OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Deborah Cleveland, as Personal Representative of the Estate of Robin W. Cleveland, appeals the trial court's denial of her motion to correct error and for relief from judgment in her action against Clarian Health Partners, Inc. ("Clarian"). Cleveland raises four issues for our review, which we restate as the following three issues:

We hold that Cleveland may raise a claim of surprise on appeal for the first time. But, on these facts, we need not address Cleveland's second issue. Rather, assuming for the sake of argument that Rule 26(E)(2) imposes a duty on a party to amend the prior deposition testimony of a party's nonparty employee, on this record we cannot say that Clarian committed misconduct under Trial Rule 60(B)(3) when it did not supplement that prior deposition testimony. Thus, we affirm the trial court's denial of Cleveland's motion to correct error and for relief from judgment.

FACTS AND PROCEDURAL HISTORY1

On July 3, 2002, Robin W. Cleveland ("Robin" or "Rob") fell approximately thirty feet from scaffolding while working at a construction site. Paramedics designated Robin as a level one trauma patient and transported him to Methodist Hospital, a level one trauma center. A level one trauma center is required to have an operating room readily available at all times for trauma patients. Robin arrived at Methodist Hospital at 9:53 a.m.

The trauma team at Methodist that day consisted of Dr. George Rodman, head of trauma; Dr. Scott Otto, chief resident; Dr. Jennifer Choi, a second-year resident; and several nurses and other staff members. The trauma team intubated Robin shortly after his arrival at the hospital and also gave him blood and crystalloid, a saline-electrolyte solution. To further assess the extent of Robin's injuries, the trauma team placed a tube in the right side of Robin's chest at 10:00 a.m. This tube revealed internal bleeding. The trauma team also took an x-ray of Robin's chest at 10:09 a.m. The trauma team received the x-ray results several minutes later. Those results showed that the right part of Robin's chest was fairly clear but suggested that there was blood in the left part of his chest. After receiving the results of the x-ray, the trauma team placed a chest tube in the left side of Robin's chest, which revealed substantial internal bleeding.

The trauma team transported Robin from the emergency department at 10:45 a.m., and Robin arrived in the operating room at 10:53 a.m. In surgery, the trauma team discovered that there was a tear in Robin's heart, another potential tear in his heart, and a small tear in the pericardium, the sac surrounding the heart. Robin bled to death while in surgery.

On November 20, 2003, Cleveland filed a proposed medical malpractice complaint with the Indiana Department of Insurance. In the proposed complaint, Cleveland named Clarian, Methodist Hospital of Indiana, Inc., George Rodman, M.D., Scott Otto, M.D., and Jennifer Choi, M.D., as defendants.

On November 10, 2004, Cleveland deposed Dr. Choi. At her deposition, Dr. Choi testified about when the decision was made to take Robin to surgery and when an operating room became available once the decision to go to surgery had been made. According to Dr. Choi's deposition testimony:

Table of Exhibits, Vol. 2, at 10 (emphases added).

But almost immediately after testifying that the trauma team had planned to take Robin to the operating room upon reading the 10:09 chest x-ray, Dr. Choi then stated as follows:

Id. at 11 (emphasis added). And, on redirect examination by Clarian's counsel, Dr. Choi gave the following deposition testimony regarding when the decision was made to go to surgery:

Id. at 20.

Regarding the availability of an operating room, Dr. Choi testified as follows:

Id. at 10-13 (emphases added).

On April 16, 2008, a Medical Review Panel convened and unanimously found that no medical malpractice had occurred. Cleveland filed suit in the Marion Superior Court on July 15, 2008, naming the same defendants as in the proposed medical malpractice complaint. Eventually, all of the defendants were dismissed except for Clarian.

Almost seven years after Dr. Choi's deposition testimony, in July of 2011, Cleveland and Clarian went to trial. In her opening statement to the jury, Cleveland stated as follows:

Transcript at 10-11 (emphases added). Cleveland also informed the jurors that they would hear the testimony of Dr. Rodman, "the only other person who has any recollection about this decision," and that Dr. Rodman would "support[] what Dr. Choi said." Id. at 11.

Cleveland's counsel then called Dr. Choi as her first witness. But almost as soon as Cleveland's counsel called Dr. Choi, he began to impeach her. Specifically, while Dr. Choi was discussing her professional background, Cleveland's counsel began asking her questions from her nearly seven-year-old deposition. See id. at 50-51. The impeachment of Dr. Choi continued into her testimony about the timing of the decision to take Robin to surgery:

Id. at 85-87.

Dr. Choi further testified at trial on the availability of an operating room as follows:

Id. at 96-98, 141-142 (emphases added).

On July 21, 2011, the jury returned a verdict for Clarian. On August 22, 2011, Cleveland filed a motion to correct error and for relief from judgment. The trial court held a hearing on Cleveland's motion, after which it denied the motion. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Cleveland appeals from the trial court's denial of her motion to correct error and for relief from judgment. We review the grant or denial of Trial Rule 59 motions to correct error and Trial Rule 60(B) motions for relief from judgment under an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.2008); Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 72 (Ind.2006). On appeal, we will not find an abuse of discretion unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct.App.1998).

Here, Cleveland contends that Dr. Choi's change in testimony during trial was such a surprise that it materially prejudiced Cleveland's right to a fair trial. Cleveland further asserts that Clarian knew or should have known that Dr. Choi would change her trial testimony from her deposition testimony and, as such, Clarian should have supplemented Dr. Choi's deposition testimony before trial pursuant to Indiana Trial Rule 26. Clarian's failure to supplement the changed testimony, Cleveland continues, constituted misconduct under Trial Rule 60, which, in turn, entitles Cleveland to a new trial. In addition to responding to each of those arguments, Clarian asserts on appeal that Cleveland waived these arguments by not making a timely objection or a motion for a mistrial during the trial. We will briefly address Clarian's waiver argument before turning to the merits of Cleveland's appeal.

Issue One: Waiver

Clarian contends that Cleveland has not preserved its arguments for appeal. In Outback, our Supreme Court considered whether a fact witness's change in testimony between her deposition and the trial was a surprise that materially prejudiced the appellant's case. Although the appellant in Outback had not objected to the witness's testimony and did not move for a mistrial, our Supreme Court held that the appellant did not waive appellate review of the claim of surprise and proceeded to consider the merits of the appellant's arguments. 856 N.E.2d at 79. Specifically, the court stated that an argument of surprise, if properly founded, undermines the litigant's opportunity "to evaluate whether to seek a continuance, move for a mistrial, or redepose" the witness. Id. Following Outback, and considering the record in this case, we conclude that Cleveland has not waived her claims on appeal.

Issue Two: Duty to Supplement Deposition Testimony Under Trial Rule 26(E)(2)

Cleveland contends that Clarian had a duty to supplement Dr. Choi's deposition testimony under Trial Rule 26(E)(2). That Rule provides:

Ind. Trial Rule 26(E) (emphases added).

The question presented is whether, and, if so, under what circumstances, a party has the duty to amend the prior deposition testimony of its nonparty employee. Cleveland dismissed Dr. Choi as a party before trial and, therefore, she was not a party at the time she purportedly changed her testimony at trial. Nonetheless, Clarian was always a party, and Dr. Choi was always Clarian's employee. As such, Cleveland asserts that Clarian is accountable and charged with responsibility to seasonably amend Dr. Choi's deposition testimony.

Cleveland relies on our Supreme Court's opinion in Outback. But in Outback, which is discussed in more detail in Issue Three, neither Trial Rule 26 nor a prior deposition were involved. Rather, the court in Outback considered whether plaintiff's attorney committed misconduct under Trial Rule 60 when he failed to amend the prior interrogatory response of his client, who was a party.

We need not decide whether, as Cleveland contends, Rule 26(E)(2) imposes a duty on a party to seasonably amend the prior deposition testimony of its nonparty employee. Assuming for the sake of argument that Rule 26(E)(2) does require an employer party to seasonably amend the prior deposition testimony of an employee, nonparty witness, for the reasons explained below in Issue Three, Cleveland has not demonstrated on this record that Clarian would have violated any such duty here and we conclude, therefore, that Clarian did not engage in the alleged misconduct.

Issue Three: Misconduct under Trial Rule 60(B)(3)

We now turn to the ultimate question in this appeal: Cleveland's assertion that Clarian committed misconduct under Trial Rule 60(B)(3) by not supplementing Dr. Choi's deposition testimony under Trial Rule 26(E)(2). Trial Rule 60(B) provides in relevant part:

To obtain relief under Trial Rule 60(B)(3), Cleveland must show each of the following: (1) Clarian's failure to supplement Dr. Choi's deposition testimony amounted to misconduct; (2) the misconduct prevented Cleveland from fully and fairly presenting her case at trial; and (3) Cleveland has made a prima facie showing of a meritorious claim. Outback, 856 N.E.2d at 74. We hold that Cleveland cannot satisfy the first requirement. As such, we need not address whether Cleveland suffered prejudice or can make a prima facie showing of a meritorious claim.

