Court: Indiana Court of Appeals; February 26, 1992; Indiana; State Appellate Court
Bertha McCullough appeals a jury verdict against her in a products liability case involving a defective step ladder purchased from Sherwin-Williams Co. (SWC) and manufactured by Archbold Ladder Co. McCullough fell from the ladder in October 1987 while attempting to hang visqueen, claiming it was defective and caused her fall. The defendants denied the ladder's defectiveness and argued misuse, stating that McCullough lost her balance, leading to the ladder's breakage.
During the trial, McCullough presented expert testimony from James Taylor, who claimed the wood was rotted and defective, while the defendants countered with their own expert, Professor Harold Core, asserting the ladder was not rotted. Another expert for the defendants, Edwin Burdette, suggested McCullough climbed too high and lost her balance, causing the fall.
McCullough sought to introduce rebuttal testimony from engineer and physicist James Sobek to counter Burdette's claims, but the trial court excluded Sobek's testimony, ruling that McCullough had anticipated needing him as a witness but failed to disclose him in a timely manner. McCullough argued that she was not obligated to disclose rebuttal witnesses, referencing legal precedents that support the notion that rebuttal witnesses can be introduced even if not listed beforehand, as their necessity arises from the opposing party's evidence.
The appellate court determined that the trial court misapplied the legal standard regarding rebuttal witnesses, concluding that the basis for excluding Sobek's testimony was erroneous. The court also noted that the defendants' argument regarding McCullough's duty to supplement her witness list was not sufficient to uphold the exclusion. The decision reverses the trial court's ruling and remands the case for further proceedings.
The 1989 interrogatories required McCullough to identify experts consulted for trial; however, she only consulted Sobek on October 2, 1990, after submitting her supplemental witness list. Archbold and SWC argued that Indiana Trial Rules 16(G) and 26(E) mandated immediate notification of Sobek as a potential rebuttal witness. Rule 16(G) requires disclosure of additional witnesses post-pre-trial conference, while Rule 26(E)(1)(b) necessitates supplementing discovery with after-acquired information regarding expert witnesses expected to testify. Neither rule specifically addresses rebuttal witness disclosure, and Rule 26(E)(2)(b) was not applicable since the interrogatories sought only those expert witnesses intended for trial. McCullough was not obliged to disclose privileged information regarding experts she did not plan to call, as per Rule 26(B)(1.4)(b), and did not intend to call Sobek as a witness, viewing him only as a potential rebuttal witness. Indiana case law supports that rebuttal witnesses need not be disclosed beforehand, as exemplified by the Indiana Supreme Court's ruling in Phillips, where no obligation existed to list rebuttal witnesses. In contrast, the exclusion of a witness in Ottinger v. State was justified due to the defendant's failure to notify the prosecution of any witnesses contrary to prior interrogatory responses. McCullough had indicated in her witness list that rebuttal witnesses would be called, distinguishing her situation from Ottinger. Archbold and SWC also contended Sobek was not a proper rebuttal witness. However, rebuttal evidence is defined as information that explains or contradicts opposing evidence, and Sobek's testimony effectively rebutted Burdette's claims regarding McCullough’s fall. Although Sobek's testimony could have been part of the case-in-chief, it was deemed appropriate as rebuttal evidence, warranting admission. Additionally, McCullough argued that Archbold and SWC waived their objection to the rebuttal testimony by failing to identify rebuttal witnesses earlier, which was not unreasonable given the circumstances.
Archbold and SWC were not barred by waiver or estoppel from contesting the rebuttal testimony. Even if McCullough had a duty to disclose Sobek as a rebuttal witness, exclusion of the testimony was not the appropriate remedy. The court retains discretion in determining sanctions for discovery violations, typically opting for orders compelling disclosure or granting continuances. Exclusion is reserved for cases of gross misleading conduct or bad faith, necessitating a blatant and deliberate violation of a discovery order. In this instance, there was no evidence of bad faith by McCullough regarding the disclosure of the rebuttal witness. Consequently, exclusion of Sobek's testimony was unwarranted, leading to the conclusion that the trial court abused its discretion. A new trial is ordered. Additionally, Archbold and SWC's reliance on previous cases regarding the disclosure of rebuttal witnesses is dismissed; those cases pertain specifically to the prosecution's duty to provide exculpatory evidence and do not establish a blanket requirement for all rebuttal witness disclosures.
