Burnet v. Spokane Ambulance

Although we have adopted rules which provide for strong case management by trial court judges in order to speed up the administration of justice in our courts,6 the majority determines the trial court here abused its discretion in exercising its case *Page 500 management authority under our civil rules. Yet, the trial court did not abuse its discretion under our rules for discovery conferences and pretrial conferences, and properly limited discovery on a theory when the Burnets did not comply with the pretrial discovery order. I would affirm the trial court.

FACTS As the majority recounts in its opinion, this case arose out of conduct which occurred in 1983 and 1985. The original lawsuit was filed in 1984 and has gone through numerous permutations before reaching us in its present form. Various defendants have settled with the Burnets. New sets of defendants have been joined. The case is 12 years old. It has also been the subject of previous appellate review. See Burnetv. Spokane Ambulance, 54 Wn. App. 162, 772 P.2d 1027, reviewdenied, 113 Wn.2d 1005, 777 P.2d 1050 (1989). The case has also been characterized by constant conflicts between counsel in which the lawyers heaped personal abuse upon one another. The trial court imposed some $8,000 in sanctions on counsel for plaintiff alone.

The present controversy relates to an order, entered by the court in response to Sacred Heart's October 12, 1990 motion, requiring the Burnets to identify all of their experts by December 1, 1990, and make them available for deposition no later than 60 days thereafter. In response to interrogatories submitted prior to the entry of the discovery order, *Page 501 the Burnets filed supplemental answers on April 18, 1991, asserting that Sacred Heart Hospital (Sacred Heart) was negligent in failing to properly review the credentials of two of its physicians who treated Tristen Burnet.

In response to the supplemental answers, Sacred Heart asked the trial court to convene a conference pursuant to CR 16 and 26(f) and to enter a protective order prohibiting discovery on the Burnets' credentialing claim because they had not pleaded such a cause of action.7 Sacred Heart specifically argued to the trial court that the Burnets could not amend their complaint to assert a negligent credentialing issue. The trial court entered an order granting Sacred Heart's motion because a claim for corporate *Page 502 negligence pertaining to credentialing of Sacred Heart staff physicians was not then at issue in the case and there could be no discovery on it. The trial court, however, did not foreclose a CR 15 motion by the Burnets to amend their complaint to specifically assert the issue of corporate negligence predicated on negligent credentialing. Subsequently, the Burnets amended their complaint several times, but failed to properly assert a negligent credentialing claim. On November 4, 1992, the Burnets sought leave to file another amended complaint adding this claim. As no disposition of this motion appears in the record it was apparently struck and not heard. The Burnets also raised the negligent credentialing issue before trial, but the trial court adhered to its July 8, 1991 order. Burnet v. Spokane Ambulance, No. 14052-1-III, slip op. at 5 (Wash.Ct.App. Aug. 10, 1995).

ANALYSIS A. CR 16/CR 26(f) Conferences

Sacred Heart moved under CR 16 and CR 26(f) for a conference before the trial court. The combination of the rules as authority for the conference ultimately held by the trial court created unnecessary confusion.

CR 16, based on a federal counterpart and adopted in 1967, provides as follows:

(a) Hearing Matters Considered. By order, or on the motion of any party, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) Such other matters as may aid in the disposition of the action.

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(b) Pretrial Order. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

Generally, the purpose of a CR 16 conference is to compel the parties to disclose their claims and defenses, and to allow the parties and the court to assess the need for amendments to the parties' pleadings. See 3A LEWIS H. ORLAND KARL B. TEGLAND, WASHINGTON PRACTICE 404-05 (4th ed. 1992). In entering orders based on the pretrial conference, the trial court enjoys substantial discretion in dealing with cases. Such orders have addressed evidentiary rulings, witness lists, and agreed facts.Id. at 406. The trial court may even limit the number of expert witnesses. Vasquez v. Martin, 46 Wn. App. 480, 491,731 P.2d 510 (1986), review denied, 108 Wn.2d 1021 (1987).

Once entered, the pretrial order controls the subsequent handling of the case, unless modified. Stempel v. Department ofWater Resources, 82 Wn.2d 109, 115, 508 P.2d 166 (1973). A pretrial order may be modified if a party can demonstrate a manifest injustice will result from the enforcement of the order:

The general rule is that new theories will not be entertained after the parties have entered into pretrial conference and a pretrial order has been issued as a result. The parties are bound by the facts agreed to and established by the order.

Esmieu v. Schrag, 92 Wn.2d 535, 537, 598 P.2d 1366 (1979) (citations omitted).

CR 26(f) is of more recent vintage. Adopted in 1985, the rule states: *Page 504

Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes:

(1) A statement of the issues as they then appear;

(2) A proposed plan and schedule of discovery;

(3) Any limitations proposed to be placed on discovery;

(4) Any other proposed orders with respect to discovery; and

(5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.

Each party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party.

Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion.

Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any, and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires.

Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by rule 16.

Again, the rule provides for substantial judicial discretion in the entry of the order and expressly provides the order may be "altered or amended whenever justice so requires."

B. The Discovery Conference Order Entered by the Trial Court *Page 505

The trial court entered two key orders in this case. It ordered the Burnets to disclose experts by December 1, 1990 and to make them available for deposition no later than February 1, 1991. The Burnets subsequently revived the physician credentialing claim when they filed supplemental answers to interrogatories on April 18, 1991. These answers were filed long after the discovery cutoff date of December 1, 1990. This action prompted Sacred Heart's request for a discovery conference. As a result of the conference, the trial court entered an order on July 8, 1991 which found "claims based on the doctrine of corporate negligence regarding credentialing have not been sufficiently pleaded nor have responses to discovery given sufficient notice of any such claim against Sacred Heart Medical Center" and ordered:

[N]o claim of corporate negligence regarding credentialing is at issue in this litigation and there shall be no further discovery from defendant Sacred Heart Medical Center on that issue.

Clerk's Papers at 194-95. Sacred Heart also argued the Burnets should not be permitted to amend their pleadings to include a negligent credentialing claim. However, no such bar to amendment appears in the order.

Although there has been some confusion in the case as to whether this order was based on CR 16 or CR 26(f), as the majority notes, majority op. 490 n. 1; 493 n. 3, the operative effect of the order is the same whether based on CR 16, or CR 26(f). The order was a proper exercise of the trial court's discretion to manage the case.

It is the proper function of the trial court to exercise its discretion in the control of litigation before it. Doe v. PugetSound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991). The trial court possesses broad discretion to manage discovery in a fashion that will implement full disclosure of relevant information and at the same time protect against harmful side effects. To that end, the court can issue protective orders regulating the extent and manner of *Page 506 discovery. State v. Hamilton, 24 Wn. App. 927, 935-36,604 P.2d 1008 (1979) (citations omitted), review denied, 94 Wn.2d 1007 (1980). See also Rhinehart v. Seattle Times Co., 98 Wn.2d 226,232, 654 P.2d 673 (1982), affirmed, 467 U.S. 20,104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984); Penberthy Electromelt Int'l, Inc.v. U.S. Gypsum Co., 38 Wn. App. 514, 521, 686 P.2d 1138 (1984). Thus, the entry of orders by the trial court on discovery matters is within the discretion of the trial court and we review such orders only when the trial court has abused its discretion.

C. Preservation of the Alleged Error

An important threshold question in this case is whether the Burnets properly preserved any error associated with the trial court's July 8, 1991 order for review. An order under CR 16 or CR 26(f) is modifiable, but the Burnets failed to move to modify the July 8, 1991 order.

By failing to do so,8 they failed to mitigate any harm arising from the alleged error with respect to the order and did not effectively preserve the error for appellate review.See, e.g., State v. Jackman, 113 Wn.2d 772, 779-82,783 P.2d 580 (1989) (defendant could not move for new trial under CrR 7.6(a)(3) where witness did not appear at trial and defendant failed to move for continuance); State v. Gallo, 20 Wn. App. 717,728, 582 P.2d 558 (error not considered where counsel objected to answer after it was given, but failed to move to strike the answer), review denied, 91 Wn.2d 1008 (1978).

In federal cases arising under the counterpart to CR 16, the failure to seek modification of conference orders forecloses appellate review. In Flannery v. Carroll, 676 F.2d 126, 129-32 (5th Cir. 1982), the Fifth Circuit Court of Appeals held that plaintiffs had waived one of their claims by failing to include it in a pretrial order or requesting amendment of the order noting: *Page 507

The pre-trial order is an indispensable mechanism in the district court. Its purpose is to determine which of the claims pleaded will actually be tried. The claims, issues, and evidence are limited by the order and the course of the trial is thereby narrowed to expedite the proceeding. Once the order is entered, it controls the scope and course of the trial, Fed.R.Civ.P. 16. If a claim or issue is omitted from the order, it is waived.

Because of the importance of the pre-trial order in achieving efficacy and expeditiousness upon trial in the district court, appellate courts are hesitant to interfere with the court's discretion in creating, enforcing, and modifying such orders. District courts are encouraged to construe pre-trial orders narrowly without fear of reversal. Unless the court has abused its discretion, its rulings concerning the order will not be disturbed on appeal.

. . . .

Because the pre-trial order omitted the [state] claim, defendant had the right to believe the claim was waived unless and until plaintiffs sought to amend the order.

Flannery, 676 F.2d at 129, 131 (citations omitted). See alsoHullman v. Board of Trustees of Pratt Community College,950 F.2d 665, 668 (10th Cir. 1991) (the pretrial order "measures the dimensions of the lawsuit, both in the trial court and on appeal," holding in absence of any motion to amend or modify pretrial order, community college administrator failed to identify in his alleged protected free speech claim a theory of financial mismanagement); Fernandez v. United Fruit Co.,200 F.2d 414-15 (2d Cir. 1952) (no error where court does not allow plaintiff to pursue issues appearing in the complaint, but not in the pretrial order, where plaintiff fails to amend the pretrial order), cert. denied, 345 U.S. 935, 73 S. Ct. 797,97 L. Ed. 1363 (1953); Southern Cal. Retail Clerks Union FoodEmployers Joint Pension Trust Fund v. Bjorklund, 728 F.2d 1262,1264-65 (9th Cir. 1984) (where no request for modification of a pretrial order is made, an issue not appearing in the pretrial order is no longer an issue in the *Page 508 case, references to the issue in the record of the case before the pretrial order notwithstanding; the very purpose of the pretrial order is to narrow the scope of the suit to those issues that are actually disputed). In Johnson v. MammothRecreations, Inc., 975 F.2d 604 (9th Cir. 1992), the Ninth Circuit upheld the district court's denial of plaintiff's motion to amend his complaint filed four months after the cutoff date for amended pleadings in the pretrial order because the plaintiff failed to seek modification of the pretrial order; the Ninth Circuit noted:

A scheduling order "is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril." The district court's decision to honor the terms of its binding scheduling order does not simply exalt procedural technicalities over the merits of [plaintiff's] case. Disregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was drafted to prevent this situation and its standards may not be short-circuited by an appeal to those of Rule 15. ([P]ermitting amendment under Rule 15(a) in violation of district court scheduling order "would have nullified the purpose of rule 16(b)(1)").

As the torrent of civil and criminal cases unleashed in recent years has threatened to inundate the federal courts, deliverance has been sought in the use of calendar management techniques. Rule 16 is an important component of those techniques. We will not snatch it away or destroy its effectiveness by requiring district courts to countenance the practices exemplified by the facts of this case.

Johnson, 975 F.2d at 610-11 (citations omitted).

The federal cases note the effect of a pretrial order, the procedure for changing or challenging such order, and the consequences of failing to follow that procedure. The rules gleaned from these cases simply stated are (1) a pretrial order sets the parameters for trial and appeal, (2) a motion to modify is a necessary first step for changing or challenging a pretrial order, and (3) failure to move to *Page 509 modify a pretrial order results in waiver of a claim not appearing in the order and effectively forecloses review. Under these rules, the Burnets' failure to modify the pretrial order resulted in waiver of their negligent credentialing claim and foreclosure of review. I would hold the Burnets failed to preserve any error associated with the July 8, 1991 order.9

D. Sanctions for Discovery Violations

The majority assumes the error was properly preserved and suggests the trial court's "sanction" for the Burnets' failure to comply with the discovery order was excessive. The majority states the trial court did not consider appropriate alternatives to the sanction imposed as required by WashingtonState Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299,858 P.2d 1054 (1993), and concludes the trial court abused its discretion in "limiting discovery and excluding expert witness testimony on the credentialing issue without first having at least considered, on the record, a less severe sanction." Majority op. at 497. But, the majority goes too far in emphasizing one of several guidelines noted in Fisons. Although Fisons notes that "the least severe sanction that will be adequate to serve the purpose of the particular sanction should be imposed," it goes on to say, "[t]he sanction should insure that the wrongdoer does not profit from the wrong."Fisons, 122 Wn.2d at 355-56. Thus, the trial court must weigh many factors in determining an appropriate sanction. It is proper to leave these determinations to the trial court. Indeed, fashioning a sanction is within the sound discretion of the trial court because it has "`tasted the flavor'" of the litigation and is in the best position to make this kind of determination. Watson v. Maier, 64 Wn. App. 889, 896,827 P.2d 311 (citations omitted), review denied, 120 Wn.2d 1015,844 P.2d 436 (1992). *Page 510

This is not a sanctions case; rather, it is a case pertaining to the case management powers of the trial courts. Even if we were to analyze this case as a sanctions case, the trial court here did not abuse its discretion under Fisons. See Hampson v.Ramer, 47 Wn. App. 806, 813, 737 P.2d 298 (1987) (the choice of sanctions for a discovery violation is discretionary and the particular facts and circumstances of each case will determine whether the discretion has been abused), citing Anderson v.Mohundro, 24 Wn. App. 569, 574, 604 P.2d 181 (1979), reviewdenied, 93 Wn.2d 1013 (1980).

Contrary to the majority's view, the trial court did not impose the most severe sanction — dismissal of the Burnets' complaint. It merely adhered to its case management order, but left open the possibility the Burnets could seek modification of the CR 16/CR 26(f) order or move to amend their complaint under CR 15.

In the context of CR 37 sanctions, the trial court does not abuse its discretion by excluding testimony as a sanction when there is a showing of intentional or tactical nondisclosure, willful violation of a court order, or other unconscionable conduct. Allied Fin. Servs., Inc. v. Mangum, 72 Wn. App. 164,168, 864 P.2d 1, 871 P.2d 1075 (1993) (citing Fred HutchinsonCancer Research Ctr. v. Holman, 107 Wn.2d 693, 706,732 P.2d 974 (1987), and Alpine Indus., Inc. v. Gohl, 30 Wn. App. 750,760, 637 P.2d 998, 645 P.2d 737 (1981), review denied, 97 Wn.2d 1013 (1982)). A violation of a court order without reasonable excuse will be deemed willful. Allied Fin. Servs.,72 Wn. App. at 168, citing Lampard v. Roth, 38 Wn. App. 198, 202,684 P.2d 1353 (1984); Anderson, 24 Wn. App. at 574. See also Snedigar v.Hoddersen, 114 Wn.2d 153, 169, 786 P.2d 781 (1990), andHampson, 47 Wn. App. at 811, both citing Taylor v. CessnaAircraft Co., 39 Wn. App. 828, 836, 696 P.2d 28 (a violation of the discovery rules is willful if done without a reasonable excuse), review denied, 103 Wn.2d 1040 (1985). Here, as regards any negligent credentialing claim, the Burnets failed to comply with a discovery *Page 511 order (i.e. identify all expert witnesses and their opinions and make the same available for deposition within court imposed time limits) without reasonable excuse. The witnesses and opinions disclosed by the Burnets did not specifically address negligent credentialing. Under the above cited case law, such unexcused noncompliance with the discovery order is deemed willful, and thus, sanctionable.

Furthermore, it is reversible error for the trial court not to exclude testimony when the other party would be prejudiced by a willful violation of a court order. Allied Fin. Servs.,72 Wn. App. at 169 n. 4, citing Hampson, 47 Wn. App. at 812. As aptly stated by the Hampson court:

No reasonable excuse has been put forth here. Absent such an excuse, the noncompliance with discovery may be deemed to be willful under Taylor v. Cessna Aircraft Co., supra. Where a willful noncompliance with discovery substantially prejudices the opponent's ability to prepare for trial, the exclusion of evidence is not an abuse of discretion. Lampard v. Roth, supra; Associated Mortgage Investors v. Kent Constr. Co., Inc., 15 Wn. App. 223, 228-29, 548 P.2d 558, review denied, 87 Wn.2d 1006 (1976).

Hampson, 47 Wn. App. at 812. Because the Burnets failed to timely disclose expert witnesses regarding their negligent credentialing claim, Sacred Heart was foreclosed by the discovery order from deposing the expert witnesses on this newly revived theory.

Finally, the trial court did not impose the most severe sanction of dismissal or default. Therefore, the majority's concern that the trial court failed to explicitly consider on the record a less severe sanction is misplaced. In Snedigar v.Hoddersen, 114 Wn.2d 153, 170, 786 P.2d 781 (1990), we stated:

[t]he trial court should make clear on the record whether the factors of willfulness and prejudice are present before considering entry of a default order. The trial court also should state whether lesser sanctions would be effective and *Page 512 why it is imposing an order of default. As the Court of Appeals observed, these steps are routinely followed by the federal courts and should be employed by Washington courts when dismissal is imposed as a sanction for violating a discovery order in a First Amendment case.

(Emphasis added.) Preclusion of claims or defenses is a less drastic alternative to the sanction of dismissal. See Malone v.U.S. Postal Serv., 833 F.2d 128, 132 n. 1 (9th Cir. 1987),cert. denied, 488 U.S. 819, 109 S. Ct. 59, 102 L. Ed. 2d 37 (1988).

In Allied Fin. Servs., 72 Wn. App. 164, and Dempere v.Nelson, 76 Wn. App. 403, 886 P.2d 219 (1994), review denied,126 Wn.2d 1015, 894 P.2d 565 (1995), which postdate Fisons, the Court of Appeals upheld the imposition of severe sanctions for violation of discovery rules by trial courts. In Allied Fin.Servs., the trial court excluded witnesses because the defendant had failed to identify any witnesses and gave no explanation for such a failure. In Dempere, the trial court excluded a witness that a party identified only 13 days before trial. The trial court's decision was consistent with these cases.

CONCLUSION The trial court properly managed the case before it and did not abuse its discretion in the handling of discovery under our civil rules and the case law derived from those rules. Trial courts are on the front lines of our civil justice system, dealing with sometimes recalcitrant attorneys and the myriad considerations of prosecuting a case. The trial courts develop intimate knowledge of cases from such involvement and they should be permitted to manage the discovery process. We should not disturb such management unless the record indicates the trial court has clearly abused its discretion. Here, the record does not indicate the trial court abused its discretion in entering the July 8, 1991 pretrial order. We must affirm the decision of the trial court.

Citing CR 1, the majority states "our overriding *Page 513 responsibility is to interpret the rules in a way that advances the underlying purpose of the rules, which is to reach a just determination in every action." Majority op. at 498. Indeed, our charge is this and more. CR 1 states "[the civil rules] shall be construed to secure the just, speedy and inexpensive determination of every action." The situation is serious for our entire judicial system. Litigation is not intended to be a lifelong activity with litigants returning endlessly to our courts. This case has proceeded from 1984 to the present time through various theories against various defendants and has been characterized by what is charitably described as "obstreperous" conduct of counsel. Trial courts must manage cases, as our civil rules envision, to prevent lawyers' tactics from hindering swift and fair resolution of controversies and to give strong direction to litigants to move cases through our system. We should not tolerate tactics delaying disposition of civil cases for over a decade. We should give ample tools to trial court judges to make sure the lawyers and parties do not use our civil rules to delay resolution of issues on their merits.

Too often, cases in which trial court judges exercise firm case management are reversed by this Court or other appellate courts. Unfortunately, the majority opinion sends the message to trial court judges that this Court gives only lip service to strong case management by trial judges. This Court should instead send a resounding message to trial courts, lawyers, and parties: we do not condone "obstreperous" conduct of counsel, we support firm case management by Washington's trial judges, and we will not permit litigation to languish forever in our courts.

DURHAM, C.J., and DOLLIVER, J., concur with TALMADGE, J.

Reconsideration denied June 5, 1997.

6 Commentators and studies suggest one of the principal grounds for delayed justice is the failure of trial courts to exercise firm case management. See, e.g., 28 U.S.C.A. § 471 (West 1993) (historical and statutory notes; congressional statement of findings). Congress enacted, in response to the problems arising from increased discovery, the Civil Justice Reform Act of 1990, 28 U.S.C.A. § 473(a), which mandates the early and ongoing judicial management of the pretrial process and includes judicial control of the extent and time of discovery; Fed.R.Civ.P. 16 advisory committee's 1993 amendment note:

"Empirical studies reveal that when a trial judge intervened personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices. Steven Flanders, Case Management and Court Management in United StatesDistrict Courts 17, FEDERAL JUDICIAL CENTER (1977)."

Kent Sinclair Patrick Hanes, Summary Judgment: A Proposalfor Procedural Reform in the Core Motion Context, 36 WM. MARY L.REV. 1633, 1636-50 (1995) (for at least two decades, the Federal Judicial Center has taught new federal judges that active judicial management — characterized by strict time deadlines and firm "control" of the litigation — shortens disposition times and lowers the pending docket of open cases; when judges appropriately exercise their authority to adjudicate whole cases or issues in pretrial practice, docket efficiency is enhanced and justice is promoted); Steven Flanders, Blind Umpires — A Response to Professor Resnik, 35 HASTINGS L.J. 505, 516-20 (1984) (a modest degree of judicial control greatly reduces the time during which a case is pending, the author presents tables on various case types showing extraordinarily wide differences in disposition time as a result of degree of case management applied by the court; and indicating that delay in civil cases is substantially controllable).

7 I agree with the Court of Appeals and the majority, Majority op. at 492, that the trial court erred when it found the negligent credentialing theory of corporate negligence was not properly pleaded by the Burnets.

However, it is easy to see how the mistake was made. The plaintiffs initially asserted an improper credentialing theory as part of their Consumer Protection Act claim. The trial court dismissed the claim and the Court of Appeals affirmed the dismissal, stating:

"The Burnets contend they presented a question of fact regarding Dr. Graham's asserted `deceptive practice' of holding himself out as a pediatric neurologist when he was not board certified. They rely on the advertisement in the telephone book and construe it to be a purposeful solicitation of pediatric neurology patients for entrepreneurial purposes, citing Quimbyv. Fine, 45 Wn. App. 175, 724 P.2d 403 (1986), review denied,107 Wn.2d 1032 (1987). They further claim the CPA [Consumer Protection Act] also applies to Sacred Heart, because it allowed Dr. Graham hospital privileges as a pediatric neurologist even though he was not board certified to provide that type of care.

". . . .

"Neither claim asserted by the Burnets against Sacred Heart involves the entrepreneurial aspect of the hospital's operation, so they fall outside the scope of the CPA. This would include the assertion Sacred Heart allowed Dr. Graham hospital privileges in order to draw a large clientele.

"With respect to Dr. Graham, the Burnets have failed to show board certification is required by Washington law and have failed to show a board certified neurologist is any more qualified than a certified pediatrician who has completed additional study in neurology. There is no evidence Dr. Graham held himself out as board certified nor that the Burnets relied on that qualification when choosing him as Tristen's physician. Finally, there is nothing in their argument which relates to Dr. Graham's entrepreneurial practices. Their claim encompasses negligence only. Thus, the CPA action against him was properly dismissed."

Burnet, 54 Wn. App. at 166-67. The Burnets did not again assert this theory of negligence against Sacred Heart until their April 18, 1991 supplemental interrogatory answers, filed more than four months after the deadline for expert witness disclosure and two months after the cutoff for deposing such experts.

8 The trial court labored under the misconception that the Burnets had not properly pleaded negligent credentialing. However, its July 8, 1991 order did not preclude them from moving under CR 15 to amend their complaint to assert a negligent credentialing theory. They did not properly or successfully move to amend prior to trial.
9 The majority's position that a motion to modify the pretrial order would have been a useless act by the Burnets, majority op. at 498, is pure speculation. Because the Burnets never moved to modify the pretrial order we will never know whether the trial court would have granted the motion.
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