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    Sharon WRIGHT and Leslie Wright, Appellants-Plaintiffs, v. Anthony E. MILLER, D.P.M. and Achilles Podiatry Group, Appellees-Defendants.
    No. 54A01-1107-CT-302.
    Court of Appeals of Indiana.
    April 5, 2012.

      James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, IN, Attorney for Appellants.
    Peter H. Pogue, Julie Abbott Condiet, Schultz & Pogue, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

VAIDIK, Judge.

Case Summary

Sharon Wright brought a medical malpractice claim against Dr. Anthony Miller and Achilles Podiatry Group for an allegedly negligently performed bunion surgery. The trial court both struck Wright’s expert witness and dismissed her claims under Indiana Trial Rule 37(B) for failure to comply with discovery orders and Indiana Trial Rule 41(E) for failure to prosecute and failure to follow court orders. Specifically, the trial court noted that Wright did not identify her expert witness on time and would therefore be without the expert testimony at trial necessary to bring her medical malpractice claim. Wright appeals, contending the trial court abused its discretion in both striking her expert witness and dismissing her claims. She also contends that her claim for medical battery due to lack of informed consent can go forward even without expert testimony.

We give great deference to our trial court colleagues in ruling on discovery issues. We recognize that trial courts have an obligation to run the court’s calendar in an efficient and timely manner. But, we must weigh that obligation against an individual litigant’s right to have her day in court. Here, Wright’s failure to timely comply with deadlines caused short delays before the trial, but, ultimately, the trial was delayed for reasons outside her control, namely, her expert witness was unavailable for medical reasons. Further, there was no order compelling discovery, no warning that dismissal was looming, or any deception on the part of Wright. As such, her misconduct did not rise to a sufficient level to deny her the chance to resolve her case in court. We therefore hold that the trial court abused its discretion in dismissing the claim and striking Wright’s expert witness under both Trial Rule 37(B) and 41(E). As a result, we do not need to reach the issue of whether Wright may proceed forward with her medical battery claim without an expert. We reverse and remand for further proceedings.

Facts and Procedural History

Sharon Wright went to podiatrist Dr. Anthony Miller, D.P.M., at Crawfordsville Foot & Ankle Center on April 14, 2004, and was diagnosed with bunions and hammertoes on both feet and a plantar flexed metatarsal. Wright indicated that the pain in her left foot was more severe than the pain in her right foot and that it was difficult for her to walk and wear shoes.

On April 29, 2004, Dr. Miller performed surgery on Wright’s left foot after obtaining the appropriate informed consent. The surgery was successful, but Wright was still experiencing pain in her right foot. She returned to Dr. Miller on May 19, 2004, at which time they discussed possible surgical intervention for her right foot. After discussing the possible procedures and risks, Wright claims she only consented to surgery to correct her bunion. Appellant’s Br. p. 13. Dr. Miller, however, claims that Wright consented to “reduction of hammertoes 2, 4, 5, raise dropped metatarsals 2, 3, reduction of Tailor’s bunion, lengthening of extensor tendons 2-5 and increase range of motion 1st metatarsal phalangeal joint with use of implant, right foot.” Appellee’s App. p. 17-18.

On June 3, 2004, Dr. Miller performed surgery on Wright’s right foot. The procedures included: total joint replacement with implant # 1 Swanson, right; Tailor’s bunionectomy, right; arthroplasty, second digit, right; arthroplasty, third digit, right; arthroplasty, fourth digit, right; arthro-plasty, fifth digit, right; arthroplasty, second MPJ, right; tenotomy, third, right; tenotomy, fourth, right. Id. at 18. The surgery was completed without complication. However, after surgery, Wright complained of misalignment and twisting of her toes with distortion, an increase in pain, and difficulty walking. Appellant’s App. p. 12, 227.

Wright filed a malpractice claim with the Indiana Department of Insurance on either April 15 or April 18, 2006. The date is in dispute but is not material to the issues before us. The members of the Department of Insurance panel issued a unanimous opinion in favor of Dr. Miller on December 19, 2008. Wright filed her complaint against Dr. Miller and Achilles Podiatry Group (hereinafter collectively referred to as “Dr. Miller”) with the Montgomery Superior Court on March 17, 2009. Dr. Miller filed a motion for summary judgment, and Wright’s response included an affidavit of Dr. Franklin Nash establishing that Dr. Miller did not meet the standard of care. Dr. Miller later withdrew his Motion for Summary Judgment.

In July 2009, Wright responded to Dr. Miller’s interrogatories, indicating that she had no other expert witness besides Dr. Nash. At a pretrial conference on August 17, 2009, the trial court set the trial date as August 24, 2010, with preliminary lists to be filed by Friday, September 18, 2009, Wright’s expert to be named by April 16, 2010, Dr. Miller’s experts to be named by June 18, 2010, final witness and exhibit lists and statements of contentions to be filed by July 16, 2010, discovery to be completed by July 23, 2010, and proposed jury instructions due July 30, 2010. Id. at 104-105. Dr. Miller met all of these deadlines. Wright filed her preliminary list three days late, her final list, which was a re-filing of her preliminary list, eleven days late, her statement of contentions twenty-four days late, and her final jury instructions ten days late. Notably, Wright never included Dr. Nash on her witness list and never identified him as her expert witness, even though he had already provided an affidavit for this case — an affidavit that was provided to Dr. Miller — and both parties knew all along that he was going to be Wright’s expert.

During discovery, on July 22, 2010, Wright filed a protective order against Dr. Miller’s second set of interrogatories, claiming that they were improper and exceeded the scope of discovery. On July 23, 2010, Wright filed another protective order against Dr. Miller’s second request for production, claiming that the documents requested were not in her possession. A review of the record does not show that the trial court ever ruled on either protective order.

Also on July 23, 2010, Wright filed for a continuance of the trial date, citing her continuing medical treatment and the inability to supplement discovery responses before the August 24, 2010, trial date. Dr. Miller objected to the continuance.

Wright asked for a second continuance to find a new expert witness on August 4, 2010. Dr. Nash had been hospitalized for mental health issues and his psychologist, Dr. Ari Gleckman, feared that although Dr. Nash could provide expert testimony and professional consultant services, “the price that he would pay in terms of his psychiatric and physical functioning could be lethal.” Id. at 306. Again, Dr. Miller objected to the continuance. On August 16, 2010, the trial court granted the continuances, setting a new discovery deadline of December 24, 2010, and a status conference for January 10, 2011, at which time a new trial date would be chosen.

Upon receiving the news that Dr. Nash was unavailable, Wright attempted to secure her treating physician, Dr. Mihir Patel, as an expert witness and obtain his deposition. These attempts were unsuccessful, so Wright’s counsel contacted a referral service in November 2010 to find another expert witness. Appellant’s Br. p. 30. Dr. Jerome Bagner was identified as a potential qualified expert witness on December 17, 2010, and Wright’s counsel submitted the evidentiary material to him for review. Dr. Bagner did not confirm his willingness to testify until January 9, 2011. Id.

Dr. Miller filed a motion to dismiss the case on January 7, 2011, due to Wright’s alleged lack of evidence and failure to comply with the discovery deadlines. Appellant’s App. p. 310. Wright filed her notice of an expert witness on January 10, 2011, seventeen days after the discovery deadline, and Dr. Miller moved to strike the notice as untimely. The trial court granted both Dr. Miller’s motion to dismiss and motion to strike Wright’s expert witness on the grounds of Trial Rule 37(B) for discovery violations and Trial Rule 41(E) for failure to prosecute and follow court orders. The trial court also noted that Wright’s medical malpractice case could not go forward for lack of evidence, as she now lacked an expert witness. In making its decision, the trial court made reference to Wright’s disrespect for the court, including missed discovery deadlines and requests for extensions of time and continuances. Id. at 350-61.

Wright now appeals.

Discussion and Decision

Wright makes multiple arguments on appeal, which we consolidate and restate as: (1) whether the trial court abused its discretion in dismissing her claim and striking her expert under Trial Rule 41(E); (2) whether the trial court abused its discretion in dismissing her claim and striking her expert under Trial Rule 37(B); and (3) whether expert testimony is necessary for a medical battery claim based on lack of informed consent. Because we resolve the case as we do, we find the first two arguments to be dispositive and therefore do not reach Wright’s third argument.

The rules of discovery are designed to “allow a liberal discovery process, the purposes of which are to provide parties with information essential to litigation of the issues, to eliminate surprise, and to promote settlement.” Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind.Ct.App.1997), reh’g denied, tram, denied. Our review of discovery matters is limited to determining whether the trial court abused its discretion. Bridgestone Ams. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind.2007). An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or if the trial court has misinterpreted the law. Id.

I. Trial Rule 41(E)

Wright contends that the trial court abused its discretion in dismissing her case and striking her expert under Trial Rule 41(E) for failure to prosecute and follow court orders. We will reverse a Trial Rule 41(E) dismissal only in the event of a clear abuse of discretion, which occurs if the decision of the trial court is against the logic and effect of the facts and circumstances before it. Metcalf v. Estate of Hastings, 726 N.E.2d 372, 373-74 (Ind.Ct.App.2000), trans. denied. We will affirm if there is any evidence that supports the decision of the trial court. Id. at 374.

Trial Rule 41(E) says:

Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiffs costs if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.

(emphasis added). Explicitly stated in the rule is the requirement of a hearing before a case is dismissed. The trial court did not conduct such a hearing, so any dismissal under Trial Rule 41(E) for failure to prosecute or failure to follow court orders was premature and an abuse of the trial court’s discretion.

