Opinion
No. 22332-9-III, consolidated with No. 22390-6-III
Filed: November 4, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No: 00-2-00294-3. Judgment or order under review. Date filed: 07/02/2003. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Elizabeth F. Baker, Carlson McMahon Sealby PLLC, 37 S Wenatchee Ave Ste F, Wenatchee, WA 98807.
Robert William Sealby, Carlson McMahon Sealby PLLC, 37 S Wenatchee Ave Ste F, PO Box 2965, Wenatchee, WA 98807-2965.
Counsel for Respondent(s), George M. Ahrend, Attorney at Law, 101 Farber Rd Apt 5b, Princeton, NJ 08540-6556.
Garth Louis Dano, Garth Dano Associates, PO Box 2149, Moses Lake, WA 98837-1740.
William A. Gilbert, William A. Gilbert PS, 100 E Broadway, Moses Lake, WA 98837.
Michael Alvarado, a minor league baseball umpire, was injured when his pickup was hit by a van driven by Marshall Stander. Mr. Alvarado sued Mr. Stander for general damages, medical expenses, and loss of future income as a major league umpire. The jury awarded past and future medical expenses and future wage loss, but awarded nothing for pain and suffering. Mr. Stander appeals, contending the trial court erred in admitting certain evidence, in denying Mr. Stander the right to testify in his case in chief, in denying his CR 50 motion to dismiss the claim for future wage loss, and in denying his motion to reduce or vacate the verdict or to order a new trial. Finding no error, we affirm.
Facts
On January 16, 1998, Mr. Alvarado was waiting at a stop light in Moses Lake. Mr. Stander, a California native, had recently driven to Moses Lake from western Washington in a rented van. He drove up behind Mr. Alvarado, slid on the icy road, and collided with Mr. Alvarado's pickup and another vehicle.
After the police responded and made a report, Mr. Alvarado drove himself to the hospital because he felt 'a little soreness' in his neck. Report of Proceedings (RP) at 446. He was X rayed and given muscle relaxers, but his pain worsened. Chiropractic treatment gave him some relief over the next several weeks until he had to leave Moses Lake to umpire spring baseball training in mid-March. By May 1998, he reported constant neck pain and occasional migraine headaches. The pain was worse when he was the home plate umpire.
At the time of the accident, Mr. Alvarado was a professional umpire in the AA Southern baseball league, a minor league level. In the off-season, he worked as a salesperson in a hardware store. He continued to work as a professional umpire through the 1999 season and was promoted to the AAA minor league for the 2000 season. Throughout this time, however, he complained of neck pain and problems sleeping due to pain. During the 2001 season, Mr. Alvarado was called up early to umpire two major league games. But his neck pain worsened during 2001. By the time of baseball spring training in 2002, he had decided he would not return to umpiring.
Mr. Alvarado filed suit against Mr. Stander for personal injuries in March 2000. At trial in June 2003, Richard Nelson, an umpire instructor and major league umpire supervisor, testified by video deposition that Mr. Alvarado was an able umpire who was destined to work in the major leagues. He also noted that Mr. Alvarado's energy and intensity diminished in 1998 after the collision. Daniel Harper, a certified public accountant, testified that assuming Mr. Alvarado would have been promoted to the major leagues by 2005, he lost potential future wages of $3,013,000 for a projected 25-year career.
The jury awarded Mr. Alvarado past medical expenses of $9,700, future medical expenses of $3,000, and future wage loss of $640,000. No award was given for noneconomic damages. Mr. Stander's posttrial motion for vacation or reduction of the verdict or for a new trial was denied and he filed a timely notice of appeal.
Admission of Evidence
Mr. Stander first challenges several rulings by the trial court that admitted evidence he contends was irrelevant, prejudicial, untimely disclosed, beyond the scope of cross-examination, or without proper foundation. Because a trial court has broad discretion to rule on evidentiary matters, we will not overturn the trial court's decisions unless we find a manifest abuse of discretion. Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000). The trial court abuses its discretion if it 'takes a view no reasonable person would take, or applies the wrong legal standard to an issue.' Id.
