Hall v. Carson

• Decision Date: 25 September 2018
• Docket Number: No. 49150-8-II,49150-8-II
• Parties: MIRIAM HALL, Respondent/Cross Appellant, v. VIRGINIA CARSON, Appellant/Cross Respondent.
• Court: Washington Court of Appeals

MIRIAM HALL, Respondent/Cross Appellant, v. VIRGINIA CARSON, Appellant/Cross Respondent.

No. 49150-8-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

September 25, 2018

UNPUBLISHED OPINION

BJORGEN, J. — Virginia Carson appeals from a jury verdict in favor of Miriam Hall arising out of a car accident. She contends that the trial court erred by (1) excluding Hall's statement of damages under ER 403 and (2) refusing to instruct the jury on failure to mitigate. Hall also cross-appeals, arguing that (3) the trial court erred by awarding costs to Carson under CR 41(d). We disagree and affirm the trial court.

FACTS

On September 11, 2013, Virginia Carson drove into the rear of a car driven by Miriam Hall. At the time of the accident, Hall was a licensed practical nurse (LPN) and was in the process of studying to be a registered nurse (RN). Hall returned to work after the accident, but began experiencing headaches. Hall suspected that her headaches were the result of whiplash caused by the car accident, and some of the other nurses at her work gave her an ice pack and anti-inflammatories.

On September 23, Hall went to Steven Lewis, a chiropractor, because she was still in pain from the car accident. Lewis examined Hall and determined that Hall suffered a ligament injury as a result of the car accident. Lewis further determined that Hall's injury was permanent and that her treatment would revolve around managing Hall's pain associated with that injury. Over the course of the next few years, Hall made at least 223 appointments with Lewis to treat her pain, which became worse over time.

On June 10, 2014, Hall filed her first complaint against Carson over the September 2013 accident. On June 19, 2015, the superior court granted Hall's motion to dismiss her first case pursuant to CR 41(a)(1)(B). On July 7, Carson filed a motion with a cost bill associated with the first complaint under CR 41(d). On August 14, the superior court awarded Carson $200 in statutory attorney fees and $4,700 in costs related to Carson's expert witness, Dr. Reed Wilson, under CR 35.

On June 23, 2015, Hall filed a second complaint against Carson regarding the same accident. In July Carson served Hall with a request for statement of damages pursuant to RCW 4.28.360.¹

Carson filed a motion to compel Hall to respond to her request for a statement of damages, which the superior court granted with respect to that request. The same day, Hall provided Carson with a statement of damages that stated, "For ER 408 Settlement Purposes," and requested $100,000, Carson's maximum insurance policy limit, in general and special damages. Clerk's Papers (CP) at 216. The statement of damages further stated, "We reserve the right toamend this response should circumstances change, new information come to light and/or if this matter proceeds to trial." CP at 216

Hall filed a motion in limine to exclude her statement of damages, arguing that it was inadmissible under ER 401, 402, 403, 408, 608, and 802. Hall claimed that the statement of damages was not relevant because it "was prepared by plaintiff's counsel and does not constitute proof of anything." CP at 196. She also asserted that it would cause confusion and be misused, claiming that "[t]here [was] no proper way [the statement of damages] could be used" and that "[h]ow the jury might use [it] is unpredictable." CP at 197. Hall argued that the statement of damages was a settlement negotiation, which was demonstrated by the fact that Hall did not file it like a pleading. Hall also claimed that it was inadmissible as impeachment evidence under M.R.B. v. Puyallup School District, 169 Wn. App. 837, 859, 282 P.3d 1124 (2012). Hall asserted further that the statement of damages was hearsay and that she had never seen it. Finally, Hall argued that admitting the statement of damages violated her right to have damages determined by the jury.

The trial court granted Hall's motion in limine to preclude any reference at trial to the amount of damages in her statement of damages under ER 403, explaining in part that it was not a statement made by plaintiff and could cause confusion.

Carson admitted liability for the accident, and the only issue at trial was the amount of damages. Hall called Lewis as a witness during trial, and the following exchange occurred:

[Counsel]: Now were you concerned about [Hall] continuing to work with the injury?

[Lewis]: Yes. . . .

And I think her record demonstrates a lot of ongoing exacerbations and not being able to get it under control very well as she tries to maintain, you know, working above the sub-laborthreshold, supplying for her family and her daughter, and, you know, being a viable working person.

[Counsel]: And is it fair to say that most of her exacerbations are associated with the strains of work?

