Walnut Creek Nursey, Inc., d/b/a Alsip Home & Nursey v. Barbara Banske , 2015 Ind. App. LEXIS 100 ( 2015 )

Feb 19 2015, 10:06 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
William H. Kelley Michael E. Polen, Jr.
Thaddeus Craig Kelley Rubino, Ruman, Crosmer & Polen
Kelley & Belcher Dyer, Indiana
Bloomington, Indiana
ATTORNEYS FOR AMICUS CURIAE ATTORNEY FOR AMICUS CURIAE
Defense Trial Counsel of Indiana Indiana Trial Lawyers Association
Donald B. Kite, Sr. Lance R. Ladendorf
Wuertz Law Office, LLC Ladendorf Law
Indianapolis, Indiana Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Walnut Creek Nursery, Inc., February 19, 2015
d/b/a Alsip Home & Nursery, Court of Appeals Cause No.
45A05-1406-CT-256
Appellant-Defendant,
Appeal from the Lake Superior
v. Court.
The Honorable John R. Pera, Judge.
Cause No. 45D10-1401-CT-2
Barbara Banske,
Appellee-Plaintiff.
Sharpnack, Senior Judge
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 1 of 15
Statement of the Case
[1] Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery (“Alsip”), appeals
from a jury’s verdict in favor of Barbara Banske, in a negligence action brought
by Banske. Alsip contends that the trial court committed reversible error by
allowing a naprapath, who was licensed as such in Illinois, to testify about her
treatment of Banske in Illinois. Alsip claims that the testimony should have
been excluded and that a new trial should be held during which that testimony
is not admitted. Concluding that no error is preserved for our review, we
affirm.
Issue
[2] Alsip presents the following issue for our review: Whether the trial court
committed reversible error by allowing the naprapath’s testimony at trial.
Facts and Procedural History
[3] On February 28, 2011, Banske, who lives in Lansing, Illinois, slipped on a floor
mat and fell on her side while on Alsip’s premises located in St. John, Indiana.
Banske sought treatment for her injuries. Banske had previously sought
treatment from Laura Grice, a naprapath licensed in Illinois, and sought
treatment from Grice in Illinois after her slip and fall. Additional information
about naprapathy and the treatment Banske received will be provided later in
this opinion.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 2 of 15
[4] Banske filed a complaint against Alsip seeking to recover damages for the
injuries she alleged she sustained from her fall. On July 17, 2013, Alsip took a
discovery deposition of Grice in Illinois, and both counsel for Alsip and Banske
questioned her. On November 7, 2013, Alsip filed a motion in limine
requesting the exclusion of Grice’s testimony, alleging that Grice was not
qualified to testify about 1) Banske’s medical condition, 2) the proximate cause
of Banske’s stated physical or emotional condition, 3) Banske’s truthfulness or
honesty, or 4) the amounts that Grice charged for her services.
[5] On December 5, 2013, a final pre-trial conference was held before Lake
Superior Court Judge John M. Sedia, who considered Alsip’s motion in limine.
Judge Sedia denied the motion in limine, concluding that Grice could testify as
a naprapath, but that her testimony would be limited as follows:
This is a little different. This deals with treatment of injuries. I guess
what I would rule is that I think she can testify, but she has to testify
only within the confines of her skill. In other words, she can’t say
well, you know, I did soft manipulation on her, but then I looked at
the X-ray, and the X-ray showed this. So I think, you know, this is
what caused it. Or, I talked to a chiropractor, we conferred, and we
agreed that—you know, she can’t do any of that.
She can just—you know, whatever the limits of her ability—of her
qualification and licensure, she can testi—I think she can testify to
because she’s licensed, albeit not in Indiana, and she did the treatment
in Illinois, and she’s familiar with the patient, but I—you know, I –but
her testimony has to be very limited, and so that’s what I’ll rule.
And I guess in the context of a motion in limine, you know, and I want
those words that she’s limited to testifying as to the qualifications of
her particular discipline. You know, it’s going to come up anyway
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 3 of 15
possibly where, you know, there will be an objection anyway, you
know, of how –of whether or not she’s, you know, running afield of
that.
