Opinion
No. 54778-0-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-16656-1. Judgment or order under review. Date filed: 08/10/2004. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), David Andrews Williams, Attorney at Law, 9 Lake Bellevue Dr Ste 104, Bellevue, WA 98005-2454.
Counsel for Defendant(s), Tyna Ek, Attorney at Law, 710 9th Ave, Seattle, WA 98104-2017.
Counsel for Respondent(s), Mark W Conforti, McIntyre Barns, 1215 4th Ave Ste 920, Seattle, WA 98161-1030.
Mary K. McIntyre, McIntyre Barns PLLC, 1215 4th Ave Ste 920, Seattle, WA 98161.
Trina Danielle Williams, Attorney at Law, 1215 4th Ave Ste 920, Seattle, WA 98161-1030.
In this medical malpractice litigation, the plaintiff learned shortly before trial that his primary expert witness could not testify because of a conflict of interest. The superior court excluded the testimony of the plaintiff's sole remaining expert because the witness had been disclosed as a rebuttal witness instead of one who would testify during the case in chief. Without expert testimony, the plaintiff's claims were dismissed on summary judgment. Under the facts of this case, we conclude the superior court abused its discretion in excluding the testimony. Because its summary judgment decision was precipitated by the exclusion of testimony, we reverse and remand for further proceedings.
BACKGROUND
In January 2003, Jyde Ojo filed a medical malpractice suit against three defendants: Swedish Health Services d/b/a Swedish Medical Center; Dr. Michael Watt, Ojo's orthopedic surgeon; and Watt's practice group, Proliance Surgeons d/b/a Ballard Orthopedics Fracture Clinic. Ojo's claims against Swedish related to emergency care he received in February 2000. Ojo alleged Swedish Emergency Department physicians failed to properly diagnose his acute compartment syndrome, resulting in progressive damage to the muscles and nerves in his leg, which surgery could not fully repair.
When Ojo filed his lawsuit in King County Superior Court, the court issued a case schedule under the local rules, setting deadlines for the parties to disclose primary and rebuttal witnesses. Trial was set for June 21, 2004.
King County Local Rule (KCLR) 4.
KCLR 26 governs disclosure of witnesses. It provides, in part:
(b) Disclosure of Primary Witnesses. Required Disclosures.
(1) Disclosure of Primary Witnesses: Each party shall, no later than the date for disclosure designated in the Case Schedule, disclose all persons with relevant factual or expert knowledge whom the party reserves the option to call as witnesses at trial.
(2) Disclosure of Additional Witnesses: Each party shall, no later than the date for disclosure designated in the Case Schedule, disclose all persons whose knowledge did not appear relevant until the primary witnesses were disclosed and whom the party reserves the option to call as witnesses at trial.
Although the rule does not refer to additional witnesses as `rebuttal witnesses,' the actual case schedules clarify that the terms have the same meaning. See Clerk's Papers at 32, 245.
Ojo timely disclosed Dr. James Green, an orthopedic surgeon, as an expert witness who would testify `as to the standard of care in the issues of this case, proximate cause and damages.' Clerk's Papers at 9. Swedish named an emergency physician among its primary witnesses. The parties exchanged additional witness disclosures, and Ojo identified Dr. Charles Sheppard, an emergency room physician, as a rebuttal expert.
Dr. Green later realized he had a conflict of interest. Ojo moved for a continuance of trial and discovery so he could find a replacement expert. Swedish opposed the motion to the extent that it would allow Ojo to name `any additional new witnesses.' Clerk's Papers at 19. Swedish pointed out Ojo had not designated an emergency physician expert as a primary witness, and argued the only equitable solution was `to keep the parties in the same position they were at the time of the witness disclosures — i.e., Plaintiff identifying and having the use of an orthopedic surgeon expert.' Id. The court ordered a new trial date of November 8, 2004, but limited the grant of continuance as follows:
That Plaintiff's motion for extension of time to disclose primary witnesses and trial continuance is GRANTED WITH THE FOLLOWING CONDITIONS:
a. That Plaintiff may replace James Green, M.D., as a primary expert with another orthopedic surgeon, within 30 days of this order;
b. That Plaintiff is precluded from naming any additional experts beyond those disclosed in Plaintiff's Primary Witness List and additional witness list previously filed in this action.
Clerk's Papers at 35. Ojo did not replace Green with an orthopedic expert, and did not seek to add or redesignate any other witness within the time allowed by the court.
At oral argument, Ojo explained he was unable to find a new orthopedic expert within the 30-day deadline, and intended to rely on Dr. Sheppard.
Swedish moved for summary judgment on June 29, 2004, on grounds that Ojo could present no competent expert testimony to establish his malpractice claims. Ojo responded by submitting the declaration of Dr. Sheppard, who opined that the Swedish emergency physicians had fallen below the standard of care. On the same day, Ojo filed a `Plaintiff's Primary Witness Designation,' which stated, `In addition to the primary witnesses listed in Plaintiff's original designation, Plaintiff hereby gives notice that Dr. Charles Sheppard, M.D., will testify as a primary witness as well.' Clerk's Papers at 118.
See RCW 7.70.040; Harris v. Robert C. Groth, Inc., P.S., 99 Wn.2d 438, 449, 663 P.2d 113 (1983) (expert testimony required to establish standard of care and most aspects of causation in a medical malpractice case).
Swedish moved to strike Sheppard's declaration, and argued it would be prejudiced if the court allowed Sheppard to testify in Ojo's case in chief. The court granted Swedish's motion for summary judgment on July 23, 2004. Although its order states the court considered Sheppard's declaration, it appears the court granted Swedish's motion to strike as well. Ojo unsuccessfully moved for reconsideration, and this appeal followed.
DISCUSSION
`The decision to exclude witnesses who are not properly disclosed in discovery is within the trial court's discretion.' Dempere v. Nelson, 76 Wn. App. 403, 405-06, 886 P.2d 219 (1994); Scott v. Grader, 105 Wn. App. 136, 139, 18 P.3d 1150 (2001).
A court abuses its discretion when its decision is exercised on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The decision to exclude or allow testimony depends, in part, upon whether the proponent intentionally violated discovery rules. `[A] trial court should not exclude testimony unless there is a showing of intentional or tactical nondisclosure, willful violation of a court order, or other unconscionable conduct by the procurer of the testimony.' Miller v. Peterson, 42 Wn. App. 822, 825, 714 P.2d 695 (1986) (citing Barci v. Intalco Aluminum Corp., 11 Wn. App. 342, 351, 522 P.2d 1159 (1974)). Ojo contends he has committed no such misconduct.
We agree. Ojo timely disclosed two expert witnesses who would testify as to standard of care, causation, and damages: Dr. Green, in the case in chief, and Dr. Sheppard, in rebuttal. When Ojo learned Green could not testify, he promptly moved for a continuance to replace the expert, but was unable to procure another witness within the court's 30-day timeframe, and was left with no option but to rely on Sheppard. He did not, however, redesignate Sheppard as a case-in-chief witness.
Swedish insists that the court's order granting the continuance restricted Ojo to replacing the orthopedic surgeon with another in the same field, and argues this should be viewed as prohibiting Ojo from calling an emergency medicine expert during the case in chief. This argument is problematic. In the second part of the order, the court states that Ojo may rely on those experts he had already `disclosed in Plaintiff's . . . additional witness list previously filed in this action.' Clerk's Papers at 35 (emphasis added). From this, Ojo could reasonably conclude that timely disclosure of Sheppard in the additional witness list satisfied the order and secured Sheppard's status as a primary witness. While better practice would have been an immediate redesignation of Sheppard as a primary witness, we see no intentional or tactical nondisclosure, willful violation of a court order, or other unconscionable conduct.
Where there has been no misconduct, a decision to exclude or allow testimony involves several factors:
(a) the presence or absence of good faith attempts by the proponent of the witness to comply with the rules of discovery, (b) the availability or discoverability of the witness at an earlier time, (c) the circumstances of the proponent at the time of the securing of the witness, i.e., whether a physical injury or illness had progressed to a point where diagnosis and/or prognosis was possible and/or whether the passage of time had made the consequences of the acts of the parties discernible to an expert witness at an earlier time, (d) the materiality of the proposed testimony to the proponent, (e) the extent of surprise to the opponent, (f) the availability of opportunity to the opponent to depose the witness, (g) the availability of opportunity to the opponent to prepare for cross-examination, (h) the opportunity to the opponent to secure contradicting witnesses, (i) the prejudice presented to a proponent or opponent's case if a continuance is granted, (j) the impact upon both parties of the expenses of delay, and (k) the ability of an imposition of costs upon a proponent to remedy any hardship imposed upon an opponent by the late calling of a witness.
Miller, 42 Wn. App. at 825 (quoting Barci, 11 Wn. App. at 349-50). Chief among these concerns is prejudice to the opposing party. Miller, 42 Wn. App. at 826; Barci, 11 Wn. App. at 350. We are struck by the complete absence of prejudice to Swedish in allowing Sheppard to testify in Ojo's case in chief.
In its argument to the trial court, Swedish explained that allowing Sheppard to testify would cause it harm because `not only would Swedish potentially fail at summary judgment, but Plaintiff would now have a case in chief expert when he did not have one before.' Clerk's Papers at 123. Swedish never deposed Green, however, so it is unclear on what grounds it makes this assumption. Ojo did not designate Green as a witness to the standard of care of an orthopedic surgeon. Rather he was designated generally as a witness on the question of standard of care, causation, and damages. Nothing in the record suggests Green would not be competent to testify as to the standard of care for a physician treating an orthopedic emergency. In his argument to this court, Ojo stated he had planned to call Green as an expert in both fields. `So long as a physician with a medical degree has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue, `[o]rdinarily [he or she] will be considered qualified to express an opinion on any sort of medical question, including questions in areas in which the physician is not a specialist.'' White v. Kent Medical Center, Inc., P.S., 61 Wn. App. 163, 173, 810 P.2d 4 (1991) (citing 5A K. Tegland, Wash. Prac., Evidence sec. 290[2], at 386 (3d ed. 1989)). Swedish's assumption that Green could not testify as to the standard of care required in Ojo's emergency treatment is therefore unfounded. Without this assumption, it is plain that Swedish can show no prejudice.
Even if Swedish were correct that Green could not have testified against Swedish, other factors also weigh in favor of allowing Sheppard to testify in Ojo's case in chief. First, Swedish suffered no surprise; it was on notice several months before the amended trial date that Ojo intended to call Sheppard as a witness on standard of care. Second, Swedish was at no disadvantage in its preparation for trial — it had already secured its own emergency medicine expert and still had several months in which to depose Sheppard and prepare for cross-examination. Most importantly, the result of the ruling is that Ojo is foreclosed from litigating his claim. Although we encourage enforcement of local rules, this result is inconsistent with the principle that court rules must be construed to secure the just determination of every action.
KCLR 1; CR 1.
Any violation of the case scheduling order and court rules in this case was technical and minor. Under the circumstances, we conclude the trial court abused its discretion by excluding Sheppard's testimony. Because the court's decision granting Swedish summary judgment of dismissal was based upon this exclusion, we reverse and remand for further proceedings.
We note the court's decision to exclude Sheppard's testimony had the same effect as a decision to dismiss a case with prejudice for discovery abuse. In Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 686, 41 P.3d 1175 (2002), our Supreme Court noted that such a decision should not be made lightly, and is only appropriate when it is `apparent from the record that (1) the party's refusal to obey the discovery order was willful or deliberate, (2) the party's actions substantially prejudiced the opponent's ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would probably have sufficed.'
BECKER and BAKER, JJ., concur.