Lead Opinion
Plаintiffs Sharon and Leslie Wright appeal the striking of their expert witness and the dismissal of their medical malpractice claim against Dr. Anthony Miller and Achilles Podiatry Group pursuant to Trial Rules 37(B) and 41(E). We reverse.
In April and June of 2004, Dr. Miller performed surgeries on Mrs. Wright’s left and right feet, respectively. The surgeries, the plaintiffs contend, produced injurious results. They further argue that the second surgery was performed without full consent.
In response to the plaintiffs’ ensuing action for damages, the defendants sought summary judgment on the grounds that
At a pretrial conference on August 17, 2009, the trial court established speсific discovery deadlines with all discovery to be concluded by July 28, 2010, and set the trial for August 24, 2010. In addition to the failure to include Dr. Nash on their witness, lists submitted to the trial court, the plaintiffs failed to meet other deadlines imposed by the court, including: preliminary witness list (three days late), final witness list (eleven days late), statement of contentions (twenty-four days late), and final proposed jury instructions (ten days late).
The plaintiffs unsuccessfully attempted to secure Mrs. Wright’s treating physician as an expert witness. Then, in November of 2010, the plaintiffs contacted a referral service. The referral service did not identify a potential expert witness until December 17, 2010, and that witness did not confirm his willingness to testify until January 9, 2011, well after the December 24 discovery dеadline and one day before the scheduled status conference.
On January 7, 2011, the defendants filed a motion to dismiss on the grounds that the plaintiffs failed to comply with the discovery deadline and for lack of evidence (specifically, no expert witness to rebut the findings of the medical review panel). On January 10, 2011, the day of the status conference, the plaintiffs filed a notice of a new expert witness, and the defendants moved to strike the notice as untimely. After the parties submitted briefing on the motions, the trial court ruled in favor of the defendants and dismissed the case. The trial court’s rationale was explained in the concluding paragraph of its judgment:
Plaintiffs’ refusal to meet the Court’s deadlines causes the Plaintiffs’ case to lack the requisite expert testimony required by Indiana law and therefore, the Defendants’ Motion to Dismiss should be granted. In accordance with this decision, the Defendants’ Motion to*327 Strike Plaintiffs’ Untimely Notice of Expert Witness should be grаnted.
Order Granting Defendants’ Motion to Dismiss, Appellants’ Am. App’x at 361 (emphasis added).
On appeal, the plaintiffs contend that the trial court erred in excluding their expert witness and thereby dismissing their claims. The Court of Appeals agreed and reversed the trial court. Wright v. Miller,
1. Enforcing Discovery and Trial Court Management Orders
Indiana’s trial courts decide over 1.5 million cases per year statewide, and have done so consistently for the past decade. 1 Ind. Jud. Serv. Rep. 2011: Jud. Year Rev. 97 (2012). Managing such a heavy volume demands robust court docket management and insistence upon compliance with the discovery rules, which are specifically intended to minimize the need for judicial involvement. “A trial judge has the responsibility to direct the trial in a manner that facilitates the ascertainment of truth, ensures fairness, and obtains economy of time and effort commensurate with the rights of [the parties].” VanWay v. State,
Indiana Trial Rules 37 and 41 each provide the trial court with mechanisms to ensure compliance with the trial rules and obedience to its orders. Whitaker,
Whenever there has been a failure to comply with [the trial] rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of*328 dismissing such case. The court shall enter an order of dismissal at plaintiffs costs if the plaintiff shall not show sufficient cause at or before such hearing.
T.R. 41(E).
And while the trial courts generally “fashion progressive sanctions leading up to a dismissal or default judgment when it is possible to do so, imposing intermediate sanctions is not obligatory when a party’s behavior is particularly egregious.” Whitaker,
We previously addressed the exclusion of a witness as a discovery sanction in the criminal context in Wiseheart v. State, where the trial court excluded four defense witnesses whom the defense did not disclose during discovery.
In order to reach a just decision which fully assess[es] the right of both parties to a fair trial and the criminal defendant’s Sixth Amendment right to present witnessеs on his behalf, the following kinds of questions should be asked:
(1) Whether the nature of defendant’s violation was trivial or substantial. The trial court should consider when the witness first became known to defense counsel.
(2) How vital the potential witness’ testimony is to the defendant’s case. The trial court should determine the significance of the proffered testimony to the defense. Is the testimony relevant and material to the defense or merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a deleterious impact on the ease prepared by the State?
(4) Whether less stringent sanctions are appropriate and effective to protect the interest of both the defendant and the State.
(5) Whether the State will be unduly surprised and prejudiced by the inclusion of the witness’ testimony despite the available and reasonable alternative sanctions (e.g., a recess or a continuance) which can mitigate prejudice to the State by permitting the State to interview the witnesses and conduct further investigation, if necessary.
Id. (footnote omitted). The Court of Appeals later applied Wiseheart in its review of a civil lawsuit.
We agree that the Wiseheart factors can be a valuable guide in civil cases but caution against a formulaic application of these factors which deemphasizes the general discretion of the trial court.
When the offending conduct is primarily attributable to counsel аnd not the client, and prejudice to the opposing party is slight, due consideration should be given to sanctions directed primarily at counsel which seek to minimize prejudice to the client and the merits of the case, while appropriately incentivizing proper future behavior of counsel.
When challenged on appeal, trial court sanctions for failure to comply with court orders are reviewed for an abuse of discretion. McCullough v. Archbold Ladder Co.,
In the present case, we discern from the trial court’s order of judgment and order denying the plaintiffs’ motion to correct error that the court’s decision to dismiss was predicated upon its determination excluding the plaintiffs’ expert witness. It was the court’s decision to exclude the witness that resulted from plaintiffs’ coun
2. Exclusion of Plaintiffs’ Expert Witness
Applying the above principles, we find that the exclusion of the expert witness was inconsistent with the logic and effect of the facts and circumstances before the court. There is no question that the plaintiffs’ counsel failed to include their original expert witness, Dr. Nash, on any witness list. Howеver, it is also clear that the defendants were well aware that the plaintiffs intended Dr. Nash to be the expert witness at trial. See, e.g., Trial Court Order, Aug. 16, 2010, Appellants’ Am. App’x at 308 (vacating trial date and extending discovery) (“The defendants’ position that plaintiffs have failed to formally designate Nash as their expert witness notwithstanding, the Court finds that his testifying at trial was anticipated by both plaintiffs and defendants.”). Furthermore, the delay of the trial was not primarily necessitated by the substandard conduct of the plaintiffs’ counsel, but rather by the unavailability of Dr. Nash due to health concerns, an event presumably beyond the control of the plaintiffs or their counsel.
While we critically view counsel’s haphazard and disrespectful pattern of inattention to or disregard of the trial court’s management and discovery orders and deadlines, the prejudice to the defendants was minimal. They were well aware that the plaintiffs were attempting to secure a new expert witness and that the witness would need to be deposed. As of the date of the status conference, when the plaintiffs’ new expert witness was disclosed, no new trial date had been set. Certainly the trial court would have provided the defendants time to prepare to confront the plaintiffs’ new witness at trial. The late disclosure was thus neither a surprise nor would it have had a deleterious or significantly prejudicial effect on the defendants’ case. The prejudice to the defendants was little greater than that which is to be expected in suits of this nature. In contrast, as demonstrated by the trial court’s conclusion that the exclusion required dismissal, the exclusion of the plaintiffs’ expert would have had a substantial effect on their ability to present the merits of their case. We find that the exclusion of the plaintiffs’ expert witness was inconsistent with the trial court’s duty to “seek to apply sanctions which have a minimal [ejffect on the evidence presented at trial and the merits of the case.” Wiseheart,
We continue to recognize the trial court’s inherent powers in “maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior,” Major,
As noted above, the trial court’s order of dismissal was directly grounded upon its decision to exclude the plaintiffs’ expert witness for violation of discovery deadlines and its belief that the plaintiffs could not establish their case without such witness. Because we have concluded that such witness exclusion was erroneous, the basis for the resulting case dismissal evaporates and the granting of the defendants’ motion to dismiss was likewise erroneous.
Conclusion
We reverse the trial court’s order of judgment granting the defendants’ motions to strike the plaintiffs’ expert witness and to dismiss this action. These motions should have been denied. This cause is remanded for further proceedings.
Notes
. The plaintiffs contend that Mrs. Wright consented only to the removal of a bunion on her right foot. The defendants contend that Mrs. Wright consented to several procedures amounting to a significant reconstruction of the foot, similar to that previously performed on her left foot.
. The plaintiffs also objected to and, consequently, did not comply with several of the defendants’ interrogatories and requests for production of documents. The defendants filed a motion to compel discovery, and the plaintiffs filed two separate motions for a protective order. It appears from the record that the trial court never ruled on any of these motions.
. We note that the trial сourt did not order or hold a hearing to dismiss as required by Trial Rule 41(E). See Rumfelt,
. The Court of Appeals has consistently applied a factor analysis to dismissals under Trial Rule 41(E) for failure to prosecute. See Belcaster v. Miller,
.The witnesses apparently did not approach defense counsel until the morning of the first day of trial. Wiseheart,
. We have had little occasion to address the exclusion of a witness as a discovery sanction in the civil context. See McCullough v. Archbold Ladder Co.,
. In its opinion in this case, the Court of Appeals adopted an eleven-factor balancing test (which included the Wiseheart factors). Wright,
. We recognize that a trial court's past experience with a particular attorney's pattern of dilatory, evasive, or inattentive conduct may be considered. In the present case, the record does not indicate that the trial judge's past experiences with this plaintiffs’ counsel in other cases were a factor considered by the trial court. When such attorney malfeasance is repeatedly observed, referral to the Disciplinary Commission may be appropriate.
Concurrence Opinion
concurring in part and dissenting in part.
I cоncur in that portion of the majority opinion reversing dismissal of this case pursuant to the Indiana Rules' of Trial Procedure. I agree that it was an abuse of discretion to dismiss the case entirely under the circumstances presented here. I also concur that a formulaic adherence to the factors from Wiseheart v. State,
Nevertheless, I cannot concur with the subsequent reversal of the trial court’s decision to exclude Wright’s expert witness. Without seeking to enter the unsettled arena of whether such an expert witness is required in this type of case, I not only believe the exclusion was an appropriate exercise of the trial court’s discretion here, but I struggle to find a more appropriate sanction with which the trial court could have enforced its discovery deadlines and orders when Wright repeatedly failed tо include Dr. Nash on her witness lists, filed those witness lists late (along with other delayed filings), and then failed to meet a discovery deadline that had already been extended at her request.
While this may not have prejudiced Dr. Miller to the point th.at dismissal of the action entirely was appropriate, to me it demonstrates a patterned lack of regard for the Trial Rules and the trial court’s authority, much less the successful pursuit of Wright’s own case. Accordingly, I would find no abuse of discretion in striking Wright’s expert witness and therefore respectfully dissent.