2020 WL 5292043

United States District Court, S.D. Illinois.
Robin J. THOMPSON and Overton Thompson, III, Plaintiffs,
v.
CRISP CONTAINER COMPANY, Pepsi MidAmerica Co., and Jason Ray Brasher, Defendants.
Case No. 3:19-CV-1117-MAB
|
Signed 09/04/2020
Attorneys and Law Firms
Jennifer M. Eberle, Randall L. Kinnard, Kinnard, Clayton & Beveridge, Nashville, TN, Erica Blume Slater, Simon Law Firm, P.C., St. Louis, MO, for Plaintiffs.
Mitch Matthew Murphy Gilfillan, Gregory A. Cerulo, Quinn, Johnston, Peoria, IL, Joseph M. Baczewski, Brandon & Schmidt, Carbondale, IL, for Defendants Crisp Container Company, Pepsi Midamerica Co.
Brent Larsen Salsbury, Charles Zachary Vaughn, Wiedner & McAuliffe, Ltd., St. Louis, MO, Joseph M. Baczewski, Brandon & Schmidt, Carbondale, IL, for Defendant Jason Ray Brasher.

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
*1 This matter is currently before the Court on the motion filed by Plaintiffs Robin Thompson and Overton Thompson, III, seeking to compel Defendant Jason Brasher to authorize the release of specific medical records (Doc. 53). For the reasons explained below, the motion is denied.

Background
The complaint in this case alleges that on April 3, 2019, while driving northbound on Interstate 57, Plaintiff Robin Thompson slowed her vehicle due to a lane closure. Defendant Jason Brasher, who was driving a tractor trailer behind Ms. Thompson, failed to respond to the slowing traffic and crashed his truck into the rear of Ms. Thompson’s vehicle at a high rate of speed.

Mr. Brasher submitted to a drug test at the hospital on the day of the collision, and the results came back positive for benzodiazepines, opioids and marijuana. He was retested the day after the collision at his doctor’s office and the results came back negative. Mr. Brasher provided his drug test results to his employer, to the State of Illinois, and to the Federal Government. Because those records were disclosed to an outside party for a purpose not related to the provision of medical care, they were no longer privileged and Plaintiffs were able to obtain a copy (Doc. 53, p. 7; Doc. 54, p. 5). See Palm v. Holocker, 131 N.E.3d 462, 475 (Ill. 2019) (noting court decisions that held physician-patient privilege did not apply to medical information voluntarily turned over to a third party in order to obtain or maintain driving privileges).

Plaintiffs’ counsel then asked Mr. Brasher about the drug test results at his deposition. Specifically, they asked Brasher why his drug test was positive for benzodiazepines (Doc. 53-1, p. 20). Brasher stated he took .5 milligrams of Xanax the night before the incident (Id.). He explained that he did not have an active prescription for the medication, he “just had a couple left from an old prescription” (Id. at p. 21). Plaintiffs’ counsel then asked Mr. Brasher when he last smoked marijuana prior to the incident (Id. at 20). He said it was about a week and a half beforehand (Id.) (“what, ten days, eleven–nine days, something like that”). Plaintiffs’ counsel also asked Mr. Brasher what sort of opiates that he used (Id.). He responded “none” and then denied using cocaine and heroin after being specifically asked (Id.). Plaintiffs’ counsel followed up by asking if he had an explanation for why his urine test was positive for an opiate (Id.). Mr. Brasher answered, “I took a Xanax. That’s — I mean that’s my answer. There is no other answer.” (Id.). Counsel for co-Defendants Crisp Container Company and Pepsi MidAmerica later asked Brasher if he was high at the time of the collision, and he replied that he was not. (Id. at p. 25).

Following Mr. Brasher’s deposition, Plaintiffs’ counsel sought to obtain additional medical records to further investigate Brasher’s level of intoxication at the time of the incident, which they contend is relevant to liability and punitive damages. Specifically, they asked for the EMS and hospital records from April 3, 2019, medical records regarding any blood or urine test administered on April 3 or 4, 2019, and physician records showing medications prescribed to Mr. Brasher, particularly Xanax (Doc. 53, pp. 2–3). Mr. Brasher objected, claiming he did not waive the physician/patient privilege and had not put his medical condition at issue.

*2 The parties discussed the discovery dispute via email and the telephone, but were unable to resolve the issue on their own. Consequently, they turned to the Court. A discovery dispute hearing was held on June 22, 2020, at which the Court requested formal briefing from the parties on the issue (Doc. 52). Plaintiffs then filed the motion to compel that is presently before the Court (Doc. 53), and Defendant Brasher filed a response in opposition (Doc. 54).

Discussion
Illinois law provides that “[n]o physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.” Palm v. Holocker, 131 N.E.3d 462, 468 (Ill. 2019) (quoting 735 Ill. Comp. Stat. 5/8-802 (2019)). This privilege exists to protect the patient’s privacy and to encourage the patient to freely and fully disclose all information that may help the physician in treating the patient, in order to ensure the best diagnosis and outcome for the patient. Palm, 131 N.E.3d at 468. There are, however, exceptions to the privilege. See 735 Ill. Comp. Stat. 5/8-802. The Illinois statute lists fourteen situations in which the privilege does not apply, including in pertinent part, “in all actions brought by or against the patient, … wherein the patient’s physical or mental condition is an issue.” 735 Ill. Comp. Stat. 5/8-802(4). Illinois subscribes to the “near universal agreement among courts that the physician-patient privilege belongs to the patient and therefore only the patient may waive it by putting his physical or mental condition at issue.” Palm, 131 N.E.3d at 472, 474. And when the patient is a defendant in a civil case, they put their own physical or mental condition at issue by affirmatively pleading it as part of a defense Id. at 470, 473 (agreeing with Defendant’s interpretation of section 8-802(4) that “the exception applies only when a party puts his or her own physical condition at issue by affirmative pleading. Thus … a defendant in a civil case puts his or her own physical or mental condition at issue by asserting it as part of a defense.”). See 1 Kenneth S. Broun et al., McCormick on Evidence § 103 (8th ed.) (“With respect to defenses, a distinction is clearly to be seen between the allegation of a physical or mental condition, which will effect the waiver, and the mere denial of such a condition asserted by the adversary, which will not.”).

Here, Mr. Brasher has never affirmatively raised his medical condition or health as a defense to liability in this case (see Doc. 20). It was Plaintiffs who, after receiving the non-privileged records of Mr. Brasher’s drug test results, injected the theory into the case that Brasher was intoxicated at the time of the incident. And it is Plaintiffs who asked Mr. Brasher about each of the drugs he tested positive for. Brasher simply answered those questions and denied he was high at the time of the collision.

By producing the drug test results to a third party outside the context of a patient seeking medical treatment, Brasher waived the privilege as to those particular records. Palm, 131 N.E.3d at 475–76 (collecting cases). That limited disclosure did not, however, open the door to Plaintiffs obtaining any of Brasher’s other medical records. See Palm, 131 N.E.3d at 475–76. Brasher likewise did not affirmatively place his medical condition at issue when he testified, in response to deposition questions from Plaintiffs ‘counsel, that he had not taken any drugs that affected his ability to drive at the time of the incident. See 1 Kenneth S. Broun et al., McCormick on Evidence § 103 (8th ed.) (“If the patient reveals privileged matter on cross-examination, without claiming the privilege, this is usually held not to be a waiver of the privilege enabling the adversary to make further inquiry of the doctors, on the ground that such revelations were not “voluntary.” ”); Griego v. Douglas, No. CIV 17-0244 KBM/JHR, 2018 WL 2376330 (D. N.M. May 24, 2018) (cited with approval by Palm, 131 N.E.3d at 471) (“[T]he general rule is that a defendant driver in a civil case does not waive the physician-patient privilege simply by denying fault … [and] a plaintiff may not effect a waiver of a defendant’s privilege even where there is evidence that the defendant may have been impaired at the time of the collision.”) (emphasis in original); Muller v. Rogers, 534 N.W.2d 724, 726 (Minn. Ct. App. 1995) (“Testimony elicited on cross-examination is not voluntary, and statements made by a patient on cross-examination do not constitute a waiver of medical privilege.”) (citing Briggs v. Chicago, Great W. Ry., 80 N.W.2d 625, 634 (Minn. 1957)). See also Kraima v. Ausman, 850 N.E.2d 840, 846 (Ill. App. Ct. 2006) (in case where plaintiff alleged that defendant was physically limited by arthritis when he performed surgery on plaintiff’s wife, defendant did not waive privilege when he testified, in response to deposition questions from plaintiff’s attorney, that he relinquished his neurosurgery position for health reasons and further denied having any problems with arthritis when he performed the surgery at issue). But see Doe v. Weinzweig, 40 N.E.3d 351, 355 (Ill. App. Ct. 2015) (in case where plaintiff alleged defendant gave her herpes, defendant put his medical condition at issue and waived privilege when he filed a motion to dismiss and attached medical records and a declaration purporting to show that he was not infected with herpes at the relevant time.).

