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Court preserves woman's day in court despite delays

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The Indiana Court of Appeals has reversed a trial judge’s order to dismiss a woman’s medical malpractice case because of her failure to comply with discovery deadlines and trial rules, finding that the decision to deny her a day in court was too harsh.

In Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M. and Achilles Podiatry Group, No. 54A01-1107-CT-302, the appellate panel reversed a ruling by Montgomery Superior Judge David Ault and sent the action back for further proceedings.

Sharon Wright brought a medical malpractice claim against Dr. Anthony Miller and Achilles Podiatry Group in Crawfordsville for an allegedly negligently performed bunion surgery in 2004.

After the medical review panel found in her favor, Wright brought the case to court in 2009. Discovery began, but Wright asked for continuances because she was not able to secure her expert witnesses and for personal medical reasons. In January 2011, the defendants asked for dismissal because of the delays.

The trial court struck Wright’s expert witness and dismissed her claims under Indiana Trial Rule 37(B) for failure to comply with discovery orders and Indiana Trial Rule 41(E) for failure to prosecute and failure to follow court orders. Specifically, the court noted Wright did not identify her expert witness on time and would have to proceed without the expert testimony at trial, and that all led to a lack of evidence in her case and warranted dismissal.

Although on appeal the judges noted their typical deference to the trial judges and a local court’s right to run its calendar efficiently, the appellate panel weighed that obligation with the individual litigant’s right to have her day in court. The delays in her being able to secure an expert witness were ultimately out of Wright’s control because of medical reasons, the appellate court noted, and the trial court hadn’t issued an order compelling discovery or warning that dismissal was on the horizon. Wright also wasn’t trying to deceive anyone, the appellate court found.

The appellate court found this case is unlike past cases where delays and missed deadlines were egregious and the sole fault of the offending party.

“We do not mean to suggest or imply by our opinion that the timely observance of pre-trial deadlines is unimportant, only that when all factors are considered, the extent to which Wright failed to comply with several deadlines was not sufficiently onerous or egregious to justify striking her expert and dismissing her claims without warning,” Judge Nancy Vaidik wrote.

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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