ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin L. Likes Jane E. Malloy
Auburn, Indiana William A. Ramsey
Fort Wayne, Indiana
In the FILED
Jan 18 2012, 12:08 pm
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
tax court
No. 02S03-1201-CT-27
RICKEY D. WHITAKER,
Appellant (Plaintiff below),
v.
TRAVIS M. BECKER,
Appellee (Defendant below).
Appeal from the Allen Circuit Court, No. 02C01-0812-CT-40
The Honorable Thomas J. Felts, Judge
The Honorable Craig J. Bobay, Magistrate
On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1006-CT-303
January 18, 2012
Shepard, Chief Justice.
After an automobile collision in which Travis Becker struck Rickey Whitaker from
behind, Whitaker filed suit for personal injuries.
Over the next year, Whitaker’s lawyer ignored repeated requests to provide information
about his client’s medical treatment, finally responded only after the trial court ordered him to do
so, and then supplied false and misleading information, and did so in a way that palpably
damaged the defendant’s ability to ascertain the facts necessary to litigate the only real issue in
the case.
Becker filed a motion for sanctions, seeking dismissal of Whitaker’s suit. The trial court
found that both Whitaker and his lawyer had acted in bad faith and concluded that dismissal was
the only realistic and effective remedy. It dismissed the case. We affirm.
Facts and Procedural History
On December 19, 2008, Rickey D. Whitaker filed suit against Travis M. Becker and
Roger R. Becker, seeking to recover damages for personal injuries. Whitaker alleged that on
December 21, 2006, Travis was driving Roger’s vehicle negligently, and that Travis crashed into
Whitaker’s vehicle from behind as a result. The trial court later dismissed Roger from the suit on
March 24, 2009, leaving Travis as the sole defendant.
On January 19, 2009, Becker’s counsel sent Whitaker’s counsel a set of interrogatories
and a request for production of documents. Becker’s counsel indicated that Indiana Trial Rule
33 required Whitaker to answer by February 23, 2009.1 Whitaker’s counsel neither responded
nor requested an extension of time to respond.
Three separate times, on April 14, April 29, and May 12, 2009, Becker’s counsel wrote to
Whitaker’s lawyer, reminding him that his responses were overdue. (Appellant’s App. at 71–
1
As Whitaker’s counsel noted, Indiana Trial Rule 33 grants a party thirty days to respond to a discovery
request. Because Trial Rule 6(E) provides for an additional three days when a party serves a discovery
request by regular mail, and Trial Rule 6(A) further delays a deadline for responding until the following
business day when the deadline falls on a weekend or legal holiday, Whitaker’s counsel had more than the
standard thirty days either to respond or to request an extension.
2
73.) The third letter, by citing Indiana Trial Rule 26(F), implicitly warned Whitaker’s lawyer
that Becker would involve the trial court if Whitaker did not respond.2 (See Appellant’s App. at
73.) Whitaker’s lawyer did not respond to any of these three letters.
On May 27, 2009, Becker filed a motion to compel discovery. The trial court granted the
motion on June 1, 2009, ordering Whitaker’s counsel to respond to Becker’s discovery requests
by June 16, 2009. Consistent with the rest of the picture, Whitaker’s counsel has recharacterized
this order as “an extension.” (Appellant’s Br. at 4.)
On June 15, 2009, the day before the trial court’s deadline, Whitaker’s counsel finally
served Whitaker’s sworn responses, the following of which later proved inaccurate and
misleading:
Interrogatory No. 45: Has any doctor or any other person assigned
a disability rating to you as a result of the injuries received in said
accident? . . .
Answer: not yet [sic] – surgery can’t be done because of no
insurance coverage. Have to pay up front for surgery.
***
Interrogatory No. 48: Are you presently being treated by any
doctor or medical practitioner for any injury, complaint, symptom
or ailment that you are claiming was caused by the accident in
question? . . .
Answer: Dr. McGee not treated recently – waiting for money for
surgery. Can’t take treatment any further with lack of insurance.
***
2
Indiana Trial Rule 26(F) requires a party to make a reasonable effort to resolve a discovery dispute
informally before moving for an order to compel discovery or a protective order.
3
Interrogatory No. 49: Will such treatment be continued in the
future? . . .
