GREENE v. HARWOOD, 58639-4-I (Wash.App. 7-9-2007)

No. 58639-4-I.The Court of Appeals of Washington, Division One.
July 9, 2007.

Appeal from a judgment of the Superior Court for King County, No. 04-2-27207-6, Julie Spector, J., entered July 26, 2006.

Affirmed in part, reversed in part, and remanded by unpublished opinion per Agid, J., concurred in by Coleman and Ellington, JJ.

AGID, J.

Kent Harwood accidentally caused John Greene to suffer a traumatic brain injury. Harwood conceded liability but contested damages. Greene’s central claim at trial was that the injury caused vision problems which make it difficult for him to read and lowered his future earning capacity. A jury awarded Greene only $3,000 in general damages in addition to the past medical damages stipulated by the parties. Greene appeals numerous rulings by the trial court. But his only meritorious argument is that the trial court erred by imposing a $500 sanction against him for submitting evidence of settlement negotiations with his motion for additur or a new trial. The trial court failed to disclose its reasons for imposing the $500 sanction. Because CR 11 requires the court to state its reasons for imposing sanctions, we affirm in part, but reverse the $500 sanction and remand for reconsideration of that decision consistent with CR 11.

FACTS
On October 4, 1992, John Greene and Kent Harwood were playing a game that involved Harwood launching Greene into the air. At the time, Greene was eight years old and Harwood was seventeen. During the game, Greene fell on his head and was injured. Greene was treated for his injuries at Highline Community Hospital, where he was diagnosed with a closed head injury and an occipital skull fracture. In 1996, Greene suffered two additional head injuries. He was hit in the head by a baseball and hit by a car while riding his bicycle.

On December 8, 2005, Greene filed an amended complaint, suing Harwood for negligence based on the 1992 accident.[1] Harwood conceded liability, and the court entered partial summary judgment on that issue. A jury trial solely on the issue of damages began on June 5, 2006.

Voir dire was conducted but not recorded. According to Greene’s counsel and the presiding juror, during voir dire, several jurors who had denied believing that there were too many lawsuits agreed with the statement that our society is “sue happy.” The next day, the court explained on the record that it allowed each side two twenty-minute rounds of questioning for voir dire, after which, Greene requested additional time and the court denied his request over his objection.

Greene objected to a number of evidentiary rulings at trial. He also objected to the court’s decision to give a comparative negligence jury instruction based on the possibility that he might have been partially at fault for the 1996 bicycle-car accident.[2] The parties gave closing arguments on June 9, 2006, but those arguments were not recorded.

According to a post-trial declaration by the presiding juror, several jurors referred to personal experiences outside of the evidence presented at trial during their deliberations:

Juror no. 6 discussed that her daughter had read Harry Potter books while in elementary school, and that the font size was not that small, arguing that although the plaintiff tested at below a fourth grade level in reading, he should not be impaired from extended reading of a similar sort. Juror no. 1 stated that he suffered from a sudden onset of double-vision when he was in his late 20’s, and that he has worn glasses with prisms in them since without needing the prism strength increased, and that therefore the plaintiff’s vision problem should be correctable with lenses without his vision further degrading over time. Juror no. 12 argued that his mother is a master teacher, and based on what she had related to him regarding her teaching experiences, if the plaintiff has a reading disability from the skull fracture incident, it would have been detected by the teachers in his school, and that the reason for the drop in the plaintiff’s reading grades therefore must have been that he was not trying or applying himself. . . .

On June 9, 2006, the jury awarded Greene $3,060.85 in past medical damages stipulated to by the parties and $3,000 in general damages. The jury found no comparative negligence.

On June 19, 2006, Greene filed a motion for additur or, in the alternative, a new trial. In support of that motion, he submitted evidence of settlement negotiations with the defendant’s insurer. Harwood moved to strike all references to the settlement negotiations and for sanctions. The court granted his motion and imposed a $500 sanction on Greene.

On July 13, 2006, Harwood moved for offset, asking that $2,243.22 be deducted from the jury award based on medical bills already paid. On July 20, 2006, Greene’s counsel sent a letter stating that he would not object to offset. But, after the court granted the motion for offset, Greene filed a motion for modification of judgment. The court denied that motion based on waiver and imposed a $200 sanction for the frivolous filing.

