                                                                  Feb 19 2015, 10:06 am




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
William H. Kelley                                          Michael E. Polen, Jr.
Thaddeus Craig Kelley                                      Rubino, Ruman, Crosmer & Polen
Kelley & Belcher                                           Dyer, Indiana
Bloomington, Indiana

ATTORNEYS FOR AMICUS CURIAE                                ATTORNEY FOR AMICUS CURIAE
Defense Trial Counsel of Indiana                           Indiana Trial Lawyers Association
Donald B. Kite, Sr.                                        Lance R. Ladendorf
Wuertz Law Office, LLC                                     Ladendorf Law
Indianapolis, Indiana                                      Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Walnut Creek Nursery, Inc.,                               February 19, 2015
d/b/a Alsip Home & Nursery,                               Court of Appeals Cause No.
                                                          45A05-1406-CT-256
Appellant-Defendant,
                                                          Appeal from the Lake Superior
        v.                                                Court.
                                                          The Honorable John R. Pera, Judge.
                                                          Cause No. 45D10-1401-CT-2
Barbara Banske,
Appellee-Plaintiff.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015               Page 1 of 15
                                       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.


                                                      Issue
[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.




      Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 2 of 15
[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

      Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015          Page 3 of 15
              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 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

      following arguments were made regarding the deposition testimony:

              [DEFENSE]: This witness’s testimony is the subject of our motion in
              limine. We want to renew our objection to her qualifications to give
              testimony in this case. She’s not a medical doctor or chiropractor
              licensed to do anything in the State of Indiana. She’s admitted she
              can’t give testimony as to causation of injuries. We don’t think she’s
              qualified as an expert in this case.
              THE COURT: What do you—
              [PLAINTIFF]: Doctor—she’s a doctor of naprapathy. She’s licensed
              through the State of Illinois. All the treatment happened in Illinois.
              THE COURT: She’s licensed there?
              [PLAINTIFF]: And she’s licensed in the State of Illinois. None of the
              treatment took place in Indiana.

      Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015     Page 4 of 15
              THE COURT: And what was the ruling on the motion in limine?
              [DEFENSE]: It was denied. Judge Sedia said she could testify within
              her qualifications.
              THE COURT: All right. That’s my ruling as well.
              [DEFENSE]: All right. Thank you.


      Tr. pp. 235-36.


[7]   Excerpts of the direct examination and cross-examination of Grice’s deposition

      were read into evidence by both parties without objections during the

      testimony. Grice testified that she received her degree from the Chicago

      National College of Naprapathy. She had not received a bachelor’s degree, and

      other than her naprapathy degree had no medical, chiropractic, or osteopathic

      training. Grice neither practiced nor was licensed to practice naprapathy in

      Indiana.


[8]   Grice testified that naprapathy is “soft tissue manipulation, connective tissue

      manipulation” with the goal of “assist[ing] the body in healing itself.” Tr. pp.

      251-52. Naprapathy involves application of pressure to points on a person’s

      body that “releases the contracture or tightness of the soft tissue to facilitate

      opening up the circulation.” Id. at 252-53.


[9]   Grice testified that as a naprapath she cannot prescribe medications, take x-

      rays, or perform invasive surgery or diagnostic testing. She does regularly

      review physicians’ reports and takes down a patient’s medical history. Grice

      could not recall if medical doctors had ever referred patients to her for




      Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 5 of 15
       treatment, but that those referrals are “not the normal situation” in her practice.

       Id. at 255-56.


[10]   Grice had treated Banske since 2007, and before 2011 had treated Banske only

       for pain in the right knee. In May 2008, during Banske’s last visit for treatment

       with Grice prior to Banske’s fall, Banske did not complain about any problems

       in her lower back, left side, left hip, left shoulder, or left leg.


[11]   March 8, 2011 was Banske’s first visit for treatment with Grice after her fall.

       She told Grice about the fall and related that she was experiencing pain on the

       left side of her body. Grice conducted objective tests on Banske and found

       muscle spasms in the trapezius, the left gluteus, the piriformis, and the

       hamstrings, and found trigger points. Grice also performed a straight leg raising

       test and found radiating pain in Banske’s legs. Grice also found that Banske’s

       pelvis was in an abnormal position.


[12]   Grice continued treating Banske for more than a year, and testified that Banske

       followed her recommendations. Grice’s usual treatment involves using her

       hands, palpating for contractures, and manipulating the connective tissue to

       release the contracture. Grice also applied cryotherapy, which involves the

       application of an analgesic called Sombra to the inflamed areas of Bankse’s

       body. Sombra is only obtainable by medical doctors, chiropractors, or

       naprapaths. Grice further testified that Banske, who had always been cheerful

       and upbeat, was sad after the fall because she could not perform some of the

       activities she could do in the past.


