Indiana Court Decisions: June 29-July 12, 2022

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7th Circuit Court of Appeals

July 8

Ricardo Vasquez v. Indiana University Health, Inc., et. al.


Bloomington antitrust complaint against IU Health can proceed

A Bloomington surgeon alleging Indiana University Health violated federal antitrust laws by acquiring local competitors has convinced the 7th Circuit Court of Appeals to reinstate his complaint.

Dr. Ricardo Vasquez is an independent vascular surgeon who has practiced in Bloomington since 2006. Many vascular surgery patients require treatment with specialized equipment in a hospital setting, and Vasquez obtained privileges at three area hospitals: Bloomington Hospital, Monroe Hospital and the Indiana Specialty Surgery Center.

According to court documents, over 95% of Vasquez’s procedures occurred at Bloomington Hospital.

IU Health, known as Clarian Health Partners until a 2011 rebrand, entered the Bloomington market in 2010 when it acquired Bloomington Hospital. In May 2017, IU Health expanded its footprint by acquiring Premier Healthcare, an independent physician group based in Bloomington.

At the time of the acquisition, Premier employed “many of the region’s doctors, especially primary‐care providers (PCPs).” As a result of the acquisition, Vasquez alleged IU Health now employs 97% of PCPs in Bloomington and over 80% of PCPs in the wider region.

The doctor’s alleged issues with IU Health began after the Premier acquisition. Vasquez claimed that in “[a]pproximately 2017,” around the time of the acquisition, IU Health launched “a systematic and targeted scheme” to ruin his reputation and practice because he worked independently.

The complaint alleges IU Health preferred to employ the region’s doctors directly, and in June 2018, it threatened to revoke his privileges at Bloomington Hospital. At that time, Vasquez claimed IU Health employees began to “cast aspersions” on his reputation — alleging, for example, that he had been sued with unusual frequency.

IU Health followed through on its threat in April 2019, revoking Vasquez’s privileges.

In his 2021 complaint, Vasquez alleged that in the time since he started working in Bloomington, IU Health had amassed considerable market power in the region’s medical industry. He sued IU Health, claiming antitrust violations under the Sherman Act and the Clayton Act.

U.S. District Court for the Southern District of Indiana Judge Jane Magnus-Stinson dismissed the lawsuit, finding that neither the Sherman Act nor the Clayton Act claims were premised on a plausible geographic market, and that the Clayton Act claims were time‐barred.

The 7th Circuit, however, reversed the dismissal in Ricardo Vasquez v. Indiana University Health Inc., et. al., 21‐3109, reinstating the case and remanding for proceedings.

On appeal, Vasquez challenged the dismissal of his claims for failure to allege a proper geographic market and the dismissal of the Clayton Act claims, specifically, on timeliness grounds.

Looking at the first issue, the 7th Circuit relied on FTC v. Advocate Health Care Network, 841 F.3d 460 (7th Cir. 2016), finding Vasquez’s accounts of how a hypothetical monopolist could dominate Bloomington’s vascular surgery market sufficed for the pleading stage.

“The purported contradiction was between two factual claims in the complaint: (1) that patients ‘prefer to stay within Bloomington to receive care,’ and (2) that ‘many of the patients who arrive at Bloomington Hospital for care travel from rural areas, some of them up to two hours away,’” Judge Diane Wood wrote. “The district court saw an inconsistency between the two claims, and it thought that clash undermined the Bloomington market’s plausibility.”

But the 7th Circuit found “several” problems with the district court’s reasoning.

“First, Federal Rule of Civil Procedure 8(d)(3) specifically permits contradictory pleadings, and so this criticism was misplaced,” Wood wrote. “And in any event, our own examination of the allegations persuades us that they are not contradictory at all. They concern two different groups of people — urban and rural patients — with different expectations, motivations, and market behaviors.

“… The district court also reasoned that Bloomington could not be ‘the appropriate geographic market’ if ‘a significant portion of [IU Health’s] patients regularly travel substantial distances to get to Bloomington,’” Wood continued. “But this confuses two different sorts of market. The geographic market for an antitrust claim need not — and very often will not — correspond to the comprehensive market that the alleged monopolist serves.

