    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PAUL THOMAS CREWS, as personal
representative of the ESTATE OF                          No. 70756-6-1
BRENDA HOUSTON, and as personal
representative of the ESTATE OF                          DIVISION ONE
ELIZABETH CREWS, and in his individual
capacity,                                                UNPUBLISHED OPINION

                      Respondent,

                                                                                    en


                                                                                           m

AVCO CORPORATION,
                                                                                     I


                      Appellant,

 PRECISION AIRMOTIVE LLC;                                                           up
                                                                                    rvs
 FORWARD TECHNOLOGIES                                                               V.C-
 INDUSTRIES, INC.; CREST AIRPARK,
 INC.; and AUBURN FLIGHT SERVICES,
 INC.,

                      Defendants.                        FILED: April 6, 2015


       Appelwick, J. — Avco appeals the trial court's order sanctioning it for discovery

violations.   The trial court struck all of Avco's affirmative defenses and deemed all

allegations in Crews's complaint admitted. As a result, the court found liability and

causation established and set separate trials on compensatory damages and punitive

damages.      Avco argues that the discovery sanctions order violated its right to due

process. It further asserts that the trial court abused its discretion in imposing sanctions

that were more severe than necessary. We remand for amendment of judgment to reflect

offset of amounts Crews received from other defendants. We otherwise affirm.
No. 70756-6-1/2




                                         FACTS

       On July 27, 2008, a rented Cessna 172N plane crashed in the Cascades near

McMurray, Washington.     The accident killed the pilot, Brenda Houston, and her two

passengers: Houston's 10 year old daughter, Elizabeth Crews, and their family friend, Dr.

Virgil Becker.

       On September 10, 2008, Houston's husband, Paul Crews, sued for injuries and

wrongful death. Crews named multiple defendants involved in the manufacture and care

of the plane. The personal representative of Becker's estate also brought suit against the

same defendants and named Houston's estate as an additional defendant, claiming pilot

negligence. The plaintiffs alleged that engine failure, in particular a faulty carburetor,

caused the plane crash. The defendants included Avco Corporation, which manufactured

and sold the plane's engine in 1978,1 and Precision Airmotive Corporation, which installed

a new carburetor float in the engine in 1999.

        Precision developed the float pursuant to its parts manufacturer approval (PMA)

from the Federal Aviation Administration (FAA). With a PMA, vendors of airplane parts

can sell replacement parts directly to customers and service shops. Precision acquired

a PMA to supply carburetors for Avco. The PMA required Precision to manufacture the

carburetors according to Avco's preapproved engineering drawings and specifications.

In the 1990s, Precision designed a new float made of a polymer resin called Delrin.

Precision obtained permission from Avco to use the Delrin float, and the FAA approved

the float.


      1 The engine was manufactured by Avco's unincorporated division, Lycoming
Engines. Because Avco is the named party in the lawsuit, we refer to Avco and Lycoming
together as "Avco" to maintain clarity and consistency.
No. 70756-6-1/3




       Crews and Becker alleged that the Delrin floats were defective and that a faulty

Delrin float was responsible for the plane crash. They further alleged that Avco and its

codefendants were aware the floats were defective but withheld this information and failed

to warn about the defects. The plaintiffs asserted claims for strict liability, negligence,

and breach of warranty. They sought both general and punitive damages.

      Avco asserted several affirmative defenses, including a lack of involvement with

the carburetor or float, compliance with federal regulations, federal and state statutes of

repose, comparative fault, the unavailability of punitive damages, and a demand for offset

of amounts recovered from other liable parties.       Avco also counterclaimed against

Houston's estate, alleging that pilot error caused the crash.

       In October 2010, Crews and Becker jointly served their first requests for production

on Avco. The requests generally pertained to the carburetors and Delrin floats, their

design and manufacture, Avco's communication with the FAA and with other companies

about the carburetors and floats, and information about any known defects or

malfunctions. Avco did not produce any discovery at that time. It objected to 68 of the

73 requests. It stated that it would produce the remaining documents with its answers

and affirmative defenses.


       Crews's and Becker's cases were consolidated on January 31, 2011.
No. 70756-6-1/4




       On April 29, Becker served his first interrogatories and second requests for

production on Avco. Avco objected to 16 of the 17 interrogatories. It also objected to 27

of the 30 requests for production. As to the remaining three, Avco stated that responsive

documents had already been provided.

       On July 6, Becker moved to compel Avco to answer his first interrogatories and

respond to his second requests for production. On July 7, the plaintiffs jointly moved to

compel production of documents responsive to their requests.             Avco opposed both

motions. In his reply, Becker asserted that Avco withheld documents reflecting its role in

testing, reviewing, approving, and certifying the Delrin float. As support, Becker attached

a December 2005 series of e-mails between Avco and Precision employees reflecting

Avco's knowledge of defects in the Delrin floats. Becker had obtained the e-mails from

Precision's discovery production.      The subject line of the e-mails was "Plastic Float

Leaking - Concerns." An Avco employee wrote that, "[p]er the attached file and our

previous conversations, it is clear that the hollow plastic carb floats can leak, allowing fuel

to enter the interior of the floats.   [Avco] is concerned that this condition will lead to

functional issues on engine installations."       The attached file was not included.        A

Precision employee replied, "We have been monitoring the situation with leaking Delrin

floats since their incorporation into production. We have, on several instances discussed

the situation with personnel at [Avco]."

