IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NASRA ELMI and ROBERT BLANTON, husband and wife, No. 85851-3-I
Respondents, DIVISION ONE
v. UNPUBLISHED OPINION
AESTHETIC REJUVENATION SPA, PLLC, a Washington professional limited liability company; and KRISTINE BRECHT, M.D., individually,
Appellants.
MANN, J. — Aesthetic Rejuvenation Spa (ARS) and Dr. Kristine Brecht
(collectively Dr. Brecht) appeal a jury verdict in favor of Nasra Elmi and her husband
Robert Blanton on claims arising from cosmetic surgical procedures performed by Dr.
Brecht on Elmi. Dr. Brecht argues the trial court erred by (1) admitting certain evidence
under ER 404(b), (2) denying her motion for a mistrial, (3) denying her motion for a new
trial, and (4) denying her motion for judgment as a matter of law. We affirm.
I
A
Dr. Brecht was a licensed physician and surgeon who was board certified in
family medicine. She was the sole owner and operator of ARS located in Burien, No. 85851-3-I/2
Washington. Dr. Brecht performed both surgical and nonsurgical procedures at ARS.
Staff at ARS included a receptionist and medical assistants.
Elmi was interested in getting cosmetic surgery and found Dr. Brecht on
YouTube. Dr. Brecht talked about cosmetic surgical procedures she performs including
arm lifts and tummy tucks. Elmi viewed photos on the ARS website of arms and
stomachs showing small incisions. On August 1, 2020, Elmi saw Dr. Brecht for a
consult to discuss getting a tummy tuck, liposuction, arm lift, and breast lift. During the
consult, Elmi disclosed her diabetes and that she was a smoker. Elmi also signed
consent forms.
Dr. Brecht performed two surgeries on Elmi with the aid of two medical
assistants, Jackeline Lopez and Maria Arce. Dr. Brecht performed an abdominoplasty
and liposuction on Elmi on September 1, 2020. Dr. Brecht performed an arm lift, breast
lift, and liposuction on Elmi one week later on September 8. For both surgeries, Dr.
Brecht used local anesthesia and oral sedation rather than general anesthesia. Elmi
was instructed to take Ambien, oxycodone, Phenergan, and lorazepam prior to surgery
and then during surgery she was given more oxycodone and lorazepam. Dr. Brecht did
not establish intravenous access to Elmi during the surgeries.
The incisions from the surgeries did not heal properly and kept opening. The
incision on Elmi’s left arm ran from her armpit to her elbow and opened twice in several
places. After several follow up appointments, Dr. Brecht determined Elmi had an
infection. Elmi eventually stopped seeking treatment from Dr. Brecht. The surgeries
and resulting scars and wounds required Elmi to seek ongoing treatment elsewhere.
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B
Unrelated to her treatment of Elmi, on August 4, 2021, Dr. Brecht entered a
stipulated order with the Washington Medical Commission (WMC). Dr. Brecht agreed in
the order that she committed unprofessional conduct under RCW 18.130.180(4) related
to the treatment of nine patients.
Also unrelated to her treatment of Elmi, on October 22, 2021, Dr. Brecht entered
a stipulated order with the Department of Health (DOH) where she agreed that between
October 2019 and January 2020 she performed cosmetic surgical procedures such as
liposuction and arm lifts, and operated an ambulatory surgical facility without a license.
As a result, Dr. Brecht was restricted from performing any procedures that required
sedation and was prohibited from operating as an ambulatory surgical facility.
C
Elmi sued Dr. Brecht for medical negligence, lack of informed consent, breach of
promise, and violation of the Consumer Protection Act (CPA), ch. 19.86 RCW. Blanton
also claimed future loss of consortium. Elmi sought damages, costs and treble
damages under the CPA, attorney fees, and interest.
Dr. Brecht moved in limine to exclude evidence of or reference to the disciplinary
proceedings before the WMC and the DOH as irrelevant to proving breach of the
standard of care, as improper character evidence, and as cumulative evidence that
would confuse the jury and be unfairly prejudicial. The trial court denied the motion to
exclude the DOH order; the parties agreed to a redacted version of the order which was
admitted as exhibit 260. The trial court also denied the motion to exclude the WMC
order and determined it was admissible under ER 404(b) and relevant to the standard of
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care and Dr. Brecht’s way of treating patients. The parties agreed to a redacted version
of the WMC order which was admitted as exhibit 261.
Dr. Brecht moved to exclude the standard of care testimony by Elmi’s expert,
board certified anesthesiologist, Dr. Harold Brandford. The trial court denied Dr.
Brecht’s motion as it related to the postsurgery standard of care. The court granted the
motion as to care during surgery and invited Elmi to make an offer of proof for
presurgery standard of care. Following cross-examination of Dr. Brandford, Elmi
conceded there was no injury incurred as a result of Dr. Brecht’s sedation method and
so Dr. Brandford’s testimony on the standard of care during surgery was irrelevant. The
trial court instructed the jury as follows, “you have heard testimony from Dr. Brandford
regarding violations of the standard of care. You are to disregard any testimony from
Dr. Brandford as it relates to standard of care and/or proximate cause related to Dr.
