Opinion
No. 25521-2-III.
February 21, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-2-01901-4, Jerome J. Leveque, J., entered July 28, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis, J., and Thompson, J. Pro Tem.
This is personal injury case. It followed a car accident between Vladimir Nikolayev and Morgan Oyler. The first trial ended in a mistrial. During the second trial, the court dismissed Mr. Nikolayev's case after he rested because he failed to provide competent medical evidence to link the injuries he claimed to the accident. The essential questions are whether Mr. Nikolayev's massage therapist should have been allowed to relate his injuries to the accident, and whether he made a sufficient showing that the injuries were in fact related. We conclude that the trial judge did not abuse his discretion by refusing to allow a massage therapist to relate Mr. Nikolayev's injuries to the accident. And we further conclude that the trial court properly dismissed the case because Mr. Nikolayev did not provide competent evidence to link his injuries to the accident. We, therefore, affirm the trial judge's decision to dismiss.
FACTS
Vladimir Nikolayev's and Morgan Oyler's cars collided in an intersection. Mr. Nikolayev sued Mr. Oyler for personal injuries. The case proceeded to trial in April 2005. The court declared a mistrial because Mr. Nikolayev's attorney improperly tried to impeach a defense medical witness by referring to an alleged conviction for indecent exposure. The judge imposed terms, attorney fees, and costs on Mr. Nikolayev's attorney for his attempt to improperly impeach the witness.
Mr. Oyler moved to limit the testimony of Mr. Nikolayev's massage therapist, Vassili Lyssak, before the second trial. Mr. Lyssak had seen Mr. Nikolayev the day after the accident. Mr. Nikolayev wanted the court to permit Mr. Lyssak to testify on Mr. Nikolayev's injuries and their relationship to the accident. Mr. Lyssak holds a medical degree from Russia. But he does not have a license to practice medicine in the United States.
The trial judge ruled that Mr. Lyssak could testify that he graduated from a medical school in Russia. The judge refused to let Mr. Lyssak express the opinion that Mr. Nikolayev's injuries were related to the accident. Mr. Lyssak testified that he saw Mr. Nikolayev a day after the collision. Mr. Lyssak testified as a massage therapist. He told the jury that Mr. Nikolayev had muscle spasms in his back.
Mr. Nikolayev then testified that before the accident he was pain free. He testified that after the accident he took Ibuprofen for pain.
The trial court granted Mr. Oyler's motion to dismiss. The trial judge concluded that no competent medical testimony linked Mr. Nikolayev's injuries to the accident.
DISCUSSION
Mistrial
Mr. Nikolayev contends that the trial judge improperly granted a mistrial during the first trial. He argues that his attempt to impeach the defense witness was appropriate and the court erred by granting a mistrial.
We review a trial judge's decision to grant a mistrial for abuse of discretion. Anderson v. Dobro, 63 Wn.2d 923, 928, 389 P.2d 885 (1964). And we also review a trial judge's conclusion that the prejudicial impact of some particular evidence outweighs its probative value for abuse of discretion. ER 403; Carson v. Fine, 123 Wn.2d 206, 226, 867 P.2d 610 (1994).
The trial judge concluded that the impeachment of the witness sought information that was irrelevant, inappropriate, and unduly prejudicial. Clerk's Papers (CP) at 13. And the judge here concluded that the mention of a conviction for indecent exposure so outweighed its value for impeachment purposes that a mistrial was in order. Those are tenable grounds for this judge to do what he did here. ER 403, Carson, 123 Wn.2d at 226; Dobro, 63 Wn.2d at 928.
Costs Imposed after the Mistrial
Mr. Nikolayev next contends that the trial judge improperly awarded attorney fees and costs caused by the mistrial. Mr. Oyler responds that the trial judge acted within his discretion when determining such fees and costs.
Again, the award of fees and costs is a decision we vest in the sound discretion of the trial judge. Breda v. B.P.O. Elks Lake City 1800 SO-620, 120 Wn. App. 351, 354, 90 P.3d 1079 (2004). Here, Mr. Oyler's lawyer had prepared for the case. And the case was in its third day of trial. The court set the award of fees following an explanation of what those fees and costs amounted to. Mr. Oyler outlined his fees and costs as:
• $3,450 attorney fees (for three days of trial at $1,150 per day),
• $124.56 and $618.08 (travel expenses and lodging to attend trial, respectively),
• $1,737.50 (client's expert witness bill),
• $135 (one hour's time in preparing motion, declaration, and proposed order and judgment).
CP at 4. This totaled $6,065.14. The court awarded attorney fees and costs for that amount. CP at 15.
Again, the record supports the court's ruling. Breda, 120 Wn. App. at 354. Dismissal
Mr. Nikolayev next contends that the trial judge should not have dismissed his case as a matter of law. He argues that he presented sufficient evidence in the form of testimony from himself and Mr. Lyssak.
We review a motion to dismiss de novo. Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995). A motion to dismiss at the close of the plaintiff's case may be granted if the plaintiff fails to present substantial evidence to support the elements of the cause of action. Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 254-55, 978 P.2d 505 (1999);
Yurkovich v. Rose, 68 Wn. App. 643, 647-48, 847 P.2d 925 (1993); CR 50(a)(1). We view the evidence in the light most favorable to the nonmoving party. Rose, 68 Wn. App. at 648.
The plaintiff must prove the causal relationship between the accident and his injuries. Miller v. Staton, 58 Wn.2d 879, 886, 365 P.2d 333 (1961); Carlos v. Cain, 4 Wn. App. 475, 477, 481 P.2d 945 (1971). And that requires expert testimony. Bruns v. PACCAR, Inc., 77 Wn. App. 201, 214, 890 P.2d 469 (1995).
The problem here was that Mr. Nikolayev offered only the testimony of
a massage therapist. And the court concluded that a massage therapist was not competent to offer expert medical testimony. Report of Proceedings (July 3, 2006) (RP) at 13-15.
The question is one addressed to the sound discretion of the trial court. Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).
Massage therapists cannot diagnose medical conditions: "Massage therapy does not include diagnosis or attempts to adjust or manipulate . . . the body or spine." RCW 18.108.010(2). And no person can practice medicine or provide medical diagnosis without a valid license.
RCW 18.71.021. Mr. Lyssak's medical degree was Russian. He was not licensed in the United States. The court then concluded that he was not competent to provide expert medical opinion:
[Mr. Lyssak] has practiced here in this state as a massage therapist and that will be the extent of his opinions. When treating [Mr. Nikolayev] he was acting as a massage therapist. He would not have been allowed to act as a physician or a medical doctor with licensure and to get licensure requires another step. This isn't the same as a physician who has been licensed as a medical doctor in sister states coming in and offering testimony.
So I am not going to allow opinion testimony [from Mr. Lyssak] that requires medical doctor qualifications to render.
RP at 13-14. Again, these are adequate grounds for the court to do what it did. Havens, 124 Wn.2d at 168.
Ultimately, then, Mr. Nikolayev offered no medical testimony to show a proximate causal connection between the accident and Mr. Nikolayev's alleged injuries. Staton, 58 Wn.2d at 886; Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819 (1986). Under CR 50(a)(1) the trial judge correctly dismissed the complaint as a matter of law since there was "no legally sufficient evidentiary basis" for the jury to have found for Mr. Nikolayev. Staton, 58 Wn.2d at 886.
We affirm the dismissal of the case.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.