(caption unavailable)

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Felicia Caskey’s injuries are derivative of Mr. Caskey’s. She is a
plaintiff only for the loss of household services and loss of consortium claims.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-20482
_______________
TERRY CASKEY and FELICIA CASKEY,
Plaintiffs-Appellants,
VERSUS
MAN ROLAND, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
March 18, 1996
Before GARWOOD, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Plaintiffs Terry and Felicia Caskey1 appeal the denial of
their motion for a new trial. They argue that the district court
abused its discretion by deciding to admit certain testimony and
evidence that the defendant had failed to disclose during discov-
ery. Concluding that any error was either harmless or invited by

-- 1 of 15 --

2 We refer to Terry Caskey as “Caskey” and to Felicia Caskey as “Mrs.
Caskey.”
2
the plaintiffs, we affirm.
I.
We recount here the general factual framework of this case,
leaving the details to the legal discussion below. In December
1989, Terry Caskey2 suffered a back injury that prevented him from
performing any physical labor for almost a year. This accident
occurred well before the events that gave rise to this case.
Caskey returned to work in September 1990. On November 3,
1990, while working on a printing press, he sustained injuries to
his back, neck, and other areas of his body.
Caskey then filed a suit in diversity against Man Roland, Inc.
“Man Roland”), the manufacturer of the printing press, proceeding
under theories of product liability and breach of warranty. During
the discovery process, both parties had access to Caskey’s medical
records, which reflected that Caskey walked with a limp and
sometimes needed the help of a cane. They also contained the
opinion of one of Caskey’s doctors that Caskey should not use a
wheelchair.
Caskey appeared at trial, unexpectedly in a wheelchair. He
testified that he was unable to get around without a cane or
wheelchair and that he could walk only with a cane and for short
distances. He also testified that he had never claimed to be
permanently disabled from the 1989 accident and that he had

-- 2 of 15 --

3 The Texas law applicable at the time of trial prohibited a claimant from
recovering damages for a strict products liability claim unless the claimant’s
percentage of responsibility was less than 60%. TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.001(b) (West Supp. 1995). Texas has since amended this section of its code.
3
completely recovered from that accident by the time of the 1990
accident. He further claimed to be concerned about paying his
future medical expenses. He stated that this concern was causing
him mental anguish.
At trial, disputes arose regarding the admissibility of
certain evidence consisting of (1) Social Security Administration
(“SSA”) records and findings; (2) a videotape of Caskey walking to
his truck with a limpSSbut without a caneSSand driving to a friend’s
house on November 14, 1992; and (3) the videographer’s testimony
authenticating the tape. The district court ultimately admitted
all of this evidence.
The jury found that there was a defect in the printing press
and that Man Roland had breached its warranty that the press was
free from defects. The jury, however, apportioned 80% of the fault
to Caskey and only 20% to Man Roland. The jury also awarded
damages to the Caskeys.
After the verdict, the district court entered judgment as a
matter of law for the defendant, ordering that the Caskeys take
nothing.3 The court then denied the Caskeys’ motion for a new
trial.

-- 3 of 15 --

4 See, e.g., United States v. Gray, 626 F.2d 494, 501 (5th Cir.), cert.
denied, 449 U.S. 1038, and cert. denied, 449 U.S. 1038 (1980), and cert. denied,
449 U.S. 1091, and cert. denied, 450 U.S. 919 (1981) (holding that “a defendant
who asks for an instruction will not be heard to complain about the instruction
on appeal”); Croce v. Bromley Corp., 623 F.2d 1084, 1092-93 (5th Cir. 1980),
cert. denied, 450 U.S. 981 (1981) (holding that, where the defendants put the
general reputation of a pilot at issue, they will not be heard to complain that
the district court erred in admitting evidence of that pilot’s past deportment
as a pilot).
5 See, e.g., United States v. Baytank (Houston), Inc., 934 F.2d 599, 606
(5th Cir. 1991); United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert.
denied, 425 U.S. 938 (1976); United States v. Nelson, No. 95-40097, slip op. 17-
18 (5th Cir. Nov. 21, 1995) (unpublished) (holding that, where defense counsel’s
remarks in closing argument invited response from prosecutor, defendant could not
complain of prosecutorial misconduct during oral argument); Capella v. Zurich
Gen. Acc. Liab. Ins. Co., 194 F.2d 558, 560 (5th Cir. 1952); Crockett v.
Uniroyal, Inc., 772 F.2d 1524, 1530 n.4 (11th Cir. 1985) (characterizing invited
error as a “cardinal rule of appellate review”).
4
II.
We review the denial of a motion for new trial for abuse of
discretion. Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513,
515 (5th Cir. 1993), cert. denied, 114 S. Ct. 1536 (1994). We
review admissions of evidence under the same standard. Id. We
subject erroneous evidentiary admissions to a harmless error
analysis as well. FED. R. EVID. 103.
Where appropriate, we may also apply the doctrine of invited
error, which states that a party cannot be heard to complain of an
error that it induced or provoked.4 As we have stated elsewhere,
a party may not invite an error and then complain of it.5
III.
Caskey argues that the admission of the SSA records and
findings was an abuse of discretion. First, he claims that the
evidence confused the jury in violation of FED. R. EVID. 403.
Second, he claims that the admitted evidence was either irrelevant

