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Perry v. Magic Valley Regional Medical Center2/28/2000
uld not "document" the cause of the injury. She went on to say, " f you give the injection correctly, you do not have sciatic injury." This testimony varies little from Petersen's earlier testimony that intramuscular injections are administered in the upper outer quadrant to avoid the risk of injuring the sciatic nerve. Neither the question nor the answer suggests that Phillips' injection was the cause of Perry's injury.
Because Petersen did not testify as to causation, the trial court did not abuse its discretion in allowing the preceding testimony.
C. The Trial Court Did Not Abuse Its Discretion in Excluding a Videotape by the Hospital's Investigator.
Discovery in this case was extensive and often contentious. Perry repeatedly charged that the Hospital was uncooperative in responding to discovery requests. Finally, four months before trial, Perry filed a motion to compel the Hospital to supplement discovery. Stating that the Hospital had insinuated that it would use evidence that Perry lacked at trial, Perry urged the court to compel for reasons of judicial economy and avoiding "trial by ambush." In a subsequent memorandum, Perry noted that the Hospital "continues to attempt to hide witnesses under the guise of 'rebuttal' or 'impeachment' witnesses." At a hearing on the motion, the Hospital reiterated its intention to reserve the right to call undisclosed witnesses for impeachment. After hearing argument, the trial court ordered the parties to disclose additional witnesses by November 20. It also ruled that the Hospital could not call surprise witnesses until good cause was shown as to why the witness was not divulged to Perry.
During direct examination at trial, Perry testified that she loved to snowmobile and jet-ski. Despite her injury, she continued to engage in these vigorous activities. On cross-examination, she testified that she jet-skied about four times in the summer of 1997 and loved to go fast. When questioned specifically whether she had jet-skied at Mantua, a small lake in Utah, she initially could not remember; then she stated that she sat on the dock visiting with family while others skied.
Three days after this cross-examination, the Hospital sought to introduce a videotape plus the testimony of Craig Coash, the private investigator who made the videotape. The lengthy videotape showed Perry jet-skiing at Mantua on August 8, 1997. The Hospital claimed that the videotape, along with Coash's foundational testimony, was "pure impeachment" because Perry testified incorrectly about her Mantua visit. When Perry objected to the videotape and Coash's testimony, the trial court sustained the objection and excluded the evidence as a discovery sanction.
The Hospital asserts that the trial court erred in excluding the videotape and Coash's testimony because the rules of civil procedure in effect at the time of the trial did not require disclosure of impeachment exhibits and witnesses.
I.R.C.P. 26(e) governs the supplementation of responses. A trial court may order parties to supplement their discovery responses. I.R.C.P. 26(e)(3). If a party fails to provide timely supplementation, the trial court may impose sanctions, including the exclusion of witness testimony. I.R.C.P. 26(e)(4). Failure to comply with this rule typically results in the proffered evidence being excluded. Radmer v. Ford Motor Co., 120 Idaho 86, 89, 813 P.2d 897, 900 (1991). A trial court's determination of whether I.R.C.P. 26(e) has been violated and its imposition of sanctions for violations are matters within its discretion. I.R.C.P. 26(e)(4); Artiach Trucking, Inc. v. Wolters, 118 Idaho 656, 658, 798 P.2d 938, 940 (Ct. App. 1990).
The
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