Indiana Court Decisions — Jan. 18-30, 2019

7th Circuit Court of Appeals

Jan. 22

Civil Tort — Surgical Mesh Product Liability/Causation

Charlotte Robinson and Bobby Don Bowersock as co-personal representatives of the Estate of Georgia J. Bowersock, deceased, and Mark Bowersock, individually v. Davol Inc. and C.R. Bard, Inc.


The estate of a woman who died after a surgical mesh patch was implanted in her body will not be able to proceed with a lawsuit against the patch’s manufacturer and patent holder after the 7th Circuit Court of Appels upheld summary judgment for the defendants.

The estate of Georgia Bowersock, represented by Charlotte Robinson and Bobby Don Bowersock, sued C.R. Bard, Inc. and Davol Inc. after Bowersock died in October 2006. In July 2005, a surgical mesh patch designed to treat hernias was implanted in Bowersock’s abdominal area, though Bard and Davol — which manufacture the patch and own its patent, respectively — recalled the product the following December.

In early October 2006, Bowersock went to the emergency room with abdominal-wall abscess, and after returning to the ER a second time and later experiencing a heart attack, she died at the end of the month. Her cause of death was determined to be pneumonia, but in the lawsuit against Bard and Davol, Bowersock’s estate alleged the patch was defective and had caused her death.

The estate retained three experts for its case. First, they hired Dr. Stephen Ferzoco, who presented the novel theory that the memory ring within the patch, which enables the patch to adhere to the abdominal wall, had buckled, “rub[ed] up against the bowel” causing a break, then “seal[ed] up prior to explanation or discovery of the mesh in the bowel.” The plaintiffs also presented Dr. William Hyman, who admitted that he never examined or viewed Bowersock’s patch, and the coroner.

The district court, however, granted the defendants’ motion to exclude all three experts, finding Ferzoco’s theory failed to meet Evidence Rule 702’s reliability threshold, Hyman was not qualified to opine on medical causation, and the coroner was not timely disclosed as a witness. The Southern Indiana District Court then entered summary judgment for Bard and Davol, and the estate appealed.

The 7th Circuit ultimately agreed with the district court’s decision to exclude the expert testimony, focusing its review on Ferzoco’s testimony. Judge Diane Sykes, writing for the unanimous panel, said the lower court properly applied the Daubert framework to exclude Ferzoco’s theory, noting the theory had not been peer reviewed and was not supported by Bowersock’s medical records or the records of other patients.

Sykes further rejected the estate’s “differential diagnosis” argument, finding they did not raise that argument at summary judgment. And even if preserved, the argument would fail on the merits, Sykes said, because Ferzoco did not establish his theory as being sufficiently reliable.

“In sum, the plaintiffs cannot prove medical causation without Dr. Ferzoco’s testimony,” Sykes concluded. “The record reflects that the judge properly applied the Daubert framework and soundly exercised his discretion to exclude it. It follows that Bard was entitled to summary judgment.”

Indiana Supreme Court

Jan. 23

Agency Action — Unemployment/Driver Contractor Classification

Q.D.-A., Inc. v. Indiana Department of Workforce Development


A “middleman” business that matches drivers with customers needing drive-away services properly classified one of its drivers as an independent contractor instead of an employee, the Indiana Supreme Court ruled in an opinion meant to resolve a conflict between two lower court rulings.

The decision in Q.D.-A., Inc. v. Indiana Department of Workforce Development, 19S-EX-43, involves Q.D.-A., a business that provides drivers to customers who need too-large-to-tow vehicles driven to them. Q.D.-A. contracted with one driver in particular who was allowed to choose his own hours and routes, negotiate pay and contract with competitors, among other privileges.

Further, the driver’s contract defined him as an independent contractor, so Q.D.-A. did not pay unemployment taxes for him. However, when the driver left Q.D.-A. and filed for unemployment, the Department of Workforce Development used the “ABC Test” to determine that the driver should have been classified as an employee. Specifically, the department found Q.D.-A. failed to prove the driver was free from the company’s control and direction, performed work outside of the company’s usual course of business and was customarily engaged in an independently established trade or business of the work performed.

