McCullough v. Archbold Ladder Co.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Bertha McCullough appeals the jury verdict against her in her products liability claim. We reverse and remand.

ISSUE

We consolidate and rephrase the issues as:

Did the trial court abuse its discretion in excluding McCullough's rebuttal witness?

FACTS

In November 1986, McCullough purchased a step ladder from Sherwin, Williams Co. ("SWC") which was manufactured by Archbold Ladder Co. ("Arch-bold"). On October 2, 1987, McCullough fell from the step ladder while attempting to hang visqueen on her porch. She sued claiming that because the step ladder was defective, it broke and caused her fall. The defendants denied the step ladder was defective and asserted the affirmative defense of misuse, arguing that McCullough lost her balance and toppled the step ladder causing it to break.

On March 22, 1989, McCullough answered interrogatories. When asked to identify expert witnesses consulted or retained for trial, McCullough responded that she had not yet determined what experts would be called at trial. On February 12, 1990, McCullough filed her witness list. On September 21, 1990, McCullough filed an additional witness list which included, "All witnesses necessary for rebuttal." None were specifically identified.

At trial, McCullough presented the expert testimony of James Taylor regarding the standards for wood ladders. Taylor opined that the wood was rotted and defective and broke causing McCullough to fall. Archbold and SWC called their own expert witness, Professor Harold Core. Core testified that the step ladder was not rotted. Edwin Burdette, an engineer and accident reconstructionist, was another expert witness offered by Archbold and SWC. Bur-dette hypothesized that McCullough climbed too high, lost her balance and fell, toppling the step ladder and breaking it. McCullough attempted to offer the rebuttal testimony of James Sobek, an engineer and physicist, to rebut Burdette's hypothesis. The court sustained Archbold and SWC's objection and excluded the rebuttal testimony. The jury returned a verdict against McCullough. Other relevant facts will be presented in our discussion of the issues.

DISCUSSION AND DECISION

McCullough contends that the trial court erred in its ruling because she was not required to disclose rebuttal witnesses. Generally, a party is under no obligation to provide a list of rebuttal witnesses. Smith v. State (1990), Ind., 553 N.E.2d 832, 835; Phillips v. State (1990), Ind., 550 N.E.2d 1290, 1300. Citing Tanner v. State (1984), Ind., 471 N.E.2d 665, 667, the trial court excluded Sobek because it found that McCullough anticipated calling Sobek several months before trial and failed to disclose such to Archbold and SWC. See Record at 1156. However, in Tanner, the court allowed the testimony which tends to support a conclusion opposite that of the trial court. The trial court read Tanner too narrowly. In Hatcher v. State (1987), Ind.App., 510 N.E.2d 184, 187, the court reiterated the rule stating that a rebuttal witness may testify even though the witness's name is not on the witness list, because the very nature of such a witness makes it impossible to anticipate him being called. In other words, although one may foresee the possibility of calling a rebuttal witness, one cannot anticipate the necessity of calling the rebuttal witness until the opposing party's evidence creates the need. If we followed the trial court's reading of the rule, except for rebuttal witnesses not discovered until after the trial commenced, no other rebuttal witnesses would be permitted to testify because they would have been anticipated. Therefore, we conclude the trial court's basis for excluding Sobek was error.

Archbold and SWC correctly assert that the trial court must be affirmed if any theory supports its exclusionary ruling. See Rohm v. State (1990), Ind., 558 N.E.2d 1100, 1103. At trial, Archbold and SWC also sought exclusion of Sobek's testimony claiming that McCullough had breached her duty to supplement her answers to interrogatories and her witness list onee she consulted with Sobek as an expert witness. The 1989 interrogatories had asked McCullough to identify any experts consulted or retained for trial. McCullough did not consult Sobek until October 2, 1990, two weeks after she submitted her supplemental witness list suggesting the possibility of rebuttal witnesses.

Archbold and SWC argue that Ind.Trial Rules 16(G) and 26(E) required McCullough to notify them immediately after she consulted Sobek since he was a potential rebuttal witness. T.R. 16(G) provides that after the pre-trial conference, any additional witnesses should be disclosed immediately to the court and opposing parties. T.R. 26(E)(1)(b) states that a response to discovery should be supplemented with after-acquired information of expert witnesses expected to be called at trial. The response should also be corrected when the response is no longer true. However, neither TR. 16(G) nor T.R. 26(E) discusses disclosure of rebuttal witnesses. Also, TR. 26(E)(2)(b) is not triggered because the interrogatories requested identification of expert witnesses McCullough consulted or retained to prepare for trial or those expected to be called to testify. McCullough did not have to disclose any privileged information from experts consulted in preparation of trial that she did not intend to call as witnesses. TR. 26(B)(1), (4)(b). Furthermore, McCullough did not expect to call Sobek as a witness. Sobek was considered only as a possible rebuttal witness. Archbold and SWC do not cite any Indiana authority extending the rules to include rebuttal witnesses.¹

