Indiana Court Decisions: Jan. 12-25, 2023

7th Circuit Court of Appeals

Jan. 17

Catrina Bragg v. Munster Medical Research Foundation Inc., d/b/a Community Hospital

21-2913

Black nurse’s discrimination claims cannot overcome evidence at 7th Circuit

While acknowledging racism exists in the workplace, the 7th Circuit Court of Appeals found a Black nurse’s claim that she was transferred to a lower-paying job solely because of her race was not supported by the evidence.

Catrina Bragg enrolled in a 90-day orientation program for newly licensed nurses at Community Hospital, which was operated by Munster Medical Research Foundation. She trained in the acute care renal center under the supervision of experienced registered nurses who instructed and evaluated all the orientees.

Throughout the program, all the participants were regularly reviewed and the quality of their work was recorded in orientee progress forms and meetings. Bragg had three supervisors during her training and consistently received low marks for her job performance.

At the end of the orientation, Bragg was told she would not be offered a full-time position at the hospital. Instead, she was being transferred to Munster’s Hartsfield Village, a long-term care facility for retirees.

Bragg sued Munster Medical under Title VII of the Civil Rights Act of 1964. She asserted her transfer was based on racially discriminatory evaluations of her performance and were retaliatory for the complaints she filed against her supervisors.

The U.S. District Court for the Northern District of Indiana granted summary judgment to Community and the 7th Circuit affirmed in Catrina Bragg v. Munster Medical Research Foundation Inc., d/b/a Community Hospital, 21-2913.

In a 15-page opinion that acknowledged two of Bragg’s supervisors “possibly engaged in racist behavior,” a unanimous 7th Circuit panel found the evidence supported Community Hospital’s claims that the transfer was based on subpar performance.

“We realize that Bragg’s reports of racial insensitivity are typical of the challenges Black women face in the workplace,” Senior Judge Diane Wood wrote for the court, citing to Kimberle Crenshaw’s 1989 article, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” in the University of Chicago Legal Forum.

“Nonetheless,” Wood continued, “we must decide cases based on the record before us. And our evaluation of the record here convinces us that Bragg failed to proffer evidence that would allow a trier of fact to conclude that Community denied her a fulltime position and transferred her for impermissible reasons, rather than for its stated concerns about deficiencies in her performance.”

Bragg alleged she encountered many incidents of racism during the orientation.

In particular, she claimed she was blamed for mistakes that were not her fault and was intentionally race-matched with minority patients. Also, one supervisor, Brittany Arrigo, played rap and hip-hop music at the nurses’ station when Bragg present, she claimed, adding that Arrigo and supervisor Kim Raddatz had allegedly made racist comments about lynching.

However, Bragg could not overcome her legal burden. Namely, she did not present evidence to support her allegation that Community’s stated reason for her transfer was pretextual to hide the racist foundation for the decision.

The 7th Circuit pointed to Community’s “abundant evidence of Bragg’s substandard performance” as supporting the hospital’s contention that the transfer decision was based on her work and not her race. Community documented deficiencies and concerns about Bragg’s abilities in four progress forms and records from six progress meetings kept from October to December 2018.

Bragg countered that three of the progress meeting notes and one progress form did not have her signature, indicating Community never discussed the contents of the reports with her.

“Even if we give Bragg the benefit of the doubt, however, the record is still devoid of evidence that would permit a reasonable jury to find that Community failed to alert her to the performance problems that led to the denial of a position at the hospital,” Wood wrote. “There is too much evidence that Bragg knew of Community’s concerns with her performance.”

Likewise, the 7th Circuit ruled that Bragg’s retaliation claim also failed. Bragg asserted she was retaliated against after she complained about her supervisor, Erin Wysocki, assigning her to care for only minority patients.

The 7th Circuit noted Bragg did establish a causal link that she received a low score and negative feedback following her complaint. Yet, the appellate panel found the “causal chain becomes more tenuous almost immediately.” Community, in response, assigned Arrigo to supervise Bragg.

“… Wysocki’s negative evaluations do not amount to a materially adverse action,” Wood wrote. “Bragg was transferred to another preceptor shortly after complaining and did not continue working with Wysocki. Bragg provided no evidence indicating that this first set of bad reviews from Wysocki was fatal to Bragg’s future with Community or permanently colored any decisionmaker’s perceptions of Bragg.

“Nor does Bragg sufficiently establish that a reasonable person in her position would have felt silenced,” the 7th Circuit concluded. “The district court thus correctly concluded that Bragg did not present enough evidence to permit a finding of retaliation.”

