IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NEH KUH NEH and SAY MO, individually, and as a married couple, No. 88081-1-I
Respondents, DIVISION ONE v. UNPUBLISHED OPINION TIBLETS TEBABAL, an individual, Appellant.
BIRK, J. — Tiblets Tebabal appeals from a jury verdict in favor of Neh Kuh Neh and Say Mo. Tebabal argues (1) she was prejudiced by the trial court conducting a GR 37 analysis in the presence of the jury, which the trial court later recognized was error, (2) the trial court erred in excluding evidence of certain injuries waived by Mo, and (3) the trial court erred in admitting evidence of future treatment costs not supported by evidence the treatments were reasonably certain to be necessary in the future. We affirm the trial court on the first two issues, but we conclude the trial court erred in admitting evidence of unsupported future treatment costs, and the error was not harmless. We reverse and remand for a new trial on damages only.
I
Neh Kuh Neh and Say Mo are a married couple. In 2022, Neh and Mo filed a complaint for damages against Tiblets Tebabal for injuries arising out of a September 2021 automobile collision. The case went to trial in December 2024.
After an 11 day trial, in which 17 witnesses testified, with the help of Amharic and Karenni interpreters, the jury returned a verdict finding Tebabal 100 percent at fault and awarded Neh $21,500 in past noneconomic damages, $330,240 in future economic damages, and $93,740 in future noneconomic damages, and Mo $110,000 in past noneconomic damages, $1,700,000 in future economic damages, and $275,000 in future noneconomic damages.1 Tebabal timely appeals.
II
Tebabal contends that the trial court’s error, in conducting its GR 37 analysis in the presence of the jury, exposed the jury to an “improper legal framework,” was structural error, and improperly injected racial bias into the proceeding. On each of these bases, Tebabal argues she is entitled to reversal and a new trial. We disagree. That the trial court committed error in conducting its GR 37 analysis before the jury is not disputed, and the trial court acknowledged its error to the parties. Tebabal does not challenge the court’s substantive GR 37 ruling, but only the impropriety of conducting its analysis in the presence of the jury. The trial court remedied its error by admonishing, polling, and instructing the jury. Tebabal can show no prejudice that would warrant the remedies of dismissing the jury panel or conducting a new trial.
1 Tebabal does not challenge the jury’s verdict on liability. Wash. Ct. of Appeals oral arg., Neh Kuh Neh v. Tiblets Tebabal, No. 88081-1-I (July 9, 2026), at 4 min., 28 sec., to 5 min., 19 sec., audio recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals- 2026071123/?eventID=2026071123.
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A
GR 37 was established to eliminate the unfair exclusion of potential jurors based on race or ethnicity. State v. Bell, 5 Wn.3d 54, 66, 571 P.3d 272 (2025). “In addition to preventing purposeful racial discrimination, the rule is aimed at preventing implicit racial and ethnic bias in jury selection, which are subconscious attitudes towards groups that influence a person’s decisions without their awareness.” Id. “A party may object to the use of a peremptory challenge to raise the issue of improper bias. . . . The objection shall be made by simple citation to [GR 37], and any further discussion shall be conducted outside the presence of the panel.” GR 37(c). “When a juror is erroneously struck and race or ethnicity could have been a factor” it implicates a juror’s right to equal protection and is “per se reversible error.” State v. Booth, 22 Wn. App. 2d 565, 580, 510 P.3d 1025 (2022). But the erroneous denial of a peremptory strike does not implicate a juror’s right to equal protection, and it is not per se reversible error. Id. at 581-82. “The law presumes that each juror sworn in a case is impartial and above legal exception, otherwise, [they] would have been challenged for cause.” State v. Kender, 21 Wn. App. 622, 626, 587 P.2d 551 (1978).
Neh and Mo are from Burma2 and first met in a refugee camp in Thailand.
During voir dire, juror 57 identified herself as a Vietnamese refugee.3 Juror 57
2 The record refers to both Burma and Myanmar. We use Burma to reflect the terminology Neh used in his testimony at trial. The court does not intend to express any assumption in regard to the naming convention used by the parties.
3 The trial transcript does not identify the juror who stated that they are a
Vietnamese refugee. But in their response to Tebabal’s motion for a new trial, Neh and Mo’s counsel attested that the unidentified juror was juror 57.
