Argued: June 13, 2013.
As amended by order of the Supreme Court February 5, 2014.
Appeal from King County Superior Court. 06-2-39861-1. Honorable Susan J. Craighead.
Michael B. King, Gregory M. Miller, Jason W. Anderson, and Justin P. Wade (of Carney Badley Spellman PS ), for petitioner.
Todd W. Gardner (of Swanson Gardner PLLC ); Richard B. Kilpatrick (of Kilpatrick Law Group PC ); and Kenneth W. Masters and Shelby R. Frost Lemmel (of Masters Law Group PLLC ), for respondent.
Stewart A. Estes and Erin H. Hammond on behalf of Washington Defense Trial Lawyers, amicus curiae.
Milton G. Rowland on behalf of Washington State Association of Municipal Attorneys, amicus curiae.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Debra L. Stephens, Lisa R. Worswick, Justice Pro Tem.
[179 Wn.2d 326] Gordon
¶ 1 -- The city of Seattle (City) seeks review of an unpublished Court of Appeals decision affirming a $ 12.75 million verdict in favor of former Seattle fire fighter Mark Jones. The City asserts that the trial court erred by (1) excluding three late-disclosed defense witnesses [179 Wn.2d 327] without first conducting the inquiry required under Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) and (2) denying the City's motion to vacate the judgment on the basis of newly discovered evidence. Although we find that the trial court erred in excluding testimony by the late-disclosed witnesses, we agree with both parties that this evidentiary ruling is reviewed for harmless error and we conclude that the error was harmless. We also find that the trial court did not abuse its discretion in denying the City's motion to vacate. We therefore affirm the judgment of the trial court.
¶ 2 Mark Jones, a Seattle fire fighter, was severely injured on December 23, 2003, when he fell 15 feet through a fire station " pole hole" at approximately 3 a.m. Clerk's Papers (CP) at 7987-90. Although he could not remember the accident, he reported to a responding medic that he had awoken to use the bathroom, which was next to the pole hole door. 6-B Report of Proceedings (RP)
(Sept. 17, 2009) at 149-50. Mark  sustained both physical and cognitive impairments as a result of his fall. In December 2006, Mark sued the City for damages arising from the accident, alleging that the City had been negligent in failing to block the door to the fire pole. Trial was continued twice and eventually set for September 8, 2009. The court made July 20, 2009 the discovery cutoff date and ordered the parties to exchange final witness lists by August 17, 2009. The continuances were granted in part because the City substituted new counsel twice after the lawsuit was filed. The attorneys who represented the City at trial took over in January 2009.
¶ 3 The City deposed Mark on March 6, 2008, and his sister Meg Jones on March 10. In October 2008, Meg was [179 Wn.2d 328] appointed Mark's guardian; she thereafter moved the court to substitute herself as plaintiff in the case. The court granted the motion. On May 4, 2009, the City moved for permission to redepose Mark, arguing that its current counsel had never met or questioned him and that it should be allowed to ask him about his activities during the year that had elapsed since his first deposition. Meg opposed the motion, arguing that the City did not need to " meet" Mark when it had a videotape of his first deposition, had all his current medical records, and had a list of 162 witnesses whose knowledge of Mark's current condition had been described by both Meg and Mark in their depositions. CP at 222-33. Meg also argued that Mark's condition was unchanged, and that another deposition would be an extreme physical and emotional hardship for him. The trial judge denied the City's request for a second deposition.
¶ 4 When the City hired its third and final set of attorneys, it began aggressively pursuing the theory that Mark was an alcoholic and a binge drinker who had fallen through the pole hole because he was suffering from symptoms of alcohol withdrawal. As trial grew closer, the City also began asserting that Mark's alcoholism was compromising his recovery. The City's " alcohol theory" was apparently based on three things: Mark's DUI (driving while under the influence of intoxicating liquor or any drug) arrest in November 2003; deposition testimony by Mark's ex-wife that Mark had been a heavy drinker before his accident; and the fact that when Mark was admitted to Harborview Medical Center after his fall, doctors there implemented alcohol withdrawal protocols.
¶ 5 In fact, Mark's DUI charge was reduced to negligent driving. Further, the attending physician at Harborview submitted a declaration explaining that the alcohol withdrawal protocols had been initiated in response to Mark's extreme agitation upon arrival, but that in retrospect she believed those symptoms were more likely caused by the brain injury Mark sustained in the fall, rather than by [179 Wn.2d 329] alcohol dependence. Finally, Mark's ex-wife stated in a deposition that while Mark drank heavily at times during their marriage, he had not consumed any alcohol in the two months preceding his accident.
¶ 6 The City nevertheless offered testimony by Dr. Gregory Rudolf, who had never met Mark, that Mark " was the kind of alcoholic who conceals his drinking" and that " alcohol was the cause of [Mark's] abnormal level of disorientation" the night of the accident. RP (Sept. 4, 2009) at 57; CP at 2372-86.
¶ 7 On the first day of trial, the judge excluded evidence of preaccident alcohol consumption, finding that " the probative value of that [evidence] is minimal, [while] the prejudice is very, very significant." RP (Sept. 4, 2009) at 113. She also excluded evidence that Mark had been drinking since his accident, with the exception that " if the defense wants to argue that factors other than [his] injuries ... have diminished [Mark's] quality of life," it could elicit firsthand testimony about two incidents of alleged heavy drinking in mid-2006. Id. at 115. She left open the possibility that she would admit more evidence of drinking if it were " pretty strong," id., and if the City could better " articulate[ ]
what happened to [Mark's] recovery as a result of using alcohol." Id. at 117.
¶ 8 The following week, after reviewing " every single case that [she] could find that has any bearing on [the alcohol issue]," the judge excluded the City's proffered expert testimony in support of its theory that Mark's alcoholism was compromising his recovery. RP (Sept. 11, 2009) at 144-46. In issuing this ruling, she cautioned the City that she was concerned about the evolving and speculative nature of its " alcohol theory" defense:
Post accident, I'm concerned that even getting into the question of alcohol's impact on Mr. Jones' recovery and on his quality of life, basically, was an idea that came up recently, when it became clear that maybe the pre-accident use of alcohol wasn't going to come in, and I'm very concerned that Dr. [179 Wn.2d 330] Rudolph [sic] testified that he refined and sort of developed these opinions after his deposition on July 24th. Dr. Rudolph [sic] certainly did not have any proof [of postaccident drinking], simply his assumption and suspicion that alcohol was continued to be used ... and it's simply too speculative to consider it, especially when we consider the tremendous prejudicial effect that getting into alcohol can have.
Id. at 146-47. The judge maintained her prior ruling as to the two incidents of heavy drinking in 2006.
¶ 9 On the same day the judge issued her ruling excluding Dr. Gregory Rudolf's testimony--three days after trial began--the City moved to admit testimony by Mark's sister, Beth Powell. The City explained that it had only " learned of [Powell] yesterday" and that it had flown her in from Helena, Montana, that morning. Id. at 104. The judge expressed concern over what she characterized as " an ambush" on the plaintiff: " the way we have our civil rules designed is that people are allowed to rely on what evidence has been presented by the discovery cutoff ... ." Id. at 111. The City complained that it would have discovered Powell earlier if it had been permitted to redepose Mark. It also asserted, for the first time, that it had " pictures of [Mark] last Sunday night ... sitting at a bar." Id. at 114.
¶ 10 The judge ordered the parties to depose Powell over the weekend and deferred ruling on Powell's testimony until she could read the deposition. She also ordered the City to turn over any surveillance photographs it had of Mark or Meg.
¶ 11 The parties gave their opening statements the following Monday. The first two weeks of trial were devoted to testimony by Mark's treating physicians; a member of the workers' compensation panel who had evaluated Mark after his accident; and various witnesses who spoke to the general condition and layout of " Station 33," to the City's ability to prevent accidents like Mark's, and to Mark's demeanor, habits, and capabilities since the accident.
[179 Wn.2d 331] ¶ 12 The various physicians and therapists who took the stand uniformly testified that Mark had significant and permanent cognitive impairments. Dr. Peter Esselman, a brain injury specialist who had treated Mark at Harborview's inpatient rehabilitation unit, testified that Mark had sustained a traumatic brain injury in his accident and that this injury was manifesting in Mark's difficulties managing day-to-day tasks, concentrating, and controlling his mood. He also testified that Mark suffered from lasting nerve damage and that Mark had made significant efforts to return to work, which had been frustrated by his brain injuries. Dr. Esselman also stated that Mark would probably not be able to function without " some sort of companion care right now to help him with daily structure[,] ... taking medications on time[,] ... meal preparation[,] ... and schedul[ing]." He testified that he knew that Mark continued to drive a car and that this worried him.
¶ 13 Dr. Leonard Hudson, a pulmonary care specialist and Mark's treating physician, testified that Mark's lung capacity had been significantly decreased as a result of his injuries, that this condition was worsening over time, and that he had treated Mark for " panic attacks" he suffered as a result of his breathing problems. 5 RP (Sept. 16, 2009) at 202-03. Dr. Gary Stimac, a neuroradiologist, testified that a brain injury resulting from a
fall could result in long-term symptoms such as confusion and lack of focus, which would worsen over time.
