Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-07931-1. Judgment or order under review. Date filed: 02/13/2003. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Marilee C. Erickson Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Scott Channing Wakefield, Todd Wakefield 1501 4th Ave Ste 1700, Seattle, WA 98101-3660.
Counsel for Respondent(s), Bernie Willard Potter, Attorney at Law, 1601 5th Ave Ste 1300, Seattle, WA 98101-3601.
Douglas Edward Wilson, Attorney at Law 1601 5th Ave Ste 1300, Seattle, WA 98101-3601.
Kimberly Lindbergh argues that she is entitled to a new trial for four reasons. First, she claims that the plaintiff's expert witness gave improper testimony that prejudiced the jury. Second, she argues that the trial court impermissibly commented on the evidence in sustaining an objection, by describing Lindbergh's argument as inappropriate. Third, Lindbergh contends that the trial court's decision to limit her cross-examination of the plaintiff's personal life was prejudicial error. Fourth, she claims that the trial court's admission of chiropractic testimony was prejudicial error. We affirm.
In May 1999, Ronald Langston, an elementary school teacher, went to a friend's birthday party. At about midnight he left the party, got onto Interstate 90 (I-90) east and headed for his home in West Seattle. Kimberly Lindbergh was also traveling on I-90 east at this time. At some point Lindbergh made a u-turn and began traveling west into oncoming interstate traffic. She and Langston were both traveling at approximately 60 mph. when their cars collided. Neither braked before impact.
Langston was severely injured in the crash. The floorboard, dash, and steering column of his car were driven back into the driver's compartment and pinned him to his seat. He had a laceration behind his left ear that went down to the bone, another through his lip, and one on his knee that required surgery to close. Langston also broke two vertebrae, had blood in his urine and suffered a traumatic brain injury. Rescuers were unable to reach Langston to give him pain medication during the time they worked to mechanically extract him from his car.
Langston initially had significant cognitive problems. He did not know where or who he was or even what time period he was in. When someone told him he had been in an accident he thought that he had hit one of the children he used to teach. When he was told he was in Bellevue he feared that he had injured his son.
Langston has experienced some limited recovery since the accident. For example, with the assistance of a substitute teacher and therapists he has returned to teaching. Nonetheless, Langston's principal testified that where Langston was a good teacher before the accident, his lessons since then had become `limited,' `rote,' and `scripted' and failed to challenge his students. Initially the school returned Langston to teaching the third grade, but later moved him to teaching kindergarten.
Because Lindbergh admitted fault the only issues at trial were the extent of Langston's injuries and damages. Lindbergh attempted to bring in information about Langston's past, presumably in an effort to show that many of Langston's problems stemmed from sources other than the accident. Specifically, she sought to introduce evidence that Langston had impregnated a woman who he was seeing at the same time as his current girlfriend, Connie Espinoza. She also sought to introduce evidence of possible child abuse, childhood fights, expulsion from grade school, arrest as a teenager, and that he was fired from a job. The trial court did not permit Lindbergh to question Langston on any of these issues.
Prior to trial Langston informed the court that he wanted to introduce evidence that his head injury increased his risk of developing Alzheimer's disease. The trial court asked for additional briefing on the Alzheimer's disease issue, but does not appear to have made a ruling on it before trial.
At trial Langston's neurologist testified about what Langston had to expect in his future. Although he was not prompted to do so, Langston's neurologist twice mentioned Alzheimer's disease as a potential issue Langston would face later in life as a result of his brain injuries. Lindbergh did not immediately object to the neurologists comments. But, she did request a mistrial at the first recess following the comments. The trial court rejected Lindbergh's request and orally instructed the jury to disregard the remarks about Alzheimer's disease. The trial court later gave a written instruction to the jury that stated no damages could be based on the Alzheimer's disease issue.
In her closing argument Lindbergh suggested that the neurologist's statements forced the trial court to intervene against Langston. Langston objected and the trial court sustained his objection. In sustaining Langston's objection the trial court stated that Lindbergh's comments were `not really appropriate.' Langston also successfully objected when Lindbergh began to speculate about what he would do with an award. Langston's chiropractor testified at trial over Lindbergh's objection, despite the fact that he was not disclosed as a trial witness. Lindbergh knew the chiropractor had treated Langston and had obtained and reviewed all of his treatment records. She did not request an extension to prepare for the chiropractor's testimony.
The jury awarded Langston approximately four million dollars in damages. Lindbergh moved for a new trial and remittitur. The trial court denied her request for a new trial but did reduce the award to approximately two million dollars. Lindbergh appeals.
ANALYSIS I. Standard of Review
We review a trial court's denial of a motion for mistrial for an abuse of discretion. Kimball v. Otis Elevator Co., 89 Wn. App. 169, 178, 947 P.2d 1275 (1997); State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). `Trial courts have broad discretionary powers in conducting a trial and dealing with irregularities that arise.' Kimball, 89 Wn. App. at 178; Johnson, 124 Wn.2d at 76; State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979). A trial court should only grant a mistrial `when nothing the court can say or do would remedy the harm caused by the irregularity[,] or . . . when the harmed party has been so prejudiced that only a new trial can remedy the error.' Kimball, 89 Wn. App. at 178; Gilcrist, 91 Wn.2d at 612. We consider the effect of an irregularity by looking at `whether (1) it was serious, (2) it involved cumulative evidence, and (3) the trial court properly instructed the jury to disregard it.' Kimball, 89 Wn. App. at 178; Johnson, 124 Wn.2d at 76.
We review a trial court's decision to grant or deny a motion to exclude certain evidence for an abuse of discretion. `A trial court abuses its discretion when the ruling is manifestly unreasonable or based on untenable grounds.' Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992).II. Expert Testimony on Alzheimer's Disease Lindbergh requested a mistrial based on the testimony of Langston's neurologist that Langston was more likely to develop Alzheimer's disease later in life as a result of the accident.
The trial court rejected her request and instead gave an oral curative instruction. At the close of both parties' arguments the trial court gave a written instruction directing the jury not to award any damages based on Alzheimer's disease. The jury is presumed to follow an instruction to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994) (citation omitted). Here, the neurologist twice mentioned an increased likelihood that Langston would develop Alzheimer's disease. The question is whether, notwithstanding the curative instruction, these two references, when viewed against the background of all of the evidence, so prejudiced Lindbergh that she was denied a fair trial. State v. Weber, 99 Wn.2d 158, 164-165, 659 P.2d 1102 (1983); State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987).
Lindbergh cites Storey v. Storey, 21 Wn. App. 370, 585 P.2d 183 (1978) for the proposition that the trial court's curative instruction was insufficient to undo the damage done by the neurologist's two references. But Storey is distinguishable. In Storey the plaintiff's asserted that the defendant had `volunteered 35 unresponsive and prejudicial statements in the course of giving testimony which covers 47 pages in the record.' Storey, 21 Wn. App. at 374. The court noted that its `own reading of the defendant's testimony disclosed 27 times (by conservative count) wherein the trial court ordered defendant's answers stricken or admonished her to be responsive to the questions asked.' Storey, 21 Wn. App. at 374. The Storey trial court gave curative instructions. When the jury returned a verdict for the defendants, plaintiff's made a motion for a new trial. The court found that the prejudice created by the defendant's answers was incurable and granted a new trial. Storey, 21 Wn. App. at 375. The Court of Appeals affirmed. The presumption that a jury followed curative instructions is inapplicable when the court finds as a fact that the prejudice is incurable. Storey, 21 Wn. App. at 375.
In contrast, the trial court here not only verbally admonished the jury to disregard the statements, but also gave a written instruction to the jury to disregard the statements and not to award any damages based on the Alzheimer's testimony. Where the trial court in Storey had to address at least 35 unresponsive and prejudicial statements, here there were only two. Storey, 21 Wn. App. at 374. Most importantly, here, the trial court did not make a finding of incurable prejudice. The presumption that the jury followed the court's instruction is applicable. Even assuming that the Alzheimer's disease comments were serious and not cumulative, we cannot conclude that a mistrial should have been granted on the basis of these statements. The trial court did an exemplary job in addressing this issue. There is no evidence to suggest that any prejudice resulting from the neurologist's statements was not adequately addressed by the trial court's curative instructions.
III. Lindbergh's Closing Argument
Lindbergh argues that the trial court made comments that impugned the integrity of her counsel and thereby commented on the evidence. Article 4, sec.16 of the Washington State Constitution prohibits judges from commenting on evidence. `To fall within the constitutional ban of a comment on the evidence, a judge's statement must suggest his or her personal opinion or view as to credibility, weight or sufficiency of the evidence.' State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999). `[A] statement by the court will constitute a comment on the evidence only if the court's attitude toward the merits of the case or the court's evaluation relative to a disputed issue is inferable from the statement.' State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706 (1986). An instruction by the court to disregard any instance in which she may have commented on the evidence is generally sufficient to cure any prejudice. Hizey, 119 Wn.2d at 271.
Lindbergh relies on Balandzich v. Demeroto, 10 Wn. App. 718, 519 P.2d 994 (1974) for her claim that the trial court commented on the evidence and impugned the integrity of her counsel. The plaintiffs in Balandzich contended that the trial court improperly commented on the evidence during an exchange in which it demanded an expert witness bring in all of his files, not just the ones that supported the side for which he worked:
THE COURT: Have someone go up and proceed with these and admit them under those conditions so we don't lose any more time. Get the rest of the file here. Go up and get the entire file. I don't want to try this case but I can't stay here all year.
THE WITNESS: They won't give them to anybody unless I authorize them.
MR. MURRAY: Dr. Loughlen, it is all right with me.
THE COURT: Use the telephone in here and let's get moving. Tell them to deliver them to you so we can get going because that is the rule you have to have the entire file, not what is favorable to you and leave the rest of it out.
MR. SANDERS: Well, I am not implying that. I don't think it is fair to say that in front of the jury.
THE COURT: No, it isn't. I want you to disregard that, but the rule is you've got to have the entire file. He is entitled to have the entire file. When you take part of it out we are losing time.
Balandzich,10 Wn. App. at 724. In Balandzich, this court held that the trial court's statements did not `constitute an unlawful comment' on the evidence. Balandzich,10 Wn. App. at 724. Additionally, we held that even assuming for the sake of argument that the remarks did constitute an unlawful comment, that they were sufficiently cured by the court's instruction to disregard. Balandzich,10 Wn. App. at 724-725.
Lindbergh's counsel stated in closing argument that the trial court `had to intervene' in the Alzheimer's disease issue. Langston's counsel objected. The trial court sustained Langston's objection and stated:
Mr. Wakefield, I don't think it would be appropriate to say that the Judge intervened. There is an instruction that the jury is bound to follow, but, I wouldn't think — it's not really appropriate to suggest that I somehow had to intervene in what the plaintiff's attorney was doing.
Lindbergh does not contend that the trial court incorrectly sustained Langston's objection. She only claims that in sustaining it the trial court improperly commented on the evidence and impugned the integrity of her counsel. Lindbergh's argument fails.
It is true that if statements by the court addressed to counsel in the presence of the jury are made in such a way or under such circumstances as to indicate to the jury the court's opinion concerning the truth or falsity of evidence given, or lack of confidence in the integrity of the witness, [Washington State] Const. art. 4 sec. 16 will be violated. Similarly, if the court's comments [when] fairly construed reflect on the integrity of counsel, the same result should follow.
Balandzich, 10 Wn. App. at 725. (citations omitted). But, the trial court's statements here merely explained the rationale behind sustaining the objection. The trial court's statements here appear less prejudicial than the ones offered in Balandzich. We cannot conclude that they amount to an unlawful comment on the evidence. Also, even assuming for the sake of argument that these comments could be construed as prejudicial, any prejudice would presumptively be cured by the trial court's curative instruction. See Balandzich, 10 Wn. App. at 724-725.
Langston also objected when Lindbergh's counsel began to speculate about what Langston would do with any money awarded to him. The trial court sustained the objection. Nonetheless, Lindbergh's counsel continued to speculate. Langston's counsel again objected, stating that `the court has already instructed [opposing counsel] on this issue, and he continues to go into it' to which the trial court responded `I think it is inappropriate.' Lindbergh's counsel then stopped speculating. Based on the discussion above we decline to hold that the trial court's statements here were prejudicial. Additionally, even if the trial court's statements were prejudicial they were cured by the instructions given to the jury.
IV. The Trial Court's Decision to Exclude Evidence
Lindbergh contends that she was denied a fair trial because the trial court did not permit her to cross-examine Langston about certain aspects of his relationship with Espinoza. Lindbergh does not contend that the trial court failed to apply the probative versus prejudicial balancing test, just that it failed to reach the correct result. We review a trial court's decision to grant or deny a motion to exclude certain evidence for an abuse of discretion. Hizey, 119 Wn.2d at 268. `It is within the trial court's discretion to exclude evidence, the probative value of which is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, [or] misleading the jury.' ER 403; Hizey, 119 Wn.2d at 268. Here, the trial court ruled that Lindbergh could not refer to a domestic incident between Langston and Espinoza as domestic violence nor attempt to bring forth evidence that he had impregnated another woman while seeing Espinoza. The trial court also rejected Lindbergh's attempt to introduce evidence of possible child abuse, childhood fights, expulsion from ninth grade, arrest as a teenager, and that he was fired from a job. Lindbergh argues that these matters are relevant to Langston's psychological profile. She contends that the trial court's error here is `demonstrated by the jury's admittedly excessive verdict.' She offers no analysis to conclude the probative value of the evidence excluded substantially outweighed the dangers of unfair prejudice, confusion of the issues, or misleading the jury. She has not demonstrated that the trial court abused its discretion. Lindbergh's contends that the verdict, before reduction by the judge, was excessive. This is not sufficient standing alone to establish an abuse of discretion on the part of the trial court on this issue.
V. The Chiropractor's Testimony
Langston failed to list the treating chiropractor on the mandatory witness list. Lindbergh claims that she was deprived of her ability to properly prepare her defense because Langston did not inform her in a timely manner that his chiropractor would testify. `A trial court has broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion.' Goehle v. Fred Hutchison Cancer Research Cen., 100 Wn. App. 609, 617, 1 P.3d 579 (2000) (quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997)). Lindbergh acknowledges that she knew the chiropractor had treated Langston. She concedes that she had obtained and reviewed all of his treatment records. She does not claim that Langston acted willfully in failing to timely disclose the chiropractor as a testifying expert. She also does not explain why an extension to prepare for the chiropractor's testimony could not have cured any prejudice. She failed to make such a request. This is consistent with being prepared to go on. The trial court's decision was not so prejudicial that Lindbergh felt a continuance was required. Based on this record we cannot conclude that the trial court abused its discretion in permitting the chiropractor to testify, despite Langston's failure to disclose him timely.
KENNEDY, J. GROSSE, J., Concur.