Brecht’s sedation practices or methods of anesthesia.”
Dr. Brecht also moved to exclude all expert testimony on material facts, including
risks from diabetes, smoking, and scarring, that Elmi was not informed of prior to
consenting to surgery. The trial court denied the motion.
Dr. Brecht testified consistent with a general denial. She confirmed that she was
the decisionmaker for ARS marketing and used a process to get patients to agree to
surgery that began with advertising.
Elmi introduced testimony from Stephanie Kodis-Fisher, a former patient of Dr.
Brecht, who had a similar surgery to Elmi. The trial court determined that the testimony
of Kodis-Fisher was limited to oral statements by Dr. Brecht while going through
consent forms. But Elmi’s counsel asked Kodis-Fisher about her scars and Dr. Brecht
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objected before Kodis-Fisher answered. The trial court instructed the jury that
statements and questions of counsel are not evidence.
Elmi testified that when she found Dr. Brecht online she did not see many
reviews for surgeries. She testified that at her first visit to ARS, Dr. Brecht presented
herself as “the best” with the “best technology” and that she teaches people surgery.
Elmi testified that Dr. Brecht “didn’t say much” about smoking or diabetes and took her
in like a “perfect candidate” for the surgery. Elmi testified that Dr. Brecht told her the
scar from her tummy tuck would be thin and the she wouldn’t even notice it. Elmi
testified that Dr. Brecht said it was safe to get multiple surgeries a week apart because
it was the best way to heal all at once and that it was safe. Dr. Brecht told Elmi that the
healing process would take about two weeks.
Elmi described going to her first surgery and arriving at ARS, but otherwise could
not remember what happened. Elmi said she had no memory after the surgery until
four or five days later. Elmi described arriving at ARS for her second surgery and that
she was taken to a room and given medication after which she was told to sign a form.
Elmi testified that in postsurgery follow-up appointments, Dr. Brecht said she was doing
“amazing, beautiful, everything looking good.” Elmi described Dr. Brecht using tape on
her wounds that would strip her skin off at each appointment.
Elmi testified that after the second surgery she began to smell “funny” and that
when she told Dr. Brecht her concerns, Dr. Brecht did not test her for infection. Elmi
said that eventually, after Blanton insisted, she was tested for infection and that test
came back positive. Elmi testified that since the surgeries she cannot wear short sleeve
clothing and that she hates how she looks.
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Blanton testified that he did not remember Dr. Brecht disclosing the risks of
surgery. He testified that Dr. Brecht did not discuss the additional risks of smoking and
diabetes. Blanton also testified that he did not witness Elmi sign consent forms.
The jury also heard from several experts including board certified cosmetic
surgeon Dr. Elmer Mangubat and board certified plastic surgeons Dr. Paul Luu, Dr.
Mark Mandell-Brown, and Dr. Adam Rubinstein.
D
On July 24, 2023, Dr. Brecht moved for mistrial under CR 59 asserting that Elmi’s
counsel violated the trial court’s rulings on motions in limine for the WMC order exhibit
261, and Kodis-Fisher’s testimony. She also argued the admission of Dr. Brandford’s
testimony regarding the standard of care and anesthesia warranted a mistrial. The trial
court denied the motion.
On July 27, 2023, Dr. Brecht moved for judgment as a matter of law under CR 50
on the CPA claim. Dr. Brecht also moved for partial directed verdict under CR 50 on the
CPA claim, the medical negligence claim, and the breach of promise claim.
On August 3, 2023, the case was submitted to the jury and the trial court
addressed the pending motions:
The defense has made their record for their motions, but I see no benefit to my removing any of the claims that are in front of the jurors at this stage because, if I’m wrong, the Court of Appeals says I was wrong to do so, then the whole case would have to be retried, especially at least as to that claim, and that to me seems like a horrible waste of resources for the parties. What’s the difference between ruling now versus ruling after the jurors have reached a verdict and potentially setting aside that verdict, if I agreed with defense’s position? So I’m denying those motions without prejudice at this time, and they can be renewed as the rules allow following entry of the verdict.
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On August 4, 2023, the jury found in favor of Elmi on all claims. The jury
awarded $11,000,000 to Elmi for past and future damages and $2,000,000 to Blanton
for loss of consortium. The jury also determined the financial loss under the CPA to be
$34,186. On August 23, 2023, the trial court entered judgment in the amount of
$13,034,186.
On September 1, 2023, Dr. Brecht moved for a new trial under CR 59(a) on 16
grounds including the violations of motions in limine, denial of motions for mistrial, and
denial of motions for directed verdict. Following a hearing, the trial court denied the
motions based on a lack of evidence and insufficient argument.
