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Duby v. Woolf

Court of Appeals of Indiana

May 30, 2017

Myra Duby as Guardian of L.H., a Minor, Appellant-Plaintiff,
v.
Christopher Woolf, Appellee-Defendant.

         Appeal 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

          Najam, Judge.

         Statement of the Case

         [¶1] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.[1] 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.

         [¶5] 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."[2] 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 ...

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