Opinion
No. 59554-7-I.
May 12, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-05668-0, Gerald L. Knight, J., entered February 27, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Grosse and Becker, JJ.
United Parcel Service (UPS) appeals a judgment awarding damages to Mark Powell for injuries he sustained when a UPS van collided with his motorcycle. UPS contends that the trial court erred by (1) directing a verdict for Powell on the affirmative defense of comparative negligence, (2) making erroneous evidentiary rulings, and (3) denying UPS's motion for a new trial based on juror misconduct.
Because there was no evidence from which a jury could find that Powell could have reasonably reacted to avoid the collision, UPS has failed to demonstrate error or prejudice from the trial court's evidentiary rulings, and the claimed juror misconduct inheres in the verdict, we affirm.
FACTS
On May 31, 2002, Powell was riding his motorcycle traveling southbound on State Route (SR) 527, also known as 19th Avenue Southeast. At the same time, Roy Dias, who was driving a UPS package van, was pulling out of a driveway off northbound SR 527 to go to his next delivery stop, which was across the road off southbound SR 527. Dias drove across the two northbound lanes and the one center lane and attempted to turn left onto southbound SR 527. Powell was in the inside lane at the time, but moved to the outside lane when Dias turned onto the southbound lanes. Powell remained in the outside lane, and Dias then moved into that lane and collided with Powell's motorcycle. As a result of the collision, Powell suffered extensive injuries to his knee and ankle and sued UPS for damages. UPS asserted comparative negligence as an affirmative defense, alleging that Powell was partly at fault for the accident.
The trial court ruled on summary judgment that UPS's negligence was the proximate cause of the accident, but denied Powell's motion to dismiss UPS's comparative negligence defense. The parties stipulated to the amount of past medical expenses and Powell's wage loss proximately caused by the accident. The case then proceeded to trial on the issues of comparative negligence and damages.
Powell moved in limine to exclude a statement Dias gave to a claims adjuster for UPS's insurance company on the afternoon of the accident. UPS sought to offer this statement because Dias died (of causes unrelated to the accident) before he was ever deposed in this case. The trial court granted Powell's motion and ruled that Dias' statement was inadmissible hearsay. The trial court also granted UPS's motion in limine to exclude testimony from lay witnesses about their opinion of who was at fault in the accident.
At trial, Powell testified he was about 12 car lengths behind the van when it first pulled onto the southbound lanes, "far enough away that [he] had time to decide what [he] was going to do about it," and he then moved to the outside lane. He also testified that he was not sure which lane the van was going to stay in, so he slowed down. He said that the van stayed in the inside lane and was moving very slowly, so he remained in the outside lane, resumed his speed, and overtook him. Powell explained that by using the term "overtook," he meant that his motorcycle eventually came even with or reached the van. He testified that when his front tire was even with the van's rear bumper, the van turned abruptly into his lane, he slammed on his brakes, and his motorcycle collided with the van.
Both Thomas McAlpine and Daniel Gauthier were independent witnesses to the accident and testified that Powell did everything he could to avoid the accident. McAlpine was pulling out of a driveway off the southbound lanes and was waiting for traffic to clear, so he could turn left onto the northbound lanes when he saw the accident. He saw the UPS van cut across five lanes of traffic and bump the motorcycle Page 4 on the handlebars when the motorcycle was still in the inside lane, and then hit the motorcycle again when it moved to the outside lane. He also testified that Powell did not appear to be attempting to pass the van, but just swerved to avoid it.
Gauthier was a passenger in a car traveling in the northbound lanes at the time of the accident and testified that he first saw the UPS van in the center lane with its blinker on. He saw the van moving diagonally toward the outside southbound lane, causing the motorcycle to move over to the outside lane to avoid getting hit by the van. He then saw the van turn right in front of the motorcycle, but did not see the actual collision because the van blocked his view. He testified that "it was very obvious that he [the van] cut this motorcycle off, and then cut him off again here, and then turned right in front of him." He said Powell did not appear to be attempting to accelerate past the van and was not making any unusual maneuvers. Officer Ann Bakke testified that based her investigation, there was no evidence that Powell did anything to contribute to the accident.
