                                                                                   •••
                                                rILEO
                                                  APPEALS DIV1
                                         COURT OF WAVING-M-1
                                          STATE OF
                                                          9O9
                                           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LIMITED PARTNERSHIP, a Tennessee)                UNPUBLISHED OPINION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,




                                              2
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).



                                           3
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)).



                                           4
No. 77747-5-1/5



       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.



                                           5
No. 77747-5-1/6


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).



                                           6
No. 77747-5-1/7


       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.



                                            7
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.



                                           8
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.



                                          9
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




                                          10
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.



                                              11
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.



                                          12
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.


                                               13
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.



                                          14
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.



                                            15
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.


                                            16
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.



                                          17
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.



                                          19
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.



                                          20
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
