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Thompson v. Burnett

United States District Court, S.D. Indiana, Indianapolis Division

December 27, 2017

BILLIE THOMPSON, as personal representative of the ESTATE OF DUSTY HEISHMAN, Plaintiff,
v.
BRIAN BURNETT, DONALD SPIEGL, WILLIAM BUECKERS, PHILLIP GREENE, BILLY JOHNSON, HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, LANCE COPE, MARK BRITTON, and WILLIAM PATTERSON, Defendants.

          ORDER ON MEDICAL DEFENDANTS' MOTION TO AMEND ENTRY ON MOTION FOR RECONSIDERATION (ECF NO. 149) TO INCLUDE PERMISSION FOR INTERLOCUTORY APPEAL

          TANYA WALTON PRATT, United States District Court Judge

         This matter is before the Court on a Motion to Amend Entry on Motion for Reconsideration (ECF No. 149) to Include Permission for Interlocutory Appeal (“Motion for Interlocutory Appeal”) filed pursuant to Federal Rule of Appellate Procedure 5(a)(3) and 28 U.S.C. § 1292(b) by Defendants Health and Hospital Corporation of Marion County and Medic Lance Cope (collectively, the “Medical Defendants”) (Filing No. 153).

         Plaintiff Billie Thompson (“Thompson”), as personal representative of the Estate of Dusty Heishman (“Heishman”), filed this action alleging numerous state law claims and Fourth and Fourteenth Amendment violations after Heishman died following his arrest. The Medical Defendants moved to dismiss the state law claims against them, asserting that the Court lacked subject matter jurisdiction based on Indiana's Medical Malpractice Act, which requires a plaintiff to first present state law medical negligence claims to a medical review panel before bringing the claims to court. The Court granted in part and denied in part the Medical Defendants' motion to dismiss, explaining that, with the exception of the wrongful death claim against HHC, the claims did not fall under the Medical Malpractice Act, and thus, the Court had subject matter jurisdiction to consider the claims (Filing No. 54 at 8).

         Following the Court's Order on their motion to dismiss, the Medical Defendants filed a motion for reconsideration, arguing that the Court misunderstood the facts concerning the medical care provided by Medic Cope to Heishman. Medic Cope contends that he was not assisting law enforcement to effectuate an arrest, but rather, he was rendering medical treatment to Heishman for Heishman's medical benefit. The parties submitted new evidence in relation to the motion for reconsideration. The Court denied the Medical Defendants' motion for reconsideration, explaining that there were no manifest errors of law or fact in the Order denying the motion to dismiss, and the newly submitted evidence did not justify an amendment or alteration to the Court's previous Order (Filing No. 149 at 11-12).

         The Medical Defendants filed their Motion for Interlocutory Appeal, asking the Court to certify for an immediate, interlocutory appeal its Order denying the motion for reconsideration. For the reasons that follow, the Court grants the Medical Defendants' Motion for Interlocutory Appeal.

         I. LEGAL STANDARD

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b).

If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement.

Fed. R. App. P. 5(a)(3).

There are four statutory criteria for the grant of a section 1292(b) petition to guide the district court: there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation. There is also a nonstatutory requirement: the petition must be filed in the district court within a reasonable time after the order sought to be appealed.

Ahrenholz v. Bd. of Trs., 219 F.3d 674, 675 (7th Cir. 2000).

         II. DISCUSSION

         The Medical Defendants ask the Court to certify the Order (Filing No. 149) denying the motion for reconsideration for an immediate, interlocutory appeal. They argue that the four statutory requirements are satisfied, and they filed their Motion within a reasonable time-only ten days after the Order was entered. The Medical Defendants assert that the Court's determination that the state law claims relating to Medic Cope “providing a sedative to an individual who is in police custody and who is in a state of excited delirium are not subject to the Indiana Medical Malpractice Act ultimately presents a question of law.” (Filing No. 153 at 2.) They point to Anonymous Hosp., Inc. v. Doe, 996 N.E.2d 329, 332 (Ind.Ct.App. 2013), in which the Indiana Court of Appeals explained, “Whether a case is one of medical malpractice as defined by the [Indiana Medical Malpractice Act] is a question for the court.” The ...


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