IN Supreme Court grants transfer in 3 cases, denies 16 transfer petitions

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The Indiana Supreme Court granted transfer to three cases last week, including a medical malpractice case in which patients were ordered by a trial court to redact nonevidentiary allegations of drug and alcohol abuse and mental illness against a treating physician.

In that case, Richard Bojko, et al. v. Anonymous Physician, et al., 23S-CT-343, the Court of Appeals of Indiana affirmed a lower court’s ruling in July after finding nonevidentiary allegations were properly struck from evidentiary submissions.

According to court records, in 2021, six patients filed a proposed complaint against a Lake County physician and practice with the Indiana Department of Insurance.

The complaints alleged the physician’s care and treatment fell below the applicable standard of care and proximately caused injury. Specifically, the patients alleged the physician was “either: a) mentally ill; and/or; b) abusing drugs and/or alcohol; and or c) motivated by naked greed while caring for and treating the plaintiff and an untold number of other patients in his practice.”

In chapter four of the complaints, the plaintiffs alleged the physician’s wife admitted he was a chronic alcoholic and drug abuser and had signs of delusional ideation and mental illness.

The physician died in February 2020.

The trial court issued an order granting the petition and directing the patients to redact from their submissions “any and all references to the Proposed Complaint” filed by the physician’s wife, as well as “any and all references to allegations of drug and/or alcohol abuse or mental health issues of [the Physician].”

On appeal, the patients argued Lake Superior Court lacked subject-matter jurisdiction to grant a petition that requested an order mandating the patients “redact any and all references from their submissions to alleged drug or alcohol abuse or mental illness.”

The appellate court disagreed.

Judge Terry Crone cited the court’s opinion in Sherrow v. GYN, 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it explained that if parties were allowed to include legal arguments in their evidentiary submissions, then they would be lengthy legal memoranda.

“Likewise, unsworn, unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in Indiana Code Section 34-18-10-17,” Crone wrote.

In the second case granted transfer for the week ending Dec. 1, Angela Y. Smith v. State of Indiana, 23S-MI-345, the appellate court affirmed the Marion Superior Court’s order authorizing the forfeiture of $11,180 in U. S. currency that the state had seized during a search of Dylan Williams’s apartment.

The state charged Williams with three drug-related crimes, and he pleaded guilty to one count of level 6 felony possession of a narcotic drug.

Smith filed a motion to intervene, alleging that the currency was her “exclusive property[.]”

The trial court granted Smith’s motion and a bench trial was held on the forfeiture complaint.

The court entered judgment for the state and against Williams and Smith.

Smith appealed.

The appellate court affirmed the trial court’s order, finding that Smith hadn’t shown a mistake had been made, and that the trial court “was not obligated to believe Smith’s self-serving and largely unsubstantiated testimony, even though it was uncontradicted.”

The third case granted transfer is B.K., et al. v. State of Indiana, 23S-JV-344.

There, the appellate court affirmed the Hendricks Superior Court’s restitution order in June when it found the trial court did not abuse its discretion in finding B.K. is able to pay $250 per month and S.K. is able to pay $125 per month.

The pair had thrown fireworks in a trash can near a Costco, which started a fire and caused damage to the property.

A representative for Costco testified that the total loss sustained was $28,750,70.

Oral arguments have not yet been set for any of the three cases granted transfer last week.

Justices denied transfer to 16 cases for the week ending Dec. 1, including Aidan C. Burkins v. State of Indiana, 22A-CR-1867.

In that case, Aidan Burkins was convicted in Elkhart Circuit Court of murder, Level 1 felony attempted murder, Level 6 felony criminal recklessness,and Class B misdemeanor marijuana possession.

The trial court sentenced him to 95 years in prison.

Burkins appealed, arguing the trial court abused its discretion and contending that the prosecutor committed misconduct by mentioning facts not in evidence during closing. He also argued his sentence was inappropriately harsh.

The Court of Appeals affirmed the trial court’s convictions and sentence, rejecting Burkins’ arguments and finding that he had failed to persuade the appellate court that the nature of his offenses and his character justified a more lenient sentence.

The justices concurred on all the petitions to transfer that were denied.

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