Powell moved for a directed verdict on the issue of comparative negligence, arguing that there was insufficient evidence to support a finding that he was in part at fault. The trial court granted the motion and dismissed the affirmative defense. The jury returned a verdict award for Powell in the amount of $928,614.82. UPS moved for a new trial based on juror misconduct, but the trial court denied the motion.
I. Directed Verdict on Comparative Negligence
UPS contends that the trial court erred by directing a verdict on the comparative negligence defense because the evidence showed that Powell had time to react to avoid the collision and failed to reasonably do so. We disagree.
The trial court may grant a directed verdict only when as a matter of law, there is no evidence, nor reasonable inferences from the evidence, to sustain the verdict. The evidence must be considered in the light most favorable to the nonmoving party. Because it presents an issue of law, we review a motion for a directed verdict de novo.
Peterson v. Littlejohn, 56 Wn. App. 1, 11-12, 781 P.2d 1329 (1989).
Rhoades v. DeRosier, 14 Wn. App. 946, 948, 546 P.2d 930 (1976).
See id.; Peterson, 56 Wn. App. at 8.
Under the tort reform act of 1981, contributory "fault" on the part of a claimant diminishes proportionally the amount of damages the claimant can recover. The act defines "fault" as "acts or omissions . . . that are in any measure negligent or reckless toward the person or property of the actor or others" and includes an "unreasonable failure to avoid an injury or to mitigate damages." "All drivers, including those having the right of way, must exercise ordinary care. Excessive speed, failure to keep a lookout, or failure to stop or to reduce his speed when danger should have been recognized may constitute negligence of the favored driver." Thus, once it becomes apparent that the disfavored driver will not yield the right of way, the favored driver must react to avoid a collision. But the favored driver must have a reasonable time within which to react.
RCW 4.22.015.
Robison v. Simard, 57 Wn.2d 850, 851, 360 P.2d 153 (1961).
Petersavage v. Bock, 72 Wn.2d 1, 6, 431 P.2d 603 (1967).
Id.
UPS's assertion that Powell had time to react is not supported by the evidence. Powell testified he had time to react when he first saw the van enter the roadway and Page 6 turn onto the southbound lanes. At that time, the van was a safe distance from his motorcycle. But when the van actually moved into his lane and caused the collision, he testified that it happened "in a heartbeat," and he had only "[s]econds to respond."
UPS also asserts that because the van had its right turn signal on, Powell was on notice that it was moving into the outside lane, and Powell created a new risk of collision by attempting to pass the van on the right. But simply using a turn signal does not validate an otherwise illegal turn. RCW 46.61.305 provides that "[n]o person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal." Dias could not have made the turn into Powell's lane with reasonable safety while Powell's front tire was even with the van's bumper. Putting on his turn signal did not automatically give him the right to move into the lane in which Powell was lawfully traveling, nor did it require Powell to slow down so Dias could make an unsafe lane change. Indeed Powell testified that he resumed his speed because there was traffic behind him. As the trial court explained in its ruling:
The fact that the turn signal is on does not establish the defendant's having legally taken the right-of-way. The turning vehicle was [the] disfavored driver, and turning your indicator on does not give you the right-of-way. It allows you to comply with the law to give an indication that you are going to be turning.
UPS also contends that Powell's testimony that he did not know what the van was going to do and considered that it might move to the outside lane and make a right turn is evidence that he was aware of the possibility that the van would move into his lane and would collide with him if he tried to pass on the right. But this testimony does not support a finding that Powell failed to reasonably react to avoid the collision; it actually supports a finding that Powell had no way of knowing into which lane the van was going to move and had no notice that the van would abruptly pull into his lane when it did. The facts on which UPS relies do not establish that Powell had a reasonable time within which to react to avoid the collision. The trial court properly granted the directed verdict motion.
