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Thursday, March 05, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Eric P. Sibbing v. Amanda N. Cave, a 19-page, 2-1 opinion, Judge Mathias writes:

Eric P. Sibbing (“Sibbing”) appeals the judgment of the Marion Superior Court in favor of Amanda N. Cave (“Cave”), individually and as the mother and guardian of Mercy M. Cave (“Mercy”), in Cave's negligence action against Sibbing stemming from an automobile accident. On appeal, Sibbing presents two issues: (1) whether the trial court erred in allowing into evidence testimony from Cave regarding medical test results and the cause of her pain, and (2) whether the trial court erred in granting Cave's motion to strike portions of the testimony of Sibbing's expert medical witness. We affirm. * * *

The trial court did not err in permitting Cave to testify as to what her physician told her about diagnostic tests and the cause of her pain. Even if this testimony did not fall within the hearsay exception contained in Evidence Rule 803(4), its admission is harmless because it was cumulative of other evidence, the admissibility of which is unchallenged on appeal. Further, Sibbing may not seek to reduce his liability by challenging the specific course of treatment chosen by Cave's medical care providers to treat the injuries caused by Sibbing's negligence. Therefore, the trial court did not err in striking those portions of Dr. Kern?s testimony in which he opined that certain treatments chosen by Cave's medical care providers was unnecessary. Affirmed.

BROWN, J., concurs.
BAKER, C.J., concurs in result in part and dissents in part with opinion. [that begins, at p. 16] I agree with the majority's conclusion that that the trial court properly allowed Cave to testify as to what Dr. Saquib told her about the diagnostic tests and the cause of her pain. However, I part ways with the determination that the trial court did not abuse its discretion in granting Cave's motion to strike Dr. Kern?s videotaped testimony regarding the reasonableness and necessity of the passive treatment and nerve conduction study that Dr. Saquib ordered.

Joseph J. Reiswerg and Cohen Garelick & Glazier v. Pam Statom - "For the foregoing reasons, we grant the petitions for rehearing but affirm the original opinion in all respects."

In D.M. v. State of Indiana , a 7-page opinion, Chief Judge Baker writes:

Appellant-respondent D.M. appeals his adjudication as a juvenile delinquent for having committed acts that would have been two counts of Theft, a class D felony, had they been committed by an adult. Specifically, D.M. argues that the finding of delinquency must be set aside because the trial court erred in admitting stolen credit cards and car keys that a school teacher seized from his jacket into evidence. We conclude that the search of D.M.'s jacket was not justified at its inception because there were not reasonable grounds for suspecting that the search would produce evidence that D.M. violated either the law or a school rule. Accordingly, we reverse and remand with instructions for the trial court to vacate D.M.'s delinquency adjudication. * * *

In addressing D.M.'s argument that the search of his jacket was improper, we note that the leading case governing searches conducted by public school officials is New Jersey v. T.L.O., 469 U.S. 325 (1985). In T.L.O., the United States Supreme Court determined that school officials are state actors fulfilling state objectives and are therefore subject to the strictures of the Fourth Amendment. Id. at 333-36. The T.L.O. court observed, however, that a school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Accordingly, the T.L.O. court dispensed with the warrant requirement and modified the probable cause requirement, holding that the legality of a search of a student depends on the reasonableness, under all of the circumstances, of the search.

For purposes of determining the reasonableness of the search, the T.L.O.. court announced a two-part test: (1) the action must be justified at its inception; and (2) the search as conducted must be reasonably related in scope to the circumstances that justified the interference in the first place. * * *

Although this court is reluctant to interfere with a school's disciplinary policies, the standard enunciated in T.L.O. commands that students' legitimate privacy rights must, nonetheless, be balanced against the need of school officials to deal effectively with the threat of drugs and violence. Because Cetto's search did not comport with the T.L.O. requirements, we are compelled to conclude that the search of D.M.'s jacket was unreasonable and the evidence seized from the jacket was improperly admitted into evidence. Accordingly, we reverse and remand with instructions for the trial court to vacate D.M.'s delinquency adjudication.

NFP civil opinions today (2):

Gradex, Inc. v. Patrick Arbuckle (NFP) - "Gradex argues that the Board erroneously concluded that (1) Arbuckle‟s employer, M&W Septic and Excavating (“M&W”), was a subcontractor of Gradex pursuant to Indiana Code section 22-3-2-14(c); and (2) M&W was financially unable to pay the worker‟s compensation award, so Gradex was required to foot the lion's share of the bill. Finding no error, we affirm."

Eric Wolfe v. Melissa Wolfe (NFP) - "The trial court did not abuse its discretion by partially denying Father’s Parenting Time Modification Petition, by denying Father’s Child Support Contempt Petition, by finding Father in contempt, and by ordering Father to pay Melissa Wolfe’s (“Mother”) attorney fees and the fees of the custody evaluator. Affirmed."

NFP criminal opinions today (2):

Rodney Deckard v. State of Indiana (NFP)

Anthony Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on March 5, 2009 11:36 AM
Posted to Ind. App.Ct. Decisions