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Ojo v. Swedish Health Services5/9/2005
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.
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.
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,' wh
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