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INDIANA COURT OF APPEALS
Affidavit of medical expert witness designated by plaintiff in response to defendants’ motion for summary judgment was deficient and failed to establish the existence of genuine issues of material fact. Affidavit of the plaintiff’s medical expert witness also failed to establish that the defendants acted with deliver indifference to a risk of serious harm as required by Section 1983.
Zaragoza v. Wexford of Indiana, LLC, 194 N.E.3d 621 (Ind. Ct. App. August 10, 2022) (memorandum decision)
Plaintiff Zaragoza, an inmate in the Department of Correction (“DOC’), filed a complaint against Wexford of Indiana and several employees of Wexford who provided medical care at the DOC facility where the plaintiff was incarcerated. The plaintiff alleged medical malpractice and violations of the Eighth Amendment and asserted that Wexford was vicariously liable for the actions of the defendant physicians.
In his complaint, the plaintiff alleged that he had been diagnosed with hypothyroidism and that, as a result of various allergies, the medication prescribed to treat his condition (Synthroid) did not agree with him. The plaintiff alleged that he had sought alternative medications but was repeatedly denied by the defendant physicians. He further claimed that the Synthroid resulted in deleterious side effects including headaches, muscle pain, neck tightness, cognitive problems, and blurred visions. One of the defendant physicians noted that the alternative medication was requested but that after a second opinion from the regional clinical pharmacist, the request was denied because the alternative medication could make Zaragoza’s condition more difficult to manage.
The defendants eventually filed a motion for summary judgment. The defendants argued that, based upon the evidence, they were entitled to summary judgment as to all of the plaintiff’s claims against them. The defendants designated the affidavits of three of the plaintiff’s treating physicians (also defendants in the lawsuit) to support their contention that no genuine issues of material fact were in existence. In response to the defendants’ summary judgment motion, the plaintiff designated the affidavit of medical expert witness Dr. Richard Schultheis to establish the existence of genuine issues of material fact. The trial court granted the defendants’ motion for summary judgment. Plaintiff appealed.
The court of appeals first discussed whether the affidavit of Dr. Schultheis was sufficient to establish genuine issues of material fact with regard to the plaintiff’s medical malpractice claim. The court noted that the affidavit was deficient for multiple reasons. First, Dr. Schultheis’ affidavit failed to describe his methodology in sufficient detail and did not contain enough information for a trier of fact to determine that Dr. Schultheis implemented a methodology based on reliable scientific principles. Second, the affidavit contained no information about whether Dr. Schultheis had any specialties, board certifications, or specific experience pertaining to immunology or the branches of medicine particularly associated with the plaintiff’s alleged ailments or allergies. Third, the affidavit did not set forth specific facts regarding what the standard of care was or how the treatment provided by the defendants to the plaintiff departed from that standard of care. The court ultimately held that Dr. Schultheis’ failure to state the requisite standard of care was a deficiency that was fatal to the plaintiff.
The court next addressed the plaintiff’s Section 1983 claim. The court noted that, in the context of Section 1983 claims based upon the Eighth Amendment medical claims against prison medical staff, such violations require a showing of deliberate indifference on the part of the medical staff. The court further noted that Dr. Schultheis’ affidavit failed to state any specific facts that established that the plaintiff’s treating physicians acted with reckless disregard of a risk of serious harm. Thus, the court concluded that the plaintiff had failed to shoulder his burden to establish the existence of genuine issues of material fact with respect to whether the defendants acted with deliberate indifference to a risk of serious harm. The trial court’s granting of summary judgment to the defendants was affirmed.
Plaintiff/appellee failed to designate medical expert testimony that the defendants/appellants failed to comply with reasonable standard of medical care and therefore could not meet her burden to establish that genuine issues of material fact existed.
Donaldson v. Bishop, 194 N.E.3d 623 (Ind. Ct. App. August 11, 2022) (memorandum decision)
Plaintiff/appellee filed a proposed complaint for damages against Dr. Jill Donaldson, Community Physicians of Indiana, Inc., and Community Hospital North with the Indiana Department of Insurance in May, 2018 for the wrongful death of her daughter. In June 2018, the plaintiff also filed a complaint for damages in state court. The state court proceeding was stayed until the completion of the medical review panel process.
A medical review panel was formed to review the plaintiff’s health care negligence claim and unanimously found that the evidence did not support the conclusion that Dr. Donaldson, Community Physicians of Indiana, and Community Hospital North failed to meet the applicable standard of care. The medical review panel also found that the conduct complained of was not a factor of the resultant damages.
After obtaining a medical review panel opinion, the Plaintiff’s pending state court claim could move forward. In April, 2021, Dr. Donaldson, Community Physicians of Indiana, and Community Hospital North filed a motion for summary judgment and designated the opinion of the medical review panel to support their contention that no genuine issues of material existed. In repose to the defendants’ summary judgment motion, the plaintiff designated the deposition testimony of Dr. Donaldson to create a genuine issue of material fact as to whether Dr. Donaldson’s actions failed to comply with reasonable standards of medical care. The Plaintiff did not designate any medical expert witness testimony to support her claim and made no argument that the “common knowledge” exception applied to the facts of her case. The trial court denied the defendants’ motion for summary judgment. The defendants appealed the trial court’s ruling.
Upon review of the case, the court of appeals noted that Dr. Donaldson’s deposition was void of any indication/admission that she had breached the applicable standard of care in the provision of medical care to the plaintiff’s daughter. The court further noted that the plaintiff/appellee had failed to provide any expert testimony to support her contention that the defendants/appellants were negligent in their treatment of her daughter and that such action or inaction proximately caused her daughter’s death. Consequently, the court of appeals held that the defendants/appellants were entitled to summary judgment and that the trial erred in denying their motion.
Failure to realize structures were on deeded property does not Negate adverse possession.
Julie and Bruce Card appealed the Warrick Circuit Court's judgment denying their counterclaim to quiet title to property deeded to Alan and Lynne Sprinkle. On appeal, the Cards claimed that they proved that their predecessor in interest obtained title to the disputed property, and the trial court erred when it concluded that they failed to prove each element of their adverse possession claim. Specifically, the trial court found that the Cards failed to prove the “notice” element. The Cards also appealed the trial court's award of attorney fees to the Sprinkles.
The Sprinkles have owned approximately forty acres of undeveloped real estate in Dale, Indiana since 1970. Lot 83 in the Yellowbanks Recreational development is adjacent and situated to the east of the Sprinkle property. A house was built on Lot 83 in 1980 and four sheds were constructed on the property in 1990. The deeds for the Sprinkle property and Lot 83 overlap. The sheds and a corner of the house on Lot 83 encroach on the Sprinkle property. The red shed is located entirely on the Sprinkle acreage and the brown shed is almost entirely located on the Sprinkle property. A corner of the Card residence is 3.8 feet over the Sprinkle property line and is almost entirely located on Lot 83.
In 2009, the Sprinkles had their forty-acre parcel classified as Forest and Wildland pursuant to Indiana Code chapter 6-1.1-6 which provides property tax incentives. When Kevin Kern, the Cards’ predecessor-in-interest, purchased Lot 83 in 2003, there were still four sheds on the property. Kern believed he was purchasing the house, the four sheds, and the land surrounding them. In 2004, Kern discovered that his property did not include the area where the red shed was located and that the brown shed was not entirely located on his lot. Kern stopped using the red shed for storage after he discovered that no part of the shed was situated on his lot.
The Cards purchased Lot 83 from Kern in 2014. Prior to the purchase, Kern gave the Cards a surveyor's report completed in 1999. The house is shown as resting entirely within the boundaries of Lot 83. The sheds were not depicted in the survey. Based on Kern's representations, the Cards believed that the residence and brown shed were located within the boundaries of Lot 83, but the Cards knew they were not purchasing the land surrounding the red shed. The valuation of Lot 83 for property tax purposes included the residence and four sheds until 2011. Two utility sheds were removed from the valuation in 2011. All taxes were paid by Kern and the Cards from 2003 through 2019.
In 2018, the DNR reinspected the Sprinkle property as required by statute to maintain the Forest and Wildland classification. When the inspector and Sprinkle walked his western property line with a GIS-enabled tablet, they discovered that the Cards’ house and sheds were encroaching on the Sprinkles’ property. When the property was initially inspected in 2009 by Sprinkle and the DNR, they noted the house and sheds, but the inspector did not indicate that he believed that the structures encroached on the Sprinkles’ property line. Sprinkle ordered a survey of his property which confirmed that a corner of the house is located on his property and the red and brown sheds are located on his property.
On April 10, 2019, the Sprinkles filed a complaint against the Cards for civil and criminal trespass. The Cards filed counterclaims claiming ownership of the disputed property via adverse possession and seeking to quiet title to the property. A bench trial was held on April 20 and 21, 2021.
The trial court issued findings of fact and conclusions of law on July 19, 2021. The court concluded that the Cards proved all but the notice element of their adverse possession claim. However the court also found that the evidence established that Kern only intended “to claim the land upon which the brown shed and residence were located.” Therefore, the Cards only proved that Kern intended to control and exclude others from the property the residence and brown shed rest upon. The trial court denied the Cards’ counterclaims and entered judgment in favor of the Sprinkles on their trespass claim. The court ordered the Cards to remove the portion of their house situated on the Sprinkles’ property and all personal property and sheds located on the Sprinkles’ property. The Cards were also ordered to pay the Sprinkles’ attorney fees in the amount of $16,680.
In Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005) our supreme court summarized and restated the common law doctrine of adverse possession:
[T]he doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration, as follows:
(1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice—The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,
(4) Duration—the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
829 N.E.2d 476, 486 (Ind. 2005). The claimant must adversely possess the parcel of land for ten years. Id. at 487; see Ind. Code § 34–11–2–11. Successive periods of possession may be tacked together to meet the ten-year requirement. Henry v. Liebner, 32 N.E.3d 258, 268 (Ind. Ct. App. 2015), trans. denied. Once the claimant has sustained his or her burden of establishing the requisite elements of adverse possession, fee simple title to the disputed land transfers to the possessor by operation of law and the original owner's title is extinguished. Id. Once title vests in the adverse claimant at the end of the requisite ten-year period, the title may not be lost, abandoned, or forfeited. Fraley, 829 N.E.2d at 487.
Finally, the adverse possessor must pay “all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the real property during the period the adverse possessor claims to have adversely possessed the real property.” Ind. Code § 32–21–7–1.1 “Substantial compliance satisfies this statutory tax payment requirement ‘where the adverse claimant has a reasonable and good faith belief that the claimant is paying the taxes during the period of adverse possession.’ ” Celebration Worship Center, Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015) (quoting Fraley, 829 N.E.2d at 493).
Our courts have generally held that “ ‘maintenance activities in a residential area are a factor in a property dispute, [but] standing alone, they are not sufficient to support a divesture of property based upon adverse possession.’ ” Moseley v. Trustees of Larkin Baptist Church, 155 N.E.3d 1221, 1226 (Ind. Ct. App. 2020) (quoting McCarty v. Sheets, 423 N.E.2d 297, 300-01 (Ind. 1981)), trans. denied. However in this case, as in Herrell, Kern used and maintained structures that encroached on the disputed property. Also the character of Lot 83 was both residential and recreational, while the adjacent Sprinkle property was wooded acreage. Only Kern and the Cards mowed the area around the house and the brown shed, and cleared brush, small trees, and leaves from the area, which clearly delineated the wooded and residential areas. Tellingly, when the DNR inspector walked in the disputed area in 2018, she felt as if she was walking on someone else's property.
Kern owned, maintained, and utilized the house and brown storage shed for over ten years. It is hard to imagine a more open and notorious use of property than using and maintaining a home or storage building constructed on that property. At any time while Kern owned Lot 83, the Sprinkles could have observed the house and brown shed on their deeded property, and Sprinkle did so in 2009 when his forty-acre property was first classified as a Forest and Wildland by the DNR. The fact that the Sprinkles did not realize that a corner of the house and the brown shed rested on their deeded property does not negate Kern's adverse possession of the Sprinkles’ deeded property. Moreover, Kern paid taxes on the home and the brown shed for the eleven years that he owned Lot 83, and the Cards have continued to pay taxes on those structures.
The Court of Appeals concluded that the Cards proved by clear and convincing evidence that title to the property that the house and the brown shed sit upon transferred to Kern because he adversely possessed the property for the requisite ten-year period. Kern's title transferred to the Cards when they purchased Lot 83 in 2014. Therefore, the trial court erred when it denied their counterclaims for adverse possession and to quiet title to the property that the house and brown shed are situated upon.
Decedent’s driving minutes before crash was relative to contributory fault considerations. Excluding Defendant’s witness testimony as sanction for mentioning a motion in limine topic was abuse of discretion when fault not attributable to Defense counsel.
Denise Damore (“Denise”), as personal representative of the Estate of Michael Damore (“the Estate”), brought a claim for wrongful death against the Indiana State Police (“ISP”) and the State of Indiana (collectively “the Defendants”) after Michael Damore (“Michael”) was fatally injured following a vehicle accident involving an ISP trooper. The jury found in favor of the Estate. The Defendants appeal and claim that: (1) the trial court abused its discretion by excluding evidence of Michael's driving behavior in the minutes before the accident; (2) the trial court abused its discretion by excluding the testimony of the Defendants’ expert witness due to an alleged violation of the court's order granting the Estate's motion in limine; (3) the trial court abused its discretion by failing to give two of the Defendants’ proposed jury instructions; and (4) the Estate failed to present evidence sufficient to establish that Michael's mother, Denise, was Michael's dependent, thereby requiring the damages award to be reduced to the maximum permitted by the Adult Wrongful Death Statute.
Defendants first argued that the trial court erred when it excluded evidence regarding Michael's pre-accident driving behavior. The Court of Appeals afforded a trial court broad discretion in ruling on the admissibility of evidence. Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). Defendants contended that evidence regarding Michael's driving behavior in the minutes prior to the accident, i.e., his fleeing from the police at high speeds before reaching the Portage tollbooth, was relevant to the issue of his contributory negligence. The Estate countered that, because it is undisputed that Michael came to a stop at the Portage tollbooth, only his driving after leaving the tollbooth up to the time of the collision with Rose's patrol car is relevant. The Court of Appeals determined that evidence showing that Michael had recently been in a high-speed chase with the police and drove well in excess of the posted speed limit minutes before reaching the Portage tollbooth was relevant. That is, evidence that Michael was fleeing from police and was driving unsafely in the minutes prior to the collision tends to make it more probable that he drove his motorcycle in an unsafe manner to allude police after he exited the Portage tollbooth. Also, Michael's driving was clearly of consequence in the action because any negligence on his part that contributed even slightly to the accident would bar recovery by the Estate.
Similar conclusions were reached in Wages v. State, 863 N.E.2d 408 (Ind. Ct. App. 2007), Warner v. State, 577 N.E.2d 267, 269 (Ind. Ct. App. 1991). Wages and Warner were criminal cases, whereas this case was civil in nature, but the question is the same: whether the driving behavior of a motorist immediately prior to the accident is relevant in determining the fault of the driver. The Defendants sought to present evidence that Michael had been driving at an excessive speed, fled from the police, and had been seen weaving in and out of traffic only minutes before the fatal collision. This evidence was clearly relevant, as it made it more likely that Michael was also operating his vehicle in an unsafe manner when the collision occurred. The trial court's decision to exclude such evidence was contrary to the holdings in Wages and Warner.
The manner in which Michael operated his motorcycle in the minutes prior to the accident may be prejudicial to the Estate's claim of negligence on the part of Trooper Rose. However, it is not merely the danger of prejudice with which we are concerned; instead, we are concerned about the danger of unfair prejudice. “[U]nfair prejudice “looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis.” Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663, 670 (Ind. 2017) (quoting Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009)). Allowing the jury to hear evidence that Michael was fleeing from police and was driving his motorcycle in a reckless or negligent manner in the minutes before the accident poses no such concerns. Moreover, the probative value of this evidence was relatively high, especially as any negligence on Michael's part would bar recovery by the Estate under a theory of contributory negligence. Evidence of Michael's driving in the minutes before the accident is relevant and, under the facts of this case, is not unduly prejudicial. Thus, the probative value of the evidence was not substantially outweighed by any danger of unfair prejudice.
Defendants next contended that the trial court erred by striking the entire testimony of the Defendants’ expert witness, Johnson, based on a violation of the trial court's order granting the Estate's motion in limine. During cross-examination of Johnson, the Estate's counsel asked Johnson: “Based upon the problems with traffic at night on the toll way, Rose had the option of doing a U-turn at a different location. Isn't that true?” Johnson responded: “I don't want to infringe on your motion in limine. So, I don't know as far as what his options were[.]” The Estate then requested that the trial court impose sanctions on Johnson, and the trial court ultimately struck the entirety of his testimony, the only testimony the Defendants presented.
It is well settled that a trial court's ruling on a motion in limine is not a final decision on the admissibility of evidence; instead, it is designed to prevent mention of prejudicial material to the jury before the trial court has had the opportunity to consider its admissibility. Allied Prop. & Cas. Ins. Co. v. Good, 919 N.E.2d 144, 151 (Ind. Ct. App. 2009) (citing Brown v. Terre Haute Reg'l Hosp., 537 N.E.2d 54, 59 (Ind. Ct. App. 1989)). “That is not to say that a party who violates an order in limine may do so with impunity.” Id. (citing Brown, 537 N.E.2d at 59). Indiana trial courts possess the inherent power to sanction both parties and attorneys for violating orders in limine. Id. at 154. “The trial court has the power to impose sanctions against a party or attorney who engages in egregious misconduct that causes a mistrial. Egregious misconduct consists of intentional, reckless, or negligent conduct by the party or attorney.” Id. This power is designed to protect the integrity of the judicial system and to secure compliance with the court's rules and orders. Id. The sanction to be imposed for the violation of an order in limine is within the discretion of the trial court, and includes “declaration of a mistrial and/or punishment for contempt.” Id. at 151.
Defendants do not deny that Johnson violated the motion in limine. Indeed, the motion in limine prohibits any mention of the motion in limine itself. Specifically, the motion in limine prohibited the parties from making “mention of Plaintiffs’ Motion in Limine or Plaintiff's attempts to bar certain evidence being admitted or arguments being advanced.” We do not, however, see how the Estate was harmed by this brief, one-time mention of the motion in limine, with no discussion of the prohibited evidence. It is common knowledge that attorneys make objections to exclude certain evidence. Here, the trial court instructed the jury not to consider evidence that was excluded. Under these facts and circumstances, excluding the entirety of Johnson's testimony was overly severe. The trial court did not take any less-drastic measures to sanction Johnson for his violation of the motion in limine. It did not fine Johnson, threaten him with contempt, or even strike just the portion of his testimony where he mentioned the motion in limine. Instead, the trial court struck the entirety of Johnson's testimony. Johnson was the Defendants’ only witness. Thus, the trial court's sanction essentially deprived the Defendants of their defense. Given the minor nature of the violation of the motion in limine, the fact that no prejudicial information was presented to the jury, and the draconian nature of the sanction imposed by the trial court, the Court of Appeals concluded that the trial court's sanction—striking the entirety of Johnson's testimony—was an abuse of discretion.
The Court of Appeals concluded that the trial court abused its discretion with regard to its evidentiary rulings and by failing to give the proposed jury instructions. The Court of Appeals also concluded that the evidence does not support a finding that Denise was Michael's dependent. Accordingly, the Court of Appeals reverse and remand.
Plaintiff-patient’s claim for damages arising out of sexual assault that was perpetrated by nurse against plaintiff during her hospitalization at IU Health Ball Memorial Hospital did not fall within the purview of the Indiana Medical Malpractice Act, because the conduct of the offending nurse did constitute professional services relating to the promotion of the plaintiff’s health.
Jane Doe v. Indiana Department of Insurance, 194 N.E.3d 1197 (Ind. Ct. App. August 31, 2022)
In the early morning of January 17, 2018, plaintiff Jane Doe was admitted to the IU Health Ball Memorial Hospital intensive care unit after suffering a stroke. Nathaniel Mosco, a registered nurse employed by the hospital, was the day-shift nurse assigned to care for the plaintiff. That day, nurse Mosco sexually assaulted Jane Doe. Jane Doe promptly reported the assault to the night nurse who replaced nurse Mosco. Nurse Mosco was arrested the next day and was eventually convicted of Class B misdemeanor battery.
On October 4, 2019, Jane Doe filed a complaint for damages against IU Health Ball Memorial Hospital in Delaware County alleging the intentional tort of sexual battery (for which the IU Health Ball Memorial Hospital was vicariously liable) and negligent hiring, retention, and supervision of staff. Jane Doe also filed a proposed complaint for damages with the Indiana Department of Insurance (“IDOI”) which parroted her civil complaint.
In April 2021, Jane Doe and IU Health Ball Memorial Hospital agreed to a settlement of the claim pending before the IDOI. Jane Doe agreed to dismiss her proposed complaint for damages in exchange for payments totaling $400,000. The settlement agreement between the parties expressly stated that “Plaintiff does not release the Indiana Patient Compensation Fund (“PCF”) for liability in damages in excess of the monies received from the Defendant, and Plaintiff will purse the PCF monies. This settlement is not conditioned on Plaintiff’s ability to recover additional funds from the PCF.”
Jane Doe then filed a petition for payment of damages in Marion County against the PCF and the Commissioner of the IDOI for additional compensation. The PCF filed a motion for summary judgment on the basis that the Indiana Medical Malpractice Act did not cover Jane Doe’s underlying claims against IU Health Ball Memorial Hospital and nurse Mosco. The trial court granted the PCF’s motion for summary judgment. Jane Doe appealed.
On appeal, Jane Doe argued that, based upon Martinez v. Oaklawn Psychiatric Center, Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019, the application of the Indiana Medical Malpractice Act should no longer be limited to curative or salutary conduct of a health care provider acting within his or her professional capacity or exclude conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Instead, Jane Doe asserted that courts need only consider whether the misconduct arose naturally or predictably from the relationship between the health care provider and the patient or from an opportunity provided by that relationship. Jane Doe argued that because nurse Mosco was authorized to touch her genitals by way of his work as a nurse in the hospital, his sexual assault of her was subject to the Indiana Medical Malpractice Act.
The court of appeals rejected Jane Doe’s argument. The court noted that Jane Doe’s allegations against nurse Mosco and IU Health Ball Memorial Hospital did not involve professional services relating in any way to the promotion of her health. Rather, they presented factual issues capable of resolution by a jury without consideration of reasonable standards of medical care. In addition, Jane Doe’s allegations did not call into question the degree of skill exercised by nurse Mosco. Thus, the court concluded that Jane Doe’s claims did not fall within the purview of the Indiana Medical Malpractice Act. The trial court’s granting of summary judgment in favor of the PCF was affirmed.
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