No. 21015-4-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: October 14, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Columbia County Docket No: 00-2-00051-0 Judgment or order under review Date filed: 03/08/2002
Counsel for Appellant(s), Geoffrey D. Swindler, Andrews Swindler PS, 1212 N Washington St. Ste 204, Spokane, WA 99201-2405.
Counsel for Respondent(s), Peter B Brekhus, Attorney at Law, 1000 Drakes Landing Road, Greenbrae, CA 94904.
W Conrad Hoskins, Attorney at Law, 550 N Touchet Rd, Dayton, WA 99328-8760.
BROWN, C.J.
A jury awarded Jana Eaton personal injury damages caused by an employee of Tumac Machinery, Inc. (Tumac). On appeal, Tumac mainly challenges the sufficiency of the future economic damage evidence, contending the trial court erred in admitting the treating doctor’s future damage testimony because it was speculative. Further, Tumac contends the trial court erred in allowing prejudgment interest on stipulated economic damages and awarding certain deposition costs in the entirety without pro rating between used and unused portions. Because the doctor gave relevant testimony within his area of expertise, and the costs awarded are within the range of evidence, we reject Tumac’s evidence contentions. However, we agree with the prejudgment interest and deposition cost contentions. Accordingly, we affirm in part, and reverse in part.
FACTS
In September 2000, Ms. Eaton, her husband, and two of their children, Alex and Samantha, filed a personal injury complaint in the Columbia County Superior Court against Todd Gallaway and his employer Tumac. The complaint arose from a collision between Tumac’s vehicle, driven by Mr. Gallaway, and Ms. Eaton’s vehicle.
A videotaped deposition of one treating physician, Dr. Richard Donati, was shown to the jury. The trial court considered and rejected Tumac’s objections related to Dr. Donati’s future medical care and expense opinions.
The jury found for the Eatons, with Ms. Eaton recovering $39,761.62 past economic damages, $45,000 in non-economic damages, and $183,186.62 in future economic damages. Over Tumac’s objection, the Eatons submitted a cost bill for deposition costs related to little-used depositions. Further, Tumac objected to prejudgment interest for stipulated medical bills and the future damages award. After the trial court entered judgment, which included some of the disputed deposition costs and prejudgment interest, Tumac filed this appeal.
ANALYSIS
A. Future Treatment Evidence
The issue is whether the trial court erred by admitting Dr. Donati’s expert medical opinions regarding the need and cost of future medical treatment for Ms. Eaton over Tumac’s objection that they were speculative.
An appellate court reviews a trial court’s decision to admit evidence for abuse of discretion. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765
(2003). `A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds.’ Id. (citing State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)). Stated another way, a trial court abuses its discretion if it can be said no reasonable person would have adopted the trial court’s decision. State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). In determining whether the trial court abused its discretion on an evidentiary ruling, the appellate court considers whether the trial court properly applied the rules of evidence or other applicable standards. See C.J., 148 Wn.2d at 686 (reasoning trial court followed applicable statute and case law in determining competency of witness); Atsbeha, 142 Wn.2d at 917
(discussing trial court ruling in light of applicable evidence rules).
The evidence rules allow qualified experts in the concerned field of study to `testify thereto in the form of an opinion or otherwise.’ ER 702. The expert may rely on firsthand information or information from another source credible in the concerned field of expertise. ER 703. An expert’s admissible opinion `is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.’ ER 704.
Here we consider the level of proof needed for a medical expert to testify about the plaintiff’s need and costs of future medical treatment. Tumac contends a high evidentiary standard applies, generally reasonable medical certainty, or more likely than not, and cites cases it argues support that theory. See, e.g., Reese v. Stroh, 128 Wn.2d 300, 309, 907 P.2d 282 (1995); O’Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823
(1968); Miller v. Staton, 58 Wn.2d 879, 886, 365 P.2d 333 (1961); Carlos v. Cain, 4 Wn. App. 475, 477, 481 P.2d 945 (1971). These cases mainly discuss the evidentiary standard for expert medical testimony as to causation, not future medical treatment.
Relevant to future medical treatment, Tumac cites Venske v. Johnson-Lieber Co., 47 Wn.2d 511, 515, 288 P.2d 249 (1955). The Venske court reasoned future medical expenses `must be proved with reasonable certainty.’ Id. (citing Taylor v. Lubetich, 2 Wn.2d 6, 10, 97 P.2d 142
(1939)). Taylor stated an injured plaintiff `was entitled to recover for such future pain and suffering as was reasonably certain to result from the injury, and expenses for such future medical attention which it was reasonably certain he would incur in the future.’ Taylor, 2 Wn.2d at 10
(citing Auerbach v. Webb, 170 Wn. 567, 570, 17 P.2d 1 (1932); Lieske v. Natsuhara, 165 Wn. 270, 273, 5 P.2d 307 (1931); Ongaro v. Twohy, 49 Wn. 93, 96, 94 P. 916 (1908); Webster v. Seattle, R. S. Ry. Co., 42 Wn. 364, 365, 85 P. 2 (1906)).
In another early case, the Supreme Court articulated a reasonable certainty standard for proving future consequences of present physical injuries. Gifford v. Wash. Water Power Co., 85 Wn. 341, 344-45, 148 P. 11
(1915). Not long after, the Supreme Court reasoned no material difference existed between the terms `reasonable certainty’ and `reasonable probability’; they are analogous to the preponderance of evidence standard. Holt v. Sch. Dist. No. 71 of King County, 102 Wn. 442, 449-51, 173 P. 335 (1918). Five decades later, the Supreme Court characterized Holt and Gifford as establishing a reasonable probability test for establishing future conditions arising from an accident. Coffman v. McFadden, 68 Wn.2d 954, 961, 416 P.2d 99 (1966). It appears Washington courts have treated the `reasonable certainty’ and `reasonable probability’ standards as equivalents. Id.
An astute commentator undertook a detailed study of the origins and evolution of the phrase `reasonable medical certainty,’ an `oxymoronic phrase’ devoid of `a definite and ascertainable meaning.’ Jeff L. Lewin, The Genisis and Evolution of Legal Uncertainty About `Reasonable Medical Certainty,’ 57 Md. L. Rev. 380, 381, 385 (1998). Professor Lewin points out the phrase `reasonable medical certainty’ is problematic because of the lack of consensus as to what it means. Id. at 400-01. In the legal context, each jurisdiction fashioned its own definition in accordance with `existing rules concerning admissibility of evidence and sufficiency of proof.’ Id. at 478.
According to Professor Lewin, the phrase `reasonable medical certainty’ first appeared in Washington in the workers’ compensation case of Halder v. Department of Labor Industries, 268 P.2d 1020, 1023-24 (1954); Lewin, 57 Md. L. Rev. at 438 n. 248, 449. Professor Lewin reasons, although the Halder court endorsed the use of the phrase in medical expert testimony, the court `did not rule on the necessity of this expression, either to establish a prima facie case or for purposes of admissibility.’ Id. at 450.
Consistent with Professor Lewin’s assessment, we could find no recorded Washington case specifically holding the phrase `reasonable medical certainty’ or similar magical phrases are necessary predicate utterances to the admissibility of expert medical testimony. Rather, the terms appear to bear on the level of relevance to be admissible. In Washington, `reasonable certainty,’ `reasonable medical certainty,’ and `reasonable probability’ are equivalent to a preponderance of the evidence. Holt, 102 Wash. at 449-50.
`The general rule is that one may recover for future medical expenses reasonably certain to be incurred.’ Erdman v. Lower Yakima Valley B.P.O.E. Lodge No. 2112, 41 Wn. App. 197, 208, 704 P.2d 150 (1985). Initially, the plaintiff must produce evidence indicating the need for continued or future care arising from the injury. Id.; Leak v. United States Rubber Co., 9 Wn. App. 98, 103, 511 P.2d 88 (1973); Webster, 42 Wash. at 365. To be admissible, the medical expert needs to produce testimony to some level of probability, something more than mere conjecture or speculation, that the plaintiff will require treatment. Notably, medical doctors are considered experts, competent to give medical testimony in the entire medical field, including matters pertaining to their profession. Kelly v. Carroll, 36 Wn.2d 482, 491, 219 P.2d 79, cert. denied, 340 U.S. 892 (1950). Here, Dr. Donati clearly stated Ms. Eaton’s condition was consistent with automobile accident injuries, and observed Ms. Eaton was not getting normal use of her leg because of her injuries. His examination indicated a continuing abnormality in her knee. He also found bone abnormalities that likely aggravated her condition. He then discussed treatment options with Ms. Eaton. Surgery confirmed some damage.
In his next examination, Dr. Donati informed Ms. Eaton `she had a much greater risk for developing degenerative change in the lateral compartment of the knee, when compared to the population, in general, which would be a result of her injury.’ Report of Proceedings (RP) IV (deposition of Dr. Donati) at 40. A subsequent examination showed Ms. Eaton had continuing pain and limited use of her knee and leg. Dr. Donati `wasn’t pleased with the findings in someone of her age.’ RP IV at 42. He thought Ms. Eaton was going to have long term problems.
Dr. Donati opined Ms. Eaton would require physical therapy and follow-up to check her progress. After clarifying that it was `probable’ Ms. Eaton would have future problems, Dr. Donati testified that his general medical knowledge of the type of injury suffered by Ms. Eaton coupled with his direct observations and treatment led him `to believe that she will have problems.’ RP IV at 44-45.
With regard to future treatment, over objection, Dr. Donati testified at length about the various treatment and surgical options available for Ms. Eaton, including a progression of surgeries culminating with knee replacement. Again, over objection, Dr. Donati specified the treatment options facing Ms. Eaton:
I guess I would say two things: I think ultimately she is looking at a total knee replacement. I think that doing the osteotomy or doing the unicondylar is a way of buying time to prevent — hopefully, you could buy this woman time until such time that her first knee replacement would be the last one she needed. RP IV at 51-52.
Over objection, Dr. Donati summarized:
I believe that she’s going to require further surgery on her knee, and I think on a more probable than not nature, she’s going to ultimately wind up with a total knee replacement, assuming, you know, normal longevity, et cetera.
RP IV at 53-54.
Dr. Donati was unequivocal. Ms. Eaton will require more surgery on her knee, and total knee replacement was all but inevitable. Dr. Donati well specified the necessary level of relevance as `more probable than not.’ Thus, his testimony was much more than speculation and conjecture. Accordingly, the trial court had a tenable basis for admitting his testimony and did not err in admitting the testimony regarding future treatment over Tumac’s objections. Once the plaintiff establishes the need for treatment, a more liberal standard applies in assessing the cost of that treatment. Moore v. Smith, 89 Wn.2d 932, 944, 578 P.2d 26
(1978); Larson v. Union Invest. Loan Co., 168 Wn. 5, 12, 10 P.2d 557
(1932); Erdman, 41 Wn. App. at 208. Mathematical exactness is not required because the need for future medical treatment raises a presumption that the plaintiff will incur related costs. Webster, 42 Wash. at 365; Erdman, 41 Wn. App. at 208-09; Leak, 9 Wn. App. at 104.
Here, over a defense objection, Dr. Donati was asked to give a `ballpark . . . estimate’ of the costs related to Ms. Eaton’s future treatment considering geographical factors. RP IV at 54. Dr. Donati replied:
Ah, you know, I — I — the — if she just has one knee replacement, if that’s the only procedure she has done, ah, she’s probably going to be in the, ah, I would imagine between 50 and 70 thousand dollars, by the time you do the hospital, equipment, therapy, et cetera; ah, if it’s an osteotomy, ah, probably in the nature of 30 to 40 thousand, maybe 30 to 50 thousand, ah, and a undicondylar, I would probably put in the neighborhood of the knee replacement.
And, again, these — I don’t know hospital prices. You — you’re dealing with, you know, operating room suites, and, ah, I mean, one thing I’m familiar — those are probably conservative estimates. I mean, you’ve got surgeons’ fees. RP IV at 54-55.
Over objection, Dr. Donati testified as follows regarding surgeons’ fees:
If, you know, if you just went with a knee replacement as the only procedure, the one procedure, you’re probably in the neighborhood of four thousand, give or take. Ah, if you went through the subsequent procedures, then you get into all this revision fees, which could put you in the neighborhood of $5,000. to $6,000. thousand dollars easily. Ah, you’ve got the equipment, which, ah, you know, the implants themselves, which are expensive from the manufacturer. There is a markup for that, a varying degree of markup put on by the hospitals[.]
. . . .
The implants could probably be — for a total knee, it could be easily $5,000. — $6,000.; for a unicondylar, it could easily be $4,000. to $5,000.; for an osteotomy, ah, could be a couple thousand dollars, $3,000. maybe, depending on the type. There’s a lot of different ways people use to hold that osteotomy in place. RP IV at 55-56.
Dr. Donati gave what was `probably’ the range of cost of various procedures. RP IV at 55-56. At best, some uncertainty existed for the top-end of an osteotomy (`maybe’ $50,000 as opposed to $40,000) and an osteotomy implant (‘$3,000. maybe, depending on the type’). RP IV at 55-56. Any lack of certainty goes to the weight given by the jury, not to the admissibility of the doctor’s testimony. State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177 (1991). Given all, Dr. Donati couched his opinion with a degree of probability assuring relevance and giving the trial court a tenable basis for admitting his cost testimony. Accordingly, the trial court did not err.
B. Sufficiency of Evidence
The issue is whether substantial evidence exists in the record to support the jury verdict of $183,186.62 for Ms. Eaton’s future economic damages.
As a threshold matter, Tumac complains generally that the special verdict form did not list Ms. Eaton’s future medical costs as a separate category of damages. But the record indicates Tumac did not object to the special verdict form at trial, and Tumac did not assign error to it on appeal. Moreover, it does not appear Tumac submitted an alternate form. Accordingly, we will not discuss the appropriateness of the special verdict form. See Harris v. Dep’t of Labor Indus., 120 Wn.2d 461, 468, 843 P.2d 1056 (1993) (noting an appellate court ordinarily will not consider an issue raised for the first time on appeal); RAP 2.5(a).
Generally, we will not overturn a jury’s award of damages unless the award is outside the range of substantial evidence in the trial record, or the award shocks the conscience of the court, or it appears the award was the result of passion or prejudice. Adcox v. Children’s Orthopedic Hosp., 123 Wn.2d 15, 32-33, 864 P.2d 921 (1993); Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 268, 840 P.2d 860 (1992); Bingaman v. Grays Harbor Comm’ty Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985). Thus, an appellate court will seldom disturb a jury’s damages award; `it can review only the written record, while the factfinder and the trial judge were in the favored position of being able to evaluate the full range of evidence submitted.’ Adcox, 123 Wn.2d at 33 (citing Washburn, 120 Wn.2d at 268; Bingaman, 103 Wn.2d at 835).
Substantial evidence is that which is sufficient to convince an unprejudiced thinking mind of the truth of the asserted fact. Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003); Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 255, 978 P.2d 505 (1999); Thomson v. Virginia Mason Hosp., 152 Wn. 297, 300-01, 277 P. 691 (1929). Stated another way, substantial evidence is that which is sufficient to persuade a fair-minded, rational person of the truth of the asserted fact. Davis, 149 Wn.2d at 531; Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001); Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963). `Weighing the evidence lies exclusively within the province of the jury.’ Helman, 62 Wn.2d at 148.
Dr. H. Graeme French testified Ms. Eaton would need surgery on her shoulder and related nerves. Dr. French estimated Ms. Eaton’s costs between $15,800 and $21,100, depending on whether the procedures were done at the same time or separately. Dr. Donati testified Ms. Eaton would require multiple procedures leading up to total knee replacement in the future. He estimated the related costs between approximately $151,000 to approximately $214,000. Ms. Eaton testified that time off from work for future surgeries and recovery would result in income loss ranging between $961.20 and $1,325.68.
The above evidence indicates Ms. Eaton’s future economic damage from medical treatment and lost income ranges between $167,761.20 and $236,425.68. The jury, acting within its fact-finding discretion, awarded her $183,186.62, a figure within the range of evidence. In sum, sufficient evidence exists to support the jury verdict; the verdict does not shock the conscience and the verdict is not the product of passion or prejudice. Adcox, 123 Wn.2d at 34.
C. Prejudgment Interest
The issue is whether the trial court erred when it awarded prejudgment interest on the stipulated medical expenses. We review a trial court’s award of prejudgment interest for an abuse of discretion. Mehlenbacher v. DeMont, 103 Wn. App. 240, 250, 11 P.3d 871 (2000); Curtis v. Sec. Bank, 69 Wn. App. 12, 20, 847 P.2d 507 (1993).
This court recently affirmed a trial court’s denial of prejudgment interest on agreed medical expenses incurred in connection with an automobile accident. Lakes v. Von Der Mehden, 117 Wn. App. 212, 70 P.3d 154 (2003). In Lakes, the trial court instructed the jury that the defendant admitted specific medical expenses `were reasonably necessary for the diagnosis and treatment’ of the plaintiffs, and listed the expenses on the special verdict form. Id. at 216. After obtaining a favorable verdict, the plaintiffs sought prejudgment interest on the theory that the defendant’s admissions rendered the medical expenses liquidated damages. Id. The trial court denied the plaintiff’s request, and this court affirmed. Id. at 216-17, 220.
`By their nature, medical expenses are not liquidated until the judge or jury determines the expenses were reasonably and necessarily incurred.’ Id. at 217 (citing Hansen v. Rothaus, 107 Wn.2d 468, 477, 730 P.2d 662 (1986); Fox v. Mahoney, 106 Wn. App. 226, 230, 22 P.3d 839
(2001)). “It is not enough that the medical bills be paid, the amounts must be reasonable.” Lakes, 117 Wn. App. at 217 (quoting Hansen, 107 Wn.2d at 477).
Here, unlike in Lakes, the trial court did not instruct the jury as to the stipulations, and the stipulated medical expenses were not listed in the special jury form. See Lakes, 117 Wn. App. at 216. Notably, the trial court instructed the jury that if it decided in favor of the plaintiffs, it `must first determine the amount of money required to reasonably and fairly compensate [the plaintiffs] for the total amount of damages.’ CP at 26. The trial court instructed the jury that if it decided in favor of the plaintiffs, it `should’ include in the verdict ‘[t]he reasonable value of necessary medical care, treatment and services received to the present time.’ Id. Viewed together, the trial court’s instructions left to the jury the ultimate decision as to the amount of appropriate damages, including medical expenses. See Lakes, 117 Wn. App. at 217-18.
Furthermore, ‘[u]nliquidated claims are not rendered liquidated by the fact that the defendant stipulates to the damages or agrees to the reasonableness of a settlement.’ Id. at 218 (citing Hansen, 107 Wn.2d at 477-78; Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148, 154, 948 P.2d 397 (1997); Pearson Constr. Corp. v. Intertherm, Inc., 18 Wn. App. 17, 20, 566 P.2d 575 (1977)). `To hold otherwise would penalize stipulating parties by exposing them to the risk of prejudgment interest, contrary to the express public policy of this state that strongly encourages stipulations and settlements.’ Lake, 117 Wn. App. at 218-19 (citing City of Seattle v. Blume, 134 Wn.2d 243, 258, 947 P.2d 223 (1997); Hansen, 107 Wn.2d at 477-78).
In light of the foregoing, the trial court lacked a tenable basis for awarding prejudgment interest on the stipulated medical expenses. Consequently, the trial court abused its discretion. The remedy is remand for a corrected judgment.
D. Costs
The issue is whether the trial court erred by failing to pro rate the costs of certain depositions partly used by Ms. Eaton at trial. The case law indicates the standard of review for an award of costs involves a two-step process. Whether a statute, contract, or equitable theory authorizes the award is a matter of law subject to de novo review. Mehlenbacher v. DeMont, 103 Wn. App. 240, 244, 11 P.3d 871 (2000); Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053
(1993). If such authority exists, we review the amount of the award for abuse of discretion. Tradewell Group, 71 Wn. App. at 127.
Generally, the trial court shall award the prevailing party the costs of `all necessary disbursements, including . . . the necessary expenses of taking depositions.’ RCW 4.84.090. Another provision defines the costs to be awarded to a prevailing party:
The measure and mode of compensation of attorneys and counselors, shall be left to the agreement, expressed or implied, of the parties, but there shall be allowed to the prevailing party upon the judgment certain sums by way of indemnity for the prevailing party’s expenses in the action, which allowances are termed costs, including, in addition to costs otherwise authorized by law, the following expenses:
. . . . (7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment. RCW 4.84.010.
Case law provides some limited assistance in interpreting RCW 4.84.010(7). Division One of this court accepted a concession that the statute limits deposition cost awards `to those portions of the deposition used at trial as substantive evidence or for impeachment purposes.’ Andrews v. Burke, 55 Wn. App. 622, 630-31, 779 P.2d 740
(1989). Division Two has generally observed ‘[a] party is entitled to the costs of taking depositions if the depositions were taken and used for trial purposes.’ Kiewit-Grice v. State, 77 Wn. App. 867, 874, 895 P.2d 6 (1995) (citing Tombari v. Blankenship-Dixon Co., 19 Wn. App. 145, 150, 574 P.2d 401 (1978); RCW 4.84.010, .090). But those cases do not provide a definitive answer to the issue before this court. We must discern the precise meaning of relevant statutes.
We review the meaning of a statute de novo. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 631, 71 P.3d 644 (2003). We interpret a statute `to best advance’ the legislative purpose. State v. C.J., 148 Wn.2d 672, 685, 63 P.2d 765 (2003) (citing Morris v. Blaker, 118 Wn.2d 133, 143, 821 P.2d 482 (1992)). We begin our analysis with a plain meaning interpretation of the language on the face of the statute and closely related statutes in light of the underlying legislative purpose. See Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). And, we interpret the statute in its entirety, reviewing all provisions in relation to each other. In re Det. of Williams, 147 Wn.2d 476, 490, 55 P.3d 597 (2002).
Generally, a prevailing party may recover deposition expenses as costs. RCW 4.84.090. But there is a specific set of criteria controlling such an award. RCW 4.84.010(7). On this latter point, RCW 4.84.010(7) is plain and unambiguous on its face. To award deposition costs at all, the trial court must be satisfied that (1) the deposition was `necessary to achieve the successful result,’ and (2) the deposition was actually `used at trial.’ RCW 4.84.010(7). If those threshold conditions are met, the trial court shall award costs `on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment.’ Id. The corollary of that provision is that the trial court will not award costs for unused portions of the concerned depositions. See Andrews, 55 Wn. App. at 630-31.
This appeal concerns the depositions of a Mr. Gallaway (78 pages in total), a Dr. Ruggeri (67 pages), and Sheriff LaTour (56 pages). Tumac argued to the trial court that Ms. Eaton’s counsel used `a few pages of the deposition of Mr. Gallaway, maybe ten pages or so of the deposition of Dr. Ruggeri and the one page he read from the deposition of Sheriff LaTour.’ RP A (Mar. 7, 2002) at 14. Ms. Eaton did not dispute those numbers but argued that the statute broadly allowed recovery of all costs related to those depositions.
The trial court awarded full costs, partly reasoning: If somebody’s using a page or two of a 500-page deposition, I don’t think it is reasonable to award the deposition costs for a 500 page deposition. However, if somebody is using three to four pages here or eight to ten pages there of a deposition that is under 100 pages long, everybody knows that when you take a deposition it might take you 40 pages to get to two pages of what I called the meat of the coconut. RP A at 21. The trial court’s reasoning conflicts with the plain language of RCW 4.84.010(7). The trial court has discretion to award costs, but that discretion must conform to the guidelines set forth in RCW 4.84.010. The trial court `shall’ award costs on a pro rata basis. RCW 4.84.010(7). Accordingly, the trial court must limit the award of costs to the portion of the deposition actually used as substantive evidence or for impeachment purposes, whether one page or more. Id.
In sum, the trial court must make a reasonable calculation of the deposition costs related to the actual portion of the deposition used at trial. Id. Prorating is required for all depositions, not just those exceeding a certain length as the trial court reasoned. Accordingly, the trial court lacked a tenable basis for awarding all deposition costs for depositions partly used at trial. The remedy is to remand for modification of the cost bill. See Andrews, 55 Wn. App. at 631.
E. Attorney Fees
Ms. Eaton requests attorney fees and costs for defending a frivolous appeal. We have discretion to award attorney fees to a party defending against a frivolous appeal. RAP 18.9(a). Such an award is appropriate where the appeal is totally lacking in arguable merit. See Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 194-95, 69 P.3d 895
(2003); Manteufel v. Safeco Ins. Co. of Am., 117 Wn. App. 168, 178, 68 P.3d 1093 (2003). That is not the case here; Tumac prevailed on the prejudgment interest and cost bill issues. Tumac’s other issues are fairly debatable with the possible exception of its flimsy evidence sufficiency argument. Given all, an award of fees under RAP 18.9 would not be appropriate. See Escude, 117 Wn. App. at 195.
Affirmed in part; reversed in part.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KURTZ and SCHULTHEIS, JJ., concur.