Celeste Ryan, V. Jeff Timmerman

Filed
Washington State
Court of Appeals
Division Two

February 27, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
CELESTE RYAN, No. 57847-6-II

Appellant,

v.

JEFF TIMMERMAN AND JANE DOE UNPUBLISHED OPINION
TIMMERMAN, and the marital community
composed thereof; SILVERDALE
PLUMBING & HEATING, INC., a
Washington Corporation,

Respondents.

GLASGOW, C.J.—In 2002, Jeff Timmerman was driving a Silverdale Plumbing van when

he rear-ended a car where six-year-old Celeste Ryan was a passenger. Matthew Ryan,1 Ryan’s

father, was a chiropractor. He later diagnosed Ryan with dysautonomia, a nervous system disorder.

In late 2016, when she was 20, Ryan sued Timmerman and Silverdale Plumbing for negligence,

seeking about $12 million in damages for injuries she believed she incurred in the accident,

including the onset of her dysautonomia.

Ryan and Matthew repeatedly sought to directly contact the defendants after the defense

lawyer told them to stop, so the trial court ordered Ryan and her representatives to communicate

1
For clarity, we refer to Celeste Ryan by her surname and Matthew Ryan by his first name.
No. 57847-6-II

only with counsel. The trial court later excluded Matthew’s testimony entirely as a sanction for

continuing to try to contact the defendants.

The defendants sought partial summary judgment, and Ryan failed to timely provide any

sworn expert testimony to establish the accident caused her dysautonomia. The trial court granted

summary judgment, denied Ryan’s motion to exclude the defendants’ medical experts, and limited

Ryan’s claim for general damages to a three-month period after the accident. The trial court later

denied Ryan’s motion to subpoena the medical experts. A jury awarded Ryan $3,289, which was

offset by sanctions and attorney fees to result in a judgment for the defendants of nearly $9,000.

Ryan appeals. She argues that the trial court erred by ordering her and Matthew to stop

contacting the defendants directly and by excluding Matthew’s testimony as a sanction for

violating that order. She contends that the trial court erred by granting the partial summary

judgment motion, denying her motion to exclude the defendants’ medical experts, and limiting her

general damages. Next, she argues that the trial court erred by denying her motion to subpoena the

defense medical experts to testify at trial. And she insists that the administration of the trial violated

her due process and equal protection rights. Both parties seek attorney fees on appeal.

We affirm. We deny both parties’ requests for appellate attorney fees.

FACTS

I. BACKGROUND

In December 2002, Timmerman was driving a Silverdale Plumbing van when he rear-

ended a car where six-year-old Ryan was a passenger. In November 2016, when Ryan was 20, she

sued Timmerman and Silverdale Plumbing for negligence, seeking over $12 million in damages.

She asserted the accident gave her dysautonomia, a nervous system condition that causes

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lightheadedness and fainting. An insurance company attorney represented the defendants

(collectively referred to as Timmerman).

II. PRELIMINARY PROCEEDINGS

A. Motion to Prohibit Ryan and Her Representatives from Directly Contacting the Defendants

Matthew appeared uninvited at Timmerman’s house several times, speaking first with

Timmerman’s mother and then with his wife. Matthew said he was trying to reach Timmerman

directly and asserted that the insurance company lawyer was lying to the family. Timmerman and

his wife “found these visits unusual, concerning, and upsetting.” Clerk’s Papers (CP) at 31. The

defense lawyer sent letters to Ryan stating that his clients did not want Ryan to contact them and

that any settlement authority would come from the defendants’ insurer through defense counsel.

Insurance policies generally give the insurer control over settlement of a lawsuit. Arden v.

Forsberg & Umlauf, P.S., 193 Wn. App. 731, 752, 373 P.3d 320 (2016).

Timmerman sought an order prohibiting Ryan and “her representatives from having direct

communication with the defendants.” CP at 11. Timmerman specifically asked that the trial court

order Ryan to comply with RPC 4.2, which prohibits lawyers from contacting a represented

opposing party.

In response, Ryan explained she had repeatedly tried to set up settlement conferences to no

avail, and she insisted that she had the authority to settle with the defendants directly without

approval from the insurance company. She also stated that rules applicable to attorneys did not

apply to her and she intended to continue to try to contact the defendants despite their attorney’s

direction not to. Ryan also claimed that she did not ask her father to contact the defendants.

