Gunnar L.g. Rose,et Al., V. Pharmacia Llc
CourtCourt of Appeals of Washington
Date FiledNovember 9, 2026
Docket88054-3
StatusUnpublished
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Full Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
GUNNAR L.G. ROSE; CAROL A. No. 88054-3-I
SNYDER, individually and as litigation
guardian of minor child E.J.S.;
HUDSON H. SNYDER; MAXIMILIAN
SNYDER; BRIAN TETREAULT, as
litigation guardian of minor children
A.N.T. and B.E.A.T.; DONYA C.
GRANT, individually and as litigation
guardian ad litem for minors K.M.G .,
M.A.G., and R.K.G.; HADLEY B.
GRANT; and ARICA L. SMITH-
SIMMER, individually and as litigation UNPUBLISHED OPINION
guardian ad litem for minors K.R.M.S.
and N.D.S.,
Respondents,
v.
PHARMACIA LLC, a Delaware limited
liability corporation,
Defendant.
BOWMAN, A.C.J. — The attorneys representing defendant Pharmacia LLC
appeal from the trial court order issuing personal, punitive, reprimand, and
attorney fee sanctions against them under CR 37(b)(2) for the late disclosure of
expert witnesses. Because CR 37(b)(2) does not authorize personal punitive
sanctions for violation of a discovery order, we reverse and remand for the trial
court to vacate those sanctions. We otherwise affirm.
No. 88054-3-I/2
FACTS
In 2018, Gunnar Rose and several other plaintiffs sued Pharmacia1 for
damages from exposure to polychlorinated biphenyls (PCBs). The same year,
Donya Grant and several other plaintiffs filed a separate lawsuit against
Pharmacia2 on similar grounds. In June 2024, the trial court consolidated the
lawsuits. At that time, the discovery deadline to disclose expert witnesses and
reports had passed in both cases.3 Pharmacia had previously disclosed that Dr.
Laura Jansen and Dr. Jill Kelderman would render medical and causation
opinions about the minor plaintiffs in the Rose matter, and it timely provided those
reports. It also disclosed that Dr. Matthew Holcomb and Dr. Frederic Braun
would render medical and causation opinions about the minor plaintiffs in the
Grant case, and it timely provided those reports. The court set a consolidated
trial date for October 7, 2024, and the parties began addressing motions in limine
in August 2024.
On August 16, 2024, plaintiffs’ counsel deposed Dr. Jansen about her
opinions in the Rose matter. During her deposition, Dr. Jansen disclosed that
she also planned to review records related to the minor plaintiffs in the Grant
matter and provide a report with her opinions in that case as well. Plaintiffs’
1
The plaintiffs listed several other defendants in their complaint. It is unclear
from the record the status of those other defendants, so they are not listed in the case
caption. In any event, they are not parties on appeal.
2
Again, the plaintiffs listed several other defendants in their complaint, but
Pharmacia is the only defendant pertinent to this appeal.
3
The cutoff for expert discovery in the Rose matter was January 31, 2024. And
the cutoff for expert discovery in the Grant matter was November 10, 2023.
2
No. 88054-3-I/3
counsel asked what those opinions might be, but Dr. Jansen refused to discuss
them at that time.
On September 21, 2024, Pharmacia disclosed Dr. Jansen’s new reports
pertaining to the minor plaintiffs in Grant. And on September 30, it produced new
reports from Dr. Kelderman with her opinions related to those plaintiffs. On
October 11, plaintiffs’ counsel moved to strike the new reports as untimely. In
response, Pharmacia argued that its late disclosures were intended to reduce
duplication and streamline evidence at trial.
The trial court held a hearing on October 25, 2024. At the hearing, the
court asked Pharmacia why it decided to “change horses this late in the game.” It
also told Pharmacia to be prepared to discuss appropriate sanctions. After some
discussion, Pharmacia withdrew the late-disclosed opinions and its request to
substitute witnesses. Pharmacia’s lead attorney claimed personal responsibility
for the late disclosures but said it was a “team decision with input from the client.”
Plaintiffs’ counsel then asked the court to impose sanctions for time
wasted on preparing briefs and arguing the motions to strike. Counsel reminded
the court that this was the “fifth or the sixth motion or event that the defense has
created” and then withdrawn. Counsel requested that three hours of trial time be
taken from the defense and awarded to the plaintiffs. Pharmacia opposed the
time sanction, arguing that it would “dramatically harm [its] ability to defend this
case.”