Cleveland's misconduct argument is centered on our supreme court's decision in Outback, a dram shop case. In that case, witness Roysdon told the plaintiff's attorney that she had served one of Outback's customers while the customer was visibly intoxicated. The plaintiff's attorney never made Outback's counsel aware of this statement and failed to include Roysdon's name in an answer to an interrogatory that asked for the names of individuals with knowledge that Outback had served alcohol to a visibly intoxicated person. The plaintiff's attorney also failed to supplement this specific interrogatory later in the discovery process. Roysdon then later testified at her deposition, attended by Outback's counsel, that the customer had not been visibly intoxicated when she had served him.

On the Sunday before the trial continued, Roysdon met the plaintiff's attorney at his office. Roysdon told the plaintiff's attorney that she had lied during her deposition and that she planned to testify at trial that the customer had been visibly intoxicated when she served him. Plaintiff's attorney never disclosed to Outback's attorneys that Roysdon had recanted her testimony.

At trial, the plaintiff's attorney called Roysdon to testify. Outback's counsel did not object, although plaintiff's attorney had not listed Roysdon as a witness. Roysdon testified, in direct contradiction to her deposition testimony, that the customer had been visibly intoxicated when she served him. Outback's counsel impeached Roysdon with her deposition testimony. Roysdon stuck with her trial version of the events, maintaining that the customer had been visibly intoxicated when served. Following the jury's verdict for the plaintiff, Outback's counsel conducted a post-trial deposition of Roysdon, in which they discovered that Roysdon had recanted her prior deposition testimony to plaintiff's attorney prior to trial.

The facts in Outback stand in significant contrast to the facts in this case. In Outback, there was both an initial omission when the plaintiffs failed to identify Roysdon as a person with knowledge of the relevant facts and a subsequent failure to supplement Roysdon's deposition when she outright recanted that testimony. The witness's deposition and trial testimony in Outback were unambiguous and polar opposites. Roysdon first testified that the customer was not visibly intoxicated and later testified that he was visibly intoxicated. That is not the case with Dr. Choi's testimony. Rather, while at times in her deposition testimony Dr. Choi claimed to have clear knowledge of the timeline of events, at other times she openly acknowledged that she could not clearly recall the timeline of events.

For example, when asked, "at 10:09 ... that's when you knew he needed to go to surgery?", Dr. Choi responded, "Yes." Table of Exhibits, Vol. 2, at 10. But almost immediately after responding to that question, Dr. Choi stated, "I can't tell you exactly when I decided that I thought the patient needed to go to the operating room." Id. at 11. Later in the deposition, when asked if she had "a specific recollection as to the exact time a decision was made to take this patient to surgery?", Dr. Choi said "No." Id. at 20.

At trial, Dr. Choi ended up testifying that she could not recall the specific timeline of events. Specifically, when asked if she "kn[e]w the exact time or the minute that[] that decision was made to go the [sic] operating room," Dr. Choi stated, "I don't." Transcript at 87. Her trial testimony on the timeline of events does not directly contradict her deposition testimony any more than her own deposition testimony was already internally inconsistent.

Neither does Dr. Choi's testimony regarding the availability of an operating room in itself demonstrate that Clarian committed misconduct by not amending the deposition testimony before trial. At her deposition, Dr. Choi explained that she was testifying from memory and that she had not reviewed the operating room schedule or logs. Her deposition testimony on this question was, like her testimony regarding the timeline of events, inconsistent. For example, Dr. Choi stated that she "remember[ed]" being told that an operating room was available when she first called at 10:20, Table of Exhibits, Vol. 2, at 11, but then almost immediately acknowledged that she could not recall when she was told the operating room was available, id. at 12.

Before trial, nearly seven years after her deposition and almost a decade after the events in question, Dr. Choi reviewed the operating room schedule and logs and concluded that any delay could not have been due to a lack of an available operating room. See Transcript at 96-98, 141-142. Again, given the ambiguous nature of her original deposition testimony, we cannot say that her subsequent trial testimony was directly contradictory, as in Outback. And there is nothing unusual about a witness using a contemporaneous record to refresh her recollection, especially when the events in question occurred almost a decade before her trial testimony.

Further, in Outback the witness who recanted her testimony was unquestionably the critical material witness. Here, Dr. Choi was one of several witnesses involved in the underlying incident. Specifically, she was a second-year resident at the time of the events and a junior member of the trauma team. Dr. Rodman headed the trauma team and was the one responsible for evaluating the medical evidence and making the decisions. And Dr. Rodman testified that the earliest a decision to take Robin to the operating room could have been made was 10:45. Transcript at 500.

When Dr. Choi's deposition testimony is considered in its entirety, there is an insufficient factual basis in the record to conclude that there was a clear, substantial, and material change in her testimony that, if Trial Rule 26(E)(2) applied, would have triggered any duty on Clarian's attorneys to amend that testimony prior to trial. As the trial court stated during its hearing on Cleveland's motion to correct error and for relief from judgment:

Id. at 598.

Outback is distinguishable for another significant reason. In Outback the relevant witness informed Outback's counsel during her post-trial deposition of her meetings with the plaintiff's attorney. There is no such evidence in this case. At oral argument Cleveland asserted that Clarian "woodshedded" Dr. Choi and, in effect, that Clarian had coached its employee to change her deposition testimony at trial. This is one plausible explanation for the variance between Dr. Choi's deposition and trial testimony. But Cleveland did not conduct post-trial discovery, and she does not specify where in the record it is demonstrated that Clarian recognized that Dr. Choi had changed or would change her testimony. Indeed, given the fact that Dr. Choi's deposition testimony was inconsistent, we are not convinced that Clarian knew what her trial testimony would be.

In any event, Cleveland embarked on a trial strategy that sought to make Dr. Choi her featured witness and the linchpin of her case. Thus, Cleveland contends that, just as in Outback, the trial would have unfolded differently if Clarian's attorneys had discharged their discovery obligations. See Outback, 856 N.E.2d at 76. In her opening argument, Cleveland told the jury that Dr. Choi was the only witness who had a "very clear recollection" of the events in the emergency room and that there was "no confusion about the time" of the decision to take Robin to the operating room. See Transcript at 10-11. But that claim mischaracterized Dr. Choi's inconsistent deposition testimony. Further, Dr. Choi was not Clarian's witness, and she did not appear on Clarian's final witness list. The reason for this was plainly stated by the trial court during its hearing on Cleveland's motion to correct error and for relief from judgment:

Id. at 604-05.

Internal inconsistencies aside, Dr. Choi's deposition testimony was nearly seven years old, and Cleveland did not seek a second, updated deposition2 or propound interrogatories or requests for admissions. Neither did she request to voir dire Dr. Choi outside the presence of the jury, otherwise attempt to explore the circumstances of the purported change in testimony, or move for a mistrial. And Cleveland moved so quickly to impeach Dr. Choi with her deposition testimony — first interrupting her while she was describing her professional background — that it appears that Cleveland was aware of the potential inconsistencies in Dr. Choi's deposition testimony and that Cleveland would need to emphasize only those parts of her testimony that would bolster Cleveland's case. As the trial court noted: "[Cleveland's counsel] had everything marked in his deposition[. I]t was almost as if he knew she was going to change her testimony[] because it took some doing to have that deposition index[ed] the way his was." Id. at 600.

Even if Cleveland could demonstrate that Dr. Choi's trial testimony suggests misconduct by Clarian, on these facts our abuse of discretion standard of review requires that we affirm the trial court's denial of Cleveland's motion to correct error and for relief from judgment. Cleveland has presented no clear evidence, as was done in Outback, that would permit the trial court or this court to impute a charge of misconduct to Clarian. Considering the absence of a factual basis demonstrating that Clarian knew or should have known that Dr. Choi's trial testimony would render her prior responses incorrect, we cannot say that Clarian either had a duty to supplement Dr. Choi's deposition testimony or committed misconduct by failing to amend that testimony. See T.R. 60(B); T.R. 26(E)(2); Outback, 856 N.E.2d at 74.

Conclusion

In sum, we hold that Cleveland may argue surprise in a witness's purported change in testimony for the first time on appeal. But, on these facts, we hold that the trial court did not abuse its discretion when it denied Cleveland's motion to correct error and for relief from judgment. We cannot say on this record that Dr. Choi's trial testimony was so different from her deposition testimony that it invoked, as alleged, any duty on the part of Clarian to amend under Trial Rule 26(E)(2) or that Clarian committed misconduct under Trial Rule 60(B)(3). Thus, we affirm the trial court's denial of Cleveland's motion to correct error and for relief from judgment.

Affirmed.

RILEY, J., and KIRSCH, J., concur.