Opinion
No. 22208-0-III.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-2-03415-9. Judgment or order under review. Date filed: 06/05/2003. Judge signing: Hon. Michael E Donohue.
Counsel for Appellant(s), Michael Jon Riccelli, Attorney at Law, Rock Pt Twr, 316 W Boone Ave Ste 180, Spokane, WA 99201-2346.
Counsel for Respondent(s), Bruce E Cox, Raymond W Schutts/Managing Atty, 14610 E Sprague Ave, Spokane, WA 99216-2146.
Daniel Hahn was injured in an automobile accident caused by the admitted negligence of Irene Hartman. He sued Ms. Hartman for medical expenses, lost wages, diminished earning capacity, and general damages for pain and suffering. The jury awarded considerably less than Mr. Hahn requested for medical expenses and only a small amount for general damages. On appeal, Mr. Hahn contends the trial court erred in denying his motion to strike a portion of a defense witness's testimony and in denying his motion for a new trial based on the jury's inadequate award of damages. We disagree and affirm.
Facts
In July 1998, Ms. Hartman ran a stop sign and hit the vehicle driven by Mr. Hahn. Ms. Hartman admitted her negligence was the proximate cause of the collision. However, she disputed the nature and extent of the injuries suffered by Mr. Hahn.
Mr. Hahn filed suit against Ms. Hartman and her husband in June 2001. The jury trial was held in November 2002. During cross-examination of a defense witness — chiropractic doctor Dennis Byam — plaintiff's counsel asked Dr. Byam whether long-term treatment for maintenance is appropriate. Dr. Byam answered that he does not give maintenance treatments to victims of motor vehicle accidents because such treatments do not improve the patient's condition and may make the patient dependent. He limits maintenance care to 'improving health and preventing disease and improving [the patient's] life.' Clerk's Papers (CP) at 31. Plaintiff's counsel pursued this line of questioning as follows:
Q So is that what you put on your intake questionnaire? Do you come here today because you have an injury that's bothering you from a motor vehicle accident, or are you coming here for good health and feeling?
A Yes, I do.
Q So if it's a motor vehicle accident, you don't want to deal with them, but, if it's for good health, you do?
A I'll be honest with you. In 31 years of practice and I've seen hundreds of cases and I've gone to court — not to court. I've sent in forms for them for their injuries. In 31 years I have never had anybody come back for care after they got their settlement from a motor vehicle accident.
MR. RICCELLI [plaintiff's counsel]: Your Honor, I'd move to strike that as inappropriate and irrelevant from a personal standpoint. He has no foundation to make that pejorative statement.
WITNESS: I do. 31 years.
THE COURT: The motion is denied.
MR. RICCELLI: I have to compliment you on your script, Doctor.
THE COURT: All right, Counsel.
CP at 32.
Mr. Hahn presented evidence that his costs for medical and chiropractic treatment from July 1998 to May 2002 totaled $18,836. Cross-examination of Mr. Hahn revealed that he had been receiving chiropractic treatment for pain in his neck and hand since the late 1980s. Mr. Hahn had been injured in motor vehicle accidents in 1988 or 1989, 1992, 1997, and 1999. He sought treatment in 1996 after he slipped and fell on ice, and was treated for back and neck pain in 1992, 1993, 1996, 1997, and 1998. One month before the July 1998 collision with Ms. Hartman, Mr. Hahn had been injured while riding his jet ski. Dr. Byam, who examined Mr. Hahn and reviewed his medical records, opined that Mr. Hahn suffered 'straining injuries' of his neck, left shoulder, and upper back due to the July 1998 collision. CP at 146. In his opinion, chiropractic treatment beyond a year for such injuries was not appropriate because treatment was not therapeutic after the condition was stable. A medical doctor testifying for the defense agreed that treatment for Mr. Hahn's injuries was reasonable for the first year.
During deliberations, the jury sent a note to the court asking, in part, the following: 'Dr. Byam testified toward the end 'already reached a settlement.' Is this statement in the offical [sic] transcript?' CP at 12. The court responded that there was no settlement in this case.
By special verdict, the jury awarded Mr. Hahn past economic damages of $5,928 for health care and nothing for income loss. Additionally, the jury awarded $250 for past noneconomic damages and nothing for future economic and noneconomic damages. Mr. Hahn moved for a new trial pursuant to CR 59(a), contending (1) the trial court erred in denying his motion to strike Dr. Byam's statement regarding treatment after settlements, and (2) the award of damages was so inadequate that it must have been the result of passion or prejudice.
In an order dated June 5, 2003, the trial court denied Mr. Hahn's motion for new trial. During the hearing on the motion, the trial court stated that the jury's award of $250 for pain and suffering 'shocked' the court. Report of Proceedings (RP) at 21. However, the court explained that its job was to determine whether the award was outside the range of evidence. The court concluded, 'It really wasn't. There was evidence, I think, that the jury could believe that the extent of pain and suffering that he had and a lot of the treatment that he had really was for the pre-existing conditions for which he was under treatment very recently.' RP at 22. Mr. Hahn timely appealed the order denying his motion for new trial and the underlying judgment.
Admission of Testimony
Mr. Hahn first challenges the trial court's denial of his motion to strike a portion of Dr. Byam's testimony. He contends Dr. Byam's statement that motor vehicle accident victims never return for chiropractic treatment after settling their claims was irrelevant, unfairly prejudicial, and lacked foundation.
A trial court's admission or exclusion of testimony is discretionary and will not be overturned on appeal absent a manifest abuse of discretion. Okamoto v. Employment Sec. Dep't, 107 Wn. App. 490, 494-95, 27 P.3d 1203 (2001). We will find an abuse of discretion if the trial court's decision was based on untenable grounds or reasons, or if no reasonable judge would have reached the same conclusion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002); Byerly v. Madsen, 41 Wn. App. 495, 499, 704 P.2d 1236 (1985).
Relevant evidence is generally admissible under ER 402. Hayes v. Wieber Enters., Inc., 105 Wn. App. 611, 617, 20 P.3d 496 (2001). ER 401 defines relevant evidence as evidence having a tendency to make a consequential fact more or less probable. Any evidence that tends to establish a party's theory or that qualifies or disproves the testimony of an adversary is also relevant. Hayes, 105 Wn. App. at 617. However, even relevant evidence may be excluded 'if its probative value is substantially outweighed by the danger of unfair prejudice.' ER 403. Whereas nearly all evidence prejudices one side or the other in a lawsuit, unfairly prejudicial evidence is that likely to trigger an emotional rather than a rational decision by the jurors. Hayes, 105 Wn. App. at 618.
During cross-examination, Dr. Byam stated, 'In 31 years I have never had anybody come back for care after they got their settlement from a motor vehicle accident.' CP at 32. Plaintiff's counsel immediately moved to strike that comment as inappropriate and irrelevant and further asserted that Dr. Byam had 'no foundation to make that pejorative statement.' CP at 32. Ms. Hartman contends Mr. Hahn did not preserve an objection based on prejudice, but we find that labeling the statement pejorative adequately put the court on notice that plaintiff's counsel objected to the testimony as unfairly prejudicial. Accordingly, we examine the relevance of Dr. Byam's statement and its potential for unfair prejudice.
Ms. Hartman contends the invited error doctrine precludes Mr. Hahn from raising this issue on appeal. The doctrine applies when a party takes affirmative action that induces the trial court to take action that is later challenged on appeal. Lavigne v. Chase, Haskell, Hayes Kalamon, 112 Wn. App. 677, 681, 50 P.3d 306 (2002). Here, however, Mr. Hahn did not set up the error. Plaintiff's counsel was clearly surprised by Dr. Byam's comment and did not attempt to elicit it.
In the context of the cross-examination, Dr. Byam's comment was an elaboration on his insistence that maintenance care after a motor vehicle accident has no therapeutic value after 30 or 40 office visits. One of Ms. Hartman's defense theories was that much of Mr. Hahn's medical treatment after the accident was not related to injuries incurred in the accident. Dr. Byam asserted motor vehicle accident victims do not improve after 40 chiropractic treatments. One way to interpret his challenged comment is that motor vehicle accident victims cease chiropractic treatments after settlement because such patients do not want to pay for treatments that do not improve their conditions. His comment tended to support Ms. Hartman's theory of defense and was consequently relevant.
On the other hand, Dr. Byam's comment clearly was prejudicial. The question is whether it was unfairly prejudicial. As Mr. Hahn suggests, the comment could be interpreted to infer that motor vehicle accident victims exhibit exaggerated symptoms of injuries only up and until they receive a monetary settlement in their favor. Allegations of over-exaggerated injuries are prevalent in many cases involving negligence. However, defense counsel did not attempt to paint a picture of Mr. Hahn as a dishonest person. According to the portions of testimony in the appellate record, all witnesses assumed Mr. Hahn experienced pain and honestly sought treatment. The only disputes involved what caused the pain and injury and how much treatment was effective. With the numerous motor vehicle accidents and other injuries suffered by Mr. Hahn in recent years, the extent of injury that could be ascribed to the collision with Ms. Hartman was central to this case. Dr. Byam's comment, even if interpreted to infer an allegation of fraud, was not reinforced by other evidence.
Unfair prejudice is difficult to prove. A trial court's conclusion that particular testimony is not unfairly prejudicial will be reversed only in exceptional circumstances. Hayes, 105 Wn. App. at 618. Under the circumstances here, and in the context of the defense strategy, it cannot be said that no reasonable judge would have ruled as the judge did. We find no abuse of discretion.
Mr. Hahn's additional argument that Dr. Byam's statement had no proper foundation is without merit. As an expert witness, Dr. Byam was entitled to testify as to opinions formed from extensive experience and observation on the job. Reese v. Stroh, 128 Wn.2d 300, 309, 907 P.2d 282 (1995); State v. Sanders, 66 Wn. App. 380, 386, 832 P.2d 1326 (1992). He testified from over 31 years of personal experience with motor vehicle accident victims. Adequacy of Damages
Mr. Hahn next contends the trial court erred in denying his motion for new trial. Pursuant to CR 59(a), he argues that a new trial is justified due to the inadequate award of both special and general damages.
Generally the determination of damages is within the province of the jury and courts are reluctant to interfere. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997). A trial court's denial of a new trial on the basis of inadequate damages will be upheld absent an abuse of discretion. Id. CR 59(a) includes several grounds that may support a new trial, including damages so inadequate that they unmistakably indicate that the verdict must have been the result of passion or prejudice (CR 59(a)(5)), and '[t]hat substantial justice has not been done' (CR 59(a)(9)). We examine the record provided to this court to determine whether there was sufficient evidence to support the verdict. Palmer, 132 Wn.2d at 197. If the record shows sufficient evidence to support the verdict, it would be an abuse of discretion to grant a new trial. Id. at 198.
Mr. Hahn cites Palmer to support his contention that when an award of special damages is less than or equal to the agreed amount of special damages, the trial court should assume the jury failed to award general damages for pain and suffering. A plaintiff who presents evidence to substantiate pain and suffering is entitled to general damages. Id. at 201. Consequently, a new trial may be justified when the plaintiff indisputably suffered pain and suffering and the jury failed to award general damages. Id. (citing Shaw v. Browning, 59 Wn.2d 133, 367 P.2d 17 (1961)).
The problem with Mr. Hahn's argument is that the jury specifically awarded general damages of $250, so this court cannot assume from the award of specific damages that the jury failed to award anything for pain and suffering. Although the trial court expressed shock that the jury awarded so little for pain and suffering, it noted that the operative question was whether the award was outside the range of the evidence. On that point, the court admitted that 'this is not a case that came to me on two shiny rails of irrefutable evidence.' RP at 19. The court continued, 'Your plaintiff did not come in pristine as God made him, and he had accidents and he had had conditions within the same physical area in which the complaints were here.' CP at 20.
The parties presented conflicting testimony on the extent of medical treatment needed: as long as the period from the date of the collision with Ms. Hartman up until the date of trial (plaintiff's witnesses), or as short as 30 sessions with a chiropractor (Dr. Byam). The cost of 30 chiropractic sessions, even when added to the initial medical cost, is far less than the nearly $6,000 in special damages awarded by the jury. And as in Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 422 P.2d 515 (1967), cited in Palmer, 132 Wn.2d at 199, there was substantial evidence here that Mr. Hahn's pain and suffering could be attributed to previous accidents, one of them a jet ski accident that had occurred only a month before the collision with Ms. Hartman.
Mr. Hahn contends defense counsel agreed in closing argument that $5,000 in general damages was reasonable. Closing arguments were not included in the record on appeal, so this contention is unsupported. At any rate, the jury is entitled to accept or discard the statements of counsel in closing argument.
The law strongly presumes the adequacy of the verdict. Cox, 70 Wn.2d at 176. When the evidence concerning injuries is conflicting, the jury is the final arbiter of the effect of that evidence. Id. Because the jury's award of special and general damages lies within the range presented by the parties in this action, it was no abuse of discretion to deny a CR 59(a) motion for new trial based on inadequacy of damages or failure to do substantial justice. Palmer, 132 Wn.2d at 198; Barth v. Rock, 36 Wn. App. 400, 402-03, 674 P.2d 1265 (1984) (the basic question posed in a motion for new trial based on CR 59(a)(9) is whether the losing party received a fair trial).
Affirmed.
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.
KURTZ and BROWN, JJ., concur.