Indiana Holds Terminal Discovery Sanction for Medical Expert Witness Reversible

A podiatrist performed two surgeries on a woman's left and right feet, respectively. The woman filed a malpractice claim with the Indiana Department of Insurance and sued the podiatrist for damages. The woman alleged that the surgeries injured her and that the second surgery was performed without full consent. The review panel found in favor of the defendants.


The woman produced an affidavit from a doctor supporting the claim. During the course of discovery, the plaintiffs failed to include this doctor on any witness list submitted to the court. However, in response to interrogatories from the podiatrist, the woman specified that there was no expert witness other than the one who provided the affidavit. Other discovery requests by the podiatrist pertained specifically to the doctor.


In addition to the failure to include the doctor on the witness lists submitted to the trial court, the woman failed to meet other deadlines imposed by the court. The doctor became ill and could not participate in the trial. The woman moved for more time to find an alternative medical expert. The woman could not secure a medical expert prior to the discovery deadline. As a sanction for failing to comply with deadlines imposed by the court, the Montgomery Superior Court struck the woman’s medical expert witnesses. The podiatrist sought summary judgment on the grounds that the woman had not produced an expert opinion to refute the conclusion of the medical review panel. The trial court dismissed the action. The Appellate Court reversed and remanded.


The Supreme Court of Indiana affirmed the court of appeals but applied different reasoning. The court held that the trial court's exclusion of the patient's medical expert because of the patient's failure to include the expert on any witness list was inconsistent with the logic and effect of the facts and circumstances presented in case. The court held that the standard for reviewing a trial court’s imposition of discovery sanctions is for abuse of discretion. The court explained that appellate courts presume that the trial court will act in accord with what is fair and equitable in each case, and thus, appellate courts will only reverse trial court's discovery sanctions if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law.


The court noted that the pleadings established that the podiatrist was well aware that the woman intended to present the expert who provided the affidavit. The delay of the trial was not primarily necessitated by the substandard conduct of the patient's counsel, but rather by the unavailability of the doctor due to health concerns, an event presumably beyond the control of the patient. The prejudice to the podiatrist was minimal. As of the date of the status conference, when the woman's new expert witness was disclosed, no new trial date had been set. Exclusion of the woman’s expert had a substantial effect on her ability to present the merits of her case. Therefore, the Indiana Supreme Court reversed the trial court's order of judgment granting the defendants' motions to strike the plaintiffs' expert witness and to dismiss this action, noting these motions should have been denied. It remanded the cause for further proceedings.


See: Wright v. Miller, 2013 WL 3147343 (Ind., June 21, 2013) (not designated for publication).