IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JASON SAUNDERS, a single
individual, No. 77826-9-I
Respondent, DIVISION ONE
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CARLA THORE and JOHN DOE 1-0-.-... CD -ri
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Appellants. FILED: June 17, 2019 ---4,
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APPELWICK, C.J. — Thore hit a vehicle in which Saunders was a passenger,
injuring Saunders. Saunders sued Thore to recover for damages. Thore argues
that the trial court abused its discretion in finding that Saunders's preexisting
medical condition was asymptomatic prior to the car accident and excluding her
expert from testifying otherwise. She further contends that the trial court erred in
entering a directed verdict on a portion of Saunders's medical bills. Finally, she
asserts that the trial court abused its discretion in excluding photographs, repair
estimates, and Thore's testimony regarding the force of the impact of the car
accident. We affirm.
FACTS
On the morning of June 12, 2013 around 7:30 a.m., Jason Saunders was a
passenger in a Mazda Miata traveling on Northeast Woodinville-Duvall Road. As
the Miata approached the 160th Avenue Northeast intersection, Carla Thore,
No. 77826-9-1/2
driving a Toyota FJ Cruiser, pulled out from a stop sign and hit the Miata as she
attempted to turn left. On April 20, 2016, Saunders sued Thore to recover for
damages as a result of his injuries from the accident.
Before trial, Saunders moved to prohibit Thore from (1) testifying about the
force of the impact of the accident, and (2) presenting photographs of the damage
to both parties' cars, and providing repair estimates for their vehicles. Thore
opposed both motions. The court granted the motion to exclude repair estimates
and testimony about the property damage. It reserved ruling on excluding the
photographs and Thore's testimony on the force of the impact. The trial court later
brought up the motion as to the photographs. After both parties argued, the trial
court stated,
[T]here is just not a basis in this trial -- and, frankly, there is not a
scientific basis period -- for an argument that the testimony of a
layperson about the force of an accident can predict or somehow
give any admissible evidence about the impact on a human body. . . .
So for all of those reasons, and because your clients [sic] have
admitted liability, her testimony is largely irrelevant. I'm not really
sure -- I'll let you proffer her testimony before she testifies. The
pictures are of out of the damage because they are not relevant for
any particular issue in this case. . . .
But the reality is some accidents that have incredible force result
in mild injuries, and some of mild force can cause serious injuries.
They often don't, but that's really up to the medical doctors to give
that opinion.
And, as to Thore's testimony, the court subsequently ruled,
The only thing she can say is that she was involved in a car accident
where she struck another car. That's it. That's the full extent of it.
And then if she wants to accept responsibility for it, that's fine, but
she can't testify to the circumstances of the car accident. . . . The
problem is . . . the jury is going to try and predict the forces on a
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No. 77826-9-1/3
human body based on the striking of two vehicles. And, again, there
is no scientific basis for that, period.
Saunders also moved to prohibit Thore from arguing or presenting evidence
that he had preexisting medical conditions. Saunders acknowledged that he had
"preexisting (asymptomatic) Grade One L5/S1 spondylolisthesis" and that he was
involved in a car accident in 2011 in which he suffered a brain hemorrhage and
fractures to his pelvis, nose, right humerus, and right femur. He argued, however,
that his preexisting conditions were dormant and asymptomatic immediately
before the accident, and therefore not a proximate cause of resulting damages.
Thore planned to have her expert, Dr. James Russo, testify that Saunders's
condition was symptomatic before the accident. In his pretrial motion, Saunders
asserted that Dr. Russo's opinion was baseless and refuted by his own treating
physician, Dr. Sandra Demars. Saunders argued that before the accident he did
not have posterior pain, and after his accident he had spinal surgery to address
posterior pain. Saunders relied on Dr. Demars's declaration, in which she wrote,
"I can say unequivocally that the hip/leg pains he was experiencing in late 2012
and early 2013 were anterior (front side) pains."
Thore argued to the court that Demars's declaration was "very suspect and
was not subject to any kind of cross-examination." She continued,
[T]here are a number of factors that suggest that the pain was
posterior and not anterior. One is the fact that it was absolutely
unequivocally nerve pain. It's not only charted as nerve pain, but it's
treated as nerve pain, for which gabapentin, a nerve pain -- a
prescription medication designed to addressed [sic] nerve pain, was
prescribed. So we know he had nerve pain. If he had nerve pain,
it's coming from his back.
