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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. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

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  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

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