author: Crone, Judge.

text:
    Theresa BIEDRON, as the Personal Representative of the Estate of Louis Biedron, Deceased, Appellant-Respondent, and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents, v. ANONYMOUS PHYSICIAN 1, Anonymous Physician 2, Anonymous Medical Practice, and Anonymous Hospital, Appellees-Petitioners
    Anonymous Hospital, Anonymous Physician 1, Anonymous Physician 2, and Anonymous Medical Practice, Appellants-Petitioners, v. Sherri Sitko, as Personal Representative of the Estate of Dorothy Sullivan, Deceased, Appellee-Respondent, and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents
    Anonymous Hospital, Anonymous Physician, and Anonymous Medical Practice, Appellants-Petitioners, v. Susan Orr, as Personal Representative of the Estate of Patricia Poteet, Deceased, Appellee-Respondent, and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents
    Court of Appeals Case No. 45A03-1708-CT-2012
    Court of Appeals of Indiana.
    Filed July 18, 2018 Rehearing denied September 12, 2018
    Attorneys for Theresa Biedron, Sherri Sitko, and Susan Orr : David J. Cutshaw, Kelley J. Johnson, Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, Indiana
    Attorneys for Anonymous Hospital: Brian J. Paul, Andrew L. Campbell, Melissa M. Orizondo, Faegre Baker Daniels LLP, Indianapolis, Indiana
    Attorneys for Anonymous Physicians and Anonymous Medical Practice: David C. Jensen, Robert J. Feldt, Alyssa Stamatakos, James L. Hough, Eichhorn & Eichhorn, LLP, Hammond, Indiana
   Crone, Judge.

Case Summary

[1] Louis Biedron, Dorothy Sullivan, and Patricia Poteet received treatment from one or two physicians employed by Anonymous Medical Practice ("AMP"). One of the physicians implanted cardiac pacemakers in all three patients at Anonymous Hospital ("AH"). Biedron died almost a year and a half after his surgery; Sullivan died during her surgery; and Poteet died almost a year and three months after her surgery.

[2] Over nine years after Biedron's death, his widow, Theresa Biedron, as the personal representative of his estate, filed a proposed complaint against Anonymous Physician 1 ("AP1"), Anonymous Physician 2 ("AP2"), AMP, and AH (collectively "the Biedron Defendants"), asserting claims for medical malpractice and wrongful death. The Biedron Defendants moved for summary judgment on the basis that the complaint was filed outside the two-year statutory limitation period for those claims. In response, Theresa argued that the period should be tolled by the doctrine of fraudulent concealment, and she submitted a supporting affidavit from a physician. The Biedron Defendants moved to strike the affidavit as not being based on personal knowledge, among other things. The trial court issued a final appealable order granting the Biedron Defendants' motion to strike and motion for summary judgment.

[3] Over seven years after Sullivan's death, her daughter, Sherri Sitko, as the personal representative of her estate, filed a proposed complaint against Anonymous Physician 1 ("AP1"), Anonymous Physician 2 ("AP2"), AMP, and AH (collectively "the Sitko Defendants"), asserting claims for medical malpractice and wrongful death. The Sitko Defendants moved for summary judgment on the basis that the complaint was untimely filed. In response, Sitko argued that the limitation period should be tolled by the doctrine of fraudulent concealment, and she submitted an affidavit from the same physician used by Theresa. The Sitko Defendants moved to strike the affidavit for largely the same reasons as those asserted by the Biedron Defendants. The trial court issued an order denying the Sitko Defendants' motion to strike and motion for summary judgment and certified its order for interlocutory appeal.

[4] Over seven years after Poteet's death, her daughter, Susan Orr, as personal representative of her estate, filed a proposed complaint against Anonymous Physician ("AP"), AMP, and AH (collectively "the Orr Defendants"), asserting claims for medical malpractice and wrongful death. The Orr Defendants moved for summary judgment on the basis that the complaint was untimely filed. In response, Orr argued that the limitation period should be tolled by the doctrine of fraudulent concealment and submitted an affidavit from the same physician used by Theresa and Sitko. Orr also argued that the medical malpractice statute of limitations was unconstitutional as applied. The Orr Defendants filed a reply and a motion to strike the affidavit. Orr filed a motion to strike the Orr Defendants' reply, claiming that it raised issues not raised in their summary judgment motion. The trial court issued an order denying the Orr Defendants' motion to strike and motion for summary judgment and granting Orr's motion to strike and certified its order for interlocutory appeal.

[5] This Court ultimately consolidated all three appeals. In the first appeal, Theresa argues that the trial court erred in granting the Biedron Defendants' motion for summary judgment on her wrongful death claims. In the second appeal, the Sitko Defendants argue that the trial court erred in denying their motion to strike and motion for summary judgment. And in the third appeal, the Orr Defendants argue that the trial court erred in granting Orr's motion to strike and in denying their motion to strike and motion for summary judgment. We rule in favor of the defendants in all respects and therefore affirm in part and reverse in part.

Facts and Procedural History (Biedron)

[6] Biedron was born in 1931. In February 2004, he was diagnosed with congestive heart failure and was evaluated by AP1. According to AP1's treatment notes, "The need to insert a biventricular pacemaker [was] discussed. The risks, options and benefits of the procedure [were] thoroughly outlined, and questions were answered. The patient was agreeable to this, and therefore, directly admitted to [AH] on February 19, 2004." Biedron Appellant's App. Vol. 2 at 174. AP1 implanted a cardiac pacemaker ("CRT-P"), and Biedron was released from AH. In February 2005, after complaining of shortness of breath and swelling in his lower extremities, Biedron was treated at AH by AP2. On July 31, 2005, Biedron was found unresponsive and taken to AH, where cardiopulmonary resuscitation was attempted, but he died from what was diagnosed as cardiopulmonary arrest. His death certificate lists the causes of death as congestive heart failure and cirrhosis of the liver.

[7] In October 2014, Biedron's widow Theresa, as personal representative of his estate, filed a proposed complaint for medical malpractice against the Biedron Defendants with the Indiana Department of Insurance ("IDOI"). The proposed complaint asserted malpractice claims based on AP1's implantation of a CRT-P instead of a cardiac pacemaker with a defibrillator ("CRT-D") and performance of unnecessary procedures such as stress tests and cardiac angiograms, as well as on various acts or omissions of the other Biedron Defendants, that allegedly resulted in Biedron's wrongful death. More specifically, the proposed complaint asserted a claim of malpractice against AP2 (apparently based on his knowledge that Biedron should have received a CRT-D), a claim against AMP based on the acts and omissions of AP1 and AP2 and other employees, and a claim against AH based on its negligent granting of credentials and privileges to AP1 and AP2.

[8] The Biedron Defendants filed a petition for preliminary determination and a motion for summary judgment, asserting that both the medical malpractice and the wrongful death claims were untimely filed. See Ind. Code §§ 34-18-7-1 (medical malpractice tort claim may not be brought unless filed within two years after date of alleged malpractice) and 34-23-1-1 (wrongful death claim shall be commenced by personal representative of decedent within two years of date of death); see also Ellenwine v. Fairley , 846 N.E.2d 657, 664-65 (Ind. 2006) (for adult victim of medical malpractice who dies within two years of occurrence of malpractice, (1) if death was caused by malpractice, malpractice claim terminates at patient's death, and wrongful death claim must be filed within two years of occurrence of malpractice; (2) if death was caused by something other than malpractice, malpractice claim must be filed within two years of occurrence of malpractice, and any wrongful death claim must be filed within two years of date of death).

[9] In response, Theresa argued that the statutory limitation period should be tolled by the doctrine of fraudulent concealment, and she designated the affidavit of Dr. Nadim Nasir, Jr., which reads in pertinent part as follows:

2. I have reviewed the medical records relative to AP1's treatment of the patient, Louis Biedron.
3. AP1 fell below the applicable standard of care for the following reasons:
a) Implanting a CRT pacemaker in the patient when the patient, in fact, needed a CRT Defibrillator - a device that would have saved the patient's life. At the time the CRT pacemaker was implanted, the patient had been diagnosed with Congestive Heart Failure and had an Ejection Fraction of less than 35% and had a prolonged QRS interval of > 120 msec. This patient met the criteria for implantation of a CRT-defibrillator; however, AP1 did not have defibrillator privileges; hence AP1 implanted a suboptimal device. By 2004, it was standard of care to place CRT[-]ICD and to limit implantation of CRT Pacemakers to patients who did not desire the additional life-saving benefits of the Implantable Cardioverter Defibrillator part of the CRT-ICD. AP1 failed to disclose this reasonable and more appropriate alternatives [sic] to the CRT[-]PPM, this disclosure would be mandatory for obtaining proper consent.
b) Failing to disclose alternatives violated the standard of care for obtaining proper consent wherein risks, benefits and alternatives of a procedure are discussed. This breach of duty was predicated on AP1's desire to recommend a procedure which he could perform for financial gain, rather than refer the patient to an Electrophysiologist for an expert evaluation of the patient's condition and CRT-ICD implantation. At that time, AP1 did not have privileges for ICD implantation at AH. The failure of AP1 to either properly inform Mr. Biedron on appropriate options or to refer him to the appropriate expert ultimately cost Louis Biedron his life.
4. AP2 fell below the standard of care when he continued with this facade in February of 2005 knowing that the pacemaker was inadequate therapy for this patient who instead needed a defibrillator, the prevailing standard of care nationally at that time. AP2 knowingly supported the negligent care and plan of action authored by AP1 rather than referring Mr. Biedron to a board certified Cardiac Electrophysiologist. If he did not know that ICD was the standard of care for Mr. Biedron, then he breached the standard of care due to his ignorance of this standard.
5. Having consciously hidden the alternative of a CRT[-]ICD, AP1 violated his duty to Mr. Biedron by withholding this option. Absent a full disclosure of the options available to him, neither Mr. Biedron nor any lay person could know that a pacemaker was not the appropriate device for his condition. Neither Mr. Biedron nor any lay person could know that he met the criteria for the implantation of a defibrillator. Mr. Biedron would have no idea or consideration that his doctor intentionally withheld vital life-saving options of therapy, and that this lie of omission was driven by financial motivations and not Mr. Biedron's best interests nor that his doctor did not have the credentials for a defibrillator implantation. A lay person would not know that he needed the referral to a Cardiac Electrophysiologist for expert evaluation in order to implant the appropriate life-saving device.

Biedron Appellant's App. Vol. 2 at 142-44.

[10] The Biedron Defendants filed a motion to strike Dr. Nasir's affidavit that reads in relevant part as follows:

1. The affidavit of Dr. Nasir is not admissible evidence as to the only issue present in the current Petition for Preliminary Determination, namely, the application of the statute of limitations to [Theresa's] claim.
2. In Dr. Nasir's affidavit an attempt is made to inject the issue of whether [AP1 and AP2] complied with the standard of care. This issue has no bearing on whether the proposed complaint was timely filed. Further, the affidavit purports to summarize conversations [AP1 and AP2] had with Mr. Biedron, even though Dr. Nasir was not present, at any time, during Mr. Biedron's treatment. Therefore, Dr. Nasir has no personal knowledge regarding the interaction between Mr. Biedron and either [AP1 or AP2]. For these reasons, Dr. Nasir's affidavit must be stricken.
....
7. Further, Dr. Nasir's affidavit violates [Indiana Evidence Rule] 704(b) because Dr. Nasir testified to statements regarding the state of mind of [AP1 and AP2 and Biedron], and regarding the truth or falsity of allegations.... In paragraph 5, Dr. Nasir testified about what "[a] lay person would not know." But in this case, it is the knowledge of Mr. Biedron at issue, not an unnamed, average "lay person" that is relevant. Dr. Nasir did not - and cannot - offer opinions as to what Mr. Biedron knew or did not know. Rather his assertion about what "lay people" would know, or not know, is similarly speculative, without proper foundation, and inadmissible.
8. [Theresa] also uses Dr. Nasir's affidavit to incorrectly equate a violation of the standard of care with fraud. These two concepts are unrelated. There is no case law that permits this Court to find fraudulent concealment based upon expert testimony regarding the standard of care.

Id. at 220-24.

[11] In August 2017, after a hearing on all pending motions, the trial court issued a final appealable order that reads in pertinent part as follows:

Upon review of the supporting documents, relevant case and statutory law, the Court now grants the petitions [for preliminary determination] and dismisses the claim of the Respondent/Plaintiff Theresa Biedron as personal representative of the Estate of Louis Biedron, deceased.
The pertinent parts of the affidavit of Dr. Nasir relating to the issues on the summary judgment are inadmissable [sic] comments on the Petitioner/Defendants Doctors' truthfulness and not on facts that would indicate concealment or fraud. The affidavit concerning these issues is ordered stricken.
The Summary Judgment as to the complaint before the malpractice board is beyond the statute of limitations and should be dismissed. The claim for wrongful death likewise is beyond the statute of limitations and should also be dismissed.

Biedron Appealed Order at 1-2.

[12] Theresa now appeals the trial court's summary judgment ruling on her wrongful death claims and focuses her arguments solely on AP1's alleged negligence, thereby implicitly conceding that her claims against the remaining defendants are purely derivative. She does not challenge the trial court's ruling on the Biedron Defendants' motion to strike Dr. Nasir's affidavit.

Discussion and Decision (Biedron)

Section 1 - The trial court did not err in granting the Biedron Defendants' summary judgment motion.

[13] The sole pertinent issue in this case is whether the trial court erred in granting the Biedron Defendants' summary judgment motion on Theresa's wrongful death claims. We review a summary judgment ruling de novo. Broadbent v. Fifth Third Bank , 59 N.E.3d 305, 310 (Ind. Ct. App. 2016), trans. denied . "A party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law." Id. "Once the moving party satisfies this burden through evidence designated to the trial court, the non-moving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial." Id. at 311. Mere speculation is insufficient to create a genuine issue of material fact to defeat summary judgment. Beatty v. LaFountaine , 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied (2009).

[14] "Our review of a summary judgment motion is limited to those materials designated to the trial court." City of Bloomington v. Underwood , 995 N.E.2d 640, 644 (Ind. Ct. App. 2013), trans. denied (2014). "[W]e construe the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party." Broadbent , 59 N.E.3d at 310. A trial court's findings and conclusions on summary judgment are helpful in clarifying its rationale, but they are not binding on this Court. Whitley Cty. Teachers Ass'n v. Bauer , 718 N.E.2d 1181, 1186 (Ind. Ct. App. 1999), trans. denied (2000). We are not constrained to the claims and arguments presented to the trial court, and we may affirm a grant of summary judgment on any theory supported by the designated evidence. Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013). The party that lost in the trial court has the burden of persuading us that the trial court erred. Underwood , 995 N.E.2d at 644.

[15] "The statute of limitations defense is particularly suitable as a basis for summary judgment." Myers v. Maxson , 51 N.E.3d 1267, 1276 (Ind. Ct. App. 2016), trans. denied . A plaintiff need not anticipate a statute of limitations defense and plead matters in avoidance in the complaint. Bellwether Props., LLC v. Duke Energy Ind., Inc. , 87 N.E.3d 462, 466 (Ind. 2017). But when the party moving for summary judgment "asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Myers , 51 N.E.3d at 1276.

[16] The Biedron Defendants established that Theresa's wrongful death action was commenced well beyond the two-year statutory period that ended, at the latest, on July 31, 2007, two years after Biedron's death. Theresa asserts that the period should be tolled by the doctrine of fraudulent concealment, and she designated Dr. Nasir's affidavit to establish an issue of fact material to that theory.

[17] Under the doctrine of fraudulent concealment, "a person is estopped from asserting the statute of limitations as a defense if that person, by deception or violation of a duty, has concealed material facts from the plaintiff and thereby prevented discovery of a wrong." Boggs v. Tri-State Radiology, Inc. , 730 N.E.2d 692, 698 (Ind. 2000). "There are two types of fraudulent concealment, active and passive." GYN-OB Consultants, LLC v. Schopp , 780 N.E.2d 1206, 1210 (Ind. Ct. App. 2003), trans. denied . "Passive or constructive concealment may be merely negligent and arises when the physician does not disclose to the patient certain material information." Id. " 'The physician's failure to disclose that which he knows, or in the exercise of reasonable care should have known, constitutes constructive fraud.' " Id. (quoting, inter alia, Cyrus v. Nero , 546 N.E.2d 328, 330 (Ind. Ct. App. 1989) ). Where the concealment is passive, the statute of limitations begins to run when the patient-physician relationship ends, or until the discovery of the malpractice, whichever is earlier. Schopp , 780 N.E.2d at 1210.

[18] "Active concealment involves affirmative acts of concealment intended to mislead or hinder the plaintiff from obtaining information concerning the malpractice." Id. "[T]here must be some affirmative act which amounts to more than passive silence." French v. Hickman Moving & Storage , 400 N.E.2d 1384, 1389 (Ind. Ct. App. 1980). The plaintiff must establish that the defendant's concealment of material information somehow prevented her from inquiring into or investigating the plaintiff's (or decedent's) condition, thus preventing her from discovering a potential cause of action. Garneau v. Bush , 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005), trans. denied (2006). When active concealment is involved, the statute of limitations does not expire until a reasonable time after the plaintiff discovers or with reasonable diligence could have discovered the existence of the malpractice. Schopp , 780 N.E.2d at 1210.

[19] Theresa concedes that a constructive concealment claim would be fruitless because Biedron's relationship with AP1 ended at his death in 2005. She characterizes AP1's advice to Biedron as active concealment, claiming that

[AP1] did not simply engage in passive silence by failing to inform [Biedron] that he needed a CRT-D. Rather, [AP1] affirmatively misrepresented the "need" for a CRT-P and, in so doing, failed to alert [Biedron] that a CRT-P is only intended for patients who do not desire the life-saving benefits of a CRT-D. Having no idea that he received the wrong device as a result of [AP1's] indication that he was receiving the "needed" device, [AP1] not only led [Biedron] to his death but cloaked the malpractice surrounding the impropriety of his failure to refer [Biedron] to an electrophysiologist with privileges to implant a CRT-D.

Biedron Appellant's Br. at 15 (citing Biedron Appellant's App. Vol. 2 at 142).

[20] A critical flaw in Theresa's argument is that Dr. Nasir had no personal knowledge of what AP1 actually told Biedron about the CRT-P. Indiana Trial Rule 56(E) provides that affidavits designated in support of or opposition to summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." "The requirements of Trial Rule 56(E) are mandatory and a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits." Morris v. Crain , 71 N.E.3d 871, 877 (Ind. Ct. App. 2017). Accordingly, the trial court should have disregarded Dr. Nasir's statements regarding matters of which he had no personal knowledge, including AP1's intent and state of mind, what Biedron knew, and what AP1 actually told Biedron about the CRT-P. See Weaver v. State , 643 N.E.2d 342, 345 (Ind. 1994) (noting that witnesses may not testify to opinions concerning intent under Ind. Evidence Rule 704(b), which is consistent with prior common law rule "that a witness may not give an opinion as to the state of mind or the thought processes of another person."); Houser v. Kaufman , 972 N.E.2d 927, 936 (Ind. Ct. App. 2012) (declining to assume for purposes of summary judgment that content of physician's notes was repeated verbatim to patient), trans. denied .

[21] Theresa argues that AP1's state of mind may be established by inference, claiming that his lack of hospital privileges to implant a CRT-D suggests that he "had a financial motive to perform the improper implant of a CRT-P rather than refer [Biedron] to a physician with CRT-D privileges." Biedron Appellant's Br. at 17. But absent any designated evidence regarding what AP1 actually told Biedron about the CRT-P, Theresa can only speculate that AP1 affirmatively misled Biedron about his need for the device. "[M]ere speculation cannot create questions of fact." Beatty , 896 N.E.2d at 20.

[22] And even assuming that AP1 affirmatively misled Biedron about his need for a CRT-P, Theresa has failed to establish that this prevented her from investigating Biedron's condition. As AH points out, Theresa could have requested Biedron's medical records after his death in 2005, and they would have revealed the same information that she now relies on to assert that AP1 committed malpractice by implanting a CRT-P instead of a CRT-D. The only "concealed" evidence that came to light after Biedron's death was AP1's alleged financial motive to commit malpractice, which is irrelevant to our analysis because the concealment did not prevent Theresa from investigating Biedron's condition. Because Theresa has failed to establish an issue of fact material to her fraudulent concealment theory, we affirm the trial court's entry of summary judgment for the Biedron Defendants.

Facts and Procedural History (Sitko)

[23] Sullivan was born in 1932. In 2008, she received unspecified care and treatment from AP1. On February 13, 2008, AP2 inserted a cardiac stent in one of Sullivan's arteries. On February 19, 2008, AP2 recommended that Sullivan receive a CRT-D. The next day, Sullivan died during the CRT-D implantation surgery, which AP2 performed at AH. Her death certificate lists her cause of death as congestive heart failure due to or as a cause of severe coronary artery disease. Sitko/Orr Appellants' App. Vol. 2 at 102.

[24] Over seven years later, on May 15, 2015, Sitko, as the personal representative of Sullivan's estate, filed a proposed complaint for medical malpractice against the Sitko Defendants with the IDOI. The proposed complaint asserted general claims of medical malpractice against AP1 and AP2, a claim against AMP based on the negligence of AP1 and AP2, and a claim against AH for the negligent credentialing, privileging, and policing of AP1 and AP2. It also asserted claims for wrongful death or, in the alternative, claims for personal injury that allegedly survived Sullivan's death pursuant to Indiana Code Section 34-9-3-1.

[25] In 2016, the Sitko Defendants filed a petition for preliminary determination and a motion for summary judgment, asserting that Sitko's claims were untimely filed. In response, Sitko argued that the statutory limitation period should be tolled by the doctrine of fraudulent concealment, and she designated an affidavit from Dr. Nasir that reads in pertinent part as follows:

2. I have reviewed the medical records relative to AP2's treatment of the patient, Dorothy Sullivan.
3. AP2 fell below the applicable standard of care for the following reasons:
a) AP2 recommended and implanted a defibrillator just several days after performing a stent on the proximal Left Anterior Descending Artery (LAD). The performance of an Implantable Cardioverter Defibrillator (ICD) for primary prevention of Sudden Cardiac Death within 90 days of a revascularization procedure is outside the standard of care and exhibits either a willful disregard of established Medical Practice and Standards or it exhibits a lack of appropriate intellectual fund of knowledge, either of which resulted in a procedure which was inappropriate, not indicated and below the standard of care and which proximately led to her death during that implantation.
b) Notwithstanding the improper recommendation and implantation of an ICD, AP2 further aggravated his substandard care by improperly recommending a Cardiac Resynchronization Therapy Defibrillator (CRT-D) device on 02/19/08 when the patient had a narrow QRS duration via EKG findings on 02/07/08 (QRS 97 msec) and 02/10/08 (QRS 92 msec). The rules, recommendations, guidelines and established medical practice of placing a CRT-D require a QRS duration equal to or greater than 120 milliseconds (msec) and disallows the implantation of a CRT-D device absent this criteria. Furthermore the patient must also qualify for an ICD. Mrs. Sullivan as previously noted did not qualify for an ICD because of her recent revascularization procedure on her LAD and her Myocardial Infarction which was much more likely than not less than 40 days old (see section c. below) and she certainly did not require a CRT[-]D (which differs from a regular ICD by placement of the LV lead, which in this case proximately led to her death from probably cardiac tamponade. (see below)
c) Moreover in his signed Indications for ICD Therapy sheet (an administrative form provided by AH to justify device implantation) in the Hospital record AP2 affirmed and signed his name to that document that the patient had LV (left ventricular) dysfunction due to a prior MI (myocardial infarction ), AND that at least forty (40) days had passed after the Ml and the patient's LVEF (left ventricular ejection fraction) was less than or equal to 40%. The evidence in the medical record reveals a gross and negligent error in his judgment that the MI was more than 40 days old.
Mrs. Sullivan presented with a 1 week history of symptoms and had EKG evidence of recent transmural myocardial infarction (MI). There was additional substantial objective evidence that her MI was recent based on the Electrocardiograms 2/07/2008 and subsequent evolutionary changes on later EKGs and the Echocardiogram performed on 2/10/2008 showing normal Left Ventricular (LV) size (aged MI more than 40 days old due to LAD disease generally would have Left Ventricular enlargement yet her LV was normal in size. Hence AP2 negligently failed to even reasonably establish the timing of the MI and further violated the standard of care when recommended the ICD within the 40 day window of exclusion. Further supporting a recent diagnosis of myocardial infarction was normal LV wall thickness. Remodeling of LV geometry and wall thickness after myocardial infarction occurs in the time frame remote from MI and results in thinning of the affected infarcted muscle in addition to expansion of the LV as stated herein.
d) Hence AP2's recommendation for an ICD fell below the standard of care on not one but two necessary criteria, i) implantation within 90 clays of revascularization ii) implantation within 40 days of acute MI (AMI).
e) There is no indication that [sic] in the medical records that AP2 disclosed to the patient or subsequently her estate that the device he recommended and implanted on 02/20/08 was not necessary or indicated in light of the aforementioned required criteria for implantation of an ICD and in light of her narrow QRS and in light of the fact the ACC/AHA Implant Guidelines indicate that either an ICD or CRT (cardiac resynchronization therapy) device should not be implanted within ninety (90) days of revascularization or within 40 days of an acute MI.
4. AP2 improperly represented to the patient that she needed a CRT-D implant when she did not meet indications for such a device, either an ICD or a CRT-ICD as herein stated because she did not qualify for multiple reasons (see above).
5. AP2 further fell below the standard of care during the implantation of the unnecessary ICD. Mrs. Sullivan had no pericardial effusion on February 10, 2008. During the implantation of the inappropriate ICD, more specifically during placement of the LV lead Mrs. Sullivan becomes progressively bradycardic and arrests. A stat Echo was done showing an important pericardial effusion. AP2 failed to competently address this life threatening complication and falls below the standard of care in 2 respects:
i) his inability to recognize that he much more likely than not caused a tear in the cardiac venous anatomy leading to the immediate accumulation of the effusion and the resultant cardiac tamponade.
ii) his inability to perform a competent pericardiocentesis to relieve the blood in the pericardial sac and by doing so relieve compressive pressure on the heart to permit adequate filling and pumping of blood and restore spontaneous circulation further show his lack of proper education and training in the performance and management of complications of ICD/CRT [-]D implantation.
6. The average person laying [sic] ill in the hospital has an expectation that their doctor will recommend appropriate options for diagnosis and treatment. The average person would not suspect that their doctor would recommend, nor the hospital permit inappropriate and unnecessary surgeries. A lay person would not know that an ICD was unnecessary for the reasons stated above nor that the patient's EKG QRS duration was essentially normal and that the totality of these conditions did not qualify her for either an ICD or a CRT-D. A lay person would not and could not know that the ACC/AHA Implant Guidelines nor Medicare Payment guideline did not permit implantation of an ICD for primary prevention in this patient or any patient until forty days post-MI and/or until ninety days post-revascularization (i.e., cardiac vessel stenting ). Frankly most people expect their doctors to be competent and honest and have the patient's best interest at heart therefore there would be no expectation that either Mrs. Sullivan or her estate should have known that AP2 breeched [sic] the standards of care in his negligent recommendations and that AH negligently credentialed AP2.

Sitko/Orr Appellants' App. Vol. 3 at 22-28.

[26] The Sitko Defendants filed a motion to strike Dr. Nasir's affidavit based on his lack of personal knowledge as to what AP2 told Sitko, his statements regarding AP2's state of mind, his conflation of negligence and fraud, and his speculation regarding what a lay person would know, among other things. After a hearing, the trial court issued an order summarily denying the Sitko Defendants' motion for summary judgment and motion to strike and certified the order for interlocutory appeal. Sitko concedes that her submission of Dr. Nasir's affidavit opining that Sullivan's death was caused by AP2's allegedly unnecessary surgery prevents her from pursuing a survival action, and thus she is pursuing only her wrongful death claims.

Discussion and Decision (Sitko)

Section 2 - The trial court abused its discretion in denying the Sitko Defendants' motion to strike Dr. Nasir's affidavit.

[27] We first address the Sitko Defendants' argument that the trial court erred in denying their motion to strike Dr. Nasir's affidavit. A trial court has broad discretion in ruling on the admissibility of evidence, which extends to rulings on motions to strike affidavits on the grounds that they do not comply with the summary judgment rules. Morris , 71 N.E.3d at 877. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before it. Id.

[28] The Sitko Defendants argue, and we agree, that the affidavit contains inadmissible statements regarding matters outside Dr. Nasir's personal knowledge, such as the conversations between AP2 and Sullivan, as well as inadmissible statements regarding their intent, state of mind, and knowledge. Ind. Trial Rule 56(E) ; Ind. Evidence Rule 704(b). Therefore, we conclude that the trial court abused its discretion in denying the Sitko Defendants' motion to strike those portions of Dr. Nasir's affidavit.

[29] The Sitko Defendants also take issue with Dr. Nasir's assertions of negligence, claiming that this issue is reserved for the medical review panel and irrelevant to fraudulent concealment. Sitko argues that to establish fraudulent concealment, she must demonstrate that AP2's "representations were inaccurate, and expert medical testimony is necessary to establish such misrepresentations." Sitko/Orr Appellees' Br. at 51. But Dr. Nasir's assertions of negligence based on AP2's alleged errors in judgment or lack of skill/training/knowledge are not affirmative acts of concealment that prevented Sitko from investigating Sullivan's condition. Accordingly, we conclude that the trial court abused its discretion in failing to strike those portions of the affidavit as well.

Section 3 - The trial court erred in denying summary judgment to AP1.

[30] The Sitko Defendants also assert that Sitko designated no evidence to support a tolling claim as to AP1, and therefore API is entitled to summary judgment. Sitko concedes her failure to designate such evidence but contends that the Sitko Defendants failed to alert her to their bases for seeking summary judgment as to AP1 in their initial summary judgment memorandum; she cites to the Orr Defendants' memorandum to support this contention, however. See Sitko/Orr Appellees' Br. at 53 (citing Sitko/Orr Appellants' App. Vol. 3 at 109-29). The Sitko Defendants' memorandum notes that more than seven years had passed from the date of their last possible act of alleged malpractice and argues that there was no legal basis for tolling the statutory limitation period. Sitko/Orr Appellants' App. Vol. 2 at 46-47. This was sufficient to alert Sitko to the Sitko Defendants' bases for seeking summary judgment as to AP1, and Sitko designated no evidence to defeat the summary judgment motion. Therefore, we reverse the denial of summary judgment as to AP1.

