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Hannan v. Pest Control Services8/31/2000
FOR PUBLICATION
OPINION-FOR PUBLICATION
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.
FACTS
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 com
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