Oliver L. Wuth v. Valley Medical Center And Labcor

2015 AUG Zk AH 9=0:

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

OLIVER L. WUTH, A MINOR, BY AND No. 71497-0-1 (Consolidated w/
THROUGH HIS GUARDIAN AD LITEM 71498-8-1/71553-4-1)
KEITH L. KESSLER; AND BROCK M.
WUTH and RHEA K. WUTH, husband
and wife,
DIVISION ONE
Cross-Appellants,

v.

LABORATORY CORPORATION OF
AMERICA, a foreign corporation; PUBLISHED OPINION
DYNACARE LABORATORIES, INC.,
a foreign corporation; DYNACARE
NORTHWEST, INC., a domestic
Corporation, Inc., d/b/a DYNACARE
LABORATORIES, INC., KING
COUNTY PUBLIC HOSPITAL
DISTRICT NO. 1, d/b/a VALLEY
MEDICAL CENTER; etal.,

Cross-Respondents,

and

JAMES A. HARDING, M.D.; and
OBSTETRIX MEDICAL GROUP OF
WASHINGTON, INC., P.S., a domestic
corporation,

Respondents. FILED: August 24, 2015

Spearman, C.J. — After their son, Oliver, was born with severe birth

defects, respondents Brock and Rhea Wuth brought suit against Dr. James
No. 71497-0-1/2

Harding and his employer, Obstetrix (Dr. Harding), Valley Medical Center (Valley)

and Laboratory Corporation of America (LabCorp), in their own capacity and on

behalf of their son, for claims of wrongful birth and wrongful life. The jury found

Valley and LabCorp equally at fault and awarded the Wuths $25 million on each

claim. The jury found Dr. Harding not liable. LabCorp appeals, asking this court

to review: (1) the trial court's refusal to grant summary judgment for LabCorp on

Brock and Rhea's wrongful birth claim; (2) several of the trial court's evidentiary

rulings; (3) the trial court's conduct during voir dire; (4) the trial court's comments

throughout trial regarding the Wuths' culpability; and (5) the jury verdict on both

claims.1 Finding any error to be harmless, we affirm.

FACTS

Oliver Wuth was born with severe birth defects. His parents, Brock and

Rhea, testified that at birth he looked "vacant" and "broken."2 Report of

Proceedings (RP) 1442, 1479, 2784-85.3 He was not physically proportional—his

feet and toes were tiny; his fingers were long, but his hands were very small. He

had inverted nipples and a buried penis. His head was bent and turned. The

muscles and tendons in his legs were so tight that his legs would not straighten.

When the Wuths brought Oliver home from the hospital, he did not feed normally

1Valley also appealed the verdict but subsequently reached a settlement with the Wuths
and this court granted the parties' joint request to dismiss the appeal.

2Where appropriate we refer to the Wuths by their first names for clarity.

3The sequentially paginated trial transcript is referred to herein as "RP." Transcripts of
pretrial and post-trial proceedings are referred to by date and, as applicable, "a.m.," "p.m.," "voir
dire," etc.
No. 71497-0-1/3

and rapidly lost weight. He also missed many of the milestones for early

childhood, including developing language skills and toilet training.

At the time of trial, physical therapy and other interventions had alleviated

some of Oliver's defects. His head and neck had been reformed and his leg

muscles loosened and straightened. But he could not walk up stairs or run. His

vision, judgment, and fine motor skills remained in the impaired or severely

impaired range. His brain was underdeveloped and small. And, although he was

working with a speech therapist and special education teachers to learn to use a

computerized "talker," his own speech was limited to a few dozen words

understandable only to his immediate family.

Oliver's parents, Brock and Rhea Wuth, met in 1995 when Brock was 15

and Rhea was 17. They married five years later and had their first son, Ian, in

May 2002. Although Ian was healthy, Brock's family had a history of birth defects.

Brock's maternal aunt, Patsy, had been institutionalized and died before Brock

was born. In addition, Brock's cousin Jackie, the daughter of Brock's maternal

uncle, had profound disabilities including terrible seizures, anti-social behavior,

and obesity that confined her to a wheelchair. Until Jackie was 15, no one in

Brock's family knew the cause of Jackie's disability.

In 2003, shortly after the technology to do so was developed, Jackie

underwent genetic testing at Seattle Children's Hospital (Children's) to determine

the cause of her disabilities. The tests revealed a chromosomal anomaly that

explained her condition. Normally, each person has 46 chromosomes in 23 pairs.
The testing at Children's revealed that, in one of Jackie's ancestors, genetic
No. 71497-0-1/4

material at the ends of chromosomes 2 and 9 had changed places. This

exchange of genetic material between two chromosomes is known as a

"translocation." RP at 944. When a person inherits two derivative chromosomes

that, between them, have a full set of genetic material, known as a "balanced

translocation," the condition is asymptomatic. RP at 945-46. Jackie inherited a

derivative chromosome 2 that has some deleted material and an extra copy of

part of chromosome 9. But she did not inherit a derivative chromosome 9 with the

missing material from chromosome 2; consequently, she is missing genetic

material from chromosome 2. Her "unbalanced translocation" is the cause of her

birth defects. RP at 1766.

In light of Jackie's test results, a genetic counselor at Children's

recommended that members of her extended family undergo genetic testing to

determine if they also carried the translocation. This testing revealed that several

family members, including Brock, had asymptomatic, balanced translocations.

Ian Wuth was too young to be tested but, given his lack of symptoms, it was

apparent that he either did not inherit the translocation or has a balanced

translocation like Brock.

Because Brock and Rhea planned to have more children, they consulted

with a genetic counselor at Children's after receiving Brock's test results. The

counselor advised the couple that there was a 50 percent chance that any baby

they conceived would have either an unbalanced 2;9 translocation like Jackie or

an unbalanced 9;2 translocation, which was also likely to result in "physical

differences and some degree of learning disability or mental retardation." Clerk's
No. 71497-0-1/5

Papers (CP) at 1860. The counselor also informed them that pregnancies with

chromosome imbalances are frequently miscarried. The counselor explained that

any chromosomal translocation could be detected in a fetus through the use of

either chorionic villus sampling (CVS) or amniocentesis to extract fetal genetic

samples and laboratory testing, specifically a process called fluorescent in situ

hybridization (FISH) testing.4 Children's provided the Wuths with a detailed

written report, which explained the 2;9 translocation and identified the specific

"breakpoints" in Brock's chromosomes. RP at 984; Ex. 11.

Although Brock and Rhea wanted to have more children, they had no

desire to bring a child with Jackie's disabilities into the world. Accordingly, they

carefully followed the recommendations they had received from the Children's

genetic counselor, including exploring in vitro fertilization. When they managed to

conceive again, they brought the Children's report on Brock's genetic condition to

each pregnancy-related medical appointment. Despite their care, Brock and

Rhea miscarried six times between 2003 and 2008.

In November 2007, Rhea was pregnant again. This pregnancy had

progressed well into the first trimester without incident and the Wuths were

hopeful that Rhea would not miscarry, as she had before. Their hopes were

further bolstered when Rhea had normal ultrasounds before and after an

appointment with her obstetrician on December 6, 2007.

4 A FISH test is a specific type of genetic test that can "detect more subtle translocations"
in chromosomes. RP at 1323.
No. 71497-0-1/6

But the couple remained anxious about the pregnancy. They told Rhea's

obstetrician about Brock's translocation and showed her the report from

Children's. They also told the doctor about Brock's cousin, Jackie, explaining that

they would not bring a fetus with an unbalanced translocation to term. Given the

couple's concerns, Rhea's obstetrician scheduled an appointment for her to

undergo a CVS procedure at the maternal-fetal medical clinic at Valley to obtain

genetic material from the fetus to test for the 2;9 translocation. The doctor also

scheduled Rhea for additional genetic counseling at Valley and faxed a copy of

the Children's report to Valley.

Even though Rhea's obstetrician had ordered genetic counseling in

conjunction with the CVS procedure, Valley's staff scheduled Rhea's

appointment for New Year's Eve 2007—a day no genetic counselor was working

at the clinic. Rescheduling the appointment presented difficulties, however,

because the CVS procedure must be performed prior to the end of thirteenth

week of pregnancy and Rhea was twelve weeks and one day into her pregnancy.

In addition, staffing and scheduling constraints at both Valley and Swedish

Hospital Maternal Fetal Medicine Clinic, which also performed CVS, made it

unlikely that Rhea could be rescheduled within the next week. RP 805, 4302-04,

4560. Thus, Rhea's New Year's Eve appointment was likely her last opportunity

to receive the CVS procedure.

When Brock and Rhea arrived at Valley for the appointment, Dr. James

Harding, a perinatologist/obstetrician, informed the couple that no genetic

counselor was available. But, after talking to them at length about the family
No. 71497-0-1/7

history of translocation, Rhea's options for testing, and other risks, Dr. Harding

determined that Brock and Rhea were well-informed about the translocation and

the risks associated with CVS. The Wuths also wanted to know about any

genetic abnormality as soon as possible so, if necessary, they could terminate

the pregnancy before it began to show. They knew that after thirteen weeks,

amniocentesis was the only test capable of detecting a translocation, but it could

not be performed until the beginning of the sixteenth week of pregnancy. The

Wuths requested that Dr. Harding proceed with the CVS procedure that day and

he decided to do so.

The procedure was performed without incident and Dr. Harding was able

to obtain a good fetal genetic sample from Rhea's placenta. Usually, a genetic

counselor would have been responsible for completing the lab forms for ordering

genetic testing and ensuring that the lab received all relevant paperwork

following the CVS procedure. However, since no genetic counselor was on duty,

Dr. Harding personally instructed Valley's medical assistant, Cathy Shelton, to

prepare the requisition form used to send samples to LabCorp for genetic testing.

At trial Shelton could not recall the specific events surrounding Rhea's

appointment. But she stated that generally, when she fills out requisition forms,

she does so at the direction of the treating physician. She testified that her usual

practice is to check the various boxes on the form indicating known medical

history and desired tests, make handwritten notes, and attach documents at the

direction of the treating physician. Shelton also acknowledged her handwriting on

the requisition form sent to LabCorp with Rhea's fetal tissue sample. A copy of
No. 71497-0-1/8

the requisition form was introduced in evidence at trial. It showed check marks in

the boxes indicating "family hx of chromosome abnormality" and "family hx of

genetic disorder." Ex. 19-13. It also contained a handwritten notation of "fm hx

unbalanced translocation" in the box for "indication" for testing. Ex. 19-14.

Dr. Harding testified that he knew the lab "[absolutely ... had to have [the

report on] Brock's translocation" in order to adequately screen the fetal genetic

sample for a translocation. RP at 4409. He also testified that, since there was no

genetic counselor on the day of Rhea's CVS procedure, he personally

photocopied Brock's genetic test report and handed it to the medical assistant,

Shelton, to send to the lab with Rhea's fetal tissue sample. Nevertheless, it is

undisputed that the document was not attached to the requisition form received

by LabCorp. The Wuths and LabCorp each presented evidence at trial that

Shelton never sent Brock's genetic test report to LabCorp.

In addition, because Dr. Harding only instructed Shelton to request fetal

"karyotype"5 testing on the tissue sample, Shelton did not fill out the box on the

requisition form directing LabCorp to conduct the more sensitive FISH analysis.

RP at 4417. Dr. Harding testified that he did not call the lab to confirm that no

additional testing was necessary because:

The genetic counselors usually have done that. And I don't know if
they would have in this setting.

5A karyotype is a visual display of chromosomes taken from a magnified blood or tissue
sample. A cytogeneticist in the genetic testing laboratory reviews the karyotype to identify
abnormalities.
No. 71497-0-1/9

But, more, if there was further testing, I know in the past [the lab]
would have called to say, either, 'We can't run this test,' the
sample, 'We didn't get enough sample,' there's something about it
that we can't do that, I would have expected to have heard back
from the lab, if there was an issue on that.

RP at 4417. According to Dr. Harding, he "[absolutely" thought that, by asking

Ms. Shelton to send the lab Brock's genetic test results, the lab could

independently determine whether additional tests were needed. ]d.

Once LabCorp received Rhea's tissue sample and the test requisition from

Valley, a cytogentic technician in training, Saan Saelee, was assigned to perform

the fetal karyotype test ordered. Saelee analyzed the karyotype without ever

looking at the "indication" noted on the requisition form accompanying Rhea's

sample. RP at 987. Thus, he did not know at the time of testing that he was

looking for a translocation, specifically. Saelee did not conduct the more sensitive

FISH analysis or independently determine whether additional testing was

warranted. No one at LabCorp ever contacted Valley or the Wuths to obtain

additional information regarding the translocation noted on the requisition form.

Although not as sensitive as FISH analysis, which the Wuths had wanted,

the karyotype test ordered by Dr. Harding and conducted by Saelee was

generally sufficient to detect an unbalanced translocation. In fact, Valley's part-

time genetic counselor, Elizabeth Starkey, testified that "all of the prior tests that

had been done in the family" to detect the translocation were karyotype tests. RP

at 4736. However, Starkey also acknowledged at trial that those earlier karyotype

tests had been done on blood specimens, which rendered higher resolution

images than fetal tissue specimens.
No. 71497-0-1/10

Arthur Brothman, LabCorp's expert, acknowledged that Saelee, who was

the sole person to review the karyotype of Rhea's sample, had little experience

testing fetal tissue samples. Brothman noted it would have been "better for the

patient to have two people look at [the karyotype] because there is a better

chance they [would] find the problem." RP at 3554. Indeed, Brothman testified

the LabCorp's internal policies required such supervision.

Following the fetal karyotype testing, LabCorp reported its results to

Valley. The report did not indicate that LabCorp had failed to look for the specific

translocation carried by Brock. Instead, the report indicated, without further detail,

that Rhea's fetus had a normal "male karyotype." Ex. at 19-05. The report also

contained a disclaimer that the "result does not exclude the possibility of subtle

rearrangements below the resolution of cytogenetics or congenital anomalies due

to other etiologies."

Starkey, testified that she could not recall her specific actions in this case,

however it was her normal practice to read test results and relay them to the

patient, physicians, and other parties involved in patient care. RP 4683.

According to Starkey, she was familiar with unbalanced translocations in 2008

when she would have reviewed Rhea's results. RP 4686. Starkey also testified

that the disclaimer on Rhea's report would not have given her cause for concern,

as such language "was pretty common or typical... on virtually every normal

karyotyped study." RP at 4783. She further testified that she would not have

been alarmed by the fact that the report did not specifically mention testing for

translocation:

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No. 71497-0-1/11

Q: So.. .when you got a report like this one and the lab didn't
specifically say, 'We have looked for a translocation with
chromosomes 2 and 9,' that didn't raise any red flags to you,
though, right?"
A: No. Its absences does not raise a red flag.
Q: And that's because, in the reports that you've seen, the lab
doesn't routinely specify the specific...[translocation, correct?
A: Correct.
Q: But you believe that they certainly had looked for the
translocation, because the indication for the test was
unbalanced translocation, correct?
A: Correct.

RP at 4783-84. And she expressed no concerns that FISH analysis had not been

ordered or used.

Starkey telephoned Rhea and told her that the test results were "normal"

and that the fetus was not a carrier of the translocation. RP at 1015. Following

this conversation, Starkey sent letters to the Wuths and to Rhea's obstetrician,

which reiterated that the fetus was a "chromosomally normal male." Ex. at 14-31

to 14-32. Because the results were normal, Starkey did not communicate the test

results to Dr. Harding. And she did not send copies of LabCorp's actual report to

the Wuths or to Rhea's obstetrician. The Wuths were not informed that Dr.

Harding had not requested FISH analysis or that the test had not been

performed.

Rhea returned to Valley for a follow up visit with Dr. Harding on January

28, 2008. After reviewing her chart and Starkey's letter to the Wuths indicating

the fetus was a "chromosomally normal male." RP at 4475-76. Dr. Harding sent

an update to Rhea's primary physician, providing assurances that "the fetal

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No. 71497-0-1/12

chromosome results were normal, with no evidence of... a translocation." CP at

674.

The Wuths were overjoyed when they were assured that Rhea was

carrying a "chromosomally normal" fetus. They spent the duration of Rhea's

pregnancy excitedly expecting the arrival of a healthy baby boy. But when Oliver

was born, it was immediately clear that he had severe physical and cognitive

defects. When asked about his first thoughts after Oliver's birth, Brock testified:

A. He looks broken. He looked like—sorry. You know, we had
gone through all this worry that he was going to be—you
know, before we had the testing, we thought, well, what if he
has the translocation. And then there had been a lot of
miscarriages before that. So the whole time up until we got
the test results back, we had been holding our excitement at
arm's length kind of. We didn't want to become attached,
because we weren't sure.
And then when he was born—well, after we got the
test results back, we finally allowed ourselves to get excited
about it and feel like, yay, we made it this time, we are going
to have a healthy baby.
And then when he was born, it was clear to me that
he wasn't right, and I felt like we had—this thing that we had
feared, the genetic translocation, we had gotten away from
that only to find that some other thing was wrong with him,
and I thought itwas very ironic that we had gone through all
of this to avoid something and then some other problem was
there.
Q. Testing later determined this was the very problem you had
been trying to avoid?
A. That's right.

RP at 2784-85. Genetic testing at Children's in February 2009 confirmed that

Oliver had inherited an unbalanced 2;9 translocation, the same condition that

Rhea had undergone CVS and genetic testing to detect and that the Wuths had

been assured was not present.

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No. 71497-0-1/13

Procedural History

The Wuths filed this action under ch. 7.70 RCW (Actions for Injuries

Resulting from Health Care) against defendants Valley, LabCorp, and Dr.

Harding in December 2010. After numerous pretrial motions, trial began in

October 2013. The jury returned a verdict for the Wuths and against Valley and

LabCorp, but found Dr. Harding not negligent. The trial court entered judgment

against LabCorp and Valley. Although both Valley and LabCorp appealed the

judgments, only LabCorp remains as a party to this appeal.

The case was originally assigned to King County Superior Court Judge

LeRoy McCullough, who resolved a number of pretrial matters including several

summary judgment motions. He granted the Wuths' motion to dismiss the

defense of comparative fault, based on the lack of any evidence that the Wuths

were at fault. The court also limited the damages on Brock and Rhea's wrongful

birth claims to mental anguish and emotional distress and the damages on

Oliver's wrongful life claim to extraordinary expenses for medical care and

specialized training throughout Oliver's life. The court precluded any award to

Brock and Rhea for the normal expense of raising a child, for Oliver's future

ordinary living expenses and his diminished earning capacity, and also precluded

any award to Oliver for general damages.

On June 14, 2013, Dr. Harding filed a motion for partial summary

judgment in which he requested that the court dismiss the Wuths' lack of

informed consent claim against him and limit the Wuths' negligence claims to

13
No. 71497-0-1/14

recovery for Dr. Harding's alleged failure to provide LabCorp with Brock's genetic

test results. The Wuths did not oppose the motion.

LabCorp filed a written response indicating it was not opposed to the

motion except "to the extent Dr. Harding improperly [sought] to limit his co-

Defendants from presenting evidence of Dr. Harding's fault that shows his

violation of the standard of care or explains LabCorp's actions in this case. . . ."

CP at 2723. LabCorp explained that it intended to argue to the jury that fault

should be allocated to Dr. Harding based on several alleged breaches of the

standard of care for perinatologists in Washington. LabCorp claimed it would

elicit testimony regarding the breaches from the Wuths' experts, Dr. Robin Clark

and Dr. Marc Incerpi, Dr. Harding's expert, Dr. Thomas Moore, and LabCorp's

own expert, Dr. Andrew London.

In his reply, Dr. Harding moved to strike these experts' opinions insofar as

they related to the standard of care for perinatologists, arguing that the experts

were unqualified to render any such opinion. LabCorp filed a response to the

motion to strike, which set forth additional evidence on the qualifications of Dr.

Clark and Dr. Moore only. Dr. Harding filed a reply.

Oral argument on the motions focused on the qualifications of LabCorp's

expert, Dr. London. Dr. Harding argued that Dr. London was unqualified to opine

on the standard of care for a perinatologist practicing in Washington because he

was "a gynecologist who practices in Baltimoref, Maryland]". RP (7/18/13) at 37.

While noting that the area of an expert witness's specialty was not dispositive on

the issue, the court granted Dr. Harding's motion to strike Dr. London because

14
No. 71497-0-1/15

LabCorp had failed to provide any information on Dr. London's expertise in the

field of perinatology/obstetrics. RP (7/18/13) at 46. At LabCorp's request, the

court clarified that Dr. London was stricken as a witness at trial. The court

otherwise denied Dr. Harding's motion to strike expert testimony.6

When LabCorp objected to the ruling, the court invited it to file a motion for

reconsideration. LabCorp did so, arguing that "counsel for Dr. Harding convinced

the Court to exclude Dr. London's trial testimony solely by virtue of her oral

representation at the hearing that Dr. London is a gynecologist and lacks the

proper qualifications to testify as an expert in this case." CP at 3152. LabCorp

argued that Dr. London was, in fact, qualified as an expert in the field of

obstetrics and cited his Curriculum Vitae (CV) and his deposition testimony.

LabCorp argued that Dr. London had "precisely the type of 'knowledge, skill,

[and] experience' ER 702 envisions as qualifying an expert to offer opinion

testimony." CP at 3154. Judge McCullough denied the motion on October 14,

2013.

That same day, Judge Catherine Shaffer, to whom the case had been

assigned for trial, considered Dr. Harding's motions in limine, which, among other
things, renewed his motion to strike Dr. London's testimony. Judge Shaffer was

apprised that Judge McCullough had already granted the motion and,

consequently, refused to hear further argument on it. The court allowed LabCorp

6The court also granted Dr. Harding's motion to dismiss the Wuths' informed consent
claim and any negligence claim based on Dr. Harding's alleged failure to order FISH testing as a
result of an alleged statement by Rhea Wuth that such a test was needed. The courtotherwise
denied Dr. Harding's motion to dismiss any other negligence based claims against him.

15
No. 71497-0-1/16

to file an offer of proof regarding Dr. London's qualifications and proposed

testimony, which it did on December 2, 2013, three days after the jury verdict.

Following entry of partial summary judgment on the Wuths' claims against

Dr. Harding, the Wuths and Dr. Harding reached a partial settlement. The

"high/low agreement" established $500,000 as Dr. Harding's minimum liability to

the Wuths, regardless of the jury's verdict, and a maximum liability of $2 million,

the limits of his liability insurance. LabCorp and Valley were notified of the

agreement no later than October 11, 2013. On the Wuths' motion, the trial court

excluded reference to the high/low agreement during trial unless the defendants

could show collusion between Dr. Harding and the Wuths. The trial court also

excluded argument and evidence of Dr. Harding's negligence based on theories

other than the one alleged by the Wuths, i.e., that he failed to instruct Valley's

medical assistant to send Brock's genetic test report to LabCorp.

Jury selection began on October 21, 2013. On the Wuths' motion, the trial

court employed a written juror questionnaire and individual questioning of some

prospective jurors to determine whether they were able to render an impartial

verdict. The questionnaire asked whether the prospective jurors believed

abortion is morally wrong or should be illegal, whether they had close contact

with a disabled child, whether they had been a party to medical negligence

lawsuit and whether they knew any of the parties. Jurors who responded

affirmatively to any of the questions were brought in for individual questioning.

Before trial, Valley moved the court to preclude any "suggestion that the

jury send a message or punish Valley Medical Center." RP (10/24/13) at 195.

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No. 71497-0-1/17

The Wuths responded that, while they would not be requesting punitive

damages, they should be allowed to tell the jury that deterrence, i.e., "tryfing] to

encourage this from not happening in the future," is one purpose of the tort

system. RP (10/24/13 (a.m.) at 196. The trial court agreed with the Wuths,

explaining that "it's okay to articulate the purpose of the laws." RP (10/24/13

(a.m.) at 198. The court ruled that the parties could make a "generalized

argument" to the jury about the public policies underlying the tort system, which

include both compensation and deterrence. RP at 199. But the court warned, "[l]f

there's specific references to these defendants and deterring these defendants,

then I'm going to sustain objections." RP at 193. The court also noted LabCorp's

standing objection "on the deterrence issue." RP at 5254-55.

Trial proceeded for six weeks, during which Brock and Rhea testified

along with other members of the Wuth family and several experts. At several
points the trial court instructed the jury that the Wuths did not "bear any fault here

... as a matter of law." RP at 710-11.

During closing arguments, the Wuths asked the jury to award $20,628,306

in special damages for Oliver. On Brock and Rhea's claim they requested

"nothing less than an amount equal to the award to Ollie...and up to a range of
50 million [dollars]." RP at 5308. They argued that these amounts were

warranted on the evidence, including evidence related to Brock's cousin Jackie's

condition and its effect on the Wuths' state of mind.

Additionally, both the Wuths and Dr. Harding made arguments that the

jury should award damages to deter similar tortious conduct. LabCorp objected to

17
No. 71497-0-1/18

these arguments and requested a curative instruction. The trial court sustained

the objections and instructed the jury that it was improper to award damages to

deter the specific defendants in this case or "to send some sort of message." RP

at 5389. The court further instructed that the proper purpose of damages was to

compensate the plaintiffs.

The jury returned a verdict against LabCorp and Valley and determined

that each was 50 percent at fault. The jury determined that Dr. Harding was not

liable. Oliver was awarded $25 million in special damages and Brock and Rhea

were awarded $25 million in general damages. The trial court entered judgment

and denied LabCorp's CR 59 motions to vacate the jury's verdict, amend the

judgment or order a new trial.

LabCorp appeals.

DISCUSSION

I. Summary Judgment on the Wuths' Claim for Damages

Before trial, LabCorp moved for partial summary judgment on the Wuths'

wrongful birth and wrongful life claims, seeking to narrow the scope of damages

litigated at trial. LabCorp contends that the trial court's refusal to enter partial

summary judgment on the claims was error and, further, the jury verdicts on both

the wrongful birth and wrongful life claims must be vacated. LabCorp argues that

it was entitled to judgment on Brock and Rhea's wrongful birth claim because, as

a matter of law, parents may not recover general damages arising from the birth

of a child.

Our Supreme Court has twice considered this issue. In Harbeson v.

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No. 71497-0-1/19

Parke-Davis. 98 Wn.2d 460, 462, 656 P.2d 483 (1983), the U.S. District Court for

the Western District of Washington certified a question to the Washington

Supreme Court to determine whether the torts of wrongful birth and wrongful life

are actionable in Washington. The Supreme Court concluded that they were. It

defined the wrongful birth claim as "an alleged breach of the duty of a health care

provider to impart information or perform medical procedures with due care,

where the breach is a proximate cause of the birth of a defective child." Id. at

488. The Court further held that parents who establish wrongful birth may recover

general damages for "the medical, hospital, and medication expenses

attributable to the child's birth and to its defective condition, and in addition

damages for the parents' emotional injury caused by the birth of the defective

child. In considering damages for emotional injury, the jury should be entitled to

consider the countervailing emotional benefits attributable to the birth of the

child." jd. at 475 (emphasis added).

A year after Harbeson the Court decided McKernan v. Aasheim, 102

Wn.2d 411, 412-13, 687 P.2d 850 (1984), a wrongful pregnancy case about

parents' right to recover damages in a tort action for the cost of rearing and

educating a healthy and normal, albeit unplanned, child born after an

unsuccessful sterilization operation. The parents in McKernan alleged that their

doctor had negligently performed a tubal ligation, failed to obtain informed

consent to the tubal ligation, breached his warranty that the tubal ligation would

result in permanent sterilization, and violated the mother's constitutional right to

prevent future pregnancies. They alleged the following damages:

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No. 71497-0-1/20

an amount equal to the cost of the tubal ligation procedure, and
expenses; an amount equal to the cost of the pregnancy and child
birth; an amount for pain and suffering associated with the tubal
ligation, pregnancy and child birth; an amount for loss of pleasure
associated with the tubal ligation, pregnancy and child birth; an
amount for the husband's loss of services and consortium
associated with the tubal ligation, pregnancy and child birth; an
amount equal to the costs associated with rearing a child, college
education, out of pocket expenses and services of parents, and
emotional burdens.

Id. at 413. The court affirmed the trial court's partial summary judgment

dismissing that portion of the parents' complaint that sought damages for the cost

of rearing and educating a normal, healthy child, explaining that it was impossible

to establish with reasonable certainty whether the parents were damaged by the

birth of such a child and recovery would violate the public policy of the state by

inviting disparagement of the child. jcL at 419-21. But, the court expressly noted

that the parents could recover damages "for the expense, pain and suffering, and

loss of consortium associated with the failed tubal ligation, pregnancy and

childbirth." JU at 421.

LabCorp contends that McKernan overruled Harbeson to the extent it

authorized recovery of general damages in wrongful birth claims. The argument

is untenable. First, McKernan did not so much as mention Harbeson, and we will

not presume that where our Supreme Court has expressed a clear rule of law

that it will overturn that decision without explicitly saying so. Lunsford v.

Saberhagen Holdings, Inc., 166 Wn.2d 264, 280, 208 P.3d 1092 (2009).

Furthermore, McKernan did not, as LabCorp argues, preclude an award for

general damages on a wrongful birth claim. Indeed, the McKernan court

20
No. 71497-0-1/21

expressly held that the parents could recover general damages based on pain

and suffering related to the negligently performed sterilization procedure,

pregnancy and child birth. These amounts are analogous to the general

emotional distress and mental anguish damage award at issue in Harbeson and

in this case.

LabCorp also argues that there is no way for a jury to determine with

certainty the fact of damage to Brock and Rhea as a result of Oliver's birth, citing

the Court's reasoning in McKernan that "it is impossible to tell, at an early stage

in the child's life, whether its parents have sustained a net loss or net gain."

McKernan, at 419-20. But that reasoning is inapposite here. In McKernan, the

Court was contemplating the fact that a healthy baby could grow to be a pleasing

or troublesome child, either "loving, obedient and attentive, or hostile, unruly and

callous." Id But the uncertain future of a healthy baby born with near limitless

potential and prospects is easily distinguished from the relatively finite outlook for

a child who, like Oliver, is born with inherent and severe limitations.

We conclude that the trial court did not err when it denied LabCorp's

motion for summary judgment dismissal of the Wuths' claims on the ground that

general damages are not recoverable on a wrongful birth claim.

Next, LabCorp argues that, because Brock and Rhea's claim for emotional

distress lies in negligence rather than an intentional tort, they were required to

show objective symptomology in order to recover. LabCorp contends it was

entitled to dismissal of the claim because the Wuths offered no such evidence. It

cites several cases in support of this position, however none deals specifically

21
No. 71497-0-1/22

with emotional distress and mental anguish damages in the context of wrongful

birth claims under ch. 7.70 RCW. And LabCorp fails to distinguish the

Washington cases that plainly reject the argument. See Schmidt v. Coogan, 81

Wn.2d 661, 672, 335 P.3d 424, 431 (2014) (recognizing that claims under ch.

7.70 RCW are among those statutory claims for which emotional distress

damages are available in the absence of objective symptomology); Berger v.

Sonneland, 144 Wn.2d 91, 113, 26 P.3d 257 (2001) (holding that "the objective

symptom requirement is not necessary to prove emotional distress damages

under RCW 7.70. . .."); Price v. State. 114 Wn. App. 65, 72, 57 P.3d 639 (2002)

(explaining that Harbeson stood for parents' right to recover emotional distress

damages in wrongful birth claims "without requiring physical impact or objective

symptomatology"). Accordingly, we find LabCorp's argument without merit.

LabCorp also contends that Brock and Rhea's wrongful birth claim should

not have survived summary judgment because they failed to raise a fact issue as

to damages. We disagree. As with other claims against health care providers,

wrongful birth claims are governed by ordinary negligence principles. Harbeson,

at 468. To establish such a claim, a plaintiff must show duty, breach, proximate

cause, and damage or injury. Id. A defendant may move for summary judgment

by showing that there is an absence of evidence of any of these essential

elements. Sligarv. Odell, 156 Wn. App. 720, 725, n.5, 233 P.3d 914 (2010);

(citing Young v. Kev Pharm., Inc., 112 Wn.2d 216, 225, n.1, 770 P.2d 182(1989)

(quoting Celotex Corp. v. Catrett. 477 U.S. 317, 325, 106 S.Ct. 2548, 91 LEd.2d

265(1986)).

22
No. 71497-0-1/23

Once this initial showing is made, the inquiry shifts to the plaintiff, who

bears the burden of proof at trial. Id. at 725. If "the plaintiff 'fails to make a

showing sufficient to establish the existence of an element essential to [its] case

[...]', then the trial court should grant the motion." Sligar at 725 (quoting Young,

112 Wn.2d at 225 n.1 (citing Celotex, 477 U.S. at 322-23)). In such a situation

"there can be 'no genuine issue as to any material fact,' since a complete failure

of proof concerning an essential element of the [plaintiff's] case necessarily

renders all other facts immaterial." ]d.

Where, "though evidentiary facts are not in dispute, different inferences

may be drawn therefrom as to ultimate facts ... a summary judgment would not

be warranted." Preston v. Duncan, 55 Wn.2d 678, 681-82, 349 P.2d 605 (1960).

In this case LabCorp moved for summary judgment on Brock and Rhea's

wrongful birth claim, arguing that the parents' acknowledgment of the joy Oliver

brought to their lives defeated their claim that they were damaged as a result of

his birth. LabCorp cited undisputed evidence that:

1. Brock and Rhea were proud, loving, and devoted parents to Oliver.

2. Oliver was a happy child who brings joy to his family's lives.

3. Brock and Rhea would miss Oliver if he was gone from their lives.

4. Brock and Rhea enjoyed watching Oliver grow and develop and play
with his brother.

5. Neither parent had received counseling since Oliver's birth and both
had returned to work.

CP at 1238. Based on this evidence, LabCorp concluded that "[f]or all of the grief,

anguish, and suffering Oliver's birth may have allegedly caused Mr. and Mrs.

23
No. 71497-0-1/24

Wuth, Oliver has brought a net increase in the quality of their lives." CP at 1239.

But whether Brock and Rhea had or would experience a net emotional

loss as a result of Oliver's birth was the central factual dispute in their wrongful

birth claim. Although the relevant evidence on the issue was undisputed, it

established only that Oliver's birth brought both joy and significant anguish to the

Wuth family. On this evidence, the jury could have concluded either that Oliver's

birth brought a "net increase" or a "net loss" to his parents, depending on the

weight it accorded to the various portions of the Wuths' testimony. Because

different inferences could be drawn from the evidence, summary judgment was

not appropriate. See Preston, 55 Wn.2d at 681-82. The trial court did not err by

allowing the claim to proceed to the jury.

LabCorp also contends it was entitled to judgment on Oliver's wrongful life

claim. The underlying premise of a wrongful life claim is that, "'[t]he child argues

that but forthe [negligent medical care of its mother], it would not have been born

to experience the pain and suffering attributable to the deformity.'" Harbeson, 98

Wn.2d at 478 (quoting Comments, "Wrongful Life": The Right Not To Be Born, 54

Tul.L.Rev. 480, 485 (1980)). Noting that a plaintiff is only entitled to that sum of

money that will place him in as good a position as he would have been but for the

defendant's tortious act (Shoemake ex rel. Guardian v. Ferrer, 168 Wn.2d 193,

198, 225 P.3d 990 (2010), LabCorp reasons that there is no feasible way to

calculate damages on Oliver's wrongful life claim because the alternative for him

was nonexistence.

LabCorp is correct that Oliver may not recover general damages, which

24
No. 71497-0-1/25

would require "measuring the value of an impaired life as compared to

nonexistence ...[,] a task that is beyond mortals, whether judges or jurors."

Harbeson, 98 Wn.2d at 482. But the Harbeson court expressly held that

"extraordinary expenses for medical care and special training," which are

calculable with certainty, are recoverable by a child claiming wrongful life. Id.

Because Oliver's wrongful life claim was properly limited to these special

damages, the trial court did not err in denying LabCorp's motion for summary

judgment.

II. Exclusion of Evidence of Settlement Between the Wuths
and Dr. Harding

LabCorp challenges the trial court's exclusion of evidence related to the

settlement agreement between the Wuths and Dr. Harding. We review a trial

court's evidentiary rulings for an abuse of discretion. State v. Finch, 137 Wn.2d

792, 810, 975 P.2d 967 (1999). An abuse of discretion occurs when a trial court's

decision is manifestly unreasonable or based upon untenable grounds or

reasons. Id.

Generally, under ER 408 evidence of settlement or offers to settle is

inadmissible to prove liability for a claim. But such evidence may be admitted for

other purposes, "such as proving bias or prejudice of a witness." ER 408.

Washington courts also recognize that "[t]he existence of an undisclosed

agreement between outwardly adversarial parties at trial can prejudice the

proceedings by misleading the trier of fact." McCluskev v. Handorff-Sherman. 68

Wn. App. 96, 103-04, 841 P.2d 1300 (1992). And, courts routinely require

25
No. 71497-0-1/26

disclosure of pretrial settlement agreements where the respective interests of the

parties are changed by the pretrial settlement "so that jurors can consider the

relationship in evaluating evidence and the credibility of witnesses." Id. at 104

(citing Daniel v. Penrod, 393 F. Supp. 1056 (E.D. La. 1975)). The key inquiry is

whether nondisclosure of the evidence would prejudice the proceedings.

In this case, LabCorp argues that "exclusion of the fact of settlement was

erroneous and prejudicial because it misled the jury and enabled the settling

parties to bolster each other's credibility while maintaining a ruse that they were

adversaries." Brief of Appellant (LabCorp at 39-40). We disagree.

Nothing in the record supports LabCorp's claim that the settlement

agreement changed the relationship between Dr. Harding and the Wuths such

that the failure to disclose it was misleading. On the contrary, if the jury

concluded that Dr. Harding was negligent, then, pursuant to the agreement, he

would be obligated to the Wuths' for up to $2 million—$1.5 million more than if the

jury found no fault on his part. Thus, as the trial court recognized, Dr. Harding

"had 1.5 million reasons to defend aggressively in this case, which he did." RP at

59. The mere fact that both the Wuths and Dr. Harding sought at trial to allocate

liability to LabCorp and Valley, ostensibly the defendants with "'deep pockets,'" is
not, in itself, evidence of a realignment of interests or collusion. See, McKluskev,

68 Wn. App. at 102. Under these circumstances, we cannot conclude that the

trial court abused its discretion when it refused to admit evidence of the

settlement between the Wuths and Dr. Harding.

