Opinions

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 Finds the novel theory of causation presented by the estate’s expert was not peer-reviewed, professionally presented, consistent with Bowersock’s medical records or autopsy or substantiated by other cases.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.

Indiana Court of Appeals 
In the Matter of L.N., Jr., a Child Alleged to be a Child in Need of Services; C.N. (Mother) and L.N., Sr. (Father) v. Indiana Department of Child Services
18A-JC-1666
Juvenile CHINS. Reverses the Allen Superior Court’s adjudication of L.N.,Jr. as a child in need of services. Finds there is insufficient evidence to prove that L.N., Jr. was seriously endangered as a result of his parents’ mental health issues. Also finds that future concerns for his safety are not enough to support a CHINS determination. 

Indiana Court of Appeals 
Buddy & Pals III, Inc., Buddy & Pals II, Inc., Buddy & Pals Inc., Timothy Heidbreder, and William Frank Bailey, Jr. v. Christopher Falaschetti
18A-CT-1811
Civil tort. Affirms the denial of summary judgment to Buddy & Pals III, Inc. on Christopher Falaschetti’s negligence claim after he was punched by William Bailey upon Bailey’s ejection from the bar. Finds the bar had a duty to take precautions to protect its other patrons because Bailey’s violence was foreseeable. 

Indiana Court of Appeals
Danny L. Saintignon v. State of Indiana
18A-CR-279
Criminal. Affirms Danny Saintignon’s convictions of Class A felony conspiracy to commit burglary resulting in bodily injury, murder and Class B felony robbery resulting in bodily injury. Finds the Delaware Circuit Court did not abuse its discretion when it excluded Saintignon’s proposed witnesses, nor did it deprive him of his right to present a defense. Also finds the trial court did not abuse its discretion when it admitted a photograph that depicted Saintignon’s tattoos. Finally, finds there is sufficient evidence to support his convictions beyond a reasonable doubt. 

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday: 
William Rainsberger v. Charles Benner
17-2521
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence. 
Civil. Affirms the district court’s denial of Indianapolis Metropolitan Police Detective Charles Benner’s motion for summary judgment against William Rainsberger, arguing that he is entitled to qualified immunity in Benner’s civil rights case alleging wrongful arrest. Holds that Benner is not entitled to qualified immunity because it is clearly established that the Fourth Amendment is violated when an officer chooses “to use deliberately falsified allegations to demonstrate probable cause.” 

Indiana Court of Appeals
Randall Brown v. State of Indiana
18A-CR-1
Criminal. Affirms on interlocutory appeal the Brown Circuit Court’s denial of a motion to suppress evidence retrieved from a locked safe after defendant Randall Brown provided the combination to officers executing a search warrant. Finds officers’ failure to provide Brown a Pirtle warning before he provided the combination to a safe in his home is irrelevant. Remands for proceedings in Brown’s case, in which he is charged with Level 2 felony dealing in methamphetamine, Level 6 felony possession of methamphetamine and Level 6 felony maintaining a common nuisance.

Indiana Court of Appeals 
In the Matter of the Commitment of C.N.; C.N. v. Eskenazi Health/Midtown CMHC
18A-MH-641
Mental health. Reverses the order for C.N.’s involuntary regular civil commitment. Finds there was insufficient evidence to prove C.N. was “gravely disabled.” Remands for the Marion Superior Court to vacate the order of regular commitment. 

Indiana Court of Appeals 
RCM Phoenix Partners, LLC v. 2007 East Meadows, LP
18A-PL-1355
Civil Plenary. Affirms the Marion Superior Court’s denial of RCM Phoenix Partners’ slander of title claim against 2007 East Meadows, LP. Phoenix sued for slander of title to the apartment property it was trying to sell after Meadows filed a lis pendens notice. Finds that although Meadows did not raise the argument of privilege at the trial court, it was not barred from making that argument on appeal because it was seeking to affirm the trial court’s judgment. Also finds Meadows’ properly filed lis pendens notice was “absolutely privileged’ and Meadows cannot be held liable for slander of title.  

Indiana Court of Appeals
State of Indiana v. Michael Dwayne Bouye
18A-CR-1730
Criminal. Reverses the Marion Superior Court’s grant of Michael Bouye’s motion to suppress, finding there was reasonable suspicion for the police officer to pull over the car he was driving. Notes that despite the trial court’s statements, the officer had no obligation to conduct further license plate checks. Remands for further proceedings.

Indiana Supreme Court
J.W. v. State of Indiana
19S-JV-12
Juvenile. Grants transfer and dismisses without prejudice. Holds juveniles cannot immediately challenge on direct appeal any errors concerning their agreed delinquency adjudication. Finds that because juveniles are not eligible for post-conviction relief, they must assert any claims of error concerning their agreed judgment in a request for post-judgment relief filed with a juvenile court before pursuing their constitutional right to appeal. Also finds that juveniles who seek relief in post-judgment proceedings have a statutory right to counsel under Indiana Code article 31-32. Remands for proceedings.

Indiana Court of Appeals 
In the Matter of J.S. and M.S. (Minor Children), Children in Need of Services, and P.W. (Mother) and J.W. (Stepfather) v. Indiana Department of Child Services (mem. dec.)
18A-JC-1791
Juvenile CHINS. Affirms the adjudication of P.W. and J.W.’s two sons, J.S. and M.S., as children in need of services. Finds there is sufficient evidence to support the CHINS determination. Also finds of P.W. and J.W were not denied due process concerning J.S.’s placement.

Indiana Court of Appeals 
In the Matter of J.K., Child in Need of Services and C.K. (Mother) v. The Indiana Department of Child Services (mem. dec.)
18A-JC-1698
Juvenile CHINS. Reverses and remands the Randolph Circuit Court’s adjudication of J.K. as a child in need of services. Finds the trial court erred when it denied mother C.K.’s motion to dismiss the CHINS petition because too many days passed between the filing of the petition and the court’s hearing. Remands for the trial court to dismiss the CHINS petition without prejudice. 

Indiana Court of Appeals
Kenneth Aikman v. State of Indiana (mem. dec.)
18A-CR-1653
Criminal. Affirms the revocation of Kenneth Aikman’s probation and his placement in the Department of Correction to serve his six-year sentence. Finds the Marion Superior Court acted within its discretion.

7th Circuit Court of Appeals
Derrick Neely-Bey-Tarik-El v. Daniel Conley, et. al.
17-2980
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil plenary. Affirms in part, reverses in part and remands Derrick Neely-Bey-Tarik-El’s prison religious freedom suit against officials at the Indiana Department of Correction and the Pendleton Correctional Industrial Facility. Affirms summary judgment for defendants on the grounds of qualified immunity on Neely-Bey’s claims for damages under the Free Exercise Clause and the Establishment Clause. Remands for consideration of his complaint for injunctive relief under the Establishment Clause and under the Religious Land Use and Institutionalized Persons Act, if the issues presented are not now moot.

Indiana Supreme Court 
In the Matter of Kirmille D. Lewis
18S-DI-102
Disciplinary action. Disbars Indianapolis attorney Kirmille Lewis. Finds Lewis committed attorney misconduct by, among other things, converting client funds, neglecting clients’ cases and engaging in a pattern of dishonesty. 

7th Circuit Court of Appeals
Shannon McHenry v. Nancy Berryhill
18-1691
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Magistrate Judge Matthew P. Brookman.
Civil. Vacates an administrative law judge’s dismissal of Shannon McHenry’s application for disability insurance benefits, finding the ALJ failed to acquire a medical expert to review a consequential MRI report. Remands for proceedings.

Indiana Court of Appeals 
Andrew W McWhorter v. State of Indiana 
33A01-1710-CR-2415
Criminal. Affirms Andrew McWhorter’s conviction for Class A felony voluntary manslaughter. Finds the Henry Circuit Court did not abuse its discretion in admitting video testimony from a deceased eye-witness. Also finds McWhorter’s due process rights were not violated during his prior trial, nor was he subjected to double jeopardy. Judge L. Mark. Bailey dissents with a separate opinion.

Indiana Court of Appeals
Roderick Vandrell Lewis v. State of Indiana,
18A-PC-767
Post-conviction. Affirms denial of post-conviction relief petition. While agreeing with Roderick Lewis that his attorney’s performance at sentencing was deficient, concludes Lewis’s 130-year sentence for his conviction of felony murder would not have been different if counsel had offered the mitigating circumstances raised at the post-conviction hearing. Finds the post-conviction court correctly determined that Lewis was required to establish prejudice under Strickland v. Washington, 466 U.S. 688, 694 (1984) rather than U.S. v. Cronic, 466 U.S. 648 (1984). Also holds appellate counsel was not ineffective.

Indiana Court of Appeals 
City of Gary, Indiana and Gary/Chicago International Airport Authority v. Auto-Owners Insurance Company
18A-CT-68
Civil tort. Affirms the Lake Superior Court’s grant of summary judgment in favor of Auto-Owners Insurance Company, a liability insurer for one of the defendants in a lawsuit seeking payment for cleaning up contaminated property. Finds the city’s complaint focused solely on the operation of Western Scrap and did not allege facts that might fall under the Auto-Owners policies that covered Recycle West. Also rules Auto-Owners designated sufficient evidence to make a prima facie showing that negated the airport’s separate contamination lawsuit. 

Indiana Court of Appeals
Douglas L. Leistner v. State of Indiana (mem. dec.)
18A-CR-491
Criminal. Affirms Douglas Leistner’s 40-year sentence for conviction of two counts of Level 1 felony child molesting and Class A misdemeanor public voyeurism. Finds the trial court erred when it refused to find Leistner to be a sexually violent predator. Remands to the Dubois Circuit Court to correct this error and enter a finding that Leistner is a sexually violent predator.