Non-Disclosure of Witness Results in Reversal of Jury Verdict

Plaintiffs in Indiana had a $39 Million verdict reversed because of the failure to disclose the name of a witness.

Plaintiffs were injured in a car wreck with a  driver who was operating his vehicle under the influence of alcohol.  They sued the restaurant where the driver had been drinking alleging inter alia  that it served a visibly intoxicated patron (the driver)

Plaintiffs knew that a waitress from the restaurant thought the driver was visibly intoxicated but did not disclose her in answers to interrogatories.  The specific interrogatory at issue was as follows:

"State specifically each and every fact upon which you rely to support your allegation under I.C. § 7.1-5-10-15.5 that these Defendants, and each of them, provided alcoholic beverages to William J. Whitaker with actual knowledge that he was visibly intoxicated, and the names and addresses of those persons possessing knowledge of such facts."

The restaurant obviously knew the waitress and deposed her but she denied knowing that the driver was intoxicated.  Plaintiffs knew that when defendants called her at trial she would change her testimony on the stand and would say that she lied earlier in her deposition.  Plaintiffs did not supplement the interrogatory and disclose the name of the waitress.

The Indiana Supreme Court reversed the jury’s verdict, saying:

"[W]e conclude that the plaintiffs’ failure to identify [the waitress] as a person with knowledge of the relevant facts was a negligent if not intentional breach of its discovery obligations," the court said. "Subsequently, plaintiffs failed to supplement their response with the substance of her change in testimony. As these events unfolded, these omissions cascaded into a closing argument that materially misled the jury. The cumulative effect was misconduct prejudicing [the restaurant’s] defense. …

"[T]he … persuasive point is that counsel for [the restaurant], based on [the waitress’] … deposition testimony, told the jury in opening statement that no witness establishing [the man’s] visible intoxication would be produced and that [the waitress] would testify that he was not intoxicated. [The plaintiff’s attorney] in closing pounded on the claimed ’embarrassing’ conduct by [the restaurant’s] counsel. [The waitress’s] undisclosed change of story thus simultaneously destroyed not only [the defendant’s] theory of the case but also its credibility with the jury. [The defendant] therefore credibly contends that its handling of the case would have been substantially different, and the damages, if not the liability, would have been materially different if plaintiff’s counsel had discharged their obligations."

The case is  Outback Steakhouse v. Markley, No. 18S04-0602-CV-66. (Ind. S. Ct. Nov. 8, 2006.)  Read it here.

Recall that under Tennessee law the failure to supplement discovery results in a presumed sanction that the evidence will be excluded at trial, although lesser sanctions are available to the trial judge.  Rule 34A, T.R.C.P.