26
No. 71497-0-1/27

III. Admission of Evidence Related to Oliver's Relatives

LabCorp argues the trial court abused its discretion when it admitted

evidence related to the condition and prognosis of Oliver's cousin, Jackie.

Undisputed expert testimony established that Jackie's condition was not a good

indicator of Oliver's prognosis. Accordingly, LabCorp objected to admission of

evidence related to Jackie's condition and prognosis on relevancy grounds.

LabCorp argues that because the evidence was both irrelevant and highly

prejudicial, the trial court erred in admitting it. We disagree.

At trial, it was undisputed that Jackie was the only other person known to

have a condition similar to Oliver's. And LabCorp conceded that evidence of her

condition was "relevant to the Wuths' understanding [of the condition] and their

motivations and the proximate cause issue " RP at 281. Because the defense

offered no indication as to why this relevant evidence was unduly prejudicial, the

trial court admitted the evidence, finding it probative of "a really important

element here, which is proximate cause." RP at 282. And, to address any

lingering issues of undue prejudice, the trial court agreed to give a limiting
instruction, making it "clear to the jury this is not about Oliver's condition. This is

about the fears and concerns of these plaintiffs, and whether, in fact, they would

have terminated, had they gotten results indicating their child bore this

abnormality." id We find no error in the court's admission of evidence of Jackie's
condition for the limited purpose of showing the Wuths' state of mind.

LabCorp also argues that evidence related to Jackie's condition should not
have been admitted as a basis for expert opinion. But ER 703 clarifies that the

27
No. 71497-0-1/28

facts or data relied on by the expert need not be otherwise admissible if of a type

reasonably relied upon by experts in the field. And ER 705 expressly authorizes

an expert to "testify in terms of opinion or inference and give reasons therefor

withoutprior disclosure of the underlying facts or data." (Emphasis added). The

trial court has discretion under ER 705 to allow an expert to relate otherwise

inadmissible evidence to the trier of fact to explain the basis for his or her expert

opinion, subject to appropriate limiting instructions. State v. Brown, 145 Wn. App.

62, 74, 184 P.3d 1284, 1290 (2008); State v. Martinez, 78 Wn. App. 870, 879-80,

723 P.2d 464 (1995) (recognizing a court's discretion to admit otherwise

inadmissible evidence as the basis of an expert's opinion, but not as substantive

evidence). Thus, to the extent expert opinion was based on evidence of Jackie's

condition, the trial court had discretion to allow expert testimony relating to that

evidence.

IV. Exclusion of Expert Testimony

Dr. Harding moved for summary judgment dismissal of all but one of the

Wuths' claims against him, that he breached the standard of care only if he failed

to adequately instruct Valley's medical assistant to send Brock's genetic report to

LabCorp. The motion was unopposed by the Wuths' or LabCorp. Nonetheless, in

its response to the motion, LabCorp raised the issue that expert testimony on

other alleged breaches of the standard of care by Dr. Harding should be admitted

to establish his fault for the Wuths' claimed injuries in order to offset its own

proportionate liability for any jury verdict. LabCorp identified several experts from

whom it intended to elicit testimony in support of these positions, including Dr.

28
No. 71497-0-1/29

Andrew London, and the Wuths' experts, Drs. Robin Clark, Marc Incerpi, Thomas

Moore and others. Dr. Harding's motion to strike the testimony of these

witnesses was granted as to Dr. London, but otherwise denied. At trial, however,

the court found that because Dr. Clark had no experience or expertise in the area

of perinatology or obstetrics, her testimony on those subjects was not

admissible.7

"The trial court is vested with discretion to determine whether a witness is

competent to testify as an expert on a particular subject and its ruling will not be

disturbed except for a manifest abuse of discretion." Young, at 242. "Expert

testimony is usually admitted under ER 702 if helpful to the jury's understanding

of a matter outside the competence of an ordinary layperson ... Medical

malpractice cases are a prime example of cases where such testimony is

needed." Reese v. Stroh. 128 Wn.2d 300, 308, 907 P.2d 282 (1995) (citations

omitted). In Washington, "[i]t is the scope of a witness's knowledge and not

artificial classification by professional title that governs the threshold question of

admissibility of expert medical testimony. . . ." Pon Kwock Eng v. Klein, 127 Wn.

App. 171, 172, 110 P.3d 844 (2005) (citation omitted). "So long as a physician

with a medical degree has sufficient expertise to demonstrate familiarity with the

procedure or medical problem at issue, '[ojrdinarily [he or she] will be considered

qualified to express an opinion on any sort of medical question, including

questions in areas in which the physician is not a specialist.'" White v. Kent Med.

7 The trial court also excluded portions of the testimony of Drs. Incerpi, Moore and others,
but on appeal, LabCorp challenges only the exclusion of Dr. London and Clark.

29
No. 71497-0-1/30

Ctr.. Inc., P.S., 61 Wn. App. 163, 173, 810 P.2d 4 (1991) (quoting 5A Karl B.

Tegland, Wash. Prac, Evidence § 290[2], at 386 (3d ed. 1989)).

At the hearing on Dr. Harding's motion to strike, LabCorp explained that

Dr. London would testify that Dr. Harding breached the standard of care by: (1)

failing to make an independent determination that no additional testing was

necessary or consult the lab to confirm, that no additional testing was necessary;

and (2) failing to actually read the lab report himself. Dr. Harding argued that Dr.

London was not qualified to offer such opinions because:

He is not a perinatologist and no longer practices obstetrics. He has
never done CVS testing and LabCorp produces no evidence to
establish that he is qualified to establish the standard of care for a
perinatologist working with genetic counselors...He based his
opinions on a hearsay lunch room conversation with unnamed
participants. . . .

CP at 2915. The trial court agreed and granted the motion.

In its motion for reconsideration and on appeal, LabCorp argues that Dr.

Harding's motion to exclude LabCorp's proposed expert testimony did not include
Dr. London. Therefore, in its response to the motion it made no mention of Dr.

London and offered no evidence or argument regarding his qualifications to offer

the proffered expert opinion testimony. The argument is not well taken. Dr.
Harding clearly asserted in his pleading that Dr. London "has never done CVS
testing and LabCorp produces no evidence to establish that he is qualified to
establish the standard of care for a perinatologist working with genetic

counselors.... His testimony should be stricken or disregarded." CP at 2915.

Because LabCorp chose not refute the assertion or provide the court with any

30
No. 71497-0-1/31

contrary evidence until the matter was heard on oral argument, the trial court did

not abuse its discretion when it granted the motion

Nonetheless, in light of LabCorp's representation at oral argument that Dr.

London did, in fact, have relevant expertise, the trial court invited LabCorp to

submit a motion for reconsideration. LabCorp did so, arguing as it does here, that

the requested relief should be granted, first, because Dr. Harding never moved to

exclude Dr. London's testimony and, second, because "Dr. London [was]

perfectly qualified to offer standard of care opinions regarding an obstetrics

specialist like Dr. Harding." CP at 3151. In support of the latter argument,

LabCorp cited Dr. London's deposition testimony and CV, noting:

Dr. London is not "merely" a gynecologist—he is an experienced
OB-GYN who has been practicing medicine since 1976. He is also
an Assistant Professor of Obstetrics and Gynecology at Johns
Hopkins School of Medicine; is a fellow of the American College of
Obstetrics and Gynecology; and is a certified diplomat to the
American Board of Obstetrics and Gynecology. ... He has
practiced high-risk obstetrics; has co-managed high-risk patients
with perinatologists; has worked with genetic counselors; has sent
samples to cytogenetics labs for testing; and had one of the larger
obstetrics practices in Maryland for a number of years.

CP at 3154.

On this record, we cannot find that the trial court abused its discretion

when it refused to reconsider its order striking Dr. London's testimony. LabCorp's

first asserted grounds for relief, that Dr. Harding never requested that the trial

court strike Dr. London's testimony, is, as noted above, simply not borne out by

the record. And, although LabCorp amply supplemented the record on Dr.

London's qualifications in its motion for reconsideration, it explains neither why it

31
No. 71497-0-1/32

failed do so in its written response to Dr. Harding's motion nor why this late-

disclosed evidence warranted reversal of the trial court's earlier ruling.

In its motion for reconsideration below, LabCorp cited CR 60 generally,

without specifying the particular subsection of the rule that applied, as the

basis for relief from the court's order. On appeal, LabCorp cites CR 59(a) as a

basis for relief, once again, with no indication of the specific subsection upon

which it relies. The only conceivably applicable provisions are CR 59(a)(4)8

and CR 60(b)(3),9 which give trial courts discretion to reconsider an order in

light of newly discovered evidence unavailable at the time of the earlier ruling,

and CR 59(a)(1),10 which gives similar discretion in the event of procedural or

substantive irregularities that deny the moving party a fair trial. LabCorp failed

to establish entitlement to relief under these rules, either in its motion for

reconsideration or its briefs on appeal.

There is no indication in the record that LabCorp could not have

obtained evidence of Dr. London's qualifications with due diligence before

the trial court's ruling on Dr. Harding's motion to strike. In fact, much of the

evidence LabCorp ultimately cited in support of Dr. London's qualifications

8The rule gives trial courts discretion to grant a new trial in cases of "[n]ewly discovered
evidence, material for the party making the application, which he could not with reasonable
diligence have discovered and produced at the trial." CR 59(a)(4)
9The rule gives trial courts discretion to grant relief from a final judgment or order
in cases of "[n]ewly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under rule 59(b)." CR 60(b)(3).

10 The rule also gives trial courts discretion to grant a new trial where there has
been "[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." CR 59(a)(1).

32
No. 71497-0-1/33

came from Dr. London's deposition, taken over nine months before the

motion to strike. The remainder came from his CV, which was almost

certainly available to LabCorp before it ever retained Dr. London as an

expert witness in this case. Because LabCorp, exercising diligence, could

have offered this evidence before the trial court's ruling, LabCorp was not

entitled to reconsideration under either CR 59(a)(4) or CR 60(b)(3).

Likewise, CR 59(a)(1) is of no help to LabCorp. Although it has

repeatedly asserted that "procedural irregularities ... resulted in Dr.

London being wrongly and prematurely excluded from testifying at trial"

and that "LabCorp was not heard on this issue" before the motion for

reconsideration, this assertion is not borne out by the record. Reply Brief

(LabCorp) at 12-13. LabCorp's argument is based on the dual premise

that Dr. Harding never moved to strike Dr. London's testimony and that

LabCorp was not notified of the challenge to Dr. London's qualifications or

given opportunity to respond before the trial court's ruling. But, as

previously discussed, Dr. Harding unambiguously moved to strike Dr.

London's testimony after LabCorp raised the issues of standard of care

and allocation of fault in opposition to Dr. London's motion for summary

judgment. And, although LabCorp addressed the qualifications of other

experts in its written response to Dr. Harding's motion to strike, filed two

days before the trial court's ruling, it elected to reserve argument on Dr.

London. Thus, the lack of evidence of Dr. London's qualifications at the

time of ruling was the result of a tactical choice, not an irregularity in the

33
No. 71497-0-1/34

proceedings. Accordingly, we conclude that the court did not abuse its

discretion when it denied LabCorp's motion for reconsideration.

In addition to Dr. London's testimony, LabCorp planned to elicit evidence

on the standard of care from Dr. Clark, the Wuths' cytogenetics expert. It moved

to admit Dr. Clark's deposition, which included "opinions critical of Dr. Harding for

proceeding without a genetic counselor present; for not accurately

communicating all necessary information to the lab along with Rhea Wuth's

sample; for not contacting LabCorp before sending the sample; and for failing to

understand the limitations of the karyotype test as stated on LabCorp's report."

CP at 10751-52. LabCorp also expressed intent to cross-examine Dr. Clark

regarding these pretrial opinions should the Wuths choose to call her at trial.

LabCorp argues the trial court abused its discretion when it denied

LabCorp's motion to admit Dr. Clark's deposition and sustained Dr. Harding's

objection to testimony that was beyond the scope of Dr. Clark's expertise. We

disagree. LabCorp presented no evidence that Dr. Clark, a pediatrician,

geneticist, and cytogeneticist, had any experience or expertise in the relevant

field of perinatology/obstetrics. There was no abuse of discretion.

LabCorp also claims the trial court abused its discretion when it sustained

objection to a line of questioning related to the Wuths' "captain of the ship" theory

as beyond the scope of direct. But because this theory was precluded by the

court on Dr. Harding's motion for partial summary judgment, this issue was not

before the jury. CP at 2250-61. Thus, the ruling was well within the court's broad

discretion to determine the scope of cross-examination under ER 611 (b). See

34
No. 71497-0-1/35

Miller v. Peterson. 42 Wn. App. 822, 827, 714 P.2d 695 (1986). We also find no

abuse of discretion in the trial court's exclusion of opinions from Dr. Clark based

on CR 26 because they had not been timely disclosed in her deposition.11

V. Voir Dire

Before voir dire, the Wuths filed a motion with the court, requesting

permission to use a jury questionnaire and to conduct limited individual voir dire

of prospective jurors. They maintained:

Any juror who comes to court with a long-held bias against abortion
would be predisposed to find against the Wuths on liability or to not
award any damages for Brock and Rhea's parental grief, anguish
and emotional distress for giving birth to a genetically defective
child. Such jurors would not be qualified as juror on this case.

CP at 4455-56. Pursuant to the Wuths' motion, the trial court asked potential

jurors in a short questionnaire whether they believed abortion is morally wrong or

should be illegal, whether they had close contact with a disabled child, if they had

been a party to medical negligence lawsuit and whether they knew any of the

parties. Jurors who responded affirmatively to any of the questions were brought

in for extended individual questioning. Of the nine potential jurors questioned,

eight were dismissed for cause by the trial court.

LabCorp contends that trial court's voir dire procedure and decision to

remove 8 potential jurors for cause violated the mandate, under RCW

11 Under CR 26(b)(5), a party is entitled to "[discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and
acquired or developed in anticipation of litigation or for trial." Exclusion of the expert's testimony is
an appropriate sanction for failure to timely disclose such information. See e.g., Stevens v.
Gordon. 118 Wn. App. 43, 49, 74 P.3d 653 (2003); Detwiler v. Gall. Landau & Young Const. Co..
42 Wn. App. 567, 572-73, 712 P.2d 316 (1986).

35
No. 71497-0-1/36

2.36.080(1), that juries be drawn from a "fair cross section of the population of

the area served by the court." However, because LabCorp did not object to the

trial court's voir dire procedure below and it conceded that the 8 potential jurors

ultimately removed for cause were unqualified to sit on the jury, it is barred from

asserting the claimed error on appeal. State v. Perrv, 24 Wn.2d 764, 768-69, 167

P.2d 173(1946).

Moreover, even if LabCorp had timely objected, the use of the

questionnaire and the individual juror questioning were within the trial court's

considerable discretion to determine how voir dire should be conducted. See

State v. Davis, 141 Wn.2d 798, 825-26, 10 P.3d 977 (2000) ("[T]rial courts have

discretion in determining how best to conduct voir dire").

And, to the extent LabCorp argues the trial court removed otherwise

qualified jurors based solely on their personal beliefs as to abortion, the

argument is not borne out by the record. The trial court expressly refused to

strike jurors solely because they held strong pro-life beliefs, noting:

You can get a very fair trial from people who feel strongly that
they would never do this, but that they are going to live up to
their obligation to treat the plaintiffs fairly [A] pro[-]choice jury
is not something that I think plaintiffs can get or plaintiffs are
entitled to.

RP at 211. Consistent with this reasoning, the court refused the Wuths' request

to excuse for cause a juror who recognized that "the law being the law is greater

than" her "deep seated" pro-life belief that "abortion is murder." RP at 202-03;

207-08. And the record reveals that the 8 potential jurors removed for cause had

affirmed that their beliefs prevented them from being impartial or from following

36
No. 71497-0-1/37

the court's instructions. They were, therefore, unqualified to serve on the jury.

Davis, 141 Wn.2d at 825-26; RCW 2.36.110 ("It shall be the duty of a judge to

excuse from further jury service any juror, who in the opinion of the judge, has

manifested unfitness as a juror by reason of bias, prejudice, indifference,

inattention or any physical or mental defect or by reason of conduct or practices

incompatible with proper and efficient jury service.")

VI. Comments bv the Trial Court

"The judiciary has long recognized that 'the ordinary juror is always

anxious to obtain the opinion of the court on matters that are submitted to [the

juror's] discretion, and that such opinion, if known to the juror, has a great

influence upon the final determination.'" jd (quoting State v. Crotts, 22 Wash.

245, 251, 60 P. 403 (1900)). "Judges shall not charge juries with respect to

matters of fact, nor comment thereon, but shall declare the law." Art. IV, § 16 of

the Washington State Constitution; see also State v. Becker, 132 Wn.2d 54, 64,

935 P.2d 1321 (1997) (noting that Section 16 "prohibits a judge from conveying

to the jury his or her personal attitudes toward the merits of the case") (citing

State v. Foster, 91 Wn.2d 357, 361, 597 P.2d 892 (1979)). An instruction to the

jury improperly comments on the evidence if the instruction resolves a disputed
issue of fact that should have been left to the jury. Becker, 132 Wn.2d at 65. We

review a challenged jury instruction de novo, within the context of the jury

instructions as a whole. Gregoire v. Citv of Oak Harbor, 170 Wn.2d 628, 635, 244

P.3d 924 (2010).

37
No. 71497-0-1/38

LabCorp cites seven instances in which the trial judge either verbally

instructed the jury or noted in the jurors' presence that the Wuths were not at

fault in this case. First, during Rhea's testimony that she assumed FISH testing

was a "regular test" ordered "to look for a translocation," the trial court interjected:

"As a matter of law, ladies and gentlemen, the Wuths do not bear any fault in this

matter." RP at 607. When Rhea was later asked whether she would have talked

about FISH testing with a genetic counselor had Valley provided one, the trial

court clarified:

Let me explain what this is for, ladies and gentlemen. Again,
the plaintiffs' information about FISH testing is not admissible to
show that they bore any fault here, because they did not.
It's only admissible on the issue of whether or not the lack of
information they received in this case did or did not cause them not
to timely terminate the pregnancy. That's it.

RP at 609.

Next, when Valley's hospital administration expert, Dr. Neil Kochenour,

testified, he speculated that, "if a genetic counselor had been involved when Ms.

Wuth came to Valley, that the subject of FISH testing would come up" because

Rhea understood the test was used to detect translocations. RP at 709-11. The

Wuths' expert Danielle Lagrave, a genetic counselor, offered similar testimony.

The trial court interrupted both Kochenour and Lagrave with verbal instructions to

the jury, limiting the testimony to its proper use. During Dr. Kochenour's

testimony, the court stated:

Okay. I'm going to see if I can unpack this for the jury.
You may hear testimony to this effect, that Ms. Wuth said
something about FISH testing in the appointment that she had at
Valley, but a couple of things I want to remind you of.

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No. 71497-0-1/39

One is that's not pertinent on the issue of whether or not Ms.
Wuth or her husband bear any fault here, because they don't, as a
matter of law.
Two, it's not pertinent on whether Dr. Harding bears any
responsibility here, because you will not hear sufficient evidence in
the record to establish that he heard this mentioned.
It is relevant only on the issue in this case of whether or not
Ms. Wuth would have gone forward with the termination, had she
received the information about the genetic abnormality that she did
not allegedly receive.

