Opinion
No. 30692-1-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-2-10603-7. Judgment or order under review. Date filed: 07/03/2003. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Sherry Hemming Rogers, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), Amanda Hoke Du Bois, The Law Offices of Amanda Du Bois, 800 5th Ave Ste 4100, Seattle, WA 98104-3100.
Jane Isaacs Fantel, Lopez Fantel Inc PS, 1510 14th Ave, Seattle, WA 98122-4024.
Carl A. Taylor Lopez, Lopez Fantel, 1510 14th Ave, Seattle, WA 98122-4024.
In this medical malpractice case, Dr. Esther Park-Hwang, Dr. Judy Ungerleider, and Multicare Health System (collectively, Park-Hwang) appeal a trial court order granting Kirsten and Daniel Otzenberger's motion for a new trial following a jury verdict in Park-Hwang's favor. The court granted a new trial based on (1) Park-Hwang's violation of its 'golden rule' order in limine in closing argument and (2) the trial court's refusal to permit the Otzenbergers to take a perpetuation deposition of rebuttal witnesses who were apparently unable to testify at trial.
The court's limiting ruling prohibited the parties from urging 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.
We hold that the trial court properly denied the Otzenbergers' request for a perpetuation deposition because they did not make the showing necessary for such a deposition. There was no legal ground for the trial court to reverse its initial decision to deny the deposition. Moreover, the Otzenbergers did not object to Park-Hwang's 'golden rule'-type statement and, when considered in context, it was not 'flagrant and prejudicial.' Thus, error, if any, was waived. We reinstate the jury's verdict for Park-Hwang and remand for entry of judgment on that verdict.
FACTS
Kirsten Otzenberger was first prescribed the topical cream Efudex, also known as 5-fluorouracil, in the early 1990s after being diagnosed with human papillomavirus (HPV) and experiencing pain and irritation of the vulva or labia majora. Application of this cream causes abnormal skin cells to die and slough off, allowing normal skin cells to develop. Otzenberger had good results using the cream once a week for several weeks at a time.
Kirsten Otzenberger's husband, Daniel, is also a respondent, but the parties will be referred to as 'Otzenberger.'
HPV is a family of viruses; some of the viruses can lead to warts of the genital area or other parts of the body. HPV can also lead to cancer in the female reproductive tract.
In 1997, Otzenberger saw her Colorado gynecologist, Dr. Voss, complaining of symptoms of itching and dryness. Dr. Voss performed a biopsy of Otzenberger's vulva and concluded that she had developed vulvar intraepithelial neoplasia ('VIN') 1. VIN is an abnormality of the skin cells in the vulva that can be graded as 1, 2, or 3. VIN 3 denotes the worst cell abnormality and is the stage that occurs before development of cancer. VIN 1 may progress to VIN 3, and eventually cancer, but this only occurs in a small percentage of cases. Dr. Voss recommended Efudex to treat Otzenberger's condition, but Dr. Voss and Otzenberger determined Otzenberger would wait to start treatment until after she saw a doctor in Washington State, where she was planning to move.
After Otzenberger moved to Puyallup, Washington, she saw gynecologist Dr. Park-Hwang on August 28, 1998. Otzenberger told Dr. Park-Hwang that she had a long history of HPV with chronic vulvar irritation and gave Dr. Park-Hwang records of her treatment with Dr. Voss. Otzenberger told Dr. Park-Hwang that Dr. Voss had recommended that she be treated with Efudex, and she showed Dr. Park-Hwang a tube of the medication.
An employee of Multicare Health System, a Washington corporation.
Dr. Park-Hwang performed pelvic examinations on Otzenberger on August 28, and again on September 14; these confirmed Dr. Voss's diagnosis of VIN 1. Between Otzenberger's August and September appointments, Dr. Park-Hwang reviewed the available medical literature on Efudex treatment and consulted a gynecologic oncologist.
