DECK v. TETER, 158 Wn. App. 1015 (2010)

Reversed by unpublished opinion per Spearman, J., concurred in by Ellington and Lau, JJ.

After the jury returned a defense verdict in this medical malpractice action against Dr. Andrew Deck, the trial court granted Ronald and Deborah Teter's motion for a new trial. Because the judge who presided over discovery matters did not abuse his discretion in excluding one of the Teters' expert witnesses, and because the alleged misconduct by defense counsel did not deprive the Teters of a fair trial, we hold the trial court erred in granting a new trial, and we reverse. Background

Ronald Teter was diagnosed with a tumor in his right kidney. Drs. Andrew Deck and David Lauter performed a laparoscopic procedure to remove the kidney. During the procedure, Mr. Teter's abdominal aorta was lacerated, and the laparoscopic procedure was converted to an open surgery. Dr. Michael Towbin, a vascular surgeon, repaired the aortic laceration. Immediately after the surgery, Mr. Teter developed compartment syndrome in his left leg. Compartment syndrome is a condition where the circulation or function of the tissue within a specific compartment of the body is being compromised because of increased pressure in that compartment. To address the compartment syndrome, orthopedic surgeon Robin Fuchs performed a fasciotomy on Mr. Teter. A fasciotomy involves making an incision on each side of the leg through the skin to release the fascia, the connective tissue, surrounding the muscles, so that pressure in the leg compartment is released.

Discovery and Witness Disclosures

On April 21, 2006, the Teters sued Dr. Deck and Dr. Lauter, claiming they negligently failed to convert the laparoscopic procedure to an open surgery in a timely fashion, thereby causing the post-operative compartment syndrome. The Teters later stipulated to dismiss Dr. Lauter. In May 2007, the trial date was continued to March 17, 2008, and in February 2008, upon the parties' joint motion, the trial date was again continued to September 22, 2008.

On June 2, 2008, Dr. Deck moved to compel the Teters to provide their primary witnesses for deposition, or alternatively, to exclude the witnesses from testifying at trial. The trial judge at the time was the Honorable Christopher Washington. Judge Washington declined to exclude the witnesses, but on June 11, he granted Dr. Deck's motion to compel. The judge directed that:

Plaintiffs shall provide names and available times, and dates for the depositions of plaintiffs' primary witnesses by June 20, 2008 . . . If

the depositions cannot be completed reasonably before trial, the court will consider a continuance of the trial date or other remedies.

The Teters failed to provide the deposition dates by June 20. Instead, on July 11, 2008, they moved to continue the trial date or, in the alternative, extend the discovery cutoff period through August. Dr. Deck opposed the motion and moved for sanctions. Judge Washington declined to continue the trial date or impose sanctions, but he did extend the discovery cutoff to August 29, 2008 to facilitate depositions. On August 21, Dr. Deck moved for an order setting a pretrial conference. He suggested that the conference was necessary because, among other things, only a week remained before discovery cutoff and the Teters had not yet provided witnesses' names, nor had they provided dates and times for possible depositions. Judge Washington granted the motion and scheduled the pretrial conference for September 17.

By the August 29, 2008 extended discovery cutoff date, the Teters had not yet complied with Judge Washington's June 11 order. Instead, on September 2, 2008, they served a trial witness list in which they listed as a urology expert: "Replacement Urologist/William Y. Duncan, III, M.D." The Teters had first stated they were seeking a replacement for this urology expert in January 2008, but never disclosed anyone specific, and never made anyone available for deposition.¹

On September 12, Dr. Deck moved to exclude seven of the Teters' physician witnesses and his physical therapist. Around the same time, the Teters also moved to exclude and/or limit the testimony of several defense expert witnesses.

On September 17, 2008 Judge Washington held the pre-trial conference. He refused to exclude or limit the testimony of any witnesses. Instead, he continued the trial date again, with a new trial date of January 12, 2009 and a new discovery cutoff of November 24, 2008. Judge Washington also ordered both parties to identify their experts and provide "a concise summary of the opinions expected to be offered regarding the standard of care, causation, and damages" by October 1, 2008.

The Teters did not comply with this order. On October 1, 2008, they served a witness disclosure which again listed as their urology expert "Replacement Urologist/William Y. Duncan, III, M.D." They admitted they could not "say with certainty at this time" what specifically would be the nature of the testimony of any potential replacement expert.

On October 22, 2008, Judge Washington held another pre-trial conference. He again gave the Teters latitude, giving them until October 29, 2008 to disclose their urology expert and provide a summary of his or her opinions.

The Teters violated this order too, disclosing no one October 29, and instead asking defense counsel for additional time. Judge Washington convened a third pre-trial conference on November 12, 2008. Again, he did not sanction the Teters.

Instead, he ordered that if the Teters failed to identify an expert urologist and disclose his or her opinions that day, they would not be permitted to call an expert urologist at trial. The Teters disclosed Dr. Robert Golden that day.

On November 24, 2008, the date of the new discovery cutoff, the Teters struck Dr. Golden as an expert witness because Dr. Golden had a professional and personal relationship with one of Dr. Deck's partners. The Teters stated, "[w]e will determine shortly if there will be a replacement for Dr. Golden." On December 10, the Teters advised defense counsel they intended to replace Dr. Golden with Dr. Thomas Fairchild. On December 12, the Teters provided a disclosure for Dr. Fairchild.

On December 29, 2008, Dr. Deck moved to exclude Dr. Fairchild as a trial witness. Judge Washington granted the motion on January 12, 2009. His order found that (1) the Teters had failed to comply with the Case Schedule Order; (2) the Teters had failed to comply with three separate court-ordered deadlines for disclosing a urology expert; (3) the Teters had failed to comply with the September 17, 2008 order requiring a concise summary of the expert testimony; (4) the Teters did not provide Dr. Deck with a reasonable opportunity to depose Dr. Fairchild; and (5) Dr. Deck and counsel had been prejudiced in trial preparation by these repeated failures.

The same day Judge Washington entered his order, the case was assigned to Judge Steven Gonzalez for trial. On January 13, 2009, the Teters informed Judge Gonzalez they would file a motion to reconsider Judge Washington's order, but they never did.

Trial

The trial of this case was very contentious. Counsel for both sides objected repeatedly and frequently. Judge Gonzalez expressed his displeasure with defense counsel on multiple occasions, reminding her not to make "speaking" objections. Judge Gonzalez was also frustrated with defense counsel's inability to have exhibits properly marked and to properly lay a foundation for marked exhibits. He stated:

Let me just say that I have found the performance this morning exasperating. Counsel knows how to mark exhibits in advance, show them to the witness, and knows what refreshing recollection is. I expect no more speeches in front of the jury this morning.

At the end of the day, the judge continued:

I'm also concerned about attempts to circumvent the court's ruling on admissibility of documents. It certainly appears that way by putting issues before the jury regarding documents in a purported attempt to lay foundation.

For disregard for protocol and rules of evidence which are repeated — and this is not the first court in which they have occurred — for continued speaking objections after clear direction from me not to do so, and what can only be described as feigned ignorance when I say that a document must be marked before it's shown to a witness, it certainly doesn't mean it has to be admitted before a witness can refer to it to refresh recollection. It is fairly fundamental and basic how you can refresh and when you can refresh a witness's recollection.

At no point during the trial did counsel for the Teters move for a mistrial based on any "speaking" objections or on defense counsel's questions while attempting to lay foundation. Regarding the Teters' expert witnesses, they relied on a general surgeon who was permitted to opine that Dr. Deck had violated the standard of care.

On January 20, 2009, after deliberating for about two hours, the jury returned a defense verdict.

Motion for New Trial

The Teters moved for a new trial, claiming Judge Washington erred in excluding Dr. Fairchild; the jury was erroneously instructed on the standard of care; and defense counsel's questions violated various orders in limine, and were so prejudicial as to deprive them of a fair trial.²Judge Gonzalez granted the motion under CR 59(a)(8), finding Judge Washington's exclusion of Dr. Fairchild was an "abuse of discretion, and a reversible error of law." Judge Gonzalez also granted the motion under CR 59(a)(1) and (2), finding that defense counsel attempted to expose the jury to contents of exhibits that had not been admitted into evidence; that counsel made numerous and improper speaking objections; and that counsel's representations about which witnesses would testify, and when, were misleading. Judge Gonzalez did not find any error with the jury instructions, nor did he find that defense counsel violated any orders in limine.³Judge Gonzalez also vacated a judgment entered on the verdict. The court denied Dr. Deck's motion for reconsideration, and he appeals. In granting the Teter's motion for a new trial, pursuant to CR 59(a)(8), the trial court found that the exclusion of Dr. Fairchild was "an abuse of discretion, and a reversible error of law" that violated the Teters' right to a fair trial. We disagree. Exclusion of a witness as a sanction for intentional or willful violations of a discovery order is within the sound discretion of the trial court. Burnet v. Spokane Ambulance,131 Wn.2d 484,494,933 P.2d 1036(1997). A court abuses this discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Id. However, a party's untimely designation of a witness, without reasonable excuse, will justify an order excluding the witness. Scott v. Grader,105 Wn. App. 136,140,18 P.3d 1150(2001).

Here, as described in detail above, over a five-month period, the Teters failed to comply with at least five separate court orders requiring them to identify witnesses, provide a summary of expert opinions, and make experts available for depositions. Despite Dr. Deck's several motions seeking sanctions, Judge Washington repeatedly resorted to non-punitive means to address the Teters' non-compliance. He continued the trial date, extended the discovery cutoff, and on at least three occasions gave the Teters more time to name an expert urologist. Only upon threat of exclusion of any urology expert did the Teters finally comply by naming Dr. Golden. Even then, less than two weeks later, the belatedly named expert withdrew due to a perceived conflict of interest. It was not until over two weeks later, and one month before trial, that the Teters finally provided Dr. Deck with their expert, Dr. Fairchild, and a summary of his opinion. Under these circumstances, Judge Washington did not abuse his discretion by excluding Dr. Fairchild after the Teters' designated him in an untimely fashion.

The Teters in their appellate briefing make the same explanations for missing deadlines they provided in their briefing to Judge Washington. But this was a dispute about discovery that was heard and resolved by the judge who had presided over and ruled upon months of discovery disputes. The issue is not whether another court would have exercised its discretion differently, but whether the ruling excluding the witness was manifestly unreasonable, based on untenable grounds or made for untenable reasons. Burnet,131 Wn.2d at 494. In the circumstances presented here, we conclude, that it was not.

The Teters also contend, and Judge Gonzalez agreed, that Judge Washington erred by failing to consider a lesser sanction before excluding Dr. Fairchild, and by failing to find that the Teters intentionally and willfully violated discovery orders. We disagree. The proper question is not whether the trial court included the words "willful" and "lesser sanction" on the last order to be issued, rather, the proper question is whetherthe record as a wholereflects that the court found that the violation was willful, and that the court considered lesser sanctions. See Scott,105 Wn. App. at 142(expert can properly be excluded so long as it is "apparent from therecordthat the trial court explicitly considered whether a lesser sanction would have sufficed, and whether the disobedient party's refusal . . . was willful or deliberate and substantially prejudiced the opponent's ability to prepare for trial.")⁴(citing Burnet,131 Wn.2d at 494).

Here, the record plainly reflects that Judge Washington carefully considered and repeatedly utilized lesser sanctions, and also that he found the violations were willful. "`A party's disregard of a court order without reasonable excuse or justification is deemed willful.'" Magana v. Hyundai Motor America,167 Wn.2d 570,584,220 P.3d 191(2009) (quoting, Rivers v. Washington State Conference of Mason Contractors,145 Wn.2d 674,686-87,41 P.3d 1175(2002)). Judge Washington's order indicates he considered how the Teters failed to comply with not only the Case Schedule Order, but also at least three separate disclosure deadlines ordered by the court. Judge Washington also found that the Teters disregarded his order that they provide defendants with a summary of the opinions of their experts. Further, he found these repeated violations prejudiced Dr. Deck. As such, the record clearly reflects that Judge Washington considered and found that the Teters violations were willful and prejudiced Dr. Deck. Likewise, the record reflects that Judge Washington only excluded Dr. Fairchild after months of giving the Teters opportunities to comply with multiple orders, including the order that the Teters disclose a urology expert and opinion on November 12, 2008 or face exclusion of the witness.

In sum, the record reflects that Judge Washington considered lesser sanctions and found the violations were willful. As such, he did not abuse his discretion in excluding Dr. Fairchild, and it was error to grant the Teters a new trial on that basis. The Teter's motion for a new trial was also granted on grounds that defense counsel attempted to expose the jury to contents of exhibits that had not been admitted into evidence; that counsel made numerous and improper speaking objections; and that counsel's representations about which witnesses would testify and when, were misleading. The trial court concluded that these alleged acts represented irregular proceedings or misconduct warranting a new trial under CR 59(a)(1) and (2). We disagree for the reasons described below.

Defense counsel's foundation questions and speaking objections

No specific line of questioning or particular speaking objection by defense counsel is identified that allegedly prejudiced the jury. Nor is the manner in which the alleged misconduct caused prejudice specified. The order generically states that the record included "many examples" of defense counsel's "improper speaking objections" and questions "expos[ing] the jury to the contents of exhibits that had not been admitted into evidence." We are left, however, to speculate as to which "improper speaking objection" prejudiced the Teters and in what way. Likewise, we must guess at what contents of which unadmitted exhibits the jury was improperly exposed to and whether and in what way the Teters may have been prejudiced.

We hold that the findings relied upon by the trial court are too general and nonspecific to support a conclusion that the proceedings were so irregular or that the alleged misconduct was so flagrant that the Teters did not receive a fair trial. Additionally, even if we were to assume the specific questions and objections identified by the Teters in their briefing were the same specifics relied upon by Judge Gonzalez, none of those questions or objections appeared so out of the ordinary or so irregular or flagrant as to deprive the Teters of a fair trial.

