DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 23638-2-III
Title of Case: Theresa Carroll v. Allan Maixner, et ux
File Date: 02/28/2006
SOURCE OF APPEAL
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Appeal from Superior Court of Spokane County
Docket No: 03-2-03724-3
Judgment or order under review
Date filed: 11/17/2004
Judge signing: Hon. Richard J Schroeder
JUDGES
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Authored by Kenneth H. Kato
Concurring: Dennis J. Sweeney
Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Curran Christopher Dempsey
Aaron L Lowe & Assoc. P.S.
1708 W Mission Ave
Spokane, WA 99201-2759
Counsel for Respondent(s)
Peter Joseph Johnson
Johnson Law group
804 W Boone Ave
Spokane, WA 99201-2502
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THERESA CARROLL, individually, ) No. 23638-2-III
)
Appellant, )
)
v. )
) Division Three
ALLAN MAIXNER, and JANE DOE )
MAIXNER, husband and wife and )
the marital community comprised )
thereof, )
)
Respondents. ) UNPUBLISHED OPINION
KATO, C.J.--Theresa Carroll and Allan Maixner were involved in a car
accident. Ms. Carroll sued Mr. Maixner. The jury returned a defense
verdict. Claiming the court erred by admitting certain evidence,
improperly instructing the jury, and denying her motion for mistrial, Ms.
Carroll appeals. We affirm.
On August 10, 2001, Mr. Maixner rear-ended Ms. Carroll when her
vehicle was stopped. He was driving at low speed. Ms. Carroll complained
of neck and back pain and was treated at a hospital.
Ms. Carroll sued Mr. Maixner for damages. She claimed she had
incurred $9,000 in medical bills since the accident. Mr. Maixner admitted
fault, but denied
she suffered any damages.
Mr. Maixner called William H. Skelton, Jr., a forensic engineer and
accident reconstructionist, as an expert witness. Mr. Skelton relied on
many materials provided to him, including photographs. He concluded Mr.
Maixner had been going about one mile per hour when he struck Ms. Carroll's
car. He also opined the damage to her vehicle had been caused by another
accident.
Ms. Carroll called Dr. Mark Johnson, who testified her medical bills
and injuries were related to the accident. He also said Ms. Carroll had
suffered from low back pain for many years and had limited motion in her
lumbar spine prior to the accident. The doctor conceded this degenerative
condition may have been the cause of the pain and discomfort she attributed
to the accident.
The jury returned a verdict for the defense. This appeal follows.
Ms. Carroll claims the court erred by not sanctioning Mr. Maixner for
discovery violations. On July 19, 2003, Ms. Carroll served Mr. Maixner
with interrogatories and requests for production. He identified Mr.
Skelton as an expert witness and provided several documents and
photographs.
During his testimony, Mr. Skelton referred to undisclosed photographs
of Mr. Maixner's vehicle. The photographs, taken by Mr. Maixner's insurer,
had not been produced during discovery or listed as a trial exhibit.
Ms. Carroll moved to exclude Mr. Skelton's testimony because of the
undisclosed photographs. Counsel for Mr. Maixner stated she was unaware of
the photographs, as she had taken the case over from another attorney.
Ms. Carroll also moved to exclude his testimony because he was not
qualified as an expert and did not testify on a 'more probable than not'
basis.
The court denied the motion to exclude all of Mr. Skelton's testimony.
But it did instruct the jury to disregard the testimony based upon the
undisclosed photographs. Ms. Carroll claims the sanction was not severe
enough.
Whether to admit or exclude expert testimony is within the trial court's
discretion. Stevens v. Gordon, 118 Wn. App. 43, 51, 74 P.3d 653 (2003).
A court abuses its discretion when no reasonable person would take the
position it adopted. Id.
Ms. Carroll argues the court should have excluded the testimony
because Mr. Skelton was not properly qualified as an expert. The
admissibility of expert testimony is governed by ER 702:
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 in the form of an opinion or
otherwise.
This involves a two-step inquiry--whether the witness qualifies as an
expert and whether the expert testimony would be helpful to the trier of
fact. Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282 (1995); see also 5B
Karl B. Tegland, Washington Practice, Evidence Law and Practice sec. 702.1,
at 31 (4th ed. 1999). The evidence presented established both steps of
this inquiry.
Ms. Carroll also claims the court erred because the expert did not
testify on a 'more probable than not' basis. Generally, expert medical or
psychological opinion testimony regarding causation of injury is not
admissible unless the expert holds his opinion with reasonable medical or
psychological certainty. State v. Martin, 14 Wn. App. 74, 76-77, 538 P.2d
873 (1975), review denied, 86 Wn.2d 1009 (1976); see also 5B Tegland,
supra, sec. 702.30, at 99-100. A reasonable degree of certainty is
established if the expert can testify his conclusion is 'more probable than
not.' State v. Terry, 10 Wn. App. 874, 884, 520 P.2d 1397 (1974); see 5B
Tegland, supra, sec. 702.30, at 99. This rule, however, has been relaxed
in recent years. 5B Tegland, sec. 702.30, supra, at 100-01.
Mr. Skelton, however, was not giving medical testimony. The 'more
probable than not' standard does not apply. The court properly qualified
him as an expert.
Ms. Carroll claims the court erred by not excluding the expert's
testimony because Mr. Maixner violated discovery rules when he and his
counsel willfully withheld photographs of his vehicle taken after the
accident. It is undisputed these photographs existed and were not given to
Ms. Carroll.
The court may impose sanctions for discovery violations under CR 26(b). In
re Firestorm 1991, 129 Wn.2d 130, 139, 916 P.2d 411 (1996). But the
Sexclusion of testimony is an extreme sanction.' In re Estate of Foster,
55 Wn. App. 545, 548, 779 P.2d 272 (1989), review denied, 114 Wn.2d 1004
(1990). It is an abuse of discretion to exclude testimony without a
showing of (1) intentional nondisclosure, (2) willful violation of a court
order, or (3) other unconscionable conduct. Id.
Ms. Carroll contends the failure to disclose the photographs was
intentional. The court found it was not. Counsel for Mr. Maixner told the
court she was unaware the particular photographs existed because she had
taken the case over from someone else. Other photographs were disclosed.
The failure to disclose photographs unknown to counsel was not intentional
in these circumstances. The exclusion of all the expert's testimony would
have been improper.
The court did exclude a portion of Mr. Skelton's testimony as a sanction
for the failure to disclose the photographs. 'When imposing a sanction,
the court must consider the least severe sanction that will accomplish the
purpose to be served by the imposition of the sanction--but not so minimal
that it undermines the purpose of discovery.' Carlson, 116 Wn. App. at
737. 'The purpose of the sanction is to deter, punish, compensate,
educate, and ensure the wrongdoer does not profit from the discovery
violation.' Id. The court excluded the portion of the testimony relating
to the undisclosed photographs. This was the least severe sanction
available that accomplished the purpose of sanctions. The court did not
abuse its discretion.
Ms. Carroll also claims Mr. Maixner violated the court's order in limine
and this too required that the testimony be excluded. Mr. Maixner did
inadvertently violate the order in limine. As the exclusion of all the
expert's testimony is an extreme sanction unwarranted here, the court's
decision to exclude only portions of the testimony relating to the material
withheld was appropriate.
Ms. Carroll claims Mr. Maixner's counsel misled the trial court by
initially indicating the photographs had been disclosed. The record shows
counsel was confused on which pictures Mr. Skelton was referring to during
his testimony. Counsel first informed the court the photographs were
included in the ER 904 list. Then it was mentioned who took the
photographs and Ms. Carroll's counsel requested a side bar. Thereafter,
the evidence was excluded. Mr. Maixner's counsel did not intentionally
mislead the court.
Ms. Carroll next claims the court improperly instructed the jury. We
review jury instructions de novo, looking at the instructions as a whole to
determine whether a trial court's refusal to give an instruction
constitutes reversible error. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d
1265, 22 P.3d 791 (2000); Hall v. Sacred Heart Med. Ctr., 100 Wn. App. 53,
61, 995 P.2d 621, review denied, 141 Wn.2d 1022 (2000). Jury instructions
are sufficient if they allow each party to argue its theory of the case, do
not mislead the jury, and when taken together, properly inform the jury of
the applicable law. Cox, 141 Wn.2d at 442.
The first instruction Ms. Carroll challenges deals with the burden of
proof:
The plaintiff has the burden of proving each of the following
propositions:
First, that the plaintiff was injured;
Second, that the negligence of Defendant was a proximate cause of the
injury to the plaintiff.
If you find from your consideration of all the evidence that each of
these propositions has been proved, your verdict should be for the
plaintiff. On the other hand, if any of these propositions has not been
proved, your verdict should be for the Defendant.
CP at 73. Ms. Carroll argues the evidence did not support the giving of
this instruction.
She contends that because she was the only party to call a medical expert,
Mr. Maixner thus presented no evidence to contradict her theory that the
accident caused her injuries. We disagree. Mr. Maixner did not call his
own medical expert witness to contradict the testimony of Ms. Carroll's
physician because her doctor's testimony on cross examination supported the
theory that something other than the accident caused her injuries. Dr.
Johnson acknowledged Ms. Carroll had suffered from low back pain for many
years and conceded this condition could be the cause of the pain she
attributed to the accident.
Mr. Maixner's theory was the accident was so minor it could not have been
the cause of Ms. Carroll's injuries. He presented evidence the accident
occurred when he was going between one and three miles per hour. Claiming
her injuries were the result of her prior back condition, he was
accordingly entitled to have the jury instructed that Ms. Carroll had the
burden to prove her injuries were proximately caused by his negligence.
Ms. Carroll nonetheless argues that because Mr. Maixner stipulated the
medical treatment she received was reasonable and necessary, the
instruction was improper. Ms. Carroll references what took place during
side bar, but the side bar is not part of the record. The court does
mention this side bar during the discussion of jury instructions,
indicating Mr. Maixner stipulated the charges for the services Ms. Carroll
received were reasonable. But nothing reflects a stipulation that the
services were necessary or related to the accident. The court properly
instructed the jury.
Ms. Carroll claims the court erroneously gave this proximate cause
instruction:
The term 'proximate cause' means a cause which in a direct sequence,
unbroken by any new independent cause, produces the injury or event
complained of and without which such injury or event would not have
happened.
CP at 76. She argues the instruction was not supported by the evidence
because there was no evidence of a new independent cause.
This instruction is the definition of proximate cause. Petersen v. State,
100 Wn.2d 421, 435-36, 671 P.2d 230 (1983); see also 6 Washington Pattern
Jury Instructions: Civil 15.01, at 181 (5th ed. 2005). Whether the
accident was the proximate cause of Ms. Carroll's injuries was the main
issue. Mr. Maixner presented evidence to suggest something other than the
accident caused her injuries. Whether this evidence was credible was for
the jury to decide. The evidence presented supported the court's giving
this proximate cause instruction.
Ms. Carroll contends the court erred by denying her motion for mistrial.
She claims the defense verdict was outside the range of evidence and she
was therefore entitled to a new trial. We review the denial of a mistrial
motion for abuse of discretion. Kimball v. Otis Elevator Co., 89 Wn. App.
169, 178, 947 P.2d 1275 (1997). 'Trial courts have broad discretionary
powers in conducting a trial and dealing with irregularities that arise.'
Id. A trial court should grant a mistrial only when nothing but a new
trial can remedy the error. Id.
Ms. Carroll argues the defense verdict was outside the evidence presented
at trial. She claims the evidence established that her injuries were
caused by the accident. Determination of damages is within the jury's
province. Courts are reluctant to interfere with its determination on
damages if fairly made. Palmer v. Jensen, 132 Wn.2d 193, 198, 937 P.2d 597
(1997).
Ms. Carroll's assertion that the evidence is contrary to the defense
verdict is unsupported by the record. Mr. Maixner discredited Dr.
Johnson's testimony on cross examination. Mr. Skelton testified the
damages to Ms. Carroll's car were not consistent with the accident. This
evidence was sufficient for the jury to conclude Mr. Maixner did not cause
her injuries.
Ms. Carroll likens her case to Palmer, where the court noted there was no
evidence to refute the plaintiff's medical opinions. Palmer, 132 Wn.2d at
196. Here, however, Mr. Maixner used Ms. Carroll's own doctor to discredit
his opinion that the accident caused her injuries. Palmer is
distinguishable.
There was evidence Ms. Carroll was injured in the accident. There was also
evidence her injuries were not caused by the accident. Which evidence to
believe or disbelieve was properly left to the jury. The defense verdict
was consistent with the evidence at trial. The court did not err by
denying the motion for mistrial.
Ms. Carroll requests attorney fees and costs pursuant to RAP 14.1 and RAP
18.1. But she makes no argument as to why attorney fees under RAP 18.1 are
proper. RAP 18.1(b) requires a party to devote a section of its brief to
the request for fees and requires more than a simple request for attorney
fees on appeal. Wilson Court Ltd. P'ship v. Toni Maroni's, Inc., 134 Wn.2d
692, 710 n.4, 952 P.2d 590 (1998). Moreover, she is not the prevailing
party so an award of fees under RAP 18.1 is unwarranted in any event.
Mr. Maixner, the prevailing party, is entitled to an award of statutory
attorney fees and costs pursuant to RAP 14.1
Affirmed.
A majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.
Kato, C.J.
WE CONCUR:
Sweeney, J.
Brown, J.