At Otzenberger's September 14 follow-up appointment, Dr. Park-Hwang discussed Otzenberger's treatment options and explained that the Efudex treatment would cause the skin to slough off and make the area raw and painful. But Otzenberger wanted to try Efudex, and Dr. Park-Hwang prescribed topical application to Otzenberger's vulva once a day for 14 consecutive days. After six days of application, Otzenberger called Dr. Park-Hwang and reported painful urination, but Dr. Park-Hwang told her that this was normal and Otzenberger should continue treatment.
Four days later, Otzenberger saw Dr. Park-Hwang's partner, gynecologist Dr. Ungerleider, complaining of continued painful urination. Dr. Ungerleider prescribed pain medication and advised Otzenberger to complete the treatment unless the pain worsened. Otzenberger completed the course of treatment and continued to see Dr. Ungerleider or nurse practitioners at the office for the next two months, but she continued to experience pain. Eventually, Dr. Ungerleider referred Otzenberger to another physician.
Dr. Park-Hwang was out of town at a medical conference.
Otzenberger sued Park-Hwang for damages resulting from her continuing vulvar pain, contending that Dr. Park-Hwang and Dr. Ungerleider were negligent in prescribing Efudex for two weeks and that Dr. Park-Hwang had failed to inform Otzenberger of alternative treatments.
Before trial, Park-Hwang moved in limine to exclude 'golden rule' arguments, or those arguments 'urging 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.' The trial court ordered that any 'golden rule' argument by either party would be improper.
Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988) (quoting J. Stein, Closing Argument sec. 60, at 159 (1985)).
At the February 2003 jury trial, which encompassed eight days of testimony, Otzenberger presented physician testimony that she had never had HPV or VIN and testimony that Dr. Park-Hwang and Dr. Ungerleider's care had fallen below the standard of care and caused her permanent injury, despite various treatment attempts.
Park-Hwang presented testimony that Otzenberger had been diagnosed with both VIN and HPV, that Dr. Park-Hwang and Dr. Ungerleider's treatment of Otzenberger was within the standard of care and, further, that the doctors' treatment had not caused Otzenberger's pain.
A number of Otzenberger's other health care providers testified at trial. Apparently, Otzenberger suffered from a number of health complaints, including psychological disorders. Dr. Gerald Rosen, a clinical psychologist, testified for the defense regarding tests that he had performed on Otzenberger. Over Otzenberger's objection, he testified that Otzenberger 'has a pattern of severe medical complaints that seem to get more complicated with treatment.' 7 Report of Proceedings (RP) at 1083.
Based on apparent scheduling difficulties, Otzenberger was unable to call as rebuttal witnesses her family physician, Dr. Day, and her neurologist, Dr. Chang. But she called her gynecologist, Dr. David Eschenbach.
After the parties rested, defense counsel stated in closing argument:
[VIN] is a precancerous condition. Plaintiffs want you to believe that it's nothing. But none of the doctors, neither Dr. Krebs, nor Eschenbach [plaintiffs' witnesses], nobody could tell you that Ms. Otzenberger was indeed the one who wouldn't go on to have different symptoms, worse symptoms, or even go on to have cancer somewhere down the line. They didn't tell you that. They said, Oh well, she probably wouldn't have it. Not too many people go on to have cancer. Ask yourselves, would that have been good enough for you or your spouse?
11 RP at 1849-50. Otzenberger did not object.
On February 28, 2003, a jury of 12 rendered a defense verdict in favor of Park-Hwang. On April 11, 2003, the trial court entered a judgment on the verdict.
On April 21, 2003, 52 days after the jury's verdict, Otzenberger timely moved for a new trial under CR 59(a)(1), (2), and (9). The trial court granted a new trial on the ground that defense counsel violated the order in limine regarding 'golden rule' arguments in its closing argument, and that, although Otzenberger did not object, the violation was so flagrant and prejudicial that it merited a new trial. The trial court also granted a new trial based on a second ground that substantial justice was not done under CR 59(a)(1) and (9) because the trial court had not permitted Otzenberger to perpetuate by deposition the testimony of the proposed rebuttal witnesses. The trial court noted that either ground supported a new trial. On June 16, Park-Hwang moved for reconsideration of the order granting a new trial, but the trial court denied the motion on July 3, 2003.
CR 59 states in pertinent part:
(a) Grounds for New Trial or Reconsideration. The verdict or other decision may be vacated and a new trial granted to all or any of the parties and on all or part of the issues when such issues are clearly and fairly separable and distinct, on the motion of the party aggrieved for any one of the following causes materially affecting the substantial rights of such parties:
(1) 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;
(2) Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors;
. . . .
(9) That substantial justice has not been done.
Based on CR 59(a)(1), (2), and (9).
Park-Hwang appeals the order granting Otzenberger a new trial.
ANALYSIS Standard of Review
A court may grant a motion for a new trial when important rights of the moving party are materially affected because substantial justice has not been done. CR 59(a). When the trial court's basis for granting a motion for a new trial is based on questions of fact, we will not disturb the ruling absent a manifest abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). But when such an order is predicated on legal rulings, no element of discretion is involved. Schneider v. City of Seattle, 24 Wn. App. 251, 255, 600 P.2d 666 (1979) (citing Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812, 440 P.2d 834 (1968); Lyster v. Metzger, 68 Wn.2d 216, 226, 412 P.2d 340 (1966)), review denied, 93 Wn.2d 1010 (1980). Thus, we review legal rulings for error only, not for abuse of discretion. See Schneider, 24 Wn. App. at 256 (quoting Braden v. Rees, 5 Wn. App. 106, 110, 485 P.2d 995 (1971)).
'Golden Rule' Argument
Park-Hwang contends that the trial court erred in granting a new trial based on the defense's 'golden rule' comment in its closing argument. They argue that the comment did not violate the order in limine and that, even if it did, granting a new trial was inappropriate because Otzenberger did not object.
Otzenberger did not object to the comment at the time, but in her motion for new trial, filed 52 days after the jury's verdict, she asserted that the argument was so flagrant and prejudicial that no objection was necessary. The trial court agreed, stating in its oral ruling:
It was clear to me at the time that defense counsel . . . violated my order in limine not to argue to the jury the 'golden rule'. . . . And in fact, that was at the request of [the defense] that I initially gave that order and made it mutual. It was clear to me at the time when I heard her argue . . . that this was a precancerous condition, ask yourselves would that have been good enough for you or your spouse? It is a flagrant violation of the 'golden rule' and extremely prejudicial. No objection was necessary at the time. I do not believe that you can unring something like that by a curative instruction without simply calling more attention to it. This does constitute misconduct by the prevailing party and results in a lack of substantial justice being done.
12 RP at 1926-27.
Threshold Question
As a threshold matter, Park-Hwang argues that the trial court erred in granting a new trial because the argument was not a golden rule argument at all, since it did not ask the jurors to put themselves in the shoes of either party and was merely a request that jurors focus on the evidence.
The biblical 'golden rule' states a standard of conduct for individuals: do unto others as you would have them do unto you. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988) (citing Luke 6:31). Generally, reference by counsel to the 'golden rule' per se, or allusions to the rule, such as 'urging 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,' are improper 'golden rule' arguments. Adkins, 110 Wn.2d at 139 (quoting J. Stein, Closing Argument sec. 60, at 159 (1985)).
Under Adkins, which the parties agree is the leading Washington case on the subject, the prohibition applies to a broad range of argument: [W]hether made by plaintiff's counsel or defendant's counsel, an argument in a civil case is improper which appeals to 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. Where an argument is designed to affect the outcome of the case, either upon the question of liability or damages, a plaintiff's potential recovery or a defendant's potential success in defending is involved.
110 Wn.2d at 140. Courts have found improper 'golden rule' arguments where plaintiff's counsel have asked the jurors to place themselves in plaintiff's position with respect to damages. Courts have similarly recognized that defense counsel can also make an improper 'golden rule' argument. Adkins, 110 Wn.2d at 139-40.
For the proposition that a golden rule argument can be attributed to defense counsel, Adkins cited Beaumaster v. Crandall, 576 P.2d 988, 994-95 (Alaska 1978); Miku v. Olmen, 193 So.2d 17 (Fla.Dist.Ct.App. 1966), cert. denied, 201 So.2d 232 (Fla. 1967); Brummitt v. Chaney, 18 Mich. App. 59, 66, 170 N.W.2d 481 (Mich.Ct.App. 1969); Millen v. Miller, 224 Pa. Super. 569, 573, 308 A.2d 115 (Pa.Super.Ct. 1973), each of which dealt with remarks asking jurors to put themselves in the position of the defendant.
Here, defense counsel was not asking the jurors to put themselves in the shoes of the defendant being sued when deciding the amount of damages. Instead, the argument suggested that jurors would have wanted treatment if they or their spouse had a precancerous condition in order to rebut the testimony of Otzenberger's expert witnesses that the reasonable medical treatment would have been to wait and see. Although the argument is not a typical golden rule argument, on its surface it 'appeals to the jurors to place themselves in the position of a litigant' and to use this insight to some extent 'to decide the case based upon what they would then want under the circumstances.' Adkins, 110 Wn.2d at 140. We assume but do not hold that the court's motion in limine precluded this argument. We turn to whether the trial court properly granted new trial on this ground.
RCW 7.70.040(1) provides that the plaintiff in an action for medical malpractice must show that the defendant health care provider 'failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.' Generally, expert testimony is necessary to establish the standard of care for a health care provider in a medical malpractice action. Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983).
CR 59(a)(2): Prevailing Party Misconduct
Under CR 59(a)(2), misconduct of a prevailing party is a ground for a new trial if the misconduct materially affects the substantial rights of the moving party. Aluminum Co. of Am., 140 Wn.2d at 539. 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. In addition, the moving party must object to the misconduct at trial, and the misconduct must not have been cured by court instructions. Aluminum Co. of Am., 140 Wn.2d at 539-40 (citing 12 James Wm. Moore, Federal Practice sec. 59.13(2)(c)(I)(A), at 59-48 to 58-49 (3d ed. 1999)).
Generally speaking, a party is not permitted to remain silent as to claimed errors and await a verdict and then assert error for the first time in a motion for new trial or on appeal. State v. Hoff, 31 Wn. App. 809, 812, 644 P.2d 763, review denied, 97 Wn.2d 1031 (1982). Thus, in reviewing the trial court's grant of a new trial where the moving party did not object, Washington courts have held that misconduct that the moving party did not object to is a proper ground for a new trial if it was so flagrant that the court could not have cured its prejudicial effect through an instruction to the jury to disregard it. Kilde v. Sorwak, 1 Wn. App. 742, 748, 463 P.2d 265 (citing McUne v. Fuqua, 42 Wn.2d 65, 78, 253 P.2d 632 (1953)), review denied, 77 Wn.2d 963 (1970). For example, in Warren v. Hart, 71 Wn.2d 512, 429 P.2d 873 (1967), the court held that defense counsel's arguments that police officers who investigated an automobile collision constituted a 'little baby court' (and that the jury could be guided by officers' conduct in not issuing traffic citations) were such flagrant misconduct that no instruction could have cured their prejudicial effect; therefore the plaintiff did not waive the right to assert the error in a motion for a new trial.
Here, the trial court's ruling fails to explain how defense counsel's argument was so prejudicial that no instruction could have cured it, and our review of the record does not support such a determination. At the eight-day trial, the jury heard evidence supporting both sides from a multitude of fact and expert witnesses. The challenged comment occurred several minutes into closing argument and was not repeated during the numerous minutes that followed. Even if defense counsel's comments violated the letter of the motion in limine, they primarily attacked the defense's expert witnesses' statements regarding the appropriate actions of a reasonable prudent doctor and were not an inflammatory appeal to jurors to place themselves in the position of either the plaintiff or defendant for purposes of assessing a damage award.
