dissenting.
One of the buried land mines I predicted in Fratzke v. Murphy1 exploded in this case. As in Fratzke, plaintiffs counsel did not timely supplement answers to interrogatories disclosing the amount of pain and suffering damages claimed and disclosing the amount of medical expense reimbursement sought. Opposing counsel sought no relief nor otherwise brought the omission to the attention of plaintiffs counsel until the day of trial when an order was sought prohibiting submission of these damage claims to the jury.
The trial court overruled the motion in limine and likewise denied Shoney’s motion for a continuance. The trial court discerned no prejudice to the defendant and the case proceeded to trial and resulted in a verdict for $75,000 for pain and suffering and $14,823.00 for medical expenses (to be reduced by 20%). The majority has now held that the trial court abused its discretion.
While I disagreed with the result in Fratzke v. Murphy, at least the facts there more nearly justified the result than do the facts in this case. In Fratzke, the interrogatories were not supplemented until the last day of trial, while in this case the supplemental answers to interrogatories were submitted prior to the commencement of trial. I see no reason for this Court to usurp the discretion of the trial court in its handling of this discovery motion. Our draconian application of CR 8.01 has resulted in injustice, and harmed the judicial process by disturbing the relationship between appellate courts and trial courts.
The majority has written at length on “economic theory of settlement.” Its thesis is that a defendant cannot rationally determine whether to settle or go to trial without knowing its maximum economic exposure. By that view, the burden would *482logically fall on the defendant to move to obtain the information it needs to make its settlement decision. In this case however, Defendant never made a motion to compel the Plaintiff to supplement the interrogatories. In fact, the Defendant waited until the day of trial to move to exclude evidence of the damage claims.
Bums v. Level2 applied the abuse of discretion standard to a trial court’s discovery ruling. In Bums, this Court held that the trial court had not abused its discretion when it granted a directed verdict for the defendant, dismissing plaintiffs claims for damages not specified in the interrogatories as requested. In Fratzke, I expressed the view that “a far better approach would be to leave the remedy for failure to answer interrogatories to the sound discretion of the trial judge. The perspective of the trial judge with respect to analyzing prejudice, unfair surprise, and generally allocating responsibility is far superior to that of any appellate court.”3 On an issue such as this, we should not substitute our judgment for that of the trial court. A trial judge is in the best position to assess prejudice. If the trial judge finds that there is no harm to the opposing party due to the omission, the trial judge should be allowed to admit the evidence on the damage claim,
GRAVES and KELLER, JJ., join this dissenting opinion.
. Ky., 12 S.W.3d 269 (2000).
. Ky., 957 S.W.2d 218 (1997).
. Fratzke, 12 S.W.3d at 274.