THOMPSON v. CITY OF INDIANAPOLIS et al

Filing 136

ENTRY ON MOTIONS FOR LEAVE TO FILE EVIDENCE AND SURREPLY - For the foregoing reasons, the Court GRANTS Medical Defendants' Motion for Leave to File Supplemental Evidence (Filing No. 76 ) and DENIES Thompson's Motion for Leave to File Su rreply (Filing No. 78 ). Thompson's proposed surreply (Filing No. 78-1) and its exhibits (Filing No. 78-2; Filing No. 78-3) are STRICKEN from the docket. Thompson is granted leave to file a response to Medical Defendants' new evidence and argument within ten (10) days of the date of this Entry. (See Entry.) Signed by Judge Tanya Walton Pratt on 4/28/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BILLIE THOMPSON, as personal
representative of the ESTATE OF DUSTY
HEISHMAN,
Plaintiff,
v.
CITY OF INDIANAPOLIS,
INDIANAPOLIS DEPARTMENT OF
PUBLIC SAFETY, INDIANAPOLIS
METROPOLITAN POLICE DEPARTMENT,
BRIAN BURNETT, DONALD SPIEGL,
WILLIAM BUECKERS, PHILLIP GREENE,
MARION COUNTY SHERIFF’S
DEPARTMENT, BILLY JOHNSON,
HEALTH AND HOSPITAL CORPORATION
OF MARION COUNTY, LANCE COPE,
MARK BRITTON, and WILLIAM
PATTERSON,
Defendants.

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No. 1:15-cv-01712-TWP-DML

ENTRY ON MOTIONS FOR LEAVE TO FILE EVIDENCE AND SURREPLY
This matter is before the Court on a Motion for Leave to File Supplemental Evidence in
Support of Motion for Reconsideration filed by Defendants Health and Hospital Corporation of
Marion County (“HHC”) and Lance Cope (“Medic Cope”) (collectively, “Medical Defendants”)
(Filing No. 76). Also pending before the Court is a Motion for Leave to File a Surreply to
Defendants’ Motion for Reconsideration filed by Plaintiff Billie Thompson (“Thompson”) (Filing
No. 78). For the following reasons, the Court GRANTS Medical Defendants’ Motion for Leave
to File Supplemental Evidence and DENIES Thompson’s Motion for Leave to File Surreply.
Thompson, representing the Estate of Dusty Heishman (“Heishman”), filed this action
alleging Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983 and numerous

state law claims, surrounding Heishman’s death following an arrest. Medical Defendants moved
to dismiss the state law claims against them, asserting that the Court lacked subject matter
jurisdiction based on Indiana’s Medical Malpractice Act, which requires plaintiffs to first present
state law medical negligence claims to a medical review panel before bringing the claims to court.
The Court granted in part and denied in part Medical Defendants’ motion to dismiss, explaining
that, with the exception of the wrongful death claim against HHC, the claims did not fall under the
Medical Malpractice Act, and thus, the Court had subject matter jurisdiction to consider the claims
(Filing No. 54 at 8).
Following the Court’s Order on the motion to dismiss, Medical Defendants filed a motion
for reconsideration, which is pending before the Court (Filing No. 59). Medical Defendants assert
in their motion for reconsideration that the Court misunderstood the facts concerning the medical
care provided by Medic Cope to Heishman, explaining that Medic Cope was not assisting law
enforcement to effectuate an arrest, but rather, he was rendering medical treatment to Heishman
for Heishman’s medical benefit.
On September 20, 2016, Thompson filed a response brief opposing Medical Defendants’
motion for reconsideration (Filing No. 67). Thompson argues that the Court did not misunderstand
the facts and correctly determined the state law claims did not fall under the Medical Malpractice
Act. Thompson further explains that the Court correctly determined that Medic Cope was assisting
law enforcement officers to restrain a combative and resisting arrestee when Medic Cope
administered a shot of Versed to Heishman to calm him down.
Thompson retained two experts for this case, and the expert reports were generated on
September 27 and 28, 2016. Medical Defendants relied on Thompson’s new expert reports in their
reply brief in support of their motion for reconsideration, which was filed on September 30, 2016