Indiana Supreme Court

Jan. 12

Amanda Dawn Carmack v. State of Indiana

21S-LW-471

IN justices uphold murder conviction, LWOP sentence after finding child’s behavior did not provoke ‘sudden heat’

The Indiana Supreme Court has affirmed the murder conviction and life without parole sentence of a Grant County woman, finding the child victim’s behavior did not cause adequate provocation to support the defendant’s claim she acted in “sudden heat.”

Amanda Carmack was found guilty of murdering her stepdaughter, S.C., by a Grant County jury.

During the sentencing phase of the trial, the jury found any mitigating factors were outweighed by the aggravating circumstance that S.C. was less than 12 years old and, thus, recommended a sentence of life without parole. Grant Circuit Judge Mark Spitzer followed the jury’s sentencing recommendation.

Carmack appealed the sufficiency of the evidence used to convict her of murder. She argued the state failed to “rebut her contention that she was acting under extreme stress, causing sudden heat, when she killed S.C., and therefore her conviction should be mitigated or reduced to [voluntary] manslaughter.”

The state advanced two arguments to support its claim that the evidence was sufficient to negate sudden heat beyond a reasonable doubt.

First, the state asserted the disciplinary problems S.C. caused were insufficient to establish provocation. Second, the state argued the evidence led to the reasonable conclusion that Carmack’s actions were not spur of the moment.

Noting courts in sister states have found a child’s behavior can never trigger sudden heat, the Indiana Supreme Court held the instant case does not require the making of new law.

“Indeed, the record here is so bereft of evidence of sudden heat that if there be any error, it was giving the jury this option in the first place, notwithstanding the cautious virtue of protecting the appellate record,” Justice Mark Massa wrote in Amanda Dawn Carmack v. State of Indiana, 21S-LW-471. “The evidence is wholly lacking provocation to trigger sudden heat, while also revealing a sustained ‘cooling-off’ period between the alleged frustration and ultimate murderous act.”

Carmack had a strained relationship with her stepdaughter, often complaining that of the seven children she was caring for, S.C. was the most trouble.

When S.C. broke her stepsister’s charm bracelet, Carmack had a video call with her now-ex-husband, Kevin, and S.C. to discuss possible consequences. Kevin, an over-the-road trucker, told Carmack to “leave it alone” until he arrived home the next morning.

But later that evening, Carmack texted Kevin, saying she could not find S.C. Four days after the disappearance, Carmack told police she had strangled S.C. and placed her body in a trash bag, which was in a white shed at the family’s home.

At trial, the defense conceded Carmack had killed S.C. but contended she acted under “sudden heat,” overwhelmed by S.C.

The Supreme Court looked to precedent in Patterson v. State, 532 N.E. 2d 604 (Ind. 1988), and Powers v. State, 696 N.E.2d 865 (Ind. 1998), which found that behaviors like bedwetting and crying while in bed were not adequate provocation for sudden heat.

“Here, S.C.’s actions do not even raise an eyebrow for adequate provocation under Indiana law,” Massa wrote. “… Because adequate provocation is measured under an objective person standard … we conclude that no ordinary parent under these facts would have responded with strangulation.”

Also, citing Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998), Massa noted, “anger alone cannot provoke sudden heat.”

Massa held that S.C.’s behavior was typical and Carmack could have addressed the issue “through rote disciplinary measures — not strangulation. Nothing about these facts suggest she was adequately provoked by S.C.”

Likewise, the Supreme Court agreed with the state’s assertion that an “adequately sustained ‘cooling-off’ period” occurred between S.C.’s breaking the bracelet and Carmack strangling her.

“Similar to (Boone v. State, 728 N.E.2d 135 (Ind. 2000)), in which the defendant contemplated her lethal plans, the jury here could have found that Carmack had ample time to consider her actions,” Massa wrote. “For this reason, this break supports a reasonable finding by the jury that Carmack’s decision to contact Kevin was a deliberate break in the chain of alleged provocation. Reviewed cumulatively, this evidence shows a cooling-off period sufficient to sustain the jury’s conclusion there was no sudden heat.”

In the Matter of the Honorable Jeffrey F. Meade, Judge of the Gibson Circuit Court

22S-JD-390

Gibson Co. Judge Meade gets 7-day unpaid suspension with automatic reinstatement after 4-count discipline complaint filed against him

Little more than a month after formal discipline charges were filed against Gibson Circuit Court Judge Jeffrey Meade, the Indiana Supreme Court has imposed a one-week suspension on the judge that will allow him to resume his judicial duties in early February.

Meade began serving his unpaid suspension at 12:01 a.m. on Jan. 30 and will be automatically reinstated to the office at 12:01 a.m. on Feb. 6, according to the disciplinary opinion in In the Matter of the Honorable Jeffrey F. Meade, Judge of the Gibson Circuit Court, 22S-JD-390.

The Indiana Commission on Judicial Qualifications filed the four-count complaint against Meade, who has been a judge since 2007, on Dec. 1. The complaint alleged multiple violations of the Indiana Code of Judicial Conduct in Meade’s handling of paternity and child in need of services cases.

Specifically at issue in Count 1 of the complaint was the paternity case, during which Meade made “intemperate comments from the bench,” according to the high court.

Those comments were aimed at a father, whom Meade told to “zip it” and “shut up,” accused of passing his child off “like a football” and called “bro,” and toward whom Meade used explicit language from the bench. He also “repeatedly made comments about his own divorce and custody proceedings and compared his situation with that of the litigants before him,” according to the Supreme Court.

The parties, including Meade, agreed that his conduct in the paternity case violated Rules 1.2 and 2.8(B) of the Indiana Code of Judicial Conduct. Rule 1.2 requires judges “to avoid impropriety and act at all times in a manner promoting public confidence in the judiciary’s integrity,” while Rule 2.8(B) requires judges “to be patient, dignified, and courteous to litigants.”

The other three counts filed against Meade related to a CHINS case.

The case involved three siblings, whose foster parents were allowed to intervene with the intent of adopting the children. The children’s paternal grandmother also moved to intervene and filed for third-
party custody.

A hearing on the grandmother’s motion was held on May 14, 2020, in Meade’s chambers, with counsel for the parents and the Indiana Department of Child Services present, as well as a CASA representative. The foster parents’ counsel participated via speakerphone. No audio recording or transcript was made.

Meade ultimately granted the grandmother’s motion to intervene, but he “failed to summon her or otherwise allow her to participate” in the rest of the hearing, even though she was waiting in the hallway.

Also at the off-the-record hearing, Meade considered and ruled on three oral motions, denying a request by the foster parents’ counsel to appear in person and present evidence on those motions before he ruled.

Then, after counsel for the foster parents had hung up, Meade asked counsel for the mother to help the court reporter prepare a minute entry. Counsel for the foster parents later told counsel for the Department of Child Services that she had a different recollection of Meade’s oral rulings, but those proposed changes were not incorporated into the final order.

Then in March 2022, nearly two years later, Meade changed the chronological case summary entry for the May 2020 hearing to reflect an “Administrative Event,” rather than a “Hearing Journal Event.”

In addition to the violations of Rules 1.2 and 2.8(B), the parties agreed that Meade violated Rules 1.1, 2.2, 2.5, 2.6 and 2.9(A) of the Code of Judicial Conduct. The judge also agreed that his conduct was prejudicial to the administration of justice.

A conditional agreement between Meade and the JQC pointed to Meade’s acceptance of responsibility, remorse, cooperation, coaching and counseling as mitigators. Also, Gibson County has appointed a new magistrate judge to handle family law matters, and Meade has updated his courtroom technology to better accommodate on-the-record remote hearings.

As for aggravators, the parties cited Meade’s previous discipline: caution letters in 2008 and 2010 and his completion in 2017 of a deferred resolution for “demeanor issues” and “non-judicious behavior.”

“… (T)his sole aggravator reveals a troubling pattern of misconduct,” the justices wrote in the per curiam opinion. “This is the fourth time Respondent has been disciplined for intemperate or injudicious behavior during his sixteen years as a judge.

“He received his first private caution during his second year in office, and the facts giving rise to this complaint began just two years after his most recent discipline concluded,” the justices continued. “While acknowledging the steps Respondent has taken to remedy his demeanor issues — specifically, completing an eight-session coaching intensive called Mindful Boundaries for Judicial Officers and engaging in counseling services — we note that the Mindful Boundaries report recommends that Respondent pursue ‘ongoing coaching at a maintenance level,’ while the parties’ proposed discipline imposes no similar requirement.

“Respondent’s pejorative remarks to litigants, improper ex parte communications and due process violations ‘diminish[] public confidence in the judiciary’ and ‘erode the public’s perception of the courts as dispensers of impartial justice.’ … However, we cannot overlook the fact that we are considering this matter following the parties’ submission of a conditional agreement. … Such agreements are often the product of lengthy negotiations and may merit a less severe sanction than might otherwise be imposed after a trial on the merits.”

Thus, the high court agreed to impose the recommended seven-day suspension without pay, with automatic reinstatement. All justices concurred.

Court of Appeals of Indiana

Jan. 13

In the Matter of: K.V. and A.V. (Minor Children), and A.W. and S.W. v. Indiana Department of Child Services

22A-JC-987

COA denies foster parents’ attempts to get custody of foster children

Taking a close examination of state statutes, the Court of Appeals of Indiana has rejected multiple arguments from two foster parents trying to get their foster children returned and found the trial court did not abuse its discretion.

Foster parents A.W. and S.W. had their foster children, K.V. and A.V., removed from their care after a home visit by a Department of Child Services case manager. The DCS official found the residence to be “very unsanitary, untidy [and i]n disarray.”

After three weeks in a respite care home with another foster family, DCS noted the children had made measurable improvements in sleeping through the night, bathroom training, and bathing and hygiene. DCS then petitioned to modify the dispositional decree and permanently place the children with the new foster family.

The original foster parents filed an objection to DCS’s petition, and at a hearing in Howard Circuit Court said the condition of their home had improved and S.W. believed she would be better able to manage the home. However, the DCS case manager and the court appointed special advocate testified they believed a change in placement was in the best interests of the children.

Ultimately, the court entered an order terminating the children’s placement with A.W. and S.W.

In response, the foster parents filed a motion to correct error, arguing the placement decision was erroneous. They also filed a motion to intervene in the child in need of services proceedings and a motion to establish custody of the children.

The juvenile court denied the motions to correct error and to intervene. However, the court stayed the foster parents’ custody petition while the CHINS matters were pending.

In reviewing all the rulings, the Court of Appeals consistently highlighted state statutes and affirmed In the Matter of K.V. and A.V. (Minor Children) and A.W. and S.W. v. Indiana Department of Child Services, 22A-JC-987.

As part of their motion to correct error, the foster parents asserted DCS was statutorily required to make a “reasonable effort” to reunify K.V. and A.V. with them but had failed to do so. They supported their argument by pointing to Indiana Code § 31-34-21-5.5(b)(2).

The appellate bench pointed to I.C. 31-34-23-6, which imposes requirements on DCS for changing a child’s out-of-home placement.

“Indiana Code section 31-34-23-6 contains no provision that either reunification or a grace period for the improvement of circumstances that prompted the change is required prior to DCS initiating a change in the out-of-home placement of a child,” Judge Margret Robb wrote for the court, citing Perry-Worth Concerned Citizens v. Bd. Of Comm’rs of Boone Cnty., 723 N.E.2d 457, 459 (Ind. Ct. App. 2000), trans. denied. “Further, 465 I.A.C. 2-1.5-3 gives DCS the discretion to reevaluate a foster parent’s ability to meet competency requirements at any time, suggesting that the removal of a child from a foster placement to a more appropriate placement can occur at any time DCS finds it necessary.”

Likewise, the foster parents countered the denial of their motion to intervene. They argued under I.C. 31-34-21-4(d), they are entitled participate in the CHINS proceeding but the Court of Appeals disagreed.

The appellate panel found the foster parents were conflating the participation provided under I.C. 31-34-21-4(d) with intervening as a party to a CHINS proceeding as established under I.C. section 31-34-21-4.5.

“Contrary to Foster Parents’ contention,” Robb wrote, Indiana Code section 31-34-21-4(d), “does not entitle Foster Parents an unqualified right to participate in all future CHINS proceedings or to intervene as a party.”

Finally, the foster parents maintained the juvenile court had erred by staying their motion to established custody of the children. The Court of Appeals disputed the foster parents’ attempt to differentiate their case from In re Custody of M.B., 51 N.E.3d 230, 234 (Ind. 2016), which held custody actions should be stayed until the conclusion of a CHINS proceeding.

“Foster Parents attempt to differentiate the present case from M.B. because their motion to establish custody was filed in the same court as the CHINS proceeding,” Robb wrote.

“However, M.B. does not suggest that it would be appropriate for a CHINS proceeding and custody action to proceed simultaneously even if they are filed with the same court.”

__________

Jan. 24

Keesha R. Johnson v. State of Indiana

22A-CR-427

Criminal recklessness conviction upheld despite constitutional violations

The Court of Appeals of Indiana affirmed a criminal recklessness conviction despite finding that the defendant’s state and constitutional rights were violated.

Defendant-appellant Keesha Johnson said she fired her gun once toward the sky because she thought someone was attempting to break into her house. Then, when she was turning to go back inside, she claimed she accidentally fired a second shot.

The shooting occurred in 2019, when Jeffrey Johnson changed the locks on Shanetra Bond’s house at her request but forgot to leave the new keys. Bonds went to his house the next night — which he shared with Keesha — and, without telling anyone, looked inside his unlocked van in the back of the house.

Unable to find the new keys, Bond yelled for Jeffrey twice, prompting Keesha to walk onto a balcony with a gun. She fired twice over Bonds’ head, then turned around and said “bye.”

Keesha’s gunshots damaged her neighbor’s house and caused her neighbor, Angela Hawkins, to fall down the stairs. Both Bonds and neighbor Carl Hawkins reported the incident to the police.

Keesha was subsequently charged with Level 6 felony criminal recklessness.

At the final pretrial conference, her counsel asked if clear face shields would be available for witnesses. The court reporter said she would try but would notify counsel if she wasn’t able to get clear face shields.

On the date of the trial, however, the Marion County Courts required anyone involved in a jury trial to wear a mask, which was interpreted as excluding shields. Thus, witnesses testified wearing opaque masks.

The jury ultimately found Keesha guilty, and the Marion Superior Court reduced her conviction to a Class A misdemeanor. She was sentenced to 40 days.

On appeal, Johnson argued that because the witnesses wore opaque masks, she wasn’t able to confront them face to face, thus violating her rights under the state and federal constitutions.

The Court of Appeals agreed that constitutional violations had occurred but found the errors harmless.

Looking first to Johnson’s Sixth Amendment claim, Judge Paul Mathias wrote, “… (M)ost importantly, because the witnesses testified in open court in Johnson’s case, the jury was able to observe their demeanor and body language, and because the witnesses were subject to cross-examination, we conclude that the trial court’s error by failing to make a case-specific finding of necessity was harmless.”

Likewise under Article 1, Section 13 of the Indiana Constitution, “… Johnson was still able to look at the masked witnesses in the eye and observe their demeanor and body language, as was the trier of fact,” Mathias wrote. “The witnesses were placed under oath and subject to cross examination. Finally, Johnson admitted that she fired her gun twice and the bullets penetrated the walls of the neighboring home.

“Johnson’s own testimony is sufficient to sustain her conviction for criminal recklessness,” Mathias concluded.

The case is Keesha Johnson v. State of Indiana, 22A-CR-427.

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Jan. 25

State of Indiana, acting by and through its Department of Natural Resources v. Kailee M. Smith (now Leonard) and Jeffrey S. McQuary

22A-MI-685

Reversal: DNR officer’s false informing was ‘criminal’ act under indemnification statute

A Department of Natural Resources officer did, in fact, commit “criminal” conduct when he committed the act of false informing against a motorist who struck and killed his dog, the Court of Appeals of Indiana ruled in a reversal in an indemnification case.

In 2012, Kailee Leonard struck and killed DNR Officer Scott Johnson’s dog with her car, left the scene, then returned about 15 minutes later. She met Johnson at the scene and he told her to report the accident to Hancock County Sheriff’s Department, which she did.

Three months later, Johnson “hypothetically” questioned a Hancock County deputy prosecutor about the legality of a motorist leaving the scene of an accident that killed a dog, then returning. The deputy prosecutor said that scenario could constitute a criminal offense and, after learning about Leonard’s accident, told Johnson to speak with investigator Stephen Banks.

Months later, Banks executed a probable cause affidavit for Leonard’s arrest, and she was charged with Class B misdemeanor failure to stop after an accident. But the state voluntarily dismissed the case about a year later when the prosecutor’s office learned that Leonard had told Johnson about the accident shortly after it occurred.

After the case was dismissed, Leonard filed a federal civil lawsuit against Johnson for false arrest in violation of her Fourth Amendment rights. The state declined to represent Johnson in the case, and Leonard was awarded $62,462 in damages.

Later, Johnson and Leonard entered a contract in which Johnson assigned Leonard his right to indemnification by the state for the false arrest judgment and Leonard agreed she wouldn’t collect the judgment from Johnson directly.

Then in the Marion Superior Court, Leonard filed a complaint against the state for indemnification for the false arrest judgment.

At a bench trial, the trial court ruled in Leonard’s favor, finding Johnson had falsely told Banks that Leonard returned to the scene of the accident the next day, not a short time later. But the court also determined Leonard was entitled to indemnification, inherently ruling that Johnson’s actions were “noncriminal.”

The state then filed a motion arguing Johnson’s actions were not “noncriminal” as required by the indemnification statute, but that motion was deemed denied when the trial court didn’t rule on it within the 45 days.

The state then appealed and the Court of Appeals reversed.

“On this record, we find no error in the trial court’s falsehood finding,” Judge Leanna Weissmann wrote in the reversal. “We therefore turn to the State’s argument that the falsehood finding reflects actions that are not ‘noncriminal’ under the indemnification statute.

“… At first sight, the falsehood finding reflects that Officer Johnson effectively committed false informing by knowingly giving Investigator Banks false information relating to Leonard’s alleged commission of a crime,” Weissmann continued. “… Thus, on first appearance, the falsehood finding does not support the trial court’s conclusion that Officer Johnson’s actions were ‘noncriminal’ under the indemnification statute. Finding prima facie error in the trial court’s judgment, we reverse.”

The case is State of Indiana, acting by and through its Department of Natural Resources v. Kailee M. Smith (now Leonard) and Jeffrey S. McQuary, 22A-MI-685.

Diocese of Fort Wayne South Bend, Inc. v. Gabriella Gallegos

22A-CT-992

Northern Indiana diocese gets summary judgment on student-athlete’s negligence claim

The Catholic Diocese of Fort Wayne-South Bend will be awarded summary judgment after the Court of Appeals of Indiana found evidence to negate a student-athlete’s claim that the diocese was negligent in allowing her to compete following a “minor” injury.

The case of Diocese of Fort Wayne South Bend, Inc. v. Gabriella Gallegos, 22A-CT-992, began in January 2018, when 17-year-old Gabriella Gallegos was competing at a swim meet at Washington High School in South Bend. Gallegos was competing for Marian High School, which is owned by the Fort-Wayne South Bend Diocese.

During warmups, Gallegos hit her head on a diving board and had to be helped out of the water. She had a knot on her head but didn’t indicate that she had a headache, and she was able to answer a series of questions correctly. The Washington High athletic trainer told Marian’s head swim coach that Gallegos wasn’t displaying signs of a concussion, so she was allowed to compete in the meet, including several more dives.

But when Gallegos got home, she began to feel groggy and her head began to hurt. Her mother took her to the hospital, where she was diagnosed with a concussion and a broken nose.

Two years later, Gallegos filed a negligence complaint against the diocese, arguing she should not have been permitted to participate in the January 2018 swim meet. She claimed she suffered brain injuries and other damages as a result of competing that day.

The diocese responded with a motion for summary judgment, designating as evidence a report from Dr. E. Andy Akan, a neurologist who said Gallegos had a preexisting history of concussions, attention-deficit disorder and migraine headaches. Thus, Akan wrote, the January 2018 competition “did not exacerbate injuries related to a minor concussion Gallegos may have sustained when she hit her head on the diving board.”

Gallegos did not submit any medical or other expert opinion to contradict Akan. But she did designate her own affidavit in which she claimed, “I believe continuing to dive after my head injury worsened my condition because my physician informed me that repetitive impact to my head aggravated my initial head injury.”

The St. Joseph Circuit Court ultimately denied the diocese’s summary judgment motion, so the case proceeded to interlocutory appeal, where the Court of Appeals reversed and remanded for the entry of summary judgment in the diocese’s favor.

“Gallegos claims that she was not required to present medical expert evidence because ‘it is clearly within the layman’s knowledge today that someone suffering a concussion is more likely than not to be vulnerable to additional injury from continued impact,’” Judge Elizabeth Tavitas wrote. “Given, however, Gallegos’s pre-existing conditions and the nature of the injuries she now complains of, i.e., headaches, dizziness, and mental ‘fogginess,’ we conclude that her injuries are subjective in nature.

“… Because Gallegos’s injuries were subjective in nature, she was required to prove causation by way of expert medical testimony,” Tavitas continued. “… Dr. Akan specifically concluded that Gallegos’s post-accident diving did not cause any aggravation of any injury Gallegos suffered when she hit her head due to the low-impact nature of diving, and Gallegos failed to submit any expert medical evidence to counter Dr. Akan’s conclusions.”•