Goble v. Gabel

¶35

(dissenting) — I do not share the majority’s comfort in viewing attorney Anne Deutscher’s lack of candor to the trial court in isolation from the nature of the sanction putatively imposed as a result. The majority concludes that the trial court properly sanctioned Deutscher for failing to properly disclose when she first learned that Sandra Dickenson might be the nurse who treated Summer Goble, thus learning that Dickenson might be a key witness in Goble’s medical malpractice lawsuit against Dr. Jeffrey Gabel. Even accepting this characterization of the trial court’s rationale for sanctioning Deutscher, however, the record demonstrates that the actual sanction imposed was unrelated to Deutscher’s putative wrongful conduct. Rather, the sanction expressly reflected the trial court’s erroneous view that it could have properly excluded Dickenson’s testimony based on Deutscher’s late disclosure of Dickenson as a witness, and that Deutscher’s motion for sanctions against Dr. Gabel’s attorney was improper. The principles articulated in Washington State Physicians Insurance Exchange & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993), show that this late disclosure was *138attributable to Dr. Gabel’s discovery violations, not to Deutscher’s failure to independently discern Dickenson’s significance as a witness. Thus, the exclusion of Dickenson’s testimony would have been an abuse of the trial court’s discretion. Because, accordingly, the sanction imposed on Deutscher was also a clear abuse of the trial court’s discretion, I dissent.

Dwyer, J.

*138¶36 Dr. Gabel performed an unnecessary hysterectomy on 22-year-old Goble, permanently depriving her of the ability to bear children. When Goble sued, Dr. Gabel altered Goble’s medical records to make them appear consistent with his story that she had sought to have a hysterectomy in spite of his cautions to the contrary. In fact, he had told her that she had no other options. During discovery, Dr. Gabel repeatedly (and wrongfully) failed to disclose that Dickenson had been the nurse that treated Goble — someone who could both testify that Dr. Gabel had altered Goble’s medical records and that he had consistently lied about the events leading up to Goble’s hysterectomy. Notwithstanding this, the majority concludes that the trial court properly sanctioned Goble’s attorney, Deutscher, by awarding terms in favor of Goble’s litigation adversaries.

¶37 The majority writes that “[t]he court’s comment that it would have excluded Dickenson was not the driving force behind the sanctions decision. The driving force behind the decision was the court’s appreciation of its obligation to insist upon candor from attorneys.” Majority at 136. Assuming — without accepting — the accuracy of this statement, the nature of the sanction still correlated directly and exactly with the trial court’s erroneous belief that it would have been justified in excluding Dickenson’s testimony had Deutscher been honest about when she learned of Dickenson’s existence, and that Goble’s motion seeking sanctions against Dr. Gabel for failing to disclose Dickenson as a possible witness was improper. The trial court made this unambiguously clear by forcing Deutscher to pay all of Providence’s and Dr. Gabel’s costs and attorney fees incurred as a result of interviewing Dickenson in preparation for her testimony:

*139The Court awards terms (all attorney fees [and] costs) against Ms. Deutscher . . . limited to time and costs related to Ms. Deutscher’s groundless request for discovery at trial on the subject of an allegedly recently discovered witness, Sandra Dickenson, and for her baseless request for sanctions against a defense lawyer. The Court took Ms. Deutscher seriously, added the witness, allowed the discovery and considered sanctions against defense counsel. Ms. Deutscher was not candid to the Court about when she learned about this witness. This lack of candor caused an immense amount of trial time to be expended on discovery mid-trial. Had the truth been known, a motion to exclude (which the defendants made, and which was denied) would have disposed of the matter in less than five minutes on the first day of trial.

¶38 Had the trial court ordered Deutscher to make a monetary payment to the court for failing to be candid about when she learned of Dickenson’s identity, I would not hesitate to affirm it. See Fisons, 122 Wn.2d at 356 (“we encourage trial courts to consider requiring that monetary sanctions awards be paid to a particular court fund or to court-related funds”). However, no such sanction was ordered. Instead, the trial court ordered Deutscher to pay Providence and Dr. Gabel all of their costs and fees associated with preparing for Dickenson’s trial testimony. This sanction award was expressly premised on the notion that, had Deutscher been forthcoming about when she first heard of Dickenson, the trial court could have properly excluded Dickenson’s testimony and, hence, no preparation for that testimony on the part of Providence and Dr. Gabel would have been required. This is entirely incorrect.

¶39 I do not share the majority’s serenity in believing that “[t]he trial court properly applied Fisons,” thereby implying that the trial court could have justifiably excluded Dickenson’s testimony had Deutscher been candid. Majority at 136. Moreover, the majority’s observation that “[t]he trial court did not make a decision” to actually exclude Dickenson’s testimony, is misleading — the trial court explicitly crafted its sanction against Deutscher premised on the belief that it would have been justified in excluding *140Dickenson’s testimony had Deutscher been candid about when she learned of Dickenson’s existence. Majority at 136. The sanction consisted of exactly the amount of money that Providence and Dr. Gabel would have saved if Dickenson had been excluded as a witness at the time she was disclosed by Deutscher. Under the majority’s view, this sanction was consistent with the principles of Fisons because the exclusion of Dickenson’s testimony would have been proper. I am convinced that this application of Fisons is exactly backwards, and that exclusion of Dickenson’s testimony would have been improper under the principles of that and other cases.

¶40 The fundamental and overriding principle articulated in Fisons is that neither a party nor an attorney representing a party may fail to produce information responsive to properly crafted interrogatories or requests for production, and that submitting an affidavit certifying compliance with the discovery rules in the face of such failure makes sanctions against the violator mandatory. Fisons, 122 Wn.2d at 349-50, 355. Here, on a minimum of three occasions, Dr. Gabel had a duty to disclose that Dickenson was the nurse who treated Goble: in response to Goble’s original interrogatories, during his own deposition when directly asked who might have been Goble’s treating nurse, and to supplement the deposition testimony of receptionist Maria White bringing Dickenson’s existence to light. The trial court’s refusal to sanction Dr. Gabel for these serious and obvious discovery violations was inexplicable and incorrect. Moreover, while this refusal is not the subject of this appeal, it is directly relevant to the propriety of the sanctions imposed against Deutscher.

|41 This is so, most obviously, because those sanctions included all costs and fees incurred by Dr. Gabel and Providence in defending against Deutscher’s supposedly “baseless request for sanctions against a defense lawyer.” Thus, insofar as the majority “decline[s] Deutscher’s invitation to make Dr. Gabel’s misconduct the pivotal point” in its analysis, it ignores a significant portion of the monetary *141sanction imposed against Deutscher. Majority at 135. It also skirts the necessity of addressing the absence of any basis whatsoever supporting the trial court’s conclusion that Goble’s motion was “baseless.”

¶42 Less obviously, but just as importantly, the principles articulated in Fisons and the cases in accord with Fisons should lead the majority to conclude that exclusion of Dickenson’s testimony would have been inappropriate as a sanction for Deutscher’s misconduct. As a result of this, a monetary sanction premised solely on the trial court’s incorrect conclusion that it could have properly excluded Dickenson’s testimony — if only Deutscher had been more forthcoming — and crafted precisely to reflect that erroneous conclusion, is likewise inappropriate. “[T]he least severe sanction that will be adequate to serve the purpose of the particular sanction should be imposed.” Fisons, 122 Wn.2d at 355-56.

¶43 There was absolutely no basis for the trial court’s apparent belief that the wholesale exclusion of a critical fact witness’s testimony — a punishment directed at Goble— was the least severe sanction adequate to punish Deutscher for her apparent lack of candor. On the contrary, there is a wealth of cases holding precisely the opposite: “ ‘it is an abuse of discretion to exclude testimony as a sanction [for noncompliance with a discovery order] absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.’ ” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) (alteration in original) (internal quotation marks omitted) (quoting Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 706, 732 P.2d 974 (1987)).23 The majority’s implicit endorsement of the opposite view ignores that *142“[o]ur overriding 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.” Burnet, 131 Wn.2d at 498 (citing CR 1).

