FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
JAMES E. AYERS PETER H. POGUE
Wernle, Ristine & Ayers JULIE ABBOTT CONDICT
Crawfordsville, Indiana Schultz & Pogue, LLP
Indianapolis, Indiana
FILED
Apr 05 2012, 8:54 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
SHARON WRIGHT and )
LESLIE WRIGHT, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 54A01-1107-CT-302
)
ANTHONY E. MILLER, D.P.M. and )
ACHILLES PODIATRY GROUP, )
)
Appellees-Defendants. )
)
APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable David A. Ault, Judge
Cause No. 54D01-0903-CT-106
April 5, 2012
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Sharon Wright brought a medical malpractice claim against Dr. Anthony Miller
and Achilles Podiatry Group for an allegedly negligently performed bunion surgery. The
trial court both struck Wright’s expert witness and dismissed her claims under Indiana
Trial Rule 37(B) for failure to comply with discovery orders and Indiana Trial Rule 41(E)
for failure to prosecute and failure to follow court orders. Specifically, the trial court
noted that Wright did not identify her expert witness on time and would therefore be
without the expert testimony at trial necessary to bring her medical malpractice claim.
Wright appeals, contending the trial court abused its discretion in both striking her expert
witness and dismissing her claims. She also contends that her claim for medical battery
due to lack of informed consent can go forward even without expert testimony.
We give great deference to our trial court colleagues in ruling on discovery issues.
We recognize that trial courts have an obligation to run the court’s calendar in an
efficient and timely manner. But, we must weigh that obligation against an individual
litigant’s right to have her day in court. Here, Wright’s failure to timely comply with
deadlines caused short delays before the trial, but, ultimately, the trial was delayed for
reasons outside her control, namely, her expert witness was unavailable for medical
reasons. Further, there was no order compelling discovery, no warning that dismissal
was looming, or any deception on the part of Wright. As such, her misconduct did not
rise to a sufficient level to deny her the chance to resolve her case in court. We therefore
hold that the trial court abused its discretion in dismissing the claim and striking Wright’s
expert witness under both Trial Rule 37(B) and 41(E). As a result, we do not need to
2
reach the issue of whether Wright may proceed forward with her medical battery claim
without an expert. We reverse and remand for further proceedings.
Facts and Procedural History
Sharon Wright went to podiatrist Dr. Anthony Miller, D.P.M., at Crawfordsville
Foot & Ankle Center on April 14, 2004, and was diagnosed with bunions and
hammertoes on both feet and a plantar flexed metatarsal. Wright indicated that the pain
in her left foot was more severe than the pain in her right foot and that it was difficult for
her to walk and wear shoes.
On April 29, 2004, Dr. Miller performed surgery on Wright’s left foot after
obtaining the appropriate informed consent. The surgery was successful, but Wright was
still experiencing pain in her right foot. She returned to Dr. Miller on May 19, 2004, at
which time they discussed possible surgical intervention for her right foot. After
discussing the possible procedures and risks, Wright claims she only consented to surgery
to correct her bunion. Appellant’s Br. p. 13. Dr. Miller, however, claims that Wright
consented to “reduction of hammertoes 2, 4, 5, raise dropped metatarsals 2, 3, reduction
of Tailor’s bunion, lengthening of extensor tendons 2-5 and increase range of motion 1st
metatarsal phalangeal joint with use of implant, right foot.” Appellee’s App. p. 17-18.
On June 3, 2004, Dr. Miller performed surgery on Wright’s right foot. The
procedures included: total joint replacement with implant #1 Swanson, right; Tailor’s
bunionectomy, right; arthroplasty, second digit, right; arthroplasty, third digit, right;
arthroplasty, fourth digit, right; arthroplasty, fifth digit, right; arthroplasty, second MPJ,
right; tenotomy, third, right; tenotomy, fourth, right. Id. at 18. The surgery was
3
completed without complication. However, after surgery, Wright complained of
misalignment and twisting of her toes with distortion, an increase in pain, and difficulty
walking. Appellant’s App. p. 12, 227.
