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BRIAN HOLLINS, No. 75532-3-1 CJ1 r-
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Appellant, DIVISION ONE
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RICHARD ZBARASCHUK and JANE PUBLISHED
DOE ZBARASCHUK, individually and
their marital community; and ALEXIA FILED: September 25, 2017
ZBARASCHUK and JOHN DOE
ZBARASCHUK, individually and their
marital community,
Respondents.
Cox, J. — We review for abuse of discretion a trial court's grant of a new
trial "'unless that grant is based on an error of law."1 We also review for abuse of
discretion a trial court's evidentiary rulings.2 A much stronger showing of abuse
of discretion is required to set aside an order granting a new trial than one
denying a new tria1.3
1 Clark v. Tenq, 195 Wn. App. 482, 491, 380 P.3d 73 (2016) (quoting Teter v.
Deck, 174 Wn.2d 207, 215, 274 P.3d 336 (2012)), review denied, 187 Wn.2d 1016
(2017); see also Hoskins v. Reich, 142 Wn. App. 557, 566, 174 P.3d 1250 (2008).
2 Hoskins, 142 Wn. App. at 566.
3 Clark, 195 Wn. App. at 492.
No. 75532-3-1/2
Here, the trial judge granted the defendants' motion for a new trial
following a substantial jury verdict for the plaintiff. She did so based on her
exclusion of evidence at trial regarding damages, which she concluded was both
an abuse of discretion and deprived the defendants of a fair trial. Plaintiff fails in
his burden to show that the trial judge abused her discretion by granting a new
trial. We affirm.
On September 23, 2011, Alexia Zbaraschuk crashed her father's car into
the rear of Brian Hollins' car. He had stopped on a freeway at the time of the
collision. He was seriously injured.
Hollins commenced this personal injury action against Alexia and her
father ("the Zbaraschuks"). They admitted liability from the accident to the extent
of causation. And they did not dispute Hollins' damages to the extent of
$33,124.18 in medical costs for his injuries.4
The issue for the jury trial that followed was the total amount of Hollins'
additional past and future earnings damages and past and future non-economic,
damages.5
Pretrial, Hollins successfully moved in limine to exclude evidence of what
he characterized as his "unrelated accidents, incidents, and medical conditions."6
4 Clerk's Papers at 437.
5 Id.
6 Id. at 80-89.
2
No. 75532-3-1/3
He argued, among other things, that this evidence was not relevant to his claim
in this action.7 The motion judge granted the motion.8
The parties tried the case to a jury before a different judge than the motion
judge. During trial, the Zbaraschuks requested that the trial judge reconsider the
motion judge's order in limine. They did so during Hollins' testimony as well as at
other times during trial. In each instance, the trial judge denied their requests for
relief from the order in limine.
The jury returned a verdict in favor of Hollins of over two million dollars in
damages. The Zbaraschuks moved for a new trial under several subsections of
CR 59(a). They argued that the trial judge abused her discretion by excluding
evidence of damages concerning Hollins' pre-accident and post-accident injuries.
The trial judge granted the motion solely on the basis of CR 59(a)(1). She
denied the motion to the extent of the other subsections of CR 59(a).
Hollins appeals.
NEW TRIAL
Hollins argues that we should review de novo the trial judge's decision to
grant a new trial and that the decision was erroneous.8 We disagree with both
arguments.
7 Id. at 81-89.
8 Id. at 165-166.
9 Appellant's Opening Brief at 16-20.
3
No. 75532-3-1/4
Standard of Review
A trial judge may grant a new trial under CR 59(a). Because the trial
judge in this case based her ruling solely on the first subsection of this rule, we
focus on this subsection. It provides:
On the motion of the party aggrieved, a verdict may be vacated and
a new trial granted . . . . Such motion may be granted for any one
of the following causes materially affecting the substantial rights of
such parties:
(1) Irregularity in the proceedings of the court, jury or adverse party,
or any order of the court, or abuse of discretion, by which such
party was prevented from having a fair trial.
We review for abuse of discretion a trial court's grant of a new trial "'unless
that grant is based on an error of law." We also review for abuse of discretion
a trial court's evidentiary rulings.12 A much stronger showing of abuse of
discretion is required to set aside an order granting a new trial than one denying
a new tria1.13 A court abuses its discretion when it makes a decision for
untenable reasons or on untenable grounds.14
Hollins argues that we have no basis to defer to the trial judge's ruling.
This argument essentially urges us to review de novo the trial judge's decision to
10 CR 59(a) (emphasis added).
11 Clark 195 Wn. App. at 491 (quoting Teter, 174 Wn.2d at 215).
12 Hoskins, 142 Wn. App. at 566.
13 Clark, 195 Wn. App. at 492
14 Wade's Eastside Gun Shop, Inc. v. Dep't of Labor and Indus., 185 Wn.2d 270,
277, 372 P.3d 97 (2016).
4
No. 75532-3-1/5
grant a new trial. Because that is not the law, we decline to do so. Rather, we
apply the abuse of discretion standard of review that controls in this case.
Notably, Hollins does not directly argue that the trial judge abused her
discretion by making her decision either for untenable reasons or on untenable
grounds. Instead, he argues that the motion judge—a different judge from this
trial judge—properly granted relief in limine excluding evidence prior to trial. This
is unpersuasive.
The proper focus of our review is the trial judge's decision, not the motion
judge's. The primary reason for this is that the trial judge, who had the benefit of
a fully developed trial record, was best informed on the relevant question:
whether a new trial should be granted. To the contrary, the motion judge, who
had a much more limited record than that developed at trial, was far less
informed. Moreover, the question whether a new trial was warranted was simply
not before the motion judge when he ruled in limine before trial. Hollins fails to
present any persuasive authority to counter these basic points.
The other point that we consider in deciding the proper standard of review
to apply is the nature of the decision underlying this motion for a new trial. Here,
the underlying decision before the trial judge was whether she had erroneously
excluded damages evidence at trial. As the authorities uniformly hold, this is a
classic discretionary decision.15
Finally, this court also "require[s] a 'much stronger showing of abuse of
discretion to set aside an order granting a new trial than one denying a new
15 See Hoskins, 142 Wn. App. at 566.
5
No. 75532-3-1/6
trial.'"18 There is nothing either in Hollins' arguments or the record before us that
persuasively supports that he has made this stronger showing in this case.
Hollins relies on several cases to argue that we should not apply the
abuse of discretion standard of review to this case. Reliance on these cases is
misplaced.
The first case is McCoy v. Kent Nursery, Inc.17 On review, the issue was
whether the trial court had abused its discretion by granting a new trial based on
CR 59(a)(9).18 That rarely used subsection of the rule involves the question
whether a "lack of substantial justice" applies.19 Division Two of this court
concluded that the trial court had abused its discretion under the factual
circumstances of that case.29
Here, the trial judge granted a new trial based on CR 59(a)(1), not CR
59(a)(9). Review of the jury verdict was not the issue here. Thus, the two cases
are distinguishable.
Bunnell v. Barr,21 on which Hollins also relies, is equally unconvincing.
That case reaffirms the constitutional role of the jury.22 But the court there did
16 Clark, 195 Wn. App. at 492 (quoting Teter, 174 Wn.2d at 222).
17 163 Wn. App. 744, 260 P.3d 967 (2011).
18 Id. at 768-69.
18 Id. at 769.
28 Id. at 768-71.
21 68 Wn.2d 771, 415 P.2d 640 (1966).
22 See id. at 774-77.
6
No. 75532-3-1/7
not consider whether that role overrides admission of all relevant evidence to
permit a jury to fulfill its constitutional function. This latter question is at issue in
this case. So reliance on this case is also misplaced.
Thompson v. Grays Harbor Community Hospita123 is the last case on
which Hollins relies. It is not helpful. While noting that a trial court's discretion "is
not without limits," it does nothing to address what those limits are under the
circumstances of this case.24 Because we conclude that this trial judge was well
within her discretion to grant a new trial, Thompson does not control.
Accordingly, we apply the abuse of discretion standard to our review of
this trial judge's decision to grant a new trial.
Exclusion of Evidence
Hollins relies heavily on the motion judge's ruling in limine that excluded
certain evidence. We stated earlier in this opinion why that ruling is not the
proper focus of our review. But we also conclude that Hollins' reliance on that
ruling is misplaced for other reasons.
First, as we read Hollins' motion in limine, it focuses on evidence of
causation, one of the necessary elements he must prove in this personal injury
action. For example, he stated in his motion that his "claim in this lawsuit does
not include left knee, left elbow, low back or hip problems."25 Similarly, he stated
23 36 Wn. App. 300, 675 P.2d 239 (1983).
24 Id. at 307.
25 Clerk's Papers at 81.
7
No. 75532-3-1/8
that his "claim in this lawsuit does not include a right wrist problem."26 And he
further stated that his April 2011 neck spasm was not symptomatic at the time of
the September 2011 accident underlying this action.27 Thus, he argues that
evidence of these injuries and their treatment was not relevant, and not facts of
consequence, to any issue in this case. He also argued that admission of such
evidence would violate ER 403 by confusing the jury.
Based on this motion and the response to it, the motion judge entered a
broadly worded order. It excluded:
any and all evidence, references to evidence, testimony, or
argument relating to a left knee injury on January 20, 2005 and any
and all surgery thereto; pre-existing degenerative discogenic
disease; injury to his neck in 2009; an injury to left elbow in January
2013 and subsequent surgery in September 2013; low back injury
in January 2013; right hip injury in January 2013 and subsequent
hip replacement in June 2015; injury to his right wrist in September
or October 2015 . . . .[28]
Whether the motion judge intended to exclude evidence related to
damages for these matters is unclear. Hollins' motion does not expressly
mention damages evidence. Neither does the order in limine. The absence of
such reference is significant, given that there is no dispute that the nature and
amount of damages (other than the $33,124.18 for medical care) were the
primary issues reserved for trial.
26 Id.
27 Id.
28 Id. at 166.
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No. 75532-3-1/9
Alternatively, we assume, for purposes of analysis only, that the motion
judge intended to exclude the matters identified in his order for purposes of
damages as well. The question then is whether the trial judge's exclusion of that
evidence at trial was an abuse of discretion.
Under the "open door" rule, "when one party opens the door to a topic, the
other party may also introduce evidence in order to establish the truth for the
jury."29 As explained by the supreme court:
It would be a curious rule of evidence which allowed one party to
bring up a subject, drop it at a point where it might appear
advantageous to him, and then bar the other party from all further
inquiries about it. Rules of evidence are designed to aid in
establishing the truth. To close the door after receiving only a part
of the evidence not only leaves the matter suspended in air at a
point markedly advantageous to the party who opened the door, but
might well limit the proof to half-truths.(331
Here, during Hollins' direct examination at trial, he testified that he has a
permanent disability and that he had been in treatment "for the last five years."31
This testimony referenced the time period from his September 2011 accident to
the time of trial in 2016. He did not limit his treatment testimony to his neck injury
from this accident, the main focus of his claim in this case.
The Zbaraschuks then requested that the trial judge revisit the order in
limine excluding evidence of Hollins' other injuries. They argued that he opened
the door to evidence of his damages—for pain and suffering and other aspects
29 Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 766, 389 P.3d 517 (2017).
3° State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).
31 Report of Proceedings Vol. 2 (June 2, 2016) at 236-37, 244.
9
No. 75532-3-1/10
related to these other injuries—by testifying about his permanent disability and
continued treatment up to the time of trial.
The trial judge denied this request. But she allowed the Zbaraschuks to
question Hollins and his medical providers about the nature of the therapy he
received. The judge explained that the Zbaraschuks should have an opportunity
to clarify whether Hollins' continued treatment related to the injuries he sustained
from the accident.
