FILED MAY 4, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
AMANDA PITTS (nee/aka AMANDA ) COMPTON, nee/aka AMANDA ) No. 32512-1-111 CRUTCHFIELD) and PAUL PITTS, ) individually; and AMANDA PITTS as ) Personal Representative of the ESTATE ) OF TAYLOR PITTS, and on behalf of all ) statutory claimants and beneficiaries, ) UNPUBLISHED OPINION ) Appellants, ) ) V. ) ) INLAND IMAGING, L.L.C., a ) Washington business entity and healthcare ) provider; INLAND IMAGING ) ASSOCIATES, P.S., a Washington ) business entity, ) ) Respondents. )
KORSMO, J. - Amanda and Paul Pitts (collectively Pitts) appeal from an adverse
jury verdict and the trial court's decision to grant partial summary judgment on one of
their claims. As they have identified neither error nor abuse of discretion, we affirm.
FACTS
This case arose from the death in utero of one of the twin daughters being carried
by Amanda Pitts in 2007-2008. Nearly a decade later, this tragic loss is the basis for the No. 32512-1-111 Pitts, et al. v. Inland Imaging, LLC, et al.
current litigation. This appeal revolves around the actions of defendant Inland Imaging in
its reading of sonograms taken during the pregnancy.
Inland sonographers performed ultrasound examinations on Ms. Pitts in 2007 on
August 10, August 27, October 4, November 5, and December 7. An Inland radiologist
then would read the sonograms and report to the obstetrician. Upon discovering that the
twins were both girls, the Pitts named them Samantha and Taylor.
The radiologists reported that the findings of the first two ultrasound "are
consistent with a dichorionic diamniotic pregnancy." Clerk's Papers (CP) at 197-198.
On the August 27 ultrasound, the radiologist noted they read a "twin peak sign" (also
called the lambda sign, based on its visual resemblance to the Greek A). CP at 225. This
sign, only seen early in pregnancy, is an indication that the two fetuses are each in their
own amniotic sac, with their own chorionic membrane (meaning each fetus accesses their
own placenta). 1 Shown on the left of the diagram below, this is considered the safest
configuration for twins in utero as the completely separate amniotic sacs and two discrete
chorions act as barrier membranes that prevent umbilical cord tangling or one twin
interfering with the development of the other.
1 This technical information is synthesized from both parties' expert testimony, primarily Drs. Filly (Report of Proceedings (RP) (February 19, 2014) at 454-497), and Patten (RP (February 10, 2014) at 195-295).
2 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
DICHORIONIC MONOCHORIONIC
Placenta Placenta
Amnion Amnion Chorion Chorion
Dichorionic Monochorionic Monochorionic Diamnionic Diamnionic Monoamnionic
Monochorionic twins, however, share the same placenta and have intermingled
circulatory systems, which can lead to additional complications such as twin-to-twin
transfusion syndrome (TTTS) and intrauterine growth restriction (IUGR). TTTS is a
condition in which the blood flows unequally between monochorionic twins that share a
placenta, causing one twin to receive too much blood, and the other twin to receive too
little, resulting in damage to both. IUGR occurs when there is unequal placental sharing
between monochorionic twins that leads to the suboptimal growth of one twin, and is
colloquially referred to as a "stuck twin" diagnosis.
An ultrasound on January 17, 2008, indicated that Taylor Pitts had died in utero.
Ms. Pitts had an emergency cesarean section that same day and safely delivered
Samantha. The obstetrician, Dr. Ronald Hardy, reported the following:
Twin A [Samantha]: baby A delivered, and there was no evidence of any fluid or even an intact [amniotic] sac around baby B [Taylor]. The sacs seemed to be communicating and acting as if 1 sac, though there seemed to be [chorionic] membranes between and wrapped around baby B.
3 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
Again, there was no clear sac .... Baby A's cord, the healthy-appearing, normal cord, was wrapped around Baby B's neck. Baby B's cord, then was wrapped around Baby A's cord and twisted very tightly, almost with a bandlike tightness, forming a loop around Baby A's cord so that Baby A's cord could slide up and down inside this loop and then Baby B's cord was tightly interwoven.
The placentas were delivered. They were connected with 2 separate cord plates. The cords seemed to traverse between the 2 membranes-it was quite unusual appearing--suggestive of a possible incomplete formation of diamniotic sacs, or potentially early on the babies could have intermixed and intertwined with each other.
CP at 232-233. 2
The Pitts sued Inland, alleging negligence that led to Taylor's death and asserting
additional causes of action. One negligence theory that later came to the fore was a lost
chance of a better outcome claim. The issue arose when one of the experts for the
plaintiffs testified during a deposition that the twins had a 90 percent chance of a better
outcome if their condition had been appropriately diagnosed by Inland following one of
the early ultrasounds. Inland moved for summary judgment on the lost chance theory,
arguing that neither the evidence nor the law supported the claim. The trial court took the
matter under advisement in order to review the authorities.
The trial court ultimately granted the motion by written memorandum, relying on
this court's then recent decision in Estate of Dormaier v. Columbia Basin Anesthesia,
2 Pathologist Dr. Wayne Riches analyzed the placenta after delivery and concluded that the pregnancy likely was monochorionic diamniotic.
4 No. 32512-1-111 Pitts, et al. v. Inland Imaging, LLC, et al.
PLLC, 177 Wn. App. 828, 313 P.3d 431 (2013). The case eventually proceeded to jury
trial before the Honorable Kathleen O'Connor in February 2014. The bulk of the issues
argued on appeal occurred during trial; other claims were related to discovery issues.
The facts relating to those contentions will be addressed in conjunction with our
discussion of the issues.
The experts agreed at trial that the umbilical cords had become tangled, leading to
Taylor Pitts' death, but disagreed on how that came about. The plaintiffs' experts
contended that the twins had always been within the same chorion and that Inland had
failed to observe that fact, while the defense experts had other competing theories. The
jury returned a verdict in favor of Inland, finding that it was not negligent. The Pitts then
timely appealed to this court. The case was submitted to a panel without argument.
ARGUMENT
Appellants raise six claims, five of which are related to events occurring during
trial. We first address the summary judgment ruling on the lost chance claim before
turning to the remaining claims.
Lost Chance
The trial court ruled that the lost chance theory was inapplicable to the facts of this
case because there was a 90 percent chance of survival if the treating physician had been
properly advised. CP at 585. In that circumstance, the "lost chance" exceeded 50
percent, a figure this court has previously concluded was actionable instead under
5 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
traditional tort causation principles. Although we maintain that position and affirm the
trial court, there is an even more fundamental reason why the claim lacks merit. It was
the alleged negligence of the defendants, not the underlying medical condition, which
caused the injury. In those circumstances, loss of a chance does not apply. We first
consider the bases for the lost chance doctrine before considering its application to this
case.
An appellate court will review a summary judgment ruling de novo and consider
the same evidence heard by the trial court, viewing that evidence in a light most favorable
to the party responding to the summary judgment. Lybbert v. Grant County, 141 Wn.2d
29, 34, 1 P.3d 1124 (2000). If there is no genuine issue of material fact, summary
judgment will be granted if the moving party is entitled to judgment as a matter of law.
Id. "A defendant in a civil action is entitled to summary judgment if he can show that
there is an absence or insufficiency of evidence supporting an element that is essential to
the plaintiff's claim." Tacoma Auto Mall, Inc. v. Nissan N Am., Inc., 169 Wn. App. 111,
118,279 P.3d 487 (2012).
Washington's lost chance case law is developing rapidly. The doctrine was
initially discussed in the multiple opinions, none of which garnered a majority view,
found in Herskovits v. Group Health Coop. of Puget Sound, 99 Wn.2d 609, 664 P.2d 474
(1983). In Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011), the court
recognized loss of chance as distinct injury. Id. at 857. The Mohr court observed that a
6 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
loss of chance for a better outcome would be calculated based on expert testimony of
"data obtained and analyzed scientifically ... as part of the repertoire of diagnosis and
treatment, as applied to the specific facts of the plaintiffs case." Id. at 857-858 (internal
quotation marks omitted).
The court found that it was necessary to ensure a plaintiff could bring a loss of
chance claim as even "the loss of a less than even chance is a Joss worthy of redress." Id.
at 852 (internal quotation marks omitted). "To decide otherwise would be a blanket
release from liability for doctors and hospitals any time there was less than a 50 percent
chance of survival, regardless of how flagrant the negligence." Id. at 851 (internal
quotation marks omitted) (quoting Herskovits, 99 Wn.2d at 614).
Lost chance claims can be divided into two categories: lost chance of survival and
lost chance of a better outcome. Christian v. Tohmeh, 191 Wn. App. 709, 729-730, 366
P.3d 16 (2015), review denied, 185 Wn.2d 1035, 377 P.3d 744 (2016). In a lost chance
of survival claim, such as Herskovits, a patient dies from a preexisting condition and
would likely have died from the condition, even without the negligence of the health care
provider. Even so, the negligence reduces the patient's chances of surviving the
condition. Rash v. Providence Health & Servs., 183 Wn. App. 612,630,334 P.3d 1154
(2014), review denied, 182 Wn.2d 1028, 347 P.3d 459 (2015). In a lost chance of a better
outcome case, the patient survives but has been harmed by the underlying medical
condition. The question presented was whether the patient's opportunity to have a better
7 No. 32512-1-111 Pitts, et al. v. Inland Imaging, LLC, et al.
result was reduced in some manner due to professional negligence. Id. at 631. That was
the issue in Mohr. The plaintiff had suffered a severe stroke, but her chance of a better
recovery was allegedly lessened by intervening medic~} negligence. 172 Wn.2d at 857.
The court concluded that the loss of chance of a better outcome was not limited to
wrongful death actions. Id.
This court considered the loss of a chance doctrine at some length in Dormaier, a
case where an embolism brought about a fatal heart attack during surgery to repair a
fractured elbow. 177 Wn. App. at 837-838. There we recognized that loss of a chance is
not a separate cause of action within the statutory framework of a medical malpractice
wrongful death claim. Id. at 855. We also recognized that lost chance "is fundamentally
an alternative manner of proving wrongful death causation, available solely where the
defendant's negligence reduced the decedent's chance of survival by less than or equal to
50 percent." Id. at 854-855 (emphasis added). Put in other terms, Dormaier recognized
that a lost chance claim only applies when the plaintiff already has no more than a 50
percent chance of having a successful recovery or survival from the underlying problem.
If there is a greater than 50 percent chance, traditional tort causation principles apply and
the negligence, if proven, is the cause of injury. If the chance of a successful outcome
from the medical condition is no better than 50 percent, then the question presented is
whether the medical negligence somehow reduced that opportunity even more. In those
circumstances, the alternative causation approach is used.
8 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
With these principles in mind, it is clear that the lost chance claim in this case fails
for two reasons. First, appellants based their lost chance of survival claim on the alleged
negligence of Inland. The Washington Supreme Court's decision in Volk v. Demeerleer,
187 Wn.2d 241,279, 386 P.3d 254 (2016), authoritatively rejected that approach. There
is no lost chance claim when the injury is caused by medical negligence. In Volk, the
plaintiff (personal representative of the deceased), as here, argued that professional
negligence both (1) caused the loss of plaintiffs life and (2) reduced the chance of
plaintiffs survival. Plaintiff contended that the lost chance doctrine applied both to the
lost opportunity to survive and as a substitute for actual "but for" causation. Id. at 278-
279. The court disagreed:
This argument fails under either approach because the loss of a chance doctrine is inapplicable if the plaintiff is alleging that the defendant's negligence actually caused the unfavorable outcome--the tortfeasors would then be responsible for the actual outcome, not for the lost chance.
Id. at 279. 3 For that same reason, the Pitts' claim fails here.
A second reason that this claim fails is that the lost chance substituted causation
analysis that we discussed in Dormaier does not apply when the negligence reduces the
chances of survival by greater than 50 percent. There we held that when
3 An even more recent decision is to the same effect. Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 637, 389 P.3d 498 (2017) ("A key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur."). ,
9 No. 32512-1-111 Pitts, et al. v. Inland Imaging, LLC, et al.
the defendant's negligence reduced the decedent's chance of survival by less than or equal to 50 percent, the loss of a chance is the injury ... but where the defendant's negligence reduced the decedent's chance of survival by greater than 50 percent, as a matter of law, the death remains the injury .... Thus, a plaintiff may not argue the lost chance doctrine where the defendant's negligence reduced the decedent's chance of survival by greater than 50 percent.
177 Wn. App. at 851. Judge O'Connor correctly applied Dormaier to these facts.
In summary, here, as stated in Volk, lost chance was inapplicable because
plaintiffs alleged that it was the negligence of Inland, rather than the underlying medical
condition, that caused the death of Taylor Pitts. Alternatively, even if a lost chance claim
otherwise had been proper, it still failed from the substituted statistical causation
perspective of Dormaier because there was no evidence that the plaintiffs survival
chance was reduced by less than 50 percent. Instead, she allegedly lost a 90 percent
chance of surviving. There was no lost chance of any kind. The alleged negligence, not
the lost chance of some better outcome, was the actionable theory of the case. There was
no need to substitute causation theories when plaintiffs evidence showed a 90 percent
chance of a favorable result (survival) but for the negligence.
The trial court correctly realized that lost chance was not the true theory of this
action. The trial court did not err in granting summary judgment on this issue.
Rebuttal Witnesses
Appellants contend that the trial court erred in excluding testimony of two of their
experts as a discovery sanction without first undertaking the analysis required by Burnet
10 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
v. Spokane Ambulance, 131 Wn.2d 484,933 P.2d 1036 (1997). There was no discovery
sanction at issue in either instance and the record reveals no abuse of the court's
management authority.
The trial court has "considerable discretion" in allowing a party to develop and
present evidence at trial. In re Marriage of Zigler & Sidwell, 154 Wn. App. 803, 814,
226 P .3d 202 (2010). The court similarly has great discretion in the way it manages its
courtroom, ranging from controlling the conduct of the parties to the setting of the
calendar. Id. at 814-816 (managing courtroom); State ex rel. Sperry v. Super. Ct.for
Walla Walla County, 41 Wn.2d 670,671,251 P.2d 164 (1952) (managing calendar).
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Discretion also is
abused when the court uses an incorrect legal standard. State v. Rundquist, 79 Wn. App.
786, 793, 905 P.2d 922 (1995).
A discovery sanction that would exclude evidence that affects a party's ability to
present its case amounts to a severe sanction. In such instances, courts first must
consider the Burnet factors before imposing such sanctions. Keck v. Collins, 184 Wn.2d
358, 368, 357 P.3d 1080 (2015). Under Burnet, before imposing discovery sanctions
such as dismissal, default, or exclusion of testimony, the court must presume that a late-
disclosed witness will be allowed to testify absent finding (1) the opposing party's willful
violation of the court's discovery orders, (2) the violation substantially prejudiced the
11 No. 32512-1-111 Pitts, et al. v. Inland Imaging, LLC, et al.
opposing party, and (3) consider, on the record, if lesser sanctions would be insufficient.
Burnet, 131 Wn.2d at 494.
Here, the trial court ruled that proposed witness Professor Carolyn Coffin, who
was expected to testify about the standard of care for sonographers, could not testify. It
also ruled that Dr. Harris Finberg, disclosed as a witness after the discovery deadline due
to the depositions of defense witnesses occurring late in the process, would be limited to
providing rebuttal testimony. The Pitts claim that the court excluded these two witnesses
as a sanction for late disclosure of their names and erred by doing so without considering
the Burnet standard on the record.
However, that is not what happened. Both Coffin and Finberg were identified as
rebuttal witnesses in court at a hearing held January 17, 2014; each had been identified as
new witnesses on December 30, 2013. CP at 497, 982; RP at 103, 105-106. Inland
moved to exclude the witnesses for late disclosure, citing to Burnet. CP at 497-504. The
trial court denied the motion, indicating that the two would be able to testify as rebuttal
witnesses, with the subject matter of their testimony to be determined later. CP at 949.
Subsequently, the sonographers were dismissed as defendants at the end of the Pitts'
case-in-chief, with the court ruling that no expert testimony had been presented
concerning the standard of care by a sonographer. Accordingly, Professor Coffin no
longer had any testimony to rebut since no evidence was now needed concerning the
sonographers' standard of care.
12 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
After testimony developed at trial, the court ruled that Dr. Finberg would not be
able to testify concerning either IUGR or TTTS because neither topic came up during the
defense case. The defense experts had testified that the membrane around Taylor had
unexpectedly ruptured, an event that could not have been foreseen. The trial court
authorized Dr. Finberg to address that topic.
Thus, Dr. Finberg was not excluded from testifying as a sanction for the late
disclosure of his identity. Instead, his testimony was limited to its stated
purpose-rebuttal. He was not permitted to testify about topics that had not been raised
by the defense since there would be nothing to rebut in that instance. The trial court had
very tenable reasons for limiting Dr. Finberg to proper rebuttal testimony.
The court did not abuse its discretion in excluding Professor Coffin's testimony
and limiting the scope of Dr. Finberg's testimony. There was no error.
Dr. Finberg Video Testimony
The trial court authorized Dr. Finberg to testify by videoconferencing so that the
jury could see and hear the testimony. The last witness in the trial, Dr. Finberg, was to
testify at 1:30 p.m. on February 19, 2014. Judge O'Connor directed counsel to be present
on the 19th no later than 10:00 a.m. to set the equipment up and confirm it was working
correctly.
By noon, the equipment was not set up properly. The judicial assistant advised
counsel that the room would be locked at noon for the lunch hour and that Dr. Finberg
13 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
would not be testifying since the equipment was not ready. When court reconvened at
1:30 p.m., the Pitts did not object to the inability to use Dr. Finberg. The case proceeded
to closing argument.
After the verdict, the plaintiffs moved for a new trial on several grounds, including
the inability to call Dr. Finberg. The court denied the motion. With respect to Finberg's
testimony, the court stated:
Finally I do want to say a couple of things about this situation that occurred with Dr. Finberg. As counsel is both aware, we had set out a time schedule. . . . I knew that there were going to be issues with the testimony because of the physical things involved. All of the experts were testifying looking at sonograms, some were fixed, some were moving, and that was a major part of all the experts' testimony. So if the jury was going to understand anything Dr. Finberg was going to say, they had to have that ability to both see him and see what he was looking at so that that testimony would be helpful for them. As a consequence, and I think the record should reflect, that we stood down. I stood down. We were done. I gave the defendant-{)r excuse me, the plaintiff, that morning, half a day, half a trial day, where the jury was not told to come in until the afternoon to get this set up. I also set that I wanted the call to go through and we to know by 10:00 whether it was going to work or not because Mr. Riccelli was using his own equipment. He did not have anybody assisting him. I thought this would be somewhat of a difficult technical issue. I recall that my judicial assistant came in and said they are having some problems .... It was never going to be an easy thing to get him there by audio/visual but it just did not work. Comes 10:00 it hadn't even been set up, and by noon it still wasn't working. I am satisfied that we gave the plaintiff ample opportunity, we gave them a whole half a day of trial to get this in place and it did not happen.
RP at 661-663.
I I 14
I No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
A party aggrieved by a trial irregularity "must request appropriate court action to
obviate the prejudice before the case is submitted to the jury." Spratt v. Davidson, 1 Wn.
App. 523,526,463 P.2d 179 (1969). "Trials must be fair but they need not be perfect."
Zigler, 154 Wn. App. at 815. Trial courts have wide discretion to "conduct trials fairly,
expeditiously, and impartially." Id. Under RAP 10.3(a)(6), a reviewing court need not
consider arguments not supported by any citation of authority. In re Marriage of Fahey,
164 Wn. App. 42, 59,262 P.3d 128 (2011).
Here, the Pitts did not challenge the decision to not wait any longer for the rebuttal
testimony at a time when the trial court could have done something about it. They also
have not presented any argument that the trial court abused its discretion in ruling as it
did. Accordingly, we could simply conclude that this issue is waived and/or abandoned.
However, the argument also is without merit. 4 The trial court gave ample time for
the plaintiffs to set up the equipment in order to permit Dr. Finberg to testify. Having
already set aside a whole morning from the trial schedule to permit the equipment set up,
we agree that the trial court had more than accommodated the plaintiffs in this regard,
particularly when there was no request for additional time or any hint that the technical
problems could be rapidly resolved.
4 In light of the fact that Dr. Fenberg did not testify, we need not decide whether the court erred in limiting the scope of his rebuttal testimony. I l 15
j No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
The court had tenable reasons for ruling as it did. There was no abuse of the trial
court's management authority.
Defense Expert Testimony
Next, the Pitts argue that the trial court abused its discretion in permitting three
defense witnesses to testify concerning causation. The trial court having exercised its
discretion in winnowing down the number of experts each side could call prior to trial,
rulings that are not challenged on appeal, we see no abuse of discretion in permitting the
witnesses who did testify to do so.
Again, well settled standards govern our review of this issue. To be admissible
under ER 702, expert witness testimony must be relevant and helpful to the trier of fact.
Stedman v. Cooper, 172 Wn. App. 9, 16, 292 P.3d 764 (2012). Where there is no basis
for the expert opinion other than theoretical speculation, the court should exercise its
discretion and exclude it. Queen City Farms, Inc. v. Cent. Nat. Ins. Co. of Omaha, 126
Wn.2d 50, 103, 882 P.2d 703 (1994). Also, a party may not appeal an error based on a
ruling that admits evidence unless a timely objection or motion to strike is made. ER
103(a)(l); Faust v. Albertson,167 Wn.2d 531,547,222 P.3d 1208 (2009). A party who
timely objected, however, may only assign error in the appellate court on the specific
ground of the evidentiary objection made at trial. Faust, 167 Wn.2d at 547. I With respect to the testimony of Dr. Callen, whom the Pitts accuse of exceeding I the scope of his permitted testimony, there was no objection to that testimony. If they I i
I 16 j I ' j
I No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
believed his testimony, which they elicited on cross-examination, was improper, their
remedy was to seek immediate relief from the trial court. Having not objected at trial or
moved to strike the testimony, they may not ask this court to grant relief for an
unpreserved error claim.
Dr. Filly testified that scar tissue (synechiae) may have appeared to the Inland
radiologists as a twin peak sign and confused them concerning the nature of the
pregnancy. On cross-examination, Dr. Filly discussed the unusual nature and
unlikelihood of his synechiae theory during his cross-examination. RP at 412. Though
there had been no physical examination of Amanda Pitts to confirm the theory, the
testimony was not completely unhelpful to the jury. It underscored ( 1) the unusual nature
of this pregnancy and its outcome, supporting Inland's defense that it followed the
standard of care, and (2) that the Pitts had no superior theory of causation to one so
wholly speculative as to be impracticable. Because the testimony had some value to the
jury, the trial court did not err in permitting it.
There were tenable grounds for admission of the testimony. The trial court did not
abuse its considerable discretion in this area.
Proposed Voir Dire of Dr. D 'Alton
The Pitts next complain that the trial court erred in refusing to allow them to voir
dire Dr. D' Alton about the potential for IUGR and TTTS. Dr. D' Alton had stated during
her deposition that neither condition was present during the pregnancy. The defense did
17 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
not develop the topics during her trial testimony. The plaintiffs sought to voir dire the
witness on the topics in order to set a foundation for Dr. Finberg to "rebut" Dr. D' Alton
and suggest these conditions as possible causes for the death of Taylor.
The trial court declined to permit the voir dire because it was not a proper subject
of inquiry at that point. Dr. D' Alton had not relied upon either IUGR or TTTS, nor had
the Pitts developed either topic during their case-in-chief. This was, as the defense
argued, an attempt to set a foundation for Dr. Finberg to develop a new theory of liability
during rebuttal in violation of the pretrial rulings and Finberg's status as a rebuttal
witness. These were very tenable reasons for rejecting the voir dire.
Once again, there was no abuse of the trial court's evidentiary and trial
Cross-Examination of Dr. Patten
Finally, the Pitts also contend the trial court erred in allowing Inland to cross-
examine their expert radiologist, Dr. Patten, concerning the twin peak sign, a topic
admittedly outside the scope of his expertise. Dr. Patten did not discuss the topic during
his testimony describing the standard of care for radiologists interpreting sonograms. No
objection was raised until the latter stages of the cross-examination, when the plaintiffs
claimed the topic was beyond the scope of the doctor's expertise. The trial court
overruled the objection, and Dr. Patten testified that while he was not an expert because
he did not write on the topic, he knew how to use the twin peak sign in his work.
18 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
ER 611 (b) limits the scope of cross-examination to "the subject matter of the
direct examination and matters affecting the credibility of the witness," but also permits
the trial court discretionary authority to allow "inquiry into additional matters as if on
direct examination." Accordingly, courts recognize that "the scope of cross examination
is within the broad discretion of the trial court and will not be overturned on appeal
absent an abuse of discretion." Miller v. Peterson, 42 Wn. App. 822, 827, 714 P.2d 695
(1986).
Here, Dr. Patten had discussed the twin peak sign at some length before the
plaintiffs claimed he was addressing a topic beyond his expertise. At that point they had
waived any objection to the topic. However, even if the belated objection preserved the
issue, there was no error. Inquiry into an expert's knowledge base is permitted by ER
611 (b) (and ER 703 ). Dr. Patten's earlier testimony discussed the standard of care in
determining the chorionicity of a twin pregnancy by assessing the thickness of the
chorion membrane, a measurement that bears relation to the visibility of the twin peak
sign. All parties agreed that the twin peak sign is widely used and reliable when seen.
On direct examination, Dr. Patten had read from Dr. Callen's book ("the OB-GYN
Bible") and referenced sections directly before and after a section on the twin peak sign.
These facts placed a discussion of the twin peak sign well within the scope of Dr.
Patten's direct questioning. It was proper to permit inquiry on the topic during cross-
examination.
19 No. 32512-1-III Pitts, et al. v. Inland Imaging, LLC, et al.
The trial court did not err in overruling the objection. Discussion of the twin peak
sign was proper subject matter for testimony concerning a radiologist's standard of care.
Appellants have not demonstrated any error occurred at trial, let alone any error of
such significance that it calls into question the jury's verdict. This case was well tried
and both sides presented evidence concerning the circumstances leading to the tragic
death of Taylor Pitts. The jury concluded that negligence by Inland had not been
established. That verdict was the result of a fair trial process.
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.
WE CONCUR:
Fearing,p.
9,,2y .(J= Pennell, J.