Opinions Jan. 15, 2020

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Barbara Kaiser v. Johnson & Johnson and Ethicon, Inc.
18-2944
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Phillip P. Simon.
Civil. Affirms the Northern District Court of Indiana’s award of $35 million to Barbara Kaiser against Johnson & Johnson and its subsidiary, Ethicon Inc. Finds the 7^th Circuit Court of Appeals must interpret the Indiana Product Liability Act pursuant to Indiana Supreme Court precedent. Also finds Ethicon’s design-defect claim was not preempted, the district court committed only harmless error in using the federal standard to review the jury’s compensatory damages award, and there was no reason to disturb the jury’s conclusion on punitive damages. Finally, finds a reasonable jury could conclude that that Prolift was unreasonably dangerous, that Ethicon breached its duty to warn and that Ethicon failed to satisfy the legal standard for the IPLA’s evidentiary presumptions.

Wednesday opinions
Indiana Court of Appeals
Kroger Limited Partnership I v. Ruth Lomax
19A-CT-1201
Civil tort. Affirms the Marion Superior Court’s denial of Kroger Limited Partnership I’s motion for summary judgment against Ruth Lomax based on now-withdrawn admissions in a negligence case case. Finds, sua sponte, that Kroger failed to timely obtain certification of the trial court’s orders granting Lomax additional time to respond to Kroger’s request for admissions and deeming her subsequently filed response as timely. Also finds the trial court properly denied Kroger’s motion for summary judgment.

Charles E. Barber v. State of Indiana
19A-PC-1234.
Post-conviction. Affirms the denial of Charles Barber’s petition for post-conviction relief following his 1993 guilty plea to a Class C felony count of child molesting. Finds Barber did not meet his burden of proof for establishing his claims of insufficient assistance of counsel for failing to request a competency evaluation. Judge Paul Mathias concurs with separate opinion.

Steven R. Collins v. State of Indiana (mem. dec.)
19A-CR-1852
Criminal. Affirms Steven Collins’ conviction of Level 5 felony sexual misconduct with a minor and his sentence to three years, with six months suspended to probation. Finds Collins’ reliance on the incredible dubiosity rule is wholly misplaced, and the state presented ample evidence to support his conviction. Also finds the sentence is not inappropriate in light of the nature of the offense and Collins’ character.

Dion Johnson v. State of Indiana (mem. dec.)
19A-CR-70
Criminal. Affirms Dion Johnson’s conviction of murder. Finds the Marion Superior Court did not abuse its discretion in admitting challenged pre-trial identification evidence.

In the Matter of the Commitment of K.K., K.K. v. State of Indiana (mem. dec.)
19A-MH-953
Mental health. Reverses the involuntary commitment of K.K. at the Evansville State Hospital. Finds clear and convincing evidence was not presented at K.K.’s involuntary commitment hearing to establish that he was gravely disabled as a result of mental illness. Also finds the commitment was improper.

Joseph G. Hiles v. State of Indiana (mem. dec.)
19A-CR-745
Criminal. Affirms and reverses in part Joseph Hiles’ convictions of two counts of Level 6 felony intimidation and one count of Class A misdemeanor invasion of privacy and his sentence to nine years in the Department of Correction. Finds Hiles has not demonstrated any prejudice to his substantial rights as a result of an instructional error and that any error was not fundamental error requiring reversal. Also finds the Cass Superior Court erred in its sentencing of Hiles for his intimidation counts that were part of the same episode of criminal conduct. Remands for resentencing.

Robert M. Sklar v. Town of North Manchester (mem. dec.)
19A-OV-2154
Local ordinance violation. Affirms the Wabash Superior Court’s dismissal of the town of North Manchester’s information for parking in a posted no parking zone, ordinance violation 73.07 against Robert M. Sklar. Finds the dismissal should be affirmed for the reasons in Sklar’s appeal in 19A-OV-2157.

Robert M. Sklar v. Town of North Manchester (mem. dec.)
19A-OV-2157
Local ordinance violation. Affirms the Wabash Superior Court’s dismissal of an information filed by the town of North Manchester against Robert Sklar “For Blocking Drive/Sidewalk/Alley, Ordinance Violation 73.01.” Finds Sklar does not establish there was an outstanding ordinance violation, show that he has been prejudiced or otherwise develop a cogent argument.

Tyrone Williams v. State of Indiana (mem. dec.)
19A-CR-2047
Criminal. Affirms Tyrone Williams’ concurrent 15-year sentences, with nine years executed in the Department of Correction and six years in community corrections, for each of his three convictions of Level 3 felony rape. Finds Williams has not sustained his burden of establishing that his sentence is inappropriate.

C.G. and S.G. v. B.L. (mem. dec.)
19A-AD-1172
Adoption. Reverses the LaPorte Superior Court’s finding that father B.L.’s consent to the adoption of his daughter K.C.L. was required because his failure to communicate with Child was justifiable.  Finds the fact clearly and convincingly establish that B.L. had the ability to have at least some communication with K.C.L. during the period in question but unjustifiably chose not to, so the trial court committed clear error in ruling that B.L.’s consent to the adoption was required. Also finds the parties did not present evidence regarding the impact of the adoption on K.C.L.’s life and whether the severance of her ties with B.L. would be in her best interest. Remands for the trial court to determine whether the adoption will be in K.C.L.’s best interest.

D.F. v. State of Indiana (mem. dec.)
19A-JV-945
Juvenile. Affirms the Vanderburgh Superior Court’s order committing D.F. to the custody of the Indiana Department of Correction. Finds D.F. left the juvenile court with no other option than to commit him to the DOC. Also finds no abuse of discretion.

Pedro Vicente v. State of Indiana (mem. dec.)
18A-PC-2503
Post-conviction. Affirms the denial of Pedro Vicente’s petition for post-conviction relief. Finds the post-conviction court did not abuse its discretion in excluding evidence, nor did it err by failing to offer Vicente the option of submitting his PCR evidence by affidavit. Also finds Vicente’s due process argument is a sufficiency-of-the-evidence argument that is unavailing in post-conviction proceedings. Finally, finds the post-conviction court did not clearly err in finding that Vicente failed to show that his trial counsel’s assistance was ineffective, and Vicente waived his claim that his appellate counsel provided ineffective assistance.

Darrell Cortez Williams Wright v. State of Indiana (mem. dec.)
19A-CR-1646
Criminal. Affirms and reverses in part Darrell Cortez Williams Wright’s convictions on six felony charges and his aggregate 37-year sentence. Finds that once the jury had been formed from the first 41 potential jurors, the state’s peremptory challenge and Wright’s Batson challenge were rendered moot. Also finds Wright’s two dealing convictions arose out of an episode of criminal conduct, so the aggregate of the two consecutive sentences must be capped at 32 years. Remands for the Cass Superior Court to cap Wright’s aggregate sentence for his dealing convictions to 32 years, for a total aggregate sentence of 34 years.