A liability administrative law judge agreed, finding Q.D.-A. proved only that the driver ran an independently established business. Further, the ALJ noted Q.D.-A provided an orientation to its independent contractors and “is a provider of one-way transportation of commodities,” evidence the judge said proved the driver was under the company’s control and operated within the company’s usual course of business.

A divided Indiana Court of Appeals reversed in March, finding Q.D.-A satisfied the ABC Test. But Judge Melissa May dissented, finding the majority’s decision to be in conflict with Company v. Indiana Department of Workforce Development, 86 N.E. 3d 2014 (Ind. Ct. Ap. 2017).

The Indiana Supreme Court justices agreed with the dissent that the two Court of Appeals decisions conflicted with each other and, thus, granted transfer. However, the justices also agreed with the majority of the Court of Appeals that the driver was not an employee and, thus, reversed the LALJ’s decision.

Justice Mark Massa, writing for the court, first said the driver was not under Q.D.-A.’s control either under contract or in fact. Under contract, Massa noted the driver had “ultimate control” over how to complete his work and was allowed to work for Q.D.-A. competitors. Further, the driver was not controlled in fact because Q.D.-A.’s orientation simply reiterated existing federal regulations.

“In sum, Driver had total control over how – and even if – he completed his work,” Massa wrote. “No evidence shows Q.D.-A., in fact, controlled Driver in a way that would make him an employee. Instead, as the Department’s investigator herself contemplated, all these facts show the ‘opposite’ of control.”

The court likewise found that that driver performed a service outside of the company’s usual course of business, adopting New Hampshire and Connecticut definitions of “course of business.” Q.D.-A. did not regularly or continually provide drive-away services as the driver did, the court held, but instead was a middleman between drivers and customers.

Finally, the court assumed the driver was engaged in an independently established business because neither party disputed the LALJ’s finding on that issue.

The LALJ’s ruling was thus reversed as unreasonable. Justice Geoffrey Slaughter concurred in result without separate opinion.

Indiana Court of Appeals

Jan. 22

Juvenile — CHINS/Insufficient Evidence

In the Matter of L.N., Jr., a Child Alleged to be a Child in Need of Services; C.N. (Mother) and L.N., Sr. (Father) v. Indiana Department of Child Services


The Indiana Court of Appeals reversed the adjudication of a baby found to be a child in need of services after finding that the Department of Child Services failed to prove the parents’ mental health issues seriously endangered the baby.

In February 2017, previously homeless parents C.N. and L.N., Sr. moved into a home and applied for food subsidy services for their one-month-old baby, L.N., Jr. The couple also engaged in services with Healthy Families and the Hope Center, while also finding a doctor for L.N., Jr. at the Neighborhood Health Clinic.

But a few months later, the Department of Child Services received a report about the parents’ mental health and their ability to care for the baby. C.N., the mother, admitted that she had been previously diagnosed with bipolar disorder and had stopped taking her medication.

After several visits from a family case manager and discussions with the family’s service providers, L.N., Jr. was removed from the home. DCS then filed a CHINS petition, and a psychologist who examined the parents opined that C.N. likely had a schizotypal personality disorder, while L.N., Sr., had a “below average” intellectual functioning. Those mental problems, the psychologist said, could interfere with their parenting ability.

The Allen Superior Court then determined L.N., Jr. was a CHINS, agreeing that the parents’ mental health disorders “interfere with their ability to appropriately care for and parent the child.” But on appeal, C.N. and L.N., Sr. argued DCS failed to present sufficient evidence to demonstrate L.N., Jr. was a CHINS.

