                                                                                        FILED
                                                                                   May 30 2017, 9:57 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      David W. Stone IV                                        Mark D. Hassler
      Anderson, Indiana                                        Jacob H. Miller
                                                               Hunt, Hassler, Kondras & Miller LLP
      John P. Nichols                                          Terre Haute, IN
      Anderson & Nichols
      Terre Haute, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Myra Duby as Guardian of L.H.,                           May 30, 2017
      a Minor,                                                 Court of Appeals Case No.
      Appellant-Plaintiff,                                     84A05-1612-CT-2815
                                                               Appeal from the Vigo Superior
              v.                                               Court
                                                               The Honorable Lakshmi Reddy,
      Christopher Woolf,                                       Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               84D02-1201-CT-228



      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



      Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017                  Page 1 of 14
      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.




      Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017   Page 2 of 14
[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,



      1
        The highest level considered in the normal range for children is five micrograms of lead per deciliter of
      blood.
      2
        It is unclear whether Duby blames only L.H.’s autism on the lead exposure or also other behavioral
      problems. In any event, Duby does not differentiate between L.H.’s autism and any other alleged injuries.
      Accordingly, we address only whether there is a genuine issue of material fact regarding the proximate cause
      of L.H.’s autism.

      Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017                            Page 3 of 14
        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 (Ind. Ct. App. 2012) (citing
        Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 44 (Ind.
        Ct. App, 2010)). . . .

                                               ***

        In this particular case, Plaintiff argues that Nurse Boyd is a
        registered nurse, has a master’s degree in molecular biology, and
        was employed full time for four (4) years by the Vigo County
        Health Department where she was the head case manager for
        lead poisoning. Nurse Boyd took classes on lead poisoning, lead
        intoxication and symptoms, and the effects of the same on the
        human body. Nurse Boyd had doctors come to her for
        internships to learn about lead poisoning and she conducted case
        management training events with the Indiana Department of
        Health. However, the fact that Nurse Boyd might have more
        knowledge about lead poisoning does not mean that she has
        more knowledge as to what kinds of health conditions are caused
        specifically by lead poisoning. In fact, this is somewhat similar
        to [Long v. Methodist Hospital of Indiana, 699 N.E.2d 1164 (Ind. Ct.
Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017      Page 4 of 14
        App. 1998),] where the trial court determined and the appellate
        court affirmed that a registered nurse with training in cardiac care
        “does not qualify her to testify as an expert on the causation of
        post-operative wound infection” after open heart surgery. Long,
        699 N.E.2d at 1167. Likewise, Nurse Boyd’s training in lead
        poisoning and symptoms does not qualify her to testify as to
        whether the lead poisoning causes certain illnesses.

        None of the credentials and experience presented by Plaintiff demonstrate
        that Nurse Boyd is qualified as an expert on the issues of diagnosis and
        causation. In fact, Nurse Boyd stated in her deposition that “she
        is not an expert in diagnosing lead poisoning” but that she is an
        expert [“]dealing with lead poisoning and the symptoms of lead
        poisoning.” There was no argument presented that Nurse Boyd
        has concluded based upon her own personal observations that
        other children have been diagnosed with autism and other
        disorders because of lead poisoning.

        As several appellate courts have stated, there is a vast difference
        in the education, training and authority to diagnose and treat
        diseases. Nurse Boyd is not qualified to diagnose the Plaintiff
        with lead poisoning or even autism and the other health issues
        that physicians have diagnosed Plaintiff with [sic]. The Court
        further finds that Nurse Boyd is not qualified to provide an expert
        opinion on what caused the Plaintiff’s health issues, especially
        when she admitted that she has not reviewed prior medical
        records of Plaintiff and Plaintiff’s mother while she was pregnant.
        To allow Nurse Boyd to testify on causation would appear to be
        in contradiction of the purpose of Indiana Rule of Evidence 702.

        For the foregoing reasons, Defendant’s Motion to Exclude
        Opinion Testimony of Angela Marie Boyd on the issue of
        medical causation is GRANTED. However, while Nurse Boyd
        may not be qualified as an expert to testify on causation, she may
        be qualified as an expert on lead poisoning and to testify to
        matters relating thereto.


Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017         Page 5 of 14
      Id. at 11-13 (emphasis added).


[6]   On April 29, 2016, Woolf moved for summary judgment. In her brief and

      memorandum in opposition to summary judgment, Duby designated evidence

      including Boyd’s deposition testimony. Woolf moved to strike portions of

      Boyd’s deposition testimony, and the trial court granted that motion in part.

      The trial court granted summary judgment in favor of Woolf following a

      hearing. Duby filed a motion to correct error, which the court denied. This

      appeal ensued.


                                     Discussion and Decision
                                      Issue One: Boyd’s Testimony

[7]   Duby first contends that the trial court abused its discretion when it excluded

      the proffered expert testimony by Boyd that Woolf’s negligence caused L.H.’s

      autism.

              The admission or exclusion of expert testimony lies within the
              sound discretion of the trial court, and will not be reversed absent
              an abuse of that discretion. Hannan v. Pest Control Servs., Inc., 734
              N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied. Indiana
              Evidence Rule 702, governing expert testimony, contains two
              requirements for a witness to qualify as an expert: “(1) the
              subject matter is distinctly related to some scientific field,
              business or profession beyond the knowledge of the average lay
              person; and (2) the witness is shown to have sufficient skill,
              knowledge or experience in that area so that the opinion will aid
              the trier of fact.” Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997).
              Further, “[e]xpert scientific testimony is admissible only if the
              court is satisfied that the scientific principles upon which the
              expert testimony rests are reliable.” Evid. R. 702(b). “The focus of
      Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017    Page 6 of 14
               the admissibility test must remain on the methodology of the theory or
               technique, not on the conclusions generated.” Ollis v. Knecht, 751
               N.E.2d 825, 829 (Ind. Ct. App. 2001) (citing Daubert v. Merrell
               Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
               (1993)), trans. denied.


      Miller v. Barnard, 957 N.E.2d 685, 693 (Ind. Ct. App. 2011) (emphasis added).


[8]   On appeal, Duby maintains that Boyd “has sufficient skill, experience[,] and

      knowledge in the area of lead poisoning to give an opinion that would aid the

      fact finder.” Appellant’s Br. at 15. Duby points out that Boyd: is a registered

      nurse and also has a master’s degree in molecular biology; has attended “at

      least 5 or 6 training events or conferences held by the Indiana Department of

      Health that dealt with lead as one of the topics covered”;3 was a case manager

      in the lead prevention program for Vigo County; “considers herself a specialist

      in the symptoms and outcomes for lead poisoning”; and has read “more than a

      dozen articles in medical journals on lead poisoning, symptoms[,] and

      correlations.” Id. at 16. Thus, Duby asserts that Boyd is qualified to testify as

      an expert witness that L.H.’s autism was caused by lead poisoning.


[9]   But Duby does not direct us to anything in the record on appeal showing

      Boyd’s reasoning or methodology underlying her testimony, nor does she direct

      us to anything in the record showing that Boyd’s reasoning is scientifically valid

      and can be applied to the facts in this case. See, e.g., Bennett v. Richmond, 960



      3
        Boyd testified that those training events covered issues such as learning how to evaluate homes for lead
      contamination and educating families about lead poisoning.

      Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017                           Page 7 of 14
       N.E.2d 782, 791 (Ind. 2012). Indeed, Boyd acknowledged that she is not

       qualified to diagnose autism or other health conditions related to lead poisoning.

       Rather, she testified that she based her opinion on the cause of L.H.’s autism

       “on facts and evidence in the State declaration that he was lead poisoned.”

       Appellant’s App. Vol. II at 84. Boyd merely testified that “lead poisoning does

       cause autism, and this child had such high lead levels, I mean almost all

       children with levels this high have autism.” Id. at 85.


