No. 53579-0-IThe Court of Appeals of Washington, Division One.
Filed: February 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-10643-9. Judgment or order under review. Date filed: 11/24/2003. Judge signing: Hon. Jay V. White.
Counsel for Appellant(s), Jessie Lee Harris, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.
Counsel for Respondent(s), David Joseph Balint, Attorney at Law, 2033 6th Ave Ste 800, Seattle, WA 98121-2567.
BECKER, J.
At issue is an order granting a new trial to plaintiff Wesley Vickers in his suit for damages caused by an automobile accident for which the defendant admitted liability. Vickers claimed that the accident had caused a herniated disk, resulting in permanent disability, while the defendant argued that Vickers had back problems well before the accident. Because the evidence would have supported pattern instructions on lighting up of a pre-existing condition and particular susceptibility to injury, and the trial court’s failure to give these instructions may have prejudiced Vickers, we conclude the court did not abuse its discretion in ordering a new trial.
Wesley Vickers has been a transmission mechanic most of his life. Vickers was test-driving a repaired vehicle when he was struck by a car driven by defendant Irene Olaes. Olaes, who was going in the wrong direction down a one-way street, turned suddenly and crossed two lanes to crash into the front driver side of the vehicle Vickers was driving. The impact pushed Vickers into the curb and bent the frame of his vehicle so that he could not open the driver’s side door. Neither vehicle was speeding. There were no other cars on the road at the time of the accident.
Vickers had a sore back and neck immediately following the accident. He returned to his shop, and his pain increased throughout the day. That evening, he went to the emergency room for treatment. The emergency room physicians diagnosed his pain as caused by muscle strain and predicted his symptoms would subside in a few days.[1] About three weeks after the accident, he went to see his primary physician for follow up. This doctor also diagnosed Vickers’ symptoms as resulting from muscle strain and predicted it would clear up in time. Neither the emergency room physicians nor Vickers’ primary physician took x-rays of his back.
According to Vickers, the pain in his neck did go away after a short time, but the pain in his lower back `never did get better.’[2] Although Vickers was careful to refrain from activities that would aggravate the pain in his lower back, his pain did not go away. He claims that because of the injury, he was unable to continue working on transmissions and was forced to find replacements for himself in his new business.[3] He has also had to give up physical activities that he used to enjoy with his children. About a year after the accident, Vickers went to see a registered nurse practitioner about the persisting pain in his lower back. The nurse ordered x-rays followed by a magnetic resonance image scan, or MRI. The MRI revealed that Vickers suffered from a herniated disc at his L5 vertebra, which is located in the lower back.
Vickers filed suit against Olaes, alleging that the automobile accident caused his herniated disc. Olaes admitted liability for the accident and thus the only issues for trial were causation and damages. Vickers’ expert witness, Dr. Herring, was unable to appear in court for trial because of a schedule conflict with his position as the team physician for the Seattle Seahawks. The jury watched his videotaped deposition in lieu of live testimony. Dr. Herring stated his opinion that Vickers’ herniated disc, shown in the 2001 MRI film, resulted from the April 2000 automobile accident. He based this on Vickers’ report of the sudden onset of pain he suffered after the accident and the continuing pain, as compared to the absence of pain and disability prior to the accident. He also testified that Vickers could have had a `disc at risk’ and the trauma from the accident `developed the symptoms’ that he was being seen for.[4] He opined that Vickers’ injuries were permanent and that his back pain would not go away.[5]
Olaes argued the accident was probably not the cause of the herniated disk. She elicited testimony from Dr. Herring that in the case of auto mechanics, `heavy physical labor may contribute to degenerative change and may contribute to a herniated disc.’[6] Olaes brought out that Vickers had strained his back in 1994. She obtained Dr. Herring’s agreement that prior back pain is a predictor of future back pain. On redirect, Dr. Herring reaffirmed his opinion that the accident either caused the herniation, or at least made it symptomatic even if Vickers had previous degeneration in his back.
Dr. Tobin, who examined Vickers on behalf of Olaes, did not deny the existence of the herniated disk. But he went on to testify that Vickers’ herniated disc `could not on a more-probable-than-not basis entirely be attributable to the one incident of the car accident.’[7] He suggested that Vickers could have had a herniated disc for some time as a result of the wear and tear associated with his work history of heavy lifting. At the jury instructions conference before closing argument, there was controversy about the instructions that would allow the jury to consider whether Vickers had a pre-existing condition that was lighted up by the accident, or that it made him particularly susceptible to injury. The trial court concluded that the evidence did not support these instructions, and refused to give them.
The jury returned a special verdict finding that the negligence of Olaes was a proximate cause of injury and damage to Vickers. But, despite uncontested evidence that his special damages amounted to $4,000 and that his disability was permanent, the jury awarded him only $1,000 for special damages and $5,000 for general damages. Vickers successfully moved for a new trial on the ground that the trial court should have given the requested instructions. Olaes unsuccessfully moved for reconsideration. Olaes now appeals, and asks that the order granting a new trial be reversed and the jury verdict reinstated.
Ordinarily, the trial court’s decision to grant or deny a motion for a new trial will not be reversed absent a showing of a clear abuse of discretion. Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 546, 815 P.2d 798 (1991). A much stronger showing of abuse of discretion is required to set aside an order granting a new trial than one denying it. Brekenridge v. Valley General Hospital, 150 Wn.2d 197, 75 P.3d 944 (2003). But if the reason given for a new trial is predicated on an issue of law, the appellate court reviews for error only, not for abuse of discretion. Schneider v. City of Seattle, 24 Wn. App. 251, 255, 600 P.2d 666 (1979), review denied, 93 Wn.2d 1010 (1980).
Here, the trial court did not predicate its decision to grant a new trial on an issue of law, such as whether an instruction was an accurate statement of the law. Instead, the court was reviewing its own prior exercise of discretion in refusing to give the contested instructions. The court’s order granting a new trial was necessarily based on the court’s perception of the testimony, the inferences, and the arguments. A strong showing of abuse of discretion is required to set aside such an order. It is improper to grant a new trial based on an instruction where the exception to that instruction was inadequate to preserve the issue for review. Bitzan v. Parisi, 88 Wn.2d 116, 558 P.2d 775
(1977). Olaes initially contends that to the extent the order granting a new trial was based on a failure to give the instruction on particular susceptibility, Vickers did not make an objection below sufficient to preserve the error. Olaes likely waived the issue of preservation because she did not raise it either in her opposition to Vickers’ motion for a new trial, or in her motion for reconsideration of the order granting a new trial. See Pettit v. Dwoskin, 116 Wn. App. 466, 470, 68 P.3d 1088
(2003). But even assuming there was no waiver by Olaes, we conclude there was no waiver by Vickers. The pertinent inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection. Goehle v. Fred Hutchinson Cancer Research Center, 100 Wn. App. 609, 615, 1 P.3d 579 (2000). Before trial, both Vickers and Olaes proposed Washington Pattern Jury Instructions 30.18 (4th ed. 2002), the `lighting up’ instruction, and 30.18.01 addressing particular susceptibility. Before closing arguments began, the court asked whether either party believed that the lighting up instruction, in particular, should be given.[8] Vickers said it was his preferred instruction; thus, Olaes now argues that Vickers withdrew the susceptibility instruction in favor of the lighting up instruction.
While it is true that the parties discussed only the lighting up instruction at this time, the discussion at the formal hearing on exceptions the next day was more general. Vickers protested the court’s decision not to give the jury any legal guidance of how it should consider evidence of his lifetime of labor, the 1994 back strain, and later chiropractic treatments:
[Vickers]: As a final comment from my side, your Honor, the basic instruction that we have, and everybody knows this, the instruction is supposed to cover all the evidence produced by either side. The defense has said over and over again this was a hard-working man. If that disc was popped, it was popped because of his hard work. . . . and this accident has nothing to do with it. The jury has — that’s been their main attack the entire time, and yet there’s no — the court is silent on susceptibility despite the evidence, and I would ask the court to reconsider, I really would.[9]
Given Vickers’ reference during this colloquy to `susceptibility’ and the need for guidance to the jury, and the court’s awareness that both instructions had been proposed, we conclude the court understood that Vickers wanted an instruction either on preexisting condition, susceptibility, or both.
The question, then, is whether the court got it right the first time, and later abused its discretion by concluding the trial was unfair without the two contested instructions having been given. The proposed lighting up instruction tracks the language of WPI 30.18 and reads as follows:
If your verdict is for the plaintiff and if you find that:
(1) before this occurrence the plaintiff had a bodily condition that was not causing pain or disability; and
(2) because of this occurrence the pre-existing condition was lighted up or made active, then you should consider the lighting up and any other injuries that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.[10]
The proposed instruction on particular susceptibility tracks the language of WPI 30.18.01 and reads as follows:
If your verdict is for the plaintiff, and if you find that:
(1) before this occurrence the plaintiff had a bodily condition that was not causing pain or disability; and
(2) the condition made the plaintiff more susceptible to injury than a person in normal health, then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.[11]
The trial court refused to give the lighting up instruction to the jury out of concern that there was no medical testimony to support it: I think the overriding problem is that we just have absolutely no testimony at all indicating that if there was a preexisting condition that it was lighted up by the accident on April 5th. That’s been my concern.[12]
The trial court expressed concern `that if I give the instruction, that I’m creating a comment on nonexistent evidence which is reversible error.’[13] The court reversed this assessment when granting Vickers’ motion for a new trial:
The court concludes that it erred in declining to give either WPI 30.18 (Previous Infirm Condition) or WPI 30.18.01 (Particular Susceptibility), or both, each of which originally was proposed by both parties.¹ There was sufficient evidence to warrant giving one or both instructions because the testimony offered by Dr. Herring and Dr. Tobin, notably Dr. Tobin’s opinion that the accident did not cause the herniated disc and the implication from his testimony that Plaintiff Wesley Vickers’ history of heavy work as a transmission mechanic is consistent with or contributed to the onset of a herniated disc, and Dr. Herring’s characterization of plaintiff Wesley Vickers as being a person with a `disc at risk.’
¹ It may be that only WPI 30.18.01 need have been given, however, Dr. Herring’s testimony, `But I don’t think that if not for the accident he would be in his current state. I think the accident caused the herniation or certainly made the herniation symptomatic for him,’ Deposition of Dr. Stanley Herring at 86, suggests the lighting up a pre-existing condition, as contemplated by WPI 30.18. The court also may have erred in failing to exclude or to limit the purpose for which evidence of prior back complaints may be heard by the jury, where there was no apparent medical testimony establishing a causal relationship between plaintiff Wesley Vickers’ prior conditions and his post accident complaints or conditions, for which damages were sought. See Plaintiff’s Motion in Limine Regarding Unrelated Accidents, Incidents and Conditions and Defendant’s Response thereto.[14]
Each instruction must be supported by substantial evidence. Enslow v. Helmcke, 26 Wn. App. 101, 104, 611 P.2d 1338 (1980). Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the declared premise. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936 P.2d 1163
(1997).
Both instructions depend on evidence that the plaintiff, before the occurrence, had `a bodily condition that was not causing pain or disability’.[15] Olaes contends the evidence in this case is factually similar to evidence that was found insufficient in Austin v. Department of Labor and Industries, 6 Wn. App. 394, 492 P.2d 1382 (1971). In Austin, there was no testimony that the claimant’s condition rheumatoid arthritis of the spine was asymptomatic before the occurrence of the work injury. The physicians who testified agreed that the arthritis was a chronic condition that would have progressed naturally without the injury. Accordingly, this court found the evidence insufficient to support a `lighting up’ instruction.
Unlike in Austin, here there was substantial testimony indicating that if Vickers had a preexisting condition, it was not causing him pain or disability before the accident. Dr. Herring said it was possible for an individual, even a professional athlete, to have a herniated disk and yet function normally on a daily basis; and he said sometimes the pain associated with a herniated disc would go away after the acute stage of the injury.[16] Vickers testified that as of the day of the crash, he did not have any physical problems in any part of his body.[17] A friend testified that he worked on construction projects with Vickers as recently as the summer of 1999, and that he never complained about his back or missed a day of work.[18] Vickers’ wife verified that her husband `never missed work’, and that after he received chiropractic treatment for the 1994 back strain, `he’s never had a problem since.’[19]
The lighting up instruction requires evidence that the accident lighted up the pre-existing condition. Dr. Herring testified that the accident caused the herniation `or certainly made the herniation symptomatic’ for Vickers.[20] This is substantial evidence to prove lighting up.
The susceptibility instruction requires evidence that the pre-existing condition made the plaintiff more susceptible to injury than a person in normal health. There was testimony from Dr. Tobin, based on x-rays taken by a chiropractor in 1997, that Vickers showed a narrowing of the disc space, or degenerative changes, in his lower spine. Also, Dr. Tobin testified that a person who engages in heavy labor is at greater risk of back pain and `discogenic problems’ than someone in a sedentary occupation, because `they’re using their back more. They’re lifting, they’re twisting, they’re tearing, they’re climbing.’[21] Dr. Herring testified that Vickers `could have certainly had what we refer to as a disc at risk, meaning that like all people have some wear and tear, and then the trauma from this squirted out the material, developed the symptoms that he was being seen for.’[22] This testimony is substantial evidence that Vickers was more susceptible to injury.
We conclude there was sufficient evidence before the jury to support both of the instructions at issue.
Olaes contends, however, that even if the evidence supported the instructions, the court’s failure to give them does not necessitate a new trial, because the instructions that were given were sufficient to allow Vickers to argue his theory of causation namely that the accident caused the disk herniation.
To be proper, instructions must permit each party to argue their theory of the case, not be misleading, and properly inform the jury of the applicable law. Capers v. The Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822 (1998). The problem here is that the instructions given did not fully inform the jury of the applicable law. In closing argument, Olaes was able to invite the jury to infer that Vickers’ herniated disc preexisted the accident and therefore the accident was a minimal cause any pain or disability he was currently experiencing. The contested instructions would have allowed the jury to compensate Vickers for pain and disability related to the disk even if they found that it ruptured before the accident.
We conclude the court did not abuse its discretion in ordering a new trial based upon the refusal to give the two contested instructions. Upon retrial, the court is free to reconsider any decisions made during the first trial, including decisions on the admissibility of evidence.
Affirmed.
GROSSE and KENNEDY, JJ., concur.