Jones v. City of Seattle

Decision Date05 February 2014
Docket NumberNo. 87343–7.,87343–7.
CourtWashington Supreme Court
PartiesMargie (Meg) JONES, as Guardian of Mark Jones, Respondent, v. CITY OF SEATTLE, Petitioner.


Michael Barr King, Gregory Mann Miller, Jason Wayne Anderson, Justin Price Wade, Carney Badley Spellman PS, Seattle, WA, for Petitioner.

Todd Whitney Gardner, Attorney at Law, Renton, WA, Richard B. Kilpatrick, Kilpatrick Law Group PC, Bellevue, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, for Respondent.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, Erin Healy Hammond, Attorney at Law, Federal Way, WA, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.


¶ 1 The city of Seattle (City) seeks review of an unpublished Court of Appeals decision affirming a $12.75 million verdict in favor of former Seattle fire fighter Mark Jones. The City asserts that the trial court erred by (1) excluding three late-disclosed defense witnesses without first conducting the inquiry required under Burnet v. Spokane Ambulance, 131 Wash.2d 484, 494, 933 P.2d 1036 (1997) and (2) denying the City's motion to vacate the judgment on the basis of newly discovered evidence. Although we find that the trial court erred in excluding testimony by the late-disclosed witnesses, we agree with both parties that this evidentiary ruling is reviewed for harmless error and we conclude that the error was harmless. We also find that the trial court did not abuse its discretion in denying the City's motion to vacate. We therefore affirm the judgment of the trial court.


¶ 2 Mark Jones, a Seattle fire fighter, was severely injured on December 23, 2003, when he fell 15 feet through a fire station “pole hole” at approximately 3 a.m. Clerk's Papers (CP) at 7987–90. Although he could not remember the accident, he reported to a responding medic that he had awoken to use the bathroom, which was next to the pole hole door. 6–B Report of Proceedings (RP) (Sept. 17, 2009) at 149–50. Mark 1 sustained both physical and cognitive impairments as a result of his fall. In December 2006, Mark sued the City for damages arising from the accident, alleging that the City had been negligent in failing to block the door to the fire pole. Trial was continued twice and eventually set for September 8, 2009. The court made July 20, 2009 the discovery cutoff date and ordered the parties to exchange final witness lists by August 17, 2009. The continuances were granted in part because the City substituted new counsel twice after the lawsuit was filed. The attorneys who represented the City at trial took over in January 2009.

¶ 3 The City deposed Mark on March 6, 2008, and his sister Meg Jones on March 10. In October 2008, Meg was appointed Mark's guardian; she thereafter moved the court to substitute herself as plaintiff in the case. The court granted the motion. On May 4, 2009, the City moved for permission to redepose Mark, arguing that its current counsel had never met or questioned him and that it should be allowed to ask him about his activities during the year that had elapsed since his first deposition. Meg opposed the motion, arguing that the City did not need to “meet” Mark when it had a videotape of his first deposition, had all his current medical records, and had a list of 162 witnesses whose knowledge of Mark's current condition had been described by both Meg and Mark in their depositions. CP at 222–33. Meg also argued that Mark's condition was unchanged, and that another deposition would be an extreme physical and emotional hardship for him. The trial judge denied the City's request for a second deposition.

¶ 4 When the City hired its third and final set of attorneys, it began aggressively pursuing the theory that Mark was an alcoholic and a binge drinker who had fallen through the pole hole because he was suffering from symptoms of alcohol withdrawal. As trial grew closer, the City also began asserting that Mark's alcoholism was compromising his recovery. The City's “alcohol theory” was apparently based on three things: Mark's DUI (driving while under the influence of intoxicating liquor or any drug) arrest in November 2003, deposition testimony by Mark's ex-wife that Mark had been a heavy drinker before his accident, and the fact that when Mark was admitted to Harborview Medical Center after his fall, doctors there implemented alcohol withdrawal protocols.

¶ 5 In fact, Mark's DUI charge was reduced to negligent driving. Further, the attending physician at Harborview submitted a declaration explaining that the alcohol withdrawal protocols had been initiated in response to Mark's extreme agitation upon arrival, but that in retrospect she believed those symptoms were more likely caused by the brain injury Mark sustained in the fall, rather than by alcohol-dependence. Finally, Mark's ex-wife stated in a deposition that while Mark drank heavily at times during their marriage, he had not consumed any alcohol in the two months preceding his accident.

¶ 6 The City nevertheless offered testimony by Dr. Gregory Rudolf, who had never met Mark, that Mark “was the kind of alcoholic who conceals his drinking” and that “alcohol was the cause of [Mark's] abnormal level of disorientation” the night of the accident. RP (Sept. 4, 2009) at 57; CP at 2372–86.

¶ 7 On the first day of trial, the judge excluded evidence of preaccident alcohol consumption, finding that “the probative value of that [evidence] is minimal, [while] the prejudice is very, very significant.” RP (Sept. 4, 2009) at 113. She also excluded evidence that Mark had been drinking since his accident, with the exception that “if the defense wants to argue that factors other than [his] injuries ... have diminished [Mark's] quality of life,” it could elicit first-hand testimony about two incidents of alleged heavy drinking in mid–2006. Id. at 115. She left open the possibility that she would admit more evidence of drinking if it were “pretty strong,” id., and if the City could better “articulate[ ] what happened to [Mark's] recovery as a result of using alcohol.” Id. at 117.

¶ 8 The following week, after reviewing “every single case that [she] could find that has any bearing on [the alcohol issue],” the judge excluded the City's proffered expert testimony in support of its theory that Mark's alcoholism was compromising his recovery. RP (Sept. 11, 2009) at 144–46. In issuing this ruling, she cautioned the City that she was concerned about the evolving and speculative nature of its “alcohol theory” defense:

Post accident, I'm concerned that even getting into the question of alcohol's impact on Mr. Jones' recovery and on his quality of life, basically, was an idea that came up recently, when it became clear that maybe the pre-accident use of alcohol wasn't going to come in, and I'm very concerned that Dr. Rudolph [sic] testified that he refined and sort of developed these opinions after his deposition on July 24th.

Dr. Rudolph [sic] certainly did not have any proof [of post-accident drinking], simply his assumption and suspicion that alcohol was continued to be used ... and it's simply too speculative to consider it, especially when we consider the tremendous prejudicial effect that getting into alcohol can have.

Id. at 146–47. The judge maintained her prior ruling as to the two incidents of heavy drinking in 2006.

¶ 9 On the same day the judge issued her ruling excluding Dr. Gregory Rudolf's testimony—three days after trial began—the City moved to admit testimony by Mark's sister, Beth Powell. The City explained that it had only “learned of [Powell] yesterday” and that it had flown her in from Helena, Montana, that morning. Id. at 104. The judge expressed concern over what she characterized as “an ambush” on the plaintiff: “the way we have our civil rules designed is that people are allowed to rely on what evidence has been presented by the discovery cutoff....” Id. at 111. The City complained that it would have discovered Powell earlier, if it had been permitted to re-depose Mark. It also asserted, for the first time, that it had “pictures of [Mark] last Sunday night ... sitting at a bar.” Id. at 114.

¶ 10 The judge ordered the parties to depose Powell over the weekend and deferred ruling on Powell's testimony until she could read the deposition. She also ordered the City to turn over any surveillance photographs it had of Mark or Meg.

¶ 11 The parties gave their opening statements the following Monday. The first two weeks of trial were devoted to testimony by Mark's treating physicians, a member of the workers' compensation panel who had evaluated Mark after his accident, and various witnesses who spoke to the general condition and layout of “Station 33,” to the City's ability to prevent accidents like Mark's, and to Mark's demeanor, habits, and capabilities since the accident.

¶ 12 The various physicians and therapists who took the stand uniformly testified that Mark had significant and permanent cognitive impairments. Dr. Peter Esselman, a brain injury specialist who had treated Mark at Harborview's inpatient rehabilitation unit, testified that Mark had sustained a traumatic brain injury in his accident and that this injury was manifesting in Mark's difficulties managing day-to-day tasks, concentrating, and controlling his mood. He also testified that Mark suffered from lasting nerve damage and that Mark had made significant efforts to return to work, which had been frustrated by his brain injuries. Dr. Esselman also stated that Mark would probably not be able to function without “some sort of companion care right now to help him with daily structure[,] ... taking medications on time[,] ... meal preparation[,] ... and schedul[ing].” He testified that he...

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