Boyer v. Morimoto, No. 36166-7-III, 2019 Wash. App. LEXIS 2363 (Ct App Sep. 10, 2019)

Washington Court Upholds Decision Not to Consider Supplemental Declaration Filed After Memorandum Decision on Summary Judgment

Case: Boyer v. Morimoto, No. 36166-7-III, 2019 Wash. App. LEXIS 2363 (Ct App Sep. 10, 2019)

Issue: Does Washington procedural law require trial courts to consider supplemental declarations
filed after the court issues a memorandum decision granting a party summary judgment, but before
the court enters a formal order on summary judgment? NO

Facts: A patient underwent surgery to deal with excess skin left as a result of significant weight
loss. Due to complications following surgery, the patient became extremely ill and had to have
several toes amputated. The patient subsequently sued the doctor and the clinic where the surgery
took place. The doctor filed a motion for summary judgment, asserting that the patient could not
present admissible testimony from a qualified expert to establish the necessary standard of care. In
response to the motion, the patient submitted a declaration from an expert witness providing
testimony on what the applicable standard of care was, that the “standard is not unique to the State
of Washington and applies on a nationwide basis[,]” and that the doctor’s conduct fell below that
standard of care.

After oral argument on the motion for summary judgment, the trial court requested that the patient
file a curriculum vitae (CV) for her expert on the standard of care, which the patient subsequently
did. The trial court issued a memorandum decision granting the motion for summary judgment,
stating that the CV “failed to present an adequate foundation” for the expert’s opinion of the
applicable standard in Washington. Therefore, the expert’s opinion was inadmissible, and the
patient had failed to provide testimony establishing any standard of care.
Before the order was entered, the patient filed a supplemental declaration from her expert which
cured the foundation issues with the previous opinion. The declaration was not accompanied by a
motion for reconsideration, or a motion for late filing of the declaration. The court entered an order
granting the doctor’s motion for summary judgment without mention of the supplemental
declaration. The Court of Appeals affirmed the trial court’s decision.

Holding & Analysis: The Court held that Washington law did not require trial courts to consider
supplemental declarations that had been filed late. In rendering their decision, the Court
emphasized that, despite the trial court recommending twice that the patient should file a motion for
reconsideration, she never did, nor did she file a motion for continuance of the summary judgment
hearing. The Court’s opinion makes it clear: if a party files an affidavit or declaration late, it must
be accompanied by an additional motion for reconsideration or for continuance.