Indiana Court Decisions — Sept. 27-Oct. 9, 2018

Indiana Supreme Court

Oct. 3

Criminal — OWI/Advisement of Rights

Monica Dycus v. State of Indiana


The Indiana Supreme Court reinstated a woman’s conviction that the Indiana Court of Appeals had vacated because she did not receive an advisement of her rights before police administered a drug recognition exam after a traffic stop.

In January 2016, Monica Dycus was stopped by police after allegedly following her ex-boyfriend by car. During the stop, officers noticed the smell of marijuana on Dycus’ breath and she admitted that she had smoked marijuana “about an hour” earlier.

Dycus consented to a drug recognition exam and cooperated with a variety of measurements and observations that were assessed in a seven-category evaluation matrix, known as a “drug symptom matrix.” After entering all observations and results of Dycus’s DRE into the matrix, officers determined that Dycus was under the influence of marijuana.

Her blood was drawn by consent and sent for testing out-of-state. Results found her blood tested positive for Delta-9 THC, an active metabolite of marijuana with psychoactive effects. Dycus was charged with Class A misdemeanor operating a vehicle while intoxicated.

At trial, Dycus objected to the admission of evidence regarding the DRE and argued the admission of the chain of custody forms and shipping documents for her blood samples violated her constitutional right to confrontation. The Indiana Court of Appeals reversed Dycus’s conviction when it held that without an advisement of rights, evidence obtained through a DRE is inadmissible. But the Indiana Supreme Court vacated that decision in Monica Dycus v. State of Indiana, 18S-CR-488.

The high court found that under Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, such advisements are not required to obtain valid consent to a DRE from a person in custody, and that evidence obtained from the exam was admissible.

“Although our holding in Pirtle is the foundation for requiring that persons in custody be advised of their right to consult with counsel prior to consent, Pirtle, on its own, does not resolve our inquiry,” Justice Steven David wrote. “After all, Pirtle involved only the search of an apartment; searches can range widely in breadth and scope.”

Justices noted that thus far, the Pirtle requirement has been understood to only apply to searches of homes and vehicles. Field sobriety tests, chemical breath tests, blood draws, and cheek swabs have all been found to be searches not requiring an additional advisement of rights prior to consent. Now, neither are DREs.

“None of the components of a DRE, either individually or cumulatively, have a strong likelihood of uncovering inculpatory evidence of something other than what caused officers to conduct the DRE in the first place. Each component of the exam — the use of the oral thermometer, the examination of the mouth and nasal cavity, the check for the person’s blood pressure — is narrow in scope,” David concluded. “By conducting the DRE, officers were only going to find evidence of Dycus’s intoxication — nothing more. We find that a DRE is specific enough to eliminate the risk of involuntary consent. No additional advisement is needed before a person in custody consents to a DRE.”

Oct. 4

Criminal — Child Molestation/Search, Attenuation Doctrine

David Wright v. State of Indiana


Four Level 1 felony child molesting convictions will be reinstated against a Blackford County man after the Indiana Supreme Court found the man’s incriminating statements to police were sufficiently attenuated from an illegal search and seizure of his apartment. The court’s ruling also more broadly holds that the federal attenuation doctrine can be applied under the Indiana Constitution.

The justices unanimously reinstated David Wright’s child molesting convictions in David Wright v. State of Indiana, 18S-CR-00166. The Court of Appeals had previously reversed Wright’s convictions after finding his confession to molesting two children was an inadmissible fruit of a poisonous tree: the illegal search of his apartment.

FBI special agent Jeffrey Robertson searched Wright’s apartment in January 2016 after obtaining a warrant to search computers at 220 1/2 E. Water St., the address of the upstairs apartment in the home where Wright lived. Wright lived in the downstairs apartment, which had a different address, but Robertson continued with the search after learning both units shared the same internet service.

A scan of Wright’s computer revealed he had accessed child pornography, and during further questioning three days later Wright admitted to molesting the two children who also lived in his apartment. Robertson turned that information over to the Hartford City Police, who also obtained a confession. Though the Blackford Circuit Court later determined the search of the apartment was unconstitutional, it allowed the admission of Wright’s confession and convicted him on the child molestation counts.

