Blair v. TA-Seattle East No. 176
Blair v. TA-Seattle East No. 176
Opinion of the Court
¶1 A trial court has the authority to strike a party’s witnesses as a sanction where there is a showing of intentional or tactical nondisclosure, willful violation of a court order, or unconscionable conduct. A party’s failure to meet specific court ordered discovery deadlines is a presumptively willful violation of the court’s orders. Here, a personal injury plaintiff repeatedly failed to timely disclose possible witnesses and offered no reasonable explanation for failure to do so. We hold that the trial court acted within its discretion in striking some of the plaintiff’s witnesses. Further, because causation could not be established without expert medical testimony, the trial court properly granted summary judgment dismissal. Thus, we affirm.
FACTS
¶2 On May 12, 2003, Maureen Blair, an experienced commercial truck driver, stopped at a truck stop off Inter
¶3 On May 10, 2006, under former King County Local Rule (KCLR) 4 (2004), the trial court issued an order setting a case schedule. The trial date was set for October 22, 2007. The case schedule also required the parties to disclose possible primary witnesses by May 21, 2007, and any additional possible witnesses by July 2, 2007.
¶4 TravelCenters then moved to strike Blair’s disclosure of possible witnesses because it was untimely and for no legitimate cause in violation of the trial court’s case scheduling order. On August 14, 2007, the trial court granted that motion in part and denied it in part, stating:
Witness # 11 in Plaintiff’s Disclosure of Possible Primary Witnesses is stricken. Of the remaining 14 witnesses, plaintiff shall select 7 to be called as witnesses and notify defendant by August 17, 2007 which 7 are to be called. The motion to strike 7 of the 14 witnesses is granted. Plaintiff shall pay Defendant $750.00 in terms.
¶5 The trial court did not enter written findings when it struck 7 of Blair’s 14 untimely disclosed possible witnesses.
¶6 On October 8, Blair filed a pretrial witness list under former KCLR 16(a)(4) (2006), naming 11 possible witnesses, including Dr. Higgs and Drury. On October 15, the trial court granted TravelCenters’ motion to strike those 2 witnesses. Without Dr. Higgs or Drury, Blair had no expert medical witnesses for trial.
¶7 On October 19, TravelCenters moved for dismissal or summary judgment because Blair could not meet her burden of proof absent expert medical opinion. Without such testimony, TravelCenters argued that Blair could not prove her degenerative hip arthritis and related surgeries were the result of her May 12, 2003 fall at the truck stop
ANALYSIS
¶8 A trial court has broad discretion in deciding whether and how to sanction a party for violations of
¶9 Blair argues that the harsh sanctions cannot be sustained because of the court’s failure to enter written findings explaining the court’s rationale in accordance with Burnet v. Spokane Ambulance.
¶10 The purpose of imposing sanctions generally is to deter, to punish, to compensate, and to ensure that the wrongdoer does not profit from the wrong.
¶11 Here, the trial court tailored its sanctions to the circumstances present. Earlier in the discovery process when Blair’s deficient disclosure was merely untimely, the trial court’s sanctions did not exclude any particular witnesses, save one, and left Blair to make the determination. The trial court did not err in excluding the two expert witnesses Blair identified only a few weeks prior to trial.
¶12 Blair’s argument that she reserved the right to call any possible witnesses previously disclosed by Travel-Centers under former KCLR 26(b) is without merit.
¶13 Blair was barred from adding additional witnesses other than the 7 identified after the court ordered 7 of the 14 untimely disclosed stricken. The court’s denial of the clarification in which Blair specifically requested she be allowed to name as possible witnesses some that had previously been identified by TravelCenters should have left no doubt as to the court’s order. And again, at no time did Blair provide the trial court with any valid reason for her delay in failing to comply with the case schedule’s discovery deadlines. Difficulty in locating possible witnesses’ contact information or in timely taking depositions of known possible witnesses does not excuse a party from compliance with court ordered deadlines. Blair had received TravelCenters’ disclosure that included information for Dr. Higgs and Drury in May 2007 but made no attempt to depose or otherwise secure their appearance at trial until that August.
¶14 Without expert medical testimony, Blair cannot establish the existence of an element essential to her claim
¶15 The trial court is affirmed.
Review granted at 168 Wn.2d 1006 (2010).
See former KCLR 26 (2005).
The trial court denied Blair’s subsequent request to add to her possible witness disclosure list an entirely new witness, an employee from the truck stop, because the witness’s contact information had only recently been discovered.
Neither Dr. Higgs nor Drury was ever deposed, so it is unknown what the substance of their testimony at trial might have been.
Goodman v. Boeing Co., 75 Wn. App. 60, 84, 877 P.2d 703 (1994), aff’d on other grounds, 127 Wn.2d 401, 899 P.2d 1265 (1995).
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
Burnet, 131 Wn.2d at 494; Allied Fin. Servs., Inc. v. Mangum, 72 Wn. App. 164, 168, 864 P.2d 1 (1993).
Allied Fin. Servs., 72 Wn. App. at 168-69; Gammon v. Clark Equip. Co., 38 Wn. App. 274, 280, 686 P.2d 1102 (1984).
131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
Blair cites Division Three’s opinion in Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d 978 (2007), for the proposition that this failure is reversible error per se. We decline to follow Peluso and its reasoning interpreting the Burnet decision.
156 Wn.2d 677, 687-88, 132 P.3d 115 (2006).
Wash. State Physicians Ins. Exch. & Ass’n v. Eisons Corp., 122 Wn.2d 299, 355-56, 858 P2d 1054 (1993).
See Woodhead v. Disc. Waterbeds, Inc., 78 Wn. App. 125, 129, 896 P.2d 66 (1995) (citing Wagner v. McDonald, 10 Wn. App. 213, 217, 516 P.2d 1051 (1973)).
Blair relies on former KCLR 26(b) and the official comment to the rule:
(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.
(3) Scope of Disclosure: Disclosure of witnesses under this rule shall include the following information:
(A) All Witnesses. Name, address, and phone number.
(B) Lay Witnesses. A brief description of the witness’s relevant knowledge.
(C) Experts. A summary of the expert’s opinions and the basis therefore and a brief description of the expert’s qualifications.
*911 (4) Exclusion of Testimony. Any person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause and subject to such conditions as justice requires.
Official Comment
This rule does not require a party to disclose which persons the party intends to call as witnesses at trial, only those whom the party might call as witnesses. Cf. LR 16(a)(3)(A) (requiring the parties, not later than 21 days before trial, to exchange lists of witnesses whom each party “expects to call” at trial) and Official Comment to LR 16.
This rule sets a minimum level of disclosure that will be required in all cases, even if one or more parties have not formally requested such disclosure in written discovery. The rule is not intended to serve as a substitute for the discovery procedures that are available under the civil rules to preclude or inhibit the use of those procedures. Indeed, in section (f) the rule specifically provides to the contrary.
Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Reference
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- Maureen T. Blair v. TA-Seattle East No. 176
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