Section 4 - The trial court erred in denying summary judgment to the remaining Sitko Defendants.

[31] The remaining Sitko Defendants contend that they are also entitled to summary judgment, claiming that Sitko designated no admissible evidence that AP2's representation to Sullivan about her need for a CRT-D was an affirmative misrepresentation, as opposed to an act of negligence. We agree. Dr. Nasir had no personal knowledge about what AP2 actually told Sullivan, and he had no personal knowledge regarding AP2's intent or state of mind, i.e., whether AP2 intended to mislead Sullivan about her need for a CRT-D or was merely negligent. Sitko notes that her counsel argued at the summary judgment hearing that Sullivan would not have "ended up on the operating table" if AP2 had not lied to her about the necessity of the surgery. Sitko/Orr Appellees' Br. at 39 (quoting Sitko/Orr Tr. Vol. 2 at 24). Counsel's argument is pure speculation, and it is well settled that "the 'unsworn commentary of an attorney' is not competent evidence for a summary judgment motion and should not be considered." Turner v. Bd. of Aviation Comm'rs , 743 N.E.2d 1153, 1164 (Ind. Ct. App. 2001) (quoting Freson v. Combs , 433 N.E.2d 55, 59 (Ind. Ct. App. 1982) ), trans. denied . Sitko cites several cases stating that fraud may be inferred from circumstantial evidence, but she cites no authority for the proposition that active fraudulent concealment may be inferred from merely negligent conduct. Cf. Hughes v. Glaese , 659 N.E.2d 516, 521 (Ind. 1995) ("[B]y distinguishing the two branches of fraudulent concealment on the basis of whether the physician's concealment was negligent or purposeful, courts can make more appropriate and just determinations as to when defendant physicians should be prevented from asserting the limitations defense."). We do not hold that such an inference could never be drawn, only that Sitko has failed to designate admissible evidence to support that inference in this case.

[32] And even assuming that AP2 affirmatively misled Sullivan about her need for a CRT-D, Sitko has failed to establish that this prevented her from investigating Sullivan's condition. Sitko could have requested Sullivan's medical records after her death in 2008, and they would have revealed the same information that she now relies on to assert that AP2 committed malpractice. In sum, Sitko has failed to establish an issue of fact material to her fraudulent concealment theory. She makes no separate arguments regarding AMP and AH, thereby implicitly conceding that their liability is purely derivative of AP2's liability. Consequently, we reverse the trial court's denial of the Sitko Defendants' summary judgment motion as to AP2, AMP, and AH.

Facts and Procedural History (Orr)

[33] Poteet was born in 1936. AP began treating Poteet in 2002 and performed several medical procedures, including the implantation of a carotid stent in October 2005, the implantation of a CRT-D in January 2006, the performance of a left heart catherization coronary angiogram in March 2006, and the performance of a transesophageal echocardiogram in September 2006. On April 24, 2007, Poteet died. Her death certificate lists the cause of death as end stage renal disease.

[34] Over seven years later, on October 27, 2014, Orr, as personal representative of Poteet's estate, filed a proposed complaint for medical malpractice asserting claims against the Orr Defendants that are similar to those asserted in Sitko's proposed complaint. Orr asserted claims for wrongful death or, in the alternative, claims for personal injury that allegedly survived Poteet's death pursuant to Indiana Code Section 34-9-3-1.

[35] In 2016, the Orr Defendants filed a petition for preliminary determination and a motion for summary judgment, asserting that Orr's claims were untimely filed. In response, Orr designated an affidavit from Dr. Nasir that reads in pertinent part as follows:

2. I have reviewed the Submissions of the parties and [sic] in this case and the medical records relative to AP's treatment of the patient, Patricia Poteet.
3. AP fell below the applicable standard of care for the following reasons:
a) Improperly evaluating and recommending a CRT-D device on 01/19/06 when the patient had a narrow QRS via EKG findings on 08/23/05 (QRS 89); 10/21/05 (QRS 98); 10/23/05 (QRS 87); 10/24/05 (QRS 97); and 01/19/06, hours before the implant (QRS 83). The standard of care does not permit the implantation of a CRT-D device unless the QRS is equal to or greater than 120 ms;
b) Misstating in his Operative Note that the patient's QRS was 130 apparently attempting to justify this unnecessary implant;
c) Subjecting the patient to unnecessary diagnostic procedures and misstating indications for those procedures or otherwise repeating tests that were completed shortly before the tests.
4. AP improperly represented to the patient that she needed a CRT-D implant when she did not meet the indications for such a device, as her QRS was essentially normal.
5. A lay person would not know that this device was unnecessary or that AP misstated the patient's QRS in the Procedure Note relative to the CRT-D implantation.
6. After reviewing documents relative to the negligent credentialing claim, AH concealed from the public (and from this patient) that AP was not qualified to evaluate, treat, implant CRT-D devices, or follow the patient after the implantation. AH also concealed from the public and this patient that AP was improperly granted privileges for ICD's and CRT-D's. A CRT-D device was implanted in this patient.

Sitko/Orr Appellants' App. Vol. 8 at 40-41. Orr argued that the statutory limitation period for her wrongful death claims should be tolled by the doctrine of fraudulent concealment or, in the alternative, that the statutory limitation period for her medical malpractice claims was unconstitutional as applied.

[36] The Orr Defendants filed a reply to Orr's response and a motion to strike Dr. Nasir's affidavit, which is substantially similar to the foregoing motions to strike. Orr filed a motion to strike portions of the Orr Defendants' reply on the basis that "multiple new issues" were raised therein. Id. at 76. Without holding a hearing, the trial court issued an order denying the Orr Defendants' motion to strike on the basis that Dr. Nasir's affidavit "demonstrated that he was competent to testify on the matters contained therein, that the facts he swore to were admissible, relevant, and were necessary to understand the nature of the malpractice alleged." Orr Appealed Order at 2. The trial court also denied the Orr Defendants' summary judgment motion on the basis that Dr. Nasir's affidavit "invoked enough doubt ... to properly preserve the issue of equitable tolling as appropriate to the present facts and, in doing so, also precluded summary judgment on the issue of a statute of limitations violation." Id. at 4. Finally, the trial court granted Orr's motion to strike those portions of the Orr Defendants' reply that "injected issues argued for the first time, thus preventing those issues from being countered within the adversary process." Id. at 2. The trial court certified the order for interlocutory appeal.

Discussion and Decision (Orr)

Section 5 - The trial court abused its discretion in striking the Orr Defendants' reply briefs.

[37] In Orr's motion to strike, she asserted that the Orr Defendants improperly argued for the first time in their summary judgment reply brief that granting summary judgment for AP would require granting summary judgment for AMP because no independent claims of malpractice had been made against AMP. On appeal, the Orr Defendants contend that "[t]his is simply not true" because they "demonstrated in their original [summary judgment] motion and brief that Orr's claim against AMP included allegations of respondeat superior for the treatment rendered by [AP] and that the claims against both [AP] and [AMP] would be time-barred." Sitko/Orr AP1/AP2/AMP Appellants' Br. at 42. The record indicates that the Orr Defendants excerpted Orr's allegations against AP and AMP in her proposed complaint but did not make the specific argument later made in their reply brief. It is clear from the face of Orr's complaint, however, that she did not assert a separate basis of liability for AMP.

[38] Orr also asserted that the Orr Defendants improperly argued for the first time in their reply brief that AP's "fraud amounted to no more than passive silence." Sitko/Orr Appellants' App. Vol. 8 at 77. But this argument was a rejoinder to Orr's argument in her response brief that AP "not only misrepresented the need for a CRT-D implant but also affirmatively misrepresented Poteet's QRS duration." Id. at 31. Contrary to Orr's assertion in her motion to strike, the Orr Defendants were not required to raise the elements of fraud in their summary judgment motion; their only burden was to establish that Orr's claims were untimely. Myers , 51 N.E.3d at 1276. Thus, the Orr Defendants' argument in their reply brief was a proper response to Orr's argument regarding fraudulent concealment. Based on the foregoing, we conclude that the trial court abused its discretion in striking the Orr Defendants' reply briefs.

Section 6 - The trial court abused its discretion in denying the Orr Defendants' motion to strike Dr. Nasir's affidavit.

[39] The Orr Defendants' arguments regarding the denial of their motion to strike Dr. Nasir's affidavit are similar to (and indeed are largely lumped in with) those of the Sitko Defendants. One wrinkle in this case is Dr. Nasir's observation that Poteet's QRS reading in her EKG is different from the QRS reading in AP's operative notes, which Orr asserts is indicative of an intent to mislead. AH points out, however, that Poteet's medical records "may establish what [AP] wrote down about her QRS duration," but they do "not establish what he communicated to her about her QRS duration." Sitko/Orr AH Appellant's Br. at 31. Nor do they establish what AP actually told Poteet about her need for a CRT-D. Therefore, we conclude that the trial court abused its discretion in denying the Orr Defendants' motion to strike Dr. Nasir's statements regarding matters outside his personal knowledge.

Section 7 - The trial court erred in denying summary judgment on Orr's wrongful death claims on the issue of fraudulent concealment.

[40] The Orr Defendants' arguments regarding fraudulent concealment are also similar to those of the Sitko Defendants. The operative facts of the two cases are sufficiently similar to compel a similar result. Orr's proposed complaint suggests that AP had a concealed financial motive to mislead Poteet about the need for a CRT-D; as in the Biedron case, the concealment of AP's motive to mislead is irrelevant to our analysis because it did not prevent Orr from investigating Poteet's condition. Consequently, we reverse the denial of the Orr Defendants' summary judgment motion on the issue of fraudulent concealment, which disposes of Orr's wrongful death claims.

Section 8 - The trial court erred in denying summary judgment on Orr's medical malpractice claims.

[41] Finally, we must also determine if a genuine issue of material fact exists regarding whether the two year-limitation period of Indiana Code Section 34-18-7-1 is unconstitutional as applied to Orr's medical malpractice claims. Section 34-18-7-1"is an 'occurrence' statute as opposed to a 'discovery' statute." Brinkman v. Bueter , 879 N.E.2d 549, 553 (Ind. 2008). "Because this statutory time limit begins to run upon the occurrence of the alleged malpractice, without regard to the date of actual or constructive discovery of injury or malpractice by a person sustaining harm, literal application of the statute has been found unconstitutional in certain situations." Booth v. Wiley , 839 N.E.2d 1168, 1170-71 (Ind. 2005). In Martin v. Richey , 711 N.E.2d 1273 (Ind. 1999), the court held that the "statute of limitations may not constitutionally be applied to preclude the filing of a claim before a plaintiff either knows of the malpractice and resulting injury or discovers facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury." Booth , 839 N.E.2d at 1171.

Under an occurrence-based statute, ... the critical issue is what reasonable diligence requires, not when the claim accrues or is discovered. Because the Medical Malpractice Act provides an occurrence-based limitations period, reasonable diligence requires more than inaction by a patient who, before the statute has expired, does or should know of both the injury or disease and the treatment that either caused or failed to identify or improve it, even if there is no reason to suspect malpractice. As a matter of law, the statute requires such a plaintiff to inquire into the possibility of a claim within the remaining limitations period, and to institute a claim within that period or forego it.

Herron v. Anigbo , 897 N.E.2d 444, 449 (Ind. 2008) (emphasis added). "A plaintiff does not need to be told malpractice occurred to trigger the statute of limitations." Brinkman , 879 N.E.2d at 555.

[42] The "critical date" on which a patient either knows of malpractice and the resulting injury or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery thereof is known as the "trigger date." Herron , 897 N.E.2d at 449. "The length of time within which a claim must be filed after a trigger date in an occurrence-based statute also varies with the circumstances." Id. "A plaintiff whose trigger date is after the original limitations period has expired may institute a claim for relief within two years of the trigger date." Id. "But if the trigger date is within two years after the date of the alleged malpractice, the plaintiff must file before the statute of limitations has run if possible in the exercise of due diligence." Id. "If the trigger date is within the two-year period but in the exercise of due diligence a claim cannot be filed within the limitations period, the plaintiff must initiate the action within a reasonable time after the trigger date." Id.

[43] Here, the Orr Defendants assert that Poteet was aware of her cardiac disease and AP's treatment. They observe that Orr alleged in her amended proposed complaint that Poteet "suffered severe and permanent physical injuries and disabilities, endured great pain and suffering, mental distress and anguish and trauma" as a result of the Orr Defendants' alleged malpractice. Sitko/Orr Appellants' App. Vol. 4 at 33. They also cite to Poteet's medical records, which contained all the information that Dr. Nasir needed to determine that the CRT-D was unnecessary, and documented her numerous health problems and hospital visits that occurred both before and after the CRT-D implantation. AH sums up their argument as follows: "Poteet knew she had a heart condition. She knew she had received a [CRT-D] for that condition. And she knew her condition failed to improve. These were all facts that, in the exercise of reasonable diligence, should have led to the discovery of the malpractice and the resulting injury." Sitko/Orr AH Appellant's Reply Br. at 11 (citations, quotation marks, and alterations omitted).

[44] We agree. Even if Poteet and Orr had no reason to suspect malpractice, reasonable diligence required them to inquire into the possibility of a claim years before the proposed malpractice complaint was filed in 2014; we need not pinpoint the trigger date, but it was certainly no later than the date of her death in 2007. Consequently, we reverse the denial of the Orr Defendants' summary judgment motion on Poteet's medical malpractice claims.

[45] In sum, we rule in favor of the defendants in all respects. Accordingly, we affirm in part and reverse in part.

[46] Affirmed in part and reversed in part.

Vaidik, C.J., and Kirsch, J., concur.

      Anonymous Physician 1 in the Biedron lawsuit caption is Anonymous Physician 2 in the Sullivan/Sitko lawsuit caption and Anonymous Physician in the Poteet/Orr lawsuit caption. Anonymous Physician 2 in the Biedron lawsuit caption is Anonymous Physician 1 in the Sullivan/Sitko lawsuit caption. For the sake of clarity, if not consistency, we use abbreviations for the physicians that are appropriate to each lawsuit.

      We heard oral argument on June 1, 2018, at the French Lick Resort as part of the Indiana State Bar Association's Solo & Small Firm Conference. We thank the ISBA for facilitating the argument, and we thank counsel for their capable advocacy.

      G. Anthony Bertig, the medical review panel's chairman, and Stephen Robinson, IDOI's commissioner, were joined as third-party respondents in this case and the two other cases on appeal.

      Indiana Code Section 34-18-11-1 provides for the preliminary determination of an issue of law or fact that is not reserved for written opinion by the medical review panel under Indiana Code Section 34-18-10-22.

      Paragraph 1 of the affidavit describes Dr. Nasir's education, training, and experience, which are not at issue. We have replaced references to the Biedron Defendants' names where necessary, and we have done likewise with the defendants' names in the other affidavits excerpted below.

      Strictly speaking, Indiana Code Section 34-23-1-1 is a nonclaim statute, rather than a statute of limitation. Alldredge v. Good Samaritan Home, Inc. , 9 N.E.3d 1257, 1264-65 (Ind. 2014). A nonclaim statute creates a right of action if commenced within the statutory period, whereas a statute of limitation creates a defense to an action brought after the expiration of the statutory period. In re Paternity of M.G.S. , 756 N.E.2d 990, 997 (Ind. Ct. App. 2001), trans. denied (2002). Because the limitation period of either may be tolled by fraudulent concealment, Alldredge , 9 N.E.3d at 1264-65, we use the terms interchangeably here. In Alldredge , our supreme court held that the fraudulent concealment statute (Indiana Code Section 34-11-5-1 ) may apply to toll the limitation period for a wrongful death action. Id. All three plaintiffs, who did not invoke the statute below, argue that the common law doctrine of fraudulent concealment may also toll that limitation period. The defendants do not disagree.

      The physician and medical practice defendants in all three cases note that the patients signed consent forms prior to their implant surgeries, and that if a consent is properly signed and witnessed and properly explained to the patient before a procedure is undertaken, "a rebuttable presumption is created that the consent is an informed consent." Ind. Code § 34-18-12-2. The plaintiffs point out that "causes of action predicated upon a lack of informed consent are distinct from actions arising from an unnecessary surgery." Sitko/Orr Appellees' Br. at 33-34.

      In her reply brief, Theresa asserts that vestiges of Dr. Nasir's affidavit survived the Biedron Defendants' motion to strike. Because she did not challenge the trial court's ruling in her initial brief, she has waived any argument in this regard.

      Indiana Code Section 34-9-3-1(a) provides that if an individual who is entitled to a cause of action dies (with certain exceptions not relevant here), the cause of action survives and may be brought by the deceased party's representative. "The action is considered a continued action and accrues to the representatives or successors at the time the action would have accrued to the deceased if the deceased had survived." Ind. Code § 34-9-3-1(b). The limitation period for a personal injury action is two years. Ind. Code § 34-11-2-4(a).

      The affidavit contains additional assertions regarding AH that are irrelevant to this appeal.

      We acknowledge that Orr mentioned fraudulent concealment in her proposed complaint and that the Orr Defendants followed suit in their initial summary judgment brief, but neither was obligated to do so.


source: Caselaw Access Project

author: Vaidik, Chief Judge.

license: Public Domain

text:
    Tavis Ray CRITTENDON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-206
    Court of Appeals of Indiana.
    FILED August 8, 2018
    Attorney for Appellant: Jay A. Rigdon, Rockhill Pinnick LLP, Warsaw, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Caryn N. Szyper, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Following a heroin overdose, the State charged Tavis Ray Crittendon with Level 6 felony possession of a narcotic drug. Following a bench trial, the trial judge found him guilty, reasoning that Crittendon admitted using heroin and had to possess the heroin in order to use it. Crittendon now appeals, arguing that he cannot be convicted of possessing the heroin he admitted consuming. Because this Court has already determined that a defendant can be found guilty of possessing the drug that was consumed (without the State having to introduce the drug into evidence), we affirm.

Facts and Procedural History

[2] In the early-morning hours of January 25, 2016, Acacia Frye called 911 when she found Crittendon, her live-in boyfriend, unresponsive with blue lips. Acacia "immediately recognize[d] it as a [h]eroin overdose" and started administering CPR. Tr. p. 36.

[3] When Deputy Christopher Francis with the Kosciusko County Sheriff's Department arrived at the Warsaw house, medics were working on Crittendon. Crittendon, who appeared "heavily impaired," was talking to the medics. Id. at 14. As the medics transported Crittendon to the hospital, Deputy Francis spoke with Acacia because he wanted "to figure out exactly what [Crittendon] was on for his well-being."Id. at 13-14. Acacia told him that there were narcotics in the house. Acacia then led Deputy Francis to a bedroom in the attic and lifted the mattress, revealing plastic baggies, a syringe, and a marijuana pipe. A powder in one of the bags field-tested positive for heroin. Acacia said she purchased the heroin the day before in South Bend. Id. at 33.

[4] Meanwhile, another deputy went to the hospital to speak with Crittendon. The interview was recorded. Crittendon told the deputy that he didn't know about the items under the mattress. When the deputy asked Crittendon what happened, he said:

I, uh, slipped up. Did some, well what I thought was a little bit of coke, some heroin. Went to sleep. Woke up to the ambulance being there and my girlfriend freaking out.

Ex. 1. He told the deputy that he used the cocaine and heroin with an old friend at a gas station in Milford, a nearby town in Kosciusko County.

[5] The State charged Crittendon with Level 6 felony possession of a narcotic drug. Crittendon filed a written waiver of his right to a jury trial (which was signed by both him and his attorney), see Appellant's App. Vol. II pp. 22-23, and a bench trial was held.

[6] At the bench trial, the State's theory was that Crittendon possessed the heroin found under the mattress. Defense counsel's theory was that Crittendon did not possess the heroin found under the mattress, that he used a different batch of heroin belonging to a friend, and that a person cannot be convicted of possessing a drug they consumed. The trial judge was not persuaded by defense counsel's argument, finding that because Crittendon admitted to using heroin and that "[h]e had to possess it to consume it," he was guilty of Level 6 felony possession of a narcotic drug. Tr. pp. 45, 47.

