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Walnut Creek Nursery, Inc. v. Banske

Court of Appeals of Indiana

February 19, 2015

Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery, Appellant-Defendant,
Barbara Banske, Appellee-Plaintiff

Appeal from the Lake Superior Court. The Honorable John R. Pera, Judge. Cause No. 45D10-1401-CT-2.

ATTORNEYS FOR APPELLANT: William H. Kelley, Thaddeus Craig Kelley, Kelley & Belcher, Bloomington, Indiana.

ATTORNEYS FOR AMICUS CURIAE: Defense Trial Counsel of Indiana, Donald B. Kite, Sr., Wuertz Law Office, LLC, Indianapolis, Indiana; Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana.

ATTORNEY FOR APPELLEE: Michael E. Polen, Jr., Rubino, Ruman, Crosmer & Polen, Dyer, Indiana.

ATTORNEY FOR AMICUS CURIAE: Indiana Trial Lawyers Associatin, Lance R. Ladendorf, Ladendorf Law, Indianapolis, Indiana.

Sharpnack, Senior Judge. Crone, J., and Bradford, J., concur.


Page 649

Sharpnack, Senior Judge

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.

Page 650


[¶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.

[¶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 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

Page 651

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 ...

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