Deborah Doherty and Sandra Luedtke, as agent and attorney-in-fact for Deborah Doherty v. Purdue Properties I, LLC Campus Apartments Management, LLC Corridor, LLC (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jun 29 2020, 9:14 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Karl L. Mulvaney Bruce D. Jones
Nana Quay Smith Keith A. Gaston
Dentons Bingham Greenebaum LLP Rachel O. Webster
Indianapolis, Indiana Cruser, Mitchell, Novitz, Sanchez,
Gaston & Zimet, LLP
James Ludlow
Indianapolis, Indiana
James F. Ludlow, Attorney at Law P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deborah Doherty and Sandra June 29, 2020
Luedtke, as agent and attorney- Court of Appeals Case No.
in-fact for Deborah Doherty, 19A-CT-2807
Appellants/Plaintiffs, Appeal from the Marion Superior
Court
v. The Hon. Kurt Eisgruber, Judge
Trial Court Cause No.
Purdue Properties I, LLC; 49D06-1602-CT-4909
Campus Apartments
Management, LLC; Corridor,
LLC; and Corridor Ventures,
Inc.,
Appellees/Defendants.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020 Page 1 of 22
Bradford, Chief Judge.
Case Summary
[1] Deborah Doherty suffers from hydrocephalus, a condition in which fluid
accumulates on her brain, and has been receiving Social Security benefits
related to her condition since 2010. In February of 2014, Doherty slipped and
fell on snow-covered stairs outside of her West Lafayette apartment building,
which was owned and operated by Purdue Properties I, LLC; Campus
Apartments Management, LLC; Corridor, LLC; and Corridor Ventures, Inc.
(collectively, “Purdue”). In February of 2016, Doherty and her mother Sandra
Luedke (collectively, “Appellants”) sued Purdue for negligence, claiming that
Doherty had suffered a traumatic brain injury (“TBI”) in her fall. In September
of 2018, Appellants sought leave to amend their complaint to add a request for
punitive damages, which request the trial court ultimately denied.
[2] Meanwhile, Purdue had requested production of, inter alia, Doherty’s Social
Security Administration (“SSA”) records. After Appellants refused to produce
the SSA records, Purdue sought and obtained an order to compel them to
request the release of records related to her hydrocephalus. When Appellants
refused to comply with the trial court’s order to compel, Purdue moved for a
rule to show cause why they should not be held in contempt or sanctioned.
After a hearing, the trial court ordered Appellants’ complaint dismissed as a
sanction for their refusal to comply with its order to compel. Appellants
contend that the trial court abused its discretion in dismissing their complaint
because (1) Purdue failed to establish that Doherty’s SSA records were
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necessary to its defense; (2) federal law prevents the trial court from ordering
Appellants to request the release of the records; (3) even if the trial court had the
authority to order them to request the release of the SSA records, dismissal was
an inappropriate sanction for refusing to do so; and (4) the trial court abused its
discretion in denying them leave to amend their complaint. Because we
disagree with Appellants’ first three contentions and conclude that their fourth
is moot, we affirm.
Facts and Procedural History
[3] Doherty, born in 1969, suffers from congenital hydrocephalus, a condition in
which excess cerebrospinal fluid builds up within the fluid-containing cavities
or ventricles of the brain. Symptoms of hydrocephalus that may be seen in
adults include headache, difficulty remaining awake, loss of coordination or
balance, bladder control issues, and impaired vision and cognition. Doherty
began living independently in Texas in 2003, but around 2005 Doherty began
having difficulty managing her money, a job, her apartment, and other aspects
of living independently. In early 2008, Doherty returned to Indiana and, on
February 29, underwent a neuropsychological evaluation performed by Dr. Jill
Salem, Ph.D., HSPP. After Doherty’s evaluation by Dr. Salem and upon her
advice, Luedke applied for disability benefits for Doherty with the SSA. The
SSA approved the application for disability benefits in 2010.
[4] At approximately 7:45 a.m. on February 18, 2014, Doherty left the West
Lafayette apartment building in which she had been living for five years, which
building was owned and operated by Purdue. The door used by Doherty led to
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a set of five stairs leading up that were covered with packed snow. As Doherty
attempted to climb the stairs, she lost her footing, fell backwards, and hit her
head on the door frame. On February 10, 2016, Appellants filed suit against
Purdue alleging, inter alia, negligence on the part of Purdue and that Doherty’s
fall had caused a TBI. Appellants claimed that Doherty’s alleged accident-
related TBI had caused significant cognitive and physical deficiencies that were
not present before her fall.
