Appellants ask appeals court to reverse after experts were excluded in Wilson v. CBA Logistics
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Summary
At oral argument, appellants said the trial judge excluded key defense experts without making required Burnett findings, leaving defendants without rebuttal testimony and resulting in an $8.5 million verdict; respondent said the record lacks a clear proffer of the experts' substance and any error was harmless.
Appellants told the appeals court that the trial judge improperly excluded two defense experts and failed to make the findings required by Burnett v. Spokane Ambulance, leaving the defendants without expert testimony to rebut the plaintiff and contributing to an $8.5 million verdict.
The briefs and argument centered on whether the trial court satisfied Burnett’s three-factor inquiry — willfulness, prejudice and availability of lesser sanctions — before excluding an economist and a vocational-rehabilitation expert. Appellants’ counsel Janie Freeman said the experts’ names and subject areas were disclosed but that the record contains "not 1 word" about the substance of their opinions, and the trial court made no explicit finding of willfulness before exclusion.
Respondent counsel Nate Roberts urged the court to affirm most of the trial-court rulings. Roberts said the appellate record contains virtually no indication of what the defense economist or vocational expert would have testified to, invoking the rule that an exclusion error cannot be predicated unless the substance of the proffered evidence is made known to the trial court. "We have literally no idea what the economist or the vocational rehabilitation expert were actually planning to say," Roberts told the panel.
The judges questioned counsel at length about timing and remedies. One judge observed that defense counsel had represented obtaining opinions shortly before trial and asked, "You said you got these opinions last week. Why don't you give them to the other side?" Appellants’ counsel said the trial court invited remedial measures such as brief depositions or proffers but the defense did not provide substantive proffers during the trial or in the 14 months since.
Roberts also argued that some testimony the defense sought to exclude either was allowed in other forms or was harmless when viewed in context: an opinion the trial court told a physician not to give was nevertheless offered, referenced in closing argument, and the defense cited other record evidence (including testimony by Dr. Kupenhaver and testimony that family was providing assistive services, plus cited past medical bills of about $200,000) that could support the jury’s damages award.
Counsel debated hearsay questions and an incident report the appellant said the trial court excluded; Roberts observed the incident report was not designated on appeal. The attorneys discussed the treatment of 30(b)(6) witnesses (Bucella and Reed), whether the trial court lawfully limited Dr. Kord's testimony to his written report, and whether lesser sanctions would have sufficed instead of exclusion.
At the close of argument, appellants asked the court to reverse and remand for a new trial; no decision was made on the record.
The appeals court took the matter under advisement following the oral argument.