Opinion
No. 58267-4-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-04798-6, Douglas D. McBroom, J., entered May 1 and 19, 2006.
Affirmed by unpublished opinion per Coleman, J., concurred in by Cox and Ellington, JJ.
This appeal is from a low jury verdict in favor of the appellant, Neal Elsemore, after a trial on his personal injury claim. Elsemore argues that the trial court abused its discretion in denying his motion for a new trial because under CR 59(a)(5) and (7), the damages award was shockingly inadequate, not based upon the evidence before it, and was the result of passion or prejudice. He also argues that defense counsel and the jury committed misconduct. We affirm for the reasons stated below.
FACTS
Elsemore was in an automobile accident with Bryce Grenell on April 15, 2001. Grenell, a Safeco Insurance Company employee, was driving a vehicle owned by Safeco. On April 26, Elsemore visited the office of his regular physician, Dr. Lawrence Parris, complaining of pain that extended from his neck into his back. Neal was diagnosed as having sustained cervical and lumber strains and was prescribed pain medication and massage therapy. At a June 5 visit to Dr. Parris, Elsemore complained of episodic shooting pains in his right leg. Dr. Parris referred Elsemore to a physical therapist, whom he saw around 130 times until ceasing physical therapy in July 2002. Dr. Parris referred Elsemore for an epidural steroid injection at the L5-S1 level, which greatly relieved his pain for about six months. For most of the time period at issue in this case, Elsemore was prescribed Percocet, a prescription pain medicine that can be habit forming.
An MRI (magnetic resonance imagine) was performed on Elsemore in July 2002. Dr. Parris testified that the MRI report showed multilevel degenerative changes in the lumbar spine and a broad based herniation at L5-S1. Around this time, Dr. Parris suggested that he see a neurosurgeon, but Elsemore failed to do so. In February 2004, a second MRI was performed, which Dr. Parris testified showed that the herniation had worsened. In July 2004, however, Dr. Parris wrote a letter to the California Maritime Academy stating that Elsemore had "completely recovered from his injury" and "no longer needs further treatment, and he is no longer requiring any medications." Report of Proceedings (RP) (Mar. 1, 2006) at 189. He testified that he knew the statements in the letter were not true but explained that he wrote the letter to help Elsemore.
Elsemore filed this lawsuit in February 2004. The court ruled that the Grenells were negligent as a matter of law and that the medical bills Elsemore incurred were reasonable as a matter of law. As a result of those rulings, the jury was required to award Elsemore $29,686.44 for past medical expenses and $780.41 for travel expenses. The purpose of the trial was for the jury to determine the nature and extent of Elsemore's injuries.
About a month before trial began, Elsemore's attorney referred him to Dr. Richard Wohns, a neurosurgeon. Dr. Wohns recommended a third MRI and discogram for evaluation purposes, and he scheduled the discogram. Elsemore cancelled the discogram appointment because he wanted to wait until after trial.
At trial, Elsemore called numerous witnesses while the Grenells relied mostly on cross-examination to support their defense. Elsemore's witnesses included: Grenell; Dr. Parris; Elsemore's mother, sister, roommate, and girlfriend; Brent Coburn, a physical therapist; Kathy Reid, a vocational rehabilitation counselor; Theodore Becker, a disability examiner and analyst; Dr. Richard Parks, a professor of economics; and Elsemore himself. The Grenells' witness was Carl Gann, a vocational rehabilitation counselor. Some of the witnesses' testimony will be discussed below. At one point during trial, Elsemore moved for a mistrial due to alleged acts of misconduct by the Grenells' counsel, and the court denied the motion.
In its verdict form, the jury awarded Elsemore $29,686.44 for past medical expenses and $780.41 for travel expenses, as required by the court. It also awarded $11,550 for noneconomic damages. It awarded nothing for other out-pocket-expenses, future medical billings, nonmedical expenses, earnings, earning capacity, or earnings opportunities. Elsemore moved for a new trial or, in the alternative, additur based on the low verdict and misconduct by defense counsel and the jury. The court acknowledged that the verdict was low, but denied the motion. Elsemore appeals.
Analysis
Damages Award
Elsemore contends the trial court abused its discretion in denying his motion for a new trial because under CR 59(a)(5) and (7), the damages award was shockingly inadequate, not based upon the evidence before it, and was the result of passion or prejudice. We conclude that the trial court did not abuse its discretion because the general damages verdict was not so low as to indicate passion or prejudice and the jury could have found that Elsemore failed to carry his burden of establishing future damages.
The court instructed the jury that the Grenells were "liable for any injuries suffered by Plaintiff Neal Elsemore as a result of the April 15, 2001 collision." Instruction 5. The jury was required to award Elsemore $29,686.44 for past medical billing and $780.41 for travel expenses, but it could decide what amount to award for other past out-of-pocket expenses, future medical billings, future nonmedical expenses, future lost earnings, and noneconomic damages.
CR 59(a) provides that "a verdict may be vacated and a new trial granted" where damages are "so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice . . ." or where "there is no evidence or reasonable inference from the evidence to justify the verdict. . . ." CR 59(a)(5), (7). "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. Denial of a new trial on grounds of inadequate damages will be reversed only where the trial court abuses its discretion." Kadmiri v. Claassen, 103 Wn. App. 146, 150, 10 P.3d 1076 (2000) (citations omitted). The Supreme Court has explained,
[W]hen the trial court is called to rule upon questions of excessive or inadequate verdict as distinguished from the question of granting or denying a new trial outright, we think the court should first look to the scope or range of the evidence in relation to the verdict. In those instances where the verdict is reasonably within the range of proven damages, whether conflicting, disputed or not, and where it can be said that the jury, in exercising its exclusive power, 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 unmistakably so excessive or inadequate as to show that the jury had been motivated by passion or prejudice solely because of the amount.
James v. Robeck, 79 Wn.2d 864, 870-71, 490 P.2d 878 (1971). In reviewing the evidence, the appellate court does not reweigh the evidence, draw its own inferences, or substitute its judgment for the jury.
"This court will not willingly assume that the jury did not fairly and objectively consider the evidence and the contentions of the parties relative to the issues before it. The inferences to be drawn from the evidence are for the jury and not for this court. The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convinced that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered."
Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1984) (citations omitted) (quoting State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974)). The trial court is in a better position than an appellate court to determine whether a new trial should be granted.
The trial court sees and hears the witnesses, jurors, parties, counsel and bystanders; it can evaluate at first hand such things as candor, sincerity, demeanor, intelligence and any surrounding incidents. The appellate court, on the other hand, is tied to the written record and partly for that reason rarely exercises this power.
Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985) (footnote omitted). The trial court's denial of a motion for a new trial strengthens the verdict. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 330, 858 P.2d 1054 (1993).
Dr. Parris was the only medical doctor who testified. According to his testimony, Elsemore complained of neck and back pain and sciatic pain down his leg. The neck pain resolved, the sciatic pain became less bothersome, but the back pain remained. Elsemore's 2002 MRI showed degenerative changes throughout his lumbar spine, with a broad based disk herniation at L5-S1. Dr. Parris agreed this would not be unusual for a man in his 40s, but testified that he would be surprised to see it in a man in his 20s. In 2004, Elsemore had another MRI, showing that the disk had protruded farther. Both MRIs were inconclusive, as the bulging disc material could cause irritation and inflammation, but it was not compressing the spinal cord or compromising the nerve roots. Dr. Parris testified that he found no loss of motor function in Elsemore, which also constituted inconclusive evidence as to the nature and extent of the injuries. He also testified that is it possible for a person to have an MRI showing a bulging disc like Elsemore's and have no symptoms. In response to a jury question about whether Elsemore's injuries were attributable to physical activity or heredity, Dr. Parris testified that it was "very difficult" to answer because there was "no way you can separate out what was done by his lifestyle, what was done by the injury." RP (Mar. 2, 2006) at 70.
In cross-examination, defense counsel asked Dr. Parris about a letter that he had written to Elsemore's attorney in April 2003 in response to a request for a narrative report of Elsemore's injuries. In the letter, he stated that Elsemore's main complaint was not pain in the L5-S1 area but "thoracic spine pain on the right side between his shoulder blades." RP (Mar. 1, 2006) at 209. In closing argument, defense counsel made an argument based on this statement.
He's not writing to me. He's writing to the plaintiff's attorney. And he doesn't say that this L-5 injury that they claim was caused by this accident, that he pointed out to you on these MRI images, was the problem.
Again, this is after the MRI, after what the plaintiff has claimed was his injury that caused him immediate pain shooting down his leg as a result of this 15-mile-per-hour accident. Dr. Parris writes to the attorney, he doesn't say L-5 is the problem. He says the thoracic spine.
RP (Mar. 9, 2006) 82-83.
In the same letter, Dr. Parris also stated that it was "impossible to predict the amount and cost of future treatment. . . ." RP (Mar. 1, 2006) at 168-69. Elsemore's attorney questioned Dr. Parris about the cost of future treatment, and he testified that in order to determine the cost of future treatment, he "called the billing department of the neurological associates, the neurosurgeons that I referred to, to get some prices for the surgeries and treatments." RP (Mar. 2, 2006) at 57. The information he received from the billing department was in his declaration. To refresh his memory, Dr. Parris was allowed to use his declaration in answering questions about the cost of future treatment. Defense counsel objected to the doctor's use of the declaration because he believed the doctor was simply reading from the declaration rather than refreshing his memory. He later asked that the record reflect that the doctor "wasn't testifying from his memory, he was reading the declaration." Id. at 63. In his closing argument, defense counsel argued that Elsemore had not established the cost of future treatment.
And Dr. Parris is asked what the costs were. And he looks down at the piece of paper that the plaintiff's attorney gave him, and he reads the costs.
Now, he was supposed to be refreshing his memory. But he was actually reading from the paper. I saw it and you saw it. And eventually he admitted it. The reason it was impossible to predict cost is because he didn't know. He still doesn't know.
And how did he gather his evidence? He called up the billing department from a neurology place somewhere and asked them. What's the problem with that? The problem with that is that no witness from the neurology department came here, took the stand, swore to tell you the truth, and could verify that those figures were accurate.
. . . .
Think about that. You don't get to see the person who made the determination about what things cost. You don't know whether it was the doctor, a neurosurgeon or clerk or whether he talked to the janitor. You don't know. But based upon that testimony, you are asked to give the plaintiff at least $50,000, maybe more.
RP (Mar. 9, 2006) at 83-86. Dr. Parris was the only witness who testified about the future cost of Elsemore's treatment.
For most of the time that Dr. Parris treated Elsemore, he prescribed Percocet, a pain reliever that is habituating and can be difficult to stop taking. At one point, Elsemore was taking eleven Percocet a day. More often, he was taking four to five Percocet per day, and at other times two to three. He was still taking Percocet at the time of the trial. Dr. Parris was asked to read from a note in Elsemore's file that stated, "'Regarding Neal Elsemore. Too early for Percocet. Patient says he needs them by the 25th or he will borrow from friends again. . . .'" RP (Mar. 2, 2006) at 31. In his closing argument, the defense argued extensively that Elsemore continued to complain of pain and seek medical care because he was addicted to Percocet and not because of his injuries. See, e.g., RP (Mar. 9, 2006) at 78 ("The question for you is: Does he continue to go back to see Dr. Parris because he has symptoms of pain, or because he wants drugs?"). Dr. Parris's credibility was further questioned based on a letter he wrote at Elsemore's request in July 2004. Defense counsel asked Dr. Parris to read the letter during cross-examination.
Q. Doctor, can I have you read that letter to the jury?
A. Certainly.
"To whom it may concern: Neal has recently completed treatment for his back injury. He has completely recovered from his injury. He no longer needs further treatment, and he is no longer requiring any medications. He is released to full activity without any restrictions. He will be able to participate fully in the physical activity requirements of the academy."
RP (Mar. 1, 2006) at 189-90. Dr. Parris admitted that he knew at the time he wrote the letter that Elsemore "probably was not fully recovered" and that he would probably need further treatment. Id. at 191. He also admitted that Elsemore still required medications and was receiving epidural steroid injections. Dr. Parris explained that he made the false statements in the letter because he was trying to help Elsemore pursue his dream of becoming a ship captain. In his closing argument, the defense strongly challenged Dr. Parris's credibility.
And what was his justification [for writing the letter]? He knew it was wrong. He knew it wasn't true. But he wanted to help him out. You know, you help a patient by getting him healthy. Not by lying for him.
And the real question based upon the letter that Dr. Parris wrote to the plaintiff's attorney and to the California Maritime Academy, was he telling you the truth when he testified here? Think about it. Was he telling you the truth?
RP (Mar. 9, 2006) at 87. No other medical doctors testified to buttress the conclusions in Dr. Parris's testimony.
Brent Coburn, a physical therapist, saw Elsemore for about one year beginning in June 2001, for a total of around 130 treatments. While Coburn was called as a witness by Elsemore, he was also subpoenaed by the defense. Coburn testified that he tested Elsemore numerous times and never found any objective signs of an injury, all thoracic and lumber spine discal testing was negative, and Elsemore had a normal range of motion. He also testified that he could not reproduce Elsemore's pain or the other symptoms he complained of, such as tingling and numbness in his lower right side. Elsemore testified that he saw a neurosurgeon for the first time shortly before trial. He testified that Dr. Parris had recommended in 2002 that he see a neurosurgeon but that he waited until 2006, when he saw Dr. Wohns based on his attorney's recommendation. The neurosurgeon wanted a discogram and a third MRI performed and scheduled the discogram. Elsemore testified that he cancelled the appointment and told the neurosurgeon that he "wanted to hold evidence on that" until after trial. RP (Mar. 8, 2006) at 135.
The trial court did not abuse its discretion in denying Elsemore's motion for a new trial because the jury could have concluded that Elsemore failed to establish that he would require future medical care. Dr. Parris was the only witness who offered an opinion about what future treatment Elsemore would need. Much of the evidence, such as the MRIs and the tests of Elsemore's motor function, were inconclusive. In a 2003 letter to Elsemore's attorney, Dr. Parris stated that Elsemore's main complaint was thoracic spine pain, but at trial it was pain in the L5-S1 area. Dr. Parris also testified that it was difficult to tell if Elsemore's injuries were caused by the accident, his lifestyle, or heredity. Most importantly, even though Dr. Parris testified that he believed Elsemore's injuries were serious, the jury was entitled to discount this testimony because he had previously made false statements on Elsemore's behalf about the nature and extent of those same injuries. Elsemore's credibility also may have suffered because he asked Dr. Parris to write the letter verifying that he did not have any health issues that would interfere with attending the maritime academy.
There was also evidence that would enable the jury to conclude that Elsemore continued to see Dr. Parris in order to continue taking Percocet and not because of any continuing injuries. At one point, Elsemore was taking eleven Percocet a day and there was evidence that he had obtained Percocet from friends when his own prescription ran out. Elsemore also testified that he was still taking Percocet at the time of trial. The jury was entitled to accept the defense's arguments that Elsemore continued to seek medical care because of his dependence on Percocet, and not because of any injuries.
The jury could have been further persuaded by Coburn's testimony that he could not find any objective signs of Elsemore's injury or reproduce his symptoms. The jury also could have concluded that the current state of Elsemore's injuries was not particularly serious since he cancelled his discogram because he "wanted to hold evidence on that" until after trial.
Although Elsemore gave further explanation for why he cancelled the discogram, the jury was entitled to reject this testimony. As the Supreme Court has explained,
The jury is given the constitutional role to determine questions of fact, and the amount of damages is a question of fact. We strongly presume the jury's verdict is correct. "The jury's role in determining noneconomic damages is perhaps even more essential."
Bunch v. Dep't of Youth Servs., 155 Wn.2d 165, 179-80, 116 P.3d 381 (2005) (citations omitted) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 646, 771, 780 P.2d 260 (1989)).
The jury also could have concluded that Elsemore did not establish the cost of his future medical care on a more probable than not basis. Dr. Parris was the only witness who testified about the cost of future treatment. A majority of the figures Dr. Parris quoted were based on a phone call to a billing department for a group of neurosurgeons. Defense counsel argued that this was insufficient because no one from the billing department, or anyone with similar expertise, testified about the cost of future treatment. And as we have previously noted, Dr. Parris's credibility had been seriously challenged.
Elsemore cites to numerous cases in which a jury awarded de minimis damages or no damages for uncontested pain and suffering, future medical expenses, and lost wages. See Palmer v. Jensen, 132 Wn.2d 193, 937 P.2d 597 (1997) (jury did not award general damages); Cleva v. Jackson, 74 Wn.2d 462, 445 P.2d 322 (1968) ($129.08 for pain and suffering, future medical expenses, disability, and lost wages); Hills v. King, 66 Wn.2d 738, 741, 404 P.2d 997 (1965) (jury did not award damages for pain and suffering and failed to award all of the special damages that were "conceded, undisputed, and beyond legitimate controversy"); Shaw v. Browning, 59 Wn.2d 133, 367 P.2d 17 (1961) (no damages for pain and suffering); Lanegan v. Crauford, 49 Wn.2d 562, 304 P.2d 953 (1956) ($381 for uncontested pain and suffering), and Ide v. Stoltenow, 47 Wn.2d 847, 289 P.2d 1007 (1955) (jury awarded only $120 for general damages, but some of the plaintiff's pain and suffering was uncontested). Unlike in those cases, Elsemore's general damages were heavily contested, and the jury's verdict, while low, fell within the scope of the evidence. And even taking inflation into account, the jury's award of $30,466.85 for special damages and $11,550 for noneconomic damages was not as de minimis as the awards in those cases. Finally, some of those cases are distinguishable because they concerned whether the trial court abused its discretion in ordering a new trial, whereas our inquiry is different in that we must determine whether the trial court abused its discretion in denying a motion for a new trial. Under this inquiry, the court must determine whether "'there was evidence which, if believed, would support the verdict rendered.'" Burnside, 123 Wn.2d at 108 (quoting O'Connell, 83 Wn.2d at 839). As explained above, we conclude that there was such evidence.
Elsemore also cites to Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 865 P.2d 527 (1993), in which the widow of a man who died from an asbestos related condition was awarded $30,000. The Court of Appeals remanded for a retrial on the widow's damages because "the jury's award nowhere nearly approximates [the] uncontroverted pension and wage losses of approximately $251,939 to $305,732." Krivanek, 72 Wn. App. at 637. Krivanek is distinguishable because, here, Elsemore's wage losses were contested. The Grenells presented the testimony of a vocational rehabilitation counselor who testified that Elsemore could likely have a successful career despite his alleged injuries.
Finally, Elsemore argues that the jury's award of damages necessarily shocks the conscience based on statements made by the trial court. During the hearing on Elsemore's motion for a new trial, the court stated that it was "amazed at such a small verdict" and that "it was a horribly low verdict given the nature of the injury." RP (April 27, 2006) at 23 and 51. We reject this argument because while the trial court was sympathetic to Elsemore, it clearly believed the jury's award should not be disturbed because it was within the range of evidence. The court explained,
I ordered proximate cause, but I didn't order anything about the nature and extent of the injuries. Wasn't the jury entitled to find that the nature and extent of the injuries was not great? And then they did give the past medicals as they were directed to do so. And then gave $11,500. I mean I was amazed at such a small verdict too, but nevertheless.
Id. at 23. The court also concluded that the jury could have based its verdict on the cross-examination of Elsemore's witnesses.
[T]here was cross-examination of most of the plaintiff's witnesses. And if the jury got the sense of it was, well, obviously it was designed to tear these witnesses down, the jury has every right under our system to decide that it doesn't believe any of the witnesses.
I mean, if a witness is testifying without cross-examination, then the argument you're making would make more sense to me. But they were cross-examined vigorously, and so the jury could have decided that it just wasn't buying any of it.
Id. at 20-21. The court did not abuse its discretion in denying Elsemore's motion for a new trial.
Defense Counsel Misconduct
Elsemore contends that the trial court abused its discretion in denying his motion for a mistrial and motion for a new trial based on defense counsel's misconduct in cross-examination and closing argument. He argues that counsel for the Grenells, Gregory Jackson, committed misconduct at various times during cross-examination and closing argument. The alleged acts of misconduct during cross-examination formed the basis for Elsemore's motion for a mistrial, and thus, we must determine whether they were prejudicial in the context of the entire record. The alleged acts of misconduct during closing argument were not objected to, and therefore, we must decide if they were so flagrant that no instruction of the court or admonition to disregard could suffice to remove the harm caused thereby. We conclude that the court did not err in denying Elsemore's motion for a mistrial and his motion for a new trial because the acts complained of were either not prejudicial in the context of the entire record or not so flagrant as to require a new trial. We also note that even if the acts complained of were construed as misconduct, they could have been stopped at the onset by an objection, and a curative instruction would have dispelled any prejudice.
Under CR 59(a)(2), misconduct of a party is grounds for a new trial if the misconduct materially affects the substantial rights of the moving party. Aluminum Co. of Am. (Alcoa) v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 539, 998 P.2d 856 (2000). In order to be granted a new trial under this provision, the moving party "'must establish that the conduct complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record. . . .'" Alcoa, 140 Wn.2d at 539 (quoting 12 James W. Moore, Moore's Federal Practice § 5913[2][c][I][A], at 5948, 58-49 (Daniel R. Coquillette et al. eds., 3d ed. 1999)). In addition, the moving party must object to the misconduct at trial and the misconduct must not have been cured by court instructions. Alcoa, 140 Wn.2d at 539. Where no motion for a mistrial or objection was made, the necessary inquiry is whether the incidents of misconduct referred to were so flagrant that no instruction of the court or admonition to disregard could suffice to remove the harm caused thereby. Carabba v. Anacortes Sch. Dist. 103, 72 Wn.2d 939, 954, 435 P.2d 936 (1967).
Elsemore argues that Jackson committed misconduct while cross-examining Dr. Parris and referring to "this motor vehicle accident," with an emphasis on "this." The trial transcript reads:
Q. And your first appointment with Mr. Elsemore, with the plaintiff in this case, was on which date, at least for this motor vehicle accident?
A. Do you want the first time I — Mr. Barcus: Excuse me, your honor. I would ask for a side bar, if we may.
(Side bar discussion)
THE COURT: That objection is overruled, or you can re-ask the question. Or do you want the reporter to read it back?
MR. JACKSON: I can re-ask the question.
By Mr. Jackson:
Q. Doctor, when was the first time that you saw Mr. Elsemore for the automobile accident that he reports occurred on 4-15-01?
RP (Mar. 1, 2006) at 162-63. It is unclear from the record whether Jackson actually emphasized the word "this" because the trial court made no such finding and was not asked to by Elsemore. The nature of Elsemore's objection is also not clear, and he did not request a curative instruction. Based on the record, it is not possible to determine whether Jackson committed misconduct and, if so, how prejudicial his question was in the context of the entire record. Additionally, Dr. Parris had been Elsemore's doctor since he was twelve years old. Jackson's question is reasonable because if he had not clarified that he was asking about "this motor vehicle accident," the doctor may have understood him to be asking about the first time he had ever seen Elsemore.
The next instance of alleged misconduct occurred when Jackson attempted to use a blow up of a letter written by Dr. Parris, which allegedly had the words "the new injuries" highlighted in yellow. During the hearing on Elsemore's motion for a mistrial, the court stated,
The Court: It never appeared before the jury, that blow-up, right? It was expunged.
Mr. Barcus: And now we have that taken out. But the court caught that. I'm just telling the court what's going on here.
RP (Mar. 7, 2006) at 3. This blow up was not made part of the appellate record. It appears that a different, unhighlighted version of the letter was admitted into evidence as exhibit 57, but it was also not made part of the appellate record. Under the circumstances, it is not possible to determine if misconduct occurred or how prejudicial it was in the context of the entire record.
Elsemore next argues that Jackson committed misconduct by asking Dr. Richard Parks, a professor of economics, about the effects of "consumption" and taxation. Elsemore cites to questions Jackson asked about the cost of tuition at the California Maritime Academy and argues that these questions violated the court's order on a motion in limine that provided, "Defendants and defense counsel are prohibited from making references or implications as to how the Plaintiff might use the proceeds from this case." The trial transcript reads,
Q. Doctor, you are aware that to attend the California Maritime Academy, it costs $26,000 a year; is that correct?
A. Yes.
Q. And in order for the plaintiff in this case to graduate from the California Maritime Academy, he would have spent $26,000 a year, for a total of $104,000 debt that he would have at the time he came out; is that correct?
A. Yes. He would either pay it up front if he had the resources, or as many students do, combine earnings from work during college with loans or parental contributions.
Q. And so if we are going to do a damage model based upon a potential, or a lost career in the maritime industry, after graduating from the California Maritime Academy, we would have to account for that debt in the damage model; is that correct?
A. You could, yes.
2RP (Mar. 2, 2006) at 15. This testimony was not objected to, and Elsemore did not move to have it stricken or request a curative instruction. Moreover, these questions were about how much debt Elsemore would have incurred if he had graduated from the California Maritime Academy, not about how he would spend any money he was awarded because of his lawsuit. The purpose of these questions was to demonstrate that any damages awarded for Elsemore's lost career in the maritime industry should take into account the debt he would have incurred as a result of attending the California Maritime Academy.
Elsemore's theory at trial was that he was not able to attend the academy because of the accident.
Elsemore argues that Jackson's questions about tuition and debt raised issues of taxation, violating an order in limine rendering inadmissible "any evidence relating to the fact that a recovery by Plaintiff would or would not be subject to taxation or that his income would or would not be subject to taxation. . . ." But Jackson did not ask Dr. Parks about taxation or introduce evidence relating to the taxation of plaintiff's recovery or income. All questions about taxation were from the jury or Elsemore's counsel, and Elsemore did not object to the jury questions.
Elsemore contends Jackson committed misconduct during his questioning of Kathy Reid, a vocational rehabilitation counselor, about Elsemore's 28-foot "cigarette boat."
Q. I'm almost finished here. When you spoke to Mr. Elsemore — and it appears you did a lot of activity regarding things that had nothing to do with work — did he tell you that he liked to ride in a power boat?
A. I remember discussing boating as one of his hobbies, and I do ask about recreational things.
Q. And one of the things that he told you is that he personally owns a 28-foot cigarette boat; is that correct?
A. Yes.
Q. Now, those are those Miami Vice boats that go real fast and they take all that pounding from going up and down?
MS. LESTER: Objection, your Honor. This goes beyond the scope.
The Court: Overruled.
The Witness: I don't actually know what a cigarette boat is. I asked him if he had a boat because he was expressing so much interest in it, and he said yes.
By Mr. Jackson:
Q. But he specifically told you it was a 28-foot cigarette boat? A. Yes.
Q. And he still rides in it?
A. I don't know if he still rides in that. He indicated, as I testified earlier, some problems riding in boats, but doing it when other people were water skiing.
Q. He didn't say he didn't go in the boat; he just said he wasn't water skiing, he was riding in the boat, right?
A. Right.
Ms. Lester: Objection, your Honor. Asked and answered.
The Court: Overruled.
The Witness: I don't know if you water ski off a cigarette boat or not.
By Mr. Jackson:
Q. It wouldn't be advisable?
Ms. Lester: Objection, your Honor.
The Court: Let's disregard that comment. And please refrain from that, Mr. Jackson.
RP (Mar. 6, 2006) at 75-76. Elsemore's motion for a mistrial was based largely on this questioning. Jackson's questions were relevant to deciding the nature and extent of his injuries and were also based on Reid's report. As the court explained,
I overruled that objection on the ground that it would relate arguably to Mr. Elsemore's physical condition. Because a cigarette boat, I'm well aware of having been a former boat racer myself, not with cigarette boats. I know what a cigarette boat is. We all know what a cigarette boat is. And that is maybe the roughest ride there is in a boat.
RP (Mar. 7, 2006) at 4. While the "Miami Vice" reference may have been sarcastic, it was not so prejudicial in the context of the entire record that it requires reversal. Elsemore also did not object to the questioning on the basis that it was prejudicial, but merely that it was "beyond the scope" and "asked and answered." RP (Mar. 6, 2006) at 75-76. The absence of such an objection indicates that these questions were not particularly prejudicial. Finally, Elsemore did not seek a curative instruction, which the court easily could have provided.
The rest of Elsemore's allegations of misconduct concern Jackson's closing argument. Elsemore failed to object to any of those alleged incidents of misconduct or seek a curative instruction; therefore, the necessary inquiry is whether they were so flagrant that no instruction of the court or admonition to disregard could suffice to remove the harm caused thereby.