Moreover, our Supreme Court has held that a plaintiff alleging prejudicial misconduct so severe as to warrant a new trial cannot sit on his or her hands and wait for an adverse jury verdict before moving for a new trial. In Nelson v. Martinson,52 Wn.2d 684,328 P.2d 703(1958), plaintiffs sued the owner of a cow for injuries sustained when their car struck the cow. The jury returned a defense verdict, plaintiffs moved for a new trial, and the trial court granted the motion on grounds that defense counsel's cross-examination and closing argument were improper. Nelson, 52, Wn.2d at 688-89. The Supreme Court reversed and reinstated the defense verdict, holding that plaintiffs waived any argument regarding counsel's alleged misconduct:

We hold, in the instant case, that any misconduct on the part of appellant's counsel could have been cured by an instruction and, therefore, . . . the respondents waived any objection they might otherwise have been able to urge on this appeal.

Further, the respondents were aware of all the acts of misconduct set forth in the order of the trial court when they voluntarily submitted their case to the jury. They did not move for a mistrial

but were willing to wait and gamble on a favorable verdict and then, for the first time, when the verdict was adverse, they claimed error.

Id. at 689. Here, as in Nelson, the Teters did not request curative instructions and never once moved for a mistrial. Instead, they "gamble[d] on a favorable verdict[,]" and claimed error only after the jury found against them. Id. As was the case in Nelson, the order granting a new trial here was error.

Alleged representations about witness scheduling.

The motion for a new trial was also granted on grounds that "defense counsel made misleading representations to the Court and to plaintiffs' counsel about witnesses the defendant was intending to call to testify." According to counsel for the Teters, they suffered prejudice in that they were forced to prepare for the testimony of Dr. Lauter, who was stricken as a witness when the defense ran out of time.

We disagree. First, the Teters waived this argument just as they waived their arguments about defense counsel's alleged prejudicial misconduct. See Nelson,52 Wn.2d at 688-89. Second, even if the argument had not been waived, it is difficult to understand how the Teters suffered prejudice by being "forced" to prepare for the testimony of Dr. Lauter. Dr. Lauter was originally one of the defendants in this case, actually performed the surgery with Dr. Deck, was listed on trial witness disclosures, and was under subpoena to testify at trial. This was a twelve-day trial with a large pool of potential lay and medical expert witnesses, as well as court-imposed time limits for the parties to present their cases. Under the circumstances, it is difficult to discern any prejudice the Teters may have suffered because Dr. Deck chose not to call Dr. Lauter as a witness. In addition, to the extent any prejudice may have occurred, it was insufficient to warrant setting aside the jury verdict. The Teters further contend the order granting a new trial was properly granted because the trial court erroneously instructed the jury as to the standard of care. Judge Gonzalez rejected this argument, as do we. Instructions are adequate if they allow each party to argue its theory of the case, are not misleading, and when read as a whole properly inform the jury of the applicable law. Douglas v. Freeman,117 Wn.2d 242,256-57,814 P.2d 1160(1991). The standard of care instruction given by the court reads as follows:

A physician owes to the patient a duty to comply with the standard of care for one of the profession or class to which he or she belongs.

An [sic] urologist has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent urologist in the State of Washington acting in the same or similar circumstances at the time of the care and treatment in question.

Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.

This instruction permitted the parties to argue their theories of the case. Counsel for the Teters repeatedly argued during closing that Dr. Deck had very limited experience with the particular laparoscopic procedure used in the case, and that he "violated the standard of care for a reasonably prudent physician in the State of Washington[.]"

The Teters do not contend the instruction inaccurately states the law. Rather, they claim the instruction is misleading and improper because it permitted counsel for Dr. Deck to cast doubt upon their standard of care expert, who was a general surgeon, not a urologist. The Teters do not explain, however, why the instruction is improper, and neither of the cases they cite so hold. In Richards v. Overlake Hosp. Medical Center,59 Wn. App. 266,796 P.2d 737(1990) and Atkins v. Clein,3 Wn.2d 168,100 P.2d 1(1940), the standard of care instructions were faulty, not because they permitted the defense to challenge the credibility of plaintiffs' expert, but rather because they incorrectly stated that a specialist was held only to that degree of skill and care used by a reasonably prudent general practitioner. Richards,59 Wn. App. at 276; Clein,3 Wn.2d at 170-71.

The instructions here permitted each party to argue its theory of the case, were not misleading, and when read as a whole, properly informed the jury of the applicable law.⁵ For the reasons described above, we conclude that the trial court erred in granting the Teters' motion for a new trial. Accordingly, we reverse the order granting a new trial, reinstate the jury verdict dismissing the claims against Dr. Deck, and reinstate the vacated judgment on the verdict.

WE CONCUR: