Indiana Court decisions – Aug. 2–15, 2018

7th Circuit Court of Appeals

Aug. 3

Civil Tort — Social Security Disability/Denial of Benefits

Susan Spicher v. Nancy Berryhill 

17-3399

An administrative law judge’s failure to meet the minimum requirement of explaining her decision in a disability benefits case drew criticism from the 7th Circuit Court of Appeals on Aug. 3.

In the case of Susan Spicher v. Nancy Berryhill, 17-3399, an ALJ failed to explain her reasoning as to why she denied Susan Spicher’s request for social security disability insurance benefits and supplemental security income.

Spicher suffers from a series of chronic health problems, including osteoarthritis, degenerative disc disease, chronic obstructive pulmonary disease, fibromyalgia and morbid obesity. She applied for benefits in 2010, dating her limitations back to 2003.

Spicher’s case has come up for judicial review twice, and both times the ALJ concluded that Spicher had not become disabled until September 20, 2012. At the second hearing in 2016, Spicher narrowed her case, focusing on whether she had been disabled since December 31, 2008, when her insured status expired.

The ALJ reconsidered Spicher’s obesity in consulting with a second doctor but said those findings did not motivate her to change her decision, which rested on her finding that Spicher could hold a sedentary position and perform three jobs identified by a vocational expert. In addition, the ALJ found Spicher could occasionally crouch, crawl, balance, stoop and kneel.

However, Spicher argued the ALJ did not address contradictory medical evidence when determining the types of sedentary jobs that Spicher could hold and that the ALJ failed to consider the interaction between her obesity and her non-severe impairments. The 7th Circuit agreed with Spicher’s arguments, noting that although the ALJ is not required to adopt the recommendations of an examining physician, she must provide enough analysis to allow a reviewing court some idea of why she rejected significant evidence that cut against her conclusion.

At the second hearing, the ALJ did not address either of her residual-functional-capacity findings that were undercut by consultative examiner, Dr. Crystal Strong. Strong concluded Spicher was severely overweight, “recommended that she does not have a completely sedentary job” and said she can ambulate for up to 20 minutes at a time with rests in between.

Despite according “great weight” to Strong’s findings and opinions, the ALJ omitted them in her required analysis.

“Because Dr. Strong’s recommendation suggested further limitations, it contradicted the ALJ’s finding on residual functional capacity,” Chief Judge Diane Wood wrote for the panel. “The ALJ was therefore required to provide enough analysis to allow a reviewing court to determine why she rejected it. Because the ALJ failed to do so, her decision to deny benefits cannot satisfy the substantial evidence standard.”

Other findings by Strong concluded that Spicher could not in fact, balance, stoop, kneel, crouch and crawl, as the ALJ had decided she could. Findings also showed Spicher’s inability to walk on her heels cast doubt in the 7th circuit on the ALJ’s finding that Spicher could regularly balance.

“The ALJ did nothing to address these concerns,” Wood said. “That alone is a ground for remand.”

Finally, the 7th Circuit found the ALJ ignored the interaction between Spicher’s obesity and her non-severe impairments, including prolonged effects of a humerus fracture and carpal tunnel syndrome.

It concluded that on remand, the ALJ must address — but is not required to accept — Strong’s recommendation that Spicher regularly ambulate, address evidence in Strong’s report that Spicher could not perform certain postural activities and account for the effects of Spicher’s humerus fracture and carpal tunnel syndrome.  

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Aug. 14

Civil Tort — Summary Judgment/Excessive Force By Paramedic

Billie Thompson v. Lance Cope

17-3060

Caselaw does not clearly establish that a paramedic can violate a patient-arrestee’s Fourth Amendment rights by exercising medical judgment to administer a sedative in a medical emergency, the 7th Circuit Court of Appeals affirmed Aug. 14.

Following a naked public rampage while high on amphetamines, Dusty Heishman’s heart stopped after a paramedic administered a sedative detain him.

