Hollins v. Zbaraschuk

• Decision Date: 25 September 2017
• Docket Number: No. 75532-3-I.,75532-3-I.
• Citation: 200 Wash.App. 578,402 P.3d 907
• Court: Washington Court of Appeals
• Parties: Brian HOLLINS, Appellant, v. Richard ZBARASCHUK and Jane Doe Zbaraschuk, individually and their marital community; and Alexia Zbaraschuk and John Doe Zbaraschuk, individually and their marital community, Respondents.

200 Wash.App. 578

402 P.3d 907

Brian HOLLINS, Appellant,

v.Richard ZBARASCHUK and Jane Doe Zbaraschuk, individually and their marital community; and Alexia Zbaraschuk and John Doe Zbaraschuk, individually and their marital community, Respondents.

No. 75532-3-I.

Court of Appeals of Washington, Division 1.

FILED: September 25, 2017

Laurie Yasuko Shiratori, Law Office of Laurie Shiratori PLLC, 3600 15th Ave. W., Ste. 200, Seattle, WA, 98119-1330, Mary Conception Anderson, Guidance to Justice Law Firm, PLLC, 19125 N. Creek Pkwy., Ste. 120, Bothell, WA, 98011-8000, Leonard J. Feldman, Ann Heacox Rosato, Mallory Colleen Allen, Peterson Wampold Rosato Feldman Luna, 1501 4th Ave., Ste. 2800, Seattle, WA, 98101-3677, for Appellant.

Marie Elizabeth Dolack, Attorney at Law, 2719 N.W. 65th St., Seattle, WA, 98117-5918, Kelley J. Sweeney, Law Offices of Sweeney & Dietzler, 1001 Fourth Ave., Ste. 3300, Seattle, WA, 98154, for Respondents.

Cox, J.¶1 We review for abuse of discretion a trial court's grant of a new trial " ‘unless that grant is based on an error of law.’ "¹ We also review for abuse of discretion a trial court's evidentiary rulings.² A much stronger showing of abuse of discretion is required to set aside an order granting a new trial than one denying a new trial.³

¶2 Here, the trial judge granted the defendants' motion for a new trial following a substantial jury verdict for the plaintiff. She did so based on her exclusion of evidence at trial regarding damages, which she concluded was both an abuse of discretion and deprived the defendants of a fair trial. Plaintiff fails in his burden to show that the trial judge abused her discretion by granting a new trial. We affirm.

¶3 On September 23, 2011, Alexia Zbaraschuk crashed her father's car into the rear of Brian Hollins' car. He had stopped on a freeway at the time of the collision. He was seriously injured.

¶4 Hollins commenced this personal injury action against Alexia and her father ("the Zbaraschuks"). They admitted liability from the accident to the extent of causation. And they did not dispute Hollins' damages to the extent of $33,124.18 in medical costs for his injuries.⁴

¶5 The issue for the jury trial that followed was the total amount of Hollins' additional past and future earnings damages and past and future non-economic, damages.⁵

¶6 Pretrial, Hollins successfully moved in limine to exclude evidence of what he characterized as his "unrelated accidents, incidents, and medical conditions."⁶ He argued, among other things, that this evidence was not relevant to his claim in this action.⁷ The motion judge granted the motion.⁸

¶7 The parties tried the case to a jury before a different judge than the motion judge. During trial, the Zbaraschuks requested that the trial judge reconsider the motion judge's order in limine. They did so during Hollins' testimony as well as at other times during trial. In each instance, the trial judge denied their requests for relief from the order in limine.

¶8 The jury returned a verdict in favor of Hollins of over two million dollars in damages. The Zbaraschuks moved for a new trial under several subsections of CR 59(a). They argued that the trial judge abused her discretion by excluding evidence of damages concerning Hollins' pre-accident and post-accident injuries. The trial judge granted the motion solely on the basis of CR 59(a)(1). She denied the motion to the extent of the other subsections of CR 59(a).

¶9 Hollins appeals.

NEW TRIAL

¶10 Hollins argues that we should review de novo the trial judge's decision to grant a new trial and that the decision was erroneous.⁹ We disagree with both arguments.

Standard of Review

¶11 A trial judge may grant a new trial under CR 59(a). Because the trial judge in this case based her ruling solely on the first subsection of this rule, we focus on this subsection. It provides:

On the motion of the party aggrieved, a verdict may be vacated and a new trial granted .... Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties:

(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial....^[10]

¶12 We review for abuse of discretion a trial court's grant of a new trial " ‘unless that grant is based on an error of law.’ "¹¹ We also review for abuse of discretion a trial court's evidentiary rulings.¹² A much stronger showing of abuse of discretion is required to set aside an order granting a new trial than one denying a new trial.¹³ A court abuses its discretion when it makes a decision for untenable reasons or on untenable grounds.¹⁴

¶13 Hollins argues that we have no basis to defer to the trial judge's ruling. This argument essentially urges us to review de novo the trial judge's decision to grant a new trial. Because that is not the law, we decline to do so. Rather, we apply the abuse of discretion standard of review that controls in this case.

¶14 Notably, Hollins does not directly argue that the trial judge abused her discretion by making her decision either for untenable reasons or on untenable grounds. Instead, he argues that the motion judge—a different judge from this trial judge—properly granted relief in limine excluding evidence prior to trial. This is unpersuasive.

¶15 The proper focus of our review is the trial judge's decision, not the motion judge's. The primary reason for this is that the trial judge, who had the benefit of a fully developed trial record, was best informed on the relevant question: whether a new trial should be granted. To the contrary, the motion judge, who had a much more limited record than that developed at trial, was far less informed. Moreover, the question whether a new trial was warranted was simply not before the motion judge when he ruled in limine before trial. Hollins fails to present any persuasive authority to counter these basic points.

¶16 The other point that we consider in deciding the proper standard of review to apply is the nature of the decision underlying this motion for a new trial. Here, the underlying decision before the trial judge was whether she had erroneously excluded damages evidence at trial. As the authorities uniformly hold, this is a classic discretionary decision.¹⁵

¶17 Finally, this court also "require[s] a ‘much stronger showing of abuse of discretion to set aside an order granting a new trial than one denying a new trial.’ "¹⁶ There is nothing either in Hollins' arguments or the record before us that persuasively supports that he has made this stronger showing in this case.

¶18 Hollins relies on several cases to argue that we should not apply the abuse of discretion standard of review to this case. Reliance on these cases is misplaced.

¶19 The first case is McCoy v. Kent Nursery, Inc.¹⁷ On review, the issue was whether the trial court had abused its discretion by granting a new trial based on CR 59(a)(9).¹⁸ That rarely used subsection of the rule involves the question whether a "lack of substantial justice" applies.¹⁹ Division Two of this court concluded that the trial court had abused its discretion under the factual circumstances of that case.²⁰

¶20 Here, the trial judge granted a new trial based on CR 59(a)(1), not CR 59(a)(9). Review of the jury verdict was not the issue here. Thus, the two cases are distinguishable.

¶21 Bunnell v. Barr,²¹ on which Hollins also relies, is equally unconvincing. That case reaffirms the constitutional role of the jury.²² But the court there did not consider whether that role overrides admission of all relevant evidence to permit a jury to fulfill its constitutional function. This latter question is at issue in this case. So reliance on this case is also misplaced.

¶22 Thompson v. Grays Harbor Community Hospital ²³ is the last case on which Hollins relies. It is not helpful. While noting that a trial court's discretion "is not without limits," it does nothing to address what those limits are under the circumstances of this case.²⁴ Because we conclude that this trial judge was well within her discretion to grant a new trial, Thompson does not control.

¶23 Accordingly, we apply the abuse of discretion standard to our review of this trial judge's decision to grant a new trial.

Exclusion of Evidence

¶24 Hollins relies heavily on the motion judge's ruling in limine that excluded certain evidence. We stated earlier in this opinion why that ruling is not the proper focus of our review. But we also conclude that Hollins' reliance on that ruling is misplaced for other reasons.

¶25 First, as we read Hollins' motion in limine, it focuses on evidence of causation, one of the necessary elements he must prove in this personal injury action. For example, he stated in his motion that his "claim in this lawsuit does not include left knee, left elbow, low back or hip problems."²⁵ Similarly, he stated that his "claim in this lawsuit does not include a right wrist problem."²⁶ And he further stated that his April 2011 neck spasm was not symptomatic at the time of the September 2011 accident underlying this action.²⁷ Thus, he argues that evidence of these injuries and their treatment was not relevant, and not facts of consequence, to any issue in this case. He also argued that admission of such evidence would violate ER 403 by confusing the jury.

¶26 Based on this motion and the response to it, the motion judge entered a broadly worded order. It excluded:

any and all evidence, references to evidence, testimony, or argument relating to a left knee injury on January 20, 2005 and any and all surgery thereto; pre-existing degenerative discogenic disease; injury to his neck in 2009; an injury to left elbow in January 2013 and subsequent surgery in September 2013; low back injury in January 2013; right hip injury in January 2013 and subsequent hip replacement in June 2015; injury to his right wrist in September or October 2015 ....^{[28 ]}

¶27 Whether...