Indiana Court decisions – Nov. 18-Dec. 2, 2020

7th CircuitCourt of Appeals

Nov. 20

Criminal — Drug Adulteration/Evidence, Sentence

USA v. Paul Elmer

19-2890

The former owner of a Noblesville compounding pharmacy lost an appeal of his conviction and prison sentence related to the distribution of drugs that contained more or less potency than labeled – in some cases with a potency up to 25 times greater than they should have been.

The 7th Circuit Court of Appeals affirmed the conviction and 33-month sentence a federal jury in Indianapolis imposed in September 2019 on Paul Elmer, who owned and operated Pharmakon Pharmaceuticals. Elmer was convicted in April 2019 of nine counts of adulterating compounded drugs and one count of conspiracy. He was found not guilty of an additional count of obstruction of justice.

“The evidence before the jury overwhelmingly proved Elmer’s guilt. And the district court’s imposition of a sentence of 33 months’ imprisonment was more than reasonable given the gravity of Elmer’s crimes,” Judge Michael Scudder wrote for the appellate panel in affirming Elmer’s conviction and sentence.

“His pharmacy produced and distributed drugs that Elmer knew were dangerous. Rather than halting manufacturing or recalling past shipments, sales continued and led to the near death of an infant” who was administered over-potent morphine sulfate provided to Community Health Network in Indianapolis, the 7th Circuit noted. Evidence at trial show that from 2014-2016, testing showed 134 instances of under- or over-potent drugs distributed by Pharmakon to customers.

After Community reported incidents to the Food and Drug Administration, Elmer “took a more active role in misleading the agency,” Scudder wrote, but those with knowledge eventually provided documentation of out-of-specification drug tests to the FDA. “Confronted with this evidence, Elmer still refused to recall Pharmakon’s compounded drugs. The FDA responded by issuing a public safety alert and referred the case to the Department of Justice for criminal investigation.”

The 7th Circuit rejected Elmer’s challenges to evidentiary rulings and cooperating witness testimony in the district court. The panel reserved a harsh reply for Elmer’s challenge that his sentence was too harsh, citing the vulnerability of victims and Elmer’s refusal to accept responsibility, among other things.

“The sentence matched the low end of the advisory range and reflected the district court’s application of the mitigating factors required by 18 U.S.C. § 3553(a), including Elmer’s health conditions and his role as the sole caretaker for his wife who also suffers from serious medical conditions,” the panel noted. “The law required no more of the district court. If anything, Elmer’s sentence strikes us as meaningfully lower than the district court could have imposed given the extreme risks, including to infant patients, posed by his offense conduct.”

The case is USA v. Paul Elmer, 19-2890.

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Dec. 1

Criminal — Death Sentence Appeal/Mental Capacity, Denial of En Banc Rehearing

Alfred Bourgeois v. T.J. Watson

20-1891

In a 7-2 decision Dec. 1, the 7th Circuit Court of Appeals rejected a federal death row inmate’s request for an en banc rehearing after a panel of the court in October refused to stay his execution due to his claimed mental incapacity.

Judges denied Alfred Bourgeois’ petition for rehearing or rehearing en banc in a two-page order in Alfred Bourgeois v. T.J. Watson, 20-1891.

Judges Diane Wood and Ilana Rovner dissented. Bourgeois is scheduled to die by lethal injection Dec. 11 at the U.S. Penitentiary in Terre Haute, according to the Department of Justice. He was convicted and sentenced to death in 2004 in the Southern District of Texas after he brutally abused and murdered his 2-year-old daughter.

Southern District of Indiana Chief Judge Jane Magnus-Stinson stayed Bourgeois’ death sentence, finding in March he is intellectually disabled and therefore the Federal Death Penalty Act forbids his execution.

The 7th Circuit reversed in October, finding that Bourgeois failed to meet the stringent requirements of the savings clause under 28 U.S.C. § 2255(e).

