Opinion
No. 54671-6-I.
November 6, 2006.
Appeal from a judgment of the Superior Court for King County, No. 02-2-24361-4, Douglas D. McBroom, J., entered May 14 and July 1, 2004.
Counsel for Appellant(s), F. Hunter Macdonald, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101-3060.
Counsel for Respondent(s), Darren E Grafe, George W McLean Jr Associates, 720 Olive Way Ste 1600, Seattle, WA 98101-1890.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Cox and Dwyer, JJ.
Ethan Widger rear-ended Pauline Tsao's car. Although both parties' experts testified that Tsao's medical treatment in the year following the accident resulted from the accident and was reasonably necessary, and both parties stipulated to reasonable medical expenses of $4,764.65 in that time period, the jury awarded only $3,000 total. Because this verdict is outside the range of the evidence, we reverse and remand for a new trial.
BACKGROUND
Ethan Widger rear-ended Pauline Tsao on November 9, 1999. Over the next four years, Tsao was treated for tingling and numbness in her left arm, a limited range of motion of her neck, and frequent headaches. These conditions preexisted, but were exacerbated by the accident.
Liability was admitted, and trial was had on damages only. Both parties offered the deposition testimony of expert witnesses who had reviewed medical records and conducted independent examinations. Tsao's expert, Dr. Seroussi, testified that Tsao's injuries persisted to the time of trial and were unlikely ever to heal completely. The Widgers' expert testified that Tsao's injuries from the accident had healed within one year. But both experts indicated that the medical expenses accrued in the first year of treatment resulted from the accident and were reasonably necessary.
The jury awarded Tsao $3,000 in damages. Tsao moved for judgment notwithstanding the verdict, proposing damages of $46,800, or in the alternative, for a new trial. The court denied the motion, and Tsao appeals.
DISCUSSION
Motion for New Trial. Tsao contends that the trial court erred in denying her motion for new trial under CR 59(a)(5), (7), and (9). CR 59 allows the trial court to grant a new trial for the following reasons:
(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;
. . . .
(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;
. . . .
(9) That substantial justice has not been done.
Juries have considerable leeway in assessing damages, and a jury verdict will not be lightly overturned. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997); Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 176, 422 P.2d 515 (1967) ("the law gives a strong presumption of adequacy to the verdict"). A ruling on a motion for a new trial on grounds of inadequate damages is reviewed for abuse of discretion. Palmer, 132 Wn.2d at 197. Where a verdict is outside the range of proven damages, it is an abuse of discretion to deny a motion for new trial. Id. at 198.
We must determine whether the evidence was sufficient to support the verdict, viewed in the light most favorable to the verdict. Id. at 197-98; Gestson v. Scott, 116 Wn. App. 616, 622, 67 P.3d 496 (2003). Trial courts and reviewing courts are entitled to accept as established "those items of damage which are conceded, undisputed, and beyond legitimate controversy." Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 636, 865 P.2d 527 (1993).
Tsao claimed $4,764.65 in medical expenses incurred from the date of the accident through 2000, $3,212.85 of which was incurred by April 2000. She claimed another $4,712.73 in medical expenses during 2001 through 2004. Her medical expert, Dr. Seroussi, attributed 100 percent of Tsao's medical care in the year immediately following the accident to the aggravation of existing conditions, and attributed 50 percent of her care from 2001 onward to the accident. Dr. Seroussi explained that the 50 percent apportionment was appropriate because the injuries were aggravations of previously existing conditions.
Widger's expert, Dr. Joseph Robin, concluded in his written report that treatment through December 2000 was reasonably necessary. In his testimony, Dr. Robin opined that soft tissue injuries such as Tsao's typically heal within four to six months, and that Tsao's injuries had stabilized by April 2000, but that Dr. Seroussi's treatment until October 2000 was accident related.
Thus both experts testified that the $4,764.65 in medical care provided Tsao in the year after the accident in November 1999 until December 2000 was accident-related and was reasonably necessary. If the jury accepted Dr. Robin's assessment that Tsao had reached a point of maximum improvement in April 2000, the treatment until that date cost $3,212.85. Because the jury's verdict was less than that minimum amount, the verdict was not supported by the evidence.
Further, the verdict included no award for general damages. Where a verdict is equal to or less than the uncontroverted special damages, the court can assume the jury did not award damages for pain and suffering. Palmer, 132 Wn.2d at 200. The verdict here was less than even the agreed amount of medical expenses for the period between November 1999 and April 2000. Tsao described frequent headaches, pain, treatment through physical therapy and medications, and testified that she hired help for household chores and cleaning, and no longer carries her youngest child. The medical evidence substantiates her claim that she experienced pain and suffering after the accident.
"Although there is no per se rule that general damages must be awarded to every plaintiff who sustains an injury, a plaintiff who substantiates her pain and suffering with evidence is entitled to general damages." Palmer, 132 Wn.2d at 201; see also Cleva v. Jackson, 74 Wn.2d 462, 464, 445 P.2d 322 (1968).
The jury's failure to award any general damages was contrary to the evidence. The trial court abused its discretion in failing to order a new trial. Because of our disposition, we address only those other issues that may affect retrial.
Evidentiary Ruling. Over Tsao's objection, Widger introduced evidence that Tsao visited the emergency room on July 27, 1999, three months before the accident, complaining of tingling in her left shoulder, and that Tsao visited the emergency room on February 4, 2001, April 26, 2001 and May 7, 2002, on which occasions she mentioned neither the accident itself nor any continuing injuries from the accident.
Tsao argues this evidence was irrelevant. But both experts agreed Tsao suffered from headaches and tingling in her left arm before the accident. The evidence of the July 1999 emergency room visit was therefore relevant to Widger's argument that Tsao's conditions may have been aggravated by the accident, but were not new injuries. Further, the evidence arguably rebuts Tsao's account of her injuries, since she did not report the accident-related injuries when asked about her significant medical history.
The court did not abuse its discretion in admitting the evidence.
Medical Examination. Tsao also contends the court erred in ordering she submit to a medical examination and admitting that examining doctor's deposition testimony at trial. Rulings on motions for CR 35 examinations and evidentiary admissions are reviewed for abuse of discretion. Tietjen v. Dep't of Labor and Indus., 13 Wn. App. 86, 91, 534 P.2d 151 (1975).
On a showing of good cause and with notice to the plaintiff, Washington courts may in their discretion compel plaintiffs in personal injury actions to submit to medical examinations. CR 35; Lane v. Spokane F. N.R. Co., 21 Wash. 119, 124, 57 P. 367 (1899). The propriety of ordering a CR 35 examination immediately before trial depends upon the effect of a resultant delay in the proceedings and whether the defendant has shown good cause for requesting the examination at that time. Tietjen, 13 Wn. App. at 91.
CR 35(a)(1) provides: "When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."
Trial in this case was initially set for January 26, 2004, with a discovery cutoff deadline of December 8, 2003. On January 20, Widger sought an order compelling Tsao to submit to a medical exam, which the court denied, stating: "The discovery 'problems' stated as the basis for the motion are not newly discovered; defendant could easily have addressed and resolved these issues by more timely action." Clerk's Papers at 144.
During the week trial was set to begin, however, the case was placed on standby status. On February 2, 2004, Widger moved to reset the trial date, and the court set a new trial date of May 3, 2004. A new case schedule was issued setting a new discovery cutoff deadline for March 15. Widger brought another motion to compel a medical exam, which was granted. Dr. Joseph Robin examined Tsao, and the court admitted his deposition testimony at trial over Tsao's objection.
Tsao's only dispute with the grant of the medical examination is its timing. Tsao contends the examination was not timely requested in the first place and should not have been ordered just because trial was delayed. But discovery rulings are matters of discretion, and we cannot say the court abused its discretion in permitting the exam to go forward during the new discovery period. The immediate pendency of trial that made the exam unfair at first request having been removed, the court could reasonably conclude that whatever the results of the independent exam, Tsao would have ample opportunity to respond.
Tsao conceded in her response to Widger's first motion that Widger would be entitled to a CR 35 exam had it been sought within the discovery period.
Special Verdict Form. Tsao contends the court erred in refusing to use her proposed special verdict form, which would have instructed the jury to indicate the amount awarded for each of eight separate bases for damages. She argues the proposed form would have prevented an inadequate verdict by clearly outlining the possible bases for damages and ensuring consideration of each basis.
The form instructed the jury to designate damages awarded for past and future medical expenses, past and future household services, past and future disability and loss of enjoyment of life, and past and future pain and suffering.
"Jury instructions are sufficient when they allow counsel to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Thompson v. King Feed Nutrition Serv., 153 Wn.2d 447, 453, 105 P.3d 378 (2005). Juries are presumed to follow the court's instructions. Hizey v. Carpenter, 119 Wn.2d 251, 269 — 70, 830 P.2d 646 (1992).
The court gave the standard instructions on damages, and Tsao does not challenge them. These instructions permitted her to argue her theory of the case and did not mislead the jury. Whether to give a special verdict form was a matter of discretion, and Tsao offers no authority for the proposition that the court is required to provide the further insurance of a detailed special verdict in a simple case.
Reversed and remanded.
COX and DWYER, JJ., concur.