This is a problem. There is a good chance that defense counsel will be armed with this information as part of their trial prep. You don't want your attorney to hear about this for this first time during your wife's cross examination. He will lose all credibility before the jury and it will be difficult if not impossible to rehabilitate your case. Although you may have already jeopardized the case, do not compound the problem by not telling your attorney. Do it now.
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Why wouldn't you tell your attorney everything? I would assume that he asked you if there were any prior injuries to that shoulder. Was your wife asked at her deposition if she ever injured her shoulder? Did she say "no"? If they know about it and use it during cross-examination your wife will appear to be a liar; particularly since your attorney probably stated that your wife had no pre-existing injuries. You should speak with your attorney immediately.
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She must disclose it. The failure to disclose will hurt your case far more than the fact your wife had a prior injury. If it was asymptomatic for many years it does not mean anything or at worst that the new injury lit it up. Disclose immediately and deal with the fallout. Bad facts hurt your case, but deliberate falsehood undercut everything you say.
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The plaintiff bar has a difficult time as it is dealing with "tort reform" jurors for reasons like this. You should always be candid with your attorney, no exceptions. Contact your attorney and tell him what is going on. As a trial attorney that tries these exact types of cases I can tell you a simple fact. You can always deal with prior injuries in a cariety of ways, pre existing injuries DO NOT bar you from recovery. But, being deceitful is not only going to get you no where it will likely cost your attorney money. We must invest thousands of dollars to get cases to trial. At the end of the day you are doing everyone a disservice and perpetuating the misconception that our court systems are used for pecuniary gain as opposed to attaining a semblance of justice. Assuming there have been depositions and written discovery your wife has sworn, under oath, that she did not have any pre existing injuries. This is the definition of perjury if she takes the stand and lies under oath. All of this is bad and your attorney has the right to know since they may be walking into a virtual trap if they missed a non party record that was requested by the defense.
She could be screwed. She committed perjury in her deposition. The defense likely knows about it and will cross examine her at trial and the jury will not like her. I suggest you come clean and settle if you can.
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The sad thing is that aggravation of an injury entitles you to the same amount as if you hadn't been injured in most cases. There is this thing called the "eggshell plaintiff rule" where defendants have to "take a plaintiff as they find them." Like if you have a very weak skull and die in a 20mph car accident that wouldn't kill most people, the defendant is still liable for the death. Just like your wife's shoulder.
Your wife and possibly you as well, perjured yourselves most likely at the oral deposition. Your attorney is entitled and would be perfectly justified in dropping your case like a hot potato. What type of reasoning possessed you and her to lie to your own attorney? You prior injury could easily have been handled by "you take your victim as you find her" doctrine. Now, you and she will have zero credibility to the jury on everything from pain and suffering to limitations of function, etc. I hope other readers take an object lession here.
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The shoulder is a complicated joint with many different parts. Perhaps a review of the prior records will show that the injuries are quite different. Thus it's best to advise your attorney so he or she can compare the injuries and reconcile them so any damage to credibility will be limited.
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