January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 01-2-16429-5, William L. Downing, J., entered February 27, 2006.
Affirmed by unpublished per curiam opinion.
Christian Joubert sued Dr. Sassan Sanai and others after his 78-year-old father with lung cancer died. A jury returned a verdict in favor of Dr. Sanai. Joubert seeks review of the trial court's subsequent order denying his CR 60(b) motion to vacate. But because a CR 60(b) motion to vacate does not encompass the underlying final judgment or other distinct and separate orders, the trial court did not abuse its discretion in denying his motion to vacate. We affirm.
In June 1998, Jack Joubert died from pneumonia as a consequence of his lung cancer. Approximately three years later, his widow, Maria Joubert, and his son Christian Joubert, acting pro se, sued Northwest Hospital and four of its physicians, including his internist, Dr. Sassan Sanai, for wrongful death and negligence. After Maria Joubert dismissed her claims, Christian Joubert was eventually appointed as the personal representative of his father's estate for the purpose of maintaining the wrongful death action.
Thereafter, Dr. Sanai moved for summary dismissal of the lawsuit. The trial court continued Dr. Sanai's motion for summary judgment three times to allow Joubert the opportunity to obtain expert testimony necessary to support his negligence claims. On October 7, 2004, the trial court denied Dr. Sanai's motion for summary judgment based on the proffered testimony of a retired out-of-state doctor who testified that he was familiar with the applicable standard of care and that the delay in diagnosis and treatment violated the standard of care. But in the order denying Dr. Sanai's summary judgment motion, the court reiterated that the provisions of the July 30, 2004 order remained in effect and Joubert would not be allowed to either add new expert witnesses or testify as an expert.
A jury trial took place from November 1 to November 8, 2004. The parties presented evidence and expert testimony to the jury. On November 8, the jury returned a verdict in favor of Dr. Sanai.
On November 22, 2004, the court entered a judgment on the verdict dismissing all claims. In a separate order, the trial court addressed Joubert's objections to entry of the judgment on the verdict.
The issues between the parties have been fully litigated and, therefore, a dismissal with prejudice is appropriate. The doctrine of res judicata now bars any relitigating or rearguing of the matters in dispute. In the eyes of the law (and perhaps in other ways as well), it is time to move on.
. . . All pertinent facts (and then some) were brought out and fully explored. The primary purpose of any trial, of course, is to get at the truth and to arrive at a just result but there are also subsidiary purposes. Many trials also serve the goals of catharsis and education. This case took awhile to get there but reached a just result, taking a path to that end that should have delivered cathartic and educational benefits along the way.
The family of the deceased Jack Joubert naturally had questions about where his cancer came from, when it began and how his treatment might have been administered differently both before and after his cancer diagnosis. As previously stated by the court, the primary focus at this particular trial had to remain on the role played by the treating internist, Dr. Sanai, at the time of the treatment he administered. This trial was not about what the radiologist Dr. Wirtala did or did not see when he looked at Mr. Joubert's CT scan. Nor was it about what someone else might have seen on that CT scan or, on those done a year later. Rather, this trial was primarily about what Dr. Sanai saw when he looked at the written report authored by Dr. Wirtala.
Looking at that report, considering its precise language, relying on his own personal experience and in consultation with his patient, Dr. Sanai determined a course of treatment. No doubt he now, like the rest of us, wishes the cancer diagnosis had been made sooner, that the outcome had been better and that his friend Jack Joubert were still gathering mushrooms and making goat cheese. But that does not equate with negligence. The jury returned the only verdict it could have: that Dr. Sanai's treatment was within the standard of care for a reasonably prudent internist in Washington at the time and under all of the circumstances confronting him.
On December 2, 2004, Joubert filed a CR 59 motion entitled "Motion to Vacate Verdict and-or Motion for a New Trial, Reconsideration and Amendment of Verdict — Judgment (CR 59)." In the motion, Joubert argued: (1) that the verdict was contrary to the overwhelming weight of the evidence; (2) that there was newly discovered evidence that Dr. Sanai perjured himself; (3) that Dr. Sanai obstructed discovery; (4) that Dr. Sanai was not qualified to treat lung problems like the one Joubert's father had in 1997; (5) that he was denied a fair trial when questioned about the way he fed carrot juice to his father in the hospital; (6) the jury should have been instructed on the doctrine of informed consent; (7) that Joubert's mother's broken arm adversely affected her trial testimony; and (8) that Jack Joubert's "medical diary" should have been admitted into evidence.
On December 21, 2004, Joubert filed a notice of appeal from the judgment on the verdict that was entered on November 22. On the same day, the court entered an "Order Denying [Joubert's] Motion for JNOV or New Trial."
With full knowledge that its effects were likely futile but with good intentions nonetheless, the Court tried to write the final chapter in this saga with its Order on Motion for Entry of Judgment of November 22, 2004. In that Order, the Court noted: `The doctrine of res judicata now bars any relitigating or rearguing of the matters in dispute. In the eyes of the law (and perhaps in other ways as well), it is time to move on.' Consistent with the observations made in the course of that ruling, the Court will now, as it must, address the issues raised by the plaintiff in the additional 140 or so pages he has submitted in connection with motions for judgment notwithstanding the verdict or, alternatively, for a new trial.
The verdict returned by the jury in this case was fully consistent with the evidence that was presented at trial. This Court adheres to the view that its discretionary rulings at trial were correct and that the jury had a proper evidentiary basis upon which to base its decisions.
The case was properly submitted to the jury on a theory of negligence. The claim of a failure to timely diagnose a cancer does not implicate informed consent issues. The evidence did not support submission of that separate theory to the jury.
The evidentiary ruling excluding admission into evidence of the decedent's `medical diary' was a proper application of the hearsay rule. The declarant Jack Joubert was not available to give sworn testimony as to what was written, why it was written and how it should be interpreted. As the Court noted at the time, the pre-election comments of Chief Justice Rehnquist about the state of his own cancer prognosis (disputed by his doctors) provided a timely example of how different motivations can color such unsworn, out-of-court statements.
Some discovery irregularities occur in every case and this case was no exception. However, the Court cannot find either that they are attributable to the defendant or that they taint the result of the trial.
The information concerning Dr. Sanai's involvement in unrelated litigation would not have been admissible in evidence (see ER 401, 402, 403, and 404) and cannot now be treated as newly discovered evidence that could not previously have been discovered.
On December 22, 2004, Joubert filed another notice of appeal from the order denying his post-trial motions and entry of the judgment on the verdict. This court consolidated this appeal with the December 21 appeal from entry of the judgment. Because Joubert failed to file the record necessary, his consolidated appeal was dismissed. The mandate was issued on July 28, 2006.
On December 20, 2005, Joubert also filed a motion in superior court to vacate the December 21, 2004 order denying his motion for judgment notwithstanding the verdict or new trial; "Motion Vacating and-or for a Relief from the Decembers [sic] 20, 2004th [sic] Order Denying JNOV and New Trial (CR 60 (b and e) with an Accompanied Motion to File a New Trial Date (LR 60). In the motion to vacate, Joubert argued the order denying his motion for JNOV or new trial should be vacated under CR 60(b) because substantial evidence did not support the jury's verdict challenging trial testimony, evidentiary rulings, jury instructions, and alleged misconduct. In addition, Joubert filed a "Motion on Amendment 14 Non Equal Application of the Laws Regarding State Assistance Discrimination Between Civil and Criminal Indigents." On February 27, 2006, the trial court denied both motions.
In this appeal, Joubert challenges the trial court's denial of his CR 60(b) motion to vacate the December 21, 2004 order denying his motion for JNOV or new trial. But CR 60(b) is not a substitute for an appeal. Bjurstrom v. Campbell, 27 Wn. App. 449, 452, 618 P.2d 533 (1980). "An appeal from denial of a CR 60(b) motion is limited to the propriety of the denial not the impropriety of the underlying judgment." Bjurstrom, 27 Wn. App. at 450-51. We review the denial of a motion to vacate for an abuse of discretion. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 (1979). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 131, 896 P.2d 66 (1995). Because Joubert could have or should have raised the claimed errors in his consolidated appeal, the trial court decision denying the motion to vacate was not an abuse of discretion.
Joubert also claims that a mandate was "wrongly" issued. But Joubert has not identified any legal authority or presented any meaningful legal argument to support the contention that he can use this appeal to recall the mandate in an entirely different case.
Joubert also argues that civil indigent litigants should be afforded the same financial opportunities as criminal indigents. While we recognize the practical and financial difficulties an indigent litigant in a civil case may experience, our supreme court recently ruled that "the decision to publicly fund actions other than those that are constitutionally mandated falls to the legislature. Outside of that scenario, it is not for the judiciary to weigh competing claims to public resources." Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); In re Marriage of King, 2007 WL 4259926, Wash. (2007). There is no error.