Tuesday, April 19, 2016
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 15 NFP memorandum decision(s))
For publication opinions today (2):
In A.B. Doe, a minor child by and through her parent(s); individually and on behalf of all others similarly situated v. Jerome Adams, M.D., in his capacity as the Indiana State Health Commissioner, et al, a 28-page opinion, Judge Kirsch writes:
A.B. Doe, a minor child, by and through her parents (“Doe”) brought an action against the Indiana State Health Commissioner and the Director of the Indiana State Department of Health Genomics and Newborn Screening Program, in their individual and official capacities, and the Indiana State Department of Health (collectively, “ISDH”), alleging violations of the United States and Indiana constitutions and state law for retaining her newborn dried blood spot sample without permission. The trial court granted ISDH’s Indiana Trial Rule 12(B)(6) motion to dismiss, and Doe appeals, raising three issues, of which we find the following one dispositive: whether the trial court erred when it determined that Doe had not sustained, nor was she in immediate danger of sustaining, a direct injury as a result of the storage of her dried blood spot sample, and, therefore, she lacked standing. * * *In William Gordon v. Toyota Motor Manufacturing of Indiana, a 13-page opinion, Judge Najam writes:
Doe was born in 2006. At the time of her birth, a small amount of blood was collected from Doe, pursuant to Indiana’s newborn screening program, which is codified at Indiana Code chapter 16-41-17. * * * Nothing in the newborn screening program statutes directs if and how the ISDH may store the DBS samples. However, from approximately 1991 to June 2013, ISDH retained and stored that portion of the newborn screen card that contained the DBS sample taken from each infant. * * *
In June 2013, ISDH changed its storage and retention policies:* * * Although saved DBS, as of June 2013, will be available for medical research, no identifiable information about your baby will ever be released. If a parent or guardian indicates they do not want a baby’s DBS used for medical research, then the DBS is kept for 6 months to ensure additional screening is not necessary and then destroyed.On September 25, 2014, Doe filed a Class Action Complaint and Request for Emergency Declaratory and Injunctive Relief (“Complaint”) against ISDH. The proposed class is defined as “[a]ll individuals who had a blood sample taken pursuant to IC 16-41-17-8 that has been or will be stored by the [ISDH] for more than six months without any documentation of consent.” * * *
The record before us reveals that ISDH presented evidence to the trial court to show that Doe’s blood – which was taken pre-June 2013, when ISDH’s policy on retention of DBS samples was changed – was not used for medical research, nor will it be without parental authorization. Indeed, the ISDH website, which Doe cited to in her Complaint, states that DBS samples of babies born before June 1, 2013, which includes Doe’s, have “not been made available for medical research.” See http://www.in.gov/isdh/20215.htm (last visited Mar. 23, 2016). ISDH also presented evidence, namely Bowman’s Affidavit, that there were only two instances in which DBS samples had been released without authorization, and neither involved Doe’s DBS sample (Allen County Child Fatality Review Team and a doctor request for parent-sought genetic testing). ISDH also presented evidence to demonstrate that Doe’s parents could at any time request that her DBS sample be destroyed. Under the facts of this case, Doe’s fear of potential misuse is, as the trial court found, “speculative,” and does not constitute the type of direct injury necessary to support a finding of standing. ISDH presented evidence to establish that, as a matter of law, Doe lacked standing, and Doe did not present evidence to create any genuine issue of material fact to preclude judgment in favor of ISDH. Affirmed.
William Gordon appeals the decision of the Full Worker’s Compensation Board of Indiana (“the Board”) affirming the Single Hearing Member’s decision awarding Gordon compensation for temporary total disability (“TTD”) benefits for injuries he sustained while working for Toyota Motor Manufacturing of Indiana (“Toyota”). Gordon presents two issues for our review, which we consolidate and restate as a single issue, namely, whether the Board erred when it awarded Gordon TTD benefits for thirty weeks instead of the more than two years of benefits Gordon had sought. We reverse. * * *NFP civil decisions today (0):
Once Gordon testified that he had terminated his employment because he was physically unable to do the light duty work, the burden shifted to Toyota to show that it had complied with the notice provision of the statute, but Toyota did not present any such evidence. The Full Board erred to the extent that it found Gordon had waived the notice issue. Gordon was not required to point out to the Single Hearing Member that Toyota had not met its burden. Because notice was required as a matter of law, it was appropriate for Gordon to raise the notice issue for the first time to the Full Board.
Further, Gordon’s argument to the Full Board on the notice issue preserved that issue for our review. This court has said that, in a worker’s compensation case, we will not review a claim that was not raised before either the Single Hearing Member or the Board. See Indiana Michigan Power Co. v. Roush, 706 N.E.2d 1110, 1115 n.4 (Ind. Ct. App. 1999) (emphases added), trans. denied. Here, because Gordon raised the notice issue to the Full Board, he has not waived it. And because there is no evidence that Toyota gave Gordon the notice required pursuant to Indiana Code Section 22-3-3-11(b), Gordon is entitled to TTD benefits from August 5, 2008, through December 7, 2010. See, e.g., K-Mart, 609 N.E.2d at 32.
NFP criminal decisions today (13):
State of Indiana v. Robert Collier (mem. dec.) - Reversed.
Posted by Marcia Oddi on April 19, 2016 01:33 PM
Posted to Ind. App.Ct. Decisions