After further direct and cross-examination of Hollins, the Zbaraschuks
unsuccessfully renewed their motion to further inquire into Hollins' other injuries.
We note that there was further extended colloquy about damages
between counsel and the trial judge during the court's consideration of the
proposed jury instructions.32 The Zbaraschuks sought a curative instruction
based on the trial judge's adherence to the ruling in limine excluding evidence.
They sought such an instruction to limit prejudice to them from Hollins' testimony
that he continued treatment up to the time of trial without also permitting
evidence that he had other medical conditions that also required treatment. They
argued they were prejudiced because the jury did not "have [a] complete picture"
of relevant damages evidence.33
After hearing the arguments of both counsel, the trial judge stated:
I understand the argument, and I've read the jury instructions
several times. I've got to tell you, I was very -- it was a really close
call to not allow evidence regarding these other injuries to the
32 Report of Proceedings Vol. 3 (June 6, 2016) at 440-49.
33 Id. at 445.
10
No. 75532-3-1/11
extent they impact [the] claim for damages. I mean, there is a very
valid argument for that.[34]
Nevertheless, despite characterizing the question as "close," the trial
judge did not change her prior rulings to exclude evidence that the motion judge
excluded in his pretrial ruling. She also denied the Zbaraschuks' request for a
curative instruction.
The jury ultimately returned a verdict exceeding two million dollars in
Hollins' favor. This included over $969,000 in past and future earnings damages
and over $1,000,000 in past and future non-economic damages.
The Zbaraschuks moved for a new trial under several subsections of CR
59(a), arguing that the trial judge abused her discretion by excluding evidence of
Hollins' other bodily injuries. They argued that the "jury was deceived" because it
was unable to consider these other factors that affected Hollins, which it should
have considered in its damages award.
The trial judge granted the Zbaraschuks' motion for a new trial. She
concluded that she had abused her discretion by excluding the damages
evidence "for the purpose of establishing credibility and defending against
[Hollins'] claimed damages."35 The judge stated in her written order that:
[the motion judge] ruled in limine that [Hollins'] unrelated medical
conditions were not relevant as to causation of his injuries, but they
became relevant during the course of trial and [Hollins] opened the
door to evidence of this nature by claiming future wage loss and
non-economic damages attributable to the injury he sustained in
the motor vehicle accident. By prohibiting [the Zbaraschuks] from
eliciting evidence that challenged [Hollins'] credibility. . . or
34 Id. at 449.
35 Clerk's Papers at 621.
11
No. 75532-3-1/12
damages proximately caused by the motor vehicle accident] [the
Zbaraschuks] were denied a fair trial. The jury had no evidence by
which to weigh the long-term effect of [Hollins'] injuries admittedly
sustained in the motor vehicle accident in context with other events
also bearing on [his] claimed damages.[381
The trial judge was correct. The Zbaraschuks admitted liability to the
extent of causation of Hollins' neck injury. Likewise, they did not dispute the
medical costs he incurred to the extent of $33,124.18. Thus, the question for the
jury at trial was what amount of money would "reasonably and fairly compensate
[Hollins] for those damages. . . proximately caused by the [Zbaraschuks']
negligence."37
Hollins testified at trial that he had a permanent disability and had been in
treatment "for the last five years."38 But the jury did not hear that he was also
treated for other injuries before and after the accident. For example, Hollins tore
a ligament in his left knee five to six years prior to the accident. He also injured
his back, hip, and an elbow after slipping in 2013 and had a hip replaced in 2015.
Importantly, the record shows that Hollins continued to treat these injuries after
the September 23, 2011 accident and that he has physical limitations due to
these injuries.
Hollins' testimony created an inference that his disability, continued
treatment, and inability to maintain his previous employment resulted solely from
his neck injury from the accident. The Zbaraschuks sought to challenge Hollins'
38 Id. at 622.
37 Id. at 432.
38 Report of Proceedings Vol. 2 (June 2, 2016) at 236-37, 244.
12
No. 75532-3-1/13
credibility and rebut this inference with evidence of his other bodily injuries. They
were precluded from doing so during trial.
Hollins argues that he did not open the door to evidence of his other
injuries. And even if he did, he argues that the Zbaraschuks sought to present
"speculative and unduly prejudicial" evidence to rebut the testimony. Not so.
Our prior discussion in this opinion explains how Hollins opened the door
to this evidence by his testimony that he continued treatment "for the last five
years."39 This shows that he opened the door to damages evidence showing
other reasons for his treatment.
He also testified at trial and during a discovery deposition about his
injuries and treatment. This evidence is neither speculative nor unduly
prejudicial.
Additionally, Hollins argues that the motion judge did not abuse his
discretion by excluding these injuries because the Zbaraschuks failed to produce
the evidence required to admit these other injuries. But whether the motion
judge abused his discretion is not the proper focus of our inquiry. Whether the
trial judge did so is our focus.
In any event, the cases on which he relies to support this argument do not
control. For example, he relies on Allen v. Mattoon43 for the proposition that
"admission of [evidence of] the second collision [in that case] was improper"
because there was no medical evidence that the plaintiff's injuries were caused
39 Id.
40 8 Wn. App. 220, 504 P.2d 316 (1972).
13
No. 75532-3-1/14
by the collision.'" From this, he asserts that medical evidence is necessary for
the admission of damages evidence.
We do not read Allen for the proposition that medical evidence is always
required for admission of damages evidence. In that case, Division Three of this
court criticized the trial court's admission of evidence as "only a fragmentary and
nonspecific reference in the testimony of" a medical expert.42 This hardly
supports a bar to admission of all evidence that is relevant to the issue of
damages.
Colley v. Peacehealth43 is instructive on this point. In that medical
malpractice action, we noted that defense experts may offer competing causation
theories without speaking in terms of medical probability." Applying that
principle to this case, there simply was no basis to exclude defense damages
evidence because of the alleged lack of medical support.
The other cases on which Hollins relies involved prior injuries or conditions
and whether a later accident proximately caused the plaintiff's claimed
injuries.45 For example, in Washington Irrigation & Development Co. v. Sherman,
41 Id. at 229-30.
42 Id. at 229.
43 177 Wn. App. 717, 312 P.3d 989 (2013).
44 See id. at 729-30.
45 See Harris v. Drake, 152 Wn.2d 480, 494, 99 P.3d 872 (2004); Hoskins, 142
Wn. App. at 568-70; see also Berger v. Sonneland, 144 Wn.2d 91, 110-11,26 P.3d 257
(2001); Hayden v. Boeinc Co., No. 73344-1-1, slip op. at 4-8 (Wash. Ct. App. April 25,
2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/733443.pdf., review denied
sub nom., 186 Wn.2d 1012 (2016); Wash. Irric. & Dev. Co. v. Sherman, 106 Wn.2d 685,
691-92, 724 P.2d 997 (1986); Mattoon, 8 Wn. App. at 229-30.
14
No. 75532-3-1/15
Elbridge Sherman suffered an industrial back injury while working.46 At trial, his
employer questioned the parties' medical experts about two car accidents that
Sherman was involved in after his industrial injury.47 It specifically asked whether
the accidents affected Sherman's preexisting back condition:45
In Harris v. Drake, Bradley Harris, a painter, sustained a certain shoulder
injury from a car accident.49 After recovering from the accident, Harris resumed
his painting job, but his shoulder problem reappeared.53 At trial, the parties
disputed the causation of his injury, and Harris' surgeon testified that painters
often have the same shoulder injury due to their profession.51
Lastly, in Hoskins v. Reich, Michael Hoskins sustained neck, back, and
arm injuries from a car accident.52 At trial, the parties disputed the causation of
his injuries, and the trial court admitted evidence of certain treatment he received
before the accident.53
But the Zbaraschuks admitted to proximately causing Hollins' neck injury
in this case. Thus, only damages was at issue. The Zbaraschuks sought to
46 106 Wn.2d 685, 686, 724 P.2d 997 (1986).
47 Id. at 691.
45 Id.
49 152 Wn.2d 480, 484, 493, 99 P.3d 872 (2004).
50 Id. at 493.
51 Id. at 493-94.
52 142 Wn. App. 557, 560, 174 P.3d 1250 (2008).
53 Id. at 560-70.
15
No. 75532-3-1/16
admit evidence of Hollins' other bodily injuries to challenge his credibility and
ensure that the jury had the complete picture as to damages. They did not argue
that Hollins' other injuries proximately caused his neck injury. Thus, Hollins'
reliance on these cases is misplaced.
Lastly, Hollins argues that the trial judge improperly substituted her
judgment for that of the jury because she disagreed with the verdict. This
argument is contrary to the record.
In granting the new trial, the trial judge stated during her oral remarks:
I'm not saying that their decision was in error or they
considered things incorrectly or anything of that nature. I'm
obviously not in a position to say that.(54]
The judge's written order that follows incorporates this and her other oral
remarks in granting the new trial.
Moreover, the order denies the new trial motion to the extent of
subsections other than CR 59(a)(1). Among these other subsections is CR
59(a)(7), dealing with "evidence to justify the [jury] verdict." Thus, the trial judge
expressly denied the motion to the extent it challenged the jury verdict.
To say that the trial judge substituted her judgment for that of the jury is
unwarranted on this record.
Prevention of Fair Trial
Hollins argues that even if the trial judge abused her discretion, that abuse
did not prevent the Zbaraschuks from having a fair trial. We again disagree.
54 Report of Proceedings (July 6, 2016) at 35.
16
No. 75532-3-1/17
Once the trial judge determines there was an abuse of discretion, the
related question is whether the abuse prevented the moving party from having a
fair tria1.55 This record supports this trial judge's decision that the trial was not fair
to the Zbaraschuks.
Here, the trial judge determined that "[t]he jury had no evidence by which
to weigh the long-term effect of [Hollins] injuries admittedly sustained in the
motor vehicle accident in context with other events also bearing on [Hollins]
claimed damages."56 Hollins fails to satisfactorily explain how a trial could be fair
under these circumstances.
Even though Hollins has physical limitations due to his other injuries, the
evidence presented to the jury created an inference that his disability, continued
treatment, and inability to maintain his employment resulted solely from his neck
injury. Because the trial court prohibited the Zbaraschuks from challenging
Hollins' credibility and rebutting this inference, the jury could not consider
whether his other injuries affected the amount of his claimed damages. This was
unfair to the Zbaraschuks.
Hollins argues that the Zbaraschuks received a fair trial for the following
four reasons. None is persuasive.
First, Hollins contends that in closing argument, the Zbaraschuks argued
that the jury should reduce the damages award based on his other injuries. But
lawyers' arguments are not evidence. And without the damages evidence
55 CR 59(a).
56 Clerk's Papers at 622.
17
No. 75532-3-1/18
excluded by the trial judge, the jury was left with a void it could not fill other than
with speculation.
Second, Hollins argues that the alleged prejudice resulting from the
exclusion of this evidence was cured by the trial court's instruction. Not so.
The court instructed the jury to disregard testimony regarding treatment
Hollins received after 2012. But this instruction specifically concerned the cost
of medical treatment that Hollins received, which was not an issue at trial. It
provided:
You are instructed that the value of reasonable and
necessary past medical care caused by the collision is $33,124.18.
. . . Plaintiff has no claim for the cost of medical care received after
December 2012 or beyond. You should disregard testimony, if any,
that describes or relates to medical treatment Plaintiff received or
may seek after December 2012, other than self-help care.[571
This limiting instruction did nothing to address other damages, which
included past and future economic and non-economic damages. Thus, it did not
cure prejudice, as argued.
Third, Hollins argues that the jury is presumed to have followed the court's
instruction to "determine the amount of money that will reasonably and fairly
compensate Plaintiff for those damages you find were proximately caused by the
Defendants' negligence."58 This is true. But, absent the evidence the trial judge
excluded during trial, this presumption is irrelevant. The jury lacked all relevant
evidence to make a proper determination of damages.
57 Clerk's Papers at 426.
58 Id. at 432.
18
No. 75532-3-1/19
Fourth, Hollins argues that the evidence supported the verdict and that the
verdict was not excessive. But whether the verdict was excessive or supported
by evidence is not the issue. The issue is whether the trial court abused its
discretion in excluding damages evidence and whether that abuse prevented the
Zbaraschuks from having a fair trial.
In sum, the trial court did not abuse its discretion by granting a new trial.
Lastly, Hollins requests post judgment interest. Because we affirm the
trial judge's grant of a new trial, this question is moot.
We affirm the order granting the Zbaraschuks' motion for a new trial.
WE CONCUR:
icke
19
Hollins v. Zbaraschuk, No. 75532-3-1
DWYER, J. (dissenting) — Standard of review is an arcane appellate concept that
is of importance to few and of interest to fewer. Nevertheless, in this case, it makes all
the difference.
The key decision on review is the trial judge's posttrial ruling that a midtrial
judicial determination constituted an abuse of discretion. The majority opinion treats the
posttrial ruling as itself being a discretionary one and, on appeal, applies an abuse of
discretion standard in reviewing that ruling. I disagree. I believe that the posttrial ruling
was a ruling on a legal question, subject to no deference on appeal. This conviction
leads me to reach a different result on the merits of the controversy.
The defendant's motion for a new trial was granted pursuant to the applicable
court rule, which authorizes such relief "for any one of the following causes materially
affecting the substantial rights of such parties: (1) . . . abuse of discretion. . . ." CR
59(a). In my view, the determination of whether a trial court's pretrial or midtrial ruling
constituted an abuse of discretion is a legal question, not a discretionary ruling. Legal
questions are reviewed de novo, even when they arise in the context of a new trial
ruling. Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812, 440 P.2d 834 (1968).
Appellate courts review trial court rulings for abuse of discretion "only when the grounds
on which the trial court grants a new trial are based on an exercise of discretion."
Detrick, 73 Wn.2d at 812. When an order granting or denying a new trial is "predicated
upon rulings as to the law. . . no element of discretion is involved." Johnson v. Howard,
45 Wn.2d 433, 436, 275 P.2d 736 (1954).
No. 75532-3-1/2
A posttrial ruling as to whether a trial court abused its discretion by excluding
evidence presents a legal question, not a discretionary one. It is, therefore, entitled to
no deference on further posttrial review.
On direct appeal from a judgment entered on a jury's verdict, it is common for the
Court of Appeals to be asked to review a trial judge's pretrial or midtrial ruling admitting
or excluding evidence. We do so by applying an abuse of discretion standard to the trial
judge's decision) In so doing, we are not, ourselves, exercising discretion. Instead, we
are answering a legal question.
On occasion, unhappy litigants are reluctant to accept the appellate court's
answer to such a question. These litigants may seek review by the Supreme Court.
From time to time, the Supreme Court agrees to review such a case.
When it does so, the Supreme Court affords no deference to the appellate court's
ruling. It does not apply an "abuse of discretion" standard to the appellate
determination. Instead, the Supreme Court views the matter as presenting a legal
question and ignores the appellate ruling, instead applying an abuse of discretion
standard directly to the trial court ruling at issue.2
In the present case, we should analyze the trial court's ruling on the legal
question (did either the pretrial ruling or the midtrial ruling constitute an abuse of
discretion?) in the same way as would the Supreme Court if the question had worked its
way up to that court on direct review (in the absence of a new trial motion). We should
I See, e.g., Colley v. Peacehealth, 177 Wn. App. 717, 312 P.3d 989 (2013) (pretrial evidentiary
ruling); Jordan v. Berkey, 26 Wn. App. 242, 611 P.2d 1382 (1980) (midtrial ruling altering pretrial
exclusion of evidence).
2 See, e.g., In re Det. of Post, 170 Wn.2d 302, 241 P.3d 1234 (2010); State v. Magers, 164
Wn.2d 174, 189 P.3d 126 (2008); State v. Powell, 126 Wn.2d 244, 893 P.2d 615 (1995).
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afford no deference to the posttrial ruling on the question and instead focus our review
directly on the pretrial and midtrial judicial rulings themselves.
Were we to do this, I believe, the result of this appeal would be entirely different.
First, to analyze the pretrial ruling. Hollins' complaint alleged that defendant's
breach of her duty of care was the sole proximate cause of "Hollins' injuries and
damages as alleged." As trial approached, Hollins moved to exclude any evidence of all
other conditions, including the prior neck injury. Defendant's opposition memorandum
devoted three paragraphs to this issue. Two of these paragraphs addressed the prior
neck injury (which is not at issue on appeal). The other paragraph conceded that all
other evidence could be excluded.3
The judge "exclude[d] any and all evidence, references to evidence, testimony, or
argument relating to a left knee injury, . . . all surgery thereto, . . . pre-existing
degenerative disc disease, injury to his neck in 2009, an injury to left elbow, . . . and
subsequent surgery, . . . low back injury, . . right hip injury, . . . injury to right wrist." In
other words, it was all excluded. And the exclusion was not limited to any purpose. The
order does not reference "opening the door." Defense counsel never argued that
defendant should be allowed to reference these matters, admit evidence, or argue
about them regarding proof of damages. The exclusion was total.
If there had been no new trial motion and we were called upon to review this
ruling on direct appeal, would we affirm it? We would.
3 None of the 40 pages of authority cited to us on appeal was submitted to the pretrial motion
judge.
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The motion was properly brought. The defendant had a full and fair opportunity
to litigate the motion. The defendant made the argument her counsel chose to make,
thereby forfeiting all others. And the judge ruled based on what was then before the
court. It was a sound ruling. It was not an abuse of discretion. We would affirm it.
Now to the midtrial ruling.4 In the face of a justifiable—affirmable—pretrial ruling,
the trial judge was asked to undo the pretrial ruling, thereby admitting evidence that had
been excluded and allowing argument that had been precluded. This would have
greatly altered the issues in the ongoing trial and have been greatly disruptive in
general. The trial judge said no. If there had been no new trial motion and we were
called upon to review this ruling on direct appeal, would we affirm it? We would.
The pretrial ruling was proper. Plaintiff then presented his case in accordance
with that ruling. The defendant did not claim that the plaintiffs testimony was a surprise
or that it was at variance with answers given in pretrial discovery. Instead, the
defendant simply wanted a "do-over"—the opportunity to argue that which it had chosen
not to argue to the pretrial motion judge.
Would no reasonable judge deny the defendant's request? Was denial of the
defendant's request outside the range of acceptable choices available to the judge?
Was denial of such a dramatic request, in the middle of an ongoing trial, a decision
made with no tenable basis? These are the abuse of discretion formulations applicable
to the midtrial decision.
4 I acknowledge that the defendant's request arose several times. For ease of understanding, I
will refer to the ruling as a singular one.
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Of course, some reasonable judges would have denied the request (even if
others might have granted it). Of course, denying the request was within the range of
acceptable choices. Of course, the timing of the request, the defendant's advancement
of previously forfeited arguments, and the disruption caused to the trial process—
coupled with the propriety of the original, pretrial ruling—all combined to provide a
tenable basis for denial.
On direct appeal, we would affirm both the pretrial and midtrial rulings.
The fact that a posttrial motion was made should neither distort our inquiry nor
change the result. The rulings made were affirmable. Therefore, the judge erred by
concluding otherwise in the posttrial ruling. We should reverse that decision. Judgment
should be entered on the jury's verdict.
Because the majority determines otherwise, I respectfully dissent.