II. Juror Misconduct
UPS also contends that the trial court erred by denying its motion for a new trial based on juror misconduct. UPS asserts that the jury improperly considered information from one juror that personal injury lawyers typically receive one third of any damage award as their fee. This information was based on the juror's experience as a bookkeeper for a personal injury defense lawyer, which came out during voir dire.
A trial court's decision that juror misconduct did not justify a new trial is reviewed for an abuse of discretion. Verdicts may only be overturned based on juror misconduct when the jurors' affidavits allege facts showing misconduct, and those facts support a determination that the misconduct affected the verdict. A party asserting juror misconduct bears the burden of showing that it occurred. A strong affirmative showing of juror misconduct is required to impeach a verdict and overcome the policy favoring stable verdicts and the jury's secret and frank discussion of the evidence. It is misconduct for a jury to consider extrinsic evidence, which is information that is outside the evidence admitted at trial. But it is not misconduct for jurors to use common sense or consider their own life experiences in reaching a verdict.
Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003) (citing State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994)).
Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990), review denied, 116 Wn.2d 1014 (1991).
State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47, review denied, 142 Wn.2d 1013 (2000).
Breckenridge, 150 Wn.2d at 203 (citing Balisok, 123 Wn.2d at 117-18).
Id. at 199 n. 3 (citing Balisok, 123 Wn.2d at 118).
Johnson v. Carbon, 63 Wn. App. 294, 302, 818 P.2d 603 (1991),review denied, 118 Wn.2d 1018 (1992).
Whether a juror's statement is extrinsic evidence is a separate inquiry from whether it inheres in the verdict. In ruling on a motion for a new trial based on juror misconduct, the trial court may not consider post-verdict juror statements that inhere in the verdict. "'The individual or collective thought processes leading to a verdict inhere in the verdict.'" Thus, juror affidavits "which purport to divulge what considerations entered into a juror's deliberation or controlled his action in arriving at the verdict are inadmissible to impeach the verdict." Otherwise, "[t]o allow this type of impeachment would render suspect every verdict where damages are awarded and would destroy any idea of finality which is essential to our judicial system." It is therefore an abuse of discretion to grant a new trial based on a juror's post-verdict statements that explain the reasoning behind the jury's verdict.
150 Wn.2d at 204 n. 12.
Id. at 204.
Id. at 204-05 (internal quotation marks omitted) (quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988)).
Hendrickson v. Konopaski, 14 Wn. App. 390, 393, 541 P.2d 1001 (1975) (citing Coleman v. George, 62 Wn.2d 840, 384 P.2d 871 (1963)).
Id. at 394.
Here, UPS submitted affidavits from two jurors who stated that the information from the one juror about attorney fees caused the jury to increase the verdict. In response, Powell submitted affidavits from three other jurors who stated that while someone raised the issue of attorney fees during deliberations, they did not include attorney fees in the verdict and that the existence of attorney fees was within their Page 11 common knowledge. The trial court denied the motion, concluding that the one juror's statements about attorney fees was not extrinsic evidence and inhered in the verdict.
The trial court properly denied the motion for a new trial. By stating that the jury included attorney fees in the verdict award based on one juror's prior experience, the affidavits UPS submitted describe the jury's thought process in arriving at the verdict. Thus, they inhere in the verdict and are inadmissible to impeach it. We therefore need not reach the issue of whether the information provided by the one juror about attorney fees amounts to extrinsic evidence.
150 Wn.2d at 204 (concluding that it was unnecessary to determine whether jury improperly considered extrinsic evidence when the juror's statements about the alleged extrinsic evidence inhered in the verdict).
III. Exclusion of Dias' Statement
UPS also challenges the trial court's exclusion of Dias' statement to an insurance claims adjuster, contending that it was admissible as a recorded recollection under ER 803(a)(5), an exception to the hearsay rule. But because our review of the record indicates that the jury's consideration of Dias' statement would not have affected the verdict, any error in excluding it was harmless. Thus, we need not address whether it was properly excluded.
