United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. Martin, United States Magistrate Judge
matter is before the Court on Defendant's Motion to Bar
Damage Claim of Lawrence Jack Walters [DE 32], filed July 29,
2019. Defendant seeks to bar a damage claim that Plaintiff
revealed on the day before the close of discovery. Plaintiff
filed a response on August 12, 2019, and Defendant filed a
reply on August 23, 2019.
a wrongful death action arising from the death of Lawrence
Joseph Walters. Plaintiff Lawrence Jay Walters, the son of
the deceased and the representative of his estate, alleges
negligence by a medical clinic that treated his father before
his death. Plaintiff alleges that Defendant United States is
liable to him under the “Indiana Wrongful Death Act
(I.C. 34-23-1-1), ” among other claims. First Amended
Complaint [DE 20], ¶ 23. Under Indiana Code 34-23-1-1,
also known as the General Wrongful Death Statute
(“GWDS”), a decedent's personal
representative can recover medical, funeral and other
expenses. See Ind. Code 34-23-1-1. Indiana courts
have held that the statute also permits certain dependent
family members to recover for loss of love and affection.
See, e.g, Terry v. Stephens, 921
N.E.2d 516, 520 (Ind.Ct.App. 2010) (holding that “once
dependent status is established, the statute would permit
recovery for both loss of services and loss of love, care,
parties attempted mediation on June 26, 2019, two days before
the close of discovery. According to Plaintiff, at the
mediation, Defendant indicated its position that Lawrence Jay
Walters, the son, would not be found to be
“dependent” for purposes of the GWDS,
significantly lowering Defendant's damage estimates.
Plaintiff states that this was when he was “first put
on notice that additional beneficiaries . . . may be
necessary in order to resolve” the case. The next day,
June 27, 2019, Plaintiff produced supplemental written
discovery, identifying Lawrence Jack Walters, the father of
the deceased, as a “potential beneficiary.” The
Adult Wrongful Death Statue (“AWDS”), an Indiana
statute not cited in the complaint, permits the estate to
seek damages for the “[l]oss of the adult person's
love and companionship” suffered by a non-dependent
parent of the deceased. See Ind. Code 34-23-1-2.
Defendant now seeks to bar Plaintiff from claiming damages on
behalf of the decedent's father, Lawrence Jack Walters,
under the AWDS.
Rule of Civil Procedure 26 requires that a party's
initial disclosures identify all individuals likely to have
discoverable information the party may use to support its
claims, and include “a computation of each category of
damages claimed by the disclosing party.” Fed.R.Civ.P.
26(a)(1)(A)(i), (iii). If the party “learns” that
its disclosures are incomplete, it must supplement them
“in a timely manner.” Fed.R.Civ.P. 26(e)(1)(A).
If the disclosures do not comply with Rule 26(a) or 26(e),
“the party is not allowed to use that information or
witness to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). The Court has broad discretion in
determining whether a violation is justified or harmless, but
should consider the following factors: (1) prejudice or
surprise to the non-disclosing party; (2) the ability of the
disclosing party to cure the prejudice; (3) the likelihood of
disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date.
Uncommon, LLC v. Spigen, Inc., 926 F.3d
409, 417 (7th Cir. 2019) (citations omitted).
would be prejudiced by the introduction of a new witness and
a new theory of recovery during the last days of discovery.
Plaintiff states that Defendant should not be surprised by
the new claim, because he learned of the existence of the
decedent's father early in discovery. But until
Plaintiff's last-minute disclosures, Defendant had no
reason to pursue discovery relating to the relationship
between the decedent and his father, because Plaintiff did
not list the father as a witness who could support his
claims, include his name in damage estimates, or state the
AWDS as a basis for relief in his complaint. To sustain his
proposed AWDS claim, Plaintiff would have to establish a
“genuine, substantial, and ongoing relationship”
between the decedent and his father. See Ind. Code
34-23-1-2(f). The parties would be entitled to discovery on
this topic, as well as the value of the decedent's
“love and companionship” to his father. This
would require more written discovery and additional
depositions, including re-depositions of family members.
argues that a more appropriate sanction would be for him to
pay the cost of a court reporter for any witness Defendant
sought to re-depose. That would cover some, though not all,
of the additional expense that Defendant would incur.
Plaintiff also argues that there is no disruption to the
trial because no trial date has been set. While technically
true, that is because the Court postponed setting a trial
date so the instant motion could be resolved, at
Plaintiff's request during the August 1, 2019 status
hearing in this matter. “Just because a matter has not
been set for trial does not mean that a party has not been
harmed by the opposition's failure to comply with the
discovery rules.” In re Eisaman, 503 B.R. 95,
98 (Bankr. N.D. Ind. 2013).
failure to properly disclose the claim appears to have been
willful rather than inadvertent, which weighs against
permitting it. Plaintiff writes in his response that
“the need to include the decedent's father . . .
had been overlooked and appeared moot” because he
assumed the original claim, by the decedent's son, was
valuable enough on its own to reach the $300, 000 statutory
aggregate maximum on damages for loss of love and affection.
Resp. to Mot. to Bar [DE 34] at 8. He involved the father
only because Defendant's mediation offer was less than he
was expecting. After the mediation, Plaintiff
“reevaluated, ” and concluded that it “may
be necessary” to add the father's claim.
Id. at 8, 11. The day after the mediation, with one
day left for discovery, counsel sought the father's
contact information for the first time, spoke to him for the
first time, and at that point “ascertained” that
he may qualify as a beneficiary. Id. The rules do
not permit new claims at the close of discovery because a
party “reevaluated” his case strategy, or because
he thought the opposition would make a better settlement
offer. Under those circumstances, the Court cannot find that
Plaintiff's supplemental disclosures under Rule 26 were
“timely, ” Fed.R.Civ.P. 26(e)(1)(A), or that
Plaintiff's violation was substantially justified or
reasons described above, the Court hereby
GRANTS Defendant's Motion to Bar Damage
Claim of Lawrence Jack Walters [DE 32] and
ORDERS that Plaintiff is precluded from
asserting any claim on behalf of Lawrence Jack Walters. A