On September 25, 2023, the trial court entered findings of fact and conclusions of
law awarding fees and treble damages and entered a supplemental judgment in the
amount of $79,000 in attorney fees and $25,000 in treble damages.
Dr. Brecht appeals.
II
Dr. Brecht argues the trial court abused its discretion by improperly admitting
evidence of prior conduct under ER 404(b). Specifically, she assigns error to the
admission of exhibit 261, the language of RCW 18.130.180(4), and WMC representative
Kyle Karinen’s deposition testimony as evidence of Dr. Brecht’s practice and the
standard of care. She also assigns error to Kodis-Fisher’s testimony related to the
consent forms. We disagree.
We review a trial court’s decision to admit evidence under ER 404(b) for abuse of
discretion. Doe v. Corp. of President of Church of Jesus Christ of Latter-Day Saints,
141 Wn. App. 407, 167 P.3d 1193 (2007) (citing State v. Lough, 125 Wn.2d 847, 864-
-7- No. 85851-3-I/8
65, 889 P.2d 487 (1995)). “A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons.” In re Marriage of
Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). “A court’s decision is manifestly
unreasonable if it is outside the range of acceptable choices, given the facts and the
applicable legal standard; it is based on untenable grounds if the factual findings are
unsupported by the record; it is based on untenable reasons if it is based on an
incorrect standard or the facts do not meet the requirements of the correct standard.”
Littlefield, 133 Wn.2d at 47. “If the trial court’s ruling is based on an erroneous view of
the law or involves application of an incorrect legal analysis it necessarily abuses its
discretion.” Dix v. ICT Grp, Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
The trial court determined that exhibit 261 would be redacted to include only the
four surgical patients who underwent procedures similar to Elmi. The trial court then
conducted the ER 404(b) analysis:
The purpose for which the evidence is sought is to show that this is the way that—I mean, this is, again, the Dr. Brecht way of sedating people, of performing these kinds of surgeries. So it goes to her preparation. It goes to her plan. It goes to any kind of lack of mistake that she just didn't really understand. Oh, wait, I—for this one time, I had to do this. You know, this is the way she does it all the time.
So I think it serves that purpose and it’s certainly—is relevant to prove an element here at issue, the standard of care and whether or not she—her conduct was below the standard of care. And the probative value is very high. It’s not unfairly prejudicial. Again, these are Dr. Brecht’s own admissions. So I think it satisfies that test . . . for admissibility.
Elmi also sought to introduce RCW 18.130.180(4)—part of the statutory definition
of unprofessional conduct for health care professionals—for illustrative purposes to help
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the jury understand exhibit 261. 1 Dr. Brecht objected on the grounds that it would
confuse the jury. The trial court ruled that reference to the statute would be redacted
unless Dr. Brecht provided a limiting instruction. The parties agreed on a limiting
instruction and RCW 18.130.180(4) was introduced for illustrative purposes only. The
trial court gave the following instruction:
Evidence on the subject of the content of the language of the statute referenced in Exhibit 261 will now be introduced. You may consider this evidence only to determine what Defendant Dr. Brecht agreed to in this order and to understand her testimony in this case regarding the agreed order. You are not to consider this evidence for any other purpose. You are not to discuss this evidence when you deliberate in the jury room to determine the standard of care in this case.
Also related to exhibit 261, Elmi introduced the CR 30(b)(6) deposition of
Karinen. Before the deposition was played, the trial court gave the following instruction
to the jury:
Members of the jury, in this deposition, evidence on the subject of the content of statute RCW 181.30.180 subsection (4) will be presented. You may consider this evidence only to determine the content of Dr. Brecht’s agreed order with the Washington Medical Commission . . . and to understand this witness’s testimony in this case regarding the agreed order. You are not to consider this evidence for any other purpose. You are not to discuss this evidence when you deliberate in the jury room to determine the standard of care in this case.
Karinen testified that the WMC oversees the professional conduct of doctors and
has the authority to take enforcement action if doctors violate the Uniform Disciplinary
Act, ch. 18.130 RCW. He testified that the WMC identified deficiencies in Dr. Brecht’s
1 RCW 18.130.180(4) provides that the following constitutes unprofessional conduct:
Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed.
-9- No. 85851-3-I/10
treatment records and documentation of care and had overall concerns about her
clinical judgment particularly when screening patients. He described the statute
referred to in the order, RCW 18.130.180(4), as the “standard of care subsection” and
that it “involves the allegation of negligence and/or risk of harm to a patient by the
conduct that’s being described.”