Greene appeals.

DISCUSSION I. New Trial Based on Inadequacy of Damages

Under CR 59(a)(5), a trial court may grant a party’s motion for a new trial if damages are so “inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice.” “Determination of the amount of damages is within the province of the jury, and courts are reluctant to interfere with a jury’s damage award when fairly made.”[3] A trial court abuses its discretion by denying a motion for a new trial where the verdict is contrary to the evidence.[4]
To determine whether sufficient evidence supports the jury’s verdict, the court must view the evidence in the light most favorable to the nonmoving party.[5]

Greene argues the jury’s decision not to award damages for future medical expenses and lost wages was contrary to the evidence. He relies on the Washington Supreme Court’s holding in Palmer v. Jensen that a trial court abused its discretion by denying a new trial where the jury refused to award general damages despite uncontroverted proof of pain and suffering.[6] But this case is distinguishable from Palmer. There, the defense presented no evidence or expert testimony to refute plaintiff’s evidence of pain and suffering.[7] Here, Harwood’s expert’s testimony and report, based on his examination of Greene and Greene’s medical records, support a jury finding that Greene’s 1992 injuries did not result in a permanent visual impairment of any significance, require no future medical treatment, and did not lessen his earning capacity. Thus, we hold the trial court did not abuse its discretion by denying Greene’s motion for a new trial based on the inadequacy of the damages awarded.

II. Juror Misconduct

We review a trial court’s decision that juror misconduct did not justify a new trial for abuse of discretion.[8] Verdicts may only be overturned on the basis of juror misconduct when (1) the affidavits of the jurors allege facts showing misconduct, and (2) those facts support a determination that the misconduct affected the verdict.[9] A party asserting juror misconduct bears the burden of showing that it occurred.[10] A strong, affirmative showing of juror misconduct is required to impeach a verdict and overcome the policy favoring stable verdicts and the secret and frank discussion of the evidence by the jury.[11]

A. Introduction of Alleged Extrinsic Evidence

It is misconduct for a jury to consider extrinsic evidence.[12]
Extrinsic evidence is information that is outside the evidence admitted at trial and is improper because it “is not subject to objection, cross-examination, explanation, or rebuttal.”[13] But it is not misconduct for jurors to use common sense or consider their own life experiences in reaching a verdict.[14] We determine whether a juror’s comments constitute extrinsic evidence rather than personal life experience by considering whether the comments impart the kind of specialized knowledge that is provided by expert witnesses at trial.[15]

Greene claims that the jury improperly considered extrinsic evidence because certain jurors referred to their personal experiences during deliberations. He relies on State v. Briggs, a 1989 case, in which we held that a juror impermissibly introduced extrinsic evidence into the jury’s deliberations by sharing his own experiences with a speech problem in a case where the central issue involved the prevalence of a criminal defendant’s stutter for identification purposes.[16] But the holding in Briggs was uniquely dependant on the fact that the same juror failed to disclose his experience with a speech disorder when asked about it at voir dire.[17]

More recent cases have permitted wide latitude to jurors referencing their personal experiences. In Breckenridge v. Valley General Hospital, the Washington Supreme Court held that a juror’s comments about his personal experiences visiting an emergency room, used to determine whether a certain test should be administered as part of the standard of care, did not constitute impermissible extrinsic evidence.[18] In Richards v. Overlake Hospital Medical Center, we held that a juror who commented that, based on the medical records before the jury and her quasi-medical training, the birth defects plaintiff claimed were due to the hospital’s negligence were more likely the result of the mother having had the flu 20 weeks into gestation did not impermissibly reference extrinsic evidence.[19]

Here, the comments of jurors based on their personal experiences with what elementary students can read, double vision, and testing for reading disabilities in school are no more specialized or similar to expert testimony than those in Breckenridge or Richards. These comments do not constitute misconduct.