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The trial court granted the motion, telling Timmerman’s attorney that his clients could

instruct him to allow direct communication with Ryan but “they also have the right to have their

matter heard through counsel.” Verbatim Rep. of Proc. (VRP) (Nov. 17, 2017) at 3. And it was

“clear . . . that your clients don’t wish direct communication with the plaintiff.” Id. The trial court

stated that it could not prohibit Matthew from contacting the defendants in the order because he

was not a party. The order provided that Ryan “and any of her representatives shall comply with

RPC 4.2 and not have any direct or indirect contact [with] the Defendants in this matter. [Ryan]

shall direct all of her communications to the Defendants’ counsel of record.” CP at 752.

B. Motions for Partial Summary Judgment and to Exclude Defense Medical Experts

1. Arguments on summary judgment

Discovery closed in December 2017. In January 2018, Timmerman moved for partial

summary judgment. He requested dismissal of Ryan’s claims for general damages for

dysautonomia and all past medical bills over $3,289.

a. Timmerman’s medical evidence

Timmerman asserted that two defense medical experts who had conducted a CR 35

examination of Ryan in 2017, concluded she had neck and back strains from the accident, “which

have resolved.” CP at 69. The doctors agreed that Ryan was entitled to $3,289 in medical bills.

Thus, while Timmerman conceded that the accident caused minor injuries, he asserted that those

injuries had since resolved and that Ryan could not demonstrate a causal link between the accident

and her ongoing nervous system complaints.

The CR 35 exam report submitted to the trial court was written by an orthopedic surgeon

and a chiropractor and sworn under penalty of perjury. The report listed the records the doctors

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reviewed as well as the tests they conducted and the results and probable diagnoses. This included

a battery of neurological tests. A neurologist also reviewed Ryan’s medical records. All three

defense medical experts were certified as independent medical examiners by state or national

boards.

The report concluded that Ryan’s injuries from the accident consisted of “minor soft tissue

strains” that reached maximum medical improvement in March 2003. CP at 260. The doctors

concluded that Ryan’s current complaints were likely not related to the accident. They also

disputed whether she had dysautonomia at all. The CR 35 report concluded that there was no

permanent neck injury, and that some of Ryan’s complaints could be from a “benign” nerve

pinching condition in her elbows. CP at 261. The neurologist observed “very mild, probably

clinically insignificant degenerative changes” in several of Ryan’s spinal discs. CP at 330. Ryan’s

report of lightheadedness was not supported “by objective findings on vital sign testing, clinical

examination, or detailed autonomic [nervous system] testing.” CP at 327.

Timmerman also noted that in Matthew’s deposition, he declined to offer any opinion on

Ryan’s injuries or “exams and recovery and prognosis,” because he did not “have an active license

. . . to act in a medical capacity” and therefore could not give “a medical opinion,” including any

opinion on what treatment was reasonable as a result of the accident. CP at 68, 88.

Timmerman also submitted records from a neurologist Ryan visited in January 2017. That

neurologist reported that Ryan appeared to demonstrate “[o]rthostatic intolerance,” but he did not

diagnose her with a specific disease or disorder. CP at 92. At a later visit, the neurologist declined

to identify a causal link between the accident and Ryan’s complaints.

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No. 57847-6-II

b. Ryan’s medical evidence

In response, Ryan asserted that images of her spine showed a permanent injury and the

injury was causally linked to the accident. She cited to a “Medical Summary” Matthew produced

the day before his California chiropractic license expired. CP at 118.

The summary asserted that the accident caused Ryan “nervous system injuries” that

resulted in “central nervous system and autonomic nervous system abnormalities and

dysreflexia[].” CP at 122. The summary did not identify any testing that Matthew performed to

diagnose Ryan with nervous system problems or establish his qualifications for doing so as a

chiropractor. The summary was not signed under any oath or penalty of perjury.

Next, a radiologist who reviewed images of Ryan’s spine found mild changes to her spine

curvature and movement but no evidence of permanent ligament damage. And another

chiropractor who x-rayed Ryan’s spine in late 2016 found that some spinal discs had begun to

degenerate. The chiropractor did not indicate what might have caused the damage. None of the

medical records Ryan submitted were attached to declarations sworn under penalty of perjury. Nor

did she provide declarations attesting to the authenticity of those records.

The day before the summary judgment hearing, Ryan filed a surreply. She attached a sworn

declaration from Matthew asserting that he was Ryan’s treating physician and “a qualified expert

with specialized medical knowledge, training[,] and experience.” CP at 402.

