Kumar v. Appleton

• Docket Number: 84899-2-I
• Decision Date: 26 December 2023
• Parties: RAMANPREET KUMAR, an individual, Respondent, v. KATHARINE R. APPLETON, Executor of the Estate of William George Appleton, Jr., and "JANE DOE" APPLETON, both individually and on behalf of the marital community composed thereof,Appellants.
• Court: Washington Court of Appeals

1

RAMANPREET KUMAR, an individual, Respondent,
v.
KATHARINE R. APPLETON, Executor of the Estate of William George Appleton, Jr., and "JANE DOE" APPLETON, both individually and on behalf of the marital community composed thereof,Appellants.

No. 84899-2-I

Court of Appeals of Washington, Division 1

December 26, 2023

UNPUBLISHED OPINION

Feldman, J.

Katharine Appleton, Executor of the Estate of William Appleton (Appleton), appeals from a jury verdict and judgment awarding Ramanpreet Kumar $6.5 million in noneconomic damages caused by a motor vehicle collision as to which Appleton admitted liability.^[1] Finding no reversible error, we affirm.

I

On December 10, 2015, Appleton's vehicle collided with Kumar's vehicle after Appleton turned left through an intersection without yielding the right-of-way to Kumar. Three days after the collision, Kumar went to the emergency room

2

complaining of pain in her neck and right hip from the motor vehicle collision. The emergency room physician diagnosed Kumar with an acute cervical strain and right hip strain.

Almost a year later, following extensive chiropractic and massage therapy treatments Kumar's treating physician, Dr. Alma Garcia, diagnosed Kumar with "lumbosacral injury with a probable underlying joint injury with probable myofascial component, and right sacroiliac and piriformis involvement."^[2] Kumar underwent physical therapy and received cortisone injections to her right sacroiliac joint (SI joint) every six months.

Kumar returned to Dr. Garcia in April 2019 for another cortisone injection. Kumar informed Dr. Garcia that her hip pain from the 2015 collision had not improved. Given the lack of improvement, Dr. Garcia ordered an MRI, which revealed Kumar has osteitis condendans ilii (OCI). OCI is a thickening of the iliac bone. It is generally asymptomatic, as it was here prior to the 2015 collision.

Kumar sued Appleton for damages caused by the collision. Following discovery, including a CR 35 examination of Kumar by Dr. James Harris,^[3] Kumar filed a motion for partial summary judgment seeking dismissal of each and all of the causation defenses set forth in Appleton's answer. The trial court granted the motion. Before trial, Kumar filed motions in limine to exclude the testimony of two

3

of Appleton's expert witnesses, Dr. Harris and Dr. Dean Shibata, because their opinions that Kumar's OCI is causing her ongoing pain contradicted the trial court's summary judgment ruling striking Appleton's causation defenses. The trial court granted these motions.

At trial, Dr. Garcia testified that the 2015 motor vehicle collision caused Kumar to suffer a permanent "lumbosacral injury with sacroiliac dysfunction." Regarding treatment, Dr. Garcia stated that injections into the SI joint usually alleviate this type of pain for five to ten years, after which surgery may be required. Kumar testified that her hip is in constant pain, and her friends and a coworker testified that her injury has limited her ability to do physical activities and caused her to become emotionally "soulless."

The jury awarded Kumar $6.5 million in noneconomic damages, consisting of $5 million for past and $1.5 million for future noneconomic damages. Appleton filed a motion for a new trial, which the trial court denied with the exception of lowering the interest rate on the judgment from 11 percent to 9 percent. Appleton timely appeals.

II

A. Award of partial summary judgment to Kumar

In her summary judgment motion, Kumar requested that the trial court strike all of the causation defenses that Appleton raised in his answer, including the following:

3. Any and all damages and/or injuries sustained by [Kumar] if any, may have preexisted the events alleged against [Appleton] by [Kumar] in the Amended Complaint, or otherwise have been caused by subsequent events and/or instrumentalities having no connection to [Appleton].

4

. . . .

7. Any and all damages and/or injuries sustained by [Kumar], if any, may not have been foreseeable and/or may have been caused by or contributed by intervening causes that [Appleton] had no control over and for which they are not legally responsible

(Emphasis added.) Appleton claims the trial court erred in granting the motion because these causation issues should have been decided by the jury. We disagree.