On an October night in 2014, paramedic Lance Cope was informed by an officer that he needed to “take a look” at Heishman, who “was being combative.” Cope had been called to the scene in response to a report of an animal bite, but he discovered it was a human bite made by Heishman.  

When Cope arrived, Heishman was naked and lying prone in the middle of the street. His hands were cuffed behind his back and his ankles were shackled together after fighting and struggling against several officers who restrained him.

After an assessment, Cope injected Heishman with a sedative, Versed, as a “chemical restraint for patient and crew safety,” and watched his breathing. The darkness made it difficult for Cope to make an assessment, and upon entering the ambulance, Cope saw that Heishman was not breathing and found he had no pulse. Seven minutes of CPR restored Heishman’s heartbeat and breathing, but he remained unconscious. Heishman lost brain function and died eight days later.

Heishman’s estate sued Cope, the Health and Hospital Corporation of Marion County, and other defendants, asserting federal Fourth Amendment and state-law tort claims. The estate brought claims against Cope in his individual and official capacities for excessive force, deliberate indifference, and failure to protect/intervene.

The estate also brought six state-law claims against Cope, the hospital, or both including wrongful death; damages resulting from injuries sustained before Heishman’s death; intentional infliction of emotional distress; negligent infliction of emotional distress; negligence and battery.

Cope and the hospital moved to dismiss the state-law claims for lack of subject-matter jurisdiction, arguing that Indiana’s Medical Malpractice Act required the estate to take those claims before a medical review panel before filing suit. The district court dismissed the wrongful death claim against the hospital but denied the motion with respect to the other state-law claims.

Cope then moved for summary judgment on the federal constitutional claims. The district court granted the motion on the official-capacity claims and the claims against Cope for deliberate indifference and failure to protect/intervene but denied it on the excessive force claim against Cope in his individual capacity.

The 7th Circuit reversed that denial on appeal, finding Cope entitled to qualified immunity on the excessive force claim. It also found that all six state-law claims were subject to the substantive terms of Indiana’s Medical Malpractice Act, including damage caps and the requirement to submit the claim to a medical review panel before suit is filed.

It also found that the district court tried to “to treat this case as an obvious one, evident from broad principles in excessive force cases.” The 7th Circuit concluded that a paramedic would not be reasonably familiar with Circuit and Supreme Court precedent or would have understood that the Fourth Amendment prohibition of unreasonable searches and seizures applies to treatment in the field during a medical emergency.

Neither the estate nor the district court cited cases where a court found that conduct like Cope’s — administering a therapeutic drug in response to a medical emergency — violated the Fourth Amendment, the 7th Circuit continued. Cases cited by the plaintiff and district court involved excessive force cases brought against police officers, not medical professionals.

“To treat the right as clearly established, the district court boiled away key circumstances of the situation here — especially the fact that Cope was a paramedic confronting a patient suffering from a life-threatening emergency,” Judge David Hamilton wrote. “Those facts take this case out of the realm of clearly established Fourth Amendment law.”

Finally, the 7th Circuit affirmed that the estate’s state-law claims must be dismissed without prejudice, are subject to the Indiana Medical Malpractice Act and must be presented to a medical review panel under the Act before the plaintiff estate may proceed in court.

It concluded that the facts of the circumstances “fit comfortably” within the broad statutory definitions of the Act.

“Instead, the estate’s arguments — about whether Cope gave the right dosage of the sedative or negligently failed to monitor Heishman or changed his prone position — sound in malpractice,” Hamilton concluded. “To resolve those issues, a judge or jury will need to evaluate Cope’s actions in terms of medical standards of care. The accompanying claims for emotional distress are also subject to the Act because they result from the alleged malpractice.”

The 7th Circuit reversed the denial of Cope’s motion for summary judgment on the excessive force claim and the denial of defendants’ motion to dismiss the state-law claims, remanding Billie Thompson v. Lance Cope, 17-3060, with instructions to dismiss the estate’s state law claims without prejudice and to dismiss the federal claims against Cope with prejudice.

Indiana Supreme Court

Aug. 10

Judicial Discipline — Reprimand/Impartiality

In the Matter of the Honorable Ryan D. Johanningsmeier, Judge of the Knox Superior Court 2

18S-JD-351

A Knox Superior Court judge had been publicly reprimand for reinstating a close friend’s suspended driver’s license and suggesting a deputy prosecutor dismiss the case, according to an Indiana Supreme Court order issued Aug. 10.

Judicial discipline charges were filed against Knox Superior 2 Judge Ryan D. Johanningsmeier by the high court in June after he was charged with three counts of misconduct related to a case where he did not recuse himself even though he was partial to the defendant.

In 2015, B.K., a close friend of Johanningsmeier, was charged with speeding in Bicknell City Court, resulting in the suspension of his driver’s license. Later that month, Johanningsmeier issued an order granting his friend’s petition and reinstated the license without disclosing their relationship or notifying the prosecutor. This came just two weeks after the friends vacationed together out-of-state, according to the Commission on Judicial Qualifications.

The commission concluded Johanningsmeier’s conduct violated six provisions of the Code of Judicial Conduct:

• Rule 1.1, requiring judges to comply with the law;

• Rule 1.2, requiring judges to avoid impropriety and act at all times in a manner promoting public confidence in the judiciary’s integrity;

• Rule 1.3, prohibiting judges (as relevant here) from abusing the prestige of judicial office to advance others’ personal or economic interests;

• Rule 2.2, requiring judges to uphold and apply the law and to perform all judicial duties fairly and impartially;

• Rule 2.4(B), prohibiting judges from allowing (as relevant here) social relationships to influence the judge’s judicial conduct or judgment, and;

• Rule 2.11(A), requiring judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

“As mitigators, the parties agree that Judge Johanningsmeier cooperated with the Commission’s investigation and is remorseful,” the court order read. “And they agree that the appropriate sanction under the circumstances is a public reprimand plus assessing costs of this proceeding against Judge Johanningsmeier.”

The high court cited In re Van Rider, 715 N.E.2d 402, 404 (Ind. 1999) in its decision to publicly reprimand the judge.

“In In re Van Rider, a judge failed to recuse from his son’s criminal case and instead ordered him immediately released from jail on his own recognizance,” the order said. “Similarly here, Judge Johanningsmeier failed to recuse and instead acted to secure favorable treatment for his friend. Such actions are obvious violations of a judge’s most basic ethical duty — impartiality.”

The high court concluded that if a public reprimand was appropriate for In re Van Rider, it would also be appropriate for Johanningsmeier.

The case is In the Matter of the Honorable Ryan D. Johanningsmeier, Judge of the Knox Superior Court 2, 18S-JD-351.

Indiana Court of Appeals

Aug. 6

Civil Plenary — Breach of Contract/Jurisdiction

Beverly K. Oswald v. Tarek Shehadeh and Falon Vela

29A02-1711-PL-2627

A breach of contract dispute between business owners in Indiana and Arkansas will continue in Indiana courts after the Indiana Court of Appeals reversed the dismissal of the Indiana-filed complaint for lack of personal jurisdiction.

Beverly Oswald is the sole owner of Eville Louie, LLC, which owns and operates Bar Louie restaurants and is headquartered in Indiana. In January 2010, Eville Louie owned and operated two Bar Louie Restaurants in the Little Rock, Arkansas, area — Little Rock Louie, LLC, and North Rock Louie, LLC.

Oswald hired Tarek Shehadeh as the Little Rock Louie general manager after conducting interviews that took place in Indiana. As part of his duties as general manager, Shehadeh repeatedly contacted Oswald and other Indiana residents and traveled to Indiana to attend Bar Louie management meetings.

In 2015, Shehadeh and Falon Vela contacted Oswald in Indiana and expressed their interest in buying Little Rock Louie and North Rock Louie, and Oswald agreed. The sale held that Shehadeh and Vela “assume[d] and agree[d] to pay all lender obligations relative to both businesses,” including eight promissory notes held by Indiana residents or Indiana corporations.

While operating the restaurants, Shehadeh and Vela continued to use an Indiana payroll company, an Indiana insurance agent and Indiana accountants. Shehadeh also “received corporate mail in Indiana” through October 2017.

But in January 2017, Oswald sued Shehadeh and Vela in Hamilton County for breach of contract, but Shehadeh and Vela separately moved for the case to be dismissed for lack of personal jurisdiction. The Hamilton Superior Court agreed, but the Indiana Court of Appeals reversed on Monday.

Oswald argued on appeal that the trial court erred when it granted the motions to dismiss because there were sufficient minimum contacts to establish personal jurisdiction over Shehadeh and Vela, and that the pair failed to prove that exercise of personal jurisdiction over them was unreasonable.

Though the appellate court agreed with Shehadeh that “enter[ing] into a contract with an Indiana resident, is, without more, insufficient to subject him to suit in Indiana,” it found there was more than just a contract in the matter — there were multiple contacts with Indiana, some of which were still ongoing during the case.

The appellate court noted Shehadeh solicited Oswald in Indiana to sell her restaurant, and because because they continued multiple business relationships in Indiana, Oswald met her burden of proving Shehadeh and Vela had sufficient minimum contacts related to the contract in Indiana for there to be specific personal jurisdiction there.

The court also found Shehadeh failed to show how proceeding in Indiana would burden him and whether Indiana had an interest in adjudicating the dispute as the forum state. He also presented other unrelated arguments to the issue at hand, failing to address the remaining factors of the test. Ultimately, the appellate court concluded Shehadeh failed to meet his burden to present a compelling case for why litigating the dispute in Indiana was unreasonable.

Thus, the case of Beverly K. Oswald v. Tarek Shehadeh and Falon Vela, 29A02-1711-PL-2627, was reversed and remanded for further proceedings in Indiana.

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Aug. 9

Civil Tort — Medical Malpractice/Expert Witness

James E. Shaw, Administrator of the Estate and as Father of Jaymes G. Shaw, deceased v. Chandra Sundaram, M.D., and Kelli Metelues

49A02-1710-CT-2470

The Indiana Court of Appeals affirmed a jury verdict in favor of a doctor sued for malpractice after a patient died, finding the trial court didn’t err in limiting the plaintiff’s evidence.

In October 2009, 19-year-old Jay Shaw died from cardiac arrest during a cystoscopy and stent replacement procedure. Shaw, who had received a kidney transplant, underwent the procedure on his transplanted kidney after he arrived at the emergency room and was diagnosed with pneumonia and acute renal failure.

In October 2011, Shaw’s father, James Shaw, filed a medical malpractice action against Dr. Chandra Sundaram and others, in which a Medical Review Panel found in favor of Sundaram and the other defendants. In November 2013, James Shaw sued Sundaram alleging negligence on behalf of Jay’s estate.

During a lengthy discovery process, Shaw’s counsel continually failed to timely provide the trial court with information about his expert witness’ opinions. When Shaw finally served a supplemental final witness list in September 2016, expert witness Dr. Allen Griggs was listed for the first time since the start of the two-year process, with no information regarding his opinions.

In February 2017, Shaw moved the trial court to permit him to substitute Griggs for another expert on his list, but the trial court denied Shaw’s motion and barred Griggs from testifying, saying it would be “highly prejudicial” to allow a substitute “just 47 days before a two-week jury trial.”

When Shaw requested to call Griggs as a witness during trial, the trial court denied it again, noting the “many hard and clear deadlines that had been put in place throughout the proceedings and the many extensions of those deadlines it had afforded to Shaw.”

In March 2017, Dr. Sundaram filed a motion in limine to bar any new claim not submitted to the medical review panel, including any undisclosed claim regarding informed consent, which the trial court granted.

Shaw argued the trial court erred in its denial of his request to substitute Griggs for another expert witness and by denying his request to call Griggs as a rebuttal expert witness.

The appellate court declined to second-guess the trial court’s frustrations with discovery tactics and credibility presented by Shaw’s counsel in James E. Shaw, Administrator of the Estate and as Father of Jaymes G. Shaw, deceased v. Chandra Sundaram, M.D., and Kelli Metelues, 49A02-1710-CT-2470.

The court found that given the lengthy history of discovery violations and failure to timely identify both Griggs and his opinions, the trial court acted within its discretion to deny Shaw’s request for Griggs to be called as an expert witness.

“Even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs’s testimony would have been,” Judge John Baker wrote for the court.

The appellate court also noted that during the years-long discovery process, naming five expert witnesses, and finally electing to comply with trial court orders, not once did Shaw state that any of his experts would testify regarding informed consent.

“Moreover, at no point during the trial did Shaw make any offers of proof regarding an informed consent claim,” Baker concluded.

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Aug. 15

Civil Tort — Personal Injury/Rehearing

William R. Harr and Finster Courier, Inc. d/b/a Elite Express v. Julian Hayes and Tracey Hayes

49A02-1711-CT-2595

The Indiana Court of Appeals, which issued a stern warning to defendants about misrepresenting their case, acknowledged an amended exhibit had been given to the trial court.

In the original case, two semi-tractor trailers driven by Julian Hayes and William Harr collided on Interstate 465 in July 2015. Hayes, who was injured in the accident, filed suit in Marion Superior Court. Harr and his employer, Finster Courier d/b/a Elite Express, tried to transfer the case to federal court but Hayes countered federal court lacked jurisdiction because the amount in controversy did not exceed $75,000.

The case went to trial, where a jury awarded Hayes $187,500. In response, the defendants filed a motion to correct error and asked the judgment be reduced to $75,000. After the Marion Superior Court denied the motion, the defendants appealed.

The Court of Appeals affirmed the trial court, finding it did not err in denying the defendants’ motion to correct error.

However, in a footnote, the appellate court admonished the defendants for not submitting the complete order from the federal district court. The defendants’ Exhibit C was the district court’s six-page order but left out was page five, which contained the discussion of the defendants’ failure to meet their burden of proof.

The Court of Appeals saw the omission as misrepresenting to the trial court the reasoning behind the district court’s order. Namely, the federal court tossed the case because it found the defendants had failed to meet their burden, but the incomplete Exhibit C gave the impression the court dismissed because the of the amount in controversy.

“We are deeply troubled by the Defendants’ all too convenient omission and we remind counsel of Indiana Professional Conduct Rule 3.3(a)(3) requiring candor to the tribunal and precluding a lawyer from knowingly providing evidence the lawyer knows to be false,” Judge Margret Robb wrote for the court.

The defendants then returned to the Court of Appeals. They filed a petition for rehearing on the grounds the court failed to acknowledge that Harr and Finster Courier had corrected their omission.

The appellate court issued is ruling on rehearing Aug. 15 in William R. Harr and Finster Courier, Inc. d/b/a Elite Express v. Julian Hayes and Tracey Hayes, 49A02-1711-CT-2595.

The COA noted the defendants did file an amended exhibit four days after filing its motion to limit judgment. However, the exhibit was not labeled as being amended and was not identified in the table of contents as a separate filing.

Consequently, the Court of Appeals maintained it was unaware of the document’s significance in relation to the defendants’ earlier filing. In fact, the complete order from the district court was supplied by Hayes in his responsive pleading which was included in the defendants’ corrected appendix, volume one.

“Accordingly, we grant rehearing solely to acknowledge that Defendants filed an amended exhibit in the trial court to reflect the district court’s order in its entirety,” Robb wrote. “To the extent our opinion reflects otherwise, it is to be disregarded.”•

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