A party’s failure to supplement its discovery responses or deposition testimony can result in a jury verdict for that party being vacated. For businesses, this duty to supplement may include the testimony of its employees.
In Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017), a minor filed suit through his parents for birth injuries “allegedly suffered by plaintiff when his mother had an allergic reaction during labor.” The named defendants were the doctor treating the mother and the hospital where plaintiff was born. Much of the relevant testimony surrounded how and how often plaintiff’s mother’s blood pressure was being monitored, with the medical chart showing two blood pressure readings by a fetal monitor and one by defendant doctor. The trial court directed a verdict for defendants on one issue, and the jury returned a verdict that neither the doctor nor “the nurses employed by the Hospital were” negligent. Plaintiff appealed, citing multiple issues for review.
First, on an issue that ended up being dispositive of the appeal, plaintiff argued that “the trial court erred in allowing previously undisclosed testimony from the nurses, testimony which was inconsistent with the nurses’ earlier deposition testimony.” During their depositions, two nurses who worked for the hospital and treated plaintiff’s mother testified that they had no independent recollection beyond what was in the medical record. Mother’s file only indicated that her blood pressure was recorded three times during the relevant period. At trial, however, both of these nurses testified that counsel for the hospital had shown them pictures that plaintiff’s family took in the hospital room, and that those pictures had caused them to remember additional facts. Specifically, they both testified that the mother’s blood pressure was being monitored by a special machine. One stated that because the machine was in use the mother “was not hypotensive, or we would have treated that,” and another stated the nurses “were continuously glancing over at that…monitor to see what her blood pressure was.” Over plaintiff’s objection, the trial court allowed the new testimony, but the Court of Appeals ruled that this was error and the judgment should be vacated.