Personal Injury Law

Failure to Supplement Discovery

By John A. Day

Rule 37 of the TRCP makes exclusion of evidence the default sanction for failure to supplement.  The trial judge can impose a lesser or greater sanction.

In a recent  case in Arkansas the Court of Appeals reversed a jury verdict in favor of the plaintiff when the plaintiff failed to supplement answers to interrogatories concerning his medical treatment with a particular doctor.

In Moorehead v. Battles,  the court said this:

What to make of Dr. Thomas’s records in the case as a whole was Battles’s choice, not Morehead’s. But Battles never got to make that choice. This is precisely the bind that Rule 26(e)(1) aims to prevent. This error went deeper than Morehead’s credibility.  His failure to supplement deprived Battles of the opportunity to formulate his side of the case on the key issue—Morehead’s injuries—based on all the medical evidence before trial. This lost opportunity is also why Morehead is mistaken in his argument that a limiting instruction could have cured any prejudice here. Morehead’s failure to supplement his list of doctors has legal consequences: this constructive fraud entitles Battles to a new trial.

Read Case No. CA07-1176 here. 

Full post as published by Day on Torts on November 10, 2008 (boomark / email).