So I guess I want to be prepared to deal with that as well, because I’m
not sure, you know—I have a general idea what naprapaths do, but
certainly, you know, I’ve never been treated by one, and I don’t know,
and I’m sure [defense counsel] will be very attuned to whether or not
he thinks that she’s exceeding the limits of her qualifications, and, you
know, just looking at his motion, you know, and he’s right. You
know, we don’t have any case law that says yes or no, so maybe this
will be ripe for appeal, another chance for me to get reversed maybe, I
don’t know, but that’s—I think she can testify, but I think she has to
stay within the confines of her particular discipline.
Appellant’s App. pp. 58-59.
[6] Judge Sedia later recused from the case and the matter was transferred to Lake
Superior Court Judge John R. Pera. At the jury trial, Banske introduced
Grice’s testimony by reading excerpts of her deposition. Before the deposition
was read, Alsip objected on the grounds raised in the motion in limine. The
following arguments were made regarding the deposition testimony:
[DEFENSE]: This witness’s testimony is the subject of our motion in
limine. We want to renew our objection to her qualifications to give
testimony in this case. She’s not a medical doctor or chiropractor
licensed to do anything in the State of Indiana. She’s admitted she
can’t give testimony as to causation of injuries. We don’t think she’s
qualified as an expert in this case.
THE COURT: What do you—
[PLAINTIFF]: Doctor—she’s a doctor of naprapathy. She’s licensed
through the State of Illinois. All the treatment happened in Illinois.
THE COURT: She’s licensed there?
[PLAINTIFF]: And she’s licensed in the State of Illinois. None of the
treatment took place in Indiana.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 4 of 15
THE COURT: And what was the ruling on the motion in limine?
[DEFENSE]: It was denied. Judge Sedia said she could testify within
her qualifications.
THE COURT: All right. That’s my ruling as well.
[DEFENSE]: All right. Thank you.
Tr. pp. 235-36.
[7] Excerpts of the direct examination and cross-examination of Grice’s deposition
were read into evidence by both parties without objections during the
testimony. Grice testified that she received her degree from the Chicago
National College of Naprapathy. She had not received a bachelor’s degree, and
other than her naprapathy degree had no medical, chiropractic, or osteopathic
training. Grice neither practiced nor was licensed to practice naprapathy in
Indiana.
[8] Grice testified that naprapathy is “soft tissue manipulation, connective tissue
manipulation” with the goal of “assist[ing] the body in healing itself.” Tr. pp.
251-52. Naprapathy involves application of pressure to points on a person’s
body that “releases the contracture or tightness of the soft tissue to facilitate
opening up the circulation.” Id. at 252-53.
[9] Grice testified that as a naprapath she cannot prescribe medications, take x-
rays, or perform invasive surgery or diagnostic testing. She does regularly
review physicians’ reports and takes down a patient’s medical history. Grice
could not recall if medical doctors had ever referred patients to her for
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 5 of 15
treatment, but that those referrals are “not the normal situation” in her practice.
Id. at 255-56.
[10] Grice had treated Banske since 2007, and before 2011 had treated Banske only
for pain in the right knee. In May 2008, during Banske’s last visit for treatment
with Grice prior to Banske’s fall, Banske did not complain about any problems
in her lower back, left side, left hip, left shoulder, or left leg.
[11] March 8, 2011 was Banske’s first visit for treatment with Grice after her fall.
She told Grice about the fall and related that she was experiencing pain on the
left side of her body. Grice conducted objective tests on Banske and found
muscle spasms in the trapezius, the left gluteus, the piriformis, and the
hamstrings, and found trigger points. Grice also performed a straight leg raising
test and found radiating pain in Banske’s legs. Grice also found that Banske’s
pelvis was in an abnormal position.
[12] Grice continued treating Banske for more than a year, and testified that Banske
followed her recommendations. Grice’s usual treatment involves using her
hands, palpating for contractures, and manipulating the connective tissue to
release the contracture. Grice also applied cryotherapy, which involves the
application of an analgesic called Sombra to the inflamed areas of Bankse’s
body. Sombra is only obtainable by medical doctors, chiropractors, or
naprapaths. Grice further testified that Banske, who had always been cheerful
and upbeat, was sad after the fall because she could not perform some of the
activities she could do in the past.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 6 of 15
[13] After the deposition was read, Banske introduced the videotaped deposition of
Ram Aribindi, M.D., an orthopedic surgeon practicing in Olympia Fields,
Illinois, who treated Banske. Dr. Aribindi testified that Banske first visited him
on March 9, 2011. During that visit, Banske told Dr. Aribindi about her fall
and complained of pain in her left wrist, bruising on the left buttock region,
pain in the knee, and pain and swelling in her left ankle. Dr. Aribindi
examined her and diagnosed her with a left ankle sprain, left knee pain, and left
wrist pain, all caused or aggravated by the fall. He further testified that because
Banske was sixty-six years old at the time of her fall, the fall may have
aggravated arthritic changes in Banske’s left side and left knee.
[14] Dr. Aribindi gave Banske a steroid injection in her left knee, fitted a brace over
her left wrist, gave her a lace up brace over her left ankle, ordered her to refrain
from lifting or carrying weights with her left arm, and prescribed Naproxen.
Banske saw Dr. Aribindi three weeks later. At that appointment Dr. Aribindi
determined that Banske suffered from plantar fasciitis, aggravation of
underlying arthritis in her left knee, and arthritic changes in her thumb, wrist,
and hand. Banske was fitted with a nighttime splint for the fasciitis, and Dr.
Aribindi referred her to a physical therapist. On Banske’s next appointment
with Dr. Aribindi, he noted that she continued to suffer her previous pain, in
addition to pain in her left shoulder girdle. Dr. Aribindi ordered an MRI of
Banske’s shoulder and ordered a left CAM walker boot to immobilize Banske’s
foot.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 7 of 15
[15] Banske’s MRI revealed that she had suffered a rotator cuff tear. Banske elected
to have a left shoulder arthroscopy, and Dr. Aribindi gave her a steroid
injection in the left wrist. At Banske’s next appointment on June 6, 2011, Dr.
Aribindi noted that her symptoms had improved. Dr. Aribindi noted on
November 6, 2011, that although Banske complained of lower back pain, he
declined to attribute that pain to the fall.
[16] Dr. Aribindi testified that all of the treatment he provided to Banske was
reasonable and necessary, and that the opinions he expressed in his testimony
were to a reasonable degree of medical certainty. He concluded that Banske’s
fall caused her left shoulder pain, aggravation of underlying left knee
osteoarthritis, left wrist pain, a left ankle sprain, and left foot pain. In his
opinion, her fall also caused or aggravated a rotator cuff tear in Banske’s left
shoulder.
[17] Banske testified that in addition to Grice and Dr. Aribindi, she received
treatment after the fall in the emergency room of St. Anthony Medical Center
in Crown Point, Indiana.
[18] Pursuant to the parties’ stipulation, the trial court admitted the following
medical records related to Banske’s treatment: 1) Dr. Aribindi’s records; 2)
emergency room records from St. Anthony Medical Center; and 3) physical
therapy records from Ingalls Center for Outpatient Rehab. Later, Banske
offered Grice’s medical records into evidence. Counsel for Alsip specifically
stated that there was no objection to the admission of that evidence. Banske’s
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 8 of 15
medical bills and her medical specials summary, which reflected $14,441.04 in
claimed medical expenses were also admitted.
[19] In addition to the medical testimony, Banske called lay witnesses, including her
husband, her son, and her best friend, to testify about their observations of the
differences in Banske’s physical condition and behavior before and after she
slipped and fell. Banske, a gym teacher at St. Agnes School in Chicago
Heights, Illinois, found her work more difficult after her fall and her physical
limitations prevented her from engaging in many of the physical activities she
had previously enjoyed.
[20] At the conclusion of the jury trial, the jury returned a verdict in favor of Banske,
finding her to be ten percent at fault and Alsip to be ninety percent at fault. The
jury awarded Banske $243,000 in damages, and the trial court entered judgment
on the jury’s verdict. Alsip now appeals the judgment.
Discussion and Decision
[21] Alsip presents several issues for our review, but the dispositive issue involves
the admissibility of Grice’s testimony. “Only trial objections, not motions in
limine, are effective to preserve claims of error for appellate review.” Raess v.
Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008). A trial court’s ruling on a motion
in limine does not determine the ultimate admissibility of the evidence; that
determination is made by the trial court in the context of the trial itself. Clausen
v. State, 622 N.E.2d 925, 927 (Ind. 1993). “Absent either a ruling admitting
evidence accompanied by a timely objection or a ruling excluding evidence
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 9 of 15
accompanied by a proper offer of proof, there is no basis for a claim of error.”
Hollowell v. State, 753 N.E.2d 612, 615-16 (Ind. 2001).
[22] “The trial court has broad discretion to rule on the admissibility of evidence.”
Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). “We review its rulings ‘for
abuse of that discretion and reverse only when admission is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.’” Id. at 260 (quoting Clark v. State, 994 N.E.2d 252, 259 (Ind.
2013)).
[23] “Admission of a deposition into evidence is reviewable only for an abuse of
discretion.” Drummond v. State, 467 N.E.2d 742, 746 (Ind. 1984). Our Supreme
Court has “previously held that publication of a deposition is required in order
to place the deposition before the court.” Id. “The essence of the requirement
is that because a party need not object to questions on the grounds of
admissibility when the deposition is taken, the party can ‘[w]ait and make his
objection at trial or hearing when the deposition is read into evidence or
otherwise used.’” Id. (quoting Augustine v. First Fed. Sav. & Loan Ass’n of Gary,
270 Ind. 238, 241, 384 N.E.2d 1018, 1020 (1979)).
[24] Indiana Trial Rule 32(A) provides that “[a]t the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the Rules of Evidence applied as though the witness were then
present and testifying, may be used against any party who was present or
represented at the taking of the deposition. . .” Indiana Trial Rule 32(B)
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 10 of 15
additionally provides that “objection may be made at the trial or hearing to
receiving in evidence any depositions or part thereof for any reason which
would require the exclusion of the evidence if the witness were then present and
testifying.” Therefore, when the deposition or parts of a deposition are read
into evidence, an objection to the testimony must be made as if the witness
were present at trial and testifying in person. Receipt of evidence by reading a
deposition is akin to live testimony, and objections must be made.
[25] Alsip did not object to any of the questions and answers of the portions of
Grice’s deposition read by Banske’s counsel, and later did not object to the
admission of Grice’s medical records of her treatment of Banske. As the record
shows, clearly Judge Sedia expected Alsip’s counsel to object to the portions of
Grice’s testimony where he felt that Grice was getting beyond the parameters of
her qualifications and profession. Whether Judge Pera also had the same
expectation or not, it was incumbent upon Alsip to object as needed. A party
must make a contemporaneous objection at the time the evidence is offered.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). By making a contemporaneous
objection, the party affords the trial court the opportunity to make a final ruling
on the matter in the context in which the evidence is introduced. Jackson v.
State, 735 N.E.2d 1146, 1152 (Ind. 2000). “The failure to make a
contemporaneous objection to the admission of evidence at trial results in
waiver of the error on appeal.” Id.
[26] Here, in the absence of an objection, Alsip has waived all issues of the
admissibility of the deposition testimony, save whether in Indiana as a matter of
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 11 of 15
law a naprapath may not testify as to the treatment of a patient. This appears to
be an issue of first impression in Indiana.
[27] Indiana Evidence Rule 702 provides guidance in deciding this issue and reads
as follows:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the expert testimony rests upon reliable scientific principles.
[28] Because Indiana does not license naprapaths, and Grice was licensed to practice
and treated Banske in Illinois, we turn to Illinois law to help understand the
matter. The Naprapathic Practice Act is codified at Chapter 225 Illinois
Compiled Statutes Annotated Act 63. In Illinois, where Grice is licensed to
practice, naprapathy is a practice that is subject to regulation and control in the
public interest by the Department of Financial and Professional Regulation
(“the Department”). 225 Ill. Comp. Stat. Ann. 63/10 (West 2012) & 225 Ill.
Comp. Stat. Ann. 63/5 (1993). No person is allowed to practice naprapathy in
Illinois without a license issued by the Department. 225 Ill. Comp. Stat. Ann.
