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Ojo v. Swedish Health Services5/9/2005
ich 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.
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).
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
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