Wright1 filed a malpractice claim with the Indiana Department of Insurance on
either April 15 or April 18, 2006. The date is in dispute but is not material to the issues
before us. The members of the Department of Insurance panel issued a unanimous
opinion in favor of Dr. Miller on December 19, 2008. Wright filed her complaint against
Dr. Miller and Achilles Podiatry Group (hereinafter collectively referred to as “Dr.
Miller”) with the Montgomery Superior Court on March 17, 2009. Dr. Miller filed a
motion for summary judgment, and Wright’s response included an affidavit of Dr.
Franklin Nash establishing that Dr. Miller did not meet the standard of care. Dr. Miller
later withdrew his Motion for Summary Judgment.
In July 2009, Wright responded to Dr. Miller’s interrogatories, indicating that she
had no other expert witness besides Dr. Nash. At a pretrial conference on August 17,
2009, the trial court set the trial date as August 24, 2010, with preliminary lists to be filed
by Friday, September 18, 2009, Wright’s expert to be named by April 16, 2010, Dr.
Miller’s experts to be named by June 18, 2010, final witness and exhibit lists and
statements of contentions to be filed by July 16, 2010, discovery to be completed by July
23, 2010, and proposed jury instructions due July 30, 2010. Id. at 104-105. Dr. Miller
met all of these deadlines. Wright filed her preliminary list three days late, her final list,
which was a re-filing of her preliminary list, eleven days late, her statement of
1
We acknowledge that Wright’s husband has been added as a plaintiff but nevertheless continue
to refer to the plaintiffs in the singular as “Wright.”
4
contentions twenty-four days late, and her final jury instructions ten days late. Notably,
Wright never included Dr. Nash on her witness list and never identified him as her expert
witness, even though he had already provided an affidavit for this case – an affidavit that
was provided to Dr. Miller – and both parties knew all along that he was going to be
Wright’s expert.
During discovery, on July 22, 2010, Wright filed a protective order against Dr.
Miller’s second set of interrogatories, claiming that they were improper and exceeded the
scope of discovery. On July 23, 2010, Wright filed another protective order against Dr.
Miller’s second request for production, claiming that the documents requested were not
in her possession. A review of the record does not show that the trial court ever ruled on
either protective order.
Also on July 23, 2010, Wright filed for a continuance of the trial date, citing her
continuing medical treatment and the inability to supplement discovery responses before
the August 24, 2010, trial date. Dr. Miller objected to the continuance.
Wright asked for a second continuance to find a new expert witness on August 4,
2010. Dr. Nash had been hospitalized for mental health issues and his psychologist, Dr.
Ari Gleckman, feared that although Dr. Nash could provide expert testimony and
professional consultant services, “the price that he would pay in terms of his psychiatric
and physical functioning could be lethal.” Id. at 306. Again, Dr. Miller objected to the
continuance. On August 16, 2010, the trial court granted the continuances, setting a new
discovery deadline of December 24, 2010, and a status conference for January 10, 2011,
at which time a new trial date would be chosen.
5
Upon receiving the news that Dr. Nash was unavailable, Wright attempted to
secure her treating physician, Dr. Mihir Patel, as an expert witness and obtain his
deposition. These attempts were unsuccessful, so Wright’s counsel contacted a referral
service in November 2010 to find another expert witness. Appellant’s Br. p. 30. Dr.
Jerome Bagner was identified as a potential qualified expert witness on December 17,
2010, and Wright’s counsel submitted the evidentiary material to him for review. Dr.
Bagner did not confirm his willingness to testify until January 9, 2011. Id.
Dr. Miller filed a motion to dismiss the case on January 7, 2011, due to Wright’s
alleged lack of evidence and failure to comply with the discovery deadlines. Appellant’s
App. p. 310. Wright filed her notice of an expert witness on January 10, 2011, seventeen
days after the discovery deadline, and Dr. Miller moved to strike the notice as untimely.
The trial court granted both Dr. Miller’s motion to dismiss and motion to strike Wright’s
expert witness on the grounds of Trial Rule 37(B) for discovery violations and Trial Rule
41(E) for failure to prosecute and follow court orders. The trial court also noted that
Wright’s medical malpractice case could not go forward for lack of evidence, as she now
lacked an expert witness. In making its decision, the trial court made reference to
Wright’s disrespect for the court, including missed discovery deadlines and requests for
extensions of time and continuances. Id. at 350-61.
Wright now appeals.
Discussion and Decision
Wright makes multiple arguments on appeal, which we consolidate and restate as:
(1) whether the trial court abused its discretion in dismissing her claim and striking her
6
expert under Trial Rule 41(E); (2) whether the trial court abused its discretion in
dismissing her claim and striking her expert under Trial Rule 37(B); and (3) whether
expert testimony is necessary for a medical battery claim based on lack of informed
consent. Because we resolve the case as we do, we find the first two arguments to be
dispositive and therefore do not reach Wright’s third argument.
The rules of discovery are designed to “allow a liberal discovery process, the
purposes of which are to provide parties with information essential to litigation of the
issues, to eliminate surprise, and to promote settlement.” Hatfield v. Edward J.
DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997), reh’g denied, trans. denied.
Our review of discovery matters is limited to determining whether the trial court abused
its discretion. Bridgestone Ams. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind.
2007). An abuse of discretion may occur if the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court or if the trial court has
misinterpreted the law. Id.
I. Trial Rule 41(E)
Wright contends that the trial court abused its discretion in dismissing her case and
striking her expert under Trial Rule 41(E) for failure to prosecute and follow court orders.
We will reverse a Trial Rule 41(E) dismissal only in the event of a clear abuse of
discretion, which occurs if the decision of the trial court is against the logic and effect of
the facts and circumstances before it. Metcalf v. Estate of Hastings, 726 N.E.2d 372,
373-74 (Ind. Ct. App. 2000), trans. denied. We will affirm if there is any evidence that
supports the decision of the trial court. Id. at 374.
7
Trial Rule 41(E) says:
Whenever there has been a failure to comply with these rules or when no
action has been taken in a civil case for a period of sixty [60] days, the
court, on motion of a party or on its own motion shall order a hearing for
the purpose of dismissing such case. The court shall enter an order of
dismissal at plaintiff’s costs if the plaintiff shall not show sufficient cause at
or before such hearing. Dismissal may be withheld or reinstatement of
dismissal may be made subject to the condition that the plaintiff comply
with these rules and diligently prosecute the action and upon such terms
that the court in its discretion determines to be necessary to assure such
diligent prosecution.
(emphasis added). Explicitly stated in the rule is the requirement of a hearing before a
case is dismissed. The trial court did not conduct such a hearing, so any dismissal under
Trial Rule 41(E) for failure to prosecute or failure to follow court orders was premature
and an abuse of the trial court’s discretion.
However, Dr. Miller argues that Wright has waived this argument because she did
not address it in her Appellant’s Brief, only in her Reply Brief. Wright v. Miller, et al.,
No. 54D01-0904-CT-106 (Ind. Ct. App. Dec. 16, 2011). While the newly-raised
argument is technically waived, Ind. Appellate Rule 46(C), we hold that we nonetheless
must follow the explicit language of the Trial Rules so as not to create inconsistent
results. See Ind. Tr. Rule 1 (“these rules govern the procedure and practice in all courts
of the state of Indiana in all suits of a civil nature . . . .”) (emphases added). Following
the rule as written leads us to find that the trial court clearly abused its discretion and that
the case was improperly dismissed under Trial Rule 41(E).
II. Trial Rule 37(B)
Wright also contends that the trial court abused its discretion in both dismissing
her claim and striking her expert witness under Trial Rule 37(B). Discovery is designed
8
to be self-executing with little, if any, supervision or assistance by the trial court.
Mallard’s Pointe Condominium Ass’n, Inc. v. L&L Investors Group, LLC, 859 N.E.2d
360, 364 (Ind. Ct. App. 2006), reh’g denied, trans. denied. However, when the goals of
this system break down, Trial Rule 37 provides the court with tools to enforce
compliance. Pfaffenberger v. Jackson Cnty. Reg’l Sewer Dist., 785 N.E.2d 1180, 1183
(Ind. Ct. App. 2003). Trial Rule 37(B)(2) provides in relevant part:
If a party . . . fails to obey an order to provide or permit discovery, . . . the
court in which the action is pending may make such orders in regard to the
failure as are just, and among others the following:
* * * * *
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party; . . . .
A. Dismissal of the Claim
The trial court may dismiss a claim under Trial Rule 37(B)(2) for discovery
violations. The only limitation on the trial court is that the sanction must be just. Prime
Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind. Ct. App 2008). In determining
whether a sanction is just, we recognize that “‘[a]lthough a default judgment plays an
important role in the maintenance of an orderly, efficient judicial system as a weapon for
enforcing compliance with the rules of procedure and for facilitating the speedy
determination of litigation, in Indiana there is marked judicial deference for deciding
disputes on their merits and for giving parties their day in court . . . .’” Id. at 649
(quoting Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005)).
Dismissal for failures in discovery will not be unjust where:
9
(1) the party was given an additional reasonable period within which to
respond and was expressly warned in advance that default judgment would
be entered if he failed to do so; and (2) no response or request for additional
time was timely made and no reason excusing timely response is
demonstrated.
Burns v. St. Mary Med. Ctr., 504 N.E.2d 1038, 1039 (Ind. Ct. App. 1987). We also will
not find dismissal to be unjust where the actions of the offending party are egregious.
Further, although it is common to “fashion progressive sanctions leading up to a
dismissal or default judgment when it is possible to do so, imposing intermediate
sanctions is not obligatory when a party’s behavior is particularly egregious.” Whitaker
v. Becker, 960 N.E.2d 111, 116 (Ind. 2012) (citing Prime Mortg. USA, 885 N.E.2d at
649).
While there is no case law explicitly saying what is considered unjust, there have
been multiple cases, however, which give guidance and confirm that egregious conditions
must exist if dismissal is to be considered just. Dismissal of claims under Trial Rule
37(B) was upheld under the reasoning in Burns and includes such cases as Pfaffenberger,
which is regarded as the “leading and instructional opinion about Trial Rule 37 and the
enforcement authority of the trial court.” 3 William F. Harvey & Stephen E. Arthur,
Indiana Practice: Rules of Procedure Annotated, Trial Rule 37 (3d ed. 2011). In
Pfaffenberger, the Sewer District sent interrogatories and a request for production of
documents to the Plaintiffs. 785 N.E.2d at 1182. Over four months later, no responses
were given, so the Sewer District filed a motion to compel. The trial court ordered the
Plaintiffs to respond before a certain date, and when they did not, the Sewer District filed
a motion to dismiss, which was granted by the trial court. Id. Thereafter, the trial court
10
reconsidered the dismissal, set it aside, and granted the Plaintiffs an additional sixty days
to respond. Id. at 1183. The Plaintiffs again failed to respond to the request, and the trial
court dismissed the complaint again, this time with prejudice. Id.
In reviewing the trial court’s decision, we made particular note of the facts that the
Plaintiffs never asked for extensions of time and never informed the trial court or the
Sewer District that they were having difficulty in responding to discovery. Id. at 1185.
We found that dismissal was not an abuse of the trial court’s discretion because we had
“previously held that when the party alleged to have not complied with discovery orders:
(1) has been given an additional reasonable period within which to respond (i.e., sixty
days); (2) was warned in advance that dismissal or entry of a default judgment would be
the penalty for noncompliance (i.e., the prior dismissal); (3) has not timely responded or
requested additional time; and (4) has not demonstrated a reason excusing the past
noncompliance . . . ,” id. (citing Wozniak v. N. Ind. Pub. Serv. Co., 620 N.E.2d 33, 35-36
(Ind. Ct. App. 1993), reh’g denied, trans. denied), dismissal is not clearly against the
logic and effects of the facts and circumstances before the trial court.
Another representative case where we upheld dismissal based on Trial Rule
37(B)(2) is Mallard’s Pointe Condominium Association, Inc., 859 N.E.2d at 360. In that
case, Mallard’s Pointe appeared at a deposition that it had received notice of two months
before, but it failed to bring subpoenaed documents. Id. at 362. L&L Investors filed a
motion compelling discovery which was granted by the trial court, giving Mallard’s
Pointe three months to produce the documents. Id. at 363. The order also explicitly
stated that “[f]ailure by Mallard’s Pointe to comply timely shall result in a default being
11
entered against it on the Complaint filed by Plaintiff.” Id. Mallard’s Pointe did not
comply with the discovery order in those three months, and L&L Investors filed a motion
for default judgment, which the trial court granted. Id.
