Lucas v. Titus County Hospital District

ON MOTION FOR REHEARING

The Hospital continues to urge on rehearing that a supplementation of the discovery was not required in this case. The Hospital contends that the rule of supplementation does not apply to fact witnesses and places too great a burden on the parties. We disagree. The rule does not provide an exception for fact witnesses. In a case where the failure to supplement goes to a salient issue in a ease, as it does in the present ease, the rule requires supplementation. In the present case, Standridge testified in her deposition that she told the Lucases’ expert that the chair was in exactly the same condition that it was on September 18,1991, which was the date of the occurrence in question. She added that the chair might have become a little dusty, but otherwise it was in the same condition. The Lucases’ expert relied upon this representation in examining the chair and making his conclusions about its condition. When the Hospital discovered the error of this statement, the Lucases should have been notified. The condition of the chair went to the heart of the Lucases’ case, and this is the type of supplementation that should be made.

The Hospital also urges on rehearing that failure to strike the testimony of Standridge and Rosewell was not reversible error. A number of cases have applied Rule 81(b) of the Rules of Appellate Procedure to discovery errors.66 Specifically, in the ease of Ramirez, the court held that failure to strike testimony that was cumulative probably did not cause the rendition of an improper judgment and did not constitute a reversible error.

In the present case, the Hospital contends that the photographs of the chair at the time of the occurrence and the contrast between its expert and the expert of the Lucases show that the chair was not in the same condition. We do not deem this evidence to be the type of evidence to render the error harmless.

The Lucases’ expert was placed in the position of believing that the chair was in the same condition as it was at the time of the occurrence in question. Thus, he was in a position to be discredited because he believed the lever was broken at the time, he was placed in a position of disputing the testimony of Lucas, he was placed in a position of sounding as if he had examined a different chair from the one examined by the Hospital expert, and he was not in the position to reach an opinion about the chair at the time of the occurrence in question, which was the main focus of the case. This denied the Lucases the right to make a proper presentation of their case to the trial court and thus, to the appellate court for review. Admitting the evidence of these two witnesses resulted *159in a significant disadvantage to the Lucases. We find this to be reversible error.

In the interest of fairness, a retrial of this case is required, after the Lucases’ expert has had an opportunity to examine the chair, knowing of the change in the chair’s condition after the occurrence in question. The motion for rehearing is overruled.

. See Ricardo N., Inc. v. Turcios de Argueta,870 S.W.2d 95 (Tex.App.-Corpus Christi 1993), rev’d on other grounds, 907 S.W.2d 423 (Tex.1995); Westfall Family Farms, Inc. v. King Ranch, Inc., 852 S.W.2d 587 (Tex.App.-Dallas 1993, writ denied); Ramirez v. Otis Elevator Co., 837 S.W.2d 405 (Tex.App.-Dallas 1992, writ denied).