Mercer v. Birch
| Decision Date | 17 March 2009 |
| Docket Number | 37158-8-II |
| Parties | JOLEE MERCER, Appellant, v. RICKY BIRCH and jane= husband= wife= and= the= marital= community= comprised= recycle= equipment= products= rock= washington= acquisition= construction= industrial= kiewit= pacific= a= delaware= |
| Court | Court of Appeals of Washington |
UNPUBLISHED OPINION
Jolee Mercer seeks review of the trial court's denial of her motion for a new trial following a jury verdict awarding her $14, 500 in damages for injuries that she sustained in a motor vehicle accident. Mercer challenges the trial court's admission of photographs of the accident scene for illustrative purposes and the admission of the defense expert's testimony. We affirm.
Jolee Mercer was injured when a tractor trailer driven by Ricky Birch collided with her Ford Bronco on April 5, 2002. On March 17, 2005, Mercer filed a personal injury claim against Birch, his marital community, and his employers, alleging that as a result of Birch's negligence Mercer "was seriously injured, suffered and continues to suffer physical disability and pain, emotional trauma, medical expenses, loss of earnings and earning capacity, and other damages to be proved at trial." CP at 5.[1]
During discovery, Mercer submitted to an independent medical examination performed by the defense's expert, Dr. Paul Tesar on June 22, 2006. Tesar submitted a 24-page report regarding his findings, and a copy of that report was provided to Mercer's counsel within a month after the examination. Trial was scheduled for May 7, 2007. Mercer's counsel deposed Tesar on April 12, 2007. On April 19, 2007, defense counsel deposed Tesar for purposes of perpetuating his testimony. On April 24, 2007, Mercer filed a motion to exclude or limit Tesar's testimony, asserting that he had failed to supplement his report, arguing that it was apparent from Tesar's April 19 perpetuation deposition testimony that he had been provided additional documentation since his April 12 discovery deposition, and that Tesar "was prepared to testify to a slew of opinions not contained in his June 22, 2006 report." CP at 15. The trial court fashioned a remedy by continuing the May 7, 2007, trial date to July 23, 2007, and ordered that Tesar be deposed by Mercer's counsel a third time. Mercer's counsel deposed Tesar a third time on June 21 2007.
Prior to trial, Mercer sought to exclude from Tesar's testimony any opinion not set forth in Tesar's June 22, 2006 report; exclude any testimony addressing psychological/psychiatric issues as to Mercer; and exclude testimony that the collision forces present could not have caused injury. The trial court denied in part and granted in part, ruling that Tesar was not limited to the opinions expressed in his report "due to his subsequent discovery deposition." CP at 84. See RP at 103-05 (). The court also ruled that Tesar could not testify as to Mercer's psychological issues.[2] The court also ruled that Tesar could not opine based on photographs that the collision was minor and not significant enough to cause injury.
At the subsequent trial, defense counsel sought to use several photographs of the accident scene taken just after the collision. Mercer objected, but the court ruled that the photographs would be admitted for "illustrative purposes . . . to show the scene of the accident." RP at 36. The court ruled that Mercer's testimony had opened the door to the defense's use of the photographs when she described the collision, its force of impact, and the position of the vehicles resulting from the collision.
Mercer also testified that several months following the April 5 2002, collision in question, she was involved in multiple incidents that resulted in back pain, including three other car accidents. Notably, in December of 2002, Mercer was involved in a single car roll-over accident in which her Bronco skidded off the freeway and rolled over several times "total[ing]" the Bronco. RP at 48. In August 2005, Mercer's vehicle was hit by another car as that car merged into Mercer's lane of travel. Mercer testified that she was involved in another vehicle collision in a parking lot at some time between the December 2002 roll-over accident and the August 2005 lane-change accident. She also described an incident in October 2002 when she bent over to dry her hair and felt pain like a "hot poker" in her back. RP at 41. Mercer also testified that she fell and "broke [her] tailbone, " apparently in March of 2004. RP at 61. See also RP at 190.[3]
The defense's expert witness, orthopedic specialist Tesar, opined that Mercer suffered a lower back strain from the April 5, 2002, vehicle collision that resolved itself by early June 2002, and that Mercer's subsequent back complaints were the result of "new" injuries from other incidents. RP at 125. Mercer's treating family physician testified on her behalf, purportedly opining that Mercer's subsequent incidents of back pain were "flare-up[s]" from the April 5, 2002, collision. RP at 183.[4] The defense also presented eyewitness testimony that Mercer did not appear to be in pain and did not complain of back pain at the scene of the accident. After hearing the evidence, the jury returned a verdict awarding Mercer a total of $14, 500 in damages.
Mercer filed a motion for a new trial or, in the alternative, for additur. The trial court denied both. Mercer then filed a timely notice of appeal seeking to challenge the denial of her motion for a new trial. Mercer now contends that the trial court abused its discretion in admitting the photographs of the accident scene and in permitting Tesar to testify to opinions not contained in his report.
Admission of photographs for illustrative purposes.
A trial court has broad discretion in balancing the probative value of evidence against the potentially harmful consequences that might result from its admission. Lockwood v. AC & S Inc., 109 Wn.2d 235, 256, 744 P.2d 605 (1987). We review a trial court's decision on the admissibility of evidence, and its rulings on motions in limine for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Abuse of discretion occurs where the trial court's action is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Powell, 126 Wn.2d 258.
Mercer asserts that the trial court abused its discretion by permitting admission of the photographs of the accident scene for illustrative purposes. This is so, she contends, because liability was admitted in this case and thus the only purpose for the photographs was for the jury to improperly speculate regarding the cause of Mercer's injury. She asserts the issue at trial was "to what extent Jolee [Mercer] was injured." Br. of Appellant at 9. But the issue is more properly articulated as to what extent Mercer was injured in the April 5, 2002, motor vehicle collision. As noted, defendant introduced evidence that Mercer was involved in three other vehicle accidents in the months following the collision in question here, including a freeway roll-over accident. And that Mercer had also injured her back in various subsequent incidents including a slip and fall in which she injured her coccyx. The trial court ruled that the photographs, which were purportedly taken of the accident scene just after the collision in question could be used for illustrative purposes to show the accident scene. This was proper because Mercer had opened the door for their use for impeachment purposes when she testified describing the severity of the impact and how the vehicles came to rest after the accident. The photographs were relevant because they showed the position of the vehicles resulting from the collision.
The practice of admitting photographs "is to be encouraged" as an aid to the comprehension of physical facts. Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 389, 261 P.2d 692 (1953) (internal quotations and citation omitted). See also Kramer, 43 Wn.2d at 389 (). See also Taylor v. Spokane, P. & S. Ry. Co., 72 Wash. 378, 379-80, 130 P. 506 (1913) (). See also Murray v. Mossman, 52 Wn.2d 885, 888, 329 P.2d 1089 (1958) (photographs were relevant and properly admitted because they tended to show force and direction of impact that resulted in plaintiff's injury). Here, the issue at trial was the extent of Mercer's injury. Defendants' theory at trial was that while it admitted liability for the accident, it contended that Mercer sustained only a back strain that resolved in a few weeks. Mercer does not show that the trial court abused its discretion in admitting the photographs for illustrative purposes.
Mercer contends that the photographs do not qualify as illustrative evidence, citing State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992) as support. But Lord instructs that the "use of demonstrative or illustrative evidence is to be favored and the trial court is given wide...
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