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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANNE CUTONE, No. 73926-3-1
Appellant, DIVISION ONE
v.
WAI K. LAW and JANE DOE LAW, and UNPUBLISHED
their marital community,
FILED: September 6. 2016
Respondents.
Cox, J. — Anne Cutone appeals the judgment on a jury verdict in this
personal injury case. Because the trial court did not abuse its discretion by
denying, in part, Cutone's motion in limine and deciding that limited evidence of
her prior injury would be admissible at trial, we affirm.
Cutone and Wai Law were involved in a car accident. Based on Law's
admission that he was negligent, causation and damages were remaining issues
at trial.
Cutone claimed that the accident gave her thoracic outlet syndrome. Law
argued that Cutone's complaints were related to a prior injury and were not
caused by this 2010 car accident.
No. 73926-3-1/2
In her motion in limine, Cutone moved to exclude evidence of her prior
injuries. The trial court denied, in part, Cutone's motion and allowed opposing
counsel to question expert witnesses "about whether or not a prior injury such as
a broken clavicle" could cause Cutone's claimed injuries.1 The trial court
specifically prohibited Law from mentioning that a car accident caused the prior
injury.
At trial, Cutone's three treating physicians concluded that the car accident
caused Cutone's claimed thoracic outlet syndrome. Conversely, Law's medical
expert, who performed a CR 35 examination of Cutone prior to trial, testified that
she did not sustain thoracic outlet syndrome, or any injuries, from this 2010 car
accident.
The jury rendered its verdict in Cutone's favor in the total amount of
$5,480.00. This included past economic and noneconomic damages. The jury
did not award her future economic or noneconomic damages. The trial court
entered a judgment on the jury verdict.
Cutone appeals.
IN LIMINE RULING
Cutone argues that the trial court abused its discretion by partially denying
her motion in limine to exclude evidence of her prior injury. We hold that the trial
court properly exercised its discretion in its ruling.
1 Report of Proceedings (July 13, 2015) at 23.
No. 73926-3-1/3
Trial courts have "wide discretion to determine the admissibility of
evidence."2 Courts may grant motions in limine ifthe motions describe "the
evidence which is sought to be excluded with sufficient specificity to enable the
trial court to determine that it is clearly inadmissible under the issues as drawn or
which may develop during the trial."3
We review for abuse of discretion a trial court's decision to admit
evidence.4 "An abuse of discretion exists [wjhen a trial court's exercise of its
discretion is manifestly unreasonable or based on untenable grounds or
reasons.'"5
In Harris v. Drake, the supreme court reiterated the rule that "[wjhen an
accident lights up and makes active a preexisting condition that was dormant
and asymptomatic immediately prior to [an] accident, the preexisting condition
is not a proximate cause of the resulting damages."6
In Hoskins v. Reich, following Harris, Division Two of this court stated that
evidence of a party's pre-accident treatment was not relevant to proximate cause
and damages because there was no "evidence of symptoms or a preexisting
2 State v. Demerv, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) (plurality
opinion).
3 Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160(1991).
4 State v. Quaale. 182 Wn.2d 191, 196, 340 P.3d 213 (2014).
5 Id at 197 (alteration in original) (internal quotation marks omitted)
(quoting State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001)).
6 152 Wn.2d 480, 494, 99 P.3d 872 (2004) (emphasis added).
3
No. 73926-3-1/4
condition subject to a natural progression."7 Thus, Division Two of this court
concluded that the trial court in that case abused its discretion in admitting
evidence of a party's pre-accident chiropractic treatment because there was no
evidence of a symptomatic condition prior to the accident.8
Here, before trial, Cutone moved to exclude evidence of her prior injuries.
The legal question was whether there was medical evidence to show that this
accident made active a preexisting condition that was neither dormant nor
asymptomatic. If the answer to that question was yes, the evidence was relevant
and admissible at trial.
At the motion hearing, Cutone argued that she was not symptomatic prior
to this car accident with Law. Law's medical expert, Dr. Richard M. Kremer, who
performed a CR 35 examination of Cutone, testified otherwise.
His declaration and written report of his CR 35 examination state his
medical opinions under the proper standard: that they are on a more probable
than not basis to a reasonable degree of medical certainty.9
He testified that Cutone:
suffered a fractured clavicle in the 1981-82 automobile accident.
The fractured clavicle resulted in a structural change and fracture
calcification, evident on my physical examination of the plaintiff.
This condition, as well as an increase in plaintiff's weight, is more
probably than not the cause of plaintiff's alleged thoracic outlet
7 142 Wn. App. 557, 568, 174 P.3d 1250 (2008).
8 Id.
Clerk's Papers at 74.
No. 73926-3-1/5
syndrome symptoms, due to intermittent partial obstruction of the
right subclavian artery and/or the right subclavian vein.[10]
He further testified that:
Given plaintiff's long-standing and chronic complaints of
neck and back pain, it is more likely than not, that plaintiff continued
to suffer from symptomatic conditions prior to the subject accident
on a more probable than not basis.[11)
The CR 35 examination report states, among other things, in response to
a series of questions:
Did plaintiff suffer from any preexisting conditions that were
asymptomatic but "lit up" in the collision?
The only preexisting condition that the plaintiff has is the
previous cervical trauma caused by a motor vehicle accident in
1981-1982 time frame, with broken clavicle, which is identifiable on
physical examination. This only came to light during my
examination when I noted the callous formation of the clavicle and
asked the plaintiff if she had ever broken her collar bone. This, as
well as increase in the plaintiff's weight, could cause an anatomic
situation in the area of the thoracic outlet, which could cause
intermittent partial obstruction to the right subclavian artery in an
individual who admittedly sleeps solely on her back. This may also
be supported by the vascular testing which was positive in the
resting position and with the Adson's maneuver, an unusual set of
findings. I do not believe that any condition was "lit up" by the
collision.[12]
The trial court denied, in part, Cutone's motion. The court ruled that
opposing counsel would be allowed at trial to question expert witnesses "about
whether or not a prior injury such as a broken clavicle" could have caused
10 id at 73.
11 Id at 74.
12 Id. at 89.
No. 73926-3-1/6
Cutone's claimed injuries.13 The court excluded any mention of the fact that an
automobile accident caused the prior injury. There was no abuse of discretion in
this ruling.
This medical expert opinion is sufficient to show that Cutone's preexisting
condition was neither dormant nor asymptomatic. Accordingly, it was relevant to
the question of proximate cause, as presented to the court at the time of the
motion in limine. What developed later, at trial, was not relevant to the question
of what was before the court at the time of the motion.
Cutone argues that this medical expert opinion was speculative. Not so.
In any event, it was within the trial court's discretion to allow the trier of fact, in
this case the jury, to determine the witnesses' credibility.
Because we have resolved this matter on the basis discussed, we need
not address the other arguments raised by the parties.
We affirm the judgment on the jury verdict.
dsx.X
WE CONCUR:
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13 Report of Proceedings (July 13, 2015) at 23.
6