The Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka, Appellants-Defendants,
B.T., by his mother and next friend, Melissa Troutman, Appellee-Plaintiff.
from the Marion Superior Court. The Honorable Cynthia J.
Ayers, Judge. Trial Court Case No. 49D04-1411-CT-36677
ATTORNEYS FOR APPELLANTS Edward D. D'Arcy, Jr. Michael J.
Progar Merrillville, Indiana Sheryl A. Bradtke McNeil McNeil
Kopka Pinkus Dolin & Eads, LLC Crown Point, Indiana.
ATTORNEY FOR APPELLEE Mark A. Busby Indianapolis, Indiana.
BARTEAU, SENIOR JUDGE
of the Case
In this interlocutory appeal, we are asked to determine
whether testimony obtained by facilitated communication is
admissible in evidence. In this case of first impression in
Indiana, we hold that in certain situations it can be. Here,
we affirm the trial court's preliminary decision
regarding the procedure for determining the admissibility of
the contested evidence.
and Procedural History
B.T. is a minor, non-verbal child with severe autism, who was
fourteen years old at the time of the trial court's
order. He is unable to verbally communicate intelligibly.
When B.T. was twelve years old, he received therapy for his
autism through Hope Source, Max Sigmon, Julie Brant Gordon,
and Dr. Momi Yamanaka (collectively "Hope Source").
B.T. began typing sentences, via facilitated communication,
using a supportive typist, also known as a facilitator, in
"Facilitated communication is defined as follows: a
method of helping an individual produce typewritten material
on a keyboard or communication device with the intention of
compensating for difficulties in motor control."
Appellants' App. Vol. I, p. 96. "The technique was
developed by Rosemary Crossley in Australia in the 1970's
and introduced to the United States by Dr. Douglas Biklin in
1989." Id. When facilitated communication is
initially being used, the communicator typically is supported
above or below the wrist by the facilitator. Id. The
goal is for the facilitator, over time, to move the support
further back on the arm or shoulder so that there is less
direct contact until there is no contact. Id. That
technique is known as "fading." Id. The
facilitator applies backward pressure and centers the
communicator after each letter is typed to prevent the
communicator from repeatedly striking the same key, one of
the manifestations of behavior also known as perseveration.
Id. Because facilitated communication is a joint
activity, however, there is potential for what is known as
"cuing, " where the facilitator may knowingly or
unknowingly anticipate or in another way assist the
communicator in selecting certain letters. Id.
B.T. uses an iPad containing an assistive typing
program/application that reads each letter and then each word
typed by B.T. B.T.'s facilitator stands or sits along his
right shoulder holding the shoulder of his shirt. He no
longer requires wrist or elbow support during his
communications. Prior to the use of facilitated
communication, B.T. could not communicate in any typed or
written form. Facilitated communication is now the sole
method by which B.T. can communicate.
The following allegations were made in the complaint against
Hope Source. In November 2013, B.T.'s behavior changed.
He expressed via facilitated communication that he did not
like to work with his guide at Hope Source, Max Sigmon. After
being dropped off one morning, B.T. vomited upon seeing
Sigmon approaching him, and B.T.'s mother was called to
return to the school to take him home. Thereafter, B.T. began
sleeping in his parents' bed every night. At roughly the
same time period, B.T.'s music therapist, who had
allegedly been told by Julie Gordon, President of Hope
Source, that B.T. "just plays dumb here for us and
won't type, " advised Melissa that she noticed there
was something not quite right with B.T. Appellants' App.
Vol. II, p. 13.
B.T. typed to his music therapist that it would be hard to
trust her because of "other therapists."
Id. During an assistive typing session with his
mother, she asked B.T. why he did not like working with
Sigmon. He responded that he did not want to get in trouble,
that Gordon was Sigmon's sister, and that "I
don't want to make anyone mad." Id. At a
meeting with Gordon and Lisa Chandler, Programs Director at
Hope Source, B.T.'s mother expressed her concern that
B.T. did not like Sigmon and asked that he not be forced to
work with him. Gordon informed B.T.'s mother that B.T.
was not allowed to decide which staff member he wished to
work with and stated that Sigmon would continue to be
During another assisted typing session with his mother, B.T.
allegedly typed that he did not like Sigmon. After his mother
asked him why, B.T. responded that "he thinks im
retarded." Id. at 14. B.T. also typed that
Sigmon was scary and asked if he was going to get in trouble
if he did not want to be around him anymore. B.T. then typed
that he did not want to discuss the matter further.
B.T.'s mother resumed the conversation later that
evening, however, during which she asked B.T. if Sigmon had
ever touched him inappropriately. B.T. is alleged to have
typed that Sigmon placed his hand on B.T.'s butt and on
his penis on two different occasions during the summer.
Melissa notified Hope Source that B.T. would no longer be
attending Hope Source for therapy. B.T.'s parents met
with Dr. Yamanaka and shared B.T.'s statements with her.
Yamanaka allegedly stated to Melissa that she took "full
responsibility for [B.T.] still working with [Sigmon]."
An investigation was conducted by the Indiana Department of
Child Services. The complaint was deemed
"unsubstantiated" in a report filed on May 19,
2014. Id. at 63. The family case manager noted that
on numerous occasions during his interview, B.T. would look
away from the keyboard while typing with the assistance of
his usual supportive typist, who was not his mother.
On November 7, 2014, B.T., by his next friend, his mother,
Melissa Troutman, filed a civil lawsuit against Sigmon; his
sister, Julie Brant Gordon, President of The Hope Source; Dr.
Momi Yamanaka, a licensed psychologist and Clinical
Supervisor at The Hope Source; and, The Hope Source.
Hope Source sought to depose B.T. prior to trial. On
September 17, 2015, Sigmon filed a motion to bar the use of a
facilitator at B.T.'s deposition. The other defendants
joined in Sigmon's motion and filed their own motion
seeking to bar the use of facilitated communication for the
deposition or any future proceedings in the case. B.T.
through his mother, Melissa, filed an objection.
On March 23, 2016, the trial court issued an order denying
the request to bar the use of facilitated communication
during the deposition. Appellants' App. Vol. II, pp.
95-100. The trial court granted Hope Source's petition to
certify the decision for interlocutory appeal. A motions
panel of this Court accepted jurisdiction of the
interlocutory appeal, but, while retaining jurisdiction,
remanded the case to the trial court, directing it to hold a
hearing pursuant to Indiana Rule of Evidence 702 to create a
record regarding the science surrounding facilitated
communication and its admissibility. Id. at 108-09.
The trial court scheduled a hearing as ordered by this Court,
but the parties and the trial court quickly realized that the
time allotted would not be sufficient to provide an adequate
record to aid the trial court in issuing its order for review
by this Court. A brief enlargement of time was granted by
this Court, and, after another hearing, the trial court
entered its order finding, in pertinent part, that the
science surrounding facilitated communication is largely
unsettled. Appellants' App. Vol. III, p. 66. As such, the
trial court found that B.T. carried the burden of
establishing that he is the one communicating by ...