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disclosed that she was a commissioner for the Washington State Human Rights Commission—something that Tebabal questioned her about. Tebabal attempted to exercise a peremptory strike on juror 57, but Neh and Mo, citing GR 37, challenged the strike. The trial court asked for Tebabal’s response, to which Tebabal’s counsel invited a sidebar, and the court responded, “The court had anticipated we would do it on the record.” Tebabal’s counsel gave her justification for the peremptory challenge, saying, “The—with all due respect, nature of the work that is being done, I think, is too close to some of the issues in the case, specifically with the status of the Plaintiffs. Yeah, I mean, I don’t—that’s my record.” The court, conducting its GR 37 analysis, stated that the reason for the challenge might be disproportionately associated with race or ethnicity, and denied the challenge. Tebabal accepted the panel without challenging juror 57 for cause.
Later that day, the court e-mailed the parties and acknowledged its error in conducting the GR 37 analysis in front of the jury. The court invited the parties to “submit briefing about [the court’s] error” so the court “may address [its] error with the jury prior to opening arguments.” Tebabal filed a motion to strike the venire, arguing that she had been prejudiced by the court’s error. The court had observed the expressions and reactions of the jurors, stating it saw “confusion, if anything,” and no prejudice. It denied the motion, declaring that it would admonish the jury to disregard “motions, objections, and decisions in the jury selection process,” question the jurors about any concerns with their ability to follow the instructions of the court, and question the jurors if anything during voir dire had “given rise to
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any feelings of bias or prejudice against any party.” Later that day, the court swore in the jury. The court admonished, polled, and instructed the jury to mitigate any potential prejudice created by the court’s error.
Tebabal’s counsel claimed, in her declaration supporting her posttrial motion for a new trial, that the basis for her peremptory strike was race neutral, and she “felt constrained in [her] ability to discuss this with the Court in front of the panel.” She claimed her “ability to fully engage with the Court was limited due [to] concerns of how the jurors, including Juror 57, would think about the information and having to reveal [her] thoughts, concerns, and impressions of the juror before the panel.” But she gave no explanation of what information she would have shared had the court excused jurors for the GR 37 discussion. Tebabal did not challenge the juror for cause and accepted the panel with juror 57 on it. Therefore, Tebabal’s argument is that although an unbiased jury was empaneled, it was improperly exposed to the court’s GR 37 analysis.
B
“Civil and criminal litigants are equally entitled to a trial by an unbiased jury.”
Henderson v. Thompson, 200 Wn.2d 417, 434, 518 P.3d 1011 (2022). Tebabal does not challenge the trial court’s substantive GR 37 analysis overruling her attempt to exercise a peremptory challenge. Rather, Tebabal argues only that the trial court’s conducting that analysis in front of the jury resulted in prejudice entitling her to a new jury.
6
In cases addressing the composition of the jury pool as drawn from the eligible public, Washington has followed the rule that “[w]here the selection process is in substantial compliance with the statutes, the defendant must show prejudice. If there has been a material departure from the statutes, prejudice will be presumed.” State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991) (citing W.E. Roche Fruit Co. v. N. Pac. Railway Co., 18 Wn.2d 484, 139 P.2d 714 (1943)). In Tingdale, the trial court had allowed the clerk to excuse from jury service potential jurors that the clerk understood to be acquainted with the defendant. Id. at 597. The Supreme Court held this violated the statutorily required element of chance, called into doubt the impartiality of the jury selected, was an abuse of discretion, and was a material departure resulting in a presumption of prejudice. Id. at 601-03. In W.E. Roche Fruit, a party challenged the venire, arguing that all the women had been selected for jury service in violation of statute. 18 Wn.2d at 485. For some years, no women had served on juries in the county because the courthouse lacked facilities for them. Id. In 1942, a new courthouse opened, and an advertisement was placed calling for women to indicate willingness to serve, and the court added their names to the jury list. Id. The Supreme Court held this was not a material departure from statute, which permitted judges to select qualified jurors and revise the jury list from time to time, and thus the challenge failed in the absence of any showing of prejudice. Id. at 488-89.
