Deborah A. Cleveland, as Personal Representative of the Estate of Robin W. Cleveland v. Clarian Health Partners, Inc.
976 N.E.2d 748
Ind. Ct. App.2012Background
- Deborah Cleveland, as Personal Representative of the Estate of Robin W. Cleveland, sued Clarian Health Partners, Inc. for medical malpractice; trial court denied motion to correct error and relief from judgment.
- Robin Cleveland fell ~30 feet at a construction site in 2002; he was treated at Methodist Hospital and died in surgery after an injury sequence including chest tubes and a left hemothorax.
- Dr. Choi, a key witness for Cleveland, testified in 2004 deposition about timing of decisions to move to surgery; her deposition contained inconsistent timeline details.
- A Medical Review Panel concluded no malpractice in 2008; the case proceeded to trial in 2011, where Cleveland emphasized Dr. Choi’s recollection as decisive.
- During trial, Cleveland impeached Dr. Choi with deposition testimony; Choi later clarified or changed certain recollections after reviewing records.
- The Indiana Court of Appeals held Cleveland could raise a claim of surprise on appeal, discussed Rule 26(E)(2) duties, and concluded Clarian did not commit Rule 60(B)(3) misconduct; the denial of motion to correct error and relief from judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surprise in witness testimony raised on appeal | Cleveland may raise surprise for first time on appeal | Clarian argues waiver due to lack of contemporaneous objection or mistrial | Surprise may be argued on appeal; review proceeds on merits |
| Duty to amend nonparty deposition under Rule 26(E)(2) | Clarian had duty to seasonably amend Choi’s deposition | Rule 26(E)(2) duty uncertain; amendment not clearly required here | Assuming duty exists, no established misconduct on this record |
| Misconduct under Rule 60(B)(3) for not amending deposition | Clarian misconduct by not supplementing deposition | No misconduct proven; testimony inconsistencies arose independently | Movant failed to prove misconduct; trial court’s denial affirmed |
Key Cases Cited
- Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65 (Ind. 2006) (surprise and duty to amend in discovery contexts; safeguards under TR 60 and TR 26)
- Miller v. Moore, 696 N.E.2d 888 (Ind. Ct. App. 1998) (abuse of discretion standard for Trial Rule motions)