Hannan v. Pest Control Services, Inc.
| Decision Date | 31 August 2000 |
| Docket Number | No. 49A02-9908-CV-560.,49A02-9908-CV-560. |
| Citation | 734 N.E.2d 674 |
| Parties | Lawrence HANNAN, Mary Hannan, and Jennifer Wilhite, Appellants-Plaintiffs, v. PEST CONTROL SERVICES, INC., a/k/a/ "PESCO," et al., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Joseph A. Thomas, Thomas Law Office, Indianapolis, Indiana, David S. McCrea, McCrea & McCrea, Bloomington, Indiana, Attorneys for Appellants.
H. Patrick Morris, Johnson & Bell, Chicago, Illinois, Lloyd R. Milliken, Locke Reynolds Boyd & Weisell, Indianapolis, Indiana, Attorneys for Appellee.
Appellants-plaintiffs Lawrence Hannan, Mary Jane Hannan and Jennifer Wilhite (collectively, the plaintiffs) appeal the trial court's entry of summary judgment in favor of appellee-defendant Pest Control Services, Inc. (PESCO). Specifically, the plaintiffs contend that the trial court improperly excluded the testimony of certain expert witnesses regarding their negligence claim against PESCO. The plaintiffs urge that those witnesses were fully qualified to testify regarding pesticide poisoning and maintain that the trial court's exclusion of that testimony constituted an abuse of discretion. Moreover, the plaintiffs contend that the cleaning of the residence after pesticide chemicals had been sprayed constituted a spoliation of the evidence by PESCO and that the trial court erroneously dismissed the "independent" causes of action for emotional distress and property damage. Appellant's brief at 36-39.
On June 14, 1993, Steven Gaylord, an employee of PESCO, arrived at the Hannans' Indianapolis home to spray for ants. The Hannans were selling their residence and were planning to purchase a larger home. The Hannans contacted PESCO because a portion of their home had become infested by the insects.
Shortly after the residence was sprayed, the plaintiffs re-entered the home. While there was no detectable odor the Hannans claimed that they, their two-year-old daughter Kaitlyn and Jennifer Wilhite, who was Mary Jane's sister, became ill with flu-like symptoms. Rebecca Morgan, who was Kaitlyn's babysitter, also exhibited symptoms of the flu. Most of the plaintiffs did not seek medical attention until June 23, 1993. Wilhite did not seek any medical attention for her alleged pesticide exposure until September 3, 1993. It was revealed that Wilhite's medical history prior to the alleged exposure included benzene intoxication in 1977, headaches since 1964, dizziness, spots before the eyes, pain behind the eyes, sinus trouble, recurrent sore throats and nausea. Wilhite was treated for headaches in 1989, which she had been experiencing for three to four months. In 1991, she was treated for depression which she believed might have been caused by toxins at the chemical factory where she worked. Just twelve days prior to the alleged pesticide exposure, she was seen for a throat infection that had been recurring for three years.
Characteristic signs of acute overexposure to organophosphates to which the plaintiffs were allegedly exposed include salivation, urination, diarrhea, pin-point pupils and gastrointestinal symptoms. Such symptoms occur almost immediately and disappear or subside over a period of days. None of the plaintiffs reported these symptoms until June 21, 1993, which was one week after the alleged exposure had occurred. Moreover, the symptoms the plaintiffs reported were random and nonspecific.
On June 21, 1993, the Hannans were directed by PESCO's insurance carrier, Zurich American Insurance Company (Zurich), to vacate their residence. Zurich then contacted ServiceMaster to clean the Hannans' home. Even though a representative of ServiceMaster became sick while evaluating the house for cleaning, its employees found no trace of any hazardous chemicals. After the home was cleaned, Zurich paid ServiceMaster a total of $5,587.57 for the remediation of hazardous chemicals. Although a clean air machine ran for nearly two weeks in the house, Mary Jane Hannan and Jennifer Wilhite became ill within minutes after returning to the home. Zurich paid nearly $160,000 in living expenses for the family to live in hotel rooms and rental homes. Pursuant to an investigation conducted by Zurich, the company determined that the illnesses complained of by the plaintiffs could not have resulted from exposure to the pesticides that PESCO used when spraying the house.
On September 16, 1994, Zurich terminated the payments, and the Hannans ultimately sought bankruptcy protection. The real estate company refused to re-list the residence for sale. As a result, on July 16, 1996, the plaintiffs filed an amended complaint for damages against PESCO.1 They alleged, inter alia, that PESCO was negligent with respect to the type and amount of chemicals that were used in spraying the residence. The complaint requested compensatory damages, punitive damages and costs of the action.
Thereafter, on April 5, 1999, PESCO moved for summary judgment claiming that no genuine issue of material fact existed regarding the plaintiffs' claims that exposure to the chemicals caused any of their injuries. PESCO also filed a motion to exclude the plaintiffs' medical causation expert witnesses. That motion alleged in relevant part as follows:
Plaintiffs' experts have failed to utilize the generally accepted toxicological cause-and-effect methodology, their methods and opinions are not generally accepted in the scientific medical community, they do not constitute scientific knowledge and are inherently unsound and unreliable. In addition, Plaintiffs' experts have failed to negate other potential causes of Plaintiffs' alleged illnesses.
R. at 5080. On June 3, 1999, the trial court heard oral argument with respect to PESCO's motions. The matters were taken under advisement and on July 1, 1999, PESCO filed a second motion for summary judgment on the issue of liability. Thereafter, the trial court entered its judgment, findings of fact and conclusions of law on July 16, 1999. Specifically, it was determined that the testimony offered by the plaintiffs with respect to the issue of medical causation was inadmissible under Ind. Evidence Rule 702 and common law. The trial court further determined that establishing medical causation for the injuries claimed by the plaintiffs was an essential element of each cause of action that was pled, and that the failure to submit competent and admissible evidence on this issue, or evidence from which an inference of causation could be made, entitled PESCO to summary judgment. The trial court noted that "no treating physician as demonstrated has set forth sufficient facts, knowledge or expertise to allow them to testify to causation." Appendix at 1.
The plaintiffs' purported experts sought to testify that the plaintiffs suffered from various ailments because of their alleged exposure to Dursban and Diazinon, two of the chemicals that PESCO sprayed at the residence. These prospective witnesses had no relevant information regarding the exposure level of the chemicals or the dose that the plaintiffs had allegedly ingested. At least one witness acknowledged that he was making an assumption as to the dose level. Additionally, while the ventilation qualities of the home were of importance, the plaintiffs' experts had never seen the residence and did not have any specific information regarding the size of the house or configuration of any ventilating system.
There was only an equivocal diagnosis that Larry Hannan and Wilhite suffered from Reactive Airways Disease Syndrome (RADS) as a result of PESCO's treatment. Moreover, no medical or scientific literature supported a conclusion that the chemicals to which the plaintiffs were allegedly exposed could cause RADS. None of the experts offered theories regarding alternative reasonable causes of the symptoms that the plaintiffs displayed. The experts also conceded that there are numerous causes for each symptom, but no efforts were made to investigate such possible causes. The plaintiffs now appeal the decision of the trial court with respect to the exclusion of the expert testimony and the grant of the motion for summary judgment in PESCO's favor.
In reviewing the trial court's grant of summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Smith v. Allstate Ins. Co., 681 N.E.2d 220, 223 (Ind.Ct.App.1997). We do not weigh evidence but will liberally construe the facts in the light most favorable to the nonmoving party. General Motors Corp. v. Northrop Corp., 685 N.E.2d 127, 132 (Ind.Ct.App.1997), trans. denied. Summary judgment should be granted only when 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. Ind. Trial Rule 56(C). On appeal, we must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. City of Elkhart v. Agenda: Open Government, Inc., 683 N.E.2d 622, 625 (Ind.Ct.App.1997), trans. denied. The party appealing the grant of summary judgment has the burden of persuading this court on appeal that the trial court's ruling was improper. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993). We also note that where expert testimony is advanced to establish causation, summary judgment is properly entered in favor of the defendant where that testimony fails to meet the admissibility requirements of Evid. R. 702. Hottinger v. Trugreen Corp., 665 N.E.2d 593, 595 (Ind.Ct.App. 1996), trans. denied.
To determine whether the trial court erroneously excluded the plaintiffs' purported expert testimony, we first note the relevant provisions of Evid. R. 702:
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