MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Oct 02 2018, 8:39 am

regarded as precedent or cited before any                                            CLERK
                                                                                 Indiana Supreme Court
court except for the purpose of establishing                                        Court of Appeals
                                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES –
Kyle L. Hankins                                          ANONYMOUS, M.D. AND
Gloria J. Danielson                                      ANONYMOUS ORGANIZATION,
Danielson & Hankins, LLP                                 INC. D/B/A ANONYMOUS
Fortville, Indiana                                       OB/GYN, LLC
                                                         George M. Plews
                                                         Tonya J. Bond
                                                         Josh S. Tatum
                                                         Plews Shadley Racher & Braun
                                                         LLP
                                                         Indianapolis, Indiana

                                                         Lara D. Engelking
                                                         Engelking Law Group, LLC
                                                         Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mary Adamowicz, individually                             October 2, 2018
and in her capacity as guardian                          Court of Appeals Case No.
for Lilly Adamowicz and Lilly                            18A-MI-742
Adamowicz, by next friend Mary                           Appeal from the Bartholomew
Adamowicz,                                               Circuit Court
Appellants-Petitioners,                                  The Honorable Kelly S. Benjamin,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         03C01-1707-MI-4106


Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018                           Page 1 of 8
      Anonymous, M.D. and
      Anonymous Organization, Inc.
      d/b/a Anonymous OB/GYN,
      LLC,
      Appellees-Petitioners,

              v.

      Anonymous Hospital d/b/a
      Anonymous Hospital,
      Defendant,

              v.

      Stephen W. Robertson, in his
      capacity as Acting
      Commissioner of the Indiana
      Department of Insurance,
      Third-Party Respondent.



      Najam, Judge.


                                        Statement of the Case
[1]   Mary Adamowicz, individually and on behalf of her minor daughter Lilly,

      appeals the trial court’s order that she pay attorneys’ fees to Anonymous, M.D.

      and Anonymous Organization, Inc. d/b/a Anonymous OB/GYN, LLC

      (collectively, “Provider”) following Adamowicz’s noncompliance with

      Provider’s discovery requests while she had a proposed medical-malpractice




      Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018   Page 2 of 8
      complaint pending before a medical review panel.1 Adamowicz raises two

      issues for our review, but we need only decide the following issue: whether we

      are required to affirm the trial court’s judgment in light of Adamowicz’s failure

      to timely object to Provider’s allegedly objectionable discovery requests. We

      conclude that, because Adamowicz did not timely seek a protective order in

      accordance with our Trial Rules, we cannot say that the trial court’s judgment

      for Provider is erroneous. Thus, we affirm.2


                                     Facts and Procedural History
[2]   In October of 2016, Adamowicz filed her proposed complaint for damages

      against Provider with the Indiana Department of Insurance. According to

      Adamowicz’s proposed complaint, Provider committed medical malpractice

      during Lilly’s birth. The proposed complaint further alleged that, as a result of

      Provider’s alleged malpractice, Lilly will require special care for the rest of her

      life.


[3]   On November 3, Provider propounded twenty-seven interrogatories, not

      counting subparts, on Adamowicz. Provider also made eighteen requests for

      production. However, although Adamowicz amended her proposed complaint

      after she had received the Provider’s discovery requests, she did not respond to

      those discovery requests. On March 22, 2017, Provider additionally requested



      1
        Anonymous Hospital and Stephen W. Robertson, in his official capacity as Acting Commissioner of the
      Indiana Department of Insurance, do not participate in this appeal.
      2
          We decline Provider’s request for appellate attorneys’ fees.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018               Page 3 of 8
      Adamowicz’s authorization to release medical records to Provider. But

      Adamowicz continued to disregard Provider’s requests.


[4]   On May 31, Provider contacted Adamowicz about the pending discovery

      requests. Adamowicz responded one week later with a partial response to

      Provider’s interrogatories. However, Adamowicz objected to the remainder of

      Provider’s discovery requests as “not relevant” to a medical-malpractice action.3

      Appellants’ App. Vol. 2 at 54. For the same reasons, Adamowicz refused to

      respond to the requests for production and also refused to authorize the release

      of medical records. Nonetheless, Adamowicz did offer to comply with all of

      Provider’s discovery requests if Provider agreed to “waive the panel

      process . . . .” Id. at 59. Provider did not accept that offer.


[5]   After Adamowicz continued to not fully comply with Provider’s discovery

      requests, Provider filed a motion to compel in the trial court. The court held a

      hearing on the motion, after which it ordered Adamowicz to respond to the

      discovery requests listed above. The court further ordered Adamowicz to pay

      Provider’s attorneys’ fees relating to the motion to compel. The court set a

      subsequent hearing to determine a reasonable amount for those fees. While




      3
        Adamowicz also complained that Provider had served the discovery requests by mail only and not also
      electronically, as required by Indiana Trial Rule 26(A.1). But, while Adamowicz mentioned that argument
      in passing in the trial court and does so again on appeal, there is no dispute that Provider responded to
      Adamowicz’s original protest by emailing her the discovery requests. See Appellants’ App. at 62; Appellants’
      Br. at 8. Provider’s email was more than one month before Provider filed the motion to compel, and, as
      explained below, Adamowicz did not respond to the properly served discovery requests by seeking a
      protective order.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018                   Page 4 of 8
      that hearing on fees was pending, rather than comply with the order on the

      motion to compel Adamowicz instead withdrew her proposed complaint,

      rendering moot her need to comply with the trial court’s order.


[6]   Thereafter, the court held an evidentiary hearing on fees, after which it found as

      follows:


              [Adamowicz] had failed to respond to [Provider’s]
              Interrogatories and Requests for Production of Documents for
              over four months. [Provider’s] attorney then sent [Adamowicz’s]
              attorney a letter inquiring about discovery and enclosing
              additional medical authorizations. There was no response.
              [Provider’s] attorney then sent another letter two months later
              again inquiring about the past due discovery and medical
              authorizations. Within the next week, [Adamowicz’s] attorney
              then responded, partially responding to some Interrogatories but
              refusing to fully respond to discovery requests, refusing to sign
              medical authorizations and failing to identify specific medical
              providers of [Mary and Lilly]. [Provider’s] attorney, two weeks
              later, again asked [Adamowicz’s] attorney to supplement
              discovery responses. After numerous inquiries over several
              months, [Adamowicz] failed to proper[l]y respond and
              specifically objected to authorization for records of health care
              providers in a medical malpractice issue. [Adamowicz’s]
              attorney believed the discovery requests exceeded the
              requirements of a Medical Review Panel Proceeding . . . and
              refused to answer. [Adamowicz] did not ask for an extension of
              time to answer discovery or move the court for a protection
              order; [she] did not answer because of the belief [she was] not
              required to under the proceedings and issues. Some of the
              discovery requests were never answered. The court does not find
              that the refusal and/or objection to answer discovery as
              requested and as ordered was substantially justified. Nor does
              the court find there are other circumstances that make an award
              of expenses unjust.
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018   Page 5 of 8
[7]   Appellants’ App. Vol. 2 at 14. The court then ordered Adamowicz to pay

      $17,413.27 to Provider in attorneys’ fees.4 This appeal ensued.


                                       Discussion and Decision
[8]   Adamowicz argues on appeal that the trial court erred when it ordered her to

      pay Provider’s attorneys’ fees. The court’s judgment followed an evidentiary

      hearing at which the court heard witness testimony, and the court’s judgment

      includes findings of fact and conclusions thereon. Our “usual review” of such

      judgments is under the clearly erroneous standard. Anderson v. Wayne Post 64,

      Am. Legion Corp., 4 N.E.3d 1200, 1206 n.6 (Ind. Ct. App 2014), trans. denied; see,

      e.g., Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015).


[9]   As the Indiana Supreme Court has explained, under the clearly erroneous

      standard we apply “a two-tiered standard of review by first determining

      whether the evidence supports the findings and then whether the findings

      support the judgment.” Masters, 43 N.E.3d at 575 (quotation marks omitted).

      “[D]ue regard shall be given to the opportunity of the trial court . . . to judge the

      credibility of the witnesses.” Id. “[W]e will reverse only upon a showing of

      clear error—that which leaves us with a definite and firm conviction that a

      mistake has been made.” Id. (quotation marks omitted). However, we review




      4
          Adamowicz does not dispute the reasonableness of the amount of fees on appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018       Page 6 of 8
       the trial court’s conclusions on questions of law de novo. Gertiser v. Stokes (In re

       Marriage of Gertiser), 45 N.E.3d 363, 369 (Ind. 2015).


[10]   The trial court held its hearing on fees pursuant to Indiana Trial Rule 37(A)(4).

       According to that Rule, the trial court


               shall, after opportunity for hearing, require the party . . . whose
               conduct necessitated the motion [to compel] . . . to pay to the
               moving party the reasonable expenses incurred in obtaining the
               order, including attorney’s fees, unless the court finds that the
               opposition to the motion was substantially justified or that other
               circumstances make an award of expenses unjust.


       Ind. Trial Rule 37(A)(4) (emphasis added).


[11]   On appeal, Adamowicz argues that she was substantially justified to oppose

       Provider’s discovery requests as listed above, and, as such, the trial court erred

       under Trial Rule 37(A)(4) when it awarded attorneys’ fees to Provider. In

       particular, Adamowicz argues that Provider’s discovery requests were not

       relevant requests under Indiana’s Medical Malpractice Act, Ind. Code §§ 34-18-

       0.5-1 to -18-2 (2018) (“the Act”).5 She additionally argues that her opposition

       to Provider’s discovery requests was substantially justified based on certain

       evidence she presented to the trial court at the hearing on fees.




       5
         In her brief on appeal, Adamowicz repeatedly cites the 1998 version of the Indiana Code rather than the
       current version of the Code. See App. R. 22. The 2018 version of the Indiana Code is freely available online
       at http://iga.in.gov/legislative/laws/2018/ic/titles/001.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018                    Page 7 of 8
[12]   However, we need not consider those arguments on appeal because

       Adamowicz did not timely object to the scope of Provider’s discovery requests

       pursuant to our Trial Rules. See T.R. 37(D); see also I.C. § 34-18-11-1(a)(2)

       (stating that the trial court had jurisdiction over the motion to compel discovery

       “in accordance with the Indiana Rules of Procedure”). In particular, Trial Rule

       37(D) prohibits a party who opposes a discovery request from being excused

       from compliance “on the ground that the discovery sought is objectionable

       unless the party failing to act has applied for a protective order as provided by

       [Trial] Rule 26(C).” There is no dispute that Adamowicz never applied for a

       protective order under Rule 26(C). Accordingly, pursuant to Rule 37(D), she

       did not preserve her objections to Provider’s discovery requests. Having not

       preserved her objections, we cannot say that the trial court erred when it

       concluded that her failure to comply with Provider’s discovery requests was not

       substantially justified. Thus, we affirm the trial court’s judgment.


[13]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-742 | October 2, 2018   Page 8 of 8
