked if the equal distribution method he used was reliable, the expert said he wasn’t sure if the method would “give a very accurate count on numbers.”

The 7th Circuit noted specific concerns with the expert’s use of the equal distribution method to determine the number of available jobs Chavez could perform, pointing out that the case entirely lacked any testimony from the expert explaining why he had a reasonable degree of confidence in his estimates. Citing four other cases from the last four years where that method was questioned, the court said its biggest concerns centered on the fact that the method rests on “an assumption about the relative distribution of jobs within a broader grouping that lacks any empirical footing.”

“The transcript leaves us with the conviction that the VE mechanically relied on outdated sources to estimate job numbers, without bringing any aspect of his extensive experience to bear on the reality of those numbers,” Scudder concluded. “The substantial evidence standard does not permit the shortcut, and too much is at stake for Chavez for us to take it.”

Thus, the 7th Circuit vacated and remanded the case of Kelly Chavez v. Nancy Berryhill,17-2978, for further proceedings.

Indiana Court of Appeals

July 5

Criminal – Murder/Retrial

Corey Bullock v. State of Indiana


The Indiana Court of Appeals ruled that retrials are not barred if a judgment of conviction is erroneously entered on a chronological case summary, letting stand a murder conviction after the retrial of a man charged with the death of his girlfriend’s infant daughter.

In July 2014, 9-month-old Aiva McGee was left in the care of Corey Bullock when her mother, Apryl Hammer, left for work. Shortly after Hammer left, Aiva stopped breathing. The child, covered in bruises, was placed on life support, and tests showed that Aiva had sustained a “significant and severe brain injury” with hemorrhages on both sides of her head and behind her left eye.

Aiva died on Oct. 2, 2014, and the cause of death was listed as blunt-force injury of the head. Bullock was later charged with murder, as well as aggravated battery and neglect of a dependent resulting in serious bodily injury, both as Level 3 felonies, in connection with Aiva’s death.

After a jury trial, Bullock was found guilty of aggravated battery and neglect, but the jury was hung on the murder charge. The Marion Superior Court declared a mistrial on the murder charge and later retried Bullock in a bench trial, where he was convicted of murder and neglect and was sentenced to 50 years in prison.

Prior to the bench trial, the chronological case summary erroneously reflected that judgment had been entered against Bullock on the battery and neglect charges. On appeal, Bullock argued that because of those erroneous entries, the state was barred from retrying him according to the statutory double-jeopardy principles discussed by the Indiana Supreme Court in Cleary v. State, 23 N.E.3d 664 (Ind. 2015).

However, the Court of Appeals found that because the trial court did not actually enter judgment of conviction and had promptly removed the judgment entry from the CCS, the state was not barred from retrying Bullock on all three counts. In applying Cleary, the appellate court referred to the Supreme Court’s explanation that a guilty verdict and judgment of conviction are “two rather different things.”

“In other words, a guilty verdict is only a significant legal event ‘if a court later enters judgment on it,’” Chief Judge Nancy Vaidik wrote on July 5 in Corey Bullock v. State of Indiana, 49A05-1706-CR-1247. “Because the trial court had not entered judgment of conviction on the lesser-included offenses, our Supreme Court found that retrial was permissible.”

The appellate court also noted that in Cleary, the justices did not say retrial is barred if judgment of conviction is erroneously entered but then quickly vacated. The panel determined Bullock’s argument failed because it found no entry of judgment of conviction after the first trial, noting that “the parties did not ask the trial court to enter judgment of conviction, the court did not orally do so, and there was no written judgment doing so.”

“But even if we were to treat the November 2 CCS entries as an entry of judgment,” Vaidik wrote, “the trial court made clear that it was a mistaken entry because it did not actually enter judgment of conviction, and Bullock cites no authority that would prevent the court from going back and fixing its mistake.”

July 18

Civil tort – Medical Malpractice/Summary Judgment

Theresa Biedron, et al. v. Anonymous Physician 1, et al. 


The Indiana Court of Appeals has granted summary judgment to physicians and their hospitals in three nearly identical medical malpractice and wrongful death cases filed more than seven years after the deaths of three patients after finding the actions could have been filed years prior.

The three patients, Louis Biedron, Dorothy Sullivan and Patricia Poteet, each received treatment from two anonymous physicians and their hospital, who implanted cardiac pacemakers in all three patients. Biedron died almost 1 ½ years after his surgery, Sullivan died during her surgery and Poteet died almost a year and three months after her surgery.

More than seven years after their deaths, personal representatives from each estate filed malpractice complaints and wrongful death suits against the physicians and hospital. Defendants in all three cases moved for summary judgment on the basis that the complaints were filed outside the two-year statutory limitation period. In response, the estates contended the period should be tolled by the doctrine of fraudulent concealment and submitted a supporting affidavit from Dr. Nadim Nasir, Jr., who said the anonymous physicians fell below the applicable standard of care.

The Lake Superior Court granted summary judgment to the Biedron defendants, but denied it to the Sullivan and Poteet defendants. The court also denied the Sullivan and Poteet defendants’ motion to strike Nasir’s affidavit and granted a motion filed by Poteet’s estate to strike the Poteet defendants’ reply briefs.

In a July 18 order partially affirming and denying the trial court’s ruling, the appellate court found each estate failed to establish an issue of material fact as to their fraudulent concealment theories, as well as establish the defendants’ concealment of material information prevented the plaintiffs from investigating the condition of the deceased more closely.

The court also noted the Biedron and Sullivan estates could have requested medical records soon after their deaths, which would have revealed the same information they relied on to assert that the physicians committed malpractice. Thus, summary judgment was appropriate for all defendants.

In the case of Biedron, the appellate court found the estate’s argument was critically flawed because Nasir had no personal knowledge of what the anonymous physician actually told Biedron about the pacemaker. It concluded, then, that the trial court should have disregarded Nasir’s statements.

Likewise, in the cases of Sullivan and Poteet, the defendants moved to strike Nasir’s affidavit based on his lack of personal knowledge and speculation. The COA reversed the denial of those motions, again pointing to Nasir’s inadmissible statements.

Finally, the appellate court reversed the striking of the Poteet defendants’ reply briefs, finding the arguments made in those briefs were proper responses to the fraudulent concealment argument.

The case is Theresa Biedron, et al. v. Anonymous Physician 1, et al., 45A03-1708-CT-2012.•

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