Mears v. Bethel Sch. Dist. No. 403, Corp.

• Decision Date: 12 August 2014
• Docket Number: No. 43121–1–II.,43121–1–II.
• Citation: 332 P.3d 1077
• Court: Washington Court of Appeals
• Parties: Jeanette MEARS, individually and as Personal Representative for the Estate of Mercedes Mears and as Limited Guardian for Jada Mears; and Michael Mears, Appellants/Cross Respondents, v. BETHEL SCHOOL DISTRICT NO. 403, a municipal corporation; Rhonda K. Gibson; and Heidi A. Christensen, Respondents/Cross Appellants.

332 P.3d 1077

Jeanette MEARS, individually and as Personal Representative for the Estate of Mercedes Mears and as Limited Guardian for Jada Mears; and Michael Mears, Appellants/Cross Respondents,

v.BETHEL SCHOOL DISTRICT NO. 403, a municipal corporation; Rhonda K. Gibson; and Heidi A. Christensen, Respondents/Cross Appellants.

No. 43121–1–II.

Court of Appeals of Washington, Division 2.

Aug. 12, 2014.

Paul Alexander Lindenmuth, Benjamin Franklin Barcus, Ben F. Barcus & Associates PLLC, Tacoma, WA, Thaddeus Phillip IV Martin, Attorney at Law, Lakewood, WA, for Appellant/Cross–Respondent.

Gerald John Moberg, Jerry Moberg & Associates, P.S., Ephrata, WA, Daniel W. Ferm, Attorney at Law, Bainbridge Island, WA, Jessie Lee Harris, Williams Kastner & Gibbs PLLC, Seattle, WA, for Respondent/Cross–Appellant.

BJORGEN, A.C.J.

¶ 1 This appeal from a defense verdict in a wrongful death case arises out of the untimely death of Mercedes Mears, a student at Clover Creek Elementary School. Mercedes ¹ began having difficulty breathing shortly after arriving at school on October 7, 2008. Mercedes's sister Jada Mears informed Rhonda Gibson, the school's health clerk, who escorted Mercedes to the school's health room and called 911. By the time emergency rescue personnel arrived, Mercedes had stopped breathing and lost consciousness. Resuscitation efforts failed, and she died en route to the hospital.

¶ 2 Mercedes's parents, Jeanette and Michael Mears, subsequently filed this suit against the Bethel School District, school health clerk Gibson, and school nurse Heidi Christensen (collectively, “District”). They alleged that various omissions by the school's staff amounted to negligence and proximately caused Mercedes's death and that Mercedes's sister Jada could recover for the emotional distress of witnessing the death. After a long and strenuously litigated trial, the jury answered special interrogatories, finding each defendant negligent, but also finding that the defendants' negligence did not proximately cause Mercedes's death. The court entered judgment for the District on the jury's verdict. The Mears filed a motion for judgment as a matter of law on the issue of proximate cause and for a new trial solely on the issue of damages, or in the alternative, for a new trial on all issues, but the trial court denied the motion.

¶ 3 The Mears appeal, arguing that the trial court erred in denying their post-trial motions, because substantial evidence does not support the jury's verdict as to proximate cause and because defense misconduct deprived them of a fair trial. The District cross appeals, claiming statutory immunity and arguing that the Mears' failure-to-rescue theory precludes Jada's negligent infliction of emotional distress claim as a matter of law. We affirm, and therefore do not address the District's cross appeal.

FACTS

¶ 4 Mercedes suffered from persistent asthma and also had severe, life-threatening allergies. Shortly after arriving at school with her sister Jada and their friend Henry Dotson, Mercedes began having difficulty breathing. She sat down on a bench outside the school, saying she felt sick. Jada ran inside and returned with Gibson, the school's health clerk, who escorted Mercedes inside.

¶ 5 Mercedes's asthma had frequently caused her to visit the school's health room, where the school kept an inhaler prescribed by her doctor, Lawrence Larson, containing an asthma medication known as Albuterol. Gibson and other staff knew of Mercedes's asthma and understood that Mercedes also had serious food allergies. Of those present during the emergency that led to Mercedes's death, those who formed an opinion on the matter testified that they believed Mercedes was having an asthma attack, not an allergic reaction to food.

¶ 6 As Mercedes's condition deteriorated, her EpiPen sat in a cupboard a few feet away. An EpiPen is a medical device that allows someone with no medical training to safely inject herself or another with a pre-measured dose of epinephrine, a potent hormone commonly known as adrenaline. Marjory Spraycar, Stedman's Medical Dictionary 585 (26th ed.1995). Mercedes's doctor had prescribed the EpiPen, and her parents had delivered it to the school along with a signed permission form and an order from the doctor to dispense the EpiPen to Mercedes in the event of an “allergic emergency.” Ex. 454.

¶ 7 At trial, undisputed expert testimony established that an injection of epinephrine by the time Mercedes lost consciousness probably would have saved her life. Verbatim Report of Proceedings (VRP) (Oct. 20, 2011 (Lawrence Larson) at 48–49); VRP (Oct. 18, 2011) (Michael Freeman) at 30; VRP (Oct. 18, 2011) (Russeli Hopp) at 67,74–75; VRP (Nov. 15, 2011). Expert testimony similarly established that, had school personnel initiated cardiopulmonary resuscitation (CPR) when Mercedes became unresponsive, she likely would have survived. The District's experts conceded that administering epinephrine posed no significant risk of harmful side effects and that an asthma attack may qualify as an “allergic emergency.” VRP (Nov. 16, 2011) (Anthony Montanaro) at 73.

¶ 8 The notebook containing the doctor's orders for using the Albuterol inhaler and the EpiPen, along with Mercedes's “emergency health care plan,” were nearby in the health room. VRP (Oct. 17, 2011) (Peggy Walker) at 87–88. School nurse Christensen had prepared the emergency health care plan, pursuant to state law and school district policy, so that staff without formal medical training could appropriately respond should Mercedes have a medical emergency. The school staff present did not open the notebook or consult the documents inside it. Those present also did not attempt to perform CPR. Instead, as Mercedes's condition worsened, they again called 911, attempted to administer additional doses of Albuterol, tried to make Mercedes more comfortable, and waited for the ambulance to arrive.

¶ 9 At trial, the parties sharply disputed the cause of Mercedes's death. The medical examiner who performed the autopsy had attributed her death to asthma, and experts called by the District concurred. The District presented expert testimony that “uncontrolled asthma” also sometimes results in sudden death. VRP (Nov. 16, 2011) (Montanaro) at 35–37. The Mears presented opinion testimony from Dr. Larson and a forensic pathologist that Mercedes had more likely died of anaphylaxis, a sudden and often fatal allergic reaction that affects various body functions, including the respiratory system.

¶ 10 The District cross-examined Dr. Larson extensively, over the Mears' objection, concerning Flovent, an inhaled corticosteroid medication used for long-term control of asthma, which had been prescribed for Mercedes. The day after Dr. Larson's testimony, the Mears offered a curative instruction concerning the Flovent testimony. A few days later, the Mears moved to strike all testimony concerning Hovent and proposed another curative instruction on the issue. The trial court refused to give the Mears' proposed instructions, instead giving a different instruction allowing consideration of Flovent only for the limited purpose of Mercedes's prior asthma condition.

¶ 11 After the close of evidence, the Mears moved for judgment as a matter of law on the issue of proximate cause as to certain undisputed items of damages. The trial court granted the Mears' motion in part, and included the undisputed items as mandatory on the damages portion of the verdict form. The court also ruled that neither an infection nor the nonuse of Flovent proximately caused Mercedes's death and prohibited argument to the contrary, but allowed the District to argue that Mercedes died of uncontrolled asthma and that Flovent was important in controlling asthma.

¶ 12 The jury returned answers to special interrogatories finding Gibson, Christensen, and the school district all negligent, but also finding that their negligence did not proximately cause Mercedes's death. The trial court entered judgment for the District on the jury's verdict.

¶ 13 The Mears moved for judgment as a matter of law as to proximate cause and a new trial limited to the issue of damages, or in the alternative, for a new trial as to all issues. The trial court denied the motion. The Mears timely appealed, and the District cross appealed. Because we affirm the judgment, we do not reach the issues raised in the District's cross appeal.

ANALYSIS

I. Internal Consistency of the Jury's Answers on the Verdict Form and Their Consistency with the Evidence

¶ 14 The Mears initially contend that the trial court erred in denying their motion for a new trial and, alternatively, for judgment as a matter of law, because the jury's verdict was inconsistent and contrary to the evidence. The District contends that the Mears base their argument on a false premise and that the verdict “is consistent and supported by substantial evidence in the record.” Br. of Resp't at 49. We agree with the District.

A. Standard of Review

¶ 15 We review de novo a trial court's denial of a motion for judgment as a matter of law. Bishop of Victoria Corp. Sole v. Corporate Bus. Park, LLC, 138 Wash.App. 443, 454, 158 P.3d 1183 (2007). In that review, we engage in the same inquiry as the trial court, admitting the truth of the nonmoving party's evidence and all reasonable inferences that can be drawn from it. Faust v. Albertson, 167 Wash.2d 531, 537, 222 P.3d 1208 (2009). A motion for judgment as a matter of law is properly granted only when the court can find, as a matter of law, that there was no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party. Guijosa v. Wal–Mart Stores, Inc., 144 Wash.2d 907, 915, 32 P.3d 250 (2001).

¶ 16 We review an order denying a motion for a new trial for abuse of discretion by the trial court. See Aluminum Co. of Am. v. Aetna Cas. & Sur. Co. ( ALCOA ), 140 Wash.2d 517, 537, 998 P.2d 856 (2000). Generally, a trial...