Indiana Court Decisions – June 4–17, 2020

Indiana Supreme Court

June 12

Civil Tort — Product Liability/Multiple Claims in Class Action

Bayer Corporation, et al. v. Rene Leach, et al.

20S-CT-354

The Indiana Court of Appeals will need to go back and consider the viability of each claim brought by more than 30 women who sued a medical company over one of its birth control products, the Indiana Supreme Court ordered.

Rene Leach and more than 30 other women sued Bayer Corporation and other entities involved in manufacturing Essure, a permanent birth control device, after they claimed to experience injury after the device was implanted.

Specifically, the women alleged after the implantation of the device, they experienced menorrhagia, extreme fatigue, abdominal pain, back pain, joint pain, and various skin rashes. They also asserted Bayer violated federal manufacturing requirements and that they are users and consumers under the Indiana Product Liability Act. Bayer ultimately stopped distributing the device in 2018.

In their suit against the pharmaceutical giant, the women alleged that Bayer violated both Indiana’s Product Liability Act and other state and federal laws by covering up adverse information and by misleading federal regulators, the public and the plaintiffs.

Additionally, they claimed that Bayer failed to meet certain regulatory obligations, including failing to timely and properly update warnings and labels, failing to report and respond to adverse events, failing to report negative clinical studies, and failing to perform post-market studies and surveillance.

Bayer filed a motion for judgment on the pleadings, arguing that the women failed to adequately plead their claims and that their claims were preempted by the Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act. However, the trial court summarily denied Bayer’s motion and the Indiana Court of Appeals affirmed in December 2019.

At Bayer’s request, the trial court certified its interlocutory order and the COA also affirmed, holding that the women’s manufacturing defect claim was sufficiently pleaded and not preempted by federal law. Although it acknowledged other legal theories and factual allegations in the pleadings, the COA concluded that it didn’t need to address those because it had identified a claim upon which relief could be granted.

“Here, like in most complex litigation, the plaintiffs allege several sets of operative facts, amounting to several discrete claims. The Court of Appeals addressed the legal viability of only one of those claims: defective manufacturing. The Court of Appeals did not analyze the remaining ones, reasoning that any viable claim preserves the entire complaint. But that is not correct,” justices wrote in a per curiam order.

“In a complaint with multiple claims, the viability of a single claim does not immunize a separate, deficient claim from judgment on the pleadings. When analyzing pleadings for Rule 12(C) purposes, Indiana courts are required to address the viability of each claim presented, disposing of only unviable ones.

“Here, the Court of Appeals failed to address the viability of each claim presented in the pleadings,” the high court wrote. “We remand to the Court of Appeals to consider the viability of each of the plaintiffs’ claims.”

The case is Bayer Corporation, et al. v. Rene Leach, et al., 20S-CT-354.

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June 15

Attorney Discipline — Disbarment/Conversion of Social Security Withholdings

In The Matter of Steven T. Fulk

19S-DI-00277

An Indianapolis attorney who converted his only employee’s Social Security withholdings for his own personal use for more than a decade has been disbarred from the practice of law after the Indiana Supreme Court found that he had committed attorney misconduct.

Supreme Court justices unanimously concluded in a per curiam order that disbarment was the best option for attorney Steven Fulk, who “committed attorney misconduct by neglecting a client’s case, converting an employee’s tax withholdings for his own personal use, and failing to cooperate with the disciplinary process.”

The Indiana Supreme Court Disciplinary Commission filed a two-count disciplinary complaint against Fulk in May 2019 and although he was served, Fulk never properly appeared or responded. After a hearing officer took the facts alleged in the complaint as true, the justices accepted the allegations against Fulk, finding that no petition for review of the case’s hearing officer’s report was filed in the case of In The Matter of Steven T Fulk, 19S-DI-00277.

Justices had already indefinitely suspended Fulk, who was twice suspended in 2019 for his noncooperation with the disciplinary commission’s investigations of grievances against him.

In Count 1, the Supreme Court’s order says Fulk represented Client 1 in post-dissolution matters in Hamilton County. When the client’s ex-wife filed a motion for rule to show cause alleging Fulk’s client had failed to reimburse his portion of uninsured medical and dental expenses for several years, a hearing on the matter was scheduled.

However, neither Fulk nor Client 1 appeared for the hearing, despite both the court and opposing counsel having sent notice of the hearing date to Fulk. As a result, Client 1 was found in contempt and ordered to pay back medical and dental support and attorney fees within 45 days.

The order also says that Client 1 later filed a letter with the court indicating that the first he had learned of the hearing or the court order was in an email sent by his ex-wife about five weeks after the hearing. In that letter and a subsequent letter, Client 1 informed the court that he had attempted without success to contact Fulk multiple times and by multiple means, the order says.

Client 1 subsequently requested that the court vacate its contempt order, remove Fulk from the case, and allow Client 1 to proceed pro se. Client 1’s pro se efforts to obtain relief from the contempt order were unsuccessful, and the court later reduced that order to a civil judgment against Client 1 in the amount of $2,545.35. When the Commission opened an investigation, Fulk failed to substantively respond to the Commission’s demand for information or comply with a subpoena duces tecum for Client 1’s file, the order says.

In Count 2, the order says that Fulk employed an assistant from 2005 until the assistant quit in early 2018. During that time, the order says Fulk withheld money for Social Security from assistant’s earnings, but instead of depositing those sums with the federal government, he instead converted those funds for his own personal use.

In late 2017, assistant received a Social Security statement showing she had no earnings for any of the years she had worked for Fulk. When assistant confronted Fulk about it, he promised he would get it corrected, but Fulk never did. He also failed to respond to the commission’s demand for information on the matter, the order states.

Thus, the high court found Fulk violated the following Indiana Rules of Professional Conduct:

• 1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter;

• 3.4(c): Knowingly disobeying an obligation under the rules or an order of a court;

• 8.1(b): Knowingly failing to respond to a lawful demand for information from a disciplinary authority;

• 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, and;

• 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

“Respondent stole earnings from Assistant (his sole employee) during the entire twelve plus years of her employment, violating both state and federal criminal law in the process. Respondent severely neglected Client’s case, resulting in financial detriment to Client. Respondent has shown absolutely no remorse for, or insight into, his misconduct. Respondent refused to cooperate with the Commission’s investigations, has refused to meaningfully participate in these disciplinary proceedings, and has filed no petition for review, brief on sanction, or responsive brief in this Court. Under these circumstances, and based on the record before us, we conclude that Respondent should be disbarred,” the justices wrote.

The disbarment is effective immediately.

Fulk, who was admitted to the Indiana bar in 1995, shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of the proceeding are assessed against him.

Indiana Court of Appeals

June 10

Civil Tort — East Chicago Lead Exposure Litigation/Denial of Judgment on the Pleadings

State of Indiana, Indiana Department of Environmental Management, Indiana State Department of Health, et al. v. Cristobal Alvarez, C.A. by next friend Cristobal Alvarez, et. al.

19A-CT-587

Hundreds of families who were unknowingly exposed for years to high levels of lead in Northern Indiana have secured a victory against state and local entities after the Indiana Court of Appeals affirmed the denial of the latter’s motion for judgment on the pleadings.

In 2016, hundreds of families living in the West Calumet Housing Complex in East Chicago were uprooted after they received flyers from the Environmental Protection Agency informing them that high levels of arsenic and lead were found in the complex’s yard.

The levels of contaminants in the ground posed too dangerous a health hazard for the people to continue living there and residents were told to move as quickly as possible. Their homes had been built on a former industrial site occupied by Anaconda Lead Products Co. and surrounded by other lead smelting operations. The local elementary school was likewise built on land formerly occupied by U.S. Smelter and Lead Refinery, Inc.

Beginning in 1985, the Indiana Department of Environmental Management and the Indiana State Department of Health were aware of children living at the complex with high levels of lead in their blood, and further testing in 1997 revealed the same thing.

However, none of the state defendants notified the residents of the complex or the parents of students at the elementary of the elevated lead levels until 2016.

As a result, Cristobal Alvarez and more than 300 other former residents of the complex filed a lawsuit against the City of East Chicago, the East Chicago Housing Authority, the East Chicago Department of Public and Environmental Health, and the School City of East Chicago. They also sued the State of Indiana, the Indiana Department of Environmental Management, and the Indiana State Department of Health.

Their suit alleged negligence, arguing that the State Defendants and the East Chicago Department of Public & Environmental Health “owed a duty of reasonable care to the Plaintiffs, including without limitation the duty to warn the Plaintiffs of known risks to their health that had the potential to cause serious, life-altering injuries.”

It also alleged the state defendants committed intentional infliction of emotional distress and negligent infliction of emotional distress. The state defendants, however, filed a motion for judgment on the pleadings, arguing that they were immune from suit pursuant to the Indiana Tort Claims Act, that Plaintiffs’ suit was barred by the statute of limitations, and that they had failed to state a claim for intentional infliction of emotional distress.

