Goehle v. FRED HUTCHINSON CANCER RESEARCH

• Decision Date: 20 March 2000
• Docket Number: No. 43257-5-I.,43257-5-I.
• Citation: 100 Wash.App. 609,1 P.3d 579
• Parties: Sondra GOEHLE, Appellant, v. FRED HUTCHINSON CANCER RESEARCH CENTER, Respondent.
• Court: Washington Court of Appeals

1 P.3d 579

100 Wash.App. 609

Sondra GOEHLE, Appellant, v. FRED HUTCHINSON CANCER RESEARCH CENTER, Respondent.

No. 43257-5-I.

Court of Appeals of Washington, Division 1.

March 20, 2000.

Reconsideration Denied and Publication Ordered May 22, 2000.

Judith A. Lonnquist, Seattle, for Appellant.

Suzanne Kelly Michael, Michael B. King, and Paul M. Nordsletten of Lane, Powell, Spears, Lubersky, L.L.P., Seattle, for Respondent.

WEBSTER, J.

Appellant Sondra Goehle did not prevail at trial in her employment discrimination suit against her employer Respondent Fred Hutchinson Cancer Research Center. On appeal she challenges the trial court's refusal to give her proposed discrimination instruction and claims the instruction on negligent supervision or retention was incorrect as a matter of law. She also challenges several evidentiary rulings. We reject Goehle's instructional challenges because she failed to comply with CR 51(f), which requires a litigant objecting to jury instructions to provide the trial court with adequate grounds for the objections. Finding no merit in Goehle's evidentiary challenges, we affirm.

BACKGROUND

Goehle, an American-born citizen over 40 years of age, has been a long time employee at the Center. For many years her direct supervisor was Dr. Frederich Schuening. When Schuening left the Center, Dr. Hans-Peter Kiem, a German national, became her supervisor. She claims that Kiem discriminated against her on the basis of age and national origin. She claims that Kiem: (1) repeatedly called her old and made comments to the effect that she was too old to learn new lab techniques; (2) often referred to her and others as lazy Americans and said that he could replace her with two Germans for the same amount of money; and (3) took away some of her responsibilities. She complained to Dr. Rainer Storb, Kiem's supervisor. An investigation into her allegations and meetings between Goehle, Storb, Kiem, and David Sarju, director of human resources, followed. Eventually, Goehle was offered and accepted another position at the Center that paid less and was of lesser status.

Goehle filed suit in October 1996. She claimed age, sex, and national origin discrimination and retaliation. She also claimed negligent supervision and retention.

Approximately five weeks before trial and well beyond the case schedule deadline for doing so, the Center disclosed an expert witness. Goehle made a motion to exclude. The trial court denied the motion but limited the testimony to the Center's investigation and response to Goehle's complaints, required that the witness be made available for deposition within ten days, and imposed sanctions.

The trial started on June 8, 1998, and ended with a jury verdict in favor of the Center on June 26, 1998.

Goehle disclosed a rebuttal expert witness on the fourth day of trial.¹ The expert was to testify on the Center's investigation and response to Goehle's complaints. The Center moved to exclude. Late in the trial, the court granted the motion. The trial court indicated that the proposed expert did not have the appropriate expertise in age or national origin discrimination. Prior to the court's ruling excluding the expert, the trial court limited the length of Goehle's cross-examination of Sarju, the director of human resources, who participated in the Center's response to Goehle's complaints.

The trial court admitted into evidence, over objection, entries from Goehle's personal diary in which she wrote about her work experiences at the Center, including information pertaining to her relationship with Kiem.

The trial court admitted into evidence, over objection, testimony concerning Goehle's misrepresentation on her 1979 job application to the Center. The Center learned of this misrepresentation after litigation was initiated.

The trial court held an informal jury instructions conference over a lunch break. Goehle's lead attorney did not attend the instructions conference because she was preparing for closing argument and sent a colleague from her firm who had not participated in the trial and was not familiar with the facts of the case. No recorded exceptions hearing was held. The trial court refused to give Goehle's proposed instruction on age and national origin discrimination. No instruction was given in its place. The trial court instructed on discrimination based on a hostile work environment. The trial court gave the Center's proposed instruction on negligent supervision or retention.

Goehle submitted written post-trial exceptions objecting to the court's refusal to give her proposed instruction on age and national origin discrimination and objecting to language in the instruction on negligent supervision or retention.

ANALYSIS

I. Challenges to Jury Instructions

A. Goehle Failed to Provide Adequate Grounds for Her Objection to the Trial Court's Refusal to Give Her Proposed Instruction on a Disparate Treatment Theory of Discrimination

1. RAP 10.3(g)

Preliminarily, the Center argues that Goehle's challenge to the trial court's refusal to give her instruction on discrimination should be rejected because it does not comply with Rule of Appellate Procedure 10.3(g). RAP 10.3(g) provides:

Special Provisions for Assignments of Error. A separate assignment of error for each instruction which a party contends was improperly given or refused must be included with reference to each instruction or proposed instruction by number. . . . . The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.

A technical violation of the rules will not ordinarily bar appellate review where justice is to be served. See Green River Community College Dist. No. 10 v. Higher Educ. Personnel Bd., 107 Wash.2d 427, 431, 730 P.2d 653 (1986)

. The appellate court will review the merits of the appeal where the nature of the challenge is perfectly clear and the challenged ruling is set forth in the appellate brief. See id.

The Center is correct that Goehle fails to strictly comply with RAP 10.3(g) because she fails to reference in her brief the proposed instruction that she claims was improperly refused. She does not identify the proposed instruction in her assignments of error, in her issue statements, or in the argument section of her brief.

But Goehle's argument that the court erred in refusing to instruct the jury on her age discrimination claim is clear enough, and although Goehle failed even in her reply brief (knowing that the Center raised this issue) to provide the text of the proposed instruction or even cite to its location in the record,² the rejected proposed discrimination instruction was easily discovered upon perusal of the proposed jury instructions in the clerk's papers. CP at 153. Thus, we decline to refuse review under RAP 10.3(g).

2. CR 51(f)

The second preliminary argument that the Center presents is that Goehle's challenge to the rejected discrimination instruction is precluded because she failed to comply with CR 51(f). The Center makes two arguments here: (1) that Goehle did not comply with CR 51(f) because she failed to provide the trial court with adequate grounds for her objection to the court's refusal to give her discrimination instruction, and (2) that Goehle's proposed instruction did not correctly state the law.

If a party is not satisfied with an instruction, it has a duty to propose an appropriate instruction. See Hoglund v. Raymark Indus., Inc., 50 Wash.App. 360, 368, 749 P.2d 164 (1987)

. If the court fails to give the proposed instruction, the party must take exception to that failure. See id. CR 51(f) provides procedures for objecting to instructions given or refused:

Objections to Instruction. Before instructing the jury, the court shall supply counsel with copies of its proposed instructions which shall be numbered. Counsel shall then be afforded an opportunity in the absence of the jury to make objections to the giving of any instruction and to the refusal to give a requested instruction. The objector shall state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made.

The purpose of CR 51(f) is to assure that the trial court is sufficiently apprised of any alleged error in the instructions so that the court is afforded an opportunity to correct any mistakes before they are made and thus avoid the inefficiencies of a new trial. See Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wash.2d 50, 63, 882 P.2d 703 (1994)

; Van Hout v. Celotex Corp., 121 Wash.2d 697, 703, 853 P.2d 908 (1993). "The pertinent inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection." Walker v. State, 121 Wash.2d 214, 217, 848 P.2d 721 (1993). "[U]nder some circumstances compliance with the purpose of the rule will excuse technical noncompliance." Queen City Farms, 126 Wash.2d at 63,

882 P.2d 703.

In her written, post-trial exceptions to the trial court, Goehle stated:

Plaintiff excepts to the Court's failure to give her proposed Instruction at p. 10 of her June 4, 1998[sic] submission. The Court erroneously failed and refused to submit to the jury an age and/or national origin discrimination claim for which there was direct and/or indirect evidence of discriminatory animus.

CP at 275.

We agree that this exception does not state adequate grounds to apprise the trial court of the points of law or questions of fact in dispute and thus does not comply with CR 51(f). We do not see why Goehle should be excused from complying with CR 51(f) simply because the jury instructions conference here was held informally. She has not persuaded us that she was precluded from making her objections on the record after the informal conference but before the instructions were...