       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 6 of 15
[13]   After the deposition was read, Banske introduced the videotaped deposition of

       Ram Aribindi, M.D., an orthopedic surgeon practicing in Olympia Fields,

       Illinois, who treated Banske. Dr. Aribindi testified that Banske first visited him

       on March 9, 2011. During that visit, Banske told Dr. Aribindi about her fall

       and complained of pain in her left wrist, bruising on the left buttock region,

       pain in the knee, and pain and swelling in her left ankle. Dr. Aribindi

       examined her and diagnosed her with a left ankle sprain, left knee pain, and left

       wrist pain, all caused or aggravated by the fall. He further testified that because

       Banske was sixty-six years old at the time of her fall, the fall may have

       aggravated arthritic changes in Banske’s left side and left knee.


[14]   Dr. Aribindi gave Banske a steroid injection in her left knee, fitted a brace over

       her left wrist, gave her a lace up brace over her left ankle, ordered her to refrain

       from lifting or carrying weights with her left arm, and prescribed Naproxen.

       Banske saw Dr. Aribindi three weeks later. At that appointment Dr. Aribindi

       determined that Banske suffered from plantar fasciitis, aggravation of

       underlying arthritis in her left knee, and arthritic changes in her thumb, wrist,

       and hand. Banske was fitted with a nighttime splint for the fasciitis, and Dr.

       Aribindi referred her to a physical therapist. On Banske’s next appointment

       with Dr. Aribindi, he noted that she continued to suffer her previous pain, in

       addition to pain in her left shoulder girdle. Dr. Aribindi ordered an MRI of

       Banske’s shoulder and ordered a left CAM walker boot to immobilize Banske’s

       foot.




       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 7 of 15
[15]   Banske’s MRI revealed that she had suffered a rotator cuff tear. Banske elected

       to have a left shoulder arthroscopy, and Dr. Aribindi gave her a steroid

       injection in the left wrist. At Banske’s next appointment on June 6, 2011, Dr.

       Aribindi noted that her symptoms had improved. Dr. Aribindi noted on

       November 6, 2011, that although Banske complained of lower back pain, he

       declined to attribute that pain to the fall.


[16]   Dr. Aribindi testified that all of the treatment he provided to Banske was

       reasonable and necessary, and that the opinions he expressed in his testimony

       were to a reasonable degree of medical certainty. He concluded that Banske’s

       fall caused her left shoulder pain, aggravation of underlying left knee

       osteoarthritis, left wrist pain, a left ankle sprain, and left foot pain. In his

       opinion, her fall also caused or aggravated a rotator cuff tear in Banske’s left

       shoulder.


[17]   Banske testified that in addition to Grice and Dr. Aribindi, she received

       treatment after the fall in the emergency room of St. Anthony Medical Center

       in Crown Point, Indiana.


[18]   Pursuant to the parties’ stipulation, the trial court admitted the following

       medical records related to Banske’s treatment: 1) Dr. Aribindi’s records; 2)

       emergency room records from St. Anthony Medical Center; and 3) physical

       therapy records from Ingalls Center for Outpatient Rehab. Later, Banske

       offered Grice’s medical records into evidence. Counsel for Alsip specifically

       stated that there was no objection to the admission of that evidence. Banske’s


       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 8 of 15
       medical bills and her medical specials summary, which reflected $14,441.04 in

       claimed medical expenses were also admitted.


[19]   In addition to the medical testimony, Banske called lay witnesses, including her

       husband, her son, and her best friend, to testify about their observations of the

       differences in Banske’s physical condition and behavior before and after she

       slipped and fell. Banske, a gym teacher at St. Agnes School in Chicago

       Heights, Illinois, found her work more difficult after her fall and her physical

       limitations prevented her from engaging in many of the physical activities she

       had previously enjoyed.


[20]   At the conclusion of the jury trial, the jury returned a verdict in favor of Banske,

       finding her to be ten percent at fault and Alsip to be ninety percent at fault. The

       jury awarded Banske $243,000 in damages, and the trial court entered judgment

       on the jury’s verdict. Alsip now appeals the judgment.


                                     Discussion and Decision
[21]   Alsip presents several issues for our review, but the dispositive issue involves

       the admissibility of Grice’s testimony. “Only trial objections, not motions in

       limine, are effective to preserve claims of error for appellate review.” Raess v.

       Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008). A trial court’s ruling on a motion

       in limine does not determine the ultimate admissibility of the evidence; that

       determination is made by the trial court in the context of the trial itself. Clausen

       v. State, 622 N.E.2d 925, 927 (Ind. 1993). “Absent either a ruling admitting

       evidence accompanied by a timely objection or a ruling excluding evidence

       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 9 of 15
       accompanied by a proper offer of proof, there is no basis for a claim of error.”

       Hollowell v. State, 753 N.E.2d 612, 615-16 (Ind. 2001).


[22]   “The trial court has broad discretion to rule on the admissibility of evidence.”

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). “We review its rulings ‘for

       abuse of that discretion and reverse only when admission is clearly against the

       logic and effect of the facts and circumstances and the error affects a party’s

       substantial rights.’” Id. at 260 (quoting Clark v. State, 994 N.E.2d 252, 259 (Ind.

       2013)).


[23]   “Admission of a deposition into evidence is reviewable only for an abuse of

       discretion.” Drummond v. State, 467 N.E.2d 742, 746 (Ind. 1984). Our Supreme

       Court has “previously held that publication of a deposition is required in order

       to place the deposition before the court.” Id. “The essence of the requirement

       is that because a party need not object to questions on the grounds of

       admissibility when the deposition is taken, the party can ‘[w]ait and make his

       objection at trial or hearing when the deposition is read into evidence or

       otherwise used.’” Id. (quoting Augustine v. First Fed. Sav. & Loan Ass’n of Gary,

       270 Ind. 238, 241, 384 N.E.2d 1018, 1020 (1979)).


[24]   Indiana Trial Rule 32(A) provides that “[a]t the trial or upon the hearing of a

       motion or an interlocutory proceeding, any part or all of a deposition, so far as

       admissible under the Rules of Evidence applied as though the witness were then

       present and testifying, may be used against any party who was present or

       represented at the taking of the deposition. . .” Indiana Trial Rule 32(B)


       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 10 of 15
       additionally provides that “objection may be made at the trial or hearing to

       receiving in evidence any depositions or part thereof for any reason which

       would require the exclusion of the evidence if the witness were then present and

       testifying.” Therefore, when the deposition or parts of a deposition are read

       into evidence, an objection to the testimony must be made as if the witness

       were present at trial and testifying in person. Receipt of evidence by reading a

       deposition is akin to live testimony, and objections must be made.


[25]   Alsip did not object to any of the questions and answers of the portions of

       Grice’s deposition read by Banske’s counsel, and later did not object to the

       admission of Grice’s medical records of her treatment of Banske. As the record

       shows, clearly Judge Sedia expected Alsip’s counsel to object to the portions of

       Grice’s testimony where he felt that Grice was getting beyond the parameters of

       her qualifications and profession. Whether Judge Pera also had the same

       expectation or not, it was incumbent upon Alsip to object as needed. A party

       must make a contemporaneous objection at the time the evidence is offered.

       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). By making a contemporaneous

       objection, the party affords the trial court the opportunity to make a final ruling

       on the matter in the context in which the evidence is introduced. Jackson v.

       State, 735 N.E.2d 1146, 1152 (Ind. 2000). “The failure to make a

       contemporaneous objection to the admission of evidence at trial results in

       waiver of the error on appeal.” Id.


[26]   Here, in the absence of an objection, Alsip has waived all issues of the

       admissibility of the deposition testimony, save whether in Indiana as a matter of

       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 11 of 15
       law a naprapath may not testify as to the treatment of a patient. This appears to

       be an issue of first impression in Indiana.


[27]   Indiana Evidence Rule 702 provides guidance in deciding this issue and reads

       as follows:

               (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.


               (b) Expert scientific testimony is admissible only if the court is satisfied
               that the expert testimony rests upon reliable scientific principles.


[28]   Because Indiana does not license naprapaths, and Grice was licensed to practice

       and treated Banske in Illinois, we turn to Illinois law to help understand the

       matter. The Naprapathic Practice Act is codified at Chapter 225 Illinois

       Compiled Statutes Annotated Act 63. In Illinois, where Grice is licensed to

       practice, naprapathy is a practice that is subject to regulation and control in the

       public interest by the Department of Financial and Professional Regulation

       (“the Department”). 225 Ill. Comp. Stat. Ann. 63/10 (West 2012) & 225 Ill.