“… Under Advocate, 841 F.3d at 476, the appropriate object of the geographic‐market analysis is the smallest market a hypothetical monopolist could dominate,” the opinion concluded. “Patient flows may help to define the borders of that market, but such flows are just one piece of data in the broader picture — they are not likely to be dispositive. To hold otherwise would be to carve a large loophole into antitrust law; realistically, some fuzziness about market boundaries will occur in most cases.”

Further, the 7th Circuit also wasn’t sure about the Southern District Court’s determination that Vasquez’s Clayton Act claims did not meet the statute of limitations.

“… (Vasquez) filed suit four years and one month after IU Health acquired Premier,” Wood wrote. “So, if that acquisition started the clock, Vasquez missed his window by a month. But to affirm the dismissal, we would need to be sure that the undisputed facts show that the operative injury both occurred and was discovered at the moment of acquisition (or at the latest, during the following month). But the complaint does not paint such a one‐sided picture.

“… Without discovery, choosing among these alternatives is difficult, if not impossible,” she continued. “What matters is that the complaint presents a plausible account under which his suit is timely. We note as well that timeliness is an affirmative defense and thus normally (and here) is not properly resolved at the Rule 12(b)(6) stage.”

Indiana Supreme Court

June 29

Terrance Trabain Miller v. State of Indiana


Split Supreme Court reinstates convictions based on invited error

Finding any fundamental error was invited, a split Indiana Supreme Court has reinstated a man’s multiple convictions that resulted in a nearly 50-year sentence.

In June 2019, Terrance Trabain Miller was arrested in Logansport following a traffic stop. Miller had heroin, methamphetamine and a handgun in his possession.

The state charged Miller with six offenses, including unlawful possession of a firearm by a serious violent felon in violation of Indiana Code § 35-47-4-5(c). It also alleged Miller was a habitual offender under I.C. 35-50-2-8.

Following trial, where Miller was found guilty of all charges, the state moved to dismiss the serious violent felon charge, telling the Cass Circuit Court it had not proven the armed robbery that was alleged. The trial court granted the motion and Miller admitted his status as a habitual offender and was sentenced to 49 years.

Miller then appealed, arguing Preliminary Instruction 18 was fundamental error because it informed the jury about his prior felony conviction. He also argued the traffic stop violated his Fourth Amendment rights and the trial court should have struck prospective juror T.M. for cause.

In November, the Court of Appeals of Indiana reversed, finding Preliminary Instruction 18 was fundamental error because it informed the jury that Miller had a prior conviction. The COA held the invited-error doctrine did not preclude relief, without addressing Miller’s other arguments.

On transfer, a split Supreme Court affirmed the trial court, rejecting Miller’s challenges to Preliminary Instruction 18, the lawfulness of the stop and the trial court’s refusal to strike T.M. for cause.

First, addressing the jury instruction, the majority concluded Miller invited any error that arose from Preliminary Instruction 18, which precluded relief on direct appeal.

“Assuming Preliminary Instruction 18 was fundamental error, Miller invited it,” Justice Mark Massa wrote. “The instruction was part of his counsel’s explicit ‘strategic decision’ to partially bifurcate the unlawful possession charge, which was certainly permissible. … Miller’s counsel not only affirmed the instruction ‘looks correct,’ he also stated that ‘we are including the statute but not referring to the actual offence (sic), which would be prejudicial.’

“He was very much aware of the potential for prejudice if the jury knew Miller’s criminal history,” Massa continued. “Indeed, he had even filed a motion in limine — which was discussed and granted right after the instruction was discussed and approved — to exclude references during the trial’s first phase to Miller’s previous convictions and incarcerations and the pending habitual offender enhancement. Yet he still requested the instruction as part of his strategy. He ‘did far more than simply fail to object.’”

The justices noted Miller can challenge his counsel’s strategy through a post-conviction relief petition alleging ineffective assistance of counsel.