Matthew stated that Ryan had permanent “spinal and neurological conditions received as

a direct and proximate result of the accident.” CP at 413. He stated that Ryan’s complaints were

common for people diagnosed with dysautonomia “due to the autonomic neurological/vascular

complexity of that condition.” CP at 409. He also stated that Ryan’s “neurological condition” was

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“verified by a reliable, reproducible testing method, and with unequivocal positive test result for

that condition.” CP at 411. He did not specify what the test was or which doctor performed it.

All of Matthew’s qualifications related to chiropractic work; he did not provide any proof

that he was qualified to diagnose or treat neurological or nervous system disorders. RCW

18.25.005(1) prescribes the limits of chiropractic practice, providing, “Chiropractic is the practice

of health care that deals with the diagnosis or analysis and care or treatment of the vertebral

subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders.” The

statute does not mention neurological or nervous system disorders.2

2. Hearing and trial court ruling

At the hearing, the trial court informed Ryan that it could not consider her surreply,

including Matthew’s declaration, “because it wasn’t filed timely.” VRP (Feb. 23, 2018) at 2; see

also CR 56(c), (f) (requiring responsive documents to be filed 11 days before a summary judgment

hearing but allowing continuances to further develop evidence). Ryan did not ask for a continuance

or extension of the discovery cutoff. The trial court explained that, to survive summary judgment,

Ryan needed to present a prima facie case of the elements of her claim. But Ryan had not produced

admissible evidence to support her claim that the accident caused her dysautonomia. In particular,

Matthew was not “an admissible expert witness unless he can give a medical opinion as it relates

to this claim.” VRP (Feb. 23, 2018) at 17. Thus, the trial court granted the motion for partial

summary judgment and dismissed all of Ryan’s claims for past medical bills over $3,289. Ryan

moved for reconsideration of the summary judgment ruling, and the trial court denied the motion.

2
Further, “unprofessional conduct” under the chapter regulating chiropractic practice “includes
failing to differentiate chiropractic care from any and all other methods of healing at all times.”
RCW 18.25.112(1).

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No. 57847-6-II

3. Arguments regarding defense experts

The same day that she filed her initial response to the summary judgment motion, Ryan

moved to exclude all of Timmerman’s medical expert opinions and testimony. Ryan argued that

the experts were biased and would mislead the jury. The trial court denied the motion. It explained

that Ryan was primarily raising credibility issues that were best addressed by cross-examining the

experts if called at trial.

4. Later proceedings related to summary judgment and monetary sanctions

Several days after the summary judgment hearing, Timmerman sent Ryan a CR 68 offer of

judgment for $10,300, which she did not accept. In addition, Ryan incurred several thousand

dollars in additional sanctions and attorney fees for delaying trial and for bringing a frivolous

motion for discretionary review.

C. Motion to Exclude Matthew’s Testimony

After the order prohibiting Ryan and her representatives from contacting the defendants,

Matthew tried several times to contact Silverdale Plumbing’s owner. In August 2019, Timmerman

moved to sanction Ryan for violating the court’s order.

The husband of Silverdale Plumbing’s owner filed a declaration stating that Matthew e-

mailed both the husband and his brother stating their attorney was being dishonest and encouraging

them to have the owner contact Matthew. After the motion for sanctions, Matthew contacted the

brother again, accusing the husband of committing perjury.

Timmerman moved to either exclude Matthew as a witness or dismiss the case entirely. He

argued that the sanctions in chapter 7.21 RCW did not apply and requested that the court use its

inherent authority to sanction instead. Timmerman reasoned that excluding Matthew from

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No. 57847-6-II

testifying was appropriate because he was “intimately involved” in the case and “repeatedly

attempted to improperly interject himself” in violation of the court’s order. CP at 731. And with

Ryan already owing thousands in sanctions and attorney fees, further monetary sanctions would

be an inadequate deterrent. Timmerman’s attorney contended that Matthew acted in bad faith,

trying to drive a wedge between the attorney and his clients.

Ryan insisted that Matthew was not acting as her representative and sought sanctions

against Timmerman’s attorney. She also contended that there was no bad faith because Matthew

had “no ulterior motive” except to warn the defendants they were “being defrauded.” VRP (Sept.

13, 2019) at 14, 18. She insisted she would not be deterred by additional sanctions, saying the court

could sanction her “a billion dollars.” CP at 837.

The trial court found the “intent of the message” was to reach Silverdale Plumbing’s owner,

which constituted trying to contact a defendant directly. VRP (Sept. 13, 2019) at 17. And because

the communications were intended to settle the case, Matthew was acting as Ryan’s representative

and issuing “veiled threats” that violated the prior court order. Id. at 25.

The trial court found that Ryan, through Matthew, violated the prior order in bad faith. It

found that the sanctions authorized by chapter 7.21 RCW did “not adequately apply under the

circumstances” and instead excluded Matthew from testifying. CP at 938.

D. Motion to Limit General Damages

In October 2019, Timmerman moved to limit Ryan’s claims for general damages to the

three months after the accident. Timmerman explained that based on the partial summary judgment

ruling, “no treatment after March 2003 was reasonable.” CP at 915. And Timmerman

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acknowledged that if his motion was granted he would not “call any medical experts or even

witnesses at trial.” CP at 916.

Ryan primarily argued that she should be permitted to cross-examine the medical experts.

She also asked the judge to recuse due to “the appearance of bias.” VRP (Oct. 11, 2019) at 6. The

judge stated that she saw “no basis for which to recuse” and pointed out that she had already made

several discretionary rulings, which prevented Ryan from disqualifying her under RCW

4.12.050(1)(a). Id. at 7. The trial court granted the motion to limit general damages because Ryan

failed to challenge the motion “on a legal basis” and did not offer opposing medical expert

testimony. Id.

E. Motion to Subpoena Defense Experts

Timmerman acknowledged that the defendants were liable for Ryan’s special damages,

specifically her reasonable medical bills incurred in the three months after the accidents in the

amount of $3,289. Having limited the scope of trial to determining Ryan’s general damages in the

three months after the accident, Timmerman no longer planned to call his medical experts to

testify. In November 2019, Ryan moved for a subpoena directing the doctors who conducted the

CR 35 exam to testify at trial. Because Ryan could not explain how the experts’ testimony was

relevant to the issues remaining for trial, the trial court denied subpoena.

III. TRIAL

Trial was set for March 2020 when the COVID-19 pandemic closures began. Trial

eventually occurred in December 2022. The delay was partially because the superior court

prioritized clearing the backlog of criminal cases once restrictions loosened enough to conduct

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trials again. Once trials resumed, Timmerman suggested a bench trial to speed the process but

Ryan refused.

Ryan was the only witness at trial. The sole issue was general damages between December

2002 and March 2003. In addition to her special damages in the amount of her medical bills, Ryan

sought $1,400,950 for pain and loss of enjoyment.

The jury awarded Ryan her $3,289 in medical bills and nothing in general damages. After

offsetting the prior monetary sanctions against Ryan, including statutory costs because the

judgment was less than Timmerman’s CR 68 offer, the trial court entered a judgment of roughly

$9,000 for Timmerman.

Ryan appeals.

ANALYSIS3

I. PROHIBITION ON DIRECTLY CONTACTING THE DEFENDANTS

A. Order to Refrain from Contacting Defendants

Ryan argues that the trial court erred by ordering her and her representatives to comply

with RPC 4.2 and cease trying to directly contact the defendants. We disagree.

RPC 4.2 requires lawyers representing clients to “not communicate about the subject of the

representation with a person the lawyer knows to be represented by another lawyer in the matter,

unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court

order.” Timmerman does not point to any authority stating that RPC 4.2 applies to parties who are

not attorneys. He relies on cases more generally stating that unrepresented nonlawyers are subject

3
Ryan argues that the trial court was biased against her and that we should therefore apply a de
novo standard of review to every issue. But after a careful review of the record, we disagree with
the assertion that the trial court was biased against Ryan.

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to the same substantive and procedural laws as lawyers, but none of those cases has held that an

unrepresented nonlawyer is subject to the RPCs. See In re Marriage of Wherley, 34 Wn. App. 344,

349, 661 P.2d 155 (1983); Bly v. Henry, 28 Wn. App. 469, 471, 624 P.2d 717 (1980). Nevertheless,

the trial court has broad discretion to make trial management decisions. State v. Gorman-Lykken,

9 Wn. App. 2d 687, 691, 446 P.3d 694 (2019).

Here, Timmerman’s attorney explained to Ryan that only the insurance company had

authority to settle with her, but the Ryans continued to try to reach the defendants by showing up

at their homes and contacting their relatives to try to settle the case. See Arden, 193 Wn. App. at

752 (explaining that the insurer, not the insured, typically has authority to settle). Thus, Ryan knew

that her attempts to directly contact the defendants would not have any substantive effect on the

outcome of the case. Moreover, the defendants expressly told the court that they wanted Ryan to

communicate only with counsel. Ryan suggests that the trial court could not prohibit contact

between the parties unless Timmerman sought a no contact order, but given the trial court’s broad

authority to manage the cases before it, the court also had discretion to enter an order, limited to

the time when litigation was ongoing, preventing unwanted contact.

While the RPCs do not inherently apply to nonlawyers, the trial court has discretion to

make trial management decisions including preventing harassment of the parties. Importantly, the

trial court acknowledged that the parties could talk to each other if they wanted to, but here, the

defendants clearly did not want to be contacted. As such, the trial court was not necessarily

applying RPC 4.2, but was instead ordering Ryan and Matthew to follow the parameters of the

rule due to their prior actions, even though they would not normally be subject to the rule. Thus,

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we hold that the trial court did not abuse its discretion by ordering Ryan and her representatives to

comply with in RPC 4.2 and contact the defendants only through counsel.

B. Sanctions for Violating Order

Ryan next argues that the trial court erred by sanctioning her for her father’s conduct. She

reasons that Matthew was not her representative because he was not acting as her legal

representative or guardian. She also insists that the husband of Silverdale Plumbing’s owner was

not a party to the case, so contact with him did not violate the order. And Ryan argues that the trial

court should have sanctioned Timmerman as punishment for filing the sanctions motion. We

disagree.

1. Cases and statutes governing sanctions

We review a trial court’s order imposing sanctions for abuse of discretion. Moreman v.

Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). “An abuse of discretion is present only if there

is a clear showing that the exercise of discretion was manifestly unreasonable, based on untenable

grounds, or based on untenable reasons.” Id.

There are statutory restrictions that apply when a contempt sanction is imposed. See RCW

7.21.030(2), .040(2). But separate from sanctions under the contempt statute, a trial court may

“fashion and impose appropriate sanctions under its inherent authority to control litigation.” In re

Firestorm 1991, 129 Wn.2d 130, 139, 916 P.2d 411 (1996). The court’s inherent power to sanction

is vested in the court to ensure it can dispose of cases in an orderly and expeditious manner. State

v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058 (2000). A court has “inherent authority to sanction

lawyers for improper conduct during the course of litigation” if it finds the conduct was in bad

faith. State v. Merrill, 183 Wn. App. 749, 755, 335 P.3d 444 (2014). And a court may sanction a

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pro se litigant as it would an attorney for their litigation conduct. See, e.g., In re Recall of Lindquist,

172 Wn.2d 120, 136, 258 P.3d 9 (2011). Bad faith conduct includes that which delays or disrupts

litigation. S.H., 102 Wn. App. at 475. “Sanctions may be appropriate if an act affects ‘the integrity

of the court and, [if] left unchecked, would encourage future abuses.’” Id. (alteration in original)

(quoting Gonzales v. Surgidev, 120 N.M. 151, 899 P.2d 594, 600 (1995)).

For example, in Merrill, a defense attorney contacted victims directly to discuss the plea

agreement despite knowing that the victims wished to communicate only with a victim advocate

present. 183 Wn. App. at 752. The attorney contacted the victims again after the State informed

him that it would pursue sanctions for the first contact. Id. at 752-53. Division Three affirmed the

trial court’s finding that the second contact was in bad faith, because that contact was made

“despite the pending motion for sanctions for the very same conduct,” justifying sanctions. Id. at

756.

2. The sanction in this case

Here, the trial court’s order directed that Ryan and “her representatives shall comply with

RPC 4.2 and not have any direct or indirect contact with the Defendants” and “shall direct all of

her communications to the Defendants’ counsel.” CP at 752. After the order, Matthew tried several

times to contact Silverdale Plumbing’s owner through her husband and brother-in-law.

The trial court found that Ryan and Matthew violated the order prohibiting contact in bad

faith. The trial court found that the communications were intended to settle the case and the

messages were “veiled threats.” VRP (Sept. 13, 2019) at 25. It also found that the sanctions

authorized by chapter 7.21 RCW did “not adequately apply under the circumstances” and therefore

excluded Matthew from testifying rather than any remedial sanction. CP at 938.

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It was not untenable to construe the prohibition against indirect contact with the defendants

to include the husband and brother-in-law of Silverdale Plumbing’s owner when the contact was

clearly intended to reach the owner. Nor was it unreasonable to find that Matthew acted as Ryan’s

representative when he encouraged the opposing party to engage in settlement negotiations, find a

different lawyer, and amend filings. Thus, there was substantial evidence to support the conclusion

that Matthew and Ryan violated the court’s prior order in bad faith. There was also substantial

evidence to support the finding that chapter 7.21 RCW sanctions were insufficient. Ryan and

Matthew repeatedly operated under their own interpretation of the law, despite explanations and

court orders to the contrary, and they maintained throughout proceedings that they did not have to

play by the same rules as the attorneys they faced.

We hold that the trial court did not abuse its discretion by excluding Matthew’s testimony

as a sanction for violating the court’s order prohibiting contact with the defendants. And the trial

court did not err by declining to sanction Timmerman for filing a meritorious sanctions motion.

II. PARTIAL SUMMARY JUDGMENT

Next, Ryan argues that she produced evidence of a genuine issue of material fact regarding

a causal link between the accident and her dysautonomia. Specifically, she asserts that the

“summary report” Matthew produced, which diagnosed her with dysautonomia and stated the

condition was caused by the accident, was sufficient to create a genuine issue of material fact. Br.

of Appellant at 29. Ryan argues the summary was admissible even though it was not a sworn

statement, relying in part on the business records exception to the rule against hearsay. She also

reasons that her injury was not beyond a lay person’s knowledge, so she did not need expert

testimony to establish its cause. We disagree.

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No. 57847-6-II

A. Summary Judgment and Complex Medical Claims

We review a summary judgment decision de novo, engaging in the same inquiry as the trial

court. Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774

(2004). A defendant is entitled to summary judgment if the plaintiff fails to make a prima facie

showing of an essential element of their claim. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225,

770 P.2d 182 (1989). “A party may not rely on mere allegations, denials, opinions, or conclusory

statements.” Int’l Ultimate, 122 Wn. App. at 744. Affidavits opposing summary judgment must be

made on personal knowledge, set forth admissible evidence, and “show affirmatively that the

affiant is competent to testify to the matters stated therein.” CR 56(e). And a “court may not

consider inadmissible evidence when ruling on a motion for summary judgment.” King County

Fire Prot. Dists. No. 16, No. 36 & No. 40 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872

P.2d 516 (1994). Thus, under ER 901, documents attached to declarations must be authenticated.

Int’l Ultimate, 122 Wn. App. at 745-46.

A plaintiff suing for negligence must demonstrate the existence of a duty, a breach of that

duty, a resulting injury, and that the breach proximately caused the injury. Ranger Ins. Co. v. Pierce

County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). “If any of these elements cannot be met as a

matter of law, summary judgment for the defendant is proper.” Id. at 553.

“‘In general, expert testimony is required when an essential element in the case is best

established by an opinion which is beyond the expertise of a layperson.’” Rinehold v. Renne, 198

Wn.2d 81, 92, 492 P.3d 154 (2021) (internal quotation marks omitted) (quoting Berger v.

Sonneland, 144 Wn.2d 91, 110, 26 P.3d 257 (2001). “Medical facts in particular must be proven

by expert testimony unless” a layperson can observe and describe them without medical training.

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Harris v. Robert C. Groth, M D, Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983); see L.M. by &

through Dussault v. Hamilton, 193 Wn.2d 113, 137, 436 P.3d 803 (2019). Thus, expert testimony

is generally necessary to establish “most aspects of causation” in personal injury cases involving

“obscure medical factors.” Harris, 99 Wn.2d at 449; Riggins v. Bechtel Power Corp., 44 Wn. App.

244, 254, 722 P.2d 819 (1986). “[M]edical testimony must be based on the facts of the case and

not on speculation or conjecture.” Fabrique v. Choice Hotels Int’l, Inc., 144 Wn. App. 675, 687,

183 P.3d 1118 (2008).

Finally, an unrepresented litigant “is held to the same rules of procedural and substantive

law as an attorney,” including deadlines. In re Decertification of Martin, 154 Wn. App. 252, 265,

223 P.3d 1221 (2009).

B. Partial Summary Judgment in This Case

To begin, as a nervous system condition that required neurological testing to diagnose,

dysautonomia was certainly beyond a lay person’s expertise. Therefore, medical testimony was

necessary to establish both injury and causation. Rinehold, 198 Wn.2d at 92.

Timmerman produced a CR 35 medial report and a separate neurologist report that disputed

the existence of a causal link between Ryan’s complaints and the accident. The experts also

questioned whether Ryan actually had dysautonomia because they could not find evidence of a

permanent neck injury and they could not make objective findings that would support her physical

complaints. And when asked, Ryan’s neurologist refused to identify a causal link between the

accident and Ryan’s complaints.

