Justices: Excluding expert witness was error by trial court

Back to TopCommentsE-mailPrintBookmark and Share

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.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.