Next, on the question of whether Miller was lawfully stopped, the COA found the detective had observed two traffic violations before pulling the suspect over, so there was sufficient evidence.

Regarding the juror, the Supreme Court concluded Miller did not comply with the exhaustion rule, which precludes review of the trial court’s refusal to strike T.M. for cause.

“Here, Miller had ten peremptory challenges. He never attempted to use one against T.M., even though he had not exhausted them when the court denied his for-cause challenge,” Massa wrote. “He now asserts that he did not have any available peremptory challenges, because T.M. was in the first round of prospective jurors, and he did not request that the court strike T.M. until after questioning had moved past that round. In other words, he had ‘passed over’ T.M., so his only recourse was a for-cause challenge.

“Even if the court would have deemed Miller’s peremptory challenge late and denied it, Miller still had to try,” Massa continued. “The use of peremptory challenges is subject to the trial court’s ‘reasonable regulation.’ Nagy v. State, 505 N.E.2d 434, 437 (Ind. 1987). Certainly, the court can refuse a belated peremptory challenge, and such refusal might be upheld on appeal. However, an anticipated refusal does not excuse compliance with the exhaustion rule.”

Justices Steven David, Geoffrey Slaughter and Christopher Goff all concurred in the opinion while Chief Justice Loretta Rush concurred in part and dissented in part.

Rush wrote that she would’ve reviewed the fundamental error claim on the jury instruction but concurred with the majority on all other respects.

“We have previously recognized that in cases where ‘either the source of the error or counsel’s motives at trial are less than clear,’ it is imperative that we ‘resolve any doubts against a finding of invited error,’” Rush wrote, citing Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019). “… Given the gravity of this consequence, we must exercise caution when reviewing for invited error. And if any doubt arises upon review — as it does here — we should proceed with a fundamental-error analysis.

“… Our invited-error doctrine serves an important purpose,” Rush continued. “But we must be careful not to let it transform into a ‘rigid and undeviating judicially declared practice,’ serving only to defeat — not promote — the ends of justice. Hormel v. Helvering, 312 U.S. 552, 557 (1941). Here, with a record lacking any indicia of a reasonable basis for counsel’s assent to Preliminary Instruction 18, we should carefully review Miller’s claim for fundamental error.”

The case is Terrance Trabain Miller v. State of Indiana, 22S-CR-59.

Court of Appeals of Indiana

June 30

Dylan Noel Theobald v. State of Indiana


Appellate court adopts new-crime exception, partially reverses for motorist who wasn’t read Miranda rights

A motorist who denied hitting a police officer’s car but who offered the officer money to pay for the damages won a partial reversal after the Court of Appeals of Indiana found he was subject to custodial interrogation without being given Miranda warnings. But the COA did not allow the suppression of the alleged bribery based on the federal new-crime exception.

While sitting in an undercover cop car in Indianapolis, Detective De’Joure Mercer of the Indianapolis Metropolitan Police Department allegedly witnessed a motorcyclist strike his vehicle with a fist, “breaking [his] side view mirror.”

Mercer followed the motorist, who kept driving, to Interstate 74 East near Shelbyville. Mercer radioed for assistance and IMPD Officer Joseph Doucleff responded, pulling over motorist Dylan Theobald, who was driving at least 100 miles per hour.

Doucleff’s body camera footage showed him approaching Theobald and asking if he knew why he was being pulled over, to which Theobald said “yes.” Mercer, who arrived “seconds” after Doucleff, also walked up and said Theobald had hit his vehicle and that he had been following Theobald since the incident, but it wasn’t “a big deal.”

According to the bodycam footage, Theobald said he didn’t know what Mercer was talking about and that “it wasn’t [him].” Theobald was then handcuffed for a “hit and run.”

Theobald continued to maintain he didn’t hit Mercer’s side mirror, and Mercer repeated that he just wanted Theobald to “admit” that he had so the officer could fill out an accident report, at which point Theobald would be “on his way.”