¶ 14 Dr. Andrew Friedman, a rehabilitation and pain medicine physician at Virginia Mason Medical Center, testified that he had seen Mark regularly since 2004 and that Mark's brain injury, breathing problems, and chronic pain had frustrated his diligent efforts to return to full-time work. He also testified that the three physicians on the workers' compensation panel who had examined Mark on the City's behalf--" an orthopedist, neurologist, and a psychiatrist" --had concluded that Mark could not be gainfully employed. 6-A RP (Sept. 17, 2009) at 37, 39. Dr. John Stump, [179 Wn.2d 332] the neurologist on the workers' compensation panel, testified that neither he nor the other two physicians on the panel found any evidence that Mark was exaggerating his impairments. He also testified that the panel had found Mark " unemployable" in any capacity but capable of " perform[ing] activities" --including pushing, pulling, and occasionally lifting up to 50 pounds--for about five hours per day. 7 RP (Sept. 21, 2009) at 155-56.
¶ 15 Anthony Choppa, Mark's vocational rehabilitation counselor, testified that Mark's pain, fatigue, and cognitive impairments limited his employability and that Mark's cognitive impairments made it difficult for Mark to " make judgments, have insights, plan[,] and follow through ... ." 8 RP (Sept. 22, 2009) at 110. He also testified that Mark struggled with anxiety and fear, that the severity of his cognitive symptoms varied from day to day, and that Mark's doctors were generally concerned about the fact that he continued to drive a car. Dr. Glen Goodwin, a neuropsychologist retained by the plaintiff, testified that Mark's brain injuries were manifesting in susceptibility to fatigue, decreased sensation, confusion, slow thinking, and spatial disorientation.
¶ 16 Finally, Dr. Joanne Brockway, Mark's rehabilitation psychologist, testified that Mark's cognitive impairments interacted with his depression and anxiety so that he was " slow to learn [therapeutic] concepts" and that Mark's depression stemmed from " the accident itself, and also from the loss of things [such as] his job, ... social support group, [and] his sense of himself as a competent ... individual ... ." 9 RP (Sept. 23, 2009) at 199-213. Dr. Brockway testified that " with appropriate therapy and other resources," Mark might be able to function more independently in the future, but that she thought " he will always need some supervision ... with structure [to] engage in activities that can help make life worthwhile to him ... ." Id. at 216. She also stated that Mark would benefit from the services of a " daily attendant" to help him get to his [179 Wn.2d 333] appointments and remind him to take his medications, and she noted that Meg was currently " providing that structure." Id. at 217. She testified that Mark had never come to an appointment in her office alone.
¶ 17 On September 28, two weeks after opening statements, the City filed a declaration by Mark's father, Gordon Jones, and offered his testimony. Although the City had never listed Gordon as a witness, his name had appeared on Meg's list of " potential witnesses." CP at 7626. In addition to being Mark's father, Gordon was a physical therapist who had provided therapy to Mark for more than two years following the accident. Gordon had billed the City for the therapy he provided to his son, but the City claimed it had no reason to seek information from Gordon until he suddenly came forward three weeks into trial.
¶ 18 Gordon's declaration asserted that Mark had struggled with alcohol addiction since he was a teenager, that this addiction was hindering Mark's recovery, that some of Mark's cognitive impairments were due to alcoholism rather than the firehouse accident, and that if Mark received a large sum of money he would " not be able to heal," presumably because he would spend it on alcohol. CP at 4075. Gordon also claimed that Mark and Meg were " not being truthful with the court with respect to Mark's injuries and overall physical and mental health issues" and that Meg " enabled" Mark's alcoholism. CP at 4068, 4070. 
¶ 19 Powell's deposition echoed many of the themes in Gordon's. Although Powell testified that she had not actually spent any time with Mark since 2006, she nevertheless opined that Mark had an ongoing drinking problem. She [179 Wn.2d 334] asserted that Mark had been an alcoholic since he was a teenager, that Meg enabled his drinking, and that Mark would spend any money he won in the lawsuit on alcohol. Powell also claimed to have observed Mark performing various physical tasks, such as moving a canoe and building shelves, as she drove by their sister Tammy's house in Helena.
¶ 20 After sending the jury home on September 28, the trial judge stated her intent to rule on Gordon's and Powell's testimony the next day. She scheduled a hearing for the following morning, telling the parties that her " only focus" at the hearing would be " compliance with the local rules and how in the world I could entertain any witnesses that are coming up during trial." 11 RP (Sept. 28, 2009) at 225.
¶ 21 The relevant " local rules" are King County Local Rule (KCLR) 4 and former KCLR 26(b)(4) (2007).  KCLR 4(e) sets forth the procedures for establishing and modifying a civil case schedule; KCLR 4(j) requires parties to exchange witness lists " no later than 21 days before the scheduled trial date" and states that " [a]ny witness or exhibit not listed may not be used at trial, unless the Court orders otherwise for good cause and subject to such conditions as justice requires." Former KCLR 26(b)(2) and (3) establish the scope of witness disclosure and require parties to disclose additional witnesses--" persons whose knowledge did not appear relevant until the primary witnesses were disclosed" --no later than the deadline set in the case schedule pursuant to KCLR 4(e). Former KCLR 26(b)(4) states that " [a]ny person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause and subject to such conditions as justice requires."
[179 Wn.2d 335] ¶ 22 On the morning of September 29, the judge heard arguments regarding Powell's and Gordon's testimony. She opened the hearing by telling the parties to address only disclosure issues, noting that " relevance I've already dealt with." 12-A RP (Sept. 29, 2009) at 3. This was an apparent reference to the fact that the overwhelming majority of both Powell's and Gordon's proffered testimony concerned Mark's alleged alcoholism.
¶ 23 The City argued that its late disclosure was not a willful violation of the discovery rules. With respect to Powell, it claimed that it could have done a better investigation if it had been allowed to depose Mark a second time:
We didn't have any information coming from any of his treaters that he was [using] alcohol. We only had information from his own mouth and from the plaintiffs that he wasn't a drinker, that there was no problem with drinking in this case. So these are things that we've had to discover ourselves through the course of discovery, and given that we couldn't redepose him at any time[,] ... the alcohol has not been anything that's been given to us in any testimony from anybody.
Id. at 10. With respect to Gordon, the City claimed that it had no idea that his testimony might be relevant, until Gordon suddenly decided to " speak[ ] his conscience [and] come forward [because] he knows it's the right thing to do." Id. at 13. The City also claimed that it had previously disclosed Gordon anyway by reserving the right to call opposition witnesses.
¶ 24 Meg responded that a " boilerplate" reservation of rights was not a proper disclosure
under the local rules. Id. at 16, 22. She argued that the City only wanted to bring in Powell and Gordon--from whom Mark had become estranged because of an ongoing business dispute with his father--to " spew venom." Id. at 19.
¶ 25 The judge provisionally excluded Powell's and Gordon's testimony. The reasons she gave for this ruling are discussed in detail in the analysis section below, but they [179 Wn.2d 336] included her determination that the City had not made the " good cause" showing required by the local rules:
[T]here is just absolutely no way I can see, under our local rules, to allow Ms. Powell to testify. It's beyond--I can't even find a case where a late disclosure was so late, and certainly there has not been good cause established ... .
Gordon Jones is a slightly closer situation [but] the rules are there to try to enable--it's to try to be fair to both sides, and in this case[,] I've been pretty firm about excluding witnesses and testimony that's late disclosed. That's true for [the plaintiff's witnesses] ... .
I can't find that the City has shown good cause for why this was so late disclosed, and the prejudicial effect is dramatic, coming in almost at the end of the plaintiff's case. ... I understand what the City's trying to do, but it is simply too late, and so I'm not going to allow [Gordon] to testify.
Id. at 23-25.
¶ 26 In spite of this ruling, the judge continued to consider the possibility of allowing Gordon to testify that he had once heard Mark describe a night of sleep as " pain-free." 13 RP (Sept. 30, 2009) at 64-72; 16 RP (Oct. 8, 2009) at 210-15; 19 RP (Oct. 14, 2009) at 9-11. Ultimately, the judge determined that this was unnecessary since Mark did not deny making that statement when he testified.
¶ 27 As trial wore on, the City continuously offered the testimony of the investigator, Rose Winquist, who had taken pictures of Mark at a bar the night before the trial started. The judge continued to exclude Winquist.
¶ 28 The jury returned a verdict for Mark on October 22, 2009, awarding him $ 12.75 million and finding that the City's negligence was the sole cause of his injuries. This judgment included $ 2,433,006 for future medical-related care and $ 10,000,000 for noneconomic damages. The City immediately moved for a new trial under Civil Rule (CR) 59, which the trial court denied on January 21, 2010.
[179 Wn.2d 337] ¶ 29 Several months later, the City moved to vacate the judgment under CR 60(b)(3), on grounds of newly discovered evidence, and CR 60(b)(4), on grounds of fraud. This motion was based on several hours of posttrial surveillance video showing Mark engaging in physical activities that the City asserted were incompatible with his testimony at trial. The City also submitted videos it had edited, which juxtaposed clips from Mark's 2008 deposition with surveillance video taken in 2010. On October 18, 2010, the trial judge denied the City's motion to vacate.
¶ 30 The City appealed, arguing that the trial judge had abused her discretion in excluding Powell's, Gordon's, and Winquist's testimony. The City also argued that the trial judge erred in denying its motions to vacate.
¶ 31 In early 2012, Division One of the Court of Appeals affirmed in an unpublished opinion. Jones v. City of Seattle, noted at 166 Wn.App. 1027 (2012). The City petitioned this court for review, arguing that the Court of Appeals' decision conflicted with this court's holdings in Burnet, 131 Wn.2d 484 and Mayer v. Sto Industries, Inc., 156 Wn.2d 677, 688, 132 P.3d 115 (2006). Under those cases, a trial judge must perform a specific, on-the-record analysis before excluding witnesses for late disclosure. Id.; see also infra Part I. In its petition to this court, the City abandoned its argument under CR 60(b)(4) but maintained its argument regarding the denial of its CR 60(b)(3) motion to vacate due to newly discovered evidence.
STANDARD OF REVIEW
¶ 32 The City seeks a new trial on damages only, not on liability. All of the
rulings it challenges are subject to review for abuse of discretion. Mayer, 156 Wn.2d at 684 (trial court's exclusion of witnesses will not be disturbed absent a clear abuse of discretion (citing Associated Mortg. Investors v. G.P. Kent Constr. Co., 15 Wn.App. 223, 229, 548 P.2d 558 (1976))); Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 580, [179 Wn.2d 338] 599 P.2d 1289 (1979) ( motion to vacate is addressed to the sound discretion of the court). At oral argument, both parties acknowledged that the rulings on witness exclusion are subject to review for harmless error.  We agree. Thornton v. Annest, 19 Wn.App. 174, 181, 574 P.2d 1199 (1978).
I. The Trial Court Erred in Excluding Three Witnesses Without Performing the Burnet Inquiry, But the Error Was Harmless
¶ 33 A trial court's discretion to exclude witnesses is cabined by this court's holdings in Burnet and its progeny. In Burnet, this court held that before imposing " 'one of the harsher remedies allowable under CR 37(b)'"  (quoting Snedigar v. Hodderson, 53 Wn.App. 476, 487, 768 P.2d 1 (1989), aff'd in relevant part, 114 Wn.2d 153, 169 & n.37, 786 P.2d 781 (1999)), the trial court must explicitly consider whether a lesser sanction would probably suffice, whether the violation at issue was willful or deliberate, and whether the violation substantially prejudiced the opponent's ability to prepare for trial. Burnet, 131 Wn.2d at 494. The sanction imposed in Burnet was a protective order limiting discovery as to a particular claim. Id. at 490-91.
¶ 34 In Mayer, 156 Wn.2d at 688, this court held that Burnet applies to witness exclusion: when imposing a severe sanction such as witness exclusion, " the record must show three things--the trial court's consideration of a lesser sanction, the willfulness of the violation, and substantial prejudice arising from it."
[179 Wn.2d 339] ¶ 35 More recently, this court applied Burnet in Blair v. TA-Seattle E. No. 176, 171 Wn.2d 342, 254 P.3d 797 (2011) ( Blair II). In Blair II, this court reversed a decision in which Division One of the Court of Appeals performed the Burnet analysis that the trial court had omitted. Blair II, 171 Wn.2d at 351; see also Blair v. TA-Seattle E. No. 176, 150 Wn.App. 904, 909, 210 P.3d 326 (2009) ( Blair I), rev'd, Blair II, 171 Wn.2d 342 (" Although the trial court did not enter findings on the record demonstrating its consideration of the Burnet factors, the record before us provides adequate grounds to evaluate the trial court's decision in imposing discovery sanctions." ). This court held that the Court of Appeals had erred in concluding that it could " consider facts in the first instance as a substitute for the trial court findings that our precedent requires." Blair II, 171 Wn.2d at 351. 
¶ 36 While Division One was considering the City's appeal in this case, this court issued its decision in Blair II, reversing Division One's decision in Blair I. See Blair II, 171 Wn.2d 342; Jones, noted at 166 Wn.App. 1027. Although Burnet had played a ...