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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANTHONY DICKERSON and JULIA DICKERSON, husband and wife No. 72059-7-1 and the marital community composed thereof; J.D., a minor child, by and DIVISION ONE through her Guardian Ad Litem, ANTHONY DICKERSON; and THE ESTATE OF JILLIAN ROSE DICKERSON, by and through its UNPUBLISHED OPINION Administratrix, JULIA DICKERSON,
Respondents,
v.
C. SHAYNE MORA, M.D., BELLINGHAM OBSTETRIC & GYNECOLOGIC ASSOCIATES, P.S., a Washington corporation,
Defendants,
PEACEHEALTH dba ST. JOSEPH HOSPITAL, a Washington non-profit corporation, FILED: November 16, 2015 Appellants.
Leach, J. — In this professional negligence case, PeaceHealth appeals
the trial court's order granting a new trial and imposing sanctions against it. After
finding that PeaceHealth violated several orders in limine and that the cumulative
effect of PeaceHealth's violations prejudiced the Dickersons, the trial court
ordered a new trial and awarded sanctions to the Dickersons. Because of the NO. 72059-7-1 / 2
great deference we give to a trial court's decision to order a new trial and
because the record supports the trial court's finding that PeaceHealth's violation
of some orders in limine prejudiced the Dickersons in a manner that was not or
could not have been cured by instructions, we affirm.
FACTS
In September 2007, Julia Dickerson discovered that she was pregnant
and began seeing Dr. C. Shayne Mora, an ob-gyn. A later ultrasound showed
that she carried twins sharing a placenta but each with its own amniotic sac.
This created a risk for twin-to-twin transfusion syndrome (TTTS), where only one
twin receives adequate nutrients. Her condition required monitoring. Dr. Mora
referred Julia to perinatologist Dr. Calla Michelle Holmgren, who recommended
biweekly ultrasounds.
In December, Julia reported increasing discomfort. And on February 6,
2008, she visited Dr. Mora's office because she had experienced three days of
chest and back pain. Staff at his office checked her vital signs, recorded her
pulse, and detected positive heart tones or movement for both twins. Dr. Mora
directed Julia to go to PeaceHealth for further evaluation, provided its childbirth
center with Julia's background, and ordered tests, including a pulse oximetry and
a nonstress test. NO. 72059-7-1 / 3
The same day, at PeaceHealth, Nurse Susan Wahl evaluated and
monitored Julia. Guidelines required that care providers "[ijnitiate electronic fetal
monitoring (obtain >20 minute strip)" for all obstetrics patients. At 11:10 a.m.,
Nurse Wahl used electronic fetal monitoring to get Baby A's heart rate of 136 but
detected only fetal movement for Baby B. At 11:40 a.m., another nurse was
unable to get a continuous heart rate strip. Nurse Wahl told Dr. Mora that neither
nurse could get a continuous heart rate strip for Baby A or any fetal heart tones
for Baby B. The nurses recorded a total of six minutes of heartbeats from Baby
A and did not record any of Baby B's heartbeats. At 11:50 a.m., Nurse Wahl
measured fetal heart rates with a Doppler of 140 for both babies. Dr. Mora saw
Julia and verbally discharged her at 12:20 p.m. Julia left the appointment upset.
She believed something was wrong but understood that the clean bill of health
she received from Dr. Mora prevented her from immediately seeing Dr. Holmgren
at the University of Washington. She asked Dr. Mora's office to move up her
appointment with Dr. Holmgren.
On February 12, Julia went to that appointment at the University of
Washington. There, an ultrasound revealed stage three TTTS, with Twin A
showing a lack of amniotic fluid and a more than three-week growth lag and Twin
B showing excess amniotic fluid. Dr. Holmgren removed a liter of fluid from Twin
B's amniotic sac. The next morning, Twin A showed signs of heart rate NO. 72059-7-1/4
deceleration. Because of the threat to the twins' lives, Dr. Holmgren decided to
perform a caesarean section. One twin, J.D., weighed 560 grams at birth, while
the other, Jillian, weighed 860 grams. Jillian died nine days later. In July 2008,
J.D. went home with a tracheotomy tube but required in-home nursing care. One
day Julia found J.D. in acute distress after the nurse providing in-home care had
accidently dislodged the tracheotomy tube and then left J.D. Julia called 911.
