Application of the cancellation rule can devastate a case. Here is the rule as stated in Farber v. Nucsafe, Inc., No. E2022-00428-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2023):
Under Tennessee’s cancellation rule, “contradictory statements by the same witness regarding a single fact cancel each other out.” Helderman v. Smolin, 179 S.W.3d 493, 501 (Tenn. Ct. App. 2005) (citations omitted). Thus, once a court determines two statements to be contradictory, both statements are “considered to be ‘no evidence’ of the fact the party seeks to prove.” Id. (quoting Wilson v. Patterson, 73 S.W.3d 95, 104 (Tenn. Ct. App. 2001)). “The cancellation rule only applies, however, ‘when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence.’” Hill v. Tapia, No. M2012-00221-COA-R3CV, 2012 WL 6697308, at *5 (Tenn. Ct. App. Dec. 21, 2012) (quoting Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d 476, 483 (Tenn. Ct. App. 1978)).
…
[T]he cancellation rule does not apply to inconsistent responses resulting from inadvertence or misunderstanding, see Hill, 2012 WL 6697308, at *6 (citations omitted) ….
Farber at p.8-11.
In Farber, Plaintiff executors alleged that Defendants failed to timely pay a promissory note due to Plaintiffs’ decedent. Defendants denied owing the debt, and alleged several affirmative defenses. Plaintiffs sent interrogatories seeking the evidence known to Defendants that supported the affirmative defenses. Defendants answered the discovery with words similar to the following: “[Defendants]Nucsafe and Breton Equity do not have responsive information at this time as discovery is on-going. Nucsafe and Breton Equity will supplement as appropriate under the Tennessee Rules of Civil Procedure.” Mr. Doukas signed the discovery responses for the Defendants.
These discovery responses were never supplemented, but in response to a motion for summary judgment an affidavit submitted by Mr. Doukas set forth information that fell within the scope of the prior discovery questions. The trial court ignored the affidavit for purposes of the summary judgment motion and entered summary judgment for Plaintiffs saying as follows:
The Court is of the opinion that Tennessee’s cancellation rule precludes consideration of the assertions made by Mr. Doukas in the Affidavit. See Church v. Perales, 39 S.W.3d 149, 169–70 (Tenn. Ct. App. 2000) (holding “Tennessee follows the rule that contradictory statements by the same witness regarding a single fact cancel each other out.”). On July 9, 2021, Defendants responded to interrogatories denying that they have any facts and evidence upon which they rely in support of the affirmative defenses in their Answer that Mr. Seymour violated the doctrine of good faith and fair dealing and/or that the agreements referenced in Mr. Seymour’s Complaint are unenforceable. Because these responses were not supplemented, the cancellation precludes any assertion made by Mr. Doukas to the contrary.
Farber, at p. 8.
The Court of Appeals agreed, saying
the cancellation rule only applies “when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence.” Hill v. Tapia, 2012 WL 6697308, at *5 (quoting Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d at 483). The testimony offered by Mr. Doukas in his affidavit is not only inconsistent with his prior testimony, it is also unexplained and neither version of his testimony is corroborated by other evidence. Thus, as the trial court concluded, the cancellation rule applies to Mr. Doukas’s testimony.
Farber, at p. 11.
I confess that I have not researched the point, but I do not recall another Tennessee case where the cancellation rule was used to eliminate testimony on a given subject because of the failure to the supplement discovery responses.
It is important to note that there was another way for the trial court to have reached the same result. This footnote to the Court of Appeals’ opinion provides the alternative holding:
We also note that the trial court had another basis on which to exclude this evidence. Because Defendants failed to supplement their discovery responses on the very subject Mr. Doukas offered in his affidavit, the trial court had discretion to disregard or exclude Mr. Doukas’s affidavit testimony. See Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004) (“Excluding a witness’s testimony may be an appropriate sanction for failure to supplement answers to interrogatories.”); see also Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1998); Ammons v. Bonilla, 886 S.W.2d 239, 243 (Tenn. Ct. App. 1994); Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981) (stating that trial courts have wide discretion to determine appropriate sanctions for abuse of the discovery process). However, neither party raised this issue; accordingly, we shall not consider it. See State v. Bristol, 654 S.W.3d 917, 927 (Tenn. 2022).
Farber, at p. 11, fn. 6.
Indeed, I will go a little further than the Court of Appeals. Tenn. R. Civ. P. 37.03 provides “A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.” This rule was added to the rules of civil procedure in 2010, after the date of the opinions referenced by the appellate court in footnote 6. Thus, although admittedly the rule gives the trial judge some wiggle room, it is clear that a trial judge may exclude evidence for failure to supplement discovery.
The duty to supplement discovery responses is real and the failure to do so has consequences.