Joseph B. Green v. Kootenai Heart Clinics, LLC

567 P.3d 645
CourtCourt of Appeals of Washington
DecidedApril 22, 2025
Docket39300-3
StatusPublished

This text of 567 P.3d 645 (Joseph B. Green v. Kootenai Heart Clinics, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph B. Green v. Kootenai Heart Clinics, LLC, 567 P.3d 645 (Wash. Ct. App. 2025).

Opinion

FILED APRIL 22, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

JOSEPH B. GREEN, individually and as ) No. 39300-3-III Personal Representative of the Estate of ) Kari Anna Green, ) ) Petitioner, ) ) v. ) ) KOOTENAI HEART CLINICS, LLC; ) KOOTENAI HOSPITAL DISTRICT dba ) KOOTENAI HEALTH, KOOTENAI ) HEART CLINICS, ) PUBLISHED OPINION ) Respondents, ) ) HEIDI SIIRILA; THE CITY OF ) SPOKANE; THE STATE OF ) WASHINGTON; CPM DEVELOPMENT ) CORPORATION aka INLAND ) ASPHALT COMPANY; and JOHN ) DOES, ) ) Defendants. )

LAWRENCE-BERREY, C.J. — We granted discretionary review of the trial court’s

order that excluded three of plaintiff’s witnesses from presenting testimony on damages.

The court elevated disclosure deadlines above resolving the case on its merits, failed to

consider any lesser sanction on the record, and placed the onus on the plaintiff for No. 39300-3-III Green v. Kootenai Heart Clinics

defendants’ failure to comply with the discovery rules. We reverse.

FACTS

Kari Green was crushed by a Kootenai Heart Clinics delivery van after it stopped

and then turned left at an intersection. Mere months before trial, Kootenai1 admitted

liability.

The sole issue for trial is damages—primarily, when did Ms. Green lose

consciousness and therefore likely cease to experience pain and suffering? Kootenai

seeks to prove that Ms. Green lost consciousness almost immediately and therefore

suffered minimally before she died. Joseph Green, Ms. Green’s husband and personal

representative, seeks to prove that his wife suffered immensely immediately after being

hit, run over, crushed, and during her transport to the hospital, and that she was conscious

for all of it. She died shortly after arriving at the hospital.

A. DISCOVERY

In April 2020, Mr. Green sent interrogatories to Kootenai asking for disclosure of

defense experts, their opinions, bases for their opinions, and identification of materials

1 We refer to the various defendants simply as Kootenai.

2 No. 39300-3-III Green v. Kootenai Heart Clinics

reviewed by them. Kootenai refused to answer interrogatory 5, responding: “Defendants’

experts expected to testify at the time of trial will be disclosed pursuant to Case Schedule

Order.” Mot. for Discr. Rev. (MDR), App. at 66. Kootenai provided the same answer to

a corresponding request for production seeking disclosure of each defense expert’s file.

Dr. Chris Heller

On March 21, 2022, less than three months before the discovery order’s deadline,

Kootenai disclosed its expert witnesses. This was the first time Kootenai disclosed Dr.

Chris Heller, a Spokane neurosurgeon. With respect to Dr. Heller, the disclosure stated:

Dr. Heller is expected to provide testimony regarding Mrs. Green’s injuries and level of consciousness resulting from the vehicle impact. Dr. Heller is expected to testify that Mrs. Green lost consciousness as a result of the initial impact and, thereafter, suffered a catastrophic and fatal injury. Dr. Heller is further expected to testify that Mrs. Green, on a more probable than not basis, suffered no period of conscious pain or suffering.

MDR, App. at 76-77. Absent from this disclosure was any disclosure of the bases for his

opinions, the documents he reviewed, or his file. The only document Kootenai produced

with respect to Dr. Heller was his curricula vita. Also absent from the disclosure were

Dr. Heller’s two opinions—first offered during his October 2022 deposition—that Ms.

3 No. 39300-3-III Green v. Kootenai Heart Clinics

Green suffered a “lateral whiplash” and a “transected pons”2 upon impact.

Despite having almost three months before the discovery deadline, Mr. Green did

not seek to depose Dr. Heller nor did Mr. Green promptly seek to compel Kootenai to

more fully answer the expert interrogatory and expert request for production. The first

time Mr. Green requested supplementation of expert discovery related to Dr. Heller was

10 days before the August 10, 2022 trial.

Annaka Greer

On August 2, Mr. Green’s lawyers disclosed Annaka Greer as a lay witness and

provided a declaration, and later a supplemental declaration, from her. Ms. Greer

witnessed the accident and gave a statement to first responders. Both parties had been

aware that she witnessed the accident, and Kootenai had even listed her as a witness.

Apparently, neither side had spoken with Ms. Greer until shortly before trial.

When plaintiff’s counsel spoke with her, counsel learned she had information helpful to

his client. Ms. Greer’s declaration states that Ms. Green was conscious and moaning

before emergency responders arrived. This contradicted Dr. Heller’s opinion that Ms.

2 The pons is part of the brain stem. The autopsy report noted it was transected (severed). What is unknown is when it was severed. If it was severed at the time of the collision, Ms. Green likely would have suffered relatively minimally because pain signals would not have been going between her limbs/organs and her brain. Alternatively, her pons might have been accidentally severed during the autopsy.

4 No. 39300-3-III Green v. Kootenai Heart Clinics

Green had immediately lost consciousness.

Dr. Jeremy Bauer and Dr. Jennifer Nara

Also in early August, Mr. Green disclosed Dr. Jeremy Bauer (accident

reconstructionist and PhD in biomechanics) and Dr. Jennifer Nara (medical examiner) as

rebuttal witnesses. Mr. Green had timely disclosed Dr. Bauer as a liability expert but

now sought to have Dr. Bauer testify that Ms. Green was conscious after the accident.

Dr. Nara would provide the foundation for admitting the medical examiner’s

autopsy report of Ms. Green. Dr. John Howard, the medical examiner who had

performed the autopsy, had retired and apparently was unavailable.

B. TRIAL COURT ORDERS

August 10, 2022 order and continuance

On the morning of trial, Kootenai moved in limine for the trial court to exclude the

recently disclosed testimonies of Ms. Greer, Dr. Nara, and Dr. Bauer. The trial court

conducted a Burnet/Jones 3 analysis and ruled in favor of Mr. Green with respect to Ms.

Greer and Dr. Nara, but in favor of Kootenai with respect to Dr. Bauer. The trial court

provided Mr. Green the choice of proceeding to trial without Dr. Bauer or, as a lesser

3 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997); Jones v. City of Seattle, 179 Wn.2d 322, 314 P.3d 380 (2013).

5 No. 39300-3-III Green v. Kootenai Heart Clinics

sanction, continuing trial so that Kootenai could depose him. Mr. Green chose the lesser

sanction, and trial was reset to November 7.

September 30, 2022 order, including prohibiting new witnesses

Later, Mr. Green moved to exclude Dr. Heller based on Kootenai’s failure to

supplement its discovery responses. Rather than focusing on Kootenai’s failure to

supplement, the trial court focused on Mr. Green’s failure to file a motion to compel.

Because “there wasn’t a motion [to compel,] I can’t find that [Kootenai committed] a

discovery violation.” MDR, App. at 158. Based on this reasoning, the court denied Mr.

Green’s motion to exclude Dr. Heller, but ordered that Dr. Heller submit to a deposition.

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567 P.3d 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-b-green-v-kootenai-heart-clinics-llc-washctapp-2025.