[10]   Further, Boyd acknowledged that she did not conduct “any sort of physical

       examination or evaluation of [L.H.].” in making her conclusions about the

       cause of his autism, and she did not review his medical records. Id. at 98. And,

       while she opined that there was “no evidence” of any connection between

       L.H.’s mother’s methamphetamine use during her pregnancy and L.H.’s

       autism, again, Boyd did not review L.H.’s medical records, and Boyd could not

       identify “the research” backing up that opinion other than to state, “I think it’s

       like the American Journal of Pediatrics Reviews [sic].” Id. at 93. Duby has not

       shown that the trial court abused its discretion when it excluded Boyd’s

       testimony regarding the purported diagnosis and causation of L.H.’s autism.


                                     Issue Two: Summary Judgment

[11]   Duby next contends that the trial court erred when it entered summary

       judgment in favor of Woolf. Our standard of review is clear. “We first observe

       that a trial court’s order granting summary judgment comes to us ‘cloaked with

       a presumption of validity.’” DiMaggio v. Rosario, 52 N.E.2d 896, 903 (Ind. Ct.

       App. 2016) (internal citations omitted). Further,
       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017   Page 8 of 14
               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley). However, we will affirm the “trial court’s entry of summary

       judgment if it can be sustained on any theory or basis in the record.” DiMaggio,

       52 N.E.3d at 904.


[12]   We emphasize that summary judgment is a “high bar” for the moving party to

       clear in Indiana. Hughley, 15 N.E.3d at 1004. “In particular, while federal

       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017    Page 9 of 14
       practice permits the moving party to merely show that the party carrying the

       burden of proof [at trial] lacks evidence on a necessary element, we impose a

       more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at

       1003 (quoting Jarboe v. Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d

       118, 123 (Ind. 1994)). Summary judgment is rarely appropriate in negligence

       cases because they are particularly fact sensitive and are governed by a standard

       of the objective reasonable person, which is best applied by a jury after hearing

       all the evidence. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004).

       Nonetheless, summary judgment is appropriate when the undisputed material

       evidence negates one element of a negligence claim. Id. at 385.


[13]   To prove a negligence claim, a plaintiff must show that (1) the defendant owed

       plaintiff a duty, (2) the defendant breached that duty, and (3) plaintiff’s injury

       was proximately caused by the breach. Winfrey v. NLMP, Inc., 963 N.E.2d 609,

       612 (Ind. Ct. App. 2012). Here, Duby’s complaint alleges what is known as a

       “toxic tort.” As this court has explained,

               [s]pecific causation in a toxic tort case is “usually” supported by
               evidence of the plaintiffs’ exposure “to a particular causative
               agent and the dose or amounts thereof, the temporal relationship
               between the exposure and the occurrence of the [injuries],
               scientific conclusions as to the amount of exposure necessary to
               cause the disease, and the elimination of other possible causes or
               explanations for the plaintiff[s’] [injuries].” Aurand v. Norfolk S.
               Ry., Co., 802 F.Supp.2d 950, 959 (N.D. Ind. 2011). Indiana
               courts do not require proof of each element in every case but will
               exclude expert testimony where none of the elements is shown.
               Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 29 (Ind. Ct. App.
               2002), trans. denied. In particular, we have held that when an

       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017   Page 10 of 14
                 expert witness testifies in a chemical exposure case “that the
                 exposure has caused a particular condition because the plaintiff
                 was exposed and later experienced symptoms, without having
                 analyzed the level, concentration or duration of the exposure to
                 the chemicals in question, and without sufficiently accounting for
                 the possibility of alternative causes,” the expert’s opinion is
                 insufficient to establish causation. Id. (emphasis added). “An
                 expert’s opinion is insufficient to establish causation when it is
                 based only upon a temporal relationship between an event and a
                 subsequent medical condition.” Id. (emphasis added).


       Gresser v. Dow Chem. Co., 989 N.E.2d 339, 347 (Ind. Ct. App. 2013), trans.

       denied.


[14]   Here, in support of his summary judgment motion, Woolf designated expert

       testimony showing that the lead present in Duby’s house was not the proximate

       cause of L.H.’s autism. In particular, Dr. Theodore Nukes, a neurologist,

       evaluated L.H. by obtaining L.H.’s history from Duby, conducting a physical

       examination of L.H., conducting a seven-part neurological examination of

       L.H., and reviewing more than 1,000 pages of L.H.’s medical records. Dr.

       Nukes testified that L.H. was “born with an autistic spectrum disorder,” either

       due to his mother’s methamphetamine use while he was in utero or due to

       genetic factors. Appellant’s App. Vol. III at 83-84. And Dr. Nukes concluded

       that there was “absolutely no data that [he] reviewed that showed that lead was

       any factor in either . . . producing [L.H.]’s initial . . . autistic spectrum disorder

       or exacerbating his current condition.” Id. at 84-85. Thus, Woolf negated one

       element of Duby’s negligence claim. The burden then shifted to Duby to



       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017     Page 11 of 14
       designate evidence to establish a genuine issue of material fact on proximate

       cause to preclude summary judgment.


[15]   Duby maintains that, when Boyd’s testimony is “considered together with the

       other designated evidence, it is clear that there is a genuine issue of material fact

       on the issue of causation.” Appellant’s Br. at 20. Because we hold that the

       court did not abuse its discretion when it excluded Boyd’s testimony on

       causation, Duby can only prevail on appeal if there is other designated evidence

       showing proximate cause. To that end, Duby cites testimony by Dr. Philip

       Reed that: there “could be” a relationship between L.H.’s “behavior problems”

       and the high lead levels; “you certainly would expect some cognitive problems

       related to lead exposure”; “even at very low levels lead can cause behavior

       problems”; and lead exposure “could add to the problems [L.H.] was

       experiencing.” Appellant’s Br. at 23 (emphases added). But, as the trial court

       found, that testimony is too general and speculative to show causation here.

       Moreover, Dr. Reed concluded that there was no connection between L.H.’s

       elevated lead level in July 2007 and his autism.


[16]   Still, Duby asserts that there “are many articles in medical journals on the

       adverse effects of lead exposure on young children” and cites to Palmer v.

       Asarco, Inc., 510 F. Supp. 2d 519, 523 n.1 (N.D. Okla. 2007) as citing such

       articles. Id. But while there may be evidence that lead exposure can have

       “adverse effects” on children, Duby does not direct us to designated evidence

       showing that L.H.’s lead exposure caused his autism. Thus, Duby has not



       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017   Page 12 of 14
       shown that there is a genuine issue of material fact on the element of proximate

       cause.


[17]   Finally, Duby also contends that the trial court erred when it entered summary

       judgment in favor of Woolf on her “claim of [Woolf’s] disclosure violations”

       under 42 U.S.C. §§ 4851 to 4856. Appellant’s Br. at 27. In particular, Duby

       maintains that Woolf “did not seek summary judgment on the claim of [his]

       disclosure violations” and, therefore, the trial court “improperly granted

       summary judgment on the entire case.” Id. at 29. But, while Duby included in

       her list of contentions4 an allegation that Woolf failed to advise her of the

       presence of lead in the rental home and failed to remedy the problem when it

       was discovered, Duby did not make any reference to 42 U.S.C. §§ 4851 to 4856

       to the trial court. Neither did Duby set out a separate claim alleging disclosure

       violations in her memorandum in opposition to summary judgment.5

       Accordingly, the issue is waived. See Yoost v. Zalcberg, 925 N.E.2d 763, 770

       (Ind. Ct. App. 2010), trans. denied. The trial court did not err when it entered

       summary judgment in favor of Woolf.


[18]   Affirmed.




       4
         On September 25, 2015, Duby submitted to the trial court her list of “Final Witnesses, Exhibits, Specific
       Contentions, Injuries and Special Damages.” Appellant’s App. Vol. II at 28. Woolf filed his summary
       judgment motion on April 29, 2016.
       5
           We also note that Duby made no mention of this alleged error in her motion to correct error.


       Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017                            Page 13 of 14
Riley, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 84A05-1612-CT-2815 | May 30, 2017   Page 14 of 14
