PT BUNTIN, MD, PC v. Becker

• Decision Date: 26 April 2000
• Docket Number: No. 49A05-9904-CV-170.,49A05-9904-CV-170.
• Citation: 727 N.E.2d 734
• Parties: P.T. BUNTIN, M.D., P.C., Appellant-Defendant, v. Rose Marie BECKER, as Administratrix of the Estate of Hollis V. Becker, Deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

727 N.E.2d 734

P.T. BUNTIN, M.D., P.C., Appellant-Defendant, v. Rose Marie BECKER, as Administratrix of the Estate of Hollis V. Becker, Deceased, Appellee-Plaintiff.

No. 49A05-9904-CV-170.

Court of Appeals of Indiana.

April 26, 2000.

Robert J. Shula, Jon K. Stowell, Lowe, Gray, Steele & Darko, LLP, Indianapolis, Indiana, Attorneys for Appellant.

James H. Young, Young & Young, Indianapolis, Indiana, Attorney for Appellee.

OPINION

ROBB, Judge.

P.T. Buntin, M.D., P.C. ("Buntin") appeals from the trial court's judgment in favor of Rose Marie Becker, as administratrix of the Estate of Hollis V. Becker ("Becker") on her complaint for medical malpractice. We affirm.

Issues

Buntin raises two issues for our review, which we restate as follows:

1. Whether the trial court properly ordered a defense expert witness' deposition testimony limited to the subject matter and opinions disclosed to Becker during discovery; and

2. Whether the trial court properly ordered disclosure of certain material reviewed by a defense expert in preparation for his deposition.

Facts and Procedural History

Buntin performed a colon resection surgery on Mr. Becker on May 1, 1989. Mr. Becker died from post-operative complications on May 18, 1989. Becker filed a lawsuit against Buntin alleging malpractice in his care and treatment of Mr. Becker which proximately caused his death. The case was tried to the court in February 1999, and the trial court entered a judgment in favor of Becker in the amount of $500,000 in March 1999. Additional facts will be provided as necessary for the discussion of each issue below.

Discussion and Decision

Pre-Trial Discovery Rulings

Buntin contends that the trial court erred in two pre-trial discovery rulings which resulted in prejudice to him.

I. Standard of Review

A trial court is accorded broad discretion in ruling on issues of discovery, and an appellate court will interfere only when the appealing party can show an abuse of that discretion. Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind.1999). We review the trial court's decision in view of the facts and circumstances surrounding the decision. Johnson v. Blankenship, 679 N.E.2d 505, 508 (Ind.Ct.App.1997), aff'd, 688 N.E.2d 1250 (Ind.1997). We will only reverse the trial court's ruling as an abuse of discretion if it is clearly against the logic and facts before the court. Andreatta v. Hunley, 714 N.E.2d 1154, 1159 (Ind.Ct. App.1999), trans. denied. Because the scope of discovery is highly dependent on the facts of each case, the fact-sensitive nature of discovery issues requires a high degree of deference to the decision of the trial court. Id.

II. Limiting Deposition Testimony

In February 1997, Becker submitted interrogatories and a request for production to Buntin. One of the interrogatories asked:

Please completely identify each person you intend to call as an expert witness at trial including the defendant and state as to each person:

a. Name, occupation, and address;

b. The subject matter on which the person is expected to testify c. The substance of the facts and opinions to which the person is expected to testify;

d. The specific data on which the person bases his opinions; and

e. The qualifications that make the person an expert.

Supp. R. 2. Following the interrogatories was this paragraph:

The foregoing interrogatories are to be regarded as continuing, and you are requested to provide, by way of supplementary answers thereto, such additional information as may hereafter be obtained by you or your counsel or any person on your behalf, which will augment or otherwise modify any answers now given to the foregoing interrogatories. Such supplementary responses are to be filed and served upon the Plaintiff within (15) days after receipt of such information, but not later than the time for trial.

Supp. R. 4.

In June 1997, Buntin answered the above interrogatory as follows: "Please refer to report of Ronald Lee Nichols, M.D., which has been previously provided to Plaintiff." R. 167. The report concludes that

[t]he postoperative complications including the anastomotic leak with intraabdominal infection and evidence of multiple organ failure, in addition to the acute adrenal hemorrhages were the cause for [Mr. Becker's] demise.... I feel that Dr. Buntin's care in all aspects conformed to the standard of care of general surgeons nationally. The postoperative complications suffered by the patient were not related to this care.