The Indiana Court of Appeals reversed under the fruit of the poisonous tree doctrine in January, and during a Supreme Court oral argument attorney Chris Teagle urged the justices to accept the COA’s ruling. The high court, however, agreed with the state’s argument that Wright’s confession was “amply attenuated from the illegal search of his apartment.” The justices’ decision in Wright’s case was based on the underlying ruling that the federal attenuation doctrine can be applied via Article 1, Section 11 of the Indiana Constitution.

Writing for the court, Justice Christopher Goff said the attenuation doctrine “acts as a reasonable check on the exclusionary rule’s fruit of the poisonous tree doctrine.”

“Indiana law has not endorsed a but-for exclusionary rule that automatically excludes all derivative evidence acquired from an illegal search or seizure,” Goff wrote. “And the attenuation doctrine sets the outer limits for exclusion by tailoring the rule to its purpose – deterring police misconduct and defending Hoosiers’ privacy rights.”

The court then laid out a three-part inquiry for examining attenuation claims under the Indiana constitution, though the justices noted they would not limit themselves to considering only these three factors in future inquiries:

• “(T)he timeline – particularly, the time elapsed between the illegality and the acquisition of the evidence;

• (T)he intervening circumstances – what, if any, intervening circumstances occurred in that time; and

• (T)he police misconduct.”

Applying the test to Wright’s case, the court noted Wright had a weekend between the illegal search and his incriminating statements to determine what he would say to Robertson upon his return; Wright voluntary spoke with federal and local law enforcement, and; “(t)he police did not commit flagrant misconduct here or exploit the illegal search.”

“The record does not suggest (Hartford City Police Detective Cody) Crouse exploited the illegal search,” Goff wrote. “Detective Crouse Mirandized Wright and obtained a written waiver from him before interviewing him.” Thus, Wright’s statements were admissible under an attenuation analysis, the court held. The justices also upheld Wright’s 60-year sentence, declining Wright’s request to decrease and the state’s request to increase the sentence.

Indiana Court of Appeals

Sept. 27

Civil Collections — Fraud/“Rent-to-Buy” Contract

Rainbow Realty Group, Inc., and/or Cress Trust v. Katrina Carter and Quentin Lintner,


Would-be homebuyers who won a fraud decision against a company that sells “rent-to-buy” fixer homes after they were evicted lost at the Indiana Court of Appeals.

An appellate panel reversed a ruling against Indianapolis-based Rainbow Realty, ordering Marion Superior Court to rule in its favor instead in Rainbow Realty Group, Inc., and/or Cress Trust v. Katrina Carter and Quentin Lintner, 49A02-1707-CC-1473.

The case attracted multiple amicus briefs from the state and legal aid groups urging the court to affirm a ruling for the plaintiffs, Katrina Carter and Quentin Lintner. The case posed the question of whether plaintiffs were homebuyers or renters under the rent-to-buy contract for the uninhabitable Indianapolis home signed with Rainbow.

The trial court ruled that Rainbow had violated the Landlord-Tenant Act and awarded Carter and Lintner $4,000 for what it concluded were fraudulently deceptive statements, plus $3,000 in attorney fees. Rainbow appealed and the plaintiffs cross-appealed, seeking $35,000 in attorney fees.

Judge Cale Bradford wrote for a panel that ordered summary judgment to be entered for Rainbow Realty.

“We conclude that the Agreement is not a lease subject to the Landlord-Tenant Act,” Bradford wrote. “We do so pursuant to a long line of Indiana precedent requiring all leases to have a definite term and a reversion to the lessor, provisions the Agreement lacks. Our conclusion leads to the further conclusion that there is no basis on which to find that Rainbow committed fraud as a matter of law. Finally, because the Lintners did not prevail in the trial court, they are not entitled to recover any of their attorney’s fees.”

Legal aid attorneys had urged the court to affirm the trial court, citing a business model they said often preys on lower-income and credit-challenged people’s dreams of homeownership. In cases such as this, buyers sometimes make improvements to the homes to make them livable, but fall behind on monthly payments, losing their investment in the properties if they’re evicted.

The appeals panel noted Carter and Lintner fell behind on monthly payments soon after signing agreements with Rainbow to purchase a home at 910 N. Oakland Ave. with little money down and an interest rate of 16.3 percent for a 30-year term. Rainbow also performed repairs that were added to the agreement.