B. Misrepresentation During Voir Dire

Greene also contends it was misconduct for jurors who agreed that our society is “sue happy” not to answer “yes” to his attorney’s question about whether they believed there were too many lawsuits. Failure to disclose information during voir dire is misconduct warranting a new trial only when the information withheld is material and a truthful response would have provided a basis to challenge the juror for cause.[20] Here, it does not appear that jurors withheld information at all since, according to Greene, eight jurors affirmatively raised their hands to agree that our society is “sue happy.” Perhaps, these jurors misunderstood the intent of the initial question or did not think that a belief that our society is “sue happy” precluded a belief that there are not too many lawsuits. More importantly, a general belief that our society is litigious is not material to the substantive issues of this case, nor would it be grounds to dismiss a juror for cause since it does not establish actual bias.[21] The jurors did not commit misconduct during voir dire.

C. Refusal To Grant Additional Time for Voir Dire

“The trial court has broad discretion in determining the scope and extent of voir dire.”[22] That discretion is limited only by its duty to assure a fair trial by an impartial jury.[23] The trial court may prevent questioning on voir dire where the examination is not calculated to disclose a juror’s relation and disposition to the cause and the parties.[24] And we have held that a trial court did not abuse its discretion by refusing to allow questions about jurors’ attitudes toward self-defense in a criminal case where defense counsel did not show the possibility of actual bias.[25]

Greene relies on State v. Brady[26] to support his contention that the trial court’s refusal to grant him extra time for voir dire constitutes reversible error. But this case is distinguishable from Brady. In Brady, the trial court had originally promised the parties that there would be two rounds of questioning during voir dire, but changed its mind after the first round and cancelled the second round of questioning.[27] Division Two of this court held that changing the agreed-upon procedure in the middle of voir dire was an abuse of discretion because the parties had already relied on the promise of a second round of questions.[28] The appellants conceded that, had the court simply limited voir dire to only one round of questions initially, its ruling would not have been subject to attack.[29] Here, unlike in Brady, the court stuck to its initial plan, limited both sides to two twenty-minute rounds of questioning, and refused to change the procedure in the middle at plaintiff’s request. Thus, we hold that the trial court did not abuse its discretion by refusing to grant extra time to plaintiff’s counsel for voir dire.

Greene also contests the trial court’s decision not to allow him to ask about the juror’s general feelings on insurance. Given the trial court’s broad discretion to limit voir dire, that contention is similarly lacking in merit.

III. Comparative Negligence Instruction

Greene argues that the court erred by giving a comparative negligence jury instruction in a case where defendant’s negligence was decided on summary judgment. But an erroneous jury instruction does not require reversal unless it is prejudicial, meaning that it affected the outcome of the trial.[30] Greene relies on Zukowsky v. Brown, in which the court held that it was prejudicial error to give a contributory negligence instruction when the evidence did not raise a contributory negligence issue.[31] But this case is distinguishable. In Zukowsky, the court could not determine from the general verdict for the defendants whether that verdict was influenced by the erroneous contributory negligence instruction.[32] Here, the jury explicitly found that Greene was not comparatively negligent. Because there was no prejudice, even if the instruction was erroneous, it did not constitute reversible error.

IV. Contested Evidentiary Rulings

A trial court has “`broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion.'”[33] A trial court abuses its discretion when it applies the wrong legal standard to an issue or “takes a view no reasonable person would take.”[34] An erroneous evidentiary ruling is grounds for reversal only if it is prejudicial.[35] An error is prejudicial if it affects, or presumptively affects, the outcome of the trial.[36]

A. Exclusion of Neurological Testimony from Plaintiff’s Expert Witness

Greene contends the trial court abused its discretion by limiting the scope of one of his expert witness’ testimony. Under ER 702, “[a]n expert’s opinion is admissible if the witness is properly qualified, relies on generally accepted theories, and the expert’s testimony is helpful to the trier of fact.”[37] Someone can be qualified as an expert to testify to medical causation without necessarily possessing a license to practice medicine.[38] But this does not mean that anyone claiming expertise should be allowed to testify regardless of their qualifications.[39] As the Washington Supreme Court explained in Harris v. Robert C. Groth, M.D., Inc.:

Our rejection of the rule that nonphysicians are per se disqualified from testifying as experts in medical malpractice actions should not be read as requiring that they always or even usually be allowed to testify. Trial courts retain broad discretion in determining whether an expert is qualified. . . .[40]

In Harris, the appellant argued that the trial court improperly limited the scope of her expert’s testimony solely because he did not have a license to practice medicine.[41] The Supreme Court disagreed, holding that the trial court did not abuse its discretion by allowing extensive testimony by the expert on some issues but refusing to allow him to testify about issues outside his field of expertise.[42]

Greene’s argument is similar to the one in Harris and similarly unpersuasive. Greene sought admission of Dr. Theodore Kadet’s expert opinion about whether the skull fracture caused by the accident damaged Greene’s third cranial nerve, resulting in the symptoms of which he complains. Dr. Kadet is a neuro-optometrist, not a neurologist. The trial court repeatedly ruled on the admissibility of this evidence, stating that it would not allow Dr. Kadet to testify about neurological matters because Greene had offered insufficient proof to show that neurology was within Dr. Kadet’s field of expertise.

Further, it appears that this issue was settled at trial. Although Greene’s counsel never provided an offer of proof about Dr. Kadet’s neurology expertise, the court did eventually allowed him to ask Dr. Kadet about the third cranial nerve. The following exchange suggests that Greene’s counsel intended to retract his repeated objections based on the trial court’s changed ruling:

THE COURT: . . . you’re also doing the offer of proof regarding Dr. Kadet. Have you forgot to tell me?

MR. FULLER: Well, you’ve changed your ruling on that. I think we’re satisfied with that ruling, if I can at least say, would an injury to the third cranial nerve interfere with eye movements back and forth? And that — and then we’d be satisfied.

If there was no longer an objection, the issue is not properly before this court under RAP 2.5(a).

Finally, Greene fails to show how the trial court’s supposed limitation of Dr. Kadet’s testimony is prejudicial. The court allowed Greene’s neurologist, Dr. Stan Schiff, to testify about the third cranial nerve, what causes damage to that nerve, the symptoms of third cranial nerve damage, and his opinion that Greene’s symptoms were caused by the injury he sustained at eight years old. Thus, any additional neurological testimony Greene feels he should have been able to elicit from Dr. Kadet would have been cumulative.

B. Limitations on Impeachment of Defense Expert Ophthalmologist

Greene argues the court abused its discretion by making various evidentiary rulings involving the testimony of defense expert, Dr. Joseph Coyle, including refusing to allow counsel to impeach Dr. Coyle with prior inconsistent statements from his deposition. CR 32(a)(1) permits the use of a deposition to impeach a witness at trial. But the use of a deposition must still comply with the rules of evidence. ER 613(b) governs the admissibility of extrinsic evidence of prior inconsistent statements and “requires the witness have the opportunity either to admit the inconsistency and explain it (in which case the testimony of the prior statement is not admissible as evidence) or to deny it (in which case evidence of the prior inconsistent statement is admissible).”[43]
And ER 611(a) explains that the court has control over the interrogation of witnesses and may limit cross-examination to avoid “needless consumption of time.”

Here, Greene’s counsel objected to four rulings by the trial court involving Dr. Coyle. First, he unsuccessfully sought to impeach Dr. Coyle’s disagreement with counsel’s statement that Dr. Coyle had testified on behalf of plaintiffs that whiplash causes third cranial nerve damage. The court properly refused to allow impeachment with extrinsic deposition testimony because (1) that testimony was not truly inconsistent because Dr. Coyle never admitted to so testifying on behalf of plaintiffs and (2) counsel never gave Dr. Coyle a chance to explain or deny the deposition statement as he was required to do under ER 613(b). Second, the trial court refused to allow impeachment with inconsistent deposition testimony after Dr. Coyle admitted that his deposition testimony was in error. This was proper under ER 613(b) and ER 611(a)(2) since further evidence of a mistake Dr. Coyle had already admitted would have been cumulative and a waste of time. Third, the court refused to allow counsel to ask Dr. Coyle whether he reviewed Greene’s deposition testimony about being sensitive to glare. Because Greene cites no authority to suggest this was an abuse of discretion, we decline to consider it under RAP 10.3. Finally, Greene objected to the court’s refusal to strike Dr. Coyle’s testimony that sometimes glare sensitivity is psychological rather than physical, despite the court’s earlier ruling that experts could only testify within the scope of their expertise. Again Greene cites no authority to suggest the court abused its broad discretion. And the court allowed Greene’s counsel to establish that psychology is not Dr. Coyle’s area of expertise, thus curing any prejudice.

Further, Greene fails to cite authority for the proposition that any of these alleged abuses of discretion constitute reversible error. Instead, he cites two criminal cases for the proposition that erroneously refusing to allow impeachment with a prior inconsistent statement is presumed prejudicial because it violates a criminal defendant’s right to confront the witnesses against him.[44] But this is a civil case, and there is no civil confrontation clause. Thus, the trial court’s limitations of Greene’s cross-examination of Dr. Coyle do not constitute reversible error.

C. Limitations on Vocational Expert Testimony

Greene contests the trial court’s characterization of his vocational expert, Judith Parker, as a lay, rather than expert, witness and its refusal to allow her to calculate his future lost earning capacity. The trial court characterized Parker as a lay witness for purposes of discussing future lost earning capacity because she was simply reading United States Department of Labor statistics, information which is readily available on a website. The trial court explained that it did not feel Greene’s counsel laid a proper foundation to qualify Parker as an expert on future lost earning capacity. But the court allowed Parker to read from the Bureau of Labor statistics. And the parties agreed to stipulate that future earning capacity is based on multiplying the average salary for someone of a certain educational level by the average number of earning years he has left according to the Bureau of Labor statistics provided by Parker. Thus, any possible error in limiting Parker’s testimony did not prejudice Greene.[45]

D. Exclusion of Testimony about Plaintiff’s Financial Resources

Greene claims the trial court improperly excluded testimony from his mother meant to rebut defense evidence that he did not seek medical treatment for his alleged headaches between ages eight and sixteen. But Greene’s counsel did not ask his mother why she failed to seek treatment for his headaches during this time. Instead, counsel asked why she took Greene to a low-income clinic immediately following the accident, and she responded that she “[c]ouldn’t afford to take him anywhere else.” Defense counsel’s objection to this question was sustained, and the answer was stricken. This was entirely proper. Evidence of a plaintiff’s financial circumstances is usually irrelevant, immaterial, and properly excluded under ER 403, “if it might mislead the jury or confuse the issues.”[46]
Evidence that Greene’s mother took him to a low-income clinic because she could not afford to take him elsewhere was irrelevant, serving only to arouse the sympathy of the jury, and properly excluded by the trial court.

E. Exclusion of Harwood’s Deposition

Greene claims that the trial court improperly refused to admit a portion of Harwood’s deposition describing the mechanism of injury. But there is nothing in the record to suggest the court ever made such a ruling.[47] Further, Greene claims he wanted the evidence admitted to counter the comparative negligence instruction. Since the jury found that Greene was not comparatively negligent, even if the court did so erroneously rule, the alleged exclusion did not prejudice Greene.

F. Exclusion of Photos

Immediately before trial, defense counsel objected to the admission of four photographs of Greene because, despite an August 12, 2005 discovery request for production of all photographs relating to the subject of the incident, Greene did not provide these photographs to the defense until two weeks before trial. Greene argued the photographs should be allowed to rebut the proposed testimony of Dr. Coyle, the defense expert, whose report was not produced until after the discovery cut off. The trial court ruled the photographs were untimely and excluded them as a discovery violation.

A trial court does not abuse its discretion by excluding evidence that is the result of willful noncompliance with discovery.[48] Violation of a discovery request without a reasonable excuse is considered willful.[49] Here, Greene failed to produce any pictures which were subject to a discovery request until two weeks before trial, when he sought admission of only four pictures that supported his claims. When asked why he chose not to produce the pictures earlier, he could provide no reasonable excuse. The minimal sanction imposed by excluding the photographs was within the trial court’s broad discretion to fashion sanctions for discovery violations.[50]

G. Redaction of ER 904 Exhibit

A document sought to be admitted under ER 904(a) is per se admissible if the party seeking its admission has timely served the document on the opposing party and the opposing party has not timely objected to its admission or given a compelling reason for failing to do so.[51] But erroneous exclusion of ER 904 documents does not constitute reversible error if the excluded evidence was cumulative or of little probative value.[52]

Greene argues the court erroneously redacted Dr. Kadet’s report, which was admitted under ER 904 without objection. While this is true, the minimal redactions are not prejudicial. The trial court did not exclude Dr. Kadet’s opinion that the initial injury caused a variety of vision problems from which Greene continues to suffer. Nor did it exclude sections of the supporting literature explaining how these vision problems impact a person’s ability to read or tend to be accompanied by headaches. It merely redacted portions relating to the neurological details of how such an injury might occur. Since Dr. Schiff testified to the neurological effects of an injury like the one Greene suffered and how such an injury might cause his symptoms, the excluded evidence would have been cumulative. Thus, we conclude that the redaction, while erroneous, does not

