Thanksgiving & Struck Answers

Its the Wednesday of Thanksgiving and, as in years past, I give thanks for something in which I had no involvement. I am not here to judge or cast dispersion upon anyone. Instead, I learn a lot from the experiences others have and sadly this is one of those times.

A-09-595780-C concerns an alleged sexual assault by a male nurse at a hospital against a female patient. After the assault occurred, it seems three nurses gave statements to police investigating the event. They also apparently met with hospital investigators. However, when a lawsuit was filed and discovery was opened, the nurses were not identified as potential witnesses, nor were their statements disclosed, for five and a half years. When they were finally disclosed, it seems at least one had a substantial memory lapse during deposition. The plaintiff moved to strike the hospital’s answer as to liability.

The 39 page, November 4, 2015 order granting this motion made me cringe. First, DC Bulla fined the hospital $18,000 but then deferred further sanctions for an evidentiary hearing before the district court. At the evidentiary hearing, the hospital’s defense counsel were vigorously examined. The district court’s order first concluded there was no dispute that the hospital was aware these three nurses had some information relevant to the case, but that they were not disclosed as NRCP 16.1 witnesses. Next, the district court turned on the hospital’s attorneys. It considered evidence that the attorneys received copies of the statements to police in January, 2013, not May 6, 2013 as the attorneys stated. The district court’s order then painfully recounted what it concluded were various inconsistencies in the attorneys’ testimony. At the end, the order read like a personal indictment of the hospital and its lawyers for not complying with NRCP 16.1(a)’s disclosure requirements.

My takeaway? Disclose early and often.