Today in Teter v. Deck (Wash., April 5, 2012), the Washington Supreme Court reaffirmed the requirement that to impose “the most severe discovery sanctions” a Court must make findings on the record — either orally or in writing — that:
(1) the discovery violation was willful or deliberate, (2) the violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe sanctions.
The exclusion of witness testimony is one of “the most severe discovery sanctions,” so it must be supported by such findings.
Here, the initially assigned judge was Judge Washington, who excluded the plaintiffs’ expert witness as a discovery violation. Later, the case was assigned to then-Judge (now Justice) Gonzalez, who presided over the trial. Following a defense verdict, Judge Gonzalez granted plaintiffs’ motion for a new trial under CR 59 based on Judge Washington’s “error of law.” Because Judge Washington did not make the necessary findings on the record, Judge Gonzalez’s granting of the CR 59 motion was not an abuse of discretion.***
In granting the new trial, Judge Gonzalez did a bit of belt-and-suspender-ing by supporting the grant with an additional basis: the misconduct of defense counsel at trial. In approving of this additional basis, the Court explained that “a trial court may grant a new trial where misconduct of the prevailing party materially affects the substantial rights of the losing party.” The determination of whether a party’s conduct meets this standard is reviewed for abuse of discretion. The Supreme Court disapprovingly noted that the “Court of Appeals [which reversed Judge Gonzalez] appears to have reviewed Judge Gonzalez’s ruling as an issue of law.” So that’s no good.
Here, defense counsel repeatedly attempted to show jurors exhibits that were not evidence and to question witnesses on subjects the Court had previously ruled to be inadmissible. That’s a no-no. Judge Gonzalez repeatedly admonished defense counsel on the record, but the conduct persisted.
Moreover, the plaintiffs did not waive the claim for a new trial my not moving for a mistrial. The Supreme Court explained: A new trial is appropriate “where (1) the conduct complained of is misconduct, (2) the misconduct is prejudicial, (3) the moving party objected to the misconduct at trial, and (4) the misconduct was not cured by the court’s instructions.”
The Court’s opinion closes with this stern reminder:
We have quite clearly held that explicit findings regarding the Burnet factors must be made on the record when a court imposes the most severe discovery sanctions, like excluding a witness.
Okay then. Let’s all try to heed this instruction in the future!
***The Court actually applied a two-prong standard of review. Because Judge Gonzalez concluded that Judge Washington’s exclusion order was an error of law, that conclusion was reviewed de novo. Once the Court agreed with Judge Gonzalez on the error of law, it then reviewed his remedial decision — the granting of the new trial — for abuse of discretion.