But the Indiana Court of Appeals affirmed for the families, first finding that the state defendants were not entitled to judgment on the pleadings pursuant to the ITCA in the case of State of Indiana, Indiana Department of Environmental Management, Indiana State Department of Health, et al. v. Cristobal Alvarez, C.A. by next friend Cristobal Alvarez, et. al., 19A-CT-587.

The appellate court noted that it was “not clear from the face of the complaint that warning the Plaintiffs about exposure to dangerous levels of lead was a discretionary function.”

Additionally, the appellate panel rejected the state defendants’ argument that they cannot be held liable where the duty to notify the plaintiffs of the presence of toxic chemicals in the soil fell to the city defendants.

“However, the complaint alleges both the City Defendants and the State Defendants were aware that Complex residents and students at Carrie Gosch Elementary were being exposed to toxic substances, yet none of the defendants warned the Plaintiffs or took steps to reduce exposure. Even though the complaint alleges tortious conduct by both the State Defendants and the City Defendants, the Plaintiffs allege the State Defendants are liable for their own actions. Therefore, the State Defendants are not entitled to judgment on the pleadings on the ground of vicarious liability immunity,” Judge Melissa May wrote for the appellate court.

Next, the appellate court found it was unclear from the face of the complaint that the plaintiffs brought the lawsuit outside the statute of limitations period or that their claims were barred by issue preclusion.

Finally, it concluded that the plaintiffs recited sufficient facts to state a claim for intentional infliction of emotional distress and agreed that “a civilized society should not be expected to tolerate ‘a government standing silent while knowingly exposing its most-vulnerable citizens to toxic substances when reasonable alternatives [exist].’”

Juvenile Termination of Parental Rights — Reversal/Advisement Consent

In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.C., Jr. (Minor Child) and T.J. (Mother) and D.C. (Father) v. The Indiana Department of Child Services

19A-JT-2832

A mother whose parental rights were terminated after she signed a form voluntarily relinquishing them may not have been properly advised, the Indiana Court of Appeals ruled, reversing the termination and remanding the case to the trial court.

Both mother’s and father’s parental rights were terminated after the Putnam Circuit Court found evidence of drug use, father had been incarcerated, and both parents failed to comply with DCS family case management plans. Both parents appealed in In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.C., Jr. (Minor Child) and T.J. (Mother) and D.C. (Father) v. The Indiana Department of Child Services,19A-JT-2832, and while the panel found sufficient evidence to affirm father’s termination order, it reversed in favor of mother.

“With respect to Mother, the termination of her parental rights was predicated on Mother’s written consent. As to her consent, there is no dispute that Mother received eight out of nine statutory advisements before she signed a consent form. However, there is equivocal evidence about whether Mother received the ninth advisement, which specifies that consent cannot be based upon promises regarding adoption or post-termination contact,” Judge L. Mark Bailey wrote. “Mother argues that she is entitled to reversal because there is inadequate evidence of consent. We agree that reversal is appropriate, and we remand with instructions for further factfinding regarding whether Mother received the ninth statutory advisement.”

The COA noted that mother was not at the termination hearing, though her counsel told the court that “he met with Mother and ‘went over the rights and obligations and what she — the results of voluntary termination with her prior to signing it. And she did sign the voluntary termination in front of me and acknowledged her signature in front of the court reporter,’” Bailey wrote. “The court then inquired about Mother’s absence. Mother’s counsel said that Mother was not present because she ‘became physically ill after she signed it.’ … The court then orally granted DCS’s request to terminate Mother’s parental rights, noting that it would ‘show . . . that she signed the voluntary relinquishment of her rights with her attorney, and her attorney is present here today and had an opportunity to speak with her.’”

Afterward, while child, D.C. Jr., was in foster care with a permanency plan of adoption, mother wrote the court requesting “another chance” and the opportunity to visit her child, the COA noted. It also noted that DCS admitted that a required ninth statutory advisement added in 2012 was not on the form mother signed. Under I.C. § 31-35-1-12(9), parents must be advised that “consent cannot be based upon a promise regarding the child’s adoption or contact of any type with the child after the parents voluntarily relinquish their parental rights of the child after entry of an order under this chapter terminating the parent-child relationship.”

