There are a lot of things that are debatable in the law. In those cases, a judge may rule against your client on an issue, but as long as you understand how and why the judge reached the result they did, you shrug your shoulders and move on. On the other hand, sometimes you run into a case where you think to yourself, “What on earth was that judge thinking?” I had that reaction yesterday when reading an unpublished opinion out of Division II of the Washington Court of Appeals in Caldera v. Parsons. In that case, the trial court excluded plaintiff’s expert witness from testifying at trial because the expert was disclosed late. *
Now, Washington state courts work differently than the federal courts on this issue. If you’re a civil trial lawyer in Washington, the first thing that should jump to mind after hearing a case is about witness exclusion is Burnet. Burnet v. Spokane Ambulance is a seminal Washington Supreme Court case from 1997 holding that before a trial court may impose any of the harsher remedies for discovery violations, it must first consider whether (1) the violation was willful or deliberate, (2) whether that party’s opponent suffered substantial prejudice in preparing for trial, and (3) whether any lesser sanction would suffice to cure the prejudice. Burnet was about the trial court’s dismissal of some of the plaintiff’s claims as a result of the plaintiff’s failure to disclose details about those claims—it was not about exclusion of witnesses.
But in 2006, in Mayer v. Sto Industries, the court explicitly held the Burnet analysis must be done before exclusion of witnesses, confirming that any remedy that affects a party’s ability to present its case on the merits requires the Burnet analysis.
And then between 2011 and 2015, we get four more Supreme Court decisions—which is a lot over a relatively short period of time—all about exclusion of witnesses in various different situations. In those cases, the trial courts either didn’t consider the Burnet factors, failed to include its Burnet analysis in the order, or ruled the Burnet analysis was not required. The Supreme Court reversed three of those decisions and in the last one, held the exclusion was error, but that error was harmless.
All of those cases basically stand for the proposition that court really really REALLY meant it when it said the Burnet analysis was required before excluding a witness, regardless of how or when the issue arises. In 2013, in Jones v. City of Seattle, the court even made the pointed observation that “trial courts have been required to perform the Burnet analysis before excluding witnesses for late disclosure since at least 2006.” In Jones, the defense identified 3 witnesses after trial had already begun, and the court said the Burnet analysis was still required.
Further, the Supreme Court has said multiple times that the trial court’s consideration of the Burnet factors needs to be done on the record, whether through a colloquy with counsel or oral findings on the record, or through written findings. That is the only way for a reviewing court to know why the trial court made the decision it did.
So along comes the current case, Caldera v. Parsons. There, the plaintiff is injured in a car crash. The defendant files a motion to exclude plaintiff’s medical expert, arguing he was disclosed two months after the discovery cutoff in violation of the case scheduling order and the plaintiff failed to provide the substance of that doctor’s opinions. (The plaintiff disputed defendant’s allegations, but that isn’t relevant here.) In opposing the motion to exclude, Plaintiff argued the trial court was required to perform the Burnet analysis and provided an extensive analysis of the Burnet factors.
Yet despite all of this case law, the trial court just … didn’t do the Burnet analysis. In its written order, the trial court granted the defendant’s motion to exclude, listed the documents the court considered, but failed to address the Burnet factors or provide any explanation for its ruling.
In a motion for reconsideration/motion in limine, the plaintiff sought to allow the testimony of her medical expert, again pointing out that the expert could not be excluded without conducting the Burnet analysis. The trial court again denied the motion, and the written order said only “for all the reasons previously found in the court’s [prior order].”
The trial was continued due to health issues of plaintiff’s counsel. The plaintiff again filed a motion to allow the testimony of plaintiff’s medical expert. The trial court again denied it, stating the plaintiff was asking “for another bite at the apple” and the case schedule still applied even though trial had been continued.
At this point, the plaintiff’s lawyer must have been pulling his hair out. I know I would’ve been.
The case goes to trial—because the defense expert concedes some injury and some of the medical expenses are related to the collision—but results in a very poor verdict for the plaintiff. And now we have this appeal.
The Court of Appeals had no trouble concluding the trial court committed “obvious error” in failing to consider the Burnet factors. The court quickly dispatched the defense argument that exclusion was not just for untimely disclosure but also for discovery violations and a failure to properly note a video deposition. The court pointed out that there are numerous cases saying the Burnet analysis applies to both discovery violations and violations of witness disclosure deadlines. And the cases relied upon by the defense pre-date Burnet. The court referred to defendant’s argument as “faulty” and said it may have misled the trial court.
The Court of Appeals wasn’t done, though. It granted the plaintiff’s request to reassign the case to a different judge on remand. (This rarely happens.) The court saved its harshest rhetoric for this portion of the opinion. The court called the trial court’s error “egregious.” It said “the court ignored well-established law requiring the court to consider the Burnet factors.” The court ultimately held the trial judge’s “blatant disregard of the law suggests that the trial court has prejudged whether [plaintiff’s expert] should be excluded and calls into question whether the trial court can fairly apply the Burnet analysis on remand.” Ouch.
Now the plaintiff will have the opportunity to argue exclusion is not necessary under the Burnet analysis in front of a different judge.
Most errors are not this blatant. But this is a great example of why we have appellate courts.
*In the interest of full disclosure, I represent clients in a completely different appeal whose expert witness was excluded by a judge that did not perform the Burnet analysis, so perhaps I’m a little sensitive to this issue.