Wash. Court of Appeals published opinion — 850661.pdf

Citation: Wash. Court of Appeals published opinion — 850661.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/850661.pdf ↗

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symptoms are “entirely consistent with low grade, chronic, constant” exposure to

CO at the West Garage. Therefore, we find no abuse of discretion. 9

C

SPD argues the trial court erred by not considering the Burnet 10 factors on

the record before granting Sgt. Hockett’s motion to exclude portions of Dr. Burton’s

anticipated testimony relating to Dr. Parker’s RAD diagnosis and Sgt. Hockett’s

military exposures as a sanction for SPD’s discovery violation. 11 We disagree.

If a trial court excludes witness testimony as a sanction for a discovery

violation, it must first consider the so-called Burnet factors on the record. Mayer

v. Sto Indus., Inc., 156 Wn.2d 677, 688, 132 P.3d 115 (2006) (citing Burnet, 131

Wn.2d at 494). Specifically, “the record must clearly show (1) one party willfully or

deliberately violated the discovery rules and orders, (2) the opposing party was

substantially prejudiced in its ability to prepare for trial, and (3) the trial court

explicitly considered whether a lesser sanction would have sufficed.” Magaña v.

Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009) (citing Burnet, 131

Wn.2d at 494). A trial court may make the Burnet findings on the record orally.

Teter v. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012). “[T]he mere fact that a

trial court does not cite Burnet before excluding witnesses is not dispositive; a

colloquy might satisfy Burnet in substance even if the judge fails to invoke that