Section 3.38 Using Answers to Limit Opponent’s Evidence

• Library: Discovery 2015

The court has discretion to exclude or admit evidence not disclosed in answers to interrogatories, or it may adjourn or recess the trial to permit an interview of the witness or additional discovery. See, e.g., Wilkerson v. Prelutsky, 943 S.W.2d 643, 648–649 (Mo. banc 1997).

In deciding whether to admit or exclude the testimony of an undisclosed witness, the trial court will determine if the objecting party has been prejudiced. See, e.g., Thompson v. Marler, 286 S.W.3d 261, 266 (Mo. App. S.D. 2009) (there is no prejudice when the attorney cross-examined each undisclosed witness “extensively and effectively”).

Claude T. v. Claire T., 579 S.W.2d 141, 143 (Mo. App. E.D. 1979), indicates that the trial court has authority to recess the trial to permit the taking of a deposition from a witness who was not revealed in answers to interrogatories and that this action will be considered in determining whether the adverse party was prejudiced by the evidence. The trial court is not required, however, at the request of the answering party, to permit a recess of the trial, dismissal of...