J.D. remained in the hospital for a month and since that episode has undergone
over 20 surgeries. She has disabilities that will affect her future.
The Dickersons filed a lawsuit against the nurse providing home care and
her employer, Alliance. They later settled for $2.78 million. They also filed a
lawsuit against Dr. Mora and PeaceHealth, settling with Dr. Mora for $1 million.
The case against PeaceHealth went to trial. The Dickersons claimed that
Nurse Wahl and PeaceHealth failed to provide proper care to Julia on February 6
when Nurse Wahl had an order for a nonstress test but failed to obtain 20
minutes of fetal monitoring and, after failing to do so, did not advocate for an
ultrasound. The trial court entered several orders in limine relating to the trial. A
jury found for PeaceHealth. The Dickersons moved for a new trial and for
monetary sanctions or a judgment notwithstanding the verdict, alleging that
PeaceHealth violated several of the orders in limine. NO. 72059-7-1 / 5
On June 10, 2014, the trial court granted the motion for new trial,
concluding that the cumulative effect of PeaceHealth's violations required a new
trial. The court also imposed monetary sanctions totaling $105,306.34. It denied
the Dickersons' motion for judgment notwithstanding the verdict. PeaceHealth
appeals.
STANDARD OF REVIEW
This court reviews a trial court's order granting a new trial for abuse of
discretion.1 We reverse only if a trial court makes a manifestly unreasonable
decision or bases its decision on untenable grounds or reasons.2 When
reviewing for abuse of discretion, we look to see if a party engendered a feeling
of prejudice in the minds of the jury so that the other party did not receive a fair
trial.3 To set aside an order granting a new trial, "[w]e require a much stronger
showing of abuse of discretion" than an order denying a motion for new trial.4
ANALYSIS
PeaceHealth claims that the trial court's failure to comply with CR 59(f)
limits the scope of our review to two matters, neither of which justify a new trial or
1 Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 664, 244 P.3d 939 (2010); Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012). 2 Teter, 174 Wn.2d at 222. 3 Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000) (Alcoa) (quoting Moore v. Smith, 89 Wn.2d 932, 942, 578 P.2d26(1978)). 4 Teter, 174 Wn.2d at 215. -5- NO. 72059-7-1 / 6
the imposition of sanctions. Alternatively, PeaceHealth claims that none of the
other claims of misconduct, either individually or collectively, justify the trial
court's decision.
CR 59(f) provides,
Statement of Reasons. In all cases where the trial court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or upon facts and circumstances outside the record that cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.
An order granting a new trial must state the trial court's reasons in
sufficient detail "to enable review 'without resort to debatable inference and
speculation.'"5 An order complying with the rule provides the reviewing court with
the basis for the trial court's order.6 Here, the trial court's order stated no
reasons but incorporated an attached supplemental statement and findings of the
court (collectively the order), which concluded that PeaceHealth failed to comply
with several orders in limine and that "the cumulative effect of these violations
was to deprive the plaintiff a chance at a fair trial." It commented on two matters
the court found "most striking"—Dr. Mora's testimony about Nurse Wahl and
5 Dvbdahl v. Genesco. Inc., 42 Wn. App. 486, 488, 713 P.2d 113 (1986) (quoting Williams & Mauseth Ins. Brokers, Inc. v. Chappie, 11 Wn. App. 623, 628, 524 P.2d 431 (1974)). 6 Bensen v. S. Kitsap Sch. Dist. No. 402. 63 Wn.2d 192, 196, 386 P.2d 137(1963). -6- NO. 72059-7-1 / 7
PeaceHealth's arguments about damages in closing—and expressly accepted
the Dickersons' analysis and summary of the probable jury impact of alleged
violations described in the Dickersons' motion for new trial.
PeaceHealth argues that because the trial court complied with CR 59(f) for
only two issues, this court may review only those two issues as justification for
the trial court's decision. But even where an order fails to comply with CR 59(f),
Washington courts have looked outside the order to a trial court's oral opinion.7
Because the trial court stated the basis for its decision in the attachment and
agreed without exception with the plaintiffs' motion for a new trial, we have
adequate information to review the basis for the trial court's decision "without
resort to debatable inference and speculation." Thus, we reject PeaceHealth's
argument about the scope of our review.
PeaceHealth asserts that the trial court abused its discretion both when it
concluded that PeaceHealth violated the orders in limine and that the cumulative
effect of the violations warrants a new trial. A trial court may grant a new trial
where a trial counsel's conduct constitutes prejudicial misconduct and not mere
aggressive advocacy in the context of the entire record, the movant properly
objected to the misconduct, and the trial court's instructions did not cure the
7 Knecht v. Marzano, 65 Wn.2d 290, 292, 396 P.2d 782 (1964); Spratt v. Davidson, 1 Wn. App. 523, 526, 463 P.2d 179 (1969); Gestson v. Scott, 116 Wn. App. 616, 620, 67 P.3d 496 (2003). -7- NO. 72059-7-1 / 8
misconduct's prejudice.8 Here, we review individually the six order in limine
violations alleged by the Dickersons and accepted by the trial court and if the
cumulative effect of any violations resulted in incurable prejudice to the
Dickersons. We give the trial court's order great deference and will not find an
abuse of discretion where the record supports the order.
PeaceHealth first contests the trial court's conclusion that Dr. Mora's
testimony violated an order in limine prohibiting testimony that Nurse Wahl was a
good, careful, safe, or conscientious person.
At trial, the Dickersons' counsel read portions of Dr. Mora's deposition to
the jury, where Dr. Mora was asked if he trusts Nurse Wahl and he answered,
"Absolutely." PeaceHealth then argued that this opened the door and requested
permission to ask Dr. Mora during direct examination why he trusted Nurse Wahl.
Because the trial court expressed concern that Dr. Mora's answer could violate
an order in limine, PeaceHealth presented Dr. Mora's testimony to the trial court
outside the presence of the jury. PeaceHealth asked him, "Why do you trust
[Nurse] Wahl?" In Dr. Mora's answer, he said that Nurse Wahl was "one of the
most reliable nurses that we have in labor and delivery." The Dickersons
objected, arguing that "whether or not [Dr. Mora] believes [Nurse Wahl is] reliable
is not admissible. He can say, I trusted her because I worked side by side with
8 A.C. v. Bellinqham Sch. Dist., 125 Wn. App. 511, 521, 105 P.3d 400 (2004); Alcoa, 140 Wn.2d at 539-40. -8- NO. 72059-7-1 / 9
her for 15, 16 years." The trial court responded, "I think going beyond that gets
into the area that it would be specifically covered by the order in limine."
PeaceHealth explained the order in limine to Dr. Mora, and he responded,
[M]y intent is to come here and speak the truth and the truth is as I just spoke, that—and I don't want to violate any orders, but if you're going to ask me about my experience with this specific nurse and a recollection of an event that occurred eight years ago, it's going to be difficult for me to separate my relationship with her, my dependence upon her as a trustworthy nurse, a professional, that's part of what makes me confident in my interaction that occurred on that day.
When Dr. Mora asked if the order in limine permitted this, the trial court
confirmed, "That's fine. I think that sounded fine to me."
When PeaceHealth asked Dr. Mora in front of the jury, "Why did you trust
[Nurse] Wahl?" Dr. Mora testified, "At that time I probably would have worked
with her side by side for approximately 10 years. Her—she is a nurse whom I
trust and I have an excellent rapport with and her experience is vast and her
reliability is excellent."
The Dickersons objected and asked for sanctions. At the trial court's
suggestion, they submitted briefing supporting an instruction telling the jury that it
must judge Nurse Wahl solely on the medical care she provided and that it must
disregard evidence of her character or a character trait offered to prove she
conformed to that character or character trait. At the end of trial, the court
instructed the jury, "The conduct of PeaceHealth and Nurse Wahl on February 6, -9- NO. 72059-7-1/10
2008, must be judged based solely upon the medical care and services she or
PeaceHealth provided that day." The order for new trial supplemental statement
summarized Dr. Mora's challenged testimony and concluded that it violated the
order in limine.
PeaceHealth contends that the Dickersons opened the door to the
testimony and that the trial court approved the answer Dr. Mora ultimately gave.
And it asserts that the word "reliability" does not materially differ from the word
"trustworthy," approved by the trial court. PeaceHealth finally argues that even if
the testimony violated the order in limine, the trial court remedied any prejudice
with its jury instruction.
But the trial court specifically excluded testimony that Nurse Wahl was a
reliable nurse, concluding before Dr. Mora testified in front of the jury that this
description violated the order in limine prohibiting evidence that Nurse Wahl was
a good, careful, safe, or conscientious nurse. Though the Dickersons
themselves introduced evidence that Dr. Mora trusted Nurse Wahl and the trial
court approved Dr. Mora's testimony that he depended on her as a trustworthy
nurse, in context that statement reflects Dr. Mora's experience and professional
relationship with Nurse Wahl as one containing trust. This differs from Dr. Mora's
challenged testimony describing Nurse Wahl as reliable, testimony specifically
prohibited by the trial court.
-10- NO. 72059-7-1/11
While improper, a violation of an order in limine does not warrant a new
trial when the violation does not prejudice the jury.9 In Aluminum Co. of America
v. Aetna Casualty & Surety Co.,10 the Supreme Court found that a trial court did
not abuse its discretion when it denied a motion for new trial. The court agreed
with the trial court's conclusion that counsel's violation of an order in limine
prohibiting comment about the legal effect of misrepresentation to an insurance
company was improper conduct, but that the comment did not result in
prejudice.11 The trial court relied on the fact that the subject of the order in limine
was only one basis of the insurance company's argument, and the jury could
have learned the same information by properly reading the insurance contract
before it.12
But here, Dr. Mora testified about Nurse Wahl's character as a reliable
nurse, a subject specifically prohibited and directly related to the jury's
determination of a central issue in the case: did Nurse Wahl violate the standard
of care when treating Julia? Thus, in this case, a judge could conclude that this
violation of an order in limine prejudiced the jury.
PeaceHealth also claims that it could not be blamed for Dr. Mora's answer
because another order in limine prohibited it from talking directly to Dr. Mora
9 See Alcoa, 140 Wn.2d at 540-41. 10 140 Wn.2d 517, 541, 998 P.2d 856 (2000) (Alcoa). 11 Alcoa, 140Wn.2dat540. 12 Alcoa, 140Wn.2dat540. -11- NO. 72059-7-1/12
before he arrived in court. But when PeaceHealth brought this circumstance to
the court's attention during the hearing, the trial judge responded, "We can talk—
you can talk to him directly now." The approved testimony answered
PeaceHealth's question asking if he thought he could comply with the court's
order. But PeaceHealth's question to Dr. Mora before the trial court, "Why do
you trust [Nurse] Wahl?" triggered Dr. Mora's prohibited response, that Nurse
Wahl was reliable. And when PeaceHealth's counsel asked Dr. Mora a similar
question in front of the jury, why Dr. Mora trusted Nurse Wahl, the question
elicited the same prohibited testimony, that Nurse Wahl's "reliability is excellent."
Thus, we conclude that PeaceHealth cannot claim that the prohibition on ex parte
communication shielded it from responsibility for Dr. Mora's testimony.
Often, an instruction to the jury may cure any improper testimony.13 While
we generally assume that a jury follows the trial court's instructions, the trial court
concluded in its order granting new trial that the cumulative effect of the multiple
violations of the orders in limine exposed the jury to prejudice that "caused far
more damage than could reasonably or reliably be expected to be remedied by
curative instructions, no matter how many and no matter how often they were
given." Because we afford the trial court's conclusion great deference and the
record supports this conclusion, the trial court did not abuse its discretion.
13Alcoa, 140Wn.2dat538. -12- NO. 72059-7-1/13
PeaceHealth next contends that the trial court abused its discretion when
it based its order for new trial and sanctions in part on defense counsel's
statements during closing argument. Counsel said, "The first thing is we are
talking real dollars. Big numbers are thrown around, urn, thinking in your own life
how long it takes to save money." Counsel then stated, "Really in the context of
this case because we know what happened with the other litigation, [defense
counsel] is the one that told you about the settlement. What he is really saying is
no, no more. No, no more." The Dickersons objected to the first comment but not
the second. The trial court overruled the objection. But the trial court later
concluded in its order that the "how long it takes to save money" comment
violated the order in limine prohibiting counsel from arguing the golden rule,
where counsel impermissibly asks the jury to put itself in the position of the
defendant.14 The trial court also concluded that PeaceHealth's "no, no more"
comment improperly told the jury that the plaintiffs had already been fully
compensated, suggesting a violation of the order in limine prohibiting argument
comparing the Dickersons' request for compensation with a windfall.
PeaceHealth asserts that its comments during closing argument were not
a golden rule argument. It disagrees with the trial court's analysis and
14 A.C, 125 Wn. App. at 523. -13- NO. 72059-7-1 /14
distinguishing of A.C. v. Bellinqham School District,15 where this court affirmed a
trial court order denying new trial. Defense counsel in A.C. argued,
"And think about really what it boils down to is what's the value of a dollar. What do you have to go through to get your dollars? What do they mean to you when you have them? Think about what it means to you. The number that I want to give you for all of the damages in the case is half of a year of an average worker's pay. If you think that's fifteen thousand or twenty thousand, that's an appropriate number. That's a lot that you go through. If you had that amount of money, what would it mean to you? Would it be a lot of money to you? That's an issue for the juryto decide."[16] The A.C. court concluded that defense counsel's closing argument did not
constitute an improper golden rule argument because the defendant did not ask
members of the jury to put themselves in the defendant's position to decide ifjury
members would want to be found guilty of negligence.17 Instead, counsel told the
jury to determine what amount of money would properly compensate A.C. and
what that money means to them.18
Here, the trial court in its order granting new trial distinguished A.C:
Unlike the comments in A.C. . . ., [in this case] the focus was not on the jury or on the jury evaluating how what amount of money would fairly compensate the plaintiff or on what receipt of that money would mean to them (the jury), but rather focused on emphasizing the need to award no money whatsoever, . . . this Court believes that the only logical inference based upon defense counsel's actual words and inflection was to ask the jury to consider how much these "real dollars" would impact the jury if the jurors were in the
15 125 Wn. App. 511, 515, 105 P.3d 400 (2004). 16 A.C, 125 Wn. App. at 524. 17 A.C, 125 Wn. App. at 524. 18 A.C, 125 Wn. App. at 524. -14- NO. 72059-7-1/15
position of the defendants and required to pay it out of their own pockets (by asking them to consider "how long it takes to save money").
PeaceHealth claims that counsel's comment responded to the Dickersons'
counsel's discussion of money during its closing argument and that the comment
merely amounted to permissible aggressive advocacy. The Dickersons' counsel
in closing stated, "I told you at the beginning of this case I was going to ask you
for more money than PeaceHealth could possibly imagine" and that "[t]he money
adds up fast" when discussing the evidence in support of the $36 million in
damages the Dickersons asked for. PeaceHealth responded, arguing that while
it did not expect the jury to reach the question of damages, it would address
money because the Dickersons had.
But, as the trial court observed, unlike counsel in A.C, PeaceHealth's
counsel suggested that the large dollar amount the Dickersons asked for was a
lot of money—"big numbers"— that the members of the jury would not want to
pay if they had been asked to, "thinking ... how long it takes to save money."
This comment did not focus on the jury finding no negligence and therefore
awarding a zero dollar amount. Rather, it asked the jury to find PeaceHealth not
liable or not award the amount the Dickersons requested because members of
the jury would not want to pay that amount, taking into consideration "how long it
takes to save money." And because we defer to the trial court's understanding of
what occurred at trial, including that "the only logical inference based upon -15- NO. 72059-7-1 /16
defense counsel's actual words and inflection" was that this violated its order, we
conclude that PeaceHealth's argument constituted prejudicial misconduct.
Because the Dickersons objected and the trial court failed to offer an instruction,
we further conclude that the trial court did not abuse its discretion when it based
its order for new trial in part on these grounds.
PeaceHealth claims that it did not violate the order in limine prohibiting
argument that the Dickersons' receipt of damages would amount to a windfall.
The trial court concluded that the "no, no more" comment described "'no more
money,'" clearly suggesting that plaintiffs had already been adequately and fully
compensated financially and further suggesting that the "plaintiff's receipt of
money has to stop 'here and now', as it were."
As PeaceHealth contends, the evidence allowed it to argue19 that the jury
should find no negligence, and for that reason the jury should not award the
Dickersons any money. Had counsel only argued "no compensation" because
no negligence occurred, he would not have violated the order in limine prohibiting
windfall arguments. But counsel's strong assertion "no more" suggested to the
jury that the Dickersons should receive no award because they had recovered
enough money already. Given the strong deference we afford the trial court, the
19 See Christensen v. Munsen, 123 Wn.2d 234, 243, 867 P.2d 626 (1994). -16- NO. 72059-7-1/17
record supports its conclusion that the "no, no more" comment violated the order
in limine preventing windfall arguments.
The Dickersons did not object to this part of PeaceHealth's closing
argument. But the trial court concluded that the violations caused "far more
damage than could reasonably or reliably be expected to be remedied by
curative instructions." We rely on the strong deference we afford a trial court in
this matter to conclude that the record supports its conclusion that the comment
was so flagrant and prejudicial that no instruction could have cured any
misconduct.20 We thus conclude that the trial court did not abuse its discretion
by relying on counsel's "no, no more" comment.
PeaceHealth argues that the Dickersons' closing argument provides
context for PeaceHealth's comments. First, the Dickersons' counsel stated that
they were not suing Dr. Mora, Nurse Wencek,21 or Alliance because they had
"accepted .. . responsibility." PeaceHealth argues that this claim implies that
Nurse Wahl and PeaceHealth were "bad." Also, PeaceHealth argues that the
Dickersons argued a "lack of caring" on the part of Nurse Wahl, also in violation
of the order in limine. But when read in full, the Dickersons pointed the jury to
the policies requiring different actions than those Nurse Wahl took, arguing that
20 See AX,, 125 Wn. App. at 525. 21 Nurse Wencek provided in-home nursing care for J.D. and was an employee of Alliance. -17- NO. 72059-7-1/18
Nurse Wahl's testimony that she would not have done anything differently was
either wrong or demonstrated that "nobody cares." This does not contextualize
or excuse PeaceHealth's improper arguments in violation of the orders in limine.
PeaceHealth also argues that its comments in closing could not have
prejudiced the jury when the jury never reached the issue of damages in its
verdict. But this assumes that the arguments clearly separated the issue of
damages from the issue of negligence. Because PeaceHealth's counsel
inappropriately suggested that the issue of damages rather than a determination
of negligence should drive the jury's decision, its argument fails.
PeaceHealth argues that it did not violate the court's orders in limine
prohibiting argument suggesting that the Dickersons were at fault or should have
conducted their own research.
PeaceHealth stated in its opening statement,
So what happened after Ms. Dickerson left the hospital? Well, there's no contact with Dr. Mora for that six days, until she went to U-Dub. No contact with St. Joseph's; didn't come into the hospital at all for any reason. And then on February 12, Ms. Dickerson has this, what Dr. Holmgren described in her note, as a regularly scheduled check-up.
The Dickersons objected after PeaceHealth finished its opening. The trial
court instructed the jury, "I will remind you that the Court has previously entered
an order declaring that none of the Dickersons were at fault in any way for any
health care negligence or any damages sought by the Dickersons in this matter." -18- NO. 72059-7-1/19
After this instruction and during Julia's testimony, juror 10 submitted two
questions to the bailiff, which the Dickersons' counsel read aloud to the trial court
but not the jury: "how does a clean bill of health prevent you from seeking
medical help elsewhere or, underlined three times, how did it prevent you,
underlined three times, from getting extra help, question mark." At the end of
trial, the court gave jurors instructions 23 and 24, reminding them that the
Dickersons did not engage in contributory negligence and that they must ignore
any suggestion that the Dickersons were at fault in any way.
PeaceHealth asserts that counsel's comment did not attribute fault to Julia
but simply explained to the jury why PeaceHealth had no further involvement in
Julia's care. But counsel told the jury that after Julia failed to contact her health
providers for six days, she moved up her appointment and came in to her
scheduled appointment uncomfortable, not sleeping, and with shortness of
breath. Thus, the context of the comment reveals that PeaceHealth's opening
statements focused on Julia's actions and not PeaceHealth's involvement in her
care. And because we defer to the trial court's assessment that its instructions to
the jury failed to remedy the prejudice from the misconduct, we conclude that the
trial court's instruction to the jury after opening statements along with instructions
23 and 24 failed to adequately cure the harm.
-19- NO. 72059-7-1 / 20
PeaceHealth contends that its expert witness Nurse Michelle Murray did
not testify that the Dickersons' expert witness Nurse McGrath lied in violation of
the order on motion in limine 7. Nurse McGrath provided expert testimony for the
Dickersons that Nurse Wahl failed to adhere to the standard of care and follow
necessary hospital policies. But Nurse Murray testified differently, asserting that
Nurse Wahl did meet the standard of care and that her noncompliance with
certain hospital policies did not affect Nurse Murray's assessment of Nurse Wahl
in this case. Outside the presence of the jury, the Dickersons objected to Nurse
Murray's testimony, arguing that PeaceHealth "[brought] this witness to criticize
my witness, in other words to imply that she is lying." The trial court
acknowledged the objection.
The jury alone determines a witness's credibility.22 Thus, as reflected in
an order in limine, one expert witness may not offer an opinion about another
witness's veracity.23 But an expert witness may controvert another witness's
expert opinion. And when expert witnesses disagree, the jury decides the
disputed issues of fact or opinion.24 Here, counsel presented Nurse McGrath's
22 Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). 23 ER 608; State v. Fitzgerald. 39 Wn. App. 652, 657, 694 P.2d 1117 (1985). 24 See Postema v. Pollution Control Hr'qs Bd., 142 Wn.2d 68, 119-20, 11 P.3d 726 (2000) (When testimony of two or more expert witnesses conflict, a disputed issue of fact exists, and a trial court does not properly grant summary judgment.). -20- NO. 72059-7-1/21
criticisms of Nurse Wahl to Nurse Murray and asked Nurse Murray to agree or
disagree with Nurse McGrath's assessment. Indeed, Nurse Murray answered in
these terms, saying, "I can't agree with that" and pointing to what she viewed as
lack of evidence to support her opinion that Nurse Wahl met the standard of care.
Because Nurse Murray stated an opinion disagreeing with Nurse McGrath and
did not suggest that Nurse McGrath lied or question her credibility, PeaceHealth
did not violate the order in limine, and the trial court abused its discretion when it
decided it did.
PeaceHealth also claims that it did not violate any order in limine when
Nurse Murray testified about hospital policies. During argument on the request
for the implicated order, the trial court observed it prohibited testimony that
"PeaceHealth safety policies and procedures were entirely inapplicable." Nurse
Murray testified that hospital policies requiring a 20-minute strip were relevant to
treatment where a patient was in labor and thus did not apply to Julia, who was
not in labor. But Nurse Murray also testified that Nurse Wahl successfully
identified patient risk factors, therefore complying with that policy. Thus,
PeaceHealth did not elicit testimony that the policies did not apply at all. Rather,
Nurse Murray explained those policies and how they applied in this case. Thus,
PeaceHealth did not violate any order in limine with Nurse Murray's testimony.
The trial court abused its discretion by deciding it did.
-21- NO. 72059-7-1 / 22
In the Dickersons' response brief, they argue that PeaceHealth violated
the order in limine prohibiting testimony that Julia was not an obstetrics patient or
that she sought care for any other reason than her concern for the health of her
twins. While the Dickersons' motion for new trial touches these prohibitions, its
argument did not. The trial court thus could not have based its order for new trial
on these alleged violations, and we decline to consider them.
We have decided that the record supports only four of the six violations
found by the trial court. However, the record makes clear that the trial court
would have found these four violations sufficient to order a new trial and impose
sanctions. Thus, we do not remand this matter to the trial court to confirm what it
has already communicated. And those four violations adequately support the
trial court's decision to order a new trial.
PeaceHealth finally argues that the trial court had no basis to impose
sanctions where the evidence does not support the court's conclusion that
PeaceHealth violated the orders in limine. This court reviews a trial court's
decision to impose sanctions for abuse of discretion and affords it wide latitude in
its determination of which sanctions are appropriate.25 Because the record
supports the conclusion that PeaceHealth violated several orders in limine and
25 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 355, 858 P.2d 1054 (1993). -22- NO. 72059-7-1 / 23
the trial court imposed sanctions on that basis, the trial court did not abuse its
discretion, and sanctions were proper.
CONCLUSION
Because we cannot be in the courtroom to appreciate how violations of
orders in limine affected the jury, we defer to the trial court's assessment of the
impact those violations had. Because the record sufficiently supports the trial
court's determination that PeaceHealth violated several of the orders in limine
and because the trial court determined that any instruction given would not
remedy these violations, the trial court did not abuse its discretion when it
ordered a new trial and imposed sanctions. We affirm.
WE CONCUR:
-23-