[Lewis]: I'd say most of them are with work. I think that she commonly reported that sitting in class, working on the computer, also was a -- things that would exacerbate her neck, bring on more pain and headaches and things like that, too.

So both the studies that she was doing to move forward to get her RN, as well as her work duties both.

Verbatim Report of Proceedings (VRP) (Vol. IV) at 478.

Carson cross-examined Lewis regarding the number of times Hall had chiropractic treatment and the billing for those appointments:

[Counsel]: I came up, in going through your records, with 223 visits [by Hall]. Does that sound about right to you?

[Lewis]: Yeah, probably.

[Counsel]: How much do you make on each one of her visits?

[Lewis]: You know, I'm not exactly sure. We bill the standard billing codes, and I'm not sure in her particular case if there's a deduction that we take or not. I haven't really paid attention to that.

[Counsel]: You have no idea how much you charge for a spinal manipulation?

[Lewis]: Well we bill -- there's a code, a billing code. . . . And I think it's currently $81.16.

. . . .

[Counsel]: And have you recommended that you continue to treat [Hall] for the rest of her life?

[Lewis]: I have had discussions with Ms. Hall that with her clinical findings and the objective findings that she may more likely than not require ongoing supportive care.

VRP (Vol. IV) at 489.

Carson also cross-examined Lewis about information contained on his professional website:

[Counsel]: I want to read to you again from your website, under the topic Time Matters. It says, "When a spinal ligament has been injured, there's a short window of opportunity to begin treatment that results in the best possible outcome and the recovery from your injuries. The common approach of waiting to see if the pain goes away on its own often has disastrous results."

You're aware that Ms. Hall waited 12 days to come in and see you in this case, correct?

[Lewis]: Correct.

[Counsel]: Is that what happened here, is that she waited too long to get treatment for this ligament injury?

[Lewis]: No. . . . Ms. Hall was self treating, using ice and trying to self manage, which is appropriate to do that.

One of the things that we want to do in the beginning is use a lot of ice, control the inflammatory response, and I think she was doing the best she could on her own, and I don't think that caused any further damage.

. . . .

And in Ms. Hall's particular case I didn't see anything or did she relate anything to me that would cause further damage or delay.

VRP (Vol. IV) at 499-501.

Carson further cross-examined Lewis about the possibility of immobilization as a treatment option:

[Counsel]: Have you tried immobilization of her cervical spine to help heal her ligament injuries?

[Lewis]: No. Immobilization is really not an indicated therapy for those. What we want to do is improve the communication between the three subsystems. We want to activate the ligaments in a careful, controlled method that doesn't create more injury; we want to stimulate the nerve endings in there to communicate with the control center, the nervous system, to get the muscles to work better. And we want to try to do that as much as we can to try to keep that loop going.

And immobilization is going to prevent that whole process, it's going to shut it all down. If the neck can't move, there can be no input. There can't be anything happening with it.

VRP (Vol. IV) at 509.

Carson called Wilson to testify for the defense:

[Counsel]: What significance do you place on Dr. Lewis's findings and these records that came back from the radiologist in Wisconsin? How did you interpret that?

. . . .

[Wilson]: So in this case, the Spinal Kinetics in Wisconsin or wherever, reported finding abnormal subluxation between the second and the third cervical vertebrae in the neck. But I didn't see evidence for that. . . .

So I found no evidence of subluxation of the joints which is the basis for much of this entire case. . . .

[Counsel]: Okay. In addition to the films, you conducted a physical examination of Ms. Hall?

[Wilson]: I did.

[Counsel]: Did you find any objective evidence of injury when you did that?

[Wilson]: No.

VRP (Vol V) at 543-46.

Carson also asked Wilson whether immobilization would have been an effective treatment:

[Counsel]: . . . . Have you seen immobilization of the cervical spine used to treat a serious ligament injury?

[Wilson]: Sure. Tissues can heal, muscle strains can heal, tendons, ligament injuries can heal. . . . If they had a ligamentous injury in their neck you might give them a hard collar to wear for a while until that ligament heals up.

Or if the ligament injury is very severe and persisted after you took them out of a hard collar, you might want to ask a neurosurgeon to tighten the ligaments or fuse the bone so there wouldn't -- so it wouldn't be a catastrophic result from movement.

[Counsel]: And if you had a patient who you believed had a ligament injury, would you recommend that they undergo several spinal manipulations by a chiropractor?

[Wilson]: No. Unless - common sense tells you if there's ligamentous injury, avoidance of movement is proper. You don't want to put the patient at

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