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(Filing No. 75). Because Medical Defendants relied on new evidence in their reply brief that was
not raised in the opening brief, Thompson filed her Motion for Leave to File Surreply, requesting
an opportunity to respond to the new evidence and argument asserted for the first time in Medical
Defendants’ reply brief (Filing No. 78).
Additionally, Medical Defendants requested leave to file supplemental evidence in support
of their motion for reconsideration because, after the initial briefing had been filed, counsel for
Medical Defendants learned that Thompson had allegedly made judicial admissions or admissions
against interest by filing proposed complaints with the Indiana Department of Insurance, asserting
claims against Medical Defendants for medical malpractice (Filing No. 76 at 1–2). Medical
Defendants assert that these judicial admissions lead to the conclusion that this Court does not
have jurisdiction over the state law claims. Medical Defendants ask for leave to file Thompson’s
Department of Insurance complaints as supplemental evidence. The Court determines that it is
necessary to allow the filing of this supplemental evidence to build a complete and accurate record
concerning the Court’s subject matter jurisdiction, which will assist the Court in deciding the
motion for reconsideration. Therefore, Medical Defendants’ Motion for Leave to File
Supplemental Evidence is GRANTED, and the supplemental evidence at Filing No. 76-1 and
Filing No. 76-2 is deemed filed as of October 7, 2016.
In her Motion for Leave to File Surreply, Thompson asked the Court for an opportunity to
respond to the supplemental argument and evidence (the proposed complaints filed with the
Indiana Department of Insurance) if the Court allowed Medical Defendants to file the supplemental
evidence. Because the Court is allowing the supplemental evidence, in the interest of justice, the
Court also allows Thompson to file a response to the supplemental evidence. Thompson’s
response must be filed within ten (10) days of the date of this Entry.

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Thompson sought leave to file her surreply brief to respond to the new evidence and
argument asserted for the first time in Medical Defendants’ reply brief concerning Thompson’s
two expert reports. Medical Defendants oppose Thompson’s request for leave to file a surreply
because they assert that Thompson’s proposed surreply goes beyond the scope of the new evidence
and argument about the expert reports. Medical Defendants assert that Thompson tries to raise
additional new evidence (Medic Cope’s internal affairs statement and an IMPD general order) in
the surreply instead of simply responding to the reply brief.
Courts allow a surreply only in limited circumstances to address new arguments or
evidence raised in the reply brief or objections to the admissibility of the evidence cited in the
response. Miller v. Polaris Labs., LLC, 2014 U.S. Dist. LEXIS 18161, at *4–5 (S.D. Ind. Feb. 12,
2014). The surreply brief must be limited to the new evidence and argument raised in the reply.
Id. A review of Thompson’s proposed surreply brief reveals that the brief focusses on new
evidence and argument concerning Medic Cope’s internal affairs statement and an IMPD general
order and provides little to no response to the reply brief’s new evidence and argument regarding
Thompson’s expert reports. This is not proper for a surreply. Therefore, the Court DENIES
Thompson’s Motion for Leave to File Surreply and STRIKES the proposed surreply (Filing No.
78-1) and its exhibits (Filing No. 78-2; Filing No. 78-3) from the docket.
However, in the interest of justice, Thompson should be permitted to respond to Medical
Defendants’ new evidence and argument raised in the reply brief regarding Thompson’s expert
reports. Therefore, Thompson is granted leave to respond to the argument and evidence regarding
the expert reports within the same response brief where Thompson may address the proposed
complaints filed with the Indiana Department of Insurance. Again, this response must be filed
within ten (10) days of the date of this Entry.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Medical Defendants’ Motion for Leave to
File Supplemental Evidence (Filing No. 76) and DENIES Thompson’s Motion for Leave to File
Surreply (Filing No. 78). Thompson’s proposed surreply (Filing No. 78-1) and its exhibits (Filing
No. 78-2; Filing No. 78-3) are STRICKEN from the docket. Thompson is granted leave to file a
response to Medical Defendants’ new evidence and argument within ten (10) days of the date of
this Entry.
SO ORDERED.

Date: 4/28/2017

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Distribution:
Scott Leroy Barnhart
ATTORNEY AT LAW
[e-mail]

Thomas J.O. Moore
OFFICE OF CORPORATION COUNSEL
[e-mail]

Brooke Smith
KEFFER BARNHART LLP
[e-mail]

Andrew R. Duncan
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
[e-mail]

Mary M. Ruth Feldhake
BOSE MCKINNEY & EVANS, LLP
[e-mail]

Edward J. Merchant
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
[e-mail]

Philip R. Zimmerly
BOSE MCKINNEY & EVANS, LLP
[e-mail]

John F. Kautzman
RUCKELSHAUS KAUTZMAN
BLACKWELL BEMIS & HASBROOK
[e-mail]

Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
[e-mail]

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