Snowden v. Nucor Steel Berkeley

• Court: Court of Appeals of South Carolina
• Decided: January 7, 2003
• Docket: 2003-UP-011
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tony R. Snowden,        Appellant,

v.

Nucor Steel Berkeley d/b/a Nucor Corp and Trucker’s Express, Incorporated,        Defendants,

Of Whom Trucker’s Express, Incorporated is the        Respondent.

---

Appeal From Berkeley County
Clifton Newman, Circuit Court Judge

---

Unpublished Opinion No. 2003-UP-011
Submitted October 22, 2002 – Filed January 7, 2003   

---

AFFIRMED

---

Merrill A. Cox, of Goose Creek; Orin G. Briggs, of Lexington; for Appellant

Beverly A. Carroll, of Rock Hill; for Respondent

---

PER CURIAM:  Tony Snowden brought a negligence action against Nucor and Trucker’s Express, Incorporated (TEI).  Snowden suffered injuries when his tractor-trailer overturned while being loaded with steel coil at Nucor’s facility in Berkeley County.  The jury awarded Snowden $100,000.00 in actual damages.  The jury also found that Snowden was fifty percent negligent.  The trial judge entered judgment for Snowden in the amount of $50,000.00.  Snowden appeals, arguing TEI committed discovery abuse by not seasonably disclosing the existence of a witness and videotapes made by the witness.  Snowden also argues the trial judge erred by not providing a more meaningful sanction and allowing the introduction of the witness’s testimony and the videotapes.

FACTS/PROCEDURAL HISTORY

Prior to being granted summary judgment, [1] Nucor hired Edward Langford, a private investigator, to videotape and document Snowden’s daily activities.  Langford videotaped Snowden’s activities on July 3 and 5, 2000.  On September 14, 2000, Nucor answered Snowden’s interrogatories and admitted the existence of this videotape.

Trial was scheduled to begin on June 18, 2001.  On approximately May 12, 2001, TEI contacted Langford and hired him to conduct surveillance on Snowden.  Langford conducted the surveillance on May 14-16, 2001, and June 13 and 15-16, 2001. 

TEI supplemented its answers to Snowden’s interrogatories on June 15, 2001.  TEI listed Langford as an expert witness who would testify concerning his surveillance of Snowden.  TEI also revealed the existence of Langford’s written reports and surveillance videotapes.

At a pretrial conference and roster meeting on June 18, 2001, the trial judge delayed the trial until June 25, 2001, to give Snowden a chance “to deal with the issue” of the videotapes.  At trial, Snowden objected to the introduction of the videotapes. [2]

LAW/ANALYSIS

Snowden argues the trial judge erred by admitting the videotapes and Langford’s testimony given TEI violated a scheduling order and the rules of discovery. [3]

The trial judge did not explicitly find a violation of the discovery rules.  However, by delaying the trial the trial judge took precautions to alleviate any potential discovery abuse problems. [4]   Snowden argues the alleged discovery abuse warranted the exclusion of the videotapes and the private investigator’s testimony.  The question then becomes whether the trial judge’s sanction – a one-week delay – was an abuse of discretion, as Snowden argues. [5]   We hold the trial judge did not abuse his discretion in delaying the trial where Snowden did not allege any prejudice and did not move for a continuance.   

Snowden contends Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct. App. 1997), is on point with the present situation.  In Samples, the defendant’s discovery conduct was sanctionable because the defendant did not reveal the existence of a videotape of the plaintiff until one week before trial.  The defendant knew of the videotape for two and a half years without disclosing its existence and used the videotape to draft deposition questions.  The trial judge in Samples admitted the videotape but did not allow the investigator to interpret it.  This Court held the trial judge’s sanction was not “meaningful enough to protect the rights of discovery.”  Id. at 114, 495 S.E.2d at 218. 

Here, the trial judge’s sanction was meaningful enough to protect Snowden’s rights and was not an abuse of discretion warranting a new trial.  See Griffin Grading and Clearing, Inc. v. Tire Serv. Equip. Mfg. Co., 334 S.C. 193, 511 S.E.2d 716 (Ct. App. 1999) (stating a trial judge’s selection of a sanction for discovery violations is within his discretion and will not be interfered with unless the trial judge abused that discretion); Halverson v. Yawn, 328 S.C. 618, 493 S.E.2d 883 (Ct. App. 1997) (stating an abuse of discretion in imposing sanctions may be found where the trial judge’s decision was without reasonable factual support and resulted in prejudice to the appellant, thereby amounting to an error of law).  TEI had not hidden the existence of the videotapes for years as in Samples. Nor is there any evidence TEI used the videotapes to draft deposition questions.  In fact, TEI did not depose any witnesses after hiring the investigator. [6]   By delaying the trial, Snowden had the opportunity to view the videotapes and depose the private investigator. 

Furthermore, Snowden did not move for a continuance and did not demonstrate prejudice.  The failure to move for a continuance demonstrates a lack of prejudice to Snowden.  Snowden alleges on appeal the one-week delay was meaningless and amounted to prejudice because Snowden could have engaged the services of medical and vocational experts to review the videotapes had the witness’s information been disclosed sooner.  At trial, Snowden did not allege any prejudice and did allege he would have further deposed his witnesses or employed additional experts.

CONCLUSION

For the foregoing reasons, the trial judge’s decision to admit the videotapes and the investigator’s testimony was not an abuse of discretion and is

AFFIRMED.

CONNOR, STILWELL, and HOWARD, JJ., concur.

---

[1]    The trial judge granted summary judgment to Nucor on September 21, 2000.

[2]   Snowden asserts he made a motion in limine during the pretrial conference to exclude Langford’s testimony and the introduction of the videotapes.  The pretrial conference was not memorialized.  The trial judge later placed his pretrial ruling on the record during the following colloquy:

[Snowden’s counsel]:  Our argument based upon the Samples case is that we had absolutely no knowledge that this defendant intended to call this witness until ten days before this trial.  And I know the Court has ruled on that, and I’m not trying to reargue it.  But I’m just trying to make the court understand why we felt like the discovery issue was still an issue, Your Honor.

The Court:  Yes, sir, and I understand.  The Court finds that, you know, the disclosure question both counsel have argued when it was disclosed and so forth.  The only thing I can say is that we had a hearing, pretrial conference, on this matter ten days or so ago and that we continued the case for a week in part based on any questions or concerns about it.  I believe that the adequate disclosure has been made in a sufficient amount of time to deal with the issue by the plaintiff, if there was anything that you wanted to do about it.

[3]    Insofar as Snowden argues TEI violated a scheduling order, this issue is not preserved for review.  The record does not indicate Snowden ever raised this issue with the trial judge in arguing against the admission of the evidence.

[4] See Rule 26(e), SCRCP (“            a party is under a duty seasonably to supplement his response with respect to any question directly addressed to (1) the identity and location of persons having knowledge of discoverable matters, and (2) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.”).  TEI employed the investigator one month prior to trial but did not disclose his existence until three days prior to trial.  TEI asserts it listed the investigator’s name “after reviewing the videotapes and determining that it would submit the videotapes at the trial.”           

[5]   Snowden frames the issue on appeal as follows:  “Because the trial court failed to sanction the Respondent’s violation of the rules of discovery and the pretrial order, it abused it’s [sic] discretion.”  (emphasis added).  However, a close analysis of Snowden’s argument reveals Snowden actually focuses on whether the trial judge erred by not imposing more meaningful sanctions given Snowden admits the trial court’s “only sanction” was the one-week continuance.

[6]    In his brief, Snowden alleges TEI had the advantage of knowing the contents of the surveillance tapes when it agreed to deposing Snowden’s medical expert de bene esse.  Snowden’s medical expert was deposed on June 14, 2000.  The private investigator did not produce a videotape until at least July 3, 2000.