Answer: Not sure. If it would resume it would be with Dr.
McGee, at this time not sure of what he would want to do.
***
Interrogatory No. 52: Itemize all of the medical expenses, hospital
expenses, wages lost, and any other special damages which you are
claiming to have incurred as a result of the injuries alleged to have
been received in said accident in question, which have not been set
forth in the previous answers to these Interrogatories.
Answer: Enclosed Special Damages Brochure. For medical bills
to date.
(Appellant’s App. at 96–99.) Both Whitaker and his lawyer signed the responses. (Appellant’s
App. at 106.) The trial court later found as fact that Whitaker knew these answers were false
when his lawyer filed them. (Appellant’s App. at 15–16.)
Three days later, on June 18th, Whitaker’s lawyer mailed Becker’s counsel a letter
disclosing the fact that Whitaker was undergoing cervical fusion surgery on his spine on—of all
days—June 18th.
It was later revealed that concrete preparations for surgery had been underway for several
weeks, even as Whitaker and his lawyer were declaring in writing that “surgery can’t be done”
due to lack of funds.
Dr. Alan W. McGee of Orthopaedics Northeast had issued surgery orders for Whitaker
on April 14, 2009; Whitaker had undergone pre-operative testing on June 1, 2009, and a pre-
operative physical examination on June 12, 2009. (Appellant’s App. at 112–24.) All these
disclosures specifically contradicted Whitaker’s responses to Interrogatory Nos. 45, 48, and 49.
Moreover, Whitaker’s Special Damages Brochure did not include any expenses for those
services until Whitaker’s counsel supplemented it on September 15, 2009, despite his sworn
4
representation that the Special Damages Brochure was up to date as of June 15, 2009.
(Appellant’s App. at 107–08, 123–24.)
Becker’s counsel eventually filed a motion for sanctions, to which Whitaker’s lawyer
also failed to respond. (Appellant’s App. at 52–70.) The trial court held a hearing on January
21, 2010. In considering Becker’s request for outright dismissal, the court explicitly inquired
into whether lesser sanctions like excluding evidence of the surgery might be adequate. (Tr. at
21–25.) Becker’s counsel argued that the surgery seriously undermined the value of a post-
operative examination in helping to establish whether the accident or Whitaker’s preexisting
degenerative disc disease caused his bulging disc condition because the surgery would have
removed part of the disc. (Tr. at 21–25.)
After considering the range of possible sanctions available under Indiana Trial Rule 37,
the court noted the centrality of the need to resolve whether Whitaker’s surgery was prompted by
his preexisting degenerative disc disease or by the automobile collision. (Appellant’s App. at
13–14.) It found that Whitaker’s actions in depriving Becker of the chance for an independent
medical examination constituted “significant and material prejudice.” (Appellant’s App. at 14.)
The court further found that “[t]he loss of this evidence [could not] justly be cured by a sanction
less severe than dismissal of this cause.” (Appellant’s App. at 15.) The court granted the
motion, finding that Whitaker and his counsel had supplied “deceptive interrogatory answers”
and had done so “in bad faith.” (Appellant’s App. at 16.)
Perhaps now grasping the gravity of the situation, Whitaker’s lawyer filed a motion to
correct error and, for the first time, attached multiple exhibits not previously before the court.
(Appellant’s App. at 125–45.) Whitaker argued that Becker could still request a post-operative
examination and that he in effect provided notice of Whitaker’s need for surgery by submitting
5
claims to Becker’s insurance claim representative during 2008.3 (Appellant’s App. at 125–28.)
He also claimed and that Becker’s counsel could have received notice of Whitaker’s need for
surgery had she pursued a nonparty request.4 (Appellant’s App. 125–28.) The trial court denied
the motion.
On appeal, the Court of Appeals reversed, reinstating Whitaker’s case and finding that
requiring him to pay $625 of Becker’s attorneys’ fees was an adequate sanction. Whitaker v.
Becker, 946 N.E.2d 51 (Ind. Ct. App. 2011).
We grant transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate
Rule 58(A).
Standard of Review
We assign the selection of an appropriate sanction for a discovery violation to the trial
court’s sound discretion. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
Trial judges stand much closer than an appellate court to the currents of litigation pending before
them, and they have a correspondingly better sense of which sanctions will adequately protect
3
The exhibits pertinent to this point included three letters from late 2008 to a claims representative at
Westfield Insurance. (Appellant’s App. at 133–36.) The gist of these letters was that surgery had been
recommended but was not in the offing because Whitaker had no health insurance or other means to pay.
(Appellant’s App. at 133–36.) How Whitaker’s surgery in June 2009 came to be paid for is not clear
from the record.
4
Becker’s lawyer had, in fact, served Whitaker’s counsel on January 19, 2009, with a proposed nonparty
request she intended to serve on multiple medical providers and a body shop. (Appellant’s App. at 137.)
Indiana Trial Rule 34(C) requires a lawyer to give an opposing party at least fifteen days’ notice before
serving a request on a nonparty. Whitaker’s counsel never responded to this notice. It is understandable
that the trial court did not see this sequence of events as shifting responsibility from Whitaker and his
lawyer to the opposing party.
6
the litigants in any given case, without going overboard, while still discouraging gamesmanship
in future litigation. We therefore review a trial court’s sanction only for an abuse of its
discretion. Id. at 180–81.
Outright Dismissal for Misleading Responses That Make a Full Defense Impossible
The purpose of the discovery rules is to allow for minimal trial court involvement and to
promote liberal discovery. Chustak v. Northern Ind. Pub. Serv. Co., 259 Ind. 390, 288 N.E.2d
149 (1972). Although “concealment and gamesmanship were [once] accepted as part and parcel
of the adversarial process,” we have unanimously declared that such tactics no longer have any
place in our system of justice. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65,
77 (Ind. 2006) (quoting Harvey v. Horan, 285 F.3d 298, 317–18 (4th Cir. 2002)). Today, “the
purpose of pretrial discovery is to ‘make a trial less a game of blindman’s bluff and more a fair
contest with the basic issues and facts disclosed to the fullest practicable extent.’” Id. (quoting
United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)).
In service of that goal, Indiana Trial Rule 37(B)(2)(c) expressly provides that a trial court
may impose sanctions, including outright dismissal of the case or default judgment, if a party
fails to comply with an order to compel discovery. As the U.S. Supreme Court has explained,
the purpose of sanctioning discovery violations is “not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 643 (1976).
Whitaker argues that the trial court abused its discretion here because the court’s order
was “primarily founded” on the finding that Whitaker’s actions prevented Becker from obtaining
a valid independent medical examination, which Whitaker claims is not so. (Appellant’s Br. at
9.) Moreover, Whitaker argues that he did not conceal his surgery from Becker and that Becker
suffered no prejudice in any event. (Appellant’s Br. at 14–17.) Finally, Whitaker argues that he
7
did give Becker notice of his need for surgery because he notified a claims representative for
Becker’s insurance company. (Appellant’s Br. at 17–19.)
In response, Becker argues that the trial court acted appropriately because the
uncontroverted evidence shows that Whitaker violated a court order by submitting false and
misleading answers to Becker’s interrogatories, answers to which were already long overdue.
(Appellee’s Br. at 8–12.) Moreover, Becker argues, the trial court found that these responses
materially prejudiced Becker’s defense, a finding the trial court did not necessarily need to make
to warrant dismissal, but one that clearly supports it. (Appellee’s Br. at 12–16.) Finally, Becker
argues that while Whitaker waived any argument that Whitaker gave notice to Becker through a
claims representative for his insurance company, this notice really constituted no notice at all in
any event. (Appellee’s Br. at 16–21.)
This state’s 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. See, e.g., Peters v. Perry, 877 N.E.2d 498 (Ind. Ct. App.
2007); see also Pfaffenberger v. Jackson Cty. Reg’l Sewer Dist., 785 N.E.2d 1180 (Ind. Ct. App.
2003); Wozniak v. Northern Ind. Pub. Serv. Co., 620 N.E.2d 33 (Ind. Ct. App. 1993), trans.
denied; Mulroe v. Angerman, 492 N.E.2d 1077 (Ind. Ct. App. 1986).
A court may sometimes do likewise when a delinquent party did respond but did so in an
incomplete or misleading way. See, e.g., Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628
(Ind. Ct. App. 2008) (forged document and refusals to produce others); see also Mallard’s Pointe
Condominium Ass’n, Inc. v. L&L Investors Group, LLC, 859 N.E.2d 360 (Ind. Ct. App. 2006)
(appearing at deposition without documents under subpoena duces tecum), trans. denied; Ross v.
Bachkurinskiy, 770 N.E.2d 389 (Ind. Ct. App. 2002) (responding to only one of four sets of
interrogatories); Castillo v. Ruggiero, 562 N.E.2d 446 (Ind. Ct. App. 1990) (responding with
reference to allegations in complaint and by claiming information unavailable without showing
why), trans. denied. Although the regular practice is to fashion progressive sanctions leading up
8
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. Prime Mortgage, 885 N.E.2d
at 649.
In Prime Mortgage, for example, a shareholder filed suit against her corporation’s co-
owner, alleging that they each owned fifty percent of the corporation and that it was deadlocked,
and seeking a dissolution. Id. at 637–38. The co-owner missed his first deadline for producing
corporate records, the trial court had granted the shareholder’s motion to compel, and the co-
owner still refused to produce twenty-two of twenty-seven requested documents. Id. at 647. The
only documents the co-owner produced were ones to which the plaintiff already had access. Id.
The co-owner later violated a second order to compel in much the same way. Id. at 647–48.
Of particular interest, however, when the co-owner first answered the shareholder’s
complaint, he produced a forged shareholder’s agreement under which he claimed he had sold
shares to his daughter and an employee. Id. at 637, 650. As a result, the co-owner claimed, the
shareholder did not own fifty percent of the corporation, so the corporation was not deadlocked
and no dissolution was necessary. See id. at 637. On the shareholder’s motion for sanctions, the
trial court entered a default judgment, and the Court of Appeals affirmed. Id. at 638, 652. The
Court of Appeals found that forging the shareholder’s signature on the agreement went to the
heart of the case and forced the shareholder to change the theory on which she proceeded. Id. at
651.
Here, Whitaker’s counsel failed to respond to discovery requests on time, the trial court
issued an order to compel discovery,5 and Whitaker responded in a false and misleading way.
5
Whitaker’s only debate with these facts is that the trial court’s order to compel discovery was nothing
more than an extension of time. (Appellant’s Br. at 4.) According to Whitaker, the court’s order “just set
the date for Whitaker’s responses.” (Appellant’s Br. at 18.) This is flatly not the case. The court’s order
did not “just” set the date for Whitaker’s responses; the Indiana Trial Rules did that. The court’s order
9
Whitaker’s counsel did not respond to Becker’s interrogatories within the time limits set out in
the Indiana Trial Rules. Whitaker’s counsel ignored three separate reminder letters from
Becker’s counsel reminding him his responses were overdue, prompting the order to compel
discovery under Trial Rule 37(A). Whitaker’s counsel violated the court’s order to compel by
providing false and misleading answers that expressly denied any future plans for Whitaker to
undergo future medical treatment when, in fact, Whitaker had already scheduled a surgery to
have a disc removed and vertebrae in his spine fused.
Although Whitaker has characterized the court’s order as being “primarily founded” on
the finding that Whitaker’s actions prevented Becker from obtaining a valid independent medical
examination, it is clear that the court viewed this concern as an aggravating circumstance on top
of and in addition to Whitaker’s misleading violation of the court’s order. We think an
experienced trial judge could easily conclude that a surgery to remove a disc and fuse two
vertebrae together would generate evidentiary problems for a defendant trying to prove that the
plaintiff’s need for surgery really resulted from a preexisting condition—a degenerative disc
disease.
Finally, it is little answer to say, as Whitaker does, that his dishonest act of saying in
writing that no surgery was in the offing precisely at the moment surgery preparation was
occurring should be discounted by his having told Becker’s insurance company’s claims
representative seven months earlier that surgery was recommended but not yet planned.
essentially gave Whitaker one last chance before opening the door to all manner of unpleasant sanctions
under Indiana Trial Rule 37(B).
10
Conclusion
Magistrate Bobay and Judge Felts acted within the range of their discretion in making it
clear to counsel that this type of behavior is unacceptable. We affirm the trial court.
Dickson and David, JJ., concur.
Sullivan, J., dissents, believing the analysis and conclusion of the Court of Appeals in this case to
have been correct.
Rucker, J., dissents.
11