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Justices: Excluding expert witness was error by trial court

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Four Indiana justices Friday held that a Montgomery Superior judge erred when he struck the plaintiff’s expert witness in a medical malpractice lawsuit and dismissed the suit under Indiana Trial Rules 37(B) and 41(E).

Sharon and Leslie Wright filed their action against Dr. Anthony Miller and Achilles Podiatry Group in April of 2006, claiming two surgeries performed on Sharon Wright’s feet produced injurious results and a second surgery was performed without consent. A medical review panel found in favor of the defendants.

In an attempt to refute the review panel’s conclusion, the plaintiffs presented an affidavit from Dr. Franklin Nash supporting their claim. The Wrights didn’t include Nash on witness lists submitted to the court, but the defendants were aware he was the designated expert. The Wrights also missed several discovery deadlines and had to find a new expert witness after Nash’s illness prevented him from participating in the August 2010 trial.

In 2011, the defendants sought a dismissal on the grounds the Wrights didn’t comply with discovery deadlines and that they didn’t have an expert witness to rebut the findings of the review panel. Then, the Wrights filed notice of a new expert witness, but the trial court struck the notice as untimely and dismissed the case.

In Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group, 54S01-1207-CT-430, Chief Justice Brent Dickson wrote that the factors outlined in Wiseheart v. State, 491 N.E.2d 985 (Ind. 1986), on excluding a witness for discovery violations can be a valuable guide in civil cases but cautioned against a formulaic approach of the factors that may deemphasize the general discretion of the trial court.

The justices found the exclusion of the Wrights’ expert witness was inconsistent with the logic and effect of the facts and circumstances before the court. It’s clear the defendants were aware the plaintiffs intended Nash to be the expert witness and the delay in bringing the case to trial was because of Nash’s illness. The prejudice to the defendants was minimal, but the exclusion had a substantial effect on the Wrights’ ability to present the merits of their case, Dickson wrote. This case warranted lesser sanctions that would not have deprived the Wrights of their ability to present the merits of their case at trial. Because the witness exclusion was an error, the basis for the case dismissal was also an error, the high court ruled.

Justice Steven David agreed in a separate opinion that the entire case should not have been dismissed, but he believed that the Wrights’ expert witness should have remained excluded.

“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 to 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,” he wrote.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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