Washington statutes mandate that the members of a jury panel be randomly selected. Budd v. Kaiser Gypsum Co., Inc., 21 Wn. App. 2d 56, 64-65, 505 P.3d
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120 (2022). The trial court must ensure random selection. Id. at 65. In both Tingdale and Roche Fruit, the asserted error went to the randomness of the venire. In contrast, Tebabal does not challenge the composition of the jury, but asserts only that it was exposed to proceedings it should not have observed. This does not appear to amount to a material departure under Tingdale and Roche Fruit that would justify a presumption of prejudice.
In civil cases, Washington courts have entertained motions for mistrial based on irregularities during jury selection.4 In re Det. of Griffith, 136 Wn. App. 480, 482-83, 150 P.3d 577 (2006) (affirming denial of motion for mistrial based on court’s description of special commitment center during jury selection); Portch v. Sommerville, 113 Wn. App. 807, 809, 811-12, 55 P.3d 661 (2002) (affirming denial of motion for new trial where the court had offered mistrial at the time of erroneous denial of peremptory challenge during jury selection). In Portch, we said, “Declaring a mistrial and selecting a new jury panel was a proper remedy” for the error during jury selection. Id. at 812.
The standard for evaluating whether an irregularity requires a mistrial and empaneling a new jury has been described as follows:
A large latitude must be allowed to courts in conducting trials, and before any action of a court, such as is here complained of, can be
4 In criminal cases, double jeopardy principles may affect the analysis based
on when the trial is viewed as commencing. “Generally, jeopardy attaches in a jury trial when the jury is impaneled, and in a bench trial when the first witness is sworn.” State v. George, 160 Wn.2d 727, 742, 158 P.3d 1169 (2007). But see State v. Eggers, 55 Wn.2d 711, 713-14, 349 P.2d 734 (1960) (affirming denial of motion for mistrial and discharge of jury panel because of juror’s comments during jury selection, where trial judge’s immediate admonishment was sufficient to dispel any prejudice). We limit our discussion to civil cases.
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held to be reversible error and a new trial ordered, it must appear that the statements made were in law erroneous, and were unjustified and clearly prejudicial, and such as could not be cured by instructions similar to those here given.
Turner v. Wenatchee Vinegar Co., 162 Wash. 313, 318-19, 298 P. 683 (1931) (affirming denial of mistrial based on remarks by the court while witness was testifying). Thus, we ask whether a claimed irregularity was erroneous, prejudicial, and not capable of being cured through an instruction. Generally, Washington courts have reviewed decisions on whether to grant a new trial based on such an irregularity at trial for abuse of discretion. See Henderson, 200 Wn.2d at 430; Tingdale, 117 Wn.2d at 602; State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983); Griffith, 136 Wn. App. at 485; Portch, 113 Wn. App. at 809-10. Trial courts have wide discretion in conducting trials and dealing with irregularities which arise. Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 538-39, 998 P.2d 856 (2000). Jurors are presumed to follow lawful instructions. Spivey v. City of Bellevue, 187 Wn.2d 716, 738, 389 P.3d 504 (2017).
Considering Tebabal’s position under the mistrial standard, we conclude that the trial court’s GR 37(c) error was not erroneous, prejudicial, and incapable of being cured by an instruction. The trial court observed the jurors during the GR 37 analysis and perceived confusion, not prejudice. The jury was exposed to an argument that it would normally not observe but the court remedied any harm by admonishing the jury to disregard any motions, objections, or decisions made during voir dire, polling the jury to ask if anything during voir dire had made them feel biased against either party, and instructing the jury to base their decisions on
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the evidence presented at trial. The remedy of a mistrial was not warranted. The court did not abuse its discretion in denying Tebabal’s motions to strike to the venire and for a new trial.
III
Tebabal contends that the trial court erred by granting motion in limine 10, which excluded evidence of Mo’s back and shoulder injuries—injuries for which she had waived claims. Tebabal argues that evidence of Mo’s back and shoulder injuries was relevant to show her credibility and bias, and the court improperly excluded it under ER 403. We disagree. The court acted within its discretion to exclude the evidence in deciding its probative value was substantially outweighed by the danger of confusing the issues or misleading the jury.
