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Friday, May 28, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Brent Carey, et al. v. Indiana Physical Therapy Inc., et al. , a 7-page opinion, Judge May writes:

Brent Carey sued his physical therapist for malpractice arising out of his treatment after an auto accident. The trial court granted summary judgment for the therapist, and we affirm because Carey did not designate evidence the therapy was a proximate cause of his injury. * * *

Dr. Neer’s testimony does not provide a causal link between Connelly’s alleged negligence and Carey’s RSD. * * * Dr. Neer’s testimony did not show the necessary “causative nexus” in the form of “facts as to the actual existence of causation.” Id. He did not explicitly opine that causation could not be determined, but he stated he did not know what the physical therapy involved, he could not say with certainty that Carey would not have developed RSD without physical therapy manipulation, and that “something changed with the physical therapy, but I don’t know with certainty whether that has caused his chronic condition.” This testimony was insufficient to establish a factual issue as to proximate cause. As Connelly negated that element of Carey’s negligence claim, summary judgment for Connelly was not error. Affirmed.

In Francisco Javier Ramirez v. State of Indiana , a 16-page opinion (with a separate concurring opinion), Judge Vaidik writes [emphases by ILB]:
Francisco J. Ramirez appeals his conviction for Class A misdemeanor operating a vehicle while intoxicated. Ramirez was arrested for drunk driving and failed a chemical breath test. At trial, the State introduced Ramirez's breath test results as well as a certificate of compliance verifying routine inspection of the breath test equipment. The official who had inspected the equipment and prepared the inspection certificate did not testify. Ramirez argues that the admission of the State's evidence violated his Sixth Amendment right to confrontation because he was unable to cross-examine the equipment certifier. We hold that the introduction of the State's exhibits did not offend Ramirez's confrontation rights, as the inspection certificate was not testimonial evidence within the purview of Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). We affirm the judgment of the trial court. * * *

RILEY, J., concurs.
BARTEAU, S.J., concurs in result with separate opinion ]beginning at p. 12]: I would also affirm the judgment of the trial court, but I respectfully disagree with the majority's conclusion that the State's Certificate of Inspection and Compliance of Breath Test Instruments (“Certificate”), which was used in this case to prove that the DataMaster was in compliance with the Department of Toxicology's accuracy requirements, is nontestimonial in nature. I therefore conclude that admission of that document violated Ramirez's Sixth Amendment right to confront witnesses against him.

I read the Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), as leading to a result opposite from the result reached by the majority * * *

Although I would hold that the trial court erred by admitting the Certificate and the DataMaster test results, I conclude that in this case the error was harmless. A denial of the right of confrontation is harmless error where the evidence supporting the conviction is so convincing that a jury could not have found otherwise.

In Robert L. Gosha v. State of Indiana , a 6-page opinion, Judge Najam writes:
Robert L. Gosha appeals the trial court’s denial of his motion to correct error. Gosha presents a single issue for our review, namely, whether he was denied the right to due process when his participation in a Drug Court Program was terminated without the court first affording him notice of a hearing and the right to present evidence and cross-examine witnesses at that hearing. The State concedes that Gosha was denied his right to due process and requests that we remand for a new hearing. We reverse and remand with instructions.* * *

We agree with Gosha and the State that Gosha was denied his right to due process. We remand to the trial court with instructions to conduct an evidentiary hearing, with written notice to Gosha of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and to present evidence, and the right to confront and cross-examine witnesses.

NFP civil opinions today (3):

John M. Farrell v. Nicole T. Farrell (NFP)

S.D. v. Review Board (NFP)

Quality Leasing Co., Inc. v. Dealer Services Corporation (NFP)

NFP criminal opinions today (4):

Christopher A. Gibson v. State of Indiana (NFP)

Andrew W. Bork v. State of Indiana (NFP)

Francisco Javier Ramon, Jr. v. State of Indiana (NFP)

Santana Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on May 28, 2010 12:49 PM
Posted to Ind. App.Ct. Decisions