UPS also argued that it was a business record, but does not argue this on appeal.
Reversal is only required when there is a substantial likelihood that an evidentiary error affected the jury's verdict. We will not reverse when no prejudice results from the trial court's improper exclusion of evidence. Here, it is unlikely that Dias' statement, if admitted, would have affected the verdict. As an initial matter, Dias' statements about what the motorcycle might have been doing before impact were speculative and therefore inadmissible because Dias did not see the motorcycle during this time. Nor do these statements change the fact that Dias made an unlawful lane change. Whether or not he actually saw Powell before he made the lane change, he was still at fault by moving over into the lane in which Powell was lawfully traveling without first making sure the lane was clear. The witnesses who did see Powell before the collision all testified that he was traveling safely in the outside lane and had no time to react when Dias turned into his lane and hit the motorcycle. Nothing in Dias' statement supports a conclusion to the contrary. It would therefore not have affected the jury's verdict and does not provide a basis for reversal.
See Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996).
Carnation Co., Inc. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990).
IV. Lay Opinion Testimony
UPS next contends that the trial court erred by allowing lay witnesses to testify about their opinion of the parties' fault when they did not have sufficient expertise to do so. The trial court ruled that the witnesses could only testify to what they saw, such as whether anyone was speeding, whether turn signals were on, and whether brakes were applied. Powell's attorney agreed to limit his questions accordingly and not ask about fault. But Powell's attorney asked both McAlpine and Gauthier if Powell contributed to the accident, and both responded that he did not. UPS did not object.
To challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. "To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent." By failing to object at trial, a party waives any claim that the evidence was erroneously admitted.
State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006),review denied, 160 Wn.2d 1008 (2007).
Id. (citing State v. Jones, 70 Wn.2d 591, 597, 424 P.2d 665 (1967)).
ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).
Because UPS did not timely object to this opinion testimony, UPS waives any challenge to it now on appeal. UPS argues that because the purpose of motions in limine is to prevent the jury from hearing evidentiary objections and minimize prejudice, it would be unfair to require further objection when the trial court ruled against previous objections and Powell's counsel agreed that he would not ask about fault. We disagree.
"'The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'" But when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a duty to bring the violation to the court's attention to allow the court to decide what remedy, if any, to direct. As one court explained:
State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (quoting State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984)), review denied, 122 Wn.2d 1002 (1993).
A.C. ex rel. Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004).
[W]here the evidence has been admitted notwithstanding the trial court's prior exclusionary ruling, the complaining party [is] required to object in order to give the trial court the opportunity of curing any potential prejudice. Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.
Sullivan, 69 Wn. App. at 172.
Here, while the court ruled that Powell's attorney would be allowed to ask only about the witnesses' observations, UPS was still required to object when he elicited improper opinion testimony in violation of the motion in limine so the court could attempt to cure any resulting prejudice. By failing to do so, UPS waived review of this issue. UPS's assertion that it made repeated objections to this line of questioning is not supported by the record. In fact, the only objections UPS made were to questions that the court ruled were permissible: UPS objected when counsel asked McAlpine and Gauthier whether they saw Powell do anything unusual in the operation of his motorcycle and whether they observed him make any usual maneuvers. But at no point did UPS object to questions about the witnesses' opinions on whether Powell contributed to the accident.
V. Expert Testimony About Future Medical Procedures
Finally, UPS contends that the trial court erred by allowing the jury to hear testimony that there was a chance that Powell would need ankle fusion surgery in the future and the estimated cost of that surgery. Damages based on future medical expenses "must be proved with reasonable certainty." Initially, the plaintiff must produce evidence indicating the need for continued or future care arising from the injury. To be admissible, the medical expert needs to produce testimony to some level of probability, something more than mere conjecture or speculation, that the plaintiff will require treatment. Medical testimony must at least be that the injury "'probably'" or "'more likely than not'" caused the later condition. But the credibility and weight of expert medical testimony are questions for the jury.