When Theobald repeated that he didn’t hit the mirror and asked if he was “free to go,” Mercer said no. The officer also said he couldn’t believe Theobald would choose to go to jail when he could instead admit to hitting his side mirror, which was “not a big deal.”

While still continuing to deny hitting the mirror, Theobald said something unintelligible on the footage followed by, “I’d pay, I’d give you a hundred dollars in my pocket right now.”

Theobald, who was never given his Miranda warnings, was later charged with Level 5 felony bribery, Class B misdemeanor criminal mischief, Class C misdemeanor reckless driving and Class C misdemeanor violation of driving conditions.

He moved to suppress two statements he made at the scene of the stop because he was subject to custodial interrogation without being given Miranda warnings: his explanation of where he was driving and his offer to pay Mercer $100.

The Marion Superior Court denied his motion, but the Court of Appeals of Indiana in an interlocutory appeal partially reversed in Dylan Noel Theobald v. State of Indiana, 21A-CR-2746.

The COA disagreed with the state, concluding that Theobald was in custody — handcuffed on the side of the interstate for roughly 45 minutes and told he was not free to leave — and that he was subject to interrogation.

“Detective Mercer gave Theobald two options: admit to hitting his side mirror or go to jail,” Judge Nancy Vaidik wrote. “In other words, Theobald could admit to a crime or go to jail. Under these circumstances, Detective Mercer’s statements and actions were reasonably likely to elicit an incriminating response.”

The appellate court then explicitly adopted the federal new-crime exception to the Miranda exclusionary rule and held that “a statement made by a person who is subject to custodial interrogation but not given Miranda warnings is still admissible if the statement itself is evidence of a new crime (such as bribery or a threat.)”

“… While Theobald might have a convincing argument that he was offering to pay for the damage to Detective Mercer’s car rather than bribing him (especially depending on what Theobald said during the unintelligible part of the footage), the State can present evidence of Theobald’s statement in prosecuting him for bribery,” Vaidik wrote. “Whether the trier of fact finds Theobald guilty of bribery is another matter.”

As such, the COA reversed the trial court’s denial of Theobald’s motion to suppress his statement about where he was driving but affirmed the motion to suppress his offer to pay $100 under the new-crime exception.

The case was remanded.

State of Indiana v. Justin David Pearson


Grant of PCR petition upheld after lawyer withheld disciplinary actions

Despite being “caught at the scene of the crimes,” the Court of Appeals of Indiana has affirmed post-conviction relief for a man who pleaded guilty to burglary based on the advice of an attorney who was hiding the fact that he was planning to resign from the Indiana bar for disciplinary reasons.

The case of State of Indiana v. Justin David Pearson, 22A-PC-95, began in September 2013, when Justin Pearson was charged with felony counts of burglary resulting in bodily injury, robbery and criminal confinement, as well as using a firearm in the commission of an offense. His parents hired attorney Ronald Frazier, although Frazier did not file an appearance.

Instead, attorney Ian Thompson, an associate for Frazier, filed an appearance for Pearson. The Hendricks Superior Court held a pretrial conference the same day and accepted Pearson’s plea to Class A felony burglary in exchange for the dismissal of the remaining charges.

The parties agreed to a 25-year sentence under the agreement. Also, the agreement called for Pearson to waive his right to challenge the sentence as erroneous, to challenge the trial court’s finding and balancing of aggravators and mitigators, and to seek Court of Appeals review of his sentence under “Indiana Appellate rule.”

Exactly one month later, the Indiana Supreme Court accepted Frazier’s resignation from the Indiana bar. Frazier had never told Pearson that he was contemplating resignation or even that he was facing discipline.

More than seven years later in July 2021, Pearson filed a petition for post-conviction relief alleging he did not intelligently plead guilty and/or that he was denied effective assistance of counsel. He testified that he only met with Frazier twice and that Frazier had told him he would lose if he went to trial, so Pearson “needed to take this plea agreement or tomorrow they were going to file more charges and set it for trial and [he] was going to get one hundred years.”