ER 403 permits courts to exclude relevant evidence, if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We review evidentiary decisions for abuse of discretion. Gerlach v. Cove Apts., LLC, 196 Wn.2d 111, 119, 471 P.3d 181 (2020). Trial courts have “ ‘wide discretion in balancing the probative value of evidence against its potentially prejudicial impact.’ ” Id. at 120 (quoting Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010)).
Here, Mo waived any claims for her back and shoulder injuries. Neh and Mo asserted that evidence of the injuries should be excluded because it would mislead or confuse the jury, as there were two plaintiffs and already several injuries
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at issue in the case. Tebabal countered that evidence of Mo’s back and shoulder injuries was relevant and admissible because Neh and Mo had made a “strategic decision to withdraw those injuries and only pursue the head injury,” which implicated Mo’s “credibility and bias.” The court inquired of Tebabal, “what you have argued is that the back injury and the shoulder injury are relevant and not prejudicial because they go to whether Plaintiff Mo has exaggerated her symptoms? Is that what you’re arguing?” And Tebabal’s counsel replied, “Exaggerated and changed for tactical advantage.” The court later asked, “[A]re your experts going to testify that [Mo’s injuries are] baseless?” Tebabal’s counsel answered, “They’re going to testify that Ms. Mo did not sustain a brain injury.” The court agreed that evidence of the injuries could be relevant but granted Neh and Mo’s motion in limine under ER 403 because it invited the jury to improperly speculate about Neh and Mo’s legal strategy and it would be cumulative.
Tebabal made subsequent efforts to admit evidence of Mo’s back and shoulder injuries—a motion for reconsideration on motion in limine 10 and a motion to introduce evidence of bias, personal interest, and credibility of witnesses— arguing that Mo had “opened the door” to evidence of her other injuries through expert witness testimony and that Tebabal was prejudiced by not being able to argue her theory that Mo did not suffer a brain injury. The court ruled that evidence that Mo visited a chiropractor 11 days after the collision did not open the door to other evidence of her injuries.
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Once Mo waived her back and shoulder injuries, evidence of those injuries was not relevant in regard to those claims because those claims were no longer being submitted to the jury. The court recognized that Tebabal could still present the evidence if it was relevant to an issue remaining in the case, such as Mo’s credibility. However, Tebabal then offered the evidence without explaining how it showed Mo’s credibility or lack thereof—a theory of relevance that clearly remained even after Mo’s waiver. Instead, Tebabal focused on how the evidence showed Mo’s trial strategy of pursuing certain damages and not others. The court acted within its discretion to limit the presentation of cumulative and potentially confusing evidence regarding injuries for which Mo sought no recovery. The rulings did not limit Tebabal from arguing her theory that the lengthy delay between the collision and Mo’s claim of traumatic brain injury weakened Mo’s claim for that injury.
IV
Tebabal argues that the trial court erred by allowing Life Care Planner Merrill Cohen to testify about the costs of future medical treatments for Neh and Mo when the future treatments lacked sufficient foundation that they would be reasonably necessary. We agree. Before Cohen testified, Tebabal moved to limit Cohen’s testimony, arguing that specific treatments and costs outlined in Cohen’s presentation lacked foundation and were unfairly prejudicial under ER 403. The trial court told Tebabal, “you are the one making the objection, which means that
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you have the burden.”5 The court denied Tebabal’s motion. The court erred in admitting Cohen’s testimony detailing costs for future treatments for which there was no evidence that they were reasonably certain to be necessary. Tebabal was prejudiced by Cohen’s testimony because there was no evidence that many of the future treatments were reasonably necessary, Neh and Mo emphasized Cohen’s life care plan in closing, and most of the damages awarded were future economic damages.
A
The general rule for recovery of future medical expenses as damages is
that recovery may be had for future medical expense[s] which [are]
reasonably certain to be necessarily incurred in the future. Before an allowance for the cost of future medical care can be made there must be some evidentiary basis to support a finding that future medical care will be necessitated by the injury suffered by the plaintiff.
Leak v. U.S. Rubber Co., 9 Wn. App. 98, 103, 511 P.2d 88 (1973); see Patterson v. Horton, 84 Wn. App. 531, 543, 929 P.2d 1125 (1997) (court erred in admitting documents as proof of past medical expenses when plaintiff made no showing that such costs were reasonable or necessary). We have upheld at least two methods to prove the need for future treatment. First, a party may present direct evidence of the need for future treatment, such as an expert’s testimony to that effect. See
5 The trial court erred in placing the burden on Tebabal.
Cohen was Neh’s
and Mo’s expert witness and it was their burden to show Cohen’s testimony had the necessary foundation to be relevant and admissible. Tapio Inv. Co. I v. Dep’t of Transp., 196 Wn. App. 528, 551, 384 P.3d 600 (2016) (“The proponent of evidence has the burden to establish necessary foundation for the evidence to be relevant and admissible.”).
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Stevens v. Gordon, 118 Wn. App. 43, 55-56, 74 P.3d 653 (2003) (reasonably certain costs of necessary future treatment were supported by doctor’s testimony that the plaintiff would more probably than not need future care and that the cost could be more than $4,000). Second, evidence of past treatment and an ongoing injury at the time of trial may support an inference of the need for future treatment. See Erdman v. Lower Yakima Valley, Wash. Lodge No. 2112 of B.P.O.E., 41 Wn. App. 197, 209-210, 704 P.2d 150 (1985) (“Since [the plaintiff’s] impairments were present at the time of trial and he had received medical attention for the impairment, there can be no doubt from the evidence that future treatment is essential for his existence; the jury was entitled to award damages.”).
Instruction 18 instructed the jury on the necessary standard to award future medical costs as damages. The jury first had to find that the money awarded was to “reasonably and fairly compensate each [p]laintiff for such damages as [the jury] found were proximately caused by the negligence of [Tebabal].” For future medical costs, the court instructed the jury to consider the “reasonable value of necessary medical care, treatment and services with reasonable probability to be required in the future.” Based on Leak and Patterson, these instructions correctly stated the law.
1
i
As to Mo’s injuries, Dr. Joseph Ugorji opined that Mo’s injuries fit a pattern of head and brain injury but “there’s more work needed to fully understand what’s
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happened in her head.” Dr. Ugorji testified that he was “point[ed] . . . in the . . . understanding that continued neurologic therapy is needed for whatever [Mo’s] clinical findings are.”
Dr. Richard Seroussi testified that Mo sustained traumatic brain damage from the collision. Dr. Seroussi said that Mo had reported dizziness, migraines, irritability, anxiety, and depressed mood but that while those symptoms were “consistent with a head injury,” they were “not specific for head injury,” though “dizziness is probably a bit more specific for head injury.” Dr. Seroussi testified that Mo could benefit from cognitive therapy but that he was uncertain if she had started cognitive therapy. And Dr. Seroussi opined that Mo probably had “at least some increased risk” for dementia or Alzheimer’s.
Dr. Martha Glisky also concluded that Mo had suffered a traumatic brain injury. Dr. Glisky testified that Mo had continuing “chronic pain.” Dr. Glisky stated that, based on the time since injury, she would not expect Mo to have “any significant changes in her actual neurologic functioning” but “there may be some functional or compensatory changes that could come as a result of additional treatment.” But “in terms of the medical follow-up,” Dr. Glisky “defer[red] to those [expert witnesses] . . . to talk about their specific recommendations for [Mo’s] ongoing physical symptoms and neurologic recovery.” Dr. Glisky testified that Mo and her family needed psychological treatment and that there was potential benefit in a comprehensive neurologic rehabilitation program for Mo.
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Dr. Richard Newman testified that Mo’s “right vestibular organ is basically nonfunctional.” In Dr. Newman’s opinion, the “functional deficits [Mo] has in her balance system [are] permanent,” and he considered it “best medical care” for Mo to have “neurologic rehabilitation.” Dr. Newman testified that Mo would more likely than not have a “permanent balance disorder and ongoing dizziness for the rest of her life.” Dr. Newman was asked whether Mo was more probable than not to experience Alzheimer’s or Parkinson’s, and he said, “I cannot guarantee that she’s going to get it,” but “[s]he’s more probable to suffer from that later in life than somebody who has not had a head injury.”
Dr. Theodore Kadet opined that, without treatment, Mo’s vision problems “will simply stay where they are. They’re not going to get any better.” He made recommendations for Mo, including vision therapy, but conceded that Mo had not yet begun treatment.