Specifically, the parents argued there was not sufficient evidence to prove L.N., Jr. was seriously endangered by their actions or inactions, that his needs were unmet or that they would go unmet in the absence of coercive intervention of the court. The appellate panel agreed that there was insufficient evidence to prove L.N., Jr. was in serious danger in In the Matter of L.N., Jr., a Child Alleged to be a Child in Need of Services; C.N. (Mother) and L.N., Sr. (Father) v. Indiana Department of Child Services, 18A-JC-1666

The appellate judges noted DCS failed to present any evidence relevant to the actual impact, if any, of C.N.’s mental illness or L.N., Sr.’s low intellect on the child’s safety. It added that testimony from service providers amounted to speculation about parenting issues that may or may not materialize in the future.

“We understand that Mother’s mental illness and Father’s low intellect may be a cause for concern for DCS. But a cause for concern is not the touchstone of a CHINS determination, and an unspecified concern about what might happen in the future is insufficient in itself to carry the State’s burden of proof,” Judge Edward Najam wrote for the court. “Indeed, future concerns rather than present facts are not enough to support a CHINS determination.”

The appellate court further added that by the time of the fact-finding hearing, both parents had resolved their prior issues with transience and cleanliness and had learned how to properly feed and parent L.N., Jr. by engaging in parenting classes with a therapist once a week.

“Here, DCS did not present any evidence that Child was seriously endangered as a result of Parents’ mental health, actions, or inactions,” Najam concluded. “We therefore hold that the trial court erred when it found Child to be a CHINS, and we reverse the trial court’s judgment.”

Jan. 24

Civil Tort — Default Judgment/Excusable Neglect

Clint Fields v. Safway Group Holdings, LLC


The defendant in a workplace injury lawsuit was properly relieved from a default judgment against it despite the defense’s inexcusable neglect, a panel of the Indiana Court of Appeals ruled. A dissenting judge, however, warned the majority’s decision could result in litigants performing “end runs” around excusable neglect rules.

The case at issue involves Clint Fields, a carpenter for Crown Corr, Inc., who was seriously injured after he fell nearly 40 feet from a scaffold while working in February 2017 on the Crossroads construction project at the University of Notre Dame. Fields sued Safway Group Holdings, LLC, which rented and assembled the scaffold, asserting negligence and product liability claims.

After no counsel appeared for Safway about a month after the claim was filed, Fields moved for default judgment on the issue of negligence, which was granted the next day in St. Joseph Superior Court. About a month later, Safway filed a motion to set aside the judgment, which was eventually granted.

Fields appealed the vacation of the default judgment in his favor, but the majority of the COA affirmed the trial court in Clint Fields v. Safway Group Holdings, LLC, 18A-CT-247.

“Indiana Trial Rule 60(B)(8) allows a trial court to grant relief from judgment for ‘any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4),’” Judge Melissa May wrote for the majority joined by Judge Patricia Riley. “The motion for relief must be filed within a reasonable time and the movant must present a meritorious defense.”

“… We cannot disagree with the trial court’s reasonable inference that, while the actions of Safway employees are not excusable, the situation created here was exceptional and thus, ‘plausible and understandable,’” May wrote, citing Huntington National Bank v. Car-X Association Corporation, 39 N.E.3d 652 (Ind. 2015).

Coupled with the Indiana Supreme Court’s preference of deciding cases on the merits and the potential prejudice to Safway, the majority affirmed the trial court’s vacating its order of partial default judgment for Fields.

But dissenting Judge Paul Mathias wrote that the finding that Safway’s neglect was inexcusable should have rendered relief unavailable.

“I agree with the trial court that Safway did not establish mistake, surprise, or excusable neglect sufficient to justify relief, under Trial Rule 60(B)(1), from the default judgment entered in favor of Fields. I part ways with the trial court, and the majority, however, to the extent that they conclude that Safway was entitled to relief under Rule 60(B)(8),” Mathias wrote.

“Indeed, if a party’s neglect does not constitute excusable neglect under Rule 60(B)(1), it would make no sense to nevertheless afford that party relief under Rule 60(B)(8),” Mathias continued. “Otherwise, a party could do an end run around Rule 60(B)(1), opening up the possibility of a parade of cases bypassing the intent of the rule to permit relief only for excusable neglect.

“Under circumstances where the moving party was negligent, Rule 60(B)(1) should be the exclusive remedy,” he concluded. “If that party’s negligence was inexcusable, they should not be afforded relief under Rule 60(B)(8). Because the majority concludes otherwise, I respectfully dissent.”

Jan. 25

Juvenile CHINS — Evidence, Custody

In re the Matter of M.M., A.M., and B.M. (Minor Children), R.M. (Father) v. Indiana Department of Child Services


Three Tippecanoe County minor children age 5 and younger who were cared for by their father after they were found home alone in their mother’s home should not have been adjudicated children in need of services, the Indiana Court of Appeals held in reversing the juvenile court.

Mother A.K. was charged with neglect after their father, R.M., requested a well-being check on the children in December 2017. Police found the children unattended, the home in disarray and the door broken down. Father had previously found the children alone, and he told caseworkers he was not paying child support because he believed any money he gave to A.K. would be spent on drugs.

Months earlier, mother and her boyfriend had entered into an informal adjustment with the Department of Child Services due to concerns about substance abuse in the home. After the December 2017 well-being check, the minor children were placed with father, who was working and able to provide care for them, according to the record.

A DCS family case manager later testified that she had no issues with the children being in their father’s care as mother continued to struggle with court-ordered substance-abuse treatments, missing all but three or four of 20 scheduled visits.

Nevertheless, the court adjudicated the children as CHINS in February 2018, finding the only service that “might be appropriate” for father was parenting education. Father later was awarded custody of the children in a separate proceeding last August, after which DCS moved to dismiss the wardship.

In father’s appeal, he challenges whether DCS intervention was necessary, whether the record supports services he was required to complete, and whether a revised statute allows a CHINS court to modify custody. The COA ruled in father’s favor.

“We reverse the CHINS adjudication. We also determine that the CHINS court could have properly considered the custody matter pursuant to the revisions to Ind. Code section 31-30-1-13. We further conclude that Father’s challenge to the services ordered in the parental participation order is moot,” Judge Paul Mathias wrote for the panel in In re the Matter of M.M., A.M., and B.M. (Minor Children), R.M. (Father) v. Indiana Department of Child Services, 18A-JC-1234.

DCS argued that the children should be adjudicated as CHINS “to protect children ‘at imminent risk’ of being displaced or endangered.” But this alone was insufficient, the panel held. “In short, the agency’s concern that led it to continue to pursue a CHINS adjudication in spite of its belief Father was a ready, willing, and able parent, was that he did not have actual legal custody, which meant the children were at risk for going back to an unfit mother if the CHINS cases were to be closed. It is DCS’s position that the children were CHINS solely because of this legal risk, however remote in these circumstances, and that it is ‘compelled to pursue a CHINS adjudication unless and until the case can be resolved by other means, including legal custody to the non-offending parent,’” Mathias wrote.

“The court’s order adjudicating the children CHINS focuses on the facts and circumstances leading up to and surrounding the removal of the children from Mother’s care, and not the situation at the time the case was heard,” when they were in the care of their father. “While DCS was concerned about the legal custody arrangement at issue, the legal possibility of the children returning to Mother’s care does not alone mean that the children required services. The needs of the children were met, and there was no evidence showing that the coercive intervention of the court was needed to provide the children with services at the time of the fact-finding. Accordingly, we reverse the adjudication of the children as CHINS.”

The panel also wrote that the CHINS court in this case could have modified custody itself.

“(P)rovided Mother had notice and the opportunity to be heard regarding Father’s request for change of custody, it was within the CHINS court’s authority in accordance with the newly amended Ind. Code section 31-30-1-13 to consider the request for change of custody and enter an order modifying custody pursuant to the analysis required by Ind. Code section 31-14-13-2, as well as corresponding statutes and existing precedent, that would survive the termination of the CHINS proceeding,” Mathias wrote.

Finally, the panel found father’s challenge to orders concerning parental participation moot, because the CHINS petition has been dismissed, and the orders are no longer effective.

Jan. 29

Protection Order — Stalking of Police Officer/Evidence

C.S. v. T.K.


A Kokomo police officer lost her protective order against a man she alleged was stalking her after the Indiana Court of Appeals found there was insufficient evidence to support the claims.

Kokomo police officer T.K. was granted a protective order against C.S. after she alleged to have encountered him three times while he had a pending criminal case against him for “intimidation, stalking and harassment” in which T.K. was the alleged victim.

T.K. first alleged C.S. was stalking her when he entered a Panera Bread restaurant while she was eating dinner there with her mother. Then, T.K. alleged that as she was leaving a nearby store at a later date, she observed C.S. standing on top of a U-Haul truck in the parking lot of a U-Haul rental location, videotaping her. C.S. contended that he was asked by the U-Haul regional manager to make some repairs to a truck, and he was taking photos of the damage.

On a third occasion, T.K. alleged that while she was exiting the post office, C.S. rushed up behind her in an aggressive fashion that caused her to be afraid. In all three instances, T.K. argued that C.S. was familiar with her police car, which was present at each encounter.

However, the appellate court reversed the grant of the protective order when it found that there was insufficient evidence to support stalking.

In the first encounter, the appellate court noted that although C.S. entered the same restaurant while T.K. was eating there, he did not approach her and left as soon as he received his food. It further found that despite C.S.’s familiarity with her patrol car, T.K. could not prove C.S. had “knowingly or intentionally follow[ed] or pursu[ed]” her into the restaurant.

Likewise, in the second encounter, the appellate court found that T.K. could not prove C.S. had intentionally followed her when she saw him on top of a U-Haul. It noted that T.K. was the one to stop her vehicle by the U-Haul truck and tell C.S. that she saw he was videotaping her.

“To the contrary, the evidence reveals that C.S.’s presence was requested by U-Haul, that C.S. was on top of the U-Haul truck to take pictures of damage, and that T.K. approached C.S., not the other way around,” Judge Margret G. Robb wrote for the court.

Although the appellate court did find sufficient evidence that C.S. made impermissible contact with T.K. at the post office when he “rushed up behind her in an aggressive fashion,” causing her to be afraid, it ultimately concluded that a single incident of harassment was insufficient to support a finding of stalking.

“We therefore conclude C.S. has demonstrated prima facie error and the evidence was insufficient to support a finding of stalking and the issuance of an order for protection,” Robb concluded in C.S. v. T.K.,18A-PO 1566.

Jan. 30

Miscellaneous — Grandparent Visitation/Pre-Adoption Agreement

Robert Walker and Patricia Walker v. Megan (Buckner) Knight; Robert Walker and Patricia Walker v. Ashley Erin Carpenter


Two grandparents won their appeal to petition for visitation rights with their deceased son’s children after the Indiana Court of Appeals found a trial court erred in granting summary judgment to the children’s mothers.

Megan Knight and Ashley Carpenter each bore a child from Braden Walker, the deceased son of Robert and Patricia Walker. When both women remarried, their respective husbands each filed a petition for stepparent adoption after Braden’s death.

In March 2017, the Walkers filed petitions for grandparent visitation for both children under two separate causes, but they came to an agreement with the mothers that the trial court would address the issue of grandparent visitation only after the adoptions were finalized. The adoptions were finalized in July and August 2017, respectively.

In January 2018, both Knight and Carpenter moved for summary judgment, arguing that because the adoptions had been finalized, the Walkers no longer had standing to seek grandparent visitation. They also sought to strike the portions of the Walkers’ petitions for grandparent visitation and affidavits in which the Walkers referred to themselves as the “grandparents.”

Former Hamilton Superior Judge Steven Nation granted the mothers’ motions for summary judgment, finding that Braden’s death and the stepfathers’ acts of adopting their respective children severed the legal and familial relationship between the Walkers and the two children. The court also concluded that the Walkers did not do enough by simply filing their petitions before the adoptions were finalized.

On appeal, the Walkers argued that the trial court erred in entering summary judgment to the mothers. Specifically, they contended Knight and Carpenter should be equitably estopped from arguing that the Walkers lacked standing, and that the Walkers preserved their rights to grandparent visitation by filing the petitions before the adoptions were finalized.

Upon reviewing the parties’ agreement, the appellate court found its language to be clear and unambiguous. It also found that all parties understood and accepted the terms as written at the time the agreement was made.

“Even though there is no evidence of actual fraud warranting the application of equitable estoppel, the Mothers cannot preclude the Walkers from a hearing on their petitions for grandparent visitation after stipulating to the contrary,” Judge John G. Baker wrote. “… We want to avoid a situation in which parties enter into an agreement with the prior knowledge that the law will advantage them, disadvantage an opposing party, and ultimately render the agreement unenforceable.”

Thus, the COA concluded the trial court erred in entering judgment to the mothers, and that at a minimum, the Walkers could proceed with a hearing on the merits of their petitions for grandparent visitation.

In an aside, the appellate court addressed confusion surrounding the Walkers’ argument that the act of filing their petitions alone gave them the “visitation rights” necessary to survive adoption under Ind. Code § 31-17-5-9(1) of the Grandparent Visitation Act.

“To the average individual, a phrase like ‘visitation rights’ might not indicate a requirement to obtain a court order,” Baker wrote. “We encourage our General Assembly to clarify what ‘visitation rights’ means so that, in the future, grandparents seeking visitation in the same situation understand the proper protocol.”

Juvenile CHINS — Insufficient Evidence

In the Matter of M.W. (Minor Child), A Child in Need of Services, and T.A. (Mother) v. Indiana Department of Child Services


A teenager with behavioral problems was released from her child in need of services adjudication when the Indiana Court of Appeals found there was insufficient evidence to support the ruling.

When her two teenage daughters engaged in a fight and couldn’t be stopped, Mother T.A. called police to help break it up. One of the girls, M.W., struggled with behavioral and emotional problems. M.W. was placed in emergency shelter care and her sister, L.F., was placed in relative care after officers who de-escalated their fight ultimately arrested T.A. and accused her of domestic battery. The charge was later dismissed.

Both children were adjudicated as CHINS, and although L.F. was eventually returned to mother’s care and custody, M.W. continued to be placed outside of the home.

At a May 2018 fact-finding hearing, a DCS family case manager and family therapists testified that sessions with the family had been very productive and found T.A. to be a loving mother with great parenting skills. It was also noted that individual therapy had been scheduled for both daughters and that T.A. voluntarily participated in every service requested by DCS.

In June 2018, the Marion Superior juvenile court issued an order finding that L.F. was not a CHINS, but that M.W. still was. On appeal, T.A. argued that there was insufficient evidence supporting M.W.’s CHINS adjudication. The appellate court agreed.

“Quite frankly, we are stunned that the juvenile court found (M.W.) to be a CHINS,” Judge John G. Baker wrote for the court. “There is a dearth of evidence supporting a conclusion that her mental or physical condition was seriously impaired or seriously endangered as a result of anything done or not done by Mother.

“Yes, it is apparent that (M.W.) has serious behavioral issues and needs therapeutic support (though she has no diagnoses or prescribed medication), but that, alone, does not support a conclusion that she was seriously impaired or seriously endangered.”

The appellate court further found that mother agreed M.W. needed therapy and better communication skills, as did as the rest of the family. However, it found that the singular physical altercation between M.W. and her sister did not support a CHINS finding.

“The services provided by DCS while the CHINS case was pending gave the family a running start. The services were helping, and both Mother and Child seemed to realize it. From the outset, by calling the police, Mother showed that she simply needed some help — and she got it, through the services provided by DCS,” Baker wrote. “By the time of the CHINS hearing, it was readily apparent that Child was not seriously endangered and, even more critically, that the coercive intervention of the court was not required.”

Under the circumstances, the appellate court thus found the juvenile court erred in finding M.W. to be a CHINS. The appellate court additionally noted that considering the numerous CHINS adjudications reversed in recent years for a notable lack of sufficient evidence, parties involved in Marion Superior Court CHINS proceedings should be mindful of the families who truly need the support of CHINS cases, versus those who do not.•

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