The only timely evidence of a causal link between the accident and any long-term injury

was the “Medical Summary” Matthew produced in 2016, 14 years after the accident. CP at 118.

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The medical summary was not sworn under oath and Ryan did not timely provide any evidence of

authentication. Importantly, Matthew refused to offer expert opinions during his deposition

because he was not licensed. Ryan produced no other timely evidence that the accident caused her

condition.

Not until the day before the summary judgment hearing, after the discovery cutoff and the

deadline for submitting responsive evidence, did Ryan file a surreply with Matthew’s sworn

declaration asserting that the accident caused Ryan’s condition. At the hearing, Ryan stated that

she did not know that medical testimony needed to be sworn under oath and assumed that her

medical records were automatically admissible. She did not have another explanation for why she

was late filing the surreply and Matthew’s declaration.

Responsive evidence is due 11 days before a summary judgment hearing under CR 56(c).

See also KCLCR 7(b)(1)(A). Ryan did not seek a continuance or ask to reopen discovery to gather

more evidence under CR 56(f). Setting aside Ryan’s late materials, the trial court concluded that

Ryan had not produced admissible evidence to support her claim because she lacked sworn expert

testimony to support a causal link between the accident and her complaints.

Further, the timely summary from Matthew asserting a causal link between the accident

and Ryan’s dysautonomia, was not authenticated by any sworn statement. Int’l Ultimate, 122 Wn.

App. at 745-46. Nor did the summary explain how Matthew was qualified to testify on the cause

of neurological symptoms. And Ryan’s medical records were not automatically admissible under

the business records exception to hearsay, because even “routine records created in the normal

course of business may be inadmissible if they contain conclusions or opinions based on the

preparer’s special degree of skill or discretion.” In re Welfare of M.R., 200 Wn.2d 363, 380, 518

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P.3d 214 (2022). Thus, the only admissible medical expert evidence before the trial court at

summary judgment was Timmerman’s CR 35 report challenging both the injury and causation

elements of Ryan’s negligence claim.

The trial court did not err by concluding that Ryan failed to make a prima facie showing of

an essential element of her claim, causation. The trial court properly dismissed of Ryan’s claims

related to dysautonomia and her claims for past medical bills beyond $3,289.00, the amount she

incurred in the three months after the accident. We affirm the order granting partial summary

judgment.

III. MOTION TO EXCLUDE DEFENSE MEDICAL EXPERTS

CR 35(a)(1) allows a party to seek “a physical examination by a physician” when the

opposing party’s “physical condition . . . is in controversy,” resulting in a report. Ryan argues that

the trial court abused its discretion by denying her motion to exclude Timmerman’s medical

experts and their CR 35 report. She believes that the experts violated their professional licenses

during the CR 35 exam because their conclusions were “pre-meditated” and “fraudulent.” Br. of

Appellant at 44. We disagree.

“We review a trial court’s decision to admit or exclude evidence for abuse of discretion.”

City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). A trial court abuses its discretion

when it bases its decision on untenable grounds or reasons. Id.

ER 702 allows the admission of expert testimony and reports if “specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert

testimony is generally admissible if the expert is qualified, they rely “on generally accepted

theories in the scientific community,” and “the testimony would be helpful to the trier of fact.”

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Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014). We will not disturb a

trial court’s ruling if the basis for admitting the evidence is fairly debatable. Id. A party claiming

unfair bias “must produce sufficient evidence demonstrating bias . . . mere speculation is not

enough.” Magula v. Dep’t of Lab. & Indus., 116 Wn. App. 966, 972, 69 P.3d 354 (2003).

In this case, the defense medical experts concluded that most of Ryan’s physical complaints

were not related to the accident. Their report was made under oath, explained the tests they

conducted, and concluded that Ryan’s injuries from the accident consisted of minor soft tissue

strains that reached maximum medical improvement in March 2003.

Ryan produced no evidence that the experts were not qualified, that they were using invalid

theories or methods, or that their conclusions were not relevant. Johnston-Forbes, 181 Wn.2d at

352. Except for Matthew’s untimely declaration, which the trial court declined to consider, Ryan

relied entirely on her own assertions that the experts deviated from a reliable methodology

generally accepted by the relevant scientific community.

The trial court did not abuse its discretion by concluding that Ryan was challenging the

experts’ credibility, not the admissibility of their testimony or reports. The trial court did not err

by denying the motion to exclude the experts. Ryan also contends the trial court improperly ruled

on her motion after deciding the summary judgment motion. We discern no prejudice from the

order in which the court ruled on motions.

IV. MOTION TO LIMIT GENERAL DAMAGES

Next, Ryan argues that the trial court improperly weighed the evidence when it granted

Timmerman’s motion to limit general damages to the three months after the accident. We disagree.

The trial court’s ruling on partial summary judgment effectively limited Ryan’s claim for general

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damages to the three months after the accident. Because the trial court did not err in granting partial

summary judgment, the order limiting Ryan’s claim to the time period delineated by that summary

judgment ruling was likewise proper.4 We affirm the order limiting Ryan’s general damages.

V. MOTION TO SUBPOENA DEFENSE MEDICAL EXPERTS

Next, Ryan argues that the trial court erred by denying her motion to subpoena

Timmerman’s medical experts after Timmerman decided not to call those experts at trial. We

disagree.

The trial court ruled that the defense medical experts were not relevant to the remaining

issues at trial. The partial summary judgment ruling was proper, so the trial court was correct to

conclude that any testimony about Ryan’s condition at the time of the CR 35 examination would

have been outside the scope of issues on trial. The jury did not hear any testimony or receive any

evidence about the CR 35 examination, so impeaching the experts about the exam would not have

yielded any probative evidence regarding any issue that was on trial.

We hold that the trial court did not err by denying Ryan’s motion to subpoena

Timmerman’s medical experts because their testimony was not relevant to the issue on trial.

VI. TRIAL ADMINISTRATION

Ryan argues that the trial court violated her rights under article I, section 10 of the

Washington Constitution by repeatedly continuing the trial. She asserts that the trial judge should

have recused to let another judge conduct the trial sooner. We disagree.

4
Ryan then contends that the trial court should have sent the case to arbitration rather than allowing
it to proceed to trial on such limited issues. But the record shows Ryan resisted when Timmerman
sought to have the case sent to arbitration, so the invited error doctrine prevents our review of this
contention. See In re Marriage of Lesinski & Mienko, 21 Wn. App. 2d 501, 510, 506 P.3d 1277
(2022).

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Article I, section 10 provides, “Justice in all cases shall be administered openly, and

without unnecessary delay.” (emphasis added). However, under CrR 3.3(a)(2), “[c]riminal trials

shall take precedence over civil trials.” Ryan herself requested several continuances, including one

that resulted in her paying several thousand dollars of fees to Timmerman’s expert witnesses. She

did not specifically identify objectionable continuance orders in her notice of appeal. At least some

of the delays were due to court closures because of the COVID-19 pandemic, and then from

clearing the resulting backlog of criminal trials. And Ryan cites no authority giving civil plaintiffs

a right to a speedy trial comparable to that afforded criminal defendants. Finally, Ryan does not

show how transferring the case to a different judge would have expedited the trial. We reject this

constitutional argument.

Ryan also argues that the entire Washington trial system awards attorneys “special

privileges, which prejudice the self-represented litigant” in violation of article I, section 12. Br. of

Appellant at 64. She argues that attorneys are “held in higher esteem by the courts,” receive

“unfettered access” to the court record, have a subpoena power that unrepresented litigants do not,

and have access to an electronic filing system that unrepresented litigants do not. Id. at 64-65.

Article I, section 12 provides, “No law shall be passed granting to any citizen, class of

citizens, or corporation other than municipal, privileges or immunities which upon the same terms

shall not equally belong to all citizens, or corporations.” A privileges and immunities clause claim

first requires a legislative classification. Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389, 411

(9th Cir. 2015). The fact that certain court systems and procedures may be more familiar to

attorneys than to untrained, unrepresented litigants, does not constitute a legislative classification,

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and Ryan has failed to identify a particular legislative classification that creates the disparity she

complains about. We reject this constitutional argument as well.

ATTORNEY FEES

Both parties seek attorney fees on appeal. Ryan does not prevail on any issue. We deny her

request for fees. Timmerman requests attorney fees under RAP 18.9(a) as a sanction for a frivolous

appeal. Although she does not prevail, Ryan’s appeal was not frivolous. We deny Timmerman’s

request for fees on appeal.

CONCLUSION

We affirm. We deny both parties’ requests for appellate attorney fees.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Glasgow, C.J.
We concur:

Cruser, J.

Veljacic, J.

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