I. Evidence of vehicle damage. Mr. Stander first contends a photo of Mr. Alvarado's pickup was improperly admitted over objection. He argues that because the property damage claim was settled prior to trial, the photo was irrelevant to the current action and was prejudicial because it led to speculation regarding the speed and force of the collision. However, as Mr. Alvarado notes, Mr. Stander did not object to the admission of the photo at trial. During a pretrial hearing, the court specifically asked if there was any objection to the photo. Counsel for Mr. Stander replied, 'I don't think I can object to that.' RP at 211. He did object, however, to testimony from Mr. Alvarado that referred to the possible speed Mr. Stander had been driving. Later, when the photo was offered into evidence at trial, Mr. Stander made no objection.
An error should be raised at trial to preserve the issue on appeal. RAP 2.5(a). The purpose of this rule is to allow the trial court to correct any error when it arises, preventing the necessity of an appeal or a new trial. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988); Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). Mr. Stander not only failed to preserve this issue for appeal, but he invited the error by declaring during pretrial that he would not object to admission of the photo. See Lavigne v. Chase, Haskell, Hayes Kalamon, P.S., 112 Wn. App. 677, 681, 50 P.3d 306 (2002) (a litigant may not set up error at trial and then complain of it on appeal).
II. X rays and medical reports. Mr. Stander contends Dr. William Davis, Mr. Alvarado's chiropractor, was allowed to testify over objection regarding X rays and an X-ray report that had not been disclosed before trial. During redirect, Dr. Davis was asked about X rays he had taken of Mr. Alvarado in October 2002. Mr. Stander's counsel soon realized he did not have a copy of the X-ray report in the materials he had received from Dr. Davis. The trial court called a recess so the attorneys could exchange the information.
After he received a copy, Mr. Stander's counsel moved to exclude any testimony about the X rays because the defense medical expert had not had a chance to review them. He specifically noted to the court, however, that he did not believe Mr. Alvarado's counsel had intentionally withheld the X-ray report. The court agreed that defense counsel's failure to obtain the X-ray report was not caused by plaintiff's counsel. When asked the nature of the prejudice against him, Mr. Stander's counsel repeated that his expert had not had a chance to review the report, and that he would need to consult with the expert. With that, the court denied the motion to preclude testimony regarding the October 2002 X rays.
A trial court may exclude evidence if the failure to disclose such evidence was a willful violation of a court order. Dempere v. Nelson, 76 Wn. App. 403, 406, 886 P.2d 219 (1994). Exclusion of evidence as a sanction for noncompliance with a discovery order is reviewed for abuse of discretion. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Here, the trial court — with Mr. Stander's agreement — found that Mr. Alvarado did not knowingly or willfully violate the discovery order. It would have been an abuse of discretion to exclude the X-ray report absent a showing of at least intentional nondisclosure. Id. Consequently, the trial court did not abuse its discretion in denying the motion to preclude Dr. Davis's testimony regarding the report and the X rays.
Mr. Stander's additional assertion — that Dr. Davis was allowed to testify regarding a lunch break conversation with another health care provider — is not well taken. During cross-examination, Dr. Davis was asked to read aloud from a September 2002 report by Dr. Wooster, Mr. Alvarado's Tennessee physician, that stated Mr. Alvarado's condition was resolved. Dr. Davis decided to call Dr. Wooster during the lunch break from trial that day, and Dr. Wooster expressed surprise that his record indicated resolution of Mr. Alvarado's condition. Dr. Wooster faxed a February 2003 report to plaintiff's counsel that stated Mr. Alvarado needed continued medical care. When Mr. Alvarado's counsel attempted to question Dr. Davis about the lunch break conversation during redirect, Mr. Stander's counsel objected on the basis of surprise. The trial court found that the telephone call was hearsay and inadmissible. Dr. Davis was permitted to testify only that he relied on Dr. Wooster's opinion in reaching his own opinion.
Dr. Davis was allowed, however, to testify regarding the February 2003 Wooster report that had been faxed to plaintiff's counsel. The trial court ruled that the new report, previously undisclosed to either party, was relied upon by Dr. Davis in reaching his professional opinion. ER 703 provides that data reasonably relied upon by experts in a particular field need not be admissible in evidence. Citing ER 703, the trial court ruled that Dr. Davis could be asked whether he relied upon the February 2003 report. The report itself was not admitted. Mr. Stander's counsel objected to this testimony on the basis of its untimely discovery.
