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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Hockett that Dr. Burton would opine on Dr. Burton’s RAD diagnosis. 12 Nor did SPD

depose Dr. Parker. Instead, SPD waited until after Dr. Parker testified at trial in

September 2022 to finally disclose Dr. Burton’s new opinions. 13 The trial court

found that SPD’s failure to disclose these new opinions was the result of a “tactical

choice.” Thus, the record shows that the trial court considered the first Burnet

factor and correctly found SPD’s discovery violation to be willful.

12 Local discovery rules required SPD to disclose “[a] summary of [its] expert’s opinions and the

basis therefore. KCLCR 26(k)(3)(C). Additionally, CR 26 imposes an ongoing duty on a party to
seasonably supplement a prior discovery response regarding the subject matter on which an expert
witness is expected to testify and the substance of the expert’s testimony. CR 29(e)(1).
13 These new opinions were (1) Sgt. Hockett’s symptoms are not consistent with RAD, (2) any RAD

symptoms cannot be caused by workplace car exhaust in the West Garage, (3) Dr. Parker’s results
show no RAD at all, (4) Dr. Parker is correct that exposure to burn pits in the recent Iraq wars is a
classic example of a cause of RAD, and (5) for Dr. Parker to perform a competent differential
diagnosis, he should have been provided with Sgt. Hockett’s complete service-related exposure
history.

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85066-1-I

Second, the trial court considered whether Sgt. Hockett suffered prejudice,

which occurs when a party is “ambushed” by the sudden introduction of surprise

evidence after the start of trial. See Jones, 179 Wn.2d at 344-45; see also Burnet,

131 Wn.2d at 496-97 (conduct is more prejudicial if it occurs on the “eve of trial”).