Last week, the State Supreme Court affirmed a $12.75 million verdict (including $2,422,006 for future care and $10 million in noneconomic damages) against the City of Seattle in favor of former Seattle firefighter, Mark Jones, who was injured when he fell 15 feet down the “pole hole” in a fire station at 3 a.m. on December 23, 2000. The case captured media attention when the press reported that post-trial surveillance videos showed Jones engaging in physical activities (e.g., playing horseshoes) the City alleged were inconsistent with his testimony at trial. The trial court refused to grant a new trial. The Court of Appeals affirmed in an unpublished opinion. The City petitioned the Washington Supreme Court for review based on the surveillance video and the new evidence that Jones was an alcoholic and that his drinking interfered with his recovery.
The new evidence included three witnesses whose testimony about Jones’s drinking was excluded by the trial court: Jones’s father and physical therapist, Jones’s sister, and a private investigator, who observed Jones in a bar the day before trial. None of these three witnesses was timely disclosed, perhaps because the City changed legal teams three times. It was the City’s third (and last) legal team that attempted to pursue the alcohol theory at trial.
The Supreme Court agreed with the City that the trial court erred in excluding these witnesses without properly conducting the inquiry required by Burnet v. Spokane Ambulance, 131 Wn.2d 484 (1997). Under Burnet, when considering witness exclusion as a sanction for discovery violation, the trial court must state (1) whether it considered a lesser sanction, (2) whether untimely disclosure was willful, and (3) whether the untimely disclosure caused substantial prejudice. Applying harmless error analysis, the Court concluded that the error was harmless because much of the excluded testimony was irrelevant, unfairly prejudicial or cumulative.
The Court also affirmed the trial court’s refusal to vacate the judgment based on the post-trial surveillance video. Because several witnesses testified at trial that Jones engaged in a variety of physical activities at least as rigorous as those in the video, the Court reasoned, the images on the surveillance video were not the smoking gun the City claimed they were. Refusal to vacate the judgment based on the “ambiguous” surveillance video was not abuse of discretion.
In a concurrence, Justice James Johnson blamed the City for “lack of diligence” in conducting discovery and doing a “grave disservice” to its taxpayers. “It is conceivable that if the excluded testimony and evidence had been timely disclosed and therefore admitted into evidence, the jury would have awarded a lower and more appropriate verdict,” he noted.
In a concurrence joined by Justices Owens, Fairhurst, and James Johnson, Justice González argued that trial courts must have broad latitude to handle discovery violations after trial commences and that “the majority treads too heavily on the trial court’s authority to restore order and conduct a fair trial.” He further posited that the Burnet presumption that new witnesses should generally be permitted to testify should not apply after the trial begins.
The lesson of the case is that the protections offered by Burnet to parties who seek to offer at trial new evidence that was not previously disclosed in discovery are getting weaker. While the Court reiterated that the trial court must properly perform the Burnet three-part analysis, the trial court’s misapplication of Burnet may be excused as harmless error. Four of the justices also believe that Burnet’s presumption that favors admitting new evidence does not apply after trial begins.