Finnegan et al v. Myers et al

Filing 143

OPINION AND ORDER denying 122 Motion for Judgment on the Pleadings. Signed by Judge Rudy Lozano on 1/30/13. (smp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROMAN FINNEGAN, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
LAUREL MYERS, et al.,
Defendants.

NO. 3:08-CV-503

OPINION AND ORDER
This matter is before the Court on the Defendant John F.
Cavanaugh’s

Motion

for

Judgment

on

the

Pleadings,

filed

Defendant, John F. Cavanaugh, on September 7, 2012 (DE #122).

by
For

the reasons set forth below, the motion is DENIED.

BACKGROUND
The facts of this case are many, but it is not necessary for
the Court to completely delve into the extensive record at this
time.

Simply put, Plaintiffs have sued multiple defendants,

including the instant Defendant, Dr. John Cavanaugh, a forensic
pathologist.
defendants

Plaintiffs allege in this Section 1983 action that

repeatedly

and

wrongfully

claimed

that

Roman

and

Lynnette Finnegan medically neglected or murdered Lynnette’s 14year old daughter, Jessica Salyer, despite the eventual conclusion

that she died on December 20, 2005, from a major prescription error
combined with congenital heart disease (post-Fontan) and a seizure
disorder.
Defendant Dr. Cavanaugh filed the instant motion for judgment
on the pleadings on September 7, 2012, claiming that the suit is
not proper against him for two reasons.

First, he argues he is

immune from civil liability under Indiana Code § 36-2-14-13.
Second, Dr. Cavanaugh contends he has qualified immunity for claims
brought under 42 U.S.C. § 1983.
Plaintiffs filed their response on September 24, 2012 (DE
#127).

They contend that Dr. Cavanaugh cannot rely upon state law

to immunize his deliberate, wrongful conduct under Section 1983.
They also argue that he is not entitled to qualified immunity for
withholding critical information from the Coroner, intentionally
omitting critical information from his autopsy report, and lying to
the Plaintiffs.
#131).

Defendant filed a reply on October 5, 2012 (DE

Consequently, this motion is fully briefed and ripe for

adjudication.

DISCUSSION
A motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) “is reviewed under the same standard as a
motion to dismiss under 12(b) . . . .”

Flenner v. Sheahan, 107

F.3d 459, 461 (7th Cir. 1997); see also R.J. Corman Derailment

2

Servs., LLC v. Int’l Union of Operating Eng’rs, Local Union 150,
335 F.3d 643, 647 (7th Cir. 2003).

Where the plaintiff moves for

judgment on the pleadings, “the motion should not be granted unless
it appears beyond doubt that the non-moving party cannot prove
facts sufficient to support his position.”

Housing Auth. Risk

Retention Group, Inc. v. Chicago Housing Auth., 378 F.3d 596, 600
(7th Cir. 2004)(quotation omitted).

In other words, “[a] court

will grant a Rule 12(c) motion only when it appears beyond a doubt
that the plaintiff cannot prove any facts to support a claim for
relief and the moving party demonstrates that there are no material
issues of fact to be resolved.”

Brunt v. Serv. Employees Int’l

Union, 284 F.3d 715, 718-19 (7th Cir. 2002).

In ruling on a motion

for judgment on the pleadings, the court must accept as true “all
well-pleaded allegations” and view them in the light most favorable
to the non-moving party, as well as accept as true all reasonable
inferences to be drawn from the allegations. R.J. Corman, 335 F.3d
at 647; see also Forseth v. Village of Sussex, 199 F.3d 363, 368
(7th Cir. 2000).

A court may rule on a judgment on the pleadings

under Rule 12(c) based upon a review of the pleadings alone, which
include the complaint, the answer, and any written instruments
attached as exhibits.

See Northern Indiana Gun & Outdoor Shows,

Inc. v. City of South Bend, 163 F.3d 449, 452-53 (7th Cir. 1998);
see also Fed. R. Civ. P. 10(c)(providing that written instruments
attached as exhibits to a pleading are part of the pleading for all
3

purposes).

Facts
Jessica was diagnosed prenatally with tricuspid atresia and
had two open heart surgeries by age six, leaving her with half a
heart.

(First Amended Complaint “FAC” ¶ 18.)

fourth generation seizure disorder.

She also had a

(Id. ¶ 19.)

Jessica took

three medications: warfarin (brand name Coumadin), a high-risk
anticoagulant needed to prevent clotting; digoxin to control her
heart beat, and phenytoin (brand name Dilantin) for her seizure
disorder.

(Id. ¶ 20.)

When Jessica died, the Coroner retained Dr. Cavanaugh, a
forensic pathologist, to perform an autopsy to help him with his
Inquest.

(Id. ¶¶ 167, 169.)

At the December 21, 2005 autopsy, Dr.

Cavanaugh found no signs of abuse or neglect but identified
numerous small hemorrhages throughout Jessica’s body.

(Id. ¶¶ 51,

In his handwritten preliminary report1, he concluded that

55.)

Jessica’s death was caused by a subdural hemorrhage due to blunt
force

trauma

consistent

with

a

1

fall

exacerbated

by

Coumadin

The Court notes that Dr. Cavanaugh prepared three
postmortem reports: (1) a preliminary handwritten report dated
December 21, 2005, the day of the autopsy, which he provided to
the Coroner; (2) a formal report dated May 24, 2006, which noted
a fracture that had not been noted during the autopsy or in the
preliminary report; and (3) a second formal report dated July 8,
2007, following the January 25, 2007 exhumation and second
autopsy.
4

(warfarin).

(Id. ¶ 55.)

This is a standard description of a

warfarin death caused by a minor fall.

(Id. ¶ 105.)

In his May 24, 2006 report, Dr. Cavanaugh identified a skull
fracture that he had not mentioned at the autopsy or in his
preliminary report.

(Id. ¶ 55.)

He did not provide a review of

the microscopic slides at that time.

Dr. Cavanaugh’s other

conclusions remained unchanged.
Plaintiffs allege that based on the reported fracture, the
Department of Child Services (“DCS”) Defendants believed Jessica’s
death was a homicide and enlisted the help of Defendant Antoinette
Laskey, a pediatrician, who then issued an opinion finding that
Jessica died from a fatal beating on the day of death (a claim that
Plaintiffs allege was physiologically impossible given the lack of
bruising).

(Id. ¶¶ 57-63.)

The first amended complaint also

alleges that in reaching her conclusion that “Jessica died from a
fatal beating on the day of death, causing internal hemorrhages and
skull fracture . . . Dr. Laskey did not consult with the Coroner or
any of the other investigators.”

(Id. ¶ 58.)

The first amended complaint alleges that the opinion letter by
Dr. Laskey resulted in DCS seizing Jessica’s siblings, Tabitha and
Katelynn.

(Id. ¶ 64.)

It also that alleges that within weeks, the

Finnegans’ counsel discovered that Jessica’s doctor had increased
her warfarin prescription from 3-7 mg, and eliminated her seizure
medication, placing Jessica in imminent danger of internal bleeding

5

and seizures.
ultimately

(Id. ¶¶ 69-72, 173.)

explained

the

medical

contradicted Dr. Laskey’s report.

The prescription errors
findings

and

death,

and

Id.

A January 25, 2007 exhumation and second autopsy established
that Dr. Cavanaugh had created the skull fracture during the first
autopsy.

(Id. ¶¶ 73-74, 183.)

On April 17, 2007, Dr. Cavanaugh

gave Detective McDonald two sets of autopsy slides, one for the ISP
and one for the Finnegans.

(Id. ¶ 217.)

However, defendant

McDonald refused to give the Finnegans their set of slides, which
established that the subdural hemorrhage was weeks to months old,
consistent with the prescription errors. Id.

By July 2, 2007, the

Coroner had not yet received Dr. Cavanaugh’s review of the slides,
and he asked Dr. Cavanaugh, Dr. Laskey, the DCS Defendants, and the
Finnegans’ counsel to provide any new information to him by July 9,
2007, so he could issue a Verdict.

(Id. ¶ 235.)

Plaintiffs’ claim against Dr. Cavanaugh is:
[B]ased on a newly discovered email that shows he
deliberately and in bad faith omitted critical
exculpatory information from his July 8, 2007
autopsy report and concealed it from the Coroner,
who had retained him. This information included a
review of the autopsy slides, which confirmed that
the bleeds were ongoing for at least 5-10 days and
possibly weeks, consistent with the defense expert
reports and the prescription errors. . . The
failure to disclose this exculpatory information to
the Coroner and participation in a conspiracy with
Ms. Pherson and defendant McAninch to conceal it
from the Coroner, the courts and the Finnegans
eliminates any immunity to which Dr. Cavanaugh
might otherwise be entitled.

