Hickok–Knight v. Wal–Mart Stores, Inc.

• Decision Date: 21 August 2012
• Docket Number: No. 41008–7–II.,41008–7–II.
• Citation: 284 P.3d 749
• Parties: Falina HICKOK–KNIGHT, a single person, Appellant, v. WAL–MART STORES, INC., a foreign corporation, Respondent.
• Court: Washington Court of Appeals

284 P.3d 749

Falina HICKOK–KNIGHT, a single person, Appellant,

v.WAL–MART STORES, INC., a foreign corporation, Respondent.

No. 41008–7–II.

Court of Appeals of Washington,

Division 2.

June 7, 2012.

Publication Ordered Aug. 21, 2012.

Thomas Joseph West, Krilich Laporte West & Lockner PS, Tacoma, WA, for Appellant.

Bert William Markovich, Schwabe Williamson & Wyatt PC, Colin Jeffrey Folawn, Schwabe Williamson & Wyatt PC, Seattle, WA, Respondent.

HUNT, J.

¶ 1 Falina Hickok–Knight appeals the jury's $6,433.35 award to her of damages against Wal–Mart Stores, Inc., the trial court's $5,526.17 costs award to Wal–Mart (based on her damages award being less than Wal–Mart's settlement offer), and the trial court's denial of her motion for a new trial. Hickok–Knight argues that the trial court (1) erroneously allowed (a) the jurors to touch her feet during her direct examination to gauge their relative temperatures, (b) expert witnesses to testify about her medical, mental health, and social histories, and (c) Wal–Mart's expert psychiatric witness to testify about her medical, mental health, and social histories; (2) violated the appearance of fairness doctrine; (3) erred in refusing to give her requested jury instructions about aggravating and “lighting up” pre-existing conditions; and (4) erroneously awarded Wal–Mart costs incurred before its offer of judgment. We vacate the trial court's costs award to Wal–Mart and remand with instructions for the trial court to award Wal–Mart only those costs it incurred after it made its offer of judgment to Hickok–Knight. We otherwise affirm.

FACTS

I. Background

A. Hickok–Knight's Foot Injury at Wal–Mart

¶ 2 After shopping at a Wal–Mart Store on June 24, 2006, Falina Hickok–Knight was returning her shopping cart in the parking lot when a forklift driven by a Wal–Mart employee collided with a row of other shopping carts that hit Hickok–Knight's cart, causing it to hit, run over, and stop on top of the middle of her left foot. She limped back to her car, called Wal–Mart to report the incident and spoke with an assistant manager, drove to her parents' house, iced her foot, and then drove with her father back to Wal–Mart, where they spoke with a manager and filled out a “customer incident statement,” I Verbatim Report of Proceedings (VRP) at 278; Ex. 61. Hickok–Knight did not seek medical attention that day.

¶ 3 The next day, Hickok–Knight went to an emergency room and had her foot x-rayed; the results were “normal” and showed no fracture. II VRP at 284–85. Her medical records showed that she had “minimal swelling” and “no discoloration.” ¹ VII VRP at 1189–90. Two days after her injury, Hickok–Knight saw (1) a physician's assistant, who “found a little swelling on the top of the foot” and diagnosed her with “foot pain”; and (2) a podiatrist, Dr. Gavin Smith, who performed a computed tomography (CT) scan (which turned up “normal” and showed that Hickok–Knight did not have any broken bones or damaged tendons or muscles), diagnosed a “foot bruise,” and referred her to a physical therapist. II VRP at 285–86, 335; Ex. 2.

¶ 4 The next month, Hickok–Knight underwent physical therapy. At some point, she also underwent magnetic resonance imaging (MRI), the results of which were “normal.” VII VRP at 1191. On September 22, she again saw Dr. Smith, who “found that there was no swelling, no redness, [and] no skin changes” and opined that Hickok–Knight “had idiopathic foot pain,” which, according to Hickok–Knight, meant that Dr. Smith “didn't know what was the matter.” VII VRP at 1193.

¶ 5 In October, Dr. Smith referred Hickok–Knight to Dr. David Judish, who took a “long history” from Hickok–Knight, conducted an “[electromyogram] and nerve conduction studies,” diagnosed her with depression, and prescribed an anti-depressant. II VRP at 316–17. Dr. Judish also noticed that when Hickok–Knight was distracted, she did not react when he touched her injured foot; he ruled out a diagnosis of complex regional pain syndrome (CRPS). ² This was the last time for over a year that Hickok–Knight visited a care provider specifically for her foot injury.³

B. Hickok–Knight's Work History

¶ 6 Before injuring her foot, Hickok–Knight had worked (1) as a sales clerk at Benjamin Franklin for two months in 2001; (2) in a Wal–Mart position from May 2003 through September 2005 at $10.29 an hour; and (3) as a dental assistant from September 2005 to April 2006 at $12.00 an hour, from which she was fired, two months before her foot injury.

¶ 7 Hickok–Knight returned to the workforce around the time that she stopped seeing care providers about her foot. From October 2006 to April 2007, she worked for a jewelry retailer, where she sometimes used a cane and sat down frequently. Hickok–Knight left her jewelry retailer job to work as a dental assistant for a different dental office for three months until she was terminated (because “[a]fter 3 month[s] of train[ing], [Hickok–Knight] was not understanding full [patient] care. Her chart notes were very unclear.”). Ex. 60. In August 2007, she returned to work for the same jewelry retailer, where she used a cane and sat down frequently. In March 2008, Hickok–Knight again stopped working for the jewelry retailer. After that, she did not return to the workforce.

II. Hickok–Knight's Continuing Medical Treatment

A. Dr. Smith (Hickok–Knight's Podiatrist)

¶ 8 After filing her lawsuit, Hickok–Knight returned to her podiatrist, Dr. Smith, complaining about pain in her left foot. Dr. Smith, however, (1) “said there was no redness or temperature changes, no skin or nail changes, no swelling,” (2) opined that Hickok–Knight possibly was suffering from CRPS, (3) advised her to research CRPS on the internet, (4) referred her for a three-phase bone scan, and (5) referred her to Dr. Long Vu, an osteopathic doctor. II VRP at 338; 3 VRP at 411, 413; 7 VRP at 1205. Hickok–Knight's December 2007 three-phase bone scan indicated “[m]inimally decreased blood flow of perfusion to the left foot compared to the right is suggestive of [CRPS].” III VRP at 428; VII VRP at 1201–02; Ex. 8.

B. Dr. Vu (Hickok–Knight's Osteopath)

¶ 9 When Hickok–Knight saw Dr. Vu for the first time on February 2, 2008, she complained about pain spreading up her leg to her groin and constant aching, burning, throbbing, shooting, and sharp pain. Dr. Vu (1) observed some discoloration on Hickok–Knight's left foot, as well as allodynia; ⁴ (2) documented that one of Hickok–Knight's feet was “significantly colder than the other foot when [he] touched it”; (3) found the three-phase bone scan results to be “consistent with CRPS”; (4) diagnosed Hickok–Knight with CRPS ⁵; and (5) prescribed medication to alleviate her pain and to help her sleep. III VRP at 427, 433; Ex. 5.

¶ 10 On February 13, Dr. Vu performed on Hickok–Knight a “sympathetic block,” which applied local anesthetic to nerves through a spinal injection and “worked to increase blood flow to the ... foot.” III VRP at 439. At first, there was “significant pain relief,” but the effects “slowly wore off.” III VRP at 440, 442. On February 21, Hickok–Knight returned for a second sympathetic block, which produced similarly effective, but temporary, results. On March 10, Dr. Vu also used a needle to perform “neurolysis of the sympathetic chain,” a procedure known as “sympathetomy” or “radio ablation”; this procedure involves “cauterizing” nerves in Hickok–Knight's spine with “radiofrequency” and “disrupts the signal transmission along that chain at that level ... giving it a more permanent response; a more long-acting” treatment. III VRP at 447, 486; Ex. 5. After this procedure, Hickok–Knight's “temperature difference seemed to ... improve,” “so the foot didn't seem to feel as cold to her”; this increase in temperature “persisted.” III VRP at 447–48.

C. Dr. Wray (Wal–Mart's Expert Neurologist)

¶ 11 A few weeks later, on March 28, Hickok–Knight saw Dr. Linda Wray, a neurologist whom Wal–Mart hired to conduct an independent medical examination of Hickok–Knight. Hickok–Knight complained to Dr. Wray about “a lot of pain and all kinds of problems,” displayed “very dramatic limp,” and “would barely put her left foot down on the floor” or “bear weight on it” V VRP at 736; VII VRP at 1208. After completing the examination, Dr. Wray concluded that Hickok–Knight did not suffer from CRPS.

¶ 12 Two months after Dr. Wray's examination, on June 2, Wal–Mart's surveillance video showed Hickok–Knight filling up her vehicle with gas without any apparent impairment to her walking. Similarly, a June 14 surveillance video ⁶ showed Hickok–Knight, without any obvious physical impairment, burying a dead animal in her front yard and shopping at the Wal–Mart where she had suffered her foot injury, pushing a shopping cart down the aisle, walking without pushing the cart, and loading groceries into a vehicle. And a July 7 surveillance video showed Hickok–Knight walking without obvious impairment.

D. Return to Dr. Vu

¶ 13 On September 30, Dr. Vu discussed these surveillance videos with Hickok–Knight. Based on these videos, Dr. Vu did not want to proceed with a “spinal cord stimulator trial”, which would have involved threading an electrode wire into her spinal column and connecting the wire to a box that Hickok–Knight would have worn outside her body to provide electrical stimulation to her spinal cord. VIII VRP at 1221. Instead, Dr. Vu encouraged Hickok–Knight to follow up with a pain clinic. Instead of attending a pain clinic, however, Hickok–Knight returned to Dr. Vu a month later, on November 5, continuing to complain about pain in her left foot. After this appointment, Dr. Vu noted, “Though [Hickok–Knight] has ... hypersensitivity to exam, she does not meet other criteria for CRPS.” Ex. 57. Dr. Vu again suggested that Hickok–Knight follow up at a pain clinic.

E. Dr. Silver (Pain Clinic Psychologist); Return to Dr. Vu

¶ 14 In December, Dr. Frederick Silver, a psychologist at the Franciscan Chronic Pain...