63/20. In order to obtain a license, a person must 1) be at least eighteen years
of age and be of good moral character, 2) have graduated from a college level
program of two years or its equivalent as approved by the Department, 3) have
graduated from a curriculum in naprapathy as approved by the Department, 4)
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 12 of 15
have passed an examination to determine the person’s fitness to practice
naprapathy, and 5) have met all other requirements of the Act. 225 Ill. Comp.
Stat. Ann. 63/17 (West 2012).
[29] The statutory definition of the practice of naprapathy in Illinois is as follows:
Naprapathic practice means the evaluation of persons with connective
tissue disorders through the use of naprapathic case history and
palpation or treatment of persons by the use of connective tissue
manipulation, therapeutic and rehabilitative exercise, postural
counseling, nutritional counseling, and the use of the effective
properties of physical measures of heat, cold, light, water, radiant
energy, electricity, sound and air, and assistive devices for the purpose
of preventing, correcting, or alleviating a physical disability.
Naprapathic practice includes, but is not limited to, the treatment of
contractures, muscle spasms, inflammation, scar tissue formation,
adhesions, lesions, laxity, hypotonicity, rigidity, structural imbalance,
bruising, contusions, muscular atrophy, and partial separation of
connective tissue fibers.
Naprapathic practice also includes: (a) performance of specialized
tests and measurements, (b) administration of specialized treatment
procedures, (c) interpretation of referrals from licensed physicians,
dentists, and podiatric physicians, (d) establishment and modification
of naprapathic treatment programs, and (e) supervision or teaching of
naprapathy.
Naprapathic practice does not include radiology, surgery,
pharmacology, invasive diagnostic testing, or determination of a
differential diagnosis; provided, however, the limitation on
determining a differential diagnosis shall not in any manner limit a
naprapath licensed under this Act from performing an evaluation
authorized under this Act. A naprapath licensed under this Act who is
not also licensed as a physical therapist under the Illinois Physical
Therapy Act shall not hold himself or herself out as qualified to
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 13 of 15
provide physical therapy or physiotherapy services. Nothing in this
Section shall limit a naprapath from employing appropriate
naprapathic techniques that he or she is educated and licensed to
perform. A naprapath shall refer to a licensed physician, dentist, or
podiatric physician any patient whose medical condition should, at the
time of evaluation or treatment, be determined to be beyond the scope
of practice of the naprapath.
225 Ill. Comp. Stat. Ann. 63/15.
[30] The statutes regulating the practice of naprapathy reflect that Grice’s testimony,
which was expert but not scientific, could be helpful to assist the finder of fact’s
comprehension of the nature of the injuries Grice attempted to treat and the
naprapathic methods used to treat the injuries.
[31] In Kyowski v. Burns, 388 N.E.2d 770 (Ill. App. Ct. 1979), the Illinois Court of
Appeals addressed the trial court’s decision to strike the testimony of a
naprapath who treated a personal injury plaintiff on nine occasions after the
date she was struck by the defendant’s automobile. The plaintiff argued on
appeal that the trial court erred by striking the testimony on the ground that the
naprapath was not licensed. 388 N.E.2d at 1017. However, the record
reflected that the testimony was excluded because the naprapath’s treatment of
the plaintiff’s leg was not sufficiently connected to the alleged injuries from the
accident. Id. at 1017-18. The Illinois Court of Appeals held that the trial court
did not abuse its discretion in striking the testimony on the ground that without
a connection between his treatment and the plaintiff’s accident, the testimony
was irrelevant. Id.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 14 of 15
[32] Applying the rationale used in Kyowski to the facts of this case, we conclude
that Grice’s testimony about her treatment of Banske’s injuries was sufficiently
connected to Banske’s slip and fall. Grice had treated Banske before and after
her slip and fall and testified about the difference in Banske’s health from the
stand point of a naprapath. The trial court did not err as a matter of law by
admitting Grice’s testimony. The evidence was relevant and helpful to the jury.
[33] We save the resolution of the limitations on the testimony of a naprapath for
another day.
Conclusion
[34] In light of the foregoing, we affirm the decision of the trial court.
[35] Affirmed.
[36] Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015 Page 15 of 15