In reaching our decision in that case, we engaged in the same analysis as in
previous cases to determine whether the sanction was just. In finding that it was, we
noted that Mallard’s Pointe had substantial time to comply with the discovery request,
there was an order compelling discovery that gave Mallard’s Pointe additional time to
comply, the trial court gave warning that failure to comply would result in a dismissal,
and Mallard’s Pointe did not inform the trial court of any problems it was having in
responding to discovery. Id. at 365. Mallard’s Pointe, therefore, is another example of
an instance where the discovery violation was so egregious that the trial court did not
abuse its discretion in dismissing the complaint.
Additionally, our Supreme Court recently addressed this issue in Whitaker, 960
N.E.2d at 111. In Whitaker, after a car accident, Becker sent Whitaker interrogatories
and a request for production of documents. Whitaker neither responded by the deadline
nor asked for an extension of time. After three letters reminding Whitaker that his
responses were overdue, Becker filed a motion to compel discovery three months later.
Id. at 112. The trial court granted the motion and ordered Whitaker to respond in three
weeks. Id.
Whitaker finally responded to discovery with what he knew were false answers.
Id. Becker eventually filed a motion for sanctions, to which Whitaker failed to respond.
The trial court held a hearing on the motion six months later. The trial court considered
12
lesser sanctions, but after finding that Whitaker had supplied “deceptive interrogatory
answers” in “bad faith,” it dismissed the complaint. Id. at 114. We reversed, finding that
attorneys’ fees were an adequate sanction. Whitaker v. Becker, 946 N.E.2d 51 (Ind. Ct.
App. 2011), trans. granted.
After granting transfer, our Supreme Court upheld the trial court’s dismissal. It
held that our case law “confirms the notion that under the appropriate facts a trial court
may enter an outright dismissal or default judgment when a party failed to respond to
discovery requests on time, the trial court granted an order to compel discovery, and the
party violated the order to compel by failing to respond.” Whitaker, 960 N.E.2d at 116.
Finding all of those factors present, the Supreme Court upheld the dismissal of the
complaint under Trial Rule 37(B).
A review of the case law on this issue highlights certain facts that create an
egregious discovery violation and result in dismissal not being unjust: long delays, a
motion to compel, a warning that dismissal is looming, failure to ask for additional time,
deception in the information provided in discovery, impairment of the trial court’s
calendar, and fault on the part of the offending party.
However, none of the appropriate facts justifying dismissal were present in this
case. There was no order compelling discovery, no warning that dismissal was looming,
and Wright kept the lines of communication open both with opposing counsel and the
trial court. See Appellant’s App. p. 378-95. There were also no long delays in discovery
– Wright missed the deadline by three days for her preliminary witness and exhibit lists,
eleven days for her final witness and exhibit lists, twenty-four days for her contentions,
13
ten days for her jury instructions, and seventeen days for naming her new expert witness.
There was a delay of approximately four months between when Wright knew that Dr.
Nash would be unable to testify for medical reasons and when her counsel found and
disclosed to opposing counsel a new expert. But the expert was found and retained
seventeen days after the discovery deadline and before the status conference that was to
determine the trial date. So while there were missed deadlines, there were not the
extended delays that are found in the case law. Finally, the trial court notes Wright’s
frequent requests for continuances as a reason for supporting dismissal; however, failing
to request additional time is a factor that the courts hold against a party in deciding these
cases.
Overall, after review of the record, this case is dissimilar to those in which we
have upheld dismissal. The factors enumerated in Burns are not present and the delays
were not egregious. While we respect the deference we owe to the trial court’s decision,
we find that it was unjust to dismiss this case under Trial Rule 37(B).
B. Striking Wright’s Expert Witness
The other discovery sanction handed down in this case under Trial Rule 37(B) was
the striking of Wright’s expert. There has been no clear test articulated for deciding this
issue in the civil context. Our Supreme Court has addressed this issue and articulated a
test in the criminal context, however, in Wiseheart v. State, 491 N.E.2d 985 (Ind. 1986).
This test has been widely adopted in criminal cases since. See, e.g., Vasquez v. State, 868
N.E.2d 473 (Ind. 2007); Williams v. State, 714 N.E.2d 644 (Ind. 1999); Tyson v. State,
619 N.E.2d 276 (Ind. Ct. App. 1993), trans. denied.
14
In Wiseheart, on the morning of trial, Wiseheart requested permission to call four
witnesses who had not previously been listed during discovery. Wiseheart argued that he
was unaware of their existence before trial and that their testimony was material to his
defense. Wiseheart, 491 N.E.2d at 987. The trial court excluded the witnesses, however,
citing Wiseheart’s violation of the court’s pretrial discovery order. Id.
In reversing the trial court’s decision, our Supreme Court noted a balancing test of
five factors that the court should consider in determining whether a witness should be
allowed to testify when his identity is disclosed after discovery has been closed. Those
factors included:
(1) Whether the nature of defendant’s violation was trivial or substantial.
The trial court should consider when the witness first became known to
defense counsel.
(2) How vital the potential witness’ testimony is to the defendant’s case.
The trial court should determine the significance of the proffered testimony
to the defense. Is the testimony relevant and material to the defense or
merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a
deleterious impact on the case prepared by the State?
(4) Whether less stringent sanctions are appropriate and effective to protect
the interests of both the defendant and the State.
(5) Whether the State will be unduly surprised and prejudiced by the
inclusion of the witness’ testimony despite the available and reasonable
alternative sanctions . . . which can mitigate prejudice to the State by
permitting the State to interview the witnesses and conduct further
investigation, if necessary.
Id. at 991.
We extended this test to the civil context in 2001, when we decided Davidson v.
Perron, 756 N.E.2d 1007 (Ind. Ct. App. 2001). In Davidson, the Defendants filed a
motion for summary judgment, and Davidson responded after the discovery deadline and
included an affidavit from a previously undisclosed witness, McDowell, in his response.
15
The Defendants moved to strike the affidavit because it was not divulged until after the
discovery cut-off date. The trial court granted the motion. Id. at 1013.
In upholding the trial court’s striking of the affidavit, we cited to the balancing test
in Wiseheart. Id. at 1013-14. We found that Davidson’s disclosure of McDowell as a
witness was insufficient, McDowell’s testimony was not highly relevant to the case, and
admitting McDowell’s affidavit would have caused prejudice to the Defendants’ case. Id.
at 1014. After finding the first three of the five factors to be in favor of the court’s
holding, we held that it was unnecessary to engage in further inquiry and found no abuse
of discretion. Id.
We find the balancing test of factors articulated in Wiseheart to be instructive in
deciding whether to strike a party’s witness under Trial Rule 37(B). However, the list of
factors is not exhaustive. In addition to considering those five factors, after reviewing the
case law on this issue, we must also consider: (1) the pattern of conduct that the
offending party has engaged in; (2) the importance of the deadline for the court’s docket
and how close to trial the discovery-rule violation takes place; (3) prior warnings the trial
court has given to the offending party; (4) any motions to compel discovery that have
been filed against the offending party; (5) whether other sanctions have been
implemented; and (6) whether the offending party has provided misleading information
in discovery in addition to a failure to respond to discovery requests. Prior cases have
helped shape the formulation of these additional factors to consider when evaluating this
issue.
16
For example, in Brown v. Terre Haute Regional Hospital, Brown was involved in
a car accident and brought a negligence lawsuit against the hospital where he received
treatment for his injuries. 537 N.E.2d 54, 56 (Ind. Ct. App. 1989). During discovery, the
hospital sent interrogatories to Brown requesting information on his expert witnesses;
Brown replied that he had not retained any experts and he never formally supplemented
his answers, but he did verbally inform the hospital of five expert witnesses, including
Dr. Worth. Id. at 57.
A year later and thirteen days before trial, Brown filed a witness list identifying a
new expert witness. The hospital deposed the new witness four days before trial. Three
days before trial, Brown identified yet another expert witness. Due to the late notification
of these witnesses, the hospital filed a motion to exclude the testimony of the two new
witnesses or, in the alternative, to continue the trial. Id. The trial was continued, and the
hospital conducted depositions, including a second deposition of Dr. Worth. Dr. Worth
revealed new opinions at the second deposition, so the hospital filed a motion to exclude
his testimony. Id. at 57-58. The trial court overruled the motion. But when Brown
attempted to elicit this opinion at trial, the hospital objected and moved to exclude the
testimony. The trial court sustained, striking the testimony of Dr. Worth under Trial Rule
37(B). Id.
We upheld the decision of the trial court on appeal, noting Brown’s continued lack
of cooperation throughout the discovery process. Id. at 58. We also found it important
that Brown had ample time in which to inform the hospital of the change in Dr. Worth’s
expert opinion. Id. at 58-59. Brown emphasizes the importance of considering the
17
pattern of conduct that the offending party has engaged in, prior sanctions, and the
importance of the deadline for the court’s docket, specifically how close to trial the
discovery violation takes place when determining if striking a party’s witness was
appropriate.
The 2000 case of Nyby v. Waste Management, Inc. is also instructive in our
analysis. 725 N.E.2d 905 (Ind. Ct. App. 2000), trans. denied. The Nybys filed their
witness list, and the Defendants moved to bar the testimony of the expert witness because
the Nybys did not provide any information about him. The Nybys then filed a revised
witness list which included several expert witnesses. The Defendants again moved to bar
the testimony because there was no information provided about the experts’ expected
testimony. Id. at 915-16. The trial court denied the Defendants’ motion on the condition
that the Nybys provide the Defendants and the court within fifteen days “the subject
matter upon which the listed experts . . . will be expected to testify, the substance of the
facts and opinions to which they are expected to testify, and a summary of the grounds
for each opinion.” Id. at 916. The trial court also indicated that any further discovery
violation would result in sanctions. Id. Although the Nybys met the deadline, the
information provided was insufficient; accordingly, the trial court barred their experts
from testifying.
On appeal, we upheld this decision of the trial court, finding that the Nybys both
failed to adequately state the facts and opinions to which one of the experts would testify
and failed to state a summary of the grounds for each expert opinion. Id. at 917. This
case illustrates the importance of considering whether the offending party has provided
18
misleading information in discovery. It also is an example of a case where the trial court
warns the offending party that dismissal is a possibility if there are any further discovery
violations and where the trial court issues an order compelling discovery action on the
part of the offending party.
Eight years later, we decided Franciose v. Jones, which is also helpful in our
review. 907 N.E.2d 139, 149 (Ind. Ct. App. 2009), trans. denied. Jones was injured by
motorist Franciose while trying to move a disabled vehicle off of the road and sued
Franciose for negligence. During trial, the trial court excluded the testimony of a defense
witness who failed to appear for his deposition and whose contact information had not
been provided before trial. Id. at 143.
We upheld the trial court’s decision, drawing attention to the fact that Franciose
had provided inaccurate contact information for his witness and failed to supplement or
correct it for two years. It was this failure to provide accurate information that led to a
last-minute deposition that was missed by the witness and the trial court’s subsequent
decision to strike his testimony. Id. at 149-50. This case again evidences the importance
of considering the party’s truthfulness in the information it provides in discovery. This
also shows how the party’s pattern of behavior is considered, as Franciose failed to
supplement or correct the contact information for a period of two years.
Finally, we addressed this issue in May v. George, 910 N.E.2d 818, 820 (Ind. Ct.
App. 2009). May was injured by a tree that fell from George’s property and sued George
for negligence. Two years after the accident, George filed a motion for summary
judgment, and May attempted to admit into evidence two affidavits – one from his son,
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who had been driving behind his father at the time of the accident, and one from a man
who lived two or three miles from where the accident occurred and was familiar with the
tree that fell. Id. at 822. George moved to strike the affidavits because they had not been
timely produced in discovery, and the trial court granted the motion. Id.
We upheld the trial court’s decision, specifically noting that May was aware that
his son was going to be a witness for over two years and failed to disclose his identity to
George. This failure to disclose undoubtedly had an impact on the parties’ litigation
strategy, so the trial court acted within its discretion when it struck the affidavits. Id. at
826. May, like the recent Supreme Court case of Whitaker, shows the importance of our
consideration of whether the offending party has provided deceptive information in
discovery in addition to its failure to respond.
This representative case law provides us with guidance in terms of factors that
should be considered when determining if the trial court has abused its discretion in
striking a party’s witness under Trial Rule 37(B). In addition to the five factors outlined
in Wiseheart, it is also necessary to consider the six additional factors outlined above.
A review of the case law also shows, however, that while there are cases that deal
with this issue, there are certain facts involved here that make this case unlike past cases.
There was no warning by the trial court that a discovery sanction was impending, the
parties and the court were all aware that Dr. Nash was Wright’s initial expert witness
even though he did not appear on an official list, and the delay in obtaining a new expert
witness was through no fault of Wright. There was no intention to deceive and the
identity of the new expert was turned over to Dr. Miller immediately; this is not like the
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previous case law in which such a severe sanction was warranted. So while our research
shows that we have never reversed the trial court on this issue, there is an outer limit to
the trial court’s discretion on this issue; that limit has been reached here.
After applying the balancing test of these eleven factors to the present case, we
find that the trial court abused its discretion in striking Wright’s expert witness.
Although Wright did not formally designate Dr. Nash as her initial expert witness to Dr.
Miller or the court, based on his affidavit and Wright’s responses to interrogatories, both
parties were aware that Dr. Nash was acting in that capacity. See Appellant’s Br. p. 5;
Appellant’s App. p. 67-68. Wright also did not become aware of her new expert witness,
Dr. Bagner, until January 9, 2011, just one day before she disclosed the name of her
expert to opposing counsel and the court. Appellant’s App. p. 37. Dr. Bagner was
essential to Wright’s case, as he would be necessary to establish the standard of care in
the medical-malpractice claim. There would be no real prejudice or unfair surprise to Dr.
Miller by allowing Dr. Bagner to testify – Dr. Miller was aware that Wright would have
an expert witness, and without a trial date set, Dr. Miller would have ample time in which
to conduct discovery, including deposing Dr. Bagner, and prepare his litigation strategy
accordingly. Also, there were less stringent alternatives available in this case, such that
the trial court could have sanctioned Wright for her failure to comply with the discovery
deadline without taking the drastic measure of striking her expert witness, especially
when her missed deadlines had no real detrimental impact on Dr. Miller.
Turning to the remaining factors, we note that Wright did have a history of not
meeting the trial court’s deadlines, but those delays were not especially egregious. This
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deadline was not of high importance to the court’s docket for this case because no trial
date had been set; there can be no delaying a trial that has yet to be put on the court’s
calendar. The trial court also did not give Wright a warning that any further violations of
discovery orders would result in the striking of her expert, nor did it ever file a motion to
compel this particular information or issue other sanctions against Wright. Finally,
Wright did not provide any misleading information to Dr. Miller or the court – her only
offense was a delay in providing discovery.
Applying these considerations to the facts of this case shows that the decision to
strike Dr. Bagner as a witness was against the logic and circumstances before the trial
court. There were no egregious violations that warranted such a harsh sanction that
would essentially eviscerate Wright’s case and deny her any meaningful day in court.
Finally, we note that the trial court’s order essentially “threw in the kitchen sink”
when articulating its rationale for both dismissing Wright’s action and striking her expert
witness. In addition to noting the missed discovery deadlines, the trial court referred to
the fact that Wright asked for extensions of time and continuances, including one that
was denied. Id. at 357-58. However, asking for extensions of time and continuances is
exactly what litigants are encouraged to do when they are unable to meet the trial court’s
deadlines. Such actions should not have been taken into consideration when coming to
this decision to sanction Wright.
We rightfully give great deference to our trial court colleagues in ruling on
discovery issues, and we understand the necessity of parties following the trial court’s
deadlines. However, this case is unlike prior cases where the delays and missed
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deadlines have been egregious and the sole fault of the offending party – rather, this case
consists of short delays and an expert witness who became unavailable for medical
reasons. Litigants deserve their day in court, and we do not see that the misconduct here
rose to a sufficient level to deny Wright the chance to resolve her claim in court.
We do not mean to suggest or imply by our opinion that the timely observance of
pre-trial deadlines is unimportant, only that when all factors are considered, the extent to
which Wright failed to comply with several deadlines was not sufficiently onerous or
egregious to justify striking her expert and dismissing her claims without warning. We
therefore hold that the trial court abused its discretion in striking Wright’s expert witness
under Trial Rule 37(B). We reverse and remand for further proceedings.
Reversed and remanded.
ROBB, C.J., and NAJAM, J., concur.
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