       Comp. Stat. Ann. 63/5 (1993). No person is allowed to practice naprapathy in

       Illinois without a license issued by the Department. 225 Ill. Comp. Stat. Ann.

       63/20. In order to obtain a license, a person must 1) be at least eighteen years

       of age and be of good moral character, 2) have graduated from a college level

       program of two years or its equivalent as approved by the Department, 3) have

       graduated from a curriculum in naprapathy as approved by the Department, 4)

       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015       Page 12 of 15
       have passed an examination to determine the person’s fitness to practice

       naprapathy, and 5) have met all other requirements of the Act. 225 Ill. Comp.

       Stat. Ann. 63/17 (West 2012).


[29]   The statutory definition of the practice of naprapathy in Illinois is as follows:

               Naprapathic practice means the evaluation of persons with connective
               tissue disorders through the use of naprapathic case history and
               palpation or treatment of persons by the use of connective tissue
               manipulation, therapeutic and rehabilitative exercise, postural
               counseling, nutritional counseling, and the use of the effective
               properties of physical measures of heat, cold, light, water, radiant
               energy, electricity, sound and air, and assistive devices for the purpose
               of preventing, correcting, or alleviating a physical disability.


               Naprapathic practice includes, but is not limited to, the treatment of
               contractures, muscle spasms, inflammation, scar tissue formation,
               adhesions, lesions, laxity, hypotonicity, rigidity, structural imbalance,
               bruising, contusions, muscular atrophy, and partial separation of
               connective tissue fibers.


               Naprapathic practice also includes: (a) performance of specialized
               tests and measurements, (b) administration of specialized treatment
               procedures, (c) interpretation of referrals from licensed physicians,
               dentists, and podiatric physicians, (d) establishment and modification
               of naprapathic treatment programs, and (e) supervision or teaching of
               naprapathy.


               Naprapathic practice does not include radiology, surgery,
               pharmacology, invasive diagnostic testing, or determination of a
               differential diagnosis; provided, however, the limitation on
               determining a differential diagnosis shall not in any manner limit a
               naprapath licensed under this Act from performing an evaluation
               authorized under this Act. A naprapath licensed under this Act who is
               not also licensed as a physical therapist under the Illinois Physical
               Therapy Act shall not hold himself or herself out as qualified to

       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015     Page 13 of 15
               provide physical therapy or physiotherapy services. Nothing in this
               Section shall limit a naprapath from employing appropriate
               naprapathic techniques that he or she is educated and licensed to
               perform. A naprapath shall refer to a licensed physician, dentist, or
               podiatric physician any patient whose medical condition should, at the
               time of evaluation or treatment, be determined to be beyond the scope
               of practice of the naprapath.


       225 Ill. Comp. Stat. Ann. 63/15.


[30]   The statutes regulating the practice of naprapathy reflect that Grice’s testimony,

       which was expert but not scientific, could be helpful to assist the finder of fact’s

       comprehension of the nature of the injuries Grice attempted to treat and the

       naprapathic methods used to treat the injuries.


[31]   In Kyowski v. Burns, 388 N.E.2d 770 (Ill. App. Ct. 1979), the Illinois Court of

       Appeals addressed the trial court’s decision to strike the testimony of a

       naprapath who treated a personal injury plaintiff on nine occasions after the

       date she was struck by the defendant’s automobile. The plaintiff argued on

       appeal that the trial court erred by striking the testimony on the ground that the

       naprapath was not licensed. 388 N.E.2d at 1017. However, the record

       reflected that the testimony was excluded because the naprapath’s treatment of

       the plaintiff’s leg was not sufficiently connected to the alleged injuries from the

       accident. Id. at 1017-18. The Illinois Court of Appeals held that the trial court

       did not abuse its discretion in striking the testimony on the ground that without

       a connection between his treatment and the plaintiff’s accident, the testimony

       was irrelevant. Id.



       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 14 of 15
[32]   Applying the rationale used in Kyowski to the facts of this case, we conclude

       that Grice’s testimony about her treatment of Banske’s injuries was sufficiently

       connected to Banske’s slip and fall. Grice had treated Banske before and after

       her slip and fall and testified about the difference in Banske’s health from the

       stand point of a naprapath. The trial court did not err as a matter of law by

       admitting Grice’s testimony. The evidence was relevant and helpful to the jury.


[33]   We save the resolution of the limitations on the testimony of a naprapath for

       another day.


                                                  Conclusion
[34]   In light of the foregoing, we affirm the decision of the trial court.


[35]   Affirmed.


[36]   Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1406-CT-256 | February 19, 2015   Page 15 of 15
