Kurtz v. State

Decision Date06 July 2021
Docket NumberNo. 80686-6-I,80686-6-I
CourtWashington Court of Appeals
PartiesMELISSA KURTZ, individually, Respondent/Cross-Appellant, v. STATE OF WASHINGTON d/b/a UNIVERSITY OF WASHINGTON and UNIVERSITY OF WASHINGTON MEDICAL CENTER, Appellants/Cross-Respondents.


SMITH, J.Melissa Kurtz, a disabled woman with an increased risk of bone injury, suffered a serious arm fracture during an assisted transfer from her wheelchair to a table at the University of Washington Medical Center. Kurtz sued the State of Washington and the University of Washington Medical Center (collectively UW) for damages, including the cost of chore services that she required after the injury. Among other claims, Kurtz alleged that (1) UW had committed corporate negligence by failing to provide its employees with the training or tools necessary for safe patient handling and (2) UW had violated the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by failing to reasonably accommodate her disability. The trial court instructed the jury on both claims. After jury deliberations began, a juror was dismissed for conducting outside research, and the court denied UW's motion for mistrial. The jury found that UW was liable for corporate negligence and denied Kurtz's other claims.

UW appeals the trial court's denial of its motion for mistrial and claims that Kurtz failed to establish both the necessity of her chore services and the standard of care attributable to UW under her corporate negligence claim. Kurtz cross appeals the court's decision not to give a jury instruction defining the term "reasonable accommodation."

We conclude that the trial court did not abuse its discretion by denying UW's motion for mistrial because it was able to instruct the jury to disregard the extrinsic information and received assurances from the jurors that they could do so. Furthermore, viewing the record in the light most favorable to Kurtz, we conclude that she provided sufficient evidence to establish the necessity of her chore services and UW's standard of care. Finally, we conclude that the court did not abuse its discretion by declining to give Kurtz's requested jury instruction. Therefore, we affirm.


In December 2015, Kurtz went to the echocardiography lab at the University of Washington Medical Center for an echocardiogram ordered by her primary care provider. Kurtz has osteogenesis imperfecta (OI), commonly known as "brittle bone disease," which causes her bones to break easily. Due to OI, Kurtz, who is about 3 feet 6 inches tall, uses a wheelchair. During her appointment, the UW echosonographer, Margaret Falkenreck, asked Kurtz to transfer to a specialized echocardiogram table that was four to six inches higherthan her wheelchair. While Kurtz was generally able to self-transfer to surfaces that were about the same height as her wheelchair, she was unable to self-transfer to the echocardiogram table because it was too high. Testimony differed as to the sequence of events, but, ultimately, another UW echosonographer, Maurizio Corona, came in to help move her. Corona placed his hands on Kurtz and bore some amount of her weight to assist the transfer. During the transfer, Kurtz fractured her upper left arm bone. Due to Kurtz's OI, the fracture never healed, and the bone did not fuse back together. Kurtz sued UW for medical malpractice, corporate negligence, and violation of the WLAD.

Jury trial began on August 6, 2019. Kurtz retained Dr. Nirav Pandya, a pediatric orthopedic surgeon at the University of California San Francisco, as an expert witness. Despite several objections from UW, Dr. Pandya testified about Kurtz's condition, her injury, and UW's standard of care for safe patient handling. Kurtz also introduced into evidence UW's Safe Patient Handling policy, which provided that "manual patient handling . . . shall be restricted to emergency, life threatening or otherwise exceptional circumstances," and required annual training on the policy. Testimony established that UW had not provided training to the echosonographers on this policy. Kurtz testified that her injury severely limited or eliminated her ability to do many daily activities, including dressing herself, brushing her hair, taking a shower, and driving her car. Kurtz's niece also testified that Kurtz was unable or less able to do these activities in the wake of the fracture. Kurtz further testified that she had to hire home care assistance for help with these activities as a result of her injury. Over UW's objection, Dr.Pandya testified that such chore services were reasonably necessitated by her injury.