[7] Crittendon now appeals.

Discussion and Decision

[8] Crittendon contends that he cannot be convicted of possessing the heroin he admitted consuming. Crittendon concedes that "[c]ase law does exist to equate consumption with possession"-that is, an Indiana Court of Appeals decision from 1974, Smith v. State , 161 Ind. App. 636, 316 N.E.2d 841 (1974), reh'g denied -but he claims that Smith is "no longer good law" because "it has not been cited in any subsequent appellate cases." Appellant's Br. p. 11.

[9] Not so. This Court relied on Smith in 1991 in State v. Vorm , 570 N.E.2d 109 (Ind. Ct. App. 1991). In Vorm , the defendant tested positive for cocaine metabolites during a drug screen while he was on work release and was charged with possession of cocaine. We said:

Although we have not previously addressed the precise question at hand, whether the presence of cocaine metabolites in urine is prima facie evidence of possession of cocaine, our Third District, J. Garrard, stated in Smith v. State (1974), 161 Ind. App. 636, 316 N.E.2d 841, 842, reh. denied :
Also, although we find no Indiana decisions specifically on point, it has been held that evidence showing a person has a prohibited drug within his system is circumstantial evidence tending to show he was in possession of the drug prior to taking it. (Citation omitted).

Vorm , 570 N.E.2d at 110. We held that evidence that a person has cocaine metabolites in their system is circumstantial evidence of prior possession of cocaine but that additional evidence is needed. Id. at 110-11. In other words, the presence of cocaine metabolites in a person's system, by itself, is not enough to support a conviction for possession of cocaine. Because there was no evidence showing that Vorm knowingly or intentionally possessed cocaine, we reversed his conviction.

[10] We revisited the issue in 2015 in Smart v. State , 40 N.E.3d 963 (Ind. Ct. App. 2015), reh'g denied . In Smart , a car containing three people-Dylan Smart, Janelle King, and Christina Perry-was pulled over. Smart was in the front passenger seat, and Janelle was the driver. During the traffic stop, Smart moved around excessively and had constantly twitching eyes. Janelle told the officer that there was a syringe in the car and that it belonged to Smart. The officer then found two syringes behind the driver's seat, one on the floorboard and the other in a backpack. Both syringes contained a brown fluid; a field test on one of the syringes was positive for methamphetamine or ecstasy. Smart denied that the backpack was his, but he admitted using "speed" (a street name for methamphetamine) by injecting it and that he had done so in the car. Smart had fresh "track marks" on his wrist.

[11] The State charged Smart with, among other things, Class D felony possession of methamphetamine. At trial, Smart testified that Janelle had offered him "some speed" that was already loaded into a syringe and that Janelle helped him inject it and then kept the syringe. Smart then admitted using meth. Christina also testified, and she admitted injecting the meth supplied by Janelle.

[12] On appeal, Smart, relying on Vorm , argued that the evidence was insufficient to support his conviction for possessing meth. We held:

We find Vorm distinguishable. Here, even if we do not consider the results of the field test, we conclude that the evidence is sufficient to show that Smart possessed methamphetamine. Unlike in Vorm, Smart, King, and Perry all admitted to injecting methamphetamine on the evening in question. Smart had fresh track marks on his arm and was exhibiting symptoms of methamphetamine use. Our supreme court has recently held that "[t]he State is not required to introduce the subject contraband to obtain a conviction for dealing or possession." Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009). "The identity and quantity of a controlled substance, and the defendant's possession of or dealing in narcotics, may all be established through witness testimony and circumstantial evidence." Id. Given the circumstantial evidence and the witness testimony here, we conclude that the evidence is sufficient to sustain Smart's conviction for Class D felony possession of methamphetamine.

Id. at 967.

[13] Critically, Crittendon does not acknowledge either Vorm or Smart in his appellant's brief. The State cites Smart in its appellee's brief, and Crittendon did not file a reply brief. Based on both Vorm and Smart , we find that the evidence is sufficient to support Crittendon's conviction for possession of a narcotic drug. That is, Crittendon admitted using heroin shortly before waking up to medics, and he showed clear signs of a heroin overdose. Although Crittendon argues that there is a "public policy argument to be made against equating consumption ... with possession" because it discourages people from seeking medical assistance, public-policy arguments should be made to the General Assembly. We therefore affirm Crittendon's conviction for Level 6 felony possession of a narcotic drug.

[14] Affirmed.

Riley, J., and Kirsch, J., concur.

      Crittendon argues that the evidence is insufficient to prove that the drug he consumed was in fact heroin because he said during the interview that he "thought it was heroin." Appellant's Br. p. 18. As this passage reveals, Crittendon admitted that he used "what [he] thought was a little bit of coke" and "some heroin." Thus, Crittendon expressed uncertainty to the cocaine, not the heroin.

      The State also charged Crittendon with Level 6 felony possession of a syringe, but the court found him not guilty of that charge.

      Crittendon also argues that there was a "fatal variance" between the charging information, which, "when read in conjunction with the Affidavit of Probable Cause, clearly references the heroin found in the bedroom," and the judge's actual finding that Crittendon "possessed heroin at a gas station in Milford." Appellant's Br. pp. 12-13. Crittendon, however, did not make a fatal-variance claim either before or after the judge announced he was finding Crittendon guilty and has therefore waived this issue. See Neff v. State , 915 N.E.2d 1026, 1031 (Ind. Ct. App. 2009) ("As a general rule, failure to make a specific objection at trial waives any material variance issue."), aff'd on reh'g , 922 N.E.2d 44 (Ind. Ct. App. 2010), trans. denied .
      Finally, Crittendon argues that he did not validly waive his right to a jury trial. He acknowledges the Indiana Supreme Court's decision in Kellems v. State , 849 N.E.2d 1110 (Ind. 2006), which holds that a waiver of the right to a jury trial can be done either in writing or in open court, but asks us to "overrule" it and "formulate a black-line rule" that such a waiver can only be done in open court. Appellant's Br. p. 18. We cannot do so. See Gill v. Gill , 72 N.E.3d 945, 949 (Ind. Ct. App. 2017) (explaining that it is not the role of the Indiana Court of Appeals to reconsider or declare invalid decisions of the Indiana Supreme Court), trans. denied .


author: DITKOFF, J.

text:
    TOWN OF FRAMINGHAM v. FRAMINGHAM POLICE OFFICERS UNION.
    No. 17-P-1178.
    Appeals Court of Massachusetts, Middlesex..
    Argued March 9, 2018. Decided July 10, 2018.
    Christopher J. Petrini, Framingham, for the plaintiff.
    Dennis M. Coyne, Southborough, for the defendant.
    Present: Lemire, Ditkoff, & McDonough, JJ.
   DITKOFF, J.

The town of Framingham appeals from a Superior Court order denying its motion for a preliminary injunction against the arbitration of a police officer's transfer to the patrol division. We conclude that the transfer and assignment of police officers is within the exclusive managerial authority of the police chief as a matter of public safety pursuant to G. L. c. 41, § 97A, and may not be delegated or contravened through arbitration or collective bargaining. This is so even where it is claimed that the transfer or assignment was motivated by the police chief's perception of the officer's misconduct. Furthermore, we conclude that a municipality seeking to enforce its statutory rights to exclusive managerial authority need not show irreparable harm to be entitled to a preliminary injunction. Accordingly, we reverse the order denying the preliminary injunction.

1. Background. Officer Matthew Gutwill is a police officer in the Framingham police department (department) and a member of the Framingham Police Officers Union (union). The terms of Officer Gutwill's employment are governed by the collective bargaining agreement (CBA) entered into by the union and Framingham on May 12, 2016.

In 2004, Officer Gutwill began working for the department in the patrol division and was then transferred to the detective bureau, where he served from 2006 to 2008. In Framingham, an assignment to the detective bureau does not confer the rank of detective in the department. It is a specialty assignment distinguished from the patrol division based on the position's role and job requirements, rather than senior employment status within the department. As a detective, Officer Gutwill received a weekly stipend and a more flexible schedule.

In 2008, Officer Gutwill was assigned to work as a detective with a Federal Drug Enforcement Agency (DEA) task force. The assignment was consecutively renewed through 2015 but was at all times temporary, made at the sole discretion of the police chief with the express reservation of managerial authority to transfer or to reassign Officer Gutwill at any time. While working full time and under the operational command of the DEA, Officer Gutwill remained employed by the department and continued to receive his detective stipend. He also enjoyed an increased differential pay rate for nighttime work and additional overtime compensation.

On September 22, 2015, Officer Gutwill lodged a complaint with the department, alleging misconduct against another detective in the department. The complaint triggered a four-month internal investigation, and Officer Gutwill was displeased with its result. Officer Gutwill also claimed that he was subjected to workplace harassment by members of the department in retaliation for making allegations against a fellow detective.

In January, 2016, he was informed that the department intended to rotate him out of the DEA task force at an undetermined date to an undetermined position. The department maintains that the transfer was dictated by sound risk management policy to provide opportunities for other officers, to allow rotated officers to share specialized knowledge and experience within the department, and to reduce entrenchment and other concerns associated with so-called "high risk positions." Officer Gutwill, by contrast, suspected the reassignment was made in retaliation for his initial and ongoing complaints.

Officer Gutwill sought to air his concerns to the police chief in a February 5, 2016, telephone call. During the conversation, Officer Gutwill allegedly made several inflammatory statements to the police chief. Officer Gutwill claimed that a deputy chief lied while testifying in a criminal case, and that another deputy chief was implicated in other misconduct through a Federal wiretap recording. Officer Gutwill also expressed that he was unable to work with fellow detectives as a result of what he believed was retaliatory harassment, and that his complaints were being ignored by the department. Based on these claims, Officer Gutwill told the police chief that he planned to file a complaint with the Massachusetts Commission Against Discrimination, and stated something to the effect that he would "turn the place upside down."