As with the October 2002 X-ray report, however, Mr. Stander cannot show that the failure to disclose the February 2003 report was willful. Burnet, 131 Wn.2d at 494. Dr. Wooster's medical records were available to the parties at any time up to and including the time of trial. Earlier Wooster records were obtained by both parties and were relied upon by the medical experts who testified at trial. Both parties were equally surprised by the record, which was obtained by Dr. Davis on his own initiative. And both parties had the same opportunity to question Dr. Davis about the effect the report had on his opinion. The trial court did not abuse its discretion in allowing testimony regarding Dr. Wooster's February 2003 report.
III. Evidence outside the scope of cross-examination. Mr. Stander assigns error to testimony elicited on redirect of Dr. Davis, Mr. Alvarado, and Mr. Alvarado's wife. He contends aspects of these testimonies were outside the scope of the cross-examination and should have been rejected pursuant to ER 611(b).
Under ER 611(b), the scope of cross-examination is limited to the subject matter of direct examination as well as to the credibility of the witness. However, the court has discretion to permit inquiry into additional matters. ER 611(b). The rule does not specifically address the scope of redirect examination. Generally, redirect examination is employed to clarify matters that may have become confused during cross-examination, to rehabilitate a witness, or to rebut testimony elicited during cross-examination. State v. Mack, 80 Wn.2d 19, 20-21, 490 P.2d 1303 (1971). When a party opens up a subject of inquiry on cross-examination, the rules permit redirect examination within that subject area. Ang v. Martin, 118 Wn. App. 553, 562, 76 P.3d 787 (2003) (quoting State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969)). The admission or exclusion of testimony on redirect examination that is not strictly rebuttal of testimony elicited during cross-examination rests in the sound discretion of the trial court. State v. Baker, 4 Wn. App. 121, 128, 480 P.2d 778 (1971). We will not review the exercise of that discretion except for manifest abuse that results in prejudice to the complaining party. State v. Conklin, 37 Wn.2d 389, 392, 223 P.2d 1065 (1950).
Throughout cross-examination of Dr. Davis, he was asked to comment on his medical records and the reports of other medical professionals who had given care to Mr. Alvarado. Mr. Stander's counsel asked Dr. Davis if he had noticed any congenital defects in X rays he had taken of Mr. Alvarado. Although he stated he had not seen any defects, he admitted that another expert had diagnosed scoliosis from the same X rays. On redirect, Dr. Davis was asked about a report he received from Olympic Spine Rehabilitation (which indicated that Mr. Alvarado had complained of pain while umpiring) and about X rays from the original treating hospital. Mr. Stander objected that this testimony was beyond the scope of the cross-examination. The trial court stated it would exercise its discretion and allow the testimony. Dr. Davis's testimony on redirect tended to rebut or clarify the medical reports examined during cross-examination. Mr. Stander had ample opportunity to further explore this testimony on recross. Because he fails to show prejudice or abuse of the trial court's broad discretion, there is no error.
The same can be said of Mr. Alvarado's and Ms. Alvarado's testimony on redirect. Mr. Stander contends Mr. Alvarado exceeded the scope of cross-examination when he was allowed to testify that three other umpires from his class made it into the major leagues. He contends Ms. Alvarado should not have been allowed to testify that her graduation from college in 2001 had nothing to do with her husband's decision to quit umpiring. The trial court overruled the objection to Mr. Alvarado's testimony because it found that the failure to ask him about his other classmates was an oversight. This was a proper exercise of the trial court's discretion to allow new evidence on redirect. Conklin, 37 Wn.2d at 392. Ms. Alvarado's testimony rebutted the inference raised by Mr. Stander on cross-examination that her graduation from college immediately preceded and influenced Mr. Alvarado's decision to stop umpiring. See Gefeller, 76 Wn.2d at 455. We find no abuse of discretion.
IV. Evidence without a proper foundation. Mr. Stander assigns error to the admission of testimony from Dr. Davis, David Heaverlo, and Mr. Alvarado that he contends was introduced without a proper foundation. Once again, we review for abuse of discretion. Cox, 141 Wn.2d at 439.
During redirect, Dr. Davis was asked if he knew the dangers of taking anti-inflammatory nonprescription drugs on a frequent, long-term basis. Mr. Stander objected on the basis of lack of foundation. The objection was overruled and Dr. Davis responded that studies showed kidney and liver damage from frequent use of the anti-inflammatory medications. Later, Dr. Davis was allowed over objection to state whether or not he thought Mr. Alvarado's treatment by other medical professionals was reasonable and necessary. Mr. Stander now contends that, as a chiropractor, Dr. Davis was not qualified as a medical expert to testify regarding medications or other medical treatments.
A chiropractor is competent to testify as an expert on matters within the scope of the profession of chiropractic. Brannan v. Dep't of Labor Indus., 104 Wn.2d 55, 63, 700 P.2d 1139 (1985). 'The practice of chiropractic in Washington includes 'diagnosis or analysis and care or treatment of vertebral subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders. . . .' RCW 18.25.005(1).' Loushin v. ITT Rayonier, 84 Wn. App. 113, 119, 924 P.2d 953 (1996). As part of the chiropractic diagnosis, the chiropractor is authorized to conduct a physical examination, including X rays, to determine the need for chiropractic care or the need for referral to other health care providers. Id. (citing RCW 18.25.005(3)). As with other experts, the testimony of a chiropractor may be based on facts or data 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences.' ER 703; Riccobono v. Pierce County, 92 Wn. App. 254, 267, 966 P.2d 327 (1998).
In this case, Dr. Davis was asked his opinion on medical treatments and the frequent use of over-the-counter anti-inflammatory medications. He testified that he regularly reviewed records and billings from other treating doctors and physical therapists. He also testified that in his work as a chiropractor he reviewed studies on the dangers of anti-inflammatory drugs. Familiarity with pain and inflammation treatment is an aspect of chiropractic practice, as is familiarity with the billing practices and treatments of other medical practitioners who treat muscular and skeletal disorders. Information from these sources is reasonably relied upon by chiropractors in reaching treatment decisions. The trial court did not abuse its discretion in finding that Dr. Davis was qualified to testify on these matters.
Mr. Stander next contends David Heaverlo, a former professional baseball player and pitching coach, was not qualified to give an opinion on whether Mr. Alvarado would have become a major league baseball umpire. He argues that Mr. Heaverlo was improperly allowed as a lay witness to give an opinion as to an ultimate fact, abrogating the role of the jury.
Lay opinion testimony is limited to opinions and inferences rationally based on the perception of the witness and helpful to an understanding of the witness's testimony or to the determination of a fact in issue. ER 701. 'Such testimony is not objectionable merely 'because it embraces an ultimate issue to be decided by the trier of fact.' ER 704.' State v. Lass, 55 Wn. App. 300, 304, 777 P.2d 539 (1989). Mr. Heaverlo had known who Mr. Alvarado was since 1985 and had observed him umpire home plate at a 2000 AAA baseball game. In his opinion, Mr. Alvarado had the ability to umpire in the major leagues. Although the trial court refused to allow Mr. Stander to voir dire Mr. Heaverlo on the foundation for his opinion, cross-examination of Mr. Heaverlo accomplished the same purpose. The trial court did not abuse its discretion in allowing Mr. Heaverlo to state his opinion and in denying Mr. Stander's request to voir dire.
Finally, Mr. Stander contends Mr. Alvarado had no foundation for his opinion that he was called up early to umpire two major league games in 2001 because someone in the major leagues was interested in him. Mr. Alvarado's years of experience as a professional baseball umpire were sufficient to support his interpretation of the events that occurred in his life. His opinion was helpful to an understanding of the considerations involved in his decision to quit umpiring. ER 701. The trial court did not abuse its discretion in allowing him to explain why he thought employment as a major league umpire was imminent.
A Civil Party's Right to Take the Stand
Mr. Stander first testified as an adverse witness for Mr. Alvarado and described the events leading up to and immediately following the collision. After Mr. Alvarado rested his case, Mr. Stander's attorney asked to recall his client to show what kind of person Mr. Stander is. He wanted to rebut an inference he felt was made that his client was 'some high-powered Hollywood agent.' RP at 1271. The trial court responded that Mr. Stander's finances were not relevant to this negligence action; consequently, his counsel could only ask questions regarding who he is, not his income level. Faced with that restriction, Mr. Stander's attorney stated, 'Then there's nothing I can ask,' and he decided not to call him to the stand. RP at 1275. Mr. Stander now contends he was denied a fundamental due process right to present evidence in his own defense.
All relevant evidence is admissible unless otherwise excluded by the rules of evidence. ER 402; Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994). Relevant evidence is defined as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. As with all issues of admissibility of evidence, the trial court's decision is reviewed for abuse of discretion. Havens, 124 Wn.2d at 168. As the trial court noted here, Mr. Stander's level of prosperity was not relevant to the issue of damages due to Mr. Alvarado in this negligence action. The trial court did not deny Mr. Stander the right to take the stand in his own defense; it merely limited the scope of direct examination to avoid irrelevant issues. We find no abuse of discretion.
CR 50 Motion to Dismiss
After testimony and before the case was submitted to the jury, Mr. Stander moved pursuant to CR 50(a) for judgment as a matter of law on the issue of the claim for future wage loss. He argued that the assumption that Mr. Alvarado would become a major league umpire by 2005 was not supported by a preponderance of the evidence. The trial court found sufficient evidence in the testimony and exhibits to support that assumption and denied the motion. Mr. Stander challenges this ruling on appeal.
CR 50(a)(1) provides that during a jury trial, the court may grant a motion for judgment as a matter of law if 'a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue.' We review the trial court's denial of a CR 50(a) motion by applying the same standard as the trial court. Hizey v. Carpenter, 119 Wn.2d 251, 271, 830 P.2d 646 (1992) (quoting Indus. Indem. Co. of the N.W., Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990)). Considering the evidence in the light most favorable to the nonmoving party, we determine whether any of the evidence would support a verdict for that party. Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995); Bender v. City of Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983). We will not overturn a verdict if the record contains sufficient evidence to persuade a rational, fair-minded juror of the truth of the matter in question. Caulfield v. Kitsap County, 108 Wn. App. 242, 250, 29 P.3d 738 (2001).
'Motions for a directed verdict and motions for judgments notwithstanding the verdict were renamed 'motions for judgment as a matter of law' effective September 17, 1993.' Litho Color, Inc. v. Pac. Employers Ins. Co., 98 Wn. App. 286, 298 n. 1, 991 P.2d 638 (1999).
Computation of the value of Mr. Alvarado's prospective lost wages as a major league umpire was made by Daniel Harper, a certified public accountant, who assumed Mr. Alvarado would have been promoted to the major leagues at least by 2005. The basis for this assumption was the video deposition of Richard Nelson, an umpire instructor who became a supervisor in the major league umpire development program. Mr. Nelson had known Mr. Alvarado since 1992, when Mr. Alvarado had begun umpiring school. In the five years he personally supervised Mr. Alvarado (1992-1997), Mr. Nelson had observed steady improvement in Mr. Alvarado's umpiring skills. Mr. Nelson quit supervising after the 1997 season, but he reviewed Mr. Alvarado's evaluations for 1998-2001 and testified that they showed continued improvement. In particular, he noted that when Mr. Alvarado was ranked in the top 15 of 57 AAA umpires in 2001, he was poised to move into the major leagues as a substitute. Mr. Nelson thought that Mr. Alvarado would have been a major league umpire by 2003 or 2004. When asked if, on a more probable than not basis, he could predict that Mr. Alvarado would have become a major league umpire, Mr. Nelson answered, 'Absolutely.' Nelson Dep. at 80.
Mr. Stander contends Mr. Nelson's opinion was mere speculation and argues that an expert opinion — Mr. Harper's — should not rely on another expert's speculative opinion. Under ER 703, an expert's factual basis may be composed of information in the record. Riccobono, 92 Wn. App. at 267. In this case, the record included the video deposition of Mr. Nelson, a recognized expert in the field of umpire evaluators. Mr. Nelson's opinion was based on personal observation of Mr. Alvarado and review of evaluations by other umpire supervisors. ER 703 (an expert may also base his or her opinion on information reasonably relied upon by others in the field). Mr. Harper's wage loss calculations were reasonably based on Mr. Nelson's testimony. Any rational juror could have been persuaded by the evidence to accept Mr. Harper's and Mr. Nelson's expert opinions. Consequently, the trial court did not err in denying Mr. Stander's CR 50 motion to dismiss the claim of future lost wages. Goodman, 128 Wn.2d at 371; Caulfield, 108 Wn. App. at 250.