6

(Id. ¶ 169.)
In

the

meantime,

the

Finnegans’

counsel

had

received

information from the prosecutor and forwarded it to other doctors,
Dr. Pless and Dr. Leestma, who opined that the hemorrhage was old,
and the fracture was postmortem.

(Id. ¶¶ 96, 105, 106, 239.)

Plaintiffs’ counsel offered to provide materials to Dr. Cavanaugh
and meet with him to discuss, however, on July 8, 2007, Dr.
Cavanaugh told counsel his copies of the slides “do not show any
chronic changes beyond a day or so” and Dr. Cavanaugh declined to
review Dr. Leestma’s and Dr. Pless’s reports or meet with the
Finnegans’ counsel, saying he would “just go with the evidence he
[had].”

(Id. ¶¶ 239, 240; Ex. 2-E.)

Dr. Cavanaugh’s July 8, 2007

autopsy report did not contain any information on the autopsy
slides.

(Id. ¶ 241.)

Three days after he issued his second formal autopsy report,
Dr.

Cavanaugh

wrote

an

e-mail

(right

before

his

scheduled

deposition), which is largely the basis for the Plaintiffs’ claims
against him.

The July 11, 2007 e-mail written from Dr. Cavanaugh

to Sheryl Pherson, attorney for Pulaski County DCSA, is as follows:
Thought I’d give you a heads-up on the final
report. Although I didn’t go into detail in the
report, there has been some significant new
information that changes certain opinion details: .
. . 2. There is both new and old bleeding in the
skull - certain portions of the clot examined
autopsy
(more
microscopically
after
the
2nd
specimens submitted) look to be in the 5-10 day
range or older. This means more than one bleeding
episode, with possibly 2 weeks of noticeable
7

neurologic symptoms and/or
The scalp contusions also
different ages. 3. Portions
are indeed autopsy artifact.

pathologic bleeding.
appear to be of two
of the skull fracture
. . .

(DE #91-1.)
Neither

Ms.

Pherson

nor

Dr.

Cavanaugh

disclosed

this

“significant new information” to the Coroner, the Court, or the
Finnegans.

(FAC ¶ 246.)

Rather, after receiving the e-mail, Ms.

Pherson cancelled Dr. Cavanaugh’s deposition and moved to postpone
the fact finding.

Id.

Plaintiffs allege the false claims against

the Finnegans continued for nearly three more years in public
forums,

with

the

Defendants

rejecting

the

Coroner’s

Verdict.

Plaintiffs allege that Dr. Cavanaugh deliberately and in bad faith
concealed and omitted exculpatory information, including his review
of the autopsy slides, from his autopsy report and violated the
family’s constitutional rights.

(Id. ¶ 302.)

Civil Immunity Under Indiana Code § 36-2-14-13
Dr. Cavanaugh first moves for judgment on the pleadings
arguing that he has civil immunity under Indiana Code § 36-2-14-13.
That section provides that “[a] person who in good faith orders or
performs a medical examination or autopsy under statutory authority
is

immune

from

civil

liability

for

performing the examination or autopsy.”

damages

for

ordering

or

Ind. Code § 36-2-14-13.

However, “[c]onduct by persons acting under color of state law

8

which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized
by state law.”

Hampton v. City of Chicago, Cook County, Ill., 484

F.2d 602, 607 (7th Cir. 1973).

In Hampton, the Court explained

that “[a] construction of the federal statute which permitted a
state immunity defense to have controlling effect would transmute
a basic guarantee into an illusory promise; and the supremacy
clause of the Constitution insures that the proper construction may
be enforced.”

Id. (citing McLaughlin v. Tilendis, 398 F.2d 287,

290 (7th Cir. 1968)).

Therefore, dismissal is not proper under

section 36-2-14-13.
Even assuming, arguendo, that it was applicable, section 36-214-13 still does not render Dr. Cavanaugh immune.

