S. Ct. Civ. No. 2011-0076

In an action to recover for personal injuries allegedly sustained while disembarking from one of the defendant's ferries, the trial court's judgment implementing a jury verdict for the defense is affirmed. Federal Rules of Civil Procedure are made applicable to discovery in the Superior Court under SUPER. CT. R. 39(a), and Rule 26(e) requires timely supplementation of discovery responses. Defendant's failure to timely disclose certain hospital records that were usable both for impeachment and as substantive evidence to support the affirmative defense that any neck pain plaintiff suffered was caused by pre-existing conditions, was sanctionable under federal Rule 37. Where a party can use evidence for both impeachment and substantive purposes, it does not fall within an exception under Rule 26(a), exempting from required disclosure evidence that is solely for impeachment. Nor did passing reference to the records in an expert report give plaintiff notice that defendant would introduce these records into evidence. The excuse that failure to disclose the medical records at an earlier time resulted from confusion caused by a change in responsibilities among the law firms representing defendant does not meet the test of substantial justification under Rule 37, as it does not constitute a genuine dispute concerning compliance. However, in this case the records were only eight pages long, and plaintiff was not prejudiced because she was provided with notice of the existence of the records five days before trial and a copy of the medical records three days before trial. Thus even though defendant violated Rule 26 in failing to disclose the hospital records or supplement its discovery responses, the Superior Court did not abuse its discretion in allowing it to introduce these records at trial, as plaintiff was not prejudiced and did not show that defendant acted in bad faith. Because plaintiff completely fails to cite any legal authority to support her additional contention that the Superior Court erred in denying her request for an “adverse inference” instruction concerning defendant's failure to produce an incident report relating to the events, this argument is waived under the provisions of V.I. S. CT. R. 22(a)(5) and 22(m). The Superior Court's August 12, 2011 judgment is affirmed.