RP at 710-11. The court gave a similar instruction during Lagrave's testimony,

noting that evidence of Rhea's knowledge of FISH testing was "not admissible to

establish any liability by the Wuths, because they don't have any legally here.

None. They bear no fault. Its' also not admissible to show any culpability by Dr.

Harding, because there is not enough evidence, as a matter of law, to establish

he heard this comment." RP at 996.

The court also acknowledged the Wuths' lack of fault during examination

of Dr. Harding, following a line of questioning about whether he had advised the

Wuths that they might get more reliable test results ifthey waited to do

amniocentesis instead of CVS. The court stated: "I'll remind the jury one last

time, the Wuths are not legally at fault at all in this case." RP at 826. The court

also noted the Wuths "bear no fault hear" [sic] in sustaining the Wuths' relevance

objection to defense counsel's question: "During the hour amount of time you

spent with Mr. and Mrs. Wuth, did they ever tell you that they desired genetic

counseling on December 31st either prior to or during the time you were doing

the CVS procedure?" RP at 4578-79. Lastly, the court reminded the jury that the

39
No. 71497-0-1/40

Wuths bear no fault during the testimony of the Wuths' expert, Dr. Marc Incerpi,

who testified regarding the standard of care for perinatologists.

Although the Wuths' lack of fault was established during summary

judgment and was therefore undisputed at trial, LabCorp contends that the

court's comments bore on the Wuths' credibility, a factual matter within the jury's

discretion. See Edwards v. Le Due, 157 Wn. App. 455, 459, 238 P.3d 1187

(2010). But the trial judge did not opine as to any matter to be determined by the

jury. Contrary to LabCorp's assertions, the court expressed no opinion whatever

on the Wuths' character or credibility or the strength of their case. Instead, the

trial court merely articulated the basis for evidentiary rulings and appropriately

instructed the jury on the use of evidence that was admissible for limited

purposes. LabCorp's argument that the effect of these reminders was "that the

jurors had 'burned into their brains' an enhanced portrayal of the Wuths as

people who could do no wrong and were deserving of a sizeable damages

award" is without merit. Brief of Appellant (LabCorp) at 38.

VII. Limitation of Defense Theories

As previously discussed, the Wuths limited their claims against Dr.

Harding before trial as the result of summary judgment proceedings. They

advanced only one theory of negligence against him: that Dr. Harding was

negligent if he failed to instruct Valley's medical assistant to send Brock's genetic

test report to LabCorp. The Wuths argued at trial that LabCorp could only

allocate fault to Dr. Harding ifthe jury found him guilty on this theory. The trial

40
No. 71497-0-1/41

court agreed and precluded argument that Dr. Harding was at fault based on

other theories.12 LabCorp challenges the ruling.

Generally "any party to a proceeding can assert that another person is at

fault." Mailloux v. State Farm Mut. Auto. Ins. Co.. 76 Wn. App. 507, 511, 887

P.2d 449 (1995) (citing Adcox v. Children's Orthopedic Hosp. & Med Ctr.. 123

Wn.2d 15, 25, 864 P.2d 921 (1993); RCW 4.22.070(1). Notwithstanding, the

Wuths argue, as a preliminary matter, that LabCorp waived the right to allocate

fault to Dr. Harding by failing to plead the theory as a cross claim or affirmative

defense under CR 8(c).13 We disagree.

CR 8(c) provides:

Affirmative Defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fault of a
nonparty, fraud, illegality, injury by fellow servant, laches, license,

12 The court's instruction to the jury on Dr. Harding's liability is consistent with this ruling.
It stated:

Dr. Harding was negligent if he failed to instruct Valley's medical
assistant, Cathy Shelton, to send clinical information that identified the
chromosomes and breakpoints with the test requisition forms and CVS
sample to LabCorp.

CP at 11607-08. The record on appeal does not contain a proposed instruction by LabCorp
setting forth additional theories of negligence.

13 The Wuths also made this claim at trial. In a colloquy with the court they argued:

But this is the plaintiffs' claim they are seeking to have allocated. They
didn't make any independent claim alleging an empty chair or some sort
of empty claim.
I mean, all this is allocating the fault proved by the plaintiff. Ifwe don't
prove our claim against Dr. Harding, there is nothing to allocate even if
they want to make some other argument. And under the rules, they have
got to have this in their pleadings, and they don't.

RP at 5201-02.

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No. 71497-0-1/42

payment, release, res judicata, statute of frauds, statute of
limitation, waiver, and any other matter constituting an
avoidance or affirmative defense. When a party has mistakenly
designated a defense as a counterclaim or a counterclaim as a
defense, the court on terms, if justice so requires, shall treat the
pleading as if there had been a proper designation.

(Emphasis added). Except for those claims and defenses requiring special

pleading under CR 9 and 12, which are not at issue here, Washington generally

requires pleadings to be sufficiently specific to put the adverse party on notice of

both the fact of the claim and the nature of the claim. See Putman v. Wenatchee

Valley Med. Ctr., P.S.. 166 Wn.2d 974, 983, 216 P.3d 374 (2009) (citing CR

8(a)); 14 Wash. Prac, Civil Procedure § 12:3 (2d ed.). A defense is treated as

having been raised in the pleadings if that defense is consistently raised

throughout the litigation. Reichelt v. Johns-Manville Corp.. 107 Wn.2d 761, 766-

68, 733 P.2d 530 (1987).

In this case, LabCorp's answer, which included as an affirmative defense

that "[t]he incident in question resulted from the acts or omissions of persons or

entities other than LabCorp for which LabCorp is in no way responsible or liable,"

put the parties on notice that, at the very least, LabCorp intended to allocate fault

to another party or nonparty. CP at 2236. LabCorp's repeated and consistent

assertion of Dr. Harding's fault through expert opinions, evidence, and argument

submitted to the trial court put the other parties on notice of the precise nature of

the claimed defense. Accordingly, the LabCorp satisfied Washington's notice

pleading requirements.

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No. 71497-0-1/43

Waiver issue aside, we consider whether the trial court erred when it

determined, as a matter of law, LabCorp was precluded from allocating fault to

Dr. Harding based on theories other than that advanced by the Wuths because

no evidence supported any other theory of negligence. We review the trial court's

legal determination de novo. Cost Mgmt. Servs., Inc. v. Citv of Lakewood, 178

Wn.2d 635, 641, 310 P.3d 804 (2013).

At trial the court explained:

You all need to be supported by standard-of-care evidence to make
an argument about Dr. Harding's fault here. And I think this motion
rises and falls on that point. Because the only standard-of-care
evidence I have heard with regard to Dr. Harding has to do with
whether or not he directed Ms. Shelton to complete this paperwork
appropriately so that the lab would get the information needed to
perform an appropriate test.
That's it. That's plaintiffs' claim, and that's all there is in this
case. He either did it or he didn't.

RP at 5207. LabCorp claims that the testimony of its expert Dr. London and the

Wuths' experts, Dr. Clark and Dr. Marc Incerpi, warranted argument and

instruction on additional theories of Dr. Harding's negligence. We disagree.

As discussed previously, Dr. London's testimony was properly stricken on

Dr. Harding's motion and Dr. Clark's testimony was appropriately limited to

opinions within her expertise; she was, therefore, not permitted to testify on the

standard of care for perinatologists/obstetricians. Dr. Incerpi testified only that the

standard of care for perinatologists/obstetricians required Dr. Harding to make

sure Rhea's relevant history and Brock's genetic test report were sent to the lab.

Because there was no dispute regarding whether the lab received Rhea's

relevant history, Dr. Incerpi's testimony supported only the theory that Dr.

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No. 71497-0-1/44

Harding was liable if he failed to see that Brock's genetic report was sent to the

lab with Rhea's sample. The Wuths, along with LabCorp, argued this theory

throughout trial and it was set forth in the court's jury instructions.

Because no competent expert testimony supported LabCorp's argument

that Dr. Harding was negligent based on breaches of the standard of care other

than the one asserted by the Wuths, the trial court did not abuse its discretion

when it prohibited the argument and declined to instruct the jury on LabCorp's

theories.

VIII. Jury Verdicts

In its post-trial CR 59 motion, LabCorp requested, among other remedies,

that the trial court reduce the jury's $50 million verdict, which it argued was

clearly excessive, unsupported by the evidence, and based on improper

argument for punitive damages. It challenges the trial court's denial of the

remittitur. We review for abuse of discretion using the substantial evidence,

shocks the conscience, and passion and prejudice standard. Bunch v. King Cnty.

Dep't of Youth Servs., 155Wn.2d 165, 176, 116P.3d381 (2005).

First, LabCorp asserts that both the award to Brock and Rhea and the

award to Oliver are outside the range of evidence. We disagree. The jury heard

emotionally-laden testimony from Brock, Rhea, and their family members

regarding the emotional distress and mental anguish they have sustained and

will continue to endure for the remainder of Oliver's life. In response to the

question, "Do you feel you have suffered more emotional harm from Oliver's

existence than the emotional benefit you have received from him?" Brock

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No. 71497-0-1/45

responded, "I think so." RP at 2839. Rhea offered similar testimony, answering

the question in the affirmative, "[D]o you feel as though the emotional anguish

you have suffered by having Oliver in your life is greater than the emotional

benefits you have received from having Oliver in your life?" RP at 1833. The jury

was entitled to believe Brock and Rhea's testimony and, under Harbeson, make

an award of general damages. The trial court emphatically denied LabCorp's

motion for remittitur, noting that the Wuths' "pain has been implicit in all of the

evidence that we heard from the plaintiffs, and I guess you had to be here to see

it, like me and the jury," strengthens the verdict. RP at 68-71.

LabCorp also contends that the verdict was based, at least in part, on the

Wuths' argument during closing that Brock and Rhea's mental anguish was

increased by their knowledge of Jackie's condition. LabCorp maintains that the

argument was improper and misled the jury. We agree with LabCorp that the

argumentwas improper because, as discussed previously, evidence of Jackie's

condition was deemed inadmissible for all purposes except showing proximate

cause and the basis for expert opinion.14 However, LabCorp failed to timely

object at trial and, thus, waived any argument on this issue.

LabCorp argues that Oliver's award is also based on the Wuths' improper

argument that Jackie's condition bore on Oliver's prognosis. We disagree.
Although the argument about Jackie was improper, there was sufficient

14 The Wuths' experts, Dr. Robin Thomas, Dr. Deborah Hill, and Dr. Stephen Glass, as
well as Dr. Harding's expert, Perry Lubens, each testified that, because Jackie is the only living
person known to have a 2;9 translocation like Oliver, information on hercondition is relevant for
any expert to consider in reflecting on Oliver's prognosis, though hercondition is not necessarily
predictive of Oliver's outlook.

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No. 71497-0-1/46

independent evidence to support the verdict for Oliver. The jury heard expert

testimony that Oliver's extraordinary expenses for medical care and specialized

training could amount to $23,675,000 over his remaining 70-year life expectancy.

The jury also heard testimony that the estimates of Oliver's extraordinary

expenses could not possibly "include all of the components of... the

extraordinary care [Oliver] requires because of his disability," that "future medical

expenses [are] reasonably certain to be incurred," and that on a more probable

than not basis Oliver will likely benefit from future medical advances that will

require additional funds. RP at 63. This evidence, which was unrelated to

Jackie's condition, is sufficient to sustain the verdict here. See Erdman v. Lower

Yakima Valley, Washington Lodge No. 2112 of B.P.O.E., 41 Wn. App. 197, 208-

09, 704 P.2d 150 (1985) (reversing trial court's order setting aside damages

verdict; jury was at "liberty" to award future medical expenses "when it was also

shown that [plaintiff] would suffer in the future"). Accordingly, the trial court's error

in allowing the Wuths to argue that Jackie's condition was indicative of Oliver's

future medical needs was harmless.

Next, LabCorp argues that Brock and Rhea's award shocks the

conscience. We disagree. The noneconomic damages award in this case is

analogous to the award affirmed in Bunch, 155 Wn.2d at 181-81, where the jury

awarded noneconomic damages that were roughly 75 percent of the amount of

the awarded economic damages. And the roughly one to one ratio of economic

damages to noneconomic damages here is nowhere near the ten to one ratio we

found shocking in Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 856 P.2d

46
No. 71497-0-1/47

746 (1993). Moreover, given the intense and persistent distress felt by the

parents in this case, the jury's award is not "so excessive as to be 'flagrantly

outrageous and extravagant,' particularly in light of the strong presumption we

accord to jury verdicts." Bunch, 155 Wn.2d at 182.

Finally, LabCorp argues that references to deterrence by the Wuths and

Dr. Harding throughout closing arguments constituted improper requests for

punitive damages. We agree that the argument was improper, but find any error

in allowing the argument to be harmless.

It is well established that punitive damages are contrary to Washington

public policy. Dailev v. North Coast Life Ins. Co., 129 Wn.2d 572, 575, 919 P.2d
589 (1996). Washington law only permits "compensatory damages [to] fully

compensate the plaintiff for all injuries to person or property, tangible or
intangible." Barr v. Interbav Citizens Bank, 96 Wn.2d 692, 700, 635 P.2d 441
(1981) fating Spokane Truck &Drav Co., v. Hoefer, 2 Wash. 45, 52-53, 25 P.

1072(1891)).

In this case, the parties disputed whether and to what extent deterrence

could be discussed as a basis for damages. Following argument in pretrial

motions, the trial court ruled that itwas "okay to articulate the purpose of the

laws," including deterrence. RP at 199. But the court noted that "send-a-message
arguments as to particular defendants... move into the area that Washington
policy specifically precludes, which is punitive damages." id The court ruled that
objections would be sustained as to any argument calling specifically for
deterrence of the defendants in this case.

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No. 71497-0-1/48

Later, before closing arguments began, LabCorp noted a standing

objection on the deterrence issue, arguing that any mention of deterrence was

"only there to inflame the passion and prejudice of the jury ... irrelevant... [and]

contrary to punitive damages law in Washington." RP at 5254. The trial court

reiterated its earlier ruling on the issue, again ruling that the parties "could talk

about the policy behind the law," but could not "tell the jury basically to enter a

verdict to deter these defendants and to send a message." RP at 5254-55.

Following the ruling, the Wuths began their closing argument as follows:

As you listen to closing statements, I want you to keep in mind
there are two reasons under the public policy of the state of
Washington that we are allowed to hold defendants accountable for
the harm they cause to individual citizens. One you have already
heard of. You know it. Compensation. Compensation is balancing
the harm caused by the negligence to the family with monetary
compensation.
The other public policy is deterrence. Deterrence is not
punishment. Punishment is looking back at behavior and trying to
punish it with an award. That's not what we are asking for.
Deterrence looks forward. The purpose of deterrence is to deter
future misconduct, and that is an express public policy of the state
of Washington in Washington tort law.

RP at 5257. Subsequently, the Wuths urged jurors to award general damages to

compensate them and to deter the defendants in this case, noting that

"deterrence is important as a reminder that we can never elevate the business of

medicine over the practice of medicine, that it's okay to make a profit... but...

the patient has to come first." RP at 5417.

Dr. Harding attempted to paraphrase the Wuths' argument, asserting that

the Wuths' lawyer "talked about the purpose of damages, for compensation and

deterrence." VRP at 5381. He then argued that because the evidence did not

48
No. 71497-0-1/49

establish negligent conduct on his part, there was no basis for either

compensation or deterrence as to him.

Following Dr. Harding's argument, the trial court excused the jury for a

break. While the jury was out, LabCorp noted an objection to Dr. Harding's

"argument that deterrence is part of damages" and requested a curative

instruction. RP at 5383. The trial court agreed to give a curative instruction, but

LabCorp argued it was insufficient because the issue of deterrence has "now

been linked to damages, which is absolutely inappropriate, and [the jury has]

heard it." RP at 5384. LabCorp also reiterated its earlier objection to any mention

of deterrence.

The court disagreed that any discussion of deterrence was improper and

adhered to its ruling permitting the parties to explain that "[t]he purpose of having

a civil tort system is partially deterrence." RP at 5387. It reasoned:

people can always explain why the law operates the way it does,
because the argument that can always be made in any personal
injury case is that awarding damages to these specific plaintiffs is
like a lottery, just give damages to people who happen to show up
and ask for relief, as opposed to everybody who may suffer
damages from a practice.

That's why I always think it's fair for counsel to talk about the policy
of a law and the reasons why we do things like allow damages in
the civil system, but why we have a tort system.

I think where we cross the line, and I think it's fair to criticize an
argument that makes this—that's made this way, is when people
start saying, you know, award high damages to deter them from
ever doing it again.

RP at 5384. But it, again admonished counsel that any argument that damages

should be awarded to deter the specific defendants in this case was disallowed.

49
No. 71497-0-1/50

When the jury reconvened, the trial court gave the following curative

instruction:

[l]t's appropriate for the parties to talk to you about what those
policies may be that support our civil tort system.

What's not appropriate is for you to award damages in this case to
deter these specific defendants or to send some sort of message.

The purpose of damages, as we've outlined in the instructions to
you, is to compensate. So the purpose of damages in this case
would be to compensate, if you follow me.

There's a difference between what the purposes—what the reasons
that support our civil legal system are and what you are to do if you
find the damages are appropriate here, which is to assess what is
appropriate for compensation.

RP at 5389.

We agree with LabCorp that the trial court erred when it permitted counsel

to discuss the issue of deterrence in closing argument. The court attempted to

draw a line that distinguished between arguments relating to deterrence as one

of the policy bases for the tort system and arguments that damages should be

awarded to deter the specific defendants in this case. The distinction is a fine one

and, as shown by the Wuths' and Dr. Harding's closing arguments, a difficult one

to successfully navigate. The Wuths' argument, for example, that "deterrence is

important as a reminder that we can never elevate the business of medicine over

the practice of medicine" is strikingly similar to an argument that we deemed

improper in Brovles v. Thurston Cnty., 147 Wn. App. 409, 195 P.3d 985, 1003

(2008). There, we held that the argument that damages should be awarded to

"make sure this never happens again[ ]" was an improper request for punitive

50
No. 71497-0-1/51

damages. ]d at 445. Furthermore, as the court's curative instruction pointed out,

the issue of deterrence was irrelevant to the jury's assessment of damages or to

any other issue before them. Thus, permitting counsel to argue the point

presented the needless risk of confusing the jury. Accordingly, we conclude it

was error for the trial court to do so.

"At the same time, not every misguided closing argument warrants a new

trial." See Carnation Co., Inc. v. Hill. 115 Wn.2d 184, 186-87, 796 P.2d 416

(1990) (misconduct must have a substantial likelihood of affecting the jury's

verdict). Id Here, there is no substantial likelihood that the argument regarding

deterrence affected the jury's verdict in this case. The court's written instructions

to the jury set forth the proper measure of damages, as set forth in Harbeson.

And the court's curative instruction during closing arguments flatly refuted any

inference the jury could have drawn from the Wuths' and Dr. Harding's

arguments that deterrence is a permissible basis for damages. Washington

courts presume that juries follow all instructions given. State v. Stein, 144 Wn.2d

236, 247, 27 P.3d 184 (2001). And LabCorp points to no evidence that the jury

had trouble understanding or did not follow the court's instructions. Moreover, the

verdicts are well within the range of evidence, indicating that the awards are

strictly compensatory, rather than punitive. Thus any error in allowing argument

regarding deterrence was harmless.

51
No. 71497-0-1/52

Affirm.

WE CONCUR:
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