The trial court also allowed testimony of Kodis-Fisher about her experience with
Dr. Brecht, finding that it was relevant and admissible:
since it’s not a prior bad act, I don’t think 404 (b) necessarily applies. But even if 404(b) does, I think that it is admissible for purposes such as showing the preparation that Dr. Brecht does for performing any surgeries. This is how—this is her way of—of preparing with patients for what the procedure’s going to be. .... The limited parameters of the testimony that will be elicited from this witness, which I think is relevant, and I think it passes the 403 test. It’s not unfairly prejudicial. It’s probative, the kind of preparation for procedures that Dr. Brecht goes through with her patients. And this is someone that, you know, had that procedure right around the same time as Ms. Elmi, and so I’m going to allow it.
Kodis-Fisher testified that the consent forms were hard to read and blurry and
that no one went through the documents with her. She testified that Dr. Brecht did not
go over the risks of surgery and that she described the surgery as routine with a simple
incision that would leave minimal scarring. She described the medications she was
instructed to take and that she had no memory of what happened after she arrived at
the office. Kodis-Fisher testified that she was not clear on exactly what her surgery
entailed or what was going to happen afterward.
-10- No. 85851-3-I/11
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable.”
ER 401. Relevant evidence is admissible except as limited by constitutional
requirements or as provided by statute, rule, or regulation. ER 402. “The threshold to
admit relevant evidence is very low. Even minimally relevant evidence is admissible.”
State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). ER 404(b) bars evidence
of other “crimes, wrongs, or acts” to prove the character of a person to show action in
conformity therewith, but allows admission of such evidence for other purposes. Other
purposes include, but are not limited to “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).
“An evidentiary error which is not of constitutional magnitude, such as erroneous
admission of ER 404(b) evidence, requires reversal only if the error, within reasonable
probability, materially affected the outcome.” State v. Everybodytalksabout, 145 Wn.2d
456, 468-69, 39 P.3d 294 (2002) (quoting State v. Stenson, 132 Wn.2d 668, 709, 940
P.2d 1239 (1997)). “The error is ‘not prejudicial unless, within reasonable probabilities,
the outcome of the trial would have been materially affected had the error not
occurred.’” Everybodytalksabout, 145 Wn.2d at 469 (quoting State v. Bourgeois, 133
Wn.2d 389, 403, 945 P.2d 1120 (1997)). “The error is harmless if the evidence is of
minor significance compared to the overall evidence as a whole.” Everybodytalksabout,
145 Wn.2d at 469.
-11- No. 85851-3-I/12
Here, even if we agree with Dr. Brecht that admission of exhibit 261, the statute,
Karenin’s testimony, and Kodis-Fisher’s testimony was improper under ER 404(b), the
error was harmless considering the evidence as a whole.
The jury heard evidence that Dr. Brecht breached the standard of care in several
instances including approving Elmi for surgery without knowing her A1C levels. Dr.
Brecht testified that she did not document Elmi’s A1C during screening. Dr. Brecht
testified that she did not test Elmi’s A1C because Elmi told her it was 7.4; but in
deposition testimony Dr. Brecht said Elmi’s A1C was 10. Dr. Brandford testified that
normal A1C is in the range of “high five to six” and clearing a patient for anesthesia and
surgery without knowing the patient’s A1C is a breach of the standard of care. Dr.
Mangubat testified that before surgery he determines whether a patient’s A1C tends to
be high. Dr. Rubenstein testified that based on Elmi’s health and risk factors, she
should not have been considered for surgery and Dr. Brecht lacked sufficient
information to make the decision to proceed with surgery.
The jury heard evidence that Dr. Brecht breached the standard of care by
performing too many surgeries at once and closing incisions with too much tension. Dr.
Rubenstein testified that it was an error in judgment to perform multiple surgeries at
once considering Elmi was a poor candidate and particularly in combination with the
large volume liposuction and abdominoplasty. From his observations of Elmi’s
incisions, Dr. Rubenstein described the excessive tension and resulting necrosis
caused by Dr. Brecht’s failure of technique and a cursory presurgery marking of where
to cut. Dr. Luu also testified that doing multiple surgeries at once, particularly
liposuction and a tummy tuck, increases the risk of necrosis.
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Dr. Rubenstein testified that Dr. Brecht violated the standard of care by failing to
perform muscle plication for the tummy tuck and failing to achieve symmetry on the
breast lift.
Dr. Rubenstein testified that Dr. Brecht violated the standard of care postsurgery
by using tape repeatedly even when it was causing more trauma and failing to offer
medication to help with scarring. Dr. Rubenstein testified that Dr. Brecht violated the
standard of care by waiting 10 days after noting an odor coming from the arm wound to
test for infection.
The jury heard evidence that Dr. Brecht failed to disclose material risks and
violated the principles of informed consent. Dr. Brecht testified that the risks and
benefits of treatment specific to Elmi were included on a “front page” that was
referenced throughout the forms, or were conveyed to Elmi verbally. Dr. Brecht also
testified that the “front page” was only to “go over that this is office space procedure
under local anesthesia, and listing the surgeries.”
Dr. Rubenstein testified that the “front page” was not a consent form and that the
absence of Dr. Brecht’s signature indicates “if it’s not documented, it didn’t happen.” Dr.
Rubenstein testified that Dr. Brecht’s documentation and consent forms inadequately
described and disclosed the data and risks particular to Elmi for smoking, diabetes and
scarring, high body mass index, and high volume liposuction. Dr. Rubenstein testified
that the consent forms provided to Elmi were not curated to her as shown by the
irrelevant or missing information on specific procedures.
Elmi testified that when she went to ARS for surgery she was given a “cocktail” of
medication and then she was asked to sign forms. Medical assistant Lopez testified
-13- No. 85851-3-I/14
that part of her job was to give patients the consent forms and that even though she
signed Elmi’s forms as a witness, Lopez did not actually witness Elmi sign them.
Based on the foregoing, the challenged evidence is of minor significance
considering the evidence as a whole. There is no reasonable probability that exhibit
261, the statutory language, the testimony of Karinen, and the testimony of Kodis-Fisher
materially affected the outcome of the trial. Thus, any error in admitting the evidence
under ER 404(b) was harmless. 2
III
Dr. Brecht argues the trial court erred by denying the motion for mistrial because
of the admission of Dr. Brandford’s irrelevant testimony regarding anesthesia. Dr.
Brecht briefly asserts that the testimony was irrelevant to the informed consent claim.
We disagree.
We review a trial court’s decision to deny a mistrial for abuse of discretion.
Helmbreck v. McPhee, 15 Wn. App. 2d 41, 67, 476 P.3d 589 (2020). “The trial court
should grant a mistrial ‘only when nothing the court can say or do would remedy the
harm caused by the irregularity or, in other words, when the harmed party has been so
prejudiced that only a new trial can remedy the error.’” Helmbreck, 15 Wn. App. 2d at
67-68 (quoting Kimball v. Otis Elevator Co., 89 Wn. App. 169, 178, 947 P.2d 1275
2 Dr. Brecht also argues the trial court abused its discretion by admitting exhibit 260 under ER
404(b). Dr. Brecht moved to exclude all “DOH/WMC evidence” under ER 404(b). When objecting to exhibit 260 specifically, Dr. Brecht did not argue exclusion based on ER 404(b). Instead, Dr. Brecht objected to the evidence as irrelevant and cumulative. “Even if an objection is made at trial, a party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial.” DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 (1986). Accordingly, we do not address whether the trial court abused its discretion by admitting exhibit 260 under 404(b). RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005).
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(1997)). In determining the effect of an irregularity, this court examines (1) its
seriousness, (2) whether it involved cumulative evidence, and (3) whether the trial court
properly instructed the jury to disregard it. Helmbreck, 15 Wn. App. 2d at 68 (citing
State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012)). A trial court has broad
discretion to rule on irregularities during trial because it is in the best position to
determine whether a trial irregularity caused prejudice. State v. Wade, 186 Wn. App.
749, 773, 346 P.3d 838 (2015).
Following cross-examination of Dr. Brandford, Elmi conceded there was no injury
incurred as a result of the sedation and so his testimony on standard of care regarding
anesthesia was irrelevant. But Elmi asserted Dr. Brandford’s testimony was relevant to
the standard of care for screening and informed consent. The parties agreed to an
instruction and the trial court instructed the jury as follows, “you have heard testimony
from Dr. Brandford regarding violations of the standard of care. You are to disregard
any testimony from Dr. Brandford as it relates to standard of care and/or proximate
cause related to Dr. Brecht’s sedation practices or methods or anesthesia.”
Dr. Brecht argues that the entirety of Dr. Brandford’s testimony was irrelevant to
both the medical negligence and the informed consent claims. Dr. Brecht also points to
the jury question about anesthesia and the standard of care after receiving the limiting
instruction. But this question came after the jury heard from Dr. Brecht’s expert witness,
Dr. Mandell-Brown who also testified about the standard of care and anesthesia. The
trial court provided the following jury instruction:
You have heard testimony regarding violations of the standard of care. You are to disregard any testimony as it relates to standard of care and/or proximate cause related to Dr. Brecht’s sedation practices or methods of
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anesthesia. You may consider this testimony with regard to plaintiffs’ informed consent claim.
Dr. Brecht provides no argument that Dr. Brandford’s testimony was a serious
irregularity. Nor does she address other properly admitted evidence on breach of
standard of care or lack of informed consent. And the jury was twice instructed to
disregard standard of care testimony related to sedation and anesthesia. The jury is
presumed to follow the court’s instructions. Singh v. Edwards Lifesciences Corp., 151
Wn. App. 137, 152, 210 P.3d 337 (2009).
Dr. Brecht briefly raises the issue of proximate cause and injury required to prove
informed consent. She relies on Backlund v. University of Washington, 137 Wn.2d 651,
668, 975 P.2d 950 (1999), to support her argument that the testimony was irrelevant
because the undisclosed risk must be both material and “the kind of risk or danger
which resulted in harm,” and Elmi conceded there was no harm caused by anesthesia.
But her argument misses the mark and quotes from Backlund out of context. In
Backlund, the court discusses the third element of an informed consent claim which
requires the fact finder to determine “whether a reasonably prudent patient in the
plaintiff’s situation would have chosen a different treatment option.” Backlund, 137
Wn.2d at 667-68. In support of this statement of law the Backlund court cited to several
cases including Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972), in which the
court said “[i]f adequate disclosure could reasonably be expected to have caused that
person to decline the treatment because of the revelation of the kind of risk or danger
that resulted in harm, causation is shown.”
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Dr. Brecht asserts that Elmi must show the undisclosed risk caused harm. But
the fourth element of an informed consent claim requires that Elmi show the treatment
at issue proximately caused injury to the patient. Backlund, 137 Wn.2d at 664. Elmi’s
argument was that had she been adequately informed of the risks relating to the
surgeries as performed by Dr. Brecht she would not have consented to the surgery and
it was the surgery that caused her injury. And Dr. Brandford’s testimony was certainly
relevant to the material risks and informed consent relating to surgery such as
screening for surgery, diabetes, and anesthesia. 3
Dr. Brecht fails to establish that because of the admission of Dr. Brandford’s
testimony she suffered prejudice so great that it could only be addressed by a new trial.
Thus, the trial court did not abuse its discretion by denying the motion for mistrial.
IV
Dr. Brecht argues the trial court erred by denying the motion for new trial
because Elmi committed misconduct throughout trial creating incurable prejudice. Dr.
Brecht asserts a new trial was required because of the violations of the motions in
limine regarding exhibit 261 and testimony of Kodis-Fisher. 4 We disagree.
We review a trial court’s decision to deny a new trial for abuse of discretion.
Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 454, 191 P.3d 879 (2008).
3 Dr. Brandford testified that diabetes presents complicated and important risks for a surgical
patient that should be disclosed prior to surgery and that a patient’s A1C must be known prior to surgery. Dr. Brandford also identified lack of intravenous access as a risk. He testified that the forms appeared incomplete as to patient history and confusing as to the risks of anesthesia. 4 Dr. Brecht also argues that a new trial was required because of the violation of Elmi’s motion in
limine by asking Dr. Luu about “Cinderella Anesthesia,” and Elmi’s misrepresentation of the scope of claims regarding anesthesia and harm and subsequent withdrawal of that claim for medical negligence. But Dr. Brecht did not argue misconduct related to Dr. Luu’s testimony or the scope of anesthesia claims in her motion for new trial under CR 59(a)(2). Accordingly, we decline to address the argument on appeal. RAP 2.5(a); Roberson, 156 Wn.2d at 39.
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In motions in limine, exhibit 261 was redacted to show four surgical patients only.
Dr. Brecht testified that she agreed to everything in exhibit 261, and that “I think it’s
referring to four patients, not Ms. Elmi.” The testimony led to the following exchange:
Q: Is it only having to do with four patients? A: That’s what the agreed order is talking about. Q: Dr. Brecht, there are more patients in this order than four, isn’t there? A: I agreed to whatever was in this order. MS. WICK: Objection, Your Honor . . . Motions in limine. THE COURT: Well, I’m going to let her answer stand. Go ahead. MS. ALIMENT: Did you say sustained? THE COURT: I’m going to let her answer stand, so that’s essentially being overruled. She answered before— MS. ALIMENT: I couldn’t hear her answer over Counsel’s objection. Sorry. THE COURT: Her answer, Dr. Brecht’s answer is going to stand. Just ask your next question. Q. (By Ms. Aliment): How many patients were addressed in this order? A: I don’t—well, A, B, C, D. We’re talking about four patients. Q: Dr. Brecht, there’s nine patients addressed in this order, isn’t there? MS. WICK: Objection, Your Honor. Motions in limine.
Outside the presence of the jury, Dr. Brecht asked for mistrial and the trial court
disagreed that mistrial was the appropriate remedy. Instead the trial court instructed the
jury as follows:
Exhibit 261 covers four patients and four patients only: Patients A, B, C, and D. You are to disregard any testimony that’s inconsistent with that. And I want to remind you that questions or statements of Counsel is not evidence. The evidence is the testimony of the witnesses and the exhibits that are admitted. That is the testimony—or that is the evidence. So to the extent that there was any questions that suggested that additional patients were covered by this exhibit, you are to ignore the content of that question.
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Also in motions in limine, the testimony of Kodis-Fisher was limited to oral
statements by Dr. Brecht while going through consent forms. Elmi’s counsel asked
Kodis-Fisher about her scars:
Q: Are the scars that you have today consistent with how they were described to you before surgery by Dr. Brecht?
MS. MARQUEZ: Objection, Your Honor. Motions in limine.
Outside the presence of the jury, Dr. Brecht renewed her motion for mistrial and the trial
court made the following ruling:
An unanswered question, in my view, is—is not worthy of a mistrial. And the question itself did not contain sufficiently prejudicial information or anything else that would warrant that severe of a recourse. I do think that counsel needs to be mindful of the Court’s rulings on motion in limine and just not push it. I feel like you’re kind of just trying to tiptoe right up to the line and sometimes peek over, and you just don’t need to do that. It’s—it’s not productive, and it’s so—but I’m happy to instruct the jurors to disregard the prior answer and we can—I’m sorry—the prior question and we can move on. Or you don’t need to make a bigger deal of it. That’s your—that’s your strategy and however you want to do it. But I’m offering you the opportunity for any kind of curative instruction that you want. .... And, again, there’s no actual evidence of nine patients. There’s no actual evidence of the scarring, in regards to this witness. There’s just the questions that touched on those topics, which I’ve reminded the jurors, and I’m happy to do it again, if you want me to, which is not the—the questions themselves are not evidence at all.
The trial court reminded the jurors that statements and questions of counsel are not
evidence.
At the hearing on the motion for a new trial, Dr. Brecht did not argue misconduct
by violations of motions in limine and relied on her motion. The trial court denied the
motion:
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I have considered the motion. I’ve considered the opposition. At just a fundamental level, there isn’t anything in the record to support any of the arguments that are made based on what allegedly happened during the trial or what questions were asked, what answers were given, what ruling was made by the Court.
So as—as just that fundamental basis, I think that warrants denial of—of the motion. And that even—even essentially considering the arguments as being based on what happened and just making that assumption, I don’t believe that the threshold has been met for a new trial.
Our Supreme Court has explained when new trials should be granted based on
misconduct:
New trials premised on misconduct are appropriate when “misconduct of [the] prevailing party” “materially affect[s] the substantial rights of [the aggrieved] parties.” CR 59(a)(2). A party seeking a new trial for misconduct must establish that (1) the challenged conduct was actually misconduct, (2) the misconduct was prejudicial, (3) the misconduct was objected to at trial, and (4) the misconduct was not cured by the trial court’s instructions. The key question is whether “such a feeling of prejudice [has] been engendered or located in the minds of the jury as to prevent a litigant from having a fair trial.”
Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 806, 490 P.3d 200 (2021)
(alterations in original) (citations and internal quotation marks omitted) (quoting Alum.
Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)).
In her motion for new trial, Dr. Brecht raised the violations of motions in limine but
failed to make any argument and merely referred to the argument presented in her
motion for mistrial—a motion that was denied. 5 And the motion for mistrial simply
5 On appeal, Dr. Brecht does not raise the misconduct argument in her challenge to the denial of
the motion for mistrial.
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concludes, without citation to authority, that these two incidents amount to misconduct
and satisfy the CR 59(a) standard.
In briefing to this court, Dr. Brecht cites to Teter v. Deck, 174 Wn.2d 207, 274
P.3d 336 (2012), and argues the two incidents amount to misconduct. But Teter is
distinguishable because it involved violations of several orders and repeated attempts to
improperly put exhibits in front of the jury over objection and in violation of motions in
limine even after counsel was warned. 174 Wn.2d at 223-25. The level of misconduct
here, if it even was misconduct, does not rise to the level shown in Teter. And Dr.
Brecht fails to persuade that the two violations were not cured by the limiting
instructions or that “such a feeling of prejudice [has] been engendered or located in the
minds of the jury as to prevent a litigant from having a fair trial.” Coogan, 197 Wn.2d at
806.
For these reasons, the trial court did not abuse its discretion by denying the
motion for new trial.
V
Dr. Brecht argues the trial court erred by denying her motion for judgment as a
matter of law and motion for directed verdict because Elmi’s CPA claim is based on the
results of the surgery and are indistinguishable from the medical negligence claim. Dr.
Brecht relies on Ambach v. French, 167 Wn.2d 167, 173, 216 P.3d 405 (2009), and
argues that Elmi did not provide evidence that Dr. Brecht’s marketing induced patients
to purchase her services.
A motion for directed verdict or judgment as a matter of law “should be granted
only when, after viewing the evidence in the light most favorable to the nonmoving
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party, there is no substantial evidence or reasonable inferences therefrom to support a
verdict for the nonmoving party.” 6 Mancini v. City of Tacoma, 196 Wn.2d 864, 877, 479
P.3d 656 (2021) (quoting H.B.H. v. State, 192 Wn.2d 154, 162, 429 P.3d 484 (2018)).
“‘Substantial evidence is said to exist if it is sufficient to persuade a fair-minded, rational
person of the truth of the declared premise.’” Mancini, 196 Wn.2d at 877 (quoting
Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)). “The
evidence must be considered in the light most favorable to the nonmoving party.”
