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Clipse v. the

as corrected.: April 29, 1991.

CHESTER W. CLIPSE, APPELLANT,
v.
THE STATE OF WASHINGTON, ET AL, RESPONDENTS



Webster, J. Grosse, C.j., and Scholfield, J., concur.

Author: Webster

Chester W. Clipse and his attorney, Wayne R. Parker (hereinafter Clipse) appeal a superior court order requiring him to reimburse the respondents' costs and attorney fees under CR 11 based on a finding that Clipse

made "misleading and inaccurate disclosures of expert witnesses." Clipse asserts that the trial court erred in imposing terms under CR 11 because: (1) CR 11 does not apply to pretrial disclosures, (2) his disclosure was not misleading or inaccurate, and (3) the judgment erroneously awarded amounts respondents already claimed in a separate cost bill. We affirm based on CR 26(g).

Facts

Clipse brought a medical malpractice action, claiming University Hospital negligently administered the drug Valium to him while he was hospitalized there, and that he suffered an allergic reaction as a result. Pursuant to a discovery order dated May 23, 1989, Clipse was to "identify each of his experts he expect[ed] to call at trial, along with a summary of the expected opinions of each and the basis upon which such opinions are made " by June 16, 1989. (Italics ours.) The order provided that all discovery, "including the taking of depositions of all experts," was to be completed by August 11, 1989. Clipse designated six doctors, a nurse, and a medical records supervisor as expert witnesses and provided a brief summary of the testimony of each expert. The respondents deposed two of the designated doctors, the nurse, and the medical records expert. Based on these depositions, the respondents filed a CR 11 motion against Clipse and his attorney seeking reimbursement of expenses resulting from "frivolous disclosure" of these experts. The motion was stayed when Clipse elected to submit his claim to arbitration. The arbitration resulted in a judgment in the State's favor.

Following the arbitration, the respondents renewed their CR 11 motion in superior court. They claimed that Clipse had neither contacted the designated experts, asked them to testify at trial, nor provided them with records or depositions upon which they could form an expert opinion. The respondents further claimed that when they deposed Clipse's designated experts, they expressed no expert opinions and did not testify as Clipse stated they would.

Respondents contended that as a result of Clipse's failure to make a reasonable inquiry, they incurred substantial unnecessary expenses. The Superior Court granted respondents' motion for CR 11 sanctions and awarded $3,873.15.

The Propriety of the Sanction Award

[1] Clipse contends that CR 11 does not apply to discovery disclosures. CR 11 applies to "every pleading, motion, and legal memorandum". Since Clipse's discovery disclosure is neither a complaint, an answer, a reply to a counterclaim, an answer to a cross claim, a third party complaint, or a third party answer, it is not a "pleading" under CR 7(a). See Black's Law Dictionary 1037 (5th ed. 1979) (defining "pleadings" and citing Fed. R. Civ. P. 7(a)). The term "legal memorandum" might be broad enough to encompass a discovery disclosure.*fn1 However, the advisory notes to the 1983 amendments to federal rule 11 indicate that rule 26(g) should govern discovery disclosures.*fn2 We, therefore, conclude that Clipse's discovery disclosure is neither a "pleading, motion, or legal memorandum" under CR 11 and that the trial court erred in awarding sanctions under CR 11.

[2, 3] Nonetheless, we evaluate the propriety of the sanctions against Clipse under CR 26(g). A trial court judgment may be affirmed by any basis supported by the record. Wendle v. Farrow, 102 Wash. 2d 380, 382, 686 P.2d 480 (1984). CR 26(g) applies to every "request for discovery or response or objection thereto". Similar in wording to CR 11, CR 26(g) authorizes an award of costs and attorney fees as a sanction for a party's failure to comply with the rules of discovery. CR ...


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