MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Jun 29 2020, 9:14 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                           CLERK
                                                                         Indiana Supreme Court
purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
Karl L. Mulvaney                                         Bruce D. Jones
Nana Quay Smith                                          Keith A. Gaston
Dentons Bingham Greenebaum LLP                           Rachel O. Webster
Indianapolis, Indiana                                    Cruser, Mitchell, Novitz, Sanchez,
                                                         Gaston & Zimet, LLP
James Ludlow
                                                         Indianapolis, Indiana
James F. Ludlow, Attorney at Law P.C.
Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

Deborah Doherty and Sandra                               June 29, 2020
Luedtke, as agent and attorney-                          Court of Appeals Case No.
in-fact for Deborah Doherty,                             19A-CT-2807
Appellants/Plaintiffs,                                   Appeal from the Marion Superior
                                                         Court
        v.                                               The Hon. Kurt Eisgruber, Judge
                                                         Trial Court Cause No.
Purdue Properties I, LLC;                                49D06-1602-CT-4909
Campus Apartments
Management, LLC; Corridor,
LLC; and Corridor Ventures,
Inc.,
Appellees/Defendants.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020                    Page 1 of 22
      Bradford, Chief Judge.


                                          Case Summary
[1]   Deborah Doherty suffers from hydrocephalus, a condition in which fluid

      accumulates on her brain, and has been receiving Social Security benefits

      related to her condition since 2010. In February of 2014, Doherty slipped and

      fell on snow-covered stairs outside of her West Lafayette apartment building,

      which was owned and operated by Purdue Properties I, LLC; Campus

      Apartments Management, LLC; Corridor, LLC; and Corridor Ventures, Inc.

      (collectively, “Purdue”). In February of 2016, Doherty and her mother Sandra

      Luedke (collectively, “Appellants”) sued Purdue for negligence, claiming that

      Doherty had suffered a traumatic brain injury (“TBI”) in her fall. In September

      of 2018, Appellants sought leave to amend their complaint to add a request for

      punitive damages, which request the trial court ultimately denied.

[2]   Meanwhile, Purdue had requested production of, inter alia, Doherty’s Social

      Security Administration (“SSA”) records. After Appellants refused to produce

      the SSA records, Purdue sought and obtained an order to compel them to

      request the release of records related to her hydrocephalus. When Appellants

      refused to comply with the trial court’s order to compel, Purdue moved for a

      rule to show cause why they should not be held in contempt or sanctioned.

      After a hearing, the trial court ordered Appellants’ complaint dismissed as a

      sanction for their refusal to comply with its order to compel. Appellants

      contend that the trial court abused its discretion in dismissing their complaint

      because (1) Purdue failed to establish that Doherty’s SSA records were
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 2 of 22
      necessary to its defense; (2) federal law prevents the trial court from ordering

      Appellants to request the release of the records; (3) even if the trial court had the

      authority to order them to request the release of the SSA records, dismissal was

      an inappropriate sanction for refusing to do so; and (4) the trial court abused its

      discretion in denying them leave to amend their complaint. Because we

      disagree with Appellants’ first three contentions and conclude that their fourth

      is moot, we affirm.


                            Facts and Procedural History
[3]   Doherty, born in 1969, suffers from congenital hydrocephalus, a condition in

      which excess cerebrospinal fluid builds up within the fluid-containing cavities

      or ventricles of the brain. Symptoms of hydrocephalus that may be seen in

      adults include headache, difficulty remaining awake, loss of coordination or

      balance, bladder control issues, and impaired vision and cognition. Doherty

      began living independently in Texas in 2003, but around 2005 Doherty began

      having difficulty managing her money, a job, her apartment, and other aspects

      of living independently. In early 2008, Doherty returned to Indiana and, on

      February 29, underwent a neuropsychological evaluation performed by Dr. Jill

      Salem, Ph.D., HSPP. After Doherty’s evaluation by Dr. Salem and upon her

      advice, Luedke applied for disability benefits for Doherty with the SSA. The

      SSA approved the application for disability benefits in 2010.

[4]   At approximately 7:45 a.m. on February 18, 2014, Doherty left the West

      Lafayette apartment building in which she had been living for five years, which

      building was owned and operated by Purdue. The door used by Doherty led to
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 3 of 22
      a set of five stairs leading up that were covered with packed snow. As Doherty

      attempted to climb the stairs, she lost her footing, fell backwards, and hit her

      head on the door frame. On February 10, 2016, Appellants filed suit against

      Purdue alleging, inter alia, negligence on the part of Purdue and that Doherty’s

      fall had caused a TBI. Appellants claimed that Doherty’s alleged accident-

      related TBI had caused significant cognitive and physical deficiencies that were

      not present before her fall.

[5]   On September 21, 2018, Appellants sought leave to amend their complaint to

      add a request for punitive damages based on the allegation that Purdue’s

      actions had exhibited a conscious disregard for the safety of its residents.

      Although the trial court initially granted Appellants leave to amend their

      complaint, on October 15, 2018, the trial court granted Purdue’s motion to

      reconsider, withdrawing its leave.

[6]   Meanwhile, Purdue had sought discovery of Doherty’s medical records before

      and after her fall. On March 4, 2016, Appellants provided Purdue with a

      compact disc containing a number of Doherty’s medical records from before

      and after the fall. The medical records were not made part of the record below,

      and it is unknown how many related to treatment for Doherty’s hydrocephalus.

      At some point, Purdue requested that Appellants sign a request prepared by it

      to release Doherty’s SSA records. Appellants refused to sign the release, and,

      on February 27, 2019, Purdue moved to compel discovery.

[7]   On April 15, 2019, the trial court held a hearing on Purdue’s motion to compel.

      At the hearing, Purdue argued that discovery had left a gap from 2008 to 2015
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 4 of 22
      regarding medical records for Doherty’s hydrocephalus and that her SSA

      records were necessary to evaluate her condition prior to and after her fall in

      February of 2014. Purdue also noted that Doherty herself was no longer

      competent to testify regarding her prior medical treatment and argued that,

      therefore, it was the only way to obtain the information it sought. Appellants

      argued that the trial court lacked the legal authority to order them to request the

      release of Doherty’s SSA records and that they were not necessary in any event

      because of the medical records they had produced in March of 2016.

      Appellants did not admit any of those medical records at the hearing, and there

      is no indication of how many, if any, of them related to the treatment of

      Doherty’s hydrocephalus. Following the hearing, the trial court granted

      Purdue’s motion to compel discovery, ordered Purdue to modify the SSA

      request to limit the release of only the records necessary to fill in the gaps in

      Doherty’s medical history, and ordered the parties to execute a confidentiality

      agreement.

[8]   Appellants refused to comply with the trial court’s order to compel, and, on

      July 15, 2019, Purdue petitioned for a rule to show cause why Appellants

      should not be held in contempt of court or, in the alternative, why they should

      not be sanctioned pursuant to Indiana Trial Rule 37(B). On October 29, 2019,

      the trial court ordered Appellants’ complaint dismissed pursuant to Trial Rule

      37(B)(2)(c) as a sanction for refusal to comply with the order to compel

      discovery.


                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 5 of 22
            I. Whether the Trial Court Abused its Discretion in
                   Dismissing Appellants’ Complaint
[9]    Appellants contend that the trial court abused its discretion in dismissing their

       complaint as a discovery sanction for refusing to sign a request to release

       Doherty’s SSA records. Pursuant to Trial Rule 26(B)(1), a party “may obtain

       discovery regarding any matter, not privileged, which is relevant to the subject-

       matter involved in the pending action whether it relates to the claim or defense

       of the party seeking discovery[.]” The purpose of Indiana’s discovery rules is

       “to allow a liberal discovery procedure” for the purpose of providing litigants

       “with information essential to the litigation of all relevant issues, eliminate

       surprise and to promote settlement.” Canfield v. Sandock, 563 N.E.2d 526, 528

       (Ind. 1990). A trial court is vested with “broad discretion in ruling on issues of

       discovery.” Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 321 (Ind. App. Ct.

       2006). Appellants argue that Purdue failed to establish that Doherty’s SSA

       records were necessary and the trial court lacked the authority to order them to

       request their release even if they were. Appellants also argue that, even if the

       trial court properly ordered the production of Doherty’s SSA records, dismissal

       was an inappropriately punitive sanction for their refusal to do so.

                           A. Whether Purdue Established that
                          Doherty’s SSA Records were Necessary
[10]   Appellants contend that Purdue failed to establish the need for Doherty’s SSA

       records. When a discovery request is made, the trial court must first determine

       whether the information sought is relevant to the issue being tried. Bishop v.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 6 of 22
       Goins, 586 N.E.2d 905, 907 (Ind. Ct. App. 1992). If the information is not

       relevant, no further inquiry is necessary, and the discovery is prohibited. Id.

       The trial court, however, can also deny a discovery request for relevant material

       when it determines that information sufficient to prepare the case has already

       been exchanged or when the information sought has already been provided

       through prior discovery. Coster v. Coster, 452 N.E.2d 397, 400 (Ind. Ct. App.

       1983). Because of the fact-sensitive nature of discovery issues, the trial court’s

       decisions are clothed with a presumption of correctness on appeal. Lucas v.

       Dorsey Corp., 609 N.E.2d 1191, 1197 (Ind. Ct. App. 1993), trans. denied.

[11]   Appellants did not argue below that Doherty’s SSA records were not relevant,

       only that they were not necessary because of the medical records they had

       already produced. Consequently, to the extent that Appellants argue on appeal

       that the SSA records were not relevant, they have waived that claim for

       appellate review. See, e.g., Smith v. Marion Cty. Dep’t of Pub. Welfare, 635 N.E.2d

       1144, 1148 (Ind. Ct. App. 1994) (“This court has determined that a party may

       not raise an issue for the first time on appeal.”), trans. denied. That leaves us

       with the question of whether the trial court abused its discretion in determining

       that the SSA records were necessary.

[12]   At the hearing on the motion to compel discovery, Purdue argued that there

       was a gap in relevant medical records from 2008 to 2015 and noted that it had

       attempted to obtain additional records from Dr. Salem without success. Purdue

       also noted that Doherty was no longer competent to testify and personally

       provide more information on her medical care during the relevant time period,

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 7 of 22
       arguing that that left them with no other way to obtain the information they

       sought. Appellants contended that the medical records they provided in March

       of 2016 would render production of Doherty’s SSA records duplicative. None

       of these medical records were put into the record below, however, and

       Appellants did not argue, much less establish, that any of them had anything to

       do with the treatment or possible progression of Doherty’s hydrocephalus. The

       trial court was free to infer from all of this, and apparently did, that there was,

       in fact, a gap that the already-produced records did not fill, rendering discovery

       of the SSA records necessary for Purdue’s defense.

[13]   Appellants argue that Purdue failed to establish that Doherty’s SSA records

       were necessary to its defense because it did not introduce evidence at the

       motion-to-compel hearing tending to show that necessity. Appellants cite to no

       authority that stands for the proposition that the necessity for discovery of

       certain materials must be established by the introduction of evidence, and our

       research has failed to uncover any. It seems to us that the trial court should be

       able to consider the representations of the parties in such proceedings, with the

       parties being free to introduce evidence to support (or refute) a claim of

       relevance and necessity if they so desire. We believe it is worth noting that

       here, while Appellants contested Purdue’s claim that a gap existed in Doherty’s

       medical history, they did not point to any particular medical records or offer

       any other evidence to refute Purdue’s claim. Given what is intended to be the

       informal and self-executing nature of discovery, we decline to hold that a trial

       court must essentially hold a full evidentiary hearing to resolve any discovery

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 8 of 22
       dispute that arises. Under the circumstances, we conclude that the trial court

       did not abuse its discretion in this regard.

        B. Whether Federal Law Prevented the Trial Court from
       Ordering Appellants to Request the Release of Doherty’s SSA
                                Records
[14]   Appellants contend that the Federal Privacy Act (“FPA”) and SSA regulations

       do not permit the trial court to order them to request the release of Doherty’s

       SSA records. Purdue, while acknowledging that the trial court lacked the

       authority to directly order SSA to release the records, contends that the trial

       court did, in fact, have the authority to order Appellants to request the release

       of the records.

                                                  1. The FPA
[15]   We begin with the relevant language of the FPA, which provides, in part, as

       follows:

               No agency shall disclose any record which is contained in a
               system of records by any means of communication to any person,
               or to another agency, except pursuant to a written request by […]
               the individual to whom the record pertains, unless disclosure of
               the record would be […] pursuant to the order of a court of
               competent jurisdiction[.]
       5 U.S.C. §552a(b).

[16]           The first step in interpreting a statute is to determine whether the
               Legislature has spoken clearly and unambiguously on the point in
               question. When a statute is clear and unambiguous, we need not
               apply any rules of construction other than to require that words
               and phrases be taken in their plain, ordinary, and usual sense.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 9 of 22
               Clear and unambiguous statutes leave no room for judicial
               construction.
       City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007).

[17]   Although it is undisputed that the FPA prevents the Marion Superior Court

       from directly ordering SSA to release Doherty’s records, it does not address the

       situation presented by this case, where the trial court has ordered Doherty to

       request their release. It is well-settled that “it is just as important to recognize

       what a statute does not say as it is to recognize what it does say. A court may

       not read into a statute that which is not the expressed intent of the legislature.”

       Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000) (citation omitted),

       trans. denied. Congress’s intent, as expressed by the plain language of the FPA,

       does not prohibit a state court from ordering a party to request the release the

       party’s SSA records.

[18]   That said, Appellants do not actually claim that ordering a party to request the

       release of its SSA records is explicitly barred by the FPA, arguing instead that

       such an order is essentially the same thing as a direct order to the SSA to release

       them. We cannot agree. While a state trial court may not directly order the

       SSA to release records, it can unquestionably order a party within its

       jurisdiction to comply with a discovery order, which is what occurred here.

       While both procedures could lead to essentially the same result, that does not

       mean that they are equivalent.

[19]   The court in Rodriguez v. IBP, Inc., 243 F.3d 1221 (10th Cir. 2001), cert. denied,

       drew the same conclusion in a case with closely analogous facts. In that case,

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 10 of 22
       Rodriguez sued his former employer IBP for alleged retaliatory discharge after

       he was injured on the job. Id. at 1224. Shortly before trial, IBP became aware

       that Rodriguez had been receiving disability benefits and sought production of

       his SSA records. Id. at 1225. Rodriguez did not produce the records before

       trial, which ended with a jury verdict in his favor and an award of damages. Id.

       IBP filed a post-trial motion seeking an order requiring Rodriguez to request the

       release of his SSA records, which it hoped to use to reduce the award of

       damages. Id. The district court granted IBP’s motion, and when Rodriguez

       failed to execute the request for the records, it found him in contempt. Id.

[20]   Rodriguez argued on appeal that the district court did not have the authority to

       order him to request the release of his SSA records, citing to 42 U.S.C.

       §1306(a), which provides, in part, that

               [n]o disclosure of any […] record […] obtained at any time by the
               Secretary or by any officer or employee of the Department of
               Health and Human Services in the course of discharging the duties
               of the Secretary under this chapter […] shall be made except as the
               Secretary may by regulations prescribe[.]
       The Tenth Circuit Court of Appeals noted that subsection (b) of the same

       statute, along with 20 C.F.R. §401.100(a), permitted release of an individual’s

       SSA records with the individual’s consent and concluded that the district court

       did, in fact, have the authority to order Rodriguez to provide that consent.

       Rodriguez, 243 F.3d at 1230 (citing United States ex rel. Woodard v. Tynan, 776

       F.2d 250, 252 (10th Cir. 1985) (en banc) (concluding that federal district courts

       have the authority to order defendants to request release of their records from


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 11 of 22
       parties maintaining them so defendants can comply with discovery

       obligations)).

[21]   The Rodriguez court drew the same distinction we draw today:

               Rodriguez claims the Social Security Administration regulations
               do not allow a district court to order the release of Social Security
               records. The regulation governing orders from the court, however,
               does not apply in this case because the order directed Rodriguez to
               sign a release. The district court did not order the Social Security
               Administration directly to release the records.
       Rodriguez, 243 F.3d at 1230 n.5. We agree with the Rodriguez court that

       ordering a party to comply with discovery is not the same thing as ordering the

       SSA to release records, even if the result is the same.

[22]   Appellants also argue that a trial court cannot order a party to request the

       release of SSA records because such a request would not be “voluntary.” We

       disagree and think, in fact, that it is something of a misnomer to characterize

       the compelled production of Doherty’s SSA records as involuntary, given that

       Appellants themselves put Doherty’s medical history in issue. This court has

       recognized that the right to privacy, “like any other right that resides in an

       individual, may be waived or lost. It is waived by express or implied consent

       and lost by a course of conduct which estops its assertion.” Cont’l Optical Co. v.

       Reed, 119 Ind. App. 643, 649, 86 N.E.2d 306, 309 (1949). As an illustration of

       this principle in action, the Indiana Supreme Court has concluded that “when a

       patient who is a party to a lawsuit places his mental or physical condition in

       issue, he has done an act which is so incompatible with an invocation of the

       physician-patient privilege as to that condition that he has impliedly waived the
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 12 of 22
       privilege to that extent.” Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990).

       We find the holding of Canfield to be equally applicable to the asserted privacy

       right in this case. Consequently, we conclude that Appellants cannot withhold

       materials relevant to Doherty’s medical history on the basis that their

       production would be “involuntary” when they themselves put her medical

       history in issue.

[23]   Appellants nonetheless draw our attention to two federal cases that they claim

       stand for the proposition that a request for the release of SSA records must be

       voluntary. Neither case stands for this proposition. When the court in Wheeler

       v. City of Orlando, 2008 WL 5111244 (M.D. Fla. 2008), concluded that Orlando

       was not entitled to an order to request the release of Wheeler’s SSA records, it

       was on the basis that the records would be “duplicative under [the]

       circumstances[,]” not because the request would have been involuntary. Id. at

       *3. Similarly, the court in In re Becker, 2010 WL 3119903 (Bankr. W.D. Tex.

       2010), declined to order the release of SSA records, also not because such a

       release would have been involuntary but, rather, because the party seeking them

       “ha[d] not demonstrated the relevancy of the information sought through the

       waivers, nor shown cause that further compelled disclosure of […] SSA

       information [wa]s necessary.” Id. at *4. Wheeler and Becker do not help

       Appellants.

                                     2. Federal Preemption Doctrine
[24]   Appellants also argue that the federal preemption doctrine prevents the trial

       court from ordering them to request the release of Doherty’s SSA records.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 13 of 22
       Appellants contend that the trial court’s order to execute the release conflicted

       with federally-mandated protections against the unwanted disclosure of SSA

       records and circumvented the allegedly-mandatory federal procedure for

       obtaining such records via an order from a court of competent jurisdiction.

       Pursuant to the federal preemption doctrine, state laws that interfere with, or

       are contrary to, federal law are invalidated. Kuehne v. United Parcel Serv., Inc.,

       868 N.E.2d 870, 873 (Ind. Ct. App. 2007). “By the same token, a cardinal rule

       of preemption analysis is the ‘starting presumption that Congress d[id] not

       intend to supplant state law.’” Id. (quoting New York State Conf. of Blue Cross &

       Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995)) (brackets in

       Kuehne). “Moreover, the presumption against preemption takes on added

       significance ‘where federal law is said to bar state action in fields of traditional

       state regulation.’” Id. (quoting New York State Conf. of Blue Cross & Blue Shield

       Plans, 514 U.S. at 654).

[25]   The doctrine of federal preemption has three branches: (1) express preemption,

       where a statute expressly defines the scope of its preemptive effect; (2) field

       preemption, where a pervasive scheme of federal regulation makes it reasonable

       to infer that Congress intended exclusive federal regulation of the area; and (3)

       conflict preemption, where it is impossible to comply with both federal and

       state law, “or where state law stands as an obstacle to the accomplishment and

       execution of federal purposes and objectives.” Id. “Put another way,

       congressional intent to preempt state law can be found in the explicit language

       of a statute, implied from the existence of a comprehensive regulatory scheme,

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 14 of 22
       or inferred when the state law in question directly conflicts with a federal law or

       stands as an obstacle to achievement of federal objectives. Id. (citing Silkwood v.

       Kerr-McGee Corp., 464 U.S. 238 (1984)). “‘The question, at bottom, is one of

       statutory intent, and we accordingly begin with the language employed by

       Congress and the assumption that the ordinary meaning of that language

       accurately expresses the legislative purpose.’” Micronet, Inc. v. Ind. Util. Reg.

       Comm’n, 866 N.E.2d 278, 288 (Ind. Ct. App. 2007) (quoting Morales v. Trans

       World Airlines, Inc., 504 U.S. 374, 383 (1992) (internal quotation marks and

       citations omitted)), trans. denied.

[26]   As mentioned, the FPA provides for the release of SSA records pursuant to a

       written request by the individual to whom the record pertains or an order from

       a court of competent jurisdiction. 5 U.S.C. § 552a(b). As for express

       preemption, it does not apply here because section 552a does not explicitly

       prevent state courts from ordering litigants to request release of SSA records.

       The same missing language (or lack of any other language indicating that

       Congress intended to exclusively regulate the field) fatally undermines

       Appellants’ field-preemption argument.

[27]   Appellants, however, focus primarily on their conflict-preemption claim,

       arguing that allowing the Marion Superior Court to order them to authorize the

       release of Doherty’s SSA records “nullifies the purpose for which these

       regulations exist[,]” which is to “protect these sensitive documents from public

       disclosure in civil litigation where their confidentiality cannot be guaranteed.”

       Appellants’ Br. p. 26. We do not believe that a court order to request the

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 15 of 22
       release of SSA records does any such thing. While the clear intent of Congress

       in enacting the FPA was to protect sensitive documents from unwarranted

       disclosure, that protection is not without limits, with the FPA itself including

       two procedures through which records can be released, one of which is when

       the relevant individual requests it. We cannot agree that using a statutory

       method to secure the release of SSA documents thwarts the purpose of the very

       statute in which it appears.

[28]   Appellants draw our attention to In re Beck’s Superior Hybrids, Inc. v. Monsanto Co.

       et al., 940 N.E.2d 352 (Ind. Ct. App. 2011), which stands for the proposition

       that parties may not use the Indiana Trial Rules to accomplish discovery where

       that discovery is exclusively governed by methods provided by federal law. Id.

       at 367–68. While the holding in Beck’s Superior Hybrid might have relevance in

       this case if an order from a court of competent jurisdiction (i.e., a federal court)

       were the only way to secure the release of SSA records, that is not the case. As

       mentioned, Purdue is seeking to obtain Doherty’s SSA records via a request

       from her to release them, which is also a procedure permitted by the FPA and is

       not equivalent to seeking a court order. Our opinion in Beck’s Superior Hybrids

       does not help Appellants.

                                  3. Use of SSA Records in Civil Cases
[29]   Appellants also argue that federal law prohibits the release of SSA records for

       use in civil cases, citing to 20 C.F.R. §401.180. Section 401.180, however, only

       applies to the release of SSA records pursuant to an order from a court of

       competent jurisdiction:

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 16 of 22
                We disclose information in compliance with an order of a court of
                competent jurisdiction if—
                   (1) another section of this part specifically allows such
                   disclosure, or
                   (2) SSA, the Commissioner of Social Security, or any officer or
                   employee of SSA in his or her official capacity is properly a
                   party in the proceeding, or
                   (3) disclosure of the information is necessary to ensure that an
                   individual who is accused of criminal activity receives due
                   process of law in a criminal proceeding under the jurisdiction
                   of the judicial branch of the Federal government.
       20 C.F.R. §401.180(e) (emphasis added). Because Purdue did not seek the

       release of Doherty’s SSA records via a direct court order, this regulation has no

       bearing on this case.

                                    C. Dismissal as a Sanction
[30]   Appellants contend that even if the trial court did not abuse its discretion in

       ordering them to request a release of Doherty’s SSA records, ordering the

       dismissal of their complaint as a sanction was unduly punitive. We will reverse

       a trial court’s decision regarding sanctions imposed for violating a discovery

       order issued pursuant to Indiana Trial Rule 37(B)(2)(c) only for an abuse of

       discretion. Marshall v. Woodruff, 631 N.E.2d 3, 5 (Ind. Ct. App. 1994). A

       discovery sanction is an abuse of discretion “if it is clearly against the logic and

       circumstances before the court, or when the trial court has misinterpreted the

       law.” Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App.

       2008).




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 17 of 22
[31]   Discovery matters are fact-sensitive by nature and, therefore, a trial court’s

       ruling “is cloaked with a strong presumption of correctness on appeal.”

       Scroghan, 851 N.E.2d at 323. “Trial [Court] 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 the

       litigants in any given case.” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind.

       2012). “Absent clear error and resulting prejudice, the trial court’s

       determination with respect to violations and sanctions should not be

       overturned.” Carter v. Robinson, 977 N.E.2d 448, 455 (Ind. Ct. App. 2012),

       trans. denied. In determining whether a sanction is just, we recognize that

       Indiana “has a marked judicial deference for deciding disputes on their merits

       and for giving parties their day in court, especially in cases involving material

       issues of fact, substantial amounts of money, or weighty policy

       determinations.” Prime Mortg., 885 N.E.2d at 649.

[32]   As the Indiana Supreme Court has stated,

               The purpose of the discovery rules is to allow for minimal trial
               court involvement and to promote liberal discovery. 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.
               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.
               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 of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 18 of 22
               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,
               96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976).
       Whitaker, 960 N.E.2d at 115 (partially cleaned up).

[33]   Under the circumstances of this case, we conclude that Appellants have failed

       to establish an abuse of discretion in this regard. Appellants failed to produce

       Doherty’s SSA records when they were requested, forcing Purdue to seek and

       obtain an order to compel discovery from the trial court. Appellants then

       violated the order to compel when they still refused to produce Doherty’s SSA

       records. Dismissal has often been upheld as an appropriate sanction in similar

       cases, and we see nothing in the record to suggest that this case is materially

       different. See, e.g., Peters v. Perry, 877 N.E.2d 498, 499 (Ind. Ct. App. 2007)

       (concluding that default judgment was appropriate sanction where plaintiff

       refused to answer interrogatories and violated order to compel response);

       Pfaffenberger v. Jackson Cty. Reg’l Sewer Dist., 785 N.E.2d 1180, 1184–85 (Ind. Ct.

       App. 2003) (same); Wozniak v. N. Ind. Pub. Serv. Co., 620 N.E.2d 33, 36 (Ind. Ct.

       App. 1993) (concluding that default judgment was appropriate sanction where

       plaintiff refused to comply with requests for production and violated order to

       compel), trans. denied.

[34]   If anything, the need for dismissal is even more compelling in this case, as

       Appellants refused to comply with the order to compel despite the order being

       limited to only those records necessary to fill in the gaps in Doherty’s medical

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 19 of 22
       history and including an order for the parties to execute a confidentiality

       agreement. It seems to us that the trial court went out of its way to strike an

       appropriate balance between protecting Doherty’s privacy interests and

       Purdue’s interest in being able to effectively defend itself against Appellants’

       claims. That effort, however, still did not result in Appellants’ compliance.

       Under the circumstances, we cannot say that the trial court’s dismissal of

       Appellants claim amounts to an abuse of discretion.

[35]   Appellants contend that the trial court should have imposed a lesser sanction

       for their noncompliance with its motion to compel, such as a small monetary

       sanction, or, in the alternative, should have granted its motion to certify its

       challenge to the order for interlocutory appeal. We note that a trial court is

       under no obligation to impose a lesser sanction before ordering dismissal

       pursuant to Trial Rule 37. Bankmark of Fla., Inc. v. Star Fin. Card Servs., Inc., 679

       N.E.2d 973, 978 (Ind. Ct. App. 1997). Appellants nonetheless contend that

       either of their suggested approaches would have allowed them to obtain

       appellate review1 of the trial court’s motion to compel without jeopardizing

       their claim. While this may be true, the point of the sanctions is to punish the

       party who violates discovery orders and deter future violations. See Whitaker,

       960 N.E.2d at 115. In the end, imposing a sanction that a recalcitrant party

       requests for their convenience does not strike us as much of a sanction.




       1
         Even if the trial court had certified the challenge for interlocutory appeal, we still would have had to accept
       jurisdiction, by no means a foregone conclusion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020                      Page 20 of 22
                         II. The Motion to Amend Complaint
[36]   Finally, Appellants contend that the trial court abused its discretion in

       ultimately denying their September 21, 2018, motion to amend their complaint

       to add a claim for punitive damages based on the allegation that Purdue’s

       actions had exhibited a conscious disregard for the safety of its residents. In

       light of our affirmance of the trial court’s dismissal of Appellants’ claim as a

       sanction for the violation of a discovery order, this claim is moot. “[W]hen we

       are unable to provide effective relief upon an issue, the issue is deemed moot,

       and we will not reverse the trial court’s determination ‘where absolutely no

       change in the status quo will result.’” Jones v. State, 847 N.E.2d 190, 200 (Ind.

       Ct. App. 2006) (citation omitted), trans. denied. Even if we were to determine

       that the trial court abused its discretion in denying Appellants’ leave to amend

       their complaint, such a determination would have no effect on the trial court’s

       dismissal, which was based on Appellants’ completely-unrelated refusal to

       produce Doherty’s SSA records.


                                               Conclusion
[37]   We conclude that (1) the trial court did not abuse its discretion in determining

       that Doherty’s SSA records were discoverable, (2) neither relevant federal law

       nor the federal preemption doctrine prevented the trial court from ordering

       Appellants to request their release, and (3) the trial court did not abuse its

       discretion in dismissing Appellants’ claim as a sanction for refusing to comply

       with its order to request their release. We further conclude that Appellants’


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 21 of 22
       claim that the trial court abused its discretion in denying them leave to amend

       their complaint is moot.

[38]   The judgment of the trial court is affirmed.


       Baker, J, and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020   Page 22 of 22