However, Dr. Miller argues that Wright has waived this argument because she did not address it in her Appellant’s Brief, only in her Reply Brief. Wright v. Miller, et al, No. 54D01-0904-CT-106 (Ind.Ct.App. Dec. 16, 2011). While the newly-raised argument is technically waived, Ind. Appellate Rule 46(C), we hold that we nonetheless must follow the explicit language of the Trial Rules so as not to create inconsistent results. See Ind. Tr. Rule 1 (“these rules govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature....”) (emphases added). Following the rule as written leads us to find that the trial court clearly abused its discretion and that the case was improperly dismissed under Trial Rule 41(E).

II. Trial Rule 37(B)

Wright also contends that the trial court abused its discretion in both dismissing her claim and striking her expert witness under Trial Rule 37(B). Discovery is designed to be self-executing with little, if any, supervision or assistance by the trial court. Mallard’s Pointe Condominium Ass’n, Inc. v. L & L Investors Group, LLC, 859 N.E.2d 360, 364 (Ind.Ct.App.2006), reh’g denied, trans. denied. However, when the goals of this system break down, Trial Rule 37 provides the court with tools to enforce compliance. Pfaffenberger v. Jackson Cnty. Reg’l Sewer Dist., 785 N.E.2d 1180, 1183 (Ind.Ct.App.2003). Trial Rule 37(B)(2) provides in relevant part:

If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; ....

A. Dismissal of the Claim

The trial court may dismiss a claim under Trial Rule 37(B)(2) for discovery violations. The only limitation on the trial court is that the sanction must be just. Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind.Ct.App.2008). In determining whether a sanction is just, we recognize that “ ‘[although a default judgment plays an important role in the maintenance of an orderly, efficient judicial system as a weapon for enforcing compliance with the rules of procedure and for facilitating the speedy determination of litigation, in Indiana there is marked judicial deference for deciding disputes on their merits and for giving parties their day in court....’” Id. at 649 (quoting Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind.Ct.App.2005)).

Dismissal for failures in discovery will not be unjust where:

(1) the party was given an additional reasonable period within which to respond and was expressly warned in advance that default judgment would be entered if he failed to do so; and (2) no response or request for additional time was timely made and no reason excusing timely response is demonstrated.

Burns v. St. Mary Med. Ctr., 504 N.E.2d 1038, 1039 (Ind.Ct.App.1987). We also will not find dismissal to be unjust where the actions of the offending party are egregious. Further, although it is common to “fashion progressive sanctions leading up to a dismissal or default judgment when it is possible to do so, imposing intermediate sanctions is not obligatory when a party’s behavior is particularly egregious.” Whitaker v. Becker, 960 N.E.2d 111, 116 (Ind.2012) (citing Prime Mortg. USA, 885 N.E.2d at 649).

While there is no case law explicitly saying what is considered unjust, there have been multiple eases, however, which give guidance and confirm that egregious conditions must exist if dismissal is to be considered just. Dismissal of claims under Trial Rule 37(B) was upheld under the reasoning in Burns and includes such cases as Pfaffenberger, which is regarded as the “leading and instructional opinion about Trial Rule 37 and the enforcement authority of the trial court.” 3 William F. Harvey & Stephen E. Arthur, Indiana Practice: Rules of Procedure Annotated, Trial Rule 37 (3d ed. 2011). In Pfaffenberger, the Sewer District sent interrogatories and a request for production of documents to the Plaintiffs. 785 N.E.2d at 1182. Over four months later, no responses were given, so the Sewer District filed a motion to compel. The trial court ordered the Plaintiffs to respond before a certain date, and when they did not, the Sewer District filed a motion to dismiss, which was granted by the trial court. Id. Thereafter, the trial court reconsidered the dismissal, set it aside, and granted the Plaintiffs an additional sixty days to respond. Id. at 1183. The Plaintiffs again failed to respond to the request, and the trial court dismissed the complaint again, this time with prejudice. Id.

In reviewing the trial court’s decision, we made particular note of the facts that the Plaintiffs never asked for extensions of time and never informed the trial court or the Sewer District that they were having difficulty in responding to discovery. Id. at 1185. We found that dismissal was not an abuse of the trial court’s discretion because we had “previously held that when the party alleged to have not complied with discovery orders: (1) has been given an additional reasonable period within which to respond (i.e., sixty days); (2) was warned in advance that dismissal or entry of a default judgment would be the penalty for noncompliance (i.e., the prior dismissal); (3) has not timely responded or requested additional time; and (4) has not demonstrated a reason excusing the past noncompliance ...,” id. (citing Wozniak v. N. Ind. Pub. Serv. Co., 620 N.E.2d 33, 35-36 (Ind.Ct.App.1993), reh’g denied, trans. denied), dismissal is not clearly against the logic and effects of the facts and circumstances before the trial court.

Another representative case where we upheld dismissal based on Trial Rule 37(B)(2) is Mallard’s Pointe Condominium Association, Inc., 859 N.E.2d at 360. In that case, Mallard’s Pointe appeared at a deposition that it had received notice of two months before, but it failed to bring subpoenaed documents. Id. at 362. L & L Investors filed a motion compelling discovery which was granted by the trial court, giving Mallard’s Pointe three months to produce the documents. Id. at 363. The order also explicitly stated that “[fjailure by Mallard’s Pointe to comply timely shall result in a default being entered against it on the Complaint filed by Plaintiff.” Id. Mallard’s Pointe did not comply with the discovery order in those three months, and L & L Investors filed a motion for default judgment, which the trial court granted. Id.

In reaching our decision in that case, we engaged in the same analysis as in previous cases to determine whether the sanetion was just. In finding that it was, we noted that Mallard’s Pointe had substantial time to comply with the discovery request, there was an order compelling discovery that gave Mallard’s Pointe additional time to comply, the trial court gave warning that failure to comply would result in a dismissal, and Mallard’s Pointe did not inform the trial court of any problems it was having in responding to discovery. Id. at 865. Mallard's Pointe, therefore, is another example of an instance where the discovery violation was so egregious that the trial court did not abuse its discretion in dismissing the complaint.

Additionally, our Supreme Court recently addressed this issue in Whitaker, 960 N.E.2d at 111. In Whitaker, after a car accident, Becker sent Whitaker interrogatories and a request for production of documents. Whitaker neither responded by the deadline nor asked for an extension of time. After three letters reminding Whitaker that his responses were overdue, Becker filed a motion to compel discovery three months later. Id. at 112. The trial court granted the motion and ordered Whitaker to respond in three weeks. Id.

Whitaker finally responded to discovery with what he knew were false answers. Id. Becker eventually filed a motion for sanctions, to which Whitaker failed to respond. The trial court held a hearing on the motion six months later. The trial court considered lesser sanctions, but after finding that Whitaker had supplied “deceptive interrogatory answers” in “bad faith,” it dismissed the complaint. Id. at 114. We reversed, finding that attorneys’ fees were an adequate sanction. Whitaker v. Becker, 946 N.E.2d 51 (Ind.Ct.App.2011), trans. granted.

After granting transfer, our Supreme Court upheld the trial court’s dismissal. It held that our case law “confirms the notion that under the appropriate facts a trial court may enter an outright dismissal or default judgment when a party failed to respond to discovery requests on time, the trial court granted an order to compel discovery, and the party violated the order to compel by failing to respond.” Whitaker, 960 N.E.2d at 116. Finding all of those factors present, the Supreme Court upheld the dismissal of the complaint under Trial Rule 37(B).

A review of the case law on this issue highlights certain facts that create an egregious discovery violation and result in dismissal not being unjust: long delays, a motion to compel, a warning that dismissal is looming, failure to ask for additional time, deception in the information provided in discovery, impairment of the trial court’s calendar, and fault on the part of the offending party.

However, none of the appropriate facts justifying dismissal were present in this case. There was no order compelling discovery, no warning that dismissal was looming, and Wright kept the lines of communication open both with opposing counsel and the trial court. See Appellant’s App. p. 378-95. There were also no long delays in discovery — Wright missed the deadline by three days for her preliminary witness and exhibit lists, eleven days for her final witness and exhibit lists, twenty-four days for her contentions, ten days for her jury instructions, and seventeen days for naming her new expert witness. There was a delay of approximately four months between when Wright knew that Dr. Nash would be unable to testify for medical reasons and when her counsel found and disclosed to opposing counsel a new expert. But the expert was found and retained seventeen days after the discovery deadline and before the status conference that was to determine the trial date. So while there were missed deadlines, there were not the extended delays that are found in the case law. Finally, the trial court notes Wright’s frequent requests for continuances as a reason for supporting dismissal; however, failing to request additional time is a factor that the courts hold against a party in deciding these cases.

Overall, after review of the record, this case is dissimilar to those in which we have upheld dismissal. The factors enumerated in Bums are not present and the delays were not egregious. While we respect the deference we owe to the trial court’s decision, we find that it was unjust to dismiss this case under Trial Rule 37(B).

B. Striking Wright’s Expert Witness

The other discovery sanction handed down in this case under Trial Rule 37(B) was the striking of Wright’s expert. There has been no clear test articulated for deciding this issue in the civil context. Our Supreme Court has addressed this issue and articulated a test in the criminal context, however, in Wiseheart v. State, 491 N.E.2d 985 (Ind.1986). This test has been widely adopted in criminal cases since. See, e.g., Vasquez v. State, 868 N.E.2d 473 (Ind.2007); Williams v. State, 714 N.E.2d 644 (Ind.1999); Tyson v. State, 619 N.E.2d 276 (Ind.Ct.App.1993), tram, denied.

In Wiseheart, on the morning of trial, Wiseheart requested permission to call four witnesses who had not previously been listed during discovery. Wiseheart argued that he was unaware of their existence before trial and that their testimony was material to his defense. Wiseheart, 491 N.E.2d at 987. The trial court excluded the witnesses, however, citing Wiseh-eart’s violation of the court’s pretrial discovery order. Id.

In reversing the trial court’s decision, our Supreme Court noted a balancing test of five factors that the court should consider in determining whether a witness should be allowed to testify when his identity is disclosed after discovery has been closed. Those factors included:

(1) Whether the nature of defendant’s violation was trivial or substantial. The trial court should consider when the witness first became known to defense counsel.
(2) How vital the potential witness’ testimony is to the defendant’s case. The trial court should determine the significance of the proffered testimony to the defense. Is the testimony relevant and material to the defense or merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a deleterious impact on the case prepared by the State?
(4) Whether less stringent sanctions are appropriate and effective to protect the interests of both the defendant and the State.
(5) Whether the State will be unduly surprised and prejudiced by the inclusion of the witness’ testimony despite the available and reasonable alternative sanctions ... which can mitigate prejudice to the State by permitting the State to interview the witnesses and conduct further investigation, if necessary.

Id. at 991.

We extended this test to the civil context in 2001, when we decided Davidson v. Perron, 756 N.E.2d 1007 (Ind.Ct.App.2001). In Davidson, the Defendants filed a motion for summary judgment, and Davidson responded after the discovery deadline and included an affidavit from a previously undisclosed witness, McDowell, in his response. The Defendants moved to strike the affidavit because it was not divulged until after the discovery cut-off date. The trial court granted the motion. Id. at 1013.

In upholding the trial court’s striking of the affidavit, we cited to the balancing test in Wiseheart. Id. at 1013-14. We found that Davidson’s disclosure of McDowell as a witness was insufficient, McDowell’s testimony was not highly relevant to the case, and admitting McDowell’s affidavit would have caused prejudice to the Defendants’ case. Id. at 1014. After finding the first three of the five factors to be in favor of the court’s holding, we held that it was unnecessary to engage in further inquiry and found no abuse of discretion. Id.

We find the balancing test of factors articulated in Wiseheart to be instructive in deciding whether to strike a party’s witness under Trial Rule 37(B). However, the list of factors is not exhaustive. In addition to considering those five factors, after reviewing the case law on this issue, we must also consider: (1) the pattern of conduct that the offending party has engaged in; (2) the importance of the deadline for the court’s docket and how close to trial the discovery-rule violation takes place; (3) prior warnings the trial court has given to the offending party; (4) any motions to compel discovery that have been filed against the offending party; (5) whether other sanctions have been implemented; and (6) whether the offending party has provided misleading information in discovery in addition to a failure to respond to discovery requests. Prior cases have helped shape the formulation of these additional factors to consider when evaluating this issue.

For example, in Brown v. Terre Haute Regional Hospital, Brown was involved in a car accident and brought a negligence lawsuit against the hospital where he received treatment for his injuries. 537 N.E.2d 54, 56 (Ind.Ct.App.1989). During discovery, the hospital sent interrogatories to Brown requesting information on his expert witnesses; Brown replied that he had not retained any experts and he never formally supplemented his answers, but he did verbally inform the hospital of five expert witnesses, including Dr. Worth. Id. at 57.

A year later and thirteen days before trial, Brown filed a witness list identifying a new expert witness. The hospital deposed the new witness four days before trial. Three days before trial, Brown identified yet another expert witness. Due to the late notification of these witnesses, the hospital filed a motion to exclude the testimony of the two new witnesses or, in the alternative, to continue the trial. Id. The trial was continued, and the hospital conducted depositions, including a second deposition of Dr. Worth. Dr. Worth revealed new opinions at the second deposition, so the hospital filed a motion to exclude his testimony. Id. at 57-58. The trial court overruled the motion. But when Brown attempted to elicit this opinion at trial, the hospital objected and moved to exclude the testimony. The trial court sustained, striking the testimony of Dr. Worth under Trial Rule 37(B). Id.

We upheld the decision of the trial court on appeal, noting Brown’s continued lack of cooperation throughout the discovery process. Id. at 58. We also found it important that Brown had ample time in which to inform the hospital of the change in Dr. Worth’s expert opinion. Id. at 58-59. Brown emphasizes the importance of considering the pattern of conduct that the offending party has engaged in, prior sanctions, and the importance of the deadline for the court’s docket, specifically how close to trial the discovery violation takes place when determining if striking a party’s witness was appropriate.

The 2000 case of Nyby v. Waste Management, Inc. is also instructive in our analysis. 725 N.E.2d 905 (Ind.Ct.App.2000), trans. denied. The Nybys filed their witness list, and the Defendants moved to bar the testimony of the expert witness because the Nybys did not provide any information about him. The Nybys then filed a revised witness list which included several expert witnesses. The Defendants again moved to bar the testimony because there was no information provided about the experts’ expected testimony. Id. at 915-16. The trial court denied the Defendants’ motion on the condition that the Nybys provide the Defendants and the court within fifteen days “the subject matter upon which the listed experts ... will be expected to testify, the substance of the facts and opinions to which they are expected to testify, and a summary of the grounds for each opinion.” Id. at 916. The trial court also indicated that any further discovery violation would result in sanctions. Id. Although the Nybys met the deadline, the information provided was insufficient; accordingly, the trial court barred their experts from testifying.

On appeal, we upheld this decision of the trial court, finding that the Nybys both failed to adequately state the facts and opinions to which one of the experts would testify and failed to state a summary of the grounds for each expert opinion. Id. at 917. This case illustrates the importance of considering whether the offending party has provided misleading information in discovery. It also is an example of a case where the trial court warns the offending party that dismissal is a possibility if there are any further discovery violations and where the trial court issues an order compelling discovery action on the part of the offending pai'ty.

Eight years later, we decided Franciose v. Jones, which is also helpful in our review. 907 N.E.2d 139, 149 (Ind.Ct.App.2009), trans. denied. Jones was injured by motorist Franciose while trying to move a disabled vehicle off of the road and sued Franciose for negligence. During trial, the trial court excluded the testimony of a defense witness who failed to appear for his deposition and whose contact information had not been provided before trial. Id. at 143.

We upheld the trial court’s decision, drawing attention to the fact that Franc-iose had provided inaccurate contact information for his witness and failed to supplement or correct it for two years. It was this failure to provide accurate information that led to a last-minute deposition that was missed by the witness and the trial court’s subsequent decision to strike his testimony. Id. at 149-50. This case again evidences the importance of considering the party’s truthfulness in the information it provides in discovery. This also shows how the party’s pattern of behavior is considered, as Franciose failed to supplement or correct the contact information for a period of two years.

Finally, we addressed this issue in May v. George, 910 N.E.2d 818, 820 (Ind.Ct.App.2009). May was injured by a tree that fell from George’s property and sued George for negligence. Two years after the accident, George filed a motion for summary judgment, and May attempted to admit into evidence two affidavits — one from his son, who had been driving behind his father at the time of the accident, and one from a man who lived two or three miles from where the accident occurred and was familiar with the tree that fell. Id. at 822. George moved to strike the affidavits because they had not been timely produced in discovery, and the trial court granted the motion. Id.

We upheld the trial court’s decision, specifically noting that May was aware that his son was going to be a witness for over two years and failed to disclose his identity to George. This failure to disclose undoubtedly had an impact on the parties’ litigation strategy, so the trial court acted within its discretion when it struck the affidavits. Id. at 826. May, like the recent Supreme Court case of Whitaker, shows the importance of our consideration of whether the offending party has provided deceptive information in discovery in addition to its failure to respond.

This representative case law provides us with guidance in terms of factors that should be considered when determining if the trial court has abused its discretion in striking a party’s witness under Trial Rule 37(B). In addition to the five factors outlined in Wiseheart, it is also necessary to consider the six additional factors outlined above.

A review of the case law also shows, however, that while there are cases that deal with this issue, there are certain facts involved here that make this case unlike past cases. There was no warning by the trial court that a discovery sanction was impending, the parties and the court were all aware that Dr. Nash was Wright’s initial expert witness even though he did not appear on an official list, and the delay in obtaining a new expert witness was through no fault of Wright. There was no intention to deceive and the identity of the new expert was turned over to Dr. Miller immediately; this is not like the previous case law in which such a severe sanction was warranted. So while our research shows that we have never reversed the trial court on this issue, there is an outer limit to the trial court’s discretion on this issue; that limit has been reached here.

After applying the balancing test of these eleven factors to the present case, we find that the trial court abused its discretion in striking Wright’s expert witness. Although Wright did not formally designate Dr. Nash as her initial expert witness to Dr. Miller or the court, based on his affidavit and Wright’s responses to interrogatories, both parties were aware that Dr. Nash was acting in that capacity. See Appellant’s Br. p. 5; Appellant’s App. p. 67-68. Wright also did not become aware of her new expert witness, Dr. Bag-ner, until January 9, 2011, just one day before she disclosed the name of her expert to opposing counsel and the court. Appellant’s App. p. 37. Dr. Bagner was essential to Wright’s case, as he would be necessary to establish the standard of care in the medical-malpractice claim. There would be no real prejudice or unfair surprise to Dr. Miller by allowing Dr. Bagner to testify — Dr. Miller was aware that Wright would have an expert witness, and without a trial date set, Dr. Miller would have ample time in which to conduct discovery, including deposing Dr. Bagner, and prepare his litigation strategy accordingly. Also, there were less stringent alternatives available in this case, such that the trial court could have sanctioned Wright for her failure to comply with the discovery deadline without taking the drastic measure of striking her expert witness, especially when her missed deadlines had no real detrimental impact on Dr. Miller.