We review "summary judgment orders de novo, engaging in the same inquiry as the trial court." Desranleau v. Hyland's, Inc., 10 Wn.App. 2d 837, 842, 450 P.3d 1203 (2019). We consider only "evidence and issues called to the attention of the trial court." RAP 9.12. "Summary judgment is warranted only when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The facts and all reasonable inferences are viewed in the light most favorable to the nonmoving party." Desranleau, 10 Wn.App. 2d at 842. We also review de novo a trial court's evidentiary rulings made in conjunction with a summary judgment motion. Watness v. City of Seattle, 16 Wn.App. 2d 297, 305, 481 P.3d 570 (2021).

Critical here, summary judgment motions are governed by "'a burden-shifting scheme.'" Welch v. Brand Insulations, Inc., 27 Wn.App. 2d 110, 114, 531 P.3d 265 (2023) (quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn.App. 318, 326, 387 P.3d 1139 (2016)). "The moving party bears the initial burden 'to prove by uncontroverted facts that there is no genuine issue of material fact.'" Id. (quoting Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)). If the moving party satisfies its burden, then the burden shifts to the nonmoving party to "'set

5

forth specific facts evidencing a genuine issue of material fact for trial.'" Id. (quoting Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995)).

Kumar plainly satisfied her initial burden on summary judgment. In her summary judgment motion, Kumar argued that the 2015 collision was the sole cause of the pain for which she would be seeking damages at trial. Kumar relied on declarations from Dr. Garcia stating that Kumar had no history of back or hip pain or disability prior to the 2015 collision, that she had been continually experiencing pain in the same region of her right hip and lower back since the collision, that Dr. Garcia diagnosed her with a "lumbosacral injury with a probable underlying joint injury with probable myofascial component, and right sacroiliac and piriformis involvement," and that this diagnosis is "more likely than not, with a reasonable degree of medical certainty, related to the December 10, 2015, motor vehicle collision."

Kumar also submitted evidence showing that her OCI condition preexisted and was asymptomatic prior to the 2015 collision. Kumar then cited Washington precedent holding that such a preexisting condition cannot be a proximate cause of damages resulting from a negligent act where, as here, that condition was asymptomatic prior to the accident.^[4] Because Kumar satisfied her initial burden of showing that there is no genuine issue of material fact regarding causation for her claimed injuries, the burden of production shifted to Appleton (the nonmoving party) to "'set forth specific facts evidencing a genuine issue of material fact for

6

trial.'" Welch, 27 Wn.App. 2d at 115 (quoting Schaaf, 127 Wn.2d at 21).

Where, as here, the moving party satisfies their initial burden and the burden of production shifts to the nonmoving party, that party "cannot rely on 'speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value.'" M.E. v. City of Tacoma, 15 Wn.App. 2d 21, 31-32, 471 P.3d 950 (2020) (quoting Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). Expert testimony is generally required on the issue of medical causation. Street v. Weyerhaeuser Co., 189 Wn.2d 187, 198, 399 P.3d 1156 (2017). That testimony must be based on reasonable medical certainty or probability and cannot be based on speculation, conjecture, or mere possibility. Desranleau, 26 Wn.App. 2d at 438. Additionally, the "expert must support [their] opinion with specific facts, and a court will disregard expert opinions where the factual basis for the opinion is found to be inadequate." Woodward v. Lopez, 174 Wn.App. 460, 468, 300 P.3d 417 (2013) (quoting Rothweiler v. Clark County, 108 Wn.App. 91, 100, 29 P.3d 758 (2001)). An expert's opinion that is based on a conclusion or an assumption instead of facts "is not evidence which will take a case to the jury." Theonnes v. Hazen, 37 Wn.App. 644, 648, 681 P.2d 1284 (1984).

Despite this burden shifting framework, Appleton's brief in opposition to Kumar's summary judgment motion is conclusory and unsupported by requisite evidence. Appleton devoted a single paragraph to the issue of alternative causes of Kumar's pain. Regarding injuries that preexisted the 2015 motor vehicle accident, Appleton conceded that "there does not appear to be any preexisting symptomatic condition just prior to the [2015] accident." By conceding this critical

7

factual issue and ignoring the cases that Kumar cited on this point, Appleton effectively agreed that there are no fact issues regarding causation from preexisting events or injuries (such as OCI).

Turning to subsequent events, including intervening and superseding causes, Appleton argued that Kumar "suffered from additional injuries and underwent further treatment for a motor vehicle accident and work-related injury that occurred in 2018 and impacted her ability to continue in her job position at the time." Appleton stated these "subsequent injuries . . . affect the outcome of issues in this case and should be presented to a trier of fact." But despite alluding to these subsequent injuries, Appleton did not explain how they caused any of the damages that Kumar was seeking at trial. Nor did Appleton present expert...