“Mother briefly argues that her consent was involuntary because she was addicted to methamphetamine, became ill after signing the form, did not receive one of the advisements, and wrote to the court after the termination of her parental rights. However, we are not persuaded that these circumstances render the attempt at consent involuntary,” Bailey wrote for the panel. “Rather, the consent is incomplete. Under these circumstances, we must remand for further fact-finding regarding whether Mother received the ninth statutory advisement. We therefore reverse the termination of Mother’s parental rights and remand for such fact-finding.”

Civil Plenary — Insurance Assignment/Dismissal

Gregory Smith, As Assignee of Nolan Clayton v. Progressive Southeastern Insurance Company

19A-PL-1959

A man rendered quadriplegic after a serious car wreck was unable to convince the Indiana Court of Appeals that his amended complaint was wrongly dismissed. The decision leaves in limbo collection of a $21 million jury award in favor of the injured man.

Several lawsuits have stemmed from a single-vehicle accident involving former co-workers Gregory Smith and Nolan Clayton, who was driving Smith’s vehicle. After they spent hours drinking together, the men got into Smith’s car, with Clayton having permission to drive from Smith, and eventually crashed into a tree.

Smith was ejected from the truck, suffered a broken neck, and was ultimately rendered quadriplegic. Smith first brought a complaint against Clayton for personal injury and property damage, resulting in a Marion County jury award of $21 million against Clayton.

Meanwhile, as one panel of the COA upheld the verdict in October 2018, another panel that same month reversed the Marion Superior Court, finding Smith’s insurer, Progressive Southeastern Insurance Co., was not obligated to cover him under terms of his uninsured motorist policy.

In January 2020, the COA ruled that Progressive was entitled to declaratory judgment as a matter of law. Then in March, the appellate court largely reaffirmed the ruling against Smith and declined to grant his requested relief.

When Smith’s second complaint was dismissed, he unsuccessfully appealed in Gregory Smith, As Assignee of Nolan Clayton v. Progressive Southeastern Insurance Company, 19A-PL-1959.

In affirming the latest decision, the appellate panel concluded that the trial court did not err in dismissing Smith’s second complaint, nor in denying Smith’s motion for joinder of parties or consolidation of actions.

It first noted that the nature of the vicarious liability claim in Smith’s second complaint still served as a legal malpractice claim against Clayton’s attorneys, Metzger Rosta, LLC, and that Indiana law does not support a respondeat superior claim being assigned to and litigated by Smith. It likewise found that Progressive did not have a contractual duty to defend Clayton and that Smith’s allegations in his second complaint, without more, cannot serve as the basis for a bad faith claim.

The appellate court then found that because neither Clayton nor Metzger could properly be joined as parties under Trial Rule 20, the trial court did not abuse its discretion when it denied Smith’s motion for joinder of parties. Neither did it err by denying Smith’s request for consolidation of his Bad Faith Action and Clayton’s Malpractice Action.

“We see no contradiction in Progressive’s assertions as Smith contends and thus, Smith has failed to show any ‘resultant prejudice’ from the trial court’s denial of Smith’s motion to consolidate,” Judge Margret Robb concluded for the appellate court.

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June 11

Estate, Supervised — Probate of Purported Will/Reversal

Christal Trowbridge v. In re the Estate of Everett Thomas Trowbridge, Michael T. Trowbridge

19A-ES-3022

An Indiana Court of Appeals panel has again reversed for a woman who claimed her ex-husband did not die intestate, holding that a probate court did not engage in the proper analysis to determine whether she rebutted whether the man destroyed his will with the intent to revoke it.

Christal Trowbridge claimed her late ex-husband, Everett Trowbridge, left her a handwritten last will and testament form will that was signed, written and notarized, which also included designation of a combination to a safe. Christal claimed the will entitled her to a 25% share of a Chase Bank retirement plan, as well as remaining property — a residence, personal property, a vehicle and an Edward Jones retirement plan. But Everett’s brother and estate personal representative Michael Trowbridge objected to the purported will. After a hearing, Clark Circuit Court denied probate of the will and declaring Everett died intestate.

However, the Indiana Court of Appeals reversed for Christal in a July 2019 decision, finding the trial court’s findings were contradictory, in conflict with testimony at the hearing, and misplaced the burden of proof, among other things.

The matter was remanded for further proceedings, but the probate court later entered a second order denying the probate of the will after concluding “by a preponderance of the evidence that [Everett Trowbridge] had the original Will in his safe shortly after its execution on April 30, 2012.” It further concluded that “the original Will could not be found, and that the estate is entitled to the presumption that [Everett Trowbridge] destroyed the Will with the intent to revoke it[.]”

Lastly, the COA concluded that Christal had failed to prove by a preponderance of the evidence that the proffered will is the original will, and therefore, Christal had not overcome the presumption of revocation.

A panel of the Indiana Court of Appeals affirmed the probate court’s conclusion that the Estate is entitled to the presumption that Everett Trowbridge destroyed the will with the intent to revoke it. However, it also agreed with Christal that the probate court did not engage in the proper analysis to determine whether she rebutted the presumption that the original will was destroyed with the intent to revoke it.

“The probate court found that Christal failed to rebut the presumption because she did not possess the original will. But this is not the issue. If Christal possessed the original will, then there would be no need for the court to engage in the burden-shifting analysis in Estate of Fowler v. Perry, 681 N.E.2d 739, 741 (Ind. Ct. App. 1997),” Judge Nancy Vaidik wrote for the appellate panel.

It then pointed out evidence in the record that could rebut the presumption, including that Trowbridge did not execute his will until after he and Christal were divorced and Trowbridge continued to list Christal as the beneficiary of his accounts as recently as the year before he died, among other things.

“But because the probate court did not engage in the proper analysis, it has not had the opportunity to determine, in the first place, whether these facts are sufficient to rebut the presumption. We therefore reverse on this issue and remand with instructions for the court to enter a new order applying the proper analysis,” it concluded. “No new hearing is necessary.”

The case is Christal Trowbridge v. In re the Estate of Everett Thomas Trowbridge, Michael T. Trowbridge, 19A-ES-3022.

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June 17

Criminal — Probation Fees/Post-Sentencing

Anthony W. Ross v. State of Indiana

19A-CR-2966

A panel of the Indiana Court of Appeals has vacated an order requiring a man to pay more than $300 in probation fees after concluding that it was erroneous for the trial court to accept, post-sentencing, the imposition of such fees based on a probation department memo.

After his conviction of Class A misdemeanor domestic battery, Anthony Ross was sentenced to one year with 353 days suspended to unsupervised probation. Additionally, the Marion Superior Court ordered Ross to complete 80 hours of community service and 13 weeks of batterers’ intervention classes.

Although the trial court’s order imposed no probation fees and noted that Ross’ probation could terminate early if he successfully completed all the terms, the probation department sent a memorandum to the trial court on the day of sentencing asking whether the court wanted to assess probation fees.

Specifically, the probation department noted the “eligible” fees of $50 administrative fee and $290 user fee. But Ross appealed when the trial court issued an order approving the probation department’s memorandum and directed the department to “[a]ssess fees as indicated.”

The Indiana Court of Appeals vacated the trial court’s order, citing Burnett v. State, 74 N.E.3d 1221 (Ind. Ct. App. 2017) and Coleman v. State, 61 N.E.3d 390 (Ind. Ct. App. 2016) — two cases concerning statutes Ind. Code § 35-38-2-1(e) (2012) and Ind. Code § 35-38-2-1.7(b) (2015).

“It is the trial court, not the probation department, that has the discretion to impose probation fees in a misdemeanor case. Nothing in the record here indicates that it was the trial court that imposed these probation fees; essentially, Ross’ probation fees were imposed by the probation department. At sentencing, the court stated nothing about Ross paying probation fees, and neither the court’s sentencing order nor its probation order imposed any probation fees. As we previously determined in both Burnett and Coleman, a probation order such as Ross’, along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to impose such fees,” Senior Judge Ezra Friedlander wrote for the appellate court.

Thus, the appellate court concluded it was erroneous for the trial court to accept, post-sentencing, the imposition of the fees based on a probation department memo.

“The proper procedure was for the probation department to petition the trial court pursuant to Section 35-38-2-1.7(b) and show that Ross’ financial situation has changed since the sentencing hearing. Moreover, we note that this practice of probation submitting a memo to the court post-sentencing and without notice to the defendant impedes the interest of criminal defendants in the transparency of judicial proceedings,” the appellate court wrote. “Accordingly, we vacate the fees and remand for further proceedings.”

On remand, the appellate court noted that if any probation fees are imposed upon Ross, the trial court should conduct a hearing at the time the fees are imposed to assess Ross’ ability to pay.

It additionally noted that “because the trial court ordered that Ross could terminate his probation early upon completion of his community service and classes, any probation fees ordered upon remand should reflect this situation and correspond to the probation time Ross actually serves.”

The case is Anthony W. Ross v. State of Indiana, 19A-CR-2966.•