Turning to the remaining factors, we note that Wright did have a history of not meeting the trial court’s deadlines, but those delays were not especially egregious. This deadline was not of high importance to the court’s docket for this case because no trial date had been set; there can be no delaying a trial that has yet to be put on the court’s calendar. The trial court also did not give Wright a warning that any further violations of discovery • orders would result in the striking of her expert, nor did it ever file a motion to compel this particular information or issue other sanctions against Wright. Finally, Wright did not provide any misleading information to Dr. Miller or the court — her only offense was a delay in providing discovery.

Applying these considerations to the facts of this case shows that the decision to strike Dr. Bagner as a witness was against the logic and circumstances before the trial court. There were no egregious violations that warranted such a harsh sanction that would essentially eviscerate Wright’s case and deny her any meaningful day in court.

Finally, we note that the trial court’s order essentially “threw in the kitchen sink” when articulating its rationale for both dismissing Wright’s action and striking her expert witness. In addition to noting the missed discovery deadlines, the trial court referred to the fact that Wright asked for extensions of time and continuances, including one that was denied. Id. at 357-58. However, asking for extensions of time and continuances is exactly what litigants are encouraged to do when they are unable to meet the trial court’s deadlines. Such actions should not have been taken into consideration when coming to this decision to sanction Wright.

We rightfully give great deference to our trial court colleagues in ruling on discovery issues, and we understand the necessity of parties following the trial court’s deadlines. However, this case is unlike prior cases where the delays and missed deadlines have been egregious and the sole fault of the offending party — rather, this case consists of short delays and an expert witness who became unavailable for medical reasons. Litigants deserve their day in court, and we do not see that the misconduct here rose to a sufficient level to deny Wright the chance to resolve her claim in court.

We do not mean to suggest or imply by our opinion that the timely observance of pre-trial deadlines is unimportant, only that when all factors are considered, the extent to which Wright failed to comply with several deadlines was not sufficiently onerous or egregious to justify striking her expert and dismissing her claims without warning. We therefore hold that the trial court abused its discretion in striking Wright’s expert witness under Trial Rule 37(B). We reverse and remand for further proceedings.

Reversed and remanded.

ROBB, C.J., and NAJAM, J., concur.

      . We acknowledge that Wright’s husband has been added as a plaintiff but nevertheless continue to refer to the plaintiffs in the singular as "Wright.”


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    John MORSE, M.D., Appellant-Defendant, v. Jeffrey Wayne DAVIS, Appellee-Petitioner.
    No. 84A05-1103-CT-140.
    Court of Appeals of Indiana.
    April 12, 2012.

      William W. Drummy, Holly A. Reedy, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorneys for Appellant.
    Jerry Garau, Garau Germano Hanley & Pennington, P.C., Indianapolis, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

John Morse, M.D., appeals the judgment against him following a jury trial on Jeffrey Davis’ complaint alleging medical malpractice for failure to diagnose Davis’ colon cancer. Morse presents three issues for our review, namely, whether the trial court abused its discretion when it excluded from the evidence at trial certain expert testimony, a medical record, and the testimony of a treating physician and nurse. We hold that the trial court did not abuse its discretion in excluding that evidence.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2004, Davis, who was then thirty-five years old, sought medical treatment with Dr. Morse, a gastroenterologist, and Davis reported the following symptoms: “problems after meals, nausea, occasional] vomiting, occ[asional] rectal bleeding,” upper stomach pain, and occasional diarrhea. Appellant’s App. at 98. Davis also reported a history of taking daily doses of Aleve for pain management. Dr. Morse noted in Davis’ chart that Davis’ mother was a former patient of his. Dr. Morse had treated Davis’ mother for colon cancer, but that fact was not noted in Davis’ chart.

Dr. Morse conducted a physical examination of Davis, including a digital rectal examination, and Dr. Morse ordered a he-moccult test and an endoscopy known as an EGD in an effort to determine the underlying cause of Davis’ symptoms. The hemoccult test was negative for blood in Davis’ stool. The EGD revealed that Davis had severe gastritis of the stomach, duodenitis, and a gastric ulcer. Dr. Morse instructed Davis to stop taking Aleve, and he prescribed medications for Davis to take. Dr. Morse did not order either a sigmoidoscopy or colonoscopy.

Davis next saw Dr. Morse exactly one year later, on April 26, 2005. On that date, Davis reported having nausea and sinus congestion, and he requested refills on medications in anticipation of his imminent relocation to Arizona. Dr. Morse’s office chart for Davis does not show any other reported symptoms on that date. Dr. Morse did not ask Davis whether his rectal bleeding had resolved since the 2004 office visit.

Davis moved to Arizona and, on July 24, 2006, he saw Dr. Jeffery Willden and reported a history of “chronic diarrhea 2-3 yrs intermittently [with] blood in stool[.]” Id. at 114. Dr. Willden referred Davis to Dr. Leff, a gastroenterologist, who ordered a colonoscopy for Davis, which was performed on August 31. The results of the colonoscopy revealed a “fairly sizable mass lesion in the sigmoid colon[.]” Trial Transcript, Vol. 1 at 108. Following surgery to remove the mass in Davis’ colon, Davis was diagnosed with “very advanced stage four cancer” involving the bowel, “adjacent lymph nodes,” and his liver. Id. at 109.

Davis’ medical records do not reflect that he revealed his family history of colon cancer to any of his physicians, including Dr. Morse, until after his cancer diagnosis in 2006. In addition, Davis’ medical records do not reflect that he reported rectal bleeding at any time, to any physician, other than to Dr. Morse in 2004 and then again to Dr. Willden after he moved to Arizona. Those records directly conflict with Davis’ recollection that in 2004 he had discussed his mother’s colon cancer with Dr. Morse and that, in 2005, he had reported to Dr. Morse that he continued to have rectal bleeding.

On January 16, 2009, Davis and his wife, Janette, filed a complaint against Morse and Associated Physicians & Surgeons Clinic, L.L.C., d/b/a AP & S Clinic (“AP & S Clinic”) seeking damages for alleged medical malpractice for failure to diagnose Davis’ colon cancer. Pursuant to the Indiana Medical Malpractice Act. (“the Act”), a medical review panel was convened to consider the evidence, and the panel concluded that “[t]he evidence does not support the conclusion that [Dr. Morse] failed to meet the applicable standard of care as charged in the complaint.” Def.’s Exh. Q. In reaching their conclusion, the panel members “made an assumption that Dr. Morse wasn’t provided with Jeff Davis’ family history of colon cancer” because “it wasn’t [written] on the initial note” from the 2004 office visit. Trial Transcript, Vol. 3 at 505. And each of the panel members opined that, without knowledge of Davis’ family history of colon cancer, Dr. Morse complied with the applicable standard of care when he did not order either a sigmoidoscopy or colonosco-py for Davis. In contrast, Davis’ expert witness, Dr. John Bond, testified in his deposition and at trial that, given Davis’ report of occasional rectal bleeding and Dr. Morse’s failure to discover an explanation for that bleeding, the applicable standard of care required Dr. Morse to order either a sigmoidoscopy or colonoscopy, regardless of any family history of colon cancer.

During a final pre-trial hearing on February 15, 2011, Davis moved to strike two defense witnesses: a physician, Dr. James Welch, who saw Davis for unrelated medical treatment in 2003, 2004, and 2005; and a nurse, Tammy Austin, who wrote down Davis’s complaints during the office visit with Dr. Morse in 2005. Dr. Morse’s counsel intended to elicit testimony from Dr. Welch that, when he saw Davis on those three occasions, Davis did not complain of rectal bleeding. And Austin would have testified that Davis did not report any rectal bleeding when she saw him in 2005. With respect to Austin’s proposed testimony, defense counsel admitted that “[theoretically that argument could be made without calling the witness at all, because the record is what the record says.” Hearing Transcript at 22. Both witnesses would have supported Dr. Morse’s argument that Davis was contrib-utorily negligent by not reporting his symptoms to Dr. Morse. It is undisputed, however, that Davis reported occasional rectal bleeding to Dr. Morse in April 2004.

Davis had previously submitted interrogatories to Dr. Morse, one of which asked: “If you contend that [Davis] in any way contributed to cause his injuries, please set forth in detail all facts on which you base this contention and identify by name, address and title any and all witnesses to the facts asserted in this response.” Appellant’s App. at 48. Dr. Morse responded, “At this time, I am not aware that [Davis] caused or contributed to causing his alleged injuries. Discovery and investigation are ongoing.” Id. Then, after the time for discovery had expired and approximately two weeks prior to trial, Dr. Morse supplemented his answer to that interrogatory identifying Dr. Welch and Austin as witnesses on the issue of contributory negligence. Davis moved to strike both witnesses on the basis that Dr. Morse did not timely supplement his interrogatory answer and that he was prejudiced in that he did not have an opportunity to depose either witness prior to trial. The trial court ruled that neither witness would be permitted to testify at trial. By this time, the trial date had been scheduled for well over a year.

Davis also moved in limine to exclude from evidence a medical history questionnaire submitted to Dr. Willden in December 2005, which did not indicate a family history of colon cancer. When Dr. Morse sought to admit that questionnaire, his counsel made an offer of proof, whereby Davis testified that he could not recall whether he had filled out the questionnaire or whether someone else had filled it out. Davis testified that while some of the information on the questionnaire was accurate, other information was inaccurate. The trial court ruled that the questionnaire, identified as Defendant’s Exhibit H, was inadmissible.

Finally, Davis moved in limine to preclude “[a]ny opinion, including the written medical review panel opinion, from Drs. Blitz, Brown or Bishop stating that Dr. Morse complied with the standard of care.” Appellee’s App. at 23. In support of that motion, Davis’ counsel explained to the trial court as follows:

[We are] attempting to prevent the witnesses from expressing an opinion on the credibility of witnesses. In this case, Mr. Davis has testified under oath that he told Dr. Morse about his family history of colon cancer when he saw him on April of 2004. Dr. Morse asserts that he did not tell him about his family history of colon cancer when he was seen in April of 2004. So there is a clear genuine issue of material fact, there is a factual dispute with respect to that question. The panel doctors have testified that their opinion that Dr. Morse complied with the standard of care assumes that Dr. Morse was not told about Jeffrey Davis’ family history. In other words, what the defendants’ experts have done, the panel doctors, is they have made a credibility determination in forming their expert opinion[s]. And that is improper, your honor. [TJhe panel doctors are not allowed to make credibility determinations. That is a function that is reserved solely for the jury.
Now, we’re not saying that [defense counsel] can’t call these witnesses and he can certainly say doctor if you assume that Mr. Davis did not tell Dr. Morse about the family history of colon cancer, did Dr. Morse comply with the standard of care? That’s an appropriate question and the defendants can answer that. But the defendant can’t say, no Dr. Morse complied with the standard of care because we don’t believe that Jeffrey Davis told him about his [family] history of colon cancer. That’s an improper credibility determination. The only way they can testify is by assuming facts one way or another. On cross we can say, do you assume he did tell him about the family history, did Dr. Morse (inaudible) and they’ll say yes. That’s appropriate, that’s an appropriate function of the expert. It’s not appropriate for them to get up here and do what they tried to do in their depositions which is say, well yes I didn’t believe Jeffrey Davis because of what I saw in the subsequent records and because I think if he would have told him, Dr. Morse would have written that down and all these things, they don’t get to do that, and that’s what our motion is based upon.

Hearing Transcript at 52-55 (emphases added).

The trial court then asked defense counsel whether he “agree[d] that it should be done that way, [that] credibility is determined by a jury[?]” Id. at 55. Dr. Morse’s counsel replied, “I agree, your honor, but I guess maybe I viewed this motion as another bit of overreaching and that, I sure read it to look like, well they didn’t want any opinions coming in from defense experts, which would have left me with a gun with no bullets in it.” Id. at 55-56. The trial court then clarified whether defense counsel agreed with the motion in limine as it was argued, as opposed to as it was written, and Dr. Morse’s counsel replied, “I think that’s fair, because I think that maybe indirectly they made a credibility determination. But what they did and what I’ve said in my response is this, they look at the written record and made their determination based on what they saw in the medical record.” Id. at 56.

During trial, Davis testified in relevant part that, during the 2004 office visit, he told Dr. Morse about his family history of colon cancer and requested, but was denied, a colonoscopy. And Davis testified that he had reported continued rectal bleeding during the 2005 office visit with Dr. Morse. Dr. Morse testified that Davis did not tell him about his family history of colon cancer or request a colonoscopy. And while Dr. Morse recalled that Davis’ mother was a former patient of his for approximately eight years during the 1990s, he testified that he did not recall her diagnosis. Dr. Morse also testified that Davis did not report continued rectal bleeding in 2005.

Again, the medical review panel concluded that “[t]he evidence does not support the conclusion that the defendant failed to meet the applicable standard of care as charged in the complaint.” Def.’s Exh. Q. Two members of the medical review panel testified at trial, Dr. David Brown and Dr. Gregory Blitz. On cross-examination, Dr. Brown testified in relevant part that in reaching their conclusion, he and the other panel members “made an assumption that Dr. Morse wasn’t provided with Jeff Davis’ family history of colon cancer” because “it wasn’t [written] on the initial note” from the 2004 office visit. Trial Transcript, Vol. 3 at 505. And Dr. Brown clarified that he “made that assumption despite Jeff Davis’ testimony that he had in fact told Dr. Morse about his family history[.]” Id.

Along those lines, Dr. Blitz testified that he had seen the family history section of Dr. Morse’s chart for the 2004 office visit. And Dr. Blitz testified that “absent a positive family history of colon cancer,” a colo-noscopy is not required in a patient under age fifty with reported rectal bleeding. Trial Transcript, Vol. 4 at 12. Dr. Blitz also testified that there was “no reference to rectal bleeding” in the office notes from the April 2005 office visit. Id. at 27. In addition, Dr. Robert Bishop, who was not a panel member, testified that he was “aware of disagreements [in the testimony] which include whether a family history was given” to Dr. Morse. Trial Transcript, Vol. 3 at 435. Dr. Bishop acknowledged having “heard the phrase, if it isn’t in writing, it didn’t happen.” Id. at 436. Dr. Bishop also testified that Dr. Morse did not violate the applicable standard of care in treating Davis.

Nonetheless, Dr. Morse made offers to prove with respect to proffered testimony by Dr. Brown, Dr. Blitz, and Dr. Bishop as follows:

DEFENSE COUNSEL: Dr. Bishop, if you were given the opportunity would your testimony be you do not believe Dr. Morse was made aware by Jeffrey Davis at any time that Mr. Davis had a positive family history of colon cancer; if Mr. Davis had given a positive history of colon cancer to Dr. Morse and/or the intake person in his office, such family history would have been documented on April 26, 2004, in the office visit record?
DR. BISHOP: Yes.
DEFENSE COUNSEL: Is it also your belief that likewise if Mr. Davis had ... reported a complaint of rectal bleeding on April 26, 2005, to Dr. Morse and/or his office staff person, such complaint would have been documented in the office visit records for that day?
DR. BISHOP: Yes.

Trial Transcript, Vol. 3 at 477-78 (emphases added).

Thus, Dr. Morse wanted to elicit opinion testimony from the panel members and from his expert witness that, if Davis had told Dr. Morse about his family history of colon cancer, that fact would have been documented in writing in his office chart. Likewise, Dr. Morse wanted to elicit testimony from the panel members and from his expert witness that, if Davis had reported continued rectal bleeding in 2005, that fact would have been documented in writing in his office chart. That testimony would have been in support of the contributory negligence defense, which was based on “the [alleged] failure by Mr. Davis to give information to Dr. Morse about family history [of colon cancer] on the first visit [in 2004],” as well as Davis’ alleged failure to report continued rectal bleeding to Dr. Morse in 2005. Hearing Transcript at 23. Dr. Morse contended at trial that Davis was contributorily negligent when he “fail[ed] to provide information that would have been important to any medical decision and would support ... a jury instruction on contributory negligence.” Id. at 24. The jury was instructed on contributory negligence.

The jury returned a verdict in favor of Davis in the amount of $2.5 million. Pursuant to the Medical Malpractice Act, the trial court reduced the verdict to the statutory cap of $1.25 million. This appeal ensued.

DISCUSSION AND DECISION

Dr. Morse contends that the trial court abused its discretion when it excluded certain evidence at trial. Our standard of review is well settled. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Franciose v. Jones, 907 N.E.2d 139, 144 (Ind.Ct.App.2009), tram, denied. This standard also applies to a trial court’s decision to admit or exclude expert testimony. Id. We will reverse a trial court’s decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court’s decision to admit or exclude evidence will not be reversed unless prejudicial error is clearly shown. Id.

Expert Testimony

Dr. Morse contends that the trial court abused its discretion when it precluded expert testimony regarding whether Davis reported his family history to Dr. Morse and whether Davis reported continued rectal bleeding to Dr. Morse in 2005. He maintains that Dr. Bishop, Dr. Brown, and Dr. Blitz “based their opinions, in part, on the absence of a family history of colon cancer in Davis’ medical records.” Id. at 13. And he argues that “[t]he exclusion of the basis for the experts’ opinions was very prejudicial to Dr. Morse” in that the experts’ opinions were “weakened and un-demined by their inability to explain to the jury that they had reviewed several of Davis’ medical records, and none of those records showed a history of colon cancer.” Id. As we discuss below, however, the expert witnesses did so testify.

First, Dr. Morse asserts that the experts’ proffered testimony was not inadmissible “simply because it may have included an ultimate factual issue to be determined by the jury.” Brief of Appellant at 12. In support of that contention, Dr. Morse cites Evidence Rule 704(a), which states that testimony in the form of an opinion otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.

But Davis argued to the trial court that the experts’ opinions were inadmissible under Evidence Rule 704(b), which prohibits testimony concerning whether a witness has testified truthfully. And in support of that contention on appeal, Davis cites Whedon v. State, 900 N.E.2d 498 (Ind.Ct.App.2009), summarily aff'd, 905 N.E.2d 408 (Ind.2009). In Whedon, the defendant proffered expert witness testimony in support of her post-conviction petition. The expert witness would have testified that the State’s witnesses, who had been in jail with the defendant when she told them details about a murder, “should not be believed because they have received an incentive to testify[.]” Id. at 506. The post-conviction court excluded the expert testimony. On appeal, we observed that “[although Whedon appears to argue that Warden did not testify about the inmate witnesses’ credibility in this case, this was the ultimate point of his testimony: since ineentivized witnesses are less likely to tell the truth, the inmate witnesses in this case were less likely to tell the truth.” Id. (emphasis added). And we concluded, “[sjimply put, ‘[cjredibility is not a proper subject for expert testimony.’ ” Id. (quoting U.S. v. Benson, 941 F.2d 598, 604 (7th Cir.1991)). Thus, we held in relevant part that the proffered expert testimony was prohibited under Evidence Rule 704(b).

