from the Vanderburgh Superior Court Trial Court Cause No.
82D03-1312-CT-5493 The Honorable Leslie C. Shively, Judge
Attorney for Appellant Rick A. Cory Scott A. Danks Danks
& Danks Evansville, Indiana
Attorneys for Appellee Shawn Swope Michael J. DeYoung Swope
Law Offices, LLC Schererville, Indiana
Attorneys for Intervening party, safe auto insurance Brett M.
Haworth David M. Henn Henn Haworth Cummings Page Greenwood,
Charles Aillones ("Aillones") filed a negligence
claim against Glen Minton ("Minton"), alleging that
Aillones was injured during an automobile accident that was
Minton's fault. Aillones was treated by a nurse
practitioner, and during deposition, Minton's counsel
objected to testimony by the nurse practitioner regarding
whether Aillones's injuries were caused by the accident.
Aillones then filed a motion asking the Vanderburgh Superior
Court to qualify the nurse practitioner as an expert witness.
The trial court denied this motion, but certified its order
for interlocutory appeal on Aillones's request. This
court accepted interlocutory jurisdiction to address the
question of whether the trial court erred in concluding that
Aillones's witness, a nurse practitioner, cannot be an
expert witness. Concluding that a nurse practitioner can,
under the proper circumstances, be an expert witness, we
and Procedural History
On June 2, 2012, Aillones was driving his vehicle in
Evansville, Indiana when he was struck from behind by a
vehicle driven by Minton. Aillones was injured in the
collision and received treatment from Alan Swartz
("Swartz"), a licensed nurse practitioner, for a
cervical sprain and pain in his lower back.
Swartz studied nursing at the University of Southern Indiana,
where he received a bachelor's degree in nursing.
Thereafter, he continued his studies at the University of
Southern Indiana and received a master's degree to be a
nurse practitioner. Swartz is licensed and board certified to
practice as a nurse practitioner in both Kentucky and
Indiana. As a nurse practitioner, Swartz examines and treats
patients. He also interprets lab results and can prescribe
certain medications and refer patients to occupational or
physical therapy. During the course of his practice, Swartz
has seen more than 100 patients who have been injured in
Swartz first saw Aillones on June 12, 2012, when Aillones
presented with neck pain, headache, and pain in the mid-back
when he sat. Swartz diagnosed Aillones with a concussion and
cervical sprain or spondylosis. Swartz ordered a CT scan of
Aillones's brain and prescribed him a muscle relaxant and
ibuprofen for the pain.
Swartz saw Aillones again on June 29, 2012. Aillones still
complained of pain in his neck and lower back. Swartz
switched Aillones from ibuprofen to naproxen for the
musculoskeletal pain and referred him to a physical
therapist. Swartz next saw Aillones on September 12, 2012.
Aillones's condition had somewhat improved, but he still
complained of pain and indicated that he preferred ibuprofen
over naproxen. Aillones stated that his pain only became a
problem about once a week and requested either a stronger
analgesic or a referral to a pain management specialist.
Swartz reviewed the lab results he had obtained and switched
Aillones back on ibuprofen. He told Aillones to see him again
in six months.
On December 9, 2013, Aillones filed a negligence action
against Minton. During discovery, Swartz was deposed on April
22, 2016, and testified that Aillones's injuries and
improvement were consistent with soft tissue injuries.
Aillones's counsel then asked Swartz, "Based on your
experience and skill and education as a nurse practitioner,
do you have - have you formed an opinion as to whether or not
the complaints and injuries that [were] complained of by
[Aillones] were caused by a car wreck on June 2, 2012?"
Swartz replied, "Well, I wasn't there to see the
accident, but he was in some sort of trauma that would have
caused these injuries." Appellant's App. p. 72.
Aillones's counsel then asked, "Assuming we have no
other forms of trauma near that date, is it your opinion, to
a reasonable degree of medical probability, that the injuries
and complaints of Charles Aillones were caused by the
automobile accident or automobile wreck of June 2,
2012?" Id. Swartz answered, "I say
it's consistent with a motor vehicle accident, " and
after another similar question, "I think it would be
consistent with what was described to me from his injury that
he suffered." Id. at 72-73. Minton's
counsel objected to each of these questions based on a lack
of foundation for Swartz's opinions. Id.
On May 19, 2016, Aillones filed a motion titled,
"Plaintiff's Motion for Hearing on Objection
Asserted During Evidentiary Deposition and a Finding that a
Nurse Practitioner Qualifies as an Expert Witness on
Causation." Appellant's App. p. 26. After a response
by Minton, the trial court held a hearing on Aillones's
motion on July 1, 2016, at the conclusion of which the court
took the matter under advisement. on July 7, 2016, the trial
court entered an order denying Aillones's motion, which
provided in relevant part:
The court having conducted oral argument on the issue of
whether a nurse practitioner is an expert witness on
causation and having heard the argument of counsel, now rules
that a nurse practitioner in this case would not qualify as
an expert witness. The court relies upon Nasser v. St.
Vincent Hosp. and Health Services, 926 N.E.2d 43
Appellant's App. p. 22.
On August 5, 2016, Aillones filed a motion to reconsider or,
in the alternative, to certify the court's ruling for
interlocutory appeal. The trial court then granted
Aillones's request to certify its order for interlocutory
appeal. Aillones then petitioned this court to accept
interlocutory jurisdiction on September 20, 2016, which we
granted on October 25, 2016.
We review decisions concerning the admissibility of evidence
only for an abuse of discretion. Arlton v. Schraut,
936 N.E.2d 831, 836 (Ind.Ct.App. 2010), trans.
denied. An abuse of discretion occurs if the trial
court's decision is clearly erroneous and against the
logic and effect of the facts and circumstances before the
court or if its decision is without reason or is based upon
impermissible considerations. Id. However, to the
extent that the evidentiary issue depends on the construction
of a rule of evidence, and not the rule's application to
any particular set of facts, our review is de novo.
Discussion and Decision
Aillones claims that the trial court erred by concluding that
Swartz, a nurse practitioner, could not testify as an expert
witness with regard to the causation of Aillones's
injuries. The admission of the testimony of expert witnesses
is governed by Indiana Evidence Rule 702, which provides in
(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.
Thus, for a witness to qualify as an expert, the subject
matter of the witness's testimony must be distinctly
related to some scientific field, business, or profession
beyond the knowledge of the average person, and the witness
must have sufficient skill, knowledge, or experience in that
area so that the opinion will aid the trier of fact.
Hastings v. State, 58 N.E.3d 919, 924 (Ind.Ct.App.
2016) (Taylor v. State, 710 N.E.2d 921, 923 (Ind.
1999)). "'If the witness has any peculiar knowledge
or experience not common to the world that renders the
witness's opinion founded upon that knowledge any aid to
the trier of fact, the witness may testify as an
expert.'" Id. (quoting 13 Indiana Practice,
Indiana Evidence § 702.107 (3d ed.)). As we noted in
Hastings, Indiana courts have allowed testimony from
experts who had no formal training, e.g. drug users who
testified regarding the identity of drugs based on their own
experience. Id. (citing Clark v. State, 6
N.E.3d 992, 998 (Ind.Ct.App. 2014)).
The trial court here based its decision on the opinion of
this court in Nasser v. St. Vincent Hospital & Health
Services, 926 N.E.2d 43 (Ind.Ct.App. 2010). In that
case, the plaintiff sued the hospital claiming malpractice
because the nursing staff at the hospital did not respond to
the plaintiff's repeated calls for help, thereby leaving
the plaintiff alone to deliver two stillborn fetuses in her
hospital bed. Id. at 44. The convened medical review
panel consisted of two medical doctors and one registered
nurse. Id. The two doctors concluded that the
hospital did not fail to meet the applicable standard of care
and that the conduct complained of was not a factor in the
plaintiff's damages. Id. The nurse, however,
concluded that the hospital did fail to meet the applicable
standard of care and this failure was a factor of the
resultant damages. Id.
Pursuant to the applicable portions of the Medical
Malpractice Act ("MMA"), the defendant hospital
filed for summary judgment and, in support of its motion,
submitted the opinion of the physicians comprising the
majority of the medical review panel. Nasser's designated
evidence in response to the hospital's motion included
the opinion of the nurse who had dissented from the majority
in the medical review panel. The trial court granted summary
judgment in favor of the hospital, concluding that Nasser was
required to counter the opinion of the medical review board
with expert testimony from a physician. Id. at 47.
On appeal, we noted that, pursuant to the MMA, nurses are
qualified to serve on medical review panels, the opinion of
the review panel are admissible as evidence, and members of
the panel may testify. Id. at 51-52 (citing Ind.
Code § 34-18-10-23). However, we held that Indiana
Evidence Rule 702 prevents nurses from qualifying as experts
regarding medical causation, even when they served on the
medical review panel. Id. at 52. Because Nasser had
not designated any other evidence regarding causation, we
affirmed the trial court's grant of summary judgment.
[¶15]Nasser relied upon Long v. Methodist Hospital of
Indiana, Inc., 699 N.E.2d 1164 (Ind.Ct.App. 1998), which
addressed whether a nurse could offer expert testimony as to
the medical causes of injuries. The Long court held
that because there is a significant difference in the
education, training, and authority to diagnose and treat
diseases between physicians and nurses, the determination of
the medical cause of injuries, which is obtained through
diagnosis, for purposes of offering expert testimony is
beyond the scope of nurses' professional expertise.
Id. at 1169. Therefore, the Long court
concluded that the nurse was not qualified to offer expert
testimony on the issue of whether Methodist's conduct
caused the plaintiff's injuries. Id.
Consequently, the Long court held that the trial
court did not err in striking the nurse's affidavit as to
the issue of causation.Id.; see also Clarian
Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 398
(Ind.Ct.App. 2010) ("Based upon Long, we
conclude that [the nurse's] affidavit ...