In response, the department retained an attorney on February 16, 2016, to conduct an independent investigation of Officer Gutwill's accusations. The investigation commenced on March 1, 2016, and continued through July, 2016, during which time Officer Gutwill's reassignment was delayed pending the outcome of the investigation. After substantial inquiry, the investigator issued a report dated July 14, 2016, determining that the allegations of retaliation were without merit. Despite the absence of any suggestion in the investigator's report that Officer Gutwill was dishonest, the police chief accused Officer Gutwill of denying to the investigator that he made various statements in the February 5, 2016, telephone call.

Based on the police chief's accusations, Officer Gutwill was placed on paid administrative leave on August 19, 2016, through December 12, 2016, when he was suspended for five days without pay. According to the department, the suspension resulted from violations of rules prohibiting "untruthfulness" concerning Officer Gutwill's denial of the statements made to the police chief on February 5, 2016.

When Officer Gutwill returned to duty on December 19, 2016, after his suspension, he was reassigned from the detective bureau to the patrol division. The department cited "a variety of reasons" for the transfer, "including an independent investigator's finding that he was untruthful during an official investigation," in determining "that it was in the [d]epartment's best interest to assign him to the [p]atrol [d]ivision." Officer Gutwill immediately challenged the decision in a verbal grievance, which was denied by the police chief.

The union responded by submitting a written grievance on behalf of Officer Gutwill on December 21, 2016, alleging that his reassignment from the detective bureau to the patrol division constituted "discipline" without "just cause," in violation of the CBA. The union requested the immediate reinstatement of Officer Gutwill to the detective bureau. The department denied this grievance on the ground that the Legislature had declared that the assignments of police officers is "an exclusive managerial prerogative" not subject to collective bargaining. The Framingham town manager upheld the denial. Pursuant to the CBA, the union filed a demand for arbitration on January 17, 2017, on behalf of Officer Gutwill.

On March 2, 2017, Framingham filed a civil complaint and moved for a preliminary injunction enjoining arbitration, which was duly opposed by the union. After a hearing, a Superior Court judge (motion judge) denied the preliminary injunction in a decision entered June 28, 2017. We have jurisdiction over Framingham's interlocutory appeal pursuant to G. L. c. 231, § 118. See Massachusetts Correction Officers Federated Union v. Bristol, 64 Mass. App. Ct. 461, 464, 833 N.E.2d 1182 (2005) ; DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 903, 65 N.E.3d 1217 (2016).

2. Standard of review. "We review the grant or denial of a preliminary injunction for abuse of discretion." Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 574, 969 N.E.2d 1118 (2012). In doing so, we determine "whether the judge applied proper legal standards and whether there was reasonable support for his evaluation of factual questions." Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164, 959 N.E.2d 403 (2011), quoting from Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741, 897 N.E.2d 548 (2008). "The trial court's legal conclusions, however, are 'subject to broad review and will be reversed if incorrect.' " LeClair v. Norwell, 430 Mass. 328, 331, 719 N.E.2d 464 (1999), quoting from Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616, 405 N.E.2d 106 (1980).

3. Standard for preliminary injunction. "When a private party seeks a preliminary injunction, the moving party is required to show that an irreparable injury would occur without immediate injunctive relief." LeClair, 430 Mass. at 331, 719 N.E.2d 464, citing Cheney, 380 Mass. at 617, 405 N.E.2d 106. "When, however, a suit is brought either by the government or a citizen acting as a private attorney general to enforce a statute or a declared policy of the Legislature irreparable harm is not required." LeClair, supra, citing Edwards v. Boston, 408 Mass. 643, 646-647, 562 N.E.2d 834 (1990). Rather, the equitable considerations justifying the need for injunctive relief are supplied by showing that an injunction is in the public interest. See Caplan v. Acton, 479 Mass. 69, 75, 92 N.E.3d 691 (2018). Thus, because Framingham brought this suit as a government plaintiff, seeking a preliminary injunction to enforce its rights under G. L. c. 41, § 97A, and G. L. c. 150C, § 2(b ), it must only "show a likelihood of success on the merits and that the requested relief would be in the public interest." Caplan, supra, citing LeClair, supra at 331-332, 719 N.E.2d 464. Accord Commonwealth v. Mass. CRINC, 392 Mass. 79, 89, 466 N.E.2d 792 (1984).

The motion judge, while assuming that Framingham had demonstrated a likelihood of success on the merits, denied Framingham's request to enjoin arbitration on the basis that it had failed to demonstrate irreparable harm. Framingham, however, repeatedly asserted that arbitration would violate G. L. c. 41, § 97A, which (Framingham argued) makes the assignment of police officers a nondelegable, inherent managerial right. At least regarding Framingham's arguments under § 97A, Framingham was seeking to enforce a statute and a declared policy of the Commonwealth and did not need to show irreparable harm.

Accordingly, to determine whether a preliminary injunction should have issued, we must assess (1) Framingham's likelihood of success on the merits in showing that the grieved transfer and reassignment of Officer Gutwill by the police chief is not an arbitrable issue and (2) whether prohibiting arbitration of that issue is in the public interest. See Caplan, 479 Mass. at 75, 92 N.E.3d 691.

4. Success on the merits: arbitrability of police officer transfer and reassignment. "There are certain nondelegable rights of management, matters that are not mandatory subjects of collective bargaining ..., that a municipality and its agents may not abandon by agreement, and that an arbitrator may not contravene."

Billerica v. International Assn. of Firefighters, Local 1495, 415 Mass. 692, 694, 615 N.E.2d 564 (1993). General Laws c. 41, § 97A, as appearing in St. 1948, c. 595, vests the "chief of police" (in municipalities, like Framingham, that have accepted § 97A ) with authority to "be in immediate control ... of the police officers, whom [the police chief] shall assign to their respective duties" (emphasis supplied). See Andover v. Andover Police Patrolmen's Union, 45 Mass. App. Ct. 167, 169-170, 696 N.E.2d 161 (1998). Even in the absence of express legislative language, police chiefs are inherently vested with general managerial authority over employees "where matters of public safety are concerned." Saugus v. Saugus Pub. Safety Dispatchers Union, 65 Mass. App. Ct. 901, 902, 839 N.E.2d 860 (2005).

"A police chief's authority to assign his officers to particular duties is a matter that concerns the public safety." Taunton v. Taunton Branch of the Mass. Police Assn., 10 Mass. App. Ct. 237, 243, 406 N.E.2d 1298 (1980). Moreover, "[t]he protection of a public employer's management prerogative is particularly strong where, as here, the prerogative concerns policy judgments in the allocation and deployment of law enforcement resources" (emphasis supplied). Saugus Pub. Safety Dispatchers Union, 65 Mass. App. Ct. at 901-902, 839 N.E.2d 860. That power, as a result, may not be delegated to arbitrators pursuant to CBAs or, for that matter, subject to collective bargaining at all. Saugus v. Saugus Police Superior Officers Union, 64 Mass. App. Ct. 916, 916-917, 835 N.E.2d 276 (2005) (police chief's involuntary assignment of officers to overtime shifts, required for public safety, "was within the exclusive managerial prerogative of the chief and, hence, not subject to being bargained away by the town, and not arbitrable"). See Worcester v. Labor Relations Commn., 438 Mass. 177, 182, 779 N.E.2d 630 (2002), quoting from Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172, 178, 681 N.E.2d 1234 (1997) ("The allocation of resources among competing law enforcement priorities 'must be reserved to the sole discretion of the public employer ....' Those priorities are not a proper subject of bargaining"). Cf. Chief Justice for Admin. & Mgmt. of the Trial Ct. v. Commonwealth Employment Relations Bd., 79 Mass. App. Ct. 374, 388, 946 N.E.2d 704 (2011) ("The determination of proper security for the Commonwealth's trial courtrooms is not a collectively bargainable subject").

It follows that the police chief's decision in this case to transfer and reassign Officer Gutwill from the detective bureau to the patrol division was neither subject to the parties' CBA nor delegable to arbitration. The case of Boston v. Boston Police Superior Officers Fedn., 466 Mass. 210, 993 N.E.2d 693 (2013), mandates this result. There, a police officer serving as a union representative was involved in an altercation with another officer, with whom the officer-representative was regularly required to interact. Id. at 212-213, 993 N.E.2d 693. The police commissioner issued a transfer order upon determining that the officer-representative's "effectiveness as a supervisor had been compromised," prompting the union to file a grievance. Id. at 213, 993 N.E.2d 693. Relying on the police commissioner's statutory authority, and citing the necessity of managerial control to maintain "public safety and a disciplined police force," id. at 215, 993 N.E.2d 693, quoting from Boston v. Boston Police Patrolmen's Assn., 41 Mass. App. Ct. 269, 272, 669 N.E.2d 466 (1996), the Supreme Judicial Court concluded that the transfer of an officer was within the police commissioner's exclusive and nondelegable authority "over the assignment and organization of the officers within the department." Boston Police Superior Officers Fedn., supra at 215, 993 N.E.2d 693. That power was essential; otherwise, police "managers would have no ability to react to changing conditions in arranging the police force into the necessary bureaus, units, and divisions." Id. at 216, 993 N.E.2d 693.

General Laws c. 41, § 97A, confers the same statutory authority provided to the police commissioner in that case to the police chief in this matter. See Andover Police Patrolmen's Union, 45 Mass. App. Ct. at 169-170, 696 N.E.2d 161. Indeed, the CBA does as well. Moreover, even if the CBA provided otherwise, it could not abrogate the police chief's authority to transfer, assign, and deploy officers according to the police chief's discretion. Massachusetts Coalition of Police, Local 165 v. Northborough, 416 Mass. 252, 255, 620 N.E.2d 765 (1993) ("A town may not by agreement abandon a nondelegable right of management"). In short, because the assignment and the deployment of police officers is a nondelegable right of management, it is not a proper subject of collective bargaining.

