Opinion
No. 58729-3-I.
October 8, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-40789-3, Michael Hayden, J., entered July 24, 2006.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Grosse and Baker, JJ.
Ginger Robertson sued Patrick Rock for injuries she sustained in a rear-end car accident. The jury awarded Robertson all her medical costs and $2,500 in general damages. On appeal, Robertson contends the court erred in denying her motion for a new trial, claiming that (1) the judge was biased and improperly admitted photos of the damage to her car, (2) the judge engaged in ex parte communication and impermissibly commented on the evidence, and (3) an inadequate jury award was the result of prejudice. Because Robertson cannot establish bias or prejudice, and the trial court did not abuse its discretion in denying the motion for a new trial, we affirm.
FACTS
On January 7, 2002, when Patrick Rock slowed down for a red light, his car rear-ended the car in front of him. Over the next several months, Ginger Robertson, the passenger in the car Rock rear-ended, experienced pain in her right arm and shoulder. In November 2002, Robertson underwent surgery on her right shoulder.
On December 29, 2004, Robertson sued Rock for damages, alleging that his negligence caused the injuries to her neck, back, and shoulder, as well as emotional damages. Rock admitted liability but disputed the nature and extent of Robertson's injuries and damages. At Rock's request, Dr. Bradley Billington, an expert in orthopedic medicine, conducted an independent medical examination of Robertson. Robertson's medical records revealed that when she was injured in a rollerblading accident in 1998, she was diagnosed with right shoulder impingement syndrome. In his report, Dr. Billington concluded that Robertson did not sustain more than a minor strain to her shoulder in the 2002 car accident. In Dr. Billington's opinion, because of the 1998 diagnosis, the car accident was "a relatively minor contribution to the symptomology that ultimately resulted in the recommendation for surgery" on her shoulder.
Before trial, Robertson filed a motion in limine to exclude evidence of any damage to the car she was in, including two photographs that showed imperceptible damage to the car. The court granted Robertson's motion to exclude the car repair estimate but denied her request to exclude the photographs.
After the court ruled on the pretrial motions and empanelled the jury, Robertson's attorney told the court that her treating doctor was unavailable to testify. But the attorney said Robertson would testify that the accident caused the need for her shoulder surgery. In response, the judge told the attorney Robertson's medical testimony was inadmissible as a matter of law.
Later that day, when court was not in session, Robertson and her husband said they overheard the judge talking to his staff in chambers about the decision to not call an expert medical witness. When Robertson's husband loudly expressed his anger about the conversation, the judge apologized and stated there was no intent to make light of the case.
The following morning, Robertson's attorney said he had consulted with a doctor the night before, and Dr. Gary Schuster was prepared to testify on Robertson's behalf. Over defense objection, the court allowed Dr. Schuster to testify.
At trial, Dr. Schuster testified that he had reviewed Robertson's medical records and in his opinion the 2002 car accident caused the need for Robertson's shoulder surgery. In contrast, Rock's medical expert, Dr. Billington, testified that Robertson could not have suffered more than a minor strain to her shoulder from the accident. In Dr. Billington's opinion, even if Robertson had not been in a car accident, her shoulder would still have required surgery because of the pre-existing impingement syndrome caused by the rollerblading accident. During Rock's testimony, the court admitted the two photographs of the car Rock rear-ended.
At the conclusion of the evidence, the court discussed the proposed jury instructions with the attorneys. Due to formatting problems with Rock's proposed jury instructions, the court only used Robertson's version in preparing the final jury instructions. The next morning before court was in session, and while Robertson was present but her attorney was not, Rock's attorney told the judge there was a problem with one of the instructions. The attorney said that the jury instruction on a preexisting condition should include the optional language addressing the natural progression of the pre-existing injury. In response, the judge told the attorney the optional language was not necessary.
Before closing argument, the judge read the instructions to the jury but did not provide the jury with a written copy of the instructions. Part way through the closing argument on behalf of Robertson, the court suggested taking an early lunch recess. After the jury was excused for lunch, the judge said the jury instruction on a preexisting condition did not include the language necessary for Rock to argue his theory of the case. Over Robertson's objection, the judge told the jury after lunch recess that he made a mistake in reading one of the jury instructions and read the instruction with the additional language to the jury. At the conclusion of the trial, the jury awarded Robertson $11,773.65 in damages. The award included all of her medical costs and $2,500 in general damages.
Right before the hearing on Rock's motion to enter judgment on the verdict, Robertson filed a motion for a new trial. The court entered judgment on the verdict but reserved ruling on Robertson's motion for a new trial. On July 24, 2006, the court issued a detailed, eight-page decision and order denying Robertson's motion for a new trial. Robertson appeals.
The court also awarded statutory costs to Rock as the prevailing party. Rock made a CR 68 Offer of Judgment to Robertson for $15,000. Because the verdict against Rock was less than the amount offered, Rock was entitled to statutory costs under RCW 4.84.010 and .080.
ANALYSIS
Robertson challenges the trial court's decision to deny her motion for a new trial under CR 59(a)(1), (5), (8) and 9:
(a) Grounds for New Trial on Reconsideration. On the motion of the party aggrieved, a verdict may be vacated and a new trial granted . . . for any one of the following causes materially affecting the substantial rights of such parties:
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;
. . .
(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;
. . .
(8) Error in law occurring at the trial and objected to at the time by the party making the application; or
(9) That substantial justice has not been done.
The trial court's decision to deny a motion for a new trial is reviewed for abuse of discretion. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997). A trial court abuses its discretion when its decision is based on untenable grounds or reasons. Wagner Dev., Inc. v. Fid. Deposit Co., 95 Wn. App. 896, 906, 977 P.2d 639 (1999). In determining whether the trial court's decision was an abuse of discretion, we consider whether there was prejudice preventing a fair trial. ALCO v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000).
As a preliminary matter, Rock argues Robertson's appeal is untimely. We disagree. The trial court did not enter its decision and order denying the motion for a new trial until
Robertson argues she is entitled to a new trial under CR 59(a)(1) because the judge's bias affected the decision to admit the photographs of the car. Specifically, Robertson points to the judge's in-chambers description of a rear-end car accident he was involved in. Robertson also contends the in-chambers conversation that she overheard between the judge and his staff, demonstrates a "jovial" attitude toward her case and further supports her argument that the judge's bias prevented her from having a fair trial.
A judge is presumed to act without bias or prejudice. Wolfkill Feed Fertilizer v. Martin Corp., 103 Wn. App. 836, 841, 14 P.3d 877 (2000). A party alleging bias must present evidence of actual or potential bias of the judge. State v. Post, 118 Wn.2d 596, 618, 619 n. 9, 826 P.2d 172 (1992). We use an objective test to determine whether a judge's impartiality might reasonably be questioned by a reasonable person who "knows and understands all the relevant facts." In the Matter of the Marriage of Davison, 112 Wn. App. 251, 256, 48 P.3d 358 (2002) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). "The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial." Post, 118 Wn.2d at 618 (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). But "[w]ithout evidence of actual or potential bias, an appearance of fairness claim cannot succeed and is without merit." Post, 118 Wn.2d at 619.
Robertson relies on a District of Columbia case, Gibson v. United States, 792 A.2d 1059 (2002), to support her argument that the judge's description of the rear-end collision he was involved in demonstrates bias in his ruling on the admissibility of the photographs. In Gibson, the court reversed a murder sentence after the judge imposed the maximum sentence because the judge's grandfather was a black man who was murdered by a white man. Gibson, 792 A.2d at 1069. In deciding to impose the maximum, the judge expressed sadness that his grandfather's murderer was never punished and said that a lighter sentence "would be saying to the Etheridge family and to the rest of society who care about people who are killed, that the life of black men is nothing." Gibson, 792 A.2d at 1065.
Here, unlike in Gibson, the decision to admit the photographs was not based on the judge's personal experience. Pretrial, the court granted Robertson's motion to exclude the car repair estimate but reserved ruling on the admissibility of two black and white copies of photographs showing the damage to the car. During the in-chambers conference with the attorneys, the judge described his own experience as a hypothetical example in addressing Robertson's position that evidence showing damage to the car was only relevant in contested liability cases.
As a hypothetical example of a very low impact accident where a defense attorney might want to have a photo admitted, the court related a personal experience where a forward car in a fast food check out line started to pull forward after completing an order and the court took its foot off the brake and rolled forward when the forward vehicle stopped. The impact was virtually imperceptible but the forward driver was still irritated and expressed his displeasure.
But at trial, the court ruled the photographs were admissible because the damage to the car "bore a relationship to the injuries incurred by its occupants" regardless of whether they showed minor or significant vehicle damage. Because the record supports the conclusion that the court's in-chambers discussion did not affect the decision to admit the photographs, we conclude Robertson has not shown bias.
Robertson also points to the in-chambers conversation she overheard to show the judge was biased. But Robertson does not offer any evidence that the in-chambers conversation prejudiced the outcome of the trial. We do not review an issue raised in passing or unsupported by authority or persuasive argument. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
In the alternative, if the decision to admit the photographs was not the result of bias, Robinson argues in the alternative that the court should not have admitted the photographs without expert testimony. To support her argument, Robertson relies on Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995), and a Delaware case, Davis v. Maute, 770 A.2d 36 (2001).
The trial court has broad discretion regarding the admissibility of evidence and will not be reversed absent manifest abuse of discretion. Northington v. Sivo, 102 Wn. App. 545; 8 P.3d 1067 (2000). The admission or rejection of photographs lies in the sound discretion of the trial court. Toftoy v. Ocean Shores Properties, Inc. 71 Wn.2d 833, 431 P.2d 212 (1967). For a photograph to be admissible, a witness must testify that the photograph is an accurate representation of what is depicted, it must be relevant under ER 402, and its probative value must not be outweighed by undue prejudicial effect under ER 403. Hansel v. Ford Motor Co., 3 Wn. App. 151, 473 P.2d 219 (1970); Kelly v. Great Northern R.R. Co., 59 Wn.2d 894, 899, 371 P.2d 528 (1962); State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961).
Robertson does not dispute the photographs accurately depicted the damage to the car she was in.
Robertson asserts that expert testimony was necessary to avoid speculation under 403 about the relationship between the minor vehicle damage and Robertson's injuries. We disagree. It is well established in Washington that photographs of vehicle damage in personal injury actions are relevant and admissible to show the force of impact without expert testimony. Murray v. Mossman, 52 Wn.2d 885, 887, 329 P.2d 1089 (1958).
We reject Robertson's argument that Murray was overruled by the adoption of the Evidence Rules. In addition, Robertson mischaracterizes the holding of State v. Phillips, 66 Wn. App. 679, 833 P.2d 411 (1992). In Phillips, the court held that rules generally supersede previous conflicting case law. But here there is no conflict between court rules and case law.
Contrary to Robertson's characterization of Reese, the court did not hold that expert testimony is necessary to admit photographs. The court held "expert medical testimony on the issue of proximate cause is required in medical malpractice cases." Reese, 128 Wn.2d at 308. And while the Delaware court held that expert testimony is necessary to admit photographs in personal injury suits where liability is admitted, Davis is contrary to our decision in Murray and does not control. Davis appears to be a minority position. At least three other states have explicitly rejected the Davis approach. See, e.g., Brenman v. Demello, 191 N.J. 18, 921 A.2d 1110 (2007); Mason v. Lynch, 388 Md. 37, 878 A.2d 588 (2005); DiCosola v. Bowman, 342 Ill. App. 3d 530; 794 N.E.2d 875 (2003); Baltus v. Von Der Lippe, 293 Minn. 99, 196 N.W.2d 922 (1972).
Robertson also contends she is entitled to a new trial because the ex parte communication between Rock's attorney and the judge prejudiced the outcome of the trial and the court improperly commented on the evidence by rereading the instruction with the additional language to the jury.
Before closing argument and before court was in session, Rock's attorney told the judge that the jury instruction on susceptibility to injury should include the optional language addressing the natural progression of a pre-existing condition. The judge told the attorney that the language was not necessary.
The optional sentence in 6 Washington Practice Pattern Jury Instructions: Civil (WPI) (5th ed. 2005) states: "[t]here 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."
When the judge read the instructions of law to the jury the jurors did not have written copies of the instructions. Part way through the closing argument on behalf of Robertson, the judge suggested breaking early for the lunch recess. After excusing the jury, the judge described what happened and told the attorneys that in order for Rock to argue his theory of the case, the instruction on susceptibility to injury due to a pre-existing condition had to be amended to include the optional WPI language. The court stated that failing to do so would be reversible error. Robertson's attorney also described the earlier conversation about the instruction.
The Court: Let me put on the record real quick what happened. The plaintiffs submitted jury instructions in this case, as did the defense. And I relied — I went off the plaintiff's set because of the formatting. The plaintiff's counsel submitted an instruction which did not contain the last bracketed sentence of that jury instruction . . .
. . .
And it is this court's belief if this goes to trial without this, given the present evidence that has been submitted, it is reversible error.
Rock's Counsel: Your honor, if I may note for the record . . . that I did come in and ask about that this morning — that was the first thing I asked is where is this last sentence?
The Court: True, Counsel, and I mentioned that in chambers. And that's the reason I wanted to clear it up for the record.
You came in, and we weren't on the record, and you said, "Where is the last sentence?" and I said, "Well, we don't need it in this case." And because I said that, you didn't put your exception on the record, when I asked if there were any exceptions.
And that's the reason I felt badly about it because I misled you.
I think you did bring to the court's attention you wanted that last sentence, but it never got on the record. . . .
Over Robertson's objection, the court reread the instruction to the jury with the optional WPI language. Before rereading the instruction, the judge told the jury he made a mistake in reading one of the instructions and apologized for the mistake. The judge also told the jury the printed copies of the jury instructions that they would receive after closing argument would include the correct version of the instruction.
Judges should "neither initiate nor consider ex parte . . . communications" in a pending proceeding. CJC Canon 3(A)(4). Ex parte communication is any contact between counsel and the court when opposing counsel is not present and is "?[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested.'" State v. Watson, 155 Wn.2d 574, 579, 122 P.3d 903 (2005) (quoting Black's Law Dictionary 296 (8 ed. 2004)). When an ex parte communication takes place, the trial judge "generally should disclose the communication to counsel for all parties." Rushen v. Spain, 464 U.S. 114, 119, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983). But an ex parte communication does not constitute grounds for reversal absent a showing of prejudice to the outcome of the trial. Rice v. Janovich, 109 Wn.2d 48, 63, 742 P.2d 1230 (1987).
Robertson relies on Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 813 P.2d 125 (1991), to argue the ex parte communication between Rock's attorney and the judge prejudiced the outcome of the trial. In Buckley, the plaintiff's counsel did not learn about the ex parte communication until a settlement meeting, and the communication was never put on the record. This court held that the ex parte communication between the judge, defendant's counsel, and the plaintiff's guardian ad litem prevented the plaintiff from having a fair hearing because "[a]ny party who, through ex parte communication with the trial court, learns the court's opinion of a reasonable settlement amount, has an obvious and unfair advantage over his or her opponent." Buckley, 61 Wn. App. at 938.
Here, although the judge engaged in an ex parte communication with Rock's attorney, Robertson cannot show prejudice to the outcome of the trial. Unlike in Buckley, the ex parte communication was fully set forth on the record and Robertson's counsel had the opportunity to address whether the court should revise the jury instructions to include the optional WPI language. On this record, Rock was not given an obvious and unfair advantage and Robertson cannot show prejudice.
Relying on Harris v. Groth, 31 Wn. App. 876, 645 P.2d 1104 (1982), Casper v. Estep Enterprises, Inc., 119 Wn. App. 759, 82 P.3d 1223 (2004), and State v. Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006), Robertson also argues that the judge impermissibly commented on the evidence by rereading the jury instruction with the optional WPI language. Article IV, section 16 of the Washington Constitution provides: "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." An impermissible comment on the evidence is one which has the effect of conveying to the jury a judge's personal opinion regarding the merits of the case. Casper, 119 Wn. App. at 770-71. "An instruction which does no more than accurately state the law pertaining to an issue in the case does not constitute an impermissible comment on the evidence by a trial judge under article 4, section 16." Tincani v. Inland Empire Zoological Soc., 66 Wn. App. 852, 861, 837 P.2d 640 (1992)( aff'd in part, reversed in part on other grounds, 124 Wn.2d 121, 875 P.2d 621 (1994).)
Unlike in the cases Robertson cites, the optional WPI language the court included in the instruction accurately states the law. In Harris, this court held that the trial court properly refused to give proposed jury instructions because it would have elevated the status of the plaintiff's expert and could constitute an improper comment on the evidence. Harris, 31 Wn. App. at 881-882. In Casper, this court concluded that the trial court's comments during the examination of a witness likely conveyed the judge's attitude toward the witness's credibility. Casper, 119 Wn. App. at 771. In Jackman, the court held that by stating the victim's birth dates in the jury instruction, the court impermissibly commented on the evidence by conveying the impression that an element of the crime had been proven. Jackman, 156 Wn.2d at 744. And as the trial court stated in its decision and order:
To the extent that the method used to correct the court's mistake constituted error, it does not seem to have affected the verdict. By awarding the plaintiff the cost of the surgery, the jury does not seem to have been swayed by the defense argument that the surgery would have occurred because of the underlying shoulder condition even without the accident.
Finally, Robertson argues that under CR 59(a)(5), the jury award was so inadequate that it was clearly the result of prejudice. The denial of a motion for a new trial for an inadequate jury award is peculiarly within the discretion of the trial court, and a denial will not be disturbed absent a manifest abuse of discretion. Wooldridge v. Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 (1981)("If the damages are within the range of evidence they will not be found to have been motivated by passion or prejudice.").
The jury awarded Robertson all of her medical expenses and $2,500 in general damages. As to the general damages, Robertson's spouse testified that Robertson has always been a happy person and he did not notice a difference in Robertson's attitude or how happy she was after the accident. The only difference was that she was less self-reliant after the accident. Robertson's spouse also testified that the accident did not alter his personal relationship with her. Because the jury award was within the range of evidence, we conclude the trial court did not abuse its discretion in denying her motion for a new trial on the grounds of an inadequate jury award.
We affirm