The court acknowledged that Pharmacia voluntarily withdrew the late-
disclosed reports and its request to substitute witnesses and did not impose a
time sanction. But it said that plaintiffs’ counsel had some “very valiant, valid
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No. 88054-3-I/4
points with respect to the disruption and the pattern of disruption.” It explained
that the court and the plaintiffs had already spent “tremendous” amounts of time
preparing for hearings that Pharmacia then put aside, including CR 2(a) and
Frye4 hearings. And the court noted that this behavior is disruptive and “reflects
to some degree a disrespect for the Court and the Court’s time.”
The court ordered Pharmacia to pay the plaintiffs’ attorney fees for their
time associated with the motions to strike. And it individually sanctioned the
Pharmacia attorneys $2,500 each, payable to the King County Bar Foundation.
The court explained it was “an appropriate sanction taking into account the
surrounding circumstances, which is not just the issues in this motion, but it’s the
issues writ large with the way that this case has been conducted over the last
couple of months. . . . It’s a start and a stop.”
On November 1, 2024, the court issued its written sanctions order. It
incorporated its oral findings and ordered that “Defendant shall pay Plaintiffs’
attorney fees and costs for all issues associated with having to address [the]
motions [to strike].” And it ordered each of Pharmacia’s eight attorneys to pay
$2,500 to the King County Bar Foundation.
On November 4, 2024, Pharmacia moved for reconsideration of the
personal sanctions against its attorneys. It argued, among other things, that the
sanctions were unsupported by the record or any legal standard. And the
sanctions violated the attorneys’ due process rights.
4
Frye v. United States, 293 F. 1013 (D.C. Circ. 1923).
4
No. 88054-3-I/5
The court heard oral argument on the motion to reconsider. On March 17,
2025, it issued findings of fact, conclusions of law, and an order on
reconsideration. In its order, the court clarified that it issued sanctions solely
under CR 37(b)(2), saying:
[T]his Court’s sanctions ruling was based on authority conferred to it
under CR 37(b)(2), which addresses sanctions in the context of
when a court order is not complied with, as was the case here.
While other sources of authority, such as this Court’s inherent
authority to sanction bad faith litigation conduct also support this
Court imposition of sanctions against Attorneys, the Court did not
rely on that authority, nor its authority under CR 11 or its contempt
powers, when issuing the sanctions at issue.
The court reiterated that the attorneys’ decision to knowingly violate the
court’s scheduling order was “objectively unreasonable and therefore
sanctionable.” It declined to reconsider the personal punitive sanctions but
reduced the number of Pharmacia attorneys subject to the $2,500 sanction from
eight to four. As to the other four attorneys, it “formally reprimanded” them for
“not speaking up and speaking out against their co-counsel’s flagrant violations.”
The court also clarified that it imposed the attorney fee sanctions “jointly and
severally” against only three of Pharmacia’s attorneys.
Pharmacia’s trial counsel appeal.5
ANALYSIS
Pharmacia’s attorneys argue that the trial court erred by imposing
“punitive, personal, reprimand, and attorneys’ fees sanctions” against them under
5
On September 29, 2025, a commissioner of this court denied Pharmacia’s
motion to amend the appellate case caption to add its attorneys as parties and designate
them as appellants. The commissioner noted that this court will still “treat[ ] the attorneys
as appellants” without changing the case caption and designated Pharmacia as the
defendant on appeal and the plaintiffs as respondents.
5
No. 88054-3-I/6
CR 37(b)(2). Respondents ask for attorney fees and costs on appeal. We
address each argument in turn.
1. CR 37(b)(2) Sanctions
The attorneys argue the court erred by imposing personal punitive
sanctions under CR 37(b)(2). We agree.6
The trial court has broad discretion to impose sanctions for a violation of
discovery orders. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d
1036 (1997). We review an order imposing sanctions for abuse of that discretion.
Id. A trial court abuses its discretion when its decision is manifestly unreasonable
or exercised on untenable grounds or for untenable reasons. State v. Thurlby,
184 Wn.2d 618, 624, 359 P.3d 793 (2015). A trial court necessarily abuses its
discretion if it based its ruling on an erroneous view of the law. Wash. Physicians
Ins. Exch. & Ass’n v. Fisons. Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
The purposes of sanction orders are to deter, punish, compensate, and
educate. Fisons, 122 Wn.2d at 356. The law provides several types of sanctions
to address a variety of inappropriate conduct. See, e.g., CR 11, 26, 37. For
example, CR 11(a)(4) allows the court to impose sanctions to prevent baseless
filings, filings made for improper purposes, and abuse of the judicial system.
Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994); Bryant v. Joseph Tree,
Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992). And CR 26(g) is aimed at
6
The attorneys also argue that the sanctions are disproportionate to the
discovery violation. Because we conclude that the court issued the personal punitive
sanctions in error, we need not address that argument. As to the attorney fees, that
sanction is directly proportionate to the time spent bringing the motion to strike, so we
reject that argument. See CR 37(b)(2) (allowing attorney fees as a sanction).
6
No. 88054-3-I/7
reducing delaying tactics, procedural harassment, and mounting legal costs due
to certain discovery violations. Fisons, 122 Wn.2d at 341-42. Similarly, CR
37(b)(2) authorizes the court to impose sanctions for failure to comply with
discovery orders. Finally, the court has the inherent authority to impose
sanctions to control conduct in the courtroom if it finds that a party or attorney
acted in bad faith. State v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058 (2000).
Sanctions under one rule are not appropriate when a “more specific sanction rule
better fits the situation.” Fisons, 122 Wn.2d at 339-40.
The attorneys argue that CR 37(b)(2) does not empower the court to issue
personal punitive sanctions for violating a discovery order. We agree.
We interpret statutes and court rules de novo. N. Coast Elec. Co. v.
Signal Elec., Inc., 193 Wn. App. 566, 571, 373 P.3d 296 (2016). And we interpret
court rules using the rules of statutory construction. In re Dependency of N.G.,
199 Wn.2d 588, 594, 510 P.3d 335 (2022). We look to the statute or rule’s plain
language to determine its meaning and the drafter’s intent. Id.; Dan’s Trucking,
Inc. v. Kerr Contractors, Inc., 183 Wn. App. 133, 139, 332 P.3d 1154 (2014). We
give effect to the plain meaning of the text, reading it as a whole and considering
the surrounding context and related provisions. Dan’s Trucking, 183 Wn. App. at
139. We give an undefined term “ ‘its plain and ordinary meaning unless a
contrary legislative intent is indicated.’ ” State v. Haggard, 195 Wn.2d 544, 548,
461 P.3d 1159 (2020) (quoting Ravenscroft v. Wash. Water Power Co., 136
Wn.2d 911, 920-21, 969 P.2d 75 (1998)).
We “employ traditional rules of grammar in discerning the plain language”
of a rule. State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010) (citing In re
7
No. 88054-3-I/8
Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 838-39, 215 P.3d
166 (2009)). If it is susceptible to more than one reasonable interpretation after
this inquiry, it is ambiguous, and we “ ‘may resort to statutory construction,
legislative history, and relevant case law for assistance in discerning legislative
intent.’ ” Haggard, 195 Wn.2d at 548 (quoting Christensen v. Ellsworth, 162
Wn.2d 365, 373, 173 P.3d 228 (2007) (citing Cockle v. Dep’t of Lab. & Indus.,
142 Wn.2d 801, 808, 16 P.3d 583 (2001))).
Under CR 37(b)(2), if a party fails to obey a discovery order, the court
“may make such orders in regard to the failure as are just, and among others the
following”:
(A) An order that the matters regarding which the order
was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
the disobedient party from introducing designated matters in
evidence;
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceedings or any part thereof, or
rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition
thereto, an order treating as a contempt of court the failure to
obey any orders except an order to submit to physical or mental
examination;
(E) Where a party has failed to comply with an order under
rule 35(a) requiring the party to produce another for
examination such orders as are listed in sections (A), (B), and
(C) of this subsection, unless the party failing to comply shows
that the party is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the attorney
advising him or her or both to pay the reasonable expenses,
including attorney fees, caused by the failure, unless the court finds
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No. 88054-3-I/9
that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
The rule’s plain language authorizes a court to issue sanctions “as are
just” when a party disobeys a discovery order. CR 37(b)(2). But here, the parties
disagree about the type of sanction that may be included in that phrase.
Because the phrase is undefined and may be susceptible to more than one
reasonable interpretation, we employ canons of statutory construction to discern
its meaning.
One such canon of statutory construction is “ejusdem generis.” See
Silverstreak, Inc. v. Dep’t of Lab. & Indus., 159 Wn.2d 868, 882, 154 P.3d 891
(2007). The doctrine of ejusdem generis provides that where specific words
follow a general term, the specific words “ ‘modify or restrict the application of
[the] general terms.’ ” Id.7 (quoting Davis v. Dep’t of Licensing, 137 Wn.2d 957,
970, 977 P.2d 554 (1999)). Courts should construe general words followed by
specific terms as encompassing “only similar objects.” Sw. Wash. Ch., Nat’l Elec.
Contractors Ass’n v. Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983).
The ejusdem generis rule applies where lists of both general and specific terms
are “clearly associated” in a sentence. Sw. Wash. Ch., 100 Wn.2d at 116-17.
Here, the phrase “make such orders in regard to the failure as are just” is a
general term. CR 37(b)(2). But that term is then followed by several specific
examples in subsections (A) to (E). Id. So, under the canon of ejusdem generis,
the general term encompasses sanctions similar to only those specifically listed
in subsections (A) to (E). Those subsections include deeming the disputed facts
7
Internal quotation marks omitted.
9
No. 88054-3-I/10
as established, striking claims or defenses, refusing the admission of evidence,
striking pleadings, holding a party in contempt, or compelling a witness to appear.
Id. But none of the listed examples in CR 37(b)(2) include an imposition of
monetary punitive sanctions. And none of them include the imposition of
personal sanctions or reprimands against attorneys. As a result, here, the court’s
imposition of personal punitive sanctions goes beyond the type of sanction
contemplated for failure to obey a discovery order under CR 37(b)(2).
The respondents point to the last paragraph of CR 37(b)(2) that allows a
court to impose attorney fee sanctions against both a party and their attorney to
argue that under the doctrine of ejusdem generis, a personal punitive sanction
against an attorney would be a “just” order contemplated by the rule. But that
section of CR 37(b)(2) is not one of the enumerated specific examples following
the general language authorizing orders “as are just.” So, it is not clearly
associated with the general term, and the doctrine of ejusdem generis does not
encompass that language. See Sw. Wash. Ch., 100 Wn.2d at 116-17 (”The
ejusdem generis rule is generally applied to general and specific words clearly
associated in the same sentence in a pattern such as ‘[specific], [specific], or
[general]’ or ‘[general], including [specific] and [specific].’ Where the general and
specific words are not so connected, the reasoning underlying the ejusdem
generis rules loses its force.”).8 Indeed, the plain language in the last paragraph
of CR 37(b)(2) explains that it applies “in lieu of” or “in addition” to “the foregoing
orders” listed in subsections (A) to (E).
8
Alterations in original, citations omitted.
10
No. 88054-3-I/11
Finally, the court’s use of CR 37(b)(2) runs afoul of the rule that it must
impose a sanction using the authority that most specifically addresses the
conduct. See Fisons, 122 Wn.2d at 339-40. The trial court imposed the personal
punitive sanctions based in part on the attorneys’ conduct throughout the case,
not just on the discovery violations. The court found that sanctions were
appropriate because of “not just the issues in this motion, but it’s the issues writ
large with the way that this case has been conducted over the last couple of
months. . . . It’s a start and a stop.” CR 11(a)(4) addresses sanctions for
attorneys who abuse the judicial system, and a trial court may use its inherent
powers to otherwise control bad faith conduct of lawyers in the courtroom. Biggs,
124 Wn.2d at 197. And here, while the trial court recognized that it could have
imposed sanctions under CR 11, it made no finding of bad faith as necessary to
support those sanctions and explained that it was issuing sanctions solely under
CR 37(b)(2).
We conclude that the trial court abused its discretion by imposing personal
punitive sanctions against Pharmacia’s attorneys under CR 37(b)(2).9
9
Pharmacia’s attorneys also argue that the court erred by failing to conduct a
Burnet analysis before personally sanctioning them and violated their due process rights
by failing to give them adequate notice that they may be subject to personal sanctions.
But they cite no persuasive authority that a Burnet analysis is required before issuing
monetary sanctions, so we do not address their argument. See RAP 10.3(a)(6). And
their due process argument fails because the record shows that the attorneys received
both notice and an opportunity to be heard. In any event, because we conclude that the
court improperly imposed the personal punitive sanctions, we need not address these
issues. Pharmacia’s attorneys also argue that the trial court violated their due process
rights by belatedly imposing joint and several attorney fees. But again, the record shows
that the attorneys had notice and an opportunity to be heard before the court imposed
those sanctions. And CR 37(b)(2) permits imposition of attorney fees against attorneys
as sanctions.
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2. Attorney Fees and Costs on Appeal
The respondents ask for attorney fees and costs under RAP 18.1 and CR
37. RAP 18.1(a) permits an award of reasonable attorney fees and costs on
appeal if they are recoverable under applicable law. And CR 37(b)(2) authorizes
attorney fees and costs to compensate a party for expenses caused by the other
party’s failure to obey a court order. But because we conclude that the trial court
erred by imposing personal punitive sanctions against Pharmacia’s attorneys, we
decline to award the respondents attorney fees or costs on appeal.
Because CR 37(b)(2) does not authorize the court to impose personal
punitive sanctions for violation of a discovery order, we reverse and remand for
the trial court to vacate its order imposing those sanctions. We otherwise affirm.
WE CONCUR:
12