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Tuesday, November 29, 2011

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

Nationwide Ins. Co., and Edward and Anne Mickel v. Paul Parmer, II, Rick Ramsey and Heather Sida - "Based on the foregoing, we conclude that (1) this court does not have jurisdiction to hear Appellants’ claims regarding Parmer; and (2) the trial court did not abuse its discretion in granting Sida’s motion for leave to amend her affirmative defenses."

In Natalie A. Miller, Individually and as Administratrix of the Estate of Alexis J. Ritch; and Daniel J. Ritch v. L. Barrett Bernard, M.D., the Bethany Circle of King's Daughters Hospital & Health, et al, a 29-page opinion, Judge Robbs writes:

Natalie A. Miller, individually and as administratrix of the estate of Alexis J. Ritch, deceased; Christian J. Miller, a minor, by and through his mother and next friend Natalie A. Miller; and Daniel J. Ritch, individually (collectively, “Plaintiffs”), appeal the trial court’s entry of summary judgment to Morton Grove Pharmaceuticals, Inc. (“MGP”) and CVS Pharmacy, Inc. (“CVS”) (collectively, “Defendants”). Plaintiffs raise three issues for our review, which we reorder and restate as: 1) whether the trial court erred in excluding the testimony of Dr. Kevin Loeb; 2) whether Defendants were entitled to the statutory rebuttable presumption that Promethazine Syrup Plain was not manufactured defectively, and if so whether Plaintiffs failed as a matter of law to rebut the same; and 3) whether Alexis’s death was not caused, as a matter of law, by MGP’s production and CVS’s distribution of Promethazine Syrup Plain. On cross-appeal, Defendants request we review whether the trial court erred in denying their motion to exclude other expert testimony in support of Plaintiffs.

We conclude that 1) the trial court erred in excluding the testimony of Dr. Loeb; 2) Defendants were entitled to the statutory rebuttable presumption of no defect, but whether Plaintiffs have rebutted this presumption remains a question of fact; and 3) whether MGP’s production and CVS’s distribution of Promethazine Syrup Plain caused Alexis’s death is also a question of fact. We further conclude that the trial court did not err in denying Defendants’ motion to exclude other expert testimonies in favor of Plaintiffs. Accordingly, we reverse in part, affirm in part, and remand.

Darnell Daniels v. State of Indiana - "There is sufficient evidence to support Daniels's conviction for Class B felony robbery as charged. There also is sufficient evidence to support Daniels's conviction for Class C felony intimidation for “using” a gun, and any variance between the charging information and proof at trial was not fatal. We affirm."

In State of Indiana v. Jaime Bonilla, a 6-page opinion by Judge May, the COA addresses, for the second time in two days, the question of ineffective counsel "for failing to advise [that a] guilty plea might have immigration-related consequences." Unlike Manuel Trujillo v. State of Indiana, decided yesterday by a different panel, in this case the trial court had granted relief on that basis. The COA reverses.

In D.L., b/n/f G.L. v. Pioneer School Corporation, Pioneer Board of School Trustees and Larry John, a 6-page opinion, Judge May writes:

D.L., by his next friend G.L. (“Mother”), appeals the trial court’s denial of his request to overturn his expulsion from Pioneer High School. D.L. claims his due process rights were violated during his administrative hearing. We affirm. * * *

None of D.L.’s arguments contain citation to relevant case law. Instead they are bald assertions of error without legal reasoning therefor. Accordingly, he waived these for failure to support the claims with “citations to authorities [and] statutes” in violation of Ind. Appellate Rule 46(A)(8)(a), and we decline to address them.

As D.L. has not demonstrated the trial court’s decision upholding his expulsion was contrary to law, we affirm its decision.

NFP civil opinions today (5):

John V. Loudermilk, Continental American Ins. Co., Geneval P. Loudermilk, et al. v. Jet Credit Union n/k/a Credit Union 1 (NFP)

A.W.S. v. C.S.-R. (NFP)

McCoy Tile v. Meyer Glass & Mirror, and Robert Fryer (NFP)

Matthew Totten v. Review Board of the Indiana Workforce Development and Great Lakes Granite (NFP)

In Re: The Marriage of Steve Metzger and Peggy Metzger (NFP)

NFP criminal opinions today (11):

Justin Woodhouse v. State of Indiana (NFP)

Rodney Johnson v. State of Indiana (NFP)

Max Riley v. State of Indiana (NFP)

Jose Rodriguez v. State of Indiana (NFP)

Steve Barnett v. State of Indiana (NFP)

Sean Holtsclaw v. State of Indiana (NFP)

Martize Sevion v. State of Indiana (NFP)

Erica Ball v. State of Indiana (NFP)

Joseph Simmons v. State of Indiana (NFP)

K.S. v. State of Indiana (NFP)

Kevin Scaife v. State of Indiana (NFP)

Posted by Marcia Oddi on November 29, 2011 01:33 PM
Posted to Ind. App.Ct. Decisions