In this respect, the union's reliance on Boston v. Boston Police Patrolmen's Assn., 477 Mass. 434, 78 N.E.3d 66 (2017), is misplaced. There, the police commissioner terminated an officer for using excessive force against a civilian after the Saint Patrick's Day Parade, and for being untruthful. Id. at 435, 437-438, 78 N.E.3d 66. An arbitrator discredited the civilian's account and ordered the officer reinstated. Id. at 439, 78 N.E.3d 66. On review, the Supreme Judicial Court found that "core matters of discipline and discharge" are delegable and, specifically, a termination may be the subject of an arbitration pursuant to a CBA. Id. at 441, 78 N.E.3d 66. Absent from that case was any suggestion that the arbitrator could order that the officer be given any duty, deployment, or assignment. The arbitrator merely "reinstated [the officer] with back pay." Id. at 439, 78 N.E.3d 66. The Supreme Judicial Court provided no hint that an arbitrator could require the police commissioner to assign the officer to another Saint Patrick's Day Parade or even require that he be assigned to patrol duty. To the contrary, the court repeatedly relied on Boston Police Superior Officers Fedn., 466 Mass. at 216, 993 N.E.2d 693, and provided a long list of cases holding that assignments are nondelegable. Boston Police Patrolmen's Assn., supra at 440, 441 & n.7, 78 N.E.3d 66.

There is no question that Officer Gutwill's suspension may be challenged or that, had he been terminated, the union could seek his reinstatement. Indeed, the union could presumably challenge any action of the police chief with respect to Officer Gutwill (if in violation of the CBA)

other than his assignment. Similarly, if detective had been a rank in Framingham, such that the police chief had demoted him, Officer Gutwill could have challenged the reduction in rank. Although there is little reason to doubt that Officer Gutwill's disciplinary history was considered in the department's assignment decision, the grievance materially challenged only the reassignment itself. "[The] mere characterization of a feature of a collective bargain or an arbitration award as ... 'terms or conditions of employment' or some other subject conventionally or by law within the scope of either process, will not save the [feature] if in substance it defeats a declared legislative purpose." Lynn, 43 Mass. App. Ct. at 176, 681 N.E.2d 1234, quoting from Watertown Firefighters, Local 1347 v. Watertown, 376 Mass. 706, 714, 383 N.E.2d 494 (1978). The substantive actions disputed in this case are within the exclusive purview of the police chief pursuant to G. L. c. 41, § 97A, and the doctrine of nondelegability. Framingham is not required to justify the transfer and reassignment of Officer Gutwill or prove that the decision, predicated on the best interests of the department, was not otherwise pretext behind disciplinary motives. Worcester, 438 Mass. at 183, 779 N.E.2d 630 (city not required to "present evidence explaining or justifying its decision" concerning nondelegable law enforcement action within managerial prerogative).

A simple example demonstrates why this must be so. Under the union's interpretation of the statutory scheme, the police chief may freely transfer any police officer with a spotless disciplinary record from the detective bureau to the patrol division, and no challenge to that action would be possible. If, however, an officer has been disciplined, any transfer of (or, even, failure to provide a requested assignment to) that officer could be subject to grievance and arbitration to determine whether it was disciplinary and whether it was supported by just cause. Such a regime not only defies logic, but would impose an intolerable burden on a police chief's managerial authority "where matters of public safety are concerned." Saugus Pub. Safety Dispatchers Union, 65 Mass. App. Ct. at 902, 839 N.E.2d 860.

The transfer and reassignment of Officer Gutwill is a nondelegable decision. Parties cannot agree to arbitrate a dispute that "lawfully cannot be the subject of arbitration,"

Department of State Police v. Massachusetts Org. of State Engrs. & Scientists, 456 Mass. 450, 455, 924 N.E.2d 248 (2010), quoting from Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, 119, 360 N.E.2d 883 (1977), and a court may not order the arbitration of a dispute that the parties did not agree to arbitrate. Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 808, 42 N.E.3d 1199 (2016). Neither this court nor any arbitrator, as a result, may contravene the decision made by the police chief in this case. See, e.g., Massachusetts Coalition of Police, Local 165, 416 Mass. at 255-256, 620 N.E.2d 765 ; Sheriff of Middlesex County v. International Bhd. of Correctional Officers, Local R1-193, 62 Mass. App. Ct. 830, 831, 821 N.E.2d 512 (2005). The matter may not be submitted to arbitration; accordingly, Framingham is likely to succeed on the merits as a matter of law.

5. Public interest. On the second prong of the preliminary injunction assessment, the requested relief promotes the public interest. See Caplan, 479 Mass. at 95, 92 N.E.3d 691. The doctrine of nondelegability, in respect to the exclusive managerial prerogative of law enforcement authorities and G. L. c. 41, § 97A, is predicated on the prevailing interests of public safety. See Taunton Branch of the Mass. Police Assn., 10 Mass. App. Ct. at 243-245, 406 N.E.2d 1298 ; Andover Police Patrolmen's Union, 45 Mass. App. Ct. at 169-170, 696 N.E.2d 161 ; Saugus Police Superior Officers Union, 64 Mass. App. Ct. at 917, 835 N.E.2d 276. In accordance with the preceding analysis, enjoining arbitration here promotes public safety by allowing the effective and flexible deployment of law enforcement resources and personnel, see Boston Police Superior Officers Fedn., 466 Mass. at 215-216, 993 N.E.2d 693, as well as "preserv[ing] the intended role of the governmental agency and its accountability in the political process." Id. at 214, 993 N.E.2d 693, quoting from Lynn, 43 Mass. App. Ct. at 178, 681 N.E.2d 1234.

6. Conclusion. Framingham is likely to succeed on the merits of its claim, and a preliminary injunction promotes the public interest as reflected in G. L. c. 41, § 97A, and the doctrine of nondelegation in law enforcement decision-making. Framingham is therefore entitled to a preliminary injunction enjoining arbitration of the transfer and reassignment of Officer Gutwill as grieved by the union. Because the motion judge erred in finding otherwise, we reverse the order denying the preliminary injunction and a new order shall enter allowing Framingham's motion for a preliminary injunction.

So ordered.

      The town of Framingham became the city of Framingham on January 1, 2018. The legal issues in this case are not affected by the change in status.

      Article 3 of the CBA states, "Among the Management Rights vested in the Town are the rights, in accordance with applicable law, to hire, promote, transfer, suspend, demote, discharge and to relieve employees from duty, consistent with all applicable Civil Service rules and regulations.... The Town shall have the freedom of action to determine the methods, and means and the personnel for all operations."

      Indeed, the investigator repeatedly stressed that Officer Gutwill "raised his concerns in good faith." Framingham asserts in its brief that the investigator issued two reports finding that Officer Gutwill was untruthful to her. No evidence of that has been presented to us or, so far as we can discern, to the Superior Court judge.

      While on administrative leave, Officer Gutwill filed a civil complaint in the United States District Court for the District of Massachusetts, predicated on the same factual accusations, pursuant to 42 U.S.C. § 1983. In the Federal lawsuit, Officer Gutwill seeks, inter alia, reinstatement to the DEA task force as a detective with full fringe benefits and seniority rights, treble damages for his lost wages, benefits, and other remuneration, with interest, as well as additional compensatory and punitive damages. As of this date, the Federal lawsuit remains pending. Nothing here should be construed as expressing any opinion about the merits of the Federal lawsuit.

      According to the union, Officer Gutwill also appealed his suspension to the Civil Service Commission. At oral argument, Framingham represented that this appeal ultimately was withdrawn.

      Apparently by agreement of the parties, no arbitration proceedings on the matter have been held pending this court's decision.

      Because the union raises no objection to our review (and, indeed, affirmatively desires a decision), we need not reach the question whether the union could seek to prohibit appellate review at this stage by invoking G. L. c. 150C, § 16, which does not authorize an appeal from an order allowing arbitration to proceed. See Old Rochester Regional Teacher's Club v. Old Rochester Regional Sch. Dist., 18 Mass. App. Ct. 117, 118, 463 N.E.2d 581 (1984) (because appeal requirements adopted pursuant to § 16 "are comprehensive, an appeal [at least as of right] from any type of order not so enumerated is precluded"). See also School Comm. of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 846, 359 N.E.2d 956 (1977) (order denying application to stay arbitration not appealable under § 16 ).

      General Laws c. 150E, § 7(d ), amended by St. 1998, c. 9, which provides that "[i]f a collective bargaining agreement ... contains a conflict between matters which are within the scope of negotiations pursuant to [G. L. c. 150E, § 6,] and ... the regulations of a police chief pursuant to [G. L. c. 41, § 97A,] or of a police commissioner ... the terms of the collective bargaining agreement shall prevail," is not to the contrary. The assignments of police officers pursuant to G. L. c. 41, § 97A, are not regulations of a police chief or a police commissioner, and we have previously held that G. L. c. 150E, § 7(d ), does not displace a police chief's authority to assign officers. Saugus Police Superior Officers Union, 64 Mass. App. Ct. at 917, 835 N.E.2d 276, quoting from Andover Police Patrolmen's Union, supra at 170, 696 N.E.2d 161 ("nothing in [G. L. c. 150E, § 7(d ),] purports to displace the general authority vested in a police chief by § 97A to order his officers to a mandatory overtime deployment when, in his judgment, the public safety so requires"). Because the assignment of police officers is not a proper subject of collective bargaining, there is no need to reconcile conflicts between a police chief's authority and collective bargaining on assignments of police officers.

      Nonetheless, his assignment remains nondelegable. For example, if the police chief assigned a ranking detective to patrol duties, while retaining the detective's rank and compensation, the assignment would not be subject to arbitration.

      The laws regarding the joint labor-management committee (committee), G. L. c. 23, § 9S, inserted by St. 2007, c. 145, § 5, "as established by [St. 1973, c. 1078], and as most recently amended by [St. 1987, c. 589]," do not control here. By express provision, the committee applies only where an impasse in collective bargaining negotiations exists between a public employer and its employees. G. L. c. 150E, § 9. The CBA in this case was not the result of such circumstances.

      A different analysis would be necessary if Officer Gutwill raised claims based on constitutional discrimination. The doctrine of nondelegation generally must give way to the constitutional and statutory prohibitions on invidious discrimination. See Blue Hills Regional Dist. Sch. Comm. v. Flight, 383 Mass. 642, 644, 421 N.E.2d 755 (1981) (creating exception to nondelegable, managerial prerogative over educational policy for the "[d]enial of promotion to a public employee because of her sex [because such denial] is constitutionally impermissible and violates statutory proscriptions").

      We emphasize, however, that this conclusion is limited to the arbitrability of Officer Gutwill's assignment. Nothing here should be taken as suggesting any opinion about the merits of any other proceeding.