¶44 Here, exclusion of Dickenson’s testimony would not have been an appropriate sanction for Deutscher’s violating the trial court’s witness disclosure schedule. A violation of a court order is willful only if it is done without reasonable excuse. Magana v. Hyundai Motor Am., 141 Wn. App. 495, 511, 170 P.3d 1165 (2007). Deutscher had a more-than-adequate excuse for not believing that Dickenson was a witness with relevant testimony: Dr. Gabel’s repeated (and untruthful) representations to that effect in his discovery responses. Since Fisons, discovery “responses must be consistent with the letter, spirit and purpose of the rules.” Fisons, 122 Wn.2d at 344. Litigants are entitled to rely on the completeness and accuracy of responses to discovery requests.

¶[45 This notion, however, did not find its genesis in Fisons. Decades before that case, our Supreme Court made clear both that deceit during discovery is not to be rewarded and that a party’s duty to exercise due diligence does not require the party to act with the presumption that the opposing party is a perjurer. In rejecting the assertion that a lawyer should always anticipate the opponent’s deceit and independently investigate every fact, our Supreme Court observed:

Perhaps this is so, but the matter of diligence in investigating yielded to the categorical statements, made under oath, on a subject well within a party’s knowledge which could, we think, forestall further investigation of the point involved.

Kurtz v. Fels, 63 Wn.2d 871, 874, 389 P.2d 659 (1964).

¶46 Justice Hale, on behalf of the court, then unambiguously explained the lawyer’s obligation:

We take the rule to be that, where a party to an action, in clear and unambiguous terms under oath, asserts the existence or nonexistence of a fact whereof such party has knowledge, or *143in the ordinary course of affairs would be expected to have knowledge, the adverse party may rely on such statements and, in the exercise of reasonable diligence, is not required to look behind the statements.

Kurtz, 63 Wn.2d at 875; accord Seals v. Seals, 22 Wn. App. 652, 656, 590 P.2d 1301 (1979) (“Where a party ... in clear and unambiguous terms . . . asserts the nonexistence of a fact, of which that party has or should have knowledge, the requesting party may rely on such statements. The exercise of reasonable diligence does not require a party to look behind the answers.”).

¶47 Accordingly, for over four decades, the standard to which the trial court and the majority hold Deutscher— that, as Goble’s lawyer, she was required to assume that Dr. Gabel was being deceitful in his discovery responses and investigate the case in that light — has not been the law in Washington.

¶48 In fact, in order to exercise appropriate diligence, Deutscher was not required to discern that Dickenson was the nurse who had treated Goble — from an offhand remark in the deposition of a third-party witness — in the face of repeated assurances in Dr. Gabel’s discovery responses that he had employed no nurses during the relevant period other than those he disclosed.

¶49 This being the case, the trial court’s sanction, expressly formulated on its assumption that it would have had the discretion to properly exclude Dickenson’s testimony based on Deutscher’s supposed noncompliance with the case scheduling order, would have been an abuse of discretion even if it had been made in response to Deutscher’s violation of that order. This being so, it can hardly be said to be within the trial court’s discretion to impose the sanction it did here for something utterly unrelated to Dickenson’s late disclosure by Deutscher: Deutscher’s lack of candor about when she learned of Dickenson’s existence.

¶50 “A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds. A *144trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Fisons, 122 Wn.2d at 339 (footnotes omitted). The trial court’s sanction of Deutscher was a clear abuse of discretion. From the majority’s opinion holding to the contrary, I respectfully dissent.

To the extent that opinions of this court prior to Burnet suggest that trial courts have unfettered discretion to exclude testimony for violations of scheduling orders, e.g., Dempere v. Nelson, 76 Wn. App. 403, 406, 886 P.2d 219 (1994), those cases were abrogated by Burnet. Moreover, those cases filed after Burnet, e.g., Lancaster v. Perry, 127 Wn. App. 826, 832, 113 P.3d 1 (2005), in which the party aggrieved by the dilatory discovery response was, itself, without culpability do not — for obvious reasons — control the disposition of this dispute.