Adopted effective Jan. 1, 1994.

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents.   The original or a duplicate of a domestic official record proved in the following manner: An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy.  Such publication or copy need not be accompanied by proof that such officer has the custody.  Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign public documents.   The original or a duplicate of a foreign official record proved in the following manner:  A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof;  or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position:

(a) of the attesting person;  or
(b) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.

A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.  If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown:

(i) admit an attested copy without final certification;  or

(ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

 (3) Official publications. Books, pamphlets, or other publications issued by public authority.

(4) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(5) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(6) Acknowledged documents. Original documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(7) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(8) Presumptions created by law. Any signature, document, or other matter declared by any law of the United States or of this state, to be presumptively or prima facie genuine or authentic.

(9) Certified domestic records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a domestic record of regularly conducted activity within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under oath (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity, and (iii) was made by the regularly conducted activity as a regular practice. A record so certified is not self- authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.

(10) Certified foreign records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a foreign record of regularly conducted activity within the scope of Rule 803(6), which is accompanied by a written declaration by the custodian thereof or another qualified person that the record (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity; and (iii) was made by the regularly conducted activity as a regular practice. The record must be signed in a foreign country in a manner which, if falsely made, would subject the maker to criminal penalty under the laws of that country, and the signature certified by a government official in the manner provided in subsection (2) above. The record is not self- authenticating under this subsection unless the proponent makes his or her intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.

Adopted effective Jan. 1, 1994; amended July 1, 2003, effective January 1, 2004; amended Sep. 30, 2004, effective Jan. 1, 2005.

Rule 903. Subscribing Witness' Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

Adopted effective Jan. 1, 1994.

           MOTION TO STRIKE PORTIONS OF AFFIDAVIT OF JAMES LEE DALTON

Come now the Plaintiffs, by counsel,  hereby file their Motion to Strike Portions of the Affidavit of James Lee Dalton, and would show this Court as follows:
A.        BACKGROUND
1.         That on April 4, 2005, Casey Brown (hereinafter,"CASEY") was catastrophically injured when he was struck by two motor vehicles.
2.         That CASEY was a resident at a facility owned and operated by Damar Services, Inc. (hereinafter, "DAMAR").
3.         That the Indiana State Board of Health conducted a detailed investigation concerning the care provided by DAMAR to CASEY.
4.         That the Indiana State Board of Health investigation concluded that DAMAR violated at least seven provisions of Federal and Indiana Law and that such violations amounted, in part, to neglect of a client (CASEY).  At no point did the Defendant contest such violations.
5.         At the time of CASEY's injury and at present, James Lee Dalton (hereinafter, "DALTON") was the Vice President and Chief Operating Officer at DAMAR.
6.         That on or about June 15, 2006, Defendant filed a Motion for Partial Summary Judgment on the issue of Punitive Damages.
7.         That Defendant tendered DALTON's Affidavit in support of its Motion for Summary Judgment on the issue of Punitive Damages.
8.         That portions of DALTON's Affidavit, including paragraph(s) 9, 10, 14, 17, 22, 23 and 28 contain impermissible legal conclusions which are inadmissible, unverified, unauthenticated and should therefore be striken as a matter of law.

B.        LAW GOVERNING ADMISSIBILITY OF SWORN AFFIDAVIT

1.         The Indiana Rules of Trial Procedure, 56(E), provide that an affidavit is admissible if the following conditions are present:
a.         The affidavit sets forth facts that would be admissible in evidence.

b.         Sworn or certified copies not previously self authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

2.         Indiana law provides that tendered affidavits must not contain inadmissible legal conclusions.   Further, a witness properly qualified to testify as to an expert opinion may not provide an opinion as to a legal conclusion.
3.         DALTON's Affidavit is deficient as a matter of law as the same: is not self authenticated; contains information that is not admissible in evidence; and, contains impermissible legal conclusions.

C.        THE AFFIDAVIT IS NOT SELF AUTHENTICATED
1.         DALTON's Affidavit refers, in part, to various "federal and state laws".  The Defendant failed to identify, with any specificity, the federal and state laws to which DALTON references. 
2.         DALTON's Affidavit refers to the "philosophy of group homes."  The Defendant has failed to identify, with any specificity, the "philosophy" to which DALTON references.
3.         DALTON's Affidavit refers to a Alevel of treatment prescribed [by various governmental agencies]; requirement of "least restrictive environment"; staffing ratios; and, certain levels of "supervision".  Again, the Defendant failed to identify with any specificity, the laws, rules, regulations, standards or industry practices referenced therein. 
4.         That Defendant failed to identify and attach a copy of such laws, rules, regulations, standards of industry practices referenced therein as required by the Indiana Rules of Trial Procedure and Indiana common law.
5.         Without proper citation and attachment, Plaintiffs are hereby unable to verify the existence of such citations and attachments; their application; and the ability to confirm, to deny or to refute such information. 
6.         That even if Defendant provides proper citations concerning the laws, rules, regulations, standards of industry practices, DALTON's Affidavit contains inadmissible legal conclusions and, therefore, should be striken as a matter of law.

D.        THE AFFIDAVIT CONTAINS INADMISSIBLE LEGAL CONCLUSIONS

1.         DALTON's Affidavit contains cursory legal conclusions, in part, that the Defendant complied with certain unidentified laws, rules, regulations and standards of industry practice.
2.         Such cursory legal conclusions are unable to be verified.
3.         Other than a psychology degree from Spalding University, DALTON does not possess any professional license; does not have an educational specialty in health facility administration or management; has not taught any classes on health facility administration or management; has not taken classes or received training on security issues related to the prevention of injury to clients with severe behavioral problems and developmental disabilities and their elopement risk.
4.         DALTON does not possess the education, experience, knowledge or training necessary to ascertain what conduct is in compliance with such unidentified laws, rules, regulations and standards of industry practice.
5.         DALTON's conclusions are self serving, and are in direct conflict with the multiple statutory violations issued against his employer by the Indiana State Board of Health herein.
6.         Finally, any such legal conclusions, and the inferences to be derived therefrom, are specifically reserved to the trier of fact, the jury, herein.

E.        CONCLUSION
That portions of DALTON's Affidavit, including paragraph(s) 9, 10, 14, 17, 22, 23 and 28 contain impermissible legal conclusions which are inadmissible, unverified, unauthenticated and should therefore be striken as a matter of law.
WHEREFORE, the Plaintiffs, Casey C. Brown, Individually and by His Next Friend and Parent, Constance S. Brown and Constance S. Brown, Individually, and hereby move this Court for an Order striking portions of James Lee Dalton's affidavit, including paragraph(s) 9, 10, 14, 17, 22, 23 and 28, and for all other relief just and proper in the premises.

Recent Decisions on the Admissibility of Expert Affidavits.

Kho v. Pennington, 846 N.E.2d 1036, Ind. App. 2006.
"A qualified attorney's legal opinion as to an ultimate fact in issue is admissible unless it addresses matters within the common knowledge and experience of ordinary persons."

McCutchan v. Blanck, 846 N.E.2d 256, Ind. App. 2006.

An expert may not testify concerning alleged neglect is impermissible without disclosure of information relied upon to make the statement.  An adequate record replete with evidence is required.

Ott v. Allied Signal, 827 N.E. 2d 1144, Ind. App. 2005.
A physician may testify concerning a Aconsensus opinion@, not on a particular illness, but on how an illness progresses in most individuals.  Such a Aconsensus opinion@ is admissible despite the failure to examine the individual or their medical records.

K.  Admissibility of Chiropractic Testimony.

The Indiana Rules of Evidence (IRE) govern the admissibility of expert testimony.  IRE 702 assigns a gate keeping function of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.  In other words, the trial court's function is control the admission of proffered expert testimony rather than merely admitting whatever is offered and leaving it to the jury to determine what weight it should be given. 

Two requirements must be met in order for a witness to qualify as an expert.  First, the subject matter must be distinctly related to the subject field, business, or profession beyond the knowledge of the average layperson; and, second, the witness must be shown to have sufficient skill, knowledge, or experience in that area so that the opinion will aid the trier of fact.  The proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles and tests upon which the expert's testimony is based.  Where an expert's testimony is based upon the expert's skill or experience rather than on the application of scientific principles, the proponent of the testimony must only demonstrate that the subject matter is related to some field beyond the knowledge of lay person and that the witness possesses  sufficient skill, knowledge or experience in the filed to assist the trier of fact to understand the evidence or determine a fact in issue.

IRE 703 provides that an expert may base an opinion or inference based on information made known to the expert prior to the hearing.  Further, an expert may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

The practice of chiropractic medicine is overseen by the Board of Chiropractic.   The Board of Chiropractic is charged, in part, with the responsibility to establish minimum qualifications for licensure and renewal; as well as, to enforce standards of conduct, competent and professional practice. When analyzing the admissibility of expert chiropractic testimony it is important to recognize the science of chiropractic medicine.    Chiropractic medicine is defined as "the diagnosis and analysis of interference with normal nerve transmission and expression, the procedure preparatory to and complementary to the correction thereof by an adjustment of the articulations of the vertebral column, its immediate articulation, and includes other incidental means of adjustments of the spinal column and the practice of drugless therapeutics."  I.C.  25-10-1-1.  Chiropractors are restricted from the administration of prescription medications; performing surgery; penetration of the skin; conducting invasive procedures; or, the treatment of infectious diseases, endocrine disorders or atypical or abnormal histology. 

The Medical Licensing Board controls the licensure and practice of medical doctors and osteopathic physicians, but does not have jurisdiction or control of the practice of chiropractic medicine.   A medical doctor or osteopathic physician possess an unlimited license to practice medicine.   An individual that practices medicine without an unlimited license does so in violation of Indiana law.  However, exclusions exist which allow certain qualified individuals to render treatment without an unlimited license to practice medicine, including, in part, psychologists, paramedics, physical therapists, nurses and chiropractors.    Thus, by inference, a chiropractor possesses the same ability to practice the science of chiropractic medicine as a medical doctor or osteopathic physician with respect to articulations of the spinal column and its surrounding structures.

The admission of chiropractic testimony on the issue of opinions or conclusions by medical doctors and osteopathic physicians is frequently misunderstood.  In Brooks v. Friedman, counsel tendered certain medical records prepared by an emergency room physician, a radiologist and a chiropractor.  The Court admitted the medical records over objection.  The emergency room physician and the radiologist did not testify at trial.  The chiropractor testified at trial.  The issue was whether the chiropractor may testify concerning information contained in the medical records prepared by a health care professional possessing an unlimited license to practice medicine.

On appeal, the Court held that an inadequate foundation existed and therefore the emergency room records and radiologist reports were inadmissible.   The Court further held that
"[a] chiropractic physician does not have the same education, experience, and training as medical doctors.  Chiropractors are not qualified to serve as experts in cases involving physicians.  Therefore, chiropractors can not testify concerning medical doctors' reports.  In the event of a retrial in this matter, the medical reports could be admissible, but only after the proper foundational requirements had been met."
Specifically, the proper foundational requirements would include certification of the
records and admitted via the testimony of the health care professional that prepared the same.  Such a process is an unnecessary and costly burden.

The Indiana legislature recognized the inherent conflict with the admission of chiropractic testimony and medical records or reports prepared by other treating physicians, including medical doctors and osteopathic physicians.  I.C. 25-10-1-15 provides:

In any legal proceeding, a chiropractor's testimony relating to records or reports of a licensed physician is admissible as evidence in the legal proceeding, if the
1.         Chiropractor Is qualified as an expert by the chiropractor's knowledge, skill, experience, training, or education; and,
2.         Court is satisfied that the information is of the type reasonably relied upon by other chiropractors.

Thus, a chiropractor may in fact testify concerning the information contained in a licensed record or report prepared by a medical doctor or osteopathic physician, provided the same is reasonably relied upon by chiropractors in their medical practice.  

CHIROPRACTIC JURY INSTRUCTIONS:
                           PLAINTIFF'S PROPOSED FINAL INSTRUCTION NO. 24
In any legal proceeding, a chiropractor's testimony relating to records or reports of a licensed physician is admissible as evidence in the legal proceeding, including the present case, as Francis Laux, D.C., a chiropractor:
1.         Is qualified as an expert by way of his knowledge, skill, experience training and education; and,
2.         The information relied upon by Dr. Laux is of the type reasonably relied upon by other chiropractors.
I.C. 25-10-1-15.
           

                           PLAINTIFF'S PROPOSED FINAL INSTRUCTION NO. 25
The term, Chiropractic, means the diagnosis and analysis of any interference with normal nerve transmission and expression, the procedure preparatory to and complementary to the correction thereof by an adjustment of the articulations of the vertebral column, its immediate articulation, and includes other incidental means of adjustments of the spinal column and the practice of drugless therapeutics.

I.C. 25-10-1-1
                 

                        PLAINTIFF'S PROPOSED FINAL INSTRUCTION NO. 26
A person may not manually manipulate, manually adjust, or manually mobilize the spinal column or the vertebral column unless an individual possesses a valid license to practice as a chiropractor, a physician, or an osteopathic physician.

I.C. 25-10-1-14