                                                                 FILED
                                                            May 10 2018, 11:24 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court



                             IN THE

     Indiana Supreme Court
           Supreme Court Case No. 49S02-1711-MI-686

  Paul Gresk, Trustee for the Bankruptcy Estate of
Derek VanWinkle and Stacey VanWinkle on behalf of
        M.V. and A.V., their minor children,
                         Appellants (Plaintiffs)
                                  –v–

                  Cortney Demetris, M.D.,
                         Appellee (Defendant)

Stephen W. Robertson, Commissioner of the Indiana
            Department of Insurance,
                            Party in Interest


          Argued: December 7, 2017 | Decided: May 10, 2018
   Appeal from the Marion Superior Court, No. 49D05-1510-MI-35716
              The Honorable John M.T. Chavis, II, Judge
      On Petition to Transfer from the Indiana Court of Appeals,
                       No. 49A02-1610-MI-2287


                      Opinion by Justice Massa

       Chief Justice Rush, Justice David, and Justice Goff concur.
                  Justice Slaughter not participating.
Massa, Justice.

   Public participation is fundamental to self-government, and thus
protected by the Indiana and United States Constitutions. When citizens
are faced with meritless retaliatory lawsuits designed to chill their
constitutional rights of petition or free speech, also known as Strategic
Lawsuits Against Public Participation (SLAPP), Indiana’s anti-SLAPP
statute provides a defense.

  Here, two minors and their parents filed a medical malpractice lawsuit
against a doctor who reported suspected medical child abuse to the
Department of Child Services (DCS). The doctor claimed the lawsuit was a
SLAPP and her report to DCS was protected speech shielded by Indiana’s
anti-SLAPP statute. The trial court agreed and dismissed the lawsuit. We
reverse, finding the anti-SLAPP statute inapplicable in this case because to
be protected under Indiana’s anti-SLAPP statute a person’s actions must
be “in furtherance of” his or her right of petition or free speech and “in
connection with a public issue.” Ind. Code § 34-7-7-5 (2017).


Facts and Procedural History
   Stacey VanWinkle, a neonatal-intensive-care-unit nurse, and Derek
VanWinkle, a stay-at-home father, have two children, A.V. and M.V. Since
birth, A.V. has suffered from several medical conditions, including
gastrointestinal (GI) issues, requiring many procedures and medications.

   In May 2013, Dr. Susan Maisel, A.V.’s doctor, became concerned that
Stacey was exaggerating A.V.’s GI symptoms. Dr. Maisel recommended
admitting A.V. to the hospital for observation. Dr. Maisel then contacted
Dr. Cortney Demetris, a board-certified doctor in pediatrics and child-
abuse pediatrics, about her concerns that A.V. was a victim of medical
child abuse. 1




1Medical child abuse, formerly called Munchausen syndrome by proxy, is a form of child
abuse where a child receives unnecessary and potentially risky medical treatment due to false
symptom reporting by a parent or caregiver.



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   In June 2013, A.V. was admitted for observation, and Dr. Demetris was
her attending physician. After two days, Dr. Demetris noted in her
medical files that A.V. was “a well appearing child” without “any
significant medical complaints.” Appellants’ App. Vol. 2, p.127. Based on
video surveillance from A.V.’s room, conversations with A.V.’s other
physicians, and interactions with A.V.’s parents, Dr. Demetris concluded
that A.V. suffered from medical child abuse. A hospital social worker then
reported Dr. Demetris’s diagnosis to DCS.

  Less than a week later, DCS removed A.V. and M.V. from their parents
and filed a petition alleging they were children in need of services
(CHINS). Ultimately, A.V. and M.V. were returned to their parents.
However, because Stacey worked with children, DCS conducted a Child
Care Worker Assessment Review (CCWAR). 2 Following the CCWAR,
DCS substantiated the allegations of abuse. Eventually, DCS dismissed the
CHINS petition, but the VanWinkles sought administrative appeal of the
substantiated allegations. After a hearing, an administrative law judge
substantiated the neglect allegations as to A.V. only. This finding was
ultimately reversed by the trial court.

    The VanWinkles, individually and on behalf of A.V. and M.V., then
filed a proposed medical malpractice complaint with the Indiana
Department of Insurance, alleging Dr. Demetris’s diagnosis of medical
child abuse fell below the standard of care. 3 Before the medical review




2A CCWAR is required when a “child care worker,” as defined in 465 Indiana Administrative
Code section 3-1-5, has allegations of child abuse and/or neglect filed against them as an
employee or personally. Ind. Dept. of Child Servs., Ind. Child Welfare Policy Manual § 2.03
(2014), available at
http://www.in.gov/dcs/files/2.03%20Child%20Care%20Worker%20Assessment%20Review%2
0Process.pdf. The CCWAR provides an opportunity for the “child care worker” “to present
any information he or she feels could assist DCS in making an accurate decision” with regard
to substantiating the allegations. Id.
3 The VanWinkles also filed suit under Title 42 of the United States Code section 1983, alleging
DCS and Dr. Demetris engaged in a conspiracy to falsely accuse them of medical child abuse.
The lawsuit was removed to federal court, where it was dismissed based on immunity and
lack of evidence. VanWinkle v. Nichols, No. 1:15-CV-01082-JMS-MJD, 2015 WL 9275671 (S.D.
Ind. Dec. 18, 2015).



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018                   Page 3 of 12
panel could consider the complaint, Dr. Demetris moved for a preliminary
determination of law and dismissal, arguing that her report to DCS was
protected by Indiana’s anti-SLAPP statute. 4 The trial court agreed and
dismissed, finding “Dr. Demetris spoke upon a matter of public concern
or public interest when she reported her diagnosis of medical child abuse
to [DCS]” and therefore her report was protected speech covered under
the statute. Appellants’ App. Vol. 2, pp.15–16.

   The VanWinkles appealed and our Court of Appeals reversed,
concluding the anti-SLAPP statute did not apply. Gresk v. Demetris, 81
N.E.3d 645, 655 (Ind. Ct. App. 2017), vacated. As a matter of first
impression, the panel concluded “child-abuse detection and prevention,
on a macro level, is of great interest to the general public,” but “the public
interest in the more narrow issues addressed by Dr. Demetris’s report to
DCS . . . is not significant [because it concerned] a private matter.” Id. at
654. The panel also found that Dr. Demetris “reported her suspicions of
child abuse to DCS primarily because of her duty to report” which is
“inconsistent with any claimed intent to engage in public debate or to
petition the government.” Id.

  We granted Dr. Demetris’s petition to transfer, vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   A motion to dismiss under Indiana’s anti-SLAPP statute is treated as a
motion for summary judgment. I.C. § 34-7-7-9(a)(1). Summary judgment is
appropriate if the designated evidence shows that there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law. Ind. Trial Rule 56(C); Megenity v. Dunn, 68 N.E.3d 1080,
1083 (Ind. 2017).




4She also claimed dismissal was appropriate under the immunity section of Indiana’s child
abuse reporting statute, see Ind. Code § 31-33-6-1 (2017), and that no physician-patient
relationship existed. Rulings on these issues were stayed until resolution of the anti-SLAPP
question.



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Discussion and Decision
   Our decision begins with a historical discussion of SLAPP lawsuits and
Indiana’s anti-SLAPP statute. We then apply Indiana’s statute to the facts
at hand, finding the anti-SLAPP defense inapplicable because Dr.
Demetris’s report was not made pursuant to her right of petition or free
speech or in connection with a public issue.


I. SLAPPs identified as a threat to constitutionally
   protected activities.

   A. SLAPPs generally.
   In 1989, Professors Penelope Canan and George W. Pring observed that,
since at least the 1970s, ordinary individuals were being sued for simply
speaking out politically. SLAPPs: Strategic Lawsuits Against Public
Participation, 7 Pace Envtl. L. Rev. 3, 3, 5 (1989) [hereinafter SLAPPs]. These
lawsuits implicitly challenged free speech or petition rights and sent the
message that there was a “price” for civic engagement. Id. at 5–6. The
“price” being a high-dollar retaliatory lawsuit—a meritless attempt at
chilling participation in government. Id. at 5, 8. Professors Canan and
Pring labeled these suits with the political-legal term “SLAPP,” strategic
lawsuits against public participation. Id. at 4. The defining goal of these
lawsuits was not to win, but to silence opposition with “delay, expense
and distraction.” John C. Barker, Common-Law and Statutory Solutions to the
Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 405 (1993) [hereinafter
Problem of SLAPPS].