Dr. Andy Vu testified that he was still prescribing Mo “medication for depression and things.” Dr. Samuel Coor, a medical expert called by Tebabal, testified that Dr. Mark Fishel, who did not testify at trial, had recommended medication for Mo’s headaches.
Dr. Glisky and Dr. Vu were asked about Cohen’s life care plan. Dr. Glisky testified, “I can’t actually recall the details of it, but—yeah, so I probably can’t comment too much on that.” Dr. Vu testified that, as part of his practice, he has contributed to or reviewed life care plans. Neh and Mo’s counsel asked Dr. Vu, “Was the life care plan that you reviewed, did you find [it] to be unusual or out of
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the ordinary in any way, some of the recommendations made by other doctors, like you, her neurologist, her physiatrist, her rehab doctors, and others?” And Dr. Vu replied, “I don’t see anything that was unusual or out of the ordinary for that plan.”
Cohen is a vocational rehabilitation counselor and life care planner. She described being a life care planner as “essentially coordinating recommendations for future care from all of [an injured individual’s] providers, to develop a plan for their future care going forward.” Cohen’s life care plan was admitted as an illustrative exhibit and shown to the jury during her testimony. Cohen testified that six doctors, of whom three (Dr. Newman, Dr. Kadet, and Dr. Glisky) testified at trial, and a speech pathologist, who did not testify at trial, contributed to the life care plan. Cohen estimated total costs of $2,080,856 for the disputed treatments.
Cohen does not have a medical background. Cohen disclaimed having any opinion as to the medical necessity of the treatments listed in the life care plan.6 Her role was “to coordinate the recommendations and obtain the pricing.” Tebabal questioned Cohen about recommendations in the records she reviewed, asking, “[T]here were no recommendations in any of the Declarations or records you reviewed specific to long-term care recommendations for Ms. Mo, correct?” And Cohen responded, “Correct.”
6 Since Cohen disclaimed any expertise on such matters here, it is not necessary for us to address when a life care planner may testify to the necessity of treatments within a life care plan if they are qualified to do so based on their knowledge, skill, experience, training, or education. ER 702.
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ii
In her motion to limit Cohen’s testimony, Tebabal contested many of the listed treatments for Mo in the life care plan. Tebabal argued that Mo had not put on evidence that the treatments were reasonable or necessary for injuries caused by Tebabal. Tebabal did not dispute that the evidence supports Cohen’s pricing for future psychological evaluation and psychotherapy, and vision therapy. But Tebabal disputed the following treatments listed for Mo, (1) four annual visits to a neurologist, (2) five annual visits to a physical medicine or pain management specialist, (3) a cervical fusion or disc replacement surgery, (4) a multidisciplinary neurological rehabilitation program, (5) a sleep study, (6) nine chiropractic sessions, (7) nine sessions of physical therapy, (8) 96 postsurgical physical therapy sessions, (9) 72 vestibular therapy sessions, (10) 48 annual vestibular therapy sessions, (11) 48 annual cognitive rehabilitation therapy sessions, (12) brain imaging, (13) brain imaging every five years, (14) magnetic resonance imaging (MRI) of cervical spine, (15) neuropsychological evaluation, (16) four annual Botox injections for headaches, (17) ongoing Lyrica for pain, (18) ongoing Meclizine for dizziness, and (19) ongoing Topiramate for headaches.
The trial evidence described above showed that Mo had ongoing injuries from the collision at the time of trial, supporting an inference that she would need future treatment. But the evidence did not support many specific future needs that Cohen tabulated, nor much of the specificity that Cohen used to support her calculations. Moreover, most of Cohen’s life care plan cannot be supported as an
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extension of treatment Mo had already been undergoing up to the point of trial. This distinguishes Erdman, where the verdict for future medical expenses was upheld because, among other factors, “[s]ignificant evidence documented the medical and rehabilitative efforts [the plaintiff] had engaged in prior to trial.” 41 Wn. App. at 209. While the evidentiary support for the need for some aspects of Cohen’s life care plan can be debated, at minimum it is clear that no evidence at trial indicated that, because of the collision, Mo would need four annual visits to a neurologist, a cervical fusion or disc replacement surgery and postsurgical physical therapy, a sleep study, brain imaging, a neuropsychological evaluation, Botox, Lyrica, Meclizine, or Topiramate.
As a result, Cohen’s testimony on the cost of these things was irrelevant and inadmissible.7 While there was clearly evidence supporting that Mo would incur future damages, and instructions to that effect were appropriate, there was not evidence providing foundation for much of Cohen’s testimony and calculations. Thus, the issue is not that Mo did not present evidence justifying future damages, but that the trial court improperly allowed Cohen to testify to the costs of future services that no evidence showed Mo would need.
7 Cohen testified that Dr. Fishel reviewed and endorsed the life care plan.
But Dr. Fishel never testified at trial. Had Dr. Fishel, assuming he had the requisite expertise, testified at trial to the reasonableness and probable necessity of the treatments detailed in the life care plan, there may have been sufficient foundation for Cohen’s testimony on treatment costs and treatment recommendations.
As to Neh, Dr. John Larsen testified about his injuries. Dr. Larsen described the weakening and herniation of Neh’s “L5-S1 disc,” and the resulting nerve and sciatic pain going down Neh’s leg. Dr. Larsen testified that Neh had disc herniation in his cervical spine at “C6-7,” and the resulting nerve pain in his arms.
In her motion to limit Cohen’s testimony, Tebabal did not dispute that evidence supported a need for a lumbar laminectomy or fusion, a cervical discectomy or fusion, and other treatment. But Tebabal contested future treatments for Neh in the life care plan. Tebabal disputed treatments related to Neh’s shoulder, including an orthopedic surgeon visit, a corticosteroid or platelet- rich plasma injection, an MRI, and a shoulder arthroscopy. Cohen estimated total costs of $37,763 for the disputed shoulder treatments.
Dr. Larsen testified about Neh’s need to see a pain management specialist, for cortisone injections and for an anterior cervical discectomy and fusion. While Dr. Larsen did mention possible pain in Neh’s shoulders, his treatment recommendations focused on Neh’s neck and back. There is no other evidence in the record of an ongoing injury and past treatments or future treatment recommendations that would make Cohen’s recommended shoulder treatments reasonably necessary in the future.
The trial court abused its discretion by not limiting Cohen’s testimony regarding Neh and Mo’s future treatments.
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B
While Mo and Neh clearly supported future treatment needs, they never presented evidence supporting many of the life care plan elements that Cohen tabulated and the trial court erred by allowing the life care planner to present costs for future services that no evidence indicated would be needed. We review a court’s abuse of discretion in improperly admitting evidence for nonconstitutional harmless error. See Budd, 21 Wn. App. 2d at 88. The nonconstitutional harmless error test asks whether it is reasonably probable that, had the error not occurred, the trial’s outcome would have been materially affected. Id. “When the reviewing court is unable to know what value the jury placed on the improperly admitted evidence, a new trial is necessary.” Driggs v. Howlett, 193 Wn. App. 875, 903, 371 P.3d 61 (2016). When the original issues are distinct and separate from each other, a new trial on remand may be limited to the issue of damages only. Nelson v. Fairfield, 40 Wn.2d 496, 501-02, 244 P.2d 244 (1952).
Cohen’s life care plan presented various costs for future treatment, either as one time costs or annual costs. Based on the treatments in her life care plan, Cohen estimated $2,097,156 in lifetime treatment costs for Mo and $286,052 in one time future treatment costs for Neh. Of these, Tebabal disputed $2,080,856 of Mo’s lifetime treatment costs and $37,763 of Neh’s future treatment costs.
Neh and Mo emphasized Cohen’s life care plan and its costs in their closing argument, “Ms. Cohen extrapolated and projected this out over her life expectancy, and this is the final figure that she came up with. And I would respectfully ask you
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to take notes or remember this figure when you’re deliberating. I ask you to do the same thing for Mr. Neh.” The jury awarded $1,700,000 to Mo, and $330,240 to Neh, for future economic damages. The future economic damages award represented 80 percent of the jury’s total damages verdict. We are unable to know exactly how the jury weighed the improperly admitted evidence, but recognizing the improperly admitted evidence of future treatment costs well exceeded the supported evidence of future treatment costs, it is reasonably probable that the erroneous admission of unsupported future care needs materially affected the trial’s outcome.
We affirm the judgment as to liability, reverse the judgment as to damages, and remand for a new trial on damages.
WE CONCUR: