McCullough v. Archbold Ladder Co.

• Decision Date: 06 January 1993
• Docket Number: No. 11S01-9301-CV-004,11S01-9301-CV-004
• Parties: Bertha McCULLOUGH, Appellant, v. ARCHBOLD LADDER CO. and The Sherwin-Williams Co., Appellees.
• Court: Indiana Supreme Court

Page 175

605 N.E.2d 175

Bertha McCULLOUGH, Appellant, v. ARCHBOLD LADDER CO. and The Sherwin-Williams Co., Appellees.

No. 11S01-9301-CV-004.

Supreme Court of Indiana.

Jan. 6, 1993.

W.F. Conour, Rex E. Baker, Conour Doehrman, Indianapolis, for appellant Bertha McCullough.

Scott M. Kyrouac, John Christopher Wall, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Terre Haute, for appellees Archbold Ladder Co. and The Sherwin-Williams Co.

Norman T. Funk, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for amicus curiae Indiana Defense Lawyers Ass'n.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

We grant transfer to decide whether a party is under an obligation to disclose the identity of an expert rebuttal witness in a civil case. Archbold Ladder Co. and The Sherwin-Williams Co. (Defendants-Appellees below) seek transfer after the Court of Appeals granted Bertha McCullough (Plaintiff-Appellant below) a new trial on the grounds that the trial court erroneously excluded testimony, offered in rebuttal, of a non-disclosed expert retained by McCullough. McCullough v. Archbold Ladder Co. (1992), Ind.App., 587 N.E.2d 158. (Ratliff, P.J., and Conover, J., concurring; Baker, J., dissenting with opinion.)

Facts

In 1987, McCullough fell from a stepladder manufactured by Archbold and purchased from Sherwin-Williams. She sought recovery under Indiana's Product Liability Act, Ind.Code Sec. 33-1-1.5-1 through Sec. 33-1-1.5-8, alleging that the stepladder was unreasonably dangerous. She also sought recovery on a theory of negligence. Discovery commenced and, in 1989, McCullough answered interrogatories. Interrogatory No. 19 sought the identity of each person who had or claimed to have any knowledge relevant to McCullough's claim. Interrogatory No. 20 sought the identity of McCullough's experts. Interrogatory No. 21 sought the identity of each person with whom McCullough or her attorneys had consulted or retained as expert witnesses in preparation of the trial of this cause. McCullough responded that she had not yet determined what experts she would call at trial, but she identified James A. Taylor of Timber Product Specialists in response to Interrogatory Nos. 19 and 21. McCullough made no objection to providing the information requested in Interrogatory No. 21. These answers were never supplemented.

In November 1989, a pre-trial order was entered, pursuant to which the parties were to file and exchange witness lists. The order also provided that "any witness or exhibit disclosed within thirty days of trial shall be permitted during trial only by leave of court and only for good cause shown," and that "pursuant to Indiana Trial Rule 16, this Order, together with the filings herein ordered, shall control these proceedings, constitute the pre-trial order, and be strictly enforced by the court." In February 1990, McCullough filed a witness list indicating that James Taylor would be a witness. In September 1990, McCullough filed an additional witness list adding "all witnesses necessary for rebuttal" but identifying none of the rebuttal witnesses by name.

Depositions of the parties' experts were taken. On October 2, 1990, one day after deposing defendants' experts, plaintiff's counsel contacted James Sobek and asked him to examine the ladder and determine what caused the ladder to break. Sobek was never disclosed as a witness prior to trial.

Trial commenced in April 1991. In her case in chief, McCullough presented the expert testimony of James Taylor who opined that the use of defective lumber in the stepladder led to the rotting of the ladder at the point of breakage, reducing its strength and causing it to break. Defense expert, Harold Core, testified that the wood of the ladder was not rotted. Edwin Burdette, also a defense expert, hypothesized that McCullough climbed too high on the ladder, lost her balance, and broke the ladder when she fell on it. All of this expert testimony was consistent with the testimony given by the witnesses at their respective depositions.

After the defendants rested, McCullough called Sobek as an expert witness in rebuttal. Sobek is an engineer and physicist who would have testified that, based on his review of the physical evidence, the hypothesis offered by defense expert Burdette could not have been accurate. Defendants objected to Sobek's proffered testimony on the grounds that (1) Sobek had not been disclosed prior to trial either in answers to interrogatories or on McCullough's witness list, and (2) Sobek's testimony should have been presented in McCullough's case in chief and, therefore, was not proper in rebuttal. Relying on Tanner v. State (1984), Ind., 471 N.E.2d 665, for the proposition that the nondisclosure of rebuttal witnesses is permissible only when a party is unable to anticipate the calling of that witness and noting that the spirit of the discovery rules are designed for disclosure of witnesses, the court refused to allow Sobek to testify. The jury returned a verdict in favor of the defendants, and McCullough appealed.

The majority of the Court of Appeals concluded that because a rebuttal witness need not be disclosed under Indiana law, McCullough was under no obligation to identify Sobek, and it rejected defendants' alternate contentions that McCullough was under a duty to supplement her discovery responses. The majority held that the trial court had abused its discretion in excluding Sobek's testimony because exclusion of a witness is appropriate only when a discovery order has been blatantly and deliberately violated. Judge Baker dissented on the grounds that even if Sobek's testimony was proper rebuttal testimony, McCullough was obligated to disclose his identity prior to trial, and the trial court acted within its discretion in excluding the testimony of an undisclosed expert.

In their petition to transfer, defendants contend that (1) McCullough was obligated to disclose the identity of Sobek as a rebuttal witness; (2) Sobek was not a true rebuttal witness; and (3) exclusion of Sobek's testimony was appropriate.

Disclosure of Rebuttal Witnesses

Defendants argue that a known and anticipated rebuttal witness must be disclosed; plaintiff argues that disclosure is not required. Support for both propositions is found in the case law. For example, in Chatman v. State (1975), 263 Ind. 531, 334 N.E.2d 673, the State was allowed to call an undisclosed witness to rebut factual testimony from another occurrence witness offered at trial. This Court noted that the failure to have listed the witness prior to trial was not material because the testimony offered "was rebuttal which [the State] could not have been expected to anticipate." 263 Ind. at 546, 334 N.E.2d at 682. Similarly, in Smith v. State (1990), Ind., 553 N.E.2d 832, this Court held that where the State was unaware of the existence of a rebuttal witness until it had rested its case and there was no attempt to mislead the defendant, the State's failure to list the witness was excusable. In explaining the rule of nondisclosure of a rebuttal witness, this Court noted that it was obvious that the very nature of a trial gives rise to the likelihood that issues will be raised during the defendant's case which the State could not logically anticipate, and that the State "is permitted to seek out and call persons to rebut hitherto-unexpected claims." Id. at 835. Also, in Tanner v. State (1984), Ind., 471 N.E.2d 665, this Court held that allowing a previously-unidentified witness to testify in rebuttal was not an abuse of discretion because "it is impossible to anticipate the calling of such a witness." Id. at 667. These cases discuss the nondisclosure of a rebuttal witness in the context of a party's inability to anticipate the need for or lack of knowledge about the identity of a rebuttal witness and, therefore, tend to support the defendants' argument.

McCullough points to language in other Indiana cases in support of her position that she had no obligation to disclose the identity of her rebuttal witness. For example, in Floyd v. State (1987), Ind., 503 N.E.2d 390, 394, this Court held that "[t]he State is under no obligation to provide a defendant with a list of its rebuttal witnesses." Accord Smith v. State (1990), Ind., 553 N.E.2d 832, 835; Thompkins v. State (1979), 270 Ind. 163, 169, 383 N.E.2d 347, 350 ("Given that the State was under no obligation to provide the defendant with a list of its rebuttal witnesses, the court was under no obligation to grant the defendant's motion for a continuance.") These cases tend to support McCullough's argument that Indiana law did not require disclosure of rebuttal witnesses under any circumstances. ¹

After reviewing these cases, we hold that the Chatman line of cases expresses the better rule: the nondisclosure of a rebuttal witness is excused only when that witness was unknown and unanticipated; known and anticipated witnesses, even if presented in rebuttal, must be identified pursuant to a court order, such as a pre-trial order, or to a proper discovery request.

Several sources persuade us that this is the better rule. First, a trial is, in part, a factual search for the truth. See Graves v. State (1986), Ind., 496 N.E.2d 383, 386 (addressing evidence which is "potentially important to the search for truth"); Johnson v. State (1987), Ind., 507 N.E.2d 980, 986, cert. den. 484 U.S. 946, 108 S.Ct. 335, 98 L.Ed.2d 362 (rule regarding preservation of evidence is, in part, to make of the trial a search for truth informed by all relevant material); see also dissenting opinion of DeBruler, J., in Mauricio v. State (1985), Ind., 476 N.E.2d 88, 95 ("the State may not insist that trials be run as a search for truth so far as defense witnesses are concerned while maintaining poker game secrecy for its own witnesses").

Second, disclosure of the identity of all witnesses fulfills the objectives of Indiana's discovery rules. One of the purposes of our discovery rules is ...