A plaintiff appealed a Washington State superior court’s order of summary judgment dismissing his claims for waste, timber trespass, equitable indemnity, and contribution.

He also appealed the superior court’s exclusion of his rebuttal expert’s testimony.

Plaintiff owned a lot to the east of and adjacent to Defendant’s property in Lewis County.

The land near the property line between the two properties was forested. There was a 60-foot right-of-way easement located on the western edge of Plaintiff‘s property, and a road was built on the easement.

Plaintiff‘s property line extended westward past the road about eight feet at the north end and about 30 feet at the south end. Plaintiff and Defendant used the road to access their respective properties.

In 2014, Defendant hired a logging company (“Logger”) to remove some trees.

Logger hired another company (“Cutter”) to assist in the tree cutting.

Defendant told Logger that he owned the property up to the edge of the road and that all of the trees up to the edge of the road were his.

Defendant had seen two monuments that marked the corners of Plaintiff‘s property west of the road before the trees were cut.

Logger was with Defendant when Defendant saw the monuments, and Logger saw at least one of the monuments. 

Based on Defendant‘s representations, Logger instructed Cutter on where to cut, and Cutter cut and removed the trees up to the edge of the road, including trees on Plaintiff‘s property.

Logger sold the logs and split the proceeds with Defendant.

After Plaintiff accused Defendant of cutting trees on his property, Defendant had his property surveyed.

The survey confirmed that Plaintiff‘s property line extended into the area where Defendant had instructed Logger to cut trees.

Plaintiff hired an expert witness on damages. The expert used the trunk formula method to determine the value the destroyed landscape made to the property value of his entire holding.

This formula method is used to appraise the monetary value of trees considered too large to be replaced with nursery stock.

“Value is based on the cost of the largest commonly available transplantable tree and its cost of installation, plus the increase in value due to the larger size of the tree being appraised. . . . [the value is] then adjusted for species, condition, and location ratings.” The judge wrote, quoting a tree law treatise.

The damages expert stated that Plaintiff wouldn’t enjoy the natural landscape that lined his driveway for at least 40 years after the trees were replaced and that Plaintiff‘s land was damaged. The damage couldn’t be measured by stumpage value alone because that value ignored the landscape value that was lost.

The damages expert didn’t define “stumpage value,” but it generally is the market value of a tree before it is cut, or the amount that a purchaser would pay for a standing tree to be cut and removed.

Defendant hired an expert witness who stated that the trunk formula method was the appropriate appraisal method for trees in residential landscape, recreational, or shade tree situations when the species and size can be determined.

However, he disagreed with Plaintiff’s damages expert‘s damages calculation.

Defendant sent its expert‘s report to Plaintiff before the discovery cutoff date.

Defendant later sent his expert’s notes and file to Plaintiff and asked, *“If [the notes and file] in any way impact your experts’ ability to testify fully at their depositions tomorrow, please let me know right away so we can attempt to work something out.” *

Plaintiff did not respond to the email.

Nine days later, Plaintiff sent a letter to the Defendant naming an additional rebuttal expert. Specifically, Plaintiff said this expert would rebut the manner in which Defendant’s experts applied the trunk formula and their opinions as to the distinction between landscape damage and damages associated with the appropriation of Plaintiff‘s logs.

This letter was sent days after the disclosure of rebuttal witnesses was due.

Defendant sought to exclude Plaintiff’s rebuttal expert from testifying. Defendant argued that Plaintiff untimely disclosed Plaintiff’s rebuttal expert as an expert, that the rebuttal expert‘s testimony was cumulative to that of Plaintiff‘s other expert, that Defendant would be prejudiced if Plaintiff’s rebuttal expert was allowed to testify, and that Plaintiff provided no compelling reason for the last minute “switch” of experts.

The superior court granted Defendant‘s motion and excluded Plaintiff’s rebuttal expert‘s testimony. The court reasoned that Plaintiff untimely disclosed Plaintiff’s rebuttal expert as an expert, that Plaintiff didn’t respond to Defendant‘s letter asking whether the expert’s notes and file would impact the damages expert‘s deposition testimony, and that Plaintiff wouldn’t be prejudiced because Plaintiff had another expert witness who could testify to the same subject area as Plaintiff’s rebuttal expert.

Acting Chief Judge Linda Lee and the Washington Court of Appeals agreed with Plaintiff that the superior court erred when it excluded Plaintiff’s rebuttal expert‘s rebuttal testimony.

Although Plaintiff failed to designate the superior court’s decision excluding Wright’s testimony in his notice of appeal, the Court of Appeals reviewed this decision in the interest of justice because Plaintiff set forth the decision in his assignments of error, presents an argument on the issue, and references legal authority; and Defendant addressed the issue.

Judge Lee wrote that a trial court exercises broad discretion in imposing discovery sanctions and its determination will not be disturbed absent a clear abuse of discretion. However, the trial court must consider the factors set forth in Burnet v. Spokane Ambulance (1997) before excluding witnesses for late disclosure. The record must show consideration of a lesser sanction, the willfulness of the violation, and substantial prejudice arising from the violation. Failure to consider these factors constitutes an abuse of discretion.

The superior court in this case excluded Plaintiff’s rebuttal expert‘s testimony because of Plaintiff‘s late disclosure of the expert. Thus, the superior court’s exclusion was a discovery sanction.

But the superior court didn’t consider the Burnet factors before excluding Plaintiff’s rebuttal expert‘s rebuttal testimony as a sanction for late disclosure. The superior court only considered the fact that Plaintiff failed to Defendant‘s letter and that Plaintiff wouldn’t be prejudiced by Plaintiff’s rebuttal expert‘s exclusion.

Judge Lee acknowledged that though the superior court’s consideration of Plaintiff‘s lack of response may constitute consideration of his willfulness, the court still failed to consider the existence of lesser sanctions or whether Defendant was substantially prejudiced by the late disclosure.

Therefore, the Court of Appeals held that the superior court abused its discretion when it excluded Plaintiff’s rebuttal expert based on late disclosure without considering the Burnet factors.

The trial court decision was affirmed in part, reversed in part, and remanded to the superior court for further proceedings.