   SLAPP lawsuits target a wide variety of political activity, including
“reporting violations of law, writing to government officials, attending
public hearings, testifying before government bodies, circulating petitions
for signature, lobbying for legislation, campaigning in initiative or
referendum elections, filing agency protests or appeals, being parties in
law-reform lawsuits, and engaging in peaceful boycotts and
demonstrations.” SLAPPs at 5. And the public interest issues are equally
as varied, ranging from zoning, health and safety, and environmental


Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018    Page 5 of 12
protection to public education, animal welfare, and taxation. Penelope
Canan & George W. Pring, Studying Strategic Lawsuits Against Public
Participation: Mixing Quantitative and Qualitative Approaches, 22 Law &
Soc’y Rev. 385, 388–89 (1988).

   Ultimately, Canan and Pring’s studies revealed a “growing legal risk
for ordinary citizens who speak up on community political issues,” and
they urged all three branches of government to act. SLAPPs at 8, 15. Since
then many states have adopted anti-SLAPP statutes. An integral
component of these statutes is balancing a plaintiff’s right to have his or
her day in court and a defendant’s free speech and petition rights, while
simultaneously providing a framework to distinguish between frivolous
and meritorious cases. Problem of SLAPPS at 397–98. If the lawsuit stems
from a legitimate legal wrong, it is not a SLAPP. George W. Merriam,
Identifying and Beating a Strategic Lawsuit Against Public Participation, 3
Duke Envtl. Law & Pol’y F. 17, 18 (1993). But, if the lawsuit is filed for an
ulterior political end, it is a SLAPP. Id. Anti-SLAPP statutes establish key
procedural tools to safeguard First Amendment rights.


   B. Indiana’s anti-SLAPP statute.
   Indiana adopted its anti-SLAPP statute in 1998 to address and reduce
abusive SLAPP litigation. 1998 Ind. Acts 1403-06 (codified at I.C. §§ 34-7-7-
1 to -10). Defendants may invoke the anti-SLAPP defense when faced with
a civil action for acts or omissions “in furtherance of the person’s right of
petition or free speech” under the United States Constitution or Indiana
Constitution “in connection with a public issue” and “taken in good faith
and with a reasonable basis in law and fact.” I.C. § 34-7-7-5. Once an anti-
SLAPP motion to dismiss is filed, discovery is stayed except as necessary
to respond to the issues raised in the motion. Id. §§ 34-7-7-6, -9(a)(3).
Defendants who successfully invoke the statute’s defense are entitled to
dismissal and reasonable attorney’s fees and costs. Id. § 34-7-7-7. But, if an
anti-SLAPP motion is “frivolous” or “solely intended to cause
unnecessary delay,” the plaintiff may recover such fees and costs
associated with answering. Id. § 34-7-7-8. Dismissal under the statute is in
addition to other remedies provided by the law. Id. § 34-7-7-10.



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018    Page 6 of 12
II. Indiana’s anti-SLAPP statute is inapplicable in this
    case.
   Dr. Demetris argues that, as a matter of first impression, Indiana’s anti-
SLAPP statute should be broadly construed to afford protection to reports
of suspected child abuse. The VanWinkles respond that the anti-SLAPP
statute does not apply to these facts, which concern a statutory duty to
report involving a private, confidential matter.

   SLAPPs can be difficult to identify. But for the anti-SLAPP statute to
apply, the statutory requirements of Indiana Code section 34-7-7-5 must
be satisfied. Upon receiving an anti-SLAPP motion to dismiss, the court
must determine three things: (1) whether an action was “in furtherance of
the person’s right of petition or free speech;” and, (2) if so, whether the
action was “in connection with a public issue.” Id. § 34-7-7-5(1). If both
requirements are satisfied, the court then analyzes (3) whether the action
was “taken in good faith and with a reasonable basis in law and fact.” Id. §
34-7-7-5(2).

   Here, we find the anti-SLAPP statute inapplicable because Dr.
Demetris’s report was not made pursuant to her right of petition or free
speech. Normally, this would end the analysis because all three
requirements must be met. However, because this is an issue of first
impression, we also address whether reports of child abuse are matters of
public interest.


    A. Dr. Demetris’s report was not made in furtherance of
       her right of petition or free speech.
   The First Amendment protects a person’s right to “petition the
Government for a redress of grievances,” and prohibits the government
from “abridging the freedom of speech.” 5 U.S. Const. amend. I. These




5The First Amendment has been incorporated to the states through the Fourteenth
Amendment. Love v. Rehfus, 946 N.E.2d 1, 8 n.5 (Ind. 2011) (citing McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 336 n.1 (1995)).



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018                    Page 7 of 12
traditional-American constitutional rights involve “personal expression,”
and citizen participation in government. Borough of Duryea, Pa. v.
Guarnieri, 564 U.S. 379, 388 (2011). Persons exercising their right of petition
“express their ideas, hopes, and concerns to their government and their
elected representatives” with the purpose of “seeking redress of a
grievance.” Id. Persons exercising their right of free speech do so to
advance “the public exchange of ideas” essential to a healthy democracy.
Id.

   Dr. Demetris did not exercise her right to petition. Her report was not
made to address a grievance of her own, but instead to simply report her
diagnosis of medical child abuse to DCS. Cf. Novoselsky v. Brown, 822 F.3d
342, 355–56 (7th Cir. 2016) (noting an attorney who advocates on a client’s
behalf is not exercising personal First Amendment rights). Similarly, once
Dr. Demetris arrived at her diagnosis, she had a duty to report it or face
potential criminal repercussions, inconsistent with any intent to facilitate
debate. 6 See Kentner v. Timothy R. Downey Ins., Inc., 430 F. Supp. 2d 844, 846
(S.D. Ind. 2006) (finding Indiana’s anti-SLAPP defense inapplicable where
actions are “simply in furtherance of [person’s] own personal goals”); see
also Kadambi v. Express Scripts, Inc., 86 F. Supp. 3d 900, 909 (N.D. Ind. 2015)
(noting self-motivated communications to avoid legal liability were
“inconsistent with any claimed intent to engage in public debate”). Once
the report was made, Dr. Demetris fulfilled her statutory obligations and
any further action was up to DCS. 7

    While there may be some set of facts where a doctor’s mandated report
is in furtherance of First Amendment rights, these are not it. By simply
reporting her statutorily-required diagnosis to DCS, Dr. Demetris was not




6See Ind. Code § 31-33-5-1 (2017) (“[A]n individual who has reason to believe that a child is a
victim of child abuse or neglect shall make a report[.]”); Ind. Code § 31-33-22-1(a) (2017) (“A
person who knowingly fails to make a report required by IC 31-33-5-1 commits a Class B
misdemeanor.”).
7See Ind. Code § 31-33-8-1 (2017) (upon receiving a report from medical personnel, DCS
forwards the report to the local DCS office to determine if DCS will initiate an assessment).



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018                    Page 8 of 12
engaged in any political advocacy guaranteed to her under the right to
petition the government.

  Likewise, Dr. Demetris’s report was not made pursuant to her free-
speech rights because (1) it was the product of a statutory duty, not a
constitutional right; and (2) it was confidential. 8 See Kadambi, 86 F. Supp.
3d at 909 (finding communications were not in furtherance of free speech
rights because they were made to avoid legal liability and concerned a
private matter). These aspects of the report belie any purported exchange
of ideas. As our Court of Appeals explained, the First Amendment
protects the “unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.” Lach v. Lake Cty., 621
N.E.2d 357, 358 (Ind. Ct. App. 1993). Dr. Demetris’s report was not speech
in relation to her participation in government. Instead, the VanWinkle’s
lawsuit alleged a legitimate legal wrong, medical care which they believe
fell below the standard of care and resulted in damages. It was not an
attempt to silence Dr. Demetris from making these types of reports or
diagnoses.


    B. Dr. Demetris’s report was not made in connection with
       a public issue.
   Most of the briefing in this case concerns whether child abuse is a
public issue. Dr. Demetris directs this Court to decisions from California
courts, specifically Terry v. Davis Community Church, 131 Cal. App. 4th
1534 (2005) and Cross v. Cooper, 197 Cal. App. 4th 357 (2011), arguing
specific circumstances of child abuse are public issues. The VanWinkles
argue that child abuse generally is of concern to the public, but specific,
individual reports are not. They find the reasoning in Kadambi persuasive.
See 86 F. Supp. 3d at 909 (finding practice of medicine and pharmacy are
of great public interest on a macro level, but the case’s narrow issue
involving denied patient prescriptions was not significant to the public).




8See Ind. Code §§ 31-33-18-1, -5 (making calls to DCS child abuse hotline and DCS reports of
child abuse are confidential).



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018                 Page 9 of 12
   As required by the anti-SLAPP statute, Dr. Demetris identified the
specific public issue that prompted constitutionally-protected acts in this
case as “Dr. Demetris reporting her suspicions that her patient, A.V., was
the victim of medical child abuse.” 9 Appellants’ App. Vol. 2, p.33.

   With this in mind, we note that this Court has not addressed what is or
is not a “public issue” under Indiana’s anti-SLAPP statute, and we are
doubtful an all-encompassing definition can be given. Regarding the First
Amendment, we have said that speech is in connection with a matter of
public concern if it is addressed to “‘any matter of political, social, or other
concern to the community,’ as determined by its content, form, and
context.” Love v. Rehfus, 946 N.E.2d 1, 9 n.6 (Ind. 2011) (quoting Connick v.
Myers, 461 U.S. 138, 146 (1983)). We think this is a sufficient guide to
determining what is a “public issue,” and courts should analyze the
narrow statements at issue, avoiding a sweeping view of what is
“public.” 10

   While child abuse in certain instances may be an issue of public
interest, it is not in this case. Here, the form of Dr. Demetris’s report was
confidential, including content specific to one minor, A.V., and potential
abuse by her parents. We agree with Dr. Demetris that child abuse
reporting is of general public interest and, indeed, to further that interest
the legislature has provided immunity to those who report. But that does




9 See I.C. § 34-7-7-9(b) (“The person who files a motion to dismiss must state with specificity

the public issue or issue of public interest that prompted the act in furtherance of the person’s
right of petition or free speech under the Constitution of the United States or the Constitution
of the State of Indiana.”).
10We decline to adopt the “public interest” or “public issue” categories identified in Cross v.
Cooper, 197 Cal. App. 4th at 912–14, which were derived from California’s anti-SLAPP statute
and their legislature’s directive to “construe[ the statute] broadly.” Cal. Civ. Pro. Code §
425.16 (2018). Our General Assembly has not provided a similar legislative command.
Likewise, we do not find Terry v. Davis Community Church persuasive because it is based on
California’s broad interpretation of public interest and does not involve a confidential report
to a governmental agency. 131 Cal. App. 4th at 1538–43 (applying California’s anti-SLAPP
statute to statements made by a church, pastor, and church leaders who distributed a report
to parents of youth group members detailing the church’s investigation into an inappropriate
sexual relationship between a youth group member and youth group leader).



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018                    Page 10 of 12
not make every report a newsworthy event, particularly when the
substance of the report is confidential and concerns a private matter. See
Hamilton v. Prewett, 860 N.E.2d 1234, 1248 (Ind. Ct. App. 2007). Thus,
based on the narrow content, form, and context of this report—medical
child abuse of one child—it was not a matter of public concern.


Conclusion
   Indiana’s anti-SLAPP statute was adopted in response to the discrete
problem of retaliatory lawsuits aimed at chilling constitutional rights. The
VanWinkles’ lawsuit “is not the type of lawsuit that the anti-SLAPP
statute was enacted to prevent” because it was not filed to stifle Dr.
Demetris’s “speech on a public issue or an issue of public interest,” but to
recover damages for alleged medical malpractice. Id. Thus, we reverse,
and remand for consideration of the stayed issues. 11



Rush, C.J., and David and Goff, JJ., concur.

Slaughter, J., not participating.




11   This decision expresses no opinion on the outcome of the stayed issues.



Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018              Page 11 of 12
ATTORNEYS FOR APPELLANTS
Ronald J. Waicukauski
Price Waicukauski Joven & Catlin, LLC
Indianapolis, Indiana

William W. Gooden
Maggie L. Sadler
Clark, Quinn, Moses, Scott & Grahn, LLP
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Bryce H. Bennett, Jr.
Laura S. Reed
Laura K. Binford
Courtney David Mills
Riley Bennett Egloff LLP
Indianapolis, Indiana




Indiana Supreme Court | Case No. 49S02-1711-MI-686 | May 10, 2018   Page 12 of 12
