Barci v. Intalco Aluminum Corp.

• Decision Date: 03 June 1974
• Docket Number: No. 1790--1,1790--1
• Parties: Paul N. BARCI and Paul G. Barci, Appellants, v. INTALCO ALUMINUM CORPORATION, a foreign corporation, Respondent.
• Court: Washington Court of Appeals

Page 342

11 Wn.App. 342

522 P.2d 1159

Paul N. BARCI and Paul G. Barci, Appellants, v. INTALCO ALUMINUM CORPORATION, a foreign corporation, Respondent.

No. 1790--1.

Court of Appeals of Washington, Division 1.

June 3, 1974.

Rehearing Denied Aug. 29, 1974.

Ferguson & Burdell, William H. Ferguson, W. Wesselhoeft, Gust S. Doces, Seattle, Pemberton & Bentley, Joseph T. Pemberton, Bellingham, Tooze, Kerr, Peterson, Marshal & Shenker, Arden E. Shenker, Portland, for appellants.

Lane, Powell, Moss & Miller, G. Keith Grim, Richard F. Allen, Robert R. Davis, Jr., Seattle, Detels, Draper & Marinkovich, J. Richard Crockett, Seattle, Abbott, Lant & Fleeson, Richard Fleeson, Bellingham for respondent.

CALLOW, Judge.

The plaintiffs, Paul G. Barci and Paul N. Barci, are father and son. They have owned and operated farm property near Ferndale, Washington, since the early part of the century. The defendant, Intalco Aluminum Company, constructed and commenced the operation of its aluminum reduction plant near the plaintiffs' property in 1966. The plaintiffs brought suit for damages to their real property, to their cattle and to themselves individually, caused by pollutants from the plant. Liability was admitted by the defendant leaving the amount of damages as the sole issue to be decided by the jury.

The jury returned the following verdict:

We, the jury, find for the plaintiffs and assess their damages as follows:

A. For physical and mental pain, injury, disability and suffering:

1. As to the plaintiff Paul G. Barci, the sum of $0.

2. As to the plaintiff Paul N. Barci, the sum of $0.

B. For irritation, annoyance and anguish:

1. As to the plaintiff Paul G. Barci, the sum of $30,000.00.

2. As to the plaintiff Paul N. Barci, the sum of $5,000.00.

C. As to the plaintiffs Paul G. Barci and Paul N. Barci:

1. For damage to cattle the sum of $17,310.00.

2. For loss of the use and enjoyment of plaintiffs' property the sum of $30,750.00.

3. For damage to trees and shrubs, the sum of $0.

The plaintiffs challenge the award as inadequate.

The plaintiffs argue that the trial court erred in (a) precluding the testimony of a medical witness on behalf of the plaintiffs, (b) excluding the opinion testimony of an expert witness for the plaintiffs, and (c) permitting testimony as to fair market value by expert appraisers called by the defendant.

The first issue raised by the plaintiffs concerns the exclusion of the testimony of a doctor called to testify about physical injuries to the plaintiffs. In their original and first amended complaints filed in 1970, the plaintiffs alleged that pollutants from the defendant's plant had injured them. In February 1971, the plaintiffs filed another amended complaint which reiterated the allegation for personal injury damages. Throughout 1971, the plaintiffs alleged that they had suffered personal injury, but they were unable to supply medical proof of such injuries.

The case initially went to trial on October 4, 1971. In the second day of trial, a plaintiffs' motion for continuance was granted. Two days later, the plaintiffs filed another complaint claiming that the defendant's factory had emitted fluorides which were injurious to human life and that said emissions had caused injury to the eyes, sinuses, and respiratory tracts of the plaintiffs. The plaintiffs were deposed for a second time on January 12, 1972, and said they had no present appointments to be examined by any medical practitioner with regard to any of their medical conditions. At that deposition, Paul G. Barci replied in the negative when asked whether he had any medical problem as a result of pollutants other than watering of his eyes.

Counsel had agreed to notify each other of the names of witnesses to be produced at trial. The second trial was scheduled to begin February 22, 1972. On February 11th or 12th, the plaintiffs' counsel advised the defense they might call Dr. S. Thatcher Hubbard as a witness. Defense counsel was informed that the plaintiffs would be examined in Spokane by Dr. Hubbard on February 15, 1972. On February 15, 1972, the matter of the testimony of Dr. Hubbard was taken up with the trial court on a preliminary motion, and the court ruled that the defense could depose Dr. Hubbard in Spokane prior to trial. Immediately following the examination, plaintiffs' counsel notified the defense they intended to call the doctor as a witness. On February 16, counsel for the defendant retained a Spokane attorney to depose Dr. Hubbard, but the doctor was unavailable because of previous appointments. when the defendant was unable to depose the doctor before trial, counsel moved, in the alternative, to exclude his testimony or for a continuance of the trial date. This motion was filed February 17, 1972.

At the opening of trial on February 22, 1972, the defense counsel brought on this motion for argument. The trial court withheld ruling on the motion but declared that the doctor could come to Bellingham to be deposed on Thursday evening, February 24. The doctor was deposed on that date, and the defendant claims it then first learned that Dr. Hubbard would testify he found a permanent total disability in one plaintiff and a 50 percent permanent disability which would progressively worsen in the other plaintiff. The next day (Friday, February 25, 1972) plaintiffs' counsel called Dr, Hubbard to the stand, and defense counsel renewed their motion to exclude his testimony. They argued they were surprised by the witness's opinion with respect to the degree of permanent disability suffered by both plaintiffs as a result of their exposure to fluorides. The trial court ruled the testimony would be excluded. Thereupon, counsel for the plaintiffs attempted to make an offer of proof concerning the doctor's testimony, and the trial court refused to permit an offer of proof to be made. Some days later, this court issued an order directing the trial court to permit counsel to make an offer of proof. ¹

On Monday, February 28, 1972, plaintiffs' counsel advised the trial court and counsel that they intended to offer Dr. Hubbard's testimony at the end of their case in chief. Following argument on Thursday, March 2, the trial court announced the doctor could testify but later in the afternoon reversed its ruling and excluded the proposed testimony. During argument on the motion, the defense counsel reportedly attempted to contact pulmonary experts in Seattle but were unable to do so. The plaintiffs' counsel challenged the claimed unavailability of pulmonary specialists. Plaintiffs emphasized they would be prepared to offer Dr. Hubbard's testimony at the conclusion of the entire case. On Monday, March 6, plaintiffs' counsel moved for reconsideration of the matter. The motion was denied. On March 9, the plaintiffs moved for permission to reopen their case in chief and offer the testimony of Dr. Hubbard, and the motion was denied.

An offer of proof was made that the doctor's testimony would have been that he had examined both plaintiffs on February 14, 1972, and concluded that plaintiff Paul N Barci had a pulmonary fibrotic injury which was both permanent and irreversible and that Paul G. Barci had permanent pulmonary fibrosis and chronic inflammatory pulmonary disease. The offer of proof was that the doctor would have testified further that the plaintiff Paul N. Barci was 50 percent disabled and Paul G. Barci was totally disabled because of the pulmonary disease. Finally, the offer of proof was that in the opinion of Dr. Hubbard these diseases were the result of exposure to fluorides from the defendant's aluminum plant. The plaintiffs then made offers of proof relative to surprise. This offer proffered testimony by Dr. Hubbard that he was not available for a deposition prior to February 24 because of unbreakable commitments and further that an examination of the plaintiffs substantially before February 14, 1972, might not have revealed the present seriousness of their condition.

The plaintiffs contend that they were prejudied by the refusal to allow Dr. Hubbard to testify. The lengthy recitation of the factual situation leading up to the exclusion of the witness has been necessary for the consideration of this assignment of error.

The following cases touch upon the propriety of the trial court's exclusion of the medical specialist on respiratory problems. In Sather v. Lindahl, 43 Wash.2d 463, 261 P.2d 682 (1953), the trial court's granting of a new trial where the plaintiff had denied knowledge of any witnesses to an accident in a deposition taken 4 days before trial and then produced such witnesses at trial was reversed because the defense counsel had failed to object timely to the surprise testimony. The decision held:

When, after denying knowledge of witnesses which he in fact had, a litigant produces those witnesses at the trial, the adverse party should object to their being permitted to testify and, if they are permitted to testify, should move that their testimony be stricken. The trial judge can sustain such an objection and refuse to permit the witness to testify or can order his testimony stricken; or he can grant a continuance to give the surprised party an opportunity to investigate the witness and secure rebuttal testimony; and it is possible that, under circumstances in which no other relief or penalty could remedy the situation created by the deception, he could grant a mistrial.

The Sather case involved an intentional violation of the discovery rules by the withholding of the names of known witnesses. The record here establishes (and the parties concede) that the rules of discovery were not violated.

In Talley v. Fournier, 3 Wash.App. 808, 479 P.2d 96 (1970), the trial court's refusal to allow a witness to testify was affirmed where the counsel had stated that only two witnesses had been subpoenaed to testify and then called a previously undisclosed third witness. The failure to disclose the witness was denounced as...