Ray Garbagni, V. Karen Dove And Anew

• Court: Court of Appeals of Washington
• Decided: July 17, 2023
• Docket: 84335-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RAY GARBAGNI, DIVISION ONE Appellant, No. 84335-4-I v. UNPUBLISHED OPINION KAREN DOVE and JOHN DOE DOVE, individually and on behalf of their marital community thereof, and APPRENTICESHIP AND NONTRADITIONAL EMPLOYMENT FOR WOMEN (ANEW), a corporation,

Respondents.

DWYER, J. — Ray Garbagni sued Karen Dove and her employer for injuries

allegedly sustained in an automobile collision. The jury returned a defense verdict. On

appeal, Garbagni argues that the trial court erred by limiting his damages claim to a

finite period of time and instructing the jury accordingly. Because the jury rejected

Garbagni’s claim that the collision proximately caused his alleged injuries, he cannot

establish that he was prejudiced by the trial court’s rulings. We therefore affirm.

I

On August 16, 2017, Ray Garbagni’s vehicle was rear-ended by a vehicle driven

by Karen Dove while she was acting in the course of her employment with No. 84335-4-I/2

Apprenticeship and Nontraditional Employment for Women (ANEW). Dove admitted

liability but disputed causation and damages.

In June 2020, Garbagni sued Dove and ANEW (collectively Dove) for personal

injuries allegedly suffered in the collision. Garbagni obtained the opinion of Dr. David

Widlan, a clinical psychologist, regarding the nature and cause of his injuries. After

reviewing medical records and conducting an evaluation, Dr. Widlan opined in a report

dated June 18, 2021, that Garbagni suffered from “mild neurocognitive disorder due to

traumatic brain injury.” Dove subsequently moved to limit Dr. Widlan’s testimony under

ER 401, ER 403 and ER 703 on the ground that, as a psychologist, Dr. Widlan was not

qualified to diagnose traumatic brain injury causally related to the automobile collision.

The trial court denied Dove’s motion to limit Dr. Widlan’s causation testimony.

Trial took place during seven days from June 21 through July 1, 2022. As to the

duration of Garbagni’s damages, Dr. Widlan testified that Garbagni’s symptoms

persisted up until the time of his report. But he could not “say that [Garbagni’s]

symptoms are occurring today because I haven’t interviewed him today.” Garbagni and

several of his family members testified that he has suffered persistent mental and

emotional problems since the collision occurred. Dove’s expert witnesses, neurologist

Dr. Linda Wray and neuropsychologist Dr. Elizabeth Ziegler, testified that the evidence

did not support a finding that the collision caused a concussion or a traumatic brain

injury.

Following the close of evidence, Dove moved to dismiss Garbagni’s claims under

CR 50 on the ground that Garbagni presented no medical testimony to support

causation of any injury, let alone permanent brain damage. To the extent that the court

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denied the motion, Dove sought an order prohibiting an award of general damages

beyond June 12, 2021, which was the date Dr. Widlan last interviewed Garbagni. The

trial court denied Dove’s CR 50 motion to dismiss Garbagni’s claims but ruled that

general damages would be prohibited beyond June 12, 2021. The court instructed the

jury accordingly.

The jury returned a unanimous verdict in favor of Dove. Garbagni appealed.

II

Garbagni argues that the superior court erred by granting Dove’s CR 50 motion

to limit his general damages claim to the period between the collision and June 12,

2021. This is so, he contends, because Dr. Widlan’s expert testimony and the Garbagni

family’s lay testimony provided sufficient evidence to prove that he suffered ongoing

collision related symptoms past that date. Because Garbagni has not established that

he was prejudiced by the trial court’s ruling, he is not entitled to appellate relief.

A party seeking reversal based on a trial court’s exclusion of evidence must

demonstrate prejudice, “for error without prejudice is not grounds for reversal.” Barriga

Figueroa v. Prieto Mariscal, 193 Wn.2d 404, 415, 441 P.3d 818 (2019). As the plaintiff,

Garbagni bore the burden to prove that he suffered injuries proximately caused by

Dove’s negligent conduct. See Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474,

951 P.2d 749 (1998) (“In order to prove actionable negligence, a plaintiff must establish

the existence of a duty, a breach thereof, a resulting injury, and proximate causation

between the breach and the resulting injury.”).

Here, the trial court generously permitted Dr. Widlan to testify that Garbagni

suffered from “mild neurocognitive disorder due to traumatic brain injury.” In so ruling,

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the court allowed the jury to consider whether to accept or reject Dr. Widlan’s opinion

regarding the nature, extent, and cause of Garbagni’s injuries. See Larson v. Georgia

Pac. Corp., 11 Wn. App. 557, 560, 524 P.2d 251 (1974) (“[O]nce the expert testimony is

admitted into evidence, its weight and credibility is like all other evidence to be

considered by the jury.”). In rendering a unanimous verdict in favor of the defendants,

the jury necessarily determined that Garbagni did not meet his burden of proof. It

therefore did not reach the question of damages. Allowing the jury to consider whether

Garbagni’s injuries persisted beyond the date of Dr. Widlan’s report would not have

changed this result. Garbagni cannot establish that he was aggrieved in any way by the

trial court’s ruling. He is not entitled to appellate relief.

III

Garbagni also argues that jury instruction 11, which limited any damages award

to pain and suffering experienced on or before June 12, 2021, amounted to an

unconstitutional comment on the evidence. This court reviews whether a jury instruction

amounts to a comment on the evidence de novo. State v. Butler, 165 Wn. App. 820,

835, 269 P.3d 315 (2012). An impermissible comment on the evidence is one that

conveys the judge’s attitude on the merits of the case or permits the jury to infer

whether the judge believed or disbelieved certain testimony. State v. Deal, 128 Wn.2d

693, 703, 911 P.2d 996 (1996).

Here, jury instruction 11 reflected the trial court’s determination that the evidence

was insufficient to support a finding that Garbagni’s injuries persisted beyond the date of

Dr. Widlan’s report. The instruction did not otherwise limit the jury’s ability to consider

Dr. Widlan’s opinion that Garbagni suffered from “mild neurocognitive disorder due to

4 No. 84335-4-I/5

traumatic brain injury” as a result of the collision. It did so, and awarded nothing.

Again, Garbagni shows no ground for appellate relief. See State v. Levy, 156 Wn.2d

709, 725, 132 P.3d 1076 (2006) (judicial comment is not prejudicial where the record

affirmatively shows no prejudice could have resulted).

Affirmed.

WE CONCUR: