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Thursday, March 31, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (3):

In Noe Escamilla v. Shiel Sexton Company, Inc., a 24-page, 2-1 opinion, Judge May writes:

In this interlocutory appeal from the trial court’s pre-trial orders regarding the admissibility of evidence, the parties raise a number of broad policy questions regarding whether and how an injured plaintiff’s status as an undocumented immigrant should impact that plaintiff’s ability to recover future lost wages from an alleged tortfeasor. We decline their invitations to make sweeping pronouncements about the rights of immigrants, however, and rule narrowly on the evidentiary issues raised. Although we disagree with part of the trial court’s reasoning, we affirm its denial of Noe Escamilla’s motion in limine and its grant of Shiel Sexton’s motion to exclude Escamilla’s experts, and we remand for further proceedings in accordance with our opinion. * * *

Escamilla appeals the trial court’s in limine order that: (1) evidence of his immigration status would be admissible, and (2) expert testimony about “future lost wages” based on what he could have made working in the United States would not be admissible. * * *

Conclusion. Based on the circumstances at the time of the trial court’s order, we affirm the grant of Shiel Sexton’s motion to exclude the testimony and report from Escamilla’s expert witnesses, we affirm its denial of Escamilla’s motion in limine to exclude evidence of his status as an undocumented immigrant, and we remand for further proceedings consistent with this opinion. Affirmed and remanded.

Bradford, J., concurs.
Baker, J., dissents with separate opinion. [which begins, on p. 18] When the plaintiff in a civil action is also an undocumented immigrant, the majority concludes that juries and experts cannot determine an appropriate award of damages for loss of future income without first considering the plaintiff’s immigration status. I do not see how such evidence would be of any use in arriving at a more appropriate award of damages, and I believe that it will likely result in prejudice to the injured party and serve as a bad incentive for those who employ undocumented immigrants. * * *

Assuming for argument’s sake that one’s immigration status may be relevant under certain circumstances, in my opinion, this relevance would almost always be outweighed by its prejudicial effect. If immigration status is to be put before the jury at all, the party seeking to introduce evidence of an opponent’s immigration status—or seeking to exclude evidence that fails to take account of that status—should first be required to establish that his opponent faces an imminent likelihood of deportation. Only after such a likelihood has been established would the probative value of such evidence have any chance of outweighing its prejudicial impact. While this is not my preferred way of handling the issue, it is an outcome I would be willing to accept. For the foregoing reasons, I respectfully dissent.

In Robert Prescott Ford v. Dr. Shad Jawaid, M.D. and Floyd Memorial Hospital & Health Services, a 14-page opinion, Judge Barnes writes:
Robert Ford appeals the trial court’s grant of summary judgment to Floyd Memorial Hospital & Healthcare Services (“Hospital”). We affirm in part, reverse in part, and remand. * * *

[T]he Hospital’s notice merely provided that the physicians “may be independent contractors.” We conclude that there are genuine issues of material fact regarding whether the notice to Ford was meaningful and whether the Hospital is vicariously liable. Consequently, the trial court erred by granting the Hospital’s motion for summary judgment regarding Ford’s vicarious liability claim. Likewise, Ford was not entitled to summary judgment on this issue given the genuine issues of material fact.

Conclusion. The trial court properly granted the Hospital’s motions to strike and the Hospital’s motion for summary judgment regarding Ford’s negligence claim. However, genuine issues of material fact exist regarding Ford’s vicarious liability claim. Consequently, the trial court erred by granting summary judgment to the Hospital on that claim. We affirm in part, reverse in part, and remand.

In Jack L. Fisher v. State of Indiana, a 5-page opinion, Judge Baker writes:
Jack Fisher was found driving a vehicle that contained a methamphetamine lab. A State Police Clandestine Lab Team had to clean up the lab, and incurred costs in doing so. After Fisher pleaded guilty, the trial court ordered him to pay restitution to the lab team in the amount of those costs.

Fisher appeals the restitution order imposed by the trial court after Fisher pleaded guilty to Attempted Dealing in Methamphetamine,1 a class B felony. Fisher argues that the restitution order was improper because there was no victim to whom restitution should be paid. Finding that the trial court was statutorily required to order restitution in this case, we affirm. * * *

We acknowledge an apparent conflict between the case law, which provides that restitution may not be ordered unless it is included in the plea agreement, and the statute, which requires the trial court to order restitution in methamphetamine cleanup cases. * * * In this case, Fisher’s plea agreement was entered into in 2015, more than a decade after the 2003 enactment of Indiana Code section 35-48-4-17. Under these circumstances, we find that the plea agreement implicitly incorporated the statutory restitution requirement.

NFP civil decisions today (6):

Muncie Indiana Properties LLC v. Quality Construction Pro LLC (mem. dec.)

Roger Lee Kilburn v. Deirdre V. Kilburn (mem. dec.)

D.M. v. H.H. (mem. dec.)

In the Matter of: D.S. and N.H. (Minor Children) Children in Need of Services and A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of: Mi.H. and Ma.H. (Minor Children), Children in Need of Services and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of: G.B. (Minor Child), S.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (7):

In State of Indiana v. David Brown (mem. dec.), a 12-page opinion, Judge Pyle writes:

This appeal involves the State of Indiana’s attempt to appeal the trial court’s bench trial ruling that was made after the bench trial had begun and was then temporarily stayed in order to allow briefing on an evidentiary issue. The trial court’s ruling sustained David Brown’s (“Brown”) objection to the State’s evidence and excluded his statement made to a police officer during a sobriety checkpoint and apparently other evidence obtained following that statement.

Because the right of the State to bring an appeal in a criminal matter is specifically limited by statute to certain cases contained in INDIANA CODE § 35-38-4-2, we sua sponte review whether the State has statutory authority to bring this appeal. Due to the fact that this appeal stems from a ruling made as part of a bench trial that has been stayed and in which no verdict has been rendered, it does not fall under any of the statutory provisions. Thus, the State does not currently have statutory authority to appeal from this criminal matter, and we dismiss this appeal and remand to the trial court for further proceedings.

Robert M. Nolan v. State of Indiana (mem. dec.)

Joshua Hopper v. State of Indiana (mem. dec.)

Gregory A. Taylor, Jr. v. State of Indiana (mem. dec.)

Jerimia Heffner v. State of Indiana (mem. dec.)

Jeffrey Winfrey v. State of Indiana (mem. dec.)

Terrance Smoots, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 31, 2016 09:48 AM
Posted to Ind. App.Ct. Decisions