Bradley & Gmelich LLP Letters

Witnesses Can Testify at Trial if the Other Party Never Asked About Them in Discovery

By Mark I Melo, Esq.

In Mitchell v. Superior Court (decided December 4, 2015), the 2nd District Court of Appeal allowed a plaintiff to present witnesses whose only purpose was to describe plaintiff’s injuries.  This was allowed because the defendant never asked for information about those witnesses prior to trial.

Plaintiff Karla Mitchell and defendant Ernestine Johnson were involved in an automobile accident in 2012.  Mitchell sued Johnson and others for personal injury and property damage.  Before trial, Johnson served Mitchell with various written interrogatories, including Form Interrogatory No 12.1, which asked Mitchell to identify each individual (a) who witnessed the accident, (b) who made a formal statement at the accident scene, (c) who heard any witnesses give such a formal statement, and (d) who has knowledge of the incident itself.

The only witness whom Mitchell identified was one of her children, who was riding in her vehicle during the accident.    However, Mitchell included three persons on her witness list for trial who were not listed in her response to Interrogatory No. 12.1.  These witnesses planned to testify about how plaintiff’s injuries affected her ability to care for her special-needs son, carry out her job as a grocery store worker, and other daily activities.

The lower court abused its discretion by excluding these witnesses from trial.  Because none of them actually witnessed the accident, they did not fall under the form interrogatory which Johnson used for information about witnesses to the accident itself.

In other words, because Johnson never asked Mitchell to identify witnesses who might testify about Mitchell’s physical injuries relating to the accident, plaintiff could not be punished for any “failure” to identify such witnesses before trial.  The Form Interrogatories distinguished between an “incident” and a plaintiff’s “injuries,” and Johnson’s chosen interrogatory simply did not cover the information she had wanted to obtain.

 Lesson

Discovery is not a “one size fits all” means of investigation.  The questions and methods that worked in one case are not guaranteed to be effective in even the most similar cases down the line.  Rather than rely solely on the standard, pre-printed Form Interrogatories, clients and attorneys should be prepared to use special interrogatories and other means of discovery which are specifically tailored to the case at hand.