Faulkner v. Markkay of Indiana, Inc.
663 N.E.2d 798
Ind. Ct. App.
1996
Check Treatment

*1 CONCLUSION

The decision of the full Compen- Worker's adopting sation Board negative award hearing its member is affirmed. KIRSCH, J., concurs. BAKER, J., separate opinion. concurs with BAKER, Judge, concurring. IWhile concur with the by result reached majority, I unnecessary find it to wander through inapplicable precedent to determine Supreme whether our Court intended to 4(C) App.R. alone, amend or whether it also intended to statutory requirements affect the assignment for an of error. I read the rule provide appellate brief, that an which ad- dresses grounds issues and appropriately preserved appeal, place serves the of and is used in lieu separate of a assignment of Moreover,

error. as most articulately noted majority opinion, the amendment 4(C) App.R. and, such, is ameliorative given

should be application. retroactive issue, As to the second I that there deny sufficient evidence to appli- Sneed's result, cation for benefits. aAs I would affirm the Board's decision.

Tammy FAULKNER, Hurst

Appellant-Plaintiff, INDIANA, MARKKAYOF INC. d/b/a Foods, Appellee-Defendant. Cub No. 49A02-9412-CV-734. Appeals Court of of Indiana. April *2 Moore, Ver- Hanley & Hanley, L. Michael Associates, & Petri, Petri J. Vernon

non J. Appellant. for Indianapolis, Jr., Gaston, P. Cava- James W. Lawrence Gaston, Indianapolis, III, Moore & naugh, Appellee. OPINION Judge.

STATON, ("Faulkner") ap- Faulkner Tammy Hurst pres- favor. She in her jury verdict a peals we which review for our issues two ents as: restate dis- its abused court the trial

I. Whether chiropractor allowing a by not cretion reports of medical physicians. its abused trial

II. Whether medi- a refusing to admit discretion records the business under record cal hearsay rule. exception to affirm. judgment favorable most The facts Faulkner on October reveal After store. Foods ain Cub and fell slipped by several treated fall, Phillip including providers, care medical trial, Sprin At chiropractor. witness. as an kle testified plain into evidence introduce attempted compilation four, awas which exhibit tiff's health by other generated records medical not allow The trial providers. care other evidence into introduce records, providers' care which health diagn making his Sprinkle Sprin to allow refused The court osis.1 which physicians' to restate kle 575-76, ord, and 595. pp. three providers included care health other neurosurgeon. Rec- surgeons and orthopedic records, contained those medical be- contends that the contents of the medical cause would records should have been allowed under the be Indiana Rules of Evidence and Indiana case to the information in the law. Ind.Evidence Rules 702 and 703 carve Record, reports. p. 570. Dr. stated out a narrow to the admission of he relied *3 physi- of other 702(a) hearsay. provides: Ind.Evidence Rule physician's clans and each specialty. noted scientific, technical, If specialized or other jury returned a verdict in favor of knowledge will assist the trier of fact to $10,000 Faulkner and awarded her in dam- understand the evidence or to determine a ages. appeal This ensued. issue, fact in qualified as an expert by skill, knowledge, experience, I. training, education, may or testify thereto Expert Testimony Witness in the form opinion of an or otherwise. contends that the trial states, Ind.Evidence "[elxperts Rule 708 by court erred allowing not her to introduce testify opinions to based on inadmissible evi testimony regarding physicians' reports. the dence, provided type that it is of the reason The admission or exclusion of evidence is a ably upon by experts relied in the field." determination entrusted to the discretion of permits Evid.R. 702 the expert admission of the trial court. Paullus v. 633 Yarnelle opinion testimony not contained in 304, (Ind.Ct.App.1994), N.E.2d 307 reh. de prepared documents by out of court medical nied, trams. denied. willWe reverse a trial doctors.2 Evid.R. 708 testifying allows a ex only court's decision for an abuse of discre pert materials, rely to on including inadmissi tion, is, only that when the trial court's action hearsay, forming ble in the opin basis of his clearly is against logic erroneous and the and Moreover, ion. this court has held that an effect of the facts and cireumstances before expert may opimion his part based in offer Moreover, it. erroneously Id. excluded evi upon reports not in evidence and inad requires dence only reversal if the error (1) hearsay, provided missible expert the has relates to a material matter substantially expertise sufficient to evaluate accuracy the rights affects the parties. Dynes of the v. reliability (2) and information, of the the Dynes, 1321, 637 N.E.2d 1324(Ind.Ct.App. report type is of normally reliable, the found 1994), trans. denied. (3) the information type is the customari ly upon by expert relied practice the in the argues of that the court erred profession. (em his Mundy, supra, at in 463 allowing Sprinkle, not chiropractor, added). phasis testify to regarding out-of-court statements by physicians made reports. medical dispute Faulkner does not that the Hearsay an out-of-court statement offered trial court Sprinkle allowed Dr. give to his prove to the truth of the matter asserted opinion own testify and to that he relied on therein, which on eredibility rests the of the However, inadmissible evidence. argues she out-of-court declarant who is unavailable for that the trial court allowing erred not eross-examination. Ind.Evidence Rule Sprinkle, testify 80l(c); Mundy Angelicchio, v. 623 N.E.2d information reports, contained (Ind.Ct.App.1998). 463 If the chal prepared which were by physicians. In ex lenged hearsay, evidence is then it is inad cluding the testimony, the trial missible unless it exceptions meets one of the reasoned that because hearsay 802; rule. Ind.Evidence Rule the physician, not a he was not of Mundy, supra at 463. to the informa acknowledges that the ex tion physicians' contained in the reports. We however, cluded hearsay, exhibits were she with the trial court's rationale. e.g. Engebretsen admission, See Corp., examination, v. Fairchild testifying on direct of Aircraft (6th 1994), (Federal experts' opinions 21 F.3d 721 contained in written docu Cir. reh. denied Rules permit of Evidence 702 and 703 do not ments). the not could that concluded permit not do rules The evidence reports. the contents by an materials, of the admission matters the of witness, the truth expert hearsay the conclude otherwise are materials if the they contain opinion an to offer an only allows Fairchild Engebretsen inadmissible. the contents the mandate not does (6th Cir. 21 F.3d Corp., Therefore, Aircraft the trial admitted. reports be Here, materials 1994), denied. reh. excluding its discretion abuse because inadmissible otherwise reports.5 not have does chiropractic, a doctor as the expertise education, training or II. reports.3 We prepared who Exception hearsay Records Business on reliance expert's an allow cannot *4 the placing for a conduit as employed to be court trial argues that the next Faulkner jury.4 the before statements orthopedic sur- admitting an not in erred exper his own rely on must expert ex- records the business under report geon's may not and opinion reaching his in tise 808(6). As Rule of Ind.Evidence ception Miller of others. repeat simply is a of evidence above, the exclusion noted (Ind.1991) 272, 274-75 State, N.E.2d 575 v. the of discretion to the left determination repeat not rely upon but could (physician Paullus, supra. trial court. diag him about told physician another what that reveals record the of review A careful girlfriend). of defendant's nosis the introduce attempt to no made Faulkner conclud Furthermore, has court this records the business under report surgeon's qual not generally are chiropractors ed that fact, report the In trial. at involving in cases experts as to serve ified exhibit plaintiff's in report buried merely one Scanlon, 576 v. Stackhouse physicians. care health numerous of four, compilation a frons, (Ind.Ct.App.1991), 635, 639 N.E.2d Nevertheless, Faulkner records. providers' edu same the have They do not denied. foundation proper a laid she that contends of which all experience, cation, training or excep- under this record admitting the opinion an necessary to render generally are tion. instance, a For jury. to a of benefit Id. this introduce to attempted Faulkner shows licensing statutes the of comparison during times several into evidence report li only limited given are chiropractors that time defense testimony. Each Sprinkle's unlimited receive physicians censes, whereas sur of the admission objected to Id.; the counsel field. the entire toas licenses each sustained court The trial report. geon's 25-22.5-1- and §§ 25-10-1-1 Ind.Code see chiroprac- a objection because properly Thus, trial (1993). the 1.1 electroencephalogram about testified psychiatrist post-gradu- Sprinkle's argues that 3. State, v. Wilber reports); rat- impairment in cumulative other training certification ate (trial 142, (Ind.1984) reports of 143 interpret medical 460 N.E.2d ings qualified him treating physi- may reports of a admitting while note that err not physicians. fact in the pathologist relied highly-credentialed a forensic which be a cian edu- the not have death); does he that v. Kauffman, remains cation, Wilson arriving of at cause orthopedic denied, the experience as training or (Ind.Ct.App.1990), cert. 610 N.E.2d 563 reports he re- neurosurgeon, whose surgeons 439, 458 968, LEd.2d 116 112 S.Ct. U.S. 502 upon. lied physician (1991) (no error when reversible injuries and diagnosing report neurologist on (2nd § Miller, 703.109 Evidence Indiana R. 4. See cumulative). These merely report was such 1995). ed. at bar case the from differentiated can be cases reports of about testified those law in that case Indiana argues that also 5. Faulkner chiropractic tes- of doctors reports physicians, of other rely on other an allows alsoWe physicians. reports of regarding the contents explain tifying how also experts and under given. In decided opinion cases of these of the none a basis form note thereof Sills cites to: argument, Faulkner became which her Evidence, support of of Rules Indiana the (Ind.1984), 228, over State, 234 January 463 N.E.2d effective State, 658 Wright v. grounds, on other ruled (no (Ind.1995) where error 563, 570 N.E.2d tor, Here, however, not be would cross- I that the trial court regarding surgeon's report. examined the was within its excluding discretion in place in specifics were, We find no record where Faulk part, which report ner introduced the under used excep Sprinkle's basis for Dr. opinion. tion, best, give any nor At does us citation the exclusion was harmless because her brief. Because did in fact fully failed to properly without bring hearsay exception opinion. limitation as to his own ' trial court's attention so that the trial court fully II, I concur as to Issue may time, appropriate rule it at the she business exception. record is deemed to have waived that issue. Ba Chesterton, binchak v. Town 598 N.E.2d (Ind.Ct.App.1992), reh. denied

(failure to raise errors which existed at trial appeal). not be remedied on

Affirmed.

HOFFMAN, J., concurs. RILEY AT JACKSON REMONSTRANCE GROUP, non-profit corporation, Joan- SULLIVAN, J., separate concurs with *5 Blacketor, Overmyer, na and Judith Tax opinion. Appellants, SULLIVAN, Judge, concurring. STATE BOARD OF TAX The trial court no doubt was aware that an COMMISSIONERS, may explain specific how the Respondent, determinations report by contained in a non- testifying experts formed the basis for the opinion. majority opinion, witness's The Community Corpora- South Bend School here, acknowledges the existence of that rule. Riley Building Corpo- tion and School Majority op. at footnote 5. The trial ration, Real Parties Interest. court, however, specifics excluded the

reports upon for the reason that Dr. No. 71T10-9510-TA-00112. as a would not' be Tax Court of Indiana. turn, to that information. ruling This March according majority, premised chiropractor that a conclusion does not education, have the training exper- or

tise as the prepared who the re- ports. implication chiropractors are au- tomatically, by lack of education train- and/or ing, incapable analyzing meaningfully

answering questions sweeps too broadly. chiropractic may may Doctors of

not have the training education and neces-

sary helpful to render meaningful analy- regard sis with opinions. to the bases of their depend The answer well the mat- inquiry ter under specific and the matters which are contained in the referred

to.