No. 60668-9-I.The Court of Appeals of Washington, Division One.
October 6, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-08471-3, Andrea A. Darvas, J., entered October 3, 2007.
UNPUBLISHED OPINION
PER CURIAM.
The defendant’s expert witness was allowed to testify at trial to issues of causation and damages even though the disclosure of the witness was untimely and insufficient under the King County local court rules. The jury determined the defendants were not negligent and did not reach the issues of causation or damages. Any error in allowing the testimony was harmless. We affirm.
FACTS
Linda Lirette (“Lirette”) owned and resided in a condominium at the Dorchester, located in Snohomish County. In March of 2006, Lirette sued the Dorchester Condominium Association (“Dorchester”) and its property manager, The Roanoke Group (“Roanoke”), alleging that during the installation of cellulose insulation in the exterior wall of her unit, some of the insulation material entered her unit, causing property damage and personal injury. Specifically, Lirette claimed that the insulation material exacerbated her fibromyalgia.
Pursuant to King County Local Rule (“KCLR”) 26, the Order Setting Civil Case Schedule (“ORSCS”) established a March 26, 2007, deadline for disclosure of possible primary witnesses. The ORSCS set a May 7, 2007, deadline for disclosure of possible additional witnesses. The ORSCS set a July 9, 2007, deadline for discovery cutoff. The ORSCS set an August 6, 2007 deadline for exchange of witness lists.
Lirette made timely disclosure of her expert witness, Dr. Jess Groesbeck, a board-certified psychiatrist who believed that the insulation material aggravated Lirette’s pre-existing fibromyalgia. In response, Dorchester retained Dr. Douglas Robinson, also a board-certified psychiatrist, as an expert witness. Dorchester filed a supplemental disclosure of this witness on May 18, 2007, 11 days after the scheduled deadline. Dr. Robinson examined Lirette on June 25, 2007. It does not appear from the record that Lirette sought to depose Dr. Robinson nor that such a request was denied.
On August 20, 2007, Lirette filed a motion in limine challenging Dr. Robinson’s qualifications regarding his expertise in fibromyalgia. The motion did not challenge the timeliness or scope of Dorchester’s May 18, 2007, supplemental disclosure of Dr. Robinson. The trial court denied Lirette’s motion in limine, but stated that the defendants were required to lay a proper foundation that Dr. Robinson was qualified to testify concerning Lirette’s fibromyalgia. On the second day of trial, Lirette moved to exclude Dr. Robinson’s testimony on the basis that his disclosure as a witness was untimely and inadequate.[1] The motion was denied. The jury subsequently determined by special verdict that the defendants were not negligent. Lirette appeals.
DISCUSSION
Lirette argues that the trial court abused its discretion when it allowed Dr. Robinson to testify when Dorchester had allegedly violated KCLR 26. She contends the decision was prejudicial because she did not discover that Dr. Robinson would testify about her fibromyalgia and diagnose Lirette with a personality disorder until August 24, 2007, when Dorchester filed Dr. Robinson’s Declaration. She also argues that Dorchester willfully violated KCLR 26. It is reversible error for a trial court to allow testimony when the other party would be prejudiced by a willful violation of a court order. Allied Financial Servs., Inc. v. Mangum, 72 Wn. App. 164, 168, 864 P.2d 1 (1993), amended by 72 Wn. App. 164, 871 P.2d 1075 (1994).
Dorchester argues that any error in admission of the expert witness was harmless because the jury found that neither defendant was liable. If a trial court’s error does not affect the jury verdict, the error is harmless. State v. Berube, 150 Wn.2d 498, 506, 79 P.3d 1144 (2003).
The disclosure of Dr. Robinson was clearly untimely under KCLR 26. Allowing him to testify required a finding of good cause; the record provided does not reflect whether the trial court made this finding. However, even assuming the court abused its discretion, any error was harmless.
Notwithstanding Dr. Robinson’s testimony, the jury found that neither Roanoke nor Dorchester were negligent. The special verdict form contained separate questions for negligence, causation, and damages. The first question on the special verdict form asked “Was the conduct of the defendants negligent?” The instruction after the first question read: “If you answer Question No. 1 `no’, sign this verdict from and do not answer any further questions.” The jury answered “no” and never went on to determine proximate causation or damages. Proximate cause and damages were the only subject matter of Dr. Robinson’s testimony. Any error in allowing his testimony was harmless.
We affirm.
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