Venske v. Johnson-Lieber Co., 47 Wn.2d 511, 515, 288 P.2d 249 (1955) (citing Taylor v. Lubetich, 2 Wn.2d 6, 97 P.2d 142 (1939); Erdman v. Lower Yakima Valley, Wash. Lodge No. 2112 of B.P.O.E., 41 Wn. App. 197, 208, 704 P.2d 150, review denied, 104 Wn.2d 1030 (1985)).
Erdman, 41 Wn. App. at 208; Leak v. U.S. Rubber Co., 9 Wn. App. 98, 103, 511 P.2d 88, review denied, 82 Wn.2d 1012 (1973).
Kelly v. Carroll, 36 Wn.2d 482, 491, 219 P.2d 79, cert. denied, 340 U.S. 892 (1950).
Browning v. Ward, 70 Wn.2d 45, 51, 422 P.2d 12 (1966) (internal quotation marks omitted) (quoting Glazer v. Adams, 64 Wn.2d 144, 148, 391 P.2d 195 (1964)).
Here, UPS moved in limine to exclude this evidence based on Powell's doctor's previous statement that she could not state on a more-probable-than-not basis whether Powell would need ankle fusion surgery in the future. In response, Powell's attorney stated: "[i]f she doesn't meet the standard in her testimony, I won't claim it, and tell the jury." The trial court reserved ruling and allowed Powell to proceed with the testimony.
The doctor initially testified there was at least a 50-50 chance that Powell would need an ankle fusion, but when questioned further about why she thought a fusion might be needed, she testified that "more likely than not" he would probably need a fusion. UPS objected, stating that she already testified that there was a 50 percent possibility of a fusion and the court sustained the objection. Powell then rephrased the question and asked: "On a more likely than not basis, and I'll define it this way, is there a 51 percent chance that Mark Powell will need a fusion in the future?" UPS objected on the basis that it had been asked and answered, but the court overruled the objection. The doctor then answered: "I would say in my experience, yes."
The doctor's testimony that there was at least a 51 percent chance that Powell would need the ankle fusion surgery is sufficient to establish that it was "more probable than not," and meets the minimum legal standard for admissibility. While she testified earlier that there was only a 50-50 chance, UPS did not object to this testimony, waiving any challenge to it. Thus, any inconsistencies in her testimony went to its weight, not its admissibility, and were credibility issues to be resolved by the jury.
VII. Cross Appeal: CR 37(c) Expenses
Powell cross appeals the trial court's order denying his CR 37(c) motion for expenses and fees incurred in proving past medical expenses on summary judgment. He argues UPS impermissibly refused to admit that Powell's medical expenses were reasonable and necessary. We review a trial court's decision to award or deny costs under CR 37(c) for an abuse of discretion. CR 37(c) provides for sanctions based on a party's failure to admit when the party requesting the admission later proves the matter on which he requested the admission. It also permits the requesting party to move the court for an order for reasonable expenses incurred in making that proof. The rule does not require that counsel confer before the motion is brought, as is required under CR 36(a) for motions to compel or objections to the sufficiency of the denials. But Snohomish County Local Rule (SCLCR) 37 provides that the court "will not entertain any motion or objection with respect to Rules 26 through 37 of the Rules of Civil Procedure, unless it affirmatively appears that counsel have met personally or by telephone, and conferred with respect thereto."
Thompson v. King Feed Nutrition Serv., Inc., 153 Wn.2d 447, 460, 105 P.3d 378 (2005).
Here UPS responded to Powell's request for admissions about his medical expenses by stating that it had insufficient information because discovery had just begun. UPS then hired an orthopedist to perform a defense medical examination, and a year later, supplemented its response to the request for admissions with the objection that it had sought an expert opinion and, based on a reasonable inquiry into the allegations, could neither admit nor deny. UPS reserved the right to call its medical expert to offer his opinions at trial. Powell then filed a motion for partial summary judgment on certain medical expenses. Before its response to the motion was due, UPS agreed to stipulate to the medical expenses. Powell then moved for CR 37(c) expenses based on UPS's failure to admit those medical expenses.
The trial court granted Powell's motion for partial summary judgment but denied the CR 37(c) motion without prejudice, citing Powell's failure to comply with SCLCR 37 to meet and confer before bringing the motion. Powell's attorney then met with counsel for UPS and offered to settle the expense motion for $2,000.00, but no agreement was reached. Powell then filed a second motion for expenses based on UPS's failure to admit, but the court denied the motion.
UPS asserts that the court's order reiterated that Powell failed to comply with SCLCR 37(f) and (g), but the order does not state the basis for the court's ruling. It simply states that it "confirms its oral ruling" and notes that the court heard oral argument. If there was a transcription of the argument, it was not designated for appeal.
Powell argues that because the Civil Rules do not require a conference before bringing a CR 37(c) motion, if SCLCR 37 requires one, it is "antithetical" to his substantive right under CR 37(c) and cannot be enforced. Rather, he argues, SCLCR 37(f) should be interpreted as applying only to motions brought under CR 36(a), which would be consistent with both CR 36 and CR 37.
CR 83(a) authorizes each court to make "local rules governing its practice not inconsistent with these [civil] rules." Court rules are inconsistent only when they are "'so antithetical that it is impossible as a matter of law that they can both be effective.'" To make this determination courts decide "'whether [t]he two rules can be reconciled and both given effect.'" No impermissible conflict exists when a local rule "merely requires a procedural step to be taken by a party wishing to assert a legal right."
Sorenson v. Dahlen, 136 Wn. App. 844, 853, 149 P.3d 394 (2006) (quoting Heaney v. Seattle Mun. Court, 35 Wn. App. 150, 155, 665 P.2d 918 (1983), review denied, 101 Wn.2d 1004 (1984).
136 Wn. App. at 853 (alteration in original) (internal quotation marks omitted) (quoting City of Seattle v. Marshall, 54 Wn. App. 829, 833, 776 P.2d 174 (1989), review denied, 115 Wn.2d 1008 (1990)).
Id. (local rule that required party to complete form before requesting trial de novo not inconsistent with mandatory arbitration rule that did not contain such a requirement). See also Marshall, 54 Wn. App. at 833 (municipal court rule governing time of filing of affidavits of prejudice did not conflict with statute governing affidavits of prejudice in superior court and statute governing change of venue in municipal courts that did not contain time requirement), review denied, 115 Wn.2d 1008 (1990); Heaney, 35 Wn. App. at 155-56 (local court rule providing that defendant's failure to object within 10 day period waives right to be tried within 60 days may coexist with a concurrent court rule requiring an accused to be brought to trial within 60 days).
Here, there is no impermissible conflict between SCLCR 37(f) and CR 37. Rather, the local rule is simply "a procedural step to be taken by a party wishing to" enforce the substantive right: it requires that the parties confer before the court entertains any motions relating to the discovery rules, which would include a claim for expenses incurred by an opposing party's failure to admit under CR 37(c). Thus, the conference requirement in SCLCR 37 is not antithetical to CR 37, as Powell claims, and the trial court properly required that he comply with it.
The record here does not indicate that Powell ever complied with the rule and conferred with opposing counsel about UPS's responses to the requests for admission. Rather, the record reflects only that Powell filed the CR 37(c) motion for expenses based on failure to admit after UPS agreed to stipulate. Only after Powell's CR 37(c) motion was denied for failing to comply with SCLCR 37 did he meet with counsel for UPS with an offer to settle the CR 37(c) motion for expenses. But because it did not relate to the discovery violation for which Powell was seeking sanctions, this conference did not comply with the rule. The rule required that before bringing a motion asserting that he incurred expenses because of UPS's failure to admit, Powell was required to confer with UPS about any issues it had with UPS's failure to admit. The trial court therefore properly denied the motion.
We affirm the judgment and the denial of CR 37(c) expenses.