§16.7 Significant Authorities

• Jurisdiction: Washington

§16.7SIGNIFICANT AUTHORITIES

(1)Washington

Federal case law is persuasive as to the interpretation of CR 16. Harding v. Will, 81 Wn.2d 132, 500 P.2d 91 (1972).

Caveat: The Harding decision predates the 1983 amendments to FED. R. CIV. P. 16. Therefore, its holding may not apply to decisions addressing the more recent provisions in the federal rule.

A pretrial conference may be used early on in litigation as a comprehensive case management tool. See Corp. v. Atlantic-Richfield Co., 67 Wn.App. 520, 837 P.2d 1030 (1992), rev'd on other grounds, 122 Wn.2d 574, 860 P.2d 1015 (1993).

A CR 26(f) discovery conference and CR 16 pretrial conference may be combined and a combined discovery/pretrial order maybe issued. See Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).

Upon its entry, a pretrial order controls the lawsuit unless modified by agreement of the parties or by the court to avoid manifest injustice. Stempel v. Dep't of Water Res., 82 Wn.2d 109, 508 P.2d 166 (1973); Vasquez v. Markin, 46 Wn.App. 480, 731 P.2d 510 (1986), review denied, 108 Wn.2d 1021 (1987); Anderson v. Section 11, Inc., 28 Wn.App. 814, 626 P.2d 1027 (1981).

A pretrial order will be modified to allow consideration of new issues only when facts first come to the attention of the parties subsequent to the order and a modification is necessary to prevent manifest injustice. Esmieu v. Schrag, 92 Wn.2d 535, 598 P.2d 1366 (1979); Morris v. Int'l Yogurt Co., 41 Wn.App. 226, 703 P.2d 318 (1985), aff'd in part, rev'd in part, 107 Wn.2d 314, 729 P.2d 33 (1986).

Parties are generally bound by the facts agreed to and established by the pretrial order, Esmieu, 92 Wn.2d 535, unless there is no objection to the admission of evidence outside the scope of the order. Anderson, 28 Wn.App. 814.

The trial court may limit the number of expert witnesses in the pretrial order. Vasquez, 46 Wn.App. at 492 (when party failed to list expert according to pretrial order and expert testimony was cumulative and raised no new issues, expert was excluded from testifying at trial).

A motion in limine is appropriate at a pretrial conference. Amend v. Bell, 89 Wn.2d 124, 570 P.2d 138 (1977).

Appeal from a pretrial order is not a matter of right. Grill v. Meydenbauer Bay Yacht Club, 57 Wn.2d 800, 359 P.2d 1040 (1961).

A court has the power to limit issues for trial upon admissions made at the pretrial conference. Maybury v. City of Seattle, 53 Wn.2d 716, 336 P.2d 878 (1959); Morris, 41 Wn.App. 226 (pretrial order listing admissible exhibits held as admissions of documents to avoid unnecessary proof).

(2)Federal

Only such matters as rebuttal witnesses, impeachment evidence, and issues involving privilege are immune from being revealed at the pretrial conference. Burton v. Weyerhaeuser Timber Co., 1 F.R.D. 571 (D. Or. 1941).

Failure to disclose a witness at pretrial conference may warrant a new trial. Burton, 1 F.R.D. 571.

Unless modified to prevent manifest injustice, the pretrial order controls admission of evidence at trial. Colvin v. United States ex rel. Magini Leasing & Contracting, 549 F.2d 1338, 1340 (9th Cir. 1977) (evidence was properly excluded when offered on new theory not included in pretrial order). The burden is on...