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No. 77826-9-1/4
The other issue is that he complained of other nerve-related
symptoms such as numbness, weakness, and tingling. He
complained of that to Dr.[Demars] specifically. So we're not talking
about necessarily what -- the way he's trying to explain it away as,
"Gee, I had pain in the front of my leg that was due to a surgery I had
prior." And we know that's not true because of all of this evidence
related to nerve pain. Now, if he's having nerve pain, that means it's
not related to the leg surgery; it's related to his spine. And that
suggests that the pain was, in fact, posterior and not anterior.
The court stated,
I think the question is whether you have a good faith basis for having
an expert proffer an opinion that the treating doctor, who is the only
person who could deal with that issue at the time, testifies to the
contrary.. . .
So the issue about whether or not you had a chance to talk to
Dr.[Demars], frankly, that's a target gone by. That's something that
would have been validly raised before the trial as a discovery issue.
And I've had the case for a little bit of time, not a lot of time, but I
could have addressed it then. But now it's trial, so there's nothing I
can do about that. I only have the evidence that I have in front of
me, and that's what I have to address.
Responding to Thore's argument, Saunders stated,
If you look at Dr.[Demars]'s declaration, she actually talks about
that it's possible that the anterior pain was nerve pain, not spinal
nerve pain, but nerve pain, nonetheless. It's right in her declaration
on the last page, so that's fine.
As far-- and, again, I mentioned the fact that he was complaining
of -- after this accident of both anterior and posterior. It's just the
anterior was the stuff he had beforehand and it went away. So, of
course, he's making the same complaints. He's not saying that -- the
anterior was anything new, Your Honor.
In granting Saunders's motion to exclude argument and evidence that
Saunders had a preexisting symptomatic spinal condition, the trial court stated,
[B]ased upon what I've heard and the declaration of Dr.[Demars], I
conclude that there's -- there's really not a factual basis at this point
for finding that there was a preexisting symptom that was
symptomatic of posterior pain prior to the 2013 car accident.
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No. 77826-9-1/5
I appreciate Counsel's attempt to address this, but what I'm
hearing is interpretations of medical records, as lawyers are obliged
to do on behalf of their clients, but the best evidence, really, the only
evidence, frankly the medical opinion, is from Dr.[Demars]. So you
can show me at a later time, if you wish, the medical records that
you're relying upon, that you're talking about. But at this point, Dr. -
- the evidence of a preexisting posterior pain condition, there's not
sufficient evidence for it to be introduced into trial. The plaintiff's
motion is granted.
During her opening statement, Thore stated that there were three issues to
consider during the trial: credibility, a condition called spondylolisthesis, and
Saunders's "intermittent employment history." Regarding spondylolisthesis, Thore
said,
Spondylolisthesis, especially as it pertains to Mr. Saunders, is a
congenital condition. Meaning it's something that you're born with.
Dr. Russo will explain that it's something that can develop over the
course of childhood and often occurs in teenagers.
And what it is, it's basically a fracture in the bone in part of the
bone in the spine. And when it occurs on both sides, as it did with
Mr. Saunders, it causes the vertebra to slide out of place, putting
pressure on the disks. Now, that sliding is graded. And in Mr.
Saunders'[s] case, it was called "Grade 1 spondylolisthesis at L5-
S1." That you will see in the imaging from Denver, Colorado, from
the 2011 accident. . . .
So the most important issue in this case when you're looking at
was this surgery -- or these surgeries for the spondylolisthesis, for
this preexisting condition, related in any way to the accident in 2013
or not really comes down to credibility. That's one of the central
issues in this case.
Immediately after Thore's opening statement, out of the presence of the
jury, the trial court told counsel,
[Alt the beginning of your opening statement you clearly argued or
said that he had a preexisting spondylolisthesis condition that was
symptomatic at the time before the accident of 2013 occurred. My
pretrial. . . .
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No. 77826-9-1/6
THE COURT: You clearly implied that in the opening
statement you made. And my order is, "If appearing the defendants
can offer no substantial admissible evidence the plaintiff had a low
back symptomatic preexisting condition, any reference or mention of
a preexisting spinal condition is prohibited."
You cannot argue or ask questions about that to imply that he had a
preexisting symptomatic back condition on the posterior before the
accident.
Saunders asked the court to give an instruction to the jury. Thore objected
to the instruction, arguing that it was a comment on the evidence. She asked that
if a limiting instruction was to be given, it be given at the close of the case before
the jury deliberated. The trial court granted Saunders's motion for a limiting
instruction, and instructed the jury,
As I told you yesterday, opening statements and closing statements,
the statements of the lawyers, are intended to help you understand
the evidence and the closing will help you to apply the law. But those
statements are not evidence and any statement that is not supported
by evidence you hear, that is the answers of witnesses, documents
or tangible objects, should be disregarded.
And here is a more substantive instruction: Mr. Saunders, Jason
Saunders, the plaintiff in this case, has a condition and had a
condition spondylolisthesis. However, there will not be evidence that
Mr. Saunders had any symptoms from his spondylolisthesis,
technically called grade 1, L5-S1 spondylolisthesis, prior to June of
2013, the accident in 2013. There will not be evidence he had low
back complaints and no posterior or backside leg pains prior to the
June 2013 accident. You can accept that as a fact.
You will hear evidence that he did have anterior leg pain, front
pain, prior to the June 2013 accident.
And you will hear witnesses talk about this. That's the end of my
instruction. But that's simply to give you a little more information.
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No. 77826-9-1/7
Dr. Daniel Brzusek was one of the doctors who treated Saunders, both
before and after the 2013 accident. Dr. Brzusek testified that spondylolisthesis
was a "congenital defect between the front of the vertebrae and the back of the
vertebrae." Brzusek explained that the level of Saunders's condition, grade 1,
means that it is a "very minor slippage forward. . . . The lowest level." And, he
stated that, while almost 10 percent of the population has this, the majority are
asymptomatic.
Saunders asked,"[S]ince it's been established that[Saunders] did not have
any low back pain and any back of the leg pain prior to the June 2013 accident. . .
can we fairly say that [his] L5 S1 spondylolisthesis [that] existed prior to the
accident was asymptomatic?" Brzusek replied, "Right. The only thing I can say
about this is the accident did not cause the spondylolisthesis, it aggravated a
preexisting asymptomatic spondylolisthesis, to be perfectly honest with you. To
be very accurate, that's how it should be expressed."
Another physician who treated Saunders, Dr. Alan Brown, similarly
described the condition,
Most people who have degenerative conditions in their spine,
including spondylolisthesis -- I suppose you have a grade 4,
complete slip, you're going to have symptoms. But in the case of a
grade 1, most people who have any degenerative changes, including
spondylolisthesis, are asymptomatic.
. . . No pain. They don't know they have it.
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No. 77826-9-1/8
When asked where the symptoms would be if the L5-S1 spondylolisthesis was
symptomatic, Brown answered, "Typically it's low back and/or leg. . . . back of the
leg typically."
Dr. Brown also testified about Saunders,
So my understanding is -- these are the assumptions I'm making.
Yeah, he had a bunch of degenerative conditions in his back before
this car accident. But my understanding, based on what I read and
my notes, is that he didn't have any pain in his back of significance
or in the back of his right leg until this car accident.
So if you ask me what exactly happened in that car accident, I
don't know. I mean, typically car accidents don't cause that type of
thing to become symptomatic.
But if you -- I'm using the assumption,[Melt, he had pain. There
is no reason that I have to doubt that he had pain from the time of
the car accident essentially on. So something must have happened.
And so the car accident caused this preexisting condition to become
symptomatic.
After the trial, the jury returned a verdict for Saunders. It awarded Saunders
$160,339.69 for medical care following his 2015 surgery (the amount decided by
the court), $37,216.77 for additional medical care following his 2015 surgery,
$111,920 in past economic damages, $62,680 in future economic damages, and
$382,000 in past and future non-economic damages, for a total verdict of
$754,156.46. The trial court entered the judgment on the verdict on December 1,
2017. Thore appeals.
DISCUSSION
Thore makes four main arguments. First, she argues that the trial court
erred in finding that Dr. Russo's opinion lacked foundation as to Saunders's
condition. Second, she argues that the trial court erred as a matter of law in
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No. 77826-9-1/9
concluding that Saunders's spondylolisthesis was asymptomatic before the 2013
accident, and instructing the jury accordingly. Third, she argues that the trial court
erred in ruling as a matter of law on Saunders's medical expenses from his 2015
surgery. Fourth, she argues that the trial court erred in excluding her testimony
about the accident and evidence of vehicle damage and repair estimates.