“The district court found that Bourgeois had met all four stay factors, but we only reach the first one: likelihood of success on the merits. The district court’s determination that Bourgeois was likely to succeed on the merits of his FDPA claim rested on a preliminary finding that the government had waived any argument that Bourgeois’s FDPA claim was not cognizable under § 2255(e)’s savings clause. That is where we part ways with the district court. We find that the government did not waive, or even forfeit, this argument. And even if it had forfeited the argument, we would excuse that forfeiture on these facts,” Circuit Court Judge Amy St. Eve wrote for the 7th Circuit panel.

In denying rehearing or rehearing en banc, the per curiam opinion contains just three paragraphs. It noted that Wood “dissents from the denial of rehearing en banc, on the ground that in her view the petitioner is entitled to a hearing on his claim that his execution will violate the Federal Death Penalty Act, 18 U.S.C. § 3596(c), with whom Circuit Judge Rovner joins.”

Bourgeois’ attorney Vic Abreu issued a statement after the ruling calling on the U.S. Supreme Court to review the case.

“Mr. Bourgeois is a person with intellectual disability, and both the Constitution and the plain language of the Federal Death Penalty Act bar his execution,” Abreu said. “The jury that sentenced Mr. Bourgeois to death never learned that he was a person with intellectual disability because his trial lawyers did not present the evidence that was available to them. … Unfortunately, over the objection of two dissenting judges, the Court of Appeals has now ruled that because Mr. Bourgeois was previously denied relief, he could not seek further review of his claim. That ruling paves the way for Mr. Bourgeois to be executed without any court ever reviewing the evidence of his intellectual disability using proper scientific standards.”

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Indiana Supreme Court

Dec. 1

Criminal — Lookalike Drug Dealing/Search

Michael D. Johnson v. State of Indiana

20S-CR-655

A split Indiana Supreme Court has affirmed a man’s drug-related conviction after the Indiana Court of Appeals previously reversed in his favor, finding a search and seizure that resulted in his arrest proceeded within the bounds of the Fourth Amendment.

While playing quarter slots at the Hoosier Park Casino in Anderson in 2015, Brett Eversole was approached by Michael Johnson and asked if he wanted to buy a “white girl,” another name for cocaine.

Eversole reported the encounter to security officers, which made its way to gaming enforcement agent Zach Wilkinson, who “confirmed the interaction” based on surveillance footage that did not have audio. Wilkinson then found Johnson and brought him into an interview room.

In the room, Wilkinson told Johnson he would “need a pat down,” which led Wilkinson to remove what “felt like a ball of drugs” from Johnson’s pocket. Johnson was handcuffed and read his Miranda rights, but subsequent testing revealed the white powder was not a drug. Rather, the substance tested to be sodium bicarbonate, also known as baking soda.

Johnson was charged with Level 5 felony dealing in a lookalike substance and found guilty by a jury. He appealed, renewing his argument under the Fourth Amendment.

The Indiana Court of Appeals reversed, finding insufficient evidence to dispel a claim of a Fourth Amendment violation. But a split Indiana Supreme Court affirmed the trial court, concluding that the search and seizure proceeded within the bounds of the Fourth Amendment.

First, the high court majority concluded that Wilkinson was justified in stopping Johnson under Terry v. Ohio, 392 U.S. 1, 30 (1968) after watching the video and talking to Eversole. It further found that Wilkinson could perform a Terry frisk of Johnson after they entered the interview room because it was reasonable to believe he was armed and dangerous.

“To determine whether an officer acted reasonably, we consider the specific, reasonable inferences that the officer, in light of his experience, can draw from the facts. Here, the facts supported the reasonableness of the pat-down: Agent Wilkinson suspected Johnson of trying to sell drugs and was about to interview him one-on-one in a small windowless room early in the morning,” Justice Mark Massa wrote for the high court. “… Agent Wilkinson’s suspicion that Johnson attempted to sell drugs — supported by Eversole’s statements and surveillance footage — helped justify the pat-down.”

Finally, the justices confirmed that Wilkinson could seize the baggie when he immediately identified the lump as contraband the moment he grazed Johnson’s pocket.

“Agent Wilkinson lawfully removed the baggie from Johnson’s pocket after immediately identifying it as contraband during the reasonable patdown search,” the majority concluded. “Because this seized evidence was properly admitted under the Fourth Amendment, we need not entertain any alternative explanations that could theoretically foreclose the baggie’s admission.”

