Wash. Court of Appeals published opinion — 850661.pdf

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At trial, Sgt. Hockett argued he was prejudiced by SPD’s late disclosure, which

occurred during the second week of trial, because he had no opportunity to depose

Dr. Burton on his new causation theories and would need to spend time and

resources preparing and re-calling his expert witnesses. After the trial court

conducted a lengthy colloquy with the parties and reviewed their motions and the

record—including trial exhibits, witness disclosures, and Dr. Parker’s trial

testimony—the court concluded “it’s way too late for the plaintiff to have additional

discovery on [Dr. Burton].” The substance of the trial court’s ruling indicates it

considered the second Burnet factor on the record and correctly found that SPD’s

discovery violation substantially prejudiced Sgt. Hockett’s ability to prepare for trial.

Third, the trial court considered whether a lesser sanction would suffice.

“[T]he court should impose the least severe sanction that will be adequate to serve

the purpose of the particular sanction, but not be so minimal that it undermines the

purpose of discovery.” Burnet, 131 Wn.2d at 495-96. The Burnet court further

explained “the purpose of sanctions generally are to deter, to punish, to

compensate, to educate, and to ensure that the wrongdoer does not profit from the

wrong.” Id. at 496. The trial court explicitly considered this factor on the record by

stating, “[t]here’s really no remedy short of exclusion.” The trial court’s awareness

of lesser sanctions is indicated by its prior statement during trial that it “typically

order[s] a deposition as a remedy for a late-disclosed witness.” Because the trial

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