Dr. Morse maintains that the proffered testimony in this case did not go to Davis’ credibility, but merely to show that the expert witnesses had concluded, after reviewing Davis’ medical records, that Dr. Morse had not been provided with Davis’ family history. In support of his contention that the proffered testimony was not precluded under Evidence Rule 704(b), Dr. Morse cites Prewitt v. State, 819 N.E.2d 393 (Ind.Ct.App.2004), trans. denied. In Prewitt, the defendant testified that she was sleeping five to ten feet away from her husband when he was shot to death and that the gunshot did not wake her. The trial court permitted a forensic pathologist to testify as follows:

I had information provided to me by the police investigators at the time of the autopsy, was that this gun was discharged roughly five to ten feet away from the defendant, who, uh, was apparently sleeping in bed, or that’s the story that was provided by initial scene investigations. Although Pm not a firearms expert, I have been around weapons and know how much noise they make when they’re discharged and I have a very difficult time believing or understanding that a gunshot in a bathroom where you have tiles, which would cause reverberation [sic].

Id. at 413 (emphasis original).

On appeal, the defendant argued that the trial court abused its discretion when it permitted that testimony because it was “a direct attack on her credibility that invades the province of the jury, which is prohibited by Indiana Evidence Rule 704(b).” Id. at 414. We disagreed and observed that the testimony “was offered in the context of explaining why [the expert] concluded that the manner of death was a homicide” as opposed to a suicide. Id. Further, we noted that the expert’s opinion “that it was unlikely that a person so close to the shooting would not be awakened by a gunshot occurring in a bathroom was based on his personal experience and perceptions of the noise made by a discharged firearm.” Id.

We do not find the reasoning or holding in Prewitt applicable here. Dr. Morse’s expert witnesses were not qualified to testify consistent with the offers to prove based on personal experience or perceptions. Rather, Dr. Brown, Dr. Blitz, and Dr. Bishop opined, based solely on their review of the medical records, that, despite his testimony to the contrary, Davis had not, in fact, informed Dr. Morse about either his family history of colon cancer or his continued rectal bleeding in 2005. While the written records supported that conclusion, the offers to prove went beyond a comment on the lack of such evidence in the medical records and included a statement of the physicians’ beliefs about what Davis had not told Dr. Morse. There is no basis under the holding in Prewitt to support the admissibility of this proffered belief testimony.

Dr. Morse also directs us to Tudder v. Torres, 591 N.E.2d 656 (Ind.Ct.App.1992). In Tudder, the plaintiffs alleged that the defendant physicians did not inform them of the “risks and possible complications involved” with their surgeries, and one of the defendants testified that they had been so informed. Id. at 657. The medical review panel concluded that the physicians had not failed to meet the applicable standard of care. On appeal, the plaintiffs argued that “the review panel exceeded its statutory authority by resolving this conflict in the evidence when it issued its opinion.” Id. And the plaintiffs maintained that the trial court abused its discretion when it admitted into evidence the review panel’s opinion. Id.

In Tudder, we concluded that our opinion in Dickey v. Long, 575 N.E.2d 339 (Ind.Ct.App.1991), aff'd 591 N.E.2d 1010 (Ind.1992), was dispositive. In Dickey,

the panel resolved a question of fact which did not require an expert opinion in issuing its opinion and the trial court admitted the panel opinion into evidence. On appeal, plaintiff argued that the opinion should not have been admitted because the panel had exceeded its statutory authority by issuing an expert opinion on a question of fact not requiring expert opinion. The court held that the opinion was properly admitted because I.C. 16-9.5-9-9 [now Indiana Code Section 34-18-10-23] states that “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant....” The court also noted that the statute, by providing that the panel’s opinion shall not be conclusive, that either party shall have the right to call as a witness any member of the panel, and that the member must appear and testify, protects a claimant who wants to attack the efficacy of the panel’s opinion. Id.

Tudder, 591 N.E.2d at 657. And in Tudder, the plaintiffs were afforded the opportunity to examine one of the panel members in an effort to discredit the panel’s opinion; the plaintiffs brought out the fact that there was a conflict in the evidence on the question of informed consent; and the jury was instructed that the panel’s opinion was not conclusive on any of the issues to be determined by the jury and that the jury could disregard expert opinion as to a question of fact not requiring expert opinion. Id.

Here, Dr. Morse contends that “[tjhat is the proper procedure that should have been followed in the present case.” Brief of Appellant at 12. But we find Tudder inapplicable here. Unlike in Tudder and Diclcey, the issue here is not whether the medical review panel opinion was properly admitted at trial. Moreover, to the extent Dr. Morse contends that the panel members were not permitted to explain the bases for the panel opinion, that contention is not borne out by the testimony presented at trial. Indeed, Dr. Brown and Dr. Blitz testified that they had reviewed Davis’ medical records, including the family history section of Dr. Morse’s chart for the 2004 visit; that the applicable standard of care did not require either a sigmoidos-copy or a colonoscopy absent a family history of colon cancer; and that the panel concluded that absent knowledge of Davis’ family history, Dr. Morse had not violated the standard of care. In addition, Dr. Brown testified that in reaching their conclusion, he and the other panel members “made an assumption that Dr. Morse wasn’t provided with Jeff Davis’ family history of colon cancer” because “it wasn’t [written] on the initial note” from the 2004 office visit. Trial Transcript, Vol. 3 at 505.

We hold that the trial court did not abuse its discretion when it excluded the proffered testimony. The offers to prove asked the witnesses to state whether they believed that Dr. Morse “was made aware by Jeffrey Davis” of his family history of colon cancer and whether they believed that if Davis had so informed Dr. Morse that that information would have been noted in his chart. Trial Transcript, Vol. 3 at 477-78. We follow the sound reasoning in Whedon. The “ultimate point” of the proffered testimony was that Davis was not truthful on the question of whether he had reported a family history of colon cancer and continued rectal bleeding in 2005. See Whedon, 900 N.E.2d at 506. That testimony was directed to Davis’ credibility as prohibited by Evidence Rule 704(b). Indeed, as our supreme court recently reiterated, “no witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012) (citation and internal quotation marks omitted). Dr. Morse has not shown that the trial court’s exclusion of the proffered evidence was clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom.

Exhibit H

Dr. Morse next contends that the trial court abused its discretion when it excluded from evidence Exhibit H, which is a medical history questionnaire submitted to Dr. Willden in Arizona in December 2005. Among the questions listed, Davis was asked to provide information about his mother’s medical history by checking any applicable boxes corresponding to different diseases, including “cancer.” Appellant’s App. at 94. While the questionnaire as filled out indicates that his mother is “ALIVE & WELL,” none of the other boxes pertaining to his mother’s medical history are checked, including the box labeled “cancer.” Id. Dr. Morse sought to introduce this exhibit into evidence to buttress his claim that Davis had not informed him of his mother’s history of colon cancer.

Davis objected on hearsay and relevance grounds, and Dr. Morse argued that Exhibit H was admissible under Evidence Rule 803(4), an exception to the hearsay rule for “[statements made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” (Emphasis added).

We hold that the trial court did not abuse its discretion when it excluded Exhibit H from evidence. First, Davis sought medical treatment from Dr. Willden on the date in question for sinusitis, so his mother’s medical history with respect to cancer, or lack thereof, was not “reasonably pertinent” to the diagnosis or treatment of Davis’ ailment. See id. Indeed, Dr. Morse did not elicit testimony from Dr. Willden that he had relied on that information when he treated Davis on that date. Second, even if a statement falls within Rule 803(4), the trial judge retains discretion to exclude it under Rule 403, see 13 Robert Lowell Miller, Jr., Indiana Practice, Evidence § 803.104 at 846 (3rd ed. 2007), which provides in relevant part that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the needless presentation of cumulative evidence. Here, Exhibit H, showing in relevant part a negative family history of colon cancer, was merely cumulative of other such evidence, including (1) the testimony of Dr. Morse and Dr. Brown; (2) Dr. Morse’s medical chart for Davis; (3) the EGD report from April 28, 2004, stating “Family history is negative for ... colon cancer, or colon polyps,” Appellant’s App. at 99; and (4) Exhibit C, a medical record stating “Family [history of] ... No Caneer-colon[,]” Exhibit C at 1. Dr. Morse has not demonstrated that the trial court abused its discretion when it excluded Exhibit H from evidence.

Dr. Welch and Tammy Austin

Dr. Morse finally contends that the trial court abused its discretion when it excluded testimony from Dr. Welch and Austin, Dr. Morse’s nurse who recorded Davis’ complaints in April 2005. Again, Dr. Morse’s counsel intended to elicit testimony from Dr. Welch that, when he saw Davis in 2003, 2004, and 2005, Davis did not complain of rectal bleeding. And Austin would have testified that Davis did not report any rectal bleeding when she saw him in 2005.

At the final pre-trial hearing, Davis moved in limine to exclude the testimony of both proposed witnesses on the basis that Dr. Morse had failed to timely supplement an interrogatory response. Davis had submitted the following interrogatory to Dr. Morse: “If you contend that [Davis] in any way contributed to cause his injuries, please set forth in detail all facts on which you base this contention and identify by name, address and title any and all witnesses to the facts asserted in this response.” Appellant’s App. at 48. Dr. Morse responded, “At this time, I am not aware that [Davis] caused or contributed to causing his alleged injuries. Discovery and investigation are ongoing.” Id. While Dr. Morse subsequently asserted a contributory negligence defense, he did not supplement the interrogatory until almost two weeks prior to trial. Accordingly, Davis did not have an opportunity to depose either witness on the contributory negligence issue prior to trial.

On appeal, Dr. Morse maintains that the trial court abused its discretion in excluding the witnesses because Davis was not prejudiced by the failure to supplement the interrogatory response. In particular, Dr. Morse contends that Davis knew about the contributory negligence defense in April 2010, and both Dr. Welch and Austin were included on both parties’ witness lists submitted months before trial. Dr. Morse also asserts that the witnesses should have been permitted to testify because their testimony was “relevant to the underlying malpractice claim.” Brief of Appellant at 23.

A trial court is accorded broad discretion in ruling on issues of discovery, and a reviewing court will interfere only when a party can show an abuse of that discretion. Johnson v. Wait, 947 N.E.2d 951, 962 (Ind.Ct.App.2011), trans. denied,. Due to the fact-sensitive nature of discovery issues, a trial court’s ruling is cloaked with a strong presumption of correctness. Hill v. Fitzpatrick, 827 N.E.2d 188, 141 (Ind.Ct.App.2005). Absent clear error and resulting prejudice, the trial court’s determinations as to violations and sanctions should not be overturned. Oliver v. State, 666 N.E.2d 59, 64 (Ind.1996) (citation omitted).

Indiana Trial Rule 26(E) requires parties to supplement discovery responses after the initial response. Johnson, 947 N.E.2d at 962. “The duty to supplement is absolute and is not predicated upon a court order.” Id. (quoting P.T. Buntin, M.D., P.C. v. Becker, 727 N.E.2d 734, 738 (Ind.Ct.App.2000)). If a party fails to supplement discovery responses concerning experts to be used at trial, the trial court can exercise its discretion and exclude the testimony of the witness. Id.

Dr. Morse does not dispute that he had an “absolute” duty to supplement the interrogatory response. See id. Rather, in essence, he maintains that any prejudice Davis suffered by the lack of a supplement to the interrogatory was trumped by the prejudice to Dr. Morse by the exclusion of the witnesses’ testimony. But our review of the record indicates that any prejudice to Dr. Morse in the exclusion of the witnesses’ testimony was insubstantial.

Indeed, Dr. Morse’s counsel acknowledged that, with respect to Austin’s proposed testimony that Davis did not report continued rectal bleeding in 2005, “[t]heo-retically that argument could be made without calling the witness at all, because the record is what the record says.” Hearing Transcript at 22. The same can be said for the proffered testimony of Dr. Welch, that is, the record speaks for itself. Moreover, there was other expert testimony and documentary evidence presented at trial supporting the defense theory that Davis did not inform his health care providers about his continued rectal bleeding in 2005. Given the strong presumption that the trial court properly excluded the testimony of Dr. Welch and Austin, and given that their testimony was cumulative of other evidence, we cannot say that Dr. Morse has shown an abuse of discretion.

Conclusion

Dr. Morse has not shown that the trial court abused its discretion when it pre-eluded testimony from Dr. Morse’s expert witnesses that they believed that Davis had not advised Dr. Morse that his mother had a history of colon cancer despite Davis’ testimony to the contrary. The purpose of that testimony would have been to impeach Davis’ credibility on a critical issue of fact, namely, whether he had told Dr. Morse about his mother’s colon cancer. A determination of Davis’ credibility was within the sole province of the jury, and the proffered testimony was prohibited under Evidence Rule 704(b). Likewise, Dr. Morse has not shown any abuse of discretion in the exclusion of Exhibit H or the testimony of Dr. Welch and Austin.

Affirmed.

RILEY, J., and VAIDIK, J., concur.

      . We heard oral argument in this case on March 5, 2012.

      . A hemoccult test is used to determine whether blood is present in a patient’s stool.

      . The Davises were required to file a proposed complaint for damages with the Indiana Department of Insurance under the Indiana Medical Malpractice Act. We assume for purposes of this appeal that a proposed complaint was filed, but neither party has included a copy of the proposed complaint in its appendix. And neither party references a date for that filing in its brief on appeal. We assume that the proposed complaint was timely filed.

      .Both Janette Davis and AP & S Clinic were dismissed as parties prior to trial.

      . Davis saw Dr. Welch for medical treatment unrelated to his gastrointestinal issues.

      . Davis saw Dr. Willden on that date for treatment of sinusitis.

      . The medical review panel opinion was admitted into evidence, and that is not an issue on appeal.

      . The parties agreed that the written motion in limine on this question was overbroad.

      . Each of the offers to prove was virtually identical. We excerpt the offer to prove with respect to Dr. Bishop to avoid repetition.

      . Davis presented evidence that the malpractice occurred in April 2004, when Davis’ report of occasional rectal bleeding was documented in Dr. Morse’s chart. Accordingly, the relevance of the 2005 office chart is disputed.

      . Our supreme court summarily affirmed this court's opinion in Whedon. However, the court also noted that the expert testimony was properly excluded because it did not constitute newly discovered evidence, as averred by Whedon. Accordingly, the court stated that it was "not necessary to address the issue of its general admissibility.” 905 N.E.2d at 409.

      . On appeal, Dr. Morse also contends that the medical record is not hearsay. But our review of the record shows that he did not make that contention to the trial court. Accordingly, that issue is waived. Likewise, Dr. Morse has waived the issue of whether Exhibit H should have been admitted under Evidence Rules 404(b), 406, or 803(3).

      . Again, Davis saw Dr. Welch for medical treatment unrelated to his gastrointestinal issues.

      . A determination of contributory negligence would have been an absolute bar to Davis’ claim. See Johnson, 947 N.E.2d at 958 (noting Comparative Fault Act does not apply to claims under the Medical Malpractice Act).

      . While both Dr. Welch and Austin were included on the witness lists, again, Davis was not notified until approximately two weeks before trial that their testimony would go to the issue of contributory negligence.

      . Because we hold that the trial court did not abuse its discretion in excluding evidence at trial, we need not address Davis’ secondary argument on appeal that any error in the exclusion of evidence was harmless. We note, however, that the evidence is undisputed that Davis reported occasional rectal bleeding to Dr. Morse in 2004, and that Dr. Morse was unable to determine the cause of that bleeding. At trial, Davis presented expert testimony that, under the circumstances, Dr. Morse should have ordered a sigmoidos-copy or colonoscopy in 2004 without regard to Davis' family history, and that evidence, without more, supports the jury’s verdict.


text:
    Ruth DISHMAN, Personal Representative of the Estate of Julie A. Etchison, Deceased, Appellant, v. COMMUNITY HOSPITALS OF INDIANA, INC., et al., Appellees.
    No. 48A02-1105-PL-467.
    Court of Appeals of Indiana.
    April 16, 2012.
   ORDER

Appellees, by counsel, have filed a Motion to Reconsider Motion to Publish Memorandum Decision.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. On January 26, 2012, this Court handed down its decision in this case, designating it as an unpublished Memorandum Decision.

2. In a Motion to Publish Memorandum Decision that was file-stamped March 9, 2012, Appellees asked this court to re-designate that decision as For Publication.

3. On March 21, 2012, this court denied Appellees’ Motion to Publish Memorandum Decision. In the Order denying that motion, we cited Indiana Rule of Appellate Procedure 65(B) (“Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision ... ”) and stated, “Appellees filed the present motion on March 9, 2012, which was more than 30 days from the entry of the decision.” Appellees correctly interpreted this language as conveying that the ruling was based upon the timing of the filing of the motion to publish.

4. On March 26, 2012, the Appellees filed a Motion to Reconsider Motion to Publish Memorandum Decision. In it, Ap-pellees explain that they deposited the original motion to publish in the United States mail on February 24, 2012, and it was received on February 27, 2012. Apparently, that filing was defective and Ap-pellees diligently attempted to cure the defect and resubmitted the motion on March 1, 2012. However, Appellees were informed that the resubmitted motion was also defective. They promptly cured the defect and again resubmitted the motion to publish on March 9, 2012, this time successfully. This chronology of events explains how the Appellees’ Motion to Publish Memorandum Decision came to bear a March 9, 2012 file-stamp.

5. In their Motion to Reconsider, Ap-pellees present plausible argument in support of their claim that the original Motion to Publish should be deemed timely filed for purposes of Appellate Rule 65(B), i.e., that it complies with the requirement that it must be filed within thirty days of the entry of the decision. Therefore, Appel-lees urge, their motion should not be denied on grounds of lack of timeliness. In their Motion to Reconsider, the Appellees also request “clarification ... as to whether their Motion to Publish Memorandum Decision was properly denied based on timeliness.” We find this request well taken and take this opportunity to clarify the basis for our ruling.

6. The decision whether to seek transfer is sometimes influenced by a consideration of the possible impact of the decision on other cases in the future. Of course, pursuant to Indiana Appellate Rule 65(D), a not-for-publication decision has no prece-dential value and therefore cannot have any effect on future cases. For this reason, it has long been the policy of this Court that a motion to publish a memorandum decision will not be granted after the time for filing a petition for transfer has expired, as publication of the decision may have changed the calculus on whether to seek transfer in the first place.

7. For the reasons set out in the previous paragraph, this court considers two separate time constraints when deciding whether to grant a motion to publish a memorandum decision — (a) Appellate Rule 65(B) and (b) the expiration of the time for filing a petition for transfer in the action. Often, these two result in the same deadline date. Sometimes, as here, they do not. Where they are not the same, the deadline for filing a petition for transfer is necessarily the earlier of the two, but in no instance does it expire before thirty days after the date of the entry of the decision. In those instances where they are not the same, we will not grant a motion to publish that arrives for decision after the expiration of the period for seeking transfer and where the non-movant did not petition for transfer, regardless of whether the motion is timely filed pursuant to Appellate Rule 65(B).

8. In the present case, even if we deemed the Appellees’ original Motion to Publish as timely filed for purposes of Appellate Rule 65(B), it would not alter the deadline for filing a petition for transfer. By the time the original Motion to Publish arrived at this court for disposition, i.e., March 9, the deadline for the Estate of Julie A. Etchison to seek transfer to the Supreme Court had expired, and the Estate had chosen not to seek transfer. Accordingly, for the reasons set forth above, that motion was denied. For these same reasons, we hereby DENY Appellees’ Motion to Reconsider Motion to Publish Memorandum Decision.

9. Because we believe this explanation will prove instructive not only to Appellees in this case, but to others in future cases as well, we direct that this order be published. The Clerk of this Court is DIRECTED to send copies of this Order to the Thomson/Reuters/West and Lexis Publishing Companies and to all other services to which published orders and opinions are normally sent.

FRIEDLANDER, MATHIAS, JJ., concur.

RILEY, J., dissents.


author: VAIDIK, Judge.

text:
    Charles WESTMORELAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1107-CR-356.
    Court of Appeals of Indiana.
    April 17, 2012.

      Valerie K. Boots, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Charles Westmoreland was a passenger in a vehicle that police stopped for a routine traffic violation. After a police officer determined that there were outstanding warrants for the driver, the officer arrested the driver while another officer removed Westmoreland from the car, handcuffed him, and patted him down for officer safety, finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial court’s denial of his motion to suppress the marijuana, arguing that the pat down was illegal because the officers did not reasonably believe that he was armed and dangerous. In light of the United States Supreme Court’s opinion in Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), which considered the authority of police officers to pat down vehicle passengers during a routine traffic stop, we conclude that the trial court erred in denying Westmoreland’s motion to suppress the marijuana because the officers did not reasonably believe that he was armed and dangerous.

Facts and Procedural History

Around 6:00 or 7:00 p.m. on December 1, 2010, Indianapolis Metropolitan Police Department Officer Robert Hicks was patrolling the southside of Indianapolis. He observed a vehicle driven by Deborah Day commit traffic infractions, including failure to signal, and initiated a traffic stop. Officer Hicks approached the driver side of the vehicle and asked Deborah for her driver’s license and registration. Deborah gave Officer Hicks an Indiana identification card. Upon running the card, Officer Hicks learned that Deborah had warrants out of both Marion and Johnson counties. Accordingly, Officer Hicks called for assistance and then “pulled [Deborah] out of the car, placed handcuffs on her, [and] placed her [i]n the back seat of [his] vehicle.” Tr. p. 7.

Westmoreland was the sole passenger in Deborah’s vehicle, and Officer Hicks also obtained his identification. Westmoreland did not have any outstanding warrants. About this same time, a second officer, Officer Ethan Forrest, arrived on the scene. Officer Hicks told Officer Forrest that he “had a wanted person [Deborah] and asked him if he would pull the passenger out of the vehicle” because he “was going to tow [it].” Id. at 8-9. Officer Forrest then removed Westmoreland from the vehicle and performed a pat down. Officer Forrest also placed Westmoreland in handcuffs, but he was not sure whether he did so before or after the pat down. Although Officer Forrest said that he performed a pat down “for officer safety issues,” id. at 13, he did not observe “any furtive movements” from Westmoreland, id. at 14. During the pat down, Officer Forrest found a “plastic baggie with marijuana substance inside of it, in [Westmore-land’s] front pocket.” Id. at 13. Officer Forrest explained that a “corner piece” of the baggie, which revealed marijuana residue, was “sticking out” of Westmoreland’s front pocket. Id. Officer Forrest removed the baggie and gave it to Officer Hicks.

The following day, the State charged Westmoreland with Class A misdemeanor possession of marijuana. Westmoreland filed a motion to suppress the marijuana because the “search and seizure of Defendant’s person, the bag within [Defendant's pocket, and the marijuana within the bag, violated [his] rights under the 4th [A]mendment and [A]rticle 1 § 11.” Appellant’s App. p. 23. Following a hearing, the trial court denied Westmoreland’s motion to suppress the marijuana. Tr. p. 24-28.

This discretionary interlocutory appeal now ensues.

Discussion and Decision

Westmoreland contends that the trial court erred in denying his motion to suppress the marijuana. Our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind.Ct.App.2003), trans. denied. We determine whether substantial evidence of probative value exists to support the denial of the motion. Id. We do not reweigh the evidence, and we consider conflicting evidence that is most favorable to the trial court’s ruling. Id. However, the review of a denial of a motion to suppress is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable to the defendant. Id. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court’s determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.2008).

Westmoreland specifically argues that his pat down was illegal under both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution because the officers did not reasonably believe that he was armed and dangerous. Finding the federal constitutional argument dispositive, we address only that.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Unless one of several established exceptions applies, police officers must obtain a warrant based on probable cause before executing a search or a seizure. State v. Hobbs, 933 N.E.2d 1281, 1284 (Ind.2010). One such exception was established in Terry v. Ohio, in which the United States Supreme Court held that a police officer may, with or without probable cause, briefly detain a person for investigatory purposes if, based on specific and articulable facts, the officer reasonably believes that criminal activity “may be afoot.” 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In addition to detainment, Terry permits a police officer to conduct a limited search of the individual’s outer clothing for weapons if the officer reasonably believes that the individual is armed and dangerous. Id. A generalized suspicion that an individual presents a threat to an officer’s safety is insufficient to authorize a pat-down search; rather, “there must exist articulable facts to support an officer’s reasonable belief that the particular individual is armed and dangerous.” Patterson v. State, 958 N.E.2d 478, 486 (Ind.Ct.App.2011).

A unanimous United States Supreme Court has already addressed the issue before us, although neither party cites it, in Arizona v. Johnson, 555 U.S. 323, 129 5.Ct. 781, 172 L.Ed.2d 694 (2009). In Johnson, the Supreme Court considered “the authority of police officers to ‘stop and frisk’ a passenger in a motor vehicle temporarily seized upon police detection of a traffic violation.” Id. at 326, 129 S.Ct. 781. In arriving at an answer, the Supreme Court relied on three of its prior decisions.

First, the Supreme Court in Johnson cited Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Johnson, 555 U.S. at 331, 129 S.Ct. 781. In Mimms, the Supreme Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U.S. at 111 n. 6, 98 S.Ct. 330. The Supreme Court explained that the government’s “legitimate and weighty interest in officer safety outweighs the “de minimis ” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. Id. at 110-11, 98 S.Ct. 330. The Supreme Court further held once a driver is outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” Id. at 112, 98 S.Ct. 330.

Second, the Supreme Court in Johnson cited Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Johnson, 555 U.S. at 331, 129 S.Ct. 781. Wilson held that the Mimms rule applies to passengers as well as drivers. Id. Specifically, the Supreme Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” Wilson, 519 U.S. at 415, 117 S.Ct. 882. The Supreme Court recognized that “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger.” Id. at 413, 117 S.Ct. 882.

Finally, the Supreme Court in Johnson cited Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Johnson, 555 U.S. at 332, 129 S.Ct. 781. In Brendlin, the Supreme Court observed that for the duration of a traffic stop, the officer effectively seizes “everyone in the vehicle, not just the driver.” 551 U.S. at 255, 127 S.Ct. 2400. That is, a passenger is seized, just like a driver, “from the moment [a car stopped by police comes] to a halt on the side of the road.” Id. at 263, 127 S.Ct. 2400.

Based on these three decisions, the Supreme Court in Johnson held that, in a traffic-stop setting,

the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

555 U.S. at 327, 129 S.Ct. 781.

We now apply Johnson to this case. Because Officer Hicks lawfully pulled over Deborah for a traffic violation, the officers did not need to have cause to believe that Westmoreland was involved in criminal activity. However, to justify the pat down of Westmoreland, which led to the discovery of marijuana, the officers must have had reasonable suspicion that he was armed and dangerous. But no evidence was presented at the suppression hearing to support a reasonable belief that Westmoreland was armed and dangerous. Although Officer Forrest testified that he patted down Westmoreland for officer safety, Officer Forrest conceded that Westmoreland did not make any furtive movements. In addition, neither officer testified that Westmoreland was hostile, belligerent, or even uncooperative during the traffic stop. But most compelling is the State’s concession on appeal that “Officer Forrest did not have any particularized articulable facts for believing that [West-moreland] was armed and dangerous.” Appellee’s Br. p. 7. We therefore conclude that the officers did not have reasonable suspicion that Westmoreland was armed and dangerous. Because Officer Forrest performed an illegal pat down on West-moreland, the trial court erred in denying his motion to suppress the marijuana found as a result of that pat down. And without this marijuana, there is simply no evidence to support the possession of marijuana charge against Westmoreland. We therefore reverse the trial court and remand with instructions for the court to dismiss Westmoreland’s possession of marijuana charge.

Reversed and remanded.

ROBB, C.J., and NAJAM, J., concur.

      . We note that Westmoreland does not challenge the initial traffic stop. Indeed, it is well settled that a police officer may stop a vehicle upon observing a minor traffic violation. Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App.2010).

      . We note that the State argues that a different exception applies, that is, the search-incident-to-arrest exception. Specifically, the State argues that Officer Forrest had probable cause to arrest Westmoreland for possession of marijuana because he saw a corner of a baggie with marijuana residue sticking out of Westmoreland's front pocket. However, because the evidence shows that Officer Forrest spotted the marijuana during the pat down and not before, we find no merit to this argument. See Tr. p. 13 (Officer Forrest testifying that he found a plastic baggie "when” he patted down Westmoreland), 19 (prosecutor stating at motion to suppress hearing that Officer Forrest saw the baggie "[d]uring” the pat down).

      . We note that the State advocates for a slightly different test. That is, the State argues that because the officers were going to tow the vehicle, a pat down was warranted. The State asserts that Westmoreland likely would have been mulling about the area during this process, which would have “placefd] the officers in possible danger and would reasonably heighten apprehension for their safety.” Appellee’s Br. p. 7. However, as noted above, the State did not cite Johnson on appeal. Because Johnson sets forth the applicable test, which plainly requires the officers to harbor reasonable suspicion that Westmoreland was armed and dangerous, we decline to apply the State’s variation. In addition, because we ultimately find that the officers did not reasonably believe that West-moreland was armed and dangerous, dangerousness would not automatically develop just because a car is towed.