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Ojo v. Swedish Health Services5/9/2005
, (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.
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.
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