Don’t Try to Hide It: The Duty to Supplement Deposition Testimony

Is there any mystery about the outcome when a Court includes in its opinion that one side’s arguments were “disingenuous” (twice!), meaningless “misdirection” and “an attempt to denigrate opposing counsel”? Not much.

Last month, the Tennessee Court of Appeals rendered its opinion in Collier v. Perislis Roussis, M.D., et al., (No. E2016-01591-COA-R3-CV) It made clear that which probably should have been already, but perhaps was not. Its clarification will be important to healthcare and other businesses with operations in Tennessee. There is no equivocation in its clarity.

A Tennessee doctor and medical center were sued for an incident that occurred during a medical procedure at the center. The hospital was alleged to be negligent because of the alleged actions of several nurses. Several nurses were witnesses, and had been deposed. The jury ruled in favor of the Defendants.

The issue of most legal interest is what happened during discovery and then what did not happen, until trial?

As we mentioned, the nurses involved were deposed. Two of the nurses testified during their depositions that they had only limited remembrance of the events surrounding the incident, that they had no other knowledge about it, nor knew of anyway to determine it. From the Plaintiff’s standpoint, all was well and good.

At trial, based upon an interview with Defendants’ counsel shortly before their trial testimony but well after their deposition testimony, they remembered other facts related to a specific issue in the lawsuit covered in their deposition, namely the patient’s blood pressure and how it was monitored, or not, during the procedure. That trial testimony was not disclosed during the depositions, and was inconsistent with that deposition testimony.

Confronted with the surprise, Plaintiff’s counsel objected. The trial court considered the matter outside of the presence of the jury and then, after giving Plaintiff’s counsel the opportunity to redepose the witnesses, allowed their testimony at trial. Plaintiff asserted prejudice under Tennessee Rule of Civil Procedure 37.03:

A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed . . .

The Defendant Hospital argued it had no duty to supplement the deposition testimony because the nurses were non-party employees of a party but still not “parties.” The Court of Appeals found that argument “disingenuous.” As stated by the Court, construing the applicable Tennessee Rules of Civil Procedure “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 trial advantage to corporations over individuals. Such a construction, it said, was contrary to Rule 1 of the Tennessee Rules of Civil Procedure which specifically states: “These rules shall be construed to secure the just, speedy and inexpensive determination of every action”T.R.C.P. 1. Finding a contrary ruling would allow a corporation an unjust advantage over an individual, the Court of Appeals specifically applied Rule 1 “to secure the just . . . determination of every action.”

Citation to T.R.C.P. 1 is rare by a Court, even though common to litigants in need of an assist in particular circumstances. It is somewhat like Monopoly’s “get out of jail free” card from the “community chest” board block. One nuance not addressed by the Court of Appeals though is whether Rule 37.03(1) is even applicable to this situation. It does not matter, it seems, based upon the Court’s ruling. By unstated but very clear implication it found that it was applicable even though Rule 37.03 is limited by its terms to “responses to discovery requests.” Rule 26.05, which supports the obligation of a party to amend discovery responses , starts with the phrase “A party who has responded to a request for discovery with a response. . .”

But, deposition testimony technically is neither. Perhaps in the history of the case there was a discovery “response” made in response to a “request for discovery” that would have triggered the actual applicability of the these two Rules of Court. Perhaps it no longer matters if that is the case or not. The opinion leaves no ambiguity: deposition testimony of a witness employee of a party is a “discovery response to a request.”

Moving forward, a corporate entity has a duty to supplement discovery testimony, as well as responses given following a request for discovery, if the entity’s possible exposure is dependent upon the actions of the person providing the original testimony. Who knows how broad that line could be drawn, and if it will be affected by principles of agency, the scope and breadth of an agent’s agency, or whether or not the employee’s actions automatically bind the corporate entity or not. Who is going to run that risk? “Not I,” said the little red hen.

Note that while the opinion is critical of the Defendant in another respect unrelated to the one discussed above, there is no suggestion therein that Defendant’s counsel did anything intentionally wrong. The description of events may simply be the result of things occurring quickly as trial approached and without anticipation of a later effect at trial. The adage of “forewarned is forearmed” still applies. If it has been asked, and answered, check to make sure it shouldn’t be answered again. If in doubt, read the opinion in Collier before you decide to ignore. The breadth of its language, and the principle upon which it is based, will extend beyond these factual circumstances. This case has the potential to be used elsewhere and for many years to come. Based upon the principles that govern the proper role of counsel in this State, it should be.