Mancini, 196 Wn.2d at 877 (quoting Bender v. City of Seattle, 99 Wn.2d 582, 587, 664
P.2d 492 (1983)).
RCW 19.86.090 allows “[a]ny person who is injured in his or her business or
property” to bring a civil action to recover actual damages, trial costs, and attorney fees.
Personal injuries do not constitute injury to business or property. Ambach, 167 Wn.2d
at 173. “To state a prima facie claim under the [CPA], a plaintiff must establish five
distinct elements: (1) an unfair or deceptive act or practice, (2) occurring in trade or
commerce, (3) public interest impact, (4) injury to the plaintiff in his or her business or
property, and (5) causation.” Williams v. Lifestyle Lift Holdings, Inc., 175 Wn. App. 62,
70, 302 P.3d 523 (2013) (citing Hangman Ridge Training Stables, Inc. v. Safeco Title
Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)).
In Ambach, Dr. French performed a shoulder surgery on Ambach. Following the
surgery, Ambach complained of excessive pain and it was determined she had a staph
infection in her shoulder and needed further surgeries resulting in various financial
6 “Motions for directed verdict and motions for judgment notwithstanding the verdict were
renamed “motions for judgment as a matter of law” effective September 17, 1993.” Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001).
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losses. But Ambach agreed that her CPA injury stemmed from the surgery itself and
our Supreme Court held that “what she really seeks is redress for her personal injuries,
not injury to her business or property.” Ambach, 167 Wn.2d at 178-79. The court also
noted that Ambach failed to “allege that Dr. French actively solicited her as a patient or
advertised shoulder surgeries to the general public.” Ambach, 167 Wn.2d at 178.
In Williams, Williams saw a television commercial for a “Lifestyle Lift” and she
called the 1-800 number and received a brochure which made several claims about the
“exclusively designed” and “minor” facelift that required no “dangerous general
anesthetic” and produced immediate results and required minimal recovery time. 175
Wn. App. at 65. Williams was directed to a surgical center and had a consultation
where she was shown a video that reiterated the sales pitch from the commercial and
the same day she signed a surgery agreement. Williams, 175 Wn. App. at 69. The
marketing strategy appealed specifically to patients wary of traditional facelift surgery.
Following surgery, Williams suffered intense pain and swelling and eventually
underwent a second surgery to correct the problems but ended up with deformed
earlobes and numbness in one cheek. Williams sued under the CPA but her claim was
dismissed on summary judgment. On appeal, this court distinguished Ambach, and
noted that the essence of Williams’s claim was that the defendants were in the business
of selling surgeries and that she would have never given them money but for their
advertising and marketing. Williams, 175 Wn. App. at 72. This court concluded that
Williams stated a prima facie claim under the CPA. Williams, 175 Wn. App. at 74.
Here, Elmi’s CPA claim is similar to the claim in Williams, that but for Dr. Brecht’s
deceptive advertising, she would not have given Dr. Brecht money. Dr. Brecht testified
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that she was the ultimate decisionmaker for the marketing and advertisement of ARS
services. The jury saw evidence of the ARS process which involved internal and
external marketing to accomplish the “ultimate goal” of getting patients to have surgery.
The plan involved scheduling “motivated” patients for a preop on the same day as the
consult and obtaining a $1000 deposit. Regarding public advertising, Dr. Brecht
testified that she never renamed the ARS Yelp page. Lopez testified that there were “a
lot” of negative patient reviews on Yelp and that Dr. Brecht asked her to contact Yelp to
inquire whether they could be taken down. She testified that Yelp could not alter the
negative reviews and that Dr. Brecht changed the name of her Yelp page to Restylyne. 7
Elmi testified that she found Dr. Brecht online but did not see a lot of reviews of
surgeries. She testified that she looked at the ARS website. The ARS website
advertised Dr. Brecht’s trademark “Cinderella Anesthesia.” The website also included
photos of results for procedures done on stomachs and arms that showed small
incisions. The ARS website advertised Dr. Brecht as a “board certified physician from
the University of Massachusetts, and completed her plastic surgery fellowship from
University of South Florida.” Dr. Rubenstein testified that based on that information he
would not know what her board certification was in.
Unlike in Ambach, here there was a marketing plan that targeted patients who
were motivated to have surgery. Although the advertising in this case did not occur
exactly like the advertising in Williams, Elmi presented sufficient evidence to persuade a
rational fair-minded person that Dr. Brecht used deceptive public advertising in her
7 Also referred to in the record as “Restylane.”
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business. The evidence is also sufficient to persuade that such practices caused Elmi
to agree to the procedure and hand over her money.
Viewing the evidence in the light most favorable to Elmi, we conclude substantial
evidence supports the verdict and the trial court did not err by denying the motions for
judgment as a matter of law and directed verdict on the CPA claim.
We affirm.
WE CONCUR:
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