Walnut Creek Nursey, Inc., d/b/a Alsip Home & Nursey v. Barbara Banske

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

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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.

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[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

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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.

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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

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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.

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[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.

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[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

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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

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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)

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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

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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)

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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

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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.

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[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.

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