Ronnie L. Sharp v. Life Care Centers Of America ( 2018 )

•••
rILEO
APPEALS DIV1
COURT OF WAVING-M-1
STATE OF
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201t PR 30 Ali
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
RONNIE LEE SHARP, as Administrator) No. 77747-5-1
of the Estate of Saundra Sharp, )
deceased, )
)
Respondent, )
)
v. )
)
LIFE CARE CENTERS OF AMERICA, )
INC., a Tennessee corporation, )
CASCADE MEDICAL INVESTORS )
LIMITED PARTNERSHIP, a Tennessee) UNPUBLISHED OPINION
entity d/b/a LIFE CARE CENTER OF )
PORT TOWNSEND, ) FILED: April 30, 2018
)
Appellants. )
)
VERELLEN, J. — Life Care Center, a nursing facility, appeals the trial court's
grant of a new trial following a defense verdict. The court found multiple discovery
violations and several instances of defense counsel misconduct. The court
concluded either the combined discovery abuses or combined misconduct
supported granting a new trial.
There are serious concerns. First, the trial court did not make its decision
until more than a year after the parties completed briefing on the motion for new
trial, the parties provided only limited excerpts of the actual proceedings, and
several of the trial court's findings are inaccurate. Second, in some instances, the
No. 77747-5-1/2
trial court did not reconcile its new trial findings with its inconsistent rulings and
observations during trial. Third, the court emphasized the willful and malicious
misconduct by defense counsel but relied on events implicating only Life Care
itself. Fourth, the trial court ignored the doctrine of waiver as it applies to a
request for a new trial. And finally, the trial court failed to apply the correct
standard of prejudice. Contrary to the trial court's theme, there is no pattern of
malicious attorney misconduct or egregious discovery abuses.
We reverse.
FACTS
From September 17, 2012 to October 17, 2012, Saundra Sharp resided at
Life Care Center in Port Townsend. While at Life Care, Saundra developed
cellulitis, an infection, in her lower legs. She was transferred to Jefferson County
Hospital, where she died from sepsis on October 21, 2012.
Ronnie Sharp, as administrator of Saundra's estate (Sharp), filed a wrongful
death action and alleged the facility was negligent in their failure to treat Saundra
while the infection was survivable and by understaffing the facility. Life Care
denied these claims. The trial began on November 10, 2014. Following a 35-day
trial, the jury returned a defense verdict.
On February 9, 2015, Sharp filed a motion for new trial. The court held a
hearing on March 23, 2015. After the hearing, the court requested supplemental
briefing, which the parties provided in May 2015. A year later, on June 6, 2016,
the trial court issued a memorandum opinion granting a new trial. On October 5,
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No. 77747-5-1/3
2016, the court issued detailed findings of fact and conclusions of law. The court
also awarded Sharp fees and costs associated with the original trial.
Life Care appeals.
ANALYSIS
I. Motion for New Trial
Life Care contends the trial court abused its discretion when it granted a
new trial. Life Care assigns error to almost every finding in the trial court's lengthy
memorandum opinion and subsequent findings of fact and conclusions of law. As
to several findings, Life Care contends the trial court abused its discretion by
relying on inaccurate facts. There are significant factual inaccuracies in the trial
court's findings. We are troubled with the trial court's ability to accurately recall the
details of the 35-day trial without access to the full record. The parties submitted
limited transcript excerpts, and the trial court appears to have heavily relied on the
clerk's minute entries. We are especially concerned about the accuracy of the trial
court's recollection because of the extreme delay between the motion in February
2015 and the trial court's decision in June 2016.
We review a trial court's grant of a new trial for abuse of discretion.1 "A
much stronger showing of abuse of discretion is required to set aside an order
granting a new trial than one denying a new trial."2 "A court abuses its discretion
1 Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597(1997).
2 Hollins v. Zbaraschuk, 200 Wn. App. 578, 580, 402 P.3d 907(2017),
review denied, 189 Wn.2d 1042(2018).
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No. 77747-5-1/4
when it makes a decision for untenable reasons or on untenable grounds."3 "A
court's decision is based on untenable grounds if the factual findings are not
supported by the record; the decision is based on untenable reasons if it is based
on an incorrect standard." "It is also untenable if a trial court ignores its own prior
rulings when finding misconduct."5
Our analysis of an order granting a new trial "is generally limited to the trial
court's reasons for granting a new trial.'"6 Here, the trial court granted a new trial
based on defense counsel's misconduct and Life Care's discovery violations.
As to misconduct, the court relied on CR 59(a)(2). Notably, some of the
instances of misconduct referenced by the court were not the actions of defense
counsel, but rather Life Care itself. CR 59(a)(2) allows a new trial due to the
"[m]isconduct of the prevailing party." But here, the trial court expressly attributed
misconduct solely to the actions of defense counsel. The party seeking a new trial
based on counsel's misconduct must establish that(1) the conduct was
misconduct,(2) the misconduct was prejudicial,(3) the misconduct was objected
to at trial, and (4) the misconduct was not cured by the court's instructions.7
3 Id. at 582-83.
4 Teter v. Deck, 174 Wn.2d 207, 220, 274 P.3d 336(2012).
5 Clark v. Teng, 195 Wn. App. 482, 492, 380 P.3d 73(2016), review denied,
187 Wn.2d 1016 (2017).
6 Id. (quoting Cox v. Gen. Motors Corp., 64 Wn. App. 823, 826, 827 P.2d
1052 (1992)).
7 Aluminum Co. of America v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 539,
998 P.2d 856(2000)(quoting 12 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE
§ 59.13[2][c][I][A], at 59-48 to 59-49(3d ed. 1999)).
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The trial court also failed to apply the correct prejudice standard required for
a new trial. The trial court relied heavily on Gammon v. Clark Equipment Co. to
support a new trial based on discovery abuse.8 In Gammon,this court
acknowledged a new trial is a potential remedy for discovery abuse.8 An issue at
trial was whether an equipment manufacturer had any prior notice of injuries
incurred in the use of its product. The manufacturer failed to produce two
"accident books" containing reports of prior accidents.10 This court ordered a new
trial for the discovery abuse.
Gammon contains an expansive statement about the level of prejudice
adequate to grant a new trial for discovery violations:
It may very well be that timely answers to the interrogatories
and production of the accident reports would have made no
difference. That is not for us to decide. It is precisely because we
cannot know what impact full compliance would have had, that we
must grant a new trial.(111
But the court made this statement in the context of the manufacturer's failure to
produce its accident books that inherently went to the material question of whether
the manufacturer had notice of injuries from prior accidents.
Here, it appears the trial court interpreted Gammon as allowing a new trial
on the vague and general supposition that a discovery violation has an
unknowable impact on the moving party's right to a fair trial. In the memorandum
8 38 Wn. App. 274, 686 P.2d 1102(1984).
9 Id. at 277.
19 Id. at 279-82.
11 Id. at 282.
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opinion granting a new trial, the court provided the following quote from United
States Secretary of Defense Donald Rumsfeld: "IAls we know there are known
knowns; there are things we know we know. We also know there are known
unknowns; that is to say we know there are some things we do not know. But
there are also unknown unknowns—the ones we don't know we don't know.'"12
The court stated, "This quote aptly summarizes the gravamen of the Plaintiffs
Motion for New Trial following a jury verdict for the Defense."13 It appears the
court misapprehended Gammon and assumed the existence of prejudice without
conducting the proper analysis.
In Collings v. City First Mortgage Services LLC, this court determined that
regardless of the specific ground, "for a trial court to grant a party's motion for new
trial, prejudice is required."14 And CR 59(a) allows a trial court to order a new trial
when there is a material effect on the substantial rights of a party. In Teter v.
Deck, our Supreme Court determined prejudice to a party's right to a fair trial
qualifies as a material effect.15 In Pulcino v. Federal Express Corp., this court
acknowledged a new trial under CR 59(a) was consistent with FedEx's discovery
abuses, which "made it extremely difficult for Pulcino to access the information she
needed to develop her claim."16
CP at 3069(quoting from a February 12, 2002 Department of Defense
12
news briefing).
13 Id.
14 177 Wn. App. 908, 920, 317 P.3d 1047 (2013).
15 174 Wn.2d 207, 220, 274 P.3d 336 (2012).
16 94 Wn. App. 413, 428-29, 972 P.2d 522(1999)(emphasis added).
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Gammon merely acknowledges that the precise impact of a discovery
violation is elusive. Consistent with Collings, Teter, and Pulcino, a trial court
granting a new trial based on a discovery violation must find actual prejudice in the
form of a material effect on the right to a fair trial. A party's discovery abuse has a
material effect if it makes it "extremely difficult" for the other party to access
information necessary to develop a claim.
"When the new trial motion challenges the effect on the jury of events
occurring during trial, we must accord considerable deference to the trial court."17
As a result, we grant great deference to a court's finding of prejudice in the area
of misconduct.18 Similarly, we give great deference to the court's finding of
prejudice for discovery violations. But such deference does not allow a trial court
to grant a new trial on the mere speculative and unknown impact of any act of
misconduct or discovery abuse.
In this case, the trial court rarely entered individualized findings of prejudice.
The court did generally conclude Life Care "engaged in willful violations of
discovery and obfuscation that unfairly disadvantaged the Plaintiff in its ability to
obtain all relevant information in a coherent and orderly fashion before trial" and
these willful violations "unfairly prejudiced the Plaintiff and prevented a fair trial."18
We consider the court's general determination that Life Care's discovery violations
17 Taylor v. Cessna Aircraft Co., Inc., 39 Wn. App. 828, 831,696 P.2d 28(1985).
18 Clark, 195 Wn. App. at 497.
18 CP at 3241.
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No. 77747-5-1/8
prevented a fair trial in the context of each of the alleged instances of misconduct
and discovery abuse.
A. Dr. von Preyss-Friedman
Life Care first assigns error to the trial court's findings concerning the
testimony of Dr. Sabine von Preyss-Friedman, a defense expert. The trial court
found Life Care committed "malicious" discovery abuse because Dr. von Preyss-
Friedman violated the orders in limine, despite repeated clarifications, "ringing the
bell a second time."2° The court also found the violation constituted defense
attorney misconduct.
On November 24, 2014, the court prohibited Dr. Benjamin Starnes, one of
Life Care's experts, from "providing any kind of a prediction of the date of death or
that[Saundra] had within 30 days to live."21 The court also precluded Dr. Starnes
from rendering an opinion that "the infection could not have been treated
successfully."22 Dr. Starnes was allowed to "say [Saundra] had a poor prognosis"
and he was allowed to testify "about the bodily systems within the body that were
affected by her vascular disease."23
On December 9, 2014, the court entered two orders in limine concerning
Dr. von Preyss-Friedman. First, the court prohibited Dr. von Preyss-Friedman
"from parroting, echoing, referencing, or repeating Dr. Starnes's opinion regarding
20 CP at 3228, 3237.
21 Report of Proceedings(RP)(Nov. 24, 2014) at 2220.
22 Id.
23 Id. at 2221.
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No. 77747-5-1/9
Mrs. Sharp's life expectancy."24 The court also precluded Dr. von Preyss-
Friedman from offering "cumulative testimony regarding the life expectancy of Mrs.
Sharp, as defense expert Dr. Starnes already offered extensive testimony
regarding his opinion on this issue."25
In its new trial findings, the court points to two instances where Dr. von
Preyss-Friedman violated the court's orders. First, on December 10, 2014, the
court clarified that Dr. von Preyss-Friedman could say that Saundra's "prognosis
was very poor" and that Saundra was at "end of life stages," but she could not
express an opinion "as far as how much longer [Saundra] had to live."26 Then,
during direct examination, the defense attorney asked Dr. von Preyss-Friedman,
"And why is it that her prognosis would be poor even if she were on IV
antibiotics7"27 Dr. von Preyss-Friedman answered, "I am a physician who, by
nature, looks at the whole patient. And there's such a thing as futility and so on.
So I look at the whole patient."28 Sharp immediately objected and argued that Dr.
von Preyss-Friedman's testimony concerning futility violated the court's orders in
limine. Sharp also objected because the opinion was not previously disclosed.
After reviewing Dr. von Preyss-Friedman's expert witness disclosure, the
court struck the answer because it was not previously disclosed, but did not
24 CP at 919(emphasis added).
25 Id.(emphasis added).
28 RP (Dec. 10, 2014) at 3483.
27 Id. at 3514.
28 Id.
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No. 77747-5-1/10
explicitly address whether the testimony concerning futility of antibiotics violated
the specific orders in limine.
At oral argument before this court, Sharp argued the December 10
testimony violated the general order prohibiting undisclosed expert opinions. But
the trial court findings rely solely on Dr. von Preyss-Friedman's violation of the
specific orders concerning her opinion about Saundra's life expectancy.
As to this first violation, the findings are not supported by the record.
Neither the specific orders nor the court's clarifications prior to Dr. von Preyss-
Friedman's December 10 testimony prohibited her from discussing futility of
antibiotic treatment. The court's limitation on Dr. Starnes's opinion that Saundra's
infection could not be successfully treated was never extended to Dr. von Preyss-
Friedman. And the record reveals that Dr. von Preyss-Fried man did not testify
about futility after December 10, 2014.
Second, on December 15, 2014, the court conducted voir dire with jury
questions for Dr. von Preyss-Friedman:
THE COURT: Another question, Dr. von Preyss-Friedman. "In your
opinion, if not for the final sepsis infection, do you feel Sandy Sharp
would have had another three to six months to live with all of her co-
morbidities?"
THE WITNESS: That's a very difficult question to answer since we
don't have the crystal ball. I would say it is possible. I do feel that
this patient, unfortunately, was at the end of her life. I cannot
distinguish whether it would have been between three and six or less
than three.... I just know that her chance of dying within the next
. .. six months was more than 50 percent.... [I]f that had been my
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No. 77747-5-1/11
patient, I would not have been surprised if she had passed away
fairly quickly.(29]
Sharp objected to Dr. von Preyss-Friedman giving specific time periods. The court
found her answer acceptable and offered to reiterate the limitations at Sharp's
request.
Dr. von Preyss-Friedman did not return to answer the question before the
jury until she testified by telephone three days later, on December 18, 2014.
Before bringing out the jury, the court reminded Dr. von Preyss-Friedman of the
limitations: "[R]emember that you're not to say that antibiotics would not have
helped her in her situation, that they were futile. . . . And not to predict a number of
days of life left."33 The court also confusingly referred to the three to six month
time frame. "You've testified appropriately so far with respect to your estimation of
. . . three to six months or, you know,'We just don't know, but she was in end of
life.'"31
In front of the jury, the court asked the question and Dr. von Preyss-
Friedman answered,"On a more probable than not basis, which means 51 percent
chance, no."32 Sharp objected, and the court dismissed the jury so they could
address the objection. After comparing Dr. von Preyss-Friedman's answer with
her answer during voir dire, the court found the two answers were "categorically
29 RP (Dec. 15, 2014) at 3934-95
3° RP (Dec. 18, 2014) at 4308-09.
31 Id. at 4309.
32 Id. at 4316.
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No. 77747-5-1/12
different."33 The court instructed the jury to disregard Dr. von Preyss-Friedman's
answer.
As to this second violation, the court's finding of defense attorney
misconduct ignores the fact that Dr. von Preyss-Friedman was responding to a
jury question. Although "[p]ersistently asking knowingly objectionable questions is
misconduct,"34 the court allowed the jury question over Sharp's objection.
Additionally, it appears the court proceeded directly from the court's clarification to
allowing Dr. von Preyss-Fried man to answer the jury question by phone, with no
apparent communication between defense counsel and the witness. The record
does not support any implication that defense counsel improperly advised or
coached Dr. von Preyss-Friedman.
The court's finding of "malicious" discovery abuse also seems to confuse
the chronology of events. Notably, the court's findings described Dr. von Preyss-
Friedman's December 18 testimony as "ringing the bell a second time."35 Even if
the court did act within its discretion when it determined the December 18 answer
33 Id. at 4321-22 ("It is categorically different because at the time that she
was asked this question, she indicated, quote, 'I cannot distinguish whether it
would have been between three and six or less than three. . . . [I]t's difficult to say
that. I just know that her chance of dying within the next six months was more
than 50 percent.'. .. Now she's saying categorically three to six months? No. She
would not have survived three to six months. ... This witness was previously
instructed that her previous answers[were]fine and she was not to deviate from
her previous answers and, unfortunately, she deviated.... The difference here is
that she would not render an opinion previously on the three months.").
34 Teter, 174 Wn.2dat 223 (citing 14A KARL B. TEGLAND, WASHINGTON
PRACTICE: CIVIL PRACTICE § 30:33(2d ed. 2009)).
35 CP at 3237.
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No. 77747-5-1/13
violated the specific orders prohibiting Dr. von Preyss-Friedman from offering an
opinion as to Saundra's life expectancy and was categorically different than the
answer in voir dire, her answer was consistent with the court's December 15
limitation concerning futility. The court relied on the cumulative impact of two
distinct answers, the first concerning futility of a particular course of treatment and
the second regarding life expectancy. As a result, the record does not support the
court's finding of "ringing the bell twice."
We conclude the trial court abused its discretion in finding Dr. von Preyss-
Friedman's testimony constituted a malicious discovery violation and defense
attorney misconduct.
B. Mr. Fletcher
Life Care also challenges the trial court's finding of defense attorney
misconduct concerning Todd Fletcher. The court found Life Care's counsel "made
a false statement to the court" concerning Fletcher's connection to Life Care.36
The court also found this false statement was the result of the defense attorney
"either fail[ing] to conduct an appropriate inquiry... or the defense actively
misle[ading] the Court."37
During trial, one of Sharp's witnesses recognized Fletcher and told Sharp
"he was an owner of... several of the units here in the state of Washington."38 As
a result, Sharp subpoenaed Fletcher to potentially lay a foundation for corporate
36 CP at 3235.
37 Id.
38 RP (Nov. 26, 2014) at 2604.
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No. 77747-5-1/14
documents. On November 26, 2014, Life Care challenged the subpoena.
Counsel stated, "He has part ownership in the land, not in any building, not in Life
Care Center. He has no working knowledge of the function of a skilled nursing
facility. He's a landowner... . He doesn't own the building. He's not a member of
Cascade Medical."39 When the court asked Fletcher about his involvement, he
stated that he was "unofficially an interim division vice president while we recruited
for the position."4°
On December 1, 2014, defense counsel revisited the issue and told the
court she had "never met[Fletcher] before he came to this trial."41
[W]hen I asked what is your connection to this facility, his—he told
me he owns a small percentage of the actual land. He is not an
owner of the license holder Cascade Medical, and he has no other
involvement. ...[H]e said at a different time he served as an interim
division vice president, but not at that time. I literally have no
knowledge of this gentleman before he came to the courthouse.. .. I
don't think he can authenticate anything that they've identified as a
document they got an email on. I don't think he has—he has no
relationship or ability to identify Cascade Medical documents.. .. He
doesn't have any ownership interest in Cascade Medical, which is
the one that holds the license for LCC Port Townsend.i421
The trial court's findings concerning Fletcher are inaccurate. The court
found "[t]he defense claimed that not only did Mr. Fletcher have no relevant
39 Id. at 2604-06.
4° Id. at 2608.
41 RP (Dec. 1, 2014) at 2628.
42 Id. at 2628-30.
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No. 77747-5-1/15
information, he had no connection to LCCA."43 But defense counsel never
maintained Fletcher had no connection to LCCA; she admitted he owned the land.
On December 1, 2014, the court expressed concern that Fletcher was not
"completely honest with [Life Care's counsel] about his position. ... I'm concerned
about what you're getting in terms of your argument."44 The court's finding of
misconduct does not acknowledge the court's concern that Fletcher was not
forthcoming with defense counse1.45 And the record is consistent with the court's
initial determination that Fletcher was not honest with defense counse1.46
The court also found "Mr. Fletcher stated. . . he could potentially identify a
management agreement relevant to the case."47 The record reveals that Fletcher
never made this statement. In reality, defense counsel stated, "[H]e could
probably identify a management agreement, but that wouldn't be one that he
signed or was familiar with. . . .[H]e might be able to say that looks like a
management agreement."48
Additionally, defense counsel's statements did not prejudice Sharp because
the trial court allowed Sharp to keep Fletcher under subpoena. Sharp never
43 CP at 3235.
44 RP (Dec. 1, 2014) at 2628-34.
45 See Clark, 195 Wn. App. at 492 ("It is also untenable if a trial court
ignores its own prior ruling when finding misconduct.").
46Although CR 59(a)(2) allows a new trial due to the "[m]isconduct of the
prevailing party," the identified misconduct concerning Fletcher is based solely on
the actions of defense counsel rather than Life Care itself.
47 CP at 3235.
48 RP (Dec. 1, 2014) at 2630.
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No. 77747-5-1/16
argued Fletcher possessed relevant information concerning Saundra's care; Sharp
argued only that he might be able to authenticate corporate documents. And
Sharp never called Fletcher to authenticate documents or otherwise testify.
We conclude the trial court abused its discretion when it found defense
counsel's statements about Fletcher constituted prejudicial misconduct.
C. Wound Care BookNenous Ulcer Stasis Records
Life Care next assigns error to the trial court's finding of a discovery
violation concerning the venous ulcer stasis records. These records kept track of
all the wounds in the facility, with drawings and diagrams of the condition and
location of a patient's wounds. The court found the records were responsive to
Sharp's request for "all medical records related to Mrs. Sharp's care."49 The court
also found,"Even though a filing error apparently precluded their timely disclosure,
there is nothing in the record to explain why the defendants did not identify that
these documents existed."5°
A year before trial, Sharp requested Saundra's medical records from Life
Care. Life Care directed Sharp to Saundra's "medical chart from LCC of Port
Townsend previously produced to Plaintiffs."51 Life Care did not produce the
venous ulcer stasis records at that time.
During the deposition of Mike Cahill, the former director of nursing at Life
Care Port Townsend, Sharp first learned about the "wound care book," otherwise
49 CP at 3230-31.
59 CP at 3231.
51 CP at 3119.
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No. 77747-5-1/17
known as venous ulcer stasis records. As a result, on October 3, 2014, Sharp
sought production of the "Wound Care Book for 2012 for LCC PT."52
Life Care's counsel e-mailed the venous ulcer stasis records to Sharp on
October 26, 2014. Life Care claimed the records should have been put into
Saundra's original chart, but "[w]hen the chart was closed and then copied for us,
and then for you, those pages had not yet been put back into Ms. Sharp's original
chart. It appears this was a filing error. Today, as soon as we realized that these
pages were subsequently put with the closed chart, we copied them and hereby
produce them for you."53
On November 13, 2014, Mary She!key, Sharp's nursing standard of care
expert, testified concerning the venous ulcer stasis records and the time of her
receipt and review of the records. Outside the presence of the jury, Sharp
commented that Shelkey's testimony "create[d] the impression that somehow the
expert was not diligent in reviewing documents or somehow plaintiffs] counsel
didn't provide those."54 The court determined that although the testimony was
problematic for various reasons,"no one has asked for relief, and they didn't at the
time. So what I would encourage counsel to do is, if you seek relief as a result of
that disclosure and that line of questioning, you need to prepare something for me
to rule on. I'm not going to do it ad hoc."55
52 CP at 3088.
53 CP at 2719.
54 RP (Nov. 13, 2014) at 1312.
55 Id. at 1328.
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No. 77747-5-1/18
Even if a trial court properly finds prejudice, a party may be "precluded by
waiver from obtaining a new trial."56 "Unless inadequate to remedy the irregularity
or misconduct complained of, the aggrieved party must request appropriate court
action to obviate the prejudice before the case is submitted to the jury."57
Sharp is precluded by waiver from seeking a new trial based on Life Care's
late disclosure of the venous ulcer stasis records because they did not seek any of
the relief suggested by the court. And the court failed to explain why such relief
would have been inadequate to address the alleged discovery violation.
Life Care also argues the trial court failed to identify any particular prejudice
suffered by Sharp. The court did not address Life Care's argument that the
venous ulcer stasis records are duplicative of information contained in Saundra's
previously disclosed medical chart. Therefore, the trial court's new trial findings do
not establish that late disclosure of these records had any impact on Sharp's
ability to adequately prepare for trial.
We conclude the trial court abused its discretion in finding Life Care
committed a discovery violation for late disclosure of the venous ulcer stasis
records because Sharp waived this issue and failed to establish any prejudice.
56 Spratt v. Davidson, 1 Wn. App. 523, 526, 463 P.2d 179(1969).
57 Id.18
No. 77747-5-1/19
D. Amended Witness List
Life Care also challenges the trial court's findings concerning Life Care's
fifth amended witness list. The court found Life Care's counsel committed
misconduct because they filed an amended witness list with "new witnesses not
previously disclosed."58 The new witnesses were Olga Kapitanov and Vivian
Prange.
On November 26, 2014, Annie Cullen, a resident care manager at Life Care
Port Townsend, testified that Kapitanov, the director of nursing, was "there when
Sandy Sharp was there."59 Life Care claims they did not designate Kapitanov
earlier because she did not start at Life Care Port Townsend until November 2012,
after Sharp left the facility in October 2012. On cross-examination, Life Care
elicited testimony that Cullen could not "honestly say exactly what day [Kapitanov]
was transferred to [Life Care Port Townsend].. . . Probably late October."89
Cullen also testified that Prange, a nurse at Life Care Port Townsend,
previously asked Cullen for help with treatments. Cullen interpreted that to be "the
result of a complaint of understaffing" because "[i]f we were adequately staffed. ..
those comments would have never been made."81
55 CP at 3235.
59 RP (Nov. 26, 2014) at 2527.
69 j.çj. at 2550-51.
61 Id. at 2557.
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No. 77747-5-1/20
Also on November 26, 2014, Basha Berl, a nurse at Life Care Port
Townsend, testified that Kapitanov told her that Saundra was "not going
anywhere" in response to Ben's concern about Saundra's worsening condition.62
On December 2, 2014, Life Care submitted an amended witness list which
listed Kapitanov and Prange for the first time. Both were "offered to rebut
testimony offered by plaintiff in his case in chief."63 On the same day, Life Care
elicited testimony from Raymond Thompson, division vice president for Life Care
Center America Northwest Division, that Kapitanov did not start at Life Care Port
Townsend until November 2012, after Saundra left.
On December 4, 2014, Sharp asked the court to order Life Care to "produce
all documents that they have reflecting where Olga worked in September and
October, so that their claim that she . . . could not have been in the building during
Ms. Sharp's residency can be tested."64 Sharp's counsel admitted, "I'm not
addressing the late addition of these witnesses at this time."65 The court ordered
the production of Kapitanov's personnel file, staffing sheets, and punch detail. Life
Care provided these documents the next day.
On December 8, 2014, Sharp moved to exclude Kapitanov and Prange as
witnesses "[b]ecause Defendant's disclosure. . . is nearly two months late."66 On
62 Id. at 2592.
63 CP at 880.
64 RP (Dec. 4, 2014) at 3178.
65 Id. at 3179.
66 CP at 888.
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No. 77747-5-1/21
December 12, 2014, Life Care told the court they would not call Kapitanov, so the
court determined the motion to exclude was moot as to Kapitanov. And on
December 15, 2014, Sharp stated, "[T]he defense has already determined they're
not going to call Ms. Prange, so that motion will become moot."67
Life Care claims the court's findings concerning the amended witness list
are not supported by the record and are inconsistent with trial management
decisions. Although the court did not rely on inaccurate facts when it entered
these findings, the court did fail to address how Sharp was prejudiced by the
amended witness list because Life Care never called Kapitanov or Prange to
testify. The record does not establish the amended witness list impacted Sharp's
ability to prepare for trial.
We conclude the trial court abused its discretion in finding prejudicial
defense counsel misconduct concerning the amended witness list.
E. Guide to Infection Control
Life Care next assigns error to the trial court's findings concerning
disclosure of"A Guide to Infection Control." The trial court found Life Care failed
to timely disclose the guide.
In January 2014, Sharp requested all records concerning "any policy, rule,
regulation, procedure, protocol, guideline, form, or standard concerning or
referring to the evaluation of patients to determine their potential for developing
sores, bed sores, and/or blisters and the treatments of sores, bed sores, and/or
67 RP (Dec. 15, 2014) at 3823.
21
No. 77747-5-1/22
blisters."68 On February 27, 2014, Life Care objected to the request as "vague and
unintelligible" but stated they would turn over such records "upon entry of a
protective order."68
In April 2014, Sharp again requested Life Care "produce accurate copies of
the Policy and procedure manual for staff in effect at Life Care Center of Port
Townsend, Cascade Medical Investors Limited Partnership, as of January 1,
2012.'70 On May 12, 2014, Sharp's counsel e-mailed Life Care's counsel and
said, "In the interest of efficiency, if LCC provides Plaintiff with a summary or table
of contents of LCC's policies, Plaintiff will request specific policies."71
On May 16, 2014, Life Care provided a table of contents for "Clinical
Services Policies & Procedures Nursing," Volumes 1 and 2. On May 21, 2014,
Sharp requested Chapter 10 from Volume 2, along with other chapters from the
two manuals. Chapter 10 contained the general infection control policy with a
reference to "A Guide to Infection Control" from Life Care Centers of America. On
May 29, 2014, Life Care provided Chapter 10, along with the other requested
sections. Sharp specifically requested production of"A Guide to Infection Control"
on August 29, 2014, and Life Care produced the guide on September 29, 2014,
more than a month before trial.
68 CP at 3111, 3122.
69 CP at 3122.
79 CP at 2321.
71 CP at 2316.
22
No. 77747-5-1/23
Life Care contends the trial court failed to identify any particular prejudice
suffered by Sharp. The trial court generally concluded that Life Care's various
discovery violations "prevented a fair trial."72 But there are no particular findings
regarding the prejudicial impact of Life Care's untimely disclosure of"A Guide to
Infection Control."
There are legitimate concerns with lack of prejudice. Sharp had the guide
more than a month before trial. During Nataliaya Yakimenko's deposition, Sharp
asked about the guide, but did not seek to admit or otherwise refer to the guide
during trial. And the record does not suggest that Sharp provided the actual guide
in support of the motion for new trial. As a result, there is no evidence that the trial
court reviewed or considered the contents of the actual guide when analyzing the
presence of any prejudice from its late disclosure. In this context, the trial court's
general finding of prejudice is inadequate.
F. Ms. Yakimenko
Life Care also challenges the trial court's findings concerning Nataliya
Yakimenko. Yakimenko was called by Life Care as a corporate nursing witness.
The trial court found Life Care's failure to disclose Yakimenko as a fact witness
was a discovery violation. The court also found Life Care committed a discovery
violation for failing to disclose Yakimenko's "calendar."73 The trial court found this
information was responsive to several discovery requests. The trial court also
72 CP at 3241.
73 CP at 3229.
23
No. 77747-5-1/24
found defense counsel's failure to produce this information constituted misconduct.
A year before trial, Sharp requested the name and contact information of
"each person having personal knowledge of facts material to this case."74 Life
Care did not identify Yakimenko. Shortly before trial, Sharp asked Life Care to
"[p]roduce a list of names of all doctors, nurses, staff members, and caregivers of
any kind who provided care to Mrs. Sharp during her residency at LCC PT."75
Again, Life Care did not identify Yakimenko.
As the regional director of clinical services, Yakimenko regularly visited
various Life Care facilities. While assessing the quality of nursing care at a given
facility, Yakimenko would work "shoulder to shoulder" with nurses, observing and
assisting them.76 On a few occasions while Saundra was at Life Care, Yakimenko
assisted other nurses providing care to Saundra. On December 8, 2014,
Yakimenko testified that she had "[a] couple of interactions with [Saundra,].. . at
least four different interactions."77 On cross-examination, Sharp questioned
Yakimenko about her memory. Sharp asked Yakimenko how she could determine
the exact date she saw Saundra, and she responded that she would "have to look
through notes."78
74 CP at 3105.
75 CP at 3088.
76 RP (Dec. 8, 2014) at 3267.
77 Id. at 3244.
75 Id. at 3274.
24
No. 77747-5-1/25
The next day, Life Care's counsel told the court that she might offer
Yakimenko's "visit reports which constitute her calendar of events," to respond to
Sharp questioning Yakimenko's memory.79 Sharp asked the court to exclude the
notes. The court determined that Yakimenko could "testify that she keeps
computer records, that she keeps a calendar, and that she went back over the
evening hours between yesterday and today and did what she did, double
checked, and made sure that that was correct."8°
Also on December 9, 2014, Yakimenko identified three more days she
interacted with Saundra. On direct, Life Care asked Yakimenko how she identified
the additional days, and Yakimenko responded, "[That's from my calendar and my
notes that! have saved."81
Sharp requested the production of Yakimenko's calendar pursuant to an
order in limine that required Life Care to produce all documents reviewed by
defense witnesses in preparation for trial. Life Care agreed to provide any
documents reviewed by Yakimenko but maintained the calendar was not subject
to the order. The next day, Sharp e-mailed Life Care to follow up about disclosure
of Yakimenko's calendar.
Life Care argues the court's findings of a discovery violation and
misconduct for Life Care's failure to disclose Yakimenko as a fact witness are
premised on inaccurate facts and are inconsistent with trial management
79 CP at 1210(emphasis added).
89 RP (Dec. 9, 2014) at 3314.
81 Id. at 3349.
25
No. 77747-5-1/26
decisions. But the record establishes that, even though there were only a few
instances, Yakimenko was present and involved'with Saundra's treatment. It was
within the discretion of the trial court to determine that Life Care should have
disclosed Yakimenko's interactions with Saundra in response to discovery
requests for information about caregivers and individuals with factual knowledge of
the case.
During oral argument in this court, Life Care contended Yakimenko was
technically disclosed when they provided Saundra's medical chart. Although
Yakimenko testified that her initials appear in Saundra's chart in several instances,
she also testified concerning other times she interacted with Saundra which do not
appear in the chart.
Life Care also argues the trial court failed to identify any particular prejudice
suffered by Sharp. The trial court did note that Yakimenko's testimony that she
interacted with Saundra was a surprise without articulating any particular prejudice
resulting from the surprise. In context, Yakimenko's interactions with Saundra
were largely, if not entirely, in her role of observing the quality of the work of the
nurses providing direct care to Saundra. She described a few treatment notes she
made in which she observed the presence of a leg blister containing clear fluid,
provided a tray, and tried to convince Saundra of the benefits of using a salt
substitute. This testimony appears to be cumulative to the observations by nurses
giving direct care and was on largely undisputed topics. Notably, as to
26
No. 77747-5-1/27
Yakimenko's testimony about staffing levels, there was no surprise because Sharp
had addressed staffing levels during Yakimenko's two CR 30(b)(6) depositions.
And, in view of the cumulative and noncontroversial nature of the surprise
testimony, there was no showing that lack of notice inhibited Sharp's ability to
adequately cross-examine Yakimenko. Notably, Sharp did not request additional
time to prepare for cross-examination.
Absent some stronger link between Life Care's failure to disclose
Yakimenko as a fact witness and any significantl disputed fact, the trial court's
general finding of prejudice does not satisfy the level of prejudice required to grant
a new trial. Life Care's failure to disclose did not make it extremely difficult for
Sharp to prepare for trial.
As to Life Care's failure to produce Yakimenko's calendar, there is no
resolution by the trial court of Life Care's assertion that Yakimenko had consulted
her "visit reports which constitute her calendar of events."82 And Life Care
provided Yakimenko's visit reports for 2012. Sharp did not seek further relief
regarding the calendar.
The trial court's general finding of prejudice is not compelling in this context.
The issues related to Yakimenko do not support a new trial.
82 Life Care claims Yakimenko did not review an actual calendar, but rather
"notes she maintained on her laptop relating to meetings she attended during her
visits to Life Care Port Townsend." Appellant's Br. at 42.
27
No. 77747-5-1/28
G. Dr. Forbes's Meeting Notes
Life Care also challenges the trial court's findings concerning disclosure of
Dr. Karen Forbes's meeting notes. Dr. Forbes was the medical director at Life
Care Port Townsend. After Saundra's death, Dr. Forbes held a meeting to discuss
deficiencies in charting. At the meeting, Dr. Forbes provided excerpts of
Saundra's chart with her handwritten criticism.
In early 2014, Sharp requested information for "all persons who are or have
been investigating" Saundra's case.83 Shortly before trial, Sharp requested (1)"all
documents related to any internal investigation of Mrs. Sharp's case,"(2)"all
documents made by staff members or employees at LCC PT and sent to LCCA
regarding Mrs. Sharp's case,"(3)"all documents regarding remedial measures
taken with respect to improving wound care and/or infection control at LCC
facilities."84 Life Care did not produce Dr. Forbes's notes in response to these
discovery requests.
At some point, Sharp obtained Dr. Forbes's meeting notes And on
November 18, 2014, Sharp offered them as a party opponent admission. Life
Care argued the notes were not admissible because Dr. Forbes was an
independent contractor and did not have the authority to bind Life Care as an
agent. The court admitted the notes because "it was part of her job assignment to
83 CP at 3105.
84 CP at 3094, 3087.
28
No. 77747-5-1/29
meet with the staff and talk to them," and she "did have the authority to make this
statement."85
In the court's new trial findings, Life Care's failure to disclose the notes was
found to be a discovery violation. The record does support the finding that the
notes were responsive to Sharp's request for all documents related to any internal
investigation of Mrs. Sharp's case, but the prejudice resulting from Life Care's "late
disclosure" of the meeting notes depends in part on the extent of the delay. Here,
the record does not reveal how or when Sharp obtained the notes,88 and it does
not appear that the trial court considered the impact of the delay in obtaining the
notes. In this setting, the trial court's general finding of prejudice is not adequate.
We conclude the trial court abused its discretion in granting a new trial for
this discovery violation because there was not an adequate showing of prejudice.
H. Punch Detail
Life Care next challenges the trial court's finding of discovery abuse
concerning the punch detail. The punch detail shows the clock-in and clock-out
times for Life Care Port Townsend employees. The trial court found Life Care
failed to timely disclose the punch detail.
On August 20, 2014, during Sharp's deposition of Brooke Mueller, a
CR 30(b)(6) corporate witness, Mueller referenced certain staffing documents. On
85 RP (Nov. 18, 2014) at 1791.
86 At oral argument, Sharp asserted they received the notes when one of
the nurses testified. Sharp offered the notes during the testimony of nurse Marilyn
Smith on November 18, 2014, but the record contains no mention of how or when
Sharp became aware of them.
29
No. 77747-5-1/30
August 28, 2014, Sharp asked Life Care to produce some of those documents,
including "[e]mployee time cards for Sept and Oct of 2012" and a "Mist of names of
employees during Sharp's residency at LCC PT."97 On September 29, 2014, Life
Care responded to Sharp's request with the employee punch detail.
During trial, when discussing the admissibility of an ER 1006 summary
chart of staffing levels for September to October 2012, Life Care repeatedly
referred to the punch list as "raw data."88 But on January 5, 2015, Thompson
testified that the punch list was edited by "correction sheets."89 Sharp asked the
court to exclude the punch detail because Life Care had not provided the
correction sheets needed to test the accuracy of the punch list. The court
determined the punch list was admissible and the correction sheets "should be
provided .. . so that [c]ounsel could have an opportunity to check the accuracy of
the data."9° Life Care provided the correction sheets the next day.
As to the punch detail itself, Sharp did not request the punch detail until
August 2014, and Life Care timely provided the document in September, more
than a month before tria1.91
87 CP at 328.
88 See RP (Dec. 12, 2014) at 3800, 3803-04.
89 RP (Jan. 5,2015) at 4477-88.
90 Id. at 4489.
91 In the memorandum opinion granting a new trial, the court appears to find
various staffing documents were responsive to interrogatories 14, 31, and 33 from
Sharp's January 2014 discovery requests, but the court fails to identify the specific
request to which the punch detail was responsive. And the vaguely identified
requests do not support any finding that the punch list was responsive to a request
prior to August 2014. In interrogatory 14 and the accompanying request for
30
No. 77747-5-1/31
Life Care also contends the trial court failed to identify any particular
prejudice suffered by Sharp due to the untimely disclosure of the punch detail.
The court's general prejudice determination that4_ife Care's various discovery
violations prevented a fair trial is not compelling when Sharp had the punch detail
for over a month before the trial started in November 2014.
The court found Life Care committed a discovery violation when they
"repeatedly represented that the punch list was raw data."92 In the new trial
findings, the court also found the correction sheets "were not referenced,
identified, or disclosed by Defendants during discovery" even though such
information was "highly responsive to a number of interrogatories."93
As to the "raw data" statements and the failure to disclose the existence of
correction sheets, Sharp is precluded by waiver from seeking a new trial on these
grounds. On January 6, 2015, the day Life Care provided the correction sheets,
the court told Sharp,"[Thu should have the opportunity to be able to prepare with
production 10, Sharp seeks any and all evidence "relative to the occurrence or the
issue of damages." CP at 3108, 3121. Interrogatory 14 is not compelling because
it is overly broad. In interrogatory 31 and request for production 18, Sharp seeks
information concerning "staffing reductions or increases." CP at 3115, 3123. The
punch detail is not responsive to interrogatory 31 because the punch detail would
not meaningfully correlate to changes in staffing levels. In interrogatory 33 and
request for production 20, Sharp seeks the "patient to staff ratio at the facility."
CP at 3116, 3124. Even if the punch detail provides very general background to
staff ratio computations, the punch detail is not responsive to interrogatory 33
because Life Care determined the staffing ratios by a review of a labor analysis.
And the labor analysis and punch detail are separate documents.
92 CP at 3223.
93 Id.
31
No. 77747-5-1/32
those documents, so I will give you the time that you actually need."94 Prior to the
court's statement, Sharp's counsel indicated he would be prepared to cross-
examine on the reliability of the punch detail the next day. The next day, Sharp
told the court he had gone through the punch detail and correction sheets "in
extreme detail."95
Similarly, Sharp cannot show prejudice because counsel told the court he
had sufficient time to review the correction sheets, and he was able to cross-
examine Thompson on the reliability of the information. The trial court did not
reconcile its finding of prejudice with Sharp's representations at trial.
We conclude the trial court abused its discretion in finding Life Care
committed discovery abuse in this area because the production of the punch detail
was timely. As to the correction sheets and "raw data" statements, Sharp waived
this issue and there is a lack of prejudice.
I. Mr. Thompson
Life Care next assigns error to the trial court's findings concerning
Raymond Thompson. Life Care produced Thompson as CR 30(b)(6) corporate
witness for Life Care Centers of America. The trial court found that Thompson
"possessed relevant factual information" concerning staffing.96 The court found
that the failure to disclose this information constituted a discovery violation and
defense attorney misconduct.
94 RP (Jan. 6,2015) at 4605.
95 RP (Jan. 7,2015) at 4640.
96 CP at 3231, 3234-35.
32
No. 77747-5-1/33
On July 24, 2014, Sharp e-mailed Life Care's counsel to seek a deposition
of Thompson as a fact witness. On July 31, 2014, Life Care's counsel responded
and stated Thompson "had no knowledge of Ms. Sharp's care."97 On August 5,
2014, Life Care moved for a protective order because "Mr. Thompson has no
discoverable information related to this lawsuit."98 The court denied the protective
order, and Thompson was deposed before trial as a fact witness and during trial
as a CR 30(b)(6) witness.
Even though Life Care should have disclosed Thompson had significant
information concerning staffing procedures and documentation, the trial court did
not identify any particular prejudice suffered by Sharp. Specifically, Sharp was
able to depose Thompson as a fact witness before trial. The trial court's general
finding of prejudice is not compelling in this context.
As to misconduct, the trial court findings depend on "[t]he defense falsely
stat[ing]" Thompson did not have relevant information.99 But on January 7, 2015,
the court stated, "I don't even think the defense attorney knew[]until after Mr.
Thompson had been questioned about databases at the company and what those
databases reflect."199 The record is entirely consistent with Thompson not being
97 CP at 183.
98 CP at 180-81.
99 CP at 3234.
180 RP (Jan. 7,2015) at 4777.
33
No. 77747-5-1/34
forthcoming with defense counse1.101 The trial court did not acknowledge or
reconcile this initial determination.102 As a result, the record does not support the
court's findings of attorney misconduct.
We conclude that the court abused its discretion in finding prejudicial
discovery abuse and defense attorney misconduct based on Thompson.
J. Staffing Ratios
Life Care next assigns error to the trial court's findings concerning discovery
of staffing ratios. The trial court found Sharp requested (1)"information regarding
patient-to-staff ratios at the facility,"(2)"all documents that related to LCCA's
evaluation of staffing levels at the facility," and (3)"all documents reflecting staffing
levels and other information in Mrs. Sharp's unit."103 The trial court also found
"daily staffing sheets," which "designated what employees worked in which units
.. . and were responsible for a particular resident's chart notes. .. were relevant
to the Plaintiff's interrogatories and to their claims."104 And the trial court found
"Defendants failed to disclose the existence [and destruction] of daily staffing
sheets."105 The trial court identified information about staffing levels was
responsive to several discovery requests.
101 Although CR 59(a)(2) allows a new trial due to the "[m]isconduct of
prevailing party," the identified misconduct concerning Thompson is based solely
on the actions of defense counsel.
102 See Clark, 195 Wn. App. at 492 ("It is also untenable if a trial court
ignores its own prior rulings when finding misconduct.").
103 CP at 3225.
104 CP at 3225-26.
105 CP at 3226.
34
No. 77747-5-1/35
In January 2014, Sharp requested information on the "patient staff ratio at
the facility.”106 Life Care responded,"Assuming this Interrogatory refers to the
nursing caregiver patient ratio for the four weeks of Ms. Sharp's residency,[per-
patient-day]for nursing care was 3.56, 3.43, 3.15 and 3.23."1°7 Sharp also
requested all records responsive to this interrogatory. Life Care did not disclose or
produce the daily staffing sheets. Shortly before trial, Sharp requested "all
documents relating to LCCA's evaluation of staffing levels at LCC PT"108 Life Care
claimed "they [were] not aware of any such written documents."108
On January 5, 2015, Amanda Edgar, a nurse at Life Care Port Townsend,
testified that each day employees typically initialed "staffing sheets" containing
"nurses names and what room numbers they are assigned" on a given day, but
she had no knowledge whether those daily sheets were preserved.110 On
January 7, 2015, Thompson also testified about staffing sheets)" Thompson
testified the purpose of the daily staffing sheets was to allow staff to "have an idea
as to where they are supposed to be working" that day.112 Life Care did not
preserve the staffing sheets, and they were not required to do so.
106 CP at 3116.
107 Id.
108 CP at 3093.
109 id.
110 RP (Jan. 5,2015) at 4573.
111 RP (Jan. 7,2015) at 4707("That would tell you who, prior to showing up
that day, was scheduled to work in the facility that we thought was going to come
to work and would be working on those units for, those room numbers.").
112 Id. at 4706.
35
No. 77747-5-1/36
The trial court found Life Care "failed to disclose the existence of the daily
staffing sheets."113 The implied premise of this finding is that the staffing sheets
were in existence at the time of Sharp's discovery requests. But the record before
us does not support any reasonable inference that those daily sheets were
regularly preserved and in existence at the time of the discovery request. And the
trial court did not find that Life Care had any obligation to retain and preserve daily
staffing sheets.
Because the premise fails, the trial court's findings regarding daily staffing
sheets do not support any discovery violation orl attorney misconduct. We
conclude the record does not support the trial court's finding of a prejudicial
discovery violation for Life Care's failure to disclose the existence of the staffing
sheets which were never retained.
K. CR 30(b)(6) Witness
Life Care also challenges the trial court's findings concerning CR 30(b)(6)
corporate witness testimony. The trial court found that Life Care failed to produce
a prepared corporate witness and that this failure was willful. The court found this
failure constituted a discovery violation and defense attorney misconduct.
On July 30, 2014, Sharp requested a CR 30(b)(6) deposition on a variety of
topics. On August 20, 2014, Life Care produced Brooke Mueller, the executive
director of Life Care Center Port Townsend, to respond to the listed topics. After a
113 CP at 3226.
36
No. 77747-5-1/37
few hours, Sharp suspended the deposition to provide Mueller "with time to
prepare to answer questions" concerning staffing.114
On August 29, 2014, Sharp renewed their request for a deposition of a
CR 30(b)(6) witness and provided a more detailed list of topics, including, lap
employment statuses of all staff members or employees, including but not limited
to CNAs, RNs, wound care nurses, the director of nursing.)2115
On September 12, 2014, Sharp also successfully moved for an order
compelling the attendance of a "[p]roperly [p]repared" CR 30(b)(6) witness for
deposition "without[s]peaking [o]bjections or [i]nstructions [n]ot to [a]nswer
[q]uestions."116 On October 6, 2014, Sharp conducted a second deposition of
Mueller.
During the deposition, Mueller had difficulty answering Sharp's question of
how many people worked a particular shift, for example, October 9, 2012, even
after a 24-minute recess to allow her to work with the 177-page punch list she
brought to the deposition. Sharp asked Mueller, "[Us there someplace that you are
aware of where there is a record of how many nurses were available on each shift
and what their professional training was?"117 Mueller responded,
There is not a list. I would have to go through and put every
individual's name, either looking in their associate file or looking on
the Washington State provider credential search to find out what title
they held. There is not a list of people who were assigned to any
114 CP at 325.
115 CP at 333.
116 CP at 348.
117 CP at 5421.
37
No. 77747-5-1/38
given unit on any given day. That. .. list does not exist. So it is
these time punch details and it is going through person by person
to—for me to verify what licensure they hold, because I was not in
the facility at the time that this occurred. So I do not know each of
these associates.[119]
The court determined Mueller was not prepared at the second deposition
and "that this was a violation of the Court's order to produce a prepared
witness."119 The court sanctioned this "willful" discovery violation by limiting
Mueller's testimony to her deposition testimony.129
Two of Life Care's arguments are not compelling. First, Life Care argues
the trial court did not identify why the original sanction of binding Mueller to her
deposition testimony was insufficient. But this argument ignores the trial court's
explicit finding "that the sanction it imposed at trial. .. denied the Plaintiffs an
opportunity to discover and produce for the jury information relevant to the pre-
defined 30(b)(6) topics from the corporate witnesses."121
Second, Life Care argues that Sharp failed to object at trial, but Sharp did
object at trial by seeking CR 37 sanctions, and the court granted the request.
Sharp is not precluded by waiver from seeking a new trial as a result of Life Care
failing to produce a "prepared" corporate witness.
Life Care also claims Sharp cannot show prejudice warranting a new trial
based upon this single discovery violation. In this unique context, we agree.
118 Id.
119 RP (Dec. 18, 2014) at 4351.
129 Id. at 4352-53.
121 CP at 3228.
38
No. 77747-5-1/39
Sharp's claim of inadequate staffing does implicate the number and
qualifications of staff available to care for Saundra. But the lack of a single
witness prepared to correlate several different documents and reconcile the
number and qualification of particular staff was of limited significance. Notably,
Sharp had access to records allowing such a determination. Sharp presented the
jury an exhibit comparing the number of certified nurse assistants to nurses at Life
Care each month. And other witnesses were available to address the adequacy of
staffing. At trial, Sharp elected to present the testimony of former nurses at Life
Care Port Townsend that the staff was overworked. There is no finding by the trial
court that the lack of a fully prepared CR 30(b)(6) witness able to correlate the
number of employees and their qualifications made it extremely difficult for Sharp
to prepare for trial.
We are mindful of the great deference to a trial court in finding prejudice
and granting a new trial. But the trial court's general conclusions about orderly
preparation for trial do not establish adequate prejudice warranting a new trial
based on this single discovery issue
L. Conclusion
In this unique setting, the trial court order granting a new trial fails. The trial
court did not make its decision until more than a year after the parties completed
briefing on the motion for new trial, and the trial'court did not have access to the
full record of the proceedings. As a result, several of the trial court findings are
inaccurate. In some instances, the trial court failed to reconcile its order granting a
39
No. 77747-5-1/40
new trial with its rulings and observations during'trial. The record does not support
willful and malicious incidents of misconduct by defense counsel. The trial court
ignored the doctrine of waiver as it applies to motions for new trial. Finally, the trial
court's vague and general observations about prejudice do not apply the correct
standard for a new trial.
Contrary to the theme relied upon by the trial court, there is no pattern of
malicious attorney misconduct or egregious discovery abuses.
II. Attorney Fees and Costs
Because we reverse the order granting a new trial, the trial court's
corresponding award of attorney fees and costs to Sharp also fails.
III. Fees on Appeal
Sharp seeks fees on appeal under RAP 18.1(a), CR 26, and CR 37.
Because Sharp is not the prevailing party on appeal, we decline to award fees.
Therefore, we reverse the orders granting a new trial and awarding costs
and fees to Sharp.
WE CONCUR:
40