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Bramlett v. Heckard

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1035 (Wash. Ct. App. 2007)

Opinion

No. 56667-9-I.

March 12, 2007.

Appeal from a judgment of the Superior Court for King County, No. 02-2-12166-7, Michael Hayden, J., entered June 23, 2005.

Counsel for Appellant(s), Jeffery Michael Campiche, Jeffery M. Campiche, PS, 300 Elliott Ave W Ste 550, Seattle, WA, 98119-414.5.

Michael Eugene Blue, Attorney at Law, 300 Elliott Ave W Ste 550, Seattle, WA, 98119-4145.

Counsel for Respondent(s), Donald Clark Harrison, Attorney at Law, 1601 5th Ave Ste 1210, Seattle, WA, 98101-3602.


Affirmed by unpublished opinion per Dwyer, J., concurred in by Coleman and Ellington, JJ.


Tuyett Bramlett sued Alvin Heckard and Pacific Coatings, Inc., after a truck driven by Heckard and owned by Pacific Coatings hit Bramlett's automobile. A jury awarded Bramlett $105,000 in total damages but did not award her any damages for past medical expenses. Bramlett appeals, assigning error to several of the trial court's evidentiary rulings and to the trial court's denial of her motion for a new trial based on alleged juror misconduct. Finding no error, we affirm.

FACTS

I. Underlying Dispute

On July 8, 2000, as Bramlett was driving south on Interstate 5, Pacific Coatings employee Heckard, operating a company-owned truck, moved his vehicle into Bramlett's lane, striking her car and dragging it along the freeway.

Bramlett was injured in the collision, and was taken to a nearby emergency room for treatment. Bramlett later visited her family physician for follow-up care. An MRI (magnetic resonance imaging) performed by that physician revealed disc protrusions on Bramlett's spinal cord. Bramlett was referred to a neurosurgeon, who observed that Bramlett's spinal cord was compressed. At the time, the neurosurgeon believed that the spinal cord compression was a result of the motor vehicle collision.

The neurosurgeon performed two operations on Bramlett in order to relieve the compression of her spinal cord. During those operations, the neurosurgeon observed that Bramlett had a degenerative condition. After making that observation, the neurosurgeon concluded that Bramlett's spinal cord compression was more likely caused by the degenerative condition than by the motor vehicle collision.

II. Procedural History

In April 2002, Bramlett initiated a lawsuit against Heckard and Pacific Coatings seeking damages for injuries arising out of the motor vehicle collision. Before trial, each party served upon the other a list of exhibits each intended to introduce at trial, pursuant to ER 904(b). The parties then filed a joint statement of evidence with the trial court, which included a list of the aforementioned exhibits. Bramlett also filed a motion in limine seeking to preclude the admission of evidence regarding any preexisting physical conditions of Bramlett's that were asymptomatic immediately prior to the motor vehicle collision. The trial court denied the motion.

"Any party intending to offer a document under this rule must serve on all parties a notice, no less than 30 days before trial, stating that the documents are being offered under Evidence Rule 904 and shall be deemed authentic and admissible without testimony or further identification, unless objection is served within 14 days of the date of notice." ER 904(b) (emphasis added).

The case proceeded to jury trial in May 2005. During Heckard's case-in-chief, the deposition testimony of a doctor who performed a medical examination of Bramlett was read to the jury. During Bramlett's presentation of rebuttal evidence, the trial court allowed Bramlett to present to the jury the contents of a videotape showing that medical examination. Before playing the videotape to the jury, Bramlett moved for leave to read to the jury portions of the doctor's trial testimony. The trial court denied the motion.

Before both parties rested, neither Bramlett nor Heckard offered for admission into evidence any of the exhibits listed in the joint statement of evidence. After both parties had rested, the court had read its instructions to the jury, and Bramlett's closing argument had begun, Bramlett moved to reopen her case in order to offer her exhibits for admission into evidence. Heckard refused to stipulate to the admission of the exhibits, and the trial court ruled that the exhibits would not be admitted at that point in the trial.

The jury returned a verdict awarding Bramlett $105,000, representing general damages, past lost earnings, and future medical expenses. The jury did not award Bramlett any damages for past medical expenses.

In July 2005, Bramlett filed a motion for a new trial alleging that one of the jurors, a registered nurse, engaged in misconduct during jury deliberations. Declarations filed by two jurors in support of Bramlett's motion stated that the nurse commented to the other jurors that a metal plate in Bramlett's neck would have prevented medical personnel from seeing "anything else in her neck" during a subsequent MRI performed on Bramlett. One of the declarations further stated that the nurse commented that if someone complained of neck pain to emergency room staff, it would be standard procedure to perform an MRI on that person. The trial court denied Bramlett's motion for a new trial.

This appeal followed.

DISCUSSION

As a preliminary matter, Bramlett moves this court for an order striking the two-page "Introduction" section of Heckard's brief, arguing that inclusion of that section violates the requirements of RAP 10.3. RAP 10.3, as it read when the parties' briefs were filed, did not expressly prohibit the inclusion of a short introductory section. RAP 10.3 now expressly provides that a party's brief may include such an introductory section. RAP 10.3(a)(3). Bramlett's motion is denied.

We review a trial court's evidentiary ruling, ruling on a motion to reopen a party's case, and ruling on a motion for a new trial based on juror misconduct, for abuse of discretion. Sunbreaker Condo. Ass'n. v. Travelers Ins. Co., 79 Wn. App. 368, 372, 901 P.2d 1079 (1995) (evidentiary rulings); Fuller v. Ostruske, 48 Wn.2d 802, 808, 296 P.2d 996 (1956) (motion to reopen); Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 136, 750 P.2d 1257, 756 P.2d 142 (1988) (motion for new trial). A trial court abuses its discretion only if its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); Coggle v. Snow, 56 Wn. App. 499, 506-07, 784 P.2d 554 (1990).

I. Motion to Exclude Evidence of Preexisting Condition

Bramlett contends that the trial court erred by admitting evidence tending to prove the existence of her preexisting asymptomatic degenerative condition. In support of her contention, Bramlett argues that evidence of a preexisting condition is relevant and admissible only when such a condition is symptomatic immediately prior to the incident in question. We disagree.

Evidence is relevant if it has "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; State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987). Relevant evidence is admissible, "except as limited by constitutional requirements or as otherwise provided by statute, by [the rules of evidence], or by other rules or regulations." ER 402; Rufer v. Abbot Labs., 154 Wn.2d 530, 558, 114 P.3d 1182 (2005).

Here, Bramlett sought to recover damages for injuries resulting from the motor vehicle collision. In so doing, Bramlett alleged that the motor vehicle collision caused the compression of her spinal cord which, in turn, necessitated her treatments and surgeries. In defending against Bramlett's claim, Heckard introduced evidence tending to prove that Bramlett had a preexisting degenerative condition. Heckard did so in order to demonstrate that the degenerative condition itself, rather than trauma from the motor vehicle collision, caused the spinal cord compression that necessitated Bramlett's surgeries. In other words, Heckard's theory was that Bramlett's treatment and surgical intervention would have been necessitated regardless of whether the motor vehicle collision had occurred.

Thus, evidence of the preexisting condition had a tendency to disprove a contention alleged by Bramlett, i.e., that the motor vehicle collision was the proximate cause of her spinal cord compression and the resulting medical care costs and physical suffering. This dispute was a key issue before the jury. Therefore, evidence of Bramlett's preexisting condition was relevant. ER 401.

Bramlett's misperception of the basis for the trial court's ruling admitting this evidence is demonstrated by her citation to Harris v. Drake, 116 Wn. App. 261, 65 P.3d 350 (2003), affirmed, 152 Wn.2d 480, 99 P.3d 872 (2004), and Sutton v. Shufelberger, 31 Wn. App. 579, 643 P.2d 920 (1982), in support of her argument. Neither case addresses the issue posed to the trial court and neither case indicates that the trial court erred by ruling as it did on the basis stated.

Despite Bramlett's contention to the contrary, Heckard did not seek to introduce the evidence of Bramlett's degenerative condition in order to prove that the condition was made active by the motor vehicle collision. Rather, Heckard sought introduction of such evidence to prove that it was the degenerative condition itself, not the motor vehicle collision, which caused the spinal cord compression that necessitated Bramlett's resulting treatment. The trial court correctly apprehended this distinction and appropriately ruled accordingly. There was no error.

II. Motion to Read Portions of Trial Testimony

Bramlett next contends that the trial court erred by denying her motion for leave to read to the jury portions of a physician-witness' trial testimony, which the jury had already heard, prior to showing the jury a videotape containing evidence purportedly in conflict with that testimony. We disagree.

In responding to this issue, Heckard contends that the trial court erred by admitting the videotape into evidence. Given our disposition of Bramlett's claims, we need not address Heckard's contention in this regard.

It falls within a trial court's discretion to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

ER 611(a); State v. Hakimi, 124 Wn. App. 15, 19, 98 P.3d 809 (2004). Accord Wilson v. Overlake Hosp. Med. Ctr., 77 Wn. App. 909, 895 P.2d 16 (1995) (inherent power of the court). Bramlett has not directed this court to any authority, nor are we aware of any, that supports her contention that a trial court abuses its discretion by denying a party leave to read to the jury portions of testimony already in evidence.

