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Goode v. Synergy Corporation2/25/2003
iligence in ascertaining the identity of Frayser and his information on the cause of fire is clearly demonstrated by their failure to investigate information that they possessed two years prior to trial regarding the cause of the fire. A plaintiff cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial. Diaz v. Methodist Hosp., 46 F. 3d 492, 496 (5th Cir. 1995). Synergy states that it provided the Goodes and Hueys with its theory of defense during discovery, that the attached homemade ventura plate caused the fire. Synergy also states that the Goodes' and Hueys' own expert stated that he was aware of the installed ventura plate, yet they decided to proceed under a different theory. Therefore, Synergy argues that the Goodes should have investigated and discovered the identity of the manufacturer and installer of the ventura plate. Thus, Synergy contends that the failure to investigate these known possibilities on the cause of the fire can hardly be deemed a "due diligent" investigation.
. With the above arguments in mind, we look to the record to see whether the Goodes and Hueys were diligent during discovery. During the discovery phase of the litigation, the Goodes and Hueys propounded interrogatories to Synergy requesting information regarding "the product," which was defined as that which caused the injury or damages as alleged in their complaint, as well as requesting information concerning persons associated with such product.
INTERROGATORY NO. 5: State the name, address and occupation of each and every person not heretofore mentioned having knowledge of any fact or matter relevant or material to this action.
In response, Synergy provided a list of twenty-two individuals, none of whom was George Frayser. Additionally, interrogatory number twenty-one read as follows:
INTERROGATORY NO. 21: Did the Defendant, at any time between the date of installation and the date of the accident, perform any maintenance, servicing, or cleaning? If the answer is in the affirmative, please state for each such occasion of maintenance, servicing, or cleaning:
a) The date;
b) The nature of the services performed;
c) The names, addresses, and relationships to the Defendant of the persons who performed the services;
d) The reason the services were performed;
e) The names, addresses, and relationships to the Defendant of the persons having custody or control of the originals or copies of records, reports, memoranda, receipts, work orders, or other written documents pertaining to the occasions.
RESPONSE: None other than those processes involving periodic filling of the propane tank.
Synergy did not list any other information in response to the question. The record shows that at no time before or during trial was Frayser ever identified as an employee of Synergy Corporation, much less, an employee who performed service on the gas system at the Goodes' residence.
. At the post-trial hearing, Synergy responded that it did not provide any information concerning Frayser because its records did not indicate that George Frayser would have any information regarding the plaintiff's water heater. In support of this assertion, Synergy presented post-trial affidavits of its personnel and a record of the Goodes' account history. The billing records demonstrate that no service whatsoever had been provided to the Goodes other than filling their propane tank. The manager stated that any service work done to a Synergy Corporation's gas system, such as the installation of the ventura plate, would have been billed. T
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