Opinion
No. 36051-9-II.
July 29, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-2-03041-4, Roger A. Bennett, J., entered March 5, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
Rotschy, Inc., appeals a jury award of $700,000 in favor of Elizabeth Lutes for injuries resulting from a motor vehicle accident involving Lutes and a Rotschy employee. Rotschy argues that the trial court erred in instructing the jury and in denying its post-trial motions. We affirm.
FACTS
On August 6, 2002, Rotschy employee Donald Koistinen drove a dump truck into Lutes's path as she traveled on SR 503, causing a collision. As a result of the accident, Lutes had a large bruise across her chest and abdomen from the seatbelt and a sore wrist and sternum. Since the accident, she has lost most of the feeling in her right breast and has begun experiencing more frequent migraines. She also suffers from post-concussive syndrome.
Lutes sued Rotschy for injuries she sustained during the accident. A jury heard the matter.
At trial, Lutes and several witnesses testified about the marked differences they noticed in her post-accident personality. She and her witnesses described her as energetic, organized, and well liked before the accident. After the accident, she and her witnesses noticed that her energy level dropped dramatically, as did her participation in activities she enjoyed such as horseback riding and square dancing.
Witnesses also testified that Lutes could no longer engage in multiple tasks or keep her life organized. In addition, her witnesses described the effect these changes had on her personal life-straining relationships with her husband, daughters, and friends.
Lutes's neuropsychologist, Richard Perrillo, testified that the change in Lutes's personality resulted from brain trauma that occurred as a result of the accident. He testified that she had "cognitive impairment, organic brain syndrome including lateralized brain dysfunction, verbal fluency, processing speed, frontal sustained attention loss, reactive depression, anxiety disorder and post-traumatic stress." Report of Proceedings (RP) at 393.
Rotschy's neuropsychologist, Fred Wise, testified that although Lutes possibly had suffered some trauma, she should have recovered by the time of trial. Wise stated that her personality changes stemmed from other factors, such as a pre-existing personality type that he described as "somatically focused and naive." RP at 779. He testified that he believed that she either intentionally or unintentionally exaggerated her symptoms.
During trial, Lutes and her counsel made several statements that Rotschy believed referred to its insurance coverage. During her testimony, she stated, "I believed the defendant's representative, Vicki Gilmore. She told me that they were there for me and they were going to take care of me." RP at 623. Rotschy moved for a mistrial. The trial court denied the motion. Rotschy declined the trial court's offer to instruct the jury to ignore the disputed portion of Lutes's testimony.
Rotschy moved in limine to exclude, among other things, evidence that it had insurance.
During cross-examination, Lutes's counsel asked Wise whether he secured some of his business through referrals from "defense lawyers, by plaintiff lawyers, [and] by insurance companies." RP at 787. Lutes's counsel also mentioned that insurance companies might terminate treatment based on Wise's recommendations. Rotschy did not object to either statement.
Finally, Lutes's counsel asked whether Dr. Lees-Haley, creator of the Minnesota Multiphasic Personality Inventory (MMPI-2) test Wise used when examining Lutes, "works exclusively for the civil defense organizations such as defense attorneys and insurance companies." Lutes' counsel also asked whether Lees-Haley "lectures to insurance adjusters and insurance executives on a very frequent basis." RP at 880. Again, Rotschy did not object to either question.
At the end of trial, the trial court gave jury instruction 11 over Rotschy's objection. The jury awarded Lutes $700,000 in general damages. Rotschy moved for remittitur or a new trial based on insufficient evidence, the giving of jury instruction 11, or Lutes's references to Rotschy's insurance coverage.
Jury instruction 11 provided:
If you find that:
(1) before this occurrence the plaintiff had [a] mental condition that was not causing pain or disability, and
(2) the condition made the plaintiff more susceptible to injury than a person in normal health
then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.
There may be no recovery, however, for any injuries or disabilities that would have resulted from natural progression of the pre-existing condition even without this occurrence.
Clerk's Papers at 77.
With regard to jury instruction 11, Rotschy argued that Lutes failed to show that she suffered from a mental condition that did not cause her pain before the accident. Rotschy also argued that the jury's award fell outside the range of the evidence because Lutes only asked for general damages. Finally, Rotschy claimed that the multiple references to its insurance coverage biased the jury.
The trial court denied Rotschy's motions. It denied Rotschy's motion for a new trial based on jury instruction 11 because Rotschy failed to provide the trial court with an accurate or complete record of the proceedings from which the trial court could discern whether insufficient evidence justified giving jury instruction 11. The trial court did not find any evidence of prejudice as a result of the reference to insurance. Finally, the trial court found that the jury's award fell within the range of evidence and upheld its award. Rotschy appeals.
ANALYSIS Jury Instruction
Rotschy first contends that the trial court erred in submitting jury instruction 11 to the jury. Rotschy asserts that substantial evidence did not support giving that instruction.
We review jury instructions de novo. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). We review jury instructions challenged on appeal to determine whether they (1) permit the parties to argue their case theories; (2) are misleading; and (3) when read as a whole, accurately inform the jury of the applicable law. Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 36, 864 P.2d 921 (1993). Prejudicial error occurs where the trial court instructs the jury on an issue that lacks substantial evidence to support it. Glenn v. Brown, 28 Wn. App. 86, 89, 622 P.2d 1279 (1980).
Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986). The supporting facts on which to base an instruction must consist of more than speculation and conjecture. Board of Regents of the Univ. of Wash. v. Frederick Nelson, 90 Wn.2d 82, 86, 579 P.2d 346 (1978).
Based on a review of the record, substantial evidence supports the trial court's giving instruction 11. During the defense's case, Wise, Rotschy's expert witness, testified that Lutes only sustained a "mild" traumatic brain injury, which was no longer causing objectively verifiable neuropsychological dysfunction. RP at 770. But also according to Wise, Lutes suffered from a "somatically focused and naive" personality that predisposed her to complain about injuries or to experience "depressive symptomology" in the face of nonexistent physical injury. RP at 779, 759. Wise testified that Lutes's somatically focused personality was a trait or condition that pre-existed the accident. He further added that she had a "history of depression and anxiety." RP at 779. Also, Wise did not believe Lutes was lying about her post-accident symptoms. Thus, there was substantial evidence in Wise's testimony that Lutes had various pre-accident mental conditions and that that these conditions made her more likely to honestly believe she suffered from her complained injuries.
See McDonagh v. Dep't of Labor Indus., 68 Wn. App. 749, 755, 845 P.2d 1030 (1993) ("there is no authority to support the proposition that a `personality characteristic' is precluded from qualifying as a pre-existing condition"). In addition to McDonagh, a number of cases demonstrate that courts allow a wide range of pre-existing psychological conditions to serve as bases for increased damage awards. See, e.g., Xieng v. Peoples Nat'l Bank of Wash., 63 Wn. App. 572, 582, 821 P.2d 520 (1991) (finding defendant liable for acts of discrimination that triggered plaintiff's pre-existing post-traumatic stress disorder under the theory that "[a] defendant is liable for all damages proximately caused, including damages arising out of a preexisting condition, if there is no evidence that the preexisting condition was causing pain or disability before the occurrence"), aff'd, 120 Wn.2d 512, 844 P.2d 389 (1993). See also Jensen v. Eveleth Taconite, 130 F.3d 1287, 1294-95 (1997) (stating the eggshell skull principle includes "damages assessed against a tortfeasor for harm caused to a plaintiff who happens to have a fragile psyche"; citing multiple cases); Shimman v. Frank, 625 F.2d 80, 100 (6th Cir. 1980) (holding that defendant is liable for damages where plaintiff's "personality structure" may have made him more susceptible to injury), overruled on other grounds by Shimman v. Int'l Union of Operating Eng'rs, 744 F.2d 1226 (6th Cir. 1984).
The remaining question is whether Lutes's overall mental condition made her "more susceptible to injury" or merely more susceptible to complaining about a perceived injury not objectively attributable to Rotschy. Clerk's Papers (CP) at 77. Her subjective perceptions find support in the testimony of her family and coworkers regarding the problems that arose with respect to her functioning after the accident. In addition, Lutes's expert testified that post-accident, she "had strong evidence of. . . . reactive depression, anxiety disorder and post-traumatic stress." RP at 393. Rotschy's expert also concluded that Lutes suffered from significant post-accident stress and was "[e]xpressing depressive symptomology." RP at 765.
A fair-minded, rational person could believe that the pre-accident mental conditions identified by Wise would make it more likely that Lutes would believe she suffered mental or physical pain or disability after the accident which, in turn, would manifest itself as observable anxiety, depression, or rudeness to others. These objective manifestations of her subjective experience constitute a sufficient injury attributable to the accident. Thus, substantial evidence supports the giving of jury instruction 11.
Rotschy suggests that only the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)-recognized disorders, and not the MMPI-2 test Wise used in his examination of Lutes, can provide evidence of the "mental condition" described in jury instruction 11. Appellant's Br. at 26. The DSM-IV is a handbook that categorizes mental disorders and the criteria for diagnosing them. The MMPI-2 is a test used to identify personality structures and psychopathology. Rotschy provides no authority requiring a DSM-IV-recognized disorder when determining the existence or extent of a mental condition, latent or otherwise. Rotschy also argues that only "medical" evidence is sufficiently "objective" for purposes of substantiating jury instruction 11 but again provides no authority for that proposition. Appellant's Br. at 26. Without argument or authority to support it, an appellant waives an assignment of error. RAP 10.3(a)(6); Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
Additionally, the jury instructions allowed both parties to argue their respective theories of the case and the instructions, read as a whole, properly informed the jury of the relevant law. Rotschy contends that jury instruction 11 prevented it from arguing its case theory. We disagree.
At trial, Rotschy argued that Lutes exaggerated her symptoms because of pre-existing risk factors such as depression and anxiety. Rotschy's case theory, then, necessitated jury instruction 11 by calling into question the existence of a pre-existing condition, such as depression, that might be causing her present complained-of problems.
Further, whenever the parties dispute the existence of a pre-existing condition, a trial court properly includes instructions based on both Washington Pattern Instructions 30.17 and 30.18. Thogerson v. Heiner, 66 Wn. App. 466, 474, 832 P.2d 508 (1992); 6 Washington Practice: Washington Pattern Jury Instructions: civil, 30.17, at 309; 30.18, at 311 (5th ed. 2005) (WPI). Here, the trial court included instructions 10 and 11, derived from those specific provisions of the WPI. The trial court correctly included jury instruction 11 because Rotschy's evidence, through Wise's testimony, casts doubt on Lutes's complained-of injuries and suggested that a pre-existing mental condition or trait caused her complaints.
Jury instruction 10 provided:
If you find that:
(1) before this occurrence the plaintiff had a pre-existing bodily or mental condition that was causing pain or disability, and
(2) because of this occurrence the condition or the pain or the disability was aggravated
then you should consider the degree to which the condition or the pain or disability was aggravated by this occurrence.
However, you should not consider any condition or disability that may have existed prior to this occurrence, or from which the plaintiff may now be suffering, that was not caused by or contributed to by this occurrence.
CP at 76.
In sum, Wise's testimony provided substantial evidence from which a fair-minded person could believe that Lutes had a pre-existing mental condition making her more susceptible to injury. Where substantial evidence supports a jury instruction, whether to give a particular instruction to the jury, lies within the trial court's discretion and we review that decision under an abuse of discretion standard. Ramey v. Knorr, 130 Wn. App. 672, 688, 124 P.3d 314 (2005). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. Ambach v. French, 141 Wn. App. 782, 790, 173 P.3d 941 (2007). Because substantial evidence supported jury instruction 11, the trial court did not abuse its discretion in instructing the jury.
Even assuming error, such error would be harmless because Lutes also provided evidence showing injury. She testified about her worsening migraines and physical injuries, including a bruise across her chest and abdomen, a sore wrist and sternum, and the loss of feeling in her right breast. Additionally, she presented evidence of brain trauma that caused marked differences in her conduct after the accident. As the trial court instructed the jury, "The defendant is liable for any injury or damages which were proximately caused by the occurrence (the traffic accident)." CP at 73. The jury could have found that the trauma from the accident proximately caused her damages, even if she had no pre-existing condition.
Motion for a New Trial
Rotschy next argues the trial court erred in not granting a new trial under CR 59(a). Rotschy contends that the trial court should have granted a new trial because of remarks by Lutes's counsel regarding insurance and an allegedly excessive general damages award. Rotschy also argues that the trial court abused its discretion in denying remittitur.
As part of Rotschy's argument regarding irregularity of proceedings, it briefly raises again the issue of whether substantial evidence supported jury instruction 11. As already discussed, we find no error with respect to jury instruction 11.
A. Standard of Review
We will not reverse an order denying a motion for new trial absent abuse of discretion by the trial court. See Aluminum Co. of Am. (ALCOA) v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000); Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676 (1989). The criterion for testing abuse of discretion in denying a motion for a new trial is whether such a feeling of prejudice has been engendered or located in the minds of the jury as to prevent a litigant from having a fair trial. ALCOA, 140 Wn.2d at 537.
B. Irregularity of Proceedings
Rotschy asserts that the trial court erred in denying its motion for a new trial because Lutes deliberately inserted information about insurance into the proceedings. But where a plaintiff "innocently, inadvertently, by invitation, or in relation to some issue" injects into the case that a defendant is covered by insurance, "such revelation is not grounds for mistrial." Kadiak Fisheries Co. v. Murphy Diesel Co., 70 Wn.2d 153, 160, 422 P.2d 496 (1967). A new trial is required only where the plaintiff deliberately commented on the defendant's insurance coverage solely for the sake of prejudicing the jury. Kadiak Fisheries, 70 Wn.2d at 160.
Here, the trial court ruled that it did not "detect any prejudice to either side from such references" and that it did not believe "that any such references were made in a deliberate attempt to circumvent the court's order in limine." CP at 373. In one instance, Lutes testified that she "believed the defendant's representative, Vicki Gilmore. She told me that they were there for me and they were going to take care of me." RP at 623. Lutes's statement responded to a question posed to her regarding why she had not filed her claim earlier. Aside from being a mere implication of insurance matters, the trial court later ruled that the references were not deliberate.
In other instances where Lutes's counsel referred to insurance matters during the trial, Rotschy did not raise a timely objection. First, Lutes's counsel asked Wise whether he had clients referred to him by, among others, insurance companies, and whether an insurance company might terminate coverage based on his recommendations. Second, Lutes's counsel asked Wise whether Lees-Haley, creator of the personality test Wise relied on in his examination of Lutes, developed his test for insurance companies. Not only did these references not prejudice either side but also an issue of misconduct "cannot be raised for the first time in a motion for a new trial unless the misconduct is so flagrant that no instruction could have cured the prejudicial effect." Sommer v. Dep't of Soc. Health Servs., 104 Wn. App. 160, 171, 15 P.3d 664 (2001). The implications or direct references to insurance in this case do not rise to such a level.
Rotschy also argues that economic testimony, inserted "indirectly" into the trial via testimony from Lutes's family and friends, "impassioned" the jury and provided another instance of irregularity in the proceedings. Appellant's Br. at 47. We disagree.
It is reasonable to assume that Lutes introduced this testimony to show her pain and suffering, loss of enjoyment of life, and humiliation. Also, during closing argument, her counsel told the jury she did not seek damages for any wage loss. Such indirect, attenuated references to any loss of work as a result of the accident do not reasonably suggest irregularity in the proceedings. Rotschy provides no other evidence of prejudice or passion by the jury sufficient to clearly show prejudice. Its argument fails.
C. Excessive Damages, Evidence Justifying the Verdict and Remittitur
Rotschy further contends that the trial court erred in not granting a new trial or remittitur. It argues that Lutes received an excessive jury award of $700,000, which the jury based on evidence of loss of income and future job opportunities.
We will not disturb an award of damages made by the fact finder unless the award falls outside the range of substantial evidence in the record, shocks the conscience, or appears to result from passion or prejudice. Mason v. Mortgage Am., Inc., 114 Wn.2d 842, 850, 792 P.2d 142 (1990); Stevens v. Gordon, 118 Wn. App. 43, 54, 74 P.3d 653 (2003). The trial court may grant or deny a new trial on grounds of inadequacy of damages, and we review such a decision under an abuse of discretion standard. Lipshay v. Barr, 54 Wn.2d 257, 257-58, 339 P.2d 471 (1959). Further, we presume in all cases that the jury obeyed the court's instructions, and this presumption must prevail until the appellant overcomes it by some showing to the contrary. In the Matter of the Petition of the Municipality of Metro. Seattle, 67 Wn.2d 923, 930-31, 410 P.2d 790 (1966).
Rotschy speculates as to the jury's reasoning, arguing that the jury impermissibly considered evidence of lost income in formulating general damages. Rotschy also argues that the "excessive" award itself proves that the trial court's admission of testimony by Lutes's former employers acted as a "`back door'" to a lost income claim. Appellant's Br. at 42.
Here, the trial court provided jury instruction 12, which explained the limited types of damages allowed, and instructed the jury must not to base its award on "speculation, guess, or conjecture." CP at 78. Although several of Lutes's former employers testified, the jury could reasonably interpret their testimony as evidence of Lutes's brain damage caused by the accident or as evidence of her loss of enjoyment of life. Rotschy failed to provide any evidence of passion or prejudice by the jury or that the jury disregarded the court's instructions.
Jury instruction 12 provided in part:
It is the duty of the court to instruct you as to the measure of damages.
You must determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.
You should consider the nature and extent of the injuries in the past, as well as the nature and extent of the injuries you find reasonably probable to be experienced in the future. You should consider the following noneconomic damages elements:
1. Disability
2. Loss of enjoyment of life
3. Pain and suffering, both mental and physical
4. Humiliation
CP at 78. Interestingly, the jury handwrote the following amounts on instruction 12 in order alongside the above four categories: 150 K, 100 K, 400 K, and 50 K. CP at 78. These handwritten additions totaled an award of $700,000.
Finally, given the evidence about Lutes's permanent brain injury and the impact this injury has had on her relationships, the damages awarded by the jury fell within the range of substantial evidence and does not "shock? the conscience." Mason, 114 Wn.2d at 850. Determining the amount of damages falls primarily and peculiarly within the province of the jury, under proper instructions, and we rarely interfere with its conclusion when fairly made. Bingaman v. Grays Harbor Cmty. Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985).
Lutes's expert, Perrillo, testified that Lutes had "cognitive impairment, organic brain syndrome including lateralized brain dysfunction, verbal fluency, processing speed, frontal sustained attention loss, reactive depression, anxiety disorder and post-traumatic stress." RP at 393.
Here, evidence showed that in addition to her physical injuries, Lutes suffered permanent brain injury, worsening migraines, post-traumatic stress disorder, and changes in cognitive functioning and personality affecting family and relationships. As a result, the jury's award fell within the range of substantial evidence. As the trial court stated, "to substitute any judgment for that of the jury would be to replace one allegedly arbitrary decision with another." CP at 375. The trial court did not abuse its discretion in denying a motion for a new trial or remittitur based on excessive damages.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and HUNT, J. concur.