Bramlett argues, nonetheless, that her recitation of the doctor's trial testimony should have been allowed, contending that the videotape of the medical examination contains evidence and statements that amount to "prior inconsistent statements."

A prior inconsistent statement is a statement that is made by a witness out of court that is inconsistent with the witness' in-court testimony. State v. Spencer, 111 Wn. App. 401, 409-10, 45 P.3d 209 (2002). Prior inconsistent statements are generally admissible for impeachment purposes. Fraser v. Beutel, 56 Wn. App. 725, 738, 785 P.2d 470 (1990).

However, even assuming that the videotape contains prior inconsistent statements, those statements were admitted when the trial court granted Bramlett leave to present the videotape to the jury. The rule generally allowing admission of prior inconsistent statements does not entitle a party to read portions of trial testimony already in evidence in order to highlight the inconsistencies between the statements and the testimony. At all times, the trial court retains the authority to direct the mode and order of evidence presentation. Wilson, 77 Wn. App. 909.

In addition, Bramlett's request contravened ER 613(b). Pursuant to that rule, extrinsic evidence of a prior inconsistent statement is not admissible unless the witness who purportedly made the statement is afforded an opportunity to explain or deny the statement, and unless the opposing party is afforded an opportunity to interrogate the witness regarding the statement. ER 613(b); State v. Dixon, 159 Wn.2d 65, 76, 147 P.3d 991 (2006).

The trial court did not abuse its discretion by denying Bramlett's motion for leave to read to the jury portions of the doctor's trial testimony.

III. Motion to Reopen Case to Admit Exhibits

Bramlett next contends that the trial court erred by refusing to allow her to reopen her case after the parties had rested, the court's instructions had been read to the jury, and closing argument had begun, in order to offer her exhibits for admission into evidence.

Initially, Bramlett argues that the trial court abused its discretion by not admitting the exhibits into evidence because each of the exhibits she sought to offer was listed in her ER 904(b) notice to Heckard, and had not been objected to by Heckard pursuant to that rule.

An exhibit listed on a notice served on an adverse party in compliance with ER 904(b), and not objected to by the adverse party, is "deemed" authentic and admissible. ER 904(b). However, the rule does not provide that such exhibits are automatically admitted. As with all exhibits, the burden is on the party seeking admission to make a formal offer of admission at trial, before that party has rested its case. ER 904(b) does not compel the trial court to allow a party to reopen its case in order to seek admission of exhibits not timely offered. Bramlett's argument to the contrary is unavailing.

Citing to Glass v. Carnation Co., 60 Wn.2d 341, 342, 373 P.2d 775 (1962) (trial court erred by not reopening case to recall plaintiff when it would have "occasioned only a trifling delay"), Bramlett also argues that Heckard would not have been prejudiced, nor the trial court inconvenienced, by allowing Bramlett to reopen her case. While it is true that Heckard did not file a pre-trial objection to the proposed exhibits Bramlett sought to authenticate pursuant to ER 904(b), it is also true that objections based on relevance may be reserved until trial commences. ER 904(c)(2).

In addition, the trial court likely had reasonable concerns that Heckard's tactical decisions with regard to examination of witnesses, presentation of evidence, or exceptions to the jury instructions might have been different had Bramlett's proposed exhibits been timely admitted. Indeed, at the time Bramlett sought to reopen her case to seek admission of the proposed exhibits, Heckard asserted to the trial court that he would have chosen to offer into evidence his own exhibits during his presentation of evidence had Bramlett timely offered hers.

Finally, on appeal Bramlett asserts that several of the proposed exhibits (bills for prior medical treatment) were particularly crucial in order for the jury to determine the amount of damages Bramlett was entitled to recover for prior medical expenses. However, Bramlett never suggested to the trial court that it admit only those medical bills. Instead, Bramlett sought the admission of all 51 proposed exhibits. The trial court did not err by not sua sponte offering this alternative to Bramlett.

By failing to comply with the well-established requirement that exhibits be offered for admission during the phase of trial dedicated to the presentation of evidence, Bramlett put herself to the grace of the trial court — a grace which was not forthcoming. While another court might have viewed the situation differently, the test for abuse of discretion is not whether another court might have ruled differently, but whether the trial court making the decision based its decision on tenable grounds and reasons. Coggle, 56 Wn. App. at 506-07. Here, it did so. There was no error.

IV. Motion for New Trial Based on Juror Misconduct

Finally, Bramlett contends that the trial court erred by denying her motion for a new trial based on alleged juror misconduct.

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. Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990). A party asserting juror misconduct bears the burden of showing that it occurred. State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47 (2000). 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. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003) (quoting State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994)).

It is misconduct for a jury to consider extrinsic evidence. Breckenridge, 150 Wn.2d at 199, 199 n. 3 (citing Balisok, 123 Wn.2d at 118). Extrinsic evidence is "information that is outside all the evidence admitted at trial, either orally or by document," and is improper because it "is not subject to objection, cross-examination, explanation, or rebuttal." Breckenridge, 150 Wn.2d at 199 n. 3 (quoting Balisok, 123 Wn.2d at 118). On the other hand, it is not misconduct for jurors to use common sense or consider their own life experiences in reaching a verdict. Johnson v. Carbon, 63 Wn. App. 294, 302, 818 P.2d 603 (1991). See, e.g., Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 204, 75 P.3d 944 (2003) (juror's statements regarding the manner in which an emergency room doctor would react to a particular situation, based on a juror's personal experiences visiting an emergency room, did not constitute misconduct).

In determining whether a juror's comments constitute extrinsic evidence rather than personal life experience, we consider whether the comments impart the kind of specialized knowledge that is provided by expert witnesses at trial. Breckenridge, 150 Wn.2d at 199 n. 3.

Furthermore, when considering whether misconduct has occurred, the trial court may not consider a juror's post-verdict statements that explain the reasoning behind the jury's verdict, because such statements are considered to "inhere in the verdict." Breckenridge, 150 Wn.2d at 204-05. As the court in Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967), explained:

The mental processes by which individual jurors reached their respective conclusions, their motives in arriving at their verdicts, the effect the evidence may have had upon the jurors or the weight particular jurors may have given to particular evidence, or the jurors' intentions and beliefs, are all factors inhering in the jury's processes in arriving at its verdict, and, therefore, inhere in the

verdict itself, and averments concerning them are inadmissible to impeach the verdict.

The relevant facts of this case are strikingly similar to those arising in Richards, 59 Wn. App. at 270. In that case, a juror who worked as an occupational therapist reviewed the medical records in evidence during jury deliberations and discovered that the plaintiff suffered from influenza prior to the injuries allegedly caused by the defendant. The occupational therapist stated to the other jurors that, in her opinion, the influenza, rather than the defendant's negligence, caused the injuries suffered.

We held that those statements did not constitute juror misconduct. Richards, 59 Wn. App. at 275. Important to our decision was that the occupational therapist did not introduce extrinsic evidence into the jury room but, rather, employed her own medical knowledge to weigh the evidence put before the jury by the parties. Richards, 59 Wn. App. at 274. In addition, while acknowledging that the occupational therapist's statements might well have been "outside the realm of a typical juror's general life experience and would not usually be introduced into the jury's deliberations," we deemed it significant that both parties knew of the occupational therapist's medical background and knowledge during voir dire, but nonetheless chose to let her remain on the jury. Richards, 59 Wn. App. at 274-75.

Based on these factors, we concluded that juror misconduct had not been established:

[The juror's] background was known to the parties at the time of voir dire and her "medical" knowledge was something she naturally brought in with her to the deliberations, and this was known by all the parties after voir dire. The medical records were introduced into evidence and sent to the jury room with the jury for its use in the deliberations. There was no extrinsic evidence brought into the case and thus there was no misconduct.

Richards, 59 Wn. App. at 274.

These factors are present in this case as well. First, the evidence about which the nurse made the disputed statements (the subsequent MRI and Bramlett's hospital visit) was before the jury. The nurse-juror did not introduce new or novel evidence into the jury room but, rather, weighed the evidence already before the jury based on her own personal experiences.

In addition, while such personal experiences may have been outside a typical juror's life experience, both parties were aware that the juror was a nurse during voir dire, but nonetheless chose not to exercise a challenge against her. The statements made by the nurse were neither outside the realm of knowledge a typical nurse would be expected to possess nor so specialized so as to constitute an expert medical opinion as opposed to the personal life experiences of the nurse-juror. Thus, Richards is dispositive. Juror misconduct was not established.

The trial court did not abuse its discretion by denying Bramlett's motion for a new trial.

Affirmed.

ANNE ELLINGTON H and JOSEPH COLEMAN, JJ., Concur.


Summaries of

Bramlett v. Heckard

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1035 (Wash. Ct. App. 2007)
Case details for

Bramlett v. Heckard

Case Details

Full title:TUYET BRAMLETT, Appellant, v. ALVIN HECKARD ET AL., Respondents

Court:The Court of Appeals of Washington, Division One

Date published: Mar 12, 2007

Citations

137 Wn. App. 1035 (Wash. Ct. App. 2007)
137 Wash. App. 1035