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Lancaster v. Perry4/4/2005
Concurring: Ann Schindler, C. Kenneth Grosse
PUBLISHED OPINION - Motion to publish granted June 7, 2005
Under King County Local Rule (KCLR) 26(f), witnesses not timely disclosed may not testify at trial, absent a showing of good cause. Here, the defendant failed to disclose his expert witness and did not show good cause for this failure. Moreover, the defendant did not move for a CR 35 examination of the plaintiff until after the disclosure deadlines had passed and the trial court entered an order excluding any undisclosed witnesses. Finding no abuse of discretion, we affirm.
FACTS
Troy Lancaster sustained injuries when he was involved in a rear-end automobile accident with Harold Perry. Lancaster sued Perry for his injuries. Perry conceded liability and that Lancaster's injuries were the result of the accident. In Plaintiff's First Set of Interrogatories, Lancaster requested the identification of any expert witnesses. In response, Perry objected to the question, stating, "Defendant will identify experts pursuant to the Local Rules." The trial court set the primary witness disclosure deadline for September 8, 2003, rebuttal witness disclosure deadline for October 20, 2003, discovery cut-off date for December 22, 2003, and trial for February 9, 2004. On September 4, 2003, Perry filed his disclosure of primary witnesses, stating, "Defendants will call those healthcare professionals who will conduct a CR 35 Examination of the Plaintiff. This CR 35 Examination has not been scheduled at this time and, accordingly, Defendants cannot identify those professionals who may conduct the examination."
On October 20, 2003, the rebuttal witness disclosure deadline, Perry made the following statement:
Defendants will call those healthcare professionals who will conduct a CR 35 Examination of the Plaintiff. This CR 35 Examination has not been scheduled at this time and, accordingly, Defendants cannot identify those professionals who may conduct the examination. However it is likely the CR 35 examination will be conducted by either Dr. Robert Price or Dr. Patrick Baze or Dr. Larry Gorman.
The parties attended a mediation on November 10, 2003, but did not settle. Two days later, Lancaster filed a Motion to Exclude Undisclosed Expert and Fact Witnesses, arguing that Perry had not complied with KCLR 26 and CR 26(b)(4). At this point, Perry had not yet requested a CR 35 examination. In response to this motion, Perry argued that he had complied with the local rules and identified dates in which Dr. Robert Price was available to conduct the CR 35 examination. On November 26, 2004, the trial court entered an order striking Perry's "undisclosed" witnesses. The court specifically found that Perry's actions were "done intentionally and/or for tactical advantage." Additionally, the trial court found that no just cause under KCLR 26(e) existed to allow any undisclosed witnesses to testify. The court noted, "KCLR 26 needs to be taken more seriously."
On December 4, 2003, Perry moved for reconsideration of the trial court's order striking his witness and for the first time sought an order compelling Lancaster's attendance at a CR 35 examination. The trial court denied Perry's motion. The case proceeded to trial before a jury, where Perry was not allowed to present expert testimony. The jury awarded a verdict for Lancaster, and the trial court entered a judgment on the verdict against Perry. Perry moved for a new trial. The trial court denied Perry's motion. Perry appeals.
STANDARD OF REVIEW
We review a trial court's decision to exclude a witness for an abuse of discretion. Burnet v. S
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