       On July 21, Judge Julie Spector granted Becker's motion and the joint motion to

compel. Judge Spector ordered Avco to respond to Becker's requests within 14 days and

the plaintiffs' joint requests within five days. She further ordered Avco to specifically
No. 70756-6-1/5




identify by Bates stamp number each document that was responsive to each interrogatory

Or request. She also provided that the plaintiffs could seek costs for bringing the motions.

       On August 4, Avco amended its responses to the plaintiffs' first requests for

production and Becker's first interrogatories and second requests for production. Avco's

responses generally indicated that "[r]esponsive documents have either been produced

9nd/or are being made available for inspection" or that "Avco has located no documents

responsive to this request." (Emphasis omitted.)

       On August 31, Becker moved to hold Avco in contempt for failing to comply with

tJie order to compel. He requested that the court impose sanctions, including striking

Avco's federal statute of repose defense, holding that Avco may not oppose the

Availability of punitive damages in this case, holding that Avco had a duty to warn owners

and operators about the defective float, and monetary sanctions. On September 2, the

plaintiffs also jointly moved to hold Avco in contempt and to impose sanctions.

       On September 27, Judge Spector granted both contempt motions, finding that

Avco's "willful violation of the Court's July 20, 2011 Order has prejudiced and continues

to prejudice the plaintiffs in their prosecution of the case." She ordered Avco to fully

comply within seven days. She further ordered Avco to submit an affidavit detailing all

efforts made to fully comply with the order, "including, as for each ordered request, a

statement as to whether full and complete production has been made, and a detailed

description of how documents were identified and located."           Judge Spector again

provided that the plaintiffs could seek costs and fees for bringing the motions. She

reserved ruling on three sanctions: striking Avco's federal statute of repose defense;
No. 70756-6-1/6



ordering that Avco may not oppose punitive damages; and ordering that Avco had a duty

to warn about the defective floats.

       Avco submitted a declaration from counsel detailing Avco's efforts to comply with

Judge Spector's orders.      Counsel stated that, pursuant to company policy, "certain

Categories   of   documents       (such   as   engineering   documents     and   regulatory

Correspondence) are kept into perpetuity whereas other categories of documents are not

Required to be retained on a permanent basis but are retained only for fixed periods of

time, depending upon the category of document." Counsel's affidavit further explained

that many of the documents supplied by Precision regarding carburetors were "beyond

the various retention periods in [Avco's] Records Management Policy." The records

management policy was not attached to the declaration.

       On October 10, Avco moved to amend or vacate the contempt orders. It argued

that it made good faith efforts to comply with the plaintiffs' broad discovery requests and

that it had timely submitted the declaration of compliance as required by the court's order.

Avco also proposed that the subject matter of the orders be transferred to retired Judge

Paris Kallas, who had been appointed special discovery master the prior month.

       On November 8, Judge Spector denied Avco's motion. She declined to impose

further sanctions at that time.

       Effective January 9, 2012, the case was transferred to Judge Monica Benton.

       On January 20, Becker served Avco with his second interrogatories and third

requests for production. Avco responded on February 24. Again, Avco objected to many

of the requests or stated that it had no responsive documents.
No. 70756-6-1/7



      On May 25, Becker brought a motion before Discovery Master Kallas to compel

Avco to fully answer the second interrogatories and third requests for production. On

June 12, Discovery Master Kallas granted Becker's motion in part and ordered Avco to

produce certain discovery. She rejected Becker's argument that Avco's responses were

evasive, instead finding that Avco explicitly represented that its responses were complete

and compliant. She further stated that Avco was held to its representations and its duty

to reasonably supplement its responses.

       On September 4 and 5, Becker and Crews amended their complaints to add

federal causes of action.

       On September 28, the plaintiffs jointly moved for a default judgment against Avco

for itsfailure to complywith Judge Spector's discovery and contempt orders. The plaintiffs

explained that they sought discovery about Avco's role in approving the Delrin float,

knowledge about the defective floats, and failure to notify the FAA or aircraft operators

and owners about the defect. The plaintiffs identified several examples of documents

that Avco failed to produce, including the 2005 e-mails with Precision about the Delrin

float leaking problems. The plaintiffs asserted that Avco's noncompliance put them at a

"serious disadvantage trying to prepare for trial without the benefit of critical facts going

to the heart of their case against [Avco] and other defendants." The plaintiffs requested

that the court deem all allegations of the plaintiffs' complaints admitted and order Avco in

default thereof, or, in the alternative, strike Avco's affirmative defenses, hold that the

punitive damages elements against Avco had been met, and hold that Avco breached its

duty to warn.




                                                 7
No. 70756-6-1/8




      Avco responded on October 4. It did not assert that it had provided the allegedly

withheld documents. However, it maintained that it had responded to all the plaintiffs'

discovery requests and had produced documents or made documents available for

ipspection. It also explained that, under its records management policy, many of the

documents that Precision produced were no longer in Avco's possession.

       In the plaintiffs' October 5 reply, they noted that Avco failed to submit any employee

affidavit stating that no responsive documents existed or that certain evidence was

destroyed under the records management policy. Instead, they observed, Avco "wholly

relies on [its attorney's] declaration, which Judge Spector rejected."

       On February 4, 2013, the first day of trial, Judge Benton held oral argument on the

plaintiffs' motion for default. At oral argument, Avco's counsel produced a copy of the

records management policy for Judge Benton.            Counsel acknowledged that Judge

Spector was not provided a copy of the policy and was only informed about the policy via

counsel's declaration.    Judge Benton found that it was unclear whether the policy

extended to the documents requested by the plaintiffs. She stated that she was "not

satisfied . . . that some of the documents requested by the plaintiff couldn't have been

produced." She orally granted the plaintiffs' motion to sanction Avco.

       On February 5, Judge Benton entered a written order granting the plaintiffs' motion.

The order stated that there was substantial evidence that Avco did not comply with the

plaintiffs' discovery requests, listing "[a]s one example" the 2005 e-mail chain with

Precision. The court found that the withheld discovery tied directly to the plaintiffs' burden

of proof regarding Avco's violation of federal regulations and punitive damages. The

order further stated that Avco's justification for nonproduction was insufficient: "The Court


                                                  8
No. 70756-6-1/9




Examined the [records management policy], which was provided without affidavit or

declaration and here finds the categories within it, combined with counsel's assignment

Of documents to the categories within it, to be overly vague." (Emphasis omitted.). The

court found that Avco's "continued disregard and violation of the discovery and contempt

Orders is without reasonable excuse and is willful.            [Avco] has and continues to

Substantially prejudice plaintiffs' preparation for trial and presentation at trial, on issues of

liability, causation, and punitive damages." (Emphasis omitted.) It concluded that the

only sanction that suffices is as follows: "All of each plaintiff's allegations in their

respective operative Complaints against [Avco] are deemed admitted, and all of [Avco's]

defenses, if any, are stricken." The court established liability and causation in favor ofthe

plaintiffs and left to the jury the amount of compensatory and punitive damages to be

^warded.

       The jury considered compensatory damages and punitive damages in two

separate phases oftrial. It returned a verdict for Crews2 of $17,283,000: $11,283,000 in
compensatory damages and $6,000,000 in punitive damages.

       Avco appeals.3

                                         DISCUSSION

       Avco challenges the trial court's discovery sanctions order on multiple grounds.

Avco first argues that the order violated due process, because Avco had no notice that it
Was in continuing violation of previous discovery orders. Avco further contends that the

        2After the compensatory damages phase ofthe trial, Avco settled with Becker. At
the punitive damages phase, the parties presented evidence regarding only Crews's
claims. After trial concluded, Crews's and Becker's cases were deconsolidated.
       3Avco moved to include summaries and timelines as appendices to its opening
brief. There was no objection to the motion. The motion is granted.
No. 70756-6-1/10




trial court abused its discretion in imposing the most severe sanctions possible when

lesser sanctions would have sufficed. Avco also challenges specific sanctions, asserting

that the trial court erred in striking Avco's federal defenses, imposing punitive damages,

and denying an offset of amounts Crews received from other defendants.

  I.   Due Process


       Avco characterizes the discovery sanctions order as a violation of its right to due

process. Due process is satisfied if, before entering a default judgment or dismissing a

Claim or defense, the trial court concludes that there was a willful or deliberate refusal to

obey a discovery order and that the refusal substantially prejudiced the opponent's ability

to prepare for trial. Maqana v. Hyundai Motor Am., 167 Wn.2d 570, 591, 220 P.3d 191

(2009).

       Here, Judge Spector concluded that Avco willfully violated her discovery orders

and that its willful violation prejudiced the plaintiffs in their prosecution of the case.

Accordingly, Judge Spector held Avco in contempt. She denied Avco's motion to amend

or vacate the contempt orders. At no point did any judge enter an order finding that the

contempt was purged.

       Avco   nonetheless    asserts   that   it was   unaware    there   would   be further

consequences for its failure to comply with Judge Spector's contempt orders. This is so,

Avco argues, because Judge Spector and Discovery Master Kallas entered subsequent

orders indicating that Avco's responses were adequate. Avco does not assert that these

orders had preclusive effect on subsequent discovery decisions or estopped Crews from




                                                 10
No. 70756-6-1/11




arguing that Avco was in continuing violation. Avco merely asserts that, in light of the two

Orders, the discovery sanctions were an ambush.4 We disagree.

       First, Avco maintains that Judge Spector indicated that Avcowas in compliance by

declining the plaintiffs' proposal to impose more severe sanctions.               But, this

misrepresents the record. The fact that Judge Spector reserved ruling on the three

harsher proposed sanctions put Avco on notice of the risk that the more severe sanctions

Could be imposed in the future for failure to comply. Judge Spector declined to impose

those sanctions when ruling on Avco's motion to amend or vacate the contempt orders.

But, she did not expressly revoke her reservation of them in her previous order. Merely

declining to impose further sanctions did not indicate that Avco had purged contempt,

evidenced by the fact that Judge Spector specifically denied Avco's motion to vacate the

Contempt orders.

      Avco further alleges that Discovery Master Kallas confirmed that Avco's responses

were adequate. Again, this mischaracterizes the record. The issue before Master Kallas

was not whether Avco had purged its contempt.         The issue was whether Avco was

evasive in responding to Becker's second interrogatories and third requests for

production.    Becker had complained that, where Avco produced no responsive

documents, it failed to affirmatively state that it had no documents to produce. Master

Kallas stated that Avco's counsel represented that its responses were complete and

Compliant. She did not determine that the responses were in fact complete, and she




      4 At oral argument, Avco also asserted that the trial court should have held an
evidentiary hearing before imposing sanctions. But, Avco did not request an evidentiary
hearing in its response to the motion for default or at any other time on this record.


                                                11
No. 70756-6-1/12



further noted Avco's duty to supplement. Nothing in these orders provides that Avco's

early contempt had been purged or that the reserved sanctions had been lifted.

       In the 2011 contempt orders, Judge Spector made the requisite findings to satisfy

due process. Her orders clearly put Avco on notice that she was reserving additional

sanctions and identified what those sanctions were. The plaintiffs' motion for default put

Avco on notice that its compliance with the contempt orders was still in question. Avco

then had more than four months before the sanctions hearing, during which it could have

Complied with the orders or prepared a defense.          Neither the discovery sanctions

procedure nor the order violated Avco's right to due process.

 II.   Discovery Sanctions

       Avco argues that the trial court erred in imposing a "death penalty order" that was

more severe than necessary to cure any prejudice. If a party fails to obey a discovery

order, the trial court may "make such orders in regard to the failure as are just." CR

37(b)(2). The trial court has broad discretion as to the choice of sanctions for violation of

a discovery order. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036

(1997). We will not disturb its ruling on appeal absent a clear showing of abuse of

discretion, jd.

       Discovery sanctions serve to deter, punish, compensate, educate, and ensure that

the wrongdoer does not profit from the wrong. Wash. State Physicians Ins. Exch. &Ass'n

y. Fisons Corp., 122 Wn.2d 299, 356, 858 P.2d 1054 (1993). The trial court should

impose the least severe sanction that is adequate to serve the sanction's particular

purpose but is not so minimal as to undermine the purpose of discovery. ]d. at 355-56.




                                                12
No. 70756-6-1/13




       CR 37(b) presents a nonexclusive list of possible sanctions, including designating

facts as established, striking claims or defenses, limiting or prohibiting evidence, default,

and contempt. If a trial court imposes one of the harsher remedies under CR 37(b), the

record must clearly show that (1) one party willfully or deliberately violated the discovery

ijules and orders, (2) the opposing party was substantially prejudiced in its ability to

prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction

Would have sufficed. Magana, 167 Wn.2d at 584. We can disturb a trial court's sanction

Only if it is clearly unsupported by the record, jd. at 583.

       Here, the trial court made the three required findings on the record. Thus, our

focus is whether the record supports those findings.

       A.   Willful Violation


       A party's disregard of a court order without reasonable excuse is deemed willful.

(Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 686-87, 41

F\3d 1175 (2002). Here, the trial court found that Avco's "discovery violations were willful

as found by Judge Spector and have continued to be willful since her ruling has not been

Complied with. . . . Further the court finds that [Avco] has not presented a reasonable

excuse or justification for its non-compliance."       (Emphasis omitted.) This finding is
i




supported by the record.

       The plaintiffs repeatedly requested information about Avco's involvement with the

Delrin floats and knowledge that they were problematic.          Avco did not provide the

requested discovery, despite being ordered to produce and subsequently being held in

contempt for failing to do so. Avco claimed that, under its records management policy, it




                                                  13
No. 70756-6-1/14



Was not required to keep all the documents that the plaintiffs sought. As a result, Avco

asserted, its failure to produce the records was not willful.

       Avco did not produce or prove the policy at the original contempt hearing before

Judge Spector.     Instead, it submitted an attorney declaration stating that the policy

governs the retention of "various categories of documents, including intra-company and

inter-company correspondence." Counsel further stated that

       [t]he discovery served by plaintiffs seeks information and documents dating
       back many decades, much of which is not [sic] longer maintained in
       company records by virtue of the Records Management Policy and by
       attrition given the passage of time and the retirement or deaths of persons
       employed by [Avco] over the years.

The declaration did not specify the discovery requests or types of documents to which the

policy applied.

       Avco did not provide the actual policy to the court for another 16 months, when it

presented a copy of the policy for Judge Benton to review at the sanctions hearing.

Counsel again stated that the policy "has retention periods for various categories of

documents." As an example, counsel pointed out that the 2005 e-mails would not have

been maintained past a certain number of years.5 Judge Benton examined the policy and

found that it was "vague in many ways .... I'm not satisfied, looking at the exhibits

provided today, that some of the documents requested by the plaintiff couldn't have been

produced."




       5The records management policy was protected by a pretrial stipulation. Counsel
did not state on the record the number of years that correspondence would be retained
and instead pointed the trial court to the relevant portion of the written policy.

                                                 14
No. 70756-6-1/15




        The records management policy is not part of the record on appeal,6 so we are

unable to independently review its language. On the record before us, however, it was

not an abuse of discretion to reject the policy as an excuse for nonproduction. The scope
i


and operation of the policy is unclear and unsupported. Avco's attorney declarations and

pleadings do not explain how the policy applies to the "various categories" of documents

requested. Avco did not submit any other evidence, such as employee affidavits, about

how the policy applied to the requested documents and their destruction. As the trial

court noted, it would require a "leap of faith" to conclude that the policy covered the

evidence in question here.

        Avco also committed violations of the contempt order unrelated to its records

Management policy. It failed to comply with Judge Spector's order that it produce and
|
    i


identify by Bates stamp every document that was responsive to every interrogatory or
request for production. Instead, Avco produced and referred to 694 pages of Bates
stamped documents and "other business records."7 The plaintiffs determined that nearly
all ofthe Bates stamped documents were unrelated to the information sought. Avco also
maintained that it made relevant documents available for inspection in Pennsylvania. But,

when Becker's counsel went to Pennsylvania, no responsive documents were identified,

let alone Bates numbered. Counsel was shown a room wherein he estimated that roughly


       6The record on appeal contains nearly 18,000 pages of clerk's papers, our review
of which did not reveal a copy of the records management policy. Neither party cites to
the policy. Avco cites to its trial counsel's declarations, wherein counsel stated that the
policy existed. But, the policy was not attached to those declarations. And, in Avco's
final motion to the trial court, Avco stated that the policy was "provided" to the plaintiffs
and "shown" to the court—not entered into the record.
        7 The "other business records" appear to be over 6,000 pages of Bates stamped
documents that were not specifically identified.

                                                   15
No. 70756-6-1/16




60 boxes were assembled to be searched. He was not permitted to search them at that

time. But, he observed that two of the files were labeled "Moffett," the name of an Avco

0mployee and witness in the case. When counsel was later permitted to review the

documents, he saw that some files—including the Moffett boxes—had been removed.

He determined that the remaining files were unrelated to the discovery inthis case. Judge

Benton found that this was nonresponsive to Judge Spector's order and observed that

there was a "pattern here."

       Failure to comply was even evident with records admittedly in Avco's possession.

The plaintiffs requested a copy of Avco's insurance policy covering their claims against

Avco. Avco had not produced the insurance policy as of the day of trial. When Judge

Benton asked counsel why it had not been produced, counsel identified no impediment

preventing her from doing so. Instead, she responded that she made the policy "available

for inspection" and that it was "sitting in my office."

       Avco did not comply with the original contempt order. On this record, it was not an

abuse for the court to conclude that Avco did not provide a reasonable excuse for its

nonproduction. Therefore, the trial court did not abuse its discretion in finding that the

violation of the discovery order was willful.

       B.    Prejudice

       The trial court found that Avco's "discovery violations caused the Plaintiffs

substantial prejudice in conducting discovery of this case, in preparation for trial and for

trial of this case." As a result of Avco's nonproduction, the court found that: (1) the

plaintiffs were unable to properly depose Avco's liability lay and expert witnesses; (2) the

plaintiffs did not have the requisite documents to present at trial; and (3) the prejudice


                                                   16
No. 70756-6-1/17




was even more pronounced due to Avco's continued contempt over more than 16 months.

These findings are supported by the record.

       In Magana, the trial court likewise sanctioned a defendant for withholding

requested discovery and hindering the plaintiff's ability to present crucial evidence at trial.

See 167 Wn.2d at 581-82. Magana was seriously injured in a car accident and sued the

carmaker, Hyundai, jd. at 576-77. Magana's theory was that there was a design defect

in the car seat, and he sought discovery about other accidents involving that particular

seat design. Id. at 577. Hyundai responded that there were no lawsuits or claims in

connection with that design. Id. at 577-78. At trial, the jury found in favor of Magana and

awarded over $8 million in damages, jd. at 578. Hyundai appealed on an evidentiary

issue and was awarded a retrial solely on the issue of liability, id. at 578-79.

       Prior to the second trial, Magana requested updated discovery about accidents

involving the particular seat design. Id. at 579. When Hyundai resisted, the trial court

Ordered production of all discovery involving consumer complaints and lawsuits involving

allegations of seat back failure. Id. at 580. Hyundai then produced numerous documents

related to seat back failure, including nine reports involving the same model of car in

Magana's accident. Id. at 580. As a sanction, the trial court imposed a default judgment

against Hyundai. Jd. at 581-82. The Washington Supreme Court affirmed. Id. at 593-94.

Regarding the prejudice prong, the court noted that the sole remaining issue was

Hyundai's liability, and Hyundai suppressed evidence relevant to Magana's claims on that

issue. !g\at589.

       Avco maintains that Crews was not prejudiced, because he obtained the sensitive

e-mails from Precision. But, as Crews points out, he was not provided the attachment


                                                  17
No. 70756-6-1/18



referenced in the e-mails. Moreover, based on discovery obtained from Precision as well

as deposition testimony from Avco's own employees, Crews asserted that Avco withheld

multiple other pieces of relevant discovery: reports about Delrin float leaks, information

about a previous Avco accident investigation involving the same model float,

communication between Avco and the FAA regarding the floats, and information about

weekly phone meetings between Precision and Avco about the leaking Delrin floats.

       In Magana, Hyundai produced incident reports 45-75 days prior to retrial, jd. at

579-80. Here the documents were not produced at all. Avco disputes the existence of

the requested discovery. However, the e-mail chain with Precision clearly showed that

some of the discovery sought had existed and would have demonstrated that Avco was

aware of problems with the Delrin floats and had at least some degree of involvement

with them. And, Crews offered evidence—based in part on Avco employee testimony—

that more information was out there.

       Here, as in Magana, the withheld information goes straight to the plaintiff's theory

of liability. The prejudice is at least as great as in Magana.

       The trial court did not abuse its discretion in finding that Avco's discovery violation

prejudiced Crews's preparation for trial and presentation of his case.

       C.   Lesser Sanctions

       The trial court explicitly considered several lesser sanctions. At that time, trial was

beginning, and it was too late to coerce compliance.

       The trial court found that, although monetary damages could compensate Crews,

they would not adequately punish, deter, or educate. This was reasonable. Judge




                                                 18
No. 70756-6-1/19




Spector had imposed monetary sanctions against Avco on three prior occasions8 and

Avco still did not comply with the discovery orders.

       The court also found that limiting Avco's presentation of evidence would not

alleviate the prejudice to Crews in his ability to meet his burden of proof.          Avco's

nonproduction hindered Crews's ability to properly depose witnesses and present

evidence at trial, preventing him from establishing a case against Avco.          Restricting

Avco's evidence would not remedy this harm.

       Instead, the court deemed all plaintiffs' claims admitted, struck all of Avco's

defenses, and awarded punitive damages in an amount to be determined by the jury. The

Stricken defenses included lack of involvement with the carburetor or float, compliance

with federal regulations, the federal statute of repose, comparative fault, the unavailability

of punitive damages, and offset of amounts recovered from other defendants. In addition,

Avco was prohibited from asserting pilot error. The court found that this served to

       advance the important due process goals of insuring fair trials for all
       parties[,] of punishing a party for violations of long standing court orders, of
       deterring other parties from acting as [Avco] has in this case, of educating
       the party litigants, bench, bar, and the public about the importance of
       complying with discovery obligations and court orders, and in compensating
       the parties who are prejudiced by this conduct.

       The trial court made the required consideration of lesser sanctions on the record.

We find that itdid not abuse its discretion in rejecting the claim that lesser sanctions would

be adequate for a fair trial. Nor did the trial court abuse its discretion by determining that




      8 Judge Spector awarded the plaintiffs costs and fees for bringing their motions to
compel and motions for contempt and for responding to Avco's motion to amend or vacate
the contempt orders. Master Kallas ordered Avco to pay $18,683.58 in costs and fees
associated with those motions and further provided that Avco bore the Discovery Master's
expenses for considering the motion for costs and fees.

                                                 19
No. 70756-6-1/20




the focus of the contempt had moved beyond compliance with the contempt order and on

to punishment and deterrence.

       D.   Challenges to Specific Sanction Provisions

       1. Striking Federal Defenses

       Avco asserts that the trial court erred in precluding Avco from asserting its federal

defenses.9 Avco maintains that it did not manufacture or install the carburetor float and

cannot be held liable for the float under federal law.           Essentially, Avco asks us to

determine that, as a matter of law, it was not liable under federal regulations. That

question is not properly before this court. The trial court struck Avco's federal defenses

as a sanction for its discovery violations. Therefore, we do not ask whether the trial court

arrived at the proper legal conclusion, but whether the court acted within its discretion in

imposing the sanction.

       Crews asserted that Avco was liable for a defective and unsafe product and failed

to warn the FAA or aircraft owners and operators, in violation of several federal

regulations. Avco withheld information that it knew aboutthefaulty float before the subject
accident and was involved in communication and investigation as to the defect. This was

relevant to its involvement with the float and its failure to warn and therefore relevant to

its failure to comply with federal regulations. Avco's discovery violations thus prejudiced
the plaintiffs' ability to litigate Avco's liability under the federal regulations. Striking Avco's


        9 Crews asserts that Avco failed to preserve its defenses by failing to respond to
his third amended complaint. But, in Avco's answer to Crews's earlier complaint, it
alleged defenses that were relevant to the claims in Crews's amended complaint. This
was sufficient to preserve the defenses. See Durvea v. Wilson, 135Wn. App. 233, 239,
144 P.3d 318 (2006) (finding defenses preserved where answer to original complaint was
sufficient to indicate grounds on which defendant intended to defend).

                                                    20
No. 70756-6-1/21




federal defenses served to deter such conduct, prevent Avco from benefitting from

withholding the information necessary to prove Crews's case, compensate Crews for the

consequences of withholding that information, and punish Avco.

       This sanction was tailored to Avco's violation and was not an abuse of discretion.10

       2. Striking Comparative Fault Defense

       Avco contends that the trial court abused its discretion in striking Avco's

comparative fault defense. The court found that merely establishing certain facts, such

as Avco's liability, would "still prejudice the plaintiffs in their ability to prove the elements

of their case." The court stated that it would not instruct the jury to determine whether

any other parties are at fault, because it would "prejudice plaintiffs' ability to prove that

[Avco] is solely liable for their injuries and damages." The court further stated that itwould

not instruct the jury on the pilot's fault, because "it would be prejudicial to plaintiff Crews

to ask the juryto compare the negligence or liability of the acts of [Avco] to those of plaintiff

Crews given the discovery violation." Instead, the court instructed the jury that Avco's

violation of federal regulations was a proximate cause of the crash and that Avco was

liable to each plaintiff.

       Avco asserts that this was an abuse of discretion, because the comparative fault

defense was unrelated to the withheld discovery.           Avco maintains that striking this

       10 Furthermore, it is unclear that Avco's federal statute of repose defense is
relevant. Under the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-
298, 108 Stat. 1552 (codified at 49 U.S.C. § 40101 note), manufacturers of general
aviation aircraft and parts are not liable for damages arising out of an accident occurring
18 years or more after the date of delivery of the aircraft to its first purchaser or lessee.
GARA § 2(a)(1). Avco notes that it built and sold the plane's engine in 1978, meaning
the engine is covered by the 18 year period of repose. But, the original engine is not in
question here—it is the replacement carburetor that allegedly failed. The carburetor was
built in 1999. The statute has not triggered as to the carburetor.


                                                   21
No. 70756-6-1/22




defense goes a step further than Magana, where the sole issue was the defendant's

liability. Here, Avco notes, the parties also disputed whether the negligence of other

defendants or the pilot was a proximate cause of the crash.

       Avco is correct that this case is more procedurally complicated than Magana.

Crews sued 11 defendants in total. By the time of trial, Crews had dismissed and/or

settled with many of the defendants. Avco counterclaimed against Crews, alleging pilot

error. Becker named Houston's estate as a defendant, also alleging potential pilot error.

Contrary to Avco's position, however, we find that this complicated posture lends support

for the propriety of striking the comparative fault defense.

       Avco's discovery violations prejudiced Crews's ability to establish Avco's true role

in the plane crash.    This affected the allocation of liability to Avco and among the

defendants. This violation could have allowed the jury to undervalue Avco's portion of

fault. And, establishing pilot negligence could have defeated joint and several liability,

thereby shifting liability away from Avco. See RCW 4.22.070(1 )(b); Kottler v. State, 136

Wn.2d 437, 446-47, 963 P.2d 834 (1998).           Striking the comparative fault defense

prevented Avco from benefitting from its discovery violations in this way.

       Avco challenges the trial court's conclusion that it would have been insufficient to

merely establish Avco's liability, so this sanction was necessary. Crews counters that it

would cause severe prejudice if the jury were to "apportion fault between Houston and

Avco based on a trial solely about Houston's alleged negligence and a one-page

instruction that Avco was liable." It is reasonable, not an abuse of discretion, to accept

that Crews would suffer prejudice ifthe jury heard evidence of pilot error throughout trial,

but evidence of Avco's fault only from a paragraph long jury instruction. Again, this could


                                                22
No. 70756-6-1/23



lead the jury to misallocate fault between Crews and Avco, allowing Avco to benefit from
its discovery violations.

       Avco further maintains that this was not the least severe sanction necessary to

cure any prejudice Crews suffered. But, Fisons instructs us that the trial court should

impose the least severe sanction that is adequate to "serve the purpose of the particular

sanction." 122 Wn.2d at 355-56 (emphasis added). Discovery sanctions serve not only

to compensate, but to educate, punish, and deter. Id. at 356. And, the trial court's choice

of sanction is a matter of discretion—there is no bright line rule dictating which rationale

applies to which violation. Judge Benton stated that she was "truly troubled" by Avco's

conduct, and her rationales for imposing sanctions included "punishing [Avco] for

violations of long standing court orders." On the eve of trial, it was too late for compliance.

Financial sanctions would not adequately compensate Crews.                  Punishment and

deterrence were particularly valid purposes to be served by sanctions.

       It was not an abuse of discretion to strike Avco's comparative fault defense.

       3.   Imposing Punitive Damages

       Avco asserts that the trial court erred in imposing punitive damages. Avco first

argues that it could not be held liable under either Washington or Pennsylvania law. This

question, like Avco's liability under federal law, is not properly before this court. See

supra, at 20-21. This is because the trial court determined Avco's liability by deeming the

pleadings admitted as a sanction for Avco's discovery violations.

       Avco further contends that the trial court failed to perform a choice of law analysis

and determine that Pennsylvania law applies. When the transactions at issue did not all

occur in Washington, the court must determine which state's law applies to the claims.


                                                 23
No. 70756-6-1/24



FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc.. 175 Wn. App. 840, 856,

309 P.3d 555 (2013), affd, 180 Wn.2d 954, 331 P.3d 29 (2014). Here, the trial court

applied Pennsylvania law with respect to punitive damages and did not conduct a formal

choice of law analysis on the record. But, that is not fatal here.

       Crews asserted that Avco committed outrageous and reckless conduct when it

knowingly concealed and withheld its knowledge that the floats were faulty, creating an

unreasonable risk of death or severe injury. Crews further asserted that Pennsylvania

had the most significant contacts with the underlying accident: "[Avco's] principal place of

business i[s] Pennsylvania. . . . [Avco] designs, manufactures, sells, and places into the

stream of commerce reciprocating aircraft engines, including carburetors, and provides

continuing information and services to aircraft owners and operators in support of [Avco]

engines, from its Williamsport, Pennsylvania facilities." Because these allegations were

deemed admitted as a sanction, it was uncontested that Pennsylvania law applied as to

punitive damages.

       This sanction was tailored to Avco's violation. In Pennsylvania, punitive damages

are available "when a person's actions are of such an outrageous nature as to

demonstrate intentional, willful, wanton or reckless conduct." SHV Coal, Inc. v. C'nt'l

Grain Co., 526 Pa. 489, 493, 587 A.2d 702 (1991). Therefore, Crews argued, evidence

of Avco's knowledge about the faulty floats was highly relevant to punitive damages. The

trial court found that Avco's noncompliance substantially prejudiced the plaintiffs'

presentation of evidence on punitive damages at trial. In deeming the pleadings admitted,

the sanction made punitive damages available to be proved. This deprived Avco of the




                                                24
No. 70756-6-1/25



benefit of withholding information about its conduct and compensated Crews for the lack

of that information.

        The trial court did not err in failing to conduct a choice of law analysis. It was not

an abuse of discretion to allow punitive damages under these pleadings as deemed

admitted.


        4.   Denying Offset

        Finally, Avco argues that the trial court erred in denying it an offset of settlement

amounts Crews received from other defendants. Avco asserted offset as an affirmative

defense. The discovery sanctions order struck all defenses. However, after the court

imposed sanctions and after trial, the parties stipulated to a reduction in judgment based

on Crews's settlements with two other defendants.         The trial court then entered final

judgment without providing for the reduction. The court denied Avco's subsequent motion

to amend the judgment to reflect the parties' stipulation.11

        In sanctioning Avco, the court prohibited it from arguing that other parties were at

fault, reasoning that it would prejudice the plaintiffs' ability to prove that Avco was solely

liable. The discovery sanctions order did not provide a separate reason for striking Avco's

offset defense. Having ensured that judgment would be entered against Avco for the full

amount of damages proven, the trial court eliminated benefit to Avco from any willful

withholding of discovery. Crews was entitled to a single recovery. See RCW 4.22.060(2).

Avco was statutorily entitled to have its liability reduced by the amount Crews had already

received. See RCW 4.22.060(2). Denying Avco's statutory right to offset for settlements



        11 As of oral argument, the parties had not filed a partial satisfaction of judgment
to fulfill their stipulation.


                                                 25
No. 70756-6-1/26



with other defendants was not necessary to punish the discovery violation or to protect

the plaintiffs' recovery. The parties recognized this in their posttrial stipulation. We are

persuaded that it was an abuse of discretion to disregard the statute and the parties'

stipulation.

       Because it was an abuse of discretion to deny offset of settlement amounts, we

remand for amendment of the final judgment to reflect any offsets authorized pursuant to

chapter 4.22 RCW. We otherwise affirm.




WE CONCUR:




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