-- 4 of 15 --

6 The events that gave rise to the December 1989 injury are distinct from
the events that gave rise to the November 1990 injury. Man Roland and its
printing press were not involved in the former accident.
5
or a violation of the collateral source rule. Because any error in
admitting this evidence was invited, Caskey is estopped from
asserting this argument.
Caskey testified that, as of November 3, 1990SSthe date of the
accident at issue in this caseSShe had completely recovered from
his back injury of December 1989, having experienced no recurrence
of pain.6 On cross-examination, he stated that he had never
claimed to be permanently disabled as a result of the 1989
accident.
The district court allowed Man Roland to impeach this
testimony by introducing a single documentSSa letter from Caskey to
the SSA in which he claimed to be permanently disabled as a result
of the 1989 accident. The court admitted no other SSA records or
findings at this time. Caskey does not challenge this admission.
After introduction of this document, Caskey claimed that the
SSA rejected his claim of permanent disability and turned down his
request for disability benefits. He also testified that he was
worried about his ability to pay future medical bills, claiming
that this situation was causing him mental anguish.
The district court allowed Man Roland to contradict this
testimony by introducing SSA records and findings. This evidence
established that the SSA, after initially rejecting Caskey’s claim,
approved Caskey’s claim upon reconsideration and granted him
disability benefits. This evidence also established that Caskey’s

-- 5 of 15 --

6
disability benefits included payments for his future medical
expenses.
We assume without deciding that admission of this evidence was
error. We still do not reach this claim, however, because Caskey
invited any such error. By claiming that the SSA had rejected his
disability claim and denied him benefits, Caskey opened the door
for Man Roland to introduce evidence that the SSA in fact had
approved his claim on reconsideration and had granted him benefits,
including payments for his future medical expenses. Caskey cannot
now be heard to complain of such error.
IV.
Caskey argues that the admission of the videotape and the
videographer’s authenticating testimony was an abuse of discretion.
He claims first that Man Roland was required to have disclosed the
videotape and the identity of the videographer during discovery,
pursuant to FED. R. CIV. P. 26. He also claims that Forsythe should
not have been permitted to testify, because he had not been placed
on Man Roland’s witness list.
Caskey testified at trial that he had been house-ridden since
1990 and was unable to do anything without a cane or wheelchair.
He claimed furthermore that he could not walk more than “a couple
of steps” without a cane.
Unbeknownst to Caskey, Man Roland had commissioned a private
investigator, James Forsythe, Jr., to conduct video surveillance of
Caskey prior to trial. Forsythe performed such surveillance on

-- 6 of 15 --

7
November 14, 1992. This session fell between two visits by Caskey
to his doctors on November 12 and November 17 of that year. Man
Roland had not disclosed the existence of this videotape to the
Caskeys during the discovery process. It also had failed to
identify the videographer, Forsythe, as a person with knowledge of
relevant matters.
The contents of the videotape were consistent with the medical
records provided to both parties during discovery, but not with
Caskey’s trial testimony. The videotape showed Caskey walking to
his car and driving a short distance to a friend’s house. No
wheelchair ever appeared in the videotape. In fact, the videotape
showed Caskey walking without even a cane.
Man Roland asked the district court to allow it to show the
videotape to the jury. Caskey had had an opportunity to view the
videotape outside the courtroom. He testified, outside the
presence of the jury, that he could not tell whether he was the
person in the videotape. Caskey’s counsel repeatedly insisted that
Man Roland bring in the videographer, Forsythe, to authenticate the
tape. Man Roland agreed to do so.
Just as Man Roland prepared to show the videotape to the jury,
Caskey objected on the ground that Man Roland had not included
Forsythe on its witness list. It also objected on the ground that
Man Roland had produced neither the tape nor Forsythe’s identity
during discovery. The district court admitted both the videotape
and the authenticating testimony of the videographer. Forsythe’s
testimony consisted strictly of authenticating the videotape.

-- 7 of 15 --

7 The same was true of the videotape in Chiasson. Cf. 988 F.2d at 514-15
(listing videotape’s contents).
8
We assume, arguendo, that admission of the videotape was
error. Our decision in Chiasson offers support for this assump-
tion, particularly because the facts of Chiasson are similar to the
facts here. We also assume, agruendo, that admission of the
videographer’s testimony was error. Nevertheless, we hold that
neither error warrants reversal.
A.
Where the failure to disclose relevant evidence is harmless,
exclusion is not required by the federal rules: “A party that
without substantial justification fails to disclose information
required by Rule 26(a) or 26(e)(1) shall not, unless such failure
is harmless, be permitted to use as evidence at a trial, at a
hearing, or on a motion any witness or information not so dis-
closed.” FED. R. CIV. P. 37(c)(1) (emphasis added). Furthermore,
FED. R. EVID. 103 establishes that an error is not reversible unless
it affects a substantial right. See Chiasson, 988 F.2d at 518.
Caskey claims that the admission of the undisclosed videotape
compromised his credibility before the jury. Caskey further claims
that the defendant’s use of the videotape tainted the jury’s
verdict because it conveyed to them the perception that he had been
caught in a lie.
The contents of the videotape, however, were relevant only to
damages, not liability,7 as the historical facts concerning

-- 8 of 15 --

8 In this case, there were witnesses to Caskey’s accident. In Chiasson,
on the other hand, the plaintiff was the only witness to the accident. See id.
at 514. Chiasson’s credibility was therefore quite important to the liability
component of her verdict.
9
liability were essentially undisputed.8 To the extent that
Caskey’s credibility was impugned, therefore, such impugnment was
relevant only to damages and not to the liability component of the
verdict.
Any effect on the damages component was irrelevant, because
the jury found that Caskey was 80% at fault. As we have stated,
see note 3, supra, Texas law at the time of trial prohibited a
claimant from recovering damages for a strict products liability
claim unless the claimant’s percentage of responsibility was less
than 60%. Caskey, therefore, was entitled to no damages, and any
impugnment of his credibility in that regard was harmless.
Chiasson rested on distinctly different law and facts. The
plaintiff in that case sued under the Jones Act, see 988 F.2d at
514, which permits recovery even when the plaintiff is
contributorily negligent. See 46 U.S.C. App. § 688 (West Supp.
1995) (incorporating comparative negligence scheme of Federal
Employers’ Liability Act). The videotape in that case, then, was
quite relevant to the issue of damages, because it did affect the
amount of recovery, even though its effect was much mitigated by
Chiasson’s high level of comparative negligence (90%). See
Chiasson, 988 F.2d at 515.
In contrast, Caskey was entitled to no recovery at all because
of Texas law’s contributory negligence defense. Whether the

-- 9 of 15 --

10
videotape compromised his credibility as to damages was immaterial,
and any error in admitting the videotape was therefore harmless.
There is another critical distinction between this case and
Chiasson. The parties in Chiasson admitted that they would have
settled the dispute if the videotape had been disclosed prior to
trial. See id. at 518. No such concession was made in this case.
We held in Chiasson that disclosure of the videotape could not have
been harmless because (1) the parties’ concession established that
the failure to disclose the videotape had had a “fundamental effect
on the outcome of the litigation,” and (2) the effect of the
videotape on the damages issue was “obvious.” See id. Neither of
those reasons applies to the instant case. Concluding that the
failure to disclose the videotape was harmless, we hold that any
error in admitting the videotape was harmless as well.
B.
As for Forsythe’s testimony, Caskey’s counsel repeatedly
insisted that the videographer testify in order to authenticate the
videotape. When Caskey refused to confirm whether he was the man
in the videotape, Man Roland put Forsythe on the stand to authenti-
cate the tape and to confirm that the man in the tape was indeed
Terry Caskey. Although Caskey’s counsel did ultimately object to
Forsythe’s appearance as a witness, this objection came far too
lateSSi.e., just as the tape was about to be shownSSand only after
Caskey’s counsel had insisted that Forsythe testify. Any error in
admitting this testimony was invited by Caskey, and he cannot be