Otzenberger argues that the trial court's motion in limine obviated the need to object to the argument. For its part, the trial court found that there was no need to object because objection would have prejudicially emphasized the prohibited matter and a curative instruction would have been ineffective. Neither rationale is persuasive. An order in limine does not excuse the complaining party from its obligation to make a proper objection at the time of the asserted violation to preserve the issue. See State v. Sullivan, 69 Wn. App. 167, 173, 847 P.2d 953, review denied, 122 Wn.2d 1002 (1993). See also Karl B. Tegland, 5 Washington Practice: Evidence Law and Practice sec. 103.4 (4th ed. 1999) (To excuse the necessity of objecting, the motion in limine 'should . . . demonstrate why the moving party should be spared the necessity of calling attention to the evidence by objecting when it is offered at trial.'). In the motion in limine here, the trial court had not been asked to rule, nor had it ruled, that no objection was required should a violation occur. Under these circumstances, Otzenberger waived the error by failing to timely object. Thus, as a matter of law, the trial court erred by granting a new trial based on unobjected-to defense misconduct.
CR 59(a)(1) and (9): Denial of Fair trial
A trial court may grant a new trial where an adverse party prevents the movant from having a fair trial. CR 59(a)(1). And under CR 59(a)(9), the trial court also has the power to grant a new trial if it determines, in the exercise of its discretion, that substantial justice was not done. Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968). The court must state its reasons for finding a lack of substantial justice. Olpinski, 73 Wn.2d at 951. In Olpinski, the court noted that '[t]he basic question posed by an order granting a new trial upon this ground . . . is whether the losing party received a fair trial.' 73 Wn.2d at 951 (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964)).
Here, the reasons the trial court gave for granting a new trial under CR 59(a)(1) and (9) are the same as those stated in its findings regarding the defense misconduct findings. But the trial court's stated reasons do not support the conclusion that Otzenberger did not receive a fair trial, nor do they support the conclusion that she could not have had a fair trial if she had timely objected and a curative instruction been given.
Perpetuation of Testimony By Videotape Deposition
The trial court also based its order granting a new trial on its ruling denying Otzenberger's motion to permit perpetuation depositions of her rebuttal witnesses.
On February 24, during the defense case-in-chief (which was apparently going on longer than Otzenberger anticipated, Otzenberger requested permission to call rebuttal witnesses before the close of the defense case-in-chief. Otzenberger wanted to call Dr. Day, her family physician, and Dr. Chang, her neurologist, to testify on February 25. The doctors were to rebut defense psychologist Dr. Rosen's testimony, which dealt primarily with Otzenberger's allegedly inconsistent reporting of medical problems to her many health care providers. Otzenberger's counsel also requested that, in the event Dr. Day was not permitted to testify on the 25th, they be permitted to perpetuate her testimony by video deposition.
Under CR 32(a):
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any purpose permitted by the Rules of Evidence.
. . . .
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness resides out of the county and more than 20 miles from the place of trial, unless it appears that the absence of the witness was procured by the party offering the deposition or unless the witness is an out-of-state expert subject to subsection (a)(5)(A) of this rule; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(Emphasis added).
Park-Hwang objected to this proposal. The trial court ordered that rebuttal witnesses be scheduled for February 27 and denied Otzenberger's request to preserve and present their testimony by video deposition. Regarding Dr. Day, the court stated, 'Again, it's not as if she is out of the state or out of the country, so she does need to reschedule so she can appear [on the 27th].' 8 RP at 1237-38.
That evening of February 24, Otzenberger's counsel learned that Dr. Chang would not be available to testify on February 27, but counsel did not request a perpetuation deposition of Dr. Chang.
On February 26, Otzenberger's counsel informed the court that they were trying to get Dr. Day and Dr. Chang to testify. Later that day, counsel informed the court that neither doctor would be able to testify on the 27th, and Dr. Eschenbach would be Otzenberger's only rebuttal witness. Counsel did not request further relief or renew the request for a video deposition of Dr. Day.
Interestingly, what actually appears in the record is quite different than Otzenberger's account of the sequence of these events in the motion for new trial:
After the court ruled Plaintiffs had to call their rebuttal witnesses [on] February 27th, they immediately contacted the doctors. Much to Plaintiff's distress, Dr. Day informed them that she would be happy to testify on her patient's behalf, but had a full day of patients scheduled and . . . could not be available. . . .
Plaintiff's counsel then requested that the court allow them to at least perpetuate Dr. Day's testimony by videotape the evening of Monday, February 24th. The court denied plaintiffs' request.
Clerk's Papers at 620.
Nevertheless, following Otzenberger's motion for new trial, the trial court determined that, based on its failure to permit depositions to be taken, a new trial was appropriate under CR 59(a)(1), '[i]rregularity 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' and CR 59(a)(9), substantial justice not being done. As we have stated, the basic question posed by an order granting a new trial on the ground that substantial justice not done is whether the losing party received a fair trial. Olpinski, 73 Wn.2d at 951. A trial court may grant a new trial where an adverse party or the court itself prevents the movant from having a fair trial. CR 59(a)(1). But it may not use the rule as a means to substitute its judgment for that of the jury. See Bunnell v. Barr, 68 Wn.2d 771, 775, 415 P.2d 640 (1966); Thompson v. Grays Harbor Cmty. Hosp., 36 Wn. App. 300, 307, 675 P.2d 239 (1983). Moreover, an aggrieved party must request appropriate court action to obviate any prejudice before the case is submitted to the jury and may not speculate on the verdict by awaiting the result of the trial and then complain of the irregularity or misconduct in case the verdict is adverse. Hoff, 31 Wn. App. at 812; Spratt v. Davidson, 1 Wn. App. 523, 526-27, 463 P.2d 179 (1969).
Here, it appears that to some extent Otzenberger was speculating on the verdict: she failed to object to defense counsel's allegedly improper closing argument when made, before rebuttal, before the matter was submitted to the jury, or even immediately after the verdict. Instead Otzenberger waited to review the transcript and then filed a motion for a new trial based on irregularities she claims were 'flagrant.' Thus, the trial court erred as a matter of law in granting a new trial on this ground.
Its ruling that Dr. Day and Dr. Chang would not be permitted to interrupt the defense's case-in-chief was reasonable and proper on the facts and motions presented to it at the time did not deny Otzenberger a fair trial. Otzenberger did not ask for a continuance to reschedule her witnesses. She did not request a perpetuation deposition of Dr. Chang and she did not renew her request to depose Dr. Day. Thus, the sole question is whether the trial court's initial February 24 denial of Otzenberger's request to perpetuate the testimony of Dr. Day by video deposition denied her a fair trial. As it did not, it was improper for the trial court to order a new trial on that basis.
In addition, the admissibility of depositions is governed by CR 32. CR 32(a)(3) provides that when certain defined instances of unavailability exist, a witness's deposition may be admitted as a substitute for his testimony. Hammond v. Braden, 16 Wn. App. 773, 774-75, 559 P.2d 1357 (1977). Thus, evidence of such a deposition would only have been proper had the court found:
(A) that the witness is dead; or (B) that the witness resides out of the county and more than 20 miles from the place of trial, unless it appears that the absence of the witness was procured by the party offering the deposition or unless the witness is an out-of-state expert subject to subsection (a)(5)(A) of this rule; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
CR 32(a)(3). The circumstances before the court when it made its ruling were that Otzenberger represented that there was a possibility that Dr. Day would be able to testify. Thus, it would have been improper for the trial court to permit taking a perpetuation deposition of Dr. Day. The court's refusal to permit Otzenberger to perpetuate the inadmissible deposition testimony of Dr. Day could not, as a matter of law, have denied Otzenberger a fair trial, and the grant of a new trial on that basis was error.
In conclusion, Otzenberger failed to preserve objection to Park-Hwang's closing argument and is not entitled to a new trial or appellate relief on that basis. On the record before it, the trial court's denial of Otzenberger's request for preservation video deposition was proper when made and did not deprive Otzenberger of a fair trial. The trial court substituted its judgment for that of the jury and its order granting a new trial does not rest on any legitimate legal ground. The jury's verdict in favor of Park-Hwang should be reinstated.
Reversed and remanded with directions to reinstate the jury's verdict and enter judgment thereon.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and VAN DEREN, J. concur.