Additionally, Frazier told Pearson he would not be at sentencing because he was “opening up a family branch of law,” so he would send Thompson. Pearson met Thompson for the first and only time on the day he pleaded guilty and was sentenced.

Pearson later learned that Frazier had lied about opening a family law practice and had withheld his disciplinary troubles. Pearson testified that he would not have proceeded with the plea agreement had he known about the disciplinary action.

The trial court granted Pearson’s post-conviction petition in January, vacating the judgment against him and his sentence.

The state appealed, arguing there was no evidence that Pearson involuntarily, unknowingly or unintelligently pleaded guilty. It also argued there was no evidence that he received ineffective assistance of trial counsel.

“The State argues ‘[i]t is difficult to imagine a more favorable outcome for a defendant with a substantial criminal history who was caught at the scene of the crimes and made a statement to the police,’” Judge Elaine Brown wrote. “It asserts that ‘[n]ew counsel could have, and likely would have, recommended that Pearson accept the State’s generous offer.’”

But the COA determined the plea was, in fact, entered unintelligently and thus affirmed the grant of Pearson’s PCR petition.

“Pearson testified that Frazier did not tell him he was facing disciplinary actions or contemplating resignation or that disbarment was ‘on the table,’” Brown wrote. “He also testified that he would not have relied on Frazier’s advice and would have sought new counsel if he had known Frazier was facing disciplinary actions and was potentially going to resign from the practice of law or be disbarred.

“The post-conviction court noted that the terms of the plea agreement were fixed and did not provide for a modification of sentence and found that ‘Frazier lied to Pearson, telling him that he could later petition to modify his sentence,’” she continued. “The post-conviction court found Pearson’s testimony credible and found that ‘[h]ad Pearson been aware that Frazier was facing disciplinary issues, and in particular, that Frazier was anticipating resigning from the practice of law, Pearson would not have hired Frazier, and certainly would not have relied on his advice to plead guilty.’

“… Under these circumstances, we conclude that Pearson did not intelligently enter the plea agreement.”


July 7

In the Matter of B.P., S.P., L.P., Mad.P., and Mac.P., Children Alleged to be Children in Need of Services; J.P. (Mother) v. Indiana Department of Child Services


Split COA reverses CHINS determination despite mother’s mental illness

A mother with a history of mental illness and trouble with the law will regain custody of her children after a split panel of the Court of Appeals of Indiana determined there was insufficient evidence to prove her kids were CHINS. But a dissenting judge expressed concern about the children incurring their mother’s “wrath” if left in her care.

J.P. is the mother of five children: B.P., S.P., L.P. and twins Mac.P. and Mad.P. She was on medication for mental health problems but stopped taking the medicine when she became pregnant with the twins, negatively affecting her mental health.

The COVID-19 pandemic began shortly after the twins were born, which eventually led to J.P. ending her therapy sessions. She was also unable to get a prescription for her previous mental health medication, and other medicines that she tried were ineffective.

Then in May 2021, the power went out at J.P.’s Shelby County home. She left the home to pay the electric bill but got in an accident while she was out.

J.P. was arrested for leaving the scene of an accident and reckless driving and was taken to jail.

J.P. had left her oldest child, 15-year-old B.P., in charge of the younger children when she left to pay the electric bill, but the children did not attend school the following day. A school resource officer subsequently discovered that the children were at the home without electricity or adult supervision, so the Department of Child Services was called.

J.P. refused to share any information with a family case manager, so DCS filed a petition alleging her kids were children in need of services. J.P.’s mother came from Kentucky to watch the children.

At an ensuing detention hearing, J.P. used profane language in the Shelby Superior Court. The judge ordered that the children remain with their grandmother until J.P. could prove she was “mentally stable.”

Meanwhile, DCS instructed J.P.’s mother to take the children to live with their aunt in Decatur County. But J.P. and her sister were not on good terms, so when she learned about the placement change, J.P. attempted to take the children from their aunt’s home.

J.P. was subsequently arrested and taken to jail, where she spit on an officer, resulting in an additional charge. The incidents resulted in her spending nearly two months in jail.

Later, at a factfinding hearing in the CHINS case, J.P. was “agitated,” using profane language and interrupting the court on several occasions, including telling the judge to shut up. J.P. was subsequently found in contempt, prompting her to tell the court, “There’s nothing you can do to me beside pull your f—ing gun out and blow my f—ing brains out!”

J.P.’s mother then took the stand and testified that J.P. “loves her kids very passionately. And that’s a lot of what you see, is the frustration that no matter where she has been with her mental illness she has never once harmed her kids.”

Ultimately, the trial court determined J.P. was “in [a] mental or emotional crisis” and, thus, granted the CHINS petition. J.P. was ordered to submit to a psych evaluation, and her visitation with the children was suspended pending the evaluation, aside from video and phone calls.

But a majority of the Court of Appeals reversed the CHINS adjudication, first noting that while not required, “‘trial courts’ best practice would be to enter findings on each necessary element,’” which was not done here.

Further, “Indiana law is clear that a parent’s mental illness, without more, is not sufficient to support a CHINS determination,” Judge Edward Najam wrote, joined by Judge L. Mark Bailey.

“Here, there is no question that Mother’s conduct in the courtroom was inappropriate. The trial court was correct to be concerned about the potential for Mother’s mental illness to negatively impact the Children,” Najam wrote. “But DCS had the burden to prove that the Children were actually and seriously endangered as a result of Mother’s mental illness. And, other than the one occasion in May 2021 when Mother was arrested and jailed and the Children were left without adult supervision overnight, DCS did not present evidence that the Children had been impacted in any way by Mother’s mental illness.”

DCS pointed to the contempt finding against J.P., but according to the COA majority, “the proper focus here is upon the condition of the Children, not Mother’s conduct.”

“We cannot ignore the impact of the Covid-19 pandemic on the mental health of many Hoosiers, but especially those already suffering from mental illness at its onset, such as Mother,” Najam continued. “… The additional stress that Mother had experienced in her life because of her struggle to get mental health treatment early in the pandemic was situational, and the situation has abated. Given Mother’s history of voluntarily seeking treatment for her mental illness, there is simply no evidence that the coercive intervention of the State is needed here.

“… The trial court expressed compassion for Mother, and we agree with the court’s statement that Mother ‘just needs some help right now.’ But there is no evidence that, until Mother gets the help she needs, the Children must be separated from her.”

But Chief Judge Cale Bradford dissented, writing separately that “the abundant evidence of Mother’s propensity to resort to violence (or threats thereof) and/or verbal abuse as her response to seemingly any situation she does not like is sufficient to support an inference that the Children, if they have not already, will sooner or later feel the wrath Mother has directed at just about everybody involved in this case, including the trial court, several DCS employees, Mother’s sister, Mother’s mother, and several law-enforcement officers.”

Bradford pointed to additional evidence, including J.P. “lunging” at a family case manager and threatening to kill several people involved in the case, “including her own mother, whose throat she threatened to slit if she did not return the Children to her.” Also, J.P. admitted in a mental health evaluation that she used methamphetamine daily.

“In my view, the above is sufficient to support an inference that Mother’s mental-health issues and/or substance abuse have already endangered the Children for quite some time (e.g., unstable housing and her refusal to provide medical care), even though there may be no evidence of direct harm as yet,” Bradford wrote. “Because I believe that the record supports the trial court’s determination that the Children are CHINS, I respectfully dissent.”

Responding to Bradford’s dissent, the majority wrote that substance abuse was not at issue in the instant case.

“Indeed, many of the details cited by the dissent, including the allegations that Mother has threatened to kill Grandmother and other people and that she uses methamphetamine daily, are found only in the predispositional report, which was not admitted into evidence,” the majority wrote. “There is no testimony or other evidence on these subjects.”

The case is In the Matter of B.P., S.P., L.P., Mad.P., and Mac.P., Children Alleged to be Children in Need of Services; J.P. (Mother) v. Indiana Department of Child Services, 22A-JC-44.•

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