[5] On September 21, 2018, Appellants sought leave to amend their complaint to
add a request for punitive damages based on the allegation that Purdue’s
actions had exhibited a conscious disregard for the safety of its residents.
Although the trial court initially granted Appellants leave to amend their
complaint, on October 15, 2018, the trial court granted Purdue’s motion to
reconsider, withdrawing its leave.
[6] Meanwhile, Purdue had sought discovery of Doherty’s medical records before
and after her fall. On March 4, 2016, Appellants provided Purdue with a
compact disc containing a number of Doherty’s medical records from before
and after the fall. The medical records were not made part of the record below,
and it is unknown how many related to treatment for Doherty’s hydrocephalus.
At some point, Purdue requested that Appellants sign a request prepared by it
to release Doherty’s SSA records. Appellants refused to sign the release, and,
on February 27, 2019, Purdue moved to compel discovery.
[7] On April 15, 2019, the trial court held a hearing on Purdue’s motion to compel.
At the hearing, Purdue argued that discovery had left a gap from 2008 to 2015
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regarding medical records for Doherty’s hydrocephalus and that her SSA
records were necessary to evaluate her condition prior to and after her fall in
February of 2014. Purdue also noted that Doherty herself was no longer
competent to testify regarding her prior medical treatment and argued that,
therefore, it was the only way to obtain the information it sought. Appellants
argued that the trial court lacked the legal authority to order them to request the
release of Doherty’s SSA records and that they were not necessary in any event
because of the medical records they had produced in March of 2016.
Appellants did not admit any of those medical records at the hearing, and there
is no indication of how many, if any, of them related to the treatment of
Doherty’s hydrocephalus. Following the hearing, the trial court granted
Purdue’s motion to compel discovery, ordered Purdue to modify the SSA
request to limit the release of only the records necessary to fill in the gaps in
Doherty’s medical history, and ordered the parties to execute a confidentiality
agreement.
[8] Appellants refused to comply with the trial court’s order to compel, and, on
July 15, 2019, Purdue petitioned for a rule to show cause why Appellants
should not be held in contempt of court or, in the alternative, why they should
not be sanctioned pursuant to Indiana Trial Rule 37(B). On October 29, 2019,
the trial court ordered Appellants’ complaint dismissed pursuant to Trial Rule
37(B)(2)(c) as a sanction for refusal to comply with the order to compel
discovery.
Discussion and Decision
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I. Whether the Trial Court Abused its Discretion in
Dismissing Appellants’ Complaint
[9] Appellants contend that the trial court abused its discretion in dismissing their
complaint as a discovery sanction for refusing to sign a request to release
Doherty’s SSA records. Pursuant to Trial Rule 26(B)(1), a party “may obtain
discovery regarding any matter, not privileged, which is relevant to the subject-
matter involved in the pending action whether it relates to the claim or defense
of the party seeking discovery[.]” The purpose of Indiana’s discovery rules is
“to allow a liberal discovery procedure” for the purpose of providing litigants
“with information essential to the litigation of all relevant issues, eliminate
surprise and to promote settlement.” Canfield v. Sandock, 563 N.E.2d 526, 528
(Ind. 1990). A trial court is vested with “broad discretion in ruling on issues of
discovery.” Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 321 (Ind. App. Ct.
2006). Appellants argue that Purdue failed to establish that Doherty’s SSA
records were necessary and the trial court lacked the authority to order them to
request their release even if they were. Appellants also argue that, even if the
trial court properly ordered the production of Doherty’s SSA records, dismissal
was an inappropriately punitive sanction for their refusal to do so.
A. Whether Purdue Established that
Doherty’s SSA Records were Necessary
[10] Appellants contend that Purdue failed to establish the need for Doherty’s SSA
records. When a discovery request is made, the trial court must first determine
whether the information sought is relevant to the issue being tried. Bishop v.
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Goins, 586 N.E.2d 905, 907 (Ind. Ct. App. 1992). If the information is not
relevant, no further inquiry is necessary, and the discovery is prohibited. Id.