-- 10 of 15 --

11
heard now to complain of such error.
In summary, all the errors of which Caskey complains on appeal
were either harmless or invited. Accordingly, we AFFIRM.

-- 11 of 15 --

9 I agree with the majority that the admission of the Social Security Administration records
was not in error. The majority opinion uses the concepts of “invited error” and “opening the door”
interchangeably, however, yet the terms stand for somewhat different principles. Invited error
prevents a party who purposefully fails to object to an opponent’s inadmissible evidence from
responding in kind with his own inadmissible evidence. The instant case invokes instead the doctrine
of curative admissibility, or “opening the door,” which allows a party to protect himself at trial, after
inadmissible evidence has been introduced by the opposing party, by retorting in kind. 1 Wigmore §
15; 1 McCormick on Evidence § 57; 1 Weinstein’s Evidence § 103[02]. Compare two of the cases
cited by the majority: United States v. Baytank (Houston), Inc, 934 F.2d 599, 606 (5th Cir. 1991)
(The invited error doctrine holds that a party cannot appeal a jury instruction it requested at trial)
versus Croce v. Bromley Corp., 623 F.2d 1084, 1092-3 (5th Cir. 1980), cert. denied, 450 U.S. 981
(1981) (Testimony developed by the defendant concerning his reputation “opened the door” for the
admission of plaintiff’s evidence regarding the pilot’s past record.) I also note that neither doctrine
could apply to the surveillance videotape.
12
Dennis, J. dissenting.
The majority holds that the admission of the undisclosed surveillance videotape was harmless
error. Because Fed.R.Civ.P. 37(c)(1) requires exclusion of evidence for the defendant’s blatant
violation of the disclosure rules, and because I disagree that the admission of the undisclosed evidence
constituted harmless error, I dissent.9
The plaintiffs made an interrogatory request for the names of “each person who has any
knowledge of facts or discoverable matters, whether or not admissible, that are or may be relevant
to any issue in this lawsuit.” Subsequently, the defendants hired a private investigator to videotape
Mr. Caskey limping without a cane on November 14, 1992, more than a year before the trial which
commenced on February 16, 1994. Defense counsel failed to supplement their discovery response,
not notifying the plaintiffs of the identity of the investigator and the existence of the tape until after
commencement of trial at 8 p.m. on the night before the tape was shown to the jury.
In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), this court held that:
(1) a surveillance videotape of the employee-plaintiff’s daily activities was substantive evidence and,
thus, had to be disclosed pursuant to a discovery request, regardless of any impeachment value, and
(2) admission of the videotape following nondisclosure during discovery was reversible and not
harmless error in light of the videotape’s obvious important effect upon the verdict and the likely
impact the video would have had on settlement negotiations had it been properly disclosed.

-- 12 of 15 --

10 The case involves discussio n of two different types of “harmless error”: whether the
defendant’s failure to disclose was harmless under 37(c)(1), and whether the trial court’s inclusion
of excluded evidence was harmless under Fed.R.Evid. 103.
13
In 1993, a new sanction for failure to make discovery disclosure was added by Fed.R.Civ.P.
37(c)(1). It provides that a part y who, without substantial justification, fails to make disclosures
required by Rules 26(a) and 26(e)(1) shall not be permitted to use such information or witness at trial,
at a hearing, or on a motion, unless the failure to disclose is harmless. 4A Moore’s Federal Practice
§ 37.04[1]. In large measure, this new sanction was intended to put teeth into the mandatory initial
disclosure requirements added by the 1993 amendments. Wright, Miller & Marcus Federal Practice
and Procedure § 2289.1. This new sanction strongly vindicates the 1993 decision in Chiasson v.
Zapata Gulf Marine Corp., supra, which was based on Fed.R.Civ.P. 26(b). Because the trial in the
present case commenced on February 16, 1994, the trial court’s decision was governed by both
Fed.R.Civ.P. 37(c)(1) and the Chiasson precedent.
Man Roland failed to make disclosure of the surveillance videotape, despite the plaintiff’s
discovery request and the mandatory discovery requirements of Fed.R.Civ.P.26(a). The defendant
showed no “substantial justification” for the delay, nor co uld it claim that the concealment of the
surveillance tape until trial was harmless under Fed.R.Civ.P. 37(c)(1). The district court violated its
discretion in failing to invoke the mandatory exclusion sanction of Rule 37(c)(1), an error which
affected substantial rights of the plaintiff. Fed.R.Evid. 103.10
The majority opinion mischaracterizes Caskey’s testimony as greatly inconsistent with the
surveillance videotape. The plaintiff made clear in testimony that he received the wheelchair, after a
long waiting period, three weeks before the trial in order to make it easier for him to get around.
Caskey never claimed to use a wheelchair at the time the videotape was taken, indeed he testified that
he could walk “a couple of steps” without a cane. The video showed him walking from his truck to
a house. Moreover, the majority’s discussion of conflict between Caskey’s testimony and the
undisclosed evidence is not relevant to its holding. Chiasson, 988 F.2d at 517, specifically rejected
an impeachment exception to the exclusion of undisclosed evidence “because it flies directly in the

-- 13 of 15 --

14
face of the very purpose of discovery,” the open evaluation of each party of the other’s case before
trial. The purpose of open discovery is not about the right to avoid being caught in a lie, but about
avoiding the use of concealment and surprise as trial tactics, making a trial “less a game of blind
man’s b[l]uff and more a fair contest.” Id. citing United States v. Procter & Gamble Co., 356 U.S.
677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958).
F.R.C.P. 37(c)(1) contains an exception from exclusion when the defendant’s failure to
disclose is harmless. In this case, as in Chiasson, supra at 517, the effectiveness of the surveillance
video came not from its use as impeachment evidence, because it did not seriously conflict with Mr.
Caskey’s testimony, but in its use as a surprise meant to create the impression that the defendant
caught the plaintiff in a lie with the aid of a private investigator. Thus, not only was the defendant’s
failure to disclose the evidence not harmless, its value resulted from the defendant’s concealment of
the evidence from the plaintiff before the trial to be sprung on him in court. The district court should
have excluded the evidence as required by Rule 37(c)(1).
The district court’s admission of the undisclosed videotape also did not constitute harmless
error under Fed.R.Evid. 103. The nature of the surprise attack surely made a serious impact on the
jury’s assessment of Caskey’s credibility, and therefore on its assessment of the proportion of his
liability. Caskey’s explanation of the videotape, that his doctors recommended that he walk without
his cane for rehabilitation, but that he could not do so easily or often, rang hollow because it came
after the surprise admission of the videotape. The plaintiff’s credibility is a pervasive issue. Its effects
cannot be hermetically sealed off from the liability issue, especially not at a trial by jury.
The jury awarded damages to Caskey, but held him 80% responsible for the injury. Texas law
prohibited reco very for a claimant who was not less than 60% responsible. The influence of the
erroneous admission on fault assignment created an even greater impact on the result of the case than
in Chiasson, because Caskey received not just less but none of the damages computed by the jury.
The majority attempts to distinguish the present case from Chiasson because in that case

-- 14 of 15 --

15
defense counsel admitted at oral argument both that the video had greater impact because the
plaintiffs did not see it before trial, and that the defendant would have settled the case had it been
forced to disclose the video before trial. Indeed, one of the purposes of open discovery is to
promote settlement. Not surprisingly, the appellee in the present case does not admit so much, but
proper disclosure of the evidence would have encouraged settlement in this case as well by
diminishing much of the power of the surveillance videotape.
The discovery rules rely heavily on voluntary compliance, because a party can often never
know about evidence withheld by its opponent. With Fed.R.Civ.P. 37(c)(1), Congress ensured that
an undisclosing party may at least not make use of its own concealed evidence. The majority
weakens that incentive structure by affirming this verdict despite the admission of undisclosed
evidence harmful to the verdict.

-- 15 of 15 --