But Justice Geoffrey Slaughter dissented in a separate opinion, noting that while he agreed the case was a close call in Michael D. Johnson v. State of Indiana, 20S-CR-655, he could not side with his colleagues.

“Unlike the Court, I do not find that Johnson’s suspected drug activity, in combination with the time of the encounter and the fact that the officer was alone in a room with Johnson, gives rise to the crucial inference Terry requires. These facts do not suggest that Johnson was armed and dangerous. As to the timing, nothing in the record connects the early morning with any likelihood that Johnson (or any other casino patron) was armed. For instance, there is no evidence that 7 a.m. is a unique time when casino patrons, or even drug dealers in casinos, are more likely to be armed. As to the location, while a weapon may be more dangerous in a small, closed-off space, this location does not suggest that Johnson was armed in the first place. Yet that is the necessary inference,” Slaughter opined.

“Because neither the time nor the location gives rise to the inference that Johnson was armed, Terry’s critical link is missing, and this protective weapons search was unconstitutional.”

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Indiana Court of Appeals

Nov. 18

Civil Plenary — Home Improvement Contract Dispute/Timely Cancellation

McGraw Property Solutions, LLC v. Jason Jenkins

20A-PL-00630

The Indiana Court of Appeals has affirmed in an interlocutory appeal a Boone County property owner’s cancelation of an agreement with a contractor, finding that his cancelation was timely under the replacement cure contract.

A property owned by Jason Jenkins was damaged by a severe storm in 2017, prompting him to call McGraw Property Solutions, a general contractor, to complete storm remediation.

The two entered into an agreement whereby McGraw promised to complete all storm remediation work to the property for the price approved by Jenkins’ insurer, requiring Jenkins to pay McGraw 20% of the replacement cost value as liquidated damages if Jenkins refused to allow McGraw to finish the work.

After the execution of the agreement, a representative of McGraw surveyed and documented the storm damage and concluded that a total replacement cost value was $170,559.63. But shortly thereafter, Jenkins decided to instead sell the property and not repair it. Jenkins’ insurer subsequently approved Jenkins’ claim with a replacement cost value of $109,371.97 and issued a total payment to Jenkins in the amount of $64,597.37.

McGraw filed a complaint against Jenkins, raising claims for breach of contract, unjust enrichment, and promissory estoppel, causing Jenkins to respond with a Notice of Violations under the Home Improvements Contracts Act and a demand that McGraw submit a replacement cure contract.

After accepting McGraw’s provided replacement cure contract on Aug. 27, 2017, Jenkins also submitted a notice to McGraw cancelling the replacement cure contract on the same day. Jenkins filed his answer, affirmative defenses, and counterclaim sounding in breach of contract, later moving for summary judgment on all counts.

The trial court ruled on the cross-motions for summary judgment, entering judgment against Jenkins on his counterclaim for breach of contract and against McGraw on its breach of contract claim.

The trial court then certified McGraw’s motion for interlocutory appeal, in which McGraw argued that the trial court erred by not construing the cancellation clause in the replacement cure contract to relate back to the execution date of the original contract, thereby erroneously allowing Jenkins “a springing right to cancel in a manner that will lead to absurd results.”

Affirming the trial court’s “sound reasoning that adopting McGraw’s position would be meaningless and not cure the original contract,” the Indiana Court of Appeals found that Jenkins timely cancelled the agreement entered into with McGraw.

“The main focus of the right to cure was to remedy the deficiencies of the original contract and to grant Jenkins the rights he was not awarded originally despite the provisions enumerated in the HICA. These cured deficiencies only become meaningful if a possibility to exercise these rights exists. By relating the replacement cure contract back to the effective date of the original contract, McGraw attempted to circumvent granting Jenkins an effective remedy. As the

HICA is instrumental in protecting consumers with contractors held to a strict standard, the protection can only be effective if the consumer has knowledge of the right,” Judge Patricia Riley wrote for the appellate court.

“Jenkins received knowledge of his rights on October 27, 2017 when McGraw offered the replacement cure contract which included a dual right to cancel the contract — either within three business days of the effective date of the contract or within three business days of receiving notice from the insurance company that the claim is partially or completely rejected. Therefore, we conclude that the replacement cure contract is effective from the date of its execution on October 27, 2017, and Jenkins timely exercised his right to cancel the contract,” it concluded.

The case is McGraw Property Solutions, LLC v. Jason Jenkins, 20A-PL-630.

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Nov. 19

Criminal — Forcibly Resisting Arrest/Evidence

Torence L. Jackson, Jr. v. State of Indiana

20A-CR-385

A Marion County man’s resisting arrest conviction for refusing to remove his hands from his pockets presented legitimate questions about the element of force required for such a crime, the Indiana Court of Appeals observed in a reversal.

Indianapolis Metropolitan Police Department Officer Shawn Romeril confronted Torence Jackson, Jr. and a companion after he received a call of two men harassing customers at a gas station in October 2019.

As Romeril drove up in a marked patrol car, the two men saw him and put their hands in their pockets. Romeril, who was in full uniform, got out of his car and told the men to take their hands out of their pockets and sit down. Although Jackson’s companion complied, Jackson kept his hands in his pockets and refused to remove them until the officer removed Jackson’s hands from his pockets and handcuffed him.

Jackson’s companion at that point stood up and ran away, the officer chased him, and Jackson fled the scene while Romeril was gone. Additional officers later found Jackson, who was arrested and charged with Class A misdemeanor forcibly resisting law enforcement and Class B misdemeanor public intoxication.

A trial court later dismissed the intoxication charge but found Jackson guilty of resisting arrest and sentenced him.

In reversing Jackson’s conviction, the Indiana Court of Appeals concluded that the facts of Jackson’s case more closely resemble the circumstances of Graham v. State, 903 N.E.2d 963 (Ind. 2009), Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009) and Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009) than the circumstances of Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005).

“Jackson did not comply with Officer Romeril’s instructions to take his hands out of his pockets and sit down. We do not endorse his refusal to cooperate. Still, there is no evidence that Jackson physically resisted, such as by pulling away or stiffening his arms, when Officer Romeril grabbed his hands and handcuffed him,” Senior Judge Randall T. Shepard wrote.

“In the absence of physical efforts by Jackson to oppose Officer Romeril, there is insufficient evidence to support the ‘forcibly’ element of the offense of resisting law enforcement. We reverse Jackson’s conviction,” it concluded.

Additionally, the appellate court found the trial court abused its discretion by ordering Jackson to pay a public defender fee without asking about his ability to pay. It likewise reversed the fee’s imposition in its decision in Torence L. Jackson, Jr. v. State of Indiana, 20A-CR-385.

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Nov. 25

Civil Tort — Retail Lease Dispute/Store Closing Injunction

Abercrombie and Fitch Stores, Inc. v. Simon Property Group, L.P.

20A-CT-1092

The Indiana Court of Appeals has affirmed a preliminary injunction for Indianapolis-based Simon Property Group that prevented retail clothing store Abercrombie & Fitch from permanently closing stores in dozens of Simon malls.

In February 2019, Abercrombie & Fitch Stores, Inc. began negotiating 54 lease agreements with Simon Property Group, L.P. that involved various lease terms and store relocations. During the course of the year, the parties discussed the leases and the terms of a settlement agreement regarding the resolution of a rent dispute. Most of the leases had either expired or were due to expire by the end of January 2020.

An agreement between the parties provided, among other things, that Abercrombie would pay Simon nearly $450,000 less per month in combined rent for its stores than it had in the prior year. Although Simon did not sign a document entitled “Renewal Rents Letter,” Abercrombie paid — and Simon accepted — the rent amounts contemplated in the agreement, starting in February 2020. Abercrombie was also permitted to continue occupying all the stores that were subject to the agreement, rather than having to close the stores whose leases would have expired on Jan. 31, 2020.

The parties continued negotiating amendments to the agreement into early March 2020, and Abercrombie that month sent Simon the executed lease amendments. Although Abercrombie had sent the executed documents to Simon, Abercrombie decided to close all stores effective March 16 because of the COVID-19 pandemic.

When Simon announced that it was temporarily closing its malls across the country due to COVID-19, Abercrombie sent a letter to Simon formally retracting the signatures on 42 leases and amendments. Its only stated reason for the retraction was “the current uncertainty regarding the impact of COVID-19.”

Eventually, Abercrombie made clear its intention to permanently close and abandon the stores that were included in the agreement, prompting Simon to seek a temporary restraining order and a preliminary injunction. Simon sought to prohibit Abercrombie from permanently closing its stores, and the Marion Superior Court granted an emergency temporary restraining order in Simon’s favor.

The trial court granted Simon a preliminary injunction and ordered Abercrombie not to permanently close its stores, setting bond at $15 million. The court concluded that Simon established a prima facie case that there was an enforceable agreement; that Abercrombie’s sudden closures would cause Simon irreparable harm; the threatened irreparable harm to Simon outweighed any potential pecuniary harm to Abercrombie resulting from an injunction; and the public interest would not be disserved by the granting of an injunction.

Appealing in Abercrombie and Fitch Stores, Inc. v. Simon Property Group, L.P., 20A-CT-1092, Abercrombie claimed that the trial court’s order must be set aside because it erred in issuing an “improper mandatory injunction.”

Noting that the parties had been performing under the agreement for nearly two months before the COVID-19 pandemic prompted a temporary closure of Simon malls, the appellate court found that the circumstances at hand had nothing to do with the temporary government-ordered closures.

“Rather, it was Abercrombie’s threat to permanently close and abandon its stores on the theory that there was no binding contract between the parties that prompted Simon’s request for an injunction. Simon requested injunctive relief prohibiting the permanent closures. Hence, contrary to Abercrombie’s claim, the trial court’s order was not an improper mandatory directive. In other words, the injunctive relief granted for Simon did not order Abercrombie to reopen its stores in defiance of the temporary closures that the government had ordered because of the COVID-19 crisis. The temporary injunction merely prohibited Abercrombie from permanently closing its stores and abandoning those locations. Thus, Abercrombie’s mandatory injunction argument fails,” Judge Robert Altice wrote for the appellate court.

Additionally, the appellate court found it was reasonable for the trial court to conclude that Abercrombie’s sudden decision to vacate and permanently close its stores would present irreparable harm to Simon.

“Thus, the indirect effects of a mass store closing, along with the consequences of the pandemic, supports the trial court’s grant of injunctive relief until a final judgment on the merits may be rendered,” the appellate panel concluded.

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Indiana Court of Appeals

Nov. 30

Criminal — Murder/Rejected Plea, Self Defense Claim

Brianna Michelle Wilson v. State of Indiana

19A-CR-1987

The murder conviction of a woman whose voluntary manslaughter plea was rejected by a judge after the woman insisted she shot a man in self-defense was affirmed on appeal.

Brianna Wilson was convicted of the murder of Maurice Martinez and sentenced to 55 years in prison with 10 years suspended. According to the record, Wilson admitted to shooting Martinez twice in the back as he tried to leave her apartment. Wilson said Martinez claimed that either she or her cousin, R.T., who was also at the residence, had stolen money from him, and that Martinez had threatened them.

Wilson had pleaded guilty to voluntary manslaughter with a maximum sentence of 15 years, which the Marion Superior Court took under advisement. At the sentencing hearing, “the trial court expressed concern about whether Wilson had entered her plea knowingly and voluntarily based on her statements” in her presentencing report.

Called to the stand, the state asked on cross-examination, “You understand that you did not shoot Mr. Martinez in self-defense?” Wilson replied, “It was self-defense.”

“He was violating me in my own home and he also violated [R.T.] He touched on her and he threatened to kill me, and he said that I had stole [sic] eighty … dollar[s] from him which I don’t have to steal anything from no one. He pulled on my arm and he said he was going to take me out to his car and shoot me. That’s what he said and I got loose and I went and got my gun and I shot him because he was dragging me out of my house by my arm,” she said on the stand.

Judge Barbara Crawford then rejected the plea agreement and set the case for trial, leading to Wilson’s murder conviction. The Court of Appeals affirmed, first finding the court’s comments and chronological case summary for the guilty plea hearing “are not conclusive as to whether the trial court accepted Wilson’s plea agreement or took it under advisement.”

“We further conclude that, when the trial court made clear at the sentencing hearing that its position was that it had only taken the plea agreement under advisement, Wilson had the affirmative duty to object or otherwise make a record that the plea agreement had in fact already been accepted. Instead, the record on appeal does not show that Wilson did anything other than assent to the trial court’s determination. We therefore conclude that Wilson has not met her burden on appeal to show that the trial court accepted her agreement at the guilty plea hearing,” Judge Edward Najam wrote in Brianna Michelle Wilson v. State of Indiana, 19A-CR-1987.

“Wilson next contends that the court abused its discretion when it rejected her plea agreement at the sentencing hearing,” Najam wrote. “Wilson asserts that her comment that she had acted in ‘self-defense’ was not a legal conclusion. She further asserts that her comment also was not a claim of innocence but a plea for leniency. The State, in turn, contests those arguments.

“We need not decide whether Wilson’s statements were attempts at legal conclusions or were claims of innocence. Our standard of review in this appeal is deferential and controls the outcome here,” Najam continued. “The factual basis submitted to the court on the plea agreement could have been found by a jury to establish the offense of murder, a mitigated offense of voluntary manslaughter, or an exculpatory act of self-defense. In such circumstances, it was within the trial court’s discretion to reject the plea agreement and have that call be made by the jury. We therefore cannot say that the trial court abused its discretion when it rejected Wilson’s plea agreement,” Najam wrote.

The COA also rejected Wilson’s claim that the trial court abused its discretion by failing to offer a jury instruction on voluntary manslaughter.

“… (W)e are, at best, left with an uncorroborated — if not contradicted — claim of an attack some time prior to a shooting along with Martinez’s statement that he would return with a gun. Even if under these circumstances the trial court could have given an instruction on voluntary manslaughter, we cannot say that the trial court abused its discretion when it declined to do so.”

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Nov. 30

Criminal — Murder/Sentence, Double Jeoprardy ‘Dilemma’

Damonta Lamont Jarrett v. State of Indiana

20A-CR-59

The 65-year sentence of a man convicted of murder was affirmed on appeal, but a judge wrote separately to “address a practical dilemma facing appellate courts, lawyers, and litigants” after recent appeals revised longstanding double jeopardy caselaw.

The Indiana Court of Appeals affirmed Damonta Jarrett’s murder and robbery convictions in the fatal 2016 convenience store shooting of Steven Marquand in Gary. Jarrett twice unsuccessfully moved for a mistrial, which the Lake Superior Court denied, and the COA affirmed.

Jarrett first argued he was prejudiced by an investigator’s testimony that he had not submitted Jarrett’s DNA for analysis because such testing is not feasible until a suspect is taken into custody. Jarrett argued jurors may have wondered whether Jarrett took flight after Marquand’s killing. The trial court gave jurors a limiting instruction to address Jarrett’s counsel’s concerns.

Likewise, Jarrett wishing the judge happy birthday also was no grounds for mistrial, the COA affirmed. The appeals panel also rejected Jarrett’s sentencing claims.

However, the panel most focused on double jeopardy and the new analytical framework devised by the Indiana Supreme Court in Wadle v. State, 151 N.E.3d 227, 235 (Ind. 2020).

“Jarrett … argues that his convictions for murder and Level 5 felony attempted robbery violate Indiana’s prohibition against double jeopardy under the actual evidence test established by our supreme court in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). However, while Jarrett’s case was pending on appeal, the Indiana Supreme Court ‘expressly overrule[d] the Richardson constitutional tests in resolving claims of substantive double jeopardy’ and adopted an analytical framework to be applied where, as here, ‘a single criminal act or transaction violates multiple statutes (rather than a single statute),’” Judge Rudolph Pyle III wrote for the panel.

“… Because neither murder nor Level 5 felony attempted robbery is included in the other, Jarrett’s convictions do not constitute double jeopardy under Wadle.”