Posttrial Motions
After the jury verdict, Mr. Stander again unsuccessfully moved pursuant to CR 50 for judgment as a matter of law. He asked the trial court to vacate or reduce the judgment or in the alternative to order a new trial. CR 50(b). On appeal, he cites RCW 4.76.030, CR 50(b), and CR 59(a)(5) and contends the award for future wage loss must be reduced or vacated due to the passion or prejudice of the jury. The statute and the rules provide the court authority to order a new trial or to alter the award of damages if the award has no legally sufficient basis in the record. RCW 4.76.030; CR 50(b); CR 59(a)(5). As with the preverdict CR 50(a) motion, the CR 50(b) posttrial motion for judgment as a matter of law and the CR 59(a) motion for new trial are granted only when the court can find as a matter of law that there is no evidence to support the verdict. Aluminum Co. of Am. v. Aetna Cas. Surety Co., 140 Wn.2d 517, 529, 998 P.2d 856 (2000) (quoting Goodman, 128 Wn.2d at 371); Kadmiri v. Claassen, 103 Wn. App. 146, 150, 10 P.3d 1076 (2000) (quoting CR 59(a)(5)). On review of a CR 50(b) motion, we interpret the evidence "most strongly against the moving party and in the light most favorable to the opponent. No element of discretion is involved." Aluminum, 140 Wn.2d at 529 (quoting Goodman, 128 Wn.2d at 371). We review denial of a motion for a new trial for abuse of discretion. Kadmiri, 103 Wn. App. at 150.
'The determination of damages is peculiarly within the province of the jury, . . . and courts are reluctant to interfere.' Stevens v. Gordon, 118 Wn. App. 43, 54, 74 P.3d 653 (2003). The jury's award will not be disturbed 'unless it is outside the range of substantial evidence, shocks the conscience of the court, or was the result of passion or prejudice.' Id. The trial court has no discretion to reduce a jury's award of damages if the verdict is within the range of credible evidence. Green v. McAllister, 103 Wn. App. 452, 461, 14 P.3d 795 (2000). Even when the damages are conflicting or disputed, if it can be said that the jury could 'believe or disbelieve some of it and weigh all of it and remain within the range of the evidence in returning the challenged verdict, then it cannot be found as a matter of law' that the verdict was motivated by passion or prejudice. James v. Robeck, 79 Wn.2d 864, 870-71, 490 P.2d 878 (1971).
Mr. Stander contends Mr. Alvarado provided no medical proof that he was unable to umpire because of pain caused by the collision. But Dr. Davis testified that Mr. Alvarado was in increasing pain during the years he umpired. Additionally, Mr. Alvarado testified regarding the pain he endured. Although the issue of the degree of pain and its effect on the ability to umpire was disputed, clearly there was sufficient credible evidence to support the jury's conclusion that Mr. Alvarado was unable to work as an umpire due to the effects of the collision. The fact that the jury did not award Mr. Alvarado for pain and suffering is curious, but is not in itself a clear manifestation of passion or prejudice.
As for the amount of the award, the $640,000 awarded by the jury for future wage loss was well within Mr. Harper's calculation that Mr. Alvarado lost potential future wages of $3,013,000. Because the award is supported by sufficient evidence and falls within the range of that evidence, the trial court did not err in denying the posttrial motion for judgment as a matter of law or for a new trial. Aluminum, 140 Wn.2d at 529 (CR 50(b)); Kadmiri, 103 Wn. App. at 150 (CR 59(a)(5)). Issues Raised in Reply Brief.
Mr. Stander raises new issues in his reply brief. Borrowing from criminal appeals, he contends the trial was 'fundamentally unfair' due to cumulative errors. Reply Br. at 2. He also challenges Mr. Nelson's opinion that Mr. Alvarado was an exceptional umpire in the years just before and after the collision, an opinion based on evaluations by other supervisors rather than on Mr. Nelson's personal experience. We may refuse to review issues raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In light of the discussion above rejecting Mr. Stander's claims of errors and finding sufficient evidence to support Mr. Nelson's opinion, we also find that these issues are unsupported by the record. We deny Mr. Alvarado's motion to file a sur-reply or to strike the reply brief.
Attorney Fees
Both parties request attorney fees in the last lines of the conclusion sections of their appellate briefs, but neither party devotes a separate section to the request with supporting argument. RAP 18.1(b). A separate section of the brief devoted to the issue of attorney fees is mandatory. In re Marriage of Hammack, 114 Wn. App. 805, 812, 60 P.3d 663, review denied, 149 Wn.2d 1033 (2003). Consequently, neither party is entitled to RAP 18.1 attorney fees on appeal.
Affirmed. Mr. Alvarado's motion to strike or to file a sur-reply is denied.
A majority of the panel has determined that 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.
KATO, C.J. and BROWN, J., Concur.