Don H. Dumont, M.D. v. Penny Davis and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan
992 N.E.2d 795
Ind. Ct. App.2013Background
- Charmitta Jordan (25) with hereditary angioedema was hospitalized repeatedly and died Sept. 12, 2001; autopsy found pulmonary emboli.
- Plaintiffs (Jordan’s sisters as co-administratrixes) sued Dr. Don Dumont and Community Hospital for medical malpractice alleging failure to diagnose/treat pulmonary emboli.
- Defense disclosed pulmonology expert Dr. Fahey pretrial; hospital disclosed Dr. Michael Ehrie; later defense attempted to call Dr. Ehrie also as a pathologist based on autopsy slides.
- At trial Fahey (defense) testified that atelectasis could explain low oxygenation (elicited on cross-examination); Ehrie testified beyond his disclosed pulmonology role about pathological findings and cause of death.
- Trial court struck Ehrie’s pathologist testimony and admonished the jury; jury returned verdict for defendants. Plaintiffs moved under Trial Rule 60(B)(3) alleging discovery misconduct; trial court granted a new trial as to Dr. Dumont.
- Court of Appeals reversed, holding (1) Plaintiffs waived objection to Fahey’s atelectasis testimony and (2) exclusion + jury admonishment cured any prejudice from Ehrie’s stricken pathologist testimony; juror statements cannot be used to impeach the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s failure to disclose expert opinions (Fahey on atelectasis) constituted discovery misconduct warranting new trial | Dumont failed to disclose an essential expert opinion (atelectasis) that surprised Plaintiffs and prejudiced their preparation | Fahey’s atelectasis opinion emerged on cross-exam and was consistent with disclosed opinions; Plaintiffs failed to depose or promptly object, so they waived complaint | Waived — no misconduct shown as to Fahey; Plaintiffs’ failure to depose or timely object forfeited claim |
| Whether permitting Ehrie to testify as a pathologist without clear prior disclosure was discovery misconduct requiring new trial | Ehrie gave undisclosed pathological opinions critical to causation that unfairly surprised Plaintiffs | Defense had given notice and had court leave to call Ehrie; Plaintiffs had opportunities pretrial to respond and did not seek continuance or timely rebuttal | Trial court abused discretion in granting new trial; exclusion of Ehrie’s pathologist testimony and jury admonishment cured prejudice |
| Whether the trial court properly relied on juror statements to find actual prejudice from stricken testimony | Plaintiffs reported juror statements indicating they considered Ehrie’s stricken opinions | Defense argued juror statements cannot be used to impeach a verdict and Plaintiffs accepted the admonishment at trial | Juror statements cannot be used to impeach verdict; trial court erred to the extent it relied on them |
| Whether a new trial is the appropriate Rule 60(B)(3) remedy for alleged discovery violations by defense counsel | Plaintiffs: misconduct prevented fair presentation and merits warrant new trial | Dumont: remedies short of new trial (strike testimony, admonish jury) adequately cured any harm | New trial was improper; less severe remedies cured any prejudice and Plaintiffs failed to show unfair surprise or meritorious need for retrial |
Key Cases Cited
- Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006) (standard for Rule 60(B) relief and discovery-misconduct analysis)
- Wisner v. Laney, 984 N.E.2d 1201 (Ind. 2012) (trial court best positioned to assess misconduct impact; abuse-of-discretion review)
- Przybyla v. Nature's Link, Inc., 885 N.E.2d 709 (Ind. Ct. App. 2008) (undisclosed change in expert opinion at trial can justify new trial)
- Johnson v. Wait, 947 N.E.2d 951 (Ind. Ct. App. 2011) (no prejudice where opposing party had opportunity to depose expert but failed to do so)
- Ward v. St. Mary Med. Ctr. of Gary, 658 N.E.2d 893 (Ind. 1995) (juror affidavits/statements cannot be used to impeach a verdict)
- Becker v. Plemmons, 598 N.E.2d 564 (Ind. Ct. App. 1992) (jury admonishment usually presumed effective; timely mistrial request required if admonishment inadequate)
- Breeden v. Breeden, 678 N.E.2d 423 (Ind. Ct. App. 1997) (appellate review will affirm trial court if any factual/legal basis supports its decision)
- Schultz v. Butcher, 24 F.3d 626 (4th Cir. 1994) (meritorious defense/unfairly procured judgment context)