Concurring Judge Leanna Weissmann wrote separately to “address a practical dilemma facing appellate courts, lawyers, and litigants in the wake of Wadle … how do we proceed in cases where the appellant’s brief was filed before Wadle and, thus, the defendant did not have the benefit of Wadle’s acknowledgement of possible alternative relief in the absence of double jeopardy violations?”

“Although Jarrett reasonably could not have anticipated Wadle’s quantum leap in double jeopardy analysis, his case lacks the special circumstances which appear to be a prerequisite for rare sua sponte review under Appellate Rule 7(B)” concerning the appropriateness of sentences, Weissmann wrote.

“As (Wilson v. State, 19S-PC-548, (Ind. Nov. 17, 2020)) appears to bar us from sua sponte review of Jarrett’s sentence under Appellate Rule 7(B), I concur with the majority’s opinion affirming the trial court’s judgment,” she concluded.

The case is Damonta Lamont Jarrett v. State of Indiana, 20A-CR-59.

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Civil Tort — Negligence/Denial of Motion to Amend

Betty Miller, Individually and as Personal Representative of the Estate of John Allen Miller v. Laxeshkumar Patel, M.D., et al.

20A-CT-1088

The widow of a man who was killed by his grandson after numerous mental health treatments lost an appeal of a ruling against her negligence claims against health care providers.

The case of Betty Miller, Individually and as Personal Representative of the Estate of John Allen Miller v. Laxeshkumar Patel, M.D., et al., 20A-CT-1088, involves Betty Miller’s grandson, Zachary Miller, who had been treated at least five times over a month for serious mental health issues before he went to the emergency room at Community Howard Regional Hospital “requesting to be admitted due to his ongoing mental illness and dangerous propensities, and … he was treated and discharged by hospital physicians and a physician’s assistant,” Judge James Kirsch wrote. “… (A)fter his discharge, in the overnight hours of January 8-9, 2017, Zachary returned to the home of his grandparents, (Betty and John Miller), and killed John by beating him with a frying pan and cutting John’s wrists because he heard voices telling him to do so.”

Betty Miller sued numerous doctors and providers alleging negligent care, but the Marion Superior Court denied her motion to amend the complaint to add a claim against Community Health Network Inc., d/b/a Community Howard Regional Health Hospital and Community Howard Behavioral Health, and Community Howard Regional Health Inc. under 42 U.S.C. § 1395dd, the federal Emergency Medical Treatment and Active Labor Act.

“On appeal, Miller contends that in denying her motion to amend, the trial court erred by relying on this court’s opinion in Williams v. Inglis, 142 N.E.3d 467 (Ind. Ct. App. 2020), trans. denied, which she asserts was incorrectly decided and is in need of reexamination. Finding that Williams was correctly decided, we find no error in the trial court’s denial of Miller’s motion to amend,” the majority, including Judge Rudolph Pyle III, held.

The issue was whether the motion to amend the complaint to add the parties was timely under EMTALA. The trial court ruled it was filed outside the federal statute’s two-year statute of limitations, and the COA majority agreed.

“We are sympathetic to Miller for the loss she suffered; however, we decline to disturb the dispositive holding in Williams that the ‘application of Indiana Trial Rule 15(C) would directly conflict with the EMTALA two-year statute of limitations’ and is ‘therefore preempted by EMTALA’ to the instant case,” Kirsch wrote.

Judge Elizabeth Tavitas dissented. “I do not find that Indiana Trial Rule 15(C) ‘directly conflicts with’ the EMTALA two-year statute of limitations. 42 U.S.C. § 1395dd(f). It is inconsistent to hold that Indiana Trial Rule 15(C) ‘directly conflicts with’ the EMTALA when federal courts have allowed relation back under the similar federal rule. Under the majority’s analysis and Williams, Indiana Trial Rule 15(C) and the equivalent federal rule would be rendered meaningless.

“… I find that the trial court misapplied the law. I conclude that the trial court incorrectly determined that EMTALA’s two-year statute of limitations precluded Miller from amending the complaint,” Tavitas continued. “… Accordingly, I find that the relation back provision of Trial Rule 15(C) is not preempted by the EMTALA’s two-year statute of limitations. I would remand for the trial court to determine whether the EMTALA claim in the amended complaint ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’”•