Appeal from THE SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 92-2-03302-4. Date filed in Superior Court: 7/19/94. Superior Court Judge signing: MICHAEL DONOHUE.
Philip J. Thompson, Dennis J. Sweeney & John A. Schultheis, concur
THOMPSON, J. --Robert L. Fahnlander commenced a medical malpractice lawsuit in April 1992, following the death of his infant son. The matter proceeded to trial by jury. After the jury returned a defense verdict, his lawsuit was dismissed. Mr. Fahnlander requests a new trial in this appeal. He assigns error to (1) a pretrial order striking the testimony of one of his obstetric experts and (2) a pretrial ruling refusing to allow him to substitute another expert. We affirm.
In response to interrogatories propounded by defendants Dr. Peter E. Fern and Northwest OB-GYN, P.S., Mr. Fahnlander disclosed his intent to call Dr. Brian R. Bigelow and Dr. John C. Scott as expert witnesses at trial. The interrogatories were propounded in May 1992. Mr. Fahnlander served his answers in November 1992. In June 1993, he supplemented those answers by identifying Dr. W. Joseph Weick as an additional expert witness. Sometime prior to March 1994, Mr. Fahnlander decided not to call Dr. Scott.
Based on an affidavit filed by Mr. Fahnlander's counsel, he attempted to depose Dr. Fern, beginning in August 1992. Following a number of unsuccessful attempts and cancellations of scheduled depositions, Dr. Fern was deposed on May 26, 1993. Based on an affidavit filed by Dr. Fern's counsel, potential dates for the depositions of Mr. Fahnlander's experts were discussed in September 1993, without result.
On November 15, 1993, an amended scheduling order was entered. It established June 20, 1994 as the trial date and May 2, 1993 [sic] as the discovery cutoff date.
On March 31, 1994, counsel for defendants Dr. Fern and Northwest OB-GYN, P.S. (collectively "Dr. Fern") moved to strike Mr. Fahnlander's expert witnesses or, alternatively, to strike the trial date or dismiss Mr. Fahnlander's complaint for failure to make witnesses available for deposition. In a supporting affidavit, counsel for Dr. Fern stated that as of March 28, 1994, numerous attempts had been made to obtain deposition dates for Dr. Bigelow, but no deposition date was produced. He stated that he advised Mr. Fahnlander's counsel he would be out of the country from April 25 through May 18, 1994.
In an affidavit opposing Dr. Fern's motion, a legal assistant to plaintiff's counsel stated that on or about March 30, 1994, she contacted Dr. Bigelow's secretary to obtain potential deposition dates. April 7 and April 19 were offered, but Mr. Fahnlander's counsel was unavailable on April 7, and defense counsel was unavailable on April 19. She stated she again contacted Dr. Bigelow's office and was offered April 22 as a deposition date. However, Dr. Fern's counsel said he was unavailable on April 22. He gave as alternative dates May 23, 30, 31, June 2 to 3 and the week of June 6. None of the alternative dates fit Dr. Bigelow's schedule. When Dr. Fern's counsel subsequently indicated he would be available April 22, Dr. Bigelow was no longer available.
The legal assistant stated she discussed a Saturday telephone deposition on April 23 with Dr. Bigelow's office,
but Dr. Fern's counsel advised that he was getting ready for vacation and a Saturday deposition was unacceptable. She then contacted Dr. Bigelow's office and was told he would ...