The COA ruled the contract was not a lease, that Rainbow had not committed fraud and that because the trial court erred, the plaintiffs did not prevail and were not entitled to attorney fees.

But the appeals panel did weigh in on claims that such agreements unfairly prey on the homeownership dreams of vulnerable populations, though it stopped short of appeals to address the issue on a public-policy basis.

“The Agreement admittedly has some characteristics that are commonly associated with sales contracts and some commonly associated with leases, Bradford wrote. “On the one hand, the Agreement requires buyers to pay for taxes, insurance, and necessary repairs; allows them to build equity (eventually); and provides that they may sell the property and keep the profit, which are all provisions commonly associated with sales contracts and ownership.

“On the other hand, the Agreement does not provide for the immediate accumulation of equity, places somewhat severe restrictions on the use and alteration of the property, and allows Rainbow to evict in the event of default rather than resort to foreclosure,” Bradford continued. “Devices such as the Agreement seem to be a sort of hybrid, and an argument could be made that neither the current law pertaining to sales contracts nor the current law pertaining to leases is adequate to address the issues such devices raise.

“The Lintners and the amici also argue that rent-to-own contracts such as the Agreement are against public policy, alleging that they are used to prey on ignorant and unsophisticated ‘buyers’ lured by the dream of home ownership who almost invariably end up with neither the home nor their investment in it,” he concluded. “This may happen in some cases. Such concerns, however, are beyond the scope of this opinion and are the province of the General Assembly.”

Juvenile Child in Need of Services — Marijuana/Sufficiency of Evidence

In re the Matter of B.V., Minor Child, and D.V., Mother v. The Indiana Department of Child Services


The Indiana Court of Appeals reversed a child in need of services determination based on the Department of Child Services’ agreement that reversal was required because there was insufficient evidence to prove a mother’s marijuana use ever harmed her minor child.

At the time of his birth in November 2017, both B.V. and his mother tested positive for THC, the psychoactive substance in marijuana. That same month, DCS filed a petition alleging that B.V. was a CHINS after hospital staff reported concerns for mother’s mental health.

A family case worker testified that mother admitted to regularly smoking marijuana during her pregnancy while knowing the effects that marijuana can have on a child, and to smoking marijuana when B.V. was in the home. When case managers and law enforcement arrived at the home for the detention, they detected a strong odor of marijuana inside, and B.V. was placed in a foster home.

After several months of improvement and successful visitations in which a supervisor found mother to be a “a loving doting mom” and that she “took good care of him,” the Decatur Circuit Court placed B.V. with mother as an in-home CHINS. The trial court concluded it felt a CHINS determination was appropriate to make sure that Mother remained drug-free and consistent in her housing and employment.

But the appellate court found there was insufficient evidence to support the Decatur Circuit Court’s CHINS determination, and DCS agreed that reversal was required.

“(T)here is no evidence that Mother had any difficulty in meeting B.V.’s needs and that there were no findings that B.V. had any unmet needs. It asserts that the trial court’s only concern was that Mother was young and could backslide, which does not satisfy the statutory dictates,” Judge Elaine Brown wrote for the court.

“DCS concedes that there was no evidence that Mother’s marijuana use ever harmed B.V. and her visitation supervisor thought Mother did very well at visits and was loving and doting.”

The appellate court also added that in light of the overwhelming number of Indiana CHINS cases, “all would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not.”

The case is In re the Matter of B.V., Minor Child, and D.V., Mother v. The Indiana Department of Child Services, 18A-JC-988.

Sept. 28

Civil Plenary — Welfare Benefits Privatization/Breach of Contract, Damages

International Business Machines Corporation v. State of Indiana, acting on behalf of the Indiana Family & Social Services Administration


The Indiana Court of Appeals has upheld a $78 million judgment in favor of the state and against IBM Corp. that was awarded as part of a long-running legal battle stemming from IBM’s breach of a contract to redesign the state’s welfare system in 2006. But the court also ordered the state to pay post-judgment interest to IBM on a $49.5 million damages award it previously received, overturning a lower court ruling on that issue.

The decision in International Business Machines Corporation v. State of Indiana, acting on behalf of the Indiana Family & Social Services Administration, 49A02-1709-PL-2006, marks just the latest chapter in a “seemingly never-ending saga” that has already been through the entire appellate process once and is now being reconsidered on appeal after a Supreme Court remand. Both parties sued each other in 2010 after the state terminated a master services agreement it had signed with IBM, which was tasked with developing a new claims-processing system for the state.

The original IBM product, known colloquially as modernization, was launched in 2006 and represented a shift toward a centralized call center that could handle customer requests. But after a series of issues with modernization, the state terminated the contract and instead implemented a new system, known as hybrid, in 2009. As the name implies, the hybrid model combined the call center with the prior model that emphasized face-to-face contact with customers.

The case was originally assigned to Marion Superior Judge David Dreyer, who found IBM had not breached the agreement through modernization’s failure and awarded the company $49.5 million in damages. The Indiana Supreme Court reversed on the issue of breach and remanded the case to the trial court for a calculation of damages.

The case was eventually reassigned to Judge Heather Welch, who ordered IBM to pay $78.2 million to the state. But Welch declined to award post-judgment interest to IBM, a decision that became one of two major issues in the August oral argument before the Indiana Court of Appeals.

Specifically, Washington, D.C.-based attorney Paul Clement argued on behalf of IBM that because the $49.5 million damages award was never overturned during the appellate process, the company was entitled to post-judgment interest on the unpaid award dating back to 2012. Clement also said Welch erred in ordering the $78 million damages award, arguing IBM should not be responsible for paying the costs the state incurred by implementing hybrid.

Writing for a unanimous appellate panel, Judge Patricia Riley disagreed with IBM on the latter point, finding first that Welch did not err in setting aside Dreyer’s findings when calculating damages. Riley then upheld the $78 million damages award, finding IBM promised some of the features found in the hybrid model when it initially pitched the failed modernization model.

“Accordingly, we conclude that Hybrid fits the scope, objectives, and requirements of the MSA and implements a working version of Modernization,” Riley wrote, echoing the state’s argument that the only difference between the two systems was that hybrid worked. “Therefore, costs incurred to implement Hybrid are recoverable as damages due to IBM’s material breach of the MSA.”

But the panel did agree to award post-judgment interest to IBM, noting that “the one constant in this case has been IBM’s award of assignment and equipment fees upon IBM’s Complaint against the State.”

“Although the State challenged those awards on appeal, both this court and the supreme court expressly affirmed that portion of the judgment on the combined Complaints,” Riley wrote, remanding the case for calculation of post-judgment interest dating back to July 18, 2012.

Finally, the appellate panel rejected both of the state’s cross-appeals, finding Welch properly set the direct damages cap of the MSA at $125 million and properly denied the state’s request for an additional $36.5 million to cover the salaries of 98 new state employees hired in response to modernization’s shortcomings. 

“As these new positions did not exist under Modernization, their costs cannot constitute a ‘differential’ between the fees paid under the MSA and the replacement cost,” Riley said.

Barnes & Thornburg attorneys John Maley and Peter Rusthoven, who represent the state in this litigation, praised the ruling in a statement. “We are pleased that the Court of Appeals affirmed Judge Welch’s findings that IBM caused $128 million in damages to the State, resulting in a net judgment to the State of $78 million after the $49 million offset, with interest running at 8 percent on that award since August of 2017. This is a significant victory for Hoosier taxpayers. We are reviewing the aspect of the ruling that IBM should receive interest on the offset.”

Criminal — Gun, Drug Convictions/Search of Vehicle in Garage

State of Indiana v. Lawrence Lucas


Drug evidence found in a vehicle in the garage of a home where police were looking for evidence of a prior assault should not have been suppressed, the Indiana Court of Appeals ruled in a reversal.

“We recognize that Hoosiers have a heightened expectation of privacy in their vehicles. However, we find … a search warrant authorizing a search of a particularly described premises permits the search of vehicles owned or controlled by the owner of, and found on, the premises,” Judge Patricia Riley wrote, reinstating drug evidence against a man that had been suppressed in Tippecanoe Superior Court.

In State of Indiana v. Lawrence Lucas, 18A-CR-92, the trial court deemed evidence of synthetic marijuana found in a vehicle parked in Lawrence Lucas’ garage in Lafayette inadmissible under a warrant that had been issued to search for evidence of a prior assault.

Lafayette Police Sgt. Matthew Gard was executing a warrant at Lucas’ home to look for a baseball bat, bloody clothes and blood evidence from an assault at the home reported earlier that allegedly had been perpetrated by Lucas’ sister. The warrant authorized a search of a home with an attached garage to look for that evidence, as well as money and a cellphone that the assault victim claimed had been stolen from him.

Gard found the bat and blood evidence allegedly used in the attack in the kitchen, then went into the garage. There he found a bloodied jacket matching the description of the victim’s on the ground next to the vehicle. He then looked inside the vehicle and discovered a large mound on the back seat covered by a blanket. He reached inside, moved the blanket and discovered what appeared to be synthetic marijuana.

After this discovery and the observation of other evidence of narcotics, Gard stopped his search and procured a second warrant for the drugs, yielding additional evidence. Lucas was charged with Level 4 felony possession of a firearm by a serious violent felon; Level 6 felony counts of dealing in a synthetic drug or synthetic drug lookalike substance and maintaining a common nuisance; and Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance.  

But last December, the trial court granted Lucas’ motion to suppress, ruling the officer’s entry into the vehicle and moving the blanket exceeded the scope of the warrant, rendering all subsequent evidence inadmissible.

While noting the decision did not address unraised claims under the Indiana Constitution, the COA held that the search in this case did not violate Fourth Amendment protections against unreasonable search and seizure, citing United States v. Percival, 756 F.2d 600 (7th Cir. 1985).

“Here, Sergeant Gard procured a search warrant for Lucas’ ‘two story home with an attached two car garage’ to search for ‘[c]lothing, [a] baseball bat, a cellular phone, U.S. currency, blood evidence or any evidence relating to an assault and/or theft occurring with said residence,’” Riley wrote. “When Sergeant Gard entered the garage, he had not yet located the cell phone or the $60 (the victim) had reported stolen. Sergeant Gard was permitted to search the black vehicle and, in the process, to lift the blanket covering the large mound located in the back seat, because the vehicle and the mound were capable of containing those objects.

“The State has shown that the trial court’s ruling granting Lucas’ motion to suppress was contrary to law,” the panel held, remanding the case for further proceedings.

Oct. 1

Miscellaneous — Judicial Review/Administrative Suspension

Joseph Baliga, DVM v. Indiana Horse Racing Commission, Indiana Horse Racing Commission Staff


The Indiana Court of Appeals reversed a decision that found a Hoosier racehorse veterinarian in default without a hearing in a disciplinary action against him by the Indiana Horse Racing Commission.

Joseph Baliga is a licensed veterinarian who specializes in the care and treatment of racehorses. While working at Anderson’s Hoosier Park in September 2016, a security officer reported that he had seen Baliga give a banned substance to a horse.

Baliga faced two disciplinary proceedings by the Indiana Horse Racing Commission — under 71 I.A.C. 10-2, initiated by and conducted by on-site judges at the track, and under 71 I.A.C. 10-3, a separate disciplinary proceeding initiated by the IHRC and its executive director.

Baliga’s license was temporarily suspended by the IHRC until the merits of the case were heard. During a disciplinary hearing conducted by IHRC judges on Oct. 31, 2016, the presiding judge stated, “[W]e should hurry along. We should do what we can to get this case heard on the merits.” However, no further hearing on the merits was scheduled. An “administrative complaint” was then filed against Baliga by the IHRC executive director, proposing a five-year suspension of Baliga’s IHRC license and a $20,000 fine. The complaint stated Baliga had 20 days to make a written request for a hearing.

Baliga filed an appeal of his temporary suspension with the IHRC but did not make a separate request for a hearing on the administrative complaint under the assumption that there would be a hearing on the merits of the case, for which Baliga’s attorney believed a further request for a hearing was unnecessary.

Six days after the deadline had passed, an administrative law judge ultimately found Baliga in default and the IHRC affirmed the ALJ’s order in full. Baliga petitioned the Madison Circuit Court to reverse the IHRC’s finding of default and to remand the matter to the commission for a hearing on the merits but was denied.

On appeal, Baliga contended that the ALJ and the IHRC should not have found him in default and that the trial court erred in denying his petition. The appellate court agreed, rejecting the IHRC’s claim that its entry of default could not be challenged and reversing the trial court’s decision in Joseph Baliga, DVM v. Indiana Horse Racing Commission, Indiana Horse Racing Commission Staff, 17A-MI-3009.

In its decision, the appellate court found the IHRC did not cite any authority to support its position that an agency’s finding of default was non-reviewable under Ind. Code § 4-21.5-5-14(d) and found “no reason why such an action should be immune from judicial review.”

It also found fault with the IHRC’s reliance on 71 I.A.C. 10-3-20, noting that the “seemingly clear line” between its two disciplinary proceedings was “significantly blurred from the very beginning.”

“The Hoosier Park judges, instead of setting a date for a disciplinary hearing under 71 I.A.C. 10-2, stated that the matter ‘will be referred to the Executive Director of the Indiana Horse Racing Commission for further action,’” Chief Judge Nancy Vaidik wrote for the court. “The ruling did not say whether this ‘further action’ would occur in the Hoosier Park proceeding under 71 I.A.C. 10-2 — regulations that do not contemplate a role for the executive director — or in a separate IHRC proceeding under 71 I.A.C. 10-3.”

The appellate court also found that confusion ensued when testimony from the executive director determined the IHRC was still investigating and considering whether to take further action, although on-site judges could take disciplinary action regardless.

Lastly, it noted that the judges left the ball in the IHRC’s court when failing to schedule a hearing for the case’s merits.

“Taken together, these events created the distinct impression that the Hoosier Park disciplinary proceeding and any IHRC disciplinary proceeding would, for all intents and purposes, be consolidated,” Vaidik concluded. “As such, they should not be faulted — or defaulted — for thinking that another hearing request was unnecessary.”

The case was reversed and remanded to the IHRC for a hearing on the merits.

Oct. 3

Civil Tort — Environmental Legal Action/Statute of Limitations

Elkhart Foundry & Machine Co., Inc. v. City of Elkhart Redevelopment Commission for the City of Elkhart


In a decision about the cleanup and redevelopment of an old industrial site, the Indiana Court of Appeals has provided a definitive answer to a long-simmering debate among Indiana environmental lawyers.

The appellate court ruled in favor of the city of Elkhart and, in turn, answered the question over how long someone has to file an environmental legal action to recoup the cleanup costs against the party responsible for the contamination.

Looking at Indiana Code section 34-11-2-11.5, the unanimous panel ruled state law does not bar an environmental legal action (ELA) after 10 years, but rather limits the recovery of previous cleanup costs to the past 10 years.

“… (T)he legislature did not intend for the ten-year limitation period to start running, once and for all, when the plaintiff incurs its ‘first’ cleanup cost,” Chief Judge Nancy Vaidik wrote for the court. “Rather, a new ten-year period starts to run with the incurrence of each additional cleanup cost. Of course, if the plaintiff waits more than ten years from the incurrence of certain cleanup costs to file its ELA, those costs will not be recoverable.”

Elkhart sued Elkhart Foundry & Machine Co. for contaminating a seven-acre site along the Elkhart River with arsenic, lead, chromium and other toxins. Three years after the Foundry closed in 2004, the city discovered the contamination, but it did not purchase the land and begin remediation until 2010.

In 2016, Elkhart filed a lawsuit against the foundry, alleging the business caused the contamination and should pay the cleanup costs. The foundry filed for summary judgment, arguing the city’s ELA claim was untimely under Indiana Code section 34-11-2-7(3), which provides a six-year statute of limitation period. Since the city first knew of the contamination in 2007, it only had until 2013 to take legal action.

Elkhart Superior Judge Stephen Bowers denied the motion for summary judgment and the Court of Appeals affirmed in Elkhart Foundry & Machine Co., Inc., v. City of Elkhart Redevelopment Commission for the City of Elkhart, 20A03-1709-CT-2136. The appellate court described Bowers’ decision as an “excellent, 23-page order.”

At issue in the appeal was the meaning of Indiana Code section 34-11-2-11.5. The statute took effect in 2011 and provides that a plaintiff in an ELA can seek to recover costs incurred not more than 10 years before the date the action is brought. Elkhart asserted the law is a statute of limitations requiring an ELA to be filed within 10 years to recover the full costs. The foundry countered the statute is a cap on the damages that are recoverable in an ELA.

The Court of Appeals held that even though section 34-11-2-11.5 does not include typical statute of limitation language, it has the same effect. Moreover, the General Assembly gave Chapter 34-11-2 the heading “Specific Statutes of Limitations,” which the appellate court took to indicate the Statehouse intended section 34-11-2-11.5 to be read as a statute of limitation. 

Completing its argument, the foundry told the Court of Appeals that even if the law is treated as a statute of limitation, a plaintiff could stretch the 10-year limitation indefinitely by just spending another dollar on the cleanup. The Court of Appeals acknowledged that was true. However, the panel maintained that by creating the 10-year cutoff, the General Assembly gave plaintiffs an incentive to expedite cleanups and file a lawsuit within 10 years of the first incurrence of cleanup costs.

“This scheme is also consistent with the purpose of allowing ELAs in the first place: to encourage cleanup (which leads to redevelopment and economic renewal) by shifting the financial burden to the parties responsible for creating contamination,” Vaidik wrote, citing Cooper Indus., LLC v. City of South Bend, 899 N.E. 2d 1284 (Ind. 2009). “The longer a contaminated site sits vacant, the more important it becomes to allow a suit for the recovery of cleanup costs.”

Oct. 9

Civil Plenary — Medical Malpractice/Summary Judgment

St. Mary’s Ohio Valley Heart Care, LLC, et al. v. Derek F. Smith


Health care providers who removed part of a man’s lung after a biopsy sample was misread as likely cancerous are entitled to summary judgment in his medical malpractice case, the Indiana Court of Appeals ruled, reversing a trial court ruling.

Derek F. Smith, who had been a coal miner for decades and lived with smokers, underwent a lung biopsy in 2012 after seeking emergency medical treatment for shortness of breath and wheezing. An x-ray was abnormal, and after follow-ups, Dr. Elizabeth G. Butler performed surgery that began with a biopsy of Smith’s lung where a lesion had been found.

Pathologist Dr. Hongyu Yang analyzed a frozen slide of the biopsied specimen and informed Butler while she was in surgery that the tissue was cancerous or suggestive of cancer. Butler then performed a lobectomy on Smith that resulted in a loss of about 20 percent of his lung capacity. The next day, the specimen on a permanent section slide was determined to be benign.

Smith sued both the surgery and pathology defendants, claiming medical malpractice in St. Mary’s Ohio Valley Heart Care, LLC, et al. v. Derek F. Smith, 82A05-1711-PL-2594. The Vanderburgh Circuit Court denied those health care providers’ motions for summary judgment, but a panel of the Indiana Court of Appeals reversed the trial court on interlocutory appeal.

“Dr. Butler testified that regardless of whether Dr. Yang specifically reported to her that the frozen slides revealed cancer or that they were suggestive of cancer, she would have proceeded with the lobectomy under the circumstances presented,” Judge Robert Altice wrote for the panel.

Altice wrote that Smith’s designated expert “conceded that the frozen slides could not have been called normal/benign” while Smith was undergoing surgery, “and that they had characteristics that were in fact suggestive of cancer.” It was not until Yang consulted with experts at the Mayo Clinic that it was determined the biopsy was benign, the record says.

“We agree with the Surgical Defendants that this is not the type of case in which the applicable standard of care is within the realm of the common knowledge of a layperson,” Altice wrote. The panel noted the surgical team that proceeded with the lobectomy was considering not just the results of the biopsy, but also the potential risk of subjecting Smith to another surgery, as well as other factors.

“An evaluation of Dr. Butler’s conduct and the medical reasons for proceeding with the lobectomy in light of Smith’s entire clinical picture clearly require expert testimony, which Smith has not provided,” Altice said.

Likewise, Smith failed to prove what the standard of care is for Yang and the pathology defendants in this case, or whether that standard was breached. The court therefore remanded the case to the trial court with instructions to enter summary judgment in favor of all defendants.•

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