While the

section provides immunity for a person who performs a medical
examination or autopsy in good faith, in this case, Plaintiffs have
pled that Dr. Cavanaugh acted deliberately and in bad faith (not
merely negligently), and with a dishonest purpose.
302.)

(FAC ¶¶ 169,

By allegedly concealing important information from the

Coroner and Plaintiffs, Plaintiffs have pled enough detail for a
fact finder to conclude that Dr. Cavanaugh acted in bad faith,
willfully ignored his statutory duties, and did this knowing it
would result in the continued deprivation of the Plaintiffs’
constitutional rights.

Qualified Immunity

9

In the instant motion for judgment on the pleadings, Dr.
Cavanaugh argues he is: (1) entitled to qualified immunity because
he was “the pathologist retained by the Jasper County Coroner” and
“acted appropriately at all times”; and (2) Plaintiffs have not
sufficiently alleged that he conspired to violate Plaintiffs’
constitutional rights.

(DE #123, p. 12.)

Dr. Cavanaugh was retained by the Coroner to perform an
autopsy and to report his findings to the Coroner.
2-14-6(a), (d); FAC ¶¶ 167, 169.

See I.C. § 36-

Dr. Cavanaugh sets forth that

“coroners enjoy the same qualified immunity as police officers or
other investigators for the state prosecutor.”

Kompare v. Stein,

801 F.2d 883, 888 (7th Cir. 1986) (citation omitted).

However,

this qualified immunity does not extend to withholding material
exculpatory evidence.

See Fields v. Wharrie, 672 F.3d 505, 513

(7th Cir. 2012) (stating state actors, like police, “share the
prosecutor’s constitutional obligation to disclose exculpatory
evidence to the defendant.”).
Dr. Cavanaugh claims that he acted appropriately at all times.
He

points

to

Plaintiffs’

own

allegations

in

the

complaint,

including but not limited to:
On November 2 [2006], Dr. Cavanaugh confirmed, in
writing, that the bleeding that Dr. Laskey
attributed to a fatal beating on the day of death,
had in fact started earlier, possibly with slow
intractable bleeding, and was exacerbated by
Coumadin. (FAC ¶ 171.)
On

April

17,

[2007]
10

Dr.

Cavanaugh

gave

Det.

McDonald two sets of autopsy slides, one for the
ISP and one for the Finnegans. However, defendant
McDonald refused to give the Finnegans their set of
slides, which established that the subdural
hemorrhage was weeks to months old, consistent with
the prescription errors. (FAC ¶ 217.)
However, as noted by Plaintiffs, Dr. Cavanaugh did not provide
this exculpatory information to the Coroner or the Finnegans, he
only revealed it to DCS and McDonald. For example, with regards to
the written confirmation in November 2006 that the bleeding had
started earlier, Plaintiffs argue Dr. Cavanaugh did not provide
this information to the Coroner, but rather McAnich, who also
withheld it from the Coroner.

(DE #127, pp. 16-17.)

DCS was later

held in contempt for McAninch’s and Myers’ failure to provide
information

to

the

Coroner

in

response

administrative and judicial subpoenas.

to

the

Coroner’s

(Id., p. 17.) With regard

to the autopsy slides, Plaintiffs argue Dr. Cavanaugh knew the
subdural hemorrhage was weeks to months old, consistent with
prescription errors, but he concealed that information from the
Coroner.

(Id., p. 17.)

Dr. Cavanaugh revealed the information to

DCS in July 2007, but never disclosed it to the Coroner.

(Id.)

While it is true the July 11, 2007 e-mail sent to Sheryl
Pherson, Attorney for Pulaski County DCS, tells DCS that the
subdural hemorrhage was old, and he had not gone into detail on
this point in his report given to the Coroner, Plaintiffs correctly
point out that the problem is that Dr. Cavanaugh entirely omitted
any review of autopsy slides from his second autopsy report. (DE
11

#127, p. 18.)

This was despite the Coroner waiting for him to

provide the findings.

(FAC ¶ 235.)

Plus, after Dr. Cavanaugh

informed DCS of his findings, he still did not provide this
information to the Coroner. (Id. ¶ 246.)

Defendants argue:

[H]ad Cavanaugh provided a slide review to the
Coroner in November 2006, when he learned that
Laskey and DCS were calling this a homicide, the
girls would have been quickly returned and the
parents would never have been arrested. Instead,
the children were held for nine months of
interrogation and the parents arrested based on
theories advanced by the DCS Defendants and
Defendant McDonald that Cavanaugh knew to be wrong.
(DE #127, p. 19.)
Although

Dr.

Cavanaugh

tries

to

argue

that

the

amended

complaint merely alleges negligence on his part, this is incorrect.
The complaint clearly alleges that Dr. Cavanaugh considered the
slides (which support the Finnegans, and disproved the theories of
Dr. Laskey and DCS), but intentionally omitted this information
from his autopsy report.

(FAC ¶¶ 169, 245-46.)

Indeed, Dr.

Cavanaugh’s July 11, 2007 e-mail could be interpreted to support
such allegations.
The

cases

cited

by

Dr.

Cavanaugh

involving

forensic

pathologists all involve negligence, not accusations of intentional
wrongdoing
inapposite.

or

concealing

evidence,

and

they

are

therefore

For example, in Lawyer v. Kernodle, 721 F.2d 632, 633

(8th Cir. 1983), the complaint was based on negligent diagnosis of
cause of death and the pathologist’s erroneous and premature

12

communications of conclusions of cause of death.

Unlike here, in

Lawyer, the plaintiff did not allege that the defendants “acted
outside the permissible scope of their statutory discretion.”

Id.

at 635.
In Kompare v. Stein, 801 F.2d 883, 885-86 (7th Cir. 1986), the
Seventh Circuit found a county coroner was entitled to qualified
immunity from a claim she failed to conduct a thorough autopsy in
violation of a county ordinance.

The Court did say that, “[i]n

complaining

violated

that

the

defendant

the

Ordinance,

the

plaintiffs are essentially arguing that the defendant failed to
investigate thoroughly [the] death and failed to reveal exculpatory
information.”

Id. at 888-89. However, the main issue in that case

was whether the violation of a municipal ordinance is a per se
violation of due process and thus gives rise to a cause of action
under § 1983.

There was no allegation in that case that the

coroner intentionally conducted an autopsy in bad faith or she
intentionally withheld exculpatory evidence.

Rather, in Kompare,

the coroner did not look at slides until after the postmortem
examination report, and then right before the trial, the coroner
updated the report to include the review of slides (which the
coroner testified at trial did not change her diagnosis of the
death).

Id. at 885-86. Here, the Plaintiffs are not claiming that

Dr. Cavanaugh conducted a negligent autopsy or reached premature
conclusions - they claim he deliberately omitted important autopsy

13

findings from his report and concealed them from the Coroner, which
enormously prejudiced Plaintiffs.

Moreover, in this case, this

Court has already found that Plaintiffs sufficiently alleged a
violation of Plaintiffs’ 14th amendment substantive and procedural
due process rights based on the seizure of their children.

(DE

#61, pp. 24-25; see also DE #53-1, Blankenship Opinion and Order,
pp. 69-72 (highlighting the substantive and procedural problems).)
At this stage of the proceedings, when the Court must accept
as true all well-pleaded allegations and view them in the light
most favorable to the non-moving party, as well as accept as true
all reasonable inferences to be drawn from the allegations, the
Court cannot say beyond a doubt that Plaintiffs cannot prove any
facts to support a claim for relief.
R.J. Corman, 335 F.3d at 647.

Brunt, 284 F.3d at 718-19;

Facts have been alleged that would

sufficiently let a fact finder determine that Dr. Cavanaugh was
responsible

for

reviewing

the

microscopic

slides,

that

he

deliberately concealed his review from the Coroner and was not
truthful to the Finnegans’ counsel about his findings, and that he
did

this

knowing

that

the

information

could

impact

the

investigation, detention of the Finnegans’ children, and arrest of
the Finnegans.

This is sufficient.

See, e.g., Martin v. Kim, No.

2:03 CV 536, 2005 WL 2293797, at *8 (N.D. Ind. Sept. 19, 2005)
(denying motion to dismiss on ground of qualified immunity as
premature); Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)

14

(quotation omitted) (“Because an immunity defense usually depends
on the facts of the case, dismissal at the pleading stage is
inappropriate: The plaintiff is not required initially to plea
factual allegations that anticipate and overcome a defense of
qualified immunity.”).

Dr. Cavanaugh’s argument that he could not

have done any wrongful conduct since Plaintiffs concede that Dr.
Cavanaugh never himself claimed Jessica had been murdered or abused
(DE #127 n. 15), does not necessarily mean that Plaintiffs cannot
prove that Dr. Cavanaugh acted in bad faith, willfully refused to
turn over exculpatory material, and did so knowing it could result
in the deprivation of Plaintiffs’ constitutional rights.
Moreover, dismissal of the conspiracy claim is not appropriate
either.

Plaintiffs have alleged that:
Defendant Cavanaugh participated in the conspiracy
by the DCS defendants, Det. McDonald and Dr. Laskey
to make and maintain false claims against Roman and
Lynnette
Finnegan
and
to
prevent
accurate
information from reaching the Coroner and the
courts. Like the other defendants, Dr. Cavanaugh
provided false information and concealed critical
exculpatory information in order to create and
maintain a case against the Finnegans, in bad faith
and without rational belief or probable cause.

(FAC ¶ 305.)

At this stage, this is sufficient.

See, e.g., Brokaw

v. Mercer County, 235 F.3d 1000, 1016 (7th Cir. 2000) (plaintiffs’
conspiracy allegations under § 1983 were sufficient, and no more
was required at that stage of the proceedings, because they
“alleged all of the necessary facts: the who, what, when, why, and
how.

No more is required at this stage.”).
15

Dr. Cavanaugh cites

Kunik v. Racine Company, 946 F.2d 1574, 1580 (7th Cir. 1991), for
the proposition that it is not enough to allege vague facts or
include no overt acts reasonably related to the alleged conspiracy.
But Kunik was overruled by the Seventh Circuit in Walker v.
Thompson, 288 F.3d 1005 (7th Cir. 2002), which held that Kunik
“cannot be squared with” the Supreme Court’s 2002 decision in
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002),

and that

“it is enough in pleading a conspiracy to indicate the parties,
general purpose, and approximate date.”

Id. at 1007-08.

Although

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft
v.

Iqbal,

556

U.S.

662

(2009),

have

subsequently

imposed

a

plausibility standard on all pleadings, Plaintiffs have met those
by alleging sufficient facts in the First Amended Complaint, and
pointing to the July 11, 2007 e-mail, which sufficiently alleges
the conspiracy between Dr. Cavanaugh and the DCS Defendants.
In his reply brief, Dr. Cavanaugh argues for the first time
that

the

claims

limitations.

against

him

are

(DE #131, pp. 3-5.)

barred

by

the

statute

of

Because Dr. Cavanaugh did not

raise this contention until his reply brief, this argument is
waived.

See United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir.

2006) (holding arguments not fully developed until a reply brief
are waived).

Moreover, even if this Court were to consider the

statute of limitations argument, it would still fail because
Plaintiffs did not discover the July 11, 2007 e-mail until the

16

second round of discovery conducted in October 2011.

(DE #127, p.

4, n.5.)
Dr. Cavanaugh also argues for the first time in the reply
brief that he is not a proper defendant because Plaintiffs failed
to establish he was acting under color of state law.
argument is waived.

See Alhalabi, 443 F.3d at 611.

timely raised, it would still fail.

Again, this

Even if it was

Plaintiffs alleged Dr.

Cavanaugh was the forensic pathologist who conducted Jessica’s
autopsy and that “he deliberately and in bad faith omitted critical
information from his July 8, 2007 autopsy report and concealed it
from the Coroner, who had retained him.”2
(emphasis added).)

(FAC ¶¶ 167, 169

Because Plaintiffs allege he was retained by

the Jasper County Coroner, that is sufficient to allege Dr.
Cavanaugh was acting under color of state law.

CONCLUSION
For the aforementioned reasons, the Motion for Judgment on the
Pleadings, filed by Defendant, John F. Cavanaugh, is DENIED.

DATED: January 30, 2013

/s/ RUDY LOZANO, Judge
United States District Court

2

Indeed. Dr. Cavanaugh admits in his opening brief “[i]t is
undisputed that Dr. Cavanaugh was retained by the Jasper County
Coroner, Dr. Klockow. Such retention was made pursuant to
Indiana Code § 36-2-14-6(d), which provides that a coroner shall
employ a pathologist to perform an autopsy.” (DE #123, p. 7.)
17