Opinions Jan. 23, 2019

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Tuesday:
Charlotte Robinson and Bobby Don Bowersock as co-personal representatives of the Estate of Georgia J. Bowersock, deceased, and Mark Bowersock, individually v. Davol Inc. and C.R. Bard, Inc.
17-2068
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil. Affirms the grant of summary judgment to Davol Inc. and C.R. Bard, Inc. on a claim brought by the estate of Georgia Bowersock, who died after a Bard-manufactured surgical mesh patch was implanted in her body. Finds the novel theory of causation presented by the estate’s expert was not peer-reviewed, professionally presented, consistent with Bowersock’s medical records or autopsy or substantiated by other cases. Also finds the judge did not abuse his discretion in excluding the expert testimony.

In Re: Edward L. Calvert, Appeal of: National Labor Relations Board
17-1895
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms a bankruptcy judge’s finding that Edward L. Calvert’s $400,000 liability for violations of the National Labor Relations Act was not exempt from discharge through Chapter 7 bankruptcy. Finds the National Labor Relations Board did not present sufficient evidence to establish that Calvert is precluded from contesting the issue of malice under section 11 United States Code section 523(a)(6). Judge Elaine Bucklo, sitting by designation from the Northern District of Illinois, dissents with separate opinion.

Wednesday’s opinions
Indiana Court of Appeals
City of Hammond v. John Rostankovski
18A-OV-1891
Ordinance violation. Reverses the dismissal of Hammond’s action against John Rostankovski for lack of subject matter jurisdiction. Finds the Lake Superior Court erred. Remands for further proceedings. Also finds Indiana Code sections 33-35-5-9 and -10 can be harmonized.

Jason Arthur Keene v. State of Indiana
18A-XP-228
Expungement. Affirms the denial of Jason Keene’s petition to expunge a 2009 felony conviction. Finds the Marion Superior Court did not err when it admitted into evidence a written statement from the victim of the crime. Finds Keene did not have a right to cross-examine the victim.

Derrick Weedman v. State of Indiana (mem. dec.)
18A-PC-2144
Post-conviction. Affirms the denial of Derrick Weedman’s petition for post-conviction relief in Wells Circuit Court. Finds Weedman cannot show that he was prejudiced by his trial counsel’s performance, so the post-conviction court did not err by denying his petition.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of H.H., et al. and K.H. (Father) v. The Indiana Department of Child Services (mem. dec.)
18A-JT-2160
Juvenile termination of parental rights. Affirms the termination of K.H.’s parental rights to H.H., D.H., F.H. and K.H., Jr. Finds the evidence presented in Marion Superior Court is sufficient to support the termination.

Quantae A. Johnson v. State of Indiana (mem. dec.)
29A05-1712-CR-2974
Criminal. Affirms Quantae Johnson’s convictions of Level 5 felony neglect of a dependent and Level 6 felony neglect of a dependent. Finds the Hamilton Superior Court did not err by denying Johnson’s request to withdraw his guilty plea. Also finds Johnson waived his right to his other appellate arguments by pleading guilty.
 
In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.C. (Minor Child), and B.C. (Mother) and B.C. (Father) v. The Indiana Department of Child Services (mem. dec.)
18A-JT-1755
Juvenile termination of parental rights. Affirms the termination of B.C. and B.C.’s parental rights to K.C. Finds the evidence supported the White Circuit Court’s findings, which supported its conclusions that there was a reasonable probability that the conditions that merited removal would not be remedied and that it was in K.C.’s best interests to terminate the parents’ rights.

Joseph M. Backenstoes v. State of Indiana (mem. dec.)
18A-CR-1297
Criminal. Affirms Joseph Backenstoes’ conviction for unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds the state presented sufficient evidence beyond a reasonable doubt in Lawrence Superior Court to convict Backenstoes for possession of a firearm by an SVF as a Level 4 felony.

Tosumba D. Welch v. State of Indiana (mem. dec.)
18A-CR-2039
Criminal. Affirms Tosumba Welch’s aggregate 18-year executed sentence for his convictions in Greene Superior Court of two counts of domestic battery with seriously bodily injury to a person less than 14 years old, both as Level 3 felonies. Finds Welch’s sentence is not inappropriate given the nature of his offenses and his character.

Dustin W. Bass v. State of Indiana (mem. dec.)
18A-CR-1229
Criminal. Affirms the revocation of Dustin W. Bass’ probation and the imposition of his previously suspended five-year sentence. Finds the Madison Circuit Court did not abuse its discretion in so ruling.