R. 171. Buntin's answer to this interrogatory was never amended or supplemented.

A deposition of Dr. Nichols was scheduled in October 1998 by Buntin to be videotaped for use at trial. Four days prior to the scheduled deposition, Becker filed a motion to limit Dr. Nichols' deposition testimony to the area of his report

only, that being "the development of adrenal hemorrhages and its relationship to the post-operative use of low dose heparin and the care and treatment rendered by [Buntin]." R. 163-64. Buntin filed no response to this motion, although both parties were heard on this issue during a conference call with the trial judge. The trial court subsequently ordered that the "Ronald Lee Nichols, M.D. deposition examination is to be limited to the issue of adrenal hemorrhage and its relationship to the demise of [Mr. Becker]." R. 188. As a result, Dr. Nichols' deposition was never taken. Buntin did not seek thereafter to supplement his interrogatory answers, nor did he seek reconsideration of the trial court's ruling on this matter. Dr. Nichols did not testify at the trial, although counsel made an offer to prove and proffered an amended report from Dr. Nichols.

Buntin contends that it was error for the trial court to so limit the deposition testimony of Dr. Nichols and that said error prejudiced his defense by denying him the opportunity to present expert testimony on the issue of his compliance with the standard of care in treating Mr. Becker. Buntin alleges that "[t]he fact that Mrs. Becker failed to seek an order from the trial court to require Dr. Buntin to supplement his expert interrogatory response is a relevant consideration[,]" as is "the fact that Mrs. Becker never requested from Dr. Buntin a supplementation of the expert interrogatory answer identifying Dr. Nichols and providing a copy of his report." Brief of Appellant at 10-11. Moreover, Buntin contends that his duty to supplement his interrogatory answers should center upon compliance with multiple pre-trial orders and the agreed case management plan, none of which address supplementation.

A. Duty to Supplement

Indiana Trial Rule 26(E) requires supplementation of discovery responses after the initial response. This duty to supplement is absolute and is not predicated upon a court order. Lucas v. Dorsey Corp., 609 N.E.2d 1191, 1196 (Ind. Ct.App.1993), trans. denied. If a party fails to conform to the requirements of T.R. 26(E) and does not supplement discovery responses concerning experts to be utilized at trial, the trial court can in its discretion, exclude the testimony of the witness. Id. at 1196-97.

Buntin argues that Trial Rule 26(E) is not applicable to this case because the court entered a pretrial order which did not require supplementation of his interrogatory answers, citing McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993). McCullough acknowledged that "the pre-trial order, once entered, controls, and any required disclosure revolves around interpretation of and compliance with the pre-trial order." Id. at 180. However, McCullough is clearly distinguishable from the present case.

In McCullough, the plaintiff answered interrogatories seeking the identity of persons with knowledge of her claim, expert witnesses, and any person with whom she or her attorneys had consulted in preparation for trial, by responding that she had not yet determined what experts she would call at trial, but named James Taylor in response to the other interrogatories. A pre-trial order subsequently entered required the parties to file and exchange witness lists. The pre-trial order also stated that "pursuant to Indiana Trial Rule 16, this Order ... shall control these proceedings, constitute the pre-trial order, and be strictly enforced by the court." Id. at 177. McCullough filed a witness list indicating that James Taylor would be a witness, and subsequently filed an additional witness list adding "all witnesses necessary for rebuttal" without identifying them by name. After depositions of the parties' named expert witnesses were taken, McCullough contacted James Sobek. Sobek was called as an expert witness on rebuttal. The trial court refused to allow Sobek to testify.

Thus, the issue facing the supreme court in McCullough was nondisclosure of a known and anticipated expert witness. Although the court agreed with McCullough that Trial Rule 26 did not mandate supplementation of her interrogatory responses because the entry of a pre-trial order pursuant to Trial Rule 16 superseded the Trial Rule 26 requirements, the court held that the pre-trial order itself was nonetheless sufficient to require McCullough to supplement her witness list to include Sobek once he became known to her. Id. at 180. The court stated:

Clearly, had no pre-trial order been entered here, Indiana Trial Rule 26(E)(1) would have required McCullough to supplement her responses.... Here, the pre-trial order does not address supplementation of answers to interrogatories and defendants made no request for supplementation after the pre-trial order was entered.

Id. (emphasis added).

Here, three pre-trial orders were entered prior to the interrogatories and request for supplementary answers being propounded to Buntin, none of which specifically stated that they were to control the proceedings thereafter pursuant to Trial Rule 16 and none of which dealt in any specific way with discovery. See R. 83 (order entered April 23, 1996, requiring all discovery to be completed by the ...