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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