Instead, the cases support McCullough's position that rebuttal witnesses need not be disclosed. Our supreme court has held that a rebuttal witness is permissible even though his name is not on the witness list as it is impossible to anticipate the calling of such a witness. For example, in Phillips, 550 N.E.2d 1290, the State became aware of a witness a week before trial but did not inform the defendant because it did not anticipate calling the witness at trial. Id. at 1300. During the trial, the State offered the witness as a rebuttal witness. The Indiana Supreme Court stated that the State was not required to list the names of rebuttal witnesses. Id. (citing Tanner, 471 N.E.2d at 667).

We note that in Ottinger v. State (1977), Ind.App., 370 N.E.2d 912, the court's exclusion of the defendant's witness was not an abuse of discretion where the defendant had answered an interrogatory stating that he would not be calling any witnesses. Id. at -, 370 N.E.2d at 916. On the day of trial, the defendant reneged and sought to present two witnesses not disclosed to the State beforehand. Ottinger made no effort to notify the State before trial that he planned to call any witnesses, contrary to his prior interrogatory response. Unlike Ottinger, McCullough did represent affirmatively in her witness list that necessary rebuttal witnesses would be called at trial. Therefore, we conclude that the exclusion of the witness in Oftinger is not a warrant ed sanction here.

Archbold and SWC further argue that Sobek was not a proper rebuttal witness. Rebuttal evidence is that which tends to explain, contradict, or disprove an adversary's evidence. Jones v. State (1991), Ind.App., 569 N.E.2d 975, 982. An examination of the proferred testimony discloses that Sobek was a proper rebuttal witness. Archbold and SWC had presented the expert testimony of Burdette, opining that McCullough lost her balance, fell, and broke the step ladder. Sobek's testimony tended to rebut Burdette's opinion because Sobek claimed that the physical evidence made it impossible for the fall to have occurred as Burdette contended. Although Sobek's testimony could conceivably have been used in the case-in-chief, since it was also proper rebuttal evidence, the court should have allowed it.

McCullough also contends that Archbold and SWC waived their objection to the rebuttal testimony and were es-topped by their failure to request identification of the rebuttal witnesses earlier. Archbold and SWC were not unreasonable in failing to ask for specific identification of rebuttal witnesses which McCullough was not required to disclose. Thus, we do not find that Archbold and SWC were precluded on the basis of waiver or estoppel from objecting to the rebuttal testimony.

Even if we had determined that McCullough had a duty to disclose Sobek as a rebuttal witness, the proper remedy was not exclusion of the testimony. The court has discretion to determine the appropriate sanction for a party's discovery violation. Osborne v. State (1981), Ind., 426 N.E.2d 20, 25. An order compelling disclosure and a continuance are the usual appropriate remedies. Exclusion of the evidence may be imposed where a violation is grossly misleading or demonstrates bad faith. Id. Even assuming noncompliance, exclusion is appropriate only when a discovery order has been blatantly and deliberately violated. See Patel v. State (1989), Ind., 533 N.E.2d 580, 585; see also, Phillips, 550 N.E.2d at 1300; see e.g., Brown v. Terre Haute Regional Hospital (1989), Ind.App., 537 N.E.2d 54, 58 (bad faith violation warranted exclusion of expert witness); Beird v. Figg & Muller Engineers, Inc. (1987), Ind.App., 516 N.E.2d 1114, 1122-23. We review the court's exclusion of a witness for an abuse of discretion. Patel, 533 N.E.2d at 585.

There is no evidence here that deliberately. McCullough failed to disclose the rebuttal witness in bad faith or did so blatantly and Absent bad faith, exclusion of the testimony was not mandated. We find that the trial court abused its discretion in excluding Sobek's testimony, and a new trial is warranted.

Reversed and remanded for a new trial.

CONOVER, J., concurs. BAKER, J., dissents with separate opinion.

1 . Archbold and SWC refers to Mauricio v. State (1985), Ind., 476 N.E.2d 88, 94, and Reid v. State (1978), 267 Ind. 555, 564-65, 372 N.E.2d 1149, 1154, claiming their holdings require disclosure of rebuttal witnesses which the defendant requested and which were well known to the State. These are criminal cases where the State had the duty to provide exculpatory evidence to the defendant. The exculpatory evidence was in the form of rebuttal witnesses. We reject Arch-bold and SWC's interpretation that these cases stand for the general proposition that all rebuttal witnesses must be disclosed.