Dennis Hickey v. Erika Schaadt (mem. dec.), 02A04-1611-CT-2672

On August 7, 2013 Dennis Hickey was in a collision with Erika Schaadt; Hickey sued Schaadt and her employer Visiting Angels for personal injuries. Schaadt later settled her counterclaims.
The trial court issued multiple case-management/pretrial orders requiring exchange and filing of witness lists and exhibits; the final order required identification by name, address, and phone, and warned that failure to comply would preclude presentation of witnesses.
Hickey failed to timely file the required witness/exhibit list (one filing was 38 days late; earlier required filings were also late or omitted); some belated entries lacked specificity (e.g., broad listings of any physicians at certain hospitals).
Schaadt moved to exclude Hickey’s evidence under T.R. 37; the court granted the motion and excluded Hickey’s witnesses. Visiting Angels then moved to dismiss under T.R. 41(E); the trial court granted dismissal with costs.
The Court of Appeals reviewed whether the exclusion and the ensuing T.R. 41(E) dismissal were proportional sanctions, favoring resolution on the merits where possible. The appellate court reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether T.R. 37 exclusion of Hickey’s witnesses was justified	Hickey argued his witnesses/exhibits hadn’t changed and additional filing would be duplicative; implied no prejudice to defendants	Defendants argued Hickey violated court orders and exclusion was appropriate to enforce compliance	Court: Exclusion was unjustified here because most relevant witnesses had been identified and defendants knew their addresses; exclusion was overly harsh
Whether T.R. 41(E) dismissal with prejudice was appropriate following the exclusion	Hickey contended dismissal was excessive given counsel’s misconduct (not client) and minimal prejudice to defendants	Defendants argued dismissal was proper for failure to comply with court orders	Court: Dismissal was an abuse of discretion; trial court should impose lesser sanctions and allow merits resolution

Wright v. Miller, 989 N.E.2d 324 (Ind. 2013) (discusses overlap of T.R. 37 and T.R. 41 and preference for sanctions that minimally affect the merits)
Office Environments v. Lake States Ins. Co., 833 N.E.2d 489 (Ind. Ct. App. 2005) (articulates factors to balance before imposing a T.R. 41(E) dismissal)
Farinelli v. Campagna, 338 N.E.2d 299 (Ind. 1975) (T.R. 41 applies to enforcement of court orders)
Nichols v. Indiana State Highway Dep’t, 491 N.E.2d 227 (Ind. Ct. App. 1986) (trial court may enforce pretrial orders and parties may insist on strict performance)