Tennessee Court Explains Duty to Supplement Discovery and Expert Testimony

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.

Tenn. R. Civ. P. 26.05 requires a party to supplement its discovery responses if it later obtains information that makes it “(A) know[] that the response was incorrect when made; or (B) know[] that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” Defendant hospital argued, though, that this rule did not apply to the nurses’ testimony for three reasons. Defendant’s primary argument was that “the nurses employed by the Hospital were not parties to this suit,” and thus the rule was inapplicable. The Court, though, called this argument “disingenuous.” The Court first noted that in multiple circumstances, “a ‘party’ is not limited to a named plaintiff or defendant.” (internal citation and quotation omitted). Looking at the facts of this particular case, the Court reasoned:

The fact that the nurses were not individually named as defendants in this suit is not dispositive of the issue of whether the Hospital had a duty to supplement with regard to its employee nurses’ testimony. …There is no question that the Hospital, as a party, had a duty to supplement its prior responses. The Hospital was sued due to the alleged actions or inactions of its employee nurses.

If the Hospital is found liable in this case, it will be because of the actions or inactions of its employee nurses, not those of its corporate representatives. …Construing Rule 26.05 to mean that a corporate entity would be required to supplement only with regard to its corporate representatives and not its employees actually involved would give an unjust advantage to corporations over individuals. Such a construction would be contrary to the Tennessee Rules of Civil Procedure which specifically state: ‘These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.’ Tenn. R. Civ. P. 1. There would be nothing ‘just’ about allowing a corporation, such as the Hospital, to know that the testimony of its employees whose conduct the corporation may be liable for has totally changed from their deposition testimony and not requiring the corporation to supplement its employees’ responses. Such a construction not only would permit corporations to engage in court sanctioned trial by ambush, but would encourage it.

Based on this reasoning, the Court held that “the Hospital had a duty to supplement pursuant to Rule 26.05 when it learned that its employee nurses had not only new but different testimony to offer.”

Defendant also argued that the duty to supplement did not apply because “the allegedly new testimony given by the nurses was actually not new because the Hospital had asserted from the beginning that the Patient’s blood pressures were monitored.” The Court called this argument disingenuous as well, noting that nothing in the chart suggested a constant monitoring by machine.

Finally, Defendant argued that the duty to supplement did not apply because “plaintiff provided the photographs and that plaintiff’s counsel could have shown the photographs to the nurses during their depositions.” The Court quickly rejected this assertion, finding that “this could have/should have/would have assertion is meaningless.”

Having rejected all of defendant’s arguments on this issue, the Court held that allowing the new testimony from the nurses was error, and that it was not harmless. Thus, the Court ruled that the judgment should be vacated.

Despite vacating the judgment, the Court continued its analysis and looked at the remaining issues raised by plaintiff. The second issue was whether the trial court “erred in allowing previously undisclosed testimony from [a] defense expert witness…” During trial, the expert testified that he believed plaintiff had “suffered an injury in utero prior to birth,” and that his opinion was supported by the presence of meconium staining. In his deposition, though, he did not mention the meconium staining. The Court ruled on appeal that it was error to allow this new testimony, as defendant had a duty under Rule 26.05 to supplement the expert’s testimony. The Court further indicated that the question of whether defense counsel knew that the expert intended to give new testimony was irrelevant—the lack of supplementation meant the testimony should have been excluded.

The next issue analyzed was “whether the trial court erred in allowing allegedly speculative testimony from the defense expert witnesses.” Plaintiff argued that one expert’s testimony was speculative because he “disagree[d] with the leading authoritative text in his field and [did] not know if any of his opinions [were] generally accepted by others in his field.” At trial, this expert testified that he was a child neurologist who treated children at a children’s hospital and the University of Kentucky, as well as in outreach clinics. He further testified about the types of conditions he has treated. Looking at this testimony, the Court ruled that the facts that he disagreed with others in his field and did not know whether his opinions were generally accepted went “more to the weight to be assigned” to his testimony than its admissibility. The Court ruled that “plaintiff failed to show that [the expert] would not substantially assist the trier of fact or that the facts or data upon which [he] relied were not trustworthy,” and that it was not error to admit his testimony.

Plaintiff also argued that another defense expert should have been excluded because he “testified that his opinion took into account monkey studies that had been done with regard to cord occlusion.” Plaintiff pointed out that another defense witness had testified that “monkey studies were irrelevant.” The Court, though, again held that this fact went more to the weight to be given his testimony, and it was not error to admit this expert.

The next issue raised by plaintiff was “whether the trial court erred in prohibiting plaintiff from cross-examining defense expert witnesses with literature published after 2009.” The parties had agreed not to introduce anything published after the date of the injury, but plaintiff asserted that this agreement did not apply to his attempt to use a later-published article during cross-examination. The Court ruled that it did not have a sufficient record before it to determine the substance of the article, but that it saw no error in the trial court refusing to allow the later-published article.

Next, the Court looked at “whether the trial court erred in directing a verdict and instruct[ing] the jury to disregard testimony about the failure to record blood pressure readings.” During the trial, the trial court “granted a directed verdict holding that the failure to document the blood pressure readings did not cause Plaintiff’s injury.” It further instructed the jury: “you cannot consider that the failure to document blood pressures was a cause of the injury. You may consider the blood pressures, but you cannot consider that not charting those or putting those in the chart caused the injury itself.” The Court of Appeals held that this directed verdict was error, reasoning:

[W]e find that directing a verdict on this issue likely could have confused the jury. While ‘the failure to document blood pressures was not a cause of the injury,’ evidence regarding the lack of blood pressure readings in the medical record was relevant evidence as to whether the patient’s blood pressure readings were being taken and appropriately monitored. Thus, reasonable minds could disagree about the conclusions to be drawn with regard to the evidence concerning the failure to record the blood pressures.

Finally, the Court looked at “whether defense counsel made improper statements during closing arguments that impacted the verdict.” During his closing, defense counsel stated:

It’s been a contentious case. The judge…has had to rule on a lot of things. He’s done an excellent job….This book I’m holding up says “Tennessee Rules of Court.” We are trained in it as lawyers. Now, I’m not telling you it’s all black and white, but a whole lot of it is, and we’ve had to object and object and object and object. I didn’t keep score or count, but there were—90 percent of our objections were sustained.

After plaintiff’s counsel objected this this statement, which the trial court overruled, defense counsel continued: “See, we can’t even agree on that. You 14 people heard it. Don’t take my word for it.” The Court of Appeals found that these statements “had nothing whatsoever to do with the evidence that was presented at trial,” and that they “served no possible purpose other than to attempt to denigrate opposing counsel, and therefore, the plaintiff’s case in the eyes of the jury.” The Court ruled that though these statements “might not rise to the level of reversible error” when taken alone, “[w]hen considered along with the other errors as discussed above,…these statements served no purpose other than to prejudice the jury and suggest that Plaintiff’s counsel was not following the rules even though he knew better.” The Court specifically “caution[ed] all counsel to refrain from making improper arguments of this nature.”

Having addressed all the issues, the trial court judgment was vacated and the case was remanded.

The Court of Appeals got this case correct and provided a thorough analysis of the duty to supplement discovery responses and expert testimony. Requiring business defendants to only supplement their corporate representative’s responses would put plaintiffs at a significant disadvantage and not fulfill the intent of the supplementation requirement, as corporate representative testimony is rarely the testimony on which liability may hinge. The Court of Appeals did a good job applying the Rules in a judicious way.