Elsemore first contends that Jackson committed misconduct early in his closing argument when he told the jury:
ut what I need to remind you of first is what we talked about at the beginning, and that this case has nothing to do with justice. This case has to do with money, pure and simple.
he purpose of the civil justice system in its entirety is not to make people rich. It's not to unjustly enrich them. It is supposed to be about compensating people for harm.
A person who is harmed is entitled to every single cent possible to make them whole. But they're not entitled to one dime more, not one cent more.
And so I'm not telling you to reduce his damages. I'm telling you to be fair. I'm asking you to compensate him for a loss and not reward him unrichly or unjustly. That's what I'm asking you.
RP (Mar. 9, 2006) at 67-68. Taken as a whole, Jackson correctly stated that it was not the purpose of the justice system to unjustly enrich Elsemore. Moreover, Jackson's statements immediately followed statements and a PowerPoint presentation by Elsemore's counsel, Ben Barcus, about large sums of money. Barcus told the jury,
The other day, the Boeing CEO was paid 28 million. $841,000 in salary. And the rest of these shares, one year, 28 million dollars.
We're talking about a lifetime for Neal Elsemore. Frankly, I don't think he's worth one cent less than the Boeing CEO. But I'm not asking you for that. That's crazy.
Id. at 58. He also compared Elsemore to a Van Gogh painting.
We have paintings that sell for 40 million dollars, this Van Gogh. Maybe I'm not sophisticated enough. I just don't see the beauty in that for 40 million dollars.
We know the portrait of Dr. Dachet [sic] sold in 1990, 15 or 16 years ago, for 82 and a half million dollars. That's just one painting.
What if Mr. Grenell was in the gallery and put his elbow through this painting and it had a value of 40 million dollars. You wouldn't have a problem sitting on the jury saying that he owes 40 million dollars. He damaged that 40 million dollar painting, that work of art.
This work of art, God's creation, is not worth a cent less. But again, I'm not asking you for 40 million dollars. But no painting is worth more than Neal Elsemore's life.
Id. at 58-59. Barcus then reminded the jury that Shaun Alexander signed a contract for $62 million and that Howard Stern was paid $100 million per year. Given these statements by Barcus, it was not misconduct for Jackson to attempt to bring the jury's mind back to smaller amounts of money and away from larger sums that would possibly represent a windfall.
Elsemore next argues that Jackson committed misconduct by interjecting his personal beliefs when he commented on Elsemore's delay in seeing a neurosurgeon. Jackson stated, "He doesn't go [to the neurosurgeon] because Dr. Parris sent him there. He went there because his attorney sent him there. I'm not a doctor, thank God I'm not injured, but if you ever are, let the doctor control your care. Not an attorney." Id. at 72. Elsemore cites to a United States Supreme Court opinion that held "It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." United States v. Young, 470 U.S. 1, 8, 105 S. Ct. 1038, 84 L. Ed 2d 1 (1985). Here, Jackson did not express his personal beliefs as to the truth or falsity of any testimony. Instead, he argued that Elsemore's delay in seeing a neurosurgeon showed that his injuries were not serious.
Elsemore next contends that Jackson made impermissible "golden rule" arguments. "'[U]rging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position, constitutes an improper 'golden rule' argument. J. Stein, Closing Argument § 60, at 159 (1985). Such an argument is 'improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.'" Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988) (quoting Rojas v. Richardson, 703 F.2d 186, 191 (5th Cir. 1983)). Elsemore contends Jackson made a golden rule argument when he discussed Dr. Parris's credibility in light of his testimony that he made false statements on Elsemore's behalf in his letter to the California Maritime Academy. Jackson argued,
And what was his justification [for writing the letter]? He knew it was wrong. He knew it wasn't true. But he wanted to help him out. You know, you help a patient by getting him healthy. Not by lying for him.
And the real question based upon the letter that Dr. Parris wrote to the plaintiff's attorney and to the California Maritime Academy, was he telling you the truth when he testified here? Think about it. Was he telling you the truth? Based upon what you heard and what you saw of Dr. Parris, would you go to treat with him?
Id. at 87. Jackson was questioning the credibility of Dr. Parris, not asking the jury to decide the case by placing themselves in the position of one of the parties.
Elsemore also argues that Jackson made a golden rule argument when he discussed Elsemore's failure to take a discogram.
What does [Elsemore] do? The test gets scheduled. He calls up and he cancels it.
Why is that? Think about it. If you were injured, back injury, won't allow you to do anything you want to do, you're in constant pain, you have to take up to ten Percocet a day, you can't go on your boat, you can't ride your motorcycle, you can't play soccer, you can't run, you can't lift weights, you don't like your job, your life is miserable, and you cancel the test, the one test that could tell you what's wrong with you, that could tell you what your injury is. You cancel it?
Think about that. If your back were really hurting for five years, you'd go to the neurosurgeon and kick the door in. Not cancel the test.
But there's only one reason why you would cancel the test. And that's because you believe the test will establish that there's nothing wrong with you. And that the other side is going to show that to the jury. There's no other reason to cancel that test.
Id. at 73-74. Elsemore cites to Adkins in support, but in that case, the plaintiff objected to what was clearly a golden rule argument. The defense in Adkins argued,
Can a corporation get a fair trial? And you have all told me that they can, and that you will treat them as if you were the landowner, and that this was a roofer going on your roof and doing a job, whether it be a roofer or a plumber, or other special skilled contractor, who should know what he's doing.
If it was your roof, and if this was your attic vent and fan, you would not expect to be liable for injury to a roofer that you hired, who was injured in doing something he should know better not to do. We ask only that you give ALCOA that same consideration.
Adkins, 110 Wn.2d at 140-41. Unlike the defense counsel in Adkins, Jackson did not ask "the jurors to place themselves in the position of a litigant and to decide the case based upon what they would then want under the circumstances." Adkins, 110 Wn.2d at 140. Instead, he asked the jury to question the nature and extent of Elsemore's injuries in light of his decision to cancel the discogram.
Next, Elsemore argues that Jackson committed misconduct by referring to inadmissible evidence when he argued that Dr. Parris could not predict Elsemore's future medical costs.
Because when [Dr. Parris] was here, he couldn't remember the costs. And the plaintiff walked up to him and shows him a document that you never got to see because it wasn't admitted into evidence. And Dr. Parris is asked what the costs were. And he looks down at the piece of paper that the plaintiff's attorney gave him, and he reads the costs.
Now, he was supposed to be refreshing his memory. But he was actually reading from the paper. I saw it and you saw it. And eventually he admitted it. The reason it was impossible to predict cost is because he didn't know. He still doesn't know.
RP (Mar. 9, 2006) at 83-84. Elsemore cites to the rule that counsel may not make comments that encourage a jury "to render a verdict on facts not in evidence. . . ." State v. Stover, 67 Wn. App. 228, 231, 834 P.2d 671 (1992). But Jackson's argument was that Dr. Parris relied on the document because he did not really know the cost of Elsemore's future treatment. He did not argue that the jury should base its verdict on what was contained in the document.
Elsemore also contends that Jackson referred to inadmissible evidence when he argued that Elsemore cancelled the discogram because it would establish that he was not continuing to suffer from injuries he sustained as a result of the accident. Elsemore's contention is that Jackson was referring to the discogram that was never performed, and therefore it constituted evidence that should not have been considered by the jury. But Jackson was clearly arguing that the fact that Elsemore cancelled the discogram suggested that he knew his injuries were no longer serious. This was not misconduct.
Elsemore argues that Jackson committed misconduct by telling the jury to ignore the court's instruction that "the collision of April 15, 2001 caused Plaintiff's injuries claimed in this case. . . ." Instruction 2. Jackson did not tell the jury to ignore the court's instructions. The court instructed the jury that "[t]he Defendants are liable for any injuries suffered by Plaintiff Neal Elsemore as a result of the April 15, 2001 collision." Instruction 5. And as the court explained, "the nature and extent of the injuries was something that was left for the defense to argue in this case" and "the jury could have decided that it just wasn't buying any of it." RP (Apr. 27, 2006) at 21. Jackson acknowledged that the jury was required to award Elsemore damages for past medical billings and travel expenses, but he argued that any other damages were for the jury to decide. This was consistent with the court's instructions.
Finally, Elsemore contends that Jackson committed misconduct by using the term "auto lotto" and making other comments that incited the jury's "anti-claimant prejudices, particularly in light of the current debates regarding 'tort reform.'" Br. of Appellant at 44. Jackson made the "auto lotto" comment during the following portion of his argument:
Instruction number 7. Instruction number 7 begins that you must not discuss or speculate about whether any party has insurance or other coverage available. Whether a party does or does not have insurance has no bearing on any issue that you must decide.
The reason this instruction is important is for this reason: My client, 20-year employee of Safeco. My client was driving a company car. My client admitted responsibility for this accident. The instruction tells you that you cannot say, oh, company car, admitted responsibility, drives for Safeco. Oh my God, I hit the auto lotto, I'm going to retire, I get more money. That's why that instruction is there.
RP (Mar. 9, 2006) at 91. As stated above, Elsemore did not object to this statement or seek a curative instruction.
Jackson's comment must be analyzed in light of Elsemore's insistence before trial that he be allowed to question Grenell about the fact that he was a Safeco employee at the time of the accident. See CP 623 (In response to the defendants' motion in limine regarding automobile insurance, Elsemore argued, "Plaintiff is entitled to ask the background of Defendant on either direct or cross-examination and the fact that Mr. Grenell worked for Safeco should not be excluded in that regard."). The court only prohibited "testimony, reference to, or argument that Defendant has liability insurance." Grenell was Elsemore's first witness, and he immediately questioned him about his employment with Safeco and the fact that he was driving a company-owned vehicle at the time of the accident. See RP (Feb. 28, 2006) at 2-4. Typically, it is to the plaintiff's advantage in a personal injury case if the jury is presented with evidence that the defendant is insured. See, e.g., Williams v. Hofer, 30 Wn.2d 253, 265, 191 P.2d 306 (1948) (The fact that the defendant carries liability insurance is "essentially prejudicial to the defendant".). Given this background, Jackson did not commit misconduct by reminding the jury that in deciding the verdict, it must not consider whether Grenell was insured at the time of the accident. Even if we concluded that he had committed misconduct, a prompt objection and subsequent instruction could have cured the error.
Elsemore cites to King v. Starr, 43 Wn.2d 115, 260 P.2d 351 (1953), a case in which the court granted a new trial because the defense counsel stated in his opening statement, "'The defendants have no insurance here.'" King, 43 Wn.2d at 117 (emphasis omitted). King is distinguishable because unlike in this case, the plaintiff in King objected to the comment about insurance. More importantly, in this case Elsemore had already elicited testimony from Grenell showing that he was an employee of Safeco driving a company owned vehicle at the time of the accident.
Jackson's other comment that allegedly incited the jury's anti-plaintiff biases came at the very end of his closing argument,
If you want to help the plaintiff, you don't help him by giving him money. You tell him to go to a doctor. You tell him to get off the Percocet. And you tell him to take a discogram to figure out what's wrong. That's how you help him. Not by giving him money.
RP (Mar. 9, 2006) at 99. These words were forceful, but they were directly related to the evidence and summarized the defendants' theory that Elsemore continued to seek medical care in order to continue taking Percocet and that he should have had a discogram performed if his injuries were as serious as he claimed. Elsemore cites to State v. Powell, 62 Wn. App. 914, 816 P.2d 86 (1991), a criminal case involving sexual abuse of a child in which "the prosecutor in effect told the jury that a not guilty verdict would send a message that children who reported sexual abuse would not be believed, thereby 'declaring open season on children.'" Powell, 62 Wn. App. at 918. Powell is distinguishable because it is a criminal case in which constitutional due process rights are at stake and because the prosecutor's comment was clearly dissimilar to Jackson's comment. Elsemore relies on another criminal case, State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984). Claflin is absolutely inapposite because it is a rape case in which the prosecutor read a poem in closing argument that contained "vivid and highly inflammatory imagery in describing rape's emotional effect on its victims" and "was nothing but an appeal to the jury's passion and prejudice." Claflin, 38 Wn. App. at 850.
Jury Misconduct
Elsemore alleges that the trial court abused its discretion in denying his motion for a new trial because of juror nondisclosure. Under CR 59(a)(2), "a verdict may be vacated and a new trial granted" due to "[m]isconduct of prevailing party or jury. . . ." The trial court's decision to deny a new trial will be reversed only upon evidence of clear abuse of its discretion or when based on an erroneous interpretation of the law. State v. Briggs, 55 Wn. App. 44, 60, 776 P.2d 1347 (1989). The trial court abuses its discretion when its decision is manifestly unreasonable or exercised on unreasonable or untenable grounds. State v. Cho, 108 Wn. App. 315, 30 P.3d 496 (2001). In Cho, the court established the present test for deciding whether a new trial should be granted based on juror nondisclosure. The test is (1) whether the movant could demonstrate that the nondisclosure during voir dire was material and (2) whether disclosure would have been a basis for a challenge for cause. Cho, 108 Wn. App. at 321.
Elsemore claims that several jurors concealed their biases by failing to reveal information during voir dire. The evidence for the nondisclosure consists of an affidavit of jury consultant Nurhan Karakas, retained by Elsemore, and an affidavit submitted by Barcus. Karakas observed the jury during trial and spoke with jurors after the trial. The affidavits allege that juror 6 failed to disclose her lower back disk hernia, juror 7 failed to disclose his past involvement with litigation and a past car accident and admitted that he "probably should have said something about this at the beginning," and juror 10 or 11 failed to disclose that he worked for a health care provider. Elsemore does not claim he asked specific questions that would have elicited these responses, but he nevertheless argues that the jurors committed nondisclosure and would have been challenged for cause if they had revealed this information during voir dire.
The trial court did not abuse its discretion in denying Elsemore's motion for a new trial based on jury misconduct. Though jurors 6, 7, and 10 or 11 may not have disclosed information regarding involvement in a past litigation, a car accident, a back injury, or employment, Elsemore has not established that they were questioned specifically about past experiences, but only that they were asked if they "had any problems or concerns with awarding money damages for pain and suffering" and if "there was anyone who did not believe they could follow the law and render a fair decision." Br. of Appellant at 10. And none of the undisclosed information would have, under Cho, "been a basis for a challenge for cause." Cho, 108 Wn. App. at 321. Finally, the court was free to take into account the fact that the affidavits in support of the motion were from Elsemore's attorney and his trial consultant, thus lacking the weight of an affidavit from a juror.
Elsemore relies on three cases in which a new trial was granted because of juror nondisclosure, but all of them were decided before Cho, which provides the current test for granting a new trial based on nondisclosure, and all three cases can be distinguished on their facts. Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 776 P.2d 676 (1989); Gordon v. Deer Park Sch. Dist. 414, 71 Wn.2d 119, 426 P.2d 824 (1967); Allison v. Dep't of Labor Indus., 66 Wn.2d 263, 401 P.2d 982 (1965). In all three cases, certain jurors concealed information they were questioned about in voir dire. See Robinson, 113 Wn.2d at 156 (juror was questioned about and concealed his bias against Californians and that he had been a defendant in a lawsuit against a Californian); Gordon, 71 Wn.2d at 121 (in a case involving a school teacher, juror was questioned about his potential biases but did not reveal until after trial that he was sympathetic to school teachers); Allison, 66 Wn.2d at 26-65 (one juror was questioned about and concealed his bias against the defendant and one juror failed to disclose a back injury when asked about previous injuries). Unlike those cases where juror bias was established, the undisclosed information here would not have provided a basis for a challenge for cause.
Elsemore also claims that juror 3, who according to another juror did not want to award any damages, displayed "cynical" body language, and made comments to other jurors during the trial. Br. of Appellant at 33 n. 7. He further alleges that other jurors stared at him and his counsel in an angry manner. Elsemore has waived this argument because he did not bring any of these matters to the court's attention during the trial. See Casey v. Williams, 47 Wn.2d 255, 257, 287 P.2d 343 (1955) (when aware of potential jury misconduct, plaintiff must seek relief at that time and may not "gamble on the verdict" by waiting until after trial).
Cumulative Error
Elsemore's final contention is that a new trial is required under CR 59(a)(1) and (9) because the cumulative effect of the errors alleged above denied him a fair trial. CR 59(a)(1) provides that a verdict may be vacated and a new trial granted due to "Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial[.]" "An appellate court will not reverse an order granting or denying a motion for new trial unless the trial court has abused its discretion." Berry v. Coleman Sys. Co., 23 Wn. App. 622, 624, 596 P.2d 1365 (1979). We decline to vacate the verdict and grant a new trial under CR 59(a)(1) because the alleged errors considered above do not justify a new trial when considered separately and do not amount to reversible error when considered cumulatively.
CR 59(a)(9) provides that a verdict may be vacated and a new trial granted if "substantial justice has not been done." In discussing a trial court's discretion to order a retrial on "substantial justice" grounds, the Supreme Court has stated, "[i]t is in this area of the new-trial field that the favored position of the trial judge and his sound discretion should be accorded the greatest deference. . . ." Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964). We also decline to grant a new trial under CR 59(a)(9) because the trial court did not abuse its discretion in denying Elsemore's motion for a new trial.
For the foregoing reasons, we affirm.
WE CONCUR: