Jones v. City of Seattle, 179 Wash. 2d 322

Background

In 2003 firefighter Mark Jones fell through a firehouse pole hole and sustained traumatic brain injury; he sued City of Seattle for negligence and sought damages. Trial began in September 2009.
The City repeatedly shifted defense counsel, pursued an "alcohol theory" (pre- and post-accident drinking) as a cause or complicating factor, and disclosed several witnesses late in trial: sister Beth Powell, father/treater Gordon Jones, and investigator Rose Winquist.
The trial court excluded most alcohol-related evidence and later excluded the three late-disclosed witnesses under King County local rules; the jury nevertheless awarded Mark $12.75 million.
The City moved for a new trial and later to vacate the judgment under CR 60(b)(3) based on posttrial surveillance video showing Mark engaging in physical activities. The trial court denied relief.
The Court of Appeals affirmed; City petitioned the Washington Supreme Court arguing the trial court failed to perform the on-the-record Burnet analysis before excluding witnesses and that the motion to vacate should have been granted.

Issues

Issue	Plaintiff's Argument (Meg/Mark)	Defendant's Argument (City)	Held
Whether the trial court erred by excluding three witnesses disclosed after the discovery/trial cutoff without performing the Burnet analysis	Exclusion was proper because late disclosure violated local rules and caused prejudicial ambush; local-rule "good cause" standard controls	Trial court must apply Burnet factors (consider lesser sanctions, willfulness, prejudice) before excluding witnesses	Trial court erred by not completing on-the-record Burnet inquiry for all three witnesses, but error was harmless because excluded evidence was irrelevant, unduly prejudicial, or cumulative; judgment affirmed
Whether a defendant’s reservation of rights to call witnesses on plaintiff’s list satisfied disclosure rules for Gordon Jones	Reservation did not disclose witness substance; plaintiff had no chance to prepare	Reservation was sufficient to preserve right to call Gordon	Reservation insufficient; City failed to disclose Gordon’s relevant knowledge as required by local rules
Whether posttrial surveillance video constituted "newly discovered evidence" warranting vacatur under CR 60(b)(3)	Video materially contradicted trial testimony about disability and would likely change verdict	City argued it reasonably relied on plaintiff’s discovery responses and could not have discovered video earlier	Trial court did not abuse discretion: video was new/material but ambiguous and largely cumulative; City failed to exercise due diligence, so motion to vacate denied
Standard and remedy when discovery violations occur during trial (retroactivity of Blair II)	Burnet and Mayer require on-record findings and apply regardless; appellate courts may not substitute findings	City argued earlier appellate approach excused some procedural formality	Supreme Court held Burnet/Mayer applied; Court of Appeals erred in relying on Blair I but the ultimate exclusion error was harmless; Burnet factors remain required though trial courts retain discretion in managing extreme late-stage disclosures

Key Cases Cited

Burnet v. Spokane Ambulance, 131 Wn.2d 484 (1997) (trial courts must consider lesser sanctions, willfulness, and prejudice before imposing severe discovery sanctions)
Mayer v. Sto Industries, Inc., 156 Wn.2d 677 (2006) (Burnet analysis applies to witness exclusion)
Blair v. TA–Seattle E. No. 176, 171 Wn.2d 342 (2011) (trial-court obligations to record Burnet findings; appellate courts may not supply omitted trial findings)
Teter v. Deck, 174 Wn.2d 207 (2012) (discussing Burnet error and material effect on substantial rights)
Kurtz v. Fels, 63 Wn.2d 871 (1964) (party may rely on unambiguous opposing party discovery responses; objective misstatements discovered later can justify new trial)
Praytor v. King County, 69 Wn.2d 637 (1966) (standards for vacating judgment for newly discovered evidence)