I. Preexisting Medical Condition
Thore asserts that the trial court erred in ruling that Dr. Russo's opinion on
Saunders's condition lacked foundation. And, she argues that the trial court erred
earlier in granting Saunders's pretrial motion to exclude evidence that Saunders's
spondylolisthesis was symptomatic before the 2013 accident, and instructing the
jury accordingly.
The trial court has wide discretion in ruling on the admissibility of expert
testimony and this court will not disturb the trial court's ruling if the reasons for
admitting or excluding the opinion evidence are both fairly debatable. Miller v.
Likins, 109 Wn. App. 140, 147, 34 P.3d 835 (2001).
A. Expert Testimony
Thore asserts that the trial court erred in preventing her from making an
offer of proof and concluding that Dr. Russo's opinion of Saunders's preaccident
condition lacked foundation.
ER 702 generally establishes when expert testimony may be utilized at trial:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
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No. 77826-9-1/10
in the form of an opinion or otherwise." ER 703 allows an expert to base his or her
opinion on evidence not admissible in evidence and to base his or her opinion on
facts or data perceived by or made known to the expert at or before the hearing.
Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014).
It is well established that conclusory or speculative expert opinions lacking
an adequate foundation will not be admitted. Safeco Ins. Co. v. McGrath, 63 Wn.
App. 170, 177, 817 P.2d 861 (1991). The decision whether to admit expert
testimony under ER 702 is within the discretion of the trial court and will not be
disturbed absent a showing of an abuse of that discretion. Walker v. State, 121
Wn.2d 214, 218, 848 P.2d 721 (1993).
Thore cites Barci v. Intalco Aluminum Corp., 11 Wn. App. 342, 346 n.1, 522
P.2d 1159 (1974).
The footnote states,
The trial lawyer has a right to make the record for appeal. The trial
judge must permit counsel to make an offer of proof in the absence
of the jury so that the propriety of the proposed, but excluded,
evidence may be examined as to admissibility. An offer of proof
stands in the same position as a pleading and must be made so the
trial court may rule advisedly and so an exception to the exclusion of
the offered evidence may be preserved. The offer may be rejected
(though it must be recorded) where the language of the offer is
vague, general and not sufficiently specific to inform the trial court
concerning the evidence that the proponent wishes to present. The
exclusion by the court of a proffer of testimony by interrogating the
witness or by counsel reciting the evidence that would be presented
precludes review and is erroneous.
Id. (internal citations omitted).
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No. 77826-9-1/11
Thore recited on multiple occasions what she expected from Dr. Russo's
testimony. Pretrial, she told the court that Russo would testify that Saunders's
spondylolisthesis was symptomatic, and that he based this opinion on Saunders's
nerve pain before the accident. During trial she told the court,
Dr. Russo's testimony would be and will be on the offer of proof that
he simply disagrees with Dr. Demars'[s] interpretation of the
symptoms reported. So the Court has gone on to exclude his
opinions with regard to the first surgery by saying: No, Dr. Russo,
you know, didn't -- ignored facts or just picked the ones that he
thought were best.
That's actually not what happened at all. What happened was
Dr. Demars drew certain conclusions from the complaints of leg pain
and said, You know what, I think this is related to the surgical
hardware and not related to the back. Dr. Russo drew the opposite
conclusion and said, No, it's not related to the surgical hardware. It's
related to the back.
Every day cases go to trial where forensic experts disagree with
treating doctors and vice versa and those opinions are presented to
the jury. And here the Court has foreclosed that by simply saying,
Well, I don't -- I don't like Dr. Russo's opinion. It disagrees with the
treatment provider so I'm going to say it lacks facts.
It doesn't lack facts. He will testify on the offer of proof that he
has facts to support that opinion. He reviewed the Demars notes.
He reviewed the Demars declaration. And he drew a different
conclusion from her. He didn't ignore it. He just interpreted it
differently.
Thore had the opportunity to put Dr. Russo's testimony in the record. She
could have filed a declaration of Dr. Russo or attached his report in opposition to
Saunders's motion in limine to exclude Dr. Russo's opinion, which was filed on
July 24, 2017, months before trial began. Midtrial, the trial court ordered a
deposition of Dr. Russo. After reviewing the deposition and Dr. Russo's report, the
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No. 77826-9-1/12
court observed that Thore had not disclosed pretrial the doctor's report. The court
stated,
I earlier ruled that there was not a factual basis (thus no foundation)
for Dr. Russo to opine that Mr. Saunders'[s] posterior leg pain
predated the 2013 car accident at issue and thus was not caused by
the 2013 accident. That is, he cannot opine that Mr. Saunders had
a symptomatic pre existing [sic] spondylolisthesis prior to the
accident.
Based upon my review of the new deposition that I ordered, Dr.
Russo does not appear to have another opinion on cause that is
admissible (more probable than not). . . . That is not really a surprise
since I excluded his opinion. Therefore he may not give an opinion
on cause in trial.
Doctor's new opinion on recovery at Duvall [Physical Therapy (PT)]:
Finally, I have reviewed Exhibit 79 which is Doctor's report. While it
is not terribly organized (and therefore I looked carefully to try not to
miss anything), I see nothing that would indicate that Dr[.] Russo
believed or opined that Plaintiff's symptoms ha[ve] mostly or nearly
resolved at Duvall PT. In fact, my understanding from Dr[.] Russo's
report is the opposite. Therefore, this new opinion that Plaintiff's
symptoms had largely resolved at Duvall PT is excluded as it was
not disclosed. As can be seen by my ordering of the deposition, as
a possible remedy, I believe that all parties' evidence should be
allowed if otherwise admissible and I try to accommodate
disclosures. But here, it is now too late for plaintiff's doctors to
respond. Even disclosure on the first day of trial might have been
allowed. It was first disclosed at the deposition. The prejudice is too
great. Failure to disclose a new opinion after the rulings in limine is
deemed willful under the case law.
When Thore asked the court for it to allow an offer of proof on the excluded
testimony, the trial court stated:"Counsel, you had the opportunity. I have received
15 pages of emails. I've received -- you could have filed a declaration. There's
multiple ways for you to have made a record with Dr. Russo."
12
No. 77826-9-1/13
Thore argues that Dr. Russo's reliance on Saunders's medical records "fits
squarely within ER 703." She asserts that there was a factual basis, a proper
foundation, for Dr. Russo's opinion that Saunders's spondylolisthesis was
symptomatic before the 2013 accident. She points to medical records from
Saunders's visit to the Harborview Medical Center Pioneer Square Clinic. In a
note dated December 26, 2012, Dr. Demars wrote,
Patient here to complete paperwork for disability. . . . Right hip/leg
and right shoulder pain is dull with sharp exacerbations.
Exacerbated by staying in one position (sitting or standing too long).
Also experiences neuropathic pain (sharp and electric sensations)
that shoots down right hip but its triggers are unpredictable (occurs
on average once every 15-20min), this is relieved by changing
position and walking). Worst pain 8/10. Also experiences numbness
and subjective weakness in right leg. . . . He has full ROM [Range
of Motion] in his right hip, but right shoulder pain limits his ability to
lift his arm above his head.
Thore asserts that these records support Dr. Russo's opinion. And, Thore
argues that Dr. Russo reached a different conclusion than Dr. Demars, and that
the difference of opinions of Dr. Demars and Dr. Russo should have gone to the
jury.
In her declaration, Dr. Demars stated,
Having reviewed my notes and reflecting on my memory, I can
say that during the time I was providing care for Mr. Saunders, he
raised no concerns about back pain whatsoever. Nor did he provide
me with a history of back pain in referencing any time prior to his
visits with me.
I also understand that there may be some confusion as to
whether — at the time of my treatment of him — Mr. Saunders'[s] leg
complaints were anterior (front side) or posterior (back side). In
hindsight, perhaps I could have been more specific in my notes —
but I can say unequivocally that the hip/leg pains he was
experiencing in late 2012 and early 2013 were anterior (front side)
13
No. 77826-9-1/14
pains. Aside from my personal recollection, there are indications in
my notes that help me confirm my recollection.
1. Typically, a reference by me to hip pain reference to pain
emanating on the anterior or lateral leg.
2. If I had been referring to posterior pain, I assuredly would
have described it as buttock pain and expected reference to low back
pain — of which there was none. And if I had been concerned about
nerve root impingement (which could have caused posterior
hip/buttock and posterior leg pain), I would have. . . documented an
exam evaluating for spinal tenderness.
3. I specifically referenced Mr. Saunders'[s] "pain between
right hip and knee". This also tells me that the pain was anterior, and
not posterior. Had the pain been posterior, I would have described
it differently.
At his deposition, Dr. Russo testified that he concluded that Saunders's
condition was symptomatic prior to the accident because "the leg pain [Saunders]
had prior to your accident or after your accident was the same pain he'd been
having all along." This is not a disagreement of two forensic experts viewing a cold
medical record. This is a forensic expert disagreeing with the treating physician
about what she observed and recorded. It is not merely a different medical opinion
about the records, but a difference in facts on which the doctors relied. Dr.
Demars, the treating physician and author of the preaccident notes, is in a better
position to report the facts of what she observed in treating Saunders.
The trial court did not abuse its discretion in concluding that Russo's opinion
lacked the proper foundation.
B. Factual Dispute on Causation
Thore argues further that there was a factual dispute as to whether
Saunders's spondylolisthesis was symptomatic before the 2013 car accident. She
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No. 77826-9-1/15
asserts that the testimonies from Saunders's own doctors acknowledged a
disputed factual issue. She contends that, because of Saunders's inconsistent
medical history, the jury was entitled to determine whether it believed Dr. Russo's
interpretation of that medical history.
Thore points to Dr. Brown's statement,"[T]ypically car accidents don't cause
that type of thing to become symptomatic." She also points to another portion of
Dr. Brown's testimony:
Q. On a more-probable-than-not basis -- well, first of all, was that a -
- from the records you reviewed, was that a reasonable surgery to
conduct in 2017?
A. Yes. They had done an adequate decompression of L5-S1, and
now he's got leg pain again, and he's got stenosis at L4-5, that's
reasonable.
Q. And on a more-probable-than-not basis, would -- you used the
words "but for" -- but however you're comfortable with, was that
2017 surgery, would that have been related to the 2013 accident?
A. Yeah, I'm -- you know,the first surgery I'm pretty comfortable with,
really comfortable with. The other one, that's a little bit less strong.
But I think if you used more-probable-than-not, sure. It's more-
probable-than-not that the additional surgery at L4-5 was from the
car accident also, it's just not as not -- not as more-probable-than-
not as the L5-S1 in my opinion. But it still, I think, meets that
standard.
Q. And what is it that makes you reach that conclusion?
A. Well, I mean, he had some -- I think that the distribution of his pain,
he did have some distribution of pain before the car accident,
which was more in the L4-5-ish area. The records are pretty soft
on that. And if you read them carefully, which I did, it didn't really
seem like the kind of description you get for L4-5 radiculopathy or
nerve root. It seemed more like the kind of pain you'd get from a
peripheral nerve supplying the skin and stuff.
So just because of the fact that he had some anterior stuff from
his previous accident makes me just a little bit less strong on that
15
No. 77826-9-1/16
one than the L5-S1. The L5-S1 one was pretty clear to me that
wasn't there, he had an accident, started having all these
problems there. The other one just wasn't as clear to me. That's
all.
Q. But you still feel comfortable on a more-probable-than-not basis
that it was the accident?
A. 1 think if I just need, you know, 51 percent or more, I'm good with
that. No problem.
But, Dr. Brown's testimony on a more probable that not basis that the accident
caused the need for surgery does not support Thore's argument that the Sauder's
doctors had a factual dispute on preaccident symptoms.
Next, Thore argues that Dr. Brzusek "acknowledged that L5-S1 nerve pain
is not limited the back of the leg. L5 pain is also lateral, on the side of the leg."
Brzusek testified,
Pain is-- because of the distribution of the nerves, the spinal nerve
and they divide into various nerve roots, okay. The one you will
feel is L5. So L2 if I turn up the light to that, that just goes on at
L2 L3 L4 L5 S1. Same thing with your leg. I can almost tell you
which levels involved by the way you complain about your
pain. . . . L5 is the outside portion of your thigh and partially the
back of your thigh. And S1 is the back of your thigh, your butt,
goes down to your calf and then it goes to the outside of the foot.
S1 is the outside of the foot, L5 middle, L4 then goes up the front
of the leg already. So we can almost map all this stuff out.
Q. So with an L5 S1 spondylolisthesis, the pain would be felt on the,
essentially the back of the leg, right?
A. Essentially the back of the leg, a little bit lateral if you're dealing
with L5, so to the side of the leg a little bit. But most of it is going
to be back.. . . L5, S1 is back of the thigh, back of the calf, foot,
mostly of the lateral, the outside of the aspect of the foot.
But, Dr. Demars avowed that Saunders did not have pain in his back or the
back of his leg, symptoms associated with Saunders's grade 1, L5-S1
spondylolisthesis. Demars testified in her declaration that if Saunders had made
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No. 77826-9-1/17
posterior (buttock or back) complaints, she would have documented an
examination for spinal tenderness. Dr. Demars also stated in her declaration,
Furthermore, Mr. SaundersIs] neuropathic "electric" pain between
right hip and knee in combination with the lateral right leg numbness
noted on my exam from 12/21/2012 is more consistent with injury to
the lateral cutaneous nerve than from a nerve root. The fact that
these pains were affected by winter weather and changed in
barometric pressure implies that they were most likely related to the
femur fracture suffered in 2011 and the titanium rod placed in his
right leg. This is further supported by physical therapy's assessment
that patient's subjective weakness/functional impairment at the time
were most consistent with "rectus femoris strain with early hip
degenerative changes."
Demar's declaration explains the nerve pain Thore pointed to below, and continues
to highlight on appeal. Demars did not find that they were consistent with
symptomatic spondylolisthesis.
At the time the court granted the pretrial motion, Thore had not presented
any medical records or testimony disputing Dr. Demars's conclusions. Again, the
testimony is not in dispute as to preaccident symptoms.
Thore also contends that the court's reliance on Harris v. Drake' was
untenable. In granting Saunders's second motion in limine, the trial court ordered,
"It appearing that defendants can offer no substantial admissible evidence that
plaintiff had a low-back symptomatic pre-existing condition (as required by Harris
v. Drake), any reference or mention of a preexisting spinal condition is prohibited."
In Harris, Drake rear-ended Harris. 152 Wn.2d at 484. Harris injured his
back and shoulder in the accident. Id. Harris sued Drake. Id. At trial, Drake
admitted liability, and at the end of the evidence, the court directed a verdict for
1 152 Wn.2d 480, 99 P.3d 872(2004).
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Harris on causation and special damages. Id. at 485. On appeal, Drake argued
that the trial court erred in granting a directed verdict on the issue of causation. Id.
at 493. The court stated,
Even allowing for the possibility of a preexisting condition, the
defense failed to show that such condition was symptomatic prior to
the accident. When an accident lights up and makes active a
preexisting condition that was dormant and asymptomatic
immediately prior to the accident, the preexisting condition is not a
proximate cause of the resulting damages.
Id. at 494.
There was not a factual dispute among Saunders's experts as to his
preaccident symptoms. The trial court correctly found that Thore had presented
insufficient evidence disputing Dr. Demars's conclusion about Saunders's
preexisting condition. The trial court properly relied on Harris and did not abuse
its discretion in granting the motion to exclude evidence that the condition was
symptomatic prior to the accident. Therefore, the trial court did not err when it
instructed the jury accordingly.
II. Medical Expenses
Thore contends next that the trial court erred in granting Saunders's CR 50
motion for a judgment as a matter of law on Saunders's medical expenses through
his 2015 surgery.
Granting a motion for judgment as a matter of law is appropriate when,
viewing the evidence most favorable to the nonmoving party, the court can say, as
a matter of law, there is no substantial evidence or reasonable inference to sustain
a verdict for the nonmoving party. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29,
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No. 77826-9-1/19
948 P.2d 816 (1997). The court must draw all favorable inferences that may be
reasonably evinced in favor of the nonmoving party. Id. at 29-30. This court
reviews de novo a granted motion for judgment as a matter of law. Gomez v.
Sauerwein, 180 Wn.2d 610, 616, 331 P.3d 19(2014).
During the trial, Saunders moved for a directed verdict that his two surgeries
after the 2013 accident were due to the car accident, and not his L5-S1
spondylolisthesis. The trial court denied the motion regarding the 2017 surgery,
but granted the motion as to the 2015 surgery.
Regarding the 2015 surgery, Thore argued that, based on the evidence, a
reasonable jury could find that the 2015 surgery was not related to the car accident.
Thore argued that both Dr. Brown and Dr. Brzusek's opinions that the 2015 surgery
related to the car accident could be discounted, because in Saunders's medical
records, "there was no complaint of posterior leg pain until several weeks after the
accident." Thore asserted that this was outside of the time frame supported by
Saunders's own experts. Thore also argued that Saunders's experts testified that
trauma does not typically cause spondylolisthesis to become symptomatic.
Saunders responded that both doctors, as well as Dr. Russo, testified that they
would expect someone to have low back pain and/or pain down the back of your
leg within a few days or a few weeks.
On appeal, Thore references trial counsel's argument to claim that there is
evidence that Saunders's 2015 surgery was due to a preexisting condition, and not
accident related.
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No. 77826-9-1/20
Dr. Brzusek testified that the car accident aggravated a preexisting
asymptomatic spondylolisthesis. Dr. Brown also testified that the car accident
caused this preexisting condition to become symptomatic. Thore does not point
to substantial evidence or reasonable inferences to discount the doctors' opinions
that the 2015 surgery was due to the car accident.
The trial court did not err in granting the motion for a directed verdict.
III. Exclusion of Accident Evidence
Finally, Thore argues that the trial court erred in excluding her testimony
about the accident, as well as vehicle photographs and repair estimates.
Pretrial, Saunders moved to preclude Thore's testimony about the force of
the impact of the car accident. Saunders also moved to exclude Thore's
photographs showing damage to the parties' vehicles, as well as repair estimates.
The trial court granted Saunders's motion to exclude repair estimates and
testimony about the damage to the parties' vehicles. It stated, "They're simply not
relevant, because there's no way for Counsel to argue that a small or large amount
of property damage to a vehicle can be related to the physical injuries suffered by
a particular individual absent some expert testimony on that." It reserved ruling on
excluding Thore's testimony on the accident and the photographs. The court later
ruled that Thore could not testify "to the circumstances of the car accident." And,
it stated that the pictures were "not relevant for any particular issue in this case."
A lay witness may give an opinion, so long as it is (a) rationally based on
her perceptions,(b) helpful to the jury, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of rule 702. ER 701; State v. Kinard,
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No. 77826-9-1/21
39 Wn. App. 871, 874, 696 P.2d 603 (1985). The trial court is vested with wide
discretion under ER 701. Id.
Thore argues that the evidence that the court excluded was relevant to
determine Saunders's injuries as well as to assess his credibility. Thore further
contends that Saunders's testimony opened the door to the subject. She points to
where Saunders described the car accident as a "really heavy hit and then I was
off to the side of the road." He also testified, "I hit the door and my head hit the
window."
After the trial court restricted Thore's testimony about the accident, Thore's
counsel asked, "What about whether the vehicle was pushed to the side of the
road as a result of the impact, which was at issue and did I impeach Mr. Saunders
on that?" The trial court stated,
Mr. Saunders agreed with your impeachment. I think that issue is
over. He didn't remember and still doesn't remember, apparently,
whether he was pushed to the side of the road or they drove to the
side of the road. So he simply had no memory of -- or he agreed
with what you said.
The court determined that Thore's testimony as to the force of the impact of
the accident was not relevant to Saunders's injuries. It reasoned that Thore lacked I
a scientific basis to opine on the force of the impact. It concluded that property
damage estimates were also not relevant because, absent expert testimony, there
was no way for counsel to argue that the amount of car damage could be related
to the injuries suffered. Thore was not in the car with Saunders, so she would not
have firsthand knowledge of what happened to his body at the point of impact.
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No. 77826-9-1/22
And, Thore conceded that she did not anticipate being able to lay the proper
foundation for the repair estimates.
Under ER 701 and ER 702, Thore is not qualified to testify as to the force
of the impact, and how it relates to injuries sustained. The trial court did not abuse
its discretion in excluding Thore's testimony regarding the collision, the
photographs, and the repair estimates.
We affirm.
WE CONCUR:
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