H. Admission of Defense Expert Report

Greene also contests admission of the report written by defense expert, Dr. Coyle. Although Greene objected to Dr. Coyle’s report during motions in limine, the trial court refused to rule on the report’s admissibility at that time, and Greene failed to renew his motion. When a trial court has reserved ruling on a matter, the objecting party must “again raise the issue at an appropriate time to insure that a record of the ruling is made for appellate purposes.”[53] Failure to do so results in waiver.[54] Because Greene waived this issue, we decline to consider it.

I. Admission of Hearsay Statements in Medical Records

Greene argues that the following statement, in a medical record from October 9, 2002, constitutes erroneously admitted hearsay:

Per mother and patient, he was well until age 11, when he was hit by a car while riding a bicycle. . . . The patient reports, and confirmed by mother, that since that time he has had intermittent vertigo associated with blurred vision. . . .

In addition, the patient also complains of occipital headaches, also after accident four years ago. . . .

This argument is without merit. Medical records are admissible under RCW 5.5.020, the business records exception to the hearsay rule.[55]
Statements of medical history made for the purpose of medical diagnosis are admissible under ER 803(a)(4).[56] And, under ER 801(d)(2), a party’s own admission offered against him at trial is not hearsay. Thus, Greene’s own statements about his medical history, made to his doctor for the purpose of treatment, contained in a medical record, were clearly admissible.

Finally, Greene contends the trial court erred by allowing admission of an unattributed hearsay statement in his medical records suggesting he may have been comparatively negligent in the 1996 bicycle-car accident. But because the jury found that Greene was not comparatively negligent, even if this admission was erroneous, it did not result in prejudice.

V. Closing Argument

Greene claims that defense counsel made a number of improper remarks during her closing argument. Closing arguments were not recorded, and there is no reliable evidence in the record to suggest that Greene objected to any remarks made by Harwood’s counsel during her closing.[57]
Under RAP 2.5(a), failure to object to closing argument results in a waiver of the issue on appeal.[58] Thus, we decline to consider this issue.

VI. Sanctions

Greene argues that the trial court erred by sanctioning him for submitting evidence of settlement negotiations with his motion for additur or a new trial. Harwood moved to strike all references to the settlement negotiations and for sanctions based on ER 408. The trial court awarded Harwood’s counsel $500 in attorney fees as a sanction but failed to disclose its reasons for doing so. Greene argues that ER 408 does not prohibit the admission of settlement negotiations when offered to prove something other than liability. But we need not address this argument because, even if the court did not abuse its discretion by refusing to consider evidence of settlement negotiations under ER 408, its decision to impose sanctions appears to be improper under CR 11.[59]
When imposing CR 11 sanctions, the court must state its reasons for doing so.[60] And CR 11 “should not be used as a fee-shifting mechanism.”[61]
Here, the court awarded $500 in attorney fees without explaining its reasoning as required by CR 11. Thus, we reverse the imposition of the $500 sanction and remand for a determination consistent with CR 11.

Greene also contends that the trial court erred by sanctioning him for filing a frivolous motion for modification of judgment. Greene’s motion for modification of judgment contested the trial court’s award of offset to defendant. But Greene did not oppose the motion for offset. In fact, he explicitly waived any objection to offset in a letter to defense counsel. In his reply in support of modification of judgment, he attempted to argue that his waiver of any issues regarding offset was not knowing and voluntary because defendant’s motion for offset did not comply with King County Local Rule (KCLR) 7’s notice requirement.[62]
KCLR 7(3)(A) requires six court days’ notice.

VII. Costs

Finally, Greene seeks costs under RAP 14. Under RAP 14.2, we may award costs to the substantially prevailing party. Because Greene did not substantially prevail, he is not entitled to costs.

CONCLUSION
We affirm in part, but reverse the trial court’s imposition of sanctions against Greene for filing settlement negotiation evidence with his motion for additur or a new trial and remand for reconsideration of that decision consistent with CR 11.

WE CONCUR: