Opinion
Nos. 54943-0-I; 54944-8-I.
May 1, 2006.
Appeals from a judgment of the Superior Court for King County, No. 02-2-08218-1, Sharon S. Armstrong, J., entered August 2 and 20, 2004.
Counsel for Appellant(s), Katharine Witter Brindley, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154-1154.
Kristen Dorrity, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154-1154.
William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Pamela A. Okano, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Sherry Hemming Rogers, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), Jenny Anne Durkan, Attorney at Law, 411 University St Ste 1200, Seattle, WA 98101-2519.
Donovan Russell Flora, Johnson Flora, 701 5th Ave Ste 7200, Seattle, WA 98104-7042
Reversed by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Grosse, JJ.
After the jury returned a defense verdict in a medical malpractice trial, the plaintiffs moved for a new trial. The trial court granted a new trial in this case on three grounds: (1) an irregularity in the proceedings deprived the plaintiff of a fair trial under CR 59(a)(1), (2) an error of law occurred at trial justifying a new trial under CR 59(a)(8) and (3) substantial justice was not done under CR 59(a)(9). We reverse.
FACTS
Kelly Park spent some time standing on a ladder painting in March 1999. Shortly thereafter, her feet started to hurt. Park went to see her family doctor, Pamela McDonald, in March and again on May 3. At the second visit, McDonald set up an appointment for Park with a rheumatologist for May 11. Before that appointment, however, Park experienced more pain and could not get her feet warm.
On May 9 she went to the emergency room of Northwest Hospital where she was examined by Dr. Gabrielle Coulon. Park told Coulon her history. Coulon examined Park, and called McDonald to discuss Park's history and symptoms. Coulon ordered a Doppler test, which is an ultrasound vascular study that looks at circulation. The test provides the ankle brachial index (ABI), a comparison of the blood pressure in the arm to the blood pressure in the ankle on the same side. Park's ABI was 1.06 in the right leg and 0.25 in the left leg. An ABI of 0.25 is severely abnormal. It indicated severe restricted blood flow to Park's left leg.
Coulon found that Park's symptoms were worse in the left foot than the right. Coulon felt pedal pulses in Park's legs, although the pulse was more difficult to feel in the left leg. A vascular expert testified at trial that in his opinion, it was not possible for Coulon to have felt pedal pulses at the time Park was in the ER on May 9 because her blood pressure was too low for even `extremely gifted people with very sensitive fingers' to feel. He testified that one reason why one might feel a pulse is because you can feel your own pulse in your fingertips.
Coulon called Dr. Howisey, the on-call vascular surgeon. Coulon testified that she told Howisey Park's history, symptoms and signs in the ER, the ABI numbers from the Doppler study, and the finding of arterial insufficiency. She asked Howisey whether anything more should be done, but Howisey did not feel any additional tests were needed.
Howisey testified that Coulon answered his questions and told him that there was an abnormal Doppler reading and that some of Park's arteries appeared to have vascular insufficiency. Coulon described the Doppler technician's verbal impression of the study to him and asked him if he wanted further testing done while Park was in the ER. Combined with Park's history and symptoms, including that Coulon could feel Park's pedal pulses, Howisey did not think further tests would be beneficial or that Park should be immediately admitted. He concluded that Park should keep her scheduled rheumatology appointment. Howisey testified that Coulon did not tell him that the Doppler test showed severe arterial insufficiency, and he did not recall being told Park's ABI numbers. If he had that information, he would have instructed Coulon to admit Park and he would have come in to begin treatment immediately.
Howisey testified on a more probable than not basis that if Park had been admitted on May 9, she still would have lost both her legs. Howisey did not think that in hindsight there was anything he could have done to save her legs.
After consulting with Howisey, Coulon called McDonald to discuss the Doppler results and Howisey's comments. McDonald agreed with the plan to discharge Park. Park was discharged with instructions to keep her rheumatology appointment on May 11. That day, Park went to see the rheumatologist. Park reported increasing pain and the rheumatologist noted that her left foot was cold. The rheumatologist admitted Park to the hospital for an arteriogram, which revealed a clot in the abdominal aorta that was sending smaller clots into the arteries in Park's legs. Howisey assumed primary care and initiated therapy. After seven days of treatment, Park's left leg was amputated below the knee. After 16 days of treatment, Park's right leg was amputated below the knee.
McDonald testified that Coulon told her the Doppler results were somewhat abnormal or moderately abnormal, but did not tell her that the reading was 0.25. McDonald testified that 0.25 is a `very, very abnormal' reading not consistent with `moderately abnormal or somewhat abnormal.'
Park brought an action against Coulon, Howisey, McDonald, Seattle Family Medicine (McDonald's employer) and Northwest Hospital. Park settled with Howisey, McDonald, and Seattle Family Medicine four months before trial. At that point, Coulon and Northwest Hospital moved to amend their answers and assert the affirmative defense of nonparty negligence, naming Howisey and McDonald as the nonparties. The trial court granted the defendants' motion on March 23. Park had not yet deposed any defense experts. Trial started on June 21. The jury returned a unanimous defense verdict on July 14. Park moved for a new trial on July 22. The trial court granted the motion and the defendants appeal.
The plaintiffs in this case (respondents on appeal) are Kelly Park and her husband Stan Park. We refer to them collectively as `Park' except for the instances where the context makes it clear that we are referring to Kelly Park.
We refer to appellants Coulon and Northwest Hospital collectively as `defendants.'
ANALYSIS I. Standard of Review
When a new trial is granted on the ground of an error of law, no element of discretion is involved and this court's review is de novo. Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812-13, 440 P.2d 834 (1968); Jazbec v. Dobbs, 55 Wn.2d 373, 347 P.2d 1054 (1960). Otherwise, a trial judge generally has broad discretion in granting motions for a new trial and its decision will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). The trial court abuses its discretion if its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Because the denial of a new trial concludes the parties' rights, a "much stronger showing of abuse of discretion will be required to set aside an order granting a new trial than an order denying one." Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997).
In all cases where a new trial is granted based upon the record, the trial court must set forth in its order "definite reasons of law and facts" for granting the new trial. CR 59(f). If the order is based on matters outside the record, the trial court must state the facts and circumstances on which it relied. CR 59(f).
The grounds for a new trial are set forth in CR 59(a). The trial court granted a new trial in this case on three grounds: (1) an irregularity in the proceedings deprived the plaintiff of a fair trial under CR 59(a)(1), (2) an error of law occurred at trial justifying a new trial under CR 59(a)(8) and (3) substantial justice was not done under CR 59(a)(9). For each ground, the first inquiry is to determine the standard of review by establishing whether the ground involves an exercise of discretion or is predicated on a question of law. See Detrick, 73 Wn.2d at 813.
II. The Irregularity in Proceedings Did Not Justify a New Trial
A new trial is available under CR 59(a)(1) if an "[i]rregularity in the proceedings of the court . . . prevented [the moving party] from having a fair trial." A new trial granted on this ground is reviewed for abuse of discretion. See Storey v. Storey, 21 Wn. App. 370, 375, 377, 585 P.2d 183 (1978). When "the claimed grounds for a new trial involve the assessment of occurrences during the trial and their potential effect on the jury, we will accord great deference to the considered judgment of the trial court in ruling on such a motion." Levea v. G.A. Gray Corp., 17 Wn. App. 214, 226, 562 P.2d 1276 (1977).
On the third day of trial, the trial court pointed out to the parties with the jury absent that the case caption on the trial schedule it gave the jury included the words "et al." In its order granting a new trial, the trial court also noted that the juror seating chart posted in the jury room had contained the same error. The trial court replaced both documents with copies containing the correct caption, and notified the parties two days later that it had done so. Park did not raise any objection at trial to the erroneously included words, and did not raise the issue in her new trial motion until a footnote in her reply brief. In its order granting a new trial, the trial court stated that "this administrative error gave the jurors notice that other defendants had previously been parties to the lawsuit, and they were free to speculate that other defendants had settled with plaintiffs before trial." The trial court also noted that the jurors submitted several questions during deliberations seeking information about Howisey's relation to the lawsuit and the consequences of finding Coulon not negligent but finding Howisey negligent. The trial court noted that its error made it "evident that other parties had once been in the case," and that the "jury could have assumed that Dr. Howisey had already paid the plaintiff substantial damages." The trial court further noted that while "the court does not meet with jurors after a verdict is taken, court staff overheard jurors asking plaintiffs' counsel how much Dr. Howisey had already paid the plaintiffs." The trial court held that its error "contributed to this problem" and justified a new trial under CR 59(a)(1).
That footnote read:
In addition, after trial a number of jurors asked when plaintiffs' case `shifted' during trial — as they stated they had a case schedule indicating `et al' — and something on the wall naming either Dr. McDonald or Dr. Howisey as a defendant. Plaintiffs, of course, are aware of the inadvertent caption on the Court's case schedule. However, plaintiffs lack any further information or details as to whether jurors had something else in the jury room indicating plaintiffs also had blamed or sued Dr. McDonald or Dr. Howisey. If so, plaintiffs leave it to the Court to consider whether such an inadvertent error could also have had some impact on the jury's conclusion that Dr. Howisey was to blame given the totality of the circumstances.
A complaining party may be precluded by waiver from seeking a new trial on the ground of irregularity:
Unless inadequate to remedy the irregularity or misconduct complained of, the aggrieved party must request appropriate court action to obviate the prejudice before the case is submitted to the jury. He is not permitted to speculate upon the verdict by awaiting the result of the trial and then complain of the irregularity or misconduct in case the verdict is adverse.
Spratt v. Davidson, 1 Wn. App. 523, 526, 463 P.2d 179 (1969). While the trial court's inadvertent provision of an incorrect caption to the jury was an irregularity in the proceedings, Park did not object or seek any curative action to remedy potential prejudice even though the trial court disclosed the mistake very early during trial. Thus, under Spratt, Park waived her right to a new trial on the ground of this irregularity. Furthermore, even if the relevance or magnitude of the irregularity was not clear to Park early in the trial when the judge noted the irregularity, it would have been clear by the time Park moved for a new trial. Park was required to raise the issue as a ground for a new trial in her motion, and not in her reply brief. CR 59(b). By failing to raise the issue until a footnote in her reply brief, Park did not comply with CR 59(b).
In addition, the "existence of a mere possibility or remote possibility of prejudice is not enough" to grant a motion for a new trial. Spratt, 1 Wn. App. at 526. The question is whether there is reasonable doubt that the plaintiff received a fair trial. Spratt, 1 Wn. App. at 525 (citing Gardner v. Malone, 60 Wn.2d 836, 376 P.2d 651, 379 P.2d 918 (1962)). In Mulka v. Keyes, 41 Wn.2d 427, 436-37, 249 P.2d 972 (1952), respondent's counsel made "highly dramatic" and improper remarks. There was no objection, no request for curative instructions, and no admonishment from the trial court. In such circumstances, the Washington Supreme Court deemed the prejudicial effect of the remarks negligible:
Notwithstanding the fact that the manner of appellant's counsel in stating his objections and its effect upon the jury are matters which cannot appear directly in the record, we are of the opinion that the prejudicial effect, if any, upon the jury was negligible if it escaped attention of the court and respondent's counsel until the time the memorandum opinion was written, more than three weeks after the trial.
Mulka, 41 Wn.2d at 438.
Here, the court disclosed the irregularity on June 24 and the jury returned its verdict on July 14. The reply brief, in which Park first noted the issue, was filed on July 28. Park did not seek curative instructions from the trial court before the jury started deliberations, and did not raise the issue for over a month after being made aware of it. Under the reasoning of Mulka, we would also conclude that the prejudicial effect of the irregularity was negligible.
Furthermore, while evidence of settlements is inadmissible and juror statements regarding settlement may warrant a new trial, see, e.g., Byerly v. Madsen, 41 Wn. App. 495, 499, 704 P.2d 1236 (1985) (granting a new trial because before and during deliberations, one juror stated in the presence of other jurors that a former party had settled for $100,000), "mere speculation the jury considered or was influenced by references to settlement does not justify a new trial." Vasquez v. Markin, 46 Wn. App. 480, 484-85, 731 P.2d 510 (1986); see also Vern J. Oja Assocs. v. Wash. Park Towers, Inc., 15 Wn. App. 356, 361-63, 549 P.2d 63 (1976), aff'd, 89 Wn.2d 72, 569 P.2d 1141 (1977) (upholding trial court's denial of a motion for a mistrial on the ground that the jury was made aware of a settlement). Here, the trial court speculated that the jury considered or was influenced by references to a settlement. The trial court's speculation that the jurors "were free to speculate" about settlement, and "could have assumed" that Howisey had settled with Park is insufficient to warrant a new trial. Moreover, there is no showing that the jurors' speculative consideration of settlement would have arisen from the trial court's error. Nothing in the record shows that the jurors commented on the caption or noted its meaning. No juror affidavits were provided. Even assuming that the trial court did not improperly rely on hearsay evidence by remarking on a court officer's report of an overheard juror comment, the comment was not tied by any evidence to the caption error. On the contrary, the entire trial record supported the jury's questions and the overheard comment, even in the absence of the irregularity. The jury instructions informed the jury that the defendants were claiming that Howisey was negligent. The jury was instructed that it could attribute negligence to nonparties and was to allocate negligence accordingly. The special verdict forms designated Howisey a nonparty and asked the jury to decide whether he was negligent and, if so, to allocate fault to him.
Even if such affidavits were provided, to the extent they revealed the thought processes of jurors, such thought processes inhere in the verdict and do not support the grant of a new trial. Chiappetta v. Bahr, 111 Wn. App. 536, 541, 46 P.3d 797 (2002).
We conclude that the trial court abused its discretion in granting Park's new trial motion under CR 59(a)(1) because Park waived this ground for a new trial. In addition, the trial court improperly granted the motion based on speculation and there is no evidence that the jurors comments or questions arose from the irregularity in proceedings rather than from the jury instructions and the trial proceedings. The trial court's decision to grant the new trial motion under CR 59(a)(1) was exercised on untenable grounds.
III. No Error in Law at Trial Justified a New Trial
A new trial is available under CR 59(a)(8) if there was an "[e]rror in law occurring at the trial and objected to at the time by the party making the application." The error of law complained of must be prejudicial. Dickerson v. Chadwell, Inc., 62 Wn. App. 426, 429, 814 P.2d 687 (1991) (citing Rasor v. Retail Credit Co., 87 Wn.2d 516, 533, 554 P.2d 1041 (1976)). No element of discretion is involved when the new trial is granted on the ground of an error of law. Jazbec, 55 Wn.2d at 375. The trial court ruled in its order granting a new trial that it erred in permitting defendants to elicit opinion testimony from plaintiff's vascular experts on whether Dr. Howisey violated the standard of care. Plaintiffs had explicitly withdrawn their vascular experts' testimony on this issue and had brought an appropriate motion in limine to prohibit defendants' examination. The court's erroneous ruling denying the plaintiff's motion in limine had the effect of giving defendants four experts on the issue of Dr. Howisey's negligence, which was unfair. The error justifies a new trial under CR 59(a)(8).
It is important to clarify that the trial court's evidentiary rulings are reviewed under an abuse of discretion standard and will be upheld if they did not constitute an abuse of discretion. A trial court cannot grant a new trial under CR 59(a)(8) because, in retrospect, it would have exercised its discretion differently. Rather, a new trial can be granted under CR 59(a)(8) because of an evidentiary ruling only if the trial court abused its discretion in making the evidentiary ruling.
Park's vascular experts were Drs. Joseph Rapp and Dudley Moorhead. Park moved prior to trial to preclude the defense from questioning Rapp or Moorhead about the standard of care applicable to doctors who had settled (Howisey and McDonald). Park claimed that her experts would not testify about standard of care issues. The trial court reserved ruling on the issue.
When a party loses a motion in limine, the party is deemed to have a standing objection unless the trial court indicates that further objections are required at trial. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). When the trial court makes a tentative ruling before trial, error is not preserved for appeal unless the party objects to admission of the evidence when it is offered, allowing the court an opportunity to reconsider its prior ruling. Eagle Group, Inc. v. Pullen, 114 Wn. App. 409, 416-17, 58 P.3d 292 (2002). Here, there was no trial court ruling, as the trial court expressly reserved ruling on the motion in limine. Thus, to preserve the error, Park was required to object.
A. Any Error in Allowing Rapp's Testimony Was Harmless
Rapp testified on June 24. On cross-examination, Rapp testified without objection that given the information that a patient has numbness, pain, and a white foot, and that the Doppler exam revealed an ABI of 0.25, the standard of care for a vascular surgeon would be to come in and see the patient. In addition, Rapp testified without objection that if Howisey had all that information, he should have come in to see the patient and it is hard to justify Howisey not coming to see the patient.
Park did object to the next question:
Q. In your opinion, Dr. Howisey breached the standard of care when he did not come into the Northwest Hospital Emergency Room; correct?
[Park's Atty]: Objection, Your Honor. We've covered this, have we not? Would you like me to —
THE COURT: Covered this in prior proceedings.
[Park's Atty]: Prior proceedings regarding standard of care testimony from — be happy to continue. I'm just not sure —
THE COURT: Well, I believe Dr. Rapp is qualified to express his opinion.
[Park's Atty]: Okay.
Q Go ahead and answer the question, Dr. Rapp.
A. The difficulty with the question is that there is a debate as to what the information was given. If Dr. Howisey was given the information as you present it, then Dr. Howisey should come in and see the patient.
Q. And Dr. Howisey breached the standard of care when he didn't come in to see the patent; that was the question?
A. If he was given that information and he didn't come in to see the patient, I think you would have to say that he breached standard of care.
Defendants argue that Park waived any claim of error as to Rapp's testimony because Park did not timely object. Park argues that she objected to the first question in which Rapp was asked directly whether Howisey breached the standard of care.
An expert's standard of care testimony need not be presented in terms of "standard of care." White v. Kent Med. Ctr., 61 Wn. App. 163, 172, 810 P.2d 4 (1991). To "require experts to testify in a particular format would elevate form over substance" and that "to be admissible, it is only necessary that the expert's standard of care testimony be more than a personal opinion." White, 61 Wn. App. at 172. A review of Rapp's testimony shows that Rapp was providing professional and not personal opinions. Thus, his unobjected to testimony was standard of care testimony, and Park waived any error to this testimony by failing to object. Park preserved her claim of error only as to that part of the standard of care testimony quoted above to which she objected.
"[A]dmission of testimony that is otherwise excludable is not prejudicial error where similar testimony was admitted earlier without objection." Ashley v. Hall, 138 Wn.2d 151, 159, 978 P.2d 1055 (1999). And, admission of evidence is not prejudicial when the evidence is merely cumulative. State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970).
Here Rapp's objected-to testimony was similar to the earlier testimony of Cummins and Rapp that was admitted without objection. Even assuming that the trial court abused its discretion in overruling Park's objection, Rapp's earlier testimony to the same effect was admitted without objection. In addition, plaintiff's expert Cummins had already testified on direct that if a vascular surgeon apprised of the pertinent information in this case sent the patient away from the ER, then that would be an "unacceptable conclusion by the subspecialist." Cummins had also testified on cross-examination without objection that if Howisey knew this information then he should have come in, and that it would be inappropriate and below the standard of care to send her home. Park objected to the next question (whether Howisey violated the standard of care), but not to the earlier cross-examination of Cummins.
Rapp's objected-to testimony was also cumulative of the similar earlier testimony as well as later testimony. Defense expert Dr. Neuzel later testified that if Coulon told Howisey the pertinent information, Howisey fell below the standard of care in failing to come to the ER to examine Park. And, plaintiff's expert Moorhead testified similarly to Howisey's standard of care after Park opened the door to that testimony, as fully discussed in the next subsection. Because Rapp's objected-to testimony was similar to earlier testimony and cumulative of both earlier and later testimony, any error in admitting it was harmless. See Ashley, 138 Wn.2d at 159; Todd, 78 Wn.2d at 372.
B. There Was No Error in Allowing Moorhead's Testimony
Moorhead testified on June 28. That day, prior to Moorhead's testimony, Park renewed her motion in limine restricting the experts' testimony on standard of care. Park initially raised an objection to questions to Moorhead about Howisey's practices and the standard of care after Park was admitted to the hospital on May 11. The trial court granted the motion and ruled that Moorhead could not be questioned about Howisey's or McDonald's standard of care. In context it appears that the motion was granted as to Moorhead's testimony on Howisey's standard of care for the time post-May 11th. The order did not apply to Rapp or any other witness. Subsequently, Park questioned Moorhead on direct examination:
Park argued that Moorhead should not be able to testify to any breach of the standard of care after that date because he and every other vascular expert in the case said that there was no breach of the standard after May 11. Defendants argued that to the contrary, Moorhead was `completely critical of all the care that Howisey did' including that `Howisey should have come in and Howisey should have taken care of this patient.' The court summarized the testimony that was expected: that assuming Howisey was given certain facts, he should have come in. Park clarified the distinction between testimony as to Howisey's standard of care on May 9 and May 11.
The parties further discussed with the court Moorhead's opinion as to Howisey's standard of care. Defendants argued that Moorhead should be able to testify as to his opinions on causation, reflecting opinions such as had McDonald administered an arteriogram in March (without testimony that such a test was required to meet the standard of care), or had Howisey come into the ER and admitted Park on May 9, her legs would have been saved. Park pointed out that with respect to McDonald, the jury would be invited to speculate that she should have ordered the test to meet the standard of care. And, with respect to Howisey's treatment after May 11, Park pointed out that testimony about whether alternative treatments would have prevented the loss of the legs was an invitation to speculate when it was not accompanied with any testimony that the standard of care was breached.
Q. Do you have an opinion as to what treatment Kelly Park should have received when she presented to the Emergency Room on May 9th?
A. Hospital admission, preferably by a vascular surgeon and emergent arteriography.
Q. And do you have an opinion as to whether if treatment had been commenced on May the 9th whether Kelly's left foot could have been saved?
A. I think that it could have been saved, yes. I think it would have been saved.
Q. And do you have an opinion as to whether if Kelly Park had been admitted to the hospital on May the 9th and given appropriate treatment, whether her right foot could have been saved?
A. I think it would have been, yes.
Coulon began cross-examining Moorhead about what type of information he, as a vascular surgeon, would have wanted to know from an emergency room physician if he was on call and consulted about a patient for whom a Doppler study was done.
Park objected. Outside the jury's presence, Coulon argued that by asking Moorhead what treatment Park "should" have received in the emergency room, Moorhead was commenting on Coulon's standard of care and opened the door to cross-examination on that issue. Park argued that she was asking only what treatment the patient should have received, not whose job it was to provide the treatment, and that the defendants were free to argue that it was not Coulon's job. The court agreed with Coulon that the word "should implies a standard of care" and it "implies . . . a falling below a standard of care or a deficiency by someone, b[y] either the ER doctor or by the on-call vascular surgeon." The court commented that it didn't "think you can just leave the should and the either, it has to be . . . connected to conduct." The court questioned Moorhead about his opinion with the jury still out. Moorhead ultimately stated that the bottom line was that the failure of someone to admit Park and do a work-up was below the standard of care. Park's counsel then stated "I was wrong, Your Honor. I withdraw the objection." Park's counsel also stated "I will concede that I think [Coulon's counsel] does have the right to ask [Moorhead] about Dr. Howisey coming to the Emergency Room, that by [Moorhead] testifying that she [sic] should have been in, that I fairly did open the door to that." Coulon urged that
We still have this problem of this doctor having said this patient should have been admitted on May 9th, and he didn't say who should have done it. It could have been McDonald; it could have been Coulon, and it could have been Howisey. They want to just leave that hanging as a standard of care opinion with the assumption that it's against Coulon, but giving us no opportunity to lay it on McDonald or lay it on Howisey.
The trial court permitted Coulon to elicit from Moorhead that "had Dr. Howisey been told all that information, it would be his obligation to admit her." The court continued to exclude standard of care testimony for treatment after May 11. With the jury present, Moorhead testified that in his opinion, if Coulon had given Howisey the relevant information, Howisey breached the standard of care by failing to come in and admit Park. The defendants argue that Park conceded that she had opened the door to their cross-examination of Moorhead as to Howisey's standard of care for the May 9 ER visit. Park argues that when the court earlier overruled Park's objection to Rapp's testimony (several days before Moorhead's testimony), the court was ruling that it "would permit the defendants to ask standard-of-care questions of plaintiffs experts so long as the questions were within the expert's area of qualification." Park argues that her concession was "in reference to the trial court's clear ruling that she would permit such questions" and was "certainly not intended to suggest that the Parks agreed with the court's ruling."
The record does not support Park's interpretation of her concession. Although from the record and the briefing it appears that Park's attorneys may have thought that the trial court ruled on the motion, the record does not show that the trial court did so. In context, Park was conceding that defendants could cross-examine Moorhead about Howisey's standard of care on May 9. Park opened the door to the testimony about whether Howisey breached the standard of care because Park's direct examination of Moorhead implied that someone breached the standard of care but stopped short of specifying who did so. The Washington Supreme Court has explained that it is precisely this type of questioning that opens the door to otherwise excluded cross-examination:
It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths. Thus, it is a sound general rule that, when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced.
State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). We hold that the trial court did not abuse its discretion in allowing Moorhead to testify to Howisey's standard of care.
Furthermore, the jurors found that Coulon was not negligent and thus did not reach allocation of fault issues. The jury was specifically instructed, in response to its written questions during deliberation, that if it found Coulon not negligent, it need not consider whether Howisey was negligent. Testimony as to whether Howisey was negligent was relevant only to whether the jurors would allocate fault to him if they found Coulon negligent. Thus, any error in admitting the testimony was harmless. See Kimball v. Otis Elevator Co., 89 Wn. App. 169, 175, 947 P.2d 1275 (1997) (holding that any error in admitting damages testimony harmless when the jury found no liability and did not reach damages issue).
In sum, any error in admitting Rapp's testimony about Howisey's standard of care over objection was harmless. There was no error in admitting Moorhead's testimony about Howisey's standard of care. Rapp and Moorhead testified as to Howisey's standard of care, effectively giving the defendants additional experts on the issue, because Park failed to object and opened the door to the testimony, not because of the actions of the defendants. And, because the jurors did not find Coulon negligent, they ultimately never reached the question of Howisey's standard of care. For all these reasons there was no error of law and no prejudice. We hold that the trial court erred in granting a new trial under CR 59(a)(8).
IV. The Trial Court Abused Its Discretion in Granting a New Trial on the Ground that Substantial Justice Was Not Done
A new trial is available under CR 59(a)(9) if "substantial justice has not been done." The trial court has discretion to order a new trial for failure of substantial justice. Berry v. Coleman Sys. Co., 23 Wn. App. 622, 625, 596 P.2d 1365 (1979).
The basic question posed by an order granting a new trial upon this ground, be it a civil or criminal action, is whether the losing party received a fair trial. And, it is in this area of the new-trial field that the favored position of the trial judge and his sound discretion should be accorded the greatest deference, particularly when it involves the assessment of occurrences during the trial which cannot be made a part of the record, other than through the voice of the trial judge in stating reasons for the action taken.
Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964). The trial court noted that both defendants had asserted the affirmative defense of apportionment of fault in standard pleading language in their original answers, and that they alleged the empty chair defense at the first opportunity, when the codefendants settled in early 2004. However, the trial court noted that until they alleged the empty chair defense, neither defendant had alleged a factual basis for the negligence of Howisey or McDonald, disclosed experts to opine on those doctors' negligence, or disclosed allegations of negligence in answers to interrogatories. The trial court pointed to one interrogatory answer as "particularly misleading":
Interrogatory No. 5: Do you contend that fault in this case, if any, should be apportioned to either Dr. Howisey or Dr. McDonald?
Answer: Objection, the determination of the fault of any party is for a jury to decide.
The trial court ruled that because Park settled with McDonald and Howisey in reliance on the "tactical nondisclosures" of the defendants, it had erred in allowing the defendants to amend their pleadings and that this error of law "contributed to the fact that substantial justice was not done." The trial court noted that "[w]hile this third error is not itself grounds for a new trial, it obviously had a significant impact on the outcome of the case."
A motion to amend the pleadings is addressed to the discretion of the trial court and leave to amend should be freely given unless it would prejudice the nonmoving party. Kirkham v. Smith, 106 Wn. App. 177, 181, 23 P.3d 10 (2001). Whether amending a pleading would cause prejudice depends on whether there was undue delay, unfair surprise, or whether the amendment would cause jury confusion. Wilson v. Horsley, 137 Wn.2d 500, 505-06, 974 P.2d 316 (1999).
Washington courts strongly disapprove of gamesmanship in civil discovery. In re Firestorm 1991, 129 Wn.2d 130, 150, 916 P.2d 411 (1996) (Talmadge, J., concurring). A defendant may waive an affirmative defense if assertion of the defense is inconsistent with the defendant's prior behavior or the defendant is dilatory in asserting the defense. King v. Snohomish County, 146 Wn.2d 420, 47 P.3d 563 (2002). The doctrine of waiver is "designed to prevent a defendant from ambushing a plaintiff during litigation either through delay in asserting a defense or misdirecting the plaintiff away from a defense for tactical advantage." King, 146 Wn.2d at 424 (citing Lybbert v. Grant County, 141 Wn.2d 29, 40, 1 P.3d 1124 (2000)).
A new trial can be granted on the grounds of the failure of substantial justice because a defendant did not adequately answer interrogatory questions. In Berry, for example, the defendant answered "no" to interrogatories asking whether there were any similar complaints of injury or legal actions brought arising from defects in similar products in the years surrounding the plaintiff's injuries. However, post-trial investigation by the plaintiffs revealed that the defendant "had received 31 complaints of similar injuries or occurrences, and was a party to 13 legal actions involving similar products." Berry, 23 Wn. App. at 624. The trial court ordered a new trial, concluding that "`there was a flagrant failure to properly answer these interrogatories, that the answers given were false, and that the answers ultimately given evidence earlier bad faith on the part of the defendant.'" Berry, 23 Wn. App. at 625. This court found no abuse of discretion in ordering a new trial. Berry, 23 Wn. App. at 625.
In Lybbert, the plaintiffs sued Grant County but mistakenly did not effect proper service. Lybbert, 141 Wn.2d at 31. The county appeared, indicating in its notice of appearance that it was not "waiving objections to improper service or jurisdiction." Lybbert, 141 Wn.2d at 32. The county then proceeded as though preparing for litigation on the merits, and made no inquiry in its discovery effort regarding the sufficiency of process. Lybbert, 141 Wn.2d at 32. Plaintiffs served interrogatories on the county asking whether it would be relying on the affirmative defense of insufficient service of process. Lybbert, 141 Wn.2d at 33. Several months later, without having answered the interrogatory, the county filed an answer and asserted the affirmative defense of insufficient service of process for the first time. Lybbert, 141 Wn.2d at 33. If the county had timely responded to the interrogatory, plaintiffs could have cured the defective service. Rather, the county waited for the limitation period to expire before filing its answer and asserting the defense. The court held that the county waived its defense by acting in an inconsistent and dilatory manner. Lybbert, 141 Wn.2d at 45.
In King, Snohomish County raised a claim filing defense in its answer. The court held that the county was thus not dilatory in asserting the defense. King, 146 Wn.2d at 424. However, the county's assertion of the defense was inconsistent with its behavior for the four years prior to trial. The county failed to clarify the defense in its response to an interrogatory seeking clarification, on the ground that the interrogatory was vague. It argued a summary judgment motion without mentioning the defense, and did not raise the defense again until three days before trial. King, 146 Wn.2d at 424-25. The court noted that all parties to the case had engaged in costly and lengthy discovery and litigation "only to have the case decided on procedural grounds completely unrelated to the discovery in which they were engaged" and that the defense could have been disposed of early in the litigation prior to these expenditures and at a time when the defect could have been remedied. King, 146 Wn.2d at 426.
Park argues that the defendants "deliberately delayed asserting fault against Dr. Howisey and Dr. McDonald until shortly before trial and after the Parks settled with and dismissed Drs. Howisey and McDonald from the lawsuit." And, Park asserts that there is no question that this delay was "calculated." However, as the trial court itself noted, both defendants had asserted the affirmative defense of apportionment of fault among all defendants in standard pleading language in their original answers. And, the assertion of the empty chair defense against Howisey and McDonald was made "at the first opportunity." CR 12(i) provides that
[w]henever a defendant or a third party intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim.
The rule is addressed to nonparties, and did not apply to Howisey or McDonald until they settled.
Unlike in King or Lybbert, the defendants' responses to the interrogatory and their motion to amend their answer under CR 12(i) were not dilatory or inconsistent with the defendants' prior actions. While Park's attorneys may have been misled into settling with Howisey and McDonald by the interrogatory answer quoted in the trial court's order, the interrogatory answer was not misleading or inconsistent. The defendants did not deny their intent to allocate fault to McDonald or Howisey. To the contrary they had expressed that intention in their original answers and put Park on notice that they would request apportionment of fault. The interrogatory answer instead expressed Coulon's objection to the question. Park did not seek to compel any further answer to the interrogatory.
As the defendants observe, settling with one of multiple defendants prior to trial is well known to be risky, and the empty chair strategy is well known to trial lawyers. C. Peck, Reading Tea Leaves: The Future of Negotiations for Tort Claimants Free from Fault, 15 U. Puget Sound L. Rev. 335, 341-42 (Winter 1992) (unwise for fault-free plaintiff to make reduction in pre-trial settlement with one of multiple defendants); 16 D. DeWolf K. Allen, Washington Practice, Tort Law Practice sec. 12.25 (2000) (suggesting covenants not to execute as possible way to circumvent empty chair situation); Simpson v. Matthews, 790 N.E.2d 401, 408 (Ill.App.Ct. 2003) (noting that the "`empty chair' strategy is well known to trial lawyers as a defendant's dream and a plaintiff's nightmare").
Moreover, Park's own claims obviate an argument of unfair surprise. Park herself sued Howisey and McDonald. RCW 4.22.070 provides that allocation of damages to multiple parties at fault is mandatory for the trier of fact. Thus, as Park herself claimed Howisey was at fault, there would be no unfair surprise that other defendants would make that claim and seek allocation of fault.
We hold that the trial court did not abuse its discretion in allowing the motion to amend. Thus, there was no error in doing so and a new trial under CR 59(a)(9) was not justified on that ground. To the extent the trial court ordered the new trial based on the cumulative effect of the errors and irregularities it noted in its order, the only potential error was in allowing Rapp's objected-to testimony. This error, if any, was harmless. Thus there is no accumulation of error justifying the conclusion that substantial justice was not done. No tenable ground is set forth in the order granting a new trial on which the trial court could properly have exercised its discretion to grant a new trial under CR 59(a)(9). We hold that the trial court abused its discretion in ordering a new trial under CR 59(a)(9).
We reverse.
GROSSE and COLEMAN, JJ., concur.