*3 In sum, the Court concludes that Mr. Brasher only defended himself against Plaintiffs’ allegations that he was intoxicated and he never affirmatively placed his medical condition at issue. Holding otherwise would mean that Plaintiff was allowed to place Defendant Brasher’s physical condition in controversy and thereby effect a waiver of Brasher’s medical privilege by asserting he was impaired on the day of the incident, which would “render the privilege virtually meaningless.” Palm, 131 N.E.3d at 473.

The Court acknowledges that this ruling prevents Plaintiffs from obtaining medical records that are undeniably relevant to their theory that Mr. Brasher was intoxicated at the time of the collision and to their claim for punitive damages. However, “that is simply inherent in the nature of privileges,” which are intended to prevent confidential yet relevant information from being disclosed. Palm, 131 N.E.3d at 474. See also, e.g., id. at 472 (collecting cases in which the plaintiff was not allowed to obtain defendant’s medical records even where there was evidence that the defendant may have been impaired at the time of the collision).

Plaintiffs’ motion to compel (Doc. 53) is DENIED.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 5292043

2020 WL 5637620

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.
Missouri Court of Appeals, Western District.
Sean TATE, Appellant,
v.
Troy DIERKS, Respondent.
WD 82725
|
Opinion filed: September 22, 2020
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, THE HONORABLE S. MARGENE BURNETT, JUDGE
Attorneys and Law Firms
James D. Walker, Jr., Kansas City, for Appellant.
Michael C. Kirkham, for Respondent.
Division Two: Karen King Mitchell, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge
Opinion

W. DOUGLAS THOMSON, JUDGE

*1 Sean Tate (“Tate”) appeals from the Judgment of the Circuit Court of Jackson County following a jury trial in a wrongful death action in favor of Troy Dierks (“Dierks”) and against Tate. On appeal, Tate claims the trial court erred in denying his motion for new trial for reason that the court abused its discretion in excluding the testimony of witness Jeffrey Frazier (“Frazier”). We affirm, finding that the trial court acted within its discretion in excluding Frazier’s testimony.

Factual and Procedural History
The material facts are not in dispute. This case arises out of a fatal crash involving a tractor-trailer driven by decedent Alan Tate (“Decedent”), Tate’s father. Decedent was employed by Whimsy, Inc. (“Whimsy”), a Chicago-based trucking company with a terminal in Kansas City, Missouri. On March 24, 2016, Decedent departed from Sedalia, Missouri, driving his tractor-trailer along Highway 50 en route to Kansas City, Missouri. Decedent lost control of his truck in Lee’s Summit and crashed into a concrete bridge pylon. Decedent was pronounced dead at the scene of the crash.

Two claims were filed as a result of this accident.1 First, Tate, Decedent’s only surviving child, filed a workers’ compensation claim against Whimsy in 2016. During the pendency of the workers compensation claim, Tate’s counsel deposed John Wardlow (“Wardlow”), a Whimsy driver and former co-employee of Decedent. That deposition revealed the identity of Frazier, who was employed by another trucking company. Wardlow testified that Frazier had contacted him two to three weeks prior to the fatal crash, stating that he had observed the front right wheel of Whimsy truck #2610 – the truck which Decedent operated on the day of the crash – “wobbling.” Wardlow further testified that he spoke to Whimsy’s lead mechanic, Dierks, about the wobbly wheel.

After learning about the alleged problem with Whimsy truck #2610, on July 31, 2017, Tate filed a wrongful death lawsuit against Dierks which is the subject of this appeal. The petition referenced Frazier and his observations of the wobbly wheel. Discovery ensued in the wrongful death case, during which Tate did not identify Frazier as a witness in answer to interrogatories. On April 18, 2018, the trial court set a trial date of January 28, 2019, and entered its scheduling order setting deadlines for the remainder of the case. Pursuant to the trial court’s scheduling order, witness lists were to be filed on or before January 8, 2019. Tate filed his witness list on January 8, 2019. Tate did not name Frazier on his witness list.

Also on January 8, 2019, Dierks filed his first motion in limine and suggestions in support of same. Dierks specifically requested therein that “[p]laintiff should be precluded from calling any witnesses not previously disclosed in [p]laintiff’s discovery responses,” specifically citing Tate’s responses to Interrogatories No. 2 and 12. Tate agreed to the motion in limine and, pursuant to a stipulation of the parties, the motion in limine was sustained by the trial court.

*2 On January 23, 2019, less than five days before trial, Tate notified Dierks that Frazier had been served with a subpoena to appear at trial, and indicated his intention to call Frazier as a witness. The next day, Dierks filed a motion to exclude testimony of undisclosed witness Frazier. On January 28, 2019, the day of the jury trial, the trial court held a hearing prior to jury selection and ruled that Frazier would not be allowed to testify because he had not been identified in the interrogatory answers or on the witness list. Tate requested that he be allowed to make an offer of proof of the testimony of Frazier, which the court heard prior to commencing trial. At the conclusion of the trial, the jury found in favor of Dierks. Tate filed a timely motion for new trial which included the point appealed herein, and such motion was denied by the trial court.

Tate now appeals. Further factual details will be outlined as relevant in the analysis below.

Standard of Review
“Trial courts have broad discretion in administering rules of discovery, which this Court will not disturb absent an abuse of discretion.” State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. banc 2007). More specifically, “[t]he trial court has broad discretion in admitting or excluding testimony on the basis of nondisclosure in interrogatories.” DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 533 (Mo. App. E.D. 1991). Reversal of a discretionary ruling is warranted only when the lower court ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988). “[I]f reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Id. Discretionary rulings are presumed correct and the appellant has the burden of proving that there has been error. Id.

Analysis
In his sole point on appeal, Tate argues that Frazier should have been permitted to testify at trial. Tate argues that, although Frazier was not disclosed on the pre-trial witness list as required by the trial court, his identity and the nature of his testimony were effectively provided by his petition and interrogatory answers. Tate argues alternatively that if the interrogatory answers did not adequately identify Frazier as a witness, opposing counsel’s knowledge of Frazier’s identity and his expected testimony demonstrates the absence of prejudice toward Dierks. We are not persuaded.

Missouri law has established that the trial court has broad discretion to exclude testimony of witnesses not properly disclosed in interrogatory responses:
The trial court is vested with broad discretion to admit or reject testimony of a previously undisclosed witness whose identity may have been requested by interrogatory, and this court reviews only for abuse of that discretion…. ‘The primary purpose of interrogatories is to aid the litigants to find out prior to the trial what the facts are, so that controversial issues can be ascertained and the preparation for trial and the trial limited to them all to the end of obtaining substantial justice between the party’s litigant….’
Trident Grp, LLC v. Miss. Valley Roofing, 279 S.W.3d 192, 201 (Mo. App. E.D. 2009) (quoting Johnson v. National Super Markets, Inc., 710 S.W.2d 455, 456 (Mo. App. E.D. 1986)).

First, Tate argues that by referencing Frazier in his petition, he effectively provided Frazier as a witness because he gave Frazier’s name and the nature of his testimony. Regarding Frazier, Tate’s petition reads as follows:
9. Dierks was told by a truck driver employed by Whimsy Trucking named John Wardlow, that he, John Wardlow, had received firsthand information from a man named Jeff Frazier that indicated that Frazier had seen the front wheels of [Decedent’s] truck … wobbling.
*3 Tate’s assertion that Frazier and his testimony was effectively provided in the petition is misguided. Supreme Court Rule 55.05 provides that “[an] … original claim … shall contain (1) a short and plain statement of the facts….”2 A petition’s ‘short and plain statement of the facts’ is no substitute for the rigors of the discovery process. Rather, the varied discovery tools available to counsel in the discovery toolbox are designed to illuminate the salient facts associated with a case. A party’s understanding of the facts, and of relevant witnesses and exhibits, will develop and mature as investigation and discovery occur following the petition’s filing. At its most simplistic, opposing counsel cannot know from the petition’s short and plain statement whether the person named even has the capacity to testify. Given that Frazier was never identified in Tate’s discovery responses, Dierks would be entitled to presume that, whatever Tate’s belief at the time the petition was filed, he had concluded (for any number of possible reasons) that Frazier was not a competent, available, or helpful witness.

Further, a petition merely commences a case. The petition’s paragraph nine, regarding Frazier, is simply an allegation of fact, not a fact itself. As we discuss next, when a witness is not disclosed after being requested by interrogatory, an allegation in a petition is simply insufficient to make the leap from petition to the witness stand for a person named in such petition.

Tate next argues that he has ‘effectively provided’ Frazier’s name in his interrogatory answers. “The purpose of pretrial discovery includes facilitating and expediting the preparation of cases for trial, guarding against surprise and concealment, reducing delay, and assisting in determining the truth.” Marmaduke v. CBL & Assocs. Mgmt., 521 S.W.3d 257, 270-71 (Mo. App. E.D. 2017). “If the rules of discovery are to be effective, …, appropriate sanctions must be imposed on those who disobey the rules.” Id. at 271.

Dierks propounded interrogatories number 2 and 12 seeking to elicit those persons with knowledge about the case. These interrogatories and the answers thereto are as follows:
Interrogatory 2. Identify by name, telephone number, and address each person who you believe has knowledge or information about the claims you have asserted against Defendant in this lawsuit, about any of the injuries or damages you may claim in this lawsuit, or about the factual allegations contained in your pleadings. For each individual identified, please briefly state the nature of the information you believe the person possesses.
ANSWER: [Objections omitted.3] Without waiving said objection, plaintiff is aware of the witnesses listed in the police report (which defendant has), with address and phone numbers, defendant, and John Wardlow (who defendant has deposed) and defendant’s manager Larry King. In addition, Mary Tate, above. In addition, there will be expert witnesses designated.
Interrogatory 12. Please state all facts and identify all witnesses and documents that you believe support the claims of negligence or wrongful conduct on the part of Defendant that are described in Paragraphs 9 through 11 of your Petition, as well as any other acts or omissions by Defendant that you believe caused or contributed to the cause of decedent’s death.
ANSWER: Defendant Dierks and witnesses Wardlow and King’ [sic] depositions in the workers compensation case, which defendant’s attorneys have possession of [sic]. Other discovery is ongoing, so additional information will be supplemented by an appropriate expert witness, who will inspect the truck.

*4 Tate did not disclose Frazier in Interrogatory 2. First, Tate references witnesses named in the police report. In his petition, Tate has alleged Frazier observed the wobbly wheel weeks prior to the accident. Therefore, Frazier would not be a witness listed on the police report created on the day of the fatal accident. Neither is Frazier identified by proper name, as Tate did with other witnesses (Wardlow, King, and Mary Tate). It is also clear that Frazier is not an expert witness, and thus is not named by Tate’s collective reference to expert witnesses.

It is equally clear that Tate did not disclose Frazier in Interrogatory 12. Tate argues that there was an obvious mistake in this answer in that the preposition ‘in’ should have been inserted after the word ‘witnesses’ so that the answer would read ‘witnesses in Wardlow and King depositions.’ ” He reasons that in the face of his typographical error, “witnesses Wardlow and King’ depositions” properly disclosed Frazier because not only did opposing counsel understand the meaning of the answer, but also that the only “witness named” in the Wardlow deposition was Frazier. These arguments fail.4

First, Tate’s argument requires Dierks to presume there was a word missing when there was no reason for Dierks to do so. Second, if Dierks made such a speculative presumption, then Dierks would be required to correctly guess not only what word was missing, but where in the sentence the missing word should be inserted. Clearly, Tate’s omission changed the meaning of his answer on its face. By omitting the preposition “in”, the word “witnesses” modified the names it immediately followed: Wardlow and King. Dierks simply had no reason to speculate that a word was missing from this particular answer.

Next, Tate argues that Dierks understood his answer to Interrogatory 12, despite the error. Not only is this speculative, at best, but the trial record demonstrates that Dierks did not understand Tate’s intended answer. At the hearing on Dierks’ motion to exclude Frazier, counsel for Dierks stated: “[I]t wasn’t witnesses identified in Wardlow and King’s depositions, as he put in his [motion to exclude] response. It was witnesses Wardlow and King. He identified those witnesses, not witnesses in those depositions.” Hence, there was no clear understanding by Dierks of what was meant by Tate in his answer to Interrogatory 12. Opposing counsel cannot be tasked with reading words into discovery responses where they do not exist.

Further, Tate argues that Dierks must have known of Frazier’s existence because witnesses in the Wardlow deposition were limited to Frazier. This is a second-step argument, in that for us to consider it we must first find that Dierks had a duty to know of the missing word in Interrogatory 12, “in”, which we do not, and neither did the trial court find such a duty.

Finally, Tate argues that although he did not specifically identify Frazier as a witness in his answer, Dierks did not seek clarification regarding Tate’s answer to Interrogatory No. 12. This is simply not relevant; Dierks had no duty to seek clarification. We echo the words of the trial court: “[T]hey don’t have to [seek clarification]. That’s not their obligation. It’s your obligation.” Indeed, Rule 56.01(e) imposes a duty to seasonably supplement prior discovery responses. It was Tate who had the duty to supplement his answers, not Dierks’s duty to seek clarification.

*5 Moreover, the trial court also found that Tate failed to disclose Frazier as a witness in accordance with its scheduling order. At paragraph 10, the court’s order required:
The parties shall file witness/exhibit lists on or before 10 days before Pre-trial.5 The witness/exhibit lists shall include all person and exhibits then known and reasonably expected to be offered at trial and said list shall include detail as to make the witnesses and exhibits reasonably identifiable, including the addresses and phone numbers of all witnesses.

While Tate timely filed his witness list on January 8, 2019, it failed to identify Frazier. In violation of the court’s order, Tate sought to disclose Frazier as a witness five days prior to trial, and more than two weeks after witness lists were to be filed with the court. Rule 62.01 provides that once entered, the court’s scheduling order controls the subsequent course of the action. Setting a deadline for the specific disclosure of witnesses to be called at trial is a proper use of a scheduling order.

Tate argues that he did not disclose Frazier in a timely manner pursuant to the scheduling order’s deadline because at the time of filing his witness list, Tate did not know Frazier’s whereabouts or contact information. Tate “did not believe it was appropriate to list a trial witness whose whereabouts was unknown and who would consequently not be called at trial.”6 We find this argument disingenuous. At a minimum, Tate could have disclosed Frazier in a timely manner by providing the information known at that time – namely, Frazier’s name and the fact that his whereabouts were being investigated.7 Instead, despite the apparent importance of Frazier’s testimony and knowing that he wanted to call Frazier, Tate demonstrated no compliance with the trial court’s scheduling order and remained silent on his intentions.

Not only was Frazier not identified in Tate’s interrogatory answers and the witness list, Tate stipulated to the exclusion of any undisclosed witnesses, including Frazier. Dierks filed his first motion in limine on January 8, 2019 – the same day Tate’s witness list was filed with the court – seeking to preclude any undisclosed witnesses from testifying. Tate argues that this demonstrates Dierks’ knowledge of Frazier and his testimony.8 To the contrary, the motion in limine sought to exclude any undisclosed witness or hearsay statements. Further, while Dierks had knowledge of the petition’s allegation regarding Frazier, any mention of Frazier in the motion in limine demonstrates Dierks’ concern with how such allegation might be proven by Tate given that Frazier himself would not be testifying since he was not listed in the interrogatory answer or the witness list. Moreover, if Tate was, in fact, investigating Frazier’s whereabouts in order to enable his disclosure as a witness, it is illogical that Tate would have stipulated to such a request.

*6 Tate’s final argument is that even though Dierks stipulated to the motion in limine excluding non-disclosed witnesses, and even though Frazier was not disclosed as a witness in the interrogatory answers or included on the witness list, Dierks suffered no prejudice because he knew of Frazier’s identity and the likely contents of his testimony. Further, Tate claims Dierks was not prejudiced because Dierks had the opportunity to interview or depose Tate in the five days before trial. We cannot agree.

Prior to imposing sanctions upon the errant party “[the] trial court first will determine whether in the particular situation the opposing party has been prejudiced.” Laws v. Wellston, 435 S.W.2d 370, 375 (Mo. 1968). “In making a determination as to prejudice to the adversary the trial court should not ignore the spirit of the rule; i.e. that the rules of discovery were designed to eliminate, as far as possible, concealment and surprise….” Crompton v. Curtis-Toledo, Inc., 661 S.W.2d 645, 650 (Mo. App. E.D. 1983).

Rule 61.01(b) grants trial courts the power to take “just” action in regard to a party’s failure to answer interrogatories. “Whether a party is prejudiced by evasive answers to interrogatories so that exclusion of testimony is proper is a matter left to the discretion of the trial court.” McClure v. McIntosh, 770 S.W.2d 406, 410 (Mo. App. E.D. 1989) (citing Missouri Highway and Transportation Commission v. Pully, 737 S.W.2d 241, 245-46 (Mo. App. W.D. 1987)).

Here, it is clear Dierks was entitled to rely on Tate’s answers to interrogatories in determining how to prepare his defense. Further, Dierks was entitled to rely on the witness list filed by Tate. Without being named in discovery or on the witness list, Dierks may reasonably rely on Frazier’s apparent absence and prepare for trial accordingly. Further, the fact that Dierks was allowed to interview Frazier a few days prior to trial is insignificant in that it does not make up for the inability to prepare for Frazier’s testimony in the years leading up to trial and leaves Dierks in an unenviable trial position.

A trial court has broad discretion in choosing a remedy for a party’s failure to disclose a witness during discovery. Fairbanks v. Weitzman, 13 S.W.3d 313, 327 (Mo. App. E.D. 2000). “Exclusion of testimony is an available sanction where a party has failed to identify a witness in response to interrogatories.” Moore v. Weeks, 85 S.W.3d 709, 722 (Mo. App. W.D. 2002) (citing Garrison v. Garrison, 640 S.W.2d 179, 180 (Mo. App. E.D. 1982)). Under these circumstances, it was well within the trial court’s discretion to exclude the proffered testimony as a sanction for failing to identify Frazier as a witness in response to interrogatories as well as the court’s scheduling order. Had the trial court ruled otherwise and allowed Frazier to testify, Dierks clearly would have been prejudiced. We find that the trial court did not abuse its discretion in excluding such testimony.

Conclusion
The judgment of the trial court is affirmed.

All concur.
All Citations
— S.W.3d —-, 2020 WL 5637620

Footnotes

1
Relevant to our analysis, counsel representing Whimsy in the worker’s compensation case also represented Dierks in the wrongful death lawsuit.

2
All references to Rules are to Missouri Rules of Civil Procedure (2020), unless otherwise indicated.

3
Tate’s interrogatory answers provided to opposing counsel on March 15, 2018, were in response to Dierks’ interrogatories dated December 14, 2017. No request for an extension was requested by Tate, and none was granted. Thus, Tate’s answers were in violation of Rule 57.01(c)(1), which requires answers be provided within 30 days after service of the interrogatories and the objections would not have been well taken by the Court.

4
Notably, Tate admits in his brief that his interrogatory answer was “incomplete” and “should have been answered by naming Jeff Frazier.”

5
There is no argument that ‘ten days before Pre-trial’ was January 8, 2019.

6
This argument is contrary to Tate’s repeated assertion that the existence of Frazier and his testimony were known by both parties for nearly two years prior to trial. Further, the inability to locate witnesses just days before trial is yet another appropriate reason a trial court might require the parties to identify their witnesses at some reasonable time prior to the trial.

7
In the words of the trial court, “[E]ven if you only had a name, that person should have been identified in some fashion. In an answer to an interrogatory or a witness list.” Trial Tr., 15, Jan. 28, 2019.

8
Tate relies partially on the fact that Dierks trial counsel represented Whimsy in the worker’s compensation case, and thus heard Wardlow’s deposition in which Wardlow identified Frazier and what Frazier saw. This, however, provided Dierks with no more information than the allegation made in the petition, and neither did it provide Dierks with Frazier’s capacity to testify or other vital information necessary to prepare for trial. Further, it does not justify the failure to name Frazier in interrogatory answers or the witness list.