from the Vigo Superior Court Trial Court Cause No.
84D02-1201-CT-228 The Honorable Lakshmi Reddy, Judge.
Attorneys for Appellant David W. Stone IV Anderson, Indiana
John P. Nichols Anderson & Nichols Terre Haute, Indiana
Attorneys for Appellee Mark D. Hassler Jacob H. Miller Hunt,
Hassler, Kondras & Miller LLP Terre Haute, IN
of the Case
Myra Duby as Guardian of L.H., a minor, appeals the trial
court's entry of summary judgment in favor of Christopher
Woolf on Duby's complaint alleging Woolf's
negligence. Duby presents three issues for our review, which
we consolidate and restate as:
1. Whether the trial court abused its discretion when it
excluded from evidence expert testimony proffered by Duby.
2. Whether the trial court erred when it entered summary
judgment in favor of Woolf.
and Procedural History
On January 21, 2004, Duby's daughter A.S. gave birth to
L.H. While she was pregnant with L.H., A.S. had used
methamphetamine "daily, " and she also smoked
marijuana. Appellant's App. Vol. III at 32. In March
2004, L.H. and his older sister began living with Duby at her
rental house in Terre Haute. In December 2005, Dr. Jennifer
Crocker evaluated L.H. regarding "developmental delay,
toe walking, blank stares, and speech delay."
Id. at 54. In January 2006, Dr. James Pappas
evaluated L.H. and "felt that he met diagnostic criteria
for autism spectrum and began a workup to rule out another
etiology for his developmental delay[.]" Id.
Testing done at that time revealed that L.H. had "a
negative lead level[.]" Id. L.H. received
occupational and developmental therapy through First Steps,
and Dr. Crocker referred him to an autism clinic.
In July 2007, a physician determined that L.H. had elevated
lead levels in his blood, specifically twenty micrograms of
lead per deciliter of blood. L.H. continued to suffer from
developmental delays and autism. After someone from the Vigo
County Health Department found lead paint and lead dust in
Duby's rental house, which was owned by Woolf, Duby and
the children moved out.
On January 12, 2012, Duby filed a complaint against Woolf
alleging that his negligence had caused L.H.'s lead
exposure which, in turn, had caused "significant and
severe physical and cognitive
impairments." Appellant's App. Vol. II at 19.
Leading up to trial, on September 25, 2015, Duby filed her
final witness and exhibit list, which listed as an expert
witness Angela Boyd, R.N. On October 2, Woolf filed a motion
to exclude Boyd's expert testimony, and on October 24,
the trial court ordered that Boyd's proffered expert
testimony would be excluded from the evidence. In particular,
the court found and concluded as follows:
Defendant argues that Plaintiff's witness, Angela Marie
Boyd, R[.]N[.], should be excluded from providing expert
opinion testimony under Indiana Rules of Evidence 702 for the
following reasons: (1) she lacks sufficient knowledge, skill,
experience, training, or education to testify in the form of
an opinion with respect to the cause of the Plaintiff's
illness; (2) the testimony would not help the trier of fact
to understand the evidence or to determine a fact in issue;
and (3) she is incapable of articulating the scientific
principles upon which her opinion rests. Plaintiff, on the
other hand, argues that Angela Marie Boyd, R[.]N[.] does have
sufficient knowledge, skill, experience, training and
education because she has more training in the area of lead
poisoning than a nurse and most doctors.
Plaintiff states in the Response Brief that Angela Marie
Boyd's opinion is that the Plaintiff's various health
issues were a result of lead exposure. In other words,
Plaintiff's nurse expert is prepared to testify as to the
causation of Plaintiff's health issues. The Indiana
appellate courts have generally concluded that nurses cannot
"testify as expert witnesses regarding medical causation
and medical standards of care." Curts v.
Miller's Health Systems, Inc., 972 N.E.2d 966, 969