Toward the close of trial, UW moved for judgment as a matter of law and argued that Kurtz had presented insufficient evidence to support her claims for corporate negligence or economic damages. The court nonetheless instructed the jury on corporate negligence, medical malpractice, and Kurtz's WLAD claim. However, the court declined to give one of Kurtz's requested WLAD instructions defining "reasonable accommodation."

After the jury began deliberations, the court discovered that a juror had searched the Internet to determine how much noneconomic damages should be. The juror had informed the rest of the jury that noneconomic damages are commonly three times the amount of economic damages but could be between one and five times the amount of economic damages. Upon discovering this misconduct, the court asked each juror under oath if they could disregard that information going forward. Each juror agreed that they could. The court discharged the juror who had searched the Internet, brought the alternate juror back, and instructed the recomposed jury to "disregard all previous deliberations and begin deliberations anew." The court denied UW's motion for mistrial.

The jury found that UW was negligent and awarded Kurtz $518,004.34 in economic damages and $962,000.00 in noneconomic damages. The jury rejected Kurtz's other claims, including her WLAD claim.

UW appeals the denial of its mistrial motion and several of the court's decisions relevant to Kurtz's corporate negligence and economic damagesclaims. Kurtz cross appeals the court's decision to not instruct the jury about the meaning of reasonable accommodation.


UW contends that the court erred by denying its motion for mistrial, by permitting Kurtz to proceed with her claim for economic damages, and by permitting Kurtz to proceed with her claim for corporate negligence. Kurtz contends that the court erred by denying her requested jury instruction explaining reasonable accommodation. We affirm the trial court on all counts.

Jury Misconduct and Motion for Mistrial

UW contends that the trial court erred by denying UW's motion for a mistrial in light of the juror misconduct. The trial court concluded that a mistrial was not necessary because although the juror had committed misconduct, the remaining jurors were confident that they could disregard the extrinsic evidence. We conclude that the court did not abuse its discretion in coming to this conclusion.

A juror commits misconduct if they introduce extrinsic evidence into jury deliberations. Kuhn v. Schnall, 155 Wn. App. 560, 575, 228 P.3d 828 (2010). When this happens, the court must generally "make an objective inquiry into whether the extrinsic evidence could have affected the jury's determination, not a subjective inquiry into the actual effect of the evidence on the jury." Kuhn, 155 Wn. App. at 575. If there are "reasonable grounds" to believe a party has been prejudiced, a new trial is warranted. Kuhn, 155 Wn. App. at 575.

"Deciding whether juror misconduct occurred and whether it affected theverdict are matters for the discretion of the trial court, and will not be reversed on appeal unless the court abused its discretion." Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003). The trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). We give greater weight to a decision to grant a new trial than a decision to deny a new trial. Breckenridge, 150 Wn.2d at 204.

In Lockwood v. AC&S, Inc., 109 Wn.2d 235, 241-42, 744 P.2d 605 (1987), a deliberating jury was discussing damages when one juror informed the jury that he had looked up the defendants and determined that they could "well afford to pay." Having discovered this before the jury rendered its verdict, the trial court gave the jury a curative instruction not to consider the financial circumstances of the parties and denied the defendant's motion for a mistrial. Lockwood, 109 Wn.2d at 242. On appeal, our Supreme Court noted that "the trial court's curative instruction to the jury promptly and directly dealt with the juror misconduct[,] . . . significantly reduc[ing] the probability that the misconduct would have any prejudicial effect." Lockwood, 109 Wn.2d at 265. The Supreme Court took note of the trial court's "careful examination" of the proceedings, along with the fact that the jury damages award was substantially lower than the amount requested, in determining that there was "little reason to doubt that the misconduct did not affect the verdict." Lockwood, 109 Wn.2d at 265-66. The court therefore concluded that the trial court did not abuse its discretion by denying the motion for mistrial. Lockwood, 109 Wn.2d at 266.

In this case, the trial court not only instructed the jury to disregard the extrinsic information like the court in Lockwood, it also received sworn assurances from every juror who heard the information that they could set that information aside in their deliberations. The court noted that it "felt that [the jurors] were all very confident that they were and are able to disregard" the extrinsic information. Furthermore, the court dismissed the juror who had committed misconduct, brought in the alternate juror, and directed the jury to begin their...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT