Filed: October 25, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 06-2-15370-7, William L. Downing, J., entered August 14, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Cox and Ellington, JJ.
While driving to work, Kristina Bazley hit a parked car, injuring the occupant, Shole Abuna. Abuna and the owner of the car, Tola Arero, sued Bazley for personal injuries and economic damages. Bazley appeals the trial court's order to exclude the testimony of two defense witnesses and to redact medical records. Bazley also challenges the trial court's decision to grant Arero's motion for an additur or a new trial on damages. Because the trial court did not abuse its discretion by excluding the testimony of the witnesses or redacting the medical records, and the court did not err in granting the motion for an additur or new trial on all damages, we affirm.
In June 2005, Bazley was eight months pregnant. While driving to work in her truck on the morning of June 14, Bazley rear ended a car, and then hit a parked car. Bazley was traveling at over 30 miles per hour when her truck crashed into the parked car. Shole Abuna was sitting in the parked car. The car was demolished and Abuna was injured.
Bazley told the police that before the crash, "she passed out, possibly due to her pregnancy." Bazley told emergency medical technician (EMT) Anthony Hoggart that "she was driving and became hot and dizzy," and that before losing consciousness she was going to pull over. In his report, EMT Hoggart noted "poss: syncope."
Syncope is defined as "a partial or complete temporary suspension of respiration and circulation due to cerebral ischemia and characterized by sudden pallor, coldness of the skin, and partial or complete unconsciousness." Webster's Third New International Dictionary 2319 (1969).
An ambulance transported Bazley to the Swedish Medical Center. Bazley told the medical personnel that before the crash, she felt hot and dizzy, and then lost consciousness. After talking to Bazley, the emergency room doctor noted "? venous LE pooling resulted in syncope," followed by the instruction to follow-up with her OB/GYN "this week!!"
On May 4, 2006, Abuna and the owner of the car, Tola Arero, sued Bazley. Abuna sought damages for the personal injuries he suffered from the collision and for lost wages. Arero requested damages for the loss of his car, the cost of towing and storage, and for lost earnings. In answer to the complaint, Bazley asserted the affirmative defense of sudden illness.
Abuna drove Arero's car for business purposes as a limo or town car for hire.
The First Set of Interrogatories propounded by the plaintiffs asked Bazley to provide the name and address of any doctor who had treated her over the past 10 years; the name, address and telephone number of all witnesses; and the names of expert witnesses, along with a summary of the expert's qualifications and testimony. In response, Bazley identified and provided information for a number of witnesses, including the two police officers who investigated the accident and her OB/GYN, Dr. Schocket. Bazley also identified "ambulance personnel" and "emergency room personnel and physicians at Swedish."
On November 20, 2006, Bazley filed a motion for summary judgment, arguing that she was entitled to dismissal based on the sudden illness doctrine. In her declaration, Bazley stated that she was unconscious and not in control at the time of the accident. Bazley also submitted Dr. Schocket's declaration, which stated that Bazley's loss of consciousness was "unexpected and unforeseen" because blacking out is not a common condition of pregnancy and Bazley exhibited no symptoms of blacking out. The court denied the motion for summary judgment.
A driver who is suddenly stricken by an unforeseen loss of consciousness, and is unable to control the vehicle, is not negligent. Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461, 466, 398 P.2d 14 (1965), amended by 401 P.2d 350 (1965).
In April 2007, the parties engaged in mandatory arbitration. Before the arbitration, Bazley identified Dr. Schocket as a potential medical witness. However, at the arbitration Bazley only introduced her medical records, Dr. Schocket's declaration that was submitted as part of summary judgment, and her own testimony. The arbitrator ruled that Bazley was not liable based on the sudden illness doctrine.
On May 7, Abuna and Arero filed a request for trial de novo. On May 8, the court issued a case scheduling order for the trial de novo. The order scheduled the trial for August 27, set July 9 as the discovery cutoff deadline, and August 6 as the deadline for pretrial exchange of witnesses and exhibits. The order also states that the court shall issue a pretrial order six weeks before the trial date.
The court issued the pretrial order on July 5. The pretrial order sets forth the requirements concerning the identification of witnesses for trial by August 6. The order expressly provides that absent good cause shown, failure to comply with the requirements of King County Local Rule (KCLR) 26 and KCLR 16 for witness disclosures "shall result in the exclusion of the witnesses' testimony at the time of trial."
By stipulation of the parties, the deposition of Dr. Schocket took place after the discovery cut-off date, on August 1. Dr. Schocket testified that she did not have an opinion as to whether the syncope event was related to Bazley's pregnancy. Dr. Schocket testified that she had no expertise in syncope, that she did not know why Bazley became unconscious before the accident, and that she was unaware of any medical theory concerning pregnancy-induced syncope.
On August 3, Bazley filed her pretrial witness and exhibit list. In addition to Dr. Schocket, Bazley identified "EMT Anthony Hoggart" and "[a]ttending emergency room physician from Swedish Medical Center First Hill" as witnesses she anticipated calling at trial. Bazley did not provide phone numbers or addresses for the two new witnesses, nor did she provide a summary of qualifications or testimony.
On August 16, ten days after the deadline to identify witnesses for trial, Bazley filed a "supplemental witness and exhibit list." In the supplemental witness list, Bazley identified Dr. Schocket, EMT Hoggart, and "[a]ttending emergency room physician (believed to be Dr. Goodfried) from Swedish Medical Center First Hill" as likely witnesses. But again, the supplemental witness list did not provide phone numbers, addresses, or a summary of qualifications or testimony for either Dr. Goodfried or EMT Hoggart.
There is no dispute that Bazley also never filed supplemental answers to the plaintiffs' interrogatories identifying EMT Hoggart and the attendingphysician at Swedish.
Abuna and Arero filed a motion in limine to exclude Dr. Goodfried and EMT Hoggart from testifying at trial, arguing that Bazley did not comply with the civil rules and court orders in identifying the witnesses and did not supplement answers to interrogatories. Bazley argued that the plaintiffs had knowledge of the two witnesses because the names were contained in the medical records. However, Bazley conceded that the first time she identified either EMT Hoggart or Dr. Goodfried as a possible witness was on August 3.
The court ruled that Bazley did not comply with the requirements in the pretrial court orders and the court rules. The court also rejected Bazley's argument that she had shown good cause. The court stated:
I am not going to allow . . . Witnesses Goodfried and Hoggard (sic) to testify. I understand that the defense feels that they were disclosed and they were included in medical records, but . . . the court rule does not contemplate that a party needs to comb through medical records to determine what witness is going to be called, it would simply be too expensive and too timely to expect a party to do that.
Bazley asked the court to reconsider, arguing that KCLR 26 did not apply to the case schedule order. The court agreed that the case scheduling order was perhaps ambiguous, but denied Bazley's motion to reconsider because of her failure to comply with the requirements of the pretrial order. The court also found that Bazley failed to comply with the requirement to supplement answers to interrogatories.
The court also granted the plaintiff's motion to redact hearsay references to syncope from the medical records.
At trial, Abuna testified about his injuries and loss of income. Arero testified that his car was worth $12,000, and submitted a receipt to show a towing bill for $195 plus tax and other storage costs. Arero also introduced a number of records in an effort to show lost profits.
Bazley told the jury that she suddenly lost consciousness before the accident. Dr. Schocket testified that she never warned Bazley that she might pass out during her pregnancy. The jury instructions included an instruction on the sudden illness doctrine defense. Bazley relied on testimony at trial and that instruction to argue she was not negligent.
The jury rejected Bazley's sudden illness defense and found her negligent. The jury awarded Abuna $8,218 in damages. But the jury only awarded Arero $195 in damages. The court entered a judgment on the verdict for Abuna.
Arero filed a motion requesting an order of additur to the damages award or a new trial on damages. The court ruled Arero was entitled to an additur of $12,000 for the car, or in the alternative a new trial on the value of the car. On reconsideration, the court ruled that Arero was entitled to the additur or a new trial not only on the value of the car but also on his claim for lost profits, towing costs, and storage costs. In the second trial, the jury awarded Arero $7,500.
Bazley challenges the trial court's decision (1) to exclude the testimony of Dr. Goodfried and EMT Hoggart; (2) to redact portions of the medical records that refer to the possibility of syncope; and (3) to grant Arero's motion for an order of additur to damages or a new trial on damages.
I. Exclusion of Witnesses
Bazley argues the court erred in excluding Dr. Goodfried and EMT Hoggart because she did not comply with the requirements in court orders.
We review a trial court's decision to exclude a witness for an abuse of discretion. Lancaster v. Perry, 127 Wn. App. 826, 830, 113 P.3d 1 (2005). The court abuses its discretion if its decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Lancaster, 127 Wn. App. at 830 (quoting Associated Mortgage Investors v. G. P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558 (1976)).
The case scheduling order required the parties to file witness and exhibit lists by August 6, 2007, in compliance with KCLR 26. The order also states that the court will issue a pretrial order six weeks before the August 27 trial date. The case scheduling order states:
DEADLINE For Discovery Cutoff [ See KCLR 37(g)]: Mon[day] 07/09/2007.
DEADLINE For Exchange Witness Exhibit Lists Documentary Exhibits [ See KCLR 16(a)(4)]: Mon[day] 08/06/2007.
Trial Date [ See KCLR 40]: Mon[day] 08/27/2007.
. . .
a. Except as specifically modified below, all the provisions of King County Local Rules 4 through-26 shall apply to the processing of civil cases before Superior Court Judges.
B. Pretrial Order: An order directing completion of a Joint Confirmation of Trial Readiness Report will be mailed to all parties approximately six (6) weeks before trial. . . .
As to the requirements for disclosure of witnesses, the pretrial order states, in pertinent part:
Witnesses who have been disclosed pursuant to LR 26, and whom counsel and/or pro se parties intend to call at trial, shall be disclosed as by LR 16(a)(4). . . . Failure to adhere to the case schedule or to disclose witnesses, as provided for in LR 26 and LR 16, shall result in the exclusion of the witnesses' testimony at the time of trial, or such other sanctions as the court deems appropriate.
The pretrial order expressly provides that the parties must disclose witnesses in compliance with KCLR 26. KCLR 26 requires a party to identify the witness's name, address, and phone number, along with a brief description of relevant knowledge for lay witnesses or a brief description of qualifications and a summary of opinion for experts. KCLR 26(b)(3), (4) (2007) provides in pertinent part:
(b) Disclosure of Primary Witness. Required Disclosures
(3) Scope of Disclosure: Disclosure of witnesses under this rule shall include the following information:
(A) All Witnesses. Name, address, and phone number.
(B) Lay Witnesses. A brief description of the witness's relevant knowledge.
(C) Experts. A summary of the expert's opinions and the basis therefore and a brief description of the expert's qualifications.
(4) Exclusion of Testimony. Any person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause. . . .
In Lancaster, 127 Wn. App. at 833, the court held that the trial court did not abuse its discretion by excluding a defense witness not disclosed under KCLR 26 and in the absence of good cause. The plaintiff in Lancaster was injured by the defendant in a rear-end automobile accident. The defendant conceded liability, but disputed damages. The defendant stated in both his primary and rebuttal witness disclosures that "[d]efendants will call those healthcare professionals who will conduct a CR 35 Examination of the Plaintiff. This CR 35 Examination has not been scheduled at this time and, accordingly, Defendants cannot identify those professionals who may conduct the examination." Id. at 828-29. However, the defendant did not provide the name, address, phone number, qualifications, and summary of the expert's opinion as required by the local rules and the case scheduling order. Prior to discovery cutoff, the plaintiff moved to exclude the expert witness. The trial court granted the motion to exclude. On appeal, we affirmed on the grounds that the defendant did not meet the minimum requirements of KCLR 26. Lancaster, 127 Wn. App. at 831. "Allowing disclosures to be made in the manner suggested by [the defendant], in the absence of good cause that is not present here, would frustrate the purpose of the scheduling rules." Id. at 833.
Bazley contends that the court did not have the authority to exclude witnesses, that the case scheduling order was ambiguous, and that she complied with the pretrial order. Regardless of any ambiguity in the case scheduling order, there is no dispute that Bazley did not comply with the unambiguous requirement in the pretrial order to identify witnesses as set forth in KCLR 26 and the record does not support a claim of good cause in failure to disclose.
Here, as in Lancaster, the trial court did not abuse its discretion in concluding that Bazley did not comply with the requirements of KCLR 26. Bazley first disclosed EMT Hoggart as potential witnesses on August 3, and did not disclose Dr. Goodfried until August 16. There is no dispute that she did not include phone numbers for either Dr. Goodfried or EMT Hoggart, and did not provide a brief description of their relevant knowledge. Nor did she provide a summary of expert qualifications and opinion. And, as the trial court noted, the medical records do not indicate that Dr. Goodfried or EMT Hoggart would have been able to testify to a reasonable degree of medical certainty. Dr. Goodfried's report ("? venous LE pooling resulting in syncope") and EMT Hoggart's report ("poss: syncope") suggest only possible rather than definitive diagnosis. Nonetheless, the exclusion of Dr. Goodfried and EMT Hoggart did not preclude Bazley from presenting her sudden illness defense at trial.
The record does not establish good cause for failure to comply with KCLR 26. See KCLR 26(b)(4) (2007) ("Any person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause. . . ."). The fact that Dr. Goodfried's and EMT Hoggart's names were in the medical records does not show compliance with the pretrial order and KCLR 26. Dr. Goodfried's name was one of many different names in the medical records, and EMT Hoggart's name was in small and indecipherable handwriting.
There is also no dispute that Bazley failed to supplement her answers to interrogatories. Under CR 26(e)(1):
A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial. . . .
It is undisputed that Bazley never supplemented her answers to interrogatories that requested the identity of any witnesses or expert witnesses. See Stevens v. Gordon, 118 Wn. App. 43, 50-52, 74 P.3d 653 (2003) (upholding a trial court's exclusion of an expert witness not included in answers to interrogatories and only declared as a likely witness six weeks before trial).
II. Redaction of Medical Records
Bazley argues that the trial court abused its discretion in ruling that portions of her medical records were not admissible at trial. Bazley contends that the contents of the documents were admissible under the business records exception to the hearsay rule.
This court reviews evidentiary rulings for abuse of discretion. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn. 2d 568, 642, 90 P.3d 659 (2004). The business records exception does not make irrelevant or speculative statements admissible. Young v. Liddington, 50 Wn. 2d 78, 83, 309 P.2d 761 (1957); see RCW 5.45.020; ER 803(a)(6). Medical expert testimony must be based on a reasonable degree of medical certainty, and cannot be merely speculative. Reese v. Stroh, 128 Wn.2d 300, 309-10, 907 P.2d 282 (1995). The court did not abuse its discretion in excluding statements made by EMT Hoggart and Dr. Goodfried that were clearly not based on reasonable medical certainty.
III. Decision to Grant the Motion for an Additur or a New Trial
Bazley argues that the trial court erred in granting Arero's motion for an additur or new trial on damages. Bazley contends that the only documentary evidence that supported an award of damages for Arero's car was the $195 receipt for towing introduced into evidence. Bazley argues the jury was entitled to ignore Arero's testimony as to the value of his car because Bazley impeached his testimony on cross examination.
Under RCW 4.76.030, a trial court has the authority to award an additur:
If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or may enter an order providing for a new trial unless the party adversely affected shall consent to a reduction or increase of such verdict . . .
[T]he court of appeals or the supreme court shall, without the necessity of a formal cross-appeal, review de novo the action of the trial court in requiring such reduction or increase, and there shall be a presumption that the amount of damages awarded by the verdict of the jury was correct and such amount shall prevail, unless the court of appeals or the supreme court shall find from the record that the damages awarded in such verdict by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.
Under the statute, in order to justify an award of an additur, "the verdict on its face must be so inadequate as to unmistakably indicate the amount was the result of passion or prejudice." Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 161, 776 P.2d 676 (1989). In making that determination, the court must "accept as established those items of damage which are conceded, undisputed, and beyond legitimate controversy." Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 636, 865 P.2d 527 (1993).
Here, neither cross examination nor impeachment show that the car was only worth $195. The uncontroverted evidence showed that the car was in working order before the accident. Arero testified that the car was worth $12,000. But in cross examination, Bazley pointed to his interrogatory response in which he claimed the car was only worth $6,885. Because the jury's verdict contradicted the undisputed evidence that the car was worth far more than $195 and the jury verdict was so inadequate on its face, the court did not err in granting a motion for an additur or a new trial. Robinson, 113 Wn.2d at 161-2; Krivanek, 72 Wn. App. at 637.
There is no credible evidence in the record that would support the jury's conclusion that the car did not belong to Arero.
We also reject Bazley's argument that the trial court erred in ordering a new trial on all of Arero's damages. In Krivanek, we held that a jury award for the loss of a pension was not within the range of evidence, but we remanded for a new trial on all damages, including lost wages and the value of home services. Krivanek, 72 Wn. App. at 637. The trial court did not err in ordering a new trial for damages not only related to the value of Arero's car, but also for lost profits and towing costs.
Because Bazley's appeal is not frivolous, we reject Abuna's request under RAP 18.9(a) for attorney fees.