The trial court, however, can also deny a discovery request for relevant material
when it determines that information sufficient to prepare the case has already
been exchanged or when the information sought has already been provided
through prior discovery. Coster v. Coster, 452 N.E.2d 397, 400 (Ind. Ct. App.
1983). Because of the fact-sensitive nature of discovery issues, the trial court’s
decisions are clothed with a presumption of correctness on appeal. Lucas v.
Dorsey Corp., 609 N.E.2d 1191, 1197 (Ind. Ct. App. 1993), trans. denied.
[11] Appellants did not argue below that Doherty’s SSA records were not relevant,
only that they were not necessary because of the medical records they had
already produced. Consequently, to the extent that Appellants argue on appeal
that the SSA records were not relevant, they have waived that claim for
appellate review. See, e.g., Smith v. Marion Cty. Dep’t of Pub. Welfare, 635 N.E.2d
1144, 1148 (Ind. Ct. App. 1994) (“This court has determined that a party may
not raise an issue for the first time on appeal.”), trans. denied. That leaves us
with the question of whether the trial court abused its discretion in determining
that the SSA records were necessary.
[12] At the hearing on the motion to compel discovery, Purdue argued that there
was a gap in relevant medical records from 2008 to 2015 and noted that it had
attempted to obtain additional records from Dr. Salem without success. Purdue
also noted that Doherty was no longer competent to testify and personally
provide more information on her medical care during the relevant time period,
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arguing that that left them with no other way to obtain the information they
sought. Appellants contended that the medical records they provided in March
of 2016 would render production of Doherty’s SSA records duplicative. None
of these medical records were put into the record below, however, and
Appellants did not argue, much less establish, that any of them had anything to
do with the treatment or possible progression of Doherty’s hydrocephalus. The
trial court was free to infer from all of this, and apparently did, that there was,
in fact, a gap that the already-produced records did not fill, rendering discovery
of the SSA records necessary for Purdue’s defense.
[13] Appellants argue that Purdue failed to establish that Doherty’s SSA records
were necessary to its defense because it did not introduce evidence at the
motion-to-compel hearing tending to show that necessity. Appellants cite to no
authority that stands for the proposition that the necessity for discovery of
certain materials must be established by the introduction of evidence, and our
research has failed to uncover any. It seems to us that the trial court should be
able to consider the representations of the parties in such proceedings, with the
parties being free to introduce evidence to support (or refute) a claim of
relevance and necessity if they so desire. We believe it is worth noting that
here, while Appellants contested Purdue’s claim that a gap existed in Doherty’s
medical history, they did not point to any particular medical records or offer
any other evidence to refute Purdue’s claim. Given what is intended to be the
informal and self-executing nature of discovery, we decline to hold that a trial
court must essentially hold a full evidentiary hearing to resolve any discovery
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dispute that arises. Under the circumstances, we conclude that the trial court
did not abuse its discretion in this regard.
B. Whether Federal Law Prevented the Trial Court from
Ordering Appellants to Request the Release of Doherty’s SSA
Records
[14] Appellants contend that the Federal Privacy Act (“FPA”) and SSA regulations
do not permit the trial court to order them to request the release of Doherty’s
SSA records. Purdue, while acknowledging that the trial court lacked the
authority to directly order SSA to release the records, contends that the trial
court did, in fact, have the authority to order Appellants to request the release
of the records.
1. The FPA
[15] We begin with the relevant language of the FPA, which provides, in part, as
follows:
No agency shall disclose any record which is contained in a
system of records by any means of communication to any person,
or to another agency, except pursuant to a written request by […]
the individual to whom the record pertains, unless disclosure of
the record would be […] pursuant to the order of a court of
competent jurisdiction[.]
5 U.S.C. §552a(b).
[16] The first step in interpreting a statute is to determine whether the
Legislature has spoken clearly and unambiguously on the point in
question. When a statute is clear and unambiguous, we need not
apply any rules of construction other than to require that words
and phrases be taken in their plain, ordinary, and usual sense.
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Clear and unambiguous statutes leave no room for judicial
construction.
City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007).
[17] Although it is undisputed that the FPA prevents the Marion Superior Court
from directly ordering SSA to release Doherty’s records, it does not address the
situation presented by this case, where the trial court has ordered Doherty to
request their release. It is well-settled that “it is just as important to recognize
what a statute does not say as it is to recognize what it does say. A court may
not read into a statute that which is not the expressed intent of the legislature.”
Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000) (citation omitted),
trans. denied. Congress’s intent, as expressed by the plain language of the FPA,
does not prohibit a state court from ordering a party to request the release the
party’s SSA records.
[18] That said, Appellants do not actually claim that ordering a party to request the
release of its SSA records is explicitly barred by the FPA, arguing instead that
such an order is essentially the same thing as a direct order to the SSA to release
them. We cannot agree. While a state trial court may not directly order the
SSA to release records, it can unquestionably order a party within its
jurisdiction to comply with a discovery order, which is what occurred here.
While both procedures could lead to essentially the same result, that does not
mean that they are equivalent.
[19] The court in Rodriguez v. IBP, Inc., 243 F.3d 1221 (10th Cir. 2001), cert. denied,
drew the same conclusion in a case with closely analogous facts. In that case,
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Rodriguez sued his former employer IBP for alleged retaliatory discharge after
he was injured on the job. Id. at 1224. Shortly before trial, IBP became aware
that Rodriguez had been receiving disability benefits and sought production of
his SSA records. Id. at 1225. Rodriguez did not produce the records before
trial, which ended with a jury verdict in his favor and an award of damages. Id.
IBP filed a post-trial motion seeking an order requiring Rodriguez to request the
release of his SSA records, which it hoped to use to reduce the award of
damages. Id. The district court granted IBP’s motion, and when Rodriguez
failed to execute the request for the records, it found him in contempt. Id.
[20] Rodriguez argued on appeal that the district court did not have the authority to
order him to request the release of his SSA records, citing to 42 U.S.C.
§1306(a), which provides, in part, that
[n]o disclosure of any […] record […] obtained at any time by the
Secretary or by any officer or employee of the Department of
Health and Human Services in the course of discharging the duties
of the Secretary under this chapter […] shall be made except as the
Secretary may by regulations prescribe[.]
The Tenth Circuit Court of Appeals noted that subsection (b) of the same
statute, along with 20 C.F.R. §401.100(a), permitted release of an individual’s
SSA records with the individual’s consent and concluded that the district court
did, in fact, have the authority to order Rodriguez to provide that consent.
Rodriguez, 243 F.3d at 1230 (citing United States ex rel. Woodard v. Tynan, 776
F.2d 250, 252 (10th Cir. 1985) (en banc) (concluding that federal district courts
have the authority to order defendants to request release of their records from
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parties maintaining them so defendants can comply with discovery
obligations)).
[21] The Rodriguez court drew the same distinction we draw today:
Rodriguez claims the Social Security Administration regulations
do not allow a district court to order the release of Social Security
records. The regulation governing orders from the court, however,
does not apply in this case because the order directed Rodriguez to
sign a release. The district court did not order the Social Security
Administration directly to release the records.
Rodriguez, 243 F.3d at 1230 n.5. We agree with the Rodriguez court that
ordering a party to comply with discovery is not the same thing as ordering the
SSA to release records, even if the result is the same.
[22] Appellants also argue that a trial court cannot order a party to request the
release of SSA records because such a request would not be “voluntary.” We
disagree and think, in fact, that it is something of a misnomer to characterize
the compelled production of Doherty’s SSA records as involuntary, given that
Appellants themselves put Doherty’s medical history in issue. This court has
recognized that the right to privacy, “like any other right that resides in an
individual, may be waived or lost. It is waived by express or implied consent
and lost by a course of conduct which estops its assertion.” Cont’l Optical Co. v.
Reed, 119 Ind. App. 643, 649, 86 N.E.2d 306, 309 (1949). As an illustration of
this principle in action, the Indiana Supreme Court has concluded that “when a
patient who is a party to a lawsuit places his mental or physical condition in
issue, he has done an act which is so incompatible with an invocation of the
physician-patient privilege as to that condition that he has impliedly waived the
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privilege to that extent.” Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990).
We find the holding of Canfield to be equally applicable to the asserted privacy
right in this case. Consequently, we conclude that Appellants cannot withhold
materials relevant to Doherty’s medical history on the basis that their
production would be “involuntary” when they themselves put her medical
history in issue.
[23] Appellants nonetheless draw our attention to two federal cases that they claim
stand for the proposition that a request for the release of SSA records must be
voluntary. Neither case stands for this proposition. When the court in Wheeler
v. City of Orlando, 2008 WL 5111244 (M.D. Fla. 2008), concluded that Orlando
was not entitled to an order to request the release of Wheeler’s SSA records, it
was on the basis that the records would be “duplicative under [the]
circumstances[,]” not because the request would have been involuntary. Id. at
*3. Similarly, the court in In re Becker, 2010 WL 3119903 (Bankr. W.D. Tex.
2010), declined to order the release of SSA records, also not because such a
release would have been involuntary but, rather, because the party seeking them
“ha[d] not demonstrated the relevancy of the information sought through the
waivers, nor shown cause that further compelled disclosure of […] SSA
information [wa]s necessary.” Id. at *4. Wheeler and Becker do not help
Appellants.
2. Federal Preemption Doctrine
[24] Appellants also argue that the federal preemption doctrine prevents the trial
court from ordering them to request the release of Doherty’s SSA records.
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Appellants contend that the trial court’s order to execute the release conflicted
with federally-mandated protections against the unwanted disclosure of SSA
records and circumvented the allegedly-mandatory federal procedure for
obtaining such records via an order from a court of competent jurisdiction.
Pursuant to the federal preemption doctrine, state laws that interfere with, or
are contrary to, federal law are invalidated. Kuehne v. United Parcel Serv., Inc.,
868 N.E.2d 870, 873 (Ind. Ct. App. 2007). “By the same token, a cardinal rule
of preemption analysis is the ‘starting presumption that Congress d[id] not
intend to supplant state law.’” Id. (quoting New York State Conf. of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995)) (brackets in
Kuehne). “Moreover, the presumption against preemption takes on added
significance ‘where federal law is said to bar state action in fields of traditional
state regulation.’” Id. (quoting New York State Conf. of Blue Cross & Blue Shield
Plans, 514 U.S. at 654).
[25] The doctrine of federal preemption has three branches: (1) express preemption,
where a statute expressly defines the scope of its preemptive effect; (2) field
preemption, where a pervasive scheme of federal regulation makes it reasonable
to infer that Congress intended exclusive federal regulation of the area; and (3)
conflict preemption, where it is impossible to comply with both federal and
state law, “or where state law stands as an obstacle to the accomplishment and
execution of federal purposes and objectives.” Id. “Put another way,
congressional intent to preempt state law can be found in the explicit language
of a statute, implied from the existence of a comprehensive regulatory scheme,
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or inferred when the state law in question directly conflicts with a federal law or
stands as an obstacle to achievement of federal objectives. Id. (citing Silkwood v.
Kerr-McGee Corp., 464 U.S. 238 (1984)). “‘The question, at bottom, is one of
statutory intent, and we accordingly begin with the language employed by
Congress and the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.’” Micronet, Inc. v. Ind. Util. Reg.
Comm’n, 866 N.E.2d 278, 288 (Ind. Ct. App. 2007) (quoting Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992) (internal quotation marks and
citations omitted)), trans. denied.
[26] As mentioned, the FPA provides for the release of SSA records pursuant to a
written request by the individual to whom the record pertains or an order from
a court of competent jurisdiction. 5 U.S.C. § 552a(b). As for express
preemption, it does not apply here because section 552a does not explicitly
prevent state courts from ordering litigants to request release of SSA records.
The same missing language (or lack of any other language indicating that
Congress intended to exclusively regulate the field) fatally undermines
Appellants’ field-preemption argument.
[27] Appellants, however, focus primarily on their conflict-preemption claim,
arguing that allowing the Marion Superior Court to order them to authorize the
release of Doherty’s SSA records “nullifies the purpose for which these
regulations exist[,]” which is to “protect these sensitive documents from public
disclosure in civil litigation where their confidentiality cannot be guaranteed.”
Appellants’ Br. p. 26. We do not believe that a court order to request the
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release of SSA records does any such thing. While the clear intent of Congress
in enacting the FPA was to protect sensitive documents from unwarranted
disclosure, that protection is not without limits, with the FPA itself including
two procedures through which records can be released, one of which is when
the relevant individual requests it. We cannot agree that using a statutory
method to secure the release of SSA documents thwarts the purpose of the very
statute in which it appears.
[28] Appellants draw our attention to In re Beck’s Superior Hybrids, Inc. v. Monsanto Co.
et al., 940 N.E.2d 352 (Ind. Ct. App. 2011), which stands for the proposition
that parties may not use the Indiana Trial Rules to accomplish discovery where
that discovery is exclusively governed by methods provided by federal law. Id.
at 367–68. While the holding in Beck’s Superior Hybrid might have relevance in
this case if an order from a court of competent jurisdiction (i.e., a federal court)
were the only way to secure the release of SSA records, that is not the case. As
mentioned, Purdue is seeking to obtain Doherty’s SSA records via a request
from her to release them, which is also a procedure permitted by the FPA and is
not equivalent to seeking a court order. Our opinion in Beck’s Superior Hybrids
does not help Appellants.
3. Use of SSA Records in Civil Cases
[29] Appellants also argue that federal law prohibits the release of SSA records for
use in civil cases, citing to 20 C.F.R. §401.180. Section 401.180, however, only
applies to the release of SSA records pursuant to an order from a court of
competent jurisdiction:
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We disclose information in compliance with an order of a court of
competent jurisdiction if—
(1) another section of this part specifically allows such
disclosure, or
(2) SSA, the Commissioner of Social Security, or any officer or
employee of SSA in his or her official capacity is properly a
party in the proceeding, or
(3) disclosure of the information is necessary to ensure that an
individual who is accused of criminal activity receives due
process of law in a criminal proceeding under the jurisdiction
of the judicial branch of the Federal government.
20 C.F.R. §401.180(e) (emphasis added). Because Purdue did not seek the
release of Doherty’s SSA records via a direct court order, this regulation has no
bearing on this case.
C. Dismissal as a Sanction
[30] Appellants contend that even if the trial court did not abuse its discretion in
ordering them to request a release of Doherty’s SSA records, ordering the
dismissal of their complaint as a sanction was unduly punitive. We will reverse
a trial court’s decision regarding sanctions imposed for violating a discovery
order issued pursuant to Indiana Trial Rule 37(B)(2)(c) only for an abuse of
discretion. Marshall v. Woodruff, 631 N.E.2d 3, 5 (Ind. Ct. App. 1994). A
discovery sanction is an abuse of discretion “if it is clearly against the logic and
circumstances before the court, or when the trial court has misinterpreted the
law.” Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App.
2008).
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[31] Discovery matters are fact-sensitive by nature and, therefore, a trial court’s
ruling “is cloaked with a strong presumption of correctness on appeal.”
Scroghan, 851 N.E.2d at 323. “Trial [Court] Judges stand much closer than an
appellate court to the currents of litigation pending before them, and they have
a correspondingly better sense of which sanctions will adequately protect the
litigants in any given case.” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind.
2012). “Absent clear error and resulting prejudice, the trial court’s
determination with respect to violations and sanctions should not be
overturned.” Carter v. Robinson, 977 N.E.2d 448, 455 (Ind. Ct. App. 2012),
trans. denied. In determining whether a sanction is just, we recognize that
Indiana “has a marked judicial deference for deciding disputes on their merits
and for giving parties their day in court, especially in cases involving material
issues of fact, substantial amounts of money, or weighty policy
determinations.” Prime Mortg., 885 N.E.2d at 649.
[32] As the Indiana Supreme Court has stated,
The purpose of the discovery rules is to allow for minimal trial
court involvement and to promote liberal discovery. Although
concealment and gamesmanship were once accepted as part and
parcel of the adversarial process, we have unanimously declared
that such tactics no longer have any place in our system of justice.
Today, the purpose of pretrial discovery is to make a trial less a
game of blindman’s bluff and more a fair contest with the basic
issues and facts disclosed to the fullest practicable extent.
In service of that goal, Indiana Trial Rule 37(B)(2)(c) expressly
provides that a trial court may impose sanctions, including
outright dismissal of the case or default judgment, if a party fails to
comply with an order to compel discovery. As the U.S. Supreme
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Court has explained, the purpose of sanctioning discovery
violations is “not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might
be tempted to such conduct in the absence of such a deterrent.”
Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643,
96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976).
Whitaker, 960 N.E.2d at 115 (partially cleaned up).
[33] Under the circumstances of this case, we conclude that Appellants have failed
to establish an abuse of discretion in this regard. Appellants failed to produce
Doherty’s SSA records when they were requested, forcing Purdue to seek and
obtain an order to compel discovery from the trial court. Appellants then
violated the order to compel when they still refused to produce Doherty’s SSA
records. Dismissal has often been upheld as an appropriate sanction in similar
cases, and we see nothing in the record to suggest that this case is materially
different. See, e.g., Peters v. Perry, 877 N.E.2d 498, 499 (Ind. Ct. App. 2007)
(concluding that default judgment was appropriate sanction where plaintiff
refused to answer interrogatories and violated order to compel response);
Pfaffenberger v. Jackson Cty. Reg’l Sewer Dist., 785 N.E.2d 1180, 1184–85 (Ind. Ct.
App. 2003) (same); Wozniak v. N. Ind. Pub. Serv. Co., 620 N.E.2d 33, 36 (Ind. Ct.
App. 1993) (concluding that default judgment was appropriate sanction where
plaintiff refused to comply with requests for production and violated order to
compel), trans. denied.
[34] If anything, the need for dismissal is even more compelling in this case, as
Appellants refused to comply with the order to compel despite the order being
limited to only those records necessary to fill in the gaps in Doherty’s medical
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2807 | June 29, 2020 Page 19 of 22
history and including an order for the parties to execute a confidentiality
agreement. It seems to us that the trial court went out of its way to strike an
appropriate balance between protecting Doherty’s privacy interests and
Purdue’s interest in being able to effectively defend itself against Appellants’
claims. That effort, however, still did not result in Appellants’ compliance.
Under the circumstances, we cannot say that the trial court’s dismissal of
Appellants claim amounts to an abuse of discretion.
[35] Appellants contend that the trial court should have imposed a lesser sanction
for their noncompliance with its motion to compel, such as a small monetary
sanction, or, in the alternative, should have granted its motion to certify its
challenge to the order for interlocutory appeal. We note that a trial court is
under no obligation to impose a lesser sanction before ordering dismissal
pursuant to Trial Rule 37. Bankmark of Fla., Inc. v. Star Fin. Card Servs., Inc., 679
N.E.2d 973, 978 (Ind. Ct. App. 1997). Appellants nonetheless contend that
either of their suggested approaches would have allowed them to obtain
appellate review1 of the trial court’s motion to compel without jeopardizing
their claim. While this may be true, the point of the sanctions is to punish the
party who violates discovery orders and deter future violations. See Whitaker,
960 N.E.2d at 115. In the end, imposing a sanction that a recalcitrant party
requests for their convenience does not strike us as much of a sanction.
1
Even if the trial court had certified the challenge for interlocutory appeal, we still would have had to accept
jurisdiction, by no means a foregone conclusion.
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II. The Motion to Amend Complaint
[36] Finally, Appellants contend that the trial court abused its discretion in
ultimately denying their September 21, 2018, motion to amend their complaint
to add a claim for punitive damages based on the allegation that Purdue’s
actions had exhibited a conscious disregard for the safety of its residents. In
light of our affirmance of the trial court’s dismissal of Appellants’ claim as a
sanction for the violation of a discovery order, this claim is moot. “[W]hen we
are unable to provide effective relief upon an issue, the issue is deemed moot,
and we will not reverse the trial court’s determination ‘where absolutely no
change in the status quo will result.’” Jones v. State, 847 N.E.2d 190, 200 (Ind.
Ct. App. 2006) (citation omitted), trans. denied. Even if we were to determine
that the trial court abused its discretion in denying Appellants’ leave to amend
their complaint, such a determination would have no effect on the trial court’s
dismissal, which was based on Appellants’ completely-unrelated refusal to
produce Doherty’s SSA records.
Conclusion
[37] We conclude that (1) the trial court did not abuse its discretion in determining
that Doherty’s SSA records were discoverable, (2) neither relevant federal law
nor the federal preemption doctrine prevented the trial court from ordering
Appellants to request their release, and (3) the trial court did not abuse its
discretion in dismissing Appellants’ claim as a sanction for refusing to comply
with its order to request their release. We further conclude that Appellants’
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claim that the trial court abused its discretion in denying them leave to amend
their complaint is moot.
[38] The judgment of the trial court is affirmed.
Baker, J, and Pyle, J., concur.
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