Otzenberger v. Park-Hwang, No. 30692-1-II (WA 5/10/2005)
| Decision Date | 10 May 2005 |
| Docket Number | No. 30692-1-II,30692-1-II |
| Court | United States State Supreme Court of Washington |
| Parties | KIRSTEN OTZENBERGER and DANIEL OTZENBERGER, wife and husband, Respondents, v. ESTHER PARK-HWANG, M.D.; JUDY UNGERLEIDER, M.D.; MULTICARE HEALTH SYSTEM, a Washington corporation; and JOHN DOES 1-2, Appellants. |
Appeal from Superior Court of Pierce County. Docket No: 01-2-10603-7. Judgment or order under review. Date filed: 07/03/2003. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Sherry Hemming Rogers, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), Amanda Hoke Du Bois, The Law Offices of Amanda Du Bois, 800 5th Ave Ste 4100, Seattle, WA 98104-3100.
Jane Isaacs Fantel, Lopez & Fantel Inc PS, 1510 14th Ave, Seattle, WA 98122-4024.
Carl A. Taylor Lopez, Lopez & Fantel, 1510 14th Ave, Seattle, WA 98122-4024.
In this medical malpractice case, Dr. Esther Park-Hwang, Dr. Judy Ungerleider, and Multicare Health System (collectively, Park-Hwang) appeal a trial court order granting Kirsten and Daniel Otzenberger's motion for a new trial following a jury verdict in Park-Hwang's favor. The court granted a new trial based on (1) Park-Hwang's violation of its `golden rule'1 order in limine in closing argument and (2) the trial court's refusal to permit the Otzenbergers to take a perpetuation deposition of rebuttal witnesses who were apparently unable to testify at trial.
We hold that the trial court properly denied the Otzenbergers' request for a perpetuation deposition because they did not make the showing necessary for such a deposition. There was no legal ground for the trial court to reverse its initial decision to deny the deposition. Moreover, the Otzenbergers did not object to Park-Hwang's `golden rule'-type statement and, when considered in context, it was not `flagrant and prejudicial.' Thus, error, if any, was waived. We reinstate the jury's verdict for Park-Hwang and remand for entry of judgment on that verdict.
Kirsten Otzenberger2 was first prescribed the topical cream Efudex, also known as 5-fluorouracil, in the early 1990s after being diagnosed with human papillomavirus (HPV) and experiencing pain and irritation of the vulva or labia majora.3 Application of this cream causes abnormal skin cells to die and slough off, allowing normal skin cells to develop. Otzenberger had good results using the cream once a week for several weeks at a time.
In 1997, Otzenberger saw her Colorado gynecologist, Dr. Voss, complaining of symptoms of itching and dryness. Dr. Voss performed a biopsy of Otzenberger's vulva and concluded that she had developed vulvar intraepithelial neoplasia (`VIN') 1. VIN is an abnormality of the skin cells in the vulva that can be graded as 1, 2, or 3. VIN 3 denotes the worst cell abnormality and is the stage that occurs before development of cancer. VIN 1 may progress to VIN 3, and eventually cancer, but this only occurs in a small percentage of cases. Dr. Voss recommended Efudex to treat Otzenberger's condition, but Dr. Voss and Otzenberger determined Otzenberger would wait to start treatment until after she saw a doctor in Washington State, where she was planning to move.
After Otzenberger moved to Puyallup, Washington, she saw gynecologist Dr. Park-Hwang4 on August 28, 1998. Otzenberger told Dr. Park-Hwang that she had a long history of HPV with chronic vulvar irritation and gave Dr. Park-Hwang records of her treatment with Dr. Voss. Otzenberger told Dr. Park-Hwang that Dr. Voss had recommended that she be treated with Efudex, and she showed Dr. Park-Hwang a tube of the medication.
Dr. Park-Hwang performed pelvic examinations on Otzenberger on August 28, and again on September 14; these confirmed Dr. Voss's diagnosis of VIN 1. Between Otzenberger's August and September appointments, Dr. Park-Hwang reviewed the available medical literature on Efudex treatment and consulted a gynecologic oncologist.
At Otzenberger's September 14 follow-up appointment, Dr. Park-Hwang discussed Otzenberger's treatment options and explained that the Efudex treatment would cause the skin to slough off and make the area raw and painful. But Otzenberger wanted to try Efudex, and Dr. Park-Hwang prescribed topical application to Otzenberger's vulva once a day for 14 consecutive days. After six days of application, Otzenberger called Dr. Park-Hwang and reported painful urination, but Dr. Park-Hwang told her that this was normal and Otzenberger should continue treatment.
Four days later, Otzenberger saw Dr. Park-Hwang's partner, gynecologist Dr. Ungerleider,5 complaining of continued painful urination. Dr. Ungerleider prescribed pain medication and advised Otzenberger to complete the treatment unless the pain worsened. Otzenberger completed the course of treatment and continued to see Dr. Ungerleider or nurse practitioners at the office for the next two months, but she continued to experience pain. Eventually, Dr. Ungerleider referred Otzenberger to another physician.
Otzenberger sued Park-Hwang for damages resulting from her continuing vulvar pain, contending that Dr. Park-Hwang and Dr. Ungerleider were negligent in prescribing Efudex for two weeks and that Dr. Park-Hwang had failed to inform Otzenberger of alternative treatments.
Before trial, Park-Hwang moved in limine to exclude `golden rule' arguments, or those arguments `urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position.'6 The trial court ordered that any `golden rule' argument by either party would be improper.
At the February 2003 jury trial, which encompassed eight days of testimony, Otzenberger presented physician testimony that she had never had HPV or VIN and testimony that Dr. Park-Hwang and Dr. Ungerleider's care had fallen below the standard of care and caused her permanent injury, despite various treatment attempts.
Park-Hwang presented testimony that Otzenberger had been diagnosed with both VIN and HPV, that Dr. Park-Hwang and Dr. Ungerleider's treatment of Otzenberger was within the standard of care and, further, that the doctors' treatment had not caused Otzenberger's pain.
A number of Otzenberger's other health care providers testified at trial. Apparently, Otzenberger suffered from a number of health complaints, including psychological disorders. Dr. Gerald Rosen, a clinical psychologist, testified for the defense regarding tests that he had performed on Otzenberger. Over Otzenberger's objection, he testified that Otzenberger `has a pattern of severe medical complaints that seem to get more complicated with treatment.' 7 Report of Proceedings (RP) at 1083.
Based on apparent scheduling difficulties, Otzenberger was unable to call as rebuttal witnesses her family physician, Dr. Day, and her neurologist, Dr. Chang. But she called her gynecologist, Dr. David Eschenbach.
After the parties rested, defense counsel stated in closing argument:
{VIN} is a precancerous condition. Plaintiffs want you to believe that it's nothing. But none of the doctors, neither Dr. Krebs, nor Eschenbach {plaintiffs' witnesses}, nobody could tell you that Ms. Otzenberger was indeed the one who wouldn't go on to have different symptoms, worse symptoms, or even go on to have cancer somewhere down the line. They didn't tell you that. They said, Oh well, she probably wouldn't have it. Not too many people go on to have cancer. Ask yourselves, would that have been good enough for you or your spouse?
11 RP at 1849-50. Otzenberger did not object.
On February 28, 2003, a jury of 12 rendered a defense verdict in favor of Park-Hwang. On April 11, 2003, the trial court entered a judgment on the verdict.
On April 21, 2003, 52 days after the jury's verdict, Otzenberger timely moved for a new trial under CR 59(a)(1), (2), and (9).7 The trial court granted a new trial on the ground that defense counsel violated the order in limine regarding `golden rule' arguments in its closing argument, and that, although Otzenberger did not object, the violation was so flagrant and prejudicial that it merited a new trial.8 The trial court also granted a new trial based on a second ground that substantial justice was not done under CR 59(a)(1) and (9) because the trial court had not permitted Otzenberger to perpetuate by deposition the testimony of the proposed rebuttal witnesses. The trial court noted that either ground supported a new trial. On June 16, Park-Hwang moved for reconsideration of the order granting a new trial, but the trial court denied the motion on July 3, 2003.
Park-Hwang appeals the order granting Otzenberger a new trial.
A court may grant a motion for a new trial when important rights of the moving party are materially affected because substantial justice has not been done. CR 59(a). When the trial court's basis for granting a motion for a new trial is based on questions of fact, we will not disturb the ruling absent a manifest abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). But when such an order is predicated on legal rulings, no element of discretion is involved. Schneider v. City of Seattle, 24 Wn. App. 251, 255, 600 P.2d 666 (1979) (citing Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812, 440 P.2d 834 (1968); Lyster v. Metzger, 68 Wn.2d 216, 226, 412 P.2d 340 (1966)), review denied, 93 Wn.2d 1010 (1980). Thus, we review legal rulings for error only, not for abuse of discretion. See Schneider, 24 Wn. App. at 256 (quoting Braden v. Rees, 5 Wn. App. 106, 110, 485 P.2d 995 (1971)).
Park-Hwang contends that the trial court erred in granting a new trial based on the defense's `golden rule' comment...
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