Opinion
No. 22433-3-III
Filed: November 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 02-2-07010-2. Judgment or order under review. Date filed: 09/05/2003. Judge signing: Hon. Salvatore F Cozza.
Counsel for Appellant(s), John Ambrose Bardelli, Attorney at Law, 606 N Pines Rd Ste 201, Spokane, WA 99206-6711.
Counsel for Respondent(s), Robert Powers Hailey, Attorney at Law, 601 W Riverside Ave Ste 1500, Spokane, WA 99201-0626.
Melody Dawn Farance, Attorney at Law, 720 W Boone Ave Ste 200, Spokane, WA 99201-2560.
Steven Robert Stocker, Attorney at Law, 720 W Boone Ave Ste 200, Spokane, WA 99201-2560.
Robert and Sandra Brewer brought a medical malpractice action against podiatrist Dr. Nicholas Tanner and nurse anesthetist Shawn Brow for injuries Mr. Brewer suffered in the administration of anesthesia during foot surgery. Dr. Tanner and Ms. Brow moved for summary judgment, whereupon the Brewers requested a continuance. The Brewers also filed the affidavit of an expert 10 days prior to the scheduled summary judgment hearing. Dr. Tanner and Ms. Brow moved to strike this affidavit. The court denied the continuance, struck the affidavit, and granted summary judgment dismissal. We reverse.
On November 19, 2002, the Brewers sued Dr. Tanner and Shawn Brow, claiming Mr. Brewer suffered permanent injuries to his foot because Dr. Tanner and Ms. Brow negligently performed surgical and anesthesia procedures on November 19, 1999. The Brewers also alleged the podiatrist and nurse anesthetist did not obtain Mr. Brewers' informed consent before the surgery.
On February 14, 2003, the court entered a civil case schedule order that provided: (1) plaintiff's lay and expert witnesses were to be disclosed by May 12, 2003; (2) defendants' lay and expert witnesses were to be disclosed by July 21, 2003; (3) the last day for filing motions to continue the trial date was September 15, 2003; (4) the discovery cut off was October 6, 2003; (5) the last day for dispositive motions was November 10, 2003, and (6) trial was set for December 8, 2003.
The Brewers did not disclose their lay and expert witnesses by May 12. On June 26, Dr. Tanner filed a motion for summary judgment on the ground that the Brewers had failed to identify any expert testimony to support the claims of medical negligence and lack of informed consent. Ms. Brow filed a similar motion the next day. The hearing on the motions for summary judgment was scheduled for August 15.
On August 4, the Brewers filed a motion for continuance under CR 56(f) and identified Dr. Robert Bathurst as an expert witness. Dr. Bathurst's affidavit giving his medical opinion was filed with the motion for continuance.
Dr. Tanner and Ms. Brow moved to strike Dr. Bathurst's affidavit because of the Brewers' failure to properly disclose him as an expert witness pursuant to the case schedule order and because he was not competent to testify as to the standard of care in Washington.
The court granted the motion to strike Dr. Bathurst's affidavit, denied the Brewers' request for a CR 56(f) continuance, and granted summary dismissal. This appeal follows.
The Brewers contest the denial of their motion for continuance. We review a court's ruling on a CR 56(f) motion for a manifest abuse of discretion. Thongchoom v. Graco Children's Prods., Inc., 117 Wn. App. 299, 308, 71 P.3d 214 (2003), review denied, 151 Wn.2d 1002 (2004). We interpret court rules and statutes to permit decisions on the merits of a case. Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990). '[A] trial court may continue a motion for summary judgment if affidavits of the nonmoving party show a need for additional time to obtain affidavits, take depositions, or conduct other discovery.' Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671, review denied, 150 Wn.2d 1017 (2003).
Counsel for the Brewers filed a supporting affidavit indicating he had not had time to locate an expert witness. He averred he had spoken to more than one medical expert, but none was willing to testify. Counsel had, however, located Dr. Bathurst, who reviewed the materials and submitted an affidavit that was filed with the motion for continuance.
The primary consideration for the court on a motion for continuance is justice. Coggle, 56 Wn. App. at 508. At the time the court considered the Brewers' CR 56(f) motion, it had an affidavit from an expert before it. In these circumstances, the court did not abuse its discretion by denying the motion for continuance of the summary judgment motion.
The Brewers also challenge the striking of Dr. Bathurst's affidavit. The court struck the affidavit only because of their untimely disclosure of the doctor as an expert witness under the case schedule order. We review its ruling on the motion to strike for an abuse of discretion. Tortes v. King County, 119 Wn. App. 1, 12, 84 P.3d 252 (2003), review denied, 151 Wn.2d 1010 (2004). Because of the court's strict adherence to the time limitations in the case schedule order that caused it to strike the expert witness' affidavit, the Brewers had nothing left with which to oppose the defendants' summary judgment motion. The rules should be interpreted to allow a decision on the merits and to do justice. Coggle, 56 Wn. App. at 507-08. The trial court's decision does neither. Moreover, there is no showing of any prejudice to the defendants other than a possible delay in the trial date. As in Coggle, 56 Wn. App. at 508, '[w]e fail to see how justice is served by the draconian application of time limitations here.' By failing to exercise any discretion, the trial court abused its discretion. State v. Flieger, 91 Wn. App. 236, 242, 955 P.2d 872 (1998), review denied, 137 Wn.2d 1003 (1999). The court erred by striking Dr. Bathurst's affidavit.
And in so doing, it necessarily had to grant the defendants' summary judgment motion. But because the affidavit should have been considered on the merits, the court